LIMITED LIABILITY COMPANY AGREEMENT OF CERNICALO SHIPPING LLC A Marshall Islands Limited Liability Company
Exhibit
3.137
|
OF
CERNICALO
SHIPPING LLC
A
▇▇▇▇▇▇▇▇ Islands Limited Liability Company
|
TABLE OF
CONTENTS
|
1 DEFINED
TERMS
|
1
|
||
|
2 ORGANIZATION
|
2
|
||
|
2.1
Formation.
|
2
|
||
|
2.2
Name.
|
2
|
||
|
2.3
Purpose.
|
2
|
||
|
2.4
Registered Office; Registered Agent.
|
3
|
||
|
2.5
Principal Office.
|
3
|
||
|
2.6
Term.
|
3
|
||
|
2.7
Authorized LLC Shares; Vote
|
3
|
||
|
3 CAPITAL
CONTRIBUTIONS
|
3
|
||
|
3.1
Capital Contributions.
|
3
|
||
|
3.2
No Interest on Capital Contributions.
|
3
|
||
|
4 MANAGEMENT
|
4
|
||
|
4.1
Management By Member.
|
4
|
||
|
4.2
Delegation of Authority and Duties.
|
5
|
||
|
5 LIABILITY,
EXCULPATION AND INDEMNIFICATION
|
5
|
||
|
5.1
Liability.
|
5
|
||
|
5.2
Exculpation.
|
5
|
||
|
5.3
Indemnification.
|
6
|
||
|
5.4
Expenses.
|
6
|
||
|
5.5
Severability.
|
6
|
||
|
5.6
No Third Party Rights.
|
6
|
||
|
6 DISTRIBUTIONS
|
7
|
||
|
6.1
Distributions/Available Cash.
|
7
|
||
|
7 BOOKS
AND RECORDS; FISCAL YEAR; TAX MATTERS
|
7
|
||
|
7.1
Books and Records.
|
7
|
||
|
7.2
Fiscal Year.
|
7
|
||
|
7.3
Tax Matters.
|
7
|
||
|
8 MISCELLANEOUS
|
7
|
||
|
8.1
Complete Agreement.
|
7
|
||
|
8.2
Governing Law.
|
8
|
||
|
8.3
Headings.
|
8
|
||
|
8.4
Severability.
|
8
|
||
|
8.5
Amendment.
|
8
|
||
Schedule
1: Ownership of LLC Shares
i
This
Limited Liability Company Agreement (the “Agreement”) of CERNICALO SHIPPING LLC
(the “Company”), is made and entered into effective as of the 3rd day of
January, 2008, by Eagle Bulk Shipping Inc., a corporation organized under the
laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands (the “Member”).
RECITALS
WHEREAS,
the Member is the sole Member of the Company and desires to organize the Company
and provide for the management of the Company and its affairs and for the
conduct of its business.
NOW,
THEREFORE, it is agreed as follows:
DEFINED
TERMS
The terms used in this Agreement, with
their initial letters capitalized, shall, unless the context thereof otherwise
requires, have the meanings specified in this Article 1. The singular
shall include the plural and the masculine gender shall include the feminine and
neuter, and vice versa, as the context requires. When used in this
Agreement, the following terms shall have the meanings set forth
below:
|
(a)
|
“Act”
shall mean the Limited Liability Company Act of 1996 of the Republic of
the ▇▇▇▇▇▇▇▇ Islands, as the same may be amended from time to
time.
|
|
(b)
|
"Affiliate"
shall mean, with respect to a specified Person, any Person that directly,
or indirectly through one or more intermediaries, controls, is controlled
by, or is under common control with the specified Person. As
used in this definition, the term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting
securities, by contract or
otherwise
|
|
(c)
|
“Agreement”
shall mean this Limited Liability Company Agreement as originally executed
and as amended, modified, supplemented or restated from time to time in
accordance with the terms of this
Agreement.
|
|
(d)
|
“Business”
shall mean engaging in any lawful business, purpose or activity permitted
by the Act.
|
|
(e)
|
“Certificate”
shall mean the Certificate of Formation filed pursuant to the Act with the
Republic of the ▇▇▇▇▇▇▇▇ Islands Registrar of Corporations pursuant to
which the Company was organized as a ▇▇▇▇▇▇▇▇ Islands limited liability
company.
|
|
(f)
|
“Company”
shall have the meaning set forth in the
preamble.
|
|
(g)
|
"Covered
Person" means the Member, an Affiliate of the Member, any officer,
director, shareholder, partner, member, employee, representative or agent
of the Member or any of their respective Affiliates, or any current or
former officer, employee or agent of the Company or any of its
Affiliates.
|
|
(h)
|
“LLC
Shares” shall mean the aggregate limited liability company interests of
the Company authorized to be issued pursuant to this
Agreement.
|
|
(i)
|
“Member”
shall have the meaning set forth in the preamble and shall have the same
meaning as the term “member” under the
Act.
|
|
(j)
|
“Person”
shall mean a natural person, corporation, partnership, joint venture,
trust, estate, unincorporated association, limited liability company, or
any other juridical entity.
|
ORGANIZATION
Formation.
The Company was formed as a limited
liability company under the Act on January 3, 2008, by the filing of the
Certificate with the office of the ▇▇▇▇▇▇▇▇ Islands Registrar of
Corporations. Any and all actions in connection with such formation
are hereby ratified, confirmed and approved.
Name.
The name of the Company formed by the
filing of the Certificate is “Cernicalo Shipping LLC” and all Business of the
Company shall be conducted in the name set forth in the Certificate or such
other names that comply with applicable law as the Member may from time to time
designate.
Purpose.
The purpose for which the Company is
established is to engage in the Business and in any lawful activity permitted by
the Act as the Company may deem necessary, appropriate, proper, advisable,
convenient or incidental to or for the furtherance of the Business.
2
Registered
Office; Registered Agent.
The registered office of the Company
required by the Act to be maintained in the Republic of the ▇▇▇▇▇▇▇▇ Islands
shall be the office of the initial registered agent named in the Certificate or
such other office as the Member may designate from time to time in the manner
provided by law. The registered agent of the Company in the Republic
of the ▇▇▇▇▇▇▇▇ Islands shall be the initial registered agent named in the
Certificate or such other person or persons as the Member may designate from
time to time in the manner provided by law.
Principal
Office.
The principal office of the Company
shall be the Company’s registered office except as otherwise may be determined
by the Member.
Term.
The Company commenced its existence on
the date the Certificate was accepted for filing by the Registrar of
Corporations, and shall have perpetual existence unless the Company is dissolved
in accordance with the Act.
Authorized
LLC Shares; Vote
|
·
|
The
aggregate number of LLC Shares of the Company authorized to be issued
pursuant to this Agreement is one hundred
(100).
|
|
·
|
The
Member’s ownership of LLC Shares in the Company is set forth in Schedule 1
hereto.
|
|
·
|
Each
LLC Share owned by a Member shall entitle the Member to one (1) vote on
any matter brought before the Member for a vote. The Member shall own all
of the LLC Shares issued and
outstanding.
|
CAPITAL
CONTRIBUTIONS
Capital
Contributions.
The Member shall contribute such sums
and/or assets as it, in its sole discretion, shall deem necessary or appropriate
to enable the Company to carry out its Business.
No
Interest on Capital Contributions.
Except as otherwise expressly provided
herein, the Member shall not receive any interest on its capital contributions
to the Company.
3
MANAGEMENT
Management
By Member.
The management of the Company shall be
vested exclusively in the Member. The Member, in its capacity as sole
Member, may make all decisions and take all actions for the Company as in its
sole discretion it shall deem necessary or appropriate to enable the Company to
carry out the purposes for which the Company was formed including, without
limitation, the following:
|
|
entering
into, making and performing contracts, agreements, undertakings and
guarantees of whatsoever kind and nature in the name and on behalf of the
Company;
|
|
|
setting
aside reserves, opening and maintaining bank and investment accounts and
arrangements, drawing checks and other orders for the payment of money,
and designating individuals with authority to sign or give instructions
with respect to those accounts and
arrangements;
|
|
|
selling,
conveying, mortgaging, pledging, exchanging and disposing of
property;
|
|
|
incurring
liabilities, borrowing money, issuing notes, bonds and other obligations
and securing any of the Company’s obligations by mortgage or pledge of any
of the Company’s property or
income;
|
|
|
collecting
sums due to the Company; bringing and defending on behalf of the Company
actions and proceedings at law or in equity before any court or
governmental, administrative or other regulatory agency, body or
commission or otherwise;
|
|
|
selecting,
removing, and changing the authority and responsibility of lawyers,
auditors and other advisers and
consultants;
|
|
|
issuing
Powers of Attorney in favor of such persons as it may deem necessary or
appropriate to carry out and implement any decisions made or actions taken
on behalf of the Company pursuant to this Section 4.1;
and
|
|
|
the
adoption of such resolutions, including by unanimous written consent, as
it may deem necessary or appropriate to approve any decisions made or
actions taken on behalf of the Company pursuant to this Section
4.1.
|
4
Any correspondence sent by the Member,
in its capacity as sole Member, on behalf of the Company and any agreements,
contracts, undertakings, Powers of Attorney or other documents executed by the
Member, in its capacity as sole Member, on behalf of the Company shall be signed
by the Member as follows:
|
CERNICALO
SHIPPING LLC
|
|
|
By: Eagle
Bulk Shipping Inc., its Sole Member
|
|
|
By:
______________________________________
|
|
|
Name:
Title:
|
Delegation
of Authority and Duties.
|
|
Any
person dealing with the Company may rely upon the authority of the Member,
in its capacity as sole Member in taking any action in the name of the
Company without inquiry into the provisions of this Agreement or
compliance herewith, regardless of whether that action actually is taken
in accordance with the provisions of this
Agreement.
|
|
|
Unless
authorized to do so by this Agreement or the Member, in its capacity as
sole Member, no agent or employee of the Company shall have any power or
authority to bind the Company in any way, to pledge its credit, or to
render it liable pecuniarily for any
purpose.
|
LIABILITY,
EXCULPATION AND INDEMNIFICATION
Liability.
Except
as otherwise provided by the Act, all debts, obligations and liabilities of the
Company (including, without limitation, under a judgment, decree or order of a
court), whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Covered Person shall
be obligated personally for any such debt, obligation or liability of the
Company solely by reason of being a Covered Person.
Exculpation.
No
Covered Person shall be liable to the Company or any other Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Covered Person in good faith on behalf of the Company and in a
manner believed to be within the scope of authority conferred on such Covered
Person by this Agreement, except that a Covered Person shall be liable for any
such loss, damage or claim incurred by reason of such Covered Person’s gross
negligence, willful misconduct or willful breach of this Agreement.
5
Indemnification.
To
the fullest extent permitted by applicable law, the Company shall indemnify and
hold harmless each Covered Person from and against any and all losses, claims,
demands, liabilities, expenses, judgments, fines, settlements and other amounts
arising from any and all claims, demands, actions, suits, proceedings, civil,
criminal, administrative or investigative, in which the Covered Person may be
involved, or threatened to be involved; as a party or otherwise, by reason of
its management of the affairs of the Company or which relates to or arises out
of the Company or its property, business or affairs, except that no Covered
Person shall be entitled to such indemnification with respect to any loss,
damage or claim incurred by such Covered Person by reason of such Covered
Person’s gross negligence, willful misconduct or willful breach of this
Agreement; provided, that any
indemnity under this Section 5.3 shall be provided out of and to the extent of
Company assets only, and no Covered Person shall have any personal liability on
account thereof.
Expenses.
To
the fullest extent permitted by applicable law, expenses (including, without
limitation, reasonable attorneys’ fees, disbursements, fines and amounts paid in
settlement) incurred by a Covered Person in defending any claim, demand, action,
suit or proceeding relating to or arising out of their performance of their
duties on behalf of the Company shall, from time to time, be advanced by the
Company prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Company of an undertaking by or on behalf of the
Covered Person to repay such amount if it shall ultimately be determined by a
court of competent jurisdiction that the Covered Person is not entitled to be
indemnified as authorized in Section 5.3.
Severability.
To
the fullest extent permitted by applicable law, if any portion of this Article 5
shall be invalidated on any ground by any court of competent jurisdiction, then
the Company shall nevertheless indemnify each Covered Person as to costs,
charges and expenses (including reasonable attorneys’ fees), judgments, fines
and amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including an action by
or in the right of the Company, to the fullest extent permitted by any
applicable portion of this Article 5 that shall not have been
invalidated.
No
Third Party Rights.
Except
as expressly provided herein, none of the provisions of this Article 5 shall be
deemed to create or grant any rights in favor of any third party, including,
without limitation, any right of subrogation in favor of any insurer or surety.
The rights of indemnification granted hereunder shall survive the dissolution,
winding up and termination of the Company.
6
DISTRIBUTIONS
Distributions/Available
Cash.
The Member, in its capacity as sole
Member, shall in its sole discretion determine from time to time to what extent
(if any) the Company's cash on hand exceeds the current and anticipated needs of
the Company. To the extent any such excess exists, the Member may
make distributions to itself as sole Member, subject to Section 40 of the
Act.
BOOKS
AND RECORDS; FISCAL YEAR; TAX MATTERS
Books
and Records.
The books and records of the Company
shall, at the cost and expense of the Company, be kept and cause to be kept by
the Company at the principal office of the Company or at such other location as
the Member may from time to time determine.
Fiscal
Year.
Unless otherwise determined by the
Member, the Company’s books and records shall be kept on a December 31 calendar
year basis and shall reflect all Company transactions and be appropriate and
adequate for conducting the Company's affairs.
Tax
Matters.
The Member intends and acknowledges
that, for so long as it remains the sole Member of the Company, the Company
shall be disregarded as a separate entity from the sole Member for U.S. federal
income tax purposes and the Member shall file such elections with the U.S. tax
authorities as may be required to assure such tax status as such.
· MISCELLANEOUS
Complete
Agreement.
This Agreement constitutes the complete
and exclusive statement of the agreement regarding the management and governance
of the Company and it affairs and replaces and supersedes all prior agreements
regarding the management and governance of the Company and its
affairs.
7
Governing
Law.
This Agreement and the rights of the
parties hereunder will be governed by, interpreted, and enforced in accordance
with the laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands without giving regard to
principles of conflicts of law.
Headings.
All headings herein are inserted only
for convenience and ease of reference and are not to be considered in the
construction or interpretation of any provision of this Agreement.
Severability.
If any provision of this Agreement is
held to be illegal, invalid or unenforceable under the present or future laws
effective during the term of this Agreement, such provision will be fully
severable; this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this Agreement;
and the remaining provisions of this Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance from this Agreement. Furthermore, in
lieu of such illegal, invalid or unenforceable provision, there will be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
Amendment.
All amendments to this Agreement must
be in writing and signed by the Company and the Member.
8
IN
WITNESS WHEREOF, this Limited Liability Company Agreement has been executed by a
duly authorized representative of the sole Member as of the date first set forth
above.
EAGLE
BULK SHIPPING INC.
By: /s/ Sophocles ▇.
▇▇▇▇▇▇▇
Name: Sophocles
▇. ▇▇▇▇▇▇▇
Title:
President and Chief Executive Officer
9
SCHEDULE
1
|
Ownership of LLC Shares
|
||||
|
Member
|
LLC Shares
|
|||
|
Eagle
Bulk Shipping Inc.
|
100.0
|
|||
|
Total
LLC Shares
|
100.0
|
|||
|
10
|