1
EXHIBIT 3.5
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
AMERICAN COMMERCIAL LINES LLC
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT (the "Agreement") is made effective as of the 30th day of June, 1998,
by and between American Commercial Lines Holdings LLC, a Delaware limited
liability company, as the sole member (the "Member"), and American Commercial
Lines LLC, a Delaware limited liability company.
1. Formation of the Company. By execution of this Agreement, the
Member ratifies and confirms the actions of Louis G. Recher, Esquire, as its
duly authorized agent in connection with the filing of a certificate of
formation (the "Certificate") with the Secretary of the State of Delaware for
the purpose of forming American Commercial Lines LLC (the "Company"), a limited
liability company formed under the Delaware Limited Liability Company Act. 6
Del. C. Section 18-101, et seq. ("Act")
2. Name of the Company. The name of the Company stated in the
Certificate and the limited liability company governed by this Agreement is
"American Commercial Lines LLC."
3. Purpose. This 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.
4. Registered Office; Registered Agent. The registered office of the
Company in the State of Delaware is located at The Corporation Trust Center,
1209 Orange Street, Wilmington, New Castle County, Delaware 19801, and the
registered agent of the Company at such address is The Corporation Trust
Company.
5. Membership Interests. The Company shall be authorized to issue
one hundred (100) membership interests ("Membership Interests"), all of which
shall be issued to the Member. Membership Interests shall for all purposes be
personal property.
6. Certificate of Membership Interest. The Company shall issue to
the Member a limited liability company certificate in the form annexed hereto as
Exhibit I (a "Certificate"), evidencing the Membership Interests in the Company
held by such Member. The Certificate shall be transferable only on the books of
the Company, to be kept by the Secretary of the Company, on surrender thereof by
the registered holder in person or by attorney, and until so transferred, the
Company may treat the registered holder of a Certificate as the owner of the
interest evidenced thereby for all purposes whatsoever. Nothing contained in
this Section 6 shall authorize or permit the Member to transfer its interest
except as contemplated by Section 8. For the purposes of Article
2
8 in any Uniform Commercial Code, each interest in the Company as evidenced by a
Certificate shall be deemed to be a security, as such term is defined in any
Uniform Commercial Code.
7. Agreement to Pledge Membership Interests. Notwithstanding any
provision herein to the contrary, the Member shall pledge such Member's
Membership Interests in the Company to secure the indebtedness of the Company or
its subsidiaries. The Member hereby agrees to take any and all actions and
execute such instruments, agreements and other documents to effect the pledge of
such Member's Membership Interests.
8. Pledge of Membership Interests. To secure, among other things,
the payment and performance of the obligations of the Company to The Chase
Manhattan Bank as issuing bank and as administrative agent and collateral agent
("Chase") 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 June 30, 1998 among Chase, the Lenders, the Company and
American Commercial Lines Holdings LLC (as amended from time to time, the
"Credit Agreement"), the Member will pledge 100% of its Membership Interests in
the Company to Chase, for the benefit of itself and the Lenders. Said pledge is
hereby authorized by the Member and the Company. The books and records of the
Company shall be marked to reflect the pledge of the Membership Interests to
Chase, 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 Chase and, if the
Company is advised by Chase that an event of default has occurred under the
Credit Agreement, the Company will comply with the provisions of the Pledge
Agreement (as defined in the Credit Agreement) which is to be entered into and
dated as of June 30, 1998. No exercise by Chase of its rights under such Pledge
Agreement shall constitute a violation of or be prohibited by this Agreement and
Chase shall become a member upon such exercise.
9. Capital Contributions by the Member. The Member shall not be
obligated to make capital contributions to the Company, and the Membership
Interests shall be nonassessable.
10. Allocation of Profits and Losses. The Company's profits and
losses shall be allocated entirely to the Member, and the Member's distributive
share of income, gain, loss, deduction, or credit (or item thereof) shall be
determined and allocated in accordance with this Section 10 to the fullest
extent permitted by Sections 704(b) and (c) of the Internal Revenue Code
of 1986, as amended, and the treasury regulations promulgated thereunder.
11. Distributions. Distributions shall be made to the Member at the
times and in the aggregate amounts determined by the Manager.
12. Appointment and Removal of Manager. The Member is hereby
appointed as the sole manager of the Company (the "Manager"), as provided in
Sections 18-402 and 18-403 of the Act. The Manager shall have such rights
and duties as are provided by the Act, and shall have the power and authority to
delegate to the officers of the Company, if any, its right and powers, or any
portion thereof, to manage and control the business and affairs of the Company.
2
3
13. Officers. The officers of the Company, if any, shall be
appointed by the Manager 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:
(a) President. The President shall be the Chief Executive
Officer of the Company. Subject to the direction of the Manager, 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.
(b) Vice Presidents. The powers, duties, and responsibilities
of the Vice Presidents shall be fixed by the President, with the approval of the
Manager. A Vice President may be designated as an Executive Vice President, a
Senior Vice President or a Vice President with a functional title.
(c) 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 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 Manager, or the President,
may designate.
(d) Secretary. The Secretary shall attend all meetings of the
members of the Company and record their proceedings, unless a temporary
secretary be appointed. He shall give due notice, as required, of all meetings
of the members of the Company, and he shall keep, or cause to be kept, at a
place or places required by law, a record of the members and managers of the
Company, giving the names and addresses of all such members 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 Manager, and shall
perform such other duties as the Manager, 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.
(e) 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 Manager,
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.
(f) Subordinate Officers. Each subordinate officer shall hold
office for such period, have such authority, and perform such duties as the
Manager may prescribe. The
3
4
Manager may, from time to time, authorize any officer to appoint and remove
subordinate officers and to prescribe the powers and duties thereof.
Each such officer shall also have such additional powers and duties as from time
to time may be conferred by the Manager. 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 Manager in its sole discretion. The salaries or other
compensation, if any, of the officers and agents of the Company shall be fixed
by the Manager. Any appointment pursuant to this Section 13 may be revoked at
any time by the Manager.
14. 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 Manager to some other
officer or agent of the Company.
15. Limitations on Authority. The authority of the Manager 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.
16. Indemnification. The Company shall, to the fullest extent
authorized by the Act, indemnify and hold harmless any member, manager, officer
or employee of the Company from and against any and all claims and demands
arising by reason of the fact that such person is, or was, a member, manager,
officer or employee of the Company.
17. Dissolution. The Company shall dissolve, and its affairs shall
be wound up, upon the first to occur of the following: (a) the written consent
of the Member to such effect; and (b) the entry of a decree of judicial
dissolution under Section 18-802 of the Act.
l8. Consents. Any action that may be taken by the Member at a
meeting may be taken without a meeting if a consent in writing, setting forth
the action so taken, is signed by the Member.
19. Amendments. Except as otherwise provided in this Agreement or in
the Act, this Agreement may be amended only by the written consent of the Member
to such effect.
20. Governing Law. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have made this Agreement
effective as of the date and year first above-written.
4
5
AMERICAN COMMERCIAL LINES
HOLDINGS LLC
By: CSX BROWN CORP., as Manager
By: /s/ Gregory R. Weber
-----------------------------------
Gregory R. Weber
Title: Vice President and Treasurer
AMERICAN COMMERCIAL LINES LLC
By: /s/ Michael A. Khouri
-----------------------------------
Name: Michael A. Khouri
Title: Senior Vice President - Corporate
and Legal Affairs
5