LIMITED LIABILITY COMPANY AGREEMENT OF MARIE FLOOD, LLC
Exhibit 3.28
OF
XXXXX XXXXX, LLC
This Limited Liability Company Agreement (this “Agreement”) of Xxxxx Xxxxx, LLC, a
Delaware limited liability company (the “Company”), has been executed as of February 6,
2008, by U.S. United Ocean Services, LLC, as the sole member of the Company (the “Managing
Member”). 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 17, 2007, the Managing Member formed the Company as a limited liability
company under the Delaware Limited Liability Company Act (the “Act”) by the filing of the
Certificate of Formation of the Company with the with the Secretary of State of the State of
Delaware on such date; and
WHEREAS, the Managing Member wishes to set forth, among other things, how the business and
affairs of the Company shall be managed.
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. Formation and Name. The undersigned does hereby form a limited liability company
under the Act. The Managing Member confirms that Xxxxx X. Xxxxxxx is an “authorized person” within
the meaning of Section 18-201 of the Act. The name of the limited liability company is Xxxxx Xxxxx,
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 local 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 Stemmery Building Suite 300, 0000 Xxxxx 00xx 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 Delaware and shall be governed by Article 8 of the Uniform Commercial Code of Delaware.
(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.
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(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 18-802 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
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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. 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.
16. 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 Delaware, 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.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned has executed this Limited Liability Company Agreement as
of the date first above written.
| U.S. UNITED OCEAN SERVICES, LLC |
||||
| By: | United Maritime Group, LLC, | |||
| its Managing Member | ||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | Senior Vice President | |||
