-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IVLyVH6qHfm3c5Q52LF6Sg+wA0JnhLAXbxSNtJ50c0QSkFAzUqQeLBnIm09Ld99N AqOGWWqqX5isbF8RjWrFLg== 0000919574-06-003678.txt : 20060830 0000919574-06-003678.hdr.sgml : 20060830 20060830171521 ACCESSION NUMBER: 0000919574-06-003678 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 50 FILED AS OF DATE: 20060830 DATE AS OF CHANGE: 20060830 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Eagle Bulk Shipping Inc. CENTRAL INDEX KEY: 0001322439 STANDARD INDUSTRIAL CLASSIFICATION: DEEP SEA FOREIGN TRANSPORTATION OF FREIGHT [4412] IRS NUMBER: 980450435 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-137003 FILM NUMBER: 061066091 BUSINESS ADDRESS: STREET 1: 477 MADISON AVENUE STREET 2: SUITE 1405 CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 212-785-2500 MAIL ADDRESS: STREET 1: 477 MADISON AVENUE STREET 2: SUITE 1405 CITY: NEW YORK STATE: NY ZIP: 10022 S-3 1 d692821_s-3.txt As filed with the Securities Exchange Commission on August 30, 2006 Registration Statement No. 333 - - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------------------- EAGLE BULK SHIPPING INC. (Exact name of registrant as specified in its charter) Republic of the Marshall Islands 4412 98-0453513 - -------------------------------- -------------------- ------------------- (State or other jurisdiction of (Primary Standard (I.R.S. Employer incorporation or organization) Industrial Identification No.) Classification Code Number) Eagle Bulk Shipping Inc. Seward & Kissel LLP 477 Madison Avenue Attention: Gary J. Wolfe, Esq. New York, New York 10022 One Battery Park Plaza (212) 785-2500 New York, New York 10004 (Address and telephone (212) 574-1200 number of Registrant's (Name, address and telephone principal executive offices) number of agent for service) Copies to: Gary J. Wolfe, Esq. Seward & Kissel LLP One Battery Park Plaza New York, New York 10004 (212) 574-1200 (telephone number) (212) 480-8421 (facsimile number) Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_] If any of the securities being registered on this Form are being offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. [_] If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. [_] CALCULATION OF REGISTRATION FEE Proposed Proposed Title of Each Maximum Maximum Class of Aggregate Aggregate Amount of Securities to be Amount to be Price Per Offering Registration Registered Registered (1)(4) Unit (2) Price (1) Fee - -------------------------------------------------------------------------------- Primary Offering - -------------------------------------------------------------------------------- Common Shares, par value $ 0.01 per share (3) - -------------------------------------------------------------------------------- Preferred Shares, par value $ 0.01 per share(3) - -------------------------------------------------------------------------------- Debt Securities(3)(4) - -------------------------------------------------------------------------------- Guarantees(5) - -------------------------------------------------------------------------------- Warrants(6) - -------------------------------------------------------------------------------- Purchase Contracts(7) - -------------------------------------------------------------------------------- Units (8) - -------------------------------------------------------------------------------- Primary Offering Total $220,500,000 $23,593.50 - -------------------------------------------------------------------------------- Secondary Offering - -------------------------------------------------------------------------------- Common Shares, par alue $ 0.01 per share to be offered by certain selling shareholders 5,000,000 $15.90(9) $79,500,000(9) $8,506.50(9) - -------------------------------------------------------------------------------- Total $300,000,000.00 $32,100 - -------------------------------------------------------------------------------- (1) Such amount in U.S. dollars or the equivalent thereof in foreign currencies as shall result in an aggregate initial public offering price for all securities of $220,500,000. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o). Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. In no event will the aggregate offering price of all securities sold by Eagle Bulk Shipping Inc. pursuant to this registration statement exceed $220,500,000. (3) Also includes such indeterminate amount of debt securities and number of preferred shares and common shares as may be issued upon conversion of or in exchange for any other debt securities or preferred shares that provide for conversion or exchange into other securities. (4) If any debt securities are issued at an original issue discount, then the offering may be in such greater principal amount as shall result in a maximum aggregate offering price not to exceed $220,500,000. (5) The debt securities may be guaranteed pursuant to guarantees by the subsidiaries of Eagle Bulk Shipping Inc. No separate compensation will be received for the guarantees. Pursuant to Rule 457(n), no separate fees for the guarantees are payable. (6) There is being registered hereunder an indeterminate number of warrants as may from time to time be sold at indeterminate prices. (7) There is being registered hereunder an indeterminate number of purchase contracts as may from time to time be sold at indeterminate prices. (8) There is being registered hereunder an indeterminate number of units as may from time to time be sold at indeterminate prices. Units may consist of any combination of the securities registered hereunder. (9) Pursuant to Rule 457(c), the offering price and registration fee are computed on the average of the high and low prices for the common stock on the Nasdaq Global Select Market on August 28, 2006 (i.e. as of a date within five business days prior to filing). - -------------------------------------------------------------------------------- The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. - -------------------------------------------------------------------------------- TABLE OF ADDITIONAL REGISTRANTS Primary Standard Country of Industrial Name of Registrant Incorporation Classification Code No. - ------------------ ------------- ----------------------- Eagle Shipping International (USA) LLC Marshall Islands 4412 Condor Shipping LLC Marshall Islands 4412 Hawk Shipping LLC Marshall Islands 4412 Falcon Shipping LLC Marshall Islands 4412 Harrier Shipping LLC Marshall Islands 4412 Osprey Shipping LLC Marshall Islands 4412 Kite Shipping LLC Marshall Islands 4412 Sparrow Shipping LLC Marshall Islands 4412 Griffon Shipping LLC Marshall Islands 4412 Shikra Shipping LLC Marshall Islands 4412 Peregrine Shipping LLC Marshall Islands 4412 Cardinal Shipping LLC Marshall Islands 4412 Heron Shipping LLC Marshall Islands 4412 Merlin Shipping LLC Marshall Islands 4412 Jaeger Shipping LLC Marshall Islands 4412 Kestrel Shipping LLC Marshall Islands 4412 Tern Shipping LLC Marshall Islands 4412 Kittiwake Shipping LLC Marshall Islands 4412 Oriole Shipping LLC Marshall Islands 4412 Robin Shipping LLC Marshall Islands 4412 Eagle Bulk (Delaware) LLC United States (Delaware) Subject to completion dated August 30, 2006 $220,500,000 and 5,000,000 of our Common Shares Offered by a selling shareholder Through this prospectus, we may periodically offer: (1) our common shares, (2) our preferred shares, (3) our debt securities, which may be guaranteed by one or more of our subsidiaries, (4) our warrants, (5) our purchase contracts, and (6) our units In addition, the selling shareholder named in the section "Selling Shareholder" may sell in one or more offerings pursuant to this registration statement up to 5,000,000 of our common shares that were previously acquired in a private transaction. We will not receive any of the proceeds from the sale of our common shares by the selling shareholder. The prices and other terms of the securities that we will offer will be determined at the time of their offering and will be described in a supplement to this prospectus. Our common shares are currently listed on the Nasdaq Global Select Market under the symbol "EGLE." The securities issued under this prospectus may be offered directly or through underwriters, agents or dealers. The names of any underwriters, agents or dealers will be included in a supplement to this prospectus. An investment in these securities involves risks. See the section entitled "Risk Factors" beginning on page 3. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this prospectus is , 2006. - -------------------------------------------------------------------------------- The information in this prospectus is not complete and may be changed. This prospectus is not an offer to sell thse securities and it is not soliciting an offer to buy or sell these securities in any jurisdiction where the offer or sale is not permitted. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. - -------------------------------------------------------------------------------- TABLE OF CONTENTS PROSPECTUS SUMMARY............................................................1 RISK FACTORS..................................................................3 USE OF PROCEEDS...............................................................3 FORWARD LOOKING STATEMENTS....................................................3 RATIO OF EARNINGS TO FIXED CHARGES............................................4 SELLING SHAREHOLDER...........................................................5 PLAN OF DISTRIBUTION..........................................................7 DESCRIPTION OF CAPITAL STOCK..................................................8 DESCRIPTION OF PREFERRED SHARES...............................................8 DESCRIPTION OF WARRANTS.......................................................8 DESCRIPTION OF DEBT SECURITIES................................................9 General ...........................................................10 Covenants...........................................................13 Modification of the Indentures......................................13 Events of Default...................................................14 Defeasance and Discharge............................................15 Defeasance of Certain Covenants.....................................15 Global Securities...................................................16 DESCRIPTION OF PURCHASE CONTRACTS............................................19 DESCRIPTION OF UNITS.........................................................19 EXPERTS......................................................................20 LEGAL MATTERS................................................................20 WHERE YOU CAN FIND ADDITIONAL INFORMATION....................................20 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..............................20 DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES...................................................22 INFORMATION NOT REQUIRED IN THE PROSPECTUS...................................23 ITEM 14......................................................................23 ITEM 15......................................................................23 ITEM 16......................................................................25 ITEM 17......................................................................25 Unless otherwise indicated, all dollar references in this prospectus are to U.S. dollars and financial information presented in this prospectus that is derived from financial statements incorporated by reference is prepared in accordance with accounting principles generally accepted in the United States. This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or Commission, using a shelf registration process. Under the shelf registration process, we may sell the common shares, preferred shares, debt securities, warrants, purchase contracts and units described in this prospectus in one or more offerings up to a total dollar amount of $220,500,000. In addition, a selling shareholder may sell in one or more offerings pursuant to this registration statement up to 5,000,000 of our common shares that were previously acquired in a private transaction. This prospectus provides you with a general description of the securities we or a selling shareholder may offer. Each time we or the selling shareholder offers securities, we will provide you with a prospectus supplement that will describe the specific amounts, prices and terms of the offered securities. The prospectus supplement may also add, update or change the information contained in this prospectus. You should read carefully both this prospectus and any prospectus supplement, together with the additional information described below. This prospectus does not contain all the information provided in the registration statement that we filed with the Commission. For further information about us or the securities offered hereby, you should refer to that registration statement, which you can obtain from the Commission as described below under "Where You Can Find More Information." PROSPECTUS SUMMARY This section summarizes some of the information that is contained later in this prospectus or in other documents incorporated by reference into this prospectus. As an investor or prospective investor, you should review carefully the risk factors and the more detailed information that appears later in this prospectus or is contained in the documents that we incorporate by reference into this prospectus. Our Company Eagle Bulk Shipping Inc., or the Company, is incorporated under the laws of the Republic of the Marshall Islands and headquartered in New York City. We are engaged primarily in the ocean transportation of a broad range of major and minor bulk cargoes, including iron ore, coal, grain, cement and fertilizer, along worldwide shipping routes. As of August 29, 2006, we owned and operated a modern fleet of 16 oceangoing vessels with a combined carrying capacity of 796,663 deadweight tons, or dwt, and an average age of 5.5 years. We are the largest U.S. based owner of Handymax dry bulk vessels. Handymax dry bulk vessels range in size from 35,000 to 60,000 dwt. Twelve of the 16 vessels in our operating fleet are classed as Supramax dry bulk vessels, a class of Handymax dry bulk vessels which range in size from 50,000 dwt to 60,000 dwt. These vessels have the cargo loading and unloading flexibility of on-board cranes while offering cargo carrying capacities approaching that of Panamax dry bulk vessels, which range in size from 60,000 to 100,000 dwt and must rely on port facilities to load and offload their cargoes. We believe that the cargo handling flexibility and cargo carrying capacity of the Supramax class vessels make them attractive to charterers. We carry out the commercial and strategic management of our fleet through our wholly owned subsidiary, Eagle Shipping International (USA) LLC, a Marshall Islands limited liability company that was formed in January 2005 and maintains its principle executive offices in New York City. Each of our vessels is owned by us through a separate wholly owned Marshall Islands limited liability company. We maintain our principal executive offices at 477 Madison Avenue, New York, New York 10022. Our telephone number at that address is (212) 785-2500. Our website address is www.eagleships.com. Information contained on our website does not constitute part of this annual report. Our Fleet The following table presents certain information concerning our fleet as of August 29, 2006. Daily Time Delivered Charter Vessel to Charterer Time Charter Expiration (1) Hire Rate - ------ ------------ --------------------------- --------- Cardinal April 19, 2005 March 2007 to June 2007 $26,500 Condor April 30, 2005 November 2006 to March 2007 $24,000 Falcon April 22, 2005 February 2008 to June 2008 $20,950 Griffon February 17, 2006 January 2007 to February 2007 $13,550 Harrier April 21, 2005 March 2007 to June 2007 $23,750 Hawk I April 28, 2005 March 2007 to June 2007 $23,750 Kite (2) April 17, 2006 March 2007 to May 2007 $14,750 Osprey I (3) September 1, 2005 May 2008 to September 2008 $21,000 Peregrine (4) July 1, 2005 October 2006 to January 2007 $24,000 Shikra (5) April 30, 2005 August 2006 to November 2006 $22,000 Sparrow July 20, 2005 November 2006 to Feb 2007 $22,500 Merlin October 26, 2005 October 2007 to December 2007 $24,000 Heron December 11, 2005 December 2007 to February 2008 $24,000 Kestrel I (6) July 1, 2006 December 2007 to April 2008 $18,750 Tern (7) July 3, 2006 December 2007 to April 2008 $19,000 Jaeger July 7, 2006 April 2007 to June 2007 $18,550 - ---------- (1) The date range provided represents the earliest and latest date on which the charterer may redeliver the vessel to the Company upon the termination of the charter. (2) The initial charter on the KITE at a daily charter rate of $25,000 ended in April 2006. (3) The charterer of the OSPREY I has an option to extend the charter period by up to 26 months at a daily time charter rate of $25,000. (4) Upon conclusion of the current charter, the PEREGRINE commences a new time charter at $20,500 per day for 24 to 26 months. (5) Upon conclusion of the current charter, the SHIKRA commences a new time charter at $14,800 per day for 11 to 13 months. (6) The charterer of the KESTREL I has an option to extend the charter period by 11 to 13 months at a daily time charter rate of $20,000 per day. (7) The charterer of the TERN has an option to extend the charter period by 11 to 13 months at a daily time charter rate of $20,500 per day. The Securities We may use this prospectus to offer up to $220,500,000 of: o common shares; o preferred shares; o debt securities, which may be guaranteed by one or more of our subsidiaries; o warrants; o purchase contracts; and o units. We may also offer securities of the types listed above that are convertible or exchangeable into one or more of the securities listed above. In addition, a selling shareholder may sell in one or more offerings pursuant to this registration statement up to 5,000,000 of our common shares that were previously acquired in private transactions. We will not receive any of its proceeds from the sale of our common shares sold by the selling shareholder. A prospectus supplement will describe the specific types, amounts, prices, and detailed terms of any of these securities that we or a selling shareholder may offer and may describe certain risks associated with an investment in the securities. Terms used in the prospectus supplement will have the meanings described in this prospectus, unless otherwise specified. RISK FACTORS We have identified a number of risk factors which you should consider before buying shares of our common shares or our other securities. These risk factors are incorporated by reference into this registration statement from the Company's Form 10-K filed on March 16, 2006. Please see "Incorporation of Certain Documents by Reference." In addition, you should also consider carefully the risks set forth under the heading "Risk Factors" in any prospectus supplement before investing in any of the securities offered by this prospectus. The occurrence of one or more of those risk factors could adversely impact our results of operations or financial condition. USE OF PROCEEDS Unless we specify otherwise in any prospectus supplement, we intend to use the net proceeds from the sale of securities offered by this prospectus to make vessel acquisitions and for capital expenditures, repayment of indebtedness, working capital, and general corporate purposes. We will not receive any of the proceeds from the sale of our common shares by the selling shareholder. FORWARD LOOKING STATEMENTS Matters discussed in this prospectus may constitute forward-looking statements. Forward-looking statements reflect our current views with respect to future events and financial performance and may include statements concerning plans, objectives, goals, strategies, future events or performance, and underlying assumptions and other statements, which are other than statements of historical facts. The forward-looking statements in this prospectus are based upon various assumptions, many of which are based, in turn, upon further assumptions, including without limitation, management's examination of historical operating trends, data contained in our records and other data available from third parties. Although Eagle Bulk Shipping Inc. believes that these assumptions were reasonable when made, because these assumptions are inherently subject to significant uncertainties and contingencies which are difficult or impossible to predict and are beyond our control, Eagle Bulk Shipping Inc. cannot assure you that it will achieve or accomplish these expectations, beliefs or projections. Important factors that, in our view, could cause actual results to differ materially from those discussed in the forward-looking statements include the strength of world economies and currencies, general market conditions, including changes in charterhire rates and vessel values, changes in demand that may affect attitudes of time charterers to scheduled and unscheduled drydocking, changes in our vessel operating expenses, including dry-docking and insurance costs, or actions taken by regulatory authorities, ability of our counterparties to perform their obligations under sales agreements and charter contracts on a timely basis, potential liability from future litigation, domestic and international political conditions, potential disruption of shipping routes due to accidents and political events or acts by terrorists. Risks and uncertainties are further described in reports filed by Eagle Bulk Shipping Inc. with the Commission. RATIO OF EARNINGS TO FIXED CHARGES The following table sets forth our ratio of earnings to fixed charges for the periods indicated: Period from January 26, 2005 (inception) to Six Months ended Period December 31, 2005 June 30, 2006 - ------ ----------------- ------------- Ratio of earnings to fixed charges 1.9 5.8 SELLING SHAREHOLDER Number of Shares of Number of Common Stock Percentage of Shares of Shares Beneficially Owned (1) Shares That Beneficially Owned Common Stock to be ----------------------------- Will Be Following the Beneficially Owned After Name Number Percentage Offered Offering Completion of the Offering - ---- ------ ---------- ------- -------- -------------------------- Eagle Ventures LLC (2) 12,425,000 34.61% 5,000,000 7,425,000 20.68% Kelso Investment Associates VII, L.P. (2)(3) 10,134,804 28.23% 4,126,129 6,008,676 16.74% KEP VI, LLC (2)(3) 10,134,804 28.23% 4,126,129 6,008,676 16.74% Frank T. Nickell (2)(3)(4) 10,134,804 28.23% 4,126,129 6,008,676 16.74% Thomas R. Wall, IV (2)(3)(4) 10,134,804 28.23% 4,126,129 6,008,676 16.74% George E. Matelich (2)(3)(4) 10,134,804 28.23% 4,126,129 6,008,676 16.74% Michael B. Goldberg (2)(3)(4)(5) 10,134,804 28.23% 4,126,129 6,008,676 16.74% David I. Wahrhaftig (2)(3)(4) 10,134,804 28.23% 4,126,129 6,008,676 16.74% Frank K. Bynum, Jr. (2)(3)(4) 10,134,804 28.23% 4,126,129 6,008,676 16.74% Philip E. Berney (2)(3)(4) 10,134,804 28.23% 4,126,129 6,008,676 16.74% Frank J. Loverro (2)(3)(4)(5) 10,134,804 28.23% 4,126,129 6,008,676 16.74% James J. Connors, II (2)(3)(4) 10,134,804 28.23% 4,126,129 6,008,676 16.74%
- ---------- (1) Numbers and percentages for Eagle Ventures LLC, KIA VII, KEP VI and Messrs. Nickell, Wall, Matelich, Goldberg, Wahrhaftig, Bynum, Berney, Loverro and Connors are reflective of beneficial ownership of Eagle Ventures LLC common interests. (2) The business address for these persons is c/o Kelso & Company, L.P., 320 Park Avenue, 24th Floor, New York, NY 10022. (3) Includes shares of common stock held by: (i) Kelso Investment Associates VII, L.P., a Delaware limited partnership, or KIA VII, and (ii) KEP VI, LLC, or KEP VI. KIA VII and KEP VI may be deemed to share beneficial ownership of shares of common stock owned of record by Eagle Ventures LLC, by virtue of their ownership interests in Eagle Ventures LLC. KIA VII and KEP VI, due to their common control, could be deemed to beneficially own each of the other's shares. Shares and percentages indicated represent the upper limit of the expected ownership of our equity securities by these persons and entities. Each of KIA VII and KEP VI disclaim such beneficial ownership. (4) Messrs. Nickell, Wall, Matelich, Goldberg, Wahrhaftig, Bynum, Berney, Loverro and Connors may be deemed to share beneficial ownership of shares of common stock owned of record by Eagle Ventures LLC, by virtue of their status as managing members of KEP VI and of Kelso GP VII, LLC, a Delaware limited liability company, the principal business of which is serving as the general partner of Kelso GP VII, L.P., a Delaware limited partnership, the principal business of which is serving as the general partner of KIA VII. Each of Messrs. Nickell, Wall, Matelich, Goldberg, Wahrhaftig, Bynum, Berney, Loverro and Connors share investment and voting power with respect to the ownership interests owned by KIA VII and KEP VI but disclaim beneficial ownership of such interests. (5) Member of our board of directors PLAN OF DISTRIBUTION We may sell or distribute the securities included in this prospectus and the selling shareholder may sell our common shares through underwriters, through agents, to dealers, in private transactions, at market prices prevailing at the time of sale, at prices related to the prevailing market prices, or at negotiated prices. In addition, we or the selling shareholder may sell some or all of the securities included in this prospectus through: o a block trade in which a broker-dealer may resell a portion of the block, as principal, in order to facilitate the transaction; o purchases by a broker-dealer, as principal, and resale by the broker-dealer for its account; or o ordinary brokerage transactions and transactions in which a broker solicits purchasers. In addition, we or the selling shareholder may enter into option or other types of transactions that require us or them to deliver common shares to a broker-dealer, who will then resell or transfer the common shares under this prospectus. We may enter into hedging transactions with respect to our securities. For example, we may: o enter into transactions involving short sales of the common shares by broker-dealers; o sell common shares short themselves and deliver the shares to close out short positions; o enter into option or other types of transactions that require us to deliver common shares to a broker-dealer, who will then resell or transfer the common shares under this prospectus; or o loan or pledge the common shares to a broker-dealer, who may sell the loaned shares or, in the event of default, sell the pledged shares. We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified in the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell the securities short using this prospectus. Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent offering of other securities. Any broker-dealers or other persons acting on our behalf or the behalf of a selling shareholder that participates with us or a selling shareholder in the distribution of the securities may be deemed to be underwriters and any commissions received or profit realized by them on the resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act of 1933, as amended, or the Securities Act. As of the date of this prospectus, we are not a party to any agreement, arrangement or understanding between any broker or dealer and us with respect to the offer or sale of the securities pursuant to this prospectus. At the time that any particular offering of securities is made, to the extent required by the Securities Act, a prospectus supplement will be distributed, setting forth the terms of the offering, including the aggregate number of securities being offered, the purchase price of the securities, the initial offering price of the securities, the names of any underwriters, dealers or agents, any discounts, commissions and other items constituting compensation from us and any discounts, commissions or concessions allowed or reallowed or paid to dealers. Underwriters or agents could make sales in privately negotiated transactions and/or any other method permitted by law, including sales deemed to be an "at the market" offering as defined in Rule 415 promulgated under the Securities Act, which includes sales made directly on or through the Nasdaq Global Select Market, the existing trading market for our common shares, or sales made to or through a market maker other than on an exchange. We will bear costs relating to all of the securities being registered under this Registration Statement. Pursuant to a requirement by the National Association of Securities Dealers, Inc., or NASD, the maximum commission or discount to be received by any NASD member or independent broker/dealer may not be greater than eight percent (8%) of the gross proceeds received by us for the sale of any securities being registered pursuant to SEC Rule 415 under the Securities Act of 1933, as amended. DESCRIPTION OF CAPITAL STOCK Our description of capital stock can be found under the heading "Description of Capital Stock" in our registration statement on Form 8-A, (File No. 000-51366) as amended, filed with the SEC on June 20, 2005. DESCRIPTION OF PREFERRED SHARES The material terms of any series of preferred stock that we offer through a prospectus supplement will be described in that prospectus supplement. Subject to shareholder approval, the board of directors has the authority to issue preferred shares in one or more series and to determine the rights, preferences and restrictions, with respect to, among other things, dividends, conversion, voting, redemption, liquidation and the number of shares constituting any series. The issuance of preferred shares may have the effect of delaying, deferring or preventing a change in control of the Company without further action by the shareholders. The issuance of preferred shares with voting and conversion rights may adversely affect the voting power of the holders of common shares. DESCRIPTION OF WARRANTS We may issue warrants to purchase our debt or equity securities or securities of third parties or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing. Warrants may be issued independently or together with any other securities and may be attached to, or separate from, such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent. The terms of any warrants to be issued and a description of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus supplement. The applicable prospectus supplement will describe the following terms of any warrants in respect of which this prospectus is being delivered: o the title of such warrants; o the aggregate number of such warrants; o the price or prices at which such warrants will be issued; o the currency or currencies, in which the price of such warrants will be payable; o the securities or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more specified commodities, currencies, securities or indices, or any combination of the foregoing, purchasable upon exercise of such warrants; o the price at which and the currency or currencies, in which the securities or other rights purchasable upon exercise of such warrants may be purchased; o the date on which the right to exercise such warrants shall commence and the date on which such right shall expire; o if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; o if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such security; o if applicable, the date on and after which such warrants and the related securities will be separately transferable; o information with respect to book-entry procedures, if any; o if applicable, a discussion of any material United States Federal income tax considerations; and o any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants. DESCRIPTION OF DEBT SECURITIES We may issue debt securities from time to time in one or more series, under one or more indentures, each dated as of a date on or prior to the issuance of the debt securities to which it relates. We may issue senior debt securities and subordinated debt securities pursuant to separate indentures, a senior indenture and a subordinated indenture, respectively, in each case between us and the trustee named in the indenture. These indentures will be filed either as exhibits to an amendment to this Registration Statement or a prospectus supplement, or as an exhibit to a Securities Exchange Act of 1934, or Exchange Act, report that will be incorporated by reference to the Registration Statement or a prospectus supplement. We will refer to any or all of these reports as "subsequent filings." The senior indenture and the subordinated indenture, as amended or supplemented from time to time, are sometimes referred to individually as an "indenture" and collectively as the "indentures." Each indenture will be subject to and governed by the Trust Indenture Act. The aggregate principal amount of debt securities which may be issued under each indenture will be unlimited and each indenture will contain the specific terms of any series of debt securities or provide that those terms must be set forth in or determined pursuant to, an authorizing resolution, as defined in the applicable prospectus supplement, and/or a supplemental indenture, if any, relating to such series. Certain of our subsidiaries may guarantee the debt securities we offer. Those guarantees may or may not be secured by liens, mortgages, and security interests in the assets of those subsidiaries. The terms and conditions of any such subsidiary guarantees, and a description of any such liens, mortgages or security interests, will be set forth in the prospectus supplement that will accompany this prospectus. Our statements below relating to the debt securities and the indentures are summaries of their anticipated provisions, are not complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the applicable indenture and any applicable U.S. federal income tax consideration as well as any applicable modifications of or additions to the general terms described below in the applicable prospectus supplement or supplemental indenture. General Neither indenture limits the amount of debt securities which may be issued, and each indenture provides that debt securities may be issued up to the aggregate principal amount from time to time. The debt securities may be issued in one or more series. The senior debt securities will be unsecured and will rank on a parity with all of our other unsecured and unsubordinated indebtedness. Each series of subordinated debt securities will be unsecured and subordinated to all present and future senior indebtedness of debt securities will be described in an accompanying prospectus supplement. You should read the subsequent filings relating to the particular series of debt securities for the following terms of the offered debt securities: o the designation, aggregate principal amount and authorized denominations; o the issue price, expressed as a percentage of the aggregate principal amount; o the maturity date; o the interest rate per annum, if any; o if the offered debt securities provide for interest payments, the date from which interest will accrue, the dates on which interest will be payable, the date on which payment of interest will commence and the regular record dates for interest payment dates; o any optional or mandatory sinking fund provisions or conversion or exchangeability provisions; o the date, if any, after which and the price or prices at which the offered debt securities may be optionally redeemed or must be mandatorily redeemed and any other terms and provisions of optional or mandatory redemptions; o if other than denominations of $1,000 and any integral multiple thereof, the denominations in which offered debt securities of the series will be issuable; o if other than the full principal amount, the portion of the principal amount of offered debt securities of the series which will be payable upon acceleration or provable in bankruptcy; o any events of default not set forth in this prospectus; o the currency or currencies, including composite currencies, in which principal, premium and interest will be payable, if other than the currency of the United States of America; o if principal, premium or interest is payable, at our election or at the election of any holder, in a currency other than that in which the offered debt securities of the series are stated to be payable, the period or periods within which, and the terms and conditions upon which, the election may be made; o whether interest will be payable in cash or additional securities at our or the holder's option and the terms and conditions upon which the election may be made; o if denominated in a currency or currencies other than the currency of the United States of America, the equivalent price in the currency of the United States of America for purposes of determining the voting rights of holders of those debt securities under the applicable indenture; o if the amount of payments of principal, premium or interest may be determined with reference to an index, formula or other method based on a coin or currency other than that in which the offered debt securities of the series are stated to be payable, the manner in which the amounts will be determined; o any restrictive covenants or other material terms relating to the offered debt securities, which may not be inconsistent with the applicable indenture; o whether the offered debt securities will be issued in the form of global securities or certificates in registered or bearer form; o any terms with respect to subordination; o any listing on any securities exchange or quotation system; o additional provisions, if any, related to defeasance and discharge of the offered debt securities; o the applicability of any guarantees; o amount of discount or premium, if any, with which such securities will be issued; and o additional terms not inconsistent with the terms of the indenture. Unless otherwise indicated in subsequent filings with the Commission relating to the indenture, principal, premium and interest will be payable and the debt securities will be transferable at the corporate trust office of the applicable trustee. Unless other arrangements are made or set forth in subsequent filings or a supplemental indenture, principal, premium and interest will be paid by checks mailed to the holders at their registered addresses. Unless otherwise indicated in subsequent filings with the Commission, the debt securities will be issued only in fully registered form without coupons, in denominations of $1,000 or any integral multiple thereof. No service charge will be made for any transfer or exchange of the debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with these debt securities. Some or all of the debt securities may be issued as discounted debt securities, bearing no interest or interest at a rate which at the time of issuance is below market rates, to be sold at a substantial discount below the stated principal amount. United States federal income consequences and other special considerations applicable to any discounted securities will be described in subsequent filings with the Commission relating to those securities. We refer you to applicable subsequent filings with respect to any deletions or additions or modifications from the description contained in this prospectus. Senior Debt We will issue senior debt securities under the senior debt indenture. These senior debt securities will rank on an equal basis with all our other unsecured debt except subordinated debt. Subordinated Debt We will issue subordinated debt securities under the subordinated debt indenture. Subordinated debt will rank subordinate and junior in right of payment, to the extent set forth in the subordinated debt indenture, to all our senior debt (both secured and unsecured). In general, the holders of all senior debt are first entitled to receive payment of the full amount unpaid on senior debt before the holders of any of the subordinated debt securities are entitled to receive a payment on account of the principal or interest on the indebtedness evidenced by the subordinated debt securities in certain events. If we default in the payment of any principal of, or premium, if any, or interest on any senior debt when it becomes due and payable after any applicable grace period, then, unless and until the default is cured or waived or ceases to exist, we cannot make a payment on account of or redeem or otherwise acquire the subordinated debt securities. If there is any insolvency, bankruptcy, liquidation or other similar proceeding relating to us or our property, then all senior debt must be paid in full before any payment may be made to any holders of subordinated debt securities. Furthermore, if we default in the payment of the principal of and accrued interest on any subordinated debt securities that is declared due and payable upon an event of default under the subordinated debt indenture, holders of all our senior debt will first be entitled to receive payment in full in cash before holders of such subordinated debt can receive any payments. Senior debt means: o the principal, premium, if any, interest and any other amounts owing in respect of our indebtedness for money borrowed and indebtedness evidenced by securities, notes, debentures, bonds or other similar instruments issued by us, including the senior debt securities or letters of credit; o all capitalized lease obligations; o all hedging obligations; o all obligations representing the deferred purchase price of property; and o all deferrals, renewals, extensions and refundings of obligations of the type referred to above; o but senior debt does not include: o subordinated debt securities; and o any indebtedness that by its terms is subordinated to, or ranks on an equal basis with, our subordinated debt securities. Covenants Any series of offered debt securities may have covenants in addition to or differing from those included in the applicable indenture which will be described in subsequent filings prepared in connection with the offering of such securities, limiting or restricting, among other things: o the ability of us or our subsidiaries to incur either secured or unsecured debt, or both; o the ability to make certain payments, dividends, redemptions or repurchases; o our ability to create dividend and other payment restrictions affecting our subsidiaries; o our ability to make investments; o mergers and consolidations by us or our subsidiaries; o sales of assets by us; o our ability to enter into transactions with affiliates; o our ability to incur liens; and o sale and leaseback transactions. Modification of the Indentures Each indenture and the rights of the respective holders may be modified by us only with the consent of holders of not less than a majority in aggregate principal amount of the outstanding debt securities of all series under the respective indenture affected by the modification, taken together as a class. But no modification that: (1) changes the amount of securities whose holders must consent to an amendment, supplement or waiver; (2) reduces the rate of or changes the interest payment time on any security or alters its redemption provisions (other than any alteration to any such Section which would not materially adversely affect the legal rights of any holder under the indenture) or the price at which we are required to offer to purchase the securities; (3) reduces the principal or changes the maturity of any security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation; (4) waives a default or event of default in the payment of the principal of or interest, if any, on any security (except a rescission of acceleration of the securities of any series by the holders of at least a majority in principal amount of the outstanding securities of that series and a waiver of the payment default that resulted from such acceleration); (5) makes the principal of or interest, if any, on any security payable in any currency other than that stated in the Security; (6) makes any change with respect to holders' rights to receive principal and interest, the terms pursuant to which defaults can be waived, certain modifications affecting shareholders or certain currency-related issues; or (7) waives a redemption payment with respect to any Security or change any of the provisions with respect to the redemption of any securities will be effective against any holder without his consent. In addition, other terms as specified in subsequent filings may be modified without the consent of the holders. Events of Default Each indenture defines an event of default for the debt securities of any series as being any one of the following events: o default in any payment of interest when due which continues for 30 days; o default in any payment of principal or premium when due; o default in the deposit of any sinking fund payment when due; o default in the performance of any covenant in the debt securities or the applicable indenture which continues for 60 days after we receive notice of the default; o default under a bond, debenture, note or other evidence of indebtedness for borrowed money by us or our subsidiaries (to the extent we are directly responsible or liable therefor) having a principal amount in excess of a minimum amount set forth in the applicable subsequent filing, whether such indebtedness now exists or is hereafter created, which default shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such acceleration having been rescinded or annulled or cured within 30 days after we receive notice of the default; and o events of bankruptcy, insolvency or reorganization. An event of default of one series of debt securities does not necessarily constitute an event of default with respect to any other series of debt securities. There may be such other or different events of default as described in an applicable subsequent filing with respect to any class or series of offered debt securities. In case an event of default occurs and continues for the debt securities of any series, the applicable trustee or the holders of not less than 25% in aggregate principal amount of the debt securities then outstanding of that series may declare the principal and accrued but unpaid interest of the debt securities of that series to be due and payable. Any event of default for the debt securities of any series which has been cured may be waived by the holders of a majority in aggregate principal amount of the debt securities of that series then outstanding. Each indenture requires us to file annually after debt securities are issued under that indenture with the applicable trustee a written statement signed by two of our officers as to the absence of material defaults under the terms of that indenture. Each indenture provides that the applicable trustee may withhold notice to the holders of any default if it considers it in the interest of the holders to do so, except notice of a default in payment of principal, premium or interest. Subject to the duties of the trustee in case an event of default occurs and continues, each indenture provides that the trustee is under no obligation to exercise any of its rights or powers under that indenture at the request, order or direction of holders unless the holders have offered to the trustee reasonable indemnity. Subject to these provisions for indemnification and the rights of the trustee, each indenture provides that the holders of a majority in principal amount of the debt securities of any series then outstanding have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee as long as the exercise of that right does not conflict with any law or the indenture. Defeasance and Discharge The terms of each indenture provide us with the option to be discharged from any and all obligations in respect of the debt securities issued thereunder upon the deposit with the trustee, in trust, of money or U.S. government obligations, or both, which through the payment of interest and principal in accordance with their terms will provide money in an amount sufficient to pay any installment of principal, premium and interest on, and any mandatory sinking fund payments in respect of, the debt securities on the stated maturity of the payments in accordance with the terms of the debt securities and the indenture governing the debt securities. This right may only be exercised if, among other things, we have received from, or there has been published by, the United States Internal Revenue Service a ruling to the effect that such a discharge will not be deemed, or result in, a taxable event with respect to holders. This discharge would not apply to our obligations to register the transfer or exchange of debt securities, to replace stolen, lost or mutilated debt securities, to maintain paying agencies and hold moneys for payment in trust. Defeasance of Certain Covenants The terms of the debt securities provide us with the right to omit complying with specified covenants and that specified events of default described in a subsequent filing will not apply. In order to exercise this right, we will be required to deposit with the trustee money or U.S. government obligations, or both, which through the payment of interest and principal will provide money in an amount sufficient to pay principal, premium, if any, and interest on, and any mandatory sinking fund payments in respect of, the debt securities on the stated maturity of such payments in accordance with the terms of the debt securities and the indenture governing such debt securities. We will also be required to deliver to the trustee an opinion of counsel to the effect that we have received from, or there has been published by, the IRS a ruling to the effect that the deposit and related covenant defeasance will not cause the holders of such series to recognize income, gain or loss for federal income tax purposes. A subsequent filing may further describe the provisions, if any, of any particular series of offered debt securities permitting a discharge defeasance. Subsidiary Guarantees Certain of our subsidiaries may guarantee the debt securities we offer. In that case, the terms and conditions of the subsidiary guarantees will be set forth in the applicable prospectus supplement. Unless we indicate differently in the applicable prospectus supplement, if any of our subsidiaries guarantee any of our debt securities that are subordinated to any of our senior indebtedness, then the subsidiary guarantees will be subordinated to the senior indebtedness of such subsidiary to the same extent as our debt securities are subordinated to our senior indebtedness. Global Securities The debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depository identified in an applicable subsequent filing and registered in the name of the depository or a nominee for the depository. In such a case, one or more global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal amount of outstanding debt securities of the series to be represented by the global security or securities. Unless and until it is exchanged in whole or in part for debt securities in definitive certificated form, a global security may not be transferred except as a whole by the depository for the global security to a nominee of the depository or by a nominee of the depository to the depository or another nominee of the depository or by the depository or any nominee to a successor depository for that series or a nominee of the successor depository and except in the circumstances described in an applicable subsequent filing. We expect that the following provisions will apply to depository arrangements for any portion of a series of debt securities to be represented by a global security. Any additional or different terms of the depository arrangement will be described in an applicable subsequent filing. Upon the issuance of any global security, and the deposit of that global security with or on behalf of the depository for the global security, the depository will credit, on its book-entry registration and transfer system, the principal amounts of the debt securities represented by that global security to the accounts of institutions that have accounts with the depository or its nominee. The accounts to be credited will be designated by the underwriters or agents engaging in the distribution of the debt securities or by us, if the debt securities are offered and sold directly by us. Ownership of beneficial interests in a global security will be limited to participating institutions or persons that may hold interest through such participating institutions. Ownership of beneficial interests by participating institutions in the global security will be shown on, and the transfer of the beneficial interests will be effected only through, records maintained by the depository for the global security or by its nominee. Ownership of beneficial interests in the global security by persons that hold through participating institutions will be shown on, and the transfer of the beneficial interests within the participating institutions will be effected only through, records maintained by those participating institutions. The laws of some jurisdictions may require that purchasers of securities take physical delivery of the securities in certificated form. The foregoing limitations and such laws may impair the ability to transfer beneficial interests in the global securities. So long as the depository for a global security, or its nominee, is the registered owner of that global security, the depository or its nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by the global security for all purposes under the applicable indenture. Unless otherwise specified in an applicable subsequent filing and except as specified below, owners of beneficial interests in the global security will not be entitled to have debt securities of the series represented by the global security registered in their names, will not receive or be entitled to receive physical delivery of debt securities of the series in certificated form and will not be considered the holders thereof for any purposes under the indenture. Accordingly, each person owning a beneficial interest in the global security must rely on the procedures of the depository and, if such person is not a participating institution, on the procedures of the participating institution through which the person owns its interest, to exercise any rights of a holder under the indenture. The depository may grant proxies and otherwise authorize participating institutions to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a holder is entitled to give or take under the applicable indenture. We understand that, under existing industry practices, if we request any action of holders or any owner of a beneficial interest in the global security desires to give any notice or take any action a holder is entitled to give or take under the applicable indenture, the depository would authorize the participating institutions to give the notice or take the action, and participating institutions would authorize beneficial owners owning through such participating institutions to give the notice or take the action or would otherwise act upon the instructions of beneficial owners owning through them. Unless otherwise specified in an applicable subsequent filings, payments of principal, premium and interest on debt securities represented by global security registered in the name of a depository or its nominee will be made by us to the depository or its nominee, as the case may be, as the registered owner of the global security. We expect that the depository for any debt securities represented by a global security, upon receipt of any payment of principal, premium or interest, will credit participating institutions' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the global security as shown on the records of the depository. We also expect that payments by participating institutions to owners of beneficial interests in the global security held through those participating institutions will be governed by standing instructions and customary practices, as is now the case with the securities held for the accounts of customers registered in street names, and will be the responsibility of those participating institutions. None of us, the trustees or any agent of ours or the trustees will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial interests in a global security, or for maintaining, supervising or reviewing any records relating to those beneficial interests. Unless otherwise specified in the applicable subsequent filings, a global security of any series will be exchangeable for certificated debt securities of the same series only if: o the depository for such global securities notifies us that it is unwilling or unable to continue as depository or such depository ceases to be a clearing agency registered under the Exchange Act and, in either case, a successor depository is not appointed by us within 90 days after we receive the notice or become aware of the ineligibility; o we in our sole discretion determine that the global securities shall be exchangeable for certificated debt securities; or o there shall have occurred and be continuing an event of default under the applicable indenture with respect to the debt securities of that series. Upon any exchange, owners of beneficial interests in the global security or securities will be entitled to physical delivery of individual debt securities in certificated form of like tenor and terms equal in principal amount to their beneficial interests, and to have the debt securities in certificated form registered in the names of the beneficial owners, which names are expected to be provided by the depository's relevant participating institutions to the applicable trustee. In the event that the Depository Trust Company, or DTC, acts as depository for the global securities of any series, the global securities will be issued as fully registered securities registered in the name of Cede & Co., DTC's partnership nominee. DTC is a limited purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that its participating institutions deposit with DTC. DTC also facilitates the settlement among participating institutions of securities transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participating institutions' accounts, thereby eliminating the need for physical movement of securities certificates. Direct participating institutions include securities brokers and dealers, banks, trust companies, clearing corporations and other organizations. DTC is owned by a number of its direct participating institutions and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others, such as securities brokers and dealers and banks and trust companies that clear through or maintain a custodial relationship with a direct participating institution, either directly or indirectly. The rules applicable to DTC and its participating institutions are on file with the Commission. To facilitate subsequent transfers, the debt securities may be registered in the name of DTC's nominee, Cede & Co. The deposit of the debt securities with DTC and their registration in the name of Cede & Co. will effect no change in beneficial ownership. DTC has no knowledge of the actual beneficial owners of the debt securities. DTC's records reflect only the identity of the direct participating institutions to whose accounts debt securities are credited, which may or may not be the beneficial owners. The participating institutions remain responsible for keeping account of their holdings on behalf of their customers. Delivery of notices and other communications by DTC to direct participating institutions, by direct participating institutions to indirect participating institutions, and by direct participating institutions and indirect participating institutions to beneficial owners of debt securities are governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect. Neither DTC nor Cede & Co. consents or votes with respect to the debt securities. Under its usual procedures, DTC mails a proxy to the issuer as soon as possible after the record date. The proxy assigns Cede & Co.'s consenting or voting rights to those direct participating institution to whose accounts the debt securities are credited on the record date. If applicable, redemption notices shall be sent to Cede & Co. If less than all of the debt securities of a series represented by global securities are being redeemed, DTC's practice is to determine by lot the amount of the interest of each direct participating institutions in that issue to be redeemed. To the extent that any debt securities provide for repayment or repurchase at the option of the holders thereof, a beneficial owner shall give notice of any option to elect to have its interest in the global security repaid by us, through its participating institution, to the applicable trustee, and shall effect delivery of the interest in a global security by causing the direct participating institution to transfer the direct participating institution's interest in the global security or securities representing the interest, on DTC's records, to the applicable trustee. The requirement for physical delivery of debt securities in connection with a demand for repayment or repurchase will be deemed satisfied when the ownership rights in the global security or securities representing the debt securities are transferred by direct participating institutions on DTC's records. DTC may discontinue providing its services as securities depository for the debt securities at any time. Under such circumstances, in the event that a successor securities depository is not appointed, debt security certificates are required to be printed and delivered as described above. We may decide to discontinue use of the system of book-entry transfers through the securities depository. In that event, debt security certificates will be printed and delivered as described above. The information in this section concerning DTC and DTC's book-entry system has been obtained from sources that we believe to be reliable, but we take no responsibility for its accuracy. DESCRIPTION OF PURCHASE CONTRACTS We may issue purchase contracts for the purchase or sale of: o debt or equity securities issued by us or securities of third parties, a basket of such securities, an index or indices of such securities or any combination of the above as specified in the applicable prospectus supplement; o currencies; or o commodities. Each purchase contract will entitle the holder thereof to purchase or sell, and obligate us to sell or purchase, on specified dates, such securities, currencies or commodities at a specified purchase price, which may be based on a formula, all as set forth in the applicable prospectus supplement. We may, however, satisfy our obligations, if any, with respect to any purchase contract by delivering the cash value of such purchase contract or the cash value of the property otherwise deliverable or, in the case of purchase contracts on underlying currencies, by delivering the underlying currencies, as set forth in the applicable prospectus supplement. The applicable prospectus supplement will also specify the methods by which the holders may purchase or sell such securities, currencies or commodities and any acceleration, cancellation or termination provisions or other provisions relating to the settlement of a purchase contract. The purchase contracts may require us to make periodic payments to the holders thereof or vice versa, which payments may be deferred to the extent set forth in the applicable prospectus supplement, and those payments may be unsecured or prefunded on some basis. The purchase contracts may require the holders thereof to secure their obligations in a specified manner to be described in the applicable prospectus supplement. Alternatively, purchase contracts may require holders to satisfy their obligations thereunder when the purchase contracts are issued. Our obligation to settle such pre-paid purchase contracts on the relevant settlement date may constitute indebtedness. Accordingly, pre-paid purchase contracts will be issued under either the senior indenture or the subordinated indenture. DESCRIPTION OF UNITS As specified in the applicable prospectus supplement, we may issue units consisting of one or more purchase contracts, warrants, debt securities, preferred shares, common shares or any combination of such securities. The applicable prospectus supplement will describe: o the terms of the units and of the purchase contracts, warrants, debt securities, preferred shares and common shares comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately; o a description of the terms of any unit agreement governing the units; and a description of the provisions for the payment, settlement, transfer or exchange or the units. EXPERTS The Company's consolidated financial statements appearing in the Company's Annual Report on Form 10-K for the period ended December 31, 2005, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing. LEGAL MATTERS The validity of the securities offered by this prospectus will be passed upon for us by Seward & Kissel LLP, New York, New York with respect to matters of U.S. and Marshall Islands law. WHERE YOU CAN FIND ADDITIONAL INFORMATION We file annual and special reports within the Securities and Exchange Commission (the "Commission"). You may read and copy any document that we file at the Public Reference Room maintained by the Commission at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. You may obtain information on the operation of the Public Reference Room by calling 1 (800) SEC-0330, and you may obtain copies at prescribed rates from the Public Reference Section of the Commission at its principal office in Washington, D.C. 20549. The Commission maintains a website (http://www.sec.gov) that contains reports, proxy and information statements and other information regarding registrants that file electronically with the Commission. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The Commission allows us to "incorporate by reference" information that we file with it. This means that we can disclose important information to you by referring you to those filed documents. The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the Commission prior to the termination of this offering will also be considered to be part of this prospectus and will automatically update and supersede previously filed information, including information contained in this document. In all cases, you should rely on the later information over different information included in this prospectus or the prospectus supplement. We incorporate by reference the documents listed below and any future filings made with the Commission under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934: o Annual Report on Form 10-K for the period ended December 31, 2005, filed with the Commission on March 16, 2006; o Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2006 and filed with the Commission on May 10, 2006 and our Quarterly Report on Form 10-Q for the quarter ended June 30, 2006 and filed with the Commission and filed on August 10, 2006; o Our "Description of Capital Stock" contained in our registration statement on Form 8-A, (File No. 000-51366) as amended, filed with the SEC on June 20, 2005; o Our Current Reports filed with the Commission on January 30, 2006, January 31, 2006, April 18, 2006, June 23, 2006 (Item 1.01 and Item 3.02 only), June 29, 2006 (Item 3.02 only), July 25, 2006 and July 31, 2006 and our Current Reports on Form 8-K/A filed with the Commission on August 3, 2006 and August 3, 2006; and o All documents we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the date of this Prospectus (if they state that they are incorporated by reference into this prospectus) until we file a post-effective amendment indicating that the offering of the securities made by this prospectus has been terminated. You should rely only on the information contained or incorporated by reference in this prospectus and any accompanying prospectus supplement. We have not, and any underwriters have not, authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and the underwriters are not, making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus and any accompanying prospectus supplement as well as the information we previously filed with the Commission and incorporated by reference, is accurate as of the dates on the front cover of those documents only. Our business, financial condition and results of operations and prospects may have changed since those dates. Notwithstanding the foregoing, no information is incorporated by reference in this prospectus or any prospectus supplement where such information under applicable Forms and regulations of the SEC is not deemed to be "filed" under Section 18 of the Securities Exchange Act of 1934, as amended, or the Exchange Act, or otherwise subject to the liabilities of that section, unless we indicate in the report or filing containing such information that the information is to be considered "filed" under the Exchange Act or is to be incorporated by reference in this prospectus or any prospectus supplement. You may access our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and amendments to those documents filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act with the SEC free of charge at the SEC's website or our website at www.eagleships.com soon as reasonably practicable after such material is electronically filed with, or furnished to, the SEC. The reference to our website does not constitute incorporation by reference of the information contained in our website. We do not consider information contained on, or that can be accessed through, our website to be part of this prospectus or the related registration statement. You may request a free copy of the above mentioned filings or any subsequent filing we incorporated by reference to this prospectus by writing or telephoning us at the following address: Eagle Bulk Shipping Inc. 477 Madison Avenue New York, NY 10022 (212) 785-2500 DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES The Business Corporation Act (the "BCA") of the Marshall Islands authorizes corporations to limit or eliminate the personal liability of directors and officers to corporations and their stockholders for monetary damages for breaches of directors' fiduciary duties. Our bylaws include a provision that eliminates the personal liability of directors for monetary damages for actions taken as a director to the fullest extent permitted by law. Our Bylaws provide that we must indemnify our directors and officers to the fullest extent authorized by law. We are also expressly authorized to advance certain expenses (including attorneys' fees and disbursements and court costs) to our directors and offices and carry directors' and officers' insurance providing indemnification for our directors, officers and certain employees for some liabilities. We believe that these indemnification provisions and insurance are useful to attract and retain qualified directors and executive offices. The limitation of liability and indemnification provisions in our amended and restated articles of incorporation and bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit us and our stockholders. In addition, your investment may be adversely affected to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions. There is currently no pending material litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of each Registrant pursuant to the foregoing provisions, or otherwise, each Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a Registrant of expenses incurred or paid by a director, officer or controlling person of a Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, that Registrant will, unless in the opinion of its counsel the claim has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS Item 14. Other Expenses of Issuance and Distribution We estimate the expenses in connection with the issuance and distribution of securities in this offering to be as follows: SEC Registration Fee........................................... $32,100 Printing and Engraving Expenses................................ $10,000 Legal Fees and Expenses........................................ $100,000 Accountants' Fees and Expenses................................. $15,000 Nasdaq Fee..................................................... $45,000 Transfer Agent's Fees and Expenses............................. $20,000 Miscellaneous Costs............................................ $75,000 Total.......................................................... $297,100 Item 15. Indemnification of Directors and Officers. The bylaws of the Company provide that every director and officer of the Company shall be indemnified out of the funds of the Registrant against: (1) all civil liabilities, loss, damage or expense (including but not limited to liabilities under contract, tort and statute or any applicable foreign law or regulation and all reasonable legal and other costs and expenses properly payable) incurred or suffered by him as such director or officer acting in the reasonable belief that he has been so appointed or elected notwithstanding any defect in such appointment or election, provided always that such indemnity shall not extend to any matter which would render it void pursuant to any Marshall Islands statute from time to time in force concerning companies insofar as the same applies to the Registrant (the "Companies Acts"); and (2) all liabilities incurred by him as such director or officer in defending any proceedings, whether civil or criminal, in which judgment is given in his favor, or in which he is acquitted, or in connection with any application under the Companies Acts in which relief from liability is granted to him by the court. Section 60 of the Associations Law of the Republic of the Marshall Islands provides as follows: Indemnification of directors and officers. (1) Actions not by or in right of the corporation. A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of no contest, or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonable believed to be in or not opposed to the bests interests of the corporation, and, with respect to any criminal action or proceedings, had reasonable cause to believe that his conduct was unlawful. (2) Actions by or in right of the corporation. A corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director or officer of the corporation, or is or was serving at the request of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him or in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not, opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claims, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. (3) When director or officer successful. To the extent that a director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (1) or (2) of this section, or in the defense of a claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (4) Payment of expenses in advance. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid in advance of the final disposition of such action, suit or proceeding as authorized by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this section. (5) Continuation of indemnification. The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. (6) Insurance. A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director or officer against any liability asserted against him and incurred by him in such capacity whether or not the corporation would have the power to indemnify him against such liability under the provisions of this section. Item 16. Exhibits and Financial Statement Schedules. A list of exhibits included as part of this registration statement is set forth in the Exhibit Index which immediately precedes such exhibits and is incorporated herein by reference. Item 17. Undertakings. A. The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement, (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement. (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (A) Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: (i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as of the date the filed prospectus was deemed part of and included in this registration statement. (ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of this registration statement in reliance on Rule 430B relating to an offering made pursuant to 415(a)(1), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in this registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. (5) The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: (i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; (ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; (iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and (iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. (6) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (7) The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report, to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. (8) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules an regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. EAGLE BULK SHIPPING INC. By: /s/ Sophocles N. Zoullas ----------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on August 30, 2006 in the capacities indicated. Signature Title - --------- ----- /s/ Sophocles N. Zoullas Director, President and Chief Executive - ------------------------- Officer Sophocles N. Zoullas /s/ Michael B. Goldberg Director - -------------------------- Michael B. Goldberg /s/ Frank J. Loverro Director - ---------------------- Frank J. Loverro /s/ David B. Hiley Director - ------------------------ David B. Hiley /s/ Douglas P. Haensel Director - ------------------------ Douglas P. Haensel /s/ Michael Mitchell Director - ------------------------ Michael Mitchell /s/ Joseph Cianciolo Director - ------------------------ Joseph Cianciolo /s/ Alan S. Ginsberg Chief Financial Officer (Principal - ------------------------ Financial Officer and Principal Alan S. Ginsberg Accounting Officer) AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Eagle Bulk Shipping Inc., has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. EAGLE SHIPPING INTERNATIONAL (USA) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Eagle Shipping International (USA) LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. CONDOR SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Condor Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. HAWK SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Hawk Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. FALCON SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Falcon Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. HARRIER SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Harrier Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. OSPREY SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Osprey Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. KITE SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Kite Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. SPARROW SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Sparrow Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. GRIFFON SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Griffon Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. SHIKRA SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Shikra Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. PEREGRINE SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Peregrine Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. CARDINAL SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Cardinal Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. HERON SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Heron Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. MERLIN SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Merlin Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. JAEGER SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Jaeger Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. KESTREL SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Kestrel Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. TERN SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Tern Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. KITTIWAKE SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Kittiwake Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. ORIOLE SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Oriole Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. ROBIN SHIPPING LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, AUTHORIZED REPRESENTATIVE IN THE UNITED STATES Pursuant to the requirement of the Securities Act of 1933, the undersigned, the duly undersigned representative in the United States of Robin Shipping LLC, has signed this registration statement in the City of New York, State of New York, on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on August 30, 2006. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc., its Sole Member By: /s/ Sophocles N. Zoullas --------------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Sophocles N. Zoullas, Alan S. Ginsberg and Gary J. Wolfe his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement and any related registration statement filed pursuant to Rule 462(b), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, EXHIBIT INDEX Exhibit Number Description - -------------- ----------- 1.1 Form of Underwriting Agreement * 3.1 Amended and Restated Articles of Incorporation of the Company** 3.2 Amended and Restated By Laws of the Company** 3.3 Certification of Formation of Eagle Shipping LLC 3.4 Certificate of Amendment of Eagle Shipping LLC (changing name to Eagle Shipping International (USA) LLC) 3.5 Amended and Restated Limited Liability Company Agreement of Eagle Shipping International (USA) LLC 3.6 Certificate of Formation of Condor Shipping LLC 3.7 Amended and Restated Limited Liability Company Agreement of Condor Shipping LLC 3.8 Certificate of Formation of Hawk Shipping LLC 3.9 Amended and Restated Limited Liability Company Agreement of Hawk Shipping LLC 3.10 Certificate of Formation of Falcon Shipping LLC 3.11 Amended and Restated Limited Liability Company Agreement of Falcon Shipping LLC 3.12 Certificate of Formation of Harrier Shipping LLC 3.13 Amended and Restated Limited Liability Company Agreement of Harrier Shipping LLC 3.14 Certificate of Formation of Osprey Shipping LLC 3.15 Amended and Restated Limited Liability Company Agreement of Osprey Shipping LLC 3.16 Certificate of Formation of Kite Shipping LLC 3.17 Amended and Restated Limited Liability Company Agreement of Kite Shipping LLC 3.18 Certificate of Formation of Sparrow Shipping LLC 3.19 Amended and Restated Limited Liability Company Agreement of Sparrow Shipping LLC 3.20 Certificate of Formation of Griffon Shipping LLC 3.21 Amended and Restated Limited Liability Company Agreement of Griffon Shipping LLC 3.22 Certificate of Formation of Shikra Shipping LLC 3.23 Amended and Restated Limited Liability Company Agreement of Shikra Shipping LLC 3.24 Certificate of Formation of Peregrine Shipping LLC 3.25 Amended and Restated Limited Liability Company Agreement of Peregrine Shipping LLC 3.26 Certificate of Formation of Cardinal Shipping LLC 3.27 Amended and Restated Limited Liability Company Agreement of Cardinal Shipping LLC 3.28 Certificate of Formation of Heron Shipping LLC 3.29 Limited Liability Company Agreement of Heron Shipping LLC 3.30 Certificate of Formation of Merlin Shipping LLC 3.31 Limited Liability Company Agreement of Merlin Shipping LLC 3.32 Certificate of Formation of Jaeger Shipping LLC 3.33 Limited Liability Company Agreement of Jaeger Shipping LLC 3.34 Certificate of Formation of Kestrel Shipping LLC 3.35 Limited Liability Company Agreement of Kestrel Shipping LLC 3.36 Certificate of Formation of Tern Shipping LLC 3.37 Limited Liability Company Agreement of Tern Shipping LLC 3.38 Certificate of Formation of Kittiwake Shipping LLC 3.39 Limited Liability Company Agreement of Kittiwake Shipping LLC 3.40 Certificate of Formation of Oriole Shipping LLC 3.41 Limited Liability Company Agreement of Oriole Shipping LLC 3.42 Certificate of Formation of Robin Shipping LLC 3.43 Limited Liability Company Agreement of Robin Shipping LLC 3.44 Certificate of Formation of Eagle Bulk (Delaware) LLC 3.45 Limited Liability Company Agreement of Eagle Bulk (Delaware) LLC 4.1 Specimen Common Share Certificate** 4.2 Specimen Preferred Share Certificate* 4.3 Form of Common Stock warrant agreement * 4.4 Form of Preferred Stock warrant agreement * 4.5 Form of Purchase Contract warrant agreement * 4.6 Form of Unit warrant agreement * 4.7 Form of senior debt security 4.8 Form of subordinated debt security 5.1 Opinion of Seward & Kissel LLP, counsel to the Company, on the validity of the common stock 12 Computation of Ratio of Earnings to Fixed Charges 21 Subsidiaries of the Company 23.1 Consent of Seward & Kissel LLP (included in Exhibit 5.1) 23.2 Consent of Ernst & Young LLP 24 Power of Attorney (contained in signature page) 25.1 Form of T-1 Statement of Eligibility (senior indenture) * 25.2 Form of T-1 Statement of Eligibility (subordinated indenture) * * To be filed either as an amendment or as an exhibit to a report filed pursuant to the Securities Exchange Act of 1934 of the Registrant and incorporated by reference into this Registration Statement. ** Incorporated by reference from the Company's Form S-1/A (File No. 333-123817) filed with the Commission on June 22, 2005. SK 25083 0001 692821 EX-3.3 2 d542598_ex3-3.txt Exhibit 3.3 Execution Copy CERTIFICATE OF FORMATION OF EAGLE SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: EAGLE SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 26th day of January, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.4 3 d552727_ex3-4.txt Exhibit 3.4 CERTIFICATE OF AMENDMENT OF EAGLE SHIPPING LLC UNDER SECTION 10 OF THE LIMITED LIABILITY COMPANY ACT 1. The name of the Limited Liability Company is: Eagle Shipping LLC 2. The Certificate of Formation of the Limited Liability Company was filed on the 26th day of January, 2005. 3. Section 1 of Certificate of Formation of the Limited Liability Company is hereby amended to read as follows: 1. The name of the Limited Liability Company is: EAGLE SHIPPING INTERNATIONAL (USA) LLC 4. This Certificate of Amendment shall be effective upon filing with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment on this day of March, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.5 4 d698906_ex3-5.txt Exhibit 3.5 ================================================================================ AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF EAGLE SHIPPING INTERNATIONAL (USA) LLC A Marshall Islands Limited Liability Company ================================================================================ TABLE OF CONTENTS 1 DEFINED TERMS........................................................1 2 ORGANIZATION.........................................................2 2.1 Formation...................................................2 2.2 Name........................................................3 2.3 Purpose.....................................................3 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................................................4 3.1 Capital Contributions.......................................4 3.2 No Interest on Capital Contributions........................4 4 MANAGEMENT...........................................................4 4.1 Management By Member........................................4 4.2 Delegation of Authority and Duties..........................5 5 LIABILITY, EXCULPATION AND INDEMNIFICATION...........................6 5.1 Liability...................................................6 5.2 Exculpation.................................................6 5.3 Indemnification.............................................7 5.4 Expenses....................................................7 5.5 Severability................................................7 5.6 No Third Party Rights.......................................7 6 DISTRIBUTIONS........................................................8 6.1 Distributions/Available Cash................................8 7 BOOKS AND RECORDS; FISCAL YEAR; TAX MATTERS..........................8 7.1 Books and Records...........................................8 7.2 Fiscal Year.................................................8 7.3 Tax Matters.................................................8 8 MISCELLANEOUS........................................................8 8.1 Complete Agreement..........................................8 8.2 Governing Law...............................................8 8.3 Headings....................................................9 8.4 Severability................................................9 8.5 Amendment...................................................9 Schedule 1: Ownership of LLC Shares AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT This Amended and Restated Limited Liability Company Agreement (the "Agreement") of EAGLE SHIPPING INTERNATIONAL (USA) 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 and existing under the laws of the Republic of the Marshall 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 Marshall 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) "Amendment" shall mean the certificate of amendment of the Certificate of Eagle Shipping filed pursuant to the Act with the Republic of the Marshall Islands Registrar of Corporations pursuant to which the name of the Company was changed from Eagle Shipping LLC to Eagle Shipping International (USA) LLC. (e) "Business" shall mean engaging in any lawful business, purpose or activity permitted by the Act. (f) "Certificate" shall mean the Certificate of Formation filed pursuant to the Act with the Republic of the Marshall Islands Registrar of Corporations pursuant to which Eagle Shipping was organized as a Marshall Islands limited liability company. (g) "Company" shall have the meaning set forth in the preamble. (h) "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. (i) "Eagle Shipping" shall mean Eagle Shipping LLC, the predecessor name of the Company as set forth in the Certificate. (j) "LLC Shares" shall mean the aggregate limited liability company interests of the Company authorized to be issued pursuant to this Agreement. (k) "Member" shall have the meaning set forth in the preamble and shall have the same meaning as the term "member" under the Act. (l) "Officers" shall have the meaning set forth in Section 4.2 of this Agreement. (m) "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. Eagle Shipping was formed as a limited liability company under the Act on January 26, 2005 by the filing of the Certificate with the office of the Marshall Islands Registrar of Corporations. The name set forth in the Certificate was changed by the filing of the Amendment with the office of the Marshall Islands Registrar of Corporations on March 7, 2005. Any and all actions in connection with such formation and change of name are hereby ratified, confirmed and approved. 2.2 Name. The name of the Company formed by the filing of the Certificate, as amended by the Amendment, is "Eagle Shipping International (USA) LLC" and all Business of the Company shall be conducted in the name set forth in the Certificate, as amended by the Amendment, 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 Marshall 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 Marshall 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 accept 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 Members 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: EAGLE SHIPPING INTERNATIONAL (USA) LLC By: EAGLE BULK SHIPPING INC., its Sole Member By: ______________________________________ (Authorized Signatory) 4.2 Delegation of Authority and Duties. (a) Subject to the provisions of the next sentence, the Member hereby may, from time to time as it deems advisable, appoint and elect a President (who shall also be Chief Executive Officer), a Treasurer (who shall also be Chief Financial Officer), a Secretary and such other officer positions assigned to individuals (collectively, the "Officers"). Following the date hereof, the President shall have the right to appoint and elect the Officers of the corporation, subject to the prior approval of the Member (such approval not to be unreasonably withheld). Any two or more offices may be held by the same person. Unless otherwise provided in an employment or services agreement between the Company and such Officer, the Member, in its capacity as sole Member, may remove or replace any Officer at any time, with or without cause. (b) Unless the Member decides otherwise or unless otherwise provided in an employment or services agreement between the Company and such Officer, 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 Corporations 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. Unless otherwise provided in an employment or services agreement between the Company and such Officer, any delegation or restriction pursuant to this Section 4.2(b) may be revoked at any time by the Member, with or without cause. (c) Any person dealing with the Company may rely upon the authority of the Member, in its capacity as sole Member, or any Officer appointed in Section 4.2(a) or otherwise designated in writing as such by the Member 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. (d) Unless authorized to do so by this Agreement or the Member, 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. (e) The Member hereby appoints the following persons as officers of the Company, effective as of the date hereof: Sophocles N. Zoullas President and Chief Executive Officer Alan S. Ginsberg Treasurer and Chief Financial Officer 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 Marshall 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 all of the Members. 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 N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer EAGLE SHIPPING INTERNATIONAL (USA) LLC By: Eagle Bulk Shipping Inc., its sole member By: /s/ Sophocles N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer Schedule 1 ---------- Member's Ownership of LLC Shares -------------------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.6 5 d542598_ex3-6.txt Exhibit 3.6 Execution Copy CERTIFICATE OF FORMATION OF CONDOR SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: CONDOR SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 26th day of January, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.7 6 d698952_ex3-7.txt Exhibit 3.7 ================================================================================ AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF CONDOR SHIPPING LLC A Marshall 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...................................................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 CONDOR 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 Marshall 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 January 26, 2005, by the filing of the Certificate with the office of the Marshall 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 "Condor 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 Marshall 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 Marshall 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: CONDOR 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 Marshall 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 N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer CONDOR SHIPPING LLC By: Eagle Bulk Shipping Inc., its sole member By: /s/ Sophocles N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SCHEDULE 1 ---------- Ownership of LLC Shares ----------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.8 7 d542778_ex3-8.txt Exhibit 3.8 Execution Copy CERTIFICATE OF FORMATION OF HAWK SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: HAWK SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 26th day of January, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.9 8 d698898_ex3-9.txt Exhibit 3.9 ================================================================================ AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF HAWK SHIPPING LLC A Marshall 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...................................................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 HAWK SHIPPING LLC (the "Company"), is made and entered into effective as of the 29th day of August, 2006, by and among the (i) the Company and (ii) Eagle Bulk Shipping Inc., a corporation organized under the laws of the Republic of the Marshall 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 January 26, 2005, by the filing of the Certificate with the office of the Marshall 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 "Hawk 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 Marshall 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 Marshall 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: HAWK 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 Marshall 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 N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer HAWK SHIPPING LLC By: Eagle Bulk Shipping Inc., its sole member By: /s/ Sophocles N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SCHEDULE 1 ---------- Ownership of LLC Shares ----------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.10 9 d542598_ex3-10.txt Exhibit 3.10 Execution Copy CERTIFICATE OF FORMATION OF FALCON SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: FALCON SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 26th day of January, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.11 10 d698951_ex3-11.txt Exhibit 3.11 ================================================================================ AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF FALCON SHIPPING LLC A Marshall 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...................................................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 FALCON 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 Marshall 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 January 26, 2005, by the filing of the Certificate with the office of the Marshall 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 "Falcon 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 Marshall 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 Marshall 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: FALCON 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 Marshall 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 N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer FALCON SHIPPING LLC By: Eagle Bulk Shipping Inc., its sole member By: /s/ Sophocles N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SCHEDULE 1 ---------- Ownership of LLC Shares ----------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.12 11 d542598_ex3-12.txt Exhibit 3.12 Execution Copy CERTIFICATE OF FORMATION OF HARRIER SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: HARRIER SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 26th day of January, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.13 12 d698954_ex3-13.txt Exhibit 3.13 ================================================================================ AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF HARRIER SHIPPING LLC A Marshall 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...............................................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 HARRIER 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 Marshall 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 January 26, 2005, by the filing of the Certificate with the office of the Marshall 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 "Harrier 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 Marshall 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 Marshall 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: HARRIER 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 Marshall 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 N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer HARRIER SHIPPING LLC By: Eagle Bulk Shipping Inc., its sole member By: /s/ Sophocles N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SCHEDULE 1 ---------- Ownership of LLC Shares ----------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.14 13 d549695_ex3-14.txt Exhibit 3.14 Execution Copy CERTIFICATE OF FORMATION OF OSPREY SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: OSPREY SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 18th day of February, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.15 14 d698956_ex3-15.txt Exhibit 3.15 ================================================================================ AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF OSPREY SHIPPING LLC A Marshall 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...............................................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 OSPREY 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 Marshall 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 February 18, 2005, by the filing of the Certificate with the office of the Marshall 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 "Osprey 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 Marshall 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 Marshall 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: OSPREY 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 Marshall 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 N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer OSPREY SHIPPING LLC By: Eagle Bulk Shipping Inc., its sole member By: /s/ Sophocles N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SCHEDULE 1 ---------- Ownership of LLC Shares ----------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.16 15 d549696_ex3-16.txt Exhibit 3.16 Execution Copy CERTIFICATE OF FORMATION OF KITE SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: KITE SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 18th day of February, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.17 16 d698958_ex3-17.txt Exhibit 3.17 ================================================================================ AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF KITE SHIPPING LLC A Marshall 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...............................................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 KITE 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 Marshall 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 February 18, 2005, by the filing of the Certificate with the office of the Marshall 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 "Kite 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 Marshall 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 Marshall 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: KITE 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 Marshall 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 N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer KITE SHIPPING LLC By: Eagle Bulk Shipping Inc., its sole member By: /s/ Sophocles N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SCHEDULE 1 ---------- Ownership of LLC Shares ----------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.18 17 d549698_ex3-18.txt Exhibit 3.18 Execution Copy CERTIFICATE OF FORMATION OF SPARROW SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: SPARROW SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 18th day of February, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.19 18 d698959_ex3-19.txt Exhibit 3.19 ================================================================================ AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF SPARROW SHIPPING LLC A Marshall 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...............................................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 SPARROW 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 Marshall 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 February 18, 2005, by the filing of the Certificate with the office of the Marshall 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 "Sparrow 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 Marshall 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 Marshall 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: SPARROW 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 Marshall 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 N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SPARROW SHIPPING LLC By: Eagle Bulk Shipping Inc., its sole member By: /s/ Sophocles N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SCHEDULE 1 ---------- Ownership of LLC Shares ----------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.20 19 d555407_ex3-20.txt Exhibit 3.20 Execution Copy CERTIFICATE OF FORMATION OF GRIFFON SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: GRIFFON SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 15th day of March, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.21 20 d698960_ex3-21.txt Exhibit 3.21 ================================================================================ AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF GRIFFON SHIPPING LLC A Marshall 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...............................................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 Marshall 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 Marshall 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 Marshall 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 Marshall 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 Marshall 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 N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer GRIFFON SHIPPING LLC By: Eagle Bulk Shipping Inc., its sole member By: /s/ Sophocles N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SCHEDULE 1 ---------- Ownership of LLC Shares ----------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.22 21 d555408_ex3-22.txt Exhibit 3.22 Execution Copy CERTIFICATE OF FORMATION OF SHIKRA SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: SHIKRA SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 15th day of March, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.23 22 d698962_ex3-23.txt Exhibit 3.23 ================================================================================ AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF SHIKRA SHIPPING LLC A Marshall 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...............................................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 SHIKRA 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 Marshall 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 Marshall 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 "Shikra 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 Marshall 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 Marshall 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: SHIKRA 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 Marshall 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 N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SHIKRA SHIPPING LLC By: Eagle Bulk Shipping Inc., its sole member By: /s/ Sophocles N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SCHEDULE 1 ---------- Ownership of LLC Shares ----------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.24 23 d555410_ex3-24.txt Exhibit 3.24 Execution Copy CERTIFICATE OF FORMATION OF PEREGRINE SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: PEREGRINE SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 15th day of March, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.25 24 d698964_ex3-25.txt Exhibit 3.25 ================================================================================ AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF PEREGRINE SHIPPING LLC A Marshall 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...............................................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 PEREGRINE 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 Marshall 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 Marshall 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 "Peregrine 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 Marshall 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 Marshall 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: PEREGRINE 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 Marshall 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 N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer PEREGRINE SHIPPING LLC By: Eagle Bulk Shipping Inc., its sole member By: /s/ Sophocles N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SCHEDULE 1 ---------- Ownership of LLC Shares ----------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.26 25 d555411_ex3-26.txt Exhibit 3.26 Execution Copy CERTIFICATE OF FORMATION OF CARDINAL SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: CARDINAL SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 15th day of March, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.27 26 d698965_ex3-27.txt Exhibit 3.27 ================================================================================ AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF CARDINAL SHIPPING LLC A Marshall 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...............................................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 CARDINAL 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 Marshall 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 Marshall 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 "Cardinal 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 Marshall 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 Marshall 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: CARDINAL 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 Marshall 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 N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer CARDINAL SHIPPING LLC By: Eagle Bulk Shipping Inc., its sole member By: /s/ Sophocles N. Zoullas -------------------------- Name: Sophocles N. Zoullas Title: President and Chief Executive Officer SCHEDULE 1 ---------- Ownership of LLC Shares ----------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.28 27 d602895_ex3-28.txt Exhibit 3.28 Execution Copy CERTIFICATE OF FORMATION OF HERON SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: HERON SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 21st day of September, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.29 28 d698441_ex3-29.txt Exhibit 3.29 ================================================================================ LIMITED LIABILITY COMPANY AGREEMENT OF HERON SHIPPING LLC A Marshall Islands Limited Liability Company ================================================================================ TABLE OF CONTENTS 1 DEFINED TERMS.........................................................3 2 ORGANIZATION..........................................................4 2.1 Formation....................................................4 2.2 Name.........................................................4 2.3 Purpose......................................................4 2.4 Registered Office; Registered Agent..........................5 2.5 Principal Office.............................................5 2.6 Term.........................................................5 2.7 Authorized LLC Shares; Vote..................................5 3 CAPITAL CONTRIBUTIONS.................................................5 3.1 Capital Contributions........................................5 3.2 No Interest on Capital Contributions.........................5 4 MANAGEMENT............................................................6 4.1 Management By Member.........................................6 4.2 Delegation of Authority and Duties...........................7 5 LIABILITY, EXCULPATION AND INDEMNIFICATION............................7 5.1 Liability....................................................7 5.2 Exculpation..................................................7 5.3 Indemnification..............................................8 5.4 Expenses.....................................................8 5.5 Severability.................................................8 5.6 No Third Party Rights........................................8 6 DISTRIBUTIONS.........................................................9 6.1 Distributions/Available Cash.................................9 7 BOOKS AND RECORDS; FISCAL YEAR; TAX MATTERS...........................9 7.1 Books and Records............................................9 7.2 Fiscal Year..................................................9 7.3 Tax Matters..................................................9 8 MISCELLANEOUS.........................................................9 8.1 Complete Agreement...........................................9 8.2 Governing Law................................................9 8.3 Headings....................................................10 8.4 Severability................................................10 8.5 Amendment...................................................10 Schedule 1: Ownership of LLC Shares LIMITED LIABILITY COMPANY AGREEMENT This Limited Liability Company Agreement (the "Agreement") of HERON SHIPPING LLC (the "Company"), is made and entered into effective as of the 21st day of September, 2005, by Eagle Bulk Shipping Inc., a corporation organized under the laws of the Republic of the Marshall 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: 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 September 21, 2005, by the filing of the Certificate with the office of the Marshall 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 "Heron 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 Marshall 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 Marshall 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: HERON 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 Marshall 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, 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 Zoullas -------------------------- Name: Sophocles Zoullas Title: President and Chief Executive Officer SCHEDULE 1 ---------- Ownership of LLC Shares ----------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.30 29 d602894_ex3-30.txt Exhibit 3.30 Execution Copy CERTIFICATE OF FORMATION OF MERLIN SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: MERLIN SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 21st day of September, 2005. /s/ Derick W. Betts, Jr. -------------------------- Derick W. Betts, Jr. Authorized Person EX-3.31 30 d698442_ex3-31.txt Exhibit 3.31 ================================================================================ LIMITED LIABILITY COMPANY AGREEMENT OF MERLIN SHIPPING LLC A Marshall Islands Limited Liability Company ================================================================================ TABLE OF CONTENTS 1 DEFINED TERMS.........................................................3 2 ORGANIZATION..........................................................4 2.1 Formation....................................................4 2.2 Name.........................................................4 2.3 Purpose......................................................4 2.4 Registered Office; Registered Agent..........................5 2.5 Principal Office.............................................5 2.6 Term.........................................................5 2.7 Authorized LLC Shares; Vote..................................5 3 CAPITAL CONTRIBUTIONS.................................................5 3.1 Capital Contributions........................................5 3.2 No Interest on Capital Contributions.........................5 4 MANAGEMENT............................................................6 4.1 Management By Member.........................................6 4.2 Delegation of Authority and Duties...........................7 5 LIABILITY, EXCULPATION AND INDEMNIFICATION............................7 5.1 Liability....................................................7 5.2 Exculpation..................................................7 5.3 Indemnification..............................................8 5.4 Expenses.....................................................8 5.5 Severability.................................................8 5.6 No Third Party Rights........................................8 6 DISTRIBUTIONS.........................................................9 6.1 Distributions/Available Cash.................................9 7 BOOKS AND RECORDS; FISCAL YEAR; TAX MATTERS...........................9 7.1 Books and Records............................................9 7.2 Fiscal Year..................................................9 7.3 Tax Matters..................................................9 8 MISCELLANEOUS.........................................................9 8.1 Complete Agreement...........................................9 8.2 Governing Law................................................9 8.3 Headings....................................................10 8.4 Severability................................................10 8.5 Amendment...................................................10 Schedule 1: Ownership of LLC Shares LIMITED LIABILITY COMPANY AGREEMENT This Limited Liability Company Agreement (the "Agreement") of MERLIN SHIPPING LLC (the "Company"), is made and entered into effective as of the 21st day of September, 2005, by Eagle Bulk Shipping Inc., a corporation organized under the laws of the Republic of the Marshall 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: 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 September 21, 2005, by the filing of the Certificate with the office of the Marshall 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 "Merlin 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 Marshall 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 Marshall 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: MERLIN 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 Marshall 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, 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 Zoullas -------------------------- Name: Sophocles Zoullas Title: President and Chief Executive Officer SCHEDULE 1 ---------- Ownership of LLC Shares ----------------------- Member LLC Shares ------ ---------- Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.32 31 d678251_ex3-32.txt Exhibit 3.32 Execution Copy CERTIFICATE OF FORMATION OF JAEGER SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: JAEGER SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 14th day of June, 2006. /s/ Arthur Lichtenstein ------------------------- Arthur Lichtenstein Authorized Person EX-3.33 32 d680181_ex3-33.txt Exhibit 3.33 ================================================================================ LIMITED LIABILITY COMPANY AGREEMENT OF JAEGER SHIPPING LLC A Marshall Islands Limited Liability Company ================================================================================ TABLE OF CONTENTS 1 DEFINED TERMS........................................................3 2 ORGANIZATION.........................................................4 2.1 Formation...................................................4 2.2 Name........................................................4 2.3 Purpose.....................................................4 2.4 Registered Office; Registered Agent.........................5 2.5 Principal Office............................................5 2.6 Term........................................................5 2.7 Authorized LLC Shares; Vote.................................5 3 CAPITAL CONTRIBUTIONS................................................5 3.1 Capital Contributions.......................................5 3.2 No Interest on Capital Contributions........................5 4 MANAGEMENT...........................................................6 4.1 Management By Member........................................6 4.2 Delegation of Authority and Duties..........................7 5 LIABILITY, EXCULPATION AND INDEMNIFICATION...........................7 5.1 Liability...................................................7 5.2 Exculpation.................................................7 5.3 Indemnification.............................................8 5.4 Expenses....................................................8 5.5 Severability................................................8 5.6 No Third Party Rights.......................................8 6 DISTRIBUTIONS........................................................9 6.1 Distributions/Available Cash................................9 7 BOOKS AND RECORDS; FISCAL YEAR; TAX MATTERS..........................9 7.1 Books and Records...........................................9 7.2 Fiscal Year.................................................9 7.3 Tax Matters.................................................9 8 MISCELLANEOUS........................................................9 8.1 Complete Agreement..........................................9 8.2 Governing Law...............................................9 8.3 Headings...................................................10 8.4 Severability...............................................10 8.5 Amendment..................................................10 Schedule 1:.......Ownership of LLC Shares LIMITED LIABILITY COMPANY AGREEMENT This Limited Liability Company Agreement (the "Agreement") of JAEGER SHIPPING LLC (the "Company"), is made and entered into effective as of the 14th day of June, 2006, by Eagle Bulk Shipping Inc., a corporation organized under the laws of the Republic of the Marshall 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: 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 June 14, 2006, by the filing of the Certificate with the office of the Marshall 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 "Jaeger 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 Marshall 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 Marshall 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: JAEGER 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 Marshall 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, 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 Zoullas ---------------------------- Name: Sophocles Zoullas Title: President and Chief Executive Officer SCHEDULE 1 Ownership of LLC Shares Member LLC Shares Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.34 33 d678248_ex3-34.txt Exhibit 3.34 Execution Copy CERTIFICATE OF FORMATION OF KESTREL SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: KESTREL SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 14th day of June, 2006. /s/ Arthur Lichtenstein ------------------------- Arthur Lichtenstein Authorized Person EX-3.35 34 d680194_ex3-35.txt Exhibit 3.35 ================================================================================ LIMITED LIABILITY COMPANY AGREEMENT OF KESTREL SHIPPING LLC A Marshall Islands Limited Liability Company ================================================================================ TABLE OF CONTENTS 1 DEFINED TERMS....................................................3 2 ORGANIZATION.....................................................4 2.1 Formation...............................................4 2.2 Name....................................................4 2.3 Purpose.................................................4 2.4 Registered Office; Registered Agent.....................5 2.5 Principal Office........................................5 2.6 Term....................................................5 2.7 Authorized LLC Shares; Vote.............................5 3 CAPITAL CONTRIBUTIONS............................................5 3.1 Capital Contributions...................................5 3.2 No Interest on Capital Contributions....................5 4 MANAGEMENT.......................................................6 4.1 Management By Member....................................6 4.2 Delegation of Authority and Duties......................7 5 LIABILITY, EXCULPATION AND INDEMNIFICATION.......................7 5.1 Liability...............................................7 5.2 Exculpation.............................................7 5.3 Indemnification.........................................8 5.4 Expenses................................................8 5.5 Severability............................................8 5.6 No Third Party Rights...................................8 6 DISTRIBUTIONS....................................................9 6.1 Distributions/Available Cash............................9 7 BOOKS AND RECORDS; FISCAL YEAR; TAX MATTERS......................9 7.1 Books and Records.......................................9 7.2 Fiscal Year.............................................9 7.3 Tax Matters.............................................9 8 MISCELLANEOUS....................................................9 8.1 Complete Agreement......................................9 8.2 Governing Law...........................................9 8.3 Headings...............................................10 8.4 Severability...........................................10 8.5 Amendment..............................................10 Schedule 1:.......Ownership of LLC Shares LIMITED LIABILITY COMPANY AGREEMENT This Limited Liability Company Agreement (the "Agreement") of KESTREL SHIPPING LLC (the "Company"), is made and entered into effective as of the 14th day of June, 2006, by Eagle Bulk Shipping Inc., a corporation organized under the laws of the Republic of the Marshall 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: 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 June 14, 2006, by the filing of the Certificate with the office of the Marshall 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 "Kestrel 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 Marshall 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 Marshall 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: KESTREL 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 Marshall 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, 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 Zoullas ---------------------------- Name: Sophocles Zoullas Title: President and Chief Executive Officer SCHEDULE 1 Ownership of LLC Shares Member LLC Shares Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.36 35 d678250_ex3-36.txt Exhibit 3.36 Execution Copy CERTIFICATE OF FORMATION OF TERN SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: TERN SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 14th day of June, 2006. /s/ Arthur Lichtenstein ------------------------- Arthur Lichtenstein Authorized Person EX-3.37 36 d680204_ex3-37.txt Exhibit 3.37 ================================================================================ LIMITED LIABILITY COMPANY AGREEMENT OF TERN SHIPPING LLC A Marshall Islands Limited Liability Company ================================================================================ TABLE OF CONTENTS 1 DEFINED TERMS.....................................................3 2 ORGANIZATION......................................................4 2.1 Formation................................................4 2.2 Name.....................................................4 2.3 Purpose..................................................4 2.4 Registered Office; Registered Agent......................5 2.5 Principal Office.........................................5 2.6 Term.....................................................5 2.7 Authorized LLC Shares; Vote..............................5 3 CAPITAL CONTRIBUTIONS.............................................5 3.1 Capital Contributions....................................5 3.2 No Interest on Capital Contributions.....................5 4 MANAGEMENT........................................................6 4.1 Management By Member.....................................6 4.2 Delegation of Authority and Duties.......................7 5 LIABILITY, EXCULPATION AND INDEMNIFICATION........................7 5.1 Liability................................................7 5.2 Exculpation..............................................7 5.3 Indemnification..........................................8 5.4 Expenses.................................................8 5.5 Severability.............................................8 5.6 No Third Party Rights....................................8 6 DISTRIBUTIONS.....................................................9 6.1 Distributions/Available Cash.............................9 7 BOOKS AND RECORDS; FISCAL YEAR; TAX MATTERS.......................9 7.1 Books and Records........................................9 7.2 Fiscal Year..............................................9 7.3 Tax Matters..............................................9 8 MISCELLANEOUS.....................................................9 8.1 Complete Agreement.......................................9 8.2 Governing Law............................................9 8.3 Headings................................................10 8.4 Severability............................................10 8.5 Amendment...............................................10 Schedule 1:.......Ownership of LLC Shares LIMITED LIABILITY COMPANY AGREEMENT This Limited Liability Company Agreement (the "Agreement") of TERN SHIPPING LLC (the "Company"), is made and entered into effective as of the 14th day of June, 2006, by Eagle Bulk Shipping Inc., a corporation organized under the laws of the Republic of the Marshall 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: 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 June 14, 2006, by the filing of the Certificate with the office of the Marshall 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 "Tern 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 Marshall 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 Marshall 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: TERN 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 Marshall 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, 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 Zoullas ---------------------------- Name: Sophocles Zoullas Title: President and Chief Executive Officer SCHEDULE 1 Ownership of LLC Shares Member LLC Shares Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.38 37 d678252_ex3-38.txt Exhibit 3.38 Execution Copy CERTIFICATE OF FORMATION OF KITTIWAKE SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: KITTIWAKE SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 14th day of June, 2006. /s/ Arthur Lichtenstein ------------------------- Arthur Lichtenstein Authorized Person EX-3.39 38 d680197_ex3-39.txt Exhibit 3.39 ================================================================================ LIMITED LIABILITY COMPANY AGREEMENT OF KITTIWAKE SHIPPING LLC A Marshall Islands Limited Liability Company ================================================================================ TABLE OF CONTENTS 1 DEFINED TERMS....................................................3 2 ORGANIZATION.....................................................4 2.1 Formation...............................................4 2.2 Name....................................................4 2.3 Purpose.................................................4 2.4 Registered Office; Registered Agent.....................5 2.5 Principal Office........................................5 2.6 Term....................................................5 2.7 Authorized LLC Shares; Vote.............................5 3 CAPITAL CONTRIBUTIONS............................................5 3.1 Capital Contributions...................................5 3.2 No Interest on Capital Contributions....................5 4 MANAGEMENT.......................................................6 4.1 Management By Member....................................6 4.2 Delegation of Authority and Duties......................7 5 LIABILITY, EXCULPATION AND INDEMNIFICATION.......................7 5.1 Liability...............................................7 5.2 Exculpation.............................................7 5.3 Indemnification.........................................8 5.4 Expenses................................................8 5.5 Severability............................................8 5.6 No Third Party Rights...................................8 6 DISTRIBUTIONS....................................................9 6.1 Distributions/Available Cash............................9 7 BOOKS AND RECORDS; FISCAL YEAR; TAX MATTERS......................9 7.1 Books and Records.......................................9 7.2 Fiscal Year.............................................9 7.3 Tax Matters.............................................9 8 MISCELLANEOUS....................................................9 8.1 Complete Agreement......................................9 8.2 Governing Law...........................................9 8.3 Headings...............................................10 8.4 Severability...........................................10 8.5 Amendment..............................................10 Schedule 1:.......Ownership of LLC Shares LIMITED LIABILITY COMPANY AGREEMENT This Limited Liability Company Agreement (the "Agreement") of KITTIWAKE SHIPPING LLC (the "Company"), is made and entered into effective as of the 14th day of June, 2006, by Eagle Bulk Shipping Inc., a corporation organized under the laws of the Republic of the Marshall 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: 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 June 14, 2006, by the filing of the Certificate with the office of the Marshall 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 "Kittiwake 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 Marshall 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 Marshall 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: KITTIWAKE 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 Marshall 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, 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 Zoullas ---------------------------- Name: Sophocles Zoullas Title: President and Chief Executive Officer SCHEDULE 1 Ownership of LLC Shares Member LLC Shares Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.40 39 d678253_ex3-40.txt Exhibit 3.40 Execution Copy CERTIFICATE OF FORMATION OF ORIOLE SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: ORIOLE SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 14th day of June, 2006. /s/ Arthur Lichtenstein ------------------------- Arthur Lichtenstein Authorized Person EX-3.41 40 d680199_ex3-41.txt Exhibit 3.41 ================================================================================ LIMITED LIABILITY COMPANY AGREEMENT OF ORIOLE SHIPPING LLC A Marshall Islands Limited Liability Company ================================================================================ TABLE OF CONTENTS 1 DEFINED TERMS......................................................3 2 ORGANIZATION.......................................................4 2.1 Formation.................................................4 2.2 Name......................................................4 2.3 Purpose...................................................4 2.4 Registered Office; Registered Agent.......................5 2.5 Principal Office..........................................5 2.6 Term......................................................5 2.7 Authorized LLC Shares; Vote...............................5 3 CAPITAL CONTRIBUTIONS..............................................5 3.1 Capital Contributions.....................................5 3.2 No Interest on Capital Contributions......................5 4 MANAGEMENT.........................................................6 4.1 Management By Member......................................6 4.2 Delegation of Authority and Duties........................7 5 LIABILITY, EXCULPATION AND INDEMNIFICATION.........................7 5.1 Liability.................................................7 5.2 Exculpation...............................................7 5.3 Indemnification...........................................8 5.4 Expenses..................................................8 5.5 Severability..............................................8 5.6 No Third Party Rights.....................................8 6 DISTRIBUTIONS......................................................9 6.1 Distributions/Available Cash..............................9 7 BOOKS AND RECORDS; FISCAL YEAR; TAX MATTERS........................9 7.1 Books and Records.........................................9 7.2 Fiscal Year...............................................9 7.3 Tax Matters...............................................9 8 MISCELLANEOUS......................................................9 8.1 Complete Agreement........................................9 8.2 Governing Law.............................................9 8.3 Headings.................................................10 8.4 Severability.............................................10 8.5 Amendment................................................10 Schedule 1:.......Ownership of LLC Shares LIMITED LIABILITY COMPANY AGREEMENT This Limited Liability Company Agreement (the "Agreement") of ORIOLE SHIPPING LLC (the "Company"), is made and entered into effective as of the 14th day of June, 2006, by Eagle Bulk Shipping Inc., a corporation organized under the laws of the Republic of the Marshall 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: 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 June 14, 2006, by the filing of the Certificate with the office of the Marshall 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 "Oriole 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 Marshall 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 Marshall 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: ORIOLE 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 Marshall 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, 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 Zoullas ---------------------------- Name: Sophocles Zoullas Title: President and Chief Executive Officer SCHEDULE 1 Ownership of LLC Shares Member LLC Shares Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.42 41 d678254_ex3-42.txt Exhibit 3.42 Execution Copy CERTIFICATE OF FORMATION OF ROBIN SHIPPING LLC UNDER SECTION 9 OF THE LIMITED LIABILITY COMPANY ACT OF 1996 OF THE REPUBLIC OF THE MARSHALL ISLANDS The undersigned, in order to form a limited liability company under and pursuant to the provisions of the Limited Liability Company Act of 1996 of the Republic of the Marshall Islands (the "Act"), does certify as follows: 1. The name of the Limited Liability Company is: ROBIN SHIPPING LLC 2. The address of its registered agent in the Marshall Islands is Trust Company Complex, Ajeltake Island, Ajeltake Road, Majuro, Marshall Islands MH 96960. The name of its registered agent at such address is The Trust Company of the Marshall Islands, Inc. 3. The formation date of the Limited Liability Company is the date of the filing of this Certificate of Formation with the Registrar of Corporations. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation on this 14th day of June, 2006. /s/ Arthur Lichtenstein ------------------------- Arthur Lichtenstein Authorized Person EX-3.43 42 d680202_ex3-43.txt Exhibit 3.43 ================================================================================ LIMITED LIABILITY COMPANY AGREEMENT OF ROBIN SHIPPING LLC A Marshall Islands Limited Liability Company ================================================================================ TABLE OF CONTENTS 1 DEFINED TERMS....................................................3 2 ORGANIZATION.....................................................4 2.1 Formation...............................................4 2.2 Name....................................................4 2.3 Purpose.................................................4 2.4 Registered Office; Registered Agent.....................5 2.5 Principal Office........................................5 2.6 Term....................................................5 2.7 Authorized LLC Shares; Vote.............................5 3 CAPITAL CONTRIBUTIONS............................................5 3.1 Capital Contributions...................................5 3.2 No Interest on Capital Contributions....................5 4 MANAGEMENT.......................................................6 4.1 Management By Member....................................6 4.2 Delegation of Authority and Duties......................7 5 LIABILITY, EXCULPATION AND INDEMNIFICATION.......................7 5.1 Liability...............................................7 5.2 Exculpation.............................................7 5.3 Indemnification.........................................8 5.4 Expenses................................................8 5.5 Severability............................................8 5.6 No Third Party Rights...................................8 6 DISTRIBUTIONS....................................................9 6.1 Distributions/Available Cash............................9 7 BOOKS AND RECORDS; FISCAL YEAR; TAX MATTERS......................9 7.1 Books and Records.......................................9 7.2 Fiscal Year.............................................9 7.3 Tax Matters.............................................9 8 MISCELLANEOUS....................................................9 8.1 Complete Agreement......................................9 8.2 Governing Law...........................................9 8.3 Headings...............................................10 8.4 Severability...........................................10 8.5 Amendment..............................................10 Schedule 1:.......Ownership of LLC Shares LIMITED LIABILITY COMPANY AGREEMENT This Limited Liability Company Agreement (the "Agreement") of ROBIN SHIPPING LLC (the "Company"), is made and entered into effective as of the 14th day of June, 2006, by Eagle Bulk Shipping Inc., a corporation organized under the laws of the Republic of the Marshall 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: 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 June 14, 2006, by the filing of the Certificate with the office of the Marshall 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 "Robin 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 Marshall 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 Marshall 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: ROBIN 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 Marshall 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, 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 Zoullas ---------------------------- Name: Sophocles Zoullas Title: President and Chief Executive Officer SCHEDULE 1 Ownership of LLC Shares Member LLC Shares Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-3.44 43 d694625_ex3-44.txt Exhibit 3.44 CERTIFICATE OF FORMATION OF EAGLE BULK (DELAWARE) LLC ARTICLE 1. NAME ---- The name of the limited liability company is Eagle Bulk (Delaware) LLC (the "Company"). ARTICLE 2. REGISTERED AGENT ---------------- The address of the registered office of the Company in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808 in the County of New Castle. The name of the registered agent of the Company is Corporation Service Company. ARTICLE 3. DURATION -------- The duration of the Company is to be perpetual, unless sooner terminated in accordance with the Limited Liability Company Act of the State of Delaware (the "Act"). ARTICLE 4. PURPOSE ------- The purpose of the Company is to engage in any lawful act or activity for which a limited liability company may be organized under the Act. IN WITNESS WHEREOF, this Certificate has been executed as of this 14th day of August, 2006, by the undersigned authorized signatory who affirms that, to the best of his knowledge and belief, the facts stated herein are true. EAGLE BULK (DELAWARE) LLC By: Eagle Bulk Shipping Inc. Sole Member By: /s/ Sophocles N. Zoullas -------------------------- Sophocles N. Zoullas Chief Executive Officer of the Sole Member EX-3.45 44 d697305_ex3-45.txt Exhibit 3.45 ================================================================================ LIMITED LIABILITY COMPANY AGREEMENT OF EAGLE BULK (DELAWARE) LLC A Delaware 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................................................7 8.3 Headings.....................................................8 8.4 Severability.................................................8 8.5 Amendment....................................................8 Schedule 1:.......Ownership of LLC Shares LIMITED LIABILITY COMPANY AGREEMENT This Limited Liability Company Agreement (the "Agreement") of EAGLE BULK (DELAWARE) LLC (the "Company"), a Delaware limited liability company, is made and entered into effective as of the 15th day of August, 2006, by Eagle Bulk Shipping Inc., a corporation organized under the laws of the Republic of the Marshall 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: 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 Marshall 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 Marshall Islands Registrar of Corporations pursuant to which the Company was organized as a Marshall 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 August 15, 2006, by the filing of the Certificate with the office of the Secretary of State of the State of Delaware. 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 "Eagle Bulk (Delaware) 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 State of Delaware 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 State of Delaware 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: EAGLE BULK (DELAWARE) 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 18-607 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. 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 State of Delaware 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, 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 Zoullas ---------------------------- Name: Sophocles Zoullas Title: President and Chief Executive Officer SCHEDULE 1 Ownership of LLC Shares Member LLC Shares Eagle Bulk Shipping Inc. 100.0 ------------- Total LLC Shares 100.0 EX-4.7 45 d692821_ex4-7.txt Exhibit 4.7 ================================================================================ EAGLE BULK SHIPPING INC. SENIOR INDENTURE Dated as of ______, 20__ ---------------- [Name of Trustee] Trustee ================================================================================ ARTICLE I : DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.1 Definitions Section 1.2. Other Definitions Section 1.3. Incorporation by Reference of Trust Indenture Act Section 1.4. Rules of Construction ARTICLE II. THE SECURITIES Section 2.1. Issuable in Series Section 2.2. Establishment of Terms of Series of Securities Section 2.3. Execution and Authentication Section 2.4. Registrar and Paying Agent Section 2.5. Paying Agent to Hold money in Trust Section 2.6. Securityholder Lists Section 2.7. Transfer and Exchange Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities Section 2.9 Outstanding Securities Section 2.10 Treasury Securities Section 2.11 Temporary Securities Section 2.12 Cancellation Section 2.13 Defaulted Interest Section 2.14 Global Securities Section 2.15 CUSIP Numbers ARTICLE III. REDEMPTION Section 3.1 Notice to Trustee Section 3.2 Selection of Securities to be Redeemed Section 3.3 Notice of Redemption Section 3.4 Effect of Notice of Redemption Section 3.5 Deposit of Redemption Price Section 3.6 Securities Redeemed in Part ARTICLE IV. COVENANTS Section 4.1. Payment of Principal and Interest Section 4.2. SEC Reports Section 4.3. Compliance Certificate Section 4.4. Stay, Extension and Usury Laws Section 4.5. Corporate Existence Section 4.6. Taxes ARTICLE V. SUCCESSORS Section 5.1. When Company May Merge, Etc Section 5.2. Successor Corporation Substituted ARTICLE VI. DEFAULTS AND REMEDIES Section 6.1. Events of Default Section 6.2. Acceleration of maturity; Rescission and Annulment Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee Section 6.4. Trustee May File Proofs of Claim Section 6.5. Trustee May Enforce Claims Without Possession of Securities Section 6.6. Application of money Collected Section 6.7. Limitation on Suits Section 6.8. Unconditional Right of Holders to Receive Principal and Interest Section 6.9. Restoration of Rights and Remedies Section 6.10. Rights and Remedies Cumulative Section 6.11. Delay or Omission Not Waiver Section 6.12. Control by Holders Section 6.13. Waiver of Past Defaults Section 6.14. Undertaking for Costs ARTICLE VII. TRUSTEE Section 7.1. Duties of Trustee Section 7.2. Rights of Trustee Section 7.3. Individual Rights of Trustee Section 7.4. Trustee's Disclaimer Section 7.5. Notice of Defaults Section 7.6. Reports by Trustee to Holders Section 7.7. Compensation and Indemnity Section 7.8. Replacement of Trustee Section 7.9. Successor Trustee by Merger, etc. Section 7.10. Eligibility; Disqualification Section 7.11. Preferential Collection of Claims Against Company ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE Section 8.1 Satisfaction and Discharge of Indenture Section 8.2 Application of Trust Funds; Indemnification Section 8.3 Legal Defeasance of Securities of any Series Section 8.4 Covenant Defeasance Section 8.5 Repayment to Company ARTICLE IX. AMENDMENTS AND WAIVERS Section 9.1. Without Consent of Holders Section 9.2. With Consent of Holders Section 9.3. Limitations Section 9.4. Compliance with Trust Indenture Act Section 9.5. Revocation and Effect of Consents Section 9.6. Notation on or Exchange of Securities Section 9.7. Trustee Protected ARTICLE X. MISCELLANEOUS Section 10.1. Trust Indenture Act Controls Section 10.2. Notices Section 10.3. Communication by Holders with Other Holders Section 10.4. Certificate and Opinion as to Conditions Precedent Section 10.5. Statements Required in Certificate or Opinion Section 10.6. Rules by Trustee and Agents Section 10.7. Legal Holidays Section 10.8. No Recourse Against Others Section 10.9. Counterparts Section 10.10. Governing Laws Section 10.11. No Adverse Interpretation of Other Agreements Section 10.12. Successors Section 10.13. Severability Section 10.14. Table of Contents, Headings, Etc Section 10.15. Securities in a Foreign Currency or in ECU Section 10.16. Judgment Currency ARTICLE XI. SINKING FUNDS Section 11.1. Applicability of Article Section 11.2. Satisfaction of Sinking Fund Payments with Securities Section 11.3. Redemption of Securities for Sinking Fund Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of _______, 20__ Section 310(a)(1) 7.10 (a)(2) 7.10 (a)(3) Not Applicable (a)(4) Not Applicable (a)(5) 7.10 (b) 7.10 Section 311(a) 7.11 (b) 7.11 (c) Not Applicable Section 312(a) 2.6 (b) 10.3 (c) 10.3 Section 313(a) 7.6 (b)(1) 7.6 (b)(2) 7.6 (c)(1) 7.6 (d) 7.6 Section 314(a) 4.2, 10.5 (b) Not Applicable (c)(1) 10.4 (c)(2) 10.4 (c)(3) Not Applicable (d) Not Applicable (e) 10.5 (f) Not Applicable Section 315(a) 7.1 (b) 7.5 (c) 7.1 (d) 7.1 (e) 6.14 Section 316(a) 2.10 (a)(1)(A) (a)(1)(B) 6.12 (b) 6.13 Section 317(a)(1) 6.8 (a)(2) 6.4 (b) 2.5 Section 318(a) 10.1 - ---------- Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture. Indenture dated as of _________, 20__ between Eagle Bulk Shipping Inc., a company organized under the laws of the Marshall Islands (the "Company") and [Name of Trustee], a __________________ (the "Trustee"). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture. ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.1. Definitions. "Additional Amounts" means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified therein and which are owing to such Holders. "Affiliate" of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities or by agreement or otherwise. "Agent" means any Registrar, Paying Agent or Service Agent. "Authorized Newspaper" means a newspaper in an official language of the country of publication customarily published at least once a day for at least five days in each calendar week and of general circulation in the place in connection with which the term is used. If it shall be impractical in the opinion of the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof that is made or given by the Trustee shall constitute a sufficient publication of such notice. "Bearer" means anyone in possession from time to time of a Bearer Security. "Bearer Security" means any Security, including any interest coupon appertaining thereto, that does not provide for the identification of the Holder thereof. "Board of Directors" means the Board of Directors of the Company or any duly authorized committee thereof. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee. "Business Day" means a day (other than Saturday or Sunday) on which the Depository and banks in the City of New York, and banks in the city in which the Corporate Trust Office of the Trustee is located, is open for business. "Certificated Securities" means Securities in the form of physical, certificated Securities in registered form. "Company" means the party named as such above until a successor replaces it and thereafter means the successor. "Company Order" means a written order signed in the name of the Company by two Officers, one of whom must be the Company's principal executive officer, principal financial officer or principal accounting officer. "Company Request" means a written request signed in the name of the Company by its Chairman of the Board, a President or a Vice President, and by its Chief Financial Officer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Corporate Trust Office" means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered. "Debt" of any person as of any date means, without duplication, all indebtedness of such person in respect of borrowed money, including all interest, fees and expenses owed in respect thereto (whether or not the recourse of the lender is to the whole of the assets of such person or only to a portion thereof), or evidenced by bonds, notes, debentures or similar instruments. "Default" means any event which is, or after notice or passage of time would be, an Event of Default. "Depository" means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such person, "Depository" as used with respect to the Securities of any Series shall mean the Depository with respect to the Securities of such Series. "Discount Security" means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2. "Dollars" means the currency of The United States of America. "ECU" means the European Currency Unit as determined by the Commission of the European Union. "Event of Default" see Section 6.1. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Foreign Currency" means any currency or currency unit issued by a government other than the government of The United States of America. "Foreign Government obligations" means with respect to Securities of any Series that are denominated in a Foreign Currency, (i) direct obligations of the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by or acting as an agency or instrumentality of such government the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof. "Global Security" or "Global Securities" means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in the name of such Depository or nominee. "Holder" or "Securityholder" means a person in whose name a Security is registered or the holder of a Bearer Security. "Indenture" means this Indenture as amended from time to time and shall include the form and terms of particular Series of Securities established as contemplated hereunder. "Interest" with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity. "Maturity," when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, notice of option to elect repayment or otherwise. "Officer" means the Chairman of the Board, the President, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Company. "Officers' Certificate" means a certificate signed by two Officers, one of whom must be the Company's principal executive officer, principal financial officer or principal accounting officer. "Opinion of Counsel" means a written opinion of legal counsel who is reasonably acceptable to the Trustee. Such legal counsel may be an employee of or counsel to the Company. "Participants" means those Persons designated as participants by the Depositary. "Person" means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Principal" of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect of, the Security. "Responsible Officer" means any officer of the Trustee in its Corporate Trust office and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject. "SEC" means the Securities and Exchange Commission. "Security" or "Securities" means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture. "Series" or "Series of Securities" means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof. "Significant Subsidiary" means (i) any direct or indirect Subsidiary of the Company that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933, as amended, as such regulation is in effect on the date hereof, or (ii) any group of direct or indirect Subsidiaries of the Company that, taken together as a group, would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933, as amended, as such regulation is in effect on the date hereof. "Stated Maturity" when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable. "Subordinated Indebtedness" means any indebtedness which is expressly subordinated to the indebtedness evidenced by Securities. "Subsidiary" of any specified person means any corporation of which at least a majority of the outstanding stock having by the terms thereof ordinary voting power for the election of directors of such corporation (irrespective of whether or not at the time stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned by such person, or by one or more other Subsidiaries, or by such person and one or more other Subsidiaries. "TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "TIA" means, to the extent required by any such amendment, the Trust Indenture Act as so amended. "Trustee" means the person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each person who is then a Trustee hereunder, and if at any time there is more than one such person, "Trustee" as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series. "U.S. Government Obligations" means securities which are (i) direct obligations of The United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of The United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by The United States of America, and which in the case of (i) and (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depository receipt. "Vessels" means the shipping vessels owned by and registered (or to be owned by and registered) in the name of the Company or any of its Subsidiaries or operated by the Company or any of its Subsidiaries pursuant to a lease or other operating agreement constituting a capital lease obligation, in each case together with all related equipment and any additions or improvements. "Wholly Owned Restricted Subsidiary" means a Restricted Subsidiary all of the Equity Interests of which (other than Equity Interests constituting directors' qualifying shares or shares required to be held by foreign nations, in each case to the extent mandated by applicable law) is owned by the Company or one or more Wholly Owned Restricted Subsidiaries or by the Company and one or more Wholly Owned Restricted Subsidiaries. Section 1.2. Other Definitions. DEFINED IN TERM SECTION - ----- ------- "Bankruptcy Law" 6.1 "Custodian" 6.1 "Event of Default" 6.1 "Journal" 10.15 "Judgment Currency" 10.16 "Legal Holiday" 10.7 "mandatory sinking fund payment" 11.1 "Market Exchange Rate" 10.15 "New York Banking Day" 10.16 "optional sinking fund payment" 11.1 "Paying Agent" 2.4 "Registrar" 2.4 "Required Currency" 10.16 "Service Agent" 2.4 "successor person" 5.1 Section 1.3. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "Commission" means the SEC. "indenture securities" means the Securities. "indenture security holder" means a Securityholder. "indenture to be qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Trustee. "obligor" on the indenture securities means the Company and any successor obligor upon the Securities. All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used herein as so defined. Section 1.4. Rules of Construction. Unless the context otherwise requires: (a) a term has the meaning assigned to it; (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles; (c) references to "generally accepted accounting principles" shall mean generally accepted accounting principles in effect as of the time when and for the period as to which such accounting principles are to be applied; (d) "or" is not exclusive; (e) words in the singular include the plural, and in the plural include the singular; and (f) provisions apply to successive events and transactions. ARTICLE II. THE SECURITIES Section 2.1. Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth in a Board Resolution, a supplemental indenture or an Officers' Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officers' Certificate or supplemental indenture may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture. Section 2.2. Establishment of Terms of Series of Securities. At or prior to the issuance of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.20) by a Board Resolution, a supplemental indenture or an Officers' Certificate pursuant to authority granted under a Board Resolution: 2.2.1 the title, designation, aggregate principal amount and authorized denominations of the Securities of the Series; 2.2.2 the price or prices, (expressed as a percentage of the aggregate principal amount thereof) at which the Securities of the Series will be issued; 2.2.3 the date or dates on which the principal of the Securities of the Series is payable; 2.2.4 the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall commence and be payable and any regular record date for the interest payable on any interest payment date; 2.2.5 any optional or mandatory sinking fund provisions or conversion or exchangeability provisions upon which Securities of the Series shall be redeemed or purchased; 2.2.6 the date, if any, after which and the price or prices at which the Securities of the Series may be optionally redeemed or must be mandatorily redeemed and any other terms and provisions of optional or mandatory provisions; 2.2.7 if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall be issuable; 2.2.8 if other than the full principal amount, the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration pursuant to Section 6.2 or provable in bankruptcy; 2.2.9 any addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2; 2.2.10 the currency or currencies, including composite currencies, in which payments of principal of, premium or interest, if any, on the Securities of the Series will be payable, if other than the currency of the United States of America; 2.2.11 if payments of principal of, premium or interest, if any, on the Securities of the Series will be payable, at the Company's election or at the election of any Holder, in a currency other than that in which the Securities of the Series are stated to be payable, the period or periods within which, and the terms and conditions upon which, the election may be made; 2.2.12 if payments of interest, if any, on the Securities of the Series will be payable, at the Company's election or at the election of any Holder, in cash or additional securities, and the terms and conditions upon which the election may be made; 2.2.13 if denominated in a currency or currencies other than the currency of the United States of America, the equivalent price of the Securities of the Series in the currency of the United States of America for purposes of determining the voting rights of Holders of the Securities of the Series; 2.2.14 if the amount of payments of principal, premium or interest may be determined with reference to an index, formula or other method based on a coin or currency other than that in which the Securities of the Series are stated to be payable, the manner in which the amounts will be determined; 2.2.15 any restrictive covenants or other material terms relating to the Securities of the Series, which may not be inconsistent with the Indenture; 2.2.16 whether the Securities of the Series will be issued in the form of global securities or certificates in registered or bearer form; 2.2.17 any terms with respect to subordination; 2.2.18 any listing on any securities exchange or quotation system; 2.2.19 additional provisions, if any, related to defeasance and discharge of the offered debt securities; and 2.2.20 the applicability of any guarantees. All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture or Officers' Certificate referred to above, and the authorized principal amount of any Series may not be increased to provide for issuance of additional Securities of such Series, unless otherwise provided in such Board Resolution, supplemental Indenture or Officers' Certificate. Section 2.3. Execution and Authentication. Two Officers shall sign the Securities for the Company by manual or facsimile signature. If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid. A Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture. The Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officers' Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers' Certificate. The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution, supplemental indenture hereto or Officers' Certificate delivered pursuant to Section 2.2, except as provided in Section 2.8. Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution, supplemental indenture hereto or Officers, Certificate establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officers' Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4. The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may not lawfully be taken; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors and/or vice-presidents shall determine that such action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate. Section 2.4. Registrar and Paying Agent. The Company shall maintain, with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities of such Series may be presented or surrendered for payment ("Paying Agent"), where Securities of such Series may be surrendered for registration of transfer or exchange ("Registrar") and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be served ("Service Agent"). The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Company may also from time to time designate one or more co-registrars, additional paying agents or additional service agents and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar, additional paying agent or additional service agent. The term "Registrar" includes any co-registrar; the term "Paying Agent" includes any additional paying agent; and the term "Service Agent" includes any additional service agent. The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Service Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued. Section 2.5. Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as Paying Agent. Section 2.6. Securityholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each Series of Securities and shall otherwise comply with TTA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities. Section 2.7. Transfer and Exchange. Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar's request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6). Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening of business fifteen days immediately preceding the mailing of a notice of redemption of Securities of that Series selected for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part. Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security. Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. Section 2.9. Outstanding Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section as not outstanding. If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser. If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases to accrue. A Security does not cease to be outstanding because the Company or an Affiliate holds the Security. In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2. Section 2.10. Treasury Securities. In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver Securities of a Series owned by the Company or an Affiliate shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities of a Series that the Trustee knows are so owned shall be so disregarded. Section 2.11. Temporary Securities. Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. without unreasonable delay, the Company shall prepare and the Trustee upon request shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities. Section 2.12. Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement or cancellation and shall destroy such canceled Securities (subject to the record retention requirement of the Exchange Act) and deliver a certificate of such destruction to the Company, unless the Company otherwise directs. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation. Section 2.13. Defaulted Interest. If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The Company shall fix the record date and payment date. At least 30 days before the record date, the Company shall mail to the Trustee and to each Securityholder of the Series a notice that states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner. Section 2.14. Global Securities. 2.14.1. Terms of Securities. A Board Resolution, a supplemental indenture hereto or an officers' Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depository for such Global Security or Securities. 2.14.2. Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders other than the Depository for such Security or its nominee only if (i) such Depository notifies the Company that it is unwilling or unable to continue as Depository for such Global Security or if at any time such Depository ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depository within 90 days of such event, (ii) the Company executes and delivers to the Trustee an Officers' Certificate to the effect that such Global Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities represented by such Global Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depository shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms. Except as provided in this Section 2.14.2, a Global Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such Depository, by a nominee of such Depository to such Depository or another nominee of such Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository. 2.14.3. Legend. Any Global Security issued hereunder shall bear a legend in substantially the following form: "This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depository or a nominee of the Depository. This Security is exchangeable for Securities registered in the name of a person other than the Depository or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee of the Depository, by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository." 2.14.4. Acts of Holders. The Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture. 2.14.5. Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof at their registered office. 2.14.6. Consents, Declaration and Directions. Except as provided in Section 2.14.5, the Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified in a written statement of the Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture. Section 2.15. CUSIP Numbers. The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. ARTICLE III. REDEMPTION Section 3.1. Notice to Trustee. The Company may, with respect to any series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall give the notice at least 45 days before the redemption date (or such shorter notice as may be acceptable to the Trustee). Section 3.2. Selection of Securities to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture or an Officers' Certificate, if less than all the Securities of a Series are to be redeemed, the Trustee shall select the Securities of the Series to be redeemed in any manner that the Trustee deems fair and appropriate. The Trustee shall make the selection from Securities of the Series outstanding not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities of the Series that have denominations larger than $1,000. Securities of the Series and portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.2.7, the minimum principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption. Section 3.3. Notice of Redemption. Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an officers' Certificate, at least 30 days but not more than 60 days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder whose Securities are to be redeemed and if any Bearer Securities are outstanding, publish on one occasion a notice in an Authorized Newspaper. The notice shall identify the Securities of the Series to be redeemed and shall state: (a) the redemption date; (b) the redemption price; (c) the name and address of the Paying Agent; (d) that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price; (e) that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date; and (f) any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed. At the Company's request, the Trustee shall give the notice of redemption in the Company's name and at its expense. Section 3.4. Effect of Notice of Redemption. Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to the redemption date. Section 3.5. Deposit of Redemption Price. On or before the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date. Section 3.6. Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the unredeemed portion of the Security surrendered. ARTICLE IV. COVENANTS Section 4.1. Payment of Principal and Interest. The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. Section 4.2. SEC Reports. The Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the annual reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall comply with the other provisions of TIA Section 314(a). Section 4.3. Compliance Certificate. The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year of the Company, an officers certificate signed by two of the Company's officers stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he may have knowledge). The Company will, so long as any of the Securities are outstanding, deliver to the Trustee, forthwith upon becoming aware of any Default or Event of Default, an Officers' Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto. Section 4.4. Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted. Section 4.5. Corporate Existence. Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate, partnership or other existence of each Significant Subsidiary in accordance with the respective organizational documents of each Significant Subsidiary and the rights (charter and statutory), licenses and franchises of the Company and its Significant Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any Significant Subsidiary, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to the Holders. Section 4.6. Taxes. The company shall, and shall cause each of its Significant Subsidiaries to, pay prior to delinquency all taxes, assessments and governmental levies, except as contested in good faith and by appropriate proceedings. ARTICLE V. SUCCESSORS Section 5.1. When Company May Merge, Etc. The Company shall not consolidate with or merge into any other person in a transaction in which we are not the surviving entity, or convey, transfer or lease all or substantially all of its properties and assets to any person (a "successor person"), unless: (a) the successor person (if any) is a corporation, partnership, trust or other entity organized and validly existing under the laws of the Marshall Islands or any U.S. domestic jurisdiction and expressly assumes the Company's obligations on the Securities and under this Indenture and (b) immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing. The Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officers' Certificate to the foregoing effect and an opinion of Counsel stating that the proposed transaction and such supplemental indenture comply with this Indenture. Section 5.2. Successor Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1, the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor person has been named as the Company herein; provided, however, that the predecessor company in the case of a sale, lease, conveyance or other disposition shall not be released from the obligation to pay the principal of and interest, if any, on the Securities. ARTICLE VI DEFAULTS AND REMEDIES Section 6.1. Events of Default. "Event of Default," wherever used herein with respect to securities of any Series, means any one of the following events, unless in the establishing Board Resolution, supplemental indenture or Officers' Certificate, it is provided that such Series shall not have the benefit of said Event of Default: (a) default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior to the expiration of such period of 30 days); or (b) default in the payment of the principal of any Security of that Series at its Maturity; or (c) default in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series; or (d) default in the performance or breach of any covenant of the Company in this Indenture, which default continues uncured for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (e) a default under any Debt of the Company (including a default with respect to Securities of any Series other than that Series) or any Subsidiary, whether such Debt now exists or shall hereafter be created, if (A) such default results from the failure to pay any such Debt when it becomes due and (B) such Debt is not discharged or such acceleration is not rescinded or annulled within 30 days after written notice to the Company by the holder or holders of such Debt in the manner provided for in the applicable debt instrument; provided, that if the default with respect to such Debt is remedied or cured by the Company or waived by the holders of such Debt before entry of judgment in favor of the relevant trustee, then the Event of Default under this Indenture will be deemed likewise to have been remedied, cured or waived; or (f) the Company pursuant to or within the meaning of any Bankruptcy Law: (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property, (iv) makes a general assignment for the benefit of its creditors, or (v) generally is unable to pay its debts as the same become due; or (g) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against the Company or any of its Significant Subsidiaries in an involuntary case, (ii) appoints a Custodian of the Company or any of its Significant Subsidiaries or for all or substantially all of its property, or (iii) orders the liquidation of the Company or any of its Significant Subsidiaries, and the order or decree remains unstayed and in effect for 60 days; or (h) any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officers' Certificate, in accordance with Section 2.2.18. No Event of Default with respect to a particular Series of Securities (except with respect to subsections (f) and (g) above) necessarily constitutes an Event of Default with respect to any other Series of Securities. The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law. Section 6.2. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any Series at the time outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately due and payable. The Holders of not less than a majority in principal amount of the outstanding Securities of that Series, by written notice to the Trustee, may rescind any declaration of acceleration of such Securities of that Series and its consequences if all existing Events of Default (other than the nonpayment of principal of or interest on such Securities that shall have become due by such declaration) shall have been cured or waived. Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee. If an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. Section 6.4. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. Section 6.5. Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered. Section 6.6. Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: and First: To the payment of all amounts due the Trustee under Section 7.7; Second: To the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest, respectively; and Third: To the Company. Section 6.7. Limitation on Suits. No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series; (b) the Holders of not less than 25% in principal amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (c) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that Series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders. Section 6.8. Unconditional Right of Holders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and Unconditional, to receive payment of the principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. Section 6.9. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. Section 6.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Section 6.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. Section 6.12. Control by Holders. The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series, provided that (a) such direction shall not be in conflict with any rule of law or with this Indenture, (b) the Trustee may take any other action deemed proper b)o Trustee which is not inconsistent with such direction, and (c) subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability. Section 6.13. Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except a Default in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. Section 6.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date). ARTICLE VII. TRUSTEE Section 7.1. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (b) Except during the continuance of an Event of Default: (i) The Trustee need perform only those duties that are specifically set forth in this Indenture and no others. (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon officers' Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in the case of any such officers' Certificates or opinions of Counsel which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such officers' Certificates and opinions of Counsel to determine whether or not they conform to the requirements of this Indenture. (c) The Trustee may not be relieved from liability for its own its own willful negligent action, its own negligent failure to act or misconduct, except that: (i) This paragraph does not limit the effect of paragraph (b) of (ii) The Trustee shall not be liable for any error of judgment made in good faith by a Responsible officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts. (iii) The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series. (d) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section. (e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense. (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. (g) No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it. (h) The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and standard of care as are set forth in paragraphs (a), (b) and (c) of this Section with respect to the Trustee. Section 7.2. Rights of Trustee. (a) The Trustee may rely on and shall be protected in acting or refraining from acting as a result of its reasonable belief that any document was genuine and had been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document. (b) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or opinion of Counsel. (c) The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care; provided that such agent agree as a condition to its engagement that it shall be responsible to the Company for its own misconduct or negligence. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depository. (d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers. (e) The Trustee may consult with counsel and the advice of such counsel or any opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. Section 7.3. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of securities and may otherwise deal with the Company or an Affiliate with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11. Section 7.4. Trustee's Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company's use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its authentication. Section 7.5. Notice of Defaults. If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder of the Securities of that Series and, if any Bearer Securities are outstanding, publish on one occasion in an Authorized Newspaper, notice of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Securityholders of that Series. Section 7.6. Reports by Trustee to Holders. Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register kept by the Registrar and, if any Bearer Securities are outstanding, publish in an Authorized Newspaper, a brief report dated as of such May 15, in accordance with, and to the extent required under, TIA Section 313. A copy of each report at the time of its mailing to Securityholders of any Series shall be filed with the SEC and each stock exchange on which the Securities of that Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange. Section 7.7. Compensation and Indemnity. The Company shall pay to the Trustee from time to time reasonable compensation for its services. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee's agents and counsel. The Company shall indemnify the Trustee (including the cost of defending itself) against any loss, liability or expense incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee. The Company need not reimburse any expense or indemnify against any loss liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through negligence or bad faith. To secure the Company's payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Securities of that Series. When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(f) or (g) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law. Section 7.8. Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section. The Trustee may resign with respect to the Securities of one or more Series by so notifying the Company. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if: (a) the Trustee fails to comply with Section 7.10; (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law; (c) a Custodian or public officer takes charge of the Trustee or its property; or (d) the Trustee becomes incapable of acting. If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company. If a successor Trustee with respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the Securities of the applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee. If the Trustee with respect to the Securities of any one or more Series fails to comply with Section 7.10, any Securityholder of the applicable Series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice of its succession to each Securityholder of each such Series and, if any Bearer Securities are outstanding, publish such notice on one occasion in an Authorized Newspaper. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company's obligations under Section 7.7 hereof shall continue for the benefit of the retiring trustee with respect to expenses and liabilities incurred by it prior to such replacement. Section 7.9. Successor Trustee by Merger, etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee. Section 7.10. Eligibility; Disqualification. This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA Section 310(b). Section 7.11. Preferential Collection of Claims Against Company. The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TTA Section 311(a) to the extent indicated. ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE Section 8.1. Satisfaction and Discharge of Indenture. This Indenture shall upon Company Order cease to be of further effect (except as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (a) either (i) all Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or (ii) all such Securities not theretofore delivered to the Trustee for cancellation have become due and payable, or (1) have become due and payable, or (2) will become due and payable at their Stated Maturity within one year, or (3) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, or (4) are deemed paid and discharged pursuant to section 8.3, as applicable; and the Company, in the case of (1), (2) or (3) above, has deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be; (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and (c) the Company has delivered to the Trustee an Officers' Certificate and an opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.7, and, if money shall have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1 8.2 and 8.5 shall survive. Section 8.2. Application of Trust Funds; Indemnification. (a) Subject to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 8.1, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.3 or 8.4. (b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government obligations or Foreign Government Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders. (c) The Trustee shall deliver or pay to the Company from time to time upon Company Request any U.S. Government obligations or Foreign Government obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this Indenture. Section 8.3. Legal Defeasance of Securities of any Series. Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2-20, to be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding Securities of such Series on the 91st day after the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the company, shall, at Company Request, execute proper instruments acknowledging the same), except as to: (a) the rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Stated Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such Series; (b) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and (c) the rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions shall have been satisfied: (d) the Company shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities W in the case of Securities of such Series denominated in Dollars, cash in Dollars (or such other money or currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government obligations, which through the payment of interest and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund or analogous payments) of and interest, if any, on all the Securities of such Series on the dates such installments of interest or principal are due; (e) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; (f) no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date; (g) the Company shall have delivered to the Trustee an officers' Certificate and an opinion of Counsel to the effect that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred; (h) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Securities of such Series over any other creditors of the company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; (i) such deposit shall not result in the trust arising from such deposit constituting an investment company (as defined in the Investment Company Act of 1940, as amended), or such trust shall be qualified under such Act or exempt from regulation thereunder; and (j) the Company shall have delivered to the Trustee an officers' Certificate and an opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this Section have been complied with. Section 8.4. Covenant Defeasance. Unless this Section 8.4 is otherwise specified pursuant to Section 2.2.20 to be inapplicable to Securities of any Series, on and after the 91st day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit to comply with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4, 4.5, 4.6, and 5.1 as well as any additional covenants contained in a supplemental indenture hereto for a particular Series of Securities or a Board Resolution or an Officers' Certificate delivered pursuant to Section 2.2.20 (and the failure to comply with any such covenants shall not constitute a Default or Event of Default under Section 6.1) and the occurrence of any event described in clause (e) of Section 6.1 shall not constitute a Default or Event of Default hereunder, with respect to the Securities of such Series, provided that the following conditions shall have been satisfied: (a) With reference to this Section 8.4, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars (or such other money or currencies as shall then be legal tender in the United States) and/or U.S. Government obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government obligations, which through the payment of interest and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay principal and interest, if any, on and any mandatory sinking fund in respect of the Securities of such Series on the dates such installments of interest or principal are due; (b) Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; (c) No Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date; (d) the company shall have delivered to the Trustee an opinion of Counsel confirming that Holders of the Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; (e) the Company shall have delivered to the Trustee an officers' Certificate stating the deposit was not made by the Company with the intent of preferring the Holders of the Securities of such Series over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and (f) The Company shall have delivered to the Trustee an officers' Certificate and an opinion of Counsel, each stating that all conditions precedent herein provided for relating to the defeasance contemplated by this Section have been complied with. Section 8.5. Repayment to Company. The Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal and interest that remains unclaimed for two years. After that, Securityholders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person. ARTICLE IX. AMENDMENTS AND WAIVERS Section 9.1. Without Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder: (a) to cure any ambiguity, defect or inconsistency; (b) to comply with Article V; (c) to provide for uncertificated Securities in addition to or in place of certificated Securities; (d) to make any change that does not adversely affect the rights of any Securityholder; (e) to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture; (f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or (g) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA. Section 9.2. With Consent of Holders. The Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding Securities of all Series affected by such supplemental indenture, taken together as one class (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section 6.13, the Holders of at least a majority in principal amount of the outstanding Securities of all Series affected by such waiver by notice to the Trustee, taken together as one class (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities with respect to such Series. It shall not be necessary for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this section becomes effective, the Company shall mail to the Holders of Securities affected thereby and, if any Bearer Securities affected thereby are outstanding, publish on one occasion in an Authorized Newspaper, a notice briefly describing the supplemental indenture or waiver. Any failure by the Company to mail or publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver. Section 9.3. Limitations. Without the consent of each Securityholder affected, an amendment or waiver may not: (a) change the amount of Securities whose Holders must consent to an amendment, supplement or waiver; (b) reduce the rate of or change the interest payment time on any Security or alter the redemption provisions with respect thereto (other than the provisions relating to Sections 4.10 and 4.17, other than any alteration to any such Section which would not materially adversely affect the legal rights of any Holder under this Indenture) or the price at which the Company is required to offer to purchase the Securities; (c) reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation; (d) reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof; (e) waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration); (f) make the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security; (g) make any change in Sections 6.8, 6.13, 9.3 (this sentence), 10.15 or 10.16; or (h) waive a redemption payment with respect to any Security or change any of the provisions with respect to the redemption of any Securities. Section 9.4. Compliance with Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect. Section 9.5. Revocation and Effect of Consents. Until an amendment or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder's Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective. Any amendment or waiver once effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through (g) of Section 9.3. in that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder's Security. Section 9.6. Notation on or Exchange of Securities. The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon request new Securities of that Series that reflect the amendment or waiver. Section 9.7. Trustee Protected. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental indenture that adversely affects its rights. ARTICLE X. MISCELLANEOUS Section 10.1. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control. Section 10.2. Notices. Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered in person or mailed by first-class mail: if to the Company: Eagle Bulk Shipping Inc. 477 Madison Avenue New York, NY 10022 if to the Trustee: [Name of Trustee] [Address] - --------------------- - --------------------- Attention: -------------- The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. Any notice or communication to a Securityholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar and, if any Bearer Securities are outstanding, published in an Authorized Newspaper. Failure to mail a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series. If a notice or communication is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it. If the company mails a notice or communication to Securityholders, it mail a copy to the Trustee and each Agent at the same time. Section 10.3. Communication by Holders with Other Holders. Securityholders of any Series may communicate pursuant to TIA Section 312(b) with other Securityholders of that Series or any other Series with respect to their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c). Section 10.4. Certificate and opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee: (a) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and (b) an opinion of Counsel stating that, in the opinion of counsel, all such conditions precedent have been complied with. Section 10.5. Statements Required in Certificate or opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include: (a) a statement that the person making such certificate or opinion has read such covenant or condition; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. Section 10.6. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions. Section 10.7. Legal Holidays. Unless otherwise provided by Board Resolution, officers' Certificate or supplemental indenture for a particular Series, a "Legal Holiday" is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. Section 10.8. No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. Section 10.9. Counterparts. This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Section 10.10. Governing Laws. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK EXCLUDING (TO THE GREATEST EXTENT POSSIBLE) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. Section 10.11. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. Section 10.12. Successors. All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor. Section 10.13. Severability. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 10.14. Table of Contents, Headings, Etc. The Table of Contents, Cross Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. Section 10.15. Securities in a Foreign Currency or in ECU. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officers' Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in a coin or currency other than Dollars (including ECUs), then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section 10.15, "Market Exchange Rate" shall mean the noon Dollar buying rate in New York City for cable transfers of that currency as published by the Federal Reserve Bank of New York; provided, however, in the case of ECUs, Market Exchange Rate shall mean the rate of exchange determined by the Commission of the European Union (or any successor thereto) as published in the Official Journal of the European union (such publication or any successor publication, the "Journal"). If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange as published in the Journal, as of the most recent available date, or quotations or, in the case of ECUs, rates of exchange from one or more major banks in The City of New York or in the country of issue of the currency in question or, in the case of ECUs, in Luxembourg or such other quotations or, in the case of ECUs, rates of exchange as the Trustee, upon consultation with the Company, shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture. All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Company and all Holders. Section 10.16. Judgment Currency. The Company agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the "Required Currency") into a currency in which a judgment will be rendered (the "Judgment Currency"), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required by law, regulation or executive order to close. ARTICLE XI. SINKING FUNDS Section 11.1. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of a Series, except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture. The minimum amount of any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a "mandatory sinking fund payment" and any other amount provided for by the terms of Securities of such Series is herein referred to as an "optional sinking fund payment." If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series as provided for by the terms of the securities of such Series. Section 11.2. Satisfaction of Sinking Fund Payments with Securities. The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which such sinking fund payment is applicable and which have been redeemed either at the election of the Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officers' Certificate with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to the Company. Section 11.3. Redemption of Securities for Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture hereto or Officers' Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.2., and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board Resolution, Officers' Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall stated in Sections 3.4, 3.5 and 3.6. [The Remainder of this page is intentionally left blank.] IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written. Eagle Bulk Shipping Inc. By: /s/ [TBD] ------------------- Name: [TBD] Its: [Chief Accounting Officer and Company Secretary] [Name of Trustee] By:___________________________ Name: Its: EX-4.8 46 d692821_ex4-8.txt Exhibit 4.8 ================================================================================ EAGLE BULK SHIPPING INC. SUBORDINATED INDENTURE Dated as of ______, 20__ ---------------- [Name of Trustee] Trustee ================================================================================ ARTICLE I : DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.1 Definitions Section 1.2. Other Definitions Section 1.3. Incorporation by Reference of Trust Indenture Act Section 1.4. Rules of Construction ARTICLE II. THE SECURITIES Section 2.1. Issuable in Series Section 2.2. Establishment of Terms of Series of Securities Section 2.3. Execution and Authentication Section 2.4. Registrar and Paying Agent Section 2.5. Paying Agent to Hold money in Trust Section 2.6. Securityholder Lists Section 2.7. Transfer and Exchange Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities Section 2.9 Outstanding Securities Section 2.10 Treasury Securities Section 2.11 Temporary Securities Section 2.12 Cancellation Section 2.13 Defaulted Interest Section 2.14 Global Securities Section 2.15 CUSIP Numbers ARTICLE III. REDEMPTION Section 3.1 Notice to Trustee Section 3.2 Selection of Securities to be Redeemed Section 3.3 Notice of Redemption Section 3.4 Effect of Notice of Redemption Section 3.5 Deposit of Redemption Price Section 3.6 Securities Redeemed in Part ARTICLE IV. COVENANTS Section 4.1. Payment of Principal and Interest Section 4.2. SEC Reports Section 4.3. Compliance Certificate Section 4.4. Stay, Extension and Usury Laws Section 4.5. Corporate Existence Section 4.6. Taxes ARTICLE V. SUCCESSORS Section 5.1. When Company May Merge, Etc Section 5.2. Successor Corporation Substituted ARTICLE VI. DEFAULTS AND REMEDIES Section 6.1. Events of Default Section 6.2. Acceleration of maturity; Rescission and Annulment Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee Section 6.4. Trustee May File Proofs of Claim Section 6.5. Trustee May Enforce Claims Without Possession of Securities Section 6.6. Application of money Collected Section 6.7. Limitation on Suits Section 6.8. Unconditional Right of Holders to Receive Principal and Interest Section 6.9. Restoration of Rights and Remedies Section 6.10. Rights and Remedies Cumulative Section 6.11. Delay or Omission Not Waiver Section 6.12. Control by Holders Section 6.13. Waiver of Past Defaults Section 6.14. Undertaking for Costs ARTICLE VII. TRUSTEE Section 7.1. Duties of Trustee Section 7.2. Rights of Trustee Section 7.3. Individual Rights of Trustee Section 7.4. Trustee's Disclaimer Section 7.5. Notice of Defaults Section 7.6. Reports by Trustee to Holders Section 7.7. Compensation and Indemnity Section 7.8. Replacement of Trustee Section 7.9. Successor Trustee by Merger, etc. Section 7.10. Eligibility; Disqualification Section 7.11. Preferential Collection of Claims Against Company ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE Section 8.1 Satisfaction and Discharge of Indenture Section 8.2 Application of Trust Funds; Indemnification Section 8.3 Legal Defeasance of Securities of any Series Section 8.4 Covenant Defeasance Section 8.5 Repayment to Company ARTICLE IX. AMENDMENTS AND WAIVERS Section 9.1. Without Consent of Holders Section 9.2. With Consent of Holders Section 9.3. Limitations Section 9.4. Compliance with Trust Indenture Act Section 9.5. Revocation and Effect of Consents Section 9.6. Notation on or Exchange of Securities Section 9.7. Trustee Protected ARTICLE X. MISCELLANEOUS Section 10.1. Trust Indenture Act Controls Section 10.2. Notices Section 10.3. Communication by Holders with Other Holders Section 10.4. Certificate and Opinion as to Conditions Precedent Section 10.5. Statements Required in Certificate or Opinion Section 10.6. Rules by Trustee and Agents Section 10.7. Legal Holidays Section 10.8. No Recourse Against Others Section 10.9. Counterparts Section 10.10. Governing Laws Section 10.11. No Adverse Interpretation of Other Agreements Section 10.12. Successors Section 10.13. Severability Section 10.14. Table of Contents, Headings, Etc Section 10.15. Securities in a Foreign Currency or in ECU Section 10.16. Judgment Currency ARTICLE XI. SINKING FUNDS Section 11.1. Applicability of Article Section 11.2. Satisfaction of Sinking Fund Payments with Securities Section 11.3. Redemption of Securities for Sinking Fund Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of _______, 20__ Section 310(a)(1) 7.10 (a)(2) 7.10 (a)(3) Not Applicable (a)(4) Not Applicable (a)(5) 7.10 (b) 7.10 Section 311(a) 7.11 (b) 7.11 (c) Not Applicable Section 312(a) 2.6 (b) 10.3 (c) 10.3 Section 313(a) 7.6 (b)(1) 7.6 (b)(2) 7.6 (c)(1) 7.6 (d) 7.6 Section 314(a) 4.2, 10.5 (b) Not Applicable (c)(1) 10.4 (c)(2) 10.4 (c)(3) Not Applicable (d) Not Applicable (e) 10.5 (f) Not Applicable Section 315(a) 7.1 (b) 7.5 (c) 7.1 (d) 7.1 (e) 6.14 Section 316(a) 2.10 (a)(1)(A) (a)(1)(B) 6.12 (b) 6.13 Section 317(a)(1) 6.8 (a)(2) 6.4 (b) 2.5 Section 318(a) 10.1 - ---------- Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture. Indenture dated as of _________, 20__ between Eagle Bulk Shipping Inc., a company organized under the laws of the Marshall Islands (the "Company") and [Name of Trustee], a __________________ (the "Trustee"). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture. ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.1. Definitions. "Additional Amounts" means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified therein and which are owing to such Holders. "Affiliate" of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with"), as used with respect to any person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities or by agreement or otherwise. "Agent" means any Registrar, Paying Agent or Service Agent. "Authorized Newspaper" means a newspaper in an official language of the country of publication customarily published at least once a day for at least five days in each calendar week and of general circulation in the place in connection with which the term is used. If it shall be impractical in the opinion of the Trustee to make any publication of any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu thereof that is made or given by the Trustee shall constitute a sufficient publication of such notice. "Bearer" means anyone in possession from time to time of a Bearer Security. "Bearer Security" means any Security, including any interest coupon appertaining thereto, that does not provide for the identification of the Holder thereof. "Board of Directors" means the Board of Directors of the Company or any duly authorized committee thereof. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee. "Business Day" means a day (other than Saturday or Sunday) on which the Depository and banks in the City of New York, and banks in the city in which the Corporate Trust Office of the Trustee is located, is open for business. "Certificated Securities" means Securities in the form of physical, certificated Securities in registered form. "Company" means the party named as such above until a successor replaces it and thereafter means the successor. "Company Order" means a written order signed in the name of the Company by two Officers, one of whom must be the Company's principal executive officer, principal financial officer or principal accounting officer. "Company Request" means a written request signed in the name of the Company by its Chairman of the Board, a President or a Vice President, and by its Chief Financial Officer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Corporate Trust Office" means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered. "Debt" of any person as of any date means, without duplication, all indebtedness of such person in respect of borrowed money, including all interest, fees and expenses owed in respect thereto (whether or not the recourse of the lender is to the whole of the assets of such person or only to a portion thereof), or evidenced by bonds, notes, debentures or similar instruments. "Default" means any event which is, or after notice or passage of time would be, an Event of Default. "Depository" means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such person, "Depository" as used with respect to the Securities of any Series shall mean the Depository with respect to the Securities of such Series. "Discount Security" means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2. "Dollars" means the currency of The United States of America. "ECU" means the European Currency Unit as determined by the Commission of the European Union. "Event of Default" see Section 6.1. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Foreign Currency" means any currency or currency unit issued by a government other than the government of The United States of America. "Foreign Government obligations" means with respect to Securities of any Series that are denominated in a Foreign Currency, (i) direct obligations of the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by or acting as an agency or instrumentality of such government the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof. "Global Security" or "Global Securities" means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in the name of such Depository or nominee. "Holder" or "Securityholder" means a person in whose name a Security is registered or the holder of a Bearer Security. "Indenture" means this Indenture as amended from time to time and shall include the form and terms of particular Series of Securities established as contemplated hereunder. "Interest" with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity. "Maturity," when used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, notice of option to elect repayment or otherwise. "Officer" means the Chairman of the Board, the President, any Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Company. "Officers' Certificate" means a certificate signed by two Officers, one of whom must be the Company's principal executive officer, principal financial officer or principal accounting officer. "Opinion of Counsel" means a written opinion of legal counsel who is reasonably acceptable to the Trustee. Such legal counsel may be an employee of or counsel to the Company. "Participants" means those Persons designated as participants by the Depositary. "Person" means any individual, corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Principal" of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect of, the Security. "Responsible Officer" means any officer of the Trustee in its Corporate Trust office and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject. "SEC" means the Securities and Exchange Commission. "Security" or "Securities" means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture. "Series" or "Series of Securities" means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof. "Significant Subsidiary" means (i) any direct or indirect Subsidiary of the Company that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933, as amended, as such regulation is in effect on the date hereof, or (ii) any group of direct or indirect Subsidiaries of the Company that, taken together as a group, would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933, as amended, as such regulation is in effect on the date hereof. "Stated Maturity" when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable. "Subordinated Indebtedness" means any indebtedness which is expressly subordinated to the indebtedness evidenced by Securities. "Subsidiary" of any specified person means any corporation of which at least a majority of the outstanding stock having by the terms thereof ordinary voting power for the election of directors of such corporation (irrespective of whether or not at the time stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned by such person, or by one or more other Subsidiaries, or by such person and one or more other Subsidiaries. "TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "TIA" means, to the extent required by any such amendment, the Trust Indenture Act as so amended. "Trustee" means the person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each person who is then a Trustee hereunder, and if at any time there is more than one such person, "Trustee" as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series. "U.S. Government Obligations" means securities which are (i) direct obligations of The United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a person controlled or supervised by and acting as an agency or instrumentality of The United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by The United States of America, and which in the case of (i) and (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depository receipt. "Vessels" means the shipping vessels owned by and registered (or to be owned by and registered) in the name of the Company or any of its Subsidiaries or operated by the Company or any of its Subsidiaries pursuant to a lease or other operating agreement constituting a capital lease obligation, in each case together with all related equipment and any additions or improvements. "Wholly Owned Restricted Subsidiary" means a Restricted Subsidiary all of the Equity Interests of which (other than Equity Interests constituting directors' qualifying shares or shares required to be held by foreign nations, in each case to the extent mandated by applicable law) is owned by the Company or one or more Wholly Owned Restricted Subsidiaries or by the Company and one or more Wholly Owned Restricted Subsidiaries. Section 1.2. Other Definitions. DEFINED IN TERM SECTION - ----- ------- "Bankruptcy Law" 6.1 "Custodian" 6.1 "Event of Default" 6.1 "Journal" 10.15 "Judgment Currency" 10.16 "Legal Holiday" 10.7 "mandatory sinking fund payment" 11.1 "Market Exchange Rate" 10.15 "New York Banking Day" 10.16 "optional sinking fund payment" 11.1 "Paying Agent" 2.4 "Registrar" 2.4 "Required Currency" 10.16 "Service Agent" 2.4 "successor person" 5.1 Section 1.3. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "Commission" means the SEC. "indenture securities" means the Securities. "indenture security holder" means a Securityholder. "indenture to be qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Trustee. "obligor" on the indenture securities means the Company and any successor obligor upon the Securities. All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein are used herein as so defined. Section 1.4. Rules of Construction. Unless the context otherwise requires: (a) a term has the meaning assigned to it; (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles; (c) references to "generally accepted accounting principles" shall mean generally accepted accounting principles in effect as of the time when and for the period as to which such accounting principles are to be applied; (d) "or" is not exclusive; (e) words in the singular include the plural, and in the plural include the singular; and (f) provisions apply to successive events and transactions. ARTICLE II. THE SECURITIES Section 2.1. Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth in a Board Resolution, a supplemental indenture or an Officers' Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officers' Certificate or supplemental indenture may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture. Section 2.2. Establishment of Terms of Series of Securities. At or prior to the issuance of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.20) by a Board Resolution, a supplemental indenture or an Officers' Certificate pursuant to authority granted under a Board Resolution: 2.2.1 the title, designation, aggregate principal amount and authorized denominations of the Securities of the Series; 2.2.2 the price or prices, (expressed as a percentage of the aggregate principal amount thereof) at which the Securities of the Series will be issued; 2.2.3 the date or dates on which the principal of the Securities of the Series is payable; 2.2.4 the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall commence and be payable and any regular record date for the interest payable on any interest payment date; 2.2.5 any optional or mandatory sinking fund provisions or conversion or exchangeability provisions upon which Securities of the Series shall be redeemed or purchased; 2.2.6 the date, if any, after which and the price or prices at which the Securities of the Series may be optionally redeemed or must be mandatorily redeemed and any other terms and provisions of optional or mandatory provisions; 2.2.7 if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall be issuable; 2.2.8 if other than the full principal amount, the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration pursuant to Section 6.2 or provable in bankruptcy; 2.2.9 any addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2; 2.2.10 the currency or currencies, including composite currencies, in which payments of principal of, premium or interest, if any, on the Securities of the Series will be payable, if other than the currency of the United States of America; 2.2.11 if payments of principal of, premium or interest, if any, on the Securities of the Series will be payable, at the Company's election or at the election of any Holder, in a currency other than that in which the Securities of the Series are stated to be payable, the period or periods within which, and the terms and conditions upon which, the election may be made; 2.2.12 if payments of interest, if any, on the Securities of the Series will be payable, at the Company's election or at the election of any Holder, in cash or additional securities, and the terms and conditions upon which the election may be made; 2.2.13 if denominated in a currency or currencies other than the currency of the United States of America, the equivalent price of the Securities of the Series in the currency of the United States of America for purposes of determining the voting rights of Holders of the Securities of the Series; 2.2.14 if the amount of payments of principal, premium or interest may be determined with reference to an index, formula or other method based on a coin or currency other than that in which the Securities of the Series are stated to be payable, the manner in which the amounts will be determined; 2.2.15 any restrictive covenants or other material terms relating to the Securities of the Series, which may not be inconsistent with the Indenture; 2.2.16 whether the Securities of the Series will be issued in the form of global securities or certificates in registered or bearer form; 2.2.17 any terms with respect to subordination; 2.2.18 any listing on any securities exchange or quotation system; 2.2.19 additional provisions, if any, related to defeasance and discharge of the offered debt securities; and 2.2.20 the applicability of any guarantees. All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture or Officers' Certificate referred to above, and the authorized principal amount of any Series may not be increased to provide for issuance of additional Securities of such Series, unless otherwise provided in such Board Resolution, supplemental Indenture or Officers' Certificate. Section 2.3. Execution and Authentication. Two Officers shall sign the Securities for the Company by manual or facsimile signature. If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid. A Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture. The Trustee shall at any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officers' Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in writing. Each Security shall be dated the date of its authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers' Certificate. The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution, supplemental indenture hereto or Officers' Certificate delivered pursuant to Section 2.2, except as provided in Section 2.8. Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution, supplemental indenture hereto or Officers, Certificate establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officers' Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4. The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may not lawfully be taken; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors and/or vice-presidents shall determine that such action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate. Section 2.4. Registrar and Paying Agent. The Company shall maintain, with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities of such Series may be presented or surrendered for payment ("Paying Agent"), where Securities of such Series may be surrendered for registration of transfer or exchange ("Registrar") and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be served ("Service Agent"). The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Company may also from time to time designate one or more co-registrars, additional paying agents or additional service agents and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar, additional paying agent or additional service agent. The term "Registrar" includes any co-registrar; the term "Paying Agent" includes any additional paying agent; and the term "Service Agent" includes any additional service agent. The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Service Agent for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued. Section 2.5. Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as Paying Agent. Section 2.6. Securityholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each Series of Securities and shall otherwise comply with TTA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities. Section 2.7. Transfer and Exchange. Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar's request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6). Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening of business fifteen days immediately preceding the mailing of a notice of redemption of Securities of that Series selected for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in part. Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security. Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. Section 2.9. Outstanding Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section as not outstanding. If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser. If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases to accrue. A Security does not cease to be outstanding because the Company or an Affiliate holds the Security. In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2. Section 2.10. Treasury Securities. In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver Securities of a Series owned by the Company or an Affiliate shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities of a Series that the Trustee knows are so owned shall be so disregarded. Section 2.11. Temporary Securities. Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. without unreasonable delay, the Company shall prepare and the Trustee upon request shall authenticate definitive Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities. Section 2.12. Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement or cancellation and shall destroy such canceled Securities (subject to the record retention requirement of the Exchange Act) and deliver a certificate of such destruction to the Company, unless the Company otherwise directs. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation. Section 2.13. Defaulted Interest. If the Company defaults in a payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The Company shall fix the record date and payment date. At least 30 days before the record date, the Company shall mail to the Trustee and to each Securityholder of the Series a notice that states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner. Section 2.14. Global Securities. 2.14.1. Terms of Securities. A Board Resolution, a supplemental indenture hereto or an officers' Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depository for such Global Security or Securities. 2.14.2. Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders other than the Depository for such Security or its nominee only if (i) such Depository notifies the Company that it is unwilling or unable to continue as Depository for such Global Security or if at any time such Depository ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depository within 90 days of such event, (ii) the Company executes and delivers to the Trustee an Officers' Certificate to the effect that such Global Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities represented by such Global Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depository shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms. Except as provided in this Section 2.14.2, a Global Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such Depository, by a nominee of such Depository to such Depository or another nominee of such Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository. 2.14.3. Legend. Any Global Security issued hereunder shall bear a legend in substantially the following form: "This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depository or a nominee of the Depository. This Security is exchangeable for Securities registered in the name of a person other than the Depository or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee of the Depository, by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository." 2.14.4. Acts of Holders. The Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture. 2.14.5. Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof at their registered office. 2.14.6. Consents, Declaration and Directions. Except as provided in Section 2.14.5, the Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified in a written statement of the Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture. Section 2.15. CUSIP Numbers. The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. ARTICLE III. REDEMPTION Section 3.1. Notice to Trustee. The Company may, with respect to any series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall give the notice at least 45 days before the redemption date (or such shorter notice as may be acceptable to the Trustee). Section 3.2. Selection of Securities to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental indenture or an Officers' Certificate, if less than all the Securities of a Series are to be redeemed, the Trustee shall select the Securities of the Series to be redeemed in any manner that the Trustee deems fair and appropriate. The Trustee shall make the selection from Securities of the Series outstanding not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities of the Series that have denominations larger than $1,000. Securities of the Series and portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.2.7, the minimum principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption. Section 3.3. Notice of Redemption. Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture hereto or an officers' Certificate, at least 30 days but not more than 60 days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder whose Securities are to be redeemed and if any Bearer Securities are outstanding, publish on one occasion a notice in an Authorized Newspaper. The notice shall identify the Securities of the Series to be redeemed and shall state: (a) the redemption date; (b) the redemption price; (c) the name and address of the Paying Agent; (d) that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price; (e) that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date; and (f) any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed. At the Company's request, the Trustee shall give the notice of redemption in the Company's name and at its expense. Section 3.4. Effect of Notice of Redemption. Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to the redemption date. Section 3.5. Deposit of Redemption Price. On or before the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date. Section 3.6. Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the unredeemed portion of the Security surrendered. ARTICLE IV. COVENANTS Section 4.1. Payment of Principal and Interest. The Company covenants and agrees for the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. Section 4.2. SEC Reports. The Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the annual reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall comply with the other provisions of TIA Section 314(a). Section 4.3. Compliance Certificate. The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year of the Company, an officers certificate signed by two of the Company's officers stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he may have knowledge). The Company will, so long as any of the Securities are outstanding, deliver to the Trustee, forthwith upon becoming aware of any Default or Event of Default, an Officers' Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto. Section 4.4. Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted. Section 4.5. Corporate Existence. Subject to Article V, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence and the corporate, partnership or other existence of each Significant Subsidiary in accordance with the respective organizational documents of each Significant Subsidiary and the rights (charter and statutory), licenses and franchises of the Company and its Significant Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any Significant Subsidiary, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to the Holders. Section 4.6. Taxes. The company shall, and shall cause each of its Significant Subsidiaries to, pay prior to delinquency all taxes, assessments and governmental levies, except as contested in good faith and by appropriate proceedings. ARTICLE V. SUCCESSORS Section 5.1. When Company May Merge, Etc. The Company shall not consolidate with or merge into any other person in a transaction in which we are not the surviving entity, or convey, transfer or lease all or substantially all of its properties and assets to any person (a "successor person"), unless: (a) the successor person (if any) is a corporation, partnership, trust or other entity organized and validly existing under the laws of the Marshall Islands or any U.S. domestic jurisdiction and expressly assumes the Company's obligations on the Securities and under this Indenture and (b) immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing. The Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officers' Certificate to the foregoing effect and an opinion of Counsel stating that the proposed transaction and such supplemental indenture comply with this Indenture. Section 5.2. Successor Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1, the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor person has been named as the Company herein; provided, however, that the predecessor company in the case of a sale, lease, conveyance or other disposition shall not be released from the obligation to pay the principal of and interest, if any, on the Securities. ARTICLE VI DEFAULTS AND REMEDIES Section 6.1. Events of Default. "Event of Default," wherever used herein with respect to securities of any Series, means any one of the following events, unless in the establishing Board Resolution, supplemental indenture or Officers' Certificate, it is provided that such Series shall not have the benefit of said Event of Default: (a) default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior to the expiration of such period of 30 days); or (b) default in the payment of the principal of any Security of that Series at its Maturity; or (c) default in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series; or (d) default in the performance or breach of any covenant of the Company in this Indenture, which default continues uncured for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the outstanding Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (e) a default under any Debt of the Company (including a default with respect to Securities of any Series other than that Series) or any Subsidiary, whether such Debt now exists or shall hereafter be created, if (A) such default results from the failure to pay any such Debt when it becomes due and (B) such Debt is not discharged or such acceleration is not rescinded or annulled within 30 days after written notice to the Company by the holder or holders of such Debt in the manner provided for in the applicable debt instrument; provided, that if the default with respect to such Debt is remedied or cured by the Company or waived by the holders of such Debt before entry of judgment in favor of the relevant trustee, then the Event of Default under this Indenture will be deemed likewise to have been remedied, cured or waived; or (f) the Company pursuant to or within the meaning of any Bankruptcy Law: (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property, (iv) makes a general assignment for the benefit of its creditors, or (v) generally is unable to pay its debts as the same become due; or (g) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against the Company or any of its Significant Subsidiaries in an involuntary case, (ii) appoints a Custodian of the Company or any of its Significant Subsidiaries or for all or substantially all of its property, or (iii) orders the liquidation of the Company or any of its Significant Subsidiaries, and the order or decree remains unstayed and in effect for 60 days; or (h) any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officers' Certificate, in accordance with Section 2.2.18. No Event of Default with respect to a particular Series of Securities (except with respect to subsections (f) and (g) above) necessarily constitutes an Event of Default with respect to any other Series of Securities. The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law. Section 6.2. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any Series at the time outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately due and payable. The Holders of not less than a majority in principal amount of the outstanding Securities of that Series, by written notice to the Trustee, may rescind any declaration of acceleration of such Securities of that Series and its consequences if all existing Events of Default (other than the nonpayment of principal of or interest on such Securities that shall have become due by such declaration) shall have been cured or waived. Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee. If an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. Section 6.4. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. Section 6.5. Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered. Section 6.6. Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: and First: To the payment of all amounts due the Trustee under Section 7.7; Second: To the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest, respectively; and Third: To the Company. Section 6.7. Limitation on Suits. No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series; (b) the Holders of not less than 25% in principal amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (c) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that Series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders. Section 6.8. Unconditional Right of Holders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and Unconditional, to receive payment of the principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. Section 6.9. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. Section 6.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Section 6.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. Section 6.12. Control by Holders. The Holders of a majority in principal amount of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series, provided that (a) such direction shall not be in conflict with any rule of law or with this Indenture, (b) the Trustee may take any other action deemed proper b)o Trustee which is not inconsistent with such direction, and (c) subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability. Section 6.13. Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except a Default in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon. Section 6.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date). ARTICLE VII. TRUSTEE Section 7.1. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (b) Except during the continuance of an Event of Default: (i) The Trustee need perform only those duties that are specifically set forth in this Indenture and no others. (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon officers' Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in the case of any such officers' Certificates or opinions of Counsel which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such officers' Certificates and opinions of Counsel to determine whether or not they conform to the requirements of this Indenture. (c) The Trustee may not be relieved from liability for its own its own willful negligent action, its own negligent failure to act or misconduct, except that: (i) This paragraph does not limit the effect of paragraph (b) of (ii) The Trustee shall not be liable for any error of judgment made in good faith by a Responsible officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts. (iii) The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series. (d) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section. (e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense. (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. (g) No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it. (h) The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and standard of care as are set forth in paragraphs (a), (b) and (c) of this Section with respect to the Trustee. Section 7.2. Rights of Trustee. (a) The Trustee may rely on and shall be protected in acting or refraining from acting as a result of its reasonable belief that any document was genuine and had been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document. (b) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or opinion of Counsel. (c) The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care; provided that such agent agree as a condition to its engagement that it shall be responsible to the Company for its own misconduct or negligence. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depository. (d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers. (e) The Trustee may consult with counsel and the advice of such counsel or any opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. Section 7.3. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of securities and may otherwise deal with the Company or an Affiliate with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11. Section 7.4. Trustee's Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company's use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its authentication. Section 7.5. Notice of Defaults. If a Default or Event of Default occurs and is continuing with respect to the Securities of any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder of the Securities of that Series and, if any Bearer Securities are outstanding, publish on one occasion in an Authorized Newspaper, notice of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Securityholders of that Series. Section 7.6. Reports by Trustee to Holders. Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register kept by the Registrar and, if any Bearer Securities are outstanding, publish in an Authorized Newspaper, a brief report dated as of such May 15, in accordance with, and to the extent required under, TIA Section 313. A copy of each report at the time of its mailing to Securityholders of any Series shall be filed with the SEC and each stock exchange on which the Securities of that Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on any stock exchange. Section 7.7. Compensation and Indemnity. The Company shall pay to the Trustee from time to time reasonable compensation for its services. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee's agents and counsel. The Company shall indemnify the Trustee (including the cost of defending itself) against any loss, liability or expense incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee. The Company need not reimburse any expense or indemnify against any loss liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through negligence or bad faith. To secure the Company's payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Securities of that Series. When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(f) or (g) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law. Section 7.8. Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section. The Trustee may resign with respect to the Securities of one or more Series by so notifying the Company. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if: (a) the Trustee fails to comply with Section 7.10; (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law; (c) a Custodian or public officer takes charge of the Trustee or its property; or (d) the Trustee becomes incapable of acting. If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company. If a successor Trustee with respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the Securities of the applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee. If the Trustee with respect to the Securities of any one or more Series fails to comply with Section 7.10, any Securityholder of the applicable Series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice of its succession to each Securityholder of each such Series and, if any Bearer Securities are outstanding, publish such notice on one occasion in an Authorized Newspaper. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company's obligations under Section 7.7 hereof shall continue for the benefit of the retiring trustee with respect to expenses and liabilities incurred by it prior to such replacement. Section 7.9. Successor Trustee by Merger, etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee. Section 7.10. Eligibility; Disqualification. This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA Section 310(b). Section 7.11. Preferential Collection of Claims Against Company. The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TTA Section 311(a) to the extent indicated. ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE Section 8.1. Satisfaction and Discharge of Indenture. This Indenture shall upon Company Order cease to be of further effect (except as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when (a) either (i) all Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or (ii) all such Securities not theretofore delivered to the Trustee for cancellation have become due and payable, or (1) have become due and payable, or (2) will become due and payable at their Stated Maturity within one year, or (3) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, or (4) are deemed paid and discharged pursuant to section 8.3, as applicable; and the Company, in the case of (1), (2) or (3) above, has deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be; (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and (c) the Company has delivered to the Trustee an Officers' Certificate and an opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 7.7, and, if money shall have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1 8.2 and 8.5 shall survive. Section 8.2. Application of Trust Funds; Indemnification. (a) Subject to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 8.1, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.3 or 8.4. (b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government obligations or Foreign Government Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders. (c) The Trustee shall deliver or pay to the Company from time to time upon Company Request any U.S. Government obligations or Foreign Government obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this Indenture. Section 8.3. Legal Defeasance of Securities of any Series. Unless this Section 8.3 is otherwise specified, pursuant to Section 2.2-20, to be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding Securities of such Series on the 91st day after the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the company, shall, at Company Request, execute proper instruments acknowledging the same), except as to: (a) the rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Stated Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such Series; (b) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and (c) the rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions shall have been satisfied: (d) the Company shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated solely to the benefit of the Holders of such Securities W in the case of Securities of such Series denominated in Dollars, cash in Dollars (or such other money or currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government obligations, which through the payment of interest and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal (including mandatory sinking fund or analogous payments) of and interest, if any, on all the Securities of such Series on the dates such installments of interest or principal are due; (e) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; (f) no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date; (g) the Company shall have delivered to the Trustee an officers' Certificate and an opinion of Counsel to the effect that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred; (h) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Securities of such Series over any other creditors of the company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; (i) such deposit shall not result in the trust arising from such deposit constituting an investment company (as defined in the Investment Company Act of 1940, as amended), or such trust shall be qualified under such Act or exempt from regulation thereunder; and (j) the Company shall have delivered to the Trustee an officers' Certificate and an opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this Section have been complied with. Section 8.4. Covenant Defeasance. Unless this Section 8.4 is otherwise specified pursuant to Section 2.2.20 to be inapplicable to Securities of any Series, on and after the 91st day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit to comply with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4, 4.5, 4.6, and 5.1 as well as any additional covenants contained in a supplemental indenture hereto for a particular Series of Securities or a Board Resolution or an Officers' Certificate delivered pursuant to Section 2.2.20 (and the failure to comply with any such covenants shall not constitute a Default or Event of Default under Section 6.1) and the occurrence of any event described in clause (e) of Section 6.1 shall not constitute a Default or Event of Default hereunder, with respect to the Securities of such Series, provided that the following conditions shall have been satisfied: (a) With reference to this Section 8.4, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars (or such other money or currencies as shall then be legal tender in the United States) and/or U.S. Government obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government obligations, which through the payment of interest and principal in respect thereof, in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay principal and interest, if any, on and any mandatory sinking fund in respect of the Securities of such Series on the dates such installments of interest or principal are due; (b) Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; (c) No Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date; (d) the company shall have delivered to the Trustee an opinion of Counsel confirming that Holders of the Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred; (e) the Company shall have delivered to the Trustee an officers' Certificate stating the deposit was not made by the Company with the intent of preferring the Holders of the Securities of such Series over any other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and (f) The Company shall have delivered to the Trustee an officers' Certificate and an opinion of Counsel, each stating that all conditions precedent herein provided for relating to the defeasance contemplated by this Section have been complied with. Section 8.5. Repayment to Company. The Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal and interest that remains unclaimed for two years. After that, Securityholders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person. ARTICLE IX. AMENDMENTS AND WAIVERS Section 9.1. Without Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder: (a) to cure any ambiguity, defect or inconsistency; (b) to comply with Article V; (c) to provide for uncertificated Securities in addition to or in place of certificated Securities; (d) to make any change that does not adversely affect the rights of any Securityholder; (e) to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture; (f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or (g) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA. Section 9.2. With Consent of Holders. The Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding Securities of all Series affected by such supplemental indenture, taken together as one class (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Securityholders of each such Series. Except as provided in Section 6.13, the Holders of at least a majority in principal amount of the outstanding Securities of all Series affected by such waiver by notice to the Trustee, taken together as one class (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities with respect to such Series. It shall not be necessary for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this section becomes effective, the Company shall mail to the Holders of Securities affected thereby and, if any Bearer Securities affected thereby are outstanding, publish on one occasion in an Authorized Newspaper, a notice briefly describing the supplemental indenture or waiver. Any failure by the Company to mail or publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver. Section 9.3. Limitations. Without the consent of each Securityholder affected, an amendment or waiver may not: (a) change the amount of Securities whose Holders must consent to an amendment, supplement or waiver; (b) reduce the rate of or change the interest payment time on any Security or alter the redemption provisions with respect thereto (other than the provisions relating to Sections 4.10 and 4.17, other than any alteration to any such Section which would not materially adversely affect the legal rights of any Holder under this Indenture) or the price at which the Company is required to offer to purchase the Securities; (c) reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation; (d) reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof; (e) waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration); (f) make the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security; (g) make any change in Sections 6.8, 6.13, 9.3 (this sentence), 10.15 or 10.16; or (h) waive a redemption payment with respect to any Security or change any of the provisions with respect to the redemption of any Securities. Section 9.4. Compliance with Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect. Section 9.5. Revocation and Effect of Consents. Until an amendment or waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder's Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective. Any amendment or waiver once effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through (g) of Section 9.3. in that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder's Security. Section 9.6. Notation on or Exchange of Securities. The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon request new Securities of that Series that reflect the amendment or waiver. Section 9.7. Trustee Protected. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental indenture that adversely affects its rights. ARTICLE X. MISCELLANEOUS Section 10.1. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control. Section 10.2. Notices. Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered in person or mailed by first-class mail: if to the Company: Eagle Bulk Shipping Inc. 477 Madison Avenue New York, NY 10022 if to the Trustee: [Name of Trustee] [Address] - --------------------- - --------------------- Attention: -------------- The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications. Any notice or communication to a Securityholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar and, if any Bearer Securities are outstanding, published in an Authorized Newspaper. Failure to mail a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series. If a notice or communication is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it. If the company mails a notice or communication to Securityholders, it mail a copy to the Trustee and each Agent at the same time. Section 10.3. Communication by Holders with Other Holders. Securityholders of any Series may communicate pursuant to TIA Section 312(b) with other Securityholders of that Series or any other Series with respect to their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c). Section 10.4. Certificate and opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee: (a) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and (b) an opinion of Counsel stating that, in the opinion of counsel, all such conditions precedent have been complied with. Section 10.5. Statements Required in Certificate or opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include: (a) a statement that the person making such certificate or opinion has read such covenant or condition; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. Section 10.6. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions. Section 10.7. Legal Holidays. Unless otherwise provided by Board Resolution, officers' Certificate or supplemental indenture for a particular Series, a "Legal Holiday" is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. Section 10.8. No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities. Section 10.9. Counterparts. This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Section 10.10. Governing Laws. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK EXCLUDING (TO THE GREATEST EXTENT POSSIBLE) ANY RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. Section 10.11. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. Section 10.12. Successors. All agreements of the Company in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor. Section 10.13. Severability. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 10.14. Table of Contents, Headings, Etc. The Table of Contents, Cross Reference Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. Section 10.15. Securities in a Foreign Currency or in ECU. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officers' Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in a coin or currency other than Dollars (including ECUs), then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section 10.15, "Market Exchange Rate" shall mean the noon Dollar buying rate in New York City for cable transfers of that currency as published by the Federal Reserve Bank of New York; provided, however, in the case of ECUs, Market Exchange Rate shall mean the rate of exchange determined by the Commission of the European Union (or any successor thereto) as published in the Official Journal of the European union (such publication or any successor publication, the "Journal"). If such Market Exchange Rate is not available for any reason with respect to such currency, the Trustee shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange as published in the Journal, as of the most recent available date, or quotations or, in the case of ECUs, rates of exchange from one or more major banks in The City of New York or in the country of issue of the currency in question or, in the case of ECUs, in Luxembourg or such other quotations or, in the case of ECUs, rates of exchange as the Trustee, upon consultation with the Company, shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture. All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Company and all Holders. Section 10.16. Judgment Currency. The Company agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the "Required Currency") into a currency in which a judgment will be rendered (the "Judgment Currency"), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then, the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required by law, regulation or executive order to close. ARTICLE XI. SINKING FUNDS Section 11.1. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of a Series, except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture. The minimum amount of any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a "mandatory sinking fund payment" and any other amount provided for by the terms of Securities of such Series is herein referred to as an "optional sinking fund payment." If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series as provided for by the terms of the securities of such Series. Section 11.2. Satisfaction of Sinking Fund Payments with Securities. The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which such sinking fund payment is applicable and which have been redeemed either at the election of the Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officers' Certificate with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to the Company. Section 11.3. Redemption of Securities for Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental indenture hereto or Officers' Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.2., and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board Resolution, Officers' Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall stated in Sections 3.4, 3.5 and 3.6. [The Remainder of this page is intentionally left blank.] IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written. Eagle Bulk Shipping Inc. By: /s/ [TBD] ------------------- Name: [TBD] Its: [Chief Accounting Officer and Company Secretary] [Name of Trustee] By:___________________________ Name: Its: EX-5.1 47 d694457_ex5-1.txt Exhibit 5.1 [Seward & Kissel LLP Letterhead] Eagle Bulk Shipping Inc. August 30, 2006 477 Madison Avenue New York, NY 10022 Re: Eagle Bulk Shipping Inc. Ladies and Gentlemen: We have acted as counsel to Eagle Bulk Shipping Inc. (the "Company") in connection with the Company's Registration Statement on Form F-3 (the "Registration Statement") as filed with the U.S. Securities and Exchange Commission (the "Commission") on August 30, 2006, as thereafter amended or supplemented, with respect to the public offering (the "Primary Offering") of up to an aggregate of $220,500,000 of securities which may include common shares, preferred shares, debt securities, warrants, purchase contracts and units (collectively the "Securities") and up to 5,000,000 of our Common Shares that may be offered (the "Secondary Offering" and together with the Primary Offering the "Offering") by one or more selling shareholders (the "Shares"). We have examined originals or copies, certified or otherwise identified to our satisfaction, of: (i) the Registration Statement; (ii) the prospectus of the Company (the "Prospectus") included in the Registration Statement; and (iii) such corporate documents and records of the Company and such other instruments, certificates and documents as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. In such examinations, we have assumed the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies or drafts of documents to be executed, the genuineness of all signatures and the legal competence or capacity of persons or entities to complete the execution of documents. As to various questions of fact which are material to the opinions hereinafter expressed, we have relied upon statements or certificates of public officials, directors and officers of the Company and others. We have further assumed for the purposes of this opinion, without investigation, that (i) all documents contemplated by the Prospectus to be executed in connection with the Offering have been duly authorized, executed and delivered by each of the parties thereto other than the Company, and (ii) the terms of the Offering comply in all respects with the terms, conditions and restrictions set forth in the Prospectus and all of the instruments, agreements and other documents relating thereto or executed in connection therewith. Based upon and subject to the foregoing, and having regard to such other legal considerations which we deem relevant, we are of the opinion that: 1. Under the laws of the Republic of the Marshall Islands, the Securities have been duly authorized, and when the Securities are issued, sold and paid for as contemplated in the Prospectus, will be validly issued, fully paid and non-assessable; and 2. The Shares being sold by the Selling Shareholder have been validly issued, fully paid for and are non-assessable. This opinion is limited to the law of the State of laws of the Republic of the Marshall Islands as in effect on the date hereof. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and to each reference to us and the discussions of advice provided by us under the headings "Legal Matters" in the Prospectus, without admitting we are "experts" within the meaning of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder with respect to any part of the Registration Statement. Very truly yours, /s/ Seward & Kissel LLP EX-12 48 d698444_ex-12.txt Exhibit 12 Statement Regarding Computation of Earnings to Fixed Charges Period from January 26, 2005 (inception) to Six Months ended Period December 31, 2005 June 30, 2006 ------------------ ---------------- 1. Net Income 6,653,400 20,184,237 2.Fixed Charges (as per below) 7,208,641 4,183,673 3.Amortized Capitalized Interest - - ---------- ---------- Total Earnings 13,862,041 24,367,910 ========== ========== Fixed Charges 1. All Interest 5,979,864 4,117,448 2a. Amortization of Debt Issuance Costs 98,065 66,225 2b. Write-Off of Debt Issuance Costs 1,130,712 3. Interest Portion of Rental Expense - - 4. Preferred Stock Dividends - - ---------- ---------- Total 7,208,641 4,183,673 ========== ========== Ratio of earnings to fixed charges 1.9 5.8 EX-21.1 49 d560027_ex21.txt EXHIBIT 21 Subsidiaries of the Company The following is a list of the Company's subsidiaries as of August 15, 2006: Country of Portion of Name of Significant Subsidiary Incorporation Ownership Interest - ------------------------------ ------------- ------------------ Eagle Shipping International (USA) LLC Marshall Islands 100% Condor Shipping LLC Marshall Islands 100% Hawk Shipping LLC Marshall Islands 100% Falcon Shipping LLC Marshall Islands 100% Harrier Shipping LLC Marshall Islands 100% Osprey Shipping LLC Marshall Islands 100% Kite Shipping LLC Marshall Islands 100% Sparrow Shipping LLC Marshall Islands 100% Griffon Shipping LLC Marshall Islands 100% Shikra Shipping LLC Marshall Islands 100% Peregrine Shipping LLC Marshall Islands 100% Cardinal Shipping LLC Marshall Islands 100% Heron Shipping LLC Marshall Islands 100% Merlin Shipping LLC Marshall Islands 100% Jaeger Shipping LLC Marshall Islands 100% Kestrel Shipping LLC Marshall Islands 100% Tern Shipping LLC Marshall Islands 100% Kittiwake Shipping LLC Marshall Islands 100% Oriole Shipping LLC Marshall Islands 100% Robin Shipping LLC Marshall Islands 100% Eagle Bulk (Delaware) LLC United States 100% (Delaware) EX-23.2 50 d692821_ex23-2.txt Exhibit 23.2 Consent of Independent Registered Public Accounting Firm We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3 No. 333-000000) and related Prospectus of Eagle Bulk Shipping Inc. for the proposed sale of debt or equity securities and to the incorporation by reference therein of our report dated March 8, 2006, with respect to the consolidated financial statements of Eagle Bulk Shipping Inc. included in its Annual Report (Form 10-K) for the period ended December 31, 2005, filed with the Securities and Exchange Commission. New York, New York August 29, 2006 -----END PRIVACY-ENHANCED MESSAGE-----