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Exhibit
3.230
LIMITED PARTNERSHIP
AGREEMENT
Preamble
AGREEMENT of Limited Partnership made
March 20, 2001, by and between Hornblower Development
Corporation, the General Partner and Seattle Harbor Tours, L.P., as
the original Limited Partner. As the admission of additional
Limited Partners is contemplated the references to multiple Limited
Partners has been retained.
IT IS HEREBY AGREED:
ARTICLE 1. THE
PARTNERSHIP
Formation of Limited
Partnership
1.01. The General Partner and the
Limited Partners agree to form a limited partnership (“the
Partnership”), pursuant to the provisions of the California
Revised Limited Partnership Act.
Name of
Partnership
1.02. The name of the Partnership is
“Tahoe Rocket, L.P.” The business of the Partnership
shall be conducted under that name. The name of the Partnership may
be changed by the General Partner by giving written notice of the
change to the Limited Partners and by filing a certificate of
amendment or restated certificate with the Secretary of
State.
Purpose of
Partnership
1.03. The Partnership will engage in the
business of owning and chartering Vessels and any activities that
are related or incidental to that business.
Principal Place of
Business
1.04. The principal place of business of
the Partnership is Pier 3, The Embarcadero, San Francisco,
California, or at any other place as may be determined from time to
time by the General Partner.
Term of
Partnership
1.05. The term of the Partnership
commences on the date on which the Partnership’s Certificate
of Limited Partnership is filed by the Secretary of State of
California in the manner required by the California Revised Limited
Partnership Act and continues until December 31, 2050 unless
earlier dissolved.
Certificate of Limited
Partnership
1.06. The General Partner will
immediately execute a Certificate of Limited Partnership and cause
that Certificate to be filed in the office of the Secretary of
State of California. Thereafter, the General Partner will execute
and cause to be filed certificates of amendment of the Certificate
of Limited Partnership (or Restated Certificates of Limited
Partnership) whenever required by the California Revised Limited
Partnership Act or this Agreement. The General Partner will execute
and cause to he filed original or amended certificates evidencing
the formation and operation of the Partnership whenever required
under the laws of any other states in which the Partnership
determines to do business. The General Partner will also record a
certified copy of the Certificate and any amendment in the office
of the county recorder in every county in which the Partnership
owns real property.
Definitions
1.07. Except as otherwise stated in this
Agreement or as the context of this Agreement requires, the terms
defined in this Section, for the purposes of this Agreement, have
the meanings specified in this Section.
(1) “Agreement”
means this Limited Partnership Agreement, as amended from time to
time.
(2) “Assignee”
means a person who has acquired a beneficial interest in the
limited partnership interest of a Limited Partner but who is not a
“substituted Limited Partner.”
(3) “Assigning Limited
Partner” means a Limited Partner who has assigned a
beneficial interest in that Partner’s limited partnership
interest but the Assignee of which has not become a
“substituted limited partner.”
(4) “Cash Available for
Distribution” means total cash income from operations during
any given accounting period plus the cash proceeds, if any, from
the sale or other disposition, refinancing, or liquidation of
Partnership property, less cash expenses as well as any allowance
or reserves for contingencies or for repair to and maintenance of
properties, and anticipated obligations the General Partner shall
in its discretion deem necessary during
the same accounting
period.
(5)
“Distribution” means any cash distributed to the
Partners from cash available for distribution.
(6) “General
Partner” refers to Hornblower Development Corporation or any
successor.
(7) “Limited
Partner” refers to any person who is admitted to the
Partnership, either as an original Limited Partner or as a
substituted Limited Partner, and who executes this Agreement. A
“new Limited Partner” is a Limited Partner other than
an original or substituted Limited Partner who has purchased a
limited partnership interest from the Partnership by malting the
required contribution to the Partnership.
(8) “Majority in
Interest of the Limited Partners” means fifty
(50) percent of the interests of the Limited
Partners.
(9) “Net Income”
and “Net Loss” mean the net income or net loss of the
Partnership as determined for the purposes of computing federal
income taxes pursuant to the Internal Revenue Code.
(10) “Partners”
or “the Partners” refers collectively to the General
Partner and the Limited Partners. Reference to
“Partner” is a reference to any one of the
Partners.
(11)
“Partnership” refers to the Limited Partnership created
under this Agreement and the Certificate of Limited Partnership to
be filed with the Office of the Secretary of State pursuant to the
California Revised Limited Partnership Act.
(12) “Vote”
includes written consent.
ARTICLE 2. MEMBERS OF
PARTNERSHIP
Original General
Partner
2.01. The name of the original General
Partner is Hornblower Development Corporation.
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Original Limited
Partners
2.02. The name of the original Limited
Partner is Seattle Harbor Tours, LP.
Admission of Additional
General Partner
2.03. Subject to any other provision of
this Agreement, a person may be admitted as a General Partner after
the Certificate of Limited Partnership is filed only with the
written consent of the General Partner and the vote or written
consent of a Majority in Interest of the Limited
Partners.
Replacement of Sole
Remaining General Partner
2.04. If a General Partner ceases to be
a General Partner and there is no remaining General Partner, one or
more new General Partners may be admitted to the Partnership on the
written consent of a Majority in Interest of the Limited Partners;
provided that the Limited Partners agree in writing to continue the
business of the Partnership pursuant to Paragraph 12.03 of this
Agreement.
Admission of Additional
Limited Partners
2.05. Subject to the provisions of
Article 9 of this Agreement, governing transfers of partnership
interests, a person may acquire an interest in the Partnership
directly from the Partnership and be admitted as an additional
Limited Partner with the consent of the General Partner.
Admission of Substituted
Limited Partner
2.06. The assignee of a limited
partnership interest may be admitted as a substituted Limited
Partner with the written consent of the General Partner.
Amendment of Partnership
Records
2.07. On admission of a General Partner
or Limited Partner, the General Partner will add the name, address,
contribution, and that Partner’s share in Partnership profits
or losses to the list of Partners kept in the principal executive
office of the Partnership.
Additional Partners Bound
by Agreement
2.08. Before any person is admitted to
the Partnership as a General or Limited Partner, that person shall
agree in writing to be bound by all of the provisions of this
Agreement.
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ARTICLE
3. FINANCING
Capitalization
3.01. The Partnership shall be
capitalized initially through a contribution of the Vessel Seattle
Rocket (Title abstract set forth Exhibit A) (“the
Vessel”) by Seattle Harbor Tours, L.P. in exchange for a
limited partnership interest and the contribution by Hornblower
Development Corporation of cash in an amount equal to 1% of the
value of the Vessel contributed by the Limited Partner and an
assignment of representations and warranties provided for in that
certain agreement dated February 15, 2001. The Vessel shall be
contributed free and clear of all liens or encumbrances.
Partner Capital
Contributions
3.02. (a) The General Partner named in
this Agreement shall contribute cash and contract rights to the
capital of the Partnership in exchange for a I% interest in the
Partnership.
(b) Each new or replacement
General Partner admitted after the execution of this Agreement
shall contribute, before admission to the Partnership, a sum that
shall be determined by the General Partner. If there is no
remaining General Partner, the contribution and interest of a new
or replacement General Partner shall be determined by the Limited
Partners in accordance with Paragraph 2.04 of this
Agreement.
(c) The Limited Partners
shall contribute the Vessel, subject to existing liens, in exchange
for a 99% interest in the Partnership described in Exhibit
A.
Additional Capital
Contributions
3.03. No additional contributions of
capital shall be required of the Limited Partners.
Withdrawal and Return of
Capital
3.04. A Partner may not withdraw any
portion of the capital of the Partnership and no Partner, General
or Limited, is entitled to the return of that Partner’s
contribution to the capital of the Partnership except on the
dissolution of the Partnership.
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ARTICLE 4. ALLOCATION
AND DISTRIBUTION OF PROFITS AND LOSSES
Allocation of Profits and
Losses
4.01. The Net Profits of the Partnership
are allocated to, and any Net Losses suffered by the Partnership
will be borne by, the Partners in proportion to their capital
contributions.
Distributions of Cash
Available for Distribution
4.02. The Cash Available for
Distribution, as determined by the General Partner, will be
distributed to the Partners in the proportions specified in
Paragraph 4.01 at such time as the General Partner shall
determine.
Distribution, Other Than
Cash
4.03. No Partner has the right to
receive property other than money on the distribution of
profits.
Priorities Among Limited
Partners
4.04. No Limited Partner shall be
entitled to any priority or preference over any other Limited
Partner as to the distribution of Cash Available for
Distribution.
ARTICLE 5. MANAGEMENT
OF PARTNERSHIP AFFAIRS
Control and
Management
5.01. The General Partner has the sole
and exclusive control of the Limited Partnership. Subject to any
limitations expressly set forth in this Agreement, the General
Partner has the power and authority to take any action from time to
time as they may deem to be necessary, appropriate, or convenient
in connection with the management and conduct of the business and
affairs of the Partnership, including without limitation, the power
to do the following:
(1) Acquire property,
including real or personal property, for the use of the Partnership
on the terms and conditions as the General Partner may, from time
to time, determine to be advantageous to the
Partnership;
(2) Dispose of Partnership
property, either in the ordinary course of the business of the
Partnership or, from time to time, when the General Partner deem
the disposition to be in the best interests of the
Partnership;
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(3) Finance the
Partnership’s activities by borrowing money from third
parties on the terms and under the conditions as the General
Partner deem appropriate. When money is borrowed for Partnership
purposes, the General Partner are authorized to pledge, mortgage,
encumber, or grant a security interest in Partnership properties as
security for the repayment of those loans. The Partnership is
authorized to borrow, pursuant to a note and first preferred ship
mortgage, from Terry A. MacRae, Trustee of the MacRae Family Trust
u/t/d 3/20/98 such amount as required to remove all liens set forth
on the title abstract set forth in Exhibit A;
(4) Employ, retain, or
otherwise secure the services of any personnel or firms deemed
necessary by the General Partner for or to facilitate the conduct
of Partnership business affairs, all on the terms and for the
consideration as the General Partner deem advisable; and
(5) Take any and all other
action permitted by law that is customary in or reasonably related
to the conduct of the Partnership business or affairs.
Restrictions on Limited
Partners
5.02. The Limited Partners do not have
either the obligation or the right to take part, directly or
indirectly, in the active management or control of the business of
the Partnership, except as otherwise permitted in this Agreement
and except for the following:
(1) Acting as a contractor
for or an agent or employee of the Partnership or a General
Partner, or an officer, director, or shareholder of a corporate
General Partner.
(2) Consulting with and
advising a General Partner with regard to the business of the
Partnership.
(3) Acting as surety for the
Partnership or guaranteeing one or more specific debts of the
Partnership.
(4) Approving or disapproving
an amendment to this Agreement.
Standard of Care of
General Partner
5.03. The General Partner must exercise
ordinary business judgment in managing the affairs of the
Partnership. Unless fraud, deceit, or a wrongful taking is
involved, the General Partner are not liable or obligated to the
Limited Partners for any mistake of fact or judgment made by the
General Partner in operating the business of the
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Partnership that results in
any loss to the Partnership or its Partners. The General Partner do
not, in any way, guarantee the return of the Limited
Partners’ capital or a profit from the operations of the
Partnership. The General Partner are not responsible to any Limited
Partner because of a loss of that Partner’s investment or a
loss in operations, unless the loss has been occasioned by fraud,
deceit, or a wrongful taking by the General Partner.
Authority for Use of
Nominees
5.04. All Partners recognize
that practical difficulties exist in doing business as a Limited
Partnership, occasioned by third parties seeking to determine the
capacity of the General Partner to act for and on behalf of the
Partnership, or for other reasons. Therefore, the Limited Partners
specifically authorize the General Partner to acquire all real and
personal property, arrange all financing, enter contracts, and
complete all other arrangements needed to effectuate the purpose of
this Partnership ; either in their own names or in the name
de nominee, without having to disclose the existence of this
Partnership. If the General Partner decide to transact the
Partnership business in their own names or in the name of a
nominee, they shall place a written declaration of trust in the
Partnership books and records that acknowledges the capacity in
which the nominee acts and the name of the Partnership as the true
or equitable owner.
Removal of General
Partner
5.05. The General Partner may be removed
by the affirmative vote of a Majority in Interest of the Limited
Partners.
Written notice of a General
Partner’s removal must be served on that Partner by certified
mail. The notice must set forth the day on which the removal is to
be effective, and that date shall not be less than 30 days after
the service of notice on the General Partner. If there is no other
remaining General Partner, and the Limited Partners fail to elect a
new General Partner pursuant to Paragraph 2.04 of this Agreement
within 30 days after the removal becomes effective, the Partnership
will be dissolved and its business wound up and terminated. The
removal will cause that Partner’s interest in the Partnership
to be converted to that of a Limited Partner. A former General
Partner whose interest has been converted to that of a Limited
Partner has the same rights and obligations under this Agreement as
any other Limited Partner.
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ARTICLE 6. BOOKS,
RECORDS, AND ACCOUNTS
Partnership Accounting
Practices
6.01.(a) The Partnership books shall be
kept on a cash basis. The Partnership books shall be closed by an
independent certified public accountant at the end of each fiscal
year of the Partnership.
(b) The fiscal year of the
Partnership is the calendar year.
Maintenance of Records and
Accounts
6.02. At all times, the General Partner
must maintain or cause to be maintained true and proper books,
records, reports, and accounts in which shall be entered fully and
accurately all transactions of the Partnership.
Required
Records
6.03. The General Partner most maintain
at the principal executive office of the Partnership within
California all of the following records:
(1) A current list of the
full name and last known business or residence address of each
Partner, set forth in alphabetical order, together with the
contribution and the share in profits and lasses of each
Partner.
(2) A copy of the certificate
of limited partnership and all certificates of amendment (or the
restated certificate of limited partnership), together with
executed copies of any powers of attorney pursuant to which any
certificate has been executed.
(3) Copies of the
Partnership’s federal, state, and local income tax or
information returns and reports, if any, for the six most recent
taxable years.
(4) Copies of this Agreement
and all amendments to this Agreement.
(5) Financial statements of
the Partnership for the six most recent fiscal years.
(6) The Partnership’s
books and records far at least the current and past three fiscal
years.
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Delivery of Records to
Limited Partners
6.04. On the request of any Limited
Partner, or his or her agent or attorney, the General Partner will
promptly deliver to that Partner, or to his or her agent or
attorney, at the expense of the Partnership, a copy of any of the
following.
(1) The current list of each
Partner’s name, address, contr i
bution, and
share in profits and losses.
(2) The certificate of
limited partnership, as amended, and any powers of attorney
pursuant to which any certificate was executed.
(3) This Agreement, as
amended.
Access to Records by
Limited Partners
6.05. Each Limited Partner and/or each
Limited Partner’s duly authorized representative, attorney,
or attorney-in-fact has the right, on reasonable request,
to:
(1) Inspect and copy, during
normal business hours, any Partnership records the Partnership is
required to maintain, pursuant to Paragraph 6.02 of this
Agreement.
(2) Obtain from the General
Partner, promptly after becoming available, a copy of the
Partnership’s federal, state, and local income tax or
information returns for each year.
Financial
Statements
6.06. The General Partner will furnish
financial statements annually.
Amendments to
Agreement
6.07. The General Partner will promptly
furnish any Limited Partner who executed a power of attorney
authorizing a General Partner to execute an amendment to this
Agreement with a copy of any amendment to this Agreement executed
by a General Partner pursuant to that power of attorney.
Income Tax
Data
6.08. The General Partner will send to
each Partner, within 90 days after the end of each taxable year,
such information as is necessary for them to complete their federal
and state income tax or information returns.
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Partnership Tax or
Information Returns
6.09. The General Partner will send to
each Partner a copy of the Partnership’s federal, state, and
local income tax or information returns for each taxable
year.
Capital
Accounts
6.10. An individual capital account must
be maintained for each General Partner and Limited Partner. A
capital account consists of a Partner’s contribution to the
initial capital of the Partnership, any additional contributions to
the Partnership capital made by the Partner pursuant to this
Agreement, and any amounts transferred to the capital account from
that Partner’s income account pursuant to this
Agreement.
Income
Accounts
6.11. An individual income account will
be maintained for each Partner. At the close of each calendar year,
each Partner’s share dike Net Profits or Net Losses of tie
Partnership will be credited or debited to, and that
Partner’s distributions received during each fiscal year will
be deducted from, that P
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