AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF RSC HOLDINGS III, LLC
Exhibit 3.5
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
LIMITED LIABILITY COMPANY AGREEMENT
OF
This Amended and Restated Limited Liability Company Agreement of RSC Holdings III, LLC (the
“Company”), dated as of November 16, 2006, is entered into by RSC Holdings II, LLC, as the sole
member (the “Member”), and Atlas Copco North America Inc., as the withdrawing member of the Company
(“ACNA”).
WHEREAS, the Company was formed pursuant to a Limited Liability Company Agreement of the
Company, dated as of October 31, 2006 (the “Existing Agreement”), entered into by ACNA, as the sole
member of the Company;
WHEREAS, from October 31, 2006, until the effectiveness hereof, ACNA will have been the sole
member of the Company; and
WHEREAS, ACNA, the Member and certain other parties have entered into a Contribution
Agreement, dated as of the date hereof, pursuant to which, among other things, ACNA has transferred
to the Member 100% of the membership interests in the Company and, therefore, ACNA wishes to
withdraw from the Company, in accordance with Section 16 of the Existing Agreement, and the Member
wishes to be admitted as the sole additional member of the Company in accordance with Section 17 of
the Existing Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Formation and Continuation. The Member hereby amends and restates the Existing
Agreement and agrees to continue the Company as a limited liability company under and pursuant to
the terms of the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et
seq.), as amended from time to time (the “Act”). The name of the Company heretofore formed and
hereby continued is RSC Holdings III, LLC. The execution and filing of the Certificate of
Formation of the Company by Mariana Xxxxxx Xxxxxxx with the Secretary of State of the State of
Delaware is hereby ratified and confirmed.
2. Purpose. The purpose of the Company, and the nature of the business to be
conducted and promoted by the Company, is engaging in any lawful act or activity for
which limited liability companies may be formed under the Act and engaging in any and all
activities necessary, advisable or incidental to the foregoing.
3. Powers of the Company. Subject to any limitations set forth in this Agreement, the
Company shall have the power and authority to take any and all actions necessary, appropriate,
proper, advisable, incidental or convenient to or for the furtherance of the purposes set forth in
Section 2 hereof, including without limitation the power to borrow money and issue evidences of
indebtedness in furtherance of the purposes of the Company. Notwithstanding any other provision of
this Agreement, the Member is authorized to execute and deliver any document on behalf of the
Company without any vote or consent of any other person.
4. Registered Office. The address of the registered office of the Company in the
State of Delaware is 00 Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000.
5. Registered Agent. The name and address of the registered agent for service of
process on the Company in the State of Delaware are Registered Agent Solutions, Inc., 00 Xxxx Xxxxx
Xxxxxx, Xxxxx, Xxxx Xxxxxx, Xxxxxxxx 00000.
6. Term. The term of the Company shall continue until terminated as provided in
Section 11 hereof (the “Term”).
7. Fiscal Year. The fiscal year of the Company shall end on December 31.
8. Member. The name and the business, residence or mailing address of the Member is
as follows:
| Name | Address | |
RSC Holdings II, LLC
|
0000 X. Xxxxxxxx Xxxxxxxxxx, XX 00000 Xxxxxx Xxxxxx |
9. Management; Authorized Person. The business and affairs of the company shall be
managed and conducted by the Member (who shall be “Manager” of the Company, as defined in the Act).
The Member shall have the power to do any and all acts necessary or convenient to or for the
furtherance of the purposes described herein, including all powers, statutory or otherwise,
possessed by members under the laws of the State of Delaware. The Member is authorized to execute
and deliver any instrument or document on behalf of the Company. Mariana Xxxxxx Xxxxxxx is hereby
designated as an authorized person, within the meaning of the Act, to execute, deliver and file the
certificate of formation of the Company (and any amendments and/or restatements thereof). The
Member may execute, deliver and file any other certificates (and any amendments and/or restatements
thereof) necessary for the Company to qualify to do
business in a jurisdiction in which the Company may wish to conduct business; any documents
required to obtain a U.S. taxpayer identification number; and any documents otherwise required in
order for the Company to conduct business.
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10. Officers. The day to day functions of the Company may be performed by a person or
persons appointed as an officer of the Company. The Member may appoint such officers as it deems
appropriate, and each such officer shall hold office until his or her successor is appointed or
until his or her earlier death or until his or her earlier resignation or removal. Any officer
may be removed at any time by the Member, with or without cause.
11. Dissolution. The Company shall dissolve, and its affairs shall be wound up, upon
the first to occur of the following: (a) the affirmative vote or written consent of the
Member, (b) at any time there is no member of the Company, unless the Company is continued
pursuant to the Act or (c) the entry of a decree of judicial dissolution under section
18-802 of the Act.
12. Capital Contributions. The Members shall contribute the following amounts, in
cash, and no other property, to the Company:
RSC Holdings II, LLC |
$ | 10.00 |
No loan made to the Company by any Member shall constitute a capital contribution to the
Company for any purpose.
13. Additional Contributions. The Member is not required to make any additional
capital contributions to the Company. The Member may make additional capital contributions to the
Company in the form of cash, property, services or otherwise, and upon such contribution the
Member’s capital account balance shall be adjusted accordingly.
14. Allocation of Profits and Losses. The Company’s profits and losses shall be
allocated in proportion to the capital contributions of the Member.
15. Distributions. Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Member. Notwithstanding anything to the contrary contained
herein, the Company shall not make a distribution to any Member on account of the interest of such
Member in the Company if such distribution would violate section 18-607 of the Act.
16. Withdrawal of Members.
(a) The Member may withdraw from the Company pursuant to an amendment to this Agreement signed
by the Member. The effectiveness of such amendment shall constitute the withdrawal of the Member
as a member of the Company.
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(b) Upon the withdrawal of any Member, such withdrawing Member shall, to the extent permitted
by applicable law, be entitled to payment of the balance in its capital account, and shall have no
further right, interest or obligation of any kind whatsoever as a member of the Company.
17. Admission of Additional Members. One or more additional members of the Company
may be admitted to the Company with the consent of the Member.
18. Liability of the Member and the Officers. Except as otherwise provided by the
Act, the 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
and the officers shall not be obligated personally for any such debt, obligation or liability of
the Company solely by reason of being a Member or an officer of the Company.
19. Exculpation and Indemnification. The Member and the officers shall not be liable
to the Company, the Member or any other person or entity who or that has an interest in the Company
for any loss, damage or claim incurred by reason of any act or omission performed or omitted by the
Member or such officer in good faith on behalf of the Company and in a manner reasonably believed
to be within the scope of the authority conferred on the Member or such officer by this Agreement,
except that the Member or such officer shall be liable for any such loss, damage or claim incurred
by reason of the Member’s or such officer’s gross negligence or willful misconduct. To the full
extent permitted by applicable law, the Member or such officer shall be entitled to indemnification
from the Company for any loss, damage or claim incurred by the Member or such officer by reason of
any act or omission performed or omitted by the Member or such officer in good faith on behalf of
the Company and in a manner reasonably believed to be within the scope of the authority conferred
on the Member or such officer by this Agreement, except that the Member or such officer shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by the Member or such
officer by reason of gross negligence or willful misconduct with respect to such acts or omissions,
provided, however, that any indemnity under this Section 19 shall be provided out of and to the
extent of Company assets only, and the Member or such officer shall not have personal liability on
account thereof.
19. Amendment. Subject to Section 16 hereof, any amendment to this Agreement shall
require the consent of the Member.
20. Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed an original and all of which shall together constitute one and the same
instrument.
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21. Governing Law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING AS TO
VALIDITY, INTERPRETATION AND EFFECT, BY THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS RULES THEREOF.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed
this Agreement as of the date first above written.
| RSC HOLDINGS II, LLC |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Vice President and General Counsel | |||
Accepted and agreed as a withdrawing member:
| ATLAS COPCO NORTH AMERICA INC. | ||||
By:
|
/s/ Xxxx Xxxxx | |||
| Title: President | ||||
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