Exhibit 3.4
Execution Copy
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
ALMA SHIPPING LLC
A MARSHALL ISLANDS LIMITED LIABILITY COMPANY
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Dated: December 10, 1999
TABLE OF CONTENTS
1 DEFINED TERMS 1
2 ORGANIZATION 3
2.1 Formation..........................................................................3
2.2 Name...............................................................................3
2.3 Purposes...........................................................................3
2.4 Registered Office; Registered Agent................................................3
2.5 Principal Office...................................................................4
2.6 Term...............................................................................4
2.7 Liability to Third Parties.........................................................4
2.8 Certificate; Transfer of Ownership Interest; Pledge of Ownership Interest..........4
3 CAPITAL CONTRIBUTIONS 5
3.1 Capital Contributions..............................................................5
3.2 No Interest on Capital Contributions...............................................5
4 MANAGEMENT 5
4.1 Management By Members..............................................................5
4.2 Delegation of Authority and Duties.................................................6
4.3 Indemnification....................................................................7
4.4 Liability of Officers..............................................................8
5 DISTRIBUTIONS 8
5.1 Distributions/Available Cash.......................................................8
6 BOOKS AND RECORDS; FISCAL YEAR; BANK ACCOUNTS; TAX MATTERS 8
6.1 Books and Records..................................................................8
6.2 Fiscal Year........................................................................9
6.3 Bank Accounts......................................................................9
6.4 Tax Matters........................................................................9
7 MISCELLANEOUS 9
7.1 Complete Agreement.................................................................9
7.2 Governing Law.....................................................................10
7.3 Headings..........................................................................10
7.4 Severability......................................................................10
7.5 No Third Party Beneficiary........................................................10
7.6 Amendment.........................................................................10
Exhibit 1:........Form of Certificate
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
This Amended and Restated Limited Liability Company Agreement (the
"Agreement") of Alma Shipping LLC is made and entered into effective as of the
10th day of December, 1999 by OMI Corporation ("Parent").
RECITALS
WHEREAS, Alma Shipping LLC was formed by the Parent as a Marshall
Islands limited liability company (the "Company") on April 13, 1998 pursuant to
that certain Limited Liability Company Agreement dated as of April 9, 1998 (the
"Initial Limited Liability Company Agreement");
WHEREAS, Parent wishes to amend and restate the Initial Limited
Liability Company Agreement.
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 I. 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 Marshall Islands Limited Liability
Company Act (ss.22.1 ET SEQ of the Republic of the Marshall
Islands Associations Law), as the same may be amended from
time to time.
(b) "Agreement" shall mean this Amended and Restated Limited
Liability Company Agreement as originally executed and as
amended, modified, supplemented or restated from to time in
accordance with the terms of this Agreement.
(c) "Business" shall mean engaging in any lawful activity
permitted by the Act, including but not limited to the
acquisition, ownership and operation of oceangoing vessels.
(d) "Certificate" shall have the meaning set forth in Section 2.1
of this Agreement.
(e) "Company" shall mean Alma Shipping LLC, a Marshall Islands
limited liability company formed in accordance with Section
2.1 of this Agreement.
(f) "Indemnified Party" shall have the meaning set forth in
Section 4.3 of this Agreement.
(g) "LLC Certificate" shall have the meaning set forth in Section
2.8 of this Agreement.
(h) "Member" shall mean Parent and shall have the same meaning as
the term "member" under the Act.
(i) "Parent" shall mean OMI Corporation, a corporation organized
and existing under the laws of the Marshall Islands.
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(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 Marshall Islands limited liability company by the
execution of that certain Certificate of Formation dated April 13, 1998
("Certificate") by Fredric S. London, an officer of the Parent, and the filing
of such Certificate on April 13, 1998 pursuant to the Act with the Republic of
the Marshall Islands Registrar of Corporations.
2.2 NAME.
The name of the Company shall be "Alma Shipping LLC" and all Company business
shall be conducted in that name or such other names that comply with applicable
law as Parent may from time to time designate.
2.3 PURPOSES.
The purposes for which the Company is established is to engage in any lawful
activity permitted by the Act, including the carrying on of the Business and any
other activity which the Company, in its sole discretion, shall deem necessary
or appropriate to carry on 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 Marshall Islands shall be the office of the initial registered
agent named in the Certificate or such other office as Parent may designate from
time to time in the manner provided by law. The registered agent of the Company
in the Republic of Marshall Islands shall be the initial registered agent
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named in the Certificate or such other person or persons as Parent 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 Parent.
2.6 TERM.
The Company was formed on April 13, 1998 and shall have perpetual existence,
unless the Company is dissolved in accordance with the Act.
2.7 LIABILITY TO THIRD PARTIES.
Parent shall not be liable for the debts, obligations or liabilities of the
Company, including, without limitation, under a judgment, decree or order of a
court.
2.8 CERTIFICATE; TRANSFER OF OWNERSHIP INTEREST; PLEDGE OF OWNERSHIP
INTEREST.
(a) Parent's ownership of its limited liability interest in the
Company shall be evidenced by a certificate of limited
liability interest ("LLC Certificate") substantially in the
form of Exhibit 1 hereto.
(b) Upon the endorsement by Parent on such LLC Certificate (or on
a separate transfer power) in favor of a third party
("Transferee") and the delivery of such Certificate (and such
separate power, if applicable) to the Transferee, Parent
shall be deemed to have assigned and transferred all its
right, title and interest in the Company and in this
Agreement to the Transferee and all references in this
Agreement to Parent shall be deemed to refer to the
Transferee, in each case effective as of the date of such
Certificate delivery.
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(c) The pledge of, or granting of a security interest, lien or
other encumbrance in or against, any or all of the limited
liability interest of Parent in the Company shall not cause
Parent to cease to be a Member or to have the power to
exercise any rights or powers of a Member.
3 CAPITAL CONTRIBUTIONS
3.1 CAPITAL CONTRIBUTIONS.
Parent 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 the
purposes for which the Company was formed and in consideration thereof, the LLC
Certificate shall be issued in favor of Parent as provided for in Section 2.8
above.
3.2 NO INTEREST ON CAPITAL CONTRIBUTIONS.
Except as otherwise expressly provided herein, Parent shall not receive any
interest on its capital contributions to the Company.
4 MANAGEMENT
4.1 MANAGEMENT BY MEMBERS.
The management of the Company shall be vested exclusively in its Members.
Parent, 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 such contracts,
agreements, undertakings and financial guarantees in the name
and on behalf of the Company;
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(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) collecting sums due to the Company;
(d) selecting, removing, and changing the authority and
responsibility of lawyers, auditors and other advisers and
consultants; and
(e) issuing Powers of Attorney in favor of such persons as it may
deem necessary or appropriate to carry out and implement any
decisions or actions taken pursuant to this Section 4.1.
Any correspondence sent by Parent, in its capacity as sole Member, on behalf of
the Company and any agreements, contracts or other documents executed by Parent,
in its capacity as sole Member, on behalf of the Company, including the LLC
Certificate, shall be signed by the Parent as follows:
ALMA shipping llc
By: OMI Corporation, its Sole Member
By:
---------------------------------
(Authorized Signatory)
4.2 DELEGATION OF AUTHORITY AND DUTIES.
(a) Parent may, from time to time as it deems advisable, appoint
and elect (as well as remove or replace with or without
cause) a President, a Treasurer and a Secretary and such
other officer positions assigned to individuals
(collectively, the "Officers"). Any two or more offices may
be held by the same person. The Officers shall serve without
compensation. If so appointed by the Parent, in its capacity
as sole Member, the Officers shall have the
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authority and duties as may from time to time be assigned to
them. Parent, in its capacity as sole Member, may remove or
replace any Officer at any time, with or without cause.
(b) Unless Parent decides otherwise, if the title of any person
authorized to act on behalf of the Company under this Section
4.2 is one commonly used for officers of a business
corporation formed under the Marshall Islands Business
Corporation Act, the assignment of such title shall
constitute the delegation to such person of the authority and
duties that are normally associated with that office, subject
to any specific delegation of, or restriction on, authority
and duties made pursuant to this Section 4.2. Any delegation
or restriction pursuant to this Section 4.2(b) may be revoked
at any time by Parent, with or without cause.
(c) Any person dealing with the Company may rely upon the
authority of the Parent, in its capacity as sole Member, or
any Officer designated in writing as such by Parent in
accordance with this Section 4.2 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.
(d) Unless authorized to do so by this Agreement or Parent, in
its capacity as sole Member, no Officer, 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.
4.3 INDEMNIFICATION.
Subject to Section 4.4 below, the Company shall indemnify and hold harmless, to
the fullest extent permitted by law, Parent, in its capacity as sole Member, and
each Officer, employee or duly appointed attorney-in-fact of the Company
(individually, an "Indemnified Party") from and against
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all costs, losses, liabilities, and damages paid or incurred by such Indemnified
Party in connection with the affairs of the Company.
4.4 LIABILITY OF OFFICERS.
(a) No Officer shall be personally liable for the debts and
obligations of the Company.
(b) No Officer shall be liable, responsible or accountable in
damages or otherwise to the Company or any Member for any
action taken or failure to act (even if such action or
failure to act constituted the simple negligence of that
Officer) on behalf of the Company within the scope of the
authority conferred on such Officer by this Agreement or by
law, unless such act or failure to act constituted gross
negligence or was performed or omitted willfully or
intentionally or in bad faith.
5 DISTRIBUTIONS
5.1 DISTRIBUTIONS/AVAILABLE CASH.
Parent, 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, Parent may make distributions to itself as sole Member, subject to
Section 22.6.7 of the Act.
6 BOOKS AND RECORDS; FISCAL YEAR; BANK ACCOUNTS; TAX MATTERS
6.1 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 Parent may from time to time determine.
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6.2 FISCAL YEAR.
Unless otherwise determined by Parent, 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.
6.3 BANK ACCOUNTS.
All funds of the Company will be deposited in its name in an account or accounts
maintained with such bank or banks selected by Parent. The funds of the Company
shall not be commingled with the funds of any other Person. Checks shall be
drawn upon the Company account or accounts only for the purposes of the Company
and may be signed by such persons as may be designated by Parent.
6.4 TAX MATTERS.
Parent 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
Parent for U.S. federal income tax purposes and Parent shall file such elections
with the U.S. federal tax authorities as may be required to assure such tax
status effective as of the date hereof.
7 MISCELLANEOUS
7.1 COMPLETE AGREEMENT.
This Agreement and the exhibits hereto constitute the complete and exclusive
statement of the agreement regarding the formation of the Company and replace
and supersede all prior agreements regarding the formation of the Company.
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7.2 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 Marshall Islands
without giving regard to principles of conflicts of law.
7.3 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.
7.4 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.
7.5 NO THIRD PARTY BENEFICIARY.
This Agreement is made solely and specifically for the benefit of Parent and its
successors and assigns and no other Persons shall have any rights, interest or
claims hereunder or be entitled to any benefits under or on account of this
Agreement as a third party beneficiary or otherwise.
7.6 AMENDMENT.
All amendments to this Agreement must be in writing and signed by all of the
Members.
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IN WITNESS WHEREOF, this Amended and Restated Limited Liability Company
Agreement has been executed by a duly authorized representative of Parent as of
the date first set forth above.
OMI Corporation
By: /s/ Fredric S. London
-----------------------------
Name: Fredric S. London
Title: Senior Vice President
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EXHIBIT 1
CERTIFICATE OF LIMITED LIABILITY INTEREST
OF
ALMA SHIPPING LLC
ORGANIZED UNDER THE LAWS OF THE REPUBLIC OF THE MARSHALL ISLANDS
This Certificate evidences OMI Corporation's ownership of 100% of the limited
liability interests in Alma Shipping LLC (the "Company") subject to the
Certificate of Formation and Limited Liability Company Agreement of the Company.
This Certificate is a "security" governed by Article 8 of the New York State
Uniform Commercial Code. Witness, the signature of the Company by its duly
authorized member.
ALMA SHIPPING LLC
By: OMI Corporation, its Sole Member
By:
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Name:
Title: