EXHIBIT 10.4
XXXXXX AUTOMOTIVE GROUP L.L.C.
FORM OF FOURTH AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT (this "Agreement") dated as
of [ ], 2002, of XXXXXX AUTOMOTIVE GROUP L.L.C., a
Delaware limited liability company (the "Company"),
adopted by Xxxxxx Automotive Group, Inc., a Delaware
corporation ("AAG"), and XXXXXX AUTOMOTIVE GROUP
HOLDINGS, INC., a Delaware corporation ("Sub"), as the
members.
PRELIMINARY STATEMENT
WHEREAS Xxxxxx Villanova IV L.L.C., a Delaware limited
liability company, caused the Company to be formed under the Delaware Limited
Liability Company Act (6 DEL. C. ss. 18-101, ET SEQ., as amended from time to
time (the "Delaware Act")) by filing with the Secretary of State of the State of
Delaware on May 15, 1998, the certificate of formation of the Company and by
entering into the original limited liability company agreement, dated as of May
15, 1998, of the Company, which agreement was amended and restated in its
entirety pursuant to the First Amended and Restated Limited Liability Company
Agreement dated as of December 4, 1998, the Second Amended and Restated Limited
Liability Company Agreement dated as of March 18, 1999 and the Third Amended and
Restated Limited Liability Company Agreement dated as of February 1, 2000 (the
"Previous Agreement");
WHEREAS, pursuant to Article VIII of the Previous Agreement,
Xxxxxx Automotive Holdings L.L.C., a Delaware limited liability company ("AAH")
has the right to cause an IPO (as defined in the Previous Agreement), and in
connection with the IPO, AAH and the Previous Members (as defined below) have
entered into the Transfer and Exchange Agreement dated as of March 1, 2002 (the
"Transfer and Exchange Agreement"), among AAG, AAH and the Previous Members;
WHEREAS in connection with the Transfer and Exchange (as
defined in the Transfer and Exchange Agreement) effected by the Transfer and
Exchange Agreement, all of the members of the Company under the Previous
Agreement (such members, the "Previous Members") transferred their membership
interests in the Company to AAG and Sub, as
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described in the Transfer and Exchange Agreement, in exchange for shares of
common stock, par value $0.01 per share, of AAG. As a result of the Transfer and
Exchange, there are no members of the Company (the "Members") other than AAG and
Sub, accordingly, AAG and Sub are the Members of the Company;
WHEREAS, pursuant to Section 8.05 of the Previous Agreement,
AAH holds a power of attorney and irrevocable proxy from each of the Previous
Members to enter into this Agreement on their behalf; and
WHEREAS as the Previous Members, AAG and Sub desire to amend
and restate the Previous Agreement.
Accordingly, AAG and Sub hereby adopt the following as the
"Limited Liability Company Agreement" of the Company within the meaning of the
Delaware Act:
ARTICLE I
GENERAL PROVISIONS
SECTION 1.01. NAME. The name of the Company is "Xxxxxx
Automotive Group L.L.C.".
SECTION 1.02. PURPOSE. The purpose of the Company is to engage
in any lawful act or activity for which a limited liability company may be
organized under the Delaware Act.
SECTION 1.03. REGISTERED OFFICE. The registered office of the
Company in the State of Delaware is The Corporation Trust Company, Corporation
Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
SECTION 1.04. REGISTERED AGENT. The name and address of the
registered agent of the Company for service of process on the Company in the
State of Delaware is The Corporation Trust Company, Corporation Trust Center,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
SECTION 1.05. MEMBERS. The name and the address of the
Members are as follows:
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Xxxxxx Automotive Group, Inc.
0 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxx Automotive Group Holdings, Inc.
c/o Asbury Automotive Group, Inc.
0 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 1.06. PREVIOUS WITHDRAWAL. Each Previous Member of the
Company under the Previous Agreement hereby withdraws as a Member upon and as of
the occurrence of the Transfer and Exchange pursuant (and as defined in) to the
Transfer and Exchange Agreement.
ARTICLE II
MANAGEMENT
SECTION 2.01. MANAGEMENT. (a) Subject to Section 2.01(b), the
business and affairs of the Company shall be managed solely by AAG, who shall
have the exclusive power and authority, on behalf of the Company, to take any
action of any kind not inconsistent with the express provisions of this
Agreement and to do anything and everything it deems necessary or appropriate to
carry on the business and purposes of the Company. AAG is, to the extent of its
rights and powers set forth in this Agreement, an agent of the Company for the
purpose of the Company's business, and its actions taken in accordance with such
rights and powers shall bind the Company. AAG shall exercise its authority as
such in its capacity as a Member.
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The Company shall not have any "managers" within the meaning of the Delaware
Act.
(b) AAG may adopt, amend and revoke regulations of the Company
(the "Regulations") setting forth such matters concerning the management of the
Company and not inconsistent with the express provisions of this Agreement as
may be determined from time to time by AAG. Such Regulations (including any
amendment or revocation thereof) shall be in writing and shall be executed by
AAG. AAG may assign to any person such powers, duties and titles as AAG may from
time to time determine and set forth in the Regulations.
SECTION 2.02. DISSOLUTION. The Company shall be dissolved
and its affairs shall be wound up only upon the decision of AAG to dissolve the
Company.
SECTION 2.03. LIQUIDATION. Upon a dissolution pursuant to
Section 2.02, the Company business and Company assets shall be liquidated in an
orderly manner. AAG shall be the liquidator to wind up the affairs of the
Company pursuant to this Agreement. In performing its duties, the liquidator is
authorized to sell, distribute, exchange or otherwise dispose of Company assets
in accordance with the Delaware Act in any reasonable manner that the liquidator
shall determine to be in the best interest of the Members.
ARTICLE III
CAPITAL CONTRIBUTIONS
SECTION 3.01. PERCENTAGE INTERESTS. The percentage interests
of the Members of the Company are as follows:
PERCENTAGE
MEMBER INTEREST
Xxxxxx Automotive
Group, Inc. 90%
Xxxxxx Automotive
Group Holdings, Inc. 10%
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SECTION 3.02. CAPITAL CONTRIBUTIONS. The Members shall have
no obligation to make any capital contribution to the Company after the date
hereof, but may do so from time to time.
SECTION 3.03. TAX MATTERS. The Company shall be treated as a
partnership for U.S. federal income tax purposes. The Company shall maintain a
capital account for each Member in accordance with Treasury Regulation Section
1.704-1(b). The Company's taxable income and tax losses shall be allocated PRO
RATA based on Percentage Interests. AAG shall act as the "tax matters partner"
within the meaning of Section 6231(a)(7) of the Internal Revenue Code of 1986,
as amended.
ARTICLE IV
TRANSFER OF INTERESTS
SECTION 4.01. DISTRIBUTIONS. (a) Distributions shall be made
at the times and in the aggregate amounts determined by AAG.
(b) Notwithstanding anything in this Agreement to the
contrary, the provisions of the Previous Agreement necessary to administer the
Company's outstanding accounting and tax matters (including Section 6.01(c) of
the Previous Agreement)_with respect to periods prior to the effectiveness of
the IPO (as defined in the Previous Agreement) shall survive the amendment and
restatement of the Previous Agreement and shall remain in effect following
effectiveness of the IPO solely for such purpose.
SECTION 4.02. RESTRICTIONS ON TRANSFER. Any Member shall have
the right to sell, assign, dispose of, or otherwise transfer, pledge or
encumber, all or any part of its membership interest or economic interest in the
Company.
SECTION 4.03. ADMISSION OF ADDITIONAL OR SUBSTITUTE MEMBERS.
No substitute or additional Members
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shall be admitted to the Company without the written approval of AAG, acting in
its sole discretion.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. LIABILITY OF MEMBERS. Except as may be otherwise
provided by the Delaware Act or herein, the debts, obligations and liabilities
of the Company, whether arising in contract, tort or otherwise, shall be solely
the debts, obligations and liabilities of the Company, and no Member shall be
obligated personally for any such debt, obligation or liability of the Company
solely by reason of being a Member. No Member shall be liable to make up any
deficit in its capital account. This Section 5.01 shall survive any termination
of this Agreement and the dissolution of the Company.
SECTION 5.02. SCOPE OF PERMITTED INDEMNIFICATION. (a) GENERAL
RULE. The Company will indemnify, to the fullest extent permitted by law, an
indemnified representative on an after-tax basis against any liability incurred
in condition with any proceeding in which the indemnified representative may be
involved as a party or otherwise by reason of the fact that such person is or
was serving in an indemnified capacity, including liabilities resulting from any
actual or alleged breach or neglect of duty, error, misstatement or misleading
statement or act giving rise to strict or products liability; PROVIDED that no
indemnity shall be payable hereunder against any liability incurred by such
indemnified representative by reason of (i) fraud, wilful violation of law,
gross negligence or its material breach of this Agreement or its bad faith or
(ii) the receipt by such indemnified representative from the Company of a
personal benefit to which such indemnified representative is or was not legally
entitled. Such an indemnity may be provided to an indemnified representative
pursuant to the Regulations of the Company or pursuant to a written agreement of
the Company.
(b) DEFINITIONS. For purposes of this Section 5.02: (i)
"indemnified capacity" means any and all past, present and future service by an
indemnified
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representative in one or more capacities as a Member, director, officer,
employee or agent of the Company, or, at the request of the Company, as a
member, partner, stockholder, director, officer, employee, agent, fiduciary or
trustee of another limited liability company, corporation, partnership, joint
venture, trust, employee benefit plan or other entity or enterprise, (ii)
"indemnified representative" means any and all Members, directors and officers
of the Company and any other person designated as an indemnified representative
by AAG as the sole Member (which may, but need not, include any person serving,
at the request of the Company, as a member, stockholder, partner, director,
officer, employee, agent, fiduciary or trustee of another limited liability
company, corporation, partnership, joint venture, trust, employee benefit plan
or other entity or enterprise), (iii) "liability" means any damage, judgment,
amount paid in settlement, fine, penalty, punitive damages, excise tax or cost
or expense of any nature (including attorneys' fees and disbursements) and (iv)
"proceeding" means any threatened, pending or completed action, suit, appeal or
other proceeding of any nature, whether civil, criminal, administrative or
investigative, whether formal or informal, and whether brought by or in the
right of the Company, its Members or otherwise.
SECTION 5.03. BENEFITS OF AGREEMENT. None of the provisions of
this Agreement shall be for the benefit of or enforceable by any creditor of the
Company or by any creditor of any Member; PROVIDED, HOWEVER, that Sections 5.01
and 5.02 shall benefit the persons referred to therein.
SECTION 5.04. GOVERNING LAW. This Agreement shall be governed
by and construed under the internal laws of the State of Delaware, all rights
and remedies being governed by such laws without regard to principles of
conflict of law. This Agreement shall be construed in accordance with Section
18-1101 of the Delaware Act.
SECTION 5.05. HEADINGS. The titles of Sections of this
Agreement are for convenience only and shall not be interpreted to limit or
amplify the provisions
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of this Agreement.
SECTION 5.06. SEVERABILITY. Each provision of this Agreement
shall be considered separable, and if for any reason any provision or provisions
hereof are determined to be invalid and contrary to any existing or future law,
such invalidity shall not impair the operation of or affect those portions of
this Agreement which are valid.
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IN WITNESS WHEREOF, the undersigned, intending to be legally
bound hereby, has duly executed this Agreement as of the date first above
written.
Members:
XXXXXX AUTOMOTIVE GROUP, INC.
by __________________________
Name:
Title:
XXXXXX AUTOMOTIVE GROUP
HOLDINGS, INC.
by __________________________
Name:
Title:
Previous Members:
XXXXXX AUTOMOTIVE HOLDINGS L.L.C.,
by __________________________
Name:
Title:
XXXXXX MANAGEMENT SERVICES, INC.
by __________________________
Name:
Title:
XXXXXX CHEVROLET, INC.
by __________________________
Name:
Title:
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SPECTRUM SOUND & ACCESSORIES, INC.
by __________________________
Name:
Title:
XXXXXX XXXXXXXX AUTOMOBILES, INC.
by __________________________
Name:
Title:
XXXXXX LUXURY IMPORTS, INC.
by __________________________
Name:
Title:
XXXXXX ATLANTA IMPORTS, INC.
by __________________________
Name:
Title:
SPECTRUM LEASING, INC.
by __________________________
Name:
Title:
XXXXXX X. XXXXXXX III
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by __________________________
Name:
Title:
XXXX X. XXXXXXX
by __________________________
Name:
Title:
THE XXXXXXXX X. XXXXXXX IRREVOCABLE
TRUST
by __________________________
Name:
Title:
THE XXXXXXXX FAMILY LIMITED
PARTNERSHIP
by __________________________
Name:
Title:
RIVER RIDGE INVESTMENTS, LLC
by __________________________
Name:
Title:
THE XXXXX X. XXXXXXXXX IRREVOCABLE
TRUST
by __________________________
Name:
Title:
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THE XXXXXXX X. XXXXXXXXX
IRREVOCABLE TRUST
by __________________________
Name:
Title:
XXX XXXXX
by __________________________
Name:
Title:
XXXX XXXXXX
by __________________________
Name:
Title:
XXXXXXX X. XXXXXXXX
by __________________________
Name:
Title:
XXXXXX XXXXXX
by __________________________
Name:
Title:
XXXXXX X. XXXXXXX 1999 ATT TRUST
by __________________________
Name:
Title:
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XXXXXXX X. XXXXXX 1999 ATT TRUST
by __________________________
Name:
Title:
XXXXX X. XXXXXX 1999 ATT TRUST
by __________________________
Name:
Title:
XXXXXXX X. XXXXXXXXX
by __________________________
Name:
Title:
XXXXX XXXXXXX
by __________________________
Name:
Title:
XXXXXXXX X. XXXXXX AND XXXXXXXXX X.
XXXXXX, TENANTS BY THE ENTIRETIES
by __________________________
Name:
Title:
XXXXX X. XXXXXXXX
by __________________________
Name:
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Title:
XXXXXXX X. XXXXXXXX
by __________________________
Name:
Title:
XXXXX X. XXXXX
by __________________________
Name:
Title:
XXXXXX X. XXXXX, XX.
by __________________________
Name:
Title:
XXXX X. XXXXX
by __________________________
Name:
Title:
XXXX X. XXXX
by __________________________
Name:
Title:
CHARLIE (C.B.) TOMM AND XXXXX
XXXXXXXXXX TOMM, TENANTS BY THE
ENTIRETIES
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by __________________________
Name:
Title:
XXXXXXX X. XXXXXXXX
by __________________________
Name:
Title:
CNC AUTOMOTIVE, LLC
by __________________________
Name:
Title:
DEALER GROUP LLC
by __________________________
Name:
Title:
XXXX X. XXXXX
by __________________________
Name:
Title:
J.I.W. ENTERPRISES, INC.
by __________________________
Name:
Title:
DMCD AUTOS IRVING, INC.
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by __________________________
Name:
Title:
DMCD AUTOS HOUSTON, INC.
by __________________________
Name:
Title:
XXXXX XXXXX
by __________________________
Name:
Title:
XXXX XXXXXX
by __________________________
Name:
Title:
CHILDS & ASSOCIATES INC.
by __________________________
Name:
Title:
XXXXX XXXXXXXXXX CARS, INC.
by __________________________
Name:
Title:
XXXX XXXX
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by __________________________
Name:
Title:
XXXXXX X. XXXX
by __________________________
Name:
Title:
XXXX XXXXXXX
by __________________________
Name:
Title:
XXXXXX XXXXXXX
by __________________________
Name:
Title:
XXXXXX XXXXXXXX
by __________________________
Name:
Title:
XXXXX XXXXX
by __________________________
Name:
Title:
XXXXXX FAMILY PARTNERSHIP, L.P.
by __________________________
Name:
Title:
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XXXXXX XXXXXX
by __________________________
Name:
Title:
XXXXXX X. XXXXXXXX
by __________________________
Name:
Title:
AND EACH OTHER MEMBER OF THE
COMPANY
by XXXXXX AUTOMOTIVE HOLDINGS
L.L.C., as attorney-in-fact for
the other Members pursuant to
the Powers of Attorney granted
pursuant to Section 8.05 of the
AAG LLC Agreement.
by __________________________
Name:
Title:
