AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
AMERICAN COMMERCIAL LINES HOLDINGS LLC
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF AMERICAN
COMMERCIAL LINES HOLDINGS LLC is made and entered into as of January 22, 2003,
by the Company and ACLines LLC.
ARTICLE I
DEFINITIONS
The following capitalized words and phrases used in this Agreement shall
have the following respective meanings:
1.1 "Act" means the Delaware Limited Liability Company Act, as amended from
time to time.
1.2 "Agreement" means this Amended and Restated Limited Liability Company
Agreement of American Commercial Lines Holdings LLC, as amended from time to
time.
1.3. "Board" means the Board of Managers described in Article IV.
1.4 "Company" means American Commercial Lines Holdings LLC, a Delaware
limited liability company.
1.5 "Exchange Offer" means American Commercial Lines LLC's offer to
exchange its 11.25% Senior Notes due 2008 and its 12% Pay-In-Kind Senior
Subordinated Note due 2008 for its 10.25% Senior Notes due 2008 pursuant to the
Offering Memorandum, Solicitation of Consents and Acceptances and Disclosure
Statement of Company dated April 15, 2002.
1.6 "Member" means ACLines LLC, a Delaware limited liability company.
1.7 "Percentage Interest" means the percentage set forth opposite the
Member's name on Exhibit A.
1.8 "Tax Amount" means, for any period, the highest marginal combined
federal, state, local and foreign income, franchise, capital, license, and other
taxes, together with any interest, additions or penalties with respect thereto
and any interest in respect of such additions or penalties, which would have
been payable by the Company and its subsidiaries if the Company were a
corporation domiciled in New York, New York, and doing business in New York, New
York and in the other jurisdictions in which the Company and its subsidiaries do
business, filing separate tax returns; provided, that in determining the Tax
Amount for a period, the effect thereon of any net operating loss carryforwards
or other carryforwards for
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periods after the consummation of the Exchange Offer, such as alternative
minimum tax carryforwards attributable to periods after the consummation of the
Exchange Offer, that would have arisen if the Company were a corporation
domiciled in New York, New York and doing business in New York, New York and in
the jurisdictions in which the Company does business shall be taken into account
to the extent they would be taken into account under applicable law. In no event
shall the Tax Amount for any year or other period be less than zero.
ARTICLE II
ORGANIZATION
2.1 Formation. The Company has been formed under the Act for the purposes
and upon the terms and conditions hereafter set forth. The rights and
liabilities of the Member shall be as provided in the Act, except as otherwise
expressly provided herein. The Board is hereby authorized to and shall cause to
be executed and filed any certificates and documents as may be necessary or
appropriate from time to time to comply with all requirements for the continued
existence and operation of a limited liability company in the State of Delaware
and all other jurisdictions where the Company may desire to conduct its
business. To the extent permitted by applicable law, the provisions of this
Agreement shall override the provisions of the Act in the event of any
inconsistency or contradiction between them.
2.2 Name. The name of the Company is "American Commercial Lines Holdings
LLC." The Company may also do business at the same time under one or more
fictitious names if the Board determines that such is in the best interests of
the Company. The Board may from time to time for reasonable cause change the
name of the Company.
2.3 Principal Place of Business. The business purposes of the Company shall
be to conduct any business, enterprise or activity permitted under the Act,
including, without limitation, (a) to hold the equity interest of and operate
American Commercial Lines LLC, (b) to enter into any partnership, joint venture,
business trust arrangement, limited liability company or other similar
arrangement to engage in any business permitted by or under the Act and (c) to
engage in such additional acts and activities and to conduct such other business
as the Board shall reasonably deem necessary or advisable. The Member shall have
the right to engage or invest in any business activity, enterprise or venture
regardless of whether such activity, enterprise or venture competes with the
Company's activities, enterprises or ventures, and the Member shall not have any
obligation to offer any business opportunity to the Company.
2.5 Fictitious Business Name Statements. Following the execution of this
Agreement, fictitious business name statements shall be filed and published when
and if the Board determines it to be necessary. Any such statement shall be
renewed as required by law.
2.6 Registered Office; Agent for Service of Process. The address of the
registered office of the Company in the State of Delaware is located at The
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 and the
registered agent for service of process on the Company in the State of Delaware
at such registered office is Corporation Trust Company.
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ARTICLE III
ALLOCATIONS AND DISTRIBUTIONS
3.1 Allocations. All items of income, gain, loss, deduction and credit
shall be allocated to the Member.
3.2 Distributions. At the times determined by the Member, the Company shall
distribute to the Member (a) the Tax Amount and (b) any other funds held by the
Company so long as such distribution is not in violation of the Act or other
applicable law.
ARTICLE IV
MANAGEMENT
4.1 Board of Managers. The Member has the authority under this Agreement
and the Act to manage the business and affairs of the Company and to delegate
such authority. Since the inception of the Company, the Member and prior members
have delegated its and their authority to manage the business and affairs of the
Company to a Board of Managers (the "Board") consisting of three managers
("Managers"). The business and affairs of the Company shall continue to be
managed by the Board and the Member hereby ratifies and approves all actions of
the Board and the Managers since inception of the Company. Each Manager shall
have one (1) vote on all matters brought before the Board. The Board shall
direct, manage and control the business of the Company and, except as authorized
in writing by the Board or permitted by this Agreement, no Member shall directly
or indirectly act as agent of the Company for any purpose, engage in any
transaction, make any commitment, enter into any contract or incur any
obligation in the name of the Company or in any other way hold itself out as
acting for or on behalf of the Company. Except for situations in which the
approval of the Member is expressly required by this Agreement or the Act, and
the authority of the Member to appoint and remove the Managers in its sole
discretion, the Board shall have full and complete authority, power and
discretion to manage and control the business, affairs and properties of the
Company, to make all decisions regarding those matters and to perform any and
all other acts or activities customary or incident to the management of the
Company's business. Each Manager shall perform his or her duties as a Manager in
a manner reasonably believed 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. Except as otherwise provided in the Act or this
Agreement, the Member intends that the foregoing standard of care shall be
interpreted consistently with the standard of care imposed on directors of a
corporation organized under the General Corporation Law of the State of
Delaware. A Manager shall not have any liability to the Company or any other
person or entity by reason of being or having been a Manager, unless the
liability shall have been the result of bad faith, gross negligence, fraud or
intentional misconduct by the Manager.
4.2 Officers. The officers of the Company, if any, shall be appointed by
the Board in its sole discretion. Unless such appointment provides otherwise,
each officer so appointed shall have such powers and duties as are provided in
the following:
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4.2.1 President. The President shall be the Chief Executive Officer of
the Company. Subject to the direction of the Board, he shall have, and
exercise, direct charge of, and general supervision over, the business and
affairs of the Company, and shall perform all duties incident to the office
of a President in a corporation organized under the Delaware General
Corporation Law. No person may hold the office of President, or act in
place of the President in the case of absence or disability, unless such
person is a citizen of the United States.
4.2.2 Vice Presidents. The powers, duties, and responsibilities of the
Vice Presidents shall be fixed by the President, with the approval of the
Board. A Vice President may be designated as an Executive Vice President, a
Senior Vice President or a Vice President with a functional title.
4.2.3 General Counsel. The General Counsel shall have general charge
of the legal affairs of the Company, and shall cause to be kept adequate
records of all suits or actions, of every nature, to which the Company may
be a party, or in which it has an interest, with sufficient data to show
the nature of the case and the proceedings therein. He or she shall
prepare, or cause to be prepared, legal opinions on any subject necessary
for the affairs of the Company, and shall perform such other duties as the
Board, or the President, may designate.
4.2.4 Secretary. The Secretary shall attend all meetings of the Board
and the Member of the Company and record their proceedings, unless a
temporary secretary be appointed. He shall give due notice, as required, of
all such meetings, and he shall keep, or cause to be kept, at a place or
places required by law, a record of the Member and Managers of the Company,
giving the names and addresses of all such Member and Managers. He shall be
the custodian of all records, contracts, leases, and other papers and
documents of the Company, unless otherwise directed by the Board, and shall
perform such other duties as the Board, or the President, may designate. In
the case of the Secretary's absence or incapacity, the President may
designate an appropriate officer to perform the duties of Secretary.
4.2.5 Treasurer. The Treasurer shall receive, keep and disburse all
moneys belonging to or coming to the Company, shall keep regular, true and
full accounts of all receipts and disbursements, and make detailed reports
thereof, shall keep a true record of expenses, losses, gains, assets, and
liabilities of the Company, and shall perform such other duties in
connection with the administration of the financial affairs of the Company
as the Board, or the President, may designate. In the case of the
Treasurer's absence or incapacity, the President may designate an
appropriate officer to perform the duties of Treasurer.
4.2.6 Subordinate officers. Each subordinate officer shall hold office
for such period, have such authority, and perform such duties as the Board
may prescribe. The Board may, from time to time, authorize any officer to
appoint and remove subordinate officers and to prescribe the powers and
duties thereof.
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4.2.7 Additional Powers. Each such officer shall also have such
additional powers and duties as from time to time may be conferred by the
Board. Any number of offices may be held by the same person. Each officer
shall hold office until his or her successor shall be duly appointed and
shall qualify or until his or her death, until he or she shall resign, or
until he or she shall have been removed, either with or without cause, by
the Board in its sole discretion. The salaries or other compensation, if
any, of the officers and agents of the Company shall be fixed by the Board.
Any appointment pursuant to this Section 4.2 may be revoked at any time by
the Board.
4.3 Execution of Contracts, Assignments, etc. All contracts, agreements,
endorsements, assignments, transfers, stock powers, or other instruments shall
be signed by the President, or any Vice President, and attested by the
Secretary, or an Assistant Secretary, except where required or permitted by law
to be otherwise signed, and except when the signing and execution thereof shall
be expressly delegated by the Board to some other officer or agent of the
Company.
4.4 Limitations on Authority. The authority of the Board over the conduct
of the business and affairs of the Company shall be subject only to such
limitations as are expressly stated in this Agreement or in the Act.
4.5 Liability of Member. The Member will not be bound by, or be personally
liable for, the expenses, liabilities or obligations of the Company.
4.6 Indemnification.
4.6.1 To the fullest extent permitted by the laws of the State of
Delaware, the Company shall indemnify and hold harmless any person who is
or was a party, or is threatened to be made a party, to any threatened,
pending or completed action, claim, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action, claim,
suit or proceeding by or in the right of the Company) by reason of the fact
that such person is or was a Manager, Member, officer or employee of the
Company or is or was serving at the request of the Company as a director,
manager, officer, employee or agent of a corporation, limited liability
company, partnership, joint venture, trust or other enterprise (each, an
"Eligible Person"), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such Eligible Person in connection with such action, claim,
suit or proceeding, including appeals (collectively, "Indemnifiable
Losses"), except to the extent that it is finally judicially determined
that such Indemnifiable Losses arose out of or were related to actions or
omissions of the Eligible Person constituting bad faith, gross negligence,
fraud or intentional misconduct.
4.6.2 To the fullest extent permitted by the laws of the State of
Delaware, the Company shall indemnify and hold harmless any Eligible Person
who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, claim, suit or proceeding by or in
the right of the Company to procure a judgment in its favor by reason of
the Eligible Person's status as such, against expenses (including
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attorneys' fees) actually and reasonably incurred by the Eligible Person in
connection with the defense or settlement of such action, claim, suit or
proceeding, including appeals, except to the extent that it is finally
judicially determined that such expenses arose out of or were related to
actions or omissions of the Eligible Person constituting bad faith, gross
negligence, fraud or intentional misconduct.
4.6.3 To the fullest extent permitted by the laws of the State of
Delaware, the Company shall pay expenses incurred in defending a civil or
criminal action, claim, suit or proceeding described in this Section 4.6 in
advance of the final disposition of such action, claim, suit or proceeding
upon receipt of an undertaking by or on behalf of the Eligible Person to
repay such amount if it shall ultimately be determined that such Eligible
Person is not entitled to be indemnified by the Company.
4.6.4 The provisions of this Section 4.6 shall be applicable to all
actions, claims, suits or proceedings made or commenced after the date of
this Agreement, whether arising from acts or omissions to act occurring
before or after such date. The provisions of this Section 4.6 shall be
deemed to be a contract between the Company and each Eligible Person who
serves in such capacity at any time while this Section 4.6 and the relevant
provisions of the laws of the State of Delaware and other applicable law,
if any, are in effect, and any repeal or modification thereof shall not
affect any rights or obligations then existing with respect to any state of
facts or any action, claim, suit or proceeding then or theretofore
existing, or any action, claim, suit or proceeding thereafter brought or
threatened based in whole or in part on any such state of facts. If any
provision of this Section 4.6 shall be found to be invalid or limited in
application by reason of any law or regulation, it shall not affect the
validity of the remaining provisions hereof. The rights of indemnification
provided in this Section 4.6 shall neither be exclusive of, nor be deemed
in limitation of, any rights to which any such Eligible Person may
otherwise be entitled or permitted by contract, the Certificate, vote of
the Member or Managers or otherwise, or as a matter of law, both as to
actions in such Eligible Person's official capacity and actions in any
other capacity while holding such office, it being the policy of the
Company that indemnification of the specified Eligible Persons shall be
made to the fullest extent permitted by law.
4.6.5 For purposes of this Section 4.6, references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on an Eligible Person with respect
to an employee benefit plan; and references to "serving at the request of
the Company" shall include, but not be limited to, any service as a
Manager, officer, employee or agent of the Company which imposes duties on,
or involves services by, such Manager, officer, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries.
ARTICLE V
RECORDS, TAX MATTERS AND BANK ACCOUNTS
5.1 Books and Records. The Board shall keep true and complete records and
books of account with respect to the operations of the Company.
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5.2 Accounting Basis. The Company shall use such method of accounting and
make any accounting and tax elections as shall be determined by
the Board with the consent of the Member.
5.3 Bank Accounts. The Board, on behalf of the Company, shall open and
maintain a separate bank account or accounts in which shall be
deposited all of the capital and any other funds of the Company.
5.4 Tax Treatment. It is the intention of the Member that, for income tax
purposes, the Company be treated as an entity that is disregarded as an entity
separate from its owner. The Member and the Company shall timely make all
necessary elections and filings, if any, for income tax purposes such that it
will not be treated as a separate entity, but, instead, will be treated for
income tax purposes as an entity that is disregarded as an entity separate from
its owner. The Company hereby designates the Member to act as the "Tax Matters
Partner" (as defined in Section 6231(a)(7) of the Code) in accordance with
Sections 6221 through 6233 of the Code. The Tax Matters Partner is authorized
and required to represent the Company (at the Company's expense) in connection
with all examinations of the Company's affairs by tax authorities, including
resulting administrative and judicial proceedings, and to expend Company funds
for professional services and costs associated therewith. The Tax Matters
Partner will have reasonable discretion to determine whether the Company (either
on its own behalf or on behalf of the Member) will contest or continue to
contest any tax deficiencies assessed or proposed to be assessed by any taxing
authority. Any deficiency for taxes imposed on the Member (including penalties,
additions to tax or interest imposed with respect to such taxes) will be paid by
the Member, and if paid by the Company, will be recoverable from the Member
(including by offset against distributions otherwise payable to the Member).
Notwithstanding anything to the contrary in this Agreement, the Tax Matters
Partner has the power and authority in its sole discretion to make an election,
or cause the Company to make an election, to have the Company treated as a
corporation for U.S. Federal income tax purposes.
ARTICLE VI
DISSOLUTION AND TERMINATION
6.1 Events of Dissolution. The Company shall be dissolved upon the first to
occur of the following: (a) the Board with the consent of the Member determines
to terminate the Company; or (b) the occurrence of any other event specified
under the laws of the State of Delaware as one effecting dissolution. The
dissolution of the Company shall be effective on the day on which the event
occurs giving rise to the dissolution, but the Company shall not terminate until
the assets of the Company shall have been liquidated and distributed as provided
herein. Notwithstanding the dissolution of the Company, prior to the termination
of the Company, the business and affairs of the Company and the rights and
obligations of the Board, the Managers, the officers and the Member, as such,
shall continue to be governed by this Agreement.
6.2 Winding UP of Affairs. Upon the dissolution of the Company, the Board
shall proceed diligently to wind up the affairs of the Company, to either
distribute in kind or liquidate the assets of the Company and then to terminate
the Company in accordance with the provisions of and procedures specified in the
Act.
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6.3 Cancellation of Certificate. Upon the completion of the winding up of
the Company and the distribution of the Company's assets, the Company shall be
terminated and the Board shall cause the Company to execute and file a
Certificate of Cancellation in accordance with the Act.
ARTICLE VII
MISCELLANEOUS
7.1 Successors and Assigns. Subject to any restrictions on transfer set
forth in the Act or any other law, rule or regulation, this Agreement, and each
and every provision hereof, shall be binding upon and shall inure to the benefit
of the Board, the Managers, officers and Member, and their respective successors
and assigns. Each and every successor-in-interest to the Member, whether such
successor acquires such interest by way of purchase, foreclosure or any other
method, shall hold such interest subject to all of the terms and provisions of
this Agreement.
7.2 Amendment. No change, modification or amendment of this Agreement shall
be valid or binding unless such change, modification or amendment shall be in
writing and duly executed by the Company and the Member.
7.3 Entire Agreement. This Agreement constitutes the full and complete
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, whether written or oral, between the parties
with respect to the subject matter hereof.
7.4 Severability. Each provision of this Agreement is intended to be
severable and the invalidity or illegality of any portion of this Agreement
shall not affect the validity or legality of the remainder hereof.
7.5 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall for all purposes constitute one
Agreement, binding on the Company and the Member.
7.6 Applicable Law. This Agreement and the rights and obligations of the
parties hereunder shall be governed by and interpreted, construed
and enforced in accordance with the laws of the State of Delaware (but not
including the choice of law rules thereof.)
IN WITNESS WHEREOF, the Company and the Member have executed this Agreement
as of the date first above written.
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AMERICAN COMMERCIAL LINES
HOLDINGS LLC
By:________________________________
THE MEMBER:
ACLINES LLC
By: Xxxxxxxxx Holding Corporation,
its Managing Member
By:_________________________________
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
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EXHIBIT A
---------
MEMBER AND PERCENTAGE INTEREST
------------------------------
|-----------------------------------------|------------------------------------|
| NAME AND ADDRESS | PERCENTAGE |
| OF MEMBER | INTEREST |
|-----------------------------------------|------------------------------------|
|ACLines LLC, | 100% |
|a Delaware limited liability company | |
|c/x Xxxxxxxxx Holding Corporation | |
|767 Third Avenue | |
xXxx Xxxx, Xxx Xxxx 00000 | |
|-----------------------------------------|------------------------------------|
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