EXHIBIT 3.28
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
ORINOCO TASA LLC
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the
"Agreement") is made effective as of the 9th day of February, 2005, by and
between American Commercial Lines International LLC, a Delaware limited
liability company, as the sole member (the "Member"), and Orinoco TASA LLC, a
Delaware limited liability company (the "Company").
1. Formation of the Company. The Member hereby ratifies the
formation of the Company as a Delaware limited liability company pursuant to the
provisions of the Delaware Limited Liability Company Act (the "Act"), effective
as of the filing of the certificate of formation (the "Certificate") with the
Delaware Secretary of State.
2. Name of the Company. The name of the Company stated in the
Certificate and the limited liability company governed by this Agreement is
Orinoco TASA 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.
6. No Certificates of Membership Interest. The Company shall
maintain a written record setting forth the Member's full name, mailing address,
and Membership Interests. No Certificates shall be issued to evidence Membership
Interests in the Company. In no event may the Member assign, sell or otherwise
convey a Membership Interest to a third party without the prior written consent
of the Company.
7. 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.
8. 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 8 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.
9. Distributions. Distributions shall be made to the Member at the
times and in the aggregate amounts determined by the Board of Managers of the
Company (the "Board of Managers").
10. Appointment and Removal of Board of Managers. The business and
affairs of the Company shall be managed by its Board of Managers. Subject to
Section 13 hereof, the Managers shall have such rights and duties as are
provided in the Act, and shall have the power and authority to delegate to the
officers of the Company, if any, its rights and powers, or any portion thereof,
to manage and control the business and affairs of the Company. All actions of
the Board of Managers shall be taken by the consent or affirmative vote of a
majority of the Board of Managers, with or without a meeting.
The Board of Managers shall be composed of three (3) Managers.
Managers shall be appointed by the affirmative vote of the Member. Each Manager
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 Member in its
sole discretion. The salaries or other compensation, if any, of the Managers
shall be fixed by the Member. Any appointment pursuant to this Section 10 may be
revoked at any time by the Member.
11. Officers. The officers of the Company, if any, shall be
appointed by the Board of Managers 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 of Managers, the President
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
of Managers. A Vice President may be designated as an Executive Vice President,
a Senior Vice President or a Vice President with a functional title.
(c) Secretary. The Secretary shall attend all meetings of the
members of the Company and record their proceedings, unless a temporary
secretary be appointed. The Secretary shall give due notice, as required, of all
meetings of the members of the Company,
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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. The Secretary shall be the custodian of all
records, contracts, leases, and other papers and documents of the Company,
unless otherwise directed by the Board of Managers, and shall perform such other
duties as the Board of Managers, 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.
(d) 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 of Managers,
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.
(e) Subordinate Officers. Each subordinate officer shall hold office
for such period, have such authority, and perform such duties as the Board of
Managers may prescribe. The Board of Managers 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 of Managers. 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 of Managers 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 of Managers. Any appointment pursuant to
this Section 11 may be revoked at any time by the Board of Managers.
12. 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 of Managers to some
other officer or agent of the Company.
13. Limitations on Authority. The authority of the Board of Managers
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.
14. 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.
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15. 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 802 of the Act.
16. 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.
17. 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.
18. 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 written above.
AMERICAN COMMERCIAL LINES
INTERNATIONAL LLC, AS SOLE MEMBER
ATTEST:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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As: Secretary Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
ORINOCO TASA LLC
ATTEST:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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As: Secretary Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer