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 22nd day of January, 2003, 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 (the "Company").
1. Formation of the Company. The Company has filed a certificate of
formation (the "Certificate of Formation") with the Secretary of the State of
Delaware for the purpose of forming the Company as a limited liability company
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
of Formation 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,
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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 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.
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7. 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.
8. 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.
9. 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.
10. Distributions. Distributions shall be made to the Member at the times
and in the aggregate amounts determined by the Manager.
11. 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 inception, the Member has delegated its 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 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
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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.
12. 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:
(a) 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.
(b) 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.
(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 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.
(d) 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.
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(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 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.
(f) 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.
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 13 may be revoked at any time by the Board.
13. 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.
14. 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.
15. Indemnification. 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
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were related to actions or omissions of the Eligible Person constituting bad
faith, gross negligence, fraud or intentional misconduct.
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 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.
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 15 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.
The provisions of this Section 15 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 15 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 15 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 15 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 15 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.
For purposes of this Section 15, 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.
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16. Tax Matters. The Company hereby designates the Member, acting solely
through its Tax Matters Partner, ACLines LLC, 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.
17. Dissolution. The Company shall dissolve, and its affairs shall be wound
up, upon the first to occur of the following: (a) upon action by the Board with
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.
18. 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. Any action that may be taken by the Board at a
meeting may be taken without a meeting if a consent in writing setting forth the
action so taken is signed by all of the Managers.
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.
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IN WITNESS WHEREOF, the parties hereto have made this Agreement effective
as of the date and year first above written.
AMERICAN COMMERCIAL LINES
HOLDINGS LLC
By:
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AMERICAN COMMERCIAL LINES LLC
By:
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