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Exhibit 3.54
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
KIMBALL HILL HOMES HOUSTON, L.P.
Kimball Hill Homes Houston Operations, L.L.C. ("KHH Houston
Operations"), a Texas limited liability company, as general
partner, and Kimball Hill Homes Houston Investments, L.L.C. ("KHH
Houston Investments"), an Illinois limited liability company, as
limited partner, entered into the certain Limited Partnership
Agreement effective May 31, 2002, which thereafter was amended by
the certain First Amendment dated as of July 15, 2002, the certain
Second Amendment dated as of March 17, 2003, the certain Third
Amendment dated as of January 27, 2004, the certain Fourth
Amendment dated as of May 20, 2004, and the certain Fifth Amendment
dated as of December 13, 2005.
KHH Houston Operations and KHH Houston Investments wish to amend
and restate the Limited Partnership Agreement of Kimball Hill Homes
Houston, L.P. in order to set forth all provisions relating to the
Partnership in one document. Accordingly, KHH Houston
Operations (herein along with all subsequently admitted general
partners which are admitted in accordance with the terms and
conditions of this Agreement and all successors and assigns are
called the "General Partner" and the "General Partners") and KHH
Houston Investments (herein along with all subsequently admitted
limited partners which are admitted in accordance with the terms
and conditions of this Agreement and all successors and assigns are
called the "Limited Partner" and the "Limited Partners"),
(hereinafter the General Partner and the Limited Partners are
collectively called the "Partners") enter into this Amended and
Restated Limited Partnership Agreement as of June 30, 2006.
ARTICLE I
FORMATION
1.1
The parties have formed a limited partnership (the "Partnership")
under and pursuant to the Texas Revised Limited Partnership Act
(the "TRLPA").
1.2
The parties have executed and filed with the Secretary of State of
the State of Texas a Certificate of Limited Partnership. The
General Partner is hereby authorized and empowered by the Limited
Partners to prepare, execute, file and publish any amended or
modified Certificates of Limited Partnership and to take any and
all other actions, including without limitation preparing,
executing, filing and publishing any other documents, certificates
and registrations, as may be necessary or desirable for the
Partnership to engage in business in the State of Texas and any
other state where the Partnership may engage in business.
Each Limited Partner specifically designates and appoints the
General Partner, for and on its behalf, as its attorney for the
exclusive purpose of signing and attesting to any and all such
documents, certificates and registrations.
1.3
The purposes of the Partnership shall be:
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A.
To engage in the business of buying and selling real
estate, designing and developing subdivisions and communities, and
constructing, marketing and selling single-family homes, townhomes,
condominiums and other residential structures;
B.
To engage in any lawful business or activity for
which limited partnerships may be formed under the TRLPA as may be
determined from time to time by the General Partner, in its sole
discretion; it being provided however, that nothing in this Article
I is to be construed as authorizing the Partnership to transact any
business in any state, or to engage in any activity in any state
which cannot lawfully be engaged in by a limited partnership
formed, organized and/or registered as the Partnership may be from
time to time in such state; and
C.
To engage in such other activities as may be
necessary, advisable, or convenient to the promotion or conduct of
the business of the Partnership, as may be determined by the
General Partner, in its sole discretion.
ARTICLE II
NAME AND PLACE OF BUSINESS
2.1
The name of the Partnership is KIMBALL HILL HOMES HOUSTON,
L.P. 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 law of any state where the Partnership
may do business or make investments, including any designations
necessary to comply with any registration requirements for limited
liability partnerships (the "Partnership Name").
The General Partner shall promptly execute and duly file with
the proper offices in each state in which the Partnership may
conduct business one or more certificates as required by the
Fictitious Name or Assumed Name Act or similar statute in effect as
to each such state in which such business is so conducted.
The Partnership may conduct business under the Partnership Name
or any other name which has been properly registered in the state
in which the Partnership is conducting business, including assumed
names and any required special limited liability partnership
designations.
2.2
The principal place of business of the Partnership is located at
8584 Katy Freeway, Suite 200, Houston, Texas 77024, which shall be
the principal office in the United States as defined in the
TRLPA. The registered agent of the Partnership is CT
Corporation System and the registered office of the Partnership
shall be located at 350 North St. Paul Street, Dallas, Texas
75201. The General Partner from time to time may change the
principal office, the registered agent and the registered office of
the Partnership and may establish and designate any additional
places of business and registered offices as may be desired by the
General Partner or as may be required by the laws of any state in
which the Partnership may conduct its business by complying with
the provisions of the TRLPA and all other applicable laws.
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2.3
The name and address of the General Partner of the Partnership are
set forth in the attached Exhibit A, which is incorporated by this
reference herein. There are no other general partners of the
Partnership and no other person or entity has any right to take
part in the active management of the business affairs of the
Partnership, except as otherwise provided in this
Agreement.
2.4
The name and address of the Limited Partner of the Partnership are
set forth in the attached Exhibit A, which is incorporated by this
reference herein. There are no other limited partners of the
Partnership.
ARTICLE III
PARTNERSHIP TERM
3.1
The Partnership shall commence as of the date of the filing of the
Certificate and the Partnership shall continue in existence until
it is terminated, liquidated, or dissolved in accordance with this
Agreement or by operation of law.
ARTICLE IV
PARTNER INTERESTS
4.1
The General Partner shall own and hold one percent (1%) of the
entire interest in and to the Partnership.
4.2
The Limited Partner shall own and hold ninety-nine percent (99%) of
the entire interest in and to the Partnership.
ARTICLE V
CAPITAL CONTRIBUTIONS
5.1
The General Partner has contributed the sum of $99,000.00 to the
capital of the Partnership.
5.2
The Limited Partner has contributed the sum of $1,000.00 to the
capital of the Partnership.
5.3
Contributions to the capital of the Partnership will not bear or
accrue interest in favor of the contributing Partner.
5.4
The Limited Partner shall not be required to make any additional
capital contributions.
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ARTICLE VI
ALLOCATION OF NET PROFITS AND NET LOSSES
AND DISTRIBUTION OF NET PROFITS
6.1
The General Partner shall allocate net profits and net losses
annually. Interest shall not be paid to Partners on contributions
of capital to the Partnership. The amount of net profits and
net losses of the Partnership to be allocated to and charged
against each Partner for each taxable year of the Partnership shall
be determined by the percentage such Partner owns in the
Partnership.
6.2
The terms, "net profits" and "net losses" shall mean income or gain
of any kind actually received or deemed to be received by the
Partnership less deductions (exclusive of non-cash deductions,
including but not limited to depreciation), expenditures, or
charges actually incurred or deemed to be incurred by the
Partnership, including reserves and allocations for reserves, all
as determined by the General Partner in its sole discretion.
6.3
Cash, when available, may be distributed by the General Partner to
all partners in the same ratio as profits and losses are
shared. Cash distributions from the Partnership may be made
by the General Partner to all Partners without regard to the
profits or losses of the Partnership from operations; provided,
that no cash distributions shall be made which will impair the
ability of the Partnership to pay its just debts as they
mature. The General Partner shall determine, in its sole
discretion, when, if ever, cash distributions shall be made to the
Partners pursuant to the provisions and the tenor of this
Agreement. There shall be no obligation to return to the
General Partner or the Limited Partner, or to any one of them, any
part of their capital contributed to the Partnership, for so long
as the Partnership continues in existence. No General or
Limited Partner shall be entitled to any priority or preference
over any other partner as to cash distributions.
ARTICLE VII
PARTNERSHIP PROPERTYAND FISCAL MATTERS
7.1
All real and personal property shall be owned by the
Partnership. A Partner shall have no interest in specific
property of the Partnership. Each Partner hereby expressly
waives the right to require partition of any Partnership property
or any part thereof.
7.2
The Partnership’s books and records and all required income
tax returns shall be kept or made on the calendar year basis. The
General Partner shall determine whether the cash or accrual method
of accounting is to be used in keeping the Partnership records.
7.3
The General Partner shall keep and make available to all Partners,
upon reasonable notice, during normal business hours, just and true
books of account and all other Partnership records. The
General Partner shall furnish all Partners with a year ending
balance sheet for the Partnership and such information as is
reasonably necessary for them to complete their federal and state
income tax forms, including statements of the net distributable
income or loss to each partner from the operation of the
Partnership. All of the above duties and services shall be deemed
an expense of the Partnership.
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7.4
The General Partner shall receive all monies of the Partnership and
shall deposit them in one or more Partnership accounts at a bank or
other financial institution of the General Partner’s
choosing. All expenditures for Partnership business shall be
made by checks drawn against these Partnership accounts.
ARTICLE VIII
MANAGEMENT OF THE PARTNERSHIP
8.1
The General Partner shall have sole authority to manage the
business and affairs of the Partnership, which authority shall be
delegated as provided in this Agreement. Subject to the
limitations in this Agreement, the General Partner shall have the
authority to take any action it deems to be necessary or
appropriate in connection with the business and affairs of the
Partnership, including without limitation the power and authority
to:
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A.
Acquire, own, hold, dispose, convey, exchange,
lease, convert, grant an option, assign, improve, build, manage,
operate, and control real or personal property upon such terms and
conditions as the General Partner may, from time to time, determine
in its sole discretion;
B.
Finance the Partnership’s activities by
borrowing money on behalf of the Partnership from any person, firm
or entity for any Partnership purpose on such terms and conditions
as the General Partner deems appropriate, and to obligate the
Partnership to repay the borrowed money, and to pledge, mortgage,
encumber, hypothecate and grant security interests in Partnership
properties to secure its payment;
C.
Carry, at the expense of the Partnership, insurance
of the kinds and in the amounts that the General Partner deems
advisable or make other arrangements for payment of losses or
liabilities to protect the Partnership or the Partners, agents, and
employees of the Partnership, or persons serving at the request of
the Partnership as representatives of another
enterprise;
D.
Employ or contract with any individual, attorney,
investment adviser, accountant, broker, tax specialist, manager,
salesman, or any other agent, and pay reasonable compensation for
all services performed by any of them as a Partnership
expense;
E.
Employ any individual or entity on behalf of the
Partnership and at the Partnership’s expense to help or
assist the General Partner in performing its duties;
F.
Employ any individual or entity on behalf of the
Partnership and at the Partnership’s expense in connection
with the performance of the business of the Partnership;
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G.
Delegate all or any of its duties hereunder and
contract with any person or entity that the General Partner, in its
sole discretion, deems necessary or desirable for the transaction
of the business of the Partnership;
H.
Compromise, participate in mediation, submit to
arbitration, release with or without consideration, extend time for
payment, or otherwise adjust any claims in favor of or against the
Partnership;
I.
Commence or defend any litigation with respect to
the Partnership or any Partnership property, at the expense of the
Partnership;
J.
Pay or reimburse any and all actual fees, costs and
expenses incurred in the formation, organization and operation of
the Partnership;
K.
Abandon any Partnership asset that the General
Partner deems advisable;
L.
Do all acts, take part in any proceedings, and
exercise all rights and privileges as could an absolute owner of
Partnership property; and
M.
Take any and all other action which is permitted
under the TRLPA or which is customary or reasonably related to the
operation, management or conducting of the business or affairs of
the Partnership, subject to the limitations expressly stated in
this Agreement. The enumeration of powers in this Agreement
shall not limit the general or implied powers of the General
Partner or any additional powers provided by law.
N.
Take any and all action required to guarantee the
indebtedness of Kimball Hill, Inc. and/or its
subsidiaries.
8.2
The General Partner hereby establishes a committee (the "Management
Committee") and delegates to the Management Committee the General
Partner’s full power and authority to represent the
Partnership, to act in the name of the Partnership and to manage
the business of the Partnership, including without limitation the
powers and authorities set forth in Section 8.1 of this
Agreement. Further, the General Partner hereby authorizes the
Management Committee to delegate its powers and authorities to the
officers or other managers of the Partnership. In addition,
the officers of the Partnership described in Section 8.5 shall have
the powers and authorities set forth therein. The officers of
the Partnership shall conduct the business operations and
activities of the Partnership in a manner consistent with the
policies adopted from time to time by the Management Committee.
8.3
The Management Committee shall consist of three persons
("Management Committee Members"), who shall be appointed from time
to time by the General Partner. Each Management Committee
Member shall hold office until his successor shall have been
appointed by the General Partner. Management Committee
Members need not be residents of Texas. Any vacancy occurring
in the Management Committee shall be filled by the General
Partner.
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8.4
The Management Committee shall meet at such times and places as a
majority of the Management Committee Members may designate from
time to time. Notice of any meeting shall be given at least
five days previous thereto by written notice mailed or telefaxed to
each Management Committee Member at his business address, unless
the giving of such notice is waived by such Management Committee
Member. The attendance of a Management Committee Member at
any meeting shall constitute a waiver of notice of such
meeting. Neither the business to be transacted at, nor the
purpose of, any meeting of the Management Committee need be
specified in the notice or waiver of notice of such
meeting.
8.5
A majority of the Management Committee shall constitute a quorum
for transaction of business at any meeting of the Management
Committee. The act of the majority of the Management
Committee Members present at a meeting at which a quorum is present
shall be the act of the Management Committee. Any action
which may be taken at a meeting of the Management Committee may be
taken without a meeting if a written consent, setting forth the
action so taken, shall be signed by all the Management Committee
Members. Any written consent signed by all the Management
Committee Members shall have the same effect as a unanimous vote,
and may be stated as such in any document reflecting action taken
by the Management Committee.
8.6
The officers of the Partnership shall be a chairman and chief
executive officer, one or more vice chairmen, a president, one or
more vice-presidents, a chief financial officer, a treasurer, a
secretary, one or more assistant treasurers and assistant
secretaries, and such other officers as may be elected or appointed
from time to time by the Management Committee. Any two or
more offices may be held by the same person. Each officer
shall hold off
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