Limited Liability Company Agreement Of Estrella Distributing, LLC
Exhibit 3.6
Limited Liability Company
Agreement
Of
▇▇▇▇▇▇▇▇ Distributing, LLC
This Limited Liability Company Agreement is dated effective April 16, 2010 (the “Effective Date”),
by Swift Transportation Co. of Arizona, LLC, a Delaware limited liability company (the “Member”),
as the sole member of ▇▇▇▇▇▇▇▇ Distributing, LLC, a Delaware limited liability company (the
“Company”).
ARTICLE 1
Conversion
Section 1.1 Conversion. ▇▇▇▇▇▇▇▇ Distributing Corporation, an Arizona corporation
(the “Predecessor Entity”), first converted into a Delaware corporation which then converted into
the Company in accordance with, and with the effect provided in, the Arizona Revised Statute and
the Delaware Limited Liability Company Act (the “Act”).
Section 1.2 Delaware Limited Liability Company. Commencing upon the
Effective Date, the Member desires for the Company to be maintained and operated as a limited
liability company pursuant to the Act and upon the remaining terms and conditions set forth in
this Agreement.
ARTICLE 2
Name and Principal Place of Business
Section 2.1 Name. The name of the Company is ▇▇▇▇▇▇▇▇ Distributing, LLC
Section 2.2 Principal Place of Business. The Company’s principal place of
business is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
ARTICLE 3
Business, Purpose, and Term of Company
Section 3.1 Purpose. The purpose of the Company is to engage in any lawful act
or activity for which a limited liability company may be organized.
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Section 3.2 Term of Company. The term of the Company as a limited liability
commenced on the Effective Date and shall continue on a perpetual basis unless dissolved pursuant
to Article 8 of this Agreement.
Section 3.3 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 3.4 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 4
Capital Contributions and Issuance of Membership Units
Section 4.1 Capital Contributions by Member. The Member is not obligated to
make any Capital Contributions to the Company.
Section 4.2 Issuance of Membership Units. The Company shall issue 1,000
membership units to the Member. The Company shall be authorized to issue a Certificate of
Membership reflective of the Membership Interest. No other Membership Interest or units thereof
shall be issued without the prior written consent of the Member.
ARTICLE 5
Income, Deductions and Distributions
Section 5.1 Income. Except as otherwise provided by federal or state law, 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 5.2 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 6
Management of the Company
Section 6.1 General. The Member shall also be the Manager of the Company and,
in the latter capacity, shall be responsible for the management of the Company. The Manager shall
have the right, power and authority to manage, direct and control all of the business and
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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 7
Manager
Section 7.1 Delegation of Powers of Manager. The Manager 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 Manager shall determine. Any such delegation shall not cause
the Manager to cease to be the Manager.
Section 7.2 Officers. The Manager 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 Manager may
delegate in writing to any such Persons.
Section 7.3 Powers of Manager. The Manager 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 Manager 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 7.4 Reliance by Third Parties. Any Person dealing with the Company may
rely on a certificate signed by the Manager as to:
(a) the identity of the Member, the Manager, or any officer of the Company;
(b) the existence or non-existence of any fact or facts which constitute a condition
precedent to acts by the Manager or are in any matter germane to the affairs of the Company;
(c) the Persons who 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.
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ARTICLE 8
Dissolution
Section 8.1 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 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 8.2 Permitted Dissolution. The Company may be dissolved by the
Member in its discretion.
ARTICLE 9
Limitations on Dissolution
Section 9.1 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 10
Governing Law
Section 10.1 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 11
Indemnification and Fiduciary Duties
Section 11.1 Exemption from Liability. To the maximum extent permitted by
applicable law, the Manager shall not be liable to the Company or any other third party (a) for
mistakes of judgment, (b) for any act or omission suffered or taken by it, or (c) for losses due
to any such mistakes, action or inaction.
Section 11.2 Indemnification. Except as may be restricted by applicable law, the
Manager shall not be liable for and the Company shall indemnify the Manager against, and agrees to
hold the Manager harmless from, all liabilities and claims (including reasonable attorney’s fees
and expenses in defending against such liabilities and claims) against the Manager, arising from
the Manager’s performance of its duties in conformance with the terms of this Agreement.
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Section 11.3 Reliance of Experts. The Manager may consult with legal counsel or
accountants selected by the Manager 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 11.4 Insurance. The Company shall have the power to purchase insurance on
behalf of any Person who is or was a Member, Manager 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 Person’s status as a Member, Manager or agent of the Company, whether or
not the Company would have the power to indemnify such Person under the provisions of Section 11.2
or under applicable law.
Section 11.5 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 11.6 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 12
Winding Up and Distribution of Assets
Section 12.1 Winding Up. If the Company is dissolved, the Member shall wind up the affairs of the Company.
Section 12.2 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 or
other successor to 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 or other successor to 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 therefor. Any remaining assets shall be distributed to the Member.
Section 12.3 Termination. The Company shall terminate when (a) 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
(b) a Certificate of Cancellation shall have been filed in the manner required by the Act.
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ARTICLE 13
Disregarded Entity
Section 13.1 Disregarded Entity. The Company is being organized 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 14
Definitions
As used herein, the following terms shall have the indicated definitions.
Section 14.1 “Act” means as defined in Section 1.1 of this Agreement.
Section 14.2 “Agreement” means this Limited Liability Company Agreement, as may be amended from time to time.
Section 14.3 “Capital Contribution” means any contribution by the Member to capital of the Company.
Section 14.4 “Code” means the Internal Revenue Code of 1986, as amended.
Section 14.5
“Company” means ▇▇▇▇▇▇▇▇ Distributing, LLC, a Delaware limited liability company.
Section 14.6 “Manager” means the Member or any other Person designated by the Member as the manager of the Company.
Section 14.7 “Member” means Swift Transportation Co. of Arizona, LLC, a Delaware
limited liability company, and any Person or entity subsequently admitted as the member of the
Company in accordance with the terms of this Agreement.
Section 14.8 “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.
Section 14.9 “Person” means any individual, corporation, limited liability company,
partnership, joint venture, trust, estate, sole proprietor, association, or similar entity or
group.
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Section 14.10
“Predecessor Entity” means as defined in Section 1.1 of this
Agreement.
IN WITNESS WHEREOF, the Member has executed and delivered this Limited Liability Company
Agreement effective the day and year first above written.
MEMBER:
Swift Transportation Co. of Arizona, LLC, a Delaware limited liability company
By: Name: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇
|
|||
Its:
|
CEO & President |
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