Exhibit 3.108
LIMITED PARTNERSHIP
AGREEMENT
We, Kimball Hill, Inc., an Illinois
corporation (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 Kimball Hill Texas
Investment Company, L.L.C. (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 Limited Partnership
Agreement effective the 11 th day of November,
1999.
ARTICLE I
FORMATION
1.1
The parties hereto hereby form a
limited partnership (the “Partnership”) under and
pursuant to the Texas Revised Limited Partnership Act (the
“TRLPA”).
1.2
The parties shall immediately
execute a Certificate of Limited Partnership, and cause such a
certificate to be filed with the Secretary of State of the State of
Texas and thereafter, execute and cause to be filed and otherwise
published, such original or amended certificates evidencing the
formation and operation of the Partnership whenever the same may be
required under the laws of the State of Texas and of any other
state 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 each Limited Partner specifically
designates and appoints the General Partner, for and on his behalf
as his attorney for the exclusive purpose of signing and attesting
to such original or amended Certificates of Limited
Partnership.
1.3
The General Partner is hereby
authorized and empowered by the Limited Partners to prepare,
execute and cause to be filed an application for registration as a
limited liability partnership with the Secretary of State of the
State of Texas and thereafter, execute and cause to be filed and
otherwise published, such original or amended applications
evidencing the registration of the Partnership whenever the same
may be required under the laws of the State of Texas and of any
other state 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 application for registration as a
limited liability partnership as may be necessary or desirable and
each Limited Partner specifically designates and appoints the
General Partner, for and on his behalf as his attorney for the
exclusive purpose of signing and attesting to such original or
amended application.
1.4
The purposes for the Partnership
shall be:
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(A)
To engage in the business of
constructing and marketing 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 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)
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 shall be
RIVER OAKS HOMES, LLP. 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 other states within
which 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 shall be located at 8584 Katy Freeway, Suite 200,
Houston, Texas 77024. This place of business shall be the principal
office in the United States as defined in the TRLPA. The registered
office shall be located at 2200 Post Oak Blvd., Suite 700, Houston,
Texas 77056, and the General Partner may change the such registered
office and/or principal office and may establish and designate any
additionally required registered offices and places of business 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.
2.3
The names and addresses of the
General Partner of the Partnership is set forth in the attached
Exhibit “B”, which is incorporated by this reference
herein. There are no other general partners of
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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.
2.4
The names and addresses of each
current Limited Partner is set forth in the attached Exhibit
“B”, which is incorporated by this reference
herein.
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 Partners 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 $500.00 to the capital of the Partnership.
5.2
The Limited Partners have
contributed the sum of $500.00 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 Partners shall not be
required to make any additional capital contributions.
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
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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 his 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 Partners, 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
OWNERSHIP OF PARTNERSHIIP
PROPERTY
7.1
All real or 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.
ARTICLE VIII
FISCAL
MATTERS
8.1
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.
8.2
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
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Partnership.
8.3
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 IX
MANAGEMENT OF
PARTNERSHIP
9.1
The General Partner shall have sole
and exclusive control of the Partnership and its affairs. If there
is more than one General Partner, management decisions must be made
by a majority, in numbers, of the General Partners. Subject to the
limitations in this Agreement, the General Partner shall have the
authority to take any action it deems to be necessary, appropriate,
or convenient in connection with the management and conduct of the
business and affairs of the Partnership, including, but not limited
to, the powers to:
(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 his
duties;
(F)
Employ any individual or entity on
behalf of the Partnership and at the Partnership’s
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expense in connection with the
performance of the business of the Partnership;
(G)
Delegate all or any of his duties
hereunder and contract with any person or entity that the General
Partner, in his 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.
9.2
A Partner may lend money to and
otherwise transact business with the Partnership and has the same
rights and obligations relating to those matters as a person who is
not a Partner, except as otherwise provided by this Agreement and
any applicable law.
9.3
As long as the Partnership is in
existence, and except as otherwise provided in this Agreement or if
not otherwise provided, then with the prior written consent of all
Partners no Partner shall:
(A)
Do any act in violation of this
Agreement;
(B)
Do any act with the intention of
harming the business of the Partnership;
(C)
Do any act that would make it
impossible or unnecessarily difficult to carry on the intended or
ordinary business of the Partnership;
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(D)
Use the name of the Partnership (or
any substantially similar name) or any trademark or trade name
adopted by the Partnership, except on behalf of the Partnership in
the ordinary course of the Partnership’s business;
and
(E)
Disclose to any non-partner any of
the Partnership business practices, trade secrets, or any other
information not generally known to the business
community.
9.4
The General Partner shall exercise
ordinary business judgment in managing the affairs of the
Partnership. Always, unless actual fraud by the General Partner
shall be involved, the General Partner shall not be liable or
obligated to the Limited Partners for any mistake of fact or
judgment made 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
Partner’s capital or a profit from the operation of the
Partnership. Neither shall the General Partner be responsible to
any Limited Partner because of a loss of investment or a loss from
operations, unless it shall have been occasioned by the actual
fraud of the General Partner. The General Partner, its principals,
directors, officers, employees and agents are not obligated to
devote any time or attention to the affairs of the Partnership, it
being understood that the General Partner, its principals,
directors, officers, employees and agents may engage in direct
competition with the Partnership and may perform the identical
functions and duties in competition to the Partnership for another
or itself.
9.5
The General Partner shall be
entitled to reimbursement for any expenses it advances for
Partnership business. In addition, the General Partner or its
designee (which shall be in the General Partner’s sole
discretion) shall receive up to five percent (5%) of the gross
selling price of each residential structure sold and closed as
compensation for managing the affairs of the Partnership which
shall be charged to the Partnership as a Partnership
expense.
9.6
Any action required or permitted to
be taken at a meeting of the Partners may be taken without a
meeting if a written consent setting forth the action to be taken
is signed by all Partners entitled to vote. This consent shall have
the same force as a unanimous vote of the Partners. The original
signed consents shall be placed in the Partnership minute book and
kept with the Partnership records.
9.7
General Partners
.
(A)
A General Partner ceases to be a
General Partner, and is deemed to have withdrawn from the
Partnership, on the occurrence of any of the following events
(“Event of Withdrawal”) relating to the General Partner
occurring subsequent to the date of this Agreement:
(1)
The General Partner’s giving
sixty (60) days written notice of withdrawal to each
Partner;
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(2)
The General Partner’s
assignment of all rights as a General Partner;
(3)
Removal of the General Partner as
provided in this Agreement;
(4)
The General Partner’s making a
general assignment for the benefit of creditors;
(5)
The General Partner’s filing
of a voluntary bankruptcy petition;
(6)
The General Partner’s becoming
the subject of an order for relief or being declared insolvent in
any federal or state bankruptcy or insolvency
proceeding;
(7)
The General Partner’s filing
of a petition or answer seeking a reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar
relief under any law;
(8)
The General Partner’s seeking,
consenting to, or acquiescing in the appointment of a trustee,
receiver, or liquidator of his or of all or any substantial part of
his assets;
(9)
Expiration of one hundred twenty
(120) days after the commencement of a proceeding against the
General Partner seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any
law if the proceeding has not been previously dismissed;
(10)
Expiration of ninety (90) days after
the date of the appointment, without the General Partner’s
consent or acquiescence, of a trustee, receiver, or liquidator of
his or of all or any substantial part of his properties if the
appointment has not previously been vacated or stayed;
(11)
If the General Partner is a natural
person, the death of the General P
