EXHIBIT 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
NCT FUNDING COMPANY, L.L.C.
This Limited Liability Company Agreement (this "Agreement") of NCT
Funding Company, L.L.C. (the "Company"), is entered into by Newcourt Financial
USA Inc., a Delaware corporation, as the sole member (the "Member").
The Member, by execution of this Agreement, hereby agrees as follows:
Section 1. Definitions.
Capitalized terms used and not otherwise defined herein have the
meanings set forth on Schedule A hereto.
Section 2. Formation.
The Member hereby agrees to form a limited liability company under and
pursuant to the terms of the Delaware Limited Liability Company Act (6 Del. C.
'SS' 18-101 et seq.), as amended from time to time (the "Act"); and the rights
and obligations of the Member shall be as provided therein except as otherwise
expressly provided in this Agreement.
Section 3. Name.
The name of the limited liability company formed by this Agreement is
NCT Funding Company, L.L.C.
Section 4. 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.
Section 5. Registered Agent.
The address of the registered agent of the Company for service of
process on the Company in the State of Delaware is c/o The Corporation Trust
Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of New Castle, Delaware. The name of its registered agent
at such address is The Corporation Trust Company.
Section 6. Member.
The mailing address of the Member is set forth on Schedule B.
Section 7. Certificates.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is hereby designated as an "authorized person" within
the meaning of the Act, and has executed, delivered and filed the Certificate of
Formation of the Company with the Secretary of the State of Delaware. Upon the
filing of the Certificate of Formation with the Secretary of the State of
Delaware, his powers as an "authorized person" ceased, 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 an Officer
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 New Jersey and in any other jurisdiction in which the Company may wish to
conduct business.
Section 8. Purposes.
(a) The purposes and activities of the Company shall be limited to the
following:
(i) to purchase or otherwise acquire from time to time any or all
right, title and interest in, to and under, and to own, hold, transfer or sell
interests in, or interests in pools of, accounts, drafts, notes receivable,
installment sale agreements, conditional sale agreements, promissory notes with
or without related security agreements, true and finance leases, installment
payment agreements and similar types of financing agreements or obligations or
rights to payment thereunder or arising in connection therewith, including
monies paid, due or to become due thereunder or in connection therewith, and
together with any related collateral security or contract rights, whether
constituting real or personal property, securing such agreements or obligations
or supporting the payment thereof (including the acquisition of ownership
interests in real or personal property the subject of leases) (collectively, any
of the foregoing the "Assets");
(ii) to enter into, and perform its obligations under, any
agreements with one or more Affiliates or other Persons relating to or effecting
the transfers and conveyances of Assets as described above (including issuing
promissory notes or incurring other indebtedness to such Affiliates pursuant to
such agreements, which notes or indebtedness are subordinated to the rights of
holders of Interests or Securities as defined below);
(iii) to transfer Assets or interests therein (collectively,
"Interests") (including for the purpose of establishing, forming or funding one
or more trusts ("Trusts")), pursuant to one or more asset purchase agreements,
indentures, pooling agreements, pooling and servicing agreements, sale
agreements, sale and servicing agreements or other agreements ("Transfer
Agreements") entered into by and among, among others, the Company, any purchaser
of, investor in or holder of an Interest, any trustee or trustees or collateral
agent named therein (a "Trustee"), and any entity or entities acting as servicer
or administrator or collection agent or in similar capacity for the Assets, and
to perform its obligations under any such Agreements;
(iv) to issue, sell, authorize and deliver one or more series
and/or classes of certificates, bonds, notes or other evidences of indebtedness
secured or collateralized by, or otherwise representing interests in, one or
more pools of Assets or Interests (or to cause one or more Trusts established or
funded by the Company to issue, sell, authorize and deliver the same)
(collectively, any of the foregoing being "Securities"); to hold and enjoy any
and all of the rights and privileges of any Securities issued by Trusts to the
Company under or in connection with the related Transfer Agreements and to
acquire, hold and enjoy all of the rights and privileges of
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any class of any series of Securities, including any class of Securities which
may be subordinate to any other class of Securities and, except to the extent
otherwise provided in any such Securities, or related Transfer Agreement or
other agreement of the Company or applicable Trust entered into in connection
therewith, to sell, assign, pledge or otherwise transfer any such Security or
any interest therein;
(v) to enter into and to perform its obligations under the Transfer
Agreements and other related agreements to which it is a party pursuant to or in
connection with which any Securities are issued, secured or serviced;
(vi) to invest the proceeds derived from the sale or ownership of
the Interests and/or Securities as determined by the Company's Board of
Directors;
(vii) to enter into interest rate or basis swap, cap, floor or
collar agreements, currency exchange agreements or similar hedging arrangements
in connection with the purchase or financing of any Assets;
(viii) to own equity interests in the Trusts, or in other limited
liability companies or partnerships whose purposes are restricted to those set
forth in clauses (i) through (vii) above; and
(ix) to engage in any activity and to exercise any powers permitted
to limited liability companies under the laws of the State of Delaware that are
related or incidental to the foregoing and necessary, convenient or advisable to
accomplish the foregoing.
(b) The Company, by or through the Member, or any Director or Officer
on behalf of the Company, may enter into and perform, or authorize and direct a
Trust established by the Company to enter into and perform, as applicable,
Transaction Documents, and all other documents, agreements or financing
statements contemplated thereby or related thereto, all without any further act,
vote, or approval of the Member or any Director or Officer notwithstanding any
other provision of this Agreement, the Act or applicable law, rule or
regulation. The foregoing authorization shall not be deemed a restriction on the
powers of the Member, a Director or an Officer to enter into, or direct a Trust
to enter into, other agreements on behalf of the Company or such Trust, as
applicable, in each case in connection with permitted activities and purposes of
the Company or such Trust.
Section 9. Powers.
Subject to Section 10(j), the Company, and the Board of Directors and
the Officers of the Company on behalf of the Company, (i) shall have and
exercise all powers necessary, convenient or incidental to accomplish its
purposes as set forth in Section 8 and (ii) shall have and exercise all of the
powers and rights conferred upon limited liability companies formed pursuant to
the Act.
Section 10. Management.
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(a) Board of Directors. Subject to Section 10(j), the business and
affairs of the Company shall be managed by or under the direction of a Board of
one or more Directors. Subject to Section 11, the Member may determine at any
time in its sole and absolute discretion the number of Directors to constitute
the Board. The authorized number of Directors may be increased or decreased by
the Member at any time in its sole and absolute discretion, upon notice to all
Directors, and subject in all cases to Section 11. The initial number of
Directors shall be three, two of which shall be Independent Directors as and to
the extent required by Section 11. Each Director elected, designated or
appointed shall hold office until a successor is elected and qualified or until
such Director's earlier death, resignation, expulsion or removal. Each Director
shall execute and deliver the Management Agreement. Directors need not be a
Member. A Director is hereby designated as a "manager" of the Company within the
meaning of Section 18-101(10) of the Act.
(b) Powers. Subject to Section 10(j), the Board of Directors 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. Subject to Section 8, the Board of Directors has the
authority to bind the Company.
(c) Meeting of the Board of Directors. The Board of Directors 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 Director by telephone, facsimile, mail, telegram or any
other means of communication, and special 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 Directors.
(d) Quorum: Acts of the Board. At all meetings of the Board, a majority
of the Directors shall constitute a quorum for the transaction of business and,
except as otherwise provided in Section 12 (b) or in any other provision of this
Agreement, the act of a majority of the Directors 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 Directors 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, as the case may be.
(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 Directors.
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(i) Subject to Section 10(j), 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 Directors of the Company. The Board
may designate one or more Directors 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 and subject to Section 10(j), 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.
(g) Compensation of Directors; Expenses. The Board shall have the
authority to fix the compensation of Directors. The Directors may be paid their
expenses, if any, of attendance at meetings of the Board, which may be a fixed
sum for attendance at each meeting of the Board or a stated salary as Director.
No such payment shall preclude any Director from serving the Company in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
(h) Removal of Directors. Unless otherwise restricted by law, any
Director or the entire Board of Directors may be removed or expelled, with or
without cause, at any time by the Member, and, subject to Section 11, any
vacancy caused by any such removal or expulsion may be filled by action of the
Member.
(i) Directors as Agents. To the extent of their powers set forth in
this Agreement and subject to Section 10(j), the Directors are agents of the
Company for the purpose of the Company's business, and the actions of the
Directors taken in accordance with such powers set forth in this Agreement shall
bind the Company.
(j) Limitations on the Company's Activities.
(i) This Section 10(j) is being adopted in order to comply with
certain provisions required in order to qualify the Company as a "special
purpose entity."
(ii) The Member shall not, so long as an SPE Condition exists,
amend, alter, change or repeal the definition of "Independent Director" or
Sections 8, 9, 10, 11, 17, 20, 21, 22, 23, 24, 25, 26 or 31 or Schedule A of
this Agreement without the unanimous written consent of the Board (including
each Independent Director). Subject to this Section 10(j), the Member reserves
the right to amend, alter, change or repeal any provisions contained in this
Agreement in accordance with Section 31.
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(iii) Notwithstanding any other provision of this Agreement and any
provision of law that otherwise so empowers the Company, the Member or the
Board, neither the Member nor the Board shall be authorized or empowered, nor
shall they permit the Company, without the prior unanimous written consent of
the Member and the Board (including each Independent Director), to take any
Material Action.
(iv) The Board and the Member shall cause the Company to do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right or
franchise if: (1) the Board shall determine that the preservation thereof is no
longer desirable for the conduct of its business and that the loss thereof is
not disadvantageous in any material respect to the Company and (2) the Rating
Agency Condition and/or Holder Condition, as applicable, is satisfied. The Board
also shall cause the Company to:
(1) maintain its own separate books and records and bank
accounts;
(2) at all times hold itself out to the public and all other
Persons as a legal entity separate from the Member and
any other Person;
(3) have a Board of Directors separate from that of the
Member and any other Person;
(4) file its own tax returns, if any, as may be required
under applicable law, to the extent (1) not part of a
consolidated group filing a consolidated return or
returns or (2) not treated as a division for tax purposes
of another taxpayer, and pay any taxes so required to be
paid under applicable law;
(5) except as contemplated by the Transaction Documents, not
commingle its assets with assets of any other Person;
(6) conduct its business in its own name and strictly comply
with all organizational formalities to maintain its
separate existence;
(7) maintain separate financial statements;
(8) pay its own liabilities only out of its own funds;
(9) maintain an arm's length relationship with its Affiliates
and the Member;
(10) pay the salaries of its own employees, if any;
(11) not hold out its credit or assets as being available to
satisfy the obligations of others;
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(12) allocate fairly and reasonably any overhead for shared
office space;
(13) use separate stationery, invoices and checks;
(14) not pledge its assets as security for the obligations of
any other Person;
(15) correct any known misunderstanding regarding its separate
identity;
(16) maintain adequate capital in light of its contemplated
business purpose, transactions and liabilities;
(17) cause its Board of Directors to meet at least annually or
act pursuant to written consent and keep minutes of such
meetings and actions and observe all other Delaware
limited liability company formalities;
(18) not acquire any securities of the Member; and
(19) cause the directors, officers, agents and other
representatives of the Company to act at all times with
respect to the Company consistently and in furtherance of
the foregoing and in the best interests of the Company.
(v) So long as an SPE Condition exists, the Board shall not cause
or permit the Company to:
(1) except as contemplated by the Transaction Documents,
guarantee any obligation of any Person, including any
Affiliate;
(2) engage, directly or indirectly, in any business other
than the actions required or permitted to be performed
under Section 8 or this Section 10(j);
(3) incur, create or assume any indebtedness other than
indebtedness represented by Securities or as otherwise
expressly permitted under Transaction Documents;
(4) make or permit to remain outstanding any loan or advance
to, or own or acquire any stock or securities of, any
Person, except that the Company may invest in those
investments permitted under Transaction Documents and may
make any advance required or expressly permitted to be
made pursuant to any provisions of Transaction Documents
and permit the same to remain outstanding in accordance
with such provisions; or
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(5) to the fullest extent permitted by law, engage in any
dissolution, liquidation, consolidation, merger, asset
sale or transfer of ownership interests other than such
activities as are contemplated in Section 8 and related
applicable Transaction Documents.
Section 11. Independent Director.
As long as an SPE Condition exists, the Member shall cause the Company
at all times to have at least two Independent Directors who will be appointed by
the Member. To the fullest extent permitted by Section 18-1101(c) of the Act,
the Independent Directors shall consider only the interests of the Company,
including its respective creditors, in acting or otherwise voting on the matters
referred to in Section 10(j)(iii). No resignation or removal of an Independent
Director, and no appointment of a successor Independent Director, shall be
effective until the successor Independent Director shall have accepted his or
her appointment by a written instrument, which may be a counterpart signature
page to the Management Agreement. All right, power and authority of the
Independent Directors shall be limited to the extent necessary to exercise those
rights and perform those duties specifically set forth in this Agreement. Except
as provided in the second sentence of this Section 11, in exercising their
rights and performing their duties under this Agreement, any Independent
Director 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. No Independent Director shall at any time serve as
trustee in bankruptcy for any Affiliate of the Company.
Section 12. Officers.
(a) Officers. The Officers of the Company shall be chosen by the Board
and shall consist of at least a President, a Secretary and a Treasurer. The
Board of Directors may also choose one or more Vice Presidents, Assistant Vice
Presidents, Assistant Secretaries and Assistant Treasurers. Any number of
offices may be held by the same person. The Board shall choose a President, a
Secretary and a Treasurer. The Board may appoint such other Officers and agents
as it shall deem necessary or advisable who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board. The salaries of all Officers and
agents of the Company shall be fixed by or in the manner prescribed by the
Board. The Officers of the Company shall hold office until their successors are
chosen and qualified. Any Officer elected or appointed by the Board may be
removed at any time, with or without cause, by the affirmative vote of a
majority of the Board. Any vacancy occurring in any office of the Company shall
be filled by the Board.
(b) President. The President shall be the chief executive officer of
the Company, shall preside at all meetings of the Board, shall be responsible
for the general and active management of the business of the Company and shall
see that all orders and resolutions of the Board are carried into effect. The
President or any other Officer authorized by the President or the Board shall
execute all bonds, mortgages and other contracts, except: (i) where required or
permitted by law or this Agreement to be otherwise signed and executed,
including Section 8(b); (ii) where signing and execution thereof shall be
expressly delegated by the Board to some other Officer or agent of the Company;
and (iii) as otherwise permitted in Section 12(c).
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(c) Vice President and Assistant Vice President. In the absence of the
President or in the event of the President's inability to act, the Vice
President, if any (or in the event there be more than one Vice President, the
Vice Presidents in the order designated by the Directors, or in the absence of
any designation, then in the order of their election), shall perform the duties
of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. The Vice Presidents, if any,
shall perform such other duties and have such other powers as the Board may from
time to time prescribe. The Assistant Vice President, or if there be more than
one, the Assistant Vice Presidents in the order determined by the Board (or if
there be no such determination, then in order of their election), shall, in the
absence of the Vice President or in the event of the Vice President's inability
to act, perform the duties and exercise the powers of the Vice President and
shall perform such other duties and have such other powers as the Board may from
time to time prescribe.
(d) Secretary and Assistant Secretary. The Secretary shall be
responsible for filing legal documents and maintaining records for the Company.
The Secretary shall attend all meetings of the Board and record all the
proceedings of the meetings of the Company and of the Board in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given, notice of all
meetings of the Member, if any, and special meetings of the Board, and shall
perform such other duties as may be prescribed by the Board or the President,
under whose supervision the Secretary shall serve. The Assistant Secretary, or
if there be more than one, the Assistant Secretaries in the order determined by
the Board (or if there be no such determination, then in order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board may from time to time prescribe.
(e) Treasurer and Assistant Treasurer. The Treasurer shall have the
custody of the Company funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Company and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the Board.
The Treasurer shall disburse the funds of the Company as may be ordered by the
Board, taking proper vouchers for such disbursements, and shall render to the
President and to the Board, at its regular meetings or when the Board so
requires, an account of all of the Treasurer's transactions and of the financial
condition of the Company. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board (or if
there be no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability to
act, perform the duties and exercise the powers of the Treasurer and shall
perform such other duties and have such other powers as the Board may from time
to time prescribe.
(f) 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, subject to Section 10(j), the actions of the
Officers taken in accordance with such powers shall bind the Company.
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(g) Duties of Board and Officers. Except to the extent otherwise
provided herein, each Director and Officer shall have a fiduciary duty of
loyalty and care similar to that of directors and officers of business
corporations organized under the General Corporation Law of the State of
Delaware.
Section 13. Limited Liability.
Except as otherwise expressly provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be the debts, obligations and liabilities solely of the
Company, and neither the Member nor any Director or Officer shall be obligated
personally for any such debt, obligation or liability of the Company solely by
reason of being a Member or Director or Officer of the Company.
Section 14. Capital Contributions and Capital Accounts.
(a) The Member has contributed to the Company property of an agreed
value as listed on Schedule B attached hereto. The Member, in its discretion,
may transfer additional cash or property to the Company from time to time, as
contributions to the capital of the Company. Except as provided in this Section
14, the Member shall not be required to make any additional contributions to the
capital of the Company.
(b) Except as specifically provided in this Agreement, the Member shall
not be entitled to the return of its capital contribution to the Company.
(c) The Company shall not pay interest on capital contributions or
undistributed profits.
Section 15. Additional Contributions.
The Member is not required to make any additional capital contribution
to the Company. However, the Member may make additional capital contributions to
the Company at any time upon the written consent of such Member. To 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 15, 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 the Member
shall not 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.
Section 16. Allocation of Profits and Losses.
(a) All Profits and Losses (including all items of income and expense
entering into the determination of such Profits and Losses), shall be allocated
entirely to the Member. For so long as the Member is the sole member of the
Company, the Company shall be characterized as a sole proprietorship conducted
by the Member for federal income tax purposes and, to the extent consistent with
applicable law, for all applicable state and local income tax purposes.
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(b) Unless otherwise required by the Code, any tax credits of the
Company shall be allocated entirely to the Member.
Section 17. 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 the 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 any Transaction Document.
Section 18. 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. The 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, if any, shall be an
independent public accounting firm selected by the Member.
Section 19. Other Business.
The Member and any Affiliate of the Member may engage in or possess an
interest in other business ventures (unconnected with the Company) of every kind
and description, independently or with others. The Company shall not have any
rights in or to such independent ventures or the income or profits therefrom by
virtue of this Agreement.
Section 20. Exculpation and Indemnification.
(a) Neither the Member nor any Officer, Director, employee or agent of
the Company and no employee, representative, agent or Affiliate of the Member
(collectively, the "Covered Persons") shall be liable to the Company or any
other Person who has an interest in or claim against the Company for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Covered Person in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on such
Covered Person by this Agreement, except that a Covered Person shall be liable
for any such loss, damage or claim incurred by reason of such Covered Person's
gross negligence or willful misconduct.
(b) To the fullest extent permitted by applicable law, a Covered Person
shall be entitled to indemnification from the Company for any loss, damage or
claim incurred by such Covered Person by reason of any act or omission performed
or omitted by such Covered Person in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the authority conferred
on such Covered Person by this Agreement, except that no Covered Person shall be
entitled to be indemnified in respect of any loss, damage or claim
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incurred by such Covered Person by reason of such Covered Person's gross
negligence or willful misconduct with respect to such acts or omissions;
provided, however, that any indemnity under this Section 20 by the Company shall
be provided out of and to the extent of Company assets only, and the Member
shall not have personal liability on account thereof; and provided further, that
no indemnity payment from funds of the Company (as distinct from funds from
other sources, such as insurance) in respect of any indemnity under this Section
20 shall be payable from amounts allocable to any other Person pursuant to an
applicable Transaction Document.
(c) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Company
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Company of an undertaking by or on behalf of the Covered
Person to repay such amount if it shall be determined that the Covered Person is
not entitled to be indemnified as authorized in this Section 20.
(d) A Covered Person shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Company, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
(e) To the extent that, at law or in equity, a Covered Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any other Covered Person, a Covered Person acting under this
Agreement shall not be liable to the Company or to any other Covered Person for
its good faith reliance on the provisions of this Agreement or any approval or
authorization granted by the Company or any other Covered Person. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of a Covered Person otherwise existing at law or in equity, are agreed by the
Member to replace such other duties and liabilities of such Covered Person.
(f) The foregoing provisions of this Section 20 shall survive any
termination of this Agreement.
Section 21. Assignments.
Subject to Section 23, 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 21, 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.
Notwithstanding anything in this Agreement to the contrary, any successor to the
Member by merger or consolidation in compliance with applicable Transaction
Documents shall, without further act, be the Member
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hereunder, and such merger or consolidation shall not constitute an assignment
for purposes of this Agreement.
Section 22. Resignation.
So long as any Obligation is outstanding, the Member may not resign,
except as permitted under all applicable Transaction Documents and if the Rating
Agency Condition and/or the Holder Condition, as applicable, is satisfied. If
the Member is permitted to resign pursuant to this Section 22, an additional
member of the Company shall be admitted to the Company, subject to Section 23,
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.
Section 23. 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; provided, however, that,
notwithstanding the foregoing, so long as any SPE Condition exists, no
additional Member may be admitted to the Company unless the Rating Agency
Condition and/or the Holder Condition, as applicable, is satisfied.
Section 24. Dissolution.
(a) Subject to Section 10(j), the Company shall be dissolved, and its
affairs shall be wound up upon the first to occur of the following: (i) the
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 Sections 18-101(1) and 18-304 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.
(d) The Company shall terminate when (i) all of the assets of the
Company, after payment of or due provision for all debts, liabilities and
obligations of the Company, shall have been distributed to the Member in the
manner provided for in this Agreement and (ii) the Certificate of Formation
shall have been canceled in the manner required by the Act.
Section 25. Waiver of Partition; Nature of Interest.
Except as otherwise expressly provided in this Agreement, to the
fullest extent permitted by law, the Member hereby irrevocably waives any right
or power that the Member might have
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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. The Member shall not have any interest in any
specific assets of the Company, and the Member shall not have the status of a
creditor with respect to any distribution pursuant to Section 17 hereof. The
interest of the Member in the Company is personal property.
Section 26. 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 the 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.
Section 27. 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.
Section 28. Entire Agreement.
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
Section 29. Binding Agreement.
Notwithstanding any other provision of this Agreement, the Member
agrees that this Agreement, including, without limitation, Sections 8, 9, 10,
11, 20, 21, 22, 23, 24, 26 and 31, constitutes a legal, valid and binding
agreement of the Member, and is enforceable against the Member by the
Independent Directors, in accordance with its terms.
Section 30. 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.
Section 31. Amendments.
Subject to Section 10(j), this Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by the Member. Notwithstanding anything to the contrary in this
Agreement, so long as an SPE Condition exists, this Agreement may not be
modified, altered, supplemented or amended unless the Rating
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Agency Condition and/or the Holder Condition, as applicable, is satisfied
except: (i) to cure any ambiguity or (ii) to convert or supplement any provision
in a manner consistent with the intent of this Agreement and the other existing
Transaction Documents.
Section 32. 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.
Section 33. 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 case of the Company, to the Company at its address in
Section 4, (b) in the case of the Member, to the 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.
Section 34. Effectiveness.
Pursuant to Section 18-201(d) of the Act, this Agreement shall be
effective as of the time of the filing of the Certificate of Formation with the
Office of the Delaware Secretary of State on February 5, 1999.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Limited Liability Company Agreement as of the 5th
day of February, 1999.
MEMBER:
NEWCOURT FINANCIAL USA INC.
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
& Treasurer
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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 Section 2 of 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 Limited Liability Company Agreement of the
Company, together with the schedules attached hereto, as amended, restated or
supplemented or otherwise modified from time to time.
"Assets" has the meaning set forth in Section 8(a)(i) of this
Agreement.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on February
5, 1999, as amended or amended and restated from time to time.
"Company" means NCT Funding Company, L.L.C., a Delaware limited
liability company.
"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 20(a).
"Directors" means the directors elected to the Board of Directors from
time to time by the Member, including any Independent Director.
"Holder Condition" means, with respect to any action, that the
requisite holders of (or authorized representative of holders of) Interests
and/or Securities (or outstanding commitments to purchase or otherwise acquire
an interest therein), as described in clause (ii) of the definition
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of SPE Condition below (and with the level or amount of such requisite holders
or the authorization of such representative to be determined in accordance with
the relevant Transaction Document[s] establishing, providing for or governing
such purchases, acquisitions or commitments) shall have been given prior notice
thereof and that such requisite holders or authorized representative, as
applicable, shall have notified the Company in writing that such action is
permissible.
"Independent Director" means an individual who for the five-year period
prior to his or her appointment as Independent Director has not been, and during
the continuation of his or her service as Independent Director is not (and is
not affiliated with a company or firm that has been or is): (A) an employee,
director, partner or officer of the Member or any of its Affiliates (other than
his or her service as an Independent Director of the Company or as a similar
"independent director" of other similar special purposes entities which may be
Affiliates of the Member); (B) a significant advisor or consultant to Member or
any of its Affiliates; (C) a significant customer or supplier of Member or any
of its Affiliates; (D) affiliated with a company of which Member or any of its
Affiliates is a significant customer or supplier, (E) a party to a significant
personal services contract(s) with Member or any of its Affiliates; (F)
affiliated with a tax-exempt entity that receives significant contributions from
Member or any of its Affiliates; (G) the beneficial owner at the time of such
individual's appointment as an Independent Director, or at any time thereafter
while serving as an Independent Director, of such number of shares of any
classes of common stock of Member or any of its Affiliates, the value of which
constitutes more than 5% of the outstanding common stock of Member or such
Affiliate; (H) the holder of any beneficial or economic interest in the Company
(other than fees for services as an Independent Director and indemnification
rights contemplated herein); and (I) a spouse, parent, sibling or child of any
Person described in clauses (A) through (H).
As used in this defintion, the following terms, phrases or concepts
shall have the following meanings:
(i) A person is "affiliated with" a specified person, if the
person directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the
specified person.
(ii) A person shall be deemed to be, or to be affiliated with,
a company or firm that is a "significant advisor or consultant to
Member or any of its Affiliates" if he, she, or it, as the case may be,
received or would receive fees or similar compensation from Member or
such Affiliates in excess of the lesser of (A) 3% of the consolidated
gross revenues which Member and its Affiliates received for the sale of
their products and services during the last fiscal year of Member; (B)
5% of the gross revenues of the person during the last calendar year if
such person is a self-employed individual; and (C) 5% of the
consolidated gross revenues received by such company or firm for the
sale of its products and services during its last fiscal year, if the
person is a company or firm; provided, however, that director's fees
and expense reimbursements shall not be included in the gross revenues
of an individual for purposes of this determination.
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(vi) A "significant customer of Member or any of its
Affiliates" shall mean a customer from which Member and any of
itsAffiliates collectively in the last fiscal year of Member received
payments in consideration for the products and services of Member and
its Affiliates which are in excess of 3% of the consolidated gross
revenues of Member and its Affiliates during such fiscal year.
(vii) A "significant supplier of Member or any of Affiliates"
shall mean a supplier to which Member and any of its Affiliates
collectively in the last fiscal year of Member made payments in
consideration for the supplier's products and services in excess of 3%
of the consolidated gross revenues of Member and its Affiliates during
such fiscal year.
(viii) Member or any of itsAffiliates shall be deemed a
"significant customer" of a company if Member and any of its Affiliates
collectively were the direct source during such company's last fiscal
year of in excess of 5% of the gross revenues which such company
received for the sale of its products and services during such fiscal
year.
(ix) Member or any of itsAffiliates shall be deemed a
"significant supplier" of a company if Member and any of its Affiliates
collectively received in such company's last fiscal year payments from
such company in excess of 5% of the gross revenues which such company
received during such fiscal year for the sale of its products and
services.
(x) A person shall be deemed to have "significant personal
services contract(s) with Member or any of its Affiliates" if the fees
and other compensation received by the person pursuant to personal
services contract(s) with Member and any of its Affiliates exceed or
would exceed 5% of his or her gross revenues during the last calendar
year.
(xi) A tax-exempt entity shall be deemed to receive
significant contributions from Member or any of its Affiliates if such
tax-exempt entity received during its last fiscal year contributions
from Member and its Affiliates, in the aggregate, in excess of the
lesser of (A) 3% of the consolidated gross revenues of Member and its
Affiliates during such fiscal year and (B) 5% of the contributions
received by the tax-exempt entity during such fiscal year.
"Interests" has the meaning set forth in Section 8(a)(iii) of this
Agreement.
"Management Agreement" means the agreement of the Directors in the form
attached hereto as Schedule C.
"Material Action" means to consolidate or merge the Company with or
into any Person, or sell all or substantially all of the assets of the Company,
or to institute proceedings to have the Company be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency proceedings
against the Company or file a petition seeking, or consent to,
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reorganization or relief with respect to the Company under any applicable
federal or state law relating to bankruptcy, or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or a substantial part of its property, or make any
assignment for the benefit of creditors of the Company, or admit in writing the
Company's inability to pay its debts generally as they become due, or, to the
fullest extent permitted by law, take action in furtherance of any such action,
or dissolve or liquidate the Company.
"Member" means Newcourt Financial USA Inc., a Delaware corporation, as
the initial member of the Company, 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 an officer of the Company described in Section 12.
"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.
"Profits and Losses" means the net income or loss of the Company for
federal income tax purposes as finally determined by the Company for each fiscal
year of the Company, as well as, where the context requires, related federal tax
items such as tax preferences and credits, in each case, appropriately adjusted
with respect to final determination of any of the foregoing for federal income
tax purposes.
"Rating Agency" means any nationally recognized rating agency which has
issued and is maintaining a rating with respect to an outstanding Security.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given ten days prior notice thereof and that each
Rating Agency shall have notified the Company in writing that such action will
not result in a reduction or withdrawal of the then current rating by such
Rating Agency if any.
"Securities" has the meaning set forth in Section 8(a)(iv) of this
Agreement.
"SPE Condition" means, as of any time of determination, that any of the
following have occurred and are continuing:
(i) the Company has issued and has outstanding, or any Trust
established or funded by the Company has issued and has outstanding,
any series or class of Securities which is then rated by a Rating
Agency, or
(ii) the Company has otherwise assigned and conveyed
outstanding Interests, or otherwise has issued and has outstanding
(including through a Trust as described in clause (i) above) any series
or class of Securities, in either case
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with respect to which the holder or holders thereof (or any party which
has an outstanding commitment to purchase or otherwise acquire such an
Interest or Security) have required (by agreement to such effect and/or
as a condition to the purchase, commitment to purchase or holding of
such Interests or Securities, including by virtue of such an agreement
or condition requiring that this Agreement be executed and/or in effect
in this form) that the provisions relating to Independent Directors or
the provisions in Section 10(j) set forth herein shall be in effect as
to the Company.
"Transaction Documents" means this Agreement, each Transfer Agreement,
each agreement entered into by the Company or by a Trust at the direction of the
Company from time to time in connection with the acquisition of Assets or the
creation, funding or financing of Interests and/or Securities, and all other
documents, instruments and certificates delivered in connection therewith.
"Transfer Agreements" has the meaning set forth in Section 8(a)(iii) of
this Agreement.
"Trustee" has the meaning set forth in Section 8(a)(iii) of this
Agreement.
"Trusts" has the meaning set forth in Section 8(a)(iii) of this
Agreement.
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.
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SCHEDULE B
Member
Name Mailing Address Agreed Value of Membership
---- --------------- Capital Contribution Interest
-------------------- ----------
Newcourt Financial USA Inc. ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ $[__________] 100%
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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SCHEDULE C
MANAGEMENT AGREEMENT
February 25, 1999
NCT Funding Company, L.L.C.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Re: Management Agreement -- NCT Funding Company, L.L.C.
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned persons,
who have been designated as managers of NCT Funding Company, L.L.C., a Delaware
limited liability company (the "Company"), in accordance with the Limited
Liability Company Agreement of the Company, dated as of February 5, 1999, as it
may be amended or restated from time to time (the "LLC Agreement"), hereby agree
as follows:
1. Each of the undersigned accepts such person's rights and authority
as a Director (as defined in the LLC Agreement) under the LLC Agreement and
agrees to perform and discharge such person's duties and obligations as a
Director under the LLC Agreement, and further agrees that such rights,
authorities, duties and obligations under the LLC Agreement shall continue until
such person's successor as a Director is designated or until such person's
resignation or removal as a Director in accordance with the LLC Agreement. Each
of the undersigned agrees and acknowledges that it has been designated as a
"manager" of the Company within the meaning of the Delaware Limited Liability
Company Act.
2. Until the date which is both (i) one year and one day after the date
on which no Security or Interest (as defined in the LLC Agreement) remains
outstanding, and (ii) a date on which no commitment to purchase or increase
funding in respect of the same under any Transaction Document remains
outstanding, each of the undersigned agrees, solely in its capacity as a
creditor of the Company on account of any indemnification or other payment owing
to the undersigned by the Company, (A) not to acquiesce, petition or otherwise
invoke or cause the Company to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Company
under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Company or any substantial part of the property of the
Company, or ordering the winding up or liquidation of the affairs of the
Company, and (B) not to join with or cooperate or encourage any other Person to
do any of the foregoing.
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3. THIS MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES
SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
This Management Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Management
Agreement and all of which together shall constitute one and the same
instrument.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
By:_______________________________
Name:
By:_______________________________
Name:
By:_______________________________
Name:
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