Exhibit 3.18
LIMITED LIABILITY COMPANY AGREEMENT
OF
ISPAT INLAND FINANCE, LLC
The undersigned member (the "Undersigned Member") hereby forms a limited
liability company pursuant to and in accordance with the Delaware Limited
Liability Company Act, 6 Del. C. Section 18-101, et seq. (the "Act"), and hereby
declares the following to be the Limited Liability Company Agreement (the
"Agreement") of such limited liability company:
1. Name. The name of the limited liability company formed hereby
is Ispat Inland Finance, LLC (the "Company").
2. Purpose. The Company is formed for the object and purpose of,
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 or
incidental to the foregoing.
3. Registered Office. The registered office of the Company in the
State of Delaware is c/o The Corporation Trust Company, Corporation Trust
Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
4. 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
are The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
5. Powers of the Company. The Company shall have the power and
authority to take any and all actions necessary, appropriate, advisable,
convenient, or incidental to or for the furtherance of, the purpose set forth in
Section 2.
6. Rights or Powers of Undersigned Member. The Undersigned Member
shall not have any right or power to take part in the management or control of
the Company or its business and affairs or to act for or bind the Company in any
way. Notwithstanding the foregoing, the Undersigned Member has all the rights
and powers specifically set forth in this Agreement and, to the extent not
inconsistent with this Agreement, in the Act.
7. Admission. Upon the execution and delivery of this Agreement,
the Undersigned Member shall be admitted as the sole member of the Company. The
name and address of the Undersigned Member is as follows:
3019693 Nova Scotia U.L.C.
0000 Xxxxx Xxxxx Xxxxxx
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Halifax, Province of Xxxx Xxxxxx
X0X 0X0
8. Capital Contributions. The Undersigned Member agrees to make a
capital contribution of $790 Million to the Company (its "Capital
Contribution"). The Undersigned Member is not required to make any contribution
of property or money to the Company in excess of its Capital Contribution.
9. Management. (a) The management of the Company shall be vested
in the committee of Managers (the Management Committee) designated by the
Undersigned Member as provided in Section 9(c) hereof or, in the case of an
Independent Manager, appointed by the Management Committee as provided in
Section 9(b) hereof.
(b) The number of Managers on the Management Committee shall be three
unless otherwise provided herein; provided, however, that the Company shall at
all times have at least one Manager (an "Independent Manager") who is not, nor
at any time has been, (a) an officer or employee of the Undersigned Member or
any affiliate of the Undersigned Member, (b) a person related to any officer or
employee of the Undersigned Member or any affiliate of the Undersigned Member,
(c) a holder (directly or indirectly) of more than 10% of any voting securities
or interests of the Undersigned Member or any affiliate of the Undersigned
Member, or (d) a person related to a holder (directly or indirectly) of more
than 10% of any voting securities or interests of the Undersigned Member or any
affiliate of the Undersigned Member. In the event of the death, incapacity,
resignation or removal of any Independent Manager, the Management Committee
shall promptly appoint an Independent Manager for each Independent Manager whose
death, incapacity, resignation or removal caused the related vacancy on the
Management Committee; provided, however, that the Management Committee shall not
vote on or approve any matter unless and until at least one Independent Manager
has been duly appointed to serve on the Management Committee. The initial
Managers of the Company shall be as set forth on Exhibit A hereto.
(c) A Manager shall remain in office until removed by the Undersigned
Member, subject, however, to the provisions of Section 9(b) hereof. The
Undersigned Member shall designate Managers other than the initial Managers
listed on Exhibit A hereto, by delivering to the Company a written statement
designating such Managers and setting forth such Managers' business address and
telephone number. The Undersigned Member, by signing this Agreement, hereby
designates the Persons identified on Exhibit A hereto as Managers of the Company
until their successors are designated or appointed.
(d) A Manager may be removed at any time, with or without cause, by the
written notice of the Undersigned Member, delivered to the Company, demanding
such removal and designating the Person who shall fill the position of the
removed Manager, subject, however, to the provisions of Section 9(b) hereof.
(e) In the event any Manager dies or is unwilling or unable to serve as
such or is removed from office, the Undersigned Member shall promptly designate
a successor to such Manager, subject, however, to the provisions of Section 9(b)
hereof.
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(f) Each Manager shall have one (1) vote. Except as otherwise provided
in this Agreement, the Management Committee shall act by the affirmative vote of
a majority of the total number of members of the Committee.
(g) Each Manager shall perform his duties as a Manager in good faith, in
a manner he reasonably believes to be in the best interests of the Company, and
with such care as an ordinarily prudent person in a like position would use
under similar circumstances. A person who so performs his duties shall not have
any liability by reason of being or having been a Manager of the Company.
(h) The Management Committee shall have the power to delegate authority
to such committees of Managers, officers, employees, agents and representatives
of the Company as it may from time to time deem appropriate. Any delegation of
authority to take any action must be approved in the same manner as would be
required for the Management Committee to approve such action directly.
(i) A Manager shall not be liable under a judgment, decree or order of
court, or in any other manner, for a debt, obligation, or liability of the
Company.
10. Meetings of the Management Committee.
(a) The Management Committee shall hold regular meetings no less
frequently than once every quarter and shall establish meeting times, dates and
places and requisite notice requirements (not shorter than those provided in
Section 10(b)) and adopt rules or procedures consistent with the terms of this
Agreement. Unless otherwise approved by the Management Committee, each regular
meeting of the Management Committee will be held at the Company's principal
place of business. At such meetings the Management Committee shall transact such
business as may properly be brought before the meeting, whether or not notice of
such meeting referenced the action taken at such meeting.
(b) Special meetings of the Management Committee may be called by any
Manager. Notice of each such meeting shall be given to each Manager on the
Management Committee by telephone, telecopy, telegram or similar method (in each
case, notice shall be given at least seventy-two (72) hours before the time of
the meeting) or sent by first-class mail (in which case notice shall be given at
least five (5) days before the meeting), unless a longer notice period is
established by the Management Committee. Each such notice shall state (i) the
time, date, place (which shall be at the principal office of the Company unless
otherwise agreed to by all Managers) or other means of conducting such meeting
and (ii) the purpose of the meeting to be so held. No actions other than those
specified in the notice may be considered at any special meeting unless
unanimously approved by the Managers. Any Manager may waive notice of any
meeting in writing before, at, or after such meeting. The attendance of a
Manager at a meeting shall constitute a waiver of notice of such meeting, except
when a Manager attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting was not properly called.
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(c) Any action required to be taken at a meeting of the Management
Committee, or any action that may be taken at a meeting of the Management
Committee, may be taken at a meeting held by means of conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear each other. Participation in such a meeting shall
constitute presence in person at such meeting.
(d) Notwithstanding anything to the contrary in this Section 10, the
Management Committee may take without a meeting any action that may be taken by
the Management Committee under this Agreement if such action is approved by the
unanimous written consent of the Managers.
11. Management Committee Powers.
(a) Except as otherwise provided in this Agreement, all powers to
control and manage the business and affairs of the Company shall be exclusively
vested in the Management Committee and the Management Committee may exercise all
powers of the Company and do all such lawful acts as are not by statute, the
Certificate or this Agreement directed or required to be exercised or done by
the Members and in so doing shall have the right and authority to take all
actions which the Management Committee deems necessary, useful, or appropriate
for the management and conduct of the business, including exercising the
following specific rights and powers:
(i) Conduct its business, carry on its operations, and have and
exercise the powers granted by the Delaware Act in any state, territory,
district, or possession of the United States, or in any foreign country,
which may be necessary or convenient to effect any or all of the purposes
for which it is organized;
(ii) Acquire by purchase, lease, or otherwise any real or personal
property which may be necessary, convenient, or incidental to the
accomplishment of the purposes of the Company;
(iii) Operate, maintain, finance, improve, construct, own, grant
operations with respect to, sell, convey, assign, mortgage, and lease any
real estate and any personal property necessary, convenient, or incidental
to the accomplishment of the purposes of the Company;
(iv) Execute any and all agreements, contracts, documents,
certifications, and instruments necessary or convenient in connection with
the management, maintenance, and operation of the Business, or in
connection with managing the affairs of the Company, including, executing
amendments to this Agreement and the Certificate in accordance with the
terms of this Agreement, both as Managers and, if required, as
attorney-in-fact for the Members pursuant to any power of attorney granted
by the Members to the Managers;
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(v) Borrow money and issue evidences of indebtedness necessary,
convenient, or incidental to the accomplishment of the purposes of the
Company, and secure the same by mortgage, pledge, or other lien on any
Company assets;
(vi) Execute, in furtherance of any or all of the purposes of the
Company, any deed, lease, mortgage, deed of trust, mortgage note,
promissory note, xxxx of sale, contract, or other instrument purporting to
convey or encumber any or all of the Company assets;
(vii) Prepay in whole or in part, refinance, recast, increase,
modify, or extend any liabilities affecting the assets of the Company and
in connection therewith execute any extensions or renewals of encumbrances
on any or all of such assets;
(viii) Care for and distribute funds to the Members by way of cash
income, return of capital, or otherwise, all in accordance with the
provisions of this Agreement, and perform all matters in furtherance of
the objectives of the Company or this Agreement;
(ix) Engage in any kind of activity and perform and carry out
contracts of any kind (including contracts of insurance covering risks to
Company assets and Manager liability) necessary or incidental to, or in
connection with, the accomplishment of the purposes of the Company, as may
be lawfully carried on or performed by a limited liability company under
the laws of each state in which the Company is then formed or qualified;
(x) Take, or refrain from taking, all actions, not expressly
proscribed or limited by this Agreement, as may be necessary or
appropriate to accomplish the purposes of the Company;
(xi) Institute, prosecute, defend, settle, compromise, and dismiss
lawsuits or other judicial or administrative proceedings brought on or in
behalf of, or against, the Company, the Members or any Manager in
connection with activities arising out of, connected with, or incidental
to this Agreement, and to engage counsel or others in connection
therewith;
(xii) Purchase, take, receive, subscribe for or otherwise acquire,
own, hold, vote, use, employ, sell, mortgage, lend, pledge, or otherwise
dispose of, and otherwise use and deal in and with, shares or other
interests in or obligations of domestic or foreign corporations,
associations, general or limited Companies, other limited liability
companies, or individuals or direct or indirect obligations of the United
States or of any government, state, territory, government district or
municipality or of any instrumentality of any of them; and
(xiii) Indemnify a Member or Manager or former Member or Manager,
and make any other indemnification that is authorized by this Agreement in
accordance with the Act.
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(b) Notwithstanding any other provision of this Agreement, the approval
of at least one Independent Manager shall be required for any of the following:
(i) Any transaction or action to liquidate or dissolve the
Company;
(ii) Any transaction by the Company to merge or consolidate with or
into, or convert into, another entity, or sell, lease, assign, transfer or
otherwise dispose of all or substantially all of its property or assets;
or
(iii) The Company's (A) making an assignment for the benefit of
creditors; (B) application for, seeking, consent to or acquiescing in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any substantial part of its property; (C)
institution of any proceeding seeking to have entered against it an order
for relief under the United States Bankruptcy Code, as amended,
supplemented or modified from time to time, to adjudicate it insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement
or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or failing to file an
answer or other pleading denying the material allegations of any such
proceeding filed against it; or (D) admitting in writing its inability to
pay its debts generally as they become due.
12. Duties and Obligations of the Management Committee.
(a) The Management Committee shall cause the Company to conduct its
business and operations separate and apart from that of any Member or Manager or
any of its Affiliates, including, without limitation, (i) segregating Company
assets and not allowing funds or other assets of the Company to be commingled
with the funds or other assets of, held by, or registered in the name of, any
Member or Manager or any of its affiliates, (ii) maintaining books and financial
records of the Company separate from the books and financial records of any
Member or Manager and its affiliates, and observing all Company procedures and
formalities, including, without limitation, maintaining minutes of Company
meetings and acting on behalf of the Company only pursuant to due authorization
of the Members, (iii) causing the Company to pay its liabilities from assets of
the Company, and (iv) causing the Company to conduct its dealings with third
parties in its own name and as a separate and independent entity.
(b) The Management Committee shall take all actions which may be
necessary or appropriate (i) for the continuation of the Company's valid
existence as a limited liability company under the laws of the State of Delaware
and of each other jurisdiction in which such existence is necessary to protect
the limited liability of the Members or to enable the Company to conduct the
business in which it is engaged and (ii) for the accomplishment of the Company's
purposes, including the acquisition, development, maintenance, preservation, and
operation of Property in accordance with the provisions of this Agreement and
applicable laws and regulations.
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13. Reimbursements. The Company shall reimburse the Members and
Managers for all expenses incurred and paid by any of them in the organization
of the Company and as authorized by the Company, in the conduct of the Company's
business, including, but not limited to, expenses of maintaining an office,
telephones, travel, office equipment and secretarial and other personnel as may
reasonably be attributable to the Company. Such expenses shall not include any
expenses incurred in connection with a Member's or Managers' exercise of its
rights as a Member or a Manager apart from the authorized conduct of the
Company's business. The Manager's sole determination of which expenses are
allocated to and reimbursed as a result of the Company's activities or business
and the amount of such expenses shall be conclusive. Such reimbursement shall be
treated as expenses of the Company and shall not be deemed to constitute
distributions to any Member of profit, loss, or capital of the Company.
14. Indemnification of the Managers.
(a) Unless otherwise provided in Section 14(d) hereof, the Company, its
receiver, or its trustee (in the case of its receiver or trustee, to the extent
of Company property) shall indemnify, save harmless, and pay all judgments and
claims against any Manager relating to any liability or damage incurred by
reason of any act performed or omitted to be performed by any Manager in
connection with the Company's business, including reasonable attorneys' fees
incurred by the Manager in connection with the defense of any action based on
any such act or omission, which attorneys' fees may be paid as incurred.
(b) Unless otherwise provided in Section 14(d) hereof, in the event of
any action by a Member against any Manager, including a Company derivative suit,
the Company shall indemnify, save harmless, and pay all expenses of such
Manager, including reasonable attorneys' fees incurred in the defense of such
action.
(c) Unless otherwise provided in Section 14(d) hereof, the Company shall
indemnify, save harmless, and pay all expenses, costs, or liabilities of any
Manager, if for the benefit of the Company and in accordance with this Agreement
said Manager makes any deposit or makes any other similar payment or assumes any
obligation in connection with any property proposed to be acquired by the
Company and suffers any financial loss as the result of such action.
(d) Notwithstanding the provisions of Sections 14(a), 14(b) and 14(c)
above, such Sections shall be enforced only to the maximum extent permitted by
law and no Manager shall be indemnified from any liability for the fraud,
intentional misconduct, gross negligence, or a knowing violation of the law,
which was material to the cause of action.
(e) The obligations of the Company set forth in this Section 14 are
expressly intended to create third-party beneficiary rights of each of the
Managers and any Member is authorized, on behalf of the Company, to give written
confirmation to any Manager of the existence and extent of the Company's
obligations to such Manager hereunder.
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15. Assignments. The Undersigned Member may assign all or any part
of its limited liability company interest at any time, and, unless the
Undersigned Member otherwise provides, any transferee shall become a substituted
member of the Company automatically.
16. Additional Members. Additional Persons (as defined in the Act)
may be admitted as members in the Company, without the sale, assignment,
transfer or exchange by the Undersigned Member of all or any part of its limited
liability company interest, upon the terms and conditions as the Undersigned
Member may provide from time to time. Prior to the admission of any additional
member to the Company, the Undersigned Member shall amend this Agreement to make
such changes as the Undersigned Member shall determine so as to reflect the fact
that the Company shall have more than one member.
17. Dissolution. The Company shall dissolve, and its affairs shall
be wound up, upon the decision of the Management Committee, subject, however, to
the provisions of Section 11(b).
18. Distributions upon Dissolution. Upon the occurrence of an
event set forth in Section 17 hereof, the Undersigned Member shall be entitled
to receive, after paying or making reasonable provision for all of the Company's
creditors to the extent required by Section 1.8-804(a)(1) of the Act, the
remaining funds or assets of the Company.
19. Limited Liability. The Undersigned Member shall have no
liability for the obligations of the Company except to the extent provided in
the Act, if any.
20. Outside Business. The Undersigned Member or any Manager or any
affiliate thereof may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Company, and the Company shall have no rights
by virtue of this Agreement in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Company, shall not be deemed wrongful or
improper. The Undersigned Member or any Manager or any affiliate thereof shall
not be obligated to present any particular investment opportunity to the Company
even if such opportunity is of a character that, if presented to the Company,
could be taken by the Company, and the Undersigned Member or any Manager or any
affiliate thereof shall have the right to take for its own account (individually
or as a partner, shareholder, fiduciary, or otherwise) or to recommend to others
any such particular investment opportunity.
21. Certificated Membership Interest. The limited liability
company interest held by the Undersigned Member and any other member shall be
evidenced by a certificate and shall be a security governed by article 8 of the
Uniform Commercial Code as in effect in the State of Delaware and in each other
applicable jurisdiction of the United States of America.
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22. Pledge of Membership Interest. To secure, among other things,
the payment and performance of the obligations of Ispat Inland, L.P., a Delaware
limited partnership (the "Borrower"), to Credit Suisse First Boston as issuing
bank and as administrative agent and collateral agent ("CSFB") for itself and
certain other financial institutions (the "Lenders") from time to time party to
that certain Credit Agreement which is to be entered into and dated as of July
-, 1998 among CSFB, the Lenders and the Borrower (as amended from time to time,
the "Credit Agreement"), each member will pledge 100% of its interest in the
Company (the interests of members in the Company are hereinafter collectively
referred to as the "Membership Interests") to CSFB, for the benefit of itself
and the Lenders. Said pledge is hereby authorized by the Undersigned Member, the
Management Committee, and the Company. The books and records of the Company
shall be marked to reflect the pledge of the Membership Interests to CSFB, for
the benefit of itself and the Lenders. For so long as any Loans (as defined in
the Credit Agreement) remain outstanding, no Membership Interest or any rights
relating thereto will be transferred or further encumbered and no new members
will be admitted without the written consent of CSFB and, if the Company is
advised by CSFB that an event of default has occurred under the Credit
Agreement, the Company will comply with the provisions of the Pledge Agreement,
which is to be entered into and dated as of July __, 1998. No exercise by CSFB
of its rights under such Pledge Agreement shall constitute a violation of or be
prohibited by this Agreement.
23. Tax Treatment. It is intended that, for Federal tax purposes,
the Company will be disregarded as an entity separate from its owner.
24. Amendment. This Agreement may be amended only in a writing
signed by the Undersigned Member.
25. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE.
26. Severability. Except as otherwise provided in the succeeding
sentence, every term and provision of this Agreement is intended to be
severable, and if any term or provision of this Agreement is illegal or invalid
for any reason whatsoever, such illegality or invalidity shall not affect the
legality or validity of the remainder of this Agreement. The preceding sentence
shall be of no force or effect if the consequence of enforcing the remainder of
this Agreement without such illegal or invalid term or provision would be to
cause the Undersigned Member to lose the benefit of its economic bargain.
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of this
10th day of July, 1998.
3019693 NOVA SCOTIA U.L.C.
By:/s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Secretary
EXHIBIT A
MANAGERS OF THE COMPANY
1. Xxxxxxx X. Xxxxxx
2. Thekkamadom N. Ramaswammy
3. Xxxxxxxxx Xxxxxx
