LIMITED PARTNERSHIP AGREEMENT
SEABULK TRANSMARINE PARTNERSHIP, LTD.
THIS AGREEMENT of Limited Partnership made this 30th day of August,
1985, among SEABULK TANKERS, LTD. (hereinafter referred to as General Partner),
and Xxxx X. Xxxxx, J. Xxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxx X. Xxxxxx, and Xxxxxx X.
Xxxxxxx (herein referred to as "Limited Partners"). (The General Partner and the
Limited Partners are sometimes collectively referred to herein as the
"Partners").
ARTICLE I
GENERAL ORGANIZATION
1.01 Organization. The parties hereto hereby form a Limited Partnership
pursuant to Chapter 620, Florida Statutes, (herein called the "Partnership").
1.02 Statutory Requirement. The parties hereto shall simultaneously
herewith execute a Certificate of Limited Partnership and cause such certificate
to be filed in the appropriate office and, thereafter, execute and cause to be
filed and otherwise published such original or amended certificates all
evidencing the formation and operation of this Limited Partnership whenever the
same may be required under the laws of the State of Florida and of any other
states where the Partnership shall determine to do business. The General Partner
is hereby authorized and empowered by the Limited Partners to prepare, file and
publish either the original or any amended or modified Certificates of Limited
Partnership as may be necessary or desirable, and the Limited Partners
specifically designate and appoint the General Partner, for and on their behalf
as attorneys for the exclusive purposes of signing and attesting to such
original or amended Certificates of Limited Partnership. The creation of the
foregoing power of attorney is coupled with an interest and shall be
irrevocable.
1.03 Purposes of Partnership. The purposes of the Partnership shall be
as follows:
(a) To acquire title to the damaged tank vessel named
"Fuji" (as may be
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renamed), to provide for its reconstruction into a self-propelled vessel and to
provide for its management and operation;
(b) To purchase, construct, reconstruct, manage, operate,
charter, lease or sell the damaged tank vessel named "Fuji" (as may be renamed);
(c) To engage in any and all maritime-related activities
relating to the ownership, operation and use of the damaged tank vessel named
"Fuji"; and
(d) To invest in stocks, bonds and securities, and to engage
without limitation, in the purchase and sale of, and dealing in, stocks, bonds,
notes, and to open such checking and savings accounts with banking institutions
as may be necessary to conduct the business of the Partnership.
ARTICLE II
NAME, LOCATION AND PARTNERS
2.01 Name of Limited Partnership. The name of the Limited Partnership
is SEABULK TRANSMARINE PARTNERSHIP, LTD. The business of the Partnership shall
be conducted under such name and under such variations of this name as may be
necessary to comply with the laws of other states within which the Partnership
may do business or make investments.
2.02 Fictitious Name Certificates. The General Partner shall promptly
execute and duly file with the proper offices in each state in which the
Partnership may conduct the activities hereinafter authorized one or more
certificates as required by the Fictitious Names Act or similar statute in
effect as to each such state in which such activities are so conducted.
2.03 Location of Principal Place of Business. The principal place of
business shall be located at 0000 Xxxxxxxxx 00xx Xxxxxx Xxxxxxxx, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000, or at such other place or places as the General
Partner may designate and as agreed to by the Limited Partners.
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2.04 Names and Addresses or Places of Residence of Partners. The names
and places of residence of the General Partner and the Limited Partners are as
follows:
General Partner: Address:
Seabulk Tankers, Ltd. 0000 X.X. 00xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Limited Partners: Address:
Xxxx X. Xxxxx 0000 X.X. 00xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
J. Xxxx Xxxxx 0000 X.X. 00xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx 0000 X.X. 00xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxxxx 0000 X.X. 00xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxx 0000 X.X. 00xx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
ARTICLE III
TERM
3.01 Term of Partnership. The Partnership shall commence on the date
that a Certificate of Limited Partnership is duly filed as required by law, and
shall continue in existence for a period of twenty-five (25) years from the date
of said filing, unless sooner terminated, liquidated, or dissolved by law or as
hereinafter provided or unless extended by amendment to this Limited Partnership
Agreement.
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.01 Initial Capital Contributions. As its initial capital contribution,
the General Partner shall contribute to the Partnership the Sulzer main engines,
together with ancillary machinery
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and equipment contained in the damaged tank vessel named "Fuji", (as may be
renamed), the value of which the parties hereto acknowledge to be $630,000.00,
together with the sum of $20,000.00. This contribution shall represent a 61.89%
equity interest in the Partnership. The parties acknowledge that said
contribution (other than cash) has been previously purchased with Capital
Construction Fund monies, and STL hereby agrees to pay all penalties and
interest required for the ultimate repayment of such monies and to hold the
Limited Partners harmless for such repayment, penalties and interest. As their
initial capital contribution to the Partnership, Xxxx X. Xxxxx and J. Xxxx Xxxxx
shall each contribute $150,000.00, which amount represents a 14.29% interest for
each in the Partnership; Xxxxx X. Xxxxxx shall contribute $40,000.00, which
amount represents a 3.81% interest in the Partnership; and Xxxxxx Xxxxxx and
Xxxxxx X. Xxxxxxx shall each contribute $30,000.00, which amount represents a
2.86% interest for each in the Partnership.
4.02 Additional Capital Contributions. Each of the General Partner and
the Limited Partners agree to contribute to the capital of the Partnership at
such times and such in amounts as the General Partner may from time to time
request by notice to the Limited Partner, its proportionate share (based upon
its initial capital contribution as set forth in Section 4.01 hereof) of costs
incurred and necessary for the care, maintenance or reconstruction of the
damaged tank vessel named "Fuji" (as may be renamed), for general and
administrative expenses, and for other expenses incurred in connection with
other activities in which the Partnership is authorized to engage in.
4.03 Percentage Ownership of the Partnership Assets. The percentage
interest of the General Partner and the Limited Partners in the partnership
assets are as follows:
Percentage
General Partner:
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Seabulk Tankers, Ltd. 61.89%
Limited Partners:
Xxxx X. Xxxxx 14.29%
J. Xxxx Xxxxx 14.29%
Xxxxx X. Xxxxxx 3.81%
Xxxxxx Xxxxxx 2.86%
Xxxxxx X. Xxxxxxx 2.86%
4.04 Capital Account. Each Partner shall have a capital account which shall
be credited with:
(a) The amount of its capital contribution pursuant to
Sections 4.01 and 4.02 hereof; and
(b) The amount of net profits (as defined in Section 5.01
below) allocated to such Partner pursuant to its equity interest as set forth in
Section 4.01 hereof; and shall, be debited with:
(i) The amount of net losses (as defined in Section 5.01
below) allocated to such Partner pursuant to equity interest as set forth in
Section 4.01 hereof; and
(ii) All amounts distributed to such Partner pursuant to
Article V hereof. Whenever it is necessary to determine the capital account of
any Partner for purposes of this Agreement, the capital account of the Partner
shall be determined after giving effect to the allocation for the Partnership's
current year (or the portion thereof ending on the date of such determination)
of net profits or net losses in accordance with Section 5.02 and all
distributions for such year pursuant to Section 5.03. A Partner shall not be
entitled to withdraw any part of
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his capital account or to receive any distribution of the Partnership except as
specifically provided in this Agreement.
ARTICLE V
DISTRIBUTIONS
5.01 Definition of Net Profits and Net Losses. The terms "net profits"
and "net losses" as used in this Agreement shall mean the net profits and the
net losses of the Partnership as determined under generally accepted accounting
principles by a nationally-recognized firm of independent certified public
accountants servicing the Partnership account.
5.02 Division of Net Profits and Net Losses. All net profits and net
losses of the Partnership shall be allocated to the General Partner and the
Limited Partners, in a percentage equal to that set forth in Section 4.03.
5.03 Division of Cash Flow. The cash flow of the Partnership shall be
the net profits and net losses of the Partnership as defined in Section 5.01
above, plus depreciation and other noncash charges deducted in determining such
net profits and net losses, minus principal payments on all mortgages, and any
other cash expenditures which have not been deducted in determining the net
profits and net losses of the Partnership, and minus any amount reasonably
determined by the General Partner as being required to maintain sufficient
working capital and a reasonable reserve for repairs, replacement, or other
reasonable contingencies. The cash flow, as so determined, may be distributed by
the General Partner to all the Partners in a percentage equal to that set forth
in Section 4.03. There shall be no obligation to return to the General Partner
or to the Limited Partners, or to any one of them, any part of the respective
capital'contributions for so long as the Partnership continues in existence.
Neither the General Partner nor the Limited Partners shall be entitled to any
priority or preference over any other
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Partner as to the distribution of the cash flow of the Partnership.
ARTICLE VI
OWNERSHIP OF PROPERTY
6.01 Ownership. All property, including all improvements thereto,
acquired by the Partnership shall be owned by the Partners in a percentage equal
to that set forth in Section 4.03, such ownership being subject to the terms and
provisions of this Agreement. Each Partner hereby expressly waives the right to
require partition of any Partnership property or any part thereof.
ARTICLE VII
BOOKS, ACCOUNTS AND RECORDS
7.01 Partnership Accognting Year. The Partnership's books and records
and all required income tax returns shall be kept or made on the basis of a
fiscal year to be determined by the General Partner. The General Partner shall
determine whether the cash or accrual method of accounting is to be used in
keeping the Partnership records.
7.02 Books and Records. The General Partner shall keep at the principal
place of business and make available to all Partners at any time during normal
business hours, true and correct books of account and all other Partnership
records. The copying by a Partner or his designated agent, of any part or all
parts of such records is specifically authorized. Within forty-five (45) days
after the close of each month of each fiscal year of the Partnership, the
General Partner shall furnish to all Partners unaudited financial statements of
the Partnership. In addition, within ninety (90) days after the close of each
fiscal year of the Partnership, the General Partner shall furnish to all
Partners any additional information needed or necessary to complete their
federal and state income tax returns, including statements of the net
distributable
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income or loss to each Partner from the operation of the Partnership. The cost
of all of the above duties and services to be performed by the General Partner
shall be deemed an expense of the Partnership.
7.03 Partnership Bank Account. The General Partner shall receive all
monies of the Partnership and shall deposit the same in one or more Partnership
bank accounts. All expenditures by the General Partner on partnership interests
shall be made by checks or other debits drawn against the Partnership bank
account. Withdrawals from the Partnership bank accounts shall be made on such
signature or signatures and on such terms and conditions as the General Partner
shall authorize.
ARTICLE VIII
POWERS AND LIABILITIES OF THE GENERAL PARTNER
8.01 Powers. The Partnership shall have the power to reconstruct,
operate, acquire, charter, hold, mortgage, sell or otherwise dispose of the
damaged tank vessel named "Fuji" (as may be renamed,) to borrow money, to give
evidence of indebtedness, and to execute and deliver such instruments and
documents and to take such other action as the General Partner shall from time
to time deem necessary and appropriate in connection with carrying out the
purposes of the Partnership.
8.02 Management. The General Partner shall manage and operate the
business of the Partnership and shall have full discretion in the management and
operation thereof. The General Partner shall use due diligence to carry out the
purposes and business of the Partnership and shall devote to the Partnership
business such time as it shall determine to be required for its welfare and
success. The General Partner agrees to provide frequent, periodic information to
the Limited Partners regarding the Partnership's financial condition and
business activities.
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8.03 Responsibility of General Partner. The General Partner shall
exercise due diligence in managing the affairs of the Partnership. Always,
unless fraud, deceit, gross negligence, or a wrongful taking shall be involved,
the General Partner shall not be liable or obligated to the Limited Partner for
any mistake of fact or judgment made by the General Partner in operating the
business of the Partnership, which results in any loss to the Partnership or its
Partners. The General Partner does not, in any way, guarantee the return of the
Limited Partners' capital or a profit from the operations of the Partnership.
Neither shall the General Partner be responsible to the Limited Partners because
of a loss of his investment or a loss in operations. The General Partner shall
devote such attention and business capacity to the affairs of the Partnership as
may be reasonably necessary. In this connection, the parties hereby acknowledge
that any General Partner may be the Manager or General Partner of other
partnerships or entities and may continue to manage other partnerships or
entities, and may continue to engage in other distinct or related businesses,
including the investment in or ownership or development of such business,
whether or not competitive with the business of the Partnership.
8.04 Indemnification. The General Partner shall be indemnified by the
Partnership from any loss or damage incurred by the General Partner by reason of
any act performed or omitted by it if its conduct was consistent with sound
business practices and it reasonably believed the act or omission to be in
furtherance of the interest of the Partnership; provided, however, that nothing
contained herein shall in any manner increase the liability of the Limited
Partners beyond their obligation to make capital contributions to the
Partnership, as provided for herein.
ARTICLE IX
POWER OF ATTORNEY
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9.01 Appointment of General Partner. The Limited Partners hereby
constitutes and appoints the General Partner, the true and lawful attorney for
the undersigned to act in their behalf as provided for hereinabove, and to make,
execute, sign, acknowledge, and file Certificates of Limited Partnership or
amendments thereto, and, upon termination of the Partnership, Certificates of
Dissolution as required under the laws of the State of Florida, and to include
therein all information required by the laws of the State of Florida, and also
make, execute, sign, acknowledge, and file such other instruments as may be
required under the laws of the State of Florida, and the General Partner
undertakes to perform all such acts necessary and desirable for the protection
of the Limited Partners.
ARTICLE X
COMPENSATION OF THE GENERAL PARTNER
10.01 Compensation. The General Partner shall be compensated for the
performance of its duties and functions under this Agreement. Such compensation
will be made on a monthly basis and shall be the actual costs and expenses of
operating the partnership.
ARTICLE XI
ADMISSION OF NEW PARTNERS
11.01 Admission of New Partners. New general partners may be admitted
to the Partnership with the written consent of all Partners. In the event that
new general partners are admitted into the Partnership, the share of each new
general partner and all other partners in the net profits and losses shall be in
such proportion as may be agreed upon between all the partners and the new
general partners. With the written consent of all Partners, new limited partners
may be admitted into the partnership upon the payment of such capital
contribution and upon such terms as the General Partner shall decide. In the
event that new limited
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partners are admitted into the Partnership, the share of each new limited
partner in the net profits and net losses shall be in such proportion as may be
determined by the General Partner.
11.02 Compliance with Laws. Notwithstanding the provisions of Section
11.01, no new partners shall be admitted in violation of any of the U.S.
maritime laws or statutes nor which would, in consideration of the business of
the Partnership, result in a violation of the Merchant Marine Act, 1936, as
amended.
ARTICLE XII
POWERS, RIGHTS AND RESTRICTIONS ON LIMITED PARTNERS
12.01 Restrictions on Limited Partners. The Limited Partners shall not
have either the obligation or the right to take part, directly or indirectly, in
the active management of the business of the Partnership and the Limited
Partners are not authorized to do or perform any act, thing, or deed in the name
of or for or on behalf of either the General Partner or the Partnership. The
Limited Partners are not authorized to and shall not, directly or indirectly,
have a voice in or take part in the business affairs or business operations of
the Partnership, or receive any compensation as such Partner. The Limited
Partners are not authorized to and shall not be permitted to do any act, deed,
or thing which will cause such Limited Partners to be classified as General
Partners of the Partnership. The foregoing shall not apply to a General Partner
who has acquired a Limited Partner's interest in accordance with the terms of
this Agreement.
ARTICLE XIII
LIABILITY OF LIMITED PARTNERS
13.01 Liability. The liability of the Limited Partners with regard to
the Partnership in all respects is restricted and limited to the amount of the
actual capital contributions (and loans, if any) that each Limited Partner
agrees to make to the Partnership.
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ARTICLE XIV
LOANS TO THE PARTNERSHIP
14.01 Loans to the Partnership. Nothing herein shall prevent or act
against a General or Limited Partner loaning money to the Partnership on a
promissory note or similar evidence of indebtedness for a reasonable rate of
interest. Any Partner loaning money to the Partnership shall have the same
rights and risks regarding the loan as would any person or entity making the
loan who was not a Partner of the Partnership.
ARTICLE XV
TERMINATION OR DISSOLUTION
15.01 Termination Upon Withdrawal, Bankruptcy, Death, or Incapacity of
General Partners. The General Partner, upon at least six (6) months prior
written notice, effective as of the last day of any fiscal year of the
Partnership, may voluntarily withdraw from the Partnership as General Partner
and such withdrawal shall have the effect of terminating the Partnership as of
the close of business on such last day. (Provided, however, that upon voluntary
withdrawal of such General Partner, and prior to such termination, the Limited
Partners may designate a new general partner, subject to such new general
partner meeting all citizenship and other criteria, as may be required, of the
U.S. Maritime Administration and other applicable governmental agencies,
including that criteria dealing with de facto control. If such new general
partner is so appointed, subject to the requirements set forth above: (a) the
Partnership shall continue; (b) the new general partner shall expressly assume
all rights, liabilities and responsibilities of the prior General Partner in the
Partnership, shall release the General Partner from any such liabilities and
responsibilities, and shall execute any documents necessary to effect such
assumption and release; and (c) the prior General Partner shall be immediately
paid for its interest in the Partnership assets, which payment
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shall be the fair market value of the prior General Partner's interest in the
Partnership as determined by a competent appraisal.)
The bankruptcy, death, incapacity, or resignation of one General
Partner (if there shall at the time of such event then be more than one General
Partner) shall not have the effect of terminating the Partnership and the other
General Partner shall continue to serve as the General Partner. Upon the
bankruptcy, death, incapacity, or resignation of the General Partner, the
Partnership shall terminate as of the close of business on the last day of the
fiscal year in which such event occurs.
15.02 Voluntary Termination - Effect of Bankruptcy, Dissolution, Death
or Incapacity of Limited Partners. The Partnership may be terminated upon any
date specified in a notice of termination, signed by the General Partner.
(Provided, however, that upon voluntary withdrawal of such General Partner, and
prior to such termination, the Limited Partners may designate a new general
partner, subject to such new general partner meeting all citizenship and other
criteria, as may be required, of the U.S. Maritime Administration and other
applicable governmental agencies, including that criteria dealing with de facto
control and subject also to fulfilling the name change, assumption, release and
payment provisions as set forth in 15.01(a), (b) and (c) above.) The bankruptcy,
dissolution, death or incapacity of a Limited Partner shall have no effect on
the life of the Partnership, which shall continue. (Provided, however, that upon
any such bankruptcy, dissolution or incapacity of a Limited Partner, the General
Partner may designate a new limited partner subject to such new limited partner
meeting all citizenship and other criteria, as may be required, of the U.S.
Maritime Administration and applicable governmental agencies, including that
criteria dealing with de facto control. If such new limited partner is so
appointed, subject to the requirements set forth above (a) the new limited
partner shall expressly assume all rights,
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liabilities, and responsibilities of the prior Limited Partner in the
Partnership, shall release the Limited Partner from any such liabilities and
responsibilities, and shall execute any documents necessary to effect such
assumption and release; and (b) the prior Limited Partner shall be immediately
paid for its interest in the Partnership assets, which payment shall be the fair
market value of the prior Limited Partner's interest in the Partnership as
determined by a competent appraisal.)
15.03 Effect of a Termination of the Partnership. Upon the termination
of the Partnership, regardless of how it is terminated, the affairs of the
Partnership shall be wound up by the General Partner. If for any reason there is
no General Partner, or if they refuse to serve, or are incapable of serving, the
holders of a majority of interests of the Limited Partnership may appoint or
designate a Trustee-in-Liquidation who shall serve to wind up the affairs of the
Partnership. The Trustee-in-Liquidation need not be a commercial corporate
trustee, need not be bonded, and may be a Limited Partner. Whoever serves to
wind up the affairs of the Partnership, the following procedure shall be
followed:
Upon such termination, the assets of the Partnership shall be applied
as follows: to payment of the outstanding Partnership liabilities, although an
appropriate reserve may be maintained and the amount determined by the General
Partner or Trustee-in-Liquidation for any contingent liability until said
contingent liability is satisfied, and the balance of such reserve, if any,
shall be distributed, together with any other sum remaining after payment of the
outstanding Partnership liabilities, to the Partners in the following order of
priority:
(1) To the Limited Partners in an amount not to exceed their capital
account, which capital account shall include the Limited Partners, proportionate
share of any profits or losses from the sale of Partnership assets.
(2) Balance to the General Partner(s).
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Nothing contained in this Agreement shall defeat the right of either a
Limited or a General Partner to require and to have a court-supervised winding
up, liquidation, and dissolution of the Partnership. No Partner shall be
entitled to demand a distribution be made to him in the Partnership property,
but the General Partner may make or direct property distributions to be made,
using the property's fair market value as of the time of distribution as the
basis of making the distribution.
ARTICLE XVI
MISCELLANEOUS
16.01 Amendment. This Agreement may be amended or modified by the
Partners from time to time but only by a written instrument executed by the
General Partner and the holders of a majority of the Limited Partnership
interests.
16.02 Notices. Except as may be otherwise specifically provided in this
Agreement, all notices required or permitted hereunder shall be in writing by
either telex or cable and shall be deemed to be delivered after receipt of same
by the other party at such party's respective address set forth in Section 2.04
hereof or at such other respective address as may have been theretofore
specified by written notice by such party.
16.03 Applicable Law. This Agreement shall be construed under and in
accordance with the laws of the State of Florida.
16.04 Other Instruments. The parties hereto covenant and agree that
they will execute such other and further instruments and documents as are or may
become necessary or convenient to effectuate and carry out the Partnership
created by this Agreement.
16.05 Headings. The headings used in this Agreement are used for
administrative purposes only and do not constitute substantive matters to be
considered in construing the
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terms of this Agreement.
16.06 Parties Bound. This Agreement shall be binding on and inure to
the benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors, and assigns where permitted
by this Agreement.
16.07 Legal Construction. If any one or more of the provisions
contained in this Partnership Agreement for any reason are held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision thereof and this
Partnership Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
16.08 Counterparts. This Partnership Agreement may be executed in any
number of counterparts and each such counterpart shall for all purposes be
deemed to be an original.
16.09 Gender. Wherever the context shall so require, all words herein
in the male gender shall be deemed to include the female or neuter gender, all
singular words shall include the plural words, and all plural words shall
include the singular.
16.10 Arbitration. Any dispute arising under this Agreement or the
performance thereof shall be settled by arbitration in Miami, Florida. The party
requesting arbitration shall serve upon the other party a written demand for
arbitration with the name and address of the arbitrator appointed by it, and
such other party shall within 20 days thereafter appoint an arbitrator, and the
two arbitrators so named shall appoint a third, and the decision or award of any
two shall be final and binding upon the parties. Should the party upon whom the
demand for arbitration is served fail or refuse to appoint an arbitrator within
20 days, the single arbitrator shall have the right to decide alone, and his
decision or award shall be final and binding upon the parties. The arbitrators
shall have the discretion to impose the cost of the arbitration upon the losing
party, or divide it between the parties on any terms which
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may appear just. Any decision or award rendered hereunder may be made and
entered as a rule or judgment of any Court in any country having jurisdiction.
The arbitrators shall be commercial men.
IN WITNESS WHEREOF, each party has executed this Agreement or a
counterpart hereof on the 30th day of August, 1985.
GENERAL PARTNER:
SEABULK TANKERS, LTD.
By: Hvide Marine Transport, Incorporated
its sole general partner
By: __________________________
LIMITED PARTNERS:
By: ___________________________
XXXX X. XXXXX
---------------------------
J. XXXX XXXXX
---------------------------
XXXXXX XXXXXX
---------------------------
XXXXX X. XXXXXX
---------------------------
XXXXXX X. XXXXXXX
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