Limited Liability Company Agreement Of Sparks Finance LLC
Exhibit 3.12
Agreement
Of
Sparks Finance LLC
Sparks Finance LLC
This Limited Liability Company Agreement is entered into as of August 27, 2007, by Swift
Transportation Co., Inc., an Arizona corporation (the “Member”) as the sole member of Sparks
Finance LLC (the “Company”). The Member desires to form a limited liability company pursuant to
the Limited Liability Company laws of the State of Delaware upon the following terms and
conditions:
ARTICLE 1
The
name of the company is Sparks Finance, LLC. Its principal place of business is 0000 Xxxxx
00xx Xxxxxx, Xxxxxxx, XX 00000.
ARTICLE 2
Business,
Purpose, and Term of Company
Section 2.1
Purpose. The purpose of the Company is to engage in any lawful act or activity for
which a Limited Liability Company may be organized.
Section 2.2 Term of Company; Certificate of Formation. The term of the Company shall commence
on the date the Certificate of Formation is filed with the Secretary of State of Delaware in
accordance with the provisions of the Act and shall continue on a perpetual basis unless dissolved
pursuant to Article 7 of this Agreement.
Section 2.3 Delaware Registered Offices and Agent for Service of Process. The Company shall
maintain a Delaware registered office and agent for service of process as required by the Act. If
the registered agent ceases to act as such for any reason or the registered office shall change,
then the Member may designate a replacement registered agent or file a notice of change of address
of the registered office.
Section 2.4 Sole Member. The Company shall at all times be and remain a single member limited
liability company, and it shall not have more than one Member at any time; nor shall the Member be
entitled to divide or subdivide the Membership Interest in any manner
whatsoever.
ARTICLE 3
Capital contributions; Issuance of Membership Units
Section 3.1
Capital Contribution by Member. On or before the date of this Agreement, the
Member shall have committed to the Company to provide certain capital
contributions as specifically set forth on Exhibit B, Except as specifically set forth in Section
3.1, the Member is not obligated to make any Capital Contributions to the Company.
Section 3.2
Capital Accounts. A Capital Account shall be maintained for the Member to which
shall be credited (i) the Member’s Capital Contributions
and (ii) all Company revenues.
The Capital Account shall be debited with (A) all costs, expenses, and losses of the
Company and (B) the amount of any distributions (including return of capital) made to the Member.
No interest shall be paid on the Member’s Capital Account.
Section 3.3 Issuance of Membership Units. Upon receipt from the Member of the Capital
Contribution as set forth in Section 3.1 above, the Company shall issue 1,000 membership units to
the Member. The Membership Interest shall be evidenced by a Certificate of Membership Interest
issued by the Company, in the form set forth as Exhibit C hereto. No other Membership Interest or
units thereof shall be issued without the prior written consent of the Member.
ARTICLE 4
Income, Deductions and Distributions
Section 4.1 Income. All items of income, gain, loss, deduction and credit of the Company
(including, without limitation, items not subject to federal or state
income tax) shall be treated
for federal and state income tax purposes as items of income, gain, loss, deduction and credit of
the Member.
Section 4.2 Allocation of Distributions. To the fullest extent permitted by law, all
distributions of cash or other assets of the Company shall be made to the Member when and as
determined by the Member.
ARTICLE 5
Management of the Company
Section 5.1 General. The Member shall be the Managing Member and shall be responsible
for the management of the Company. The Managing Member shall have the right, power and authority to
manage, direct and control all of the business and affairs of the Company, to transact business on
behalf of the Company, to sign for the Company or on behalf of the Company or otherwise to bind the
Company.
ARTICLE 6
Managing Member
Section 6.1
Delegation of Powers of Managing Member. The Managing Member shall have full,
exclusive, and complete discretion, power, and authority, subject in
all cases to the other
provisions of this Agreement and the requirements of applicable law, to delegate the management,
control, administration, and operation of the business and affairs of the Company or the custody of
the Company’s assets for all purposes stated in this Agreement. Such delegation shall be as
provided in such documentation as the Managing Member shall determine.
Any such
delegation shall not cause the Managing Member to cease to be the Managing Member.
Section 6.2 Officers. The Managing Member may appoint individuals with or without such titles
as it may elect, including the titles of President, Vice President, Treasurer, and Secretary, to
act on behalf of the Company with such power and authority as the Managing Member may delegate in
writing to any such persons.
Section 6.3 Powers of Managing Member. The Managing Member shall have the right, power and
authority, in the management of the business and affairs of the Company, to do or cause to be done
any and all acts deemed by the Managing Member to be necessary or appropriate to effectuate the
business, purposes and objectives of the Company at the expense of the Company, including but not
limited to the execution of all documents or instruments in all matters necessary, desirable,
convenient or incidental to the purpose of the Company or the making of investments of Company
funds.
Section 6.4 Reliance by Third Parties. Any person or entity dealing with the Company may
rely on a certificate signed by the Managing Member as to:
(a) the identity of the Managing Member;
(b) the existence or non-existence of any fact or facts which constitute a condition precedent
to acts by the Managing Member or are in any matter germane to the affairs of the Company;
(c) the persons who or entities which are authorized to execute and deliver any instrument or
document of or on behalf of the Company; or
(d) any act or failure to act by the Company or as to any other matter whatsoever
involving the Company.
ARTICLE 7
Dissolution
Section 7.1 Required Dissolution. The Company shall be dissolved, and shall wind up its
affairs, upon the first to occur of the following;
(a) the determination by the Member to dissolve the Company;
(b) 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 Company is continued without dissolution in a
manner permitted by this Agreement or the Act; or
(c) the entry of a decree of judicial dissolution pursuant to Section 18-802 of the Act.
Section 7.2 Permitted Dissolution. The Company may be dissolved by the Member in its
discretion.
ARTICLE 8
Limitations on Dissolution
Section
8.1 Limitations on Dissolution. Notwithstanding any other provision of this
Agreement, the bankruptcy (as defined in the Act) of the Member shall
not cause the Member to cease
to be a member of the Company and upon the occurrence of such an event, the Company shall continue
without dissolution.
ARTICLE 9
Governing Law
Section 9.1 Governing Law. This Agreement, including its existence, validity, construction and
operating effect, and the rights of each of the parties hereto, shall be governed by and construed
in accordance with the laws of the State of Delaware.
ARTICLE 10
Indemnification and Fiduciary Duties
Section 10.1 Exemption from Liability. To the maximum extent permitted by applicable law, the
Managing Member shall not be liable to the Company or any other third party (i) for mistakes of
judgment, (ii) for any act or omission suffered or taken by it, or (iii) for losses due to any such
mistakes, action or inaction.
Section 10.2
Indemnification. Except as may be restricted by applicable law, the Managing
Member shall not be liable for and the Company shall indemnify the Managing Member against, and
agrees to hold the Managing Member harmless from, all liabilities and claims (including reasonable
attorney’s fees and expenses in defending against such liabilities and claims) against the Managing
Member, arising from the Managing Member’s performance of its duties in conformance with the terms
of this Agreement.
Section 10.3
Reliance of Experts. The Managing Member may consult with legal counsel or
accountants selected by the Managing Member and, to the maximum extent permitted by applicable law,
any action or omission suffered or taken in good faith in reliance and in accordance with the
written opinion or advice of any such counsel or accountants (provided such counsel or accountants
have been selected with reasonable care) shall be fully protected and
justified with respect to the
action or omission so suffered or taken.
Section 10.4 Insurance. The Company shall have the power to purchase insurance on behalf of
any person who is or was a Member or agent of the Company against any such claims, demands, losses,
damages, liabilities or expenses incurred by such person in such capacity or arising out of such
persons’ status as a Member or agent of the Company, whether or not the Company would have the
power to indemnify such person under the provisions of
Section 10.2 or under applicable law.
Section 10.5 Other Activities. The Member may engage in activities outside of the Company,
including activities that complete with the Company and the Member shall have no duty to make any
report or accounting to the Company. The Member shall devote whatever time, effort and skill as
such Member, in its discretion, deems appropriate for the operation of the Company.
Section 10.6 Fiduciary Duties. The fiduciary duties of the Member to the Company are hereby
eliminated except to the limited extent expressly provided in this Agreement.
ARTICLE 11
Winding Up and Distribution of Assets
Section 11.1 Winding Up. If the Company is dissolved, the Member shall wind up the
affairs of the Company.
Section 11.2 Distribution of Assets. Upon the winding up of the Company, subject to
the provisions of the Act, the Member (or, if there is no Member, the personal representative of
the last remaining Member) shall pay or make reasonable provision to pay all claims and obligations
of the Company, including all costs and expenses of the liquidation and all contingent, conditional
or unmatured claims and obligations that are known to the Member (or, if there is no Member, the
personal representative of the last remaining Member) but for which the identity of the claimant is
unknown. If there are sufficient assets, such claims and obligations shall be paid in full and any
such provision shall be made in full. If there are insufficient assets, such claims and
obligations shall be paid or provided for according to their priority and, among claims and
obligations of equal priority, ratably to the extent of assets available therefore. Any remaining
assets shall be distributed to the Member.
Section 11.3
Termination. The Company shall terminate when (i) all of the assets of
the Company, after payment of or due provision for all debts,
liabilities and obligations of the
Company shall have been distributed to the Member in the manner provided for in this Agreement and
(11) the Certificate of Formation shall have been canceled in the manner required by the
Act.
Section 11.4 Disregarded Entity. The company is being formed as, and shall remain, a
single member limited liability company. So long as there is only one Member, the Company shall be
treated as a disregarded entity for federal and state income tax purposes under Section 7701
of the Code, (the Treasury Regulations thereunder, and applicable state law, and neither the
Company or the Member, shall take any action or make any election which is inconsistent with such
tax treatment. Anything to the contrary herein notwithstanding, the Company shall not, whether by
taking or failing to take any voluntary act, by authorizing or permitting another Person or
governmental entity to take or fail to take any voluntary act, or by failing to oppose any
attempted act by any other Person or governmental entity, either (a) elect to classify the Company
as a corporation for tax purposes or (b) otherwise change its status, for tax purposes, in any way
whatsoever from that of a disregarded entity.
ARTICLE 12
Definitions
As
used herein, the following terms shall have the indicated definitions.
12.1 “Act” means the Delaware Limited Liability Company Act, 6 Del. C. Section 18-101 et
seq., as may be amended from time to time. .
12.2 “Affiliate” means a person or entity that directly or indirectly (through one or more
intermediaries) controls, or is controlled by, or is under common control with, the person or
entity specified; for purposes hereof, the term “control” shall include, without limitation, (i)
the ownership or control of power to vote ten percent (10%) or more of the outstanding equity
interests of any such entity, directly or indirectly, (ii) the
control in any manner over the election of more than one director or trustee (or persons exercising similar functions) of such
entity, or (iii) the possession, direct or indirect, of the power to direct or cause the direction
of the management and/or policies of such entity, whether through the ownership of voting
securities, by contract, or otherwise.
12.3 “Agreement” means this Limited Liability Company Agreement, as may be amended from time
to time.
12.4 “Capital Account” means a separate accounting maintained with respect to the Member
pursuant to Section 3.3 of this Agreement.
12.5 “Capital Contribution” means the contribution by the Member to capital of the Company.
12.6 “Certificate of Formation” means the Certificate of Formation of the Company as filed
with the Delaware Secretary of State on August 27, 2007, as the same may be amended from time to
time.
| 12.7 | “Company” means Sparks Finance LLC, a Delaware limited liability company. |
| 12.8 | “Managing Member” means the Member. |
12.9 “Member” means Swift Transportation Co., Inc., an Arizona corporation, and any person or
entity subsequently admitted as the member of the Company in accordance with the terms of this
Agreement.
12.10
“Membership Interest” means the limited liability company interest of the Member in the
Company, including any and all rights, powers, benefits, duties or obligations conferred or imposed
on the Member under the Act or this Agreement.
12.11 “Person” means any individual, corporation, limited liability company, partnership,
joint venture, trust, estate, sole proprietor, association, or similar entity or group.
IN WITNESS WHEREOF, the Member has executed and delivered this Limited Liability Company Agreement
the day and year first above written.
| MEMBER: | ||||||
| Swift Transportation
Co., Inc. an Arizona corporation |
||||||
| By: | /s/ Xxxxx Xxxxx | |||||
| Name: | Xxxxx Xxxxx | |||||
| Its: | Chief Executive Officer | |||||
