AMENDED AND RESTATED OPERATING AGREEMENT FOR
Exhibit 3.10
AMENDED AND RESTATED OPERATING AGREEMENT
FOR
U.S. UNITED BULK TERMINAL, LLC
This Amended and Restated Operating Agreement (this “Agreement”) of U.S. United Bulk
Terminal, LLC, a Louisiana limited liability company (the “Company”), has been executed as
of November 30, 2007, by United Maritime Group, LLC, as the sole member of the Company (the
“Managing Member”), and the Company. The Managing Member and any other Members admitted
from time to time in accordance with the terms hereof are individually referred to herein as a
“Member” and collectively referred to herein as the “Members”.
WITNESSETH:
WHEREAS, on December 14, 2000, the Company was formed as a limited liability company
under the Louisiana Limited Liability Company Law, La. R.S. 12:1301,
et seq. (the “Act”), by the
filing of the Articles of Organization of the Company with the Secretary of State of the State of
Louisiana on such date under the name Electro-Coal Transfer, L.L.C.; and
WHEREAS, on December 14, 2000, the Company entered into that certain Operating Agreement
(the “Operating Agreement”) for Electro-Coal Transfer, L.L.C.; and
WHEREAS, on January 31, 2002, the Company adopted and filed Amended and Restated Articles of
Organization, which among other things changed the name of the
Company to “TECO Bulk Terminal,
L.L.C.”; and
WHEREAS, on November 30, 2007, the Company filed Articles of Amendment to the Amended and
Restated Articles of Organization (the “Articles”), which among other things changed the
name of the Company to “U.S. United Bulk Terminal, LLC”; and
WHEREAS, the Managing Member wishes amend and restate the Operating Agreement and to set
forth, among other things, how the business and affairs of the Company shall be managed.
NOW, THEREFORE, the undersigned hereby agree to amend and restate the Operating Agreement
so that it provides, in its entirety, as follows:
1. Name. The name of the limited liability company is U.S. United Bulk Terminal, LLC.
The business of the Company may be conducted under any other name deemed necessary or desirable by
the Managing Member in order to comply with law. The undersigned resolves that the rights and
liabilities of the Company shall be as provided in the Act for members except as provided herein.
2. Business. The Company is formed for the object and purpose of, and the Company’s
business is, to engage in any and all lawful acts and activities for which limited
liability companies may be organized under the Act and to engage in any and all
activities necessary or incidental to the foregoing.
3. Principal Place of Business. The principal office of the Company shall be located
at 000 X. Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, or such other place as the Managing Member may
designate from time to time.
4. Duration. The Company shall continue in existence perpetually unless the Company is
dissolved and its affairs wound up in accordance with the Act or this Agreement. The Managing
Member may terminate this Agreement and dissolve the Company at any time.
5. Members. Unless other members are admitted pursuant to the terms hereof, the
Managing Member shall be the only member of the Company.
6. Management. The powers of the Company shall be exercised by or under the authority
of, and the business and affairs of the Company shall be managed under the direction of, the
Managing Member and the Managing Member may make all decisions and take all actions for the Company
as in its sole discretion it deems necessary or appropriate to carry out the purposes for which the
Company is being formed under this Agreement and to further the interests of the Company and its
Members.
7. Capital Contributions. Capital contributions shall be made in cash or in other
assets as may be agreed by the Managing Member.
8. Allocations of Profits and Losses/Distributions. All profits and losses of the
Company shall be allocated to the Managing Member. All distributions by the Company shall be
allocated in the same proportion as profits and losses.
9. Tax Status. It is intended that the Company shall be treated as a partnership for
federal, state, and local income tax purposes, and the Managing Member shall take all action
necessary to qualify for and receive such tax treatment.
10. New Members/Transfers. New members of the Company may be admitted only with the
written consent of the Managing Member. In the event of such admission, this Agreement shall be
amended and/or restated, as determined by the Managing Member, in its sole discretion.
11. Limited Liability of Members. The Members, including the Managing Member, shall
not be liable for any debts, obligations or liabilities of the Company.
12. Certificates.
(a) Certificates. The Company shall issue one or more certificates in the name of each
member certifying that the member named therein is a member on the books and records of the
Company. Upon the transfer of a membership interest in the Company, the Company shall issue a
replacement certificate according to procedures that the Managing Member may establish. Such
certificates shall be a “security” within the meaning of Article 8 of the Uniform Commercial Code
of Louisiana and shall be governed by Article 8 of the Uniform Commercial Code of Louisiana.
(b) Form of Certificate. The certificate shall be in any form approved by the
Managing Member or any officer of the Company executing the same, the execution and delivery
thereof to be conclusive evidence of the approval thereof. The certificate shall be executed by
the Managing Member or by at least one officer of the Company. Any certificate may, but shall not
be required, to include a form of assignment of membership interest.
(c) Lost, Stolen or Destroyed Certificates. The Company shall issue a new certificate
in place of any certificate previously issued if the registered owner of the certificate:
(i) makes proof, in form and substance satisfactory to the Company, that a previously
issued certificate has been lost, destroyed or stolen;
(ii) requests the issuance of a new certificate before the Company has notice that
the certificate has been acquired by a purchaser for value in good faith and without
notice of an adverse claim; and
(iii) satisfies any other reasonable requirements imposed by the Member.
(d) Registered Owner. The Company shall be entitled to treat the record holders of
any interest as the member and holder of such membership interest and shall not be bound to
recognize any equitable or other claim to or interest in such interest on the part of any other
person, whether or not the Company shall have actual or other notice hereof, except (i) as
otherwise provided by law and (ii) the interests of any pledge or other secured party (or agent
therefor).
13. Liquidation and Dissolution. Except as otherwise provided in this Section 13, the
Company shall continue in perpetuity. The Company shall be dissolved and its affairs wound up upon
the first to occur of (i) the written consent of the Managing Member; or (ii) the entry of a decree
of judicial dissolution under Section 12:1335 of the Act.
14. Winding up Affairs and Distribution of Assets.
(a) Upon a winding up of the Company, the Managing Member shall be the liquidating Member (the
“Liquidating Member”) and shall proceed to wind up the affairs of the Company, liquidate
the remaining property and assets of the Company and wind-up and terminate the business of the
Company. The Liquidating Member shall cause a full accounting of the assets and liabilities of the
Company to be taken and shall cause the assets to be liquidated and the business to be wound up as
promptly as possible by either or both of the following methods: (1) selling the Company assets and
distributing the net proceeds therefrom (after the payment of Company liabilities) to the Members
in accordance with Section 8 hereof; or (2) distributing the Company assets to the Members in kind
in accordance with Section 8 hereof (after adequate provision for all liabilities and expenses
shall have been made).
(b) If the Company shall employ method (1) as set forth in Section 14(a) in whole or part as a
means of liquidation, then the proceeds of such liquidation shall be applied in the following order
of priority: (i) first, to the expenses of such liquidation; (ii) second, to the debts and
liabilities of the Company to third parties, if any, in the order of priority provided by law;
(iii) third, a reasonable reserve shall be set up to provide for any contingent or unforeseen
liabilities or obligations of the Company to third parties (to be held and disbursed, at the
discretion of the Liquidating Member, by an escrow agent selected by the Liquidating Member) and at
the expiration of such period as the Liquidating Member may deem advisable, the balance remaining
in such reserve shall be distributed as provided herein; (iv) fourth, to debts of the Company to
the Members; and (v) fifth, to the Members in accordance with Section 8.
(c) In connection with the liquidation of the Company, the Members severally, jointly, or in
any combination upon which they may agree, shall have the first opportunity to make bids or tenders
for all or any portion of the assets of the Company, and such assets shall not be sold to an
outsider except only for a price higher than the highest and best bid of a single Member, the
Members jointly, or a combination of Members. Any bid made by a Member or Members for all or any
portion of the assets shall be made, if at all, within thirty (30) days after the Liquidating
Member or any other Member shall have requested such bids. A copy of each bid shall be delivered by
the Liquidating Member to each Member. Unless otherwise agreed by all Members, no Member shall be
entitled to raise its bid after submission thereof, whether in response to a bid received by the
Company from any other Member or third party, or otherwise.
15. Action by Written Consent. Any matter on which the Members are authorized to
take action under the Act, the Articles or this Agreement may be taken by the Members without
a meeting assembled if unanimous written consents to such action by the Members are signed by
the Members entitled to vote upon such action.
16. Amendments. The Managing Member may amend this Agreement at any time by written
instrument signed by it and filed with the books and records of the Company. Pending any
replacement or amendment of this Agreement, it is intended that the provisions of the Act be
controlling as to any matters not set forth in this Agreement.
17. Miscellaneous.
(a) Severability. If any provision of this Agreement is held to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
(b) Captions. All captions used in this Agreement are for convenience only and shall
not affect the meaning or construction of any provision hereof.
(c) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Louisiana, without regard to conflict of law principles.
(d) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Members and their respective successors and assigns.
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IN WITNESS WHEREOF, the undersigned have executed this Amended and Restated Operating
Agreement as of the date first above written.
UNITED MARITIME GROUP, LLC |
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By: | /s/ Xxx Xxxxxxx | |||
Name: | Xxx Xxxxxxx | |||
Title: | President | |||
U.S. UNITED BULK TERMINAL, LLC |
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By: | United Maritime Group, LLC, its Managing Member |
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By: | /s/ Xxx Xxxxxxx | |||
Name: | Xxx Xxxxxxx | |||
Title: | President | |||