Exhibit 3.21
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
GRIFFON SHIPPING LLC
A Xxxxxxxx Islands Limited Liability Company
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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...............................................7
8.3 Headings....................................................8
8.4 Severability................................................8
8.5 Amendment...................................................8
Schedule 1: Ownership of LLC Shares
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
This Amended and Restated Limited Liability Company Agreement (the
"Agreement") of GRIFFON SHIPPING LLC (the "Company"), is made and entered into
effective as of the 29th day of August, 2006, by and among (i) the Company and
(ii) Eagle Bulk Shipping Inc., a corporation organized under the laws of the
Republic of the Xxxxxxxx Islands (the "Member").
RECITALS
WHEREAS, the Member desires to amend and restate the Company's existing
Limited Liability Company Agreement providing for the management of the Company
and its affairs and for the conduct of its business.
NOW, THEREFORE, it is agreed as follows:
1 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 Xxxxxxxx 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 Amended and Restated 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 Xxxxxxxx Islands
Registrar of Corporations pursuant to which the Company was
organized as a Xxxxxxxx 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.
2 ORGANIZATION
2.1 Formation.
The Company was formed as a limited liability company under the Act on
March 15, 2005, by the filing of the Certificate with the office of the Xxxxxxxx
Islands Registrar of Corporations. Any and all actions in connection with such
formation are hereby ratified, confirmed and approved.
2.2 Name.
The name of the Company formed by the filing of the Certificate is "Griffon
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.
2.3 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.
2.4 Registered Office; Registered Agent.
The registered office of the Company required by the Act to be maintained
in the Republic of the Xxxxxxxx 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 Xxxxxxxx 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.
2.5 Principal Office.
The principal office of the Company shall be the Company's registered
office except as otherwise may be determined by the Member.
2.6 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.
2.7 Authorized LLC Shares; Vote
(a) The aggregate number of LLC Shares of the Company authorized to
be issued pursuant to this Agreement is one hundred (100).
(b) The Member's ownership of LLC Shares in the Company is set forth
in Schedule 1 hereto.
(c) 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.
3 CAPITAL CONTRIBUTIONS
3.1 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.
3.2 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.
4 MANAGEMENT
4.1 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:
(a) entering into, making and performing contracts, agreements,
undertakings and guarantees of whatsoever kind and nature in the
name and on behalf of the Company;
(b) 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;
(c) selling, conveying, mortgaging, pledging, exchanging and
disposing of property;
(d) 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;
(e) 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;
(f) selecting, removing, and changing the authority and
responsibility of lawyers, auditors and other advisers and
consultants;
(g) 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
(h) 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.
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:
GRIFFON SHIPPING LLC
By: Eagle Bulk Shipping Inc., its Sole Member
By: ______________________________________
Name:
Title:
4.2 Delegation of Authority and Duties.
(a) 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.
(b) 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.
5 LIABILITY, EXCULPATION AND INDEMNIFICATION
5.1 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.
5.2 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.
5.3 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.
5.4 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.
5.5 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.
5.6 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
6.1 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.
7 BOOKS AND RECORDS; FISCAL YEAR; TAX MATTERS
7.1 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.
7.2 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.
7.3 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.
8 MISCELLANEOUS
8.1 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.
8.2 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
Xxxxxxxx Islands without giving regard to principles of conflicts of law.
8.3 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.
8.4 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.
8.5 Amendment.
All amendments to this Agreement must be in writing and signed by the
Company and the Member.
IN WITNESS WHEREOF, the Member and the Company have executed and delivered
this Agreement as of the date first set forth above.
EAGLE BULK SHIPPING INC.
By: /s/ Sophocles X. Xxxxxxx
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Name: Sophocles X. Xxxxxxx
Title: President and Chief Executive Officer
GRIFFON SHIPPING LLC
By: Eagle Bulk Shipping Inc., its sole member
By: /s/ Sophocles X. Xxxxxxx
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Name: Sophocles X. Xxxxxxx
Title: President and Chief Executive Officer
SCHEDULE 1
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Ownership of LLC Shares
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Member LLC Shares
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Eagle Bulk Shipping Inc. 100.0
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Total LLC Shares 100.0
