LIMITED LIABILITY COMPANY
AGREEMENT
GE EQUIPMENT MIDTICKET LLC, SERIES
2009-1
(A DELAWARE LIMITED LIABILITY
COMPANY)
Dated as of September 11,
2009
GE EQUIPMENT MIDTICKET LLC, SERIES
2009-1
LIMITED
LIABILITY COMPANY AGREEMENT dated as of September 11, 2009,
adopted by CEF Equipment Holding, L.L.C., as a member (the “
Initial Member ”).
The
Initial Member desires to form a limited liability company under
the Delaware Limited Liability Company Act (currently
Chapter 18 of Title 6 of the Delaware Code), as amended from
time to time (the “ Act ”).
Accordingly,
the Initial Member hereby adopts the following as the “
Limited Liability Company Agreement ” of the Company
within the meaning of Section 18-101(7) of the Act.
SECTION
1.1 Definitions . Capitalized terms used in this Agreement
and not otherwise defined herein shall have the meanings assigned
to such terms in the “ Definitions Addendum ”
attached to this Agreement and incorporated herein and shall
otherwise have the meanings assigned to such terms in the
Act.
SECTION
2.1 Formation . The Company was formed as a limited
liability company pursuant to the provisions of the Act on
August 6, 2009 by the filing of the Certificate of Formation
with the office of the Secretary of State of Delaware. The Initial
Member hereby adopts, confirms and ratifies said Certificate of
Formation and all acts taken in connection therewith. Thomas A.
Davidson 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 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”
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 shall execute, deliver and file any other
certificates (and any amendments and/or restatements thereof)
necessary for the Company to qualify to do business any other
jurisdiction in which the Company may wish to conduct business. The
existence of the Company as a separate legal entity shall continue
until cancellation of the Certificate of Formation as provided in
the Act.
SECTION
3.1 Name . The name of the Company is GE Equipment Midticket
LLC, Series 2009-1.
SECTION
4.1 Purpose and Limitations on Activities . The Company
shall limit its purposes and activities to (i) the issuance
and sale of Membership Interests, on the terms and conditions set
forth herein; (ii) acquiring (through purchase or otherwise)
from CEF Equipment Holding, L.L.C. or any of its subsidiaries or
affiliates (collectively, the “ Seller ”),
holding, servicing, transferring and pledging equipment loan and
lease receivables, mortgage loans and receivables and any related
rights, documents, assets, and interests (“ Assets
”); (iii) entering into any agreement providing for the
acquisition, sale, financing, servicing, hedging or transfer of the
Assets or interests in the Assets; (iv) retaining or
reacquiring an interest in the Assets; (v) lending or
otherwise investing proceeds from Assets and any other income; and
(vi) any purposes and activities necessary, convenient or
incidental to the conduct, promotion or attainment of the business
purposes and activities of the Company as set forth in
clauses (i) through (v) above.
Provided that, in connection with the permitted
activities specified above, the purpose and activities of the
Company shall be further limited as follows:
(vii) the
Company may only hold (a) financial assets (as that term is
defined within Statement of Financial Accounting Standards
No. 140 and related Generally Accepted Accounting Principles,
as amended) transferred to it from the Seller (the “
Transferred Assets ”), (b) cash obtained from
collections of the Financial Assets and temporary cash equivalent
investments of that cash pending distribution, and
(c) nonfinancial assets that may be acquired from time to time
in connection with foreclosure and related servicing activities
associated with the financial assets acquired under clause
(a) above. Temporary cash investments are intended to include
money market accounts and certificates of deposits with maturities
no later than the next scheduled distribution date;
(viii) the
servicing of assets held by the Company shall be conducted in a
manner that is consistent with the servicing agreement to which the
Company shall become a party coincident with the initial transfer
of assets from the Seller (the “ Servicing Agreement
”);
(ix) the
Company may sell or assign assets only as specified in the
Servicing Agreement; and
(x) the
Company may enter into derivative contracts or hedges that have the
following characteristics: (a) are interest rate swap
arrangements, (b) have a fair value at inception of zero, and
(c) commence on a date within 2 days of the effective
date of the receipt by the Company of Transferred
Assets.
SECTION
4.2 Authority . The Company, by or through the Member, or
any Manager on behalf of the Company, may enter into and perform
the Indenture, Transaction Documents and all documents, agreements,
certificates, or financing statements contemplated thereby or
related thereto, together with any amendments or supplements
thereto, all without any further act, vote or approval of any other
Person 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 or any Manager to enter into other agreements on behalf
of the Company.
SECTION
5.1 Registered Office; Other Offices . The address of the
registered office of the Company in the State of Delaware is c/o
Corporation Service Company, 2711 Centerville Road, Wilmington, New
Castle County, Delaware 19808. The Manager may establish other
offices of the Company at such locations within or outside the
State of Delaware as the Initial Member may determine.
SECTION
6.1 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 Corporation Service Company,
2711 Centerville Road, Wilmington, New Castle County, Delaware,
19808.
SECTION
7.1 Admission of Members . (a) By execution of this
Agreement, the Initial Member is hereby admitted as a Member of the
Company and shall have a Membership Interest in the Company
including, without limitation, such rights in and to the profits
and losses of the Company and rights to receive distributions of
the Company’s assets, and such other rights and obligations,
as provided herein.
(b) Without
the consent of any Member or other Person, the Manager may cause
the Company to issue additional Membership Interests and thereby
admit a new Member or new Members, as the case may be, to the
Company, only if such new Member (i) has delivered to the
Initial Member its capital contribution, (ii) has agreed in
writing to be bound by the terms of this Agreement by becoming a
party hereto, and (iii) has delivered such additional
documentation as the Initial Member shall reasonably require to so
admit such new Member to the Company.
SECTION
7.2 Initial Member . The name and the address of the Initial
Member of the Company is as follows:
CEF Equipment
Holding, L.L.C.
10 Riverview Drive
Danbury, Connecticut 06810
SECTION
8.1 Management . Subject to Section 16.1 ,
management of the Company is initially vested in the Initial
Member. The Initial Member shall be a “manager” within
the meaning of the Act (a “ Manager ”) until
such time as the Initial Member appoints one or more Managers to
replace the Initial Member in its capacity as manager of the
Company. Each Manager shall perform duties, on behalf of the
Company as Manager as set forth in this Agreement and in the Act
and may enter into contracts with Persons on behalf of the Company
and engage in activities on behalf of the Company, including
issuing, delivering and executing contracts, agreements and other
documents in connection therewith, in each case in accordance with
Section 4.1 .
SECTION
8.2 Managers to Provide Information to the Initial Member .
It shall be the duty of each Manager, to keep the Initial Member
reasonably informed as to material events relating to the Company,
including, without limitation, all claims pending or threatened
against the Company and the execution by such Manager on behalf of
the Company of any material agreements or instruments.
SECTION
8.3 Accounting and Tax Reports; Tax Matters . The Manager
shall: (a) maintain (or cause to be maintained) the books of
the Company on a calendar year basis on the accrual method of
accounting, (b) deliver to each Member, as may be required by
the Code and applicable Treasury Regulations, such information as
may be required (including Schedule K-1) to enable each Member
to prepare its federal, state and local income tax returns,
(c) file such tax returns relating to the Company, and make
such elections as may from time to time be required or appropriate
under any applicable state or federal statute or rule or regulation
thereunder so as to maintain the Company’s characterization
as an entity disregarded as an entity separate from its owner under
Section 301.7701-3 of the Treasury Regulations for federal
income tax purposes, (d) cause such tax returns to be signed
in the manner required by law and (e) collect or cause to be
collected any withholding tax with respect to income or
distributions to Members.
SECTION
9.1 Initial Capital Contributions . The initial cash capital
contribution to be made by the Initial Member promptly hereafter is
$10,000.
SECTION
10.1 Additional Contributions . The Members shall have no
obligation to make any additional capital contribution to the
Company after the date hereof, but the Initial Member may elect to
do so from time to time.
SECTION
11.1 Distributions . Distributions shall be made to the
Members at the times and in the aggregate amounts determined by the
Manager, subject to the limitations of the Act or other applicable
laws.
SECTION
11.2 Distribution upon Withdrawal . Upon withdrawal, any
withdrawing Member shall not be entitled to receive any
distribution and shall not otherwise be entitled to receive the
fair market value of its Membership Interest.
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