EXHIBIT 3.2
LIMITED LIABILITY COMPANY AGREEMENT
OF
ARCH WESTERN FINANCE LLC
A DELAWARE LIMITED LIABILITY COMPANY
DATED AS OF JUNE 4, 2003
LIMITED LIABILITY COMPANY AGREEMENT
OF
ARCH WESTERN FINANCE LLC,
A DELAWARE LIMITED LIABILITY COMPANY
This Limited Liability Company Agreement (this "Agreement") of
Arch Western Finance LLC is entered into by Arch Western Resources, LLC, a
Delaware Limited Liability Company, together with any future member of the LLC,
(the "Member").
The Member, by execution of this Agreement, 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.), as amended
from time to time (the "Act"), and hereby agrees as follows:
1. Name.
The name of the limited liability company formed hereby is
Arch Western Finance LLC, (the "Company").
2. Maintenance.
The Company will be maintained as a limited liability company
under and pursuant to the Act and this Agreement. Except as provided in this
Agreement, the administration of the Company shall be governed by the Act.
3. Certificates.
The Certificate of Formation shall be filed with the Secretary
of State of the State of Delaware. Upon the filing of the Certificate of
Formation with the Secretary of State of the State of Delaware, the Member shall
thereafter be designated as an authorized person within the meaning of the Act.
4. Purposes.
The Company shall have all powers now or hereafter conferred
or permitted by the laws of the State of Delaware on limited liability companies
formed under the Act and, subject to the terms of this Agreement, may do any and
all lawful acts or things that are necessary, appropriate, incidental or
convenient for the furtherance and accomplishment of the purposes of the
Company. Without limiting the generality of the foregoing, the Company may enter
into, deliver and perform all contracts, agreements and other undertakings and
engage in all activities and transactions as may be necessary or appropriate to
carry out its purposes.
5. Registered Office and Agent.
The address of the registered office of the Company in the
State of Delaware is c/o The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, Wilmington, Delaware 19801. The name and address of
the registered agent of the Company for service of process on the Company in the
State of Delaware is The Corporation Trust Company, Corporation Trust Center,
1209 Orange Street, Wilmington, Delaware 19801.
6. Principal Executive Office.
The principal executive office of the Company shall be located
at, and the Company's business shall be conducted from, such place or places as
the Members may designate from time to time. The initial principal executive
office of the Company shall be located at One CityPlace Drive, Suite 300, St.
Louis, Missouri 63141.
7. Member.
The name, present mailing address and percentage interest of
the Member ("membership interest") is set forth on Schedule A. The membership
interest created hereunder as set forth on Schedule A are securities as defined
in Section 8-103(c) of the Uniform Commercial Code as adopted in Delaware. The
business and affairs of the Company shall be managed by a Board of Directors
selected, and subject to removal with or without cause, by the Member which
shall have all powers and rights necessary, appropriate or advisable to
effectuate and carry out the purposes and business of the Company. The Board of
Directors shall include those individuals listed on Schedule B attached hereto
which schedule may be revised by the Member at any time or from time to time.
The Directors will be deemed "Managers" within the meaning of the Act. Each
Member and Director 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); provided that,
except to the extent specifically referenced in this Agreement, no Member shall
have the authority to bind or otherwise act for the Company. Except for the
power to select and remove members of the Board of Directors, the Member shall
have no power or authority with respect to the operations of the Company and
shall only have the specific rights and privileges set forth herein or as
provided by applicable law.
8. Board of Directors
Meetings of the Board of Directors shall be held at the
principal place of business of the Company or at any other place that a majority
of the directors determines. In the alternative, meetings may be held by
conference telephone, provided that each director can hear the others. The
presence of a majority of the directors shall constitute a quorum for the
transaction of business. The vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors.
The Board of Directors may also make decisions, without
holding a meeting, by written consent of all of the directors. In connection
with the management of the business and affairs of the Company, the Board of
Directors and officers of the Company shall execute, deliver and file any
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. The execution by one Director or by one officer, as
applicable, or by one Member, as applicable, of any of the foregoing
certificates (and any amendments and/or restatements thereof) shall be
sufficient.
9. Officers.
The Managers may, from time to time as they deem advisable,
appoint officers of the Company (the "Officers") and assign in writing titles
(including, without limitation, President, Vice President, Secretary, and
Treasurer) to any such person. Unless the Managers decide otherwise, if the
title is one commonly used for officers of a business corporation formed under
the Delaware General Corporation Law, the assignment of such title shall
constitute the delegation to such person of the authorities and duties that are
normally associated with that office. The initial officers are listed on
Schedule C attached hereto which schedule may be revised by either the Member of
Managers at any time or from time to time. Any delegation pursuant to this
Section 9 may be revoked at any time by the Managers.
10. Limited Liability.
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 shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member of the
Company.
11. Capital Contributions.
The Member is deemed admitted as the Member of the Company
upon its execution and delivery of this Agreement. The Member will contribute
the amount of United States Dollars to the Company as listed on Schedule A
attached hereto.
12. Additional Contributions.
The Member is not required to make any additional capital
contribution to the Company. However, a Member may make additional capital
contributions to the Company at such times and in such amounts as determined by
the Member.
13. Allocation of Profits and Losses.
The Company's profits and losses shall be allocated to the
Member.
14. Distributions.
Distributions shall be made to the Member at the times and in
the aggregate amounts determined by the Member. Notwithstanding any provision to
the contrary contained in this Agreement, the Company shall not make a
distribution to any Member on account of its interests in the Company if such
distribution would violate Section 18-607 of the Act or other applicable law.
15. Other Business.
The Member may engage in or possess an interest in other
business ventures (unconnected with the Company) of every kind and description,
independently or with others. The Company shall not have any rights in or to
such independent ventures or the income or profits therefrom by virtue of this
Agreement.
16. Exculpation and Indemnification.
No Member, no Affiliate of a member, nor any Manager, Officer,
employee or agent of the Company ("Indemnified Party") shall be liable to the
Company, or any other person or entity who has an interest in the Company, for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Member or 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 such Member or Officer by this Agreement, unless such act or omission
constituted bad faith, gross negligence, fraud or willful misconduct. To the
full extent permitted by applicable law, an Indemnified Party shall be entitled
to indemnification from the Company for any loss, damage or claim incurred by an
Indemnified Party by reason of any act or omission performed or omitted by an
Indemnified Party in good faith on behalf of the Company and in a manner
reasonably believed to be within the scope of the authority conferred on an
Indemnified Party by this Agreement, unless such act or omission constituted bad
faith, gross negligence, fraud or willful misconduct; provided, however, that
any indemnity under this Section 16 shall be provided out of and to the extent
of Company assets only, and no Member shall have personal liability on account
thereof.
17. Assignments.
A Member may assign in whole or in part its limited liability
company interest with the written consent of all other Members. If a Member
transfers all of its interest in the Company pursuant to this Section, the
transferee shall be admitted to the Company upon its execution of an instrument
signifying its agreement to be bound by the terms and conditions of this
Agreement. Such admission shall be deemed effective immediately prior to the
transfer, and, immediately following such admission, the transferor Member shall
cease to be a member of the Company.
18. Resignation.
A Member may resign from the Company with the written consent
of the Member. If a Member is permitted to resign pursuant to this Section, an
additional
member shall be admitted to the Company, subject to Section 17, upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement. Such admission shall be deemed effective
immediately prior to the resignation, and, immediately following such admission,
the resigning Member shall cease to be a member of the Company.
19. Admission of Additional Members.
One or more additional members of the Company may be admitted
to the Company with the written consent of all of the Member.
20. Dissolution.
a. The Company shall dissolve, and its affairs shall be
wound up upon the first to occur of the following: (i) the written consent of
the Member, (ii) the retirement, resignation or dissolution of the Member or the
occurrence of any other event which terminates the continued membership of the
Member in the Company unless the business of the Company is continued in a
manner permitted by the Act, or (iii) the entry of a decree of judicial
dissolution under Section 18-802 of the Act.
b. The bankruptcy of the Member will not cause the
Member to cease to be a member of the Company and upon the occurrence of such an
event, the business of the Company shall continue without dissolution.
c. In the event of dissolution, the Company shall
conduct only such activities as are necessary to wind up its affairs (including
the sale of the assets of the Company in an orderly manner), and the assets of
the Company shall be applied in the manner, and in the order of priority, set
forth in Section 18-804 of the Act.
21. Separability of Provisions.
Each provision of this Agreement shall be considered separable
and if for any reasons any provision or provisions herein are determined to be
invalid, unenforceable or illegal under any existing or future law, such
invalidity, unenforceability or illegality shall not impair the operation of or
affect those portions of this Agreement which are valid, enforceable and legal.
22. Terms Generally.
The definitions in this Agreement shall apply equally to both
the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation." The words "herein", "hereof" and
"hereunder" and words of similar import refer to this Agreement in its entirety
and not to any part hereof unless the context shall otherwise require. All
references herein to Sections shall be deemed references to Sections of this
Agreement unless the context shall otherwise require. Unless the context shall
otherwise require, any references to any agreement or other
instrument or statute or regulation are to it as amended and supplemented from
time to time (and, in the case of a statute or regulation, to any corresponding
provisions of successor statutes or regulations).
23. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original of this Agreement.
24. Entire Agreement.
This Agreement constitutes the entire agreement of the Member
with respect to the subject matter hereof.
25. Governing Law.
This Agreement shall be governed by, and construed under, the
laws of the State of Delaware (without regard to conflict of laws principles),
all rights and remedies being governed by said laws.
26. Amendments.
This Agreement may not be modified, altered, supplemented or
amended except pursuant to a written agreement executed and delivered by the
Member.
IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as
of the 4th day of June, 2003.
THUNDER BASIN COAL COMPANY, LLC
Member
By: /s/ PAUL A. LANG
--------------------------
Paul A. Lang
President
SCHEDULE A
NAME AND ADDRESS AGREED VALUE OF
OF MEMBER CAPITAL CONTRIBUTION PERCENTAGE INTEREST
--------- -------------------- -------------------
Arch Western Resources, LLC $1,000.00 100%
One CityPlace Drive
Suite 300
CityPlace One
St. Louis, Missouri 63141
SCHEDULE B
DIRECTORS
Robert G. Jones
Robert J. Messey
SCHEDULE C
NAME TITLE
---- -----
Robert J. Mesey President
Robert G. Jones Vice President
James E. Florczak Vice President & Treasurer
C. David Steele Vice President - Tax
Janet L. Horgan Secretary
Anne W. O'Donnell Assistant Secretary