Exhibit 3.3
LIMITED LIABILITY COMPANY AGREEMENT
OF
GREATAMERICA LEASING RECEIVABLES 2002-1, L.L.C.
(FORMERLY KNOWN AS GREATAMERICA LEASING RECEIVABLES 2001-1, L.L.C).
This Limited Liability Company Agreement (together with the schedules
attached hereto, this "Agreement") of GreatAmerica Leasing Receivables 2001-1,
L.L.C. (the "Company"), is entered into by GreatAmerica Leasing Corporation, as
the sole equity member (the "Member"), and Xxxxxxx X. Xxxxxxx, as the Special
Member (as defined on Schedule A hereto). Capitalized terms used and not
otherwise defined herein have the meanings set forth on Schedule A hereto.
The Member, by execution of this Agreement, hereby forms the Company as a
limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (6 Del. C. Section 18-101 et seq.), as amended
from time to time (the "Act"), and this Agreement, and the Member and Xxxxxxx X.
Xxxxxxx hereby agree as follows:
SECTION 1. NAME.
The name of the limited liability company formed hereby is GreatAmerica
Leasing Receivables 2001-1, L.L.C.
SECTION 2. PRINCIPAL BUSINESS OFFICE.
The principal business office of the Company shall be located at 000 Xxxxx
Xxxxxx, XX, Xxxxx 000, Xxxxx Xxxxxx, XX 00000 or such other location as may
hereafter be determined by the Member.
SECTION 3. REGISTERED OFFICE.
The address of the registered office of the Company in the State of
Delaware is c/o Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000,
in the City of Wilmington, County of Xxx Xxxxxx, Xxxxxxxx 00000.
SECTION 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 Corporation Service Company,
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, in the City of Wilmington, County of Xxx
Xxxxxx, Xxxxxxxx 00000.
SECTION 5. MEMBERS.
(a) The mailing address of the Member is set forth on Schedule B
attached hereto. The Member was admitted to the Company as a member of the
Company upon its execution of a counterpart signature page to this Agreement.
(b) Subject to Section 9(j), the Member may act by written consent.
(c) Upon the occurrence of any event that causes the Member to cease to
be a member of the Company (other than (i) upon an assignment by the Member of
all of its limited liability company interest in the Company and the admission
of the transferee pursuant to Sections 21 and 23, or (ii) the resignation of the
Member and the admission of an additional member of the Company pursuant to
Sections 22 and 23), each person acting as an Independent Director pursuant to
Section 10 shall, without any action of any Person and simultaneously with the
Member ceasing to be a member of the Company, automatically be admitted to the
Company as a Special Member and shall continue the Company without dissolution.
No Special Member may resign from the Company or transfer its rights as Special
Member unless (i) a successor Special Member has been admitted to the Company as
Special Member by executing a counterpart to this Agreement, and (ii) such
successor has also accepted its appointment as Independent Director pursuant to
Section 10; provided, however, the Special Member shall automatically cease to
be a member of the Company upon the admission to the Company of a substitute
Member. Each Special Member shall be a member of the Company that has no
interest in the profits, losses and capital of the Company and has no right to
receive any distributions of Company assets. Pursuant to Section 18-301 of the
Act, a Special Member shall not be required to make any capital contributions to
the Company and shall not receive a limited liability company interest in the
Company. A Special Member, in its capacity as Special Member, may not bind the
Company. Except as required by any mandatory provision of the Act, each Special
Member, in its capacity as Special Member, shall have no right to vote on,
approve or otherwise consent to any action by, or matter relating to, the
Company, including, without limitation, the merger, consolidation or conversion
of the Company. In order to implement the admission to the Company of each
Special Member, each person acting as an Independent Director pursuant to
Section 10 shall execute a counterpart to this Agreement. Prior to its admission
to the Company as Special Member, each person acting as an Independent Director
pursuant to Section 10 shall not be a member of the Company.
SECTION 6. CERTIFICATES.
Xxxxxx X. Xxxxxx 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 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 Iowa and in 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.
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SECTION 7. PURPOSES.
The purpose to be conducted or promoted by the Company is to engage in the
following activities:
(a)
(i) to acquire Assets and to enter into any agreements necessary
for the securitization of such Assets;
(ii) to issue Notes secured by the Assets; and
(iii) to exercise all other powers necessary to or reasonably
connected with the Company's business as set forth in (i) and (ii) above
which may be legally exercised by limited liability companies under the
Act.
(b) The Company, and the Member, or any Director or Officer on behalf of
the Company, may enter into and perform the Basic Documents and all documents,
agreements, certificates, or financing statements contemplated thereby or
related thereto, all without any further act, vote or approval of any Member,
Director, Officer or 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 Director or Officer to enter into other agreements on behalf of the Company.
SECTION 8. POWERS.
Subject to Section 9(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 7 and (ii) shall have and exercise all of the powers and rights
conferred upon limited liability companies formed pursuant to the Act.
SECTION 9. MANAGEMENT.
(a) Board of Directors. Subject to Section 9(j), the business and affairs
of the Company shall be managed by or under the direction of a Board of one or
more Directors designated by the Member. Subject to Section 10, 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
10. The initial number of Directors shall be five, one of which shall be an
Independent Director pursuant to Section 10. Each Director elected, designated
or appointed by the Member 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.
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Directors need not be a Member. The initial Directors designated by the Member
are listed on Schedule D hereto.
(b) Power. Subject to Section 9(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 7, 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 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, video conference or similar
communications equipment that allows all Persons participating in the meeting to
hear each other or see 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, video 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. (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 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.
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(iii) Any such committee, to the extent provided in the resolution of the
Board, and subject to, in all cases, Sections 9(j) and 10, 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, a 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 10, 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 9(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. Notwithstanding the last sentence of Section 18-402 of the Act, except
as provided in this Agreement or in a resolution of the Directors, a Director
may not bind the Company.
(j) Limitations on the Company's Activities. (i) This Section 9(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 any Obligation is outstanding,
amend, alter, change or repeal the definition of "Independent Director" or
Sections 5(c), 7, 8, 9, 10, 16, 20, 21, 22, 23, 24, 27, 28, 31 or 33 or Schedule
A of this Agreement without the unanimous written consent of the Board
(including the Independent Director). Subject to this Section 9(j), the Member
reserves the right to amend, alter, change or repeal any provisions contained in
this Agreement in accordance with Section 31.
(iii) Notwithstanding any other provision of this Agreement and any
provision of law that otherwise so empowers the Company, the Member, the Board,
any Officer or any other Person, neither the Member nor the Board nor any
Officer nor any other Person shall be authorized or empowered, nor shall they
permit the Company, without the prior unanimous written consent of the Member
and the Board (including the Independent Director), to take any Material Action,
provided, however, that the Board may not vote on, or authorize the taking of,
any Material Action, unless there is at least one Independent Director then
serving in such capacity.
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(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 is satisfied. The Board also shall cause the Company to:
(A) except with respect to indebtedness under the Notes, not
incur, assume or guaranty any indebtedness or cause or permit any amount
to be paid other than its obligations under the Notes unless, after
payment of such amounts, there are sufficient funds available for the
payment of the Company's Notes then due;
(B) not commingle its assets with those of any Person;
(C) maintain complete and accurate records and books of account
separate from any other Person;
(E) maintain financial statements separate from any other Person;
(F) file its own tax returns;
(G) maintain office space through which its business will be
conducted separate and apart from any Affiliate;
(H) conduct its business solely in its own name so as not to
mislead others as to the identity of the entity or assets with which they
are concerned;
(I) provide for its operating expenses and liabilities from its
own funds;
(J) at all times ensure that its capitalization is adequate in
light of its business and purpose;
(K) maintain meetings as required to conduct business and as
required by law and maintain minutes of all meetings and other proceedings
of its Member and Directors;
(L) when appropriate, obtain proper authorization from its
Directors or Member for its actions;
(M) maintain an arm's-length relationship with its Member and
Affiliates;
(N) pay the salaries of its own employees for the services
performed by such employees and maintain a sufficient number of employees;
(O) allocate fairly and reasonably to the extent practicable any
overhead for shared office space;
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(P) use stationary separate from any Affiliate;
(Q) not pledge assets for the benefit of any other Person or make
loans to any Person;
(R) 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;
(S) have a Board of Directors separate from that of the Member and
any other Person;
(T) 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;
(U) not acquire any securities of the Member; and
(V) 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.
Failure of the Company, or the Member or Board on behalf of the Company, to
comply with any of the foregoing covenants or any other covenants contained in
this Agreement shall not affect the status of the Company as a separate legal
entity or the limited liability of the Member or the Directors.
(v) So long as any Obligation is outstanding, the Board shall not cause
or permit the Company to:
(A) except as contemplated by the Basic Documents, guarantee any
obligation of any Person, including any Affiliate;
(B) engage, directly or indirectly, in any business other than the
actions required or permitted to be performed under Section 7, the Basic
Documents or this Section 9(j);
(C) incur, create or assume any indebtedness other than as
expressly permitted under the Basic Documents;
(D) 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 the Basic
Documents and may make any advance required or expressly permitted to be
made pursuant to any provisions; of the Basic Documents and permit the
same to remain outstanding in accordance with such provisions;
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(E) 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 expressly permitted
pursuant to any provision of the Basic Documents; or
(F) form, acquire or hold any subsidiary (whether corporate,
partnership, limited liability company or other).
SECTION 10. INDEPENDENT DIRECTOR.
As long as any Obligation is outstanding, the Member shall cause the
Company at all times to have at least one Independent Director who will be
appointed by the Member. To the fullest extent permitted by law, including
Section 18-1101(c) of the Act, the Independent Director shall consider only the
interests of the Company, including its respective creditors, in acting or
otherwise voting on the matters referred to in Section 9(j)(iii). No resignation
or removal of an Independent Director, and no appointment of a successor
Independent Director, shall be effective until such successor (i) shall have
accepted his or her appointment as an Independent Director by a written
instrument, which may be a counterpart signature page to the Management
Agreement, and (ii) shall have executed a counterpart to this Agreement as
required by Section 5(c). In the event of a vacancy in the position of
Independent Director, the Member shall, as soon as practicable, appoint a
successor Independent Director. All right, power and authority of the
Independent Director 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 10, in exercising their
rights and performing their duties under this Agreement, the 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. The Independent Director shall not at any time serve
as trustee in bankruptcy for any Affiliate of the Company.
SECTION 11. OFFICERS.
(a) Officers. The initial Officers of the Company shall be designated by
the Member. The additional or successor 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 a Chief Executive Officer,
Executive Vice President, Controller, Senior Vice President and Assistant
Secretary. 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 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.
The initial Officers of the Company designated by the Member are listed on
Schedule E hereto.
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(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 7(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 11(c).
(c) Vice President. In the absence of the President or in the event of
the President's inability to act, either of the Executive Vice President or
Senior Vice President, if any (or in the event there be more than one Vice
President, the Vice President 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. Either of
the Executive Vice President or Senior Vice President, if any, 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 Controller. 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 Controller, if any (or if there shall be more than one, the
Controller in the order determined by the Board), 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 power set
forth in this Agreement or otherwise vested in them by action of the Board not
inconsistent with this
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Agreement, are agents of the Company for the purpose of the Company's business
and, subject to Section 9(j), the actions of the Officers taken in accordance
with such powers shall bind the Company.
(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 12. 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 the Special Member nor any Director shall be obligated
personally for any such debt, obligation or liability of the Company solely by
reason of being a Member, Special Member or Director of the Company.
SECTION 13. CAPITAL CONTRIBUTIONS.
The Member has contributed to the Company property of an agreed value as
listed on Schedule B attached hereto. In accordance with Section 5(c), the
Special Member shall not be required to make any capital contributions to the
Company.
SECTION 14. 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 14, are intended to benefit the Member and the
Special 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 and the Special 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 15. ALLOCATION OF PROFITS AND LOSSES.
The Company's profits and losses shall be allocated to the Member.
SECTION 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 the Member on account
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of its interest in the Company if such distribution would violate Section 18-607
of the Act or any other applicable law or any Basic Document.
SECTION 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. 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 18. REPORTS.
(a) Within 60 days after the end of each fiscal quarter, the Board shall
cause to be prepared an unaudited report setting forth as of the end of such
fiscal quarter:
(i) unless such quarter is the last fiscal quarter, a balance
sheet of the Company; and
(ii) unless such quarter is the last fiscal quarter, an income
statement of the Company for such fiscal quarter.
(b) The Board shall use diligent efforts to cause to be prepared and
mailed to the Member, within 90 days after the end of each fiscal year, an
audited or unaudited report setting forth as of the end of such fiscal year:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal year; and
(iii) a statement of the Member's capital account.
(c) The Board shall, after the end of each fiscal year, use reasonable
efforts to cause the Company's independent accountants, if any, to prepare and
transmit to the Member as promptly as possible any such tax information as may
be reasonably necessary to enable the Member to prepare its federal, state and
local income tax returns relating to such fiscal year.
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SECTION 19. OTHER BUSINESS.
The Member, the Special Member and any Affiliate of the Member or the
Special 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 the Special Member nor any Officer, Director,
employee or agent of the Company nor any employee, representative, agent or
Affiliate of the Member or the Special 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 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 and the Special Member
shall not have personal liability on account thereof; and provided further, that
so long as any Obligation is outstanding, no indemnity payment from funds of the
Company (as distinct from funds from other sources, such as insurance) of any
indemnity under this Section 20 shall be payable from amounts allocable to any
other Person pursuant to the Basic Documents.
(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
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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
and the Special 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 the Basic Documents shall,
without further act, be the Member hereunder, and such merger or consolidation
shall not constitute an assignment for purposes of this Agreement and the
Company shall continue without dissolution.
SECTION 22. RESIGNATION.
So long as any Obligation is outstanding, the Member may not resign,
except as permitted under the Basic Documents and if the Rating Agency Condition
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.
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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 Obligation remains outstanding, no
additional Member may be admitted to the Company unless the Rating Agency
Condition is satisfied and a written opinion is received that the addition of
such additional Member will not result in the Company being treated as an
association or publicly traded partnership taxable as a corporation for federal
income tax purposes.
SECTION 24. DISSOLUTION.
(a) Subject to Section 9(j), the Company shall be dissolved, and its
affairs shall be wound up upon the first to occur of the following: (i) the
termination of the legal existence of the last remaining member of the Company
or the occurrence of any other event which terminates the continued membership
of the last remaining member of the Company in the Company unless the business
of the Company is continued in a manner permitted by this Agreement or the Act
or (ii) the entry of a decree of judicial dissolution under Section 18-802 of
the Act. Upon the occurrence of any event that causes the last remaining Member
of the Company to cease to be a member of the Company, to the fullest extent
permitted by law, the personal representative of such Member is hereby
authorized to, and shall, within 90 days after the occurrence of the event that
terminated the continued membership of such Member in the Company, agree in
writing (i) to continue the Company and (ii) to the admission of the personal
representative or its nominee or designee, as the case may be, as a substitute
member of the Company, effective as of the occurrence of the event that
terminated the continued membership of the last remaining Member of the Company
in the Company.
(b) Notwithstanding any other provision of this Agreement, the
Bankruptcy of the Member or a Special Member shall not cause the Member or
Special Member, respectively, 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) Notwithstanding any other provision of this Agreement, each of the
Member and the Special Member waives any right it might have to agree in writing
to dissolve the Company upon the Bankruptcy of the Member or a Special Member,
or the occurrence of an event that causes the Member or a Special Member to
cease to be a member of the Company.
(d) 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.
(e) 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.
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SECTION 25. TRANSFER RESTRICTIONS.
(a) Notwithstanding anything in this Agreement to the contrary, no Unit
shall be issued, sold, transferred, listed or otherwise exchanged at any time on
an established securities market, including (i) a national securities exchange
registered under the 1934 Act or exempted from registration because of the
limited volume of transactions; (ii) a foreign securities exchange that, under
the law of the jurisdiction where it is organized, satisfies regulatory
requirements that are analogous to the regulatory requirements under the 1934
Act applicable to exchanges described in clause (i); (iii) a regional or local
exchange; or (iv) an over-the-counter market, as all such terms are defined for
purposes of Section 7704 of the Code.
(b) Notwithstanding anything in this Agreement to the contrary, no
transfer or issuance of any Unit or any direct or indirect interest therein
shall be made (i) that would result in there being more than one hundred (100)
owners of the Units and any Restricted Notes or (ii) to any Flow-through entity
which owns, directly or indirectly through other Flow-through entities, any
Units or the Restricted Notes if fifteen percent (15%) or more of such
beneficial owner's interest in the Flow-through entity is attributable to the
Flow-through entity's interest (direct or indirect) in the Units and the
Restricted Notes.
SECTION 26. CERTAIN PROHIBITIONS.
The Company shall not participate in the (i) creation of a Market for the
Units or the Restricted Notes, or (ii) inclusion of Units or the Restricted
Notes on a Market. If a Market develops without the participation by the
Company, the Company will not recognize any transfers made on the Market by (i)
redeeming the transferor Member or owner of a Restricted Note (in the case of a
redemption or repurchase by the Company) or (ii) admitting the transferee as a
partner or otherwise recognizing any rights of the transferee, such as a right
of the transferee to receive distributions (directly or indirectly) or to
acquire an interest in the capital or profits of the Company (except as
otherwise expressly provided in the Restricted Notes).
All parties hereto intend, and agree by entering into this Agreement, that
the Company will be treated as either a disregarded entity or a partnership for
all federal income tax purposes. No Member, Special Member, Director, Officer or
other representative of the Company will taken any action or permit any action
to be taken that may result in the Company being treated as an association or
publicly traded partnership taxable as a corporation for federal income tax
purposes.
SECTION 27. WAIVER OF PARTITION; NATURE OF INTEREST.
Except as otherwise expressly provided in this Agreement, to the fullest
extent permitted by law, each of the Member and the Special Member hereby
irrevocably waives any right or power that such Person 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,
-15-
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 16 hereof. The interest of the Member in the Company is personal
property.
SECTION 28. 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 or a
Special 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 (except as provided in Section 31).
SECTION 29. 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 30. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof.
SECTION 31. BINDING AGREEMENT.
Notwithstanding any other provision of this Agreement, the Member agrees
that this Agreement, including, without limitation, Sections 7, 8, 9, 10, 20,
21, 22, 23, 24, 28, 31 and 33, constitutes a legal, valid and binding agreement
of the Member, and is enforceable against the Member by the Independent
Director, in accordance with its terms. In addition, the Independent Director
shall be an intended beneficiary of this Agreement.
SECTION 32. 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 33. AMENDMENTS.
Subject to Section 9(j), this Agreement may be modified, altered,
supplemented or amended pursuant to a written agreement executed and delivered
by the Member. Notwithstanding anything to the contrary in this Agreement, so
long as any Obligation is outstanding, this Agreement may not be modified,
altered, supplemented or amended unless the
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Rating Agency Condition 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 Basic Documents.
SECTION 34. 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 35. 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 2, (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 36. INVESTMENT REPRESENTATIONS.
The Units have not been registered under the Securities Acts because the
Company is issuing the Units in reliance upon the exemptions from the
registration requirements of the Securities Acts, and the Company is relying
upon the fact that the Units are to be held by each Member for investment.
Accordingly, the Member hereby confirms the Units have been acquired for the
Member's own account, for investment and not with a view to a transfer which
would be considered to be a resale or distribution thereof and may not be
offered or sold to anyone unless there is an effective registration or other
qualification relating thereto under all applicable Securities Acts or unless
the Member delivers to the Company an opinion of counsel, satisfactory to the
Company, that such registration or other qualification is not required. The
Member understands that the Company is under no obligation to register the Units
or to assist any Member in complying with any exemption from registration under
the Securities Act.
SECTION 37. 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 September 24, 2001.
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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 24th day of
September, 2001.
MEMBER:
GREATAMERICA LEASING CORPORATION
By:____________________________________
Name:
Title:
SPECIAL MEMBER:
XXXXXXX X. XXXXXXX
_______________________________________
Name:
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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.
"Assets" means equipment leases and receivables (including equipment),
loan agreements and other financing agreements.
"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.
"Bankruptcy" means, with respect to any Person, if such Person (i) makes
an assignment for the benefit of creditors, (ii) files a voluntary petition in
bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it
an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, (v) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding of this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all or any
substantial part of its properties, or (vii) if 120 days after the commencement
of any proceeding against the Person seeking reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, if the proceeding has not been dismissed, or if within 90 days
after the appointment without such Person's consent or acquiescence of a
trustee, receiver or liquidator of such Person or of all or any substantial part
of its properties, the appointment is not vacated or stayed, or within 90 days
after the expiration of any such stay, the appointment is not vacated. The
foregoing definition of "Bankruptcy" is intended to replace and shall supersede
and replace the definition of "Bankruptcy" set forth in Sections 18-101(1) and
18-304 of the Act.
"Basic Documents" means this Agreement, the Management Agreement, the
Indenture, dated as of December 1, 2001, by and between the Company and JPMorgan
Chase Bank, the Transfer and Servicing Agreement, dated as of December 1, 2001,
among the Company, the Member and JPMorgan Chase Bank, the Custodian Agreement,
dated as of December 1, 2001, among the Member, the Company and JPMorgan Chase
Bank and all documents and certificates contemplated thereby or delivered in
connection therewith.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
SCHEDULE A
(to Limited Company Agreement)
"Certificate of Formation" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on September
24, 2001, as amended or amended and restated from time to time.
"Code" means the Internal Revenue Code of 1986, as amended, as
corresponding provisions of subsequent superseding federal revenue laws.
"Company" means GreatAmerica Leasing Receiving 2001-1, L.L.C., a
Delaware limited liability company.
"Control" means the possession, directly or indirectly, of 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 Persons elected to the Board of Directors from time
to time by the Member, including the Independent Director, in their capacity as
managers of the Company. A Director is hereby designated as a "manager" of the
Company within the meaning of Section 18-101(10) of the Act.
"Flow-through entity" means any beneficial owner of an interest in a
partnership or corporation.
"Independent Director" means a natural person 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:
(i) an employee, director, stockholder, partner or officer of the Company or any
of its Affiliates (other than his or her service as an Independent Director of
the Company); (ii) a customer or supplier of the Company or any of its
Affiliates; or (iii) any member of the immediate family of a person described in
(i) or (ii).
"Management Agreement" means the agreement of the Directors in the form
attached hereto as Schedule C. The Management Agreement shall be deemed
incorporated into, and a part of, this Agreement.
"Market" means, an interdealer quotation system or a secondary market or
the substantial equivalent thereof.
"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, reorganization or relief
with respect to the Company under any applicable federal or state law
-2-
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 take action in furtherance of any such
action, or, to the fullest extent permitted by law, dissolve or liquidate the
Company.
"Member" means GreatAmerica Leasing 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, each in its capacity as a member of the Company; provided, however,
the term "Member" shall not include the Special Member.
"1934 Act" means the Exchange Act of 1934.
"Notes" mean, collectively, the GreatAmerica Leasing Receivables 2001-1,
L.L.C. Class X-0, X-0, X-0, X-0, X, X and D Receivable-Backed Notes.
"Obligations" shall mean the indebtedness, liabilities and obligations of
the Company under or in connection with this Agreement, the other Basic
Documents or any related document in effect as of any date of determination.
"Officer" means an officer of the Company described in Section 11.
"Officer's Certificate" means a certificate signed by any Officer of the
Company who is authorized to act for the Company in matters relating to the
Company.
"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.
"Rating Agency" has the meaning assigned to that term in the Basic
Documents.
"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
of the Rating Agencies 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 of any of the Notes.
"Regulations" includes any proposed, temporary and final Treasury
regulations promulgated under the Code and the corresponding sections of any
regulations subsequently issued that amend or supersede such regulations.
"Restricted Notes" means any Notes issued by the Company which are not
rated or have a rating equivalent to "BBB" or less.
-3-
"Securities Acts" means the Securities Act of 1933, the Securities Act of
Delaware and other state securities laws.
"Special Member" means, upon such person's admission to the Company as a
member of the Company pursuant to Section 5(c), a person acting as Independent
Director, in such person's capacity as a member of the Company. A Special Member
shall only have the rights and duties expressly set forth in this Agreement.
"Units" means the limited liability company interests issued to any Member
under this Agreement as reflected in attached Schedule B, as amended from time
to time.
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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MEMBER
AGREED VALUE
OF CAPITAL MEMBERSHIP
NAME MAILING ADDRESS UNITS CONTRIBUTION INTEREST
GreatAmerica 000 Xxxxx Xxxxxx XX 100 $1,000.00 100%
Leasing Xxxxx Xxxxxx, Xxxx
Xxxxxxxxxxx 00000
SCHEDULE B
(to Limited Liability Company Agreement)
MANAGEMENT AGREEMENT
_____________, 2001
[__________________
__________________
__________________]
Re: Management Agreement - -
GreatAmerica Leasing Receivables 2001-1, L.L.C.
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons, who
have been designated as directors of GreatAmerica Leasing Receivables 2001-1,
L.L.C., a Delaware limited liability company (the "Company"), in accordance with
the Limited Liability Company Agreement of the Company, dated as of September
24, 2001, 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 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. So long as any Obligation is 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, 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.
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.
Initially capitalized terms used and not otherwise defined herein have the
meanings set forth in the LLC Agreement.
SCHEDULE C
(to Limited Liability Company Agreement)
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.
IN WITNESS WHEREOF, the undersigned have executed this Management
Agreement as of the day and year first above written.
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DIRECTORS
1. Xxxx Xxxxxxx
2. Xxxxxxx X. Xxxxxxxxx
3. Xxxxxxx X. Xxxxx
4. Xxxxxxx Xxxxxx
5. Xxxxxxx X. Xxxxxxx
SCHEDULE D
(to Limited Liability Company Agreement)
OFFICERS TITLE
Xxxx Xxxxxxx President and Chief Executive Officer
Xxxxxxx X. Xxxxx Executive Vice President
Xxxxxxx X. Xxxxxxxxx Chief Financial Officer, Senior Vice President and Secretary
Xxxxx Xxxxxxx Treasurer
Xxxxxxx Xxxxxx Controller
SCHEDULE E
(to Limited Liability Company Agreement)
