Exhibit 3.2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
of
FORD CREDIT AUTO RECEIVABLES LLC
(a Delaware Limited Liability Company)
by
FORD MOTOR CREDIT COMPANY,
as Member
dated as of June 26, 2001
Table of Contents
Page
----
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.....................................................................................1
ARTICLE II
ORGANIZATION
Section 2.1 Name, Location of Office........................................................................4
Section 2.2 Registered Office in Delaware...................................................................4
Section 2.3 Registered Agent................................................................................4
Section 2.4 Purposes and Powers.............................................................................4
Section 2.5 Conduct of Business.............................................................................5
Section 2.6 Tax Reporting and Characterization..............................................................8
Section 2.7 Term............................................................................................8
ARTICLE III
THE MEMBER
Section 3.1 The Member......................................................................................9
Section 3.2 Powers of Member................................................................................9
Section 3.3 Limited Liability of the Member.................................................................9
ARTICLE IV
MANAGEMENT OF THE COMPANY; THE BOARD OF MANAGERS; OFFICERS
Section 4.1 General Management of the Company...............................................................9
Section 4.2 Appointment and Term............................................................................9
Section 4.3 Number; Independent Managers....................................................................9
Section 4.4 Power to Bind Company..........................................................................12
Section 4.5 Restrictions on the Power of the Managers......................................................12
Section 4.6 Duties and Obligations of the Managers.........................................................12
Section 4.7 Resignation....................................................................................13
Section 4.8 Removal of Managers............................................................................13
Section 4.9 Filling of Vacancies...........................................................................14
Section 4.10 Managers' Compensation.........................................................................14
Section 4.11 Officers.......................................................................................14
ARTICLE V
THE SERIES
Section 5.1 Series.........................................................................................14
Section 5.2 Series Designation Certificates. ..............................................................15
ARTICLE VI
CAPITAL STRUCTURE AND CONTRIBUTIONS
Section 6.1 Capital Structure..............................................................................15
Section 6.2 Capital Contributions..........................................................................15
ARTICLE VII
PROFITS AND LOSSES; DISTRIBUTIONS
Section 7.1 Profits and Losses.............................................................................16
Section 7.2 Distributions..................................................................................16
ARTICLE VIII
EXCULPATION; LIABILITIES: INDEMNIFICATION
Section 8.1 Exculpation....................................................................................16
Section 8.2 Liabilities: Indemnification...................................................................16
Section 8.3 Amendments: Indemnification....................................................................18
ARTICLE IX
MISCELLANEOUS
Section 9.1 Bankruptcy of the Member.......................................................................18
Section 9.2 Amendments.....................................................................................18
Section 9.3 Assignments....................................................................................18
Section 9.4 Single Member..................................................................................18
Section 9.5 Admission of New Member........................................................................19
Section 9.6 Severability...................................................................................19
Section 9.7 Successors and Assigns.........................................................................19
Section 9.8 Limited Liability Company......................................................................19
Section 9.9 Headings.......................................................................................19
Section 9.10 Governing Law..................................................................................19
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
FORD CREDIT AUTO RECEIVABLES LLC
(A Delaware Limited Liability Company)
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the
"Agreement") of FORD CREDIT AUTO RECEIVABLES LLC, a Delaware limited liability
company (the "Company"), dated as of this 26th day of June, 2001, by Ford
Motor Credit Company, as the sole member of the Company (the "Member").
RECITALS
A. The Member formed the Company as a limited liability company
under the laws of Delaware pursuant to a Certificate of Formation dated as of
August 14, 1997, and filed in the office of the Secretary of State on August
18, 1997, in accordance with the provisions of the Delaware Limited Liability
Company Act, 6 Del. C. xx.xx. 18-101 et seq. (as amended and in effect from
time to time, and any successor statute, the "Act").
B. On September 30, 1997, the Member duly executed the Limited
Liability Agreement (the "Old Agreement") governing the affairs of the Company
and the conduct of its business, which this Agreement amends and restates in
its entirety.
C. Because this Agreement has the effect of amending certain
specified provisions of the Old Agreement, the Board of Managers has
heretofore given its unanimous written consent to the adoption of this
Agreement.
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement, capitalized
terms have the meanings assigned to them herein. All references herein to
"this Agreement" are to this Amended and Restated Limited Liability Company
Agreement, 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" means, 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 correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, means 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" has the meaning set forth in Recital B to this Agreement.
"Basic Documents" means this Agreement, any Transfer and Servicing
Agreement, Indenture, Trust Agreement, Receivables 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.
"Certificates" has the meaning set forth in Section 2.4(d).
"Code" means the Internal Revenue Code of 1986, as amended (or any
successor law).
"Company" has the meaning set forth in the preamble to this
Agreement.
"Company Assets" means, 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" has the meaning set forth in the definition of the term
"Affiliate" above.
"Damages" has the meaning set forth in Section 8.2.
"Fiscal Year" means, unless the Member at any time determines
otherwise pursuant to the requirements of the Code, for each year, the period
commencing on January 1 and ending on December 31.
"Ford Credit" means Ford Motor Credit Company, a Delaware corporation.
"General Series" means the Series to which all the Company Assets
that have not been assigned or allocated to a Specified Series are allocated.
"Indemnified Party" has the meaning set forth in Section 8.2.
"Indenture" has the meaning set forth in Section 8.2.
"Independent Manager" has the meaning set forth in Section 4.3(b).
"Insolvency Event" means, 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.
"Manager" has the meaning set forth in Section 4.2.
"Member" means Ford Motor Credit Company and its successors and
permitted assigns, as herein provided.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Notes" has the meaning set forth in Section 2.4(d).
"Percentage Interest" has the meaning set forth in Section 6.1.
"Permitted Transaction" has the meaning set forth in Section 2.4(h).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
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" means, 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" means, with respect to any action, that
each Rating Agency has been given prior notice thereof and that each of the
Rating Agencies has 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.
"Rating Event" means the earliest to occur of (a) the downgrading of
Ford Credit's short-term unsecured debt to or below (i) A-2 by Standard &
Poor's or (ii) P-2 by Moody's or (b) the downgrading of Ford Credit's senior
long-term debt to or below (i) A- by Standard & Poor's or (ii) A3 by Moody's,
and is deemed to exist only for so long as (x) Ford Credit's short-term
unsecured debt is rated at or below (i) A-2 by Standard & Poor's or (ii) P-2
by Moody's or (y) Ford Credit's senior long-term debt is rated at or below (i)
A- by Standard & Poor's or (ii) A3 by Moody's.
"Receivables" has the meaning set forth in Section 2.4(a).
"Security" has the meaning set forth in Section 2.4(d).
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Series" has the meaning set forth in Section 5.1(a).
"Series Assets" has the meaning set forth in Section 5.1(a).
"Series Designation Certificate" has the meaning set forth in Section
5.1(d).
"Specified Series" has the meaning set forth in Section 5.1.
"Specified Series Assets" means the Company Assets that have been
assigned or allocated to a Specified Series.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc.
"Transfer and Servicing Agreements" has the meaning set forth in
Section 2.4(c).
"Trusts" has the meaning set forth in Section 2.4(c).
ARTICLE II
ORGANIZATION
Section 2.1 Name, Location of Office. The business of the Company will
be carried on under the name "Ford Credit Auto Receivables LLC" with such
variations and changes as the Board of Managers determines or deems necessary
to comply with requirements of the jurisdictions in which the Company's
operations are conducted. The principal place of business of the Company is
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 in the City of
Wilmington, County of New Castle.
Section 2.4 Purposes and Powers. 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:
(a) 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");
(b) 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;
(c) to transfer Receivables to trusts (the "Trusts") pursuant to one
or more transfer and servicing agreements, 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;
(d) 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 by or through the Trusts and secured or collateralized by
the Receivables (or some portion thereof) or by notes or certificates of any
class issued by or through one or more trusts established by Ford Credit, any
Affiliate thereof or any other party, provided that the Company will have no
liability under any such Securities except to the extent of the Receivables or
notes or certificates securing or collateralizing such Securities and provided
further, that each series of debt issued by a Trust will bear its own trustee
fees and servicer fees;
(e) 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;
(f) to hold and enjoy all of the rights and privileges of any
Certificates issued by the Trusts to the Company 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;
(g) 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
(h) 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 the foregoing (such business activities and transactions
specified in this Section 2.4 collectively referred to in this Agreement as
"Permitted Transactions").
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 may not,
without the prior written confirmation of each applicable Rating Agency that
the Rating Agency Condition has been satisfied with respect to such action, 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 has no recourse
to any Company Assets other than the Series Assets to which such
indebtedness or security relates and does not constitute a claim
against the Company if cash flow from the Series Assets securing or
collateralizing such indebtedness or security is insufficient to
repay the debt;
(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 they have no rights in any other Company Assets, including but
not limited to, any other Receivables collateralizing other debt
obligations of the Company or sold or transferred to another trust,
(B) agree 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 are 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, (C) agree that to the
extent such debt holders are deemed to have any interest in any
Company Assets or another Trust dedicated to other debt obligations
of the Company or debt obligations of such other Trust, 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, 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 is not
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
Sections 2.4 and 2.5 of this Agreement; (B) the Rating Agencies and
the trustees under the Basic Documents 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 has occurred and is continuing under any
material agreement to which the Company is a party;
(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 Section 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 must 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 corporate 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 has duly authorized all actions
requiring such authorization and, (z) when required by law or by this
Agreement, the Company has obtained the proper authorization for
action from its Member;
(iv) maintain the Company's books, financial statements,
accounting records and other corporate 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; and ensure that its funds
and other assets are at all times readily distinguishable from the
funds and other assets of its Affiliates, the Member and any of the
Member's Affiliates or any other Person;
(vii) act solely in its corporate 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 will 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 incur 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) operate in such a manner that it would not be substantively
consolidated for purpose of applicable bankruptcy laws with any other
entity;
(xii) have a sufficient number of Managers and any other
authorized agents to manage its operations; and
(xiii) maintain adequate capital in light of its contemplated
business operations.
(c) The Company will abide by all corporate formalities, including
the maintenance of current minute books, and cause its financial statements to
be prepared in accordance with generally accepted accounting principles in a
manner that indicates the separate existence of the Company and its assets and
liabilities. The Company will not assume the liabilities of the Member or any
Affiliate thereof, and will not guarantee the liabilities of the Member or any
Affiliate thereof. The Board of Managers of the Company will 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. Subject to the provisions of Section 4.3(c)(iii)
below, the Company has perpetual existence.
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, Xxxxxxxx 00000
Section 3.2 Powers of Member. The Member (acting in its capacity as
such) has 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,
will be solely the debts, obligations and liabilities of the Company, and the
Member will not be obligated personally for any such debt, obligation or
liability of the Company solely by reason of being a member.
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 will be managed
by a board of managers (the "Board of Managers") which, without limiting the
generality of the foregoing, has 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 is entitled to appoint
from time to time individuals to serve as the managers (each, a "Manager") on
the Board of Managers. Managers serve until their respective successors are
appointed by the Member or until their earlier death, disability, resignation,
retirement or removal.
Section 4.3 Number; Independent Managers.
(a) The number of Managers which constitutes the whole Board of
Managers is not less than three nor more than five. The number may be
increased or reduced from time to time by amendment of this Agreement. As of
the date hereof, the Board of Managers consists of the following five
individuals:
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
(b) The Board of Managers of the Company must include at least two
Managers who are Independent Managers (i) at all times during the existence of
a Rating Event and (ii) at any time an action is taken which requires the
unanimous consent or vote of the Board of Managers pursuant to this Section
4.3(b) or Section 4.3(c) of this Agreement. So long as any Securities are
outstanding, this Section 4.3(b) may not be amended without the prior written
consent of at least 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 are to 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(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; provided, however, that the Board of Managers may delegate
the day-to-day management of the Company to a Person that may or may not be a
Manager. The actions set forth in Section 4.3(c) are the only actions by the
Board of Managers that require the affirmative vote of 100% of the Board of
Managers.
For purposes of this Section 4.3(b) the following terms have the
meanings set forth below:
(i) An "Independent Manager" is 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;
(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; (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;
(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; (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" means 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" means 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 will 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 Affiliates will 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) An individual will be deemed to have "significant personal
services contract(s) with Ford Credit or any of its Affiliates" if
the fees and 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 will 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 will 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 Company may not,
without the affirmative vote of 100% of the members of the Board of 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) dissolve or liquidate, in whole or in part, consolidate
or merge with or into any other entity or convey or transfer its
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 it or file a petition seeking, or consent to,
reorganization or relief 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 its property, or
make any assignment for the benefit of creditors, or admit in
writing its inability to pay its 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
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. None of the Managers (acting in
their capacity as such) has authority to bind the Company to any third party
with respect to any matter unless the Board of Managers has approved such
matter and authorized such Manager(s) to bind the Company with respect
thereto.
Section 4.5 Restrictions on the Power of the Managers. The Board of
Managers does 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) 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 9.2, take any action to amend
or modify the Certificate of Formation or this Agreement.
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 will 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 will devote to the Company such time as he deems
necessary to conduct the Company's business and affairs in an appropriate
manner.
(c) The Board of Managers will 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 are to 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 will not affect the
Company's power and authority or authorization to enter into such agreement.
(d) The Board of Managers will prepare or cause to be prepared and
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 will cause the Company to pay any taxes payable by the
Company; provided, however, that the Managers are not 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 will, 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 will use their best efforts to cause the
Company to be formed, reformed, or qualified to engage in investment
activities, 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 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.
(g) The Board of Managers, as an "authorized person" within the
meaning of the Act will from time to time, prepare and file, or cause to be
prepared and filed, any amendment or restatement to the Certificate of
Formation or this Agreement and other similar documents that are required by
law to be filed and recorded for any reason, in such office or offices as are
required under the laws of the State of Delaware or any other state in which
the Company is then formed or qualified.
Section 4.7 Resignation. Any Manager may resign at any time upon
written notice of resignation to the Member. Any resignation is effective
immediately unless a date certain is specified for it to take effect, in which
event it will be effective upon such date, and acceptance of any resignation
is not 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.
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 will have the right and authority to take
all actions specifically enumerated in the Certificate of Formation or this
Agreement that may be taken by the Company or that 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 will be valid and binding on the Company only if
executed by an authorized officer of the Company.
ARTICLE V
THE SERIES
Section 5.1 Series. (a) Immediately upon the acquisition thereof by
the Company, Company Assets will be allocated to, and identified only with,
one or more specified series under this Agreement (each such series, a
"Series", and the assets allocated to each such Series, "Series Assets"). Each
Series will be a separate series of the Company pursuant to Section 18-215(a)
of the Act. One or more separate Series will be established with respect to
the Receivables and related property that the Company assigns to each Trust
pursuant to the related Transfer and Servicing Agreements (each, a "Specified
Series"). All Company Assets not allocated to a Specified Series, including
any Securities held by the Company, will be allocated to the General Series
unless otherwise directed by the Board of Managers. The Board of Managers will
cause the Company to account for and record separately all Series Assets and
the proceeds thereof allocated to any Series from the Series Assets and the
proceeds thereof allocated to any other Series. The Board of Managers will
cause the Company to maintain separate and distinct records for the Series
Assets related to each Series and to hold and account for the Series Assets
related to each Series separately from the Series Assets related to any other
Series. Except to the extent required by law or specified in this Agreement,
the debts, liabilities and expenses incurred, contracted for or otherwise
existing with respect to any Series will be enforceable against the related
Series Assets, and not against the assets of the General Series or any other
Specified Series, and, except to the extent required by law or specified in
this Agreement, none of the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the Company
generally will be enforceable against any Specified Series Assets.
(b) Every Security, contract and other undertaking issued by or on
behalf of any Series will include a recitation limiting the obligation
represented thereby to the related Series and the related Series Assets. Any
such Security, contract or undertaking, whether secured or unsecured, will
also include an acknowledgment and agreement by the holder thereof to the
effect that any claim that such holder may have at any time against any
Company Assets that are allocated to an unrelated Series, and any claim that
such holder may have at any time against the Company that such holder may seek
to enforce against any Company Assets that are allocated to an unrelated
Series, will, if the Company becomes subject to an Insolvency Event, be
subordinate to the payment in full, including post-petition interest, of the
claims of the holders of any Securities that are related to such unrelated
Series and the holders of any other Securities, contracts or other obligations
that are related to such unrelated Series.
Section 5.2 Series Designation Certificates. (a) The Series to which
any Company Assets are allocated will be specified in a certificate (each, a
"Series Designation Certificate") executed by an authorized Manager or agent.
Each Series Designation Certificate must include the following:
(i) a designation of the Series to which the Company Assets are to
be allocated, in form and substance sufficient to allow the Company
to differentiate between the Series to which the Company Assets are
to be allocated and any other Series;
(ii) the date on which the Company Assets to be allocated to such
Series are to be transferred to the Company and allocated to such
Series; and
(iii) a list of the Company Assets to be allocated to the Series,
identifying the Company Assets in such a manner as may be reasonably
required by the Company to differentiate between such Company Assets
allocated to such Series and any other Company Assets.
ARTICLE VI
CAPITAL STRUCTURE AND CONTRIBUTIONS
Section 6.1 Capital Structure. Ford Credit has heretofore been
admitted as the sole member of the Company with an interest of 100% (as such
percentage may change from time to time, a "Percentage Interest").
Section 6.2 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. A capital account is maintained for the Member, to which
contributions and profits are credited and against which distributions and
losses are charged.
ARTICLE VII
PROFITS AND LOSSES; DISTRIBUTIONS
Section 7.1 Profits and Losses. For financial accounting and tax
purposes, the Company's net profits or net losses are determined on an annual
basis in accordance with the manner determined by the Board of Managers. In
each year, profits and losses will be allocated entirely to the Member.
Section 7.2 Distributions. At the time determined by a majority of the
Managers, the Managers will cause the Company to distribute any cash held by
it which is not (i) reasonably necessary for the operation of the Company or
the performance of its obligations under the Basic Documents or in connection
with any Permitted Transactions and (ii) in violation of Section 18-607 or
Section 18-804 of the Act. The distributions of the Company will be allocated
entirely to the Member.
ARTICLE VIII
EXCULPATION; LIABILITIES: INDEMNIFICATION
Section 8.1 Exculpation. Notwithstanding any other provisions of this
Agreement, whether express or implied, or any obligation or duty at law or in
equity, none of the Member, the Managers, or any officers, directors,
stockholders, partners, employees, representatives or agents of any of the
foregoing, or any officer, employee, representative or agent of the Company or
any of its Affiliates will 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 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 8.2 Liabilities: Indemnification. (a) Subject to Section
8.2(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"), will 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 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 will 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, will not, 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 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 will 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 8.2(f), expenses (including attorneys'
fees and disbursements) incurred by a Manager, employee or agent of the
Company 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 Manager, employee or agent to repay such amount unless it ultimately
is 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 will 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 will be liable
to the extent provided by applicable law for (i) breach of the Manager's duty
of loyalty to the Company or the Member, (ii) acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law or
(iii) any transaction from which the Manager derived an improper personal
benefit.
(e) The indemnification and advancement of expenses provided by
this Section 8.2 are not exclusive of any other rights to which those seeking
indemnification or advancement may be 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 will
continue as to a Person who has ceased to be a Manager, employee or agent and
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 8.2 will be paid solely to the extent of funds (i) available therefor
from such Series specified in any applicable written agreement with such
Indemnified Party or, if no such written agreement exists, from the General
Series and (ii) actually received by the Company under the Basic Documents,
from capital contributions or in connection with other Permitted Transactions.
The Company's obligations under this Section 8.2 will 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
against the Series Assets of any Series unrelated to indemnification
obligations hereunder will, if 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, be subordinate to the payment in full, including
post-petition interest, of the claims of the holders of any Securities related
to such unrelated Series and the holders of any other notes, bonds, contracts
or other obligations that are related to such unrelated Series.
Section 8.3 Amendments: Indemnification. The indemnities contained in
Section 8.2 will survive the resignation, removal or termination of any
Indemnified Party or the termination of this Agreement. Any repeal or
modification of this Article VIII will not adversely affect any rights of such
Indemnified Party pursuant to this Article VIII, 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 IX
MISCELLANEOUS
Section 9.1 Bankruptcy of the Member. If any event of bankruptcy
specified in Section 18-304(a) of the Act occurs with respect the Member, then
the Member will, notwithstanding the occurrence of such event of bankruptcy,
remain a Member of the Company and, notwithstanding such event of bankruptcy,
the Company will continue, subject to the provisions of Section 4.3(c)(iii).
Section 9.2 Amendments. Except as provided in Section 4.6(g) with
respect to amendments required by law, this Agreement 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 will be
effective without satisfaction of the Rating Agency Condition; and provided,
further, that the provisions of Section 4.3(c) hereof may be amended only with
the unanimous written consent of the Board of Managers. An amendment becomes
effective as of the date specified in the approval of the Member or, if no
date is specified, as of the date of such approval or as otherwise provided in
the Act.
Section 9.3 Assignments. Pursuant to Section 18-702 of the Act, the
Member may sell, assign or participate its Percentage Interest at any time
without the consent of the Board of Managers, and the assignee of any such
Percentage Interest will possess all of the rights and obligations of a member
hereunder, and the right to become a member pursuant to Section 18-704 of the
Act.
Section 9.4 Single Member. It is the intent of the Company that the
Member (or the successor Member) be the only member and that only one Member
exist at any time.
Section 9.5 Admission of New Member. A successor member may only be
admitted upon the approval of the existing Member.
Section 9.6 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement is for any reason whatsoever
held invalid, then such covenants, agreements, provisions or terms will be
deemed severable from the remaining covenants, agreements, provisions or terms
of this Agreement and will in no way affect the validity or enforceability of
the other provisions of this Agreement.
Section 9.7 Successors and Assigns. All covenants and agreements
contained herein will be binding upon, and inure to the benefit of, the Member
and its successors and permitted assigns, all as herein provided.
Section 9.8 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 9.9 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and are not to define or
limit any of the terms or provisions hereof.
Section 9.10 Governing Law. THIS AGREEMENT IS TO BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
IN WITNESS WHEREOF, the undersigned Member has duly executed this
Agreement as of the 26th day of June, 2001.
FORD CREDIT AUTO RECEIVABLES LLC
By: FORD MOTOR CREDIT COMPANY,
as Member
By: _______________________________
Title:
