LIMITED LIABILITY COMPANY AGREEMENT OF FORD MOTOR CREDIT COMPANY LLC A Delaware Limited Liability Company Dated as of April 30, 2007 To be effective May 1, 2007
Exhibit
99.4
OF
FORD
MOTOR CREDIT COMPANY LLC
A
Delaware Limited Liability Company
Dated
as
of April 30, 2007
To
be
effective May 1, 2007
OF
FORD
MOTOR CREDIT COMPANY LLC
THIS
LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of FORD MOTOR CREDIT
COMPANY LLC (the "Company") is dated as of April 30, 2007 to be effective
on May
1, 2007 and made by FORD HOLDINGS LLC, a Delaware limited liability company,
as
the sole Shareholder of the Company.
ARTICLE
1
Organization
1.1 Formation.
The
Company was formed by filing a Certificate of Conversion and a Certificate
of
Formation with the Secretary of State of the State of Delaware on or about
April
20, 2007 and effective as of May 1, 2007, pursuant to the Delaware Limited
Liability Company Act (the "Act"). The Company constitutes a continuation
of
Ford Motor Credit Company, a Delaware corporation (the "Converted Corporation"),
which was converted to a Delaware limited liability company in accordance
with
Section 266 of the Delaware General Corporation Law (the "DGCL") and Section
18-214 of the Act (the "Conversion"). As provided in the Act, the existence
of
the Company is deemed to have commenced on August 20, 1959, the date the
Converted Corporation was organized under the laws of the State of Delaware.
As
provided in the Act and the DGCL, the Conversion will not affect any rights,
privileges, powers and interests, or debts, liabilities and duties of the
Converted Corporation prior to the Conversion all of which will be those
of the
Company upon the Conversion.
1.2 Name.
The
name of the Company is "FORD MOTOR CREDIT COMPANY LLC" and its business
will be
carried on in such name with such variations and changes as the Board of
Directors (as defined below) determines or deems necessary to comply with
requirements of the jurisdictions in which the Company conducts its operations.
1.3 Qualifications.
The
Company may be qualified, licensed or registered to do business in its
name or
under assumed or fictitious name statutes or similar laws, in any other
jurisdiction in which the Company transacts or proposes to transact business
and
where such qualification, license or registration is required or desirable.
Any
authorized agent or officer of the Company may execute, deliver and file
any
certificates and other documents and take any and all actions as may be
necessary or desirable to obtain such qualification, license or registration.
1.4 Purpose.
The
Company may engage in any lawful business or activity that may be engaged
in by
a limited liability company formed under the Act and any and all activities
necessary or incidental thereto.
1.5 Principal
Office; Registered Office; Registered Agent.
The
principal office of the Company is located at Xxx Xxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx 00000 or such other place as the Board of Directors may select
from
time to time. The
Company's registered
1
agent
is
The Corporation Trust Company and its registered office in the State of
Delaware
is at its registered agent located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000.
1.6 Offices.
The
Company may have an office in Dearborn, Michigan, and at such other places
as
the Board of Directors may from time to time determine or as the business
of the
Company may require. Unless otherwise provided by law, the books and records
of
the Company may be kept at the office of the Company in Dearborn, Michigan
or at
such other places as may be determined by the Board of Directors from time
to
time.
1.7 Term.
The
term of the Company will be perpetual unless the Company is dissolved and
terminated in accordance with Article 9.
ARTICLE
2
Members;
Shareholders
2.1 Ownership
Interests.
The
limited liability company interests of the Company will consist of one
class of
common interests which will be represented by certificates representing
Shares
of ownership interests in the Company.
2.2 Certain
Definitions.
(a) "Initial
Shareholder" means Ford Holdings LLC, a Delaware limited liability
company.
(b) "Shareholders"
means the Initial Shareholder and all other persons or entities admitted
as
additional or substituted Shareholders pursuant to this Agreement, so long
as
they remain Shareholders. Reference to a "Shareholder" means any one of
the
Shareholders. Each Shareholder is deemed to be a "member" within the meaning
of
Section 18-101(11) of the Act.
(c) "Shares"
means the limited liability company interests of the Company held by a
Shareholder reflecting the ownership interest of such Shareholder in the
Company
(which will be considered personal property for all purposes), consisting
of (i)
such Shareholder’s pro rata
interest
in profits, losses, allocations and distributions of the Company (based,
at any
time of determination, on the number of Shares owned of record by such
Shareholder divided by the number of all then-issued and outstanding Shares),
(ii) such Shareholder’s right to vote or grant or withhold consents with respect
to Company matters as provided in this Agreement or in the Act, and (iii)
such
Shareholder’s other rights and privileges as provided in this Agreement or in
the Act.
2.3 Conversion.
Pursuant to the Conversion Agreement dated April 20, 2007 and effective
as of
May 1, 2007 between the Converted Corporation and Ford Holdings LLC, which
was
the sole shareholder of the Converted Corporation at the effective time
of the
Conversion, all of the issued and outstanding shares of common stock of
the
Converted Corporation held by Ford Holdings LLC, by virtue of the Conversion
and
without any further action, were converted into 250,000 Shares of the
Company with the par value of US $100 each, and Ford Holdings LLC was
admitted as the sole Shareholder of the Company.
2
Immediately
following the effective time of the Conversion, any certificate evidencing
any
shares of common stock of the Converted Corporation is deemed null and
void and
represents only the right to receive certificates evidencing
Shares.
2.4 Capital
Contribution.
The
Initial Shareholder will have no obligation to make any further capital
contributions to the Company. Any person or entity hereafter admitted as
a
Shareholder of the Company will make such contributions of cash (or promissory
obligations), property or services to the Company as may be determined
by the
then Shareholders, acting unanimously, at the time of each such admission.
2.5 Issuance
of Additional Shares.
The
Company may not issue any additional Shares unless the Shareholders, acting
unanimously, consent thereto.
2.6 Actions
by the Shareholders; Meetings.
The
Shareholders may approve a matter or take any action at a meeting or without
a
meeting by the written consent of the Shareholders, in either case, upon
the
approval of such matter by Shareholders holding a majority of the issued
and
outstanding Shares. If action is taken by consent, a written consent setting
forth the action so taken must be signed by the Shareholders holding a
majority
of the issued and outstanding shares and filed with the minutes of proceedings
of Shareholders. Meetings of the Shareholders may be called at any time
by the
Shareholders holding a majority of the issued and outstanding
Shares.
At any
time that there is only one Shareholder, any and all action provided for
in this
Agreement or the Act to be taken or approved by the "Shareholders" or the
"members" will be taken or approved by the sole Shareholder.
2.7 Authority
of Shareholders.
No
Shareholder, by reason of its status as such, will have any authority to
act for
or bind the Company or otherwise take part in the management of the Company
except to the extent provided otherwise in this Agreement. The Shareholders
will
have only the right to vote on, decide or approve the actions specified
in this
Agreement or in the Act (or hereafter specified by the Board of Directors)
to be
voted on, decided or approved by the Shareholders.
ARTICLE
3
Board
of
Directors
3.1 Management
by Board of Directors.
Subject
to matters that are expressly reserved under this Agreement or under the
Act to
the Shareholders for vote, decision or approval and any delegation of rights
and
powers as provided for in this Agreement, the management of the Company
will be
vested in a board of Directors (the "Board of Directors" or "Board") that
will
have the sole right to manage the business and affairs of the Company and
will
have all powers and rights necessary, appropriate or advisable to effectuate
and
carry out the purposes, business and affairs of the Company. Each Director
is
deemed to be a "manager" within the meaning to Section 18-101(10) of the
Act.
3.2 Power
to Bind Company.
None of
the Directors (acting in their capacity as such) will have authority to
bind the
Company to any third party with respect to any matter
3
unless
the Board will have approved such matter and authorized such Director(s)
to bind
the Company with respect thereto.
3.3 Number,
Term of Office.
The
Board of Directors of the Company will consist of not less than five and
not
more than twenty Directors, the exact number to be determined from time
to time
by the Board of Directors. Each Director will be elected by the Shareholders
annually (or at such other frequency as is determined by the Shareholders),
to
serve until his or her successor is elected and is qualified or until his
or her
earlier death, retirement, incapacity, resignation or removal.
3.4 Meetings.
(a) The
Directors may hold their meetings outside the State of Delaware, at the
office
of the Company in Dearborn, Michigan, or at such other place as they may
determine from time to time.
(b) Unless
otherwise determined by the Board of Directors, meetings of the Board for
the
election of officers and the transaction of other business may be held
with or
without notice at such times and places as determined by the Board of Directors
from time to time.
(c) Special
meetings of the Board of Directors for any purpose may be called by the
Shareholders holding a majority of the issued and outstanding Shares, the
Chairman of the Board, the Chief Executive Officer, the President or by
one-third of the Directors then in office.
3.5 Notice
of Meetings.
If
requested by the Board, the
Secretary will give notice of the time and place of holding of meetings
of the
Board of Directors by mailing such notice at least two days before the
meeting,
or by sending another form of communication, including email, containing
such
notice at least one day before the meeting to each Director, or by delivering
such notice personally or by telephone at least one day before the meeting
to
each Director, or by delivering, in the case of a Director who is an officer
or
employee of the Company or of Ford Motor Company, or of any subsidiary
of
either, such notice at least one day before the meeting to the office of
such
Director at such company. Unless otherwise stated in the notice of any
meeting
(if any), any and all business may be transacted at any meeting.
3.6 Quorum.
One-third
of
the Directors then in office from time to time, but in no event less than
three,
constitute a quorum for the transaction of business. If at any meeting
of the
Board of Directors there is less than a quorum present, a majority of those
present may adjourn the meeting from time to time, and the meeting may
be held
as adjourned without further notice or waiver. Except as otherwise provided
by
law, the Certificate of Formation or by this Agreement, the vote of a majority
of the Directors present at any duly constituted meeting constitutes the
act of
the Board.
3.7 Organization
of Meetings.
The
Board of Directors will elect one of its members to be Chairman of the
Board of
Directors. The Chairman of the Board will preside at all meetings of the
Board
and will lead the Board of Directors in fulfilling its responsibilities
and
4
will
perform all other duties and exercise all other powers that are or from
time to
time may be delegated to him or her by the Board of Directors. In the
absence of
the Chairman of the Board, a member of the Board selected by the Directors
present will preside at meetings of the Board. The Secretary will act
as
secretary of the meetings of the Board, but in his or her absence the
presiding
Director may appoint a secretary for the meeting.
3.8 Action
by Consent of Directors.
Unless
otherwise provided by the Act, the Certificate of Formation or this Agreement,
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 a written consent
setting forth the action so taken is signed by a majority of the Directors
then
in office and filed with the minutes of proceedings of the Board or
Committee.
3.9 Telephonic
Meetings.
Members
of the Board or any Committee designated by the Board may participate in
a
meeting of the Board or such Committee by means of telephone or video conference
call or similar communications whereby all persons participating in the
meeting
can hear each other. Participation in a meeting by such means constitutes
presence in person at such meeting.
3.10 Reliance
upon Books, Reports and Records.
Each
Director, each member of any Committee designated by the Board of Directors
and
each officer, in the performance of his or her duties, will be fully protected
in relying in good faith upon the records of the Company and upon information,
opinions, reports or statements presented by another Director, Committee
member,
Shareholder, officer or employee of the Company, or by any other person
as to
matters the Director, Committee member or officer reasonably believes are
within
such other person's professional or expert competence, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits or losses of the Company, or the value and amount
of assets
or reserves or contracts, agreements or other undertakings that would be
sufficient to pay claims and obligations of the Company or to make reasonable
provision to pay such claims and obligations, or any other facts pertinent
to
the existence and amount of assets from which distributions to Shareholders
or
creditors might properly be paid.
3.11 Compensation
of Directors.
The
Board of Directors
may set fees and other compensation to be paid to Directors, the Chairman
of the
Board of Directors, or members of Committees of the Directors or as chairman
of
any Committee. No Director will be precluded from serving the Company in
any
other capacity and receiving compensation therefor. Any Director who is
an
employee of the Company or Ford Motor Company will not receive additional
compensation for serving as a Director.
3.12
Authorizing Resolutions. All resolutions and written consents adopted by
the Board of Directors of the Converted Corporation prior to the effective
time
of the Conversion will remain in full force and effect after the Conversion
as
if such resolutions and written consents were adopted or taken by the
Board of
Directors of the Company.
ARTICLE
4
Committees
of the Board
4.1 Committees
of the Board of Directors.
The
Board of Directors may designate one or more committees of the Board, each
of
which will have such powers and functions as may be delegated to it by
the Board
of Directors. To the extent provided by any action of the Board and to
the
extent permissible under the Act, any such Committee has and may exercise
all
the powers and authority expressly delegated by the Board in the management
5
of
the
business and affairs of the Company. Each Committee will consist of one
or more
members of the Board, the exact number being determined from time to time
by the
Board of Directors; provided, however, that a majority of the members of
the
Audit Committee will be limited to Directors who are not officers or employees
of the Company. Designations of the chairman and members of each such Committee
and, if desired, alternates for members, will be made by the Board of Directors.
The members of such Committees may be elected at such time as the Board
may
determine and vacancies in any Committee may be filled at such time and
in such
manner as the Board may determine.
4.2 Audit
Committee.
The
Board
of Directors will have a Committee designated as the Audit Committee. The
Audit
Committee will select and engage, on behalf of the Company, independent
public
accountants to audit the books of account and other records of the Company
and
perform such other duties as the Committee may from time to time determine.
The
Committee will confer with such accountants and review and approve the
scope of
the audit of the books of account and other records of the Company. The
Committee will have the power to confer with and direct the officers of
the
Company to the extent necessary to review the internal controls, accounting
practices, financial structure and financial reporting of the Company.
From time
to time the Committee will report to and advise the Board of Directors
concerning the results of its consultation and review and such other matters
relating to the internal controls, accounting practices, financial structure
and
financial reporting of the Company as the Committee believes merit review
by the
Board of Directors. The Committee will also perform such other functions
and
exercise such other powers as may be delegated to it from time to time
by the
Board of Directors.
4.3 Other
Committees.
The
Board of Directors, any Committee of the Board of Directors, or any officer
of
the Company, may establish additional standing Committees or special Committees
to serve in an advisory capacity or in such other capacities as may be
permitted
by law and by this Agreement. The members of any such Committee need not
be
members of the Board of Directors. Any such Committee may be abolished
by the
person or body who established it. Each such Committee will consist of
two or
more members, the exact number being determined from time to time by the
person
or body who established the Committee. Designations of members of each
such
Committee and, if desired, alternates for members, will be made by such
person
or body. The chairman of each such Committee will be designated by such
person
or body.
4.4 Rules
and Procedures of Committees.
Each
Committee may fix its own rules and procedures, including rules and procedures
for quorum requirements, vote required for action, holding of meetings,
taking
of minutes, notices and similar matters.
ARTICLE
5
Officers
5.1 Officers.
The
Board
of Directors will elect as officers of the Company a Chairman of the Board,
a
Chief Executive Officer, a Chief Financial Officer, a Treasurer and a Secretary.
The Board of Directors may also elect persons to hold such other offices
as the
Board determines, including a Vice Chairman, a President, one or more Executive
Vice Presidents,
6
Senior
Vice Presidents, or Vice Presidents, a Controller, one or more Assistant
Treasurers, and one or more Assistant Secretaries. Officers will have the
powers, authority and responsibilities of such office as provided in this
Article 5 and such other powers, authority and responsibilities as the
Board of
Directors, the Chairman of the Board, or the Chief Executive Officer may
determine or as are redelegated to them by such officers. A person may
hold any
number of offices. Elected officers will hold their offices at the pleasure of
the Board, or until their earlier resignation.
5.2 Chief
Executive Officer.
The
Chief
Executive Officer, subject to the provisions of this Agreement and to the
direction of the Board of Directors, will have ultimate authority for decisions
relating to the general management and control of the business and affairs
of
the Company, will perform all other duties and enjoy all other powers commonly
incident to the position of Chief Executive Officer or which may be delegated
to
him or her by the Board of Directors, the Chairman of the Board, or which
are
authorized or required by law. He or she may redelegate from time to time
and to
the full extent permitted by law, in writing, to officers or employees
of the
Company any or all of such duties and powers, and any such redelegation
may be
either general or specific. Whenever he or she so delegates any of his
or her
authority, he or she will file a copy of the redelegation with the Secretary.
In
the absence or during the disability of the Chief Executive Officer, the
Board
will designate an officer to exercise the powers, authority and responsibilities
of the Chief Executive Officer.
5.3 President.
The
President will have such powers and will perform such duties as may be
delegated
to him or her by the Board of Directors, the Chairman of the Board and
the Chief
Executive Officer.
5.4 Executive
Vice Presidents, Senior Vice Presidents and Vice Presidents.
Each
of
the Executive Vice Presidents, Senior Vice Presidents, and each of the
other
Vice Presidents will have such powers, and perform such duties, as may
be
delegated to him or her by the Board of Directors, the Chairman of the
Board,
the Chief Executive Officer, or the President.
5.5 Chief
Financial Officer.
The
Chief Financial Officer will provide and maintain, subject to the direction
of
the Board of Directors, financial and accounting controls over the business
and
affairs of the Company. The Chief Financial Officer will be responsible
for
maintaining adequate records of the assets, liabilities, financial transactions
and other related matters of the Company, and will direct the preparation
of
financial statements, reports and analyses. He or she will perform all
acts
incident to the office of the Chief Financial Officer. The Chief Financial
Officer will have such powers and will perform such duties as may be delegated
to him or her by the Board of Directors, the Chairman of the Board and
the Chief
Executive Officer.
5.6 Treasurer
and Assistant Treasurer.
The
Treasurer, subject to the direction of the Board of Directors, will have
the
care and custody of all funds and securities of the Company and related
matters.
When necessary or proper he or she will endorse on behalf of the Company,
for
collection, checks, notes and other obligations, and will deposit all funds
and
securities of the Company in such banks or other depositaries as may be
designated by the Board of Directors, or by Directors, officers, or employees
authorized by the Board to so designate. He
7
or
she
will perform all acts incident to the office of the Treasurer. The Treasurer
may
designate any Assistant Treasurer to act in his or her place if the Treasurer
is
temporarily unavailable. If no Assistant Treasurer is so designated, an
Assistant Treasurer may be designated by the Chairman of the Board, Chief
Executive Officer, or the President to perform the duties of the
Treasurer.
5.7 Secretary
and Assistant Secretary.
The
Secretary will keep the minutes of the meetings of the Shareholders and
of the
Board of Directors, and, when required, the minutes of the meetings of
the
Committees, and will be responsible for the custody of all such minutes.
Subject
to the direction of the Board of Directors, the Secretary will have custody
of
the register of Shares and books, papers, documents and agreements of the
Company. He or she will have custody of the Company seal and will affix
and
attest such seal to any instrument whose execution under seal has been
authorized. He or she will give notice of meetings of the Board or its
Committees and meeting of the Shareholders and will perform all other duties
incident to the office of Secretary. Any action or duty required to be
performed
by the Secretary may be performed by any Assistant Secretary.
5.8 Appointment
of Officers by Chief Executive Officer.
In the
interval between meetings of the Board of Directors or action by the Board
of
Directors for the election of officers, the Chief Executive Officer may
appoint
any officers of the Company (other than the Chief Executive Officer or
Chairman
of the Board) as he or she may deem advisable. Such officers will have
such
powers, authority and responsibilities and terms of office as the Chief
Executive Officer may determine. Any officer appointed by the Chief Executive
Officer holds his or her position at the pleasure of the Board and the
Chief
Executive Officer.
ARTICLE
6
Resignations,
Removals and Vacancies
6.1 Resignations.
Any
Director, officer or agent of the Company or any member of any Committee
may
resign at any time by giving written notice to the Board of Directors,
to the
Chairman of the Board or to the Secretary. Any such resignation will take
effect
at the time specified therein, or if no time is specified therein, upon
receipt
thereof. The acceptance of such resignation will not be necessary to make
it
effective.
6.2 Removals.
The
Shareholders holding a majority of the issued and outstanding Shares may
remove
from office, suspend or terminate the employment of any Director, officer
or
agent with or without cause. The Board of Directors may, at any time, remove
from office, suspend or terminate the employment of any officer, agent
or member
of any committee. Any officer appointed by the Chief Executive Officer
may be
removed by the Chief Executive Officer at any time.
6.3 Vacancies.
Any
vacancy in the office of any Director, officer or agent through death,
retirement, incapacity, resignation, removal, disqualification, increase
in the
number of Directors or other cause may be filled by the Board of Directors
(in
the case of vacancies in the Board, by vote of a majority of the Directors
then
in office, even though less
8
than
a
quorum remains) or by the Shareholders holding a majority of the issued
and
outstanding Shares.
ARTICLE
7
Share
Certificates; Transfers of Shares
7.1 Share
Certificates.
Shares
reflecting each Shareholder’s ownership interest in the Company will be
evidenced by a certificate substantially in the form attached as Exhibit
A to
this Agreement or otherwise in a form approved by the Board of Directors
(a
"Certificate"). Each Certificate will be executed by the Chief Executive
Officer, the President or any Vice President and by the Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary or other
persons
designated by the Board of Directors. A Share in the Company evidenced
by a
Certificate will constitute a security for all purposes of Article 8 of
the
Delaware Uniform Commercial Code. Delaware law will constitute the local
law of
the Company’s jurisdiction in its capacity as the issuer of the
Shares.
7.2 Share
Register.
The
Company will maintain a register for the registration of Shares and the
registration of transfers of Shares. Upon surrender for registration of
transfer
of any Certificate, and subject to the requirements of this Article 7,
the
Company will cause the execution, in the name of the registered holder
or the
designated transferee, of one or more new Certificates, evidencing the
same
aggregate Shares as the Certificate surrendered. Every Certificate surrendered
for registration of transfer will be duly endorsed, or be accompanied by
a
written instrument of transfer in form and substance satisfactory to the
Board
of Directors duly executed, by the registered holder thereof or such holder’s
authorized attorney.
7.3 Replacement
Certificates.
The
Company will issue a new Certificate in place of any Certificate previously
issued if the record holder of the Certificate (a) makes proof by affidavit,
in
form and substance satisfactory to the Board of Directors, that a previously
issued Certificate has been lost, destroyed or stolen, (b) requests the
issuance
of a new Certificate before the Company has received notice that the Certificate
has been acquired by a purchaser for value in good faith and without notice
of
an adverse claim, (c) if requested by the Board of Directors, delivers
to the
Company a bond, in form and substance satisfactory to the Board of Directors,
to
indemnify the Company against any claim that may be made on account of
the
alleged loss, destruction or theft of the Certificate, and (d) satisfies
any
other reasonable requirements imposed by the Board of Directors.
7.4 Transfers
of Shares.
Any
Shareholder may sell, assign, pledge or otherwise transfer or encumber
(collectively, "Transfer") all or any of its Shares, and the transferee
of all
or any of such Shares will be admitted as a substituted Shareholder, without
prior approval of the Board of Directors or any Shareholder.
7.5 Resignation.
No
Shareholder may resign from the Company except (a) with the consent of
all of
the other Shareholders and upon such terms and conditions as may be specifically
agreed upon between such other Shareholders and the resigning Shareholder
or
(b) in
connection with the Transfer of all Shares held by such Shareholder to
a
transferee who is admitted as a substituted Shareholder in accordance with
this
Agreement.
The
provisions of this
9
Agreement
with respect to distributions upon resignation are exclusive and no Shareholder
will be entitled to claim any further or different distribution upon resignation
under Section 18-604 of the Act or otherwise.
ARTICLE
8
Distributions
8.1 Distributions.
Distributions of cash or other assets of the Company will be made at such
times
and in such amounts as determined by the Board of Directors. Notwithstanding
any
provision to the contrary contained in this Agreement, the Company will
not make
a distribution to the Shareholders if such distribution would violate the
Act or
other applicable law. Distributions will be made to (and profits and losses
will
be allocated among) Shareholders pro rata
based on
the number of Shares owned by each Shareholder.
8.2 Return
of Capital.
No
Shareholder or Director will have any liability for the return of any
Shareholder’s capital contribution, which capital contribution will be payable
solely from the assets of the Company at the discretion of the Board of
Directors, subject to the requirements of the Act.
ARTICLE
9
Dissolution
9.1 Dissolution
Events.
The
Company will be dissolved and its affairs wound up and terminated upon
the first
to occur of the following:
(a) The
determination of all of the Shareholders to dissolve the Company;
(b) The
occurrence of any event causing dissolution of the Company under Section
18-801(4) of the Act, unless the Company is continued as permitted under
such
Section of the Act; or
(c) The
judicial dissolution of the Company under Section 18-802 of the
Act.
9.2 Winding
Up of the Company.
If the
Company is dissolved pursuant to Section 9.1, the Directors, or if there
is no
remaining Director, such person as is designated by the Shareholders holding
a
majority of the issued and outstanding Shares (the remaining Directors
or such
person is referred to as the "Liquidator"), will proceed to wind up the
business
and affairs of the Company upon such terms, price and conditions as are
determined by the Liquidator in accordance with the terms of this Agreement
and
the requirements of the Act. A reasonable amount of time will be allowed
for the
period of winding up in light of prevailing market conditions and so as
to avoid
undue loss in connection with any sale of Company assets. This Agreement
will
remain in full force and effect during the period of winding up the Company’s
affairs. The Liquidator, if other than a Director, will have and may exercise,
without further authorization or consent of Shareholders, all of the powers
conferred upon the Directors
10
under
the
terms of this Agreement to the extent necessary or desirable in the good
faith
judgment of the Liquidator to carry out the duties and functions of the
Liquidator for and during such period of time as will be reasonably required
in
the good faith judgment of the Liquidator to complete the winding up and
liquidation of the Company. The Liquidator will liquidate the assets of
the
Company, and apply and distribute the proceeds of such liquidation in the
following order of priority, unless otherwise required by law:
(a) to
creditors, including Shareholders who are creditors, to the extent permitted
by
law, in satisfaction of the liabilities of the Company (whether by payment
or by
the establishment of reserves of cash or other assets of the Company for
contingent liabilities in amounts, if any, determined by the Liquidator
to be
appropriate for such purposes), other than liabilities for distributions
to
Shareholders and former Shareholders under Sections 18-601 or 18-604 of
the
Act;
(b) to
the
Shareholders and former Shareholders in satisfaction of liabilities for
distributions under 18-601 or 18-604 of the Act; and
(c) to
the
Shareholders pro rata
based on
the number of Shares owned by each Shareholder.
Notwithstanding
the provisions of this Article 9 that require the liquidation of the assets
of
the Company, if on dissolution of the Company, the Liquidator determines
that a
prompt sale of part or all of the Company’s assets would be impractical or would
cause undue loss to the value of Company assets, the Liquidator may defer
for a
reasonable time (up to three years) the liquidation of any assets, except
those
necessary to timely satisfy liabilities of the Company (other than those
to
Shareholders), and/or may distribute to the Shareholders, in lieu of cash,
as
tenants in common undivided interests in such Company assets as the Liquidator
deems not suitable for liquidation. Any such in-kind distributions will
be made
in accordance with the priorities in Section 9.2 as if cash equal to the
fair
market value of the distributed assets were being distributed. Any such
distributions in kind will be subject to such conditions relating to the
disposition and management of such properties as the Liquidator deems reasonable
and equitable and to any joint operating agreements or other agreements
governing the operation of such properties at such time. The Liquidator
will
determine the fair market value of any property distributed in kind using
such
reasonable methods of valuation as it may adopt.
9.3 Certificate
of Cancellation.
After
the affairs of the Company have been wound up and the Company terminated,
the
Company will execute and file a certificate of cancellation with the Secretary
of State of the State of Delaware.
ARTICLE
10
Liability
and Indemnification
10.1 Limitation
on Liability.
The
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, will be solely the debts, obligations and liabilities
of the
Company, and no Shareholder, Director or officer of the Company will be
obligated personally for any such debt, obligation or liability of the
Company
solely by reason of being a Shareholder, Director and/or officer.
11
10.2 Directors'
Standard of Care.
Each
Director of the Company will be deemed to owe to the Company and its
Shareholders all of the fiduciary duties that a director of a corporation
formed
under the DGCL would owe to such corporation and its stockholders.
Notwithstanding the previous sentence, however, a Director of the Company
will
not be personally liable to the Company or any Shareholder for monetary
damages
for breach of fiduciary duty as a Director, except for liability for: (a)
any
breach of the Director’s duty of loyalty to the Company or its Shareholders; (b)
any act or omission not in good faith or which involves intentional misconduct
or a knowing violation of law; (c) voting for or consenting to a distribution
to
a Shareholder in violation of Section 18-607 of the Act; or (d) any transaction
from which the Director derived an improper personal benefit.
10.3 Indemnification
of Directors, Officers, Employees and Agents.
To
the
fullest extent permitted by law, the Company will indemnify and hold harmless
each Shareholder, Director, or officer of the Company or any Affiliate
of the
Company (as defined below) and any officer, director, stockholder, partner,
employee, representative or agent of any such Shareholder, Director or
officer
(each, a "Covered Person") and each former Covered Person from and against
any
and all losses, claims, demands, liabilities, expenses, judgments, fines,
settlements and other amounts (including any investigation, legal and other
reasonable expenses) arising from any and all claims, demands, actions,
suits or
proceedings, civil, criminal, administrative or investigative ("Claims"),
in
which the Covered Person or former 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 that relates to or arises out of the Company
or its
formation, operation, dissolution or termination or its property, business
or
affairs. The
Company may indemnify any employee, representative or agent of the Company
when,
as and if determined by the Board of Directors, to
the
same extent as provided to Covered Persons pursuant to this Section 10.3.
A
Covered
Person or former Covered Person will not be entitled to indemnification
under
this Section 10.3 with respect to (a) any Claim that a court of competent
jurisdiction has determined results from (i) any breach of such Covered
Person’s
duty of loyalty to the Company or its Shareholders, (ii) any act or omission
not
in good faith or which involves intentional misconduct or a knowing violation
of
law, (iii) voting for or consenting to a distribution to a Shareholder
in
violation of Section 18-607 of the Act, or (iv) any transaction from which
such
Covered Person derived an improper personal benefit or (b) any Claim initiated
by such Covered Person unless such Claim (or part thereof) (i) was brought
to
enforce such Covered Person's rights to indemnification under this Agreement
or
(ii) was authorized or consented to by the Board. For purposes of this
Section
10.3, "Affiliate of the Company" means any person or entity controlling,
controlled by or under common control with the Company. For the purposes
of this
definition, “control” of a person or entity means the power to direct the
management and policies of such person or entity, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise.
10.4 Survival.
The
indemnities under this Article 10 will survive dissolution or termination
of the
Company.
10.5 Claim
Against Company.
Each
Covered Person or former Covered Person will have a claim against the property
and assets of the Company for payment of any indemnity
12
amounts
due under this Agreement, which amounts will be paid or properly reserved
for
prior to the making of distributions by the Company to
Shareholders.
10.6 Advancement
of Expenses.
Expenses incurred by a Covered Person or former Covered Person in defending
any
Claim will 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 or former Covered Person to repay such amount if it is ultimately
determined that such Covered Person or former Covered Person is not entitled
to
be indemnified by the Company as authorized by this Article 10.
10.7 Repeal
or Modification.
Any
repeal or modification of this Article 10 will not adversely affect any
rights
of such Covered Person or former Covered Person pursuant to this Article
10,
including the right to indemnification and to the advancement of expenses
of a
Covered Person or former 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.
10.8 Rights
Not Exclusive.
The
rights to indemnification and to the advancement of expenses conferred
in this
Article 10 will not be exclusive of any other right that any person may
have or
hereafter acquire under any statute, agreement, vote of the Directors or
otherwise.
10.9 Insurance.
The
Company may maintain insurance, at its expense, to protect itself and any
Director, officer, employee or agent of the Company or another limited
liability
company, corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Company would
have
the power to indemnify such person against such expense, liability or loss
under
this Agreement or the Act.
ARTICLE
11
Books
and
Records
11.1 Books
and Records.
The
Company will maintain complete and accurate books and records of its business
and affairs as required by the Act.
11.2 Execution
of Contracts.
Except
as
otherwise provided by law or this Agreement, all contracts or other instruments
(including any certificate or filings provided by the Act) authorized by
the
Board of Directors, may be executed and delivered in the name of and on
behalf
of the Company by any Director or officer of the Company, or any other
person
authorized by the Board of Directors.
11.3 Signatures
on Checks and Negotiable Instruments.
All
checks, drafts, notes, bonds, bills of exchange and other negotiable instruments
or orders for the payment of moneys out of the funds of the Company made,
accepted, or endorsed by the Company, and all bonds, stocks and other securities
owned or held by the Company, on transfer and delivery for sale or otherwise,
will, as to either execution, endorsement or both, be signed on behalf
of the
Company in such manner as from time to time be determined by the Board
of
Directors.
13
11.4 Fiscal
Year.
The
Company's fiscal year is the calendar year.
11.5 Company
Seal.
The
Company seal will have inscribed thereon the name of the Company, the year
of
its formation, and the words "Company Seal" and "Delaware." If and when
so
authorized by the Board of Directors, a duplicate of the seal may be kept
and
used by the Secretary or Treasurer or by any Assistant Secretary or Assistant
Treasurer. The Company seal may also be affixed by an authorized officer
of the
Company writing or typing the phrase "Company Seal" which will be effective
for
all purposes.
ARTICLE
12
Miscellaneous
12.1 Notices.
Except
as otherwise provided in this Agreement, any notice required or permitted to be
given by this Agreement must be in writing and may be delivered personally,
by
express courier, mail, fax, email or other electronic communication to
the
recipient at the address as it appears in the records of the Company. Any
notice
will be deemed to be given at the time of receipt of such notice.
12.2 Waiver
of Notice.
Whenever a notice is required to be given, a waiver in writing, signed
by the
person or persons entitled to the notice, whether before or after the time
stated therein, will be deemed equivalent to notice. Attendance of a person
at a
meeting constitutes waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning
of the
meeting, to the transaction of any business because the meeting is not
lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any meeting of the Shareholders or the Board needs to be specified
in any
written waiver of notice.
12.3 Amendments.
This
Agreement may be amended only upon the written consent of all
Shareholders.
12.4 Governing
Law.
This
Agreement will be governed by and construed in accordance with the domestic
laws
of the State of Delaware.
[Signature on following page]
14
EXECUTED:
SHAREHOLDER
FORD
HOLDINGS LLC
By:
/s/ Xxxxx X. Xxxxxx, Xx.
Name:
Xxxxx X.
Xxxxxx, Xx.
Title:
Secretary
EXHIBIT
A
CERTIFICATE
FOR SHARES
FORD
MOTOR CREDIT COMPANY LLC
A
Delaware Limited Liability Company
Certificate
No.
______
No.
of
Shares ________
FORD
MOTOR CREDIT COMPANY LLC, a Delaware limited liability company (the "Company"),
certifies that ______________________________________ is the registered
owner of
_____ Shares (as such term is defined in the Limited Liability Company
Agreement), par value $100 per Share, of the Company. The rights, powers
and
privileges associated therewith are set forth in the Limited Liability
Company
Agreement of the Company dated as of __________ ___, 2007 (the "Company
Agreement"), as the same may, from time to time, be amended or amended
and
restated, under which the Company is existing, copies of which are on file
at
the principal office of the Company. The terms of the Company Agreement
are
incorporated herein by reference.
The
Holder, by accepting this Certificate, is deemed to have agreed to become
a
Shareholder of the Company, if admitted as such in accordance with the
terms of
the Company Agreement, and to comply with and be bound by, and to have
executed,
the Company Agreement.
This
Certificate and the Shares evidenced hereby are transferable only in accordance
with the terms of the Company Agreement. No such Shares may be transferred
unless and until this Certificate, or a written instrument of transfer
satisfactory to the Company, is duly endorsed or executed for transfer
by the
Holder or the Holder’s duly authorized attorney, and this Certificate (together
with any separate written instrument of transfer) is delivered to the Company
for registration of transfer.
Dated:
__________ ___,
2007
FORD
MOTOR CREDIT COMPANY LLC
ATTEST:
___________________________ By:_______________________________
Name:
Name:
Title:
Title:
A-1
[FORM
OF
REVERSE SIDE OF CERTIFICATE]
ASSIGNMENT
OF SHARES
FOR
VALUE
RECEIVED, the undersigned (the "Assignor"), hereby assigns, conveys, sells
and
transfers unto:
____________________________________________________________________________________________________________________________________________________________
("Assignee")
Print or typewrite Name and Address of Assignee
_____________________________ Social Security or other Taxpayer Identification Number of Assignee
_________
Shares of the Company evidenced by this Certificate.
Assignor
irrevocably constitutes and appoints the Company as its attorney-in-fact
with
full power of substitution to transfer the Shares referenced herein on
the books
of the Company.
Date:
_____________________
___________________________________________
Signature
A-2
