LIMITED PARTNERSHIP AGREEMENT OF NAVO SOUTH DEVELOPMENT PARTNERS, LTD.
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LIMITED PARTNERSHIP AGREEMENT OF NAVO SOUTH DEVELOPMENT PARTNERS, LTD.
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LIMITED PARTNERSHIP AGREEMENT
NAVO SOUTH DEVELOPMENT PARTNERS, LTD.
(A TEXAS LIMITED PARTNERSHIP)
THESE PARTNERSHIP INTERESTS HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, NOR
PURSUANT TO THE PROVISIONS OF ANY STATE SECURITIES ACT
CERTAIN RESTRICTIONS ON TRANSFERS OF INTERESTS
ARE SET FORTH HEREIN
LIMITED PARTNERSHIP AGREEMENT
NAVO SOUTH DEVELOPMENT PARTNERS, LTD.
This Limited Partnership Agreement of Navo South Development Partners, Ltd.
(the "Partnership") dated as of the 18th day of December,2003, is made and
entered into by and among G.P. Navo South, L.L.C., a Texas limited liability
company, as General Partner, and ASHTON DALLAS RESIDENTIAL L.L.C., a Texas
limited liability company (sometimes referred to as "Ashton Woods Homes"),
HORIZON HOMES, LTD., a Texas limited partnership (sometimes referred to as
"Horizon Homes"), and PRIORITY DEVELOPMENT, L.P., a Delaware limited partnership
(sometimes referred to as "Priority Development"), collectively as Limited
Partners, whether one or more.
WHEREAS, the General Partner and the Limited Partners wish to form a
limited partnership under the Texas Revised Limited Partnership Act for the
purpose of acquiring certain real property, holding such property for investment
and appreciation, and selling or leasing such property.
NOW, THEREFORE, in consideration of the mutual promises made herein, the
parties, intending to be legally bound, hereby agree as follows:
The capitalized terms used in this Agreement shall, unless the context
otherwise requires, have the meanings specified in this Article.
1. "Act" means the Texas"Revised Limited Partnership Act, as amended from
time to time.
2. "Adjusted Capital Account Deficit" means, with respect to any Partner,
the deficit balance, if any, in such Partner's capital account as of the end of
the relevant fiscal year, after giving effect to the following adjustments:
(a)Credit to such capital account any amounts which such Partner is deemed
to be obligated to restore pursuant to Treasury Regulations Sections
1.704-1(b)(2)(ii)(c), 1.704-2(g)(1) and 1.704-2(i)(5); and
(b) Debit to such capital account the items described in Treasury
Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of "Adjusted Capital Account Deficit" is intended
to comply with the provisions of the Treasury Regulations Sections
1.704-1(b)(2)(ii) (d) and 1.704-2, and shall be interpreted consistently
3. "Affiliate" means any person who directly or indirectly through one or
more intermediaries controls or is controlled by or is under common control
with the person to whom reference is made. The term "control" as used herein
(including the terms "controlling," "controlled by," and "under common control
with") means the Possession, direct or indirect, of the power (i) to vote 50% or
more of the outstanding Voting securities of a person, or (ii) otherwise to
direct the management policies of such person by contract or otherwise.
4. "Agreement" means this Limited Partnership Agreement of Navo South
Development Partners, Ltd.
5. "Budget" means the cash budget prepared by the General Partner setting
forth the estimated Project costs and expenses and other expenditures, projected
revenues and capital and operating expenditures, as well as reasonable reserves
for future cash needs, all as approved from time by a Majority Interest of the
6. "Capital Contributions" means the total of all capital contributions
made by the Partners hereunder.
7. "Capital Profits" means any Profits to the extent such Profits arise
from the sale or disposition of all or any portion of the Property.
8. "Code" means the Internal Revenue Code of 1986, as amended from time to
9. "Distributable Cash Flow" means the amount, if any, of Partnership cash
on hand, as of the date of calculation, which is not necessary to meet the
immediate and reasonably foreseeable cash needs of the Partnership such that the
same is available for distribution to the Partners, as determined from time to
time by the General Partner with the approval of a Majority Interest of the
10. "General Partner" means G.P. Navo South, L.L.C., a Texas limited
liability company, or any successor in such capacity.
11. "Land" means the approximately 259.55 acre tract of land in Denton
County, Texas described in Schedule B hereto which is to be purchased by the
Partnership and developed into single family residential lots.
12. "Limited Partner" means any of the parties identified as such on
Schedule A attached hereto, acting in his or its capacity as a limited partner
of the Partnership, or any successor in such capacity.
13. "Majority Interest of the Limited Partners" means one (1) or more
Limited Partners who own in the aggregate more than fifty percent (50%) of the
total Partnership Interests of the Limited Partners, exclusive of the
Partnership Interest owned by any Limited Partner who is not entitled to vote
pursuant to Section 4.1(d) hereof, after receipt by the Limited Partners
entitled to vote of notice of such item requiring a vote and/or approval of the
14. "Majority Interest of the Partners" means one (1) or more Partners who
own in the aggregate more than fifty percent (50%) of the total Partnership
Interests of all of the Partners, exclusive of the Partnership Interest owned by
any Partner who is not entitled to vote pursuant to Section 4.1(d) hereof, after
receipt by the Partners entitled to vote of notice of such item requiring a vote
and/or approval of the Partners.
15. "Minimum Gain" means, with respect to all norecourse liabilities of
the Partnership, the minimum amount of gain that would be realized by the
Partnership if the Partnership disposed of the Partnership Property subject to
such liability in full satisfaction thereof computed in accordance with Treasury
Regulations Section 1.704-2(d).
16. "Minimum Gain Share" means, for such Partner, such Partner's share of
Minimum Gain for the fiscal year (after taking into account any decrease in
Minimum Gain for such year), such share to be determined under Treasury
Regulations Section 1.704-2(g).
17. "Net Capital Contributions" means the aggregate of Capital
Contributions made by the Partners reduced (but not below zero) by the aggregate
distributions to such Partners under Section 6.1(a) hereof.
18. "Optional Loans" means the loans made by the Partners in accordance
with Section 4.1 below.
19. "Partner" means the General Partner or any Limited Partner.
20. "Partnership" means the Texas limited partnership formed pursuant to
21. "Partnership Interest" means the percentage of ownership interest of a
Partner in the Partnership at any particular time.
22. "Profits and Losses" means, for each fiscal year or other period, an
amount equal to the Partnership's income or loss for such year or period
determined in accordance with Code Section 703(a) (for this purposes, all items
of income, gain, loss, or deduction required to be stated separately pursuant to
Code Section 703(a)(1) shall be included in taxable income or loss), with the
(a) Any income of the Partnership that is exempt from federal income tax
and not otherwise taken into account in computing Profits or Losses pursuant to
this definition shall be added to such taxable income or loss;
(b) Any expenditures of the Partnership described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to
Treasury Regulations Section 1.7041(b)(2)(iv)(i) and not otherwise taken into
account in computing Profits or Losses pursuant to this definition, shall be
subtracted from such taxable income or loss;
(c) Gain or loss resulting from any disposition of Partnership property
with respect to which gain or loss is recognized for federal income tax purposes
shall be computed by reference to the fair
market value of the property disposed of, notwithstanding that the adjusted tax
basis of such property differs from such fair market value;
(d) In lieu of the depreciation, amortization, and other cost recovery
deductions taken into account for computing such taxable income or loss there
shall be taken into account depreciation, amortization and other deductions for
such fiscal year or period, computed in accordance with the fair market value of
the property to which such deductions relate.
23. "Treasury Regulations" means the income tax regulations promulgated
under the Code, as amended from time to time.
SECTION 2.1. FORMATION AND CONTINUATION OF BUSINESS
The Partnership has been formed under and pursuant to the provisions of
the Act. The parties hereto hereby agree to continue the business of the
Partnership pursuant to this Agreement.
SECTION 2.2. NAME, PLACE OF BUSINESS AND OFFICE
(a) The Partnership shall be conducted under the name and style of Navo
South Development Partners Ltd., The Partnership shall maintain its principal
office at the following address: 12890 Hillcrest Road, Suite 103, Dallas, Texas
75230. The General Partner may at any time change the location of the
Partnership's office and may establish additional offices, if it deems it
advisable. The General Partner shall promptly give the Partners written notice
of any change in location of the principal office of the Partnership.
(b) The General Partner shall serve as agent for service of process on the
Partnership. The General Partner shall timely record an appropriate certificate
of limited partnership in the proper records in the State of Texas and shall
take such steps as are necessary to qualify the Partnership to conduct business
in other states, as required by local law.
SECTION 2.3. PURPOSES AND CHARACTERS OF BUSINESS; POWERS
(a) The purposes and character of the business of the Partnership are as
(1) to acquire the Land;
(2) to obtain debt financing for the acquisition of the Land and
to mortgage or grant liens on Partnership assets as security
(3) to subdivide and develop the Land into residential lots with
roads and underground utility facilities;
(4) to own, manage, operate, lease and sell the Land; and
(5) to do any and all things necessary or desirable to carry out
the foregoing activities and any other activity contemplated
by this Agreement.
(b) The Partnership shall have any and all powers which are necessary or
desirable to carry out the purposes and business of the Partnership. The
Partnership shall carry out the foregoing activities pursuant to the
arrangements set forth in this Agreement. The Partnership shall not engage in
any other business or activity without the unanimous consent of the Partners.
SECTION 2.4. ACQUISITION OF THE LAND
The Land is owned by Denton 380 Associates, L.P., an unrelated third
party. The Partners shall cause the Partnership to purchase the Land in
accordance with the provisions of a contract of sale entered into by J. Baker
Acquisition Corporation Which will be assigned to the Partnership.
SECTION 2.5. DEVELOPMENT AGREEMENT
The Partnership shall enter into a contract with J. Baker Corporation
(the "Development Manager") to supervise the development of the Land. The
Development Manager shall be entitled to receive such fees as may be specified
in a development agreement with the Partnership which has been approved by a
Majority Interest of the Limited & Partners.
SECTION 2.6. TERM
The Partnership term commenced on the effective date of the Original
Agreement and shall continue in full force and effect until December 31,2015,
unless dissolved earlier pursuant to the provisions hereof.
SECTION 3.1. CAPITAL CONTRIBUTIONS
Upon the formation of the Partnership the partners shall contribute to the
capital of the Partnership the respective amounts specified on Schedule A. No
Partner shall have an obligation to make any further Capital Contributions to
SECTION 3.2. PARTNERSHIP CAPITAL
(a) No Partner shall be paid interest on any Capital Contribution to the
(b) No Partner shall have the right to withdraw all or any part of its
Capital Contribution or to receive any return of any portion of its Capital
Contribution, except as may be otherwise specifically provided in this
Agreement. The obligations of the Partners to contribute Capital Contributions
are personal to the Partners and may not be enforced by any third party.
(c) Under circumstances involving a return of any Capital Contribution, no
Partner shall have the right to receive property other than cash.
SECTION 3.3. LIABILITY OF PARTNERS
(a) The Limited Partners shall not be liable for the debts, liabilities,
contracts or any other obligation of the partnership, except to the extent
provided in the Act. No Partner shall be liable for the debts or liabilities of
any other Partner.
(b) No Partner shall be required to contribute to the capital of, or loan,
the Partnership any funds other than those amounts required to be made under
(c) The General Partner shall not be liable for the return of all or any
portion of the Capital Contributions of the Limited Partners.
SECTION 3.4. CAPITAL ACCOUNTS
(a) (1) A capital account shall be established and maintained for each
(2) A Partner's capital account shall be credited with (A) the
amount of cash and the fair market value of any property contributed by such
Partner to the Partnership; (B) such Partner's allocable share of Profit, income
and gain; and (C) the amount of any partnership liabilities that are expressly
assumed by the Partner or that are secured any Partnership property distributed
to such Partner.
(3) A Partner's capital account shall be debited with (A) the
amount of cash and the fair market Value of any Partnership property distributed
to such Partner pursuant to any provision of this Agreement; (B) such Partner's
allocable share of losses, deductions and other losses; and (C) the amount of
any liabilities of such Partner's that are expressly assumed by the Partnership
or that are secured by any Property contributed by such Partner to the
(4) Upon the occurrence of certain events (as described in Treasury
Regulations Section 1.704-1 (b) (2) (iv) (f), a Majority Interest of the
Partners may agree to increase or decrease the capital accounts of the Partners
to reflect a revaluation of Partnership property on the Partnership's books.
(5) From time to time the General Partner (with the consent of a
Majority Interest of the Partners) may make such modifications to the manner in
which the capital accounts are computed to comply with Treasury Regulations
Sections 1.704-1(b) and 1.704-2, provided that such modifications are not
likely to have a material effect on the amounts distributable to any Partner
pursuant to this Agreement or on the taxable income or loss allocated to any
(6) The capital account of each Partner shall be determined after
giving effect to all transactions which have been effected prior to the time
when such determination is made giving rise to the allocation of Profits and
Losses and to all of the Partner's contributions and distributions theretofore
(7) In the event that any Partner makes a loan to the Partnership
(which may only be made with the consent of a Majority Interest of the
Partners), such loan shall not be considered a contribution to the capital of
the Partnership and shall not increase the capital account of the lending
Partner. Repayment of such loans shall not be deemed withdrawals from the
capital of the Partnership.
(8) The foregoing provisions and the other provisions of this
Agreement relating to the maintenance of capital accounts are intended to comply
with Treasury Regulations Sections 1.704-1(b) and 1.704-2, and shall be
interpreted and applied in a manner consistent with these regulations.
(b)Any fees, salary, or other compensation paid to a Partner pursuant to
this Agreement and any returns on capital provided herein shall be treated as
guaranteed payments under Code Section 707(c). The guaranteed payments shall
not be treated as distributions to such Partner for federal income tax purposes.
Such payments to a Partner shall not reduce the Partner's capital account,
except to the extent of its distributive share of any Partnership Losses or
other downward capital adjustments resulting from the guaranteed payment.
(c) Any person who acquires a Partnership Interest directly from a
Partner, or whose Partnership Interest is increased by means of a transfer or
deemed transfer of all or part of the interest of another Partner, shall have a
single capital account which includes the capital account balance of the
Partnership Interest so acquired or transferred.
(d) No Partner shall have any obligation to restore a deficit balance in
its capital account. Furthermore, a deficit capital account balance of a Partner
shall not be deemed a liability of such Partner or an asset of the Partnership.
SECTION 3.5. PARTNERSHIP INTERESTS
The Partnership Interest of each Partner is set forth opposite its
respective name on Schedule A, attached hereto.
SECTION 4.1. OPTIONAL LOANS
(a) If at any time additional funds are required by the Partnership to
cover operating deficits or other cash needs of the Partnership, the General
Partner shall notify the Partners in writing of the need for the Partners to
loan funds to the Partnership (any loans made pursuant to this Section 4.1 are
hereinafter singularly called an "Optional Loan" and collectively called the
"Optional Loans". Such notice shall set forth the reason for such needed funds,
the total amount of money needed, each Partner's prorate share of the Optional
Loan and the due date thereof, which shall be within ten (10) business days of
the written notice.
(b) In addition, if a Partner or Affiliate of a Partner makes payment
directly to a creditor or another Partner in satisfaction of any indebtedness of
the Partnership pursuant to a guaranty, indemnity or otherwise, or if any
collateral interest given by a Partner or Affiliate of a Partner to such
creditor to secure the Partnership debt shall be foreclosed and the proceeds
applied to such debt, then in any such case, the Partner making such payment or
suffering such foreclosure (or whose Affiliate made payment or suffered the
foreclosure) shall be deemed to have made an Optional Loan to the Partnership in
the amount of the debt paid or value of the property foreclosed.
(c) Each Optional Loan shall bear interest at the rate of ten percent
(10%) per annum, shall only be payable from the gross revenues received by the
Partnership from the ownership, operation and sale of the Land, and shall be so
repaid before any distribution of Distributable Cash Flow.
(d) Each Partner shall be obligated to loan to the Partnership its share
(which shall be prorata, based on Partnership Interests) of Optional Loan within
ten (10) business days of the date the General Partner gives notice of the need
therefor or the date on which a Partner is deemed to have made an Optional Loan
pursuant to subparagraph (b) hereof, as applicable. No Partner shall be
personally liable to the Partnership or the other Partners for any failure to
make its share of any Optional Loan. However, any Partner (a "Defaulting
Partner") who fails to loan its share of the Optional Loan shall be deemed in
default hereunder and the other Partners (the "Contributing Partners") shall
make a loan, prorata, on behalf of the Defaulting Partner and shall have the
rights set forth in this Section 4.1 as a consequence thereof. Upon the
occurrence of such default, the Defaulting Party shall no longer be entitled to
cast any vote or otherwise participate in the management or operation of the
Partnership until the amount of the such Defaulting Partner's share of the
Optional Loan, together with interest thereon at the rate of ten percent (10%)
per annum, has been repaid to the Contributing Partners or the Contributing
Partners may exercise the Option, as set forth in Section 7.4(b). Further, until
such time as such Defaulting Partner's share of the Optional Loan has been so
repaid, all distributions of Distributable Cash Flow or other sums which would
otherwise be made to the Defaulting Partner under this Agreement shall instead
be distributed to the Contributing Partners in repayment of the amount of the
Defaulting Partner's share of the Optional Loan plus interest thereon has been
fully paid to the Contributing Partners.
RIGHTS, POWERS AND DUTIES OF THE GENERAL PARTNER
SECTION 5.1. MANAGEMENT AND CONTROL OF THE PARTNERSHIP
(a) The General Partner shall have all the rights, powers and obligations
of a general partner of a limited partnership under the Act. Except as otherwise
provided in subsections (b) and (c) of this Section, the General Partner shall
have the full and exclusive right to manage and control the business and affairs
of the Partnership and to make all decisions on behalf of the Partnership
(without the joinder or consent of any Limited Partner), including (but not
limited to) the following:
(1) to acquire the Land and make improvements thereto;
(2) to sell, exchange, lease, sublease or otherwise transfer assets
of the Partnership in the ordinary course of business;
(3) to hire and terminate Partnership employees, if any, and engage
the services of attorneys, consultants, accountants and other independent
(4) to collect all payments due and owing to the Partnership;
(5) to incur and pay all expenses, debts and obligations of the
Partnership at such time or times; and from any source of funds of the
Partnership as the General Partner deem necessary or desirable;
(6) to execute and deliver from time to time such documents on
behalf of the Partnership as the General Partner may deem necessary or desirable
in the conduct of Partnership business;
(7)to perform, or cause to be performed, all the Partnership's
obligations under any agreement to which the Partnership or any nominee of the
Partnership is a party;
(8)to obtain and maintain any and all types of insurance coverage
on the assets and business of the Partnership and to protect the General Partner
and the Partnership against liability from third parties in such amounts as the
General Partner may deem necessary or desirable;
(9) to institute, prosecute, defend and settle any legal,
arbitration or administrative actions or proceedings on behalf of or against the
(10) to pay all taxes, assessments, and other impositions applicable
to Partnership assets and undertake when appropriate any action or proceeding
seeking to reduce such taxes, assessments or other impositions;
(11) to open and maintain bank accounts for the deposit of
Partnership funds, with withdrawals to be made upon the signature of the Manager
of the General Partner and one representative of one of the members of the
(12) to make such elections as are necessary or desirable pursuant
to the Code;
(13) to act as "tax matters partner" for the Partnership in any
Internal Revenue Service administrative proceeding in accordance with and to the
extent allowable by the applicable provisions of the Code; and
(14) to perform any and all acts, deemed by the General Partner as
necessary or desirable to conduct the business and affairs of the Partnership.
Except as provided hereinabove, the General Partner shall not be entitled
to any fee or compensation for its services hereunder. The General Partner may
be removed, with or without cause, at any time by the unanimous vote of the
Limited Partners. Upon removal of the General Partner, the former General
Partner shall hold its Partnership Interest as and become a Limited
Partner and a successor General Partner shall be selected by a Majority Interest
of the Limited Partners.
(b) Without the consent of a Majority Interest of the Partners, the
General Partner shall not have the power or authority to take any action on
behalf of the Partnership with respect to the following:
(1) the sale, exchange or other disposition of all or substantially
all of the Property, except in accordance with the approved Budget;
(2) to make any expenditure or incur any obligation on behalf of the
Partnership except for expenditures and obligations incurred in accordance with
(3) to borrow money on behalf of the Partnership other than the
Optional Loans and ordinary trade debt or obligations reflected in the Budget;
(4) to mortgage, pledge, assign, encumber or grant security
interests in Partnership assets, revenues or incomes;
(5) to dissolve and wind up the Partnership;
(6) to permit any Partner to make a loan to the Partnership other
than the Optional Loans (for purposes hereof, funds expended by the General
Partner for which it is entitled to reimbursement under Section 5.3 here of
shall not be considered a loan to the Partnership);
(7) to admit any new Partner to the Partnership;
(8) to do any act in contravention of this Agreement;
(9) to do any act that would make it impossible to carry out the
purposes and business of the Partnership, as set forth in Section 2.3;
(10) to confess a judgment against the Partnership, except in
connection with the execution of mortgages and other security instruments;
(11 to possess Partnership property, or assign, pledge or
hypothecate Partnership property, for other than a Partnership purpose;
(12) as "Tax Matters Partner", (or its equivalent under state law),
to conclude a settlement or agreements extending the Statute of limitations
binding on the Partnership or any Partner with the Internal Revenue Service (or
any state taxing authority); or
(13) subject to the provision of Section 6.1 hereof, determine the
amount of Distributable Cash Flow and the timing of a distribution thereof to
SECTION 5.2. AUTHORITY OF THE GENERAL PARTNER
Any person dealing with the Partnership or the General Partner may rely
upon a certificate signed by the General Partner concerning:
(a) the identity of the General Partner or any other Partner;
(b) the existence or nonexistence any fact that may constitute
conditions precedent to acts by the General Partner or in any other manner
germane to the affairs of the Partnership;
(c) any person who is authorized to execute and deliver any
instrument or document of the Partnership; or
(d) any act or failure to act by the Partnership or concerning any
other matter whatsoever involving the Partnership or any Partner.
SECTION 5.3. FEES AND OTHER COMPENSATION
The General Partner shall not be entitled to receive any fees, salary or
other compensation for services rendered in managing the business and affairs of
the Partnership. The General Partner shall be entitled to reimbursement by the
Partnership from time to time for all reasonable and necessary out of
pocket-expenses (as determined by the Limited Partners) incurred by the General
Partner in connection with the management and supervision of the business and
affairs of the Partnership.
SECTION 5.4. DEVOTIO