GREEN TREE LEASE FINANCE 1997-1, LLC
LIMITED LIABILITY COMPANY AGREEMENT
OCTOBER 22, 1997
TABLE OF CONTENTS
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Article I.
General................................................. 1
Section 1.1. Name..................................... 1
Section 1.2. Principal Place of Business.............. 1
Section 1.3. Name and Address of the Member........... 2
Section 1.4. Term of Existence........................ 2
Section 1.5. Agent for Service of Process............. 2
Section 1.9. Duties of Managers....................... 3
Article II.
Definitions............................................. 3
Article III.
Purpose and Character of the Business................... 5
Article IV.
The Member.............................................. 5
Article V.
New Members............................................. 5
Article VI.
Management and Operation of Company Business............ 5
Section 6.1. Board of Managers........................ 5
Section 6.2. Number, Qualification; Term of Office; Vote 5
Section 6.3. Initial Board............................ 6
Section 6.4. Place of Meetings........................ 6
Section 6.5. Special Meetings......................... 6
Section 6.6. Adjournments............................. 6
Section 6.7. Notice of Meetings....................... 6
Section 6.8. Quorum................................... 6
Section 6.9. Absent Members........................... 6
Section 6.10. Conference Communications................ 7
Section 6.11. Proxies.................................. 7
Section 6.12. Removal.................................. 7
Section 6.13. Acts of Managers......................... 7
Section 6.15. Committees............................... 8
Section 6.16. No Fiduciary Duty........................ 8
Section 6.17. Compensation............................. 8
Section 6.19. Unanimous Vote........................... 8
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Article VII.
Indemnification......................................... 9
Section 7.1. Indemnification.......................... 9
Section 7.2. Indemnification Procedures; Survival..... 10
Article VIII.
Certificates............................................ 11
Article IX.
Books of Account; Reports and Fiscal Matters............ 11
Article X.
Amendment............................................... 12
Article XI.
Liability; Tax Status................................... 12
Section 11.1. Liability of the Member.................. 12
Section 11.2. Tax Status............................... 12
Article XII.
Dissolution and Liquidation............................. 13
Section 12.1. Events of Dissolution.................... 13
Section 12.3. Liquidation and Winding Up............... 13
Article XIII.
Capital................................................. 14
Section 13.1. Capital Contributions.................... 14
Section 13.3. Creditor's Interest in the Company....... 14
Article XIV.
Allocation of Income, Gains and Losses;
Distributions........................................... 14
Article XV.
Miscellaneous Provisions................................ 14
Section 15.1. Pronouns................................. 14
Section 15.2. Headings................................. 14
Section 15.3. Governing Law............................ 15
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LIMITED LIABILITY COMPANY AGREEMENT
OF
GREEN TREE LEASE FINANCE 1997-1, LLC
This Limited Liability Company Agreement, dated as of October 22, 1997,
made and entered into by Green Tree Lease Finance II, Inc. ("Lease Finance" or
the "Member").
WITNESSETH THAT:
WHEREAS, the Delaware Limited Liability Company Act, as amended (the
"Act"), permits the formation of a limited liability company with a single
member; and
WHEREAS, the undersigned has caused the formation of Green Tree Lease
Finance 1997-1, LLC, a Delaware limited liability company (the "Company"), of
which the undersigned constitutes the sole member.
NOW, THEREFORE, the undersigned hereby adopts the following Articles
which shall constitute the "limited liability company agreement" of the Company
within the meaning of Section 18-101(7) of the Act.
Article I.
General
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The Member hereby adopts, approves and ratifies the execution and
filing in the office of the Secretary of State of the State of Delaware of the
certificate of formation (the "Certificate of Formation") of the Company by
Xxxxxxx X. Xxxxxx and acknowledges, approves and ratifies his designation as an
"authorized person" of the Company in the Certificate of Formation as
contemplated by Section 18-201(a) of the Act. This Agreement shall be effective
as of the date of filing of the Certificate of Formation in the office of the
Secretary of State of Delaware, and the Act shall govern the rights, duties and
obligations of the Member, except as otherwise expressly stated herein.
Section 1.1. Name. The name of the Company shall be and the business
shall be conducted under the name of "Green Tree Lease Finance 1997-1, LLC."
The Member shall have the power at any time to change the name of the Company.
Section 1.2. Principal Place of Business. The principal business
office of the Company shall be at 1100 Landmark Towers, 000 Xx. Xxxxx Xxxxxx,
Xx. Xxxx, Xxxxxxxxx 00000-0000 or such other place as the Board of Managers may
from time to time determine (the "Principal Office").
Section 1.3. Name and Address of the Member. The name and address of
the Member is Green Tree Lease Finance II, Inc., 1100 Landmark Towers, 000 Xx.
Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000-0000.
Section 1.4. Term of Existence. The Company shall be formed as of
the time of the filing of the Certificate of Formation in the Office of the
Secretary of State of Delaware and its existence shall continue until the
fiftieth anniversary of the filing of the Certificate of Formation of the
Company, unless earlier terminated, dissolved or liquidated in accordance with
the provisions of this Agreement.
Section 1.5. Agent for Service of Process. The name and address of
the agent for service of process is, until changed by the Board of Managers, The
Corporate Trust Company, located at Corporation Trust Center, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
Section 1.6. Purpose of Company. The purpose to be conducted or
promoted by the Company is to engage in the following activities:
(a) to acquire a pool of equipment lease contracts ("Leases") and
certain rights to the proceeds of disposition of the equipment
("Equipment") subject to such Leases ("Residual Realizations") from
Lease Finance and to hold, sell, transfer or pledge such Leases and
Residual Realizations, and other related rights and assets
(collectively, "Assets");
(b) to issue and sell Lease-Backed Notes, Series 1997-1 (the
"Notes") in one or more classes, and to pledge the Assets to secure
repayment of the Notes;
(c) to enter into and perform its obligations under a Contribution
and Servicing Agreement among the Company, Lease Finance and Green
Tree Vendor Services Corporation, and an Indenture between the Company
and [First Trust National Association], as Trustee;
(d) to enter into and perform its obligations under any intercompany
services agreement or management agreement with the Member or any
affiliates thereof; and
(e) to engage in any transactions, to enter into any agreement 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.
Section 1.7. Percentage Interest. The Member shall hold a 100%
interest in the Company.
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Section 1.8. Duties of the Member. The only duties of the Member to
the Company shall be those established in this Agreement, and there shall be no
other express or implied duties of the Member to the Company.
Section 1.9. Duties of Managers. Each Manager shall owe duties of
care and loyalty to the Company and the Member. A Manager shall not be
personally liable to the Company or the Member for monetary damages for breach
of fiduciary duty as a Manager except (a) for any breach of the Manager's duty
of loyalty to the Company or the Member; (b) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law; or
(c) for any transaction from which such Manager derived an improper personal
benefit.
Article II.
Definitions
-----------
Unless the context otherwise specifies or requires, the terms defined
in this Article II shall, for the purposes of this Agreement, have the meanings
herein specified. Certain other capitalized terms used herein are defined
elsewhere in the Agreement.
"Act" is defined in the introduction to Article I.
"Agreement" means this Limited Liability Company Agreement, as it may
be amended or supplemented from time to time.
"Board of Managers" means the Board of Managers of the Company
established pursuant to Article VI.
"Capital Contribution" means the amount of money or the fair market
value of any property contributed to the Company by the Member pursuant to
Section 13.1.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder. All references in this Agreement
to a section of the Code or the Treasury Regulations shall be considered to
include any subsequent amendment or replacement of that section.
"Company" means Green Tree Lease Finance 1997-1, LLC, the Delaware
limited liability company formed pursuant to the filing of the Certificate of
Formation in Delaware and the terms of this Agreement.
"Assets" means all assets and property, whether tangible or intangible
and whether real, personal or mixed, at any time owned by the Company.
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"Contributed Assets" shall mean the assets contributed, transferred,
conveyed and assigned by the Member as a capital contribution to the Company
pursuant to the Contribution Agreement.
"Contribution Agreement" shall mean the Contribution and Servicing
Agreement dated as of December 1, 1997 between the Company, Lease Finance and
Green Tree Vendor Services Corporation, as the same may be amended from time to
time in accordance with its terms.
"Manager" or "Managers" means the Person or Persons appointed to the
Board of Managers pursuant to Section 6.2.
"Member" means Green Tree Lease Finance II, Inc.
"Person" means any natural person, corporation, limited liability
company, association, partnership (whether general or limited), joint venture,
proprietorship, governmental agency, trust, estate, association, custodian,
nominee or any other individual or entity, whether acting in an individual,
fiduciary, representative or other capacity.
"Principal Office" is defined in Section 1.2.
"Reorganization" means (x) any consolidation or merger of the Company
with or into any other Person, whether or not the Company is the surviving
entity or (y) any sale, transfer or other disposition of all or substantially
all of the Company's assets in a single transaction or a series of related
transactions. A dissolution or liquidation of the Company pursuant to Article
XII will not constitute a "Reorganization" within the meaning of this Agreement.
"Treasury Regulations" or "Treas. Reg." refers to the regulations
promulgated by the United States Treasury Department under the Code.
"Units" means the ten units representing the ownership interest of the
Member in the Company.
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Article III.
Purpose and Character of the Business
-------------------------------------
The purpose and character of the business of the Company shall be to
undertake and carry on any lawful business, purpose or activity described in
Section 1.6 that is permitted under the Act and approved by the Board of
Managers.
Article IV.
The Member
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Green Tree Lease Finance II, Inc. shall be the sole Member of the
Company and shall have all of the rights, powers and privileges of a member
under the Act.
Article V.
New Members
-----------
No Person other than Lease Finance may be admitted to the Company as
an additional member.
Article VI.
Management and Operation of Company Business
--------------------------------------------
Section 6.1. Board of Managers. The business and affairs of the
Company shall be managed by or under the authority of the Board of Managers,
except as otherwise required by the Act or this Agreement.
Section 6.2. Number, Qualification; Term of Office; Vote. The
number of members of the Board of Managers shall be up to four (4). Each
Manager shall be appointed from time to time by the Member. A Manager shall
hold office until such Manager's successor shall have been elected, or until the
earlier death, resignation, removal or disqualification of such Manager. The
Member may increase the number of Managers at any time or from time to time. At
any time at which there is more than one Manager, each Manager shall have one
vote in all matters to come before the Board of Managers. The provisions of
Sections 6.4 through 6.11 apply (i) when more than one Manager is serving and
(ii) with respect to any committee established by the Board of Managers.
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Section 6.3. Initial Board. The initial Board of Managers shall be
comprised of the following individual(s):
Xxxx X. Xxxxxxxxx (Chair)
Xxxxxx X. Xxxx
Xxxxxx X. Xxxxx
Section 6.4. Place of Meetings. Meetings of the Board of Managers
shall be held at the principal executive office of the Company or at such other
place as may be agreed by the Managers from time to time.
Section 6.5. Special Meetings. A special meeting of the Board of
Managers may be called for any purpose or purposes at any time by the Chair or
by the Member.
Section 6.6. Adjournments. Any meeting of the Board of Managers may
be adjourned from time to time to another date, time and place. If any meeting
of the Board of Managers is so adjourned, no notice as to such adjourned meeting
need be given if the date, time and place at which the meeting will be
reconvened are announced at the time of adjournment.
Section 6.7. Notice of Meetings. Unless otherwise required by law,
written notice of each meeting of the Board of Managers, stating the date, time
and place and, in the case of a special meeting, the purpose or purposes, shall
be given at least five (5) days and not more than ninety (90) days prior to the
meeting to every member of the Board of Managers. A member of the Board of
Managers may waive notice of the date, time, place and purpose or purposes of a
meeting of the Board of Managers. A waiver of notice is effective whether given
before, at or after the meeting, and whether given in writing, orally or by
attendance. Attendance by a member of the Board of Managers at a meeting is a
waiver of notice of that meeting, unless the member objects at the beginning of
the meeting to the transaction of business because the meeting is not lawfully
called or convened, or objects before a vote on an item of business because the
item may not lawfully be considered at that meeting and does not participate in
the consideration of the item at that meeting.
Section 6.8. Quorum. Members of the Board of Managers representing
51% of all votes held by the members of the Board of Managers shall constitute a
quorum for the transaction of business at each meeting of the Board of Managers.
Section 6.9. Absent Members. A member of the Board of Managers may
give advance written consent or opposition to a proposal to be acted on at a
meeting of the Board of Managers. If such member is not present at the meeting,
such consent or opposition to a proposal does not constitute presence for
purposes
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of determining the existence of a quorum, but such consent or opposition shall
be counted as a vote in favor of or against the proposal and shall be entered in
the minutes or other record of action at the meeting, if the proposal acted on
at the meeting is substantially the same or has substantially the same effect as
the proposal to which the member has consented or objected.
Section 6.10. Conference Communications. Any or all of the members
of the Board of Managers may participate in any meeting of the Board of
Managers, or of any duly constituted committee thereof, by any means of
communication through which such members may simultaneously hear each other
during such meeting. For the purposes of establishing a quorum and taking any
action at the meeting, members of the Board of Managers participating pursuant
to this Section 6.10 shall be deemed present in person at the meeting, and the
place of the meeting shall be the place of origination of the conference
telephone conversation or other comparable communication technique.
Section 6.11. Proxies. A member of the Board of Managers may cast
or authorize the casting of a vote by filing a written appointment of a proxy
with the Chair at or before the meeting at which the appointment is to be
effective. The member may sign or authorize the written appointment by
telegram, cablegram or other means of electronic transmission setting forth or
submitted with information sufficient to determine that the member authorized
such transmission. Any copy, facsimile, telecommunication or other reproduction
of the original of either the writing or transmission may be used in lieu of the
original, provided that it is a complete and legible reproduction of the entire
original.
Section 6.12. Removal. Any Manager may be removed from office at
any time, with or without cause, by the action of the Member; provided, however,
that any such removal shall be without prejudice to any contract rights of such
member of the Board of Managers pursuant to any employment or other agreement
between such member and the Members or the Company.
Section 6.13. Acts of Managers. Except as otherwise provided
herein, the Board of Managers shall take action by the affirmative vote of (i)
the sole Manager or (ii) those Managers who have the power to vote 51% of all
votes held by the Managers, as the case may be, and any such act shall be deemed
to be the action of the Board of Managers for all purposes of this Agreement and
the Act.
Section 6.14. Written Action. Any action which might be taken by
the sole Manager or at a meeting of the Board of Managers, or any duly
constituted committee thereof, may be taken without a meeting if done in writing
and signed by, as the case may be, the sole Manager or a number of the members
of the Board of Managers, or committee members, whose approval would be
sufficient to approve
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the action at a meeting at which all of the members of the Board of Managers (or
such committee) were present.
Section 6.15. Committees. (a) A resolution approved by the
Board of Managers may establish committees having the authority of the Board of
Managers in the management of the business of the Company to the extent provided
in the resolution. A committee shall consist of one or more Persons, who need
not be members of the Board of Managers. Committees are subject to the
direction and control of, and vacancies in the membership thereof shall be
filled by, the Board of Managers.
(b) A majority of the members of a committee present at a meeting is
a quorum for the transaction of business, unless a larger or smaller proportion
or number is provided in the resolution of the Board of Managers creating the
committee.
(c) No committee of the Board of Managers shall have the power or
authority in reference to any of the actions requiring a unanimous vote of the
Board of Managers or the consent of the Members as described herein, including
the actions described in Section 5.20 and amendment of this Agreement as
described in Article X.
Section 6.16. No Fiduciary Duty. No Person serving on the Board of
Managers shall incur any personal liability in such capacity to the Members or
the creditors of the Company.
Section 6.17. Compensation. Members of the Board of Managers shall
not be compensated by the Company for serving in such capacity. The Company
shall bear the expenses, if any, incurred by each Member's respective
representatives in attending meetings of the Board of Managers.
Section 6.18. Binding Authority. Except as otherwise provided
herein, only the Board of Managers shall have the authority to bind the Company.
Section 6.19. Unanimous Vote.
The following actions of the Company shall require the unanimous vote
of the Board of Managers and the approval or authorization of the Member:
(i) the approval of any Reorganization, any other merger or
consolidation to which the Company is a party;
(ii) the assignment of any Assets for the benefit of the Company's
creditors or the granting of any material lien, charge or encumbrance
upon
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any of the Company's Assets, other than liens to secure
indebtedness incurred pursuant to the transactions set forth in
Section 1.6;
(iii) the incurring of any indebtedness, or the assumption or
guaranty of any indebtedness of any other entity, other than
indebtedness incurred pursuant to transactions set forth in Section
1.6;
(iv) the appointment of the certified public accountants and any
attorneys for the Company; and
(v) a decision to dissolve or liquidate, in whole or in part (except
as set forth in Article XII), file a voluntary petition that commences
a case under Title 11 of the United States Code (or any successor
statutes) with respect to the Company, or consent to the institution
of bankruptcy or insolvency proceedings against the Company or file a
petition seeking, or consent to, relief under any applicable Federal
or state law relating to bankruptcy, or commence or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or a substantial part of
the property of the Company, or make any assignment for the benefit of
creditors, or admit in writing its inability to pay the debts of the
Company generally as they become due, or take action in furtherance of
any such action.
Article VII.
Indemnification
---------------
Section 7.1. Indemnification.
(a) To the fullest extent permitted by law, each Manager
(individually, an "Indemnitee") shall be indemnified, held harmless and defended
by the Company from and against any and all losses, claims, damages,
liabilities, whether joint or several, expenses (including legal fees and
expenses), judgments, fines and other amounts paid in settlement, incurred or
suffered by such Indemnitee, as a party or otherwise, in connection with any
threatened, pending or completed claim, demand, action, suit or proceeding,
whether civil, criminal, administrative or investigative, and whether formal or
informal, arising out of or in connection with the business or the operation of
the Company and by reason of the Indemnitee's status as a Manager regardless of
whether the Indemnitee continues to be a Manager of the Company at the time any
such loss, claim, damage, liability or other expense is paid or incurred if (i)
the Indemnitee acted in good faith and in a manner he or she reasonably believed
to be in the best interests of the Company and, with respect to any criminal
proceeding, had no reasonable cause to believe that his or her conduct was
unlawful, (ii) the Indemnitee's conduct did not constitute intentional
misconduct or a material breach of the terms of this Agreement and (iii) the
Indemnitee's conduct did not involve a transaction from
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which the Manager derived an improper personal benefit. The termination of any
action, suit or proceeding by judgment, order, settlement or upon a plea of nolo
contendere, or its equivalent, shall not, of itself, create a presumption that
the Indemnitee acted in a manner contrary to the standards specified in clauses
(i), (ii) or (iii) of this Section 7.1(a).
(b) To the fullest extent permitted by law, expenses incurred by an
Indemnitee in defending any claim, demand, action, suit or proceeding subject to
this Section 7.1 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 Indemnitee to
repay such amount unless it is determined that such Indemnitee is entitled to be
indemnified therefor pursuant to this Section 7.1.
(c) The indemnification provided by this Section 7.1 shall be in
addition to any other rights to which any Indemnitee may be entitled under any
other agreement, pursuant to any vote of the Managers, as a matter of law or
otherwise, and shall inure to the benefit of the heirs, legal representatives,
successors, assigns and administrators of the Indemnities.
(d) Any indemnification under this Section 7.1 shall be satisfied
solely out of the assets of the Company and no Indemnitee shall have any
recourse against the Member with respect to such indemnification.
(e) An Indemnitee shall not be denied indemnification in whole or in
part under this Section 7.1 merely because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies, if the
transaction was not otherwise prohibited by the terms of this Agreement and the
conduct of the Indemnitee satisfied the conditions set forth in Section 7.1(a).
(f) The Company may, but shall have no obligation to, purchase and
maintain insurance covering any potential liability of the Indemnitees for any
actions or omissions for which indemnification is permitted hereunder, including
such types of insurance (including extended coverage liability and casualty and
workers' compensation) as would be customary for any person engaged in a similar
business, and may name the Indemnitees as additional insured parties thereunder.
Section 7.2. Indemnification Procedures; Survival.
(a) An Indemnitee shall notify the Company in writing within 30 days
after receipt by the Indemnitee of notice of the commencement of any action that
may result in a claim for indemnification pursuant to Section 7.1; provided,
however, that any omission so to notify the Company will not relieve it of any
liability for indemnification hereunder as to the particular item for which
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indemnification may then be sought (except to the extent that the failure to
give notice shall have been materially prejudicial to the Company) nor from any
other liability that it may have to any Indemnitee.
(b) An Indemnitee shall have the right to employ separate counsel in
any action as to which indemnification may be sought under any provision of this
Agreement and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnitee unless (i) the
Company has agreed in writing to pay such fees and expenses, (ii) the Company
has failed to assume the defense thereof and employ counsel within a reasonable
period of time after being given the notice required above or (iii) the
Indemnitee shall have been advised by its counsel that representation of such
Indemnitee and other parties by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential differing
interests between them. It is understood, however, that the Company shall, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys at any time for all such Indemnitees having
actual or potential differing interests with the Company, unless but only to the
extent, the Indemnitees have actual or potential differing interests with each
other.
(c) The Company shall not be liable for any settlement of any such
action effected without its written consent, but if settled with such written
consent, or if there is a final judgment against the Indemnitee in any such
action, the Company agrees to indemnify and hold harmless the Indemnitee to the
extent provided above from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(d) The indemnification obligations set forth in Section 7.1 and this
Section 7.2 shall survive the termination of this Agreement.
Article VIII.
Certificates
------------
The Units of the Company shall not be represented by certificates.
Article IX.
Books of Account; Reports and Fiscal Matters
--------------------------------------------
The Company shall maintain such books of account and such financial
information as may be required by the Member and the Act. The Member or a
designee shall retain a copy of this Agreement and all written actions of the
Member
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and the Board of Managers at the Principal Office or at such other place as the
Member may designate.
Article X.
Amendment
---------
The Certificate of Formation and this Agreement may be amended by the
Member. Any amendment of this Agreement shall be in writing and a copy thereof
shall be kept with a copy of this Agreement at the Principal Office of the
Company.
Article XI.
Liability; Tax Status
---------------------
Section 11.1. Liability of the Member. Except as otherwise provided
in the Act, the Member, as such, shall have no personal liability whatsoever to
the Company or any of the creditors of the Company for the debts, liabilities,
contracts or other obligations of the Company or any of the Company's losses
beyond the Member's Capital Contribution and, solely to the extent and for the
period required by applicable law, the amount of the Member's Capital
Contribution, if any, which is returned to it. Each Unit, on issuance, shall be
fully paid and not subject to assessment for additional Capital Contributions.
The Member shall not be required to lend any funds to the Company. It is the
intent of the Member that (i) no distribution to the Member (other than a
distribution upon the dissolution and liquidation of the Company) shall be
deemed a withdrawal of capital, even if such distribution represents, for
federal income tax purposes or otherwise (in full or in part), a distribution of
depreciation or any other non-cash item accounted for as a loss or deduction
from or offset to the Company's income, and (ii) the Member shall not be
obligated to pay any such amount to or for the account of the Company or any
creditor of the Company. However, if any court of competent jurisdiction holds
that, notwithstanding the provisions of this Agreement, any distribution made by
the Company to the Member constitutes a withdrawal of capital, any obligation
under applicable law to return the same or any portion thereof to or for the
account of the Company or its creditors shall be the obligation of the Member.
Section 11.2. Tax Status. The Member intends that the Company will
be classified solely for federal income tax purposes as an "eligible entity"
that is disregarded as an entity separate from its owner as provided in Treasury
Regulations Section 301.7701-3(a).
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Article XII.
Dissolution and Liquidation
---------------------------
Section 12.1. Events of Dissolution. The Company shall be dissolved
upon the occurrence of any of the following events:
(a) the written consent of the Member; or
(b) the entry of a decree of judicial dissolution under (S) 18-802
of the Act.
Section 12.2. Continuation of Business. Upon the occurrence of any
event described in Section 18-801(4) of the Act, or any successor provision, the
Company shall continue unless dissolved by the Member pursuant to Section
12.1(a).
Section 12.3. Liquidation and Winding Up. If dissolution of the
Company should be caused by reason of (i) any of the events set forth in
paragraphs (a) or (b) of Section 12.1 hereof, the Company shall be liquidated
and the Person designated at such time by the Board of Managers (or other Person
or Persons designated by a decree of court) shall wind up the affairs of the
Company. The Person or Persons winding up the affairs of the Company shall
promptly proceed to the liquidation of the Assets and, in settling the accounts
of the Company, the Assets shall be distributed in the following order of
priority:
(a) To creditors to the extent otherwise permitted by law, in
satisfaction of liabilities of the Company (whether by payment or the making of
reasonable provision for payment thereof), other than liabilities for which
reasonable provision for payment has been made and liabilities for distributions
to the Member;
(b) To the repayment of outstanding loans from the Member to the
Company;
(c) The balance, if any, to the Member.
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Article XIII.
Capital
-------
Section 13.1. Capital Contributions. Lease Finance has contributed
all of its right, title and interest in, to and under the Contributed Assets as
a Capital Contribution to the Company.
Section 13.2. No Right to Return of Contribution. The Member shall
have no right to the withdrawal or to the return of its Capital Contribution,
except upon the dissolution and liquidation of the Company pursuant to Article
XII.
Section 13.3. Creditor's Interest in the Company. No creditor who
makes a loan to the Company shall have or acquire at any time as a result of
making the loan any direct or indirect interest in the profits, capital or
property of the Company, other than such interest as may be accorded to a
secured creditor. Notwithstanding the foregoing, this provision shall not
prohibit in any manner whatsoever a secured creditor from participating in the
profits of operation or gross or net sales of the Company or in the gain on sale
or refinancing of the Company, all as may be provided in its loan or security
agreements.
Article XIV.
Allocation of Income, Gains and Losses;
---------------------------------------
Distributions
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The income, profits, gains, losses and tax credits of the Company and
distributions of cash or property of the Company to the Member shall be treated
for federal income tax purposes as if the Company were a division of the Member
in accordance with Treasury Regulation Section 301.7701-2(a).
Article XV.
Miscellaneous Provisions
------------------------
Section 15.1. Pronouns. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine, neuter, singular or plural,
as the identity of the person or entity may require.
Section 15.2. Headings. Article and Section headings contained in
this Agreement are inserted for convenience of reference only, shall not be
deemed to be a part of this Agreement for any purpose, and shall not in any way
define or affect the meaning, construction or scope of any of the provisions
hereof.
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Section 15.3. Governing Law. This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto,
shall be governed by and construed in accordance with the laws of the State of
Delaware (but not including the choice of law rules thereof).
Section 15.4. Survival. It is the express intention and agreement of
the Members that all covenants, agreements, statements, representations,
warranties and indemnities made in this Agreement shall survive the execution
and delivery of this Agreement.
Section 15.5. Severability. The invalidity of any one or more
provisions hereof or of any other agreement or instrument given pursuant to or
in connection with this Agreement shall not affect the remaining portions of
this Agreement or any such other agreement or instrument or any part thereof;
and in the event that one or more of the provisions contained herein or therein
should be invalid, or should operate to render this Agreement or any such other
agreement or instrument invalid, this Agreement and such other agreements and
instruments shall be construed as if such invalid provisions had not been
inserted.
Section 15.6. Entire Agreement. This Agreement contains the entire
agreement with respect to the matters contained herein, and supersedes all prior
oral or written agreements, commitments or understandings with respect to the
matters provided for herein.
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IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first above written.
GREEN TREE LEASE FINANCE II, INC.
/s/Xxxx X. Xxxxxxxxx
-----------------------------------------
By: Xxxx X. Xxxxxxxxx
Its: Senior Vice President
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