LIMITED LIABILITY COMPANY AGREEMENT OF HAYES LEMMERZ FINANCE LLC A Delaware Limited Liability Company Dated as of May 23, 2007
Exhibit 3.61
OF
XXXXX LEMMERZ FINANCE LLC
A Delaware Limited Liability Company
Dated as of May 23, 2007
THIS LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) of XXXXX LEMMERZ FINANCE LLC (the
“Company”) is made and entered into as of this 23rd day of May, 2007, by HLI Operating
Company, Inc., as the sole member of the Company (the “Member”).
RECITALS
WHEREAS, the Company was formed under the name Xxxxx Lemmerz Finance – Delaware, LLC pursuant
to a Certificate of Formation filed May 21, 2007 with the Secretary of the State of Delaware (the
“Certificate of Formation”) in accordance with the provisions of the Delaware Limited Liability
Company Act, as amended from time to time (the “Act”); and
WHEREAS, the Company filed a Certificate of Amendment to the Certificate of Formation dated
May 22, 2007, pursuant to which the Company changed its name to Xxxxx Lemmerz Finance LLC; and
NOW, THEREFORE, the Member desires to enter into a written agreement, in accordance with the
provisions of the Act, governing the affairs of the Company and the conduct of its business; and
further
RESOLVED, that the actions of Xxxxxxx X. Xxxxxx in connection with the formation of the
Company, as evidenced by the written instrument attached hereto be, and they hereby are, approved,
ratified and confirmed in all respects.
ARTICLE 1
The Limited Liability Company
The Limited Liability Company
1.1
Formation. The Member has previously formed the Company as a limited liability company pursuant to the provisions of the Act. A certificate of formation
for the Company as described in Section 18-201 of the Act (the “Certificate of Formation”) has been
filed in the Office of the Secretary of State of the State of Delaware in conformity with the Act.
1.2 Name. The name of the Company shall be “Xxxxx Lemmerz Finance LLC” and its
business shall be carried on in such name with such variations and changes as the Member shall
determine or deem necessary to comply with requirements of the jurisdictions in which the Company’s
operations are conducted.
1.3 Business Purpose; Powers. The Company is formed for the
purpose of engaging in any lawful business, purpose or activity for which limited liability
companies may be formed under the Act. The Company shall possess and may exercise all the powers
and privileges granted by the Act or by any other law or by this Agreement,
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together with any powers incidental thereto, so far as such powers and privileges are necessary or
convenient to the conduct, promotion or attainment of the business purposes or activities of the
Company.
1.4 Registered Office and Agent. The Company shall maintain a
registered office in the State of Delaware, and the location of the registered office of the
Company shall be 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle. The
Company’s Registered Agent at such address shall be Corporation Service Company.
1.5
Term. Subject to the provisions of Article 6 below, the Company shall have perpetual existence.
ARTICLE 2
The Member
The Member
2.1 The Member. The name and address of the Member is as follows:
| Name | Address | |
HLI Operating Company, Inc.
|
00000 Xxxxxxxxxx Xxxxx | |
| Xxxxxxxxxx, XX 00000 |
2.2 Actions by the Member; Meetings. The Member may approve a matter or take any
action at a meeting or without a meeting by the written consent of the Member. Meetings of the
Member may be called at any time by the Member.
2.3 Liability of the Member. All 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 the Member shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member.
2.4 Power to Bind the Company. The Member (acting in its capacity as such) shall have
the authority to bind the Company to any third party with respect to any matter.
ARTICLE 3
Management by the Member
Management by the Member
3.1 The management of the Company is fully reserved to the Member, and the Company shall not
have “managers,” as that term is used in the Act. The powers of the Company shall be exercised by
or under the authority of, and the business and affairs of the Company shall be managed under the
direction of, the Member, who shall make all decisions and take all actions for the Company. In
managing the business and affairs of the Company and exercising its powers, the Member shall act
through
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resolutions adopted in written consents. Decisions or actions taken by the Member in accordance
with this Agreement shall constitute decisions or action by the Company and shall be binding on the
Company.
3.2 Officers and Related Persons. The Member shall have the authority to appoint and
terminate officers of the Company and retain and terminate employees, agents and consultants of the
Company and to delegate such duties to any such officers, employees, agents and consultants as the
Member deems appropriate, including the power, acting individually or jointly, to represent and
bind the Company in all matters, in accordance with the scope of their respective duties.
ARTICLE 4
Capital Structure and Contributions
Capital Structure and Contributions
4.1 Capital Structure. The capital structure of the Company shall consist of one
class of equity interests designated as “Common Shares”, which shall constitute limited liability
company interests under the Act and shall include initially One-Thousand (1,000) Common Shares.
All Common Shares shall be identical with each other in every respect. The Member shall own all of
the Common Shares issued and outstanding.
4.2 Certificates; Legend.
(a) The ownership of a Common Share shall be evidenced by a certificate (a
“Certificate”) issued by the Company. The Company shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names and addresses of all
holders of Common Shares.
(b) The Company hereby irrevocably elects that all Common Shares in the Company shall be
securities governed by Article 8 of the Uniform Commercial Code. Certificates attesting to the
ownership of Common Shares in the Company shall be in substantially the forms set forth in
Exhibit A hereto and shall state that the Company is a limited liability company formed
under the laws of the State of Delaware, the name of the Member to whom such Certificate is issued
and that the Certificate represents a limited liability company interest within the meaning of
Section 18-702(c) of the Act. Each Certificate shall bear the following legend:
“THIS CERTIFICATE EVIDENCES SHARES OF XXXXX LEMMERZ FINANCE LLC (THE
“COMPANY”) AND SHALL BE A SECURITY FOR PURPOSES OF ARTICLE 8 OF THE
UNIFORM COMMERCIAL CODE. THE SHARES REPRESENTED BY THIS CERTIFICATE, AND
ANY SALE, PLEDGE, HYPOTHECATION OR TRANSFER THEREOF ARE SUBJECT TO THE
PROVISIONS OF THE LIMITED LIABILITY COMPANY AGREEMENT BY AND AMONG THE
MEMBERS OF XXXXX LEMMERZ FINANCE LLC, AS IT MAY BE AMENDED FROM TIME TO
TIME. ANY PERSON
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ACCEPTING THE SHARES REPRESENTED BY THIS CERTIFICATE SHALL AGREE TO THE
PROVISIONS OF SUCH AGREEMENT AND AGREE TO BE BOUND BY SUCH PROVISIONS. A
COPY OF SUCH AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER OF THIS
CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS
PRINCIPAL PLACE OF BUSINESS. NO TRANSFER OF THE SHARES REPRESENTED BY
THIS CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
THE RULES AND REGULATIONS IN EFFECT THEREUNDER (THE “ACT”) AND ALL
APPLICABLE STATE SECURITIES LAWS OR (B) PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT.”
(c) Each Certificate shall be signed by the Chief Executive Officer, President, or a Vice
President of the Company and the Secretary or an Assistant Secretary of the Company by either
manual or facsimile signature.
(d) Except to the extent that the Company shall have received written notice of an assignment
of Common Shares and such assignment complies with the requirements of this Agreement, the Company
shall be entitled to treat the individual or entity in whose name any Certificates issued by the
Company stand on the books of the Company as the absolute owner thereof, and shall not be bound to
recognize any equitable or other claim to, or interest in, such Common Shares on the part of any
other individual or entity.
(e) If any mutilated Certificate is surrendered to the Company or the Company received
evidence to its satisfaction of the destruction, loss or theft of any Certificate, the Company
shall issue a replacement Certificate if the requirements of Section 8-405 of the Uniform
Commercial Code are met. If required by the Company, an indemnity and/or the deposit of a bond in
such form and in such sum, and with surety or sureties as the Company may direct, must be supplied
by the holder of such lost, destroyed, or stolen Certificate that is sufficient in the judgment of
the Company to protect the Company from any loss that it may suffer if a Certificate is replaced.
The Company may charge for its expenses incurred in connection with replacing a Certificate.
(f) This Section 4.2 shall not be amended, and any purported amendment to this Section 4.2,
shall not take effect until all outstanding Certificates have been surrendered for cancellation.
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4.3 Capital Contributions. From time to time, the Member may determine that the
Company requires capital and may make capital contribution(s) in an amount determined by the
Member. A capital account shall be maintained for the Member, to which contributions and profits
shall be credited and against which distributions and losses shall be charged.
ARTICLE 5
Profits, Losses and Distributions
Profits, Losses and Distributions
5.1 Profits and Losses. For financial accounting and tax purposes, the Company’s net
profits or net losses shall be determined on an annual basis in accordance with the manner
determined by the Member. In each year, profits and losses shall be allocated entirely to the
Member.
5.2 Distributions. The Member shall determine profits available for distribution and
the amount, if any, to be distributed to the Member, and shall authorize and distribute on the
Common Shares, the determined amount when, as and if declared by the Member. The distributions of
the Company shall be allocated entirely to the Member.
ARTICLE 6
Events of Dissolution
Events of Dissolution
The Company shall be dissolved and its affairs wound up upon the occurrence of any of the
following events (each, an “Event of Dissolution”):
(a) The Member votes for dissolution; or
(b) A judicial dissolution of the Company under Section 18-802 of the Act.
ARTICLE 7
Transfer of Shares in the Company
Transfer of Shares in the Company
The Member may sell, assign, transfer, convey, gift, exchange or otherwise dispose of any or
all of its Common Shares and, upon receipt by the Company of a written agreement executed by the
person or entity to whom such Common Shares are to be transferred agreeing to be bound by the terms
of this Agreement, such person shall be admitted as a member.
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ARTICLE 8
Exculpation and Indemnification
Exculpation and Indemnification
8.1 Exculpation. Notwithstanding any other provisions of this Agreement, whether
express or implied, or any obligation or duty at law or in equity, none of the Member, or any
officers, directors, stockholders, partners, employees, affiliates, representatives or agents of
any of the Member, nor any officer, employee, representative or agent of the Company (individually,
a “Covered Person” and, collectively, the “Covered Persons”) shall be liable to the Company or any
other person for any act or omission (in relation to the Company, its property or the conduct of
its business or affairs, this Agreement, any related document or any transaction or investment
contemplated hereby or thereby) taken or omitted by a Covered Person in the reasonable belief that
such act or omission is in or is not contrary to the best interests of the Company and is within
the scope of authority granted to such Covered Person by the Agreement, provided such act or
omission does not constitute fraud, willful misconduct, bad faith, or gross negligence.
8.2 Indemnification. To the fullest extent permitted by law, the Company shall
indemnify and hold harmless each Covered Person from and against any and all losses, claims,
demands, liabilities, expenses, judgments, fines, settlements and other amounts arising from any
and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or
investigative (“Claims”), in which the Covered Person may be involved, or threatened to be
involved, as a party or otherwise, by reason of its management of the affairs of the Company or
which relates to or arises out of the Company or its property, business or affairs. A Covered
Person shall not be entitled to indemnification under this Section 8.2 with respect to (i) any
Claim with respect to which such Covered Person has engaged in fraud, willful misconduct, bad faith
or gross negligence or (ii) any Claim initiated by such Covered Person unless such Claim (or part
thereof) (A) was brought to enforce such Covered Person’s rights to indemnification hereunder or
(B) was authorized or consented to by the Member. Expenses incurred by a Covered Person in
defending any Claim shall be paid by the Company in advance of the final disposition of such Claim
upon receipt by the Company of an undertaking by or on behalf of such Covered Person to repay such
amount if it shall be ultimately determined that such Covered Person is not entitled to be
indemnified by the Company as authorized by this Section 8.2.
8.3 Amendments. Any repeal or modification of this Article 8 by the Member shall not
adversely affect any rights of such Covered Person pursuant to this Article 8, including the right
to indemnification and to the advancement of expenses of a Covered Person existing at the time of
such repeal or modification with respect to any acts or omissions occurring prior to such repeal or
modification.
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ARTICLE 9
Miscellaneous
Miscellaneous
9.1 Tax Treatment. Unless otherwise determined by the Member, the Company shall be a
disregarded entity for U.S. federal income tax purposes (as well as for any analogous state or
local tax purposes), and the Member and the Company shall timely make any and all necessary
elections and filings for the Company treated as a disregarded entity for U.S. federal income tax
purposes (as well as for any analogous state or local tax purposes).
9.2 Amendments. Amendments to this Agreement and to the Certificate of Formation
shall be approved in writing by the Member. An amendment shall become effective as of the date
specified in the approval of the Member or if none is specified as of the date of such approval or
as otherwise provided in the Act.
9.3 Severability. If any provision of this Agreement is held to be invalid or
unenforceable for any reason, such provision shall be ineffective to the extent of such invalidity
or unenforceability; provided, however, that the remaining provisions will continue in full force
without being impaired or invalidated in any way unless such invalid or unenforceable provision or
clause shall be so significant as to materially affect the expectations of the Member regarding
this Agreement. Otherwise, any invalid or unenforceable provision shall be replaced by the Member
with a valid provision which most closely approximates the intent and economic effect of the
invalid or unenforceable provision.
9.4 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to the principles of conflicts of laws
thereof.
9.5 Limited Liability Company. The Member intends to form a limited liability company
and does not intend to form a partnership under the laws of the State of Delaware or any other
laws.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the day first
above written.
| HLI OPERATING COMPANY, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
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