EXHIBIT 3.2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
AMERICAN COMMERCIAL LINES HOLDINGS LLC
a Delaware limited liability company
Dated as of May 29, 2002
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 (this "Agreement") is made and entered into as of May
29, 2002, by 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 "Company" means American Commercial Lines Holdings LLC, a Delaware
limited liability company.
1.4 "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.
1.5 "Managing Member" means ACLines LLC, a Delaware limited liability
company.
1.6 "Percentage Interest" means the percentage set forth opposite the
Managing Member's name on Exhibit A.
1.7 "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 periods after the consummation of the Exchange Offer,
such as alternative minimum tax carryforwards attributable to periods
-1-
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 hereinafter set forth. The rights and
liabilities of the Managing Member shall be as provided in the Act, except as
otherwise expressly provided herein. The Managing Member is hereby designated as
an authorized person, within the meaning of the Act, and 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 Managing Member determines that such is in the best
interests of the Company. The Managing Member may from time to time for
reasonable cause change the name of the Company.
2.3 Principal Place of Business. The principal office of the Company is
located at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxxx, Xxxxxxx, 00000, or such
other place as the Managing Member may from time to time designate. The Company
may maintain such other places of business as the Managing Member may deem
advisable from time to time.
2.4 Business Purpose. 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
Managing Member shall reasonably deem necessary or advisable. The Managing
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
Managing Member shall not have any obligation to offer any business opportunity
to the Company.
-2-
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 Managing Member 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.
ARTICLE III
ALLOCATIONS AND DISTRIBUTIONS
3.1 Allocations. All items of income, gain, loss, deduction and credit
shall be allocated to the Managing Member.
3.2 Distributions. At the times determined by the Managing Member, the
Company shall distribute to the Managing 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 Management of the Company. The business and affairs of the Company
shall be managed and controlled solely and exclusively by the Managing Member,
who shall have all of the rights that may be possessed by a member pursuant to
the Act and such rights and powers as are otherwise conferred by law or are
necessary, advisable or convenient for the management of the business and
affairs of the Company.
4.2 Expenses and Services of the Managing Member. The Managing Member may
charge the Company and be reimbursed for all expenses (including, without
limitation, legal fees and disbursements, accounting fees and disbursements and
travel expenses) incurred by the Managing Member in connection with the
Company's business or affairs, and may allocate to the Company on any basis
selected by the Managing Member in good faith which is consistent with good
accounting practices, a portion of any and all expenses incurred for the mutual
benefit of the Company and the other operations, businesses or affairs of the
Managing Member or its affiliates.
4.3 Liability of Managing Member.
4.3.1 The Managing Member will not be bound by, or be personally
liable for, the expenses, liabilities or obligations of the Company.
4.3.2 The Managing Member shall be indemnified and held harmless by
the Company from and against any and all claims, demands, liabilities, costs,
damages and causes of action of any nature whatsoever (including, without
limitation,
-3-
reasonable attorneys' fees or other expenses incurred in connection with
settlement or any legal proceeding, but excluding income taxes payable by the
Managing Member as a result of the Managing Member's ownership of an interest in
the Company) arising out of actions taken by the Managing Member in the
management of the Company's business or affairs. The indemnification rights
contained in this Section 4.3.2 shall be cumulative of, and in addition to, any
and all rights, remedies and recourse to which the Managing Member may be
entitled, whether pursuant to the provisions of this Agreement, at law or in
equity.
ARTICLE V
RECORDS, TAX MATTERS AND BANK ACCOUNTS
5.1 Books and Records. The Managing Member shall keep true and complete
records and books of account with respect to the operations of the Company.
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 Managing
Member.
5.3 Bank Accounts. The Managing Member, 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 Managing Member that, for
income tax purposes, the Company be treated as an entity that is disregarded as
an entity separate from its owner. The Managing 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.
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 Managing Member desires 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 Managing Member, as such, shall continue to be governed by this
Agreement.
6.2 Winding Up of Affairs. Upon the dissolution of the Company, the
Managing Member shall proceed diligently to wind up the affairs of the Company,
to
-4-
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.
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 Managing Member 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 Managing Member, and its respective successors and assigns. Each and
every successor-in-interest to the Managing 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 Managing Member.
7.3 Entire Agreement. This Agreement constitutes the full and complete
agreement of the party hereto with respect to the subject matter hereof and
supersedes all prior agreements, whether written or oral, between the party 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 Managing Member.
7.6 Applicable Law. This Agreement and the rights and obligations of the
party 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).
-5-
IN WITNESS WHEREOF, the Managing Member has executed this Agreement
as of the date first above written.
THE MANAGING MEMBER:
ACLINES LLC
By: /s/ Xxxxx Xxxxx
_________________________________
Name: Xxxxx Xxxxx
Title: President
-6-
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
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
-7-
