LIMITED LIABILITY COMPANY AGREEMENT 1 OF CIT HEALTHCARE LLC
Exhibit T3B.21
OF
CIT HEALTHCARE LLC
This Limited Liability Company Agreement (together with the schedules attached hereto, this
“Agreement”) of CIT Healthcare LLC (the “Company”), is entered into by The CIT Group/Equipment
Financing, Inc., as the sole member (the “Initial Member”). Capitalized terms used herein and not
otherwise defined have the meanings set forth on Schedule A hereto.
The Initial Member, by execution of this Agreement, (i) hereby forms and continues the Company
as a limited liability company pursuant to and in accordance with the Delaware Limited Liability
Company Act (6 Del.C. §18-101, et seq.), as amended from time to time (the
“Act”), and (ii) hereby agrees as follows:
1. Name.
The name of the limited liability company heretofore formed and continued hereby is CIT
Healthcare LLC.
2. Principal Business Office.
The principal business office of the Company shall be located at ▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ or such other location as may hereafter be determined by the Member.
3. Registered Office.
The address of the registered office of the Company in the State of Delaware is c/o The
Corporation Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
4. Registered Agent.
The name and address of the registered agent of the Company for service of process on the
Company in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
| 1 | Amended by member consent dated May 1, 2006 which added new paragraph 11 f. |
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5. Members.
The name and the mailing address of the Initial Member(s) are set forth on Schedule B
attached hereto.
6. Certificates.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, as an “authorized person” within the meaning of the Act, shall execute,
deliver and file the Certificate of Formation with the Secretary of State of the State of Delaware.
Upon the filing of the Certificate of Formation with the Secretary of State of the State of
Delaware, his powers as an “authorized person” shall cease, and the Member thereupon became the
designated “authorized person” and shall continue as the designated “authorized person” within the
meaning of the Act. The Member or any of its officers shall execute, deliver and file any other
certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify
to do business in any other jurisdiction in which the Company may wish to conduct business.
7. Purposes.
The Company is formed for the object and purpose of, and the nature of the business to be
conducted and promoted by the Company is, engaging in any lawful act or activity for which limited
liability companies may be formed under the Act.
8. Powers.
The Company (i) shall have and exercise all powers necessary, convenient or incidental to
accomplish its purposes as set forth in Section 7 and (ii) shall have and exercise all of the
powers and rights conferred upon limited liability companies formed pursuant to the Act.
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9. Management.
a. Classes of Managers. As permitted under the Delaware Limited Liability Company
Act, as amended, the Company shall have two classes of Managers.
(i.) Class 1 Managers shall consitute the Board of Managers and shall be entitled to
vote at all of its meetings. The term “Class 1 Managers” shall be interchangeable with the term
“Manager” as its relates to limited liability companies, in general.
(ii) Class 2 Managers shall be elected by the Board of Managers. Class 2 Managers
shall not be members of the Board of Managers nor shall they be entitled to vote at any meetings
thereof. Class 2 Managers shall serve as the officers of the Company as described in Section 11
below. When circumstances so require, Class 2 Managers may execute documents under the title
“Manager” provided that such action is within the scope of authority, as set forth in this
Agreement or by resolution of the Board of Managers, of the office to which said Class 2 Manager
has been elected by the Board of Managers. The term “Class 2 Manager” shall not be interchangeable
with the term “Manager” as it relates to limited liability companies, in general, nor as such term
appears hereinafter in this Agreement.
a. Board of Managers. The business and affairs of the Company shall be managed by or
under the direction of a Board of one or more Class 1 Managers (hereinafter “Manager”). The Member
may determine at any time in its sole and absolute discretion the number of Managers to constitute
the Board. The authorized number of Managers may be increased or decreased by the Member at any
time in its sole and absolute discretion. The initial number of Managers shall be three. Each
Manager elected, designated or appointed shall hold office until a successor is elected and
qualified or until such Manager’s earlier death, resignation or removal. Each Manager shall
execute and deliver the Management Agreement. Managers need not be Members.
▇. ▇▇▇▇▇▇. The Board of Managers shall have the power to do any and all acts
necessary, convenient or incidental to or for the furtherance of the purposes described herein,
including all powers, statutory or otherwise. The Board of Managers has the authority to bind the
Company.
c. Meeting of the Board of Managers. The Board of Managers of the Company may hold
meetings, both regular and special, within or outside the State of Delaware. Regular meetings of
the Board may be held without notice at such time and at such place as shall from time to time be
determined by the Board. Special meetings of the Board may be called by the President on not less
than one day’s notice to each Manager by telephone, facsimile, mail, telegram or any other means of
communication, and special
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meetings shall be called by the President or Secretary in like manner and with like notice upon the
written request of any one or more of the Managers.
d. Quorum; Acts of the Board. At all meetings of the Board, a majority of the
Managers shall constitute a quorum for the transaction of business and, except as otherwise
provided in any other provision of this Agreement, the act of a majority of the Managers present at
any meeting at which there is a quorum shall be the act of the Board. If a quorum shall not be
present at any meeting of the Board, the Managers present at such meeting may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until a quorum shall be
present. Any action required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
e. Electronic Communications. Members of the Board, or any committee designated by
the Board, may participate in meetings of the Board, or any committee, by means of telephone
conference or similar communications equipment that allows all persons participating in the meeting
to hear each other, and such participation in a meeting shall constitute presence in person at the
meeting. If all the participants are participating by telephone conference or similar
communications equipment, the meeting shall be deemed to be held at the principal place of business
of the Company.
f. Committees of Managers.
(i) The Board may, by resolution passed by a majority of the whole Board, designate one or
more committees, each committee to consist of one or more of the Managers of the Company. The
Board may designate one or more Managers as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee.
(ii) In the absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not such members
constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in
the place of any such absent or disqualified member.
(iii) Any such committee, to the extent provided in the resolution of the Board, shall have
and may exercise all the powers and authority of the Board in the management of the business and
affairs of the Company. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board. Each committee shall keep regular
minutes of its meetings and report the same to the Board when required.
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g. Written Consent of Managers. Whenever, by provision of statute or of the
Certificate of Formation or by this Limited Liability Company Agreement, the vote of the Board of
Managers or any committee thereof is required or permitted to be taken at a meeting thereof in
connection with any action, the meeting and the vote of the Board of Managers or any committee
thereof may be dispensed with if all of the members of the Board of Managers or the committee
consent in writing to the adoption of a resolution authorizing the action. The resolution and the
written consent thereto by the members of the Board of Managers or the committee shall be filed
with the minutes of the proceedings of the Board of Managers or committee.
h. Removal of Managers. Unless otherwise restricted by law, any Manager or the entire
Board of Managers may be removed, with or without cause, by majority vote of the Member(s), and,
any vacancy caused by any such removal may be filled by majority vote of the Member(s).
i. Managers as Agents. To the extent of their powers set forth in this Agreement, the
Managers are agents of the Company for the purpose of the Company’s business, and the actions of
the Managers taken in accordance with such powers set forth in this Agreement shall bind the
Company.
10. Duties of Managers.
Except as provided in this Agreement, in exercising their rights and performing their duties
under this Agreement, the Managers shall have a fiduciary duty of loyalty and care similar to that
of a director of a business corporation organized under the General Corporation Law of the State of
Delaware.
11. Officers.
a. Offices, Election, Term.
(i) The Board of Managers may elect or appoint Class 2 Managers who shall serve as the
officers of the Company (hereinafter “Officers” or by specific title), including a Chief Executive
Officer, a President, one or more Vice Presidents, a Secretary, a Treasurer, and a Controller, and
such other officers as it may determine, who shall have such duties, powers and functions as
hereinafter provided. The Chairman of the Board, the President or the Chief Executive Officer
together with the Secretary of the Company may appoint any such other officers or agents, other
than a Chief Executive Officer, President or Secretary, fix their term of office, and prescribe
their respective authorities and duties. Any two or more offices may be held by the same person.
(ii) All officers shall be elected or appointed to hold office until the meeting of the Board
of Managers immediately following the Annual Meeting of Members.
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(iii) Each officer shall hold office for the term for which he is elected or appointed and
until his successor has been elected or appointed and qualified or until his earlier resignation or
removal.
(iv) The Board of Managers may require any officer to give security for the faithful
performance of his duties.
(v) The Board of Managers may appoint such other officers and agents as it may deem advisable,
who shall hold their offices for such term and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Managers.
b. Removal and Resignation.
(i) Any officer elected or appointed by the Board of Managers may be removed by the Board at
any time, with or without cause.
(ii) Any officer elected or appointed by the Chairman of the Board, the Chief Executive
Officer or the President together with the Secretary of the Corporation may be removed by said
officers and/or the Board of Managers at any time, with or without cause.
(iii) If, for any reason, any elected or appointed officer of the Corporation ceases to be
employed by CIT Group Inc. or any of its affiliates, such cessation of employment shall have the
same effect as if such individual resigned as an officer of the Corporation. Under such
circumstances, the Board of Managers shall not require the resigning officer to deliver a signed
resignation, but instead, based on information received from the Human Resources Department of CIT
Group Inc. or any of its affiliates, the Secretary or any Assistant Secretary of the Corporation
shall file with the minutes of the meetings of the Corporation a notice of the officer’s cessation
of employment and consequent resignation as an officer of the Corporation.
(iv) In the event of the death, resignation or removal of an officer, the Board of Managers,
in its discretion, may elect or appoint a successor to fill the unexpired term.
(v) The Board of Managers may fill any vacancy occurring in any office for any reason and may,
in its discretion, leave unfilled for such period as it may determine any offices other than those
of President, Treasurer and Secretary. Each such successor shall hold office for the unexpired
term of his predecessor and until his successor is elected and qualified, or until his earlier
death, resignation or removal.
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c. The Chief Executive Officer. The Chief Executive Officer shall: (i) oversee the
overall business and management of the Corporation; (ii) report to the Members on the business and
affairs of the LLC; and (iii) perform such duties as from time to time may be assigned to him by
the Board of Managers.
d. The President. The President shall: (i) preside at all meetings of the Board of
Managers, provided that the President is a member of the Board of Managers; (ii) be controlled by
the Chief Executive Officer and the Board of Managers of the Company and shall make reports
concerning the business and affairs of the Company to the Chief Executive Officer and the Board of
Managers as requested ; and (iii) have the general powers and duties of supervision, management,
direction and control of the business of the Company usually vested in the office of President,
including, without limitation, the authority to sign or countersign all certificates, contracts, or
other instruments of the Company as authorized by the Board of Managers.
The officers of the Company shall be responsible to the President for the proper and faithful
discharge of their several duties, and shall each report to him as he may from time to time
require.
e. The Vice Presidents. The title of Vice President may be preceded by the words
“Executive”, “Senior”, or “Assistant” to indicate the rank of such Vice President, set forth above
in the order of rank with “Executive” being the highest rank of Vice President. The term Vice
President(s) as used in these by-laws shall include all ranks of Vice President.
The Vice Presidents shall possess the power to sign all certificates, contracts, obligations
and other instruments to which the Company is a party and such execution by any one of the Vice
Presidents shall be legal, valid, and binding upon the Company. During the absence or disability
of the President, the Vice President or, if there are more than one, the Vice Presidents in the
order of (i) rank, (ii) election, or (iii) as determined by the board of Managers, shall have all
of the powers and functions of the President. Each Vice President shall perform such other duties
as the President may delegate or as the Board of Managers shall prescribe.
f. The Managing Directors. The office of Managing Director, and the junior ranks of
said office in descending order being Senior Director and Director, shall possess the same powers
as those granted to the Vice Presidents in paragraph 11 e. above, in order of rank. The titles of
Managing Director and Director shall be deemed to be included in all references hereinafter to
Officers and to Vice President(s). 2
g. The Secretary. The Secretary shall: (i) keep the minutes of all meetings of the
Board of Managers and of the Stockholders and cause the same to be
| 2 | Office of Managing Director and junior ranks approved and entire paragraph added by member consent dated May 1, 2006. Subsequent sub-paragraphs re-lettered. |
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recorded in the books provided for that purpose; (ii) give or cause to be given notice of all
meetings of Members and of special meetings of the Board of Managers; (iii) keep all the documents
and records of the Company, as required by law or otherwise, in the proper and safe manner; and
(iv) perform all such other duties as may be incident to the office of Secretary and perform all
such other duties as may be prescribed by the President or the Board of Managers.
h. The Assistant Secretary. During the absence or disability of the Secretary, the
Assistant Secretary or, if there be more than one, the one so designated by the Secretary, the
President or the Board of Managers, shall have all the powers and functions of the Secretary. The
Assistant Secretary shall perform all such other duties as may be prescribed by the Secretary, the
President, or the Board of Managers.
i. The Treasurer. The Treasurer shall: (i) have the custody of the corporate funds
and securities; (ii) keep full and accurate accounts of receipts and disbursements in the corporate
books; (iii) deposit all money and other valuables in the name and to the credit of the Company in
such depositories as may be designated by the Board of Managers; (iv) disburse the funds of the
Company as may be ordered or authorized by the Board of Managers and preserve proper vouchers for
such disbursements; (v) render to the President and the Board of Managers, at the regular meetings
of the Board of Managers, or whenever they require it, an account of all his transactions as
Treasurer and of the financial condition of the Company; (vi) render a full financial report at the
Annual Meeting of the Members, if so requested; (vii) be furnished by all corporate officers and
agents, at his request, with such reports and statements as he may require as to all financial
transactions of the Company; and (viii) perform such other duties as are given to him by these
By-Laws or from time to time, are assigned to him by the Board of Managers or the President.
j. The Assistant Treasurer. During the absence or disability of the Treasurer, the
Assistant Treasurer, or, if there be more than one, the one so designated by the Treasurer, the
President or the Board of Managers, shall have all the powers and functions of the Treasurer. The
Assistant Treasurer shall perform all such other duties as may be prescribed by the Treasurer, the
President, or the Board of Managers.
k. The Controller. The Controller shall examine and certify the accounts of the
Company and shall report to the Board of Managers or to such officer as the Board of Managers may
require.
l. The Assistant Controller. During the absence or disability of the Controller, the
Assistant Controller, or, if there be more than one, the one so designated by the Controller, the
President or the Board of Managers, shall have all the powers and functions of the Controller. The
Assistant Controller shall perform all such other duties as may be prescribed by the Treasurer, the
President, or the Board of Managers.
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m. Delegation of Duties. In the case of the absence of any officer of the Company, or
for any other reason that the Board of Managers deems sufficient, the Board of Managers may
delegate, for any designated period of time, the powers or duties, or any of these, of such officer
to any other officer, or to any Manager, provided that one person is not given the powers and
duties of both the President and Secretary.
n. Voting in Other Corporations. Whenever the Company owns an interest in any other
company or legal entity, any right or power of the Company as such owner (including the attendance,
acting and voting at Stockholder/Member/owner meetings and execution of waivers, consents, proxies
or other instruments) may be exercised on behalf of the Corporation by the President, the
Secretary, or such other person as the Board of Managers may authorize.
o. Officers as Agents. The Officers, to the extent of their powers set forth in this
Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement,
are agents of the Company for the purpose of the Company’s business, and, the actions of the
Officers taken in accordance with such powers shall bind the Company.
p. Duties of Officers. Except to the extent otherwise provided herein, each Officer
shall have a fiduciary duty of loyalty and care similar to that of officers of business
corporations organized under the General Corporation Law of the State of Delaware.
q. Forms of Signature Acceptable forms of signature under which the officers may bind
the corporation are by hand, autographically, by facsimile or by uniquely marked,
computer-generated signatures or by other electronic methods.
12. Indemnification.
The Company shall indemnify its officers, Managers, employees and agents to the extent set
forth in the By-Laws of CIT Group Inc., the ultimate parent of the Company and/or any successor
thereto, as permitted by the Act.
13. Capital Contributions.
The Initial Member was deemed admitted as the Member of the Company upon the execution and
delivery of the Initial LLC Agreement. The Initial Member shall contribute the amount of cash to
the Company listed on Schedule B attached hereto.
14. Additional Contributions.
The Initial Member is not required to make any additional capital contribution to the Company.
However, a Member may make additional capital contributions to the Company at any time upon the
written consent of such Member. To
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the extent that the Member makes an additional capital contribution to the Company, the Member
shall revise Schedule B of this Agreement. The provisions of this Agreement, including
this Section 14, are intended solely to benefit the Member and, to the fullest extent permitted by
law, shall not be construed as conferring any benefit upon any creditor of the Company (and no such
creditor of the Company shall be a third-party beneficiary of this Agreement) and no Member shall
have any duty or obligation to any creditor of the Company to make any contribution to the Company
or to issue any call for capital pursuant to this Agreement.
15. Allocation of Profits and Losses.
The Company’s profits and losses shall be allocated to the Member.
16. Distributions.
Distributions shall be made to the Member at the times and in the aggregate amounts determined
by the Board. Notwithstanding any provision to the contrary contained in this Agreement, the
Company shall not be required to make a distribution to any Member on account of its interest in
the Company if such distribution would violate Section 18-607 of the Act or any other applicable
law or the Basic Documents.
17. Books and Records.
The Board shall keep or cause to be kept complete and accurate books of account and records
with respect to the Company’s business. The books of the Company shall at all times be maintained
by the Board. Each Member and its duly authorized representatives shall have the right to examine
the Company books, records and documents during normal business hours. The Company, and the Board
on behalf of the Company, shall not have the right to keep confidential from the Member any
information that the Board would otherwise be permitted to keep confidential from the Member
pursuant to Section 18-305(c) of the Act. The Company’s books of account shall be kept using the
method of accounting determined by the Member. The Company’s independent auditor shall be an
independent public accounting firm selected by the Member.
18. Assignments.
The Member may assign in whole or in part its limited liability company interest in the
Company. If the Member transfers all of its limited liability company interest in the Company
pursuant to this Section 18, the transferee shall be admitted to the Company as a member of the
Company upon its execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement, which instrument may be a counterpart signature page to this
Agreement. Such admission shall be deemed effective immediately prior to the transfer, and,
immediately following such admission, the transferor Member shall cease to be a member of the
Company.
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19. Resignation.
A Member may resign from the Company with the written consent of the Initial Member. If a
Member is permitted to resign pursuant to this Section 19, an additional member of the Company
shall be admitted to the Company, subject to Section 20, upon its execution of an instrument
signifying its agreement to be bound by the terms and conditions of this Agreement, which
instrument may be a counterpart signature page to this Agreement. Such admission shall be deemed
effective immediately prior to the resignation, and, immediately following such admission, the
resigning Member shall cease to be a member of the Company.
20. Admission of Additional Members.
One or more additional members of the Company may be admitted to the Company with the written
consent of the Member.
21. Dissolution.
a. The Company shall be dissolved, and its affairs shall be wound up upon the first to occur
of the following: (i) the retirement, resignation or dissolution of the Member or the occurrence of
any other event which terminates the continued membership of the Member in the Company unless the
business of the Company is continued in a manner permitted by the Act or (ii) the entry of a decree
of judicial dissolution under Section 18-802 of the Act.
b. The bankruptcy (as defined in Section 18-101(1) of the Act) of the Member shall not cause
the Member to cease to be a member of the Company and upon the occurrence of such an event, the
business of the Company shall continue without dissolution.
c. In the event of dissolution, the Company shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of the Company in an orderly
manner), and the assets of the Company shall be applied in the manner, and in the order of
priority, set forth in Section 18-804 of the Act.
22. Waiver of Partition; Nature of Interest.
Except as otherwise expressly provided in this Agreement, to the fullest extent permitted by
law, each Member hereby irrevocably waives any right or power that such Member might have to cause
the Company or any of its assets to be partitioned, to cause the appointment of a receiver for all
or any portion of the assets of the Company, to compel any sale of all or any portion of the assets
of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding
at law or in equity to cause the dissolution, liquidation, winding up or termination of the
Company. No Member shall have any interest in any specific assets of the Company, and no Member
shall have
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the status of a creditor with respect to any distribution pursuant to Section 16 hereof. The
interest of the Members in the Company is personal property.
23. Benefits of Agreement; No Third-Party Rights.
None of the provisions of this Agreement shall be for the benefit of or enforceable by any
creditor of the Company or by any creditor of any Member. Nothing in this Agreement shall be
deemed to create any right in any Person (other than Covered Persons) not a party hereto, and this
Agreement shall not be construed in any respect to be a contract in whole or in part for the
benefit of any third Person.
24. Severability of Provisions.
Each provision of this Agreement shall be considered severable and if for any reason any
provision or provisions herein are determined to be invalid, unenforceable or illegal under any
existing or future law, such invalidity, unenforceability or illegality shall not impair the
operation of or affect those portions of this Agreement which are valid, enforceable and legal.
25. Entire Agreement.
This Agreement constitutes the entire agreement of the parties with respect to the subject
matter hereof.
26. Governing Law.
This Agreement shall be governed by and construed under the laws of the State of Delaware
(without regard to conflict of laws principles), all rights and remedies being governed by said
laws.
27. Amendments.
This Agreement may not be modified, altered, supplemented or amended except pursuant to a
written agreement executed and delivered by the Member.
28. Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an
original of this Agreement and all of which together shall constitute one and the same instrument.
29. Notices.
Any notices required to be delivered hereunder shall be in writing and personally delivered,
mailed or sent by telecopy, electronic mail, or other similar form of rapid transmission, and shall
be deemed to have been duly given upon receipt (a) in the
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case of the Company, to the Company at its address in Section 2, (b) in the case of a Member,
to such Member at its address as listed on Schedule B attached hereto and (c) in the case
of either of the foregoing, at such other address as may be designated by written notice to the
other party.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed
this Agreement as of the ___day of January, 2006.
| MEMBER: The CIT Group/Equipment Financing, Inc. |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | Senior Vice President & Secretary | |||
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SCHEDULE A
Definitions
A. Definitions
When used in this Agreement, the following terms not otherwise defined herein have the
following meanings:
“Act” has the meaning set forth in the preamble to this Agreement.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly
Controlling or Controlled by or under direct or indirect common Control with such Person.
“Agreement” means this Amended and Restated Limited Liability Company Agreement of the
Company, together with the schedules attached hereto, as amended, restated or supplemented form
time to time.
“Board” or “Board of Managers” means the Board of Managers of the Company.
“Certificate of Formation” means the Certificate of Formation of the Company to be
filed with the Secretary of State of the State of Delaware on ___ ___, 2003, as amended or amended
and restated from time to time.
“Class 1 Manager” means the managers constituting the Board of Managers and who are
entitled to vote at all meetings thereof.
“Class 2 Manager” means the managers who are appointed by the Board of Managers to
serve as the officers of the Company and who are not entitled to vote at meetings of the Board of
Managers.
“Control” means the possession, directly or indirectly, or the power to direct or
cause the direction of the management or policies of a Person, whether through the ownership of
voting securities or general partnership or managing member interests, by contract or otherwise.
“Controlling” and “Controlled” shall have correlative meanings. Without limiting the generality of
the foregoing, a Person shall be deemed to Control any other Person in which it owns, directly or
indirectly, a majority of the ownership interests.
“Covered Persons” has the meaning set forth in Section 18a.
A-1
“Manager” means the Class 1 Manager(s) elected to the Board of Managers from time to
time by the Member. A Manager is hereby designated as a “manager” of the Company within the
meaning of Section 18-101(10) of the Act.
“Initial Member” means The CIT Group/Equipment Financing, Inc., as the sole member of
the Company.
“Management Agreement” means the agreement of the Class 1 Managers in the form
attached hereto as Schedule C.
“Member” means the Initial Member and includes any Person admitted as an additional
member of the Company or a substitute member of the Company pursuant to the provisions of this
Agreement.
“Officer” means a Class 2 Manager elected as an officer of the Company described in
Section 11. The initial Officers are listed on Schedule D hereto.
“Person” means any individual, corporation, partnership, joint venture, limited
liability company, limited liability partnership, association, joint-stock company, trust,
unincorporated organization, or other organization, whether or not a legal entity, and any
governmental authority.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and plural forms of the
defined terms. The words “include” and “including” shall be deemed to be followed by the phrase
“without limitation.” The terms “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Agreement as a whole and not to any particular Section, paragraph or
subdivision. The Section titles appear as a matter of convenience only and shall not affect the
interpretation of this Agreement. All Section, paragraph, clause, Exhibit or Schedule references
not attributed to a particular document shall be references to such parts of this Agreement.
A-2