EXHIBIT 3.2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
of
FORD CREDIT AUTO RECEIVABLES TWO LLC
(a Delaware Limited Liability Company)
by
FORD MOTOR CREDIT COMPANY,
as Member
dated as of March 1, 2001
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.1 Definitions ..................................... 1
ARTICLE II
ORGANIZATION
Section 2.1 Formation, Name, Location of Office ............. 5
Section 2.2 Registered Office in Delaware ................... 5
Section 2.3 Registered Agent ................................ 6
Section 2.4 Purposes and Powers ............................. 6
Section 2.5 Conduct of Business ............................. 7
Section 2.6 Tax Reporting and Characterization .............. 12
Section 2.7 Term ............................................ 12
ARTICLE III
THE MEMBER
Section 3.1 The Member ...................................... 12
Section 3.2 Powers of Member ................................ 12
Section 3.3 Limited Liability of the Member ................. 12
Section 3.4 Special Member .................................. 13
ARTICLE IV
MANAGEMENT OF THE COMPANY; THE BOARD OF
MANAGERS; OFFICERS
Section 4.1 General Management of the Company ............... 14
Section 4.2 Appointment and Term ............................ 14
Section 4.3 Number; Independent Managers .................... 14
Section 4.4 Power to Bind Company ........................... 18
Section 4.5 Restrictions on the Power of the Managers ....... 18
Section 4.6 Duties and Obligations of the Managers .......... 18
Section 4.7 Resignation ..................................... 19
Section 4.8 Removal of Managers ............................. 20
Section 4.9 Filling of Vacancies ............................ 20
Section 4.10 Managers' Compensation .......................... 20
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Section 4.11 Officers ......................................... 20
Section 4.12 Duties of Managers and Officers .................. 20
ARTICLE V
CAPITAL STRUCTURE AND CONTRIBUTIONS
Section 5.1 Capital Structure ................................ 21
Section 5.2 Capital Contributions ............................ 21
ARTICLE VI
PROFITS AND LOSSES; DISTRIBUTIONS
Section 6.1 Profits and Losses ............................... 21
Section 6.2 Distributions .................................... 21
ARTICLE VII
EXCULPATION; LIABILITIES: INDEMNIFICATION
Section 7.1 Exculpation ...................................... 21
Section 7.2 Liabilities: Indemnification ..................... 22
Section 7.3 Amendments: Indemnification ...................... 24
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Dissolution of the Company ....................... 24
Section 8.2 Amendments ....................................... 25
Section 8.3 Assignments; Additional Members .................. 25
Section 8.4 Severability ..................................... 26
Section 8.5 Successors and Assigns ........................... 26
Section 8.6 Limited Liability Company ........................ 26
Section 8.7 Waiver of Partition; Nature of Interest .......... 26
Section 8.8 Benefits of Agreement; No Third-Party Rights ..... 27
Section 8.9 Binding Agreement ................................ 27
Section 8.10 Headings ......................................... 27
Section 8.11 Governing Law .................................... 27
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
FORD CREDIT AUTO RECEIVABLES TWO LLC
(A Delaware Limited Liability Company)
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT,
(the "Agreement") of FORD CREDIT AUTO RECEIVABLES TWO LLC, a Delaware limited
liability company (the "Company") dated as of this 1st day of March, 2001, by
Ford Motor Credit Company, as the sole member of the Company (the "Member").
RECITAL
The Member has formed the Company as a limited liability company under
the laws of Delaware pursuant to the provisions of the Delaware Limited
Liability Company Act, 6 Del. C. ss. 18-101, et seq. (as amended and in effect
from time to time, and any successor statute, the "Act") and the Limited
Liability Company Agreement of the Company dated January 29, 2001 (the "Original
Agreement"). The Member desires to continue the Company as a limited liability
company under the Act and this Agreement and to amend and restate the Original
Agreement in its entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement,
capitalized terms shall have the meanings assigned to them herein. All
references herein to "this Agreement" are to this Limited Liability Company
Agreement of the Company as amended from time to time, and all references herein
to Articles, Sections and subsections are to Articles, Sections and subsections
of this Agreement unless otherwise specified.
"Act" has the meaning set forth in the recital.
"Affiliate" shall mean, in respect of any specified Person, any other
Person that directly or indirectly controls, is controlled by or is under direct
or indirect common control with the specified Person. For purposes of this
Agreement, "control" (including, with
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correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities,
by agreement or otherwise.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Basic Documents" shall mean this Agreement, any Transfer and
Servicing Agreement, Indenture, trust agreement, purchase agreement,
administration agreement, Note depositary agreement and other agreements
relating to the issuance of Notes and Certificates, including the other
documents and certificates delivered in connection with such agreements, as such
agreements may be amended from time to time.
"Board of Managers" has the meaning set forth in Section 4.1.
"Certificate of Formation" has the meaning set forth in Section 2.1.
"Certificates" has the meaning set forth in Section 2.4(a)(iv).
"Code" shall mean the Internal Revenue Code of 1986, as amended (or
any successor law).
"Company" shall have the meaning set forth in the preamble hereto.
"Company Assets" shall mean, as of any date of determination, all
right, title and interest of the Company in, to and under the Receivables and
any related property and all other property acquired by the Company from time to
time as of such date of determination and all proceeds thereof.
"control" shall have the meaning set forth in the definition of the
term "Affiliate" above.
"Damages" shall have the meaning set forth in Section 7.2.
"Fiscal Year" shall mean, unless the Member shall at any time
determine otherwise pursuant to the requirements of the Code, for each year, the
period commencing on January 1 and ending on December 31, except that the
initial fiscal year shall commence on the filing of a Certificate of Formation
in the office of the Secretary of State of the State of Delaware and shall end
as required pursuant to the Code.
"Ford Credit" shall mean Ford Motor Credit Company, a Delaware
corporation.
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"Indemnified Party" has the meaning set forth in Section 7.2.
"Indenture" has the meaning set forth in Section 2.4(a)(vii).
"Independent Manager" has the meaning set forth in Section 4.3(b).
"Insolvency Event" shall mean, with respect to any Person, (i) the
making of a general assignment for the benefit of creditors, (ii) the filing of
a voluntary petition in bankruptcy, (iii) being adjudged a bankrupt or
insolvent, or having had entered against such Person an order for relief in any
bankruptcy or insolvency proceeding, (iv) the filing by such Person of a
petition or answer seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute, law
or regulation, (v) the filing by such Person of an answer or other pleading
admitting or failing to contest the material allegations of a petition filed
against such Person in any proceeding specified in clause (vii) below, (vi)
seeking, consenting to or acquiescing in the appointment of a trustee, receiver
or liquidator of such Person or of all or any substantial part of the assets of
such Person or (vii) the failure to obtain dismissal within 60 days of the
commencement of any proceeding against such Person seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any statute, law or regulation, or the entry of any order
appointing a trustee, liquidator or receiver of such Person or of such Person's
assets or any substantial portion thereof. The foregoing definition of
"Insolvency Event" is intended to replace and shall supersede and replace the
definition of "Bankruptcy" set forth in Sections 18-101(1) and 18-304 of the
Act.
"Manager" or "manager" has the meaning set forth in Section 4.2.
"Member" shall mean Ford Motor Credit Company and its successors and
permitted assigns, as herein provided, including a Substitute Member, each in
its capacity as a member of the Company; provided, however, the term "Member"
shall not include a Special Member.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Notes" shall have the meaning set forth in Section 2.4(a)(iv).
"Percentage Interest" shall have the meaning set forth in Section 5.1.
"Permitted Transaction" shall have the meaning set forth in Section
2.4(a)(viii).
"Person" shall mean a legal person, including any individual,
corporation, estate, partnership (limited or general) , joint venture,
association, joint stock company, limited
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liability company, limited liability partnership, trust, unincorporated
organization or government or any agency or political subdivision thereof, or
any other entity of whatever nature.
"Rating Agency" shall mean, with respect to any outstanding Notes or
Certificates, each statistical rating agency selected by the Company to rate
such Notes or Certificates.
"Rating Agency Condition" shall mean, with respect to any action, that
each Rating Agency shall have been given at least 10 days prior notice thereof
and that each of the Rating Agencies shall have notified the Company and the
servicer and the trustees under the related Transfer and Servicing Agreements
and Indentures in writing that such action will not result in a reduction or
withdrawal of the rating of any outstanding Notes or Certificates with respect
to which it is a Rating Agency.
"Receivables" has the meaning set forth in Section 2.4(a)(i).
"Security" has the meaning set forth in Section 2.4(a)(iv).
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Special Member" shall mean, upon such Person's admission to the
Company as a member of the Company pursuant to Section 3.4, a Person acting as
an Independent Manager, in such Person's capacity as a member of the Company. A
Special Member shall only have the rights and duties expressly set forth in this
Agreement.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc.
"Substitute Member" shall mean a Person appointed as a substitute
member of the Company pursuant to Section 3.4, in such Person's capacity as a
member of the company.
"Transfer and Servicing Agreements" has the meaning set forth in
Section 2.4(a)(iii).
"Trusts" has the meaning set forth in Section 2.4(a)(iii).
ARTICLE II
ORGANIZATION
Section 2.1 Formation, Name, Location of Office. Xxxx Xxxxxxx is
hereby designated as an "authorized person" within the meaning of the Act and
has executed, delivered and filed the Certificate of Formation (the "Certificate
of Formation") with
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the Secretary of State of the State of Delaware (such filing being hereby
approved and ratified in all respects) and is hereby authorized to execute,
deliver and file the Amended Certificate of Formation attached hereto as Exhibit
A. Upon the filing of the Certificate of Formation with the Secretary of State
of the State of Delaware, the Member, each Manager and each officer of the
Company thereupon became designated as an "authorized person" and each shall
continue as a designated "authorized person" with the meaning of the Act. The
Member, any Manager or any officer of the Company, as an authorized person
within the meaning of the Act, shall execute, deliver and file, or cause the
execution, delivery and filing of, all certificates (and any amendments and/or
restatements thereof) required or permitted by the Act to be filed with the
Secretary of State of the State of Delaware. The Member, any Manager or any
officer of the Company shall execute, deliver and file any other certificates
(and any amendments and/or restatements thereof) necessary for the Company to
qualify to do business in any jurisdiction in which the Company may wish to
conduct business. The name of the limited liability company continued hereby
shall be "Ford Credit Auto Receivables Two LLC." The business of the Company
shall be carried on in such name with variations and changes as the Board of
Managers shall determine or deem necessary to comply with requirements of the
jurisdictions in which the Company's operations are conducted. The principal
place of business of the Company shall be One American Road, Office of the
General Counsel, Xxxxxxxx, Xxxxxxxx 00000 or such other place or places in the
State of Michigan as the Board of Managers may from time to time designate.
Section 2.2 Registered Office in Delaware. The registered office
of the Company in the State of Delaware is located at 0000 Xxxxxx Xxxxxx, xx xxx
Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle.
Section 2.3 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, 0000 Xxxxxx Xxxxxx, xx xxx
Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle.
Section 2.4 Purposes and Powers. (a) The limited purposes for
which the Company is organized are to engage in the following activities, all in
accordance with the terms of this Agreement:
(i) to acquire from time to time all right, title and
interest in and to receivables or leases arising out of or relating to
the sale or lease of new or used motor vehicles and farm or industrial
equipment, including automobiles, light and heavy duty trucks,
tractors and recreational vehicles, monies due thereunder, security
interests in the motor vehicles or equipment financed thereby,
proceeds from claims on insurance policies related thereto, and
related rights (collectively, "Receivables");
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(ii) to acquire, own, hold, service, sell, assign, pledge
and otherwise deal with the Receivables, collateral securing the
Receivables, related insurance policies, agreements with motor
vehicles or equipment dealers or lessors or other originators or
servicers of Receivables and any proceeds or further rights associated
with any of the foregoing;
(iii) to transfer Receivables to trusts (the "Trusts")
pursuant to one or more pooling and servicing agreements, sale and
servicing agreements or other agreements (the "Transfer and Servicing
Agreements") to be entered into by and among, among others, the
Company, the trustees named therein and any entity acting as servicer
of the Receivables;
(iv) to authorize, issue, sell and deliver one or more
series or classes of bonds, notes or other evidences of indebtedness
(the "Notes") or certificates (the "Certificates") or other securities
(collectively, the "Securities") issued through the Trusts under the
related Transfer and Servicing Agreements and secured or
collateralized by one or more pools of Receivables or by certificates
of any class issued by one or more trusts established by Ford Credit
or any Affiliate thereof, provided that the Company shall have no
liability under any such Securities except to the extent of the one or
more pools of Receivables or certificates securing or collateralizing
such Securities and provided further, that any debt issued by a Trust
shall bear its own trustee fees and servicer fees;
(v) to acquire from Ford Credit or any Affiliate thereof
certificates issued by one or more trusts to which Ford or any
Affiliate thereof transferred Receivables;
(vi) to hold and enjoy all of the rights and privileges of
any Certificates issued by the Trusts to the Company under the related
Transfer and Servicing Agreements and to hold and enjoy all of the
rights and privileges of any class of Notes, including any class of
Notes or Certificates which may be subordinated to any other class of
Notes or Certificates;
(vii) to perform its obligations under the Transfer and
Servicing Agreements and any indenture or other agreement (each, an
"Indenture") pursuant to which any Notes are issued; and
(viii) to engage in any activity 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
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the foregoing (such business activities and transactions specified in
this Section 2.4 collectively referred to hereinafter as "Permitted
Transactions").
(b) The Company, by or through any Manager or any officer of the
Company on behalf of the Company, may enter into and perform the Basic Documents
and all documents, agreements, certificates, or financing statements
contemplated thereby or related thereto, all without any further act, vote or
approval of any other Person notwithstanding any other provision of this
Agreement, the Act or applicable law, rule or regulation. The foregoing
authorization shall not be deemed a restriction on the powers of any Manager or
any officer of the Company to enter into other agreements on behalf of the
Company.
Section 2.5 Conduct of Business.
(a) Notwithstanding any other provision of this Agreement and any
provision of law that otherwise so empowers the Company, the Company shall not,
without the prior written confirmation of each applicable Rating Agency that
such action will result in a Rating Agency Condition, do any of the following:
(i) engage in any business or activity other than a
Permitted Transaction;
(ii) create, incur or assume any indebtedness or issue any
security or sell or transfer any receivables (including the
Receivables) to a Trust or other Person which issues a security in
respect of any such receivables unless any such indebtedness or
security (A) has no recourse to any assets of the Company other than
the assets to which such indebtedness or security relates and (B) does
not constitute a claim against the Company if cash flow from the
assets securing or collateralizing such indebtedness or security is
insufficient to repay the debt, and in the event such indebtedness or
security is deemed to constitute a claim against the Company generally
or against any other assets securing or collateralizing any other
indebtedness or security of the Company, such claim shall be
subordinate to the claims of such other indebtedness or security to
which those assets relates;
(iii) create, incur or assume any indebtedness or issue any
security or sell or transfer any receivables (including the
Receivables) to a Trust or other Person which issues a security in
respect of any such receivables unless the debt holders thereof (A)
agree or are deemed to have agreed that the debt, liabilities and
obligations incurred, contracted for or otherwise existing with
respect to such indebtedness shall be enforceable against the assets
securing or collateralizing such
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indebtedness or security only, and not against the assets of the
Company generally or against any other assets securing or
collateralizing any other indebtedness or security of the Company, and
(B) agree or are deemed to have agreed that to the extent such debt
holders are deemed to have any interest in the assets of the Company
generally or any other assets collateralizing or securing any other
indebtedness or security of the Company, their interest in those
assets will be subordinate to claims or rights of such other debt
holders to those assets and, further, that such agreement will
constitute a subordination agreement for purposes of Section 510(a) of
the Bankruptcy Code;
(iv) become or remain liable, directly or contingently, in
connection with any indebtedness or other liability of any other
Person, whether by guarantee, endorsement (other than endorsements of
negotiable instruments for deposit or collection in the ordinary
course of business), agreement to purchase or purchase, agreement to
supply or advance funds, or otherwise, except in connection with
Permitted Transactions;
(v) make or suffer to exist any loans or advances to, or
extend any credit to, or make any investments (by way of transfer of
property, contributions to capital, purchase of stock or securities or
evidences of indebtedness, acquisition of the business or assets, or
otherwise) in, any Affiliate other than in connection with Permitted
Transactions; provided, however, that the Company shall not be
prohibited under this clause (a)(v) from causing a distribution of
cash to its Member;
(vi) enter into any transaction or merger or consolidation
with or into any other entity, or convey its properties and assets
substantially as an entirety to any entity, other than with respect to
a Permitted Transaction, unless (A) the entity (if other than the
Company) formed as a result of or surviving such consolidation or
merger, or which acquires the properties and assets of the Company is
(i) organized and existing under the laws of the State of Delaware,
(ii) expressly assumes all of the Company's obligations under the
Basic Documents and (iii) is governed under a charter document
containing provisions substantially identical to the provisions of
Section 2.4 and 2.5 of this Agreement; (B) the Rating Agencies and the
trustees under the Basic Documents shall have received at least 10
days' prior notice of any such merger, consolidation or sale of
assets; (C) such merger, consolidation or sale of assets will not
conflict with any provisions of the Certificate of Formation of the
Company; and (D) immediately after giving effect to such merger,
consolidation or sale of assets, no default or event of default by or
relating to the Company shall have occurred and be continuing under
any material agreement to which the Company is a party;
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(vii) become party to, or permit any of its properties to
be bound by, any indenture, mortgage, instrument, contract, agreement,
lease or other undertaking, with the exception of the Basic Documents
or any other any documents relating to a Permitted Transaction; and
(viii) amend, modify, alter, change or repeal any
provision of Section 2.4 or 2.5 of this Agreement; provided, however,
the Company reserves the right to amend, alter, change or repeal any
provision contained in its Certificate of Formation or this Agreement
in a manner now or hereafter prescribed by the Act, and all rights
conferred upon the Member herein are granted subject to this
reservation.
(b) The Company shall at all times:
(i) maintain its existence as a limited liability company
and remain in good standing under the laws of the State of Delaware;
(ii) observe all limited liability company procedures
required by this Agreement and such others, if any, as may be from
time to time required by the Act;
(iii) ensure that (x) the business and affairs of the
Company are at all times managed by or under the direction of the
Board of Managers, (y) the Board of Managers shall have duly
authorized all actions requiring such authorization and, (z) when
required by law or by this Agreement, the Company shall have obtained
the proper authorization for action from its Member;
(iv) maintain the Company's books, financial statements,
accounting records and other limited liability company documents and
records separate from those of the Member, any Affiliate thereof or
any other entity;
(v) not commingle the Company Assets with those of the
Member or any Affiliate thereof, and not hold itself out as being
liable for the debts of another;
(vi) maintain its bank accounts, books of account and
payroll (if any) separate from those of its Affiliates, the Member or
any of the Member's Affiliates or any other Person or entity; and
ensure that its funds and other assets shall at all times be readily
distinguishable from the funds and other assets of its
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Affiliates, the Member and any of the Member's Affiliates or any other
Person or entity;
(vii) act solely in its own name and through its own
managers and agents so as not to mislead others as to its identity or
the identity of any Affiliate and correct any known misunderstanding
regarding its separate identity, and conduct all oral and written
communications of the Company, including without limitation letters,
invoices, contracts, statements and applications solely in the name of
the Company;
(viii) separately manage its liabilities from those of the
Member or any Affiliate thereof and pay its own liabilities, including
all administrative expenses, from its own separate assets, provided
that the Member or any Affiliate thereof may pay certain of the
organizational costs of the Company, and the Company shall reimburse
the Member or any such Affiliate for its allocable portion of shared
expenses paid by the Member or such Affiliate, and provided, further,
that the Member may pay fees and expenses and indemnify parties
pursuant to Section 2.5(d);
(ix) at all times maintain an arm's length relationship
with any Affiliates;
(x) not create, incur or assume any indebtedness other
than the Securities and other obligations permitted pursuant to the
Basic Documents unless such indebtedness is rated by each Rating
Agency then rating the outstanding Notes or certificates at the
request of the Company, or unless such Rating Agencies have confirmed
in writing that the issuance of such indebtedness will not adversely
affect the then current rating of the outstanding Securities;
(xi) not create, incur or assume any indebtedness or issue
any security or sell or transfer any receivables (including the
Receivables) to a Trust or other Person which issues a security in
respect of any such receivables unless the debt holders thereof agree
or are deemed to have agreed to not file or join in filing any
bankruptcy petition against the Company prior to the end of the period
that is one year and one day after all of the debt of the Company and
all of the debt issued through the Trusts is paid in full and agree
they will not cooperate with or encourage others to file a bankruptcy
petition against the Company during the same period;
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(xii) operate in such a manner that it would not be
substantively consolidated for purpose of applicable bankruptcy laws
with any other entity;
(xiii) have a sufficient number of Managers and any other
authorized agents to manage its operations; and
(xiv) maintain adequate capital in light of its
contemplated business operations.
(c) The Company shall abide by all limited liability company
formalities, including the maintenance of current minute books, and the Company
shall cause its financial statements to be prepared in accordance with generally
accepted accounting principles in manner that indicates the separate existence
of the Company and its assets and liabilities. The Company shall not assume the
liabilities of the Member or any Affiliate thereof, and shall not guarantee the
liabilities of the Member or any Affiliate thereof. The Board of Managers of the
Company shall make decisions with respect to the business and operations of the
Company independent of, and not dictated by, the Member or any Affiliate
thereof.
(d) Notwithstanding any provision in this Agreement to the
contrary, the Member in its own capacity (i) may pay fees and expenses of and
indemnify trustees relating to the Trusts and (ii) may indemnify any
underwriter, placement agent, initial purchaser for resale or other Person
performing similar functions in connection with the issuance of any Securities.
Section 2.6 Tax Reporting and Characterization. It is the
Member's express intention that the Company not constitute a separate entity for
purposes of federal income tax or state or local income, franchise or other
taxes.
Section 2.7 Term. Unless terminated in accordance with this
Agreement and the Act, the Company shall have perpetual existence.
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ARTICLE III
THE MEMBER
Section 3.1 The Member. The name and address of the Member is
as follows:
Ford Motor Credit Company
World Headquarters
Office of the General Counsel
Xxx Xxxxxxxx Xxxx
Xxxxx 0000-X0
Xxxxxxxx, XX 00000
Section 3.2 Powers of Member. The Member (acting in its
capacity as such) shall have the authority to take all actions specifically
enumerated in the Certificate of Formation or this Agreement.
Section 3.3 Limited Liability of the Member. Unless otherwise
expressly provided in any Basic Document, 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 of the Company.
Section 3.4 Special Member. Upon the occurrence of any event
that causes the Member to cease to be a member of the Company (other than (i)
upon an assignment by the Member of all of its Percentage Interest and the
admission of the assignee pursuant to Section 8.3, or (ii) the resignation of
the Member and the admission of an additional member of the Company pursuant to
Section 8.3), each individual acting as an Independent Manager pursuant to
Section 4.3 shall, without any action of any Person and simultaneously with the
Member ceasing to be a member of the Company, automatically be admitted to the
Company as a Special Member and shall continue the Company without dissolution.
No Special Member may resign from the Company or transfer its rights as a
Special Member; provided, however, each Special Member shall automatically cease
to be a member of the Company upon the admission to the Company of a Substitute
Member; provided, further, such admission of a Substitute Member shall not, in
and of itself, cause a Special Member to cease to be an Independent Manager.
Notwithstanding any provision in this Agreement to the contrary, upon the
occurrence of any event that causes the last remaining Member to cease to be a
member of the Company, the personal representative of such Member is hereby
authorized to, and shall, within 90 days after the occurrence of the event that
terminated the continued membership of such Member in the Company, appoint a
Person as a substitute member of the Company (the "Substitute Member"). Each
Special Member shall be a member of the Company that has no interest in the
profits, losses and capital of the Company and has no right to receive any
distributions of Company Assets. Pursuant to Section 18-301 of the Act, a
Special Member shall not be required to make any capital contributions to the
Company and shall not receive a limited liability company interest
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in the Company. A Special Member, in its capacity as a Special Member, may not
bind the Company. Except as required by any mandatory provision of the Act, a
Special Member, in its capacity as a Special Member, shall have no right to vote
on, approve or otherwise consent to any action by, or matter relating to, the
Company, including, without limitation, the merger, consolidation or conversion
of the Company. In order to implement the admission to the Company of each
Special Member, each person acting as an Independent Manager pursuant to Section
4.3 shall execute a counterpart to this Agreement. Prior to its admission to the
Company as Special Member, each person acting as an Independent Manager pursuant
to Section 4.3 shall not be a member of the Company.
ARTICLE IV
MANAGEMENT OF THE COMPANY;
THE BOARD OF MANAGERS; OFFICERS
Section 4.1 General Management of the Company. Subject to
such matters which are expressly reserved hereunder or under the Act to the
Member for decision, the business, properties and affairs of the Company shall
be managed by a board of managers (the "Board of Managers") which, without
limiting the generality of the foregoing, shall have the power to appoint
officers of the Company, to appoint and direct agents, to grant general or
limited authority to officers, employees and agents of the Company, and to make,
execute and deliver contracts and other instruments and documents in the name
and on behalf of the Company.
Section 4.2 Appointment and Term. The Member shall be
entitled to appoint from time to time persons to serve as the managers (each, a
"Manager") on the Board of Managers. Managers shall serve until their respective
successors are appointed by the Member or until their earlier death, disability,
resignation, retirement or removal. Each Manager is hereby designated as a
"manager" of the Company within the meaning of Section 18-101(10) of the Act.
Section 4.3 Number; Independent Managers.
(a) The number of Managers which shall constitute the whole
Board of Managers shall be not less than three nor more than five. The number
may be increased or reduced from time to time by amendment of this Agreement.
The initial Board of Managers shall consist of five individuals, two of which
shall be Independent Managers, and who shall be:
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Xxxxxxx Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxx, as Independent Manager
Xxxxxxx X. Xxxxxx, as Independent Manager
(b) The Board of Managers of the Company shall include at
least two Managers who are Independent Managers. So long as any Securities are
outstanding, this Section 4.3(b) shall not be amended without the affirmative
vote of 100% of the members of the Board of Managers (including two Independent
Managers). When voting on matters subject to the vote of the Board of Managers,
including those matters specified in Section 4.3(c), notwithstanding that the
Company is not then insolvent, the Independent Managers shall take into account
the interests of the creditors of the Company and the Trusts as well as the
interests of the Company. Except as provided in Section 4.3(b) or 4.3(c), any
action permitted or required to be taken by the Board of Managers may be taken
by a simple majority of the members of the Board of Managers excluding the
Independent Managers; provided, however, that the Board of Managers may delegate
the day-to-day management of the Company to an individual or entity which may or
may not be a Manager. The actions set forth in Section 4.3(b) and 4.3(c) shall
be the only actions by the Board of Managers that shall require the affirmative
vote of 100% of the members of the Board of Managers including the two
Independent Managers.
The following terms shall have the meanings set forth below:
(i) An "Independent Manager" shall be an individual who:
(A) is not and has not been employed by Ford Credit or any of its
Affiliates as a director, officer or employee within the five years
immediately prior to such individual's appointment as an Independent
Manager (other than his or her capacity as an Independent Manager or
other similar capacity); (B) is not and has not been affiliated with a
significant customer or supplier of Ford Credit or any of its
Affiliates within the five years immediately prior to such
individual's appointment as an Independent Manager (other than his or
her capacity as an Independent Manager or other similar capacity); (C)
is not and has not been affiliated with a company of which Ford Credit
or any of its Affiliates is a significant customer or supplier within
the five years immediately prior to such individual's appointment as
an Independent Manager (other than his or her capacity as an
Independent Manager or other similar capacity); (D) does not have and
has not had significant personal services contract(s) with Ford Credit
or any of its Affiliates within the five years immediately prior to
such individual's appointment as an Independent Manager (other than
his or
14
her capacity as an Independent Manager or other similar capacity); (E)
is not affiliated with a tax-exempt entity that receives significant
contributions from Ford Credit or any of its Affiliates within the
five years immediately prior to such individual's appointment as an
Independent Manager; (F) is not the beneficial owner at the time of
such individual's appointment as an Independent Manager, or at any
time thereafter while serving as an Independent Manager, of such
number of shares of any class of common stock of Ford Credit or any
Affiliate the value of which constitutes more than 3% of such
individual's net worth; (G) is not a spouse, parent, sibling or child
of any person described by (A) through (F); and (H) is not and was not
a major creditor of Ford Credit or any of its Affiliates within the
five years prior to such appointment as an Independent Manager.
(ii) A "significant customer of Ford Credit or any of its
Affiliates" shall mean a customer from which Ford Credit and any of
its Affiliates collectively in the last fiscal year of Ford Credit
received payments in consideration for the products and services of
Ford Credit and its Affiliates which are in excess of 1% of the
consolidated gross revenues of Ford Credit and its Affiliates during
such fiscal year.
(iii) A "significant supplier of Ford Credit or any of its
Affiliates" shall mean a supplier to which Ford Credit and any of its
Affiliates collectively in the last fiscal year of Ford Credit made
payments in consideration for the supplier's products and services in
excess of 3% of the consolidated gross revenues of Ford Credit and its
Affiliates during such fiscal year.
(iv) Ford Credit or any of its Affiliates shall be deemed
a "significant customer" of a company if Ford Credit and any of its
Affiliates collectively were the direct source during such company's
last fiscal year in excess of 3% of the gross revenues which such
company received from the sale of its products and services during
such fiscal year.
(v) Ford Credit or any of its subsidiaries and affiliates
shall be deemed a "significant supplier" of a company if Ford Credit
and any of its Affiliates collectively received in such company's
fiscal year payments from such company in excess of 3% of the gross
revenues which such company received during such fiscal year for the
sale of its products and services.
(vi) A Person shall be deemed to have "significant
personal services contract(s) with Ford Credit or any of its
Affiliates" if the fees and
15
other compensation received by the person pursuant to personal
services contract(s) with Ford Credit and any of its Affiliates
exceeded or would exceed 3% of his or her gross revenues during the
last calendar year.
(vii) A tax-exempt entity shall be deemed to receive
"significant contributions from Ford Credit or any of its Affiliates"
if such tax-exempt entity received during its last fiscal year, or
expects to receive during its current fiscal year, contributions from
Ford Credit or its Affiliates in excess of the lesser of (i) 3% of the
consolidated gross revenues of Ford Credit and its Affiliates during
such fiscal year and (ii) 1% of the contributions received by the
tax-exempt entity during such fiscal year.
(viii) A person shall be deemed to be a "major creditor of
Ford Credit or any of its Affiliates" if it is a financial institution
which Ford Credit or such Affiliate owes outstanding indebtedness for
borrowed money in a sum exceeding more than 5% of Ford Credit's total
consolidated assets.
(c) Notwithstanding any other provision of this Agreement and
any provision of law that otherwise so empowers the Company, the Member, the
Board of Managers or any Person on behalf of the Company, neither the Company,
the Member, the Board of Managers nor any other Person on behalf of the Company
shall, without the affirmative vote or written consent of 100% of the members of
the Board of Managers (including two Independent Managers), do any of the
following:
(i) amend Section 2.4 to permit the Company to engage in
any business or activity other than those set forth in Section 2.4
prior to any such amendment;
(ii) engage in any business or activity other than those
set forth in Section 2.4;
(iii) to the fullest extent permitted by law, dissolve or
liquidate, in whole or in part, consolidate or merge with or into any
other entity or convey or transfer the Company's properties and assets
substantially as an entirety to any entity; or
(iv) institute proceedings to be adjudicated bankrupt or
insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against the Company or file a petition seeking, or consent
to, reorganization or relief
16
under any applicable federal or state law relating to bankruptcy, or
consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or a
substantial part of the Company's property, or make any assignment for
the benefit of creditors, or admit in writing the Company's inability
to pay the Company's debts generally as they become due, or take
corporate action in furtherance of any such action.
(d) Meetings of the Board of Managers may be conducted in
person or by conference telephone facilities. Any action required or permitted
to be taken at any meeting of the Board of Managers may be taken without a
meeting and without prior notice if such number of Managers sufficient to
approve such action pursuant to the terms of this Agreement consent thereto in
writing.
Section 4.4 Power to Bind Company. Notwithstanding the last
sentence of Section 18-402 of the Act, only the Managers and authorized officers
of the Company (acting in their capacity as such) shall have authority to bind
the Company to any third party with respect to any matter.
Section 4.5 Restrictions on the Power of the Managers. The
Board of Managers shall not have the authority to:
(a) cause the Company to do any acts in violation of or in
breach of any Basic Document or any other agreement entered into by the Company;
(b) take any action in contravention of the Act, the
Certificate of Formation or this Agreement (each as may be amended);
(c) to the fullest extent permitted by law, take any action
that would make it impossible to carry on the ordinary business of the Company;
(d) admit any Person as a member of the Company;
(e) knowingly perform any act that would subject the Member
to loss of limited liability in any jurisdiction; or
(f) except as permitted under Section 8.2, take any action to
amend or modify the Certificate of Formation or this Agreement.
17
Section 4.6 Duties and Obligations of the Managers.
(a) Subject to Section 4.3(c)(iii), as long as any Securities
are outstanding, the Board of Managers shall take all action that may be
necessary or appropriate for the continuation of the Company's valid existence
as a limited liability company under the laws of the State of Delaware (and each
other jurisdiction in which such existence is necessary to protect the limited
liability of the Member or to enable the Company to conduct the business in
which it is engaged).
(b) Each Manager shall devote to the Company such time as he
shall deem necessary to conduct the Company's business and affairs in an
appropriate manner.
(c) The Board of Managers shall use their best efforts, in
the conduct of the Company's activities and business, to put all Persons with
whom the Company deals on notice that the Member is not liable for the Company's
obligations and all agreements to which the Company is a party shall include a
statement to the effect that the Company is a limited liability company formed
under the Act; provided, however, the failure to include such a statement in an
agreement to which the Company is a party shall not affect the Company's power
and authority or authorization to enter into such agreement.
(d) The Board of Managers shall prepare or cause to be
prepared and shall file or cause to be filed on or before the due date (or any
extension thereof) any federal, state or local tax returns required to be filed
by the Company. The Board of Managers shall cause the Company to pay any taxes
payable by the Company; provided, however, that the Managers shall not be
required to cause the Company to pay any tax so long as the Company is
contesting in good faith and by appropriate legal proceedings the validity,
applicability or amount thereof and such contest does not materially endanger
any right or interest of the Company.
(e) The Board of Managers shall, from time to time, submit,
or cause to be submitted, to any appropriate state securities administrator all
documents, papers, statistics and reports required to be filed with or submitted
to such state securities administrator.
(f) The Board of Managers shall use their best efforts to
cause the Company to be formed, reformed, or qualified to engage in investment
activities in connection with Permitted Transactions, or be registered under any
applicable assumed or fictitious name statute or similar law in any state in
which the Company then makes investments or transacts business, if such
formation, reformation, qualification or registration
18
is necessary or desirable in order to protect the limited liability of the
Member or to permit the Company lawfully to own or make investments or transact
business.
Section 4.7 Resignation. Any Manager may resign at any time
upon written notice of resignation to the Member. Any resignation shall be
effective immediately unless a date certain is specified for it to take effect,
in which event it shall be effective upon such date, and acceptance of any
resignation shall not be necessary to make it effective, irrespective of whether
the resignation is tendered subject to such acceptance.
Section 4.8 Removal of Managers. Any Manager may be removed,
either for or without cause, by the Member, provided that if there are fewer
than two Independent Managers after such removal, such Manager shall be replaced
by an Independent Manager.
Section 4.9 Filling of Vacancies. In the case of any increase
in the number of Managers, or of any vacancy in the Board of Managers, the
additional Manager shall be appointed by the Member.
Section 4.10 Managers' Compensation. Any or all Managers may
receive such reasonable compensation for their services, whether in the form of
salary or otherwise, with expenses, if any, as the Board of Managers and the
Member may from time to time determine.
Section 4.11 Officers. (a) The Board of Managers, by a simple
majority, may from time to time appoint authorized officers of the Company who
may, on behalf of the Company, execute agreements to which the Company is a
party and any document or certificate to be delivered in connection herewith or
pursuant hereto.
(b) Each authorized officer shall have the right and
authority to take all actions specifically enumerated in the Certificate of
Formation or this Agreement which may be taken by the Company or which the
authorized officer otherwise deems necessary, useful or appropriate for the
day-to-day management and conduct of the Company's business. All instruments,
contracts, agreements and documents providing for the acquisition, mortgage or
disposition of property of the Company shall be valid and binding on the Company
only if executed by an authorized officer of the Company.
Section 4.12 Duties of Managers and Officers. Except to the
extent otherwise provided herein, each Manager and officer of the Company shall
have a fiduciary
19
duty of loyalty and care similar to that of directors and officers of for profit
business organizations organized under the General Corporate Law of the State of
Delaware.
ARTICLE V
CAPITAL STRUCTURE AND CONTRIBUTIONS
Section 5.1 Capital Structure. Simultaneously with the execution
and delivery of this Agreement, Ford Credit shall be admitted as the sole member
of the Company with an interest of 100% in the Company (as such percentage may
change from time to time, a "Percentage Interest").
Section 5.2 Capital Contributions. From time to time, the Board
of Managers may determine that the Company requires capital and may request the
Member to make capital contributions in an amount determined by the Board of
Managers. The Member may, but is not required, to make such additional capital
contributions as it may determine in its sole discretion. 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 VI
PROFITS AND LOSSES; DISTRIBUTIONS
Section 6.1 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 Board of Managers.
In each year, profits and losses shall be allocated entirely to the Member.
Section 6.2 Distributions. From time to time, the Board of
Managers shall cause the Company to distribute any cash held by it which is
neither reasonably necessary for the operation of the Company or the performance
of its obligations under the Basic Documents nor in violation of Sections 18-607
or 18-804 of the Act or in connection with any Permitted Transactions. The
distributions of the Company shall be allocated entirely to the Member.
20
ARTICLE VII
EXCULPATION; LIABILITIES: INDEMNIFICATION
Section 7.1 Exculpation. Notwithstanding any other provisions of
this Agreement, whether express or implied, or obligation or duty at law or in
equity, none of the Member, the Managers, or any officers, directors,
stockholders, partners, employees, representatives or agents of any of the
foregoing, nor any officer, employee, representative or agent of the Company or
any of its Affiliates shall be liable to the Company or any other Person for any
act or omission (in relation to the Company, this Agreement, any related
document or any transaction contemplated hereby or thereby) taken or omitted by
such Person bound by this Agreement in the reasonable belief that such act or
omission is in or not contrary to the best interests of the Company and is
within the scope of authority granted to such Person by the Agreement, provided
such act or omission does not constitute fraud, willful misconduct, bad faith,
or gross negligence.
Section 7.2 Liabilities: Indemnification. (a) Subject to Section
7.2(f), any Person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was a Member, Manager, officer, employee, agent or legal representative of the
Company (each, an "Indemnified Party"), shall be indemnified and held harmless
by the Company to the fullest extent legally permissible against all expenses,
claims, damages, liabilities and losses (including without limitation,
judgments, interest on judgments, fines, charges, costs, amounts paid in
settlement, expenses and attorneys' fees incurred in investigating, preparing or
defending any action, claim suit, inquiry, proceeding, investigation or any
appeal taken from the foregoing by or before any court or governmental,
administrative or other regulatory agency, body or commission), whether pending
or merely threatened, whether or not any Indemnified Party is or may be a party
thereto, including interest on any of the foregoing (collectively, "Damages")
arising out of, or in connection with, the management or conduct of the business
and affairs of the Company, except for any such Damages to the extent that they
are found by a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Indemnified Parties or willful
violations of the express provisions hereof by the Indemnified Parties. The
Indemnified Parties may consult with counsel and accountants with respect to the
affairs of the Company and shall be fully protected and justified, to the extent
allowed by law, in acting, or failing to act, if such action or failure to act
is in accordance with the advice or opinion of such counsel or accountants.
(b) The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not,
21
of itself, create a presumption that the Person seeking indemnification did not
act in good faith and in a manner which such Person reasonably believed to be in
or not opposed to the best interest of the Company or its creditors, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that such Person's conduct was unlawful. Entry of a judgment by consent as part
of a settlement shall not be deemed a final adjudication of liability for
negligence or misconduct in the performance of duty, nor of any other issue or
matter.
(c) Subject to Section 7.2(f), expenses (including attorneys'
fees and disbursements) incurred by an Indemnified Party in defending any civil,
criminal, administrative or investigative action, suit or proceeding may be paid
by the Company in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Managers in the specific case upon
receipt of an undertaking by or on behalf of such Indemnified Party to repay
such amount unless it shall ultimately be determined that such Person is
entitled to be indemnified by the Company. Expenses (including attorneys' fees
and disbursements) incurred by other employees or agents of the Company in
defending in any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the Company upon such terms and conditions, if any,
as the Board of Managers deems appropriate.
(d) No Manager of the Company shall be personally liable to the
Company for monetary damages for any breach of fiduciary duty by such person as
a Manager. Notwithstanding the foregoing sentence, a Manager shall be liable to
the extent provided by applicable law (i) for breach of the Manager's duty of
loyalty to the Company or the Member, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law or
(iii) for any transaction from which the Manager derived an improper personal
benefit.
(e) The indemnification and advancement of expenses provided by
this Section 7.2 shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement may by entitled under any
agreement, vote of the Board of Managers or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office, and shall continue as to a Person who has ceased to be a Manager,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such Person.
(f) Any amounts payable by the Company in accordance with this
Section 7.2 shall be payable solely to the extent of funds available therefor
and actually received by the Company under the Basic Documents, from capital
contributions or in
22
connection with other Permitted Transactions. The Company's obligations under
this Section 7.2 shall not constitute a claim against the Company to the extent
that the Company does not have funds sufficient to make payment of such
obligations. Any claim that an Indemnified Party may have at any time against
the Company that it may seek to enforce hereunder shall be subordinate to the
payment in full, including post-petition interest, in the event that the Company
becomes a debtor or debtor in possession in a case under any applicable federal
or state bankruptcy, insolvency or other similar law now or hereafter in effect
or otherwise subject to any insolvency, reorganization, liquidation,
rehabilitation or other similar proceedings, of the claims of the holders of any
Securities which are collateralized or secured by the assets of the Company.
Section 7.3 Amendments: Indemnification. The indemnities
contained in Section 7.2 shall survive the resignation, removal or termination
of any Indemnified Party or the termination of this Agreement. Any repeal or
modification of this Article VII shall not adversely affect any rights of such
Indemnified Party pursuant to this Article VII, including the right to
indemnification and to the advancement of expenses of an Indemnified Party
existing at the time of such repeal or modifications with respect to any acts or
omissions occurring prior to such repeal or modification.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Dissolution of the Company.
(a) The Company shall be dissolved upon any of the following
events:
(i) the termination of the legal existence of the last
remaining member of the Company or the occurrence of any other event
which terminates the continued membership of the last remaining member
of the Company in the Company unless the business of the Company is
continued in a manner permitted by this Agreement or the Act; or
(ii) the entry of a decree of judicial dissolution under the
Act.
(b) Upon the occurrence of any event that causes the last
remaining member of the Company to cease to be a member of the Company, to the
fullest extent permitted by law, the personal representative of such member is
hereby authorized to, and shall, within 90 days after the occurrence of the
event that terminated the continued membership of such member in the Company,
agree in writing (i) to continue the Company and (ii) to the admission of the
personal representative or its nominee or designee, as the
23
case may be, as a substitute member of the Company, effective as of the
occurrence of the event that terminated the continued membership of the last
remaining member of the Company in the Company.
(c) Notwithstanding any provision to the contrary contained in
this Agreement, an Insolvency Event with respect to the Member or a Special
Member shall not cause the Member or Special Member, respectively, to cease to
be a member of the Company and upon the occurrence of such an event, the
business of the Company shall continue without dissolution.
(d) Notwithstanding any provision to the contrary contained in
this Agreement, each of the Member and the Special Members waives any right it
might have to agree in writing to dissolve the Company upon an Insolvency Event
with respect to the Member or a Special Member, or the occurrence of an event
that causes the Member or a Special Member to cease to be a member of the
Company.
Section 8.2 Amendments. Except as provided in Section 4.6(f) with
respect to amendments required by law, this Agreement and the Certificate of
Formation may be amended only in writing by the Member existing at the time of
this Agreement, provided that, if any Securities issued by any Trusts are
outstanding, no such amendment shall be effective without satisfaction of the
Rating Agency Condition; provided, further, that the provisions of Section
4.3(b) and 4.3(c) hereof may be amended only with the unanimous written consent
of 100% of the Board of Managers including the Independent Managers. 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.
Section 8.3 Assignments; Additional Members.
(a) The Member may sell, assign or transfer in whole but not in
part its Percentage Interest without the consent of the Board of Managers or any
other Person; provided, however, that for so long as any Securities issued by
any Trusts are outstanding, the Member shall not sell, assign or transfer its
Percentage Interest unless the Rating Agency Condition is satisfied. Upon the
assignment by the Member of all of its limited liability company interest in the
Company pursuant to this Section 8.3(a), the assignee shall be admitted to the
Company as a member of the Company upon its execution of an instrument
signifying its agreement to be bound by the terms and conditions of this
Agreement, which instrument may be a counterpart signature page to this
Agreement. Such admission shall be deemed effective immediately prior to the
assignment and, immediately following such admission, the assignor Member shall
cease to be a member of the Company.
24
Notwithstanding anything in this Agreement to the contrary, any
successor to the Member by merger or consolidation in compliance with the Basic
Documents and this Agreement shall, without any further act, be the Member
hereunder, and such merger or consolidation shall not constitute an assignment
for purposes of this Agreement and the Company shall continue without
dissolution.
(b) So long as any Securities issued by any Trusts or by the
Company are outstanding, the Member may not resign, except as permitted under
the Basic Documents and if the Rating Agency Condition is satisfied. If the
Member is permitted to resign pursuant to this Section 8.3(b), an additional
member of the Company shall be admitted to the Company with the consent of the
resigning Member, upon its execution of an instrument signifying its agreement
to be bound by the terms and conditions of this Agreement, which instrument may
be a counterpart signature page to this Agreement. Such admission shall be
deemed effective immediately prior to the resignation and, immediately following
such admission, the resigning Member shall cease to be a member of the Company.
(c) One or more additional members of the Company may be admitted
to the Company with the written consent of the Member; provided, however, that,
notwithstanding the foregoing, so long as any Securities issued by any Trusts
are outstanding, no additional Member may be admitted to the Company unless the
Rating Agency Condition is satisfied.
Section 8.4 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 8.5 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Member
and its successors and permitted assigns, all as herein provided.
Section 8.6 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.
Section 8.7 Waiver of Partition; Nature of Interest. Except as
otherwise expressly provided in this Agreement, to the fullest extent permitted
by law, each of the
25
Member and the Special Members hereby irrevocably waives any right or power that
such Person might have to cause the Company or any of its assets to be
partitioned, to cause the appointment of a receiver for all or any portion of
the assets of the Company, to compel any sale of all or any portion of the
assets of the Company pursuant to any applicable law or to file a complaint or
to institute any proceeding at law or in equity to cause the dissolution,
liquidation, winding up or termination of the Company. The Member shall not have
any interest in any specific assets of the Company, and the Member shall not
have the status of a creditor with respect to any distribution pursuant to
Section 6.2 hereof. The interest of the Member in the Company is personal
property.
Section 8.8 Benefits of Agreement; No Third-Party Rights. None of
the provisions of this Agreement (including Section 5.2) shall be for the
benefit of or enforceable by any creditor of the Company or by any creditor of
the Member or a Special Member. Nothing in this Agreement shall be deemed to
create any right in any Person (other than the Indemnified Parties) not a party
hereto, and this Agreement shall not be construed in any respect to be a
contract in whole or in part for the benefit of any third Person (except as
provided in Section 8.9).
Section 8.9 Binding Agreement. Notwithstanding any other
provision of this Agreement, the Member agrees that this Agreement, including,
without limitation, Sections 2.4, 2.5 and 4.3, constitutes a legal, valid and
binding agreement of the Member, and is enforceable against the Member by the
Independent Managers, in accordance with its terms. In addition, the Independent
Managers shall be intended beneficiaries of this Agreement.
Section 8.10 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 8.11 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
Section 8.12 Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall be an original, but all of
which together shall constitute but one and the same agreement.
26
IN WITNESS WHEREOF, the undersigned Member and the Independent
Managers have duly executed this Agreement as of the 1st day of March, 2001.
FORD CREDIT AUTO RECEIVABLES TWO LLC
By: FORD MOTOR CREDIT COMPANY,
as Member
By: /s/ Xxxxx Xxxxx-Xxxxxxx
--------------------------
Name: Xxxxx Xxxxx-Xxxxxxx
Title: Assistant Secretary
INDEPENDENT MANAGERS
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
As Independent Manager
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
As Independent Manager
EXHIBIT A
AMENDED CERTIFICATE OF FORMATION
OF
FORD CREDIT AUTO RECEIVABLES TWO LLC
This Amended Certificate of Formation of Ford Credit Auto
Receivables Two LLC (the "Company") dated as of March 1, 2001, has been duly
executed and is being filed by the undersigned authorized person to amend the
Certificate of Formation of the Company (the "Certificate"), which was filed on
January 29, 2001, with the Secretary of State of the State of Delaware, as
permitted by 6 Del.C. ss. 18-211(b).
The Certificate is hereby amended to delete the notice provision of
the Company relating to the series of limited liability company interests in the
Company and to correct an ambiguity in the signature block of the authorized
person of the Company.
The Certificate is hereby amended in its entirety as follows:
A-1
CERTIFICATE OF FORMATION
OF
FORD CREDIT AUTO RECEIVABLES TWO LLC
1. The name of the limited liability company is Ford Credit Auto
Receivables Two LLC (the "Company").
2. The address of the registered office of the Company in the
State of Delaware is c/o The Corporation Trust Company, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
3. The name and address of the registered agent for service of
process on the Company in the State of Delaware is The Corporation Trust
Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
IN WITNESS WHEREOF, the undersigned has executed this Certificate
of Formation of Ford Credit Auto Receivables Two LLC on this 1st day of March,
2001.
Xxxx Xxxxxxx
Authorized Person
A-2
