Exhibit 3.30
LIMITED PARTNERSHIP AGREEMENT
OF
KHH TEXAS TRADING COMPANY L.P.
This Limited Partnership Agreement dated as of
September 16, 2002, is entered into between Kimball Hill Homes
Dallas Operations, L.L.C., a Texas limited liability company, as
the General Partner, and Kimball Hill Homes Dallas Investments,
L.L.C., an Illinois limited liability company, as the Limited
Partner.
ARTICLE I
FORMATION
1.1 The
parties hereby form a limited partnership (the
“Partnership”) pursuant to the Texas Revised Limited
Partnership Act (the “TRLPA”).
1.2 Promptly
after execution of this Agreement, the parties shall execute and
file a Certificate of Limited Partnership with the Secretary of
State of Texas. Thereafter the parties shall execute and file 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 or any other state where the
Partnership may do business.
1.3 The
purposes of the Partnership shall be:
(a) To
engage in the sale, marketing and distribution of goods and
personal property of all kinds and natures, including without
limitation construction and building materials;
(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;
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 shall be KHH TEXAS TRADING COMPANY L.P. (the
“Partnership Name”). The Partnership may conduct
business under the Partnership Name or any other name which the
General Partner may select from time to time, with or without
notice to the Limited Partner.
2.2 The
principal place of business of the Partnership defined in the TRLPA
shall be located at 1422 West Main Street, Suite 206, Lewisville,
Texas 75067. The registered agent of the Partnership shall be 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 selected by the General
Partner.
2.3 The name
and address of the General Partner of the Partnership is 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 is 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 of Limited Partnership, and the Partnership shall
continue in existence for a period of fifty years, unless earlier
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.
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.
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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 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 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 PROPERTY AND 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 and 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, true and correct
books of account and all other Partnership records. The General
Partner shall furnish all Partners with a year-end 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.
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 and exclusive control of the
Partnership and its business and affairs. Subject to the
limitations in this Agreement, the General Partner shall have
the
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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:
(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 from time to time may 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 obligate the Partnership to repay the borrowed
money, and 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, the Partners, Management Committee Members, and the
officers, employees, agents and representatives of the
Partnership;
(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 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;
(g) Delegate
any or all 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;
(1) Do all
acts, take part in any proceedings, and exercise all rights and
privileges as could an absolute owner of Partnership property;
and
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(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.
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 five 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.
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. Meetings may be held either in person or by conference
telephone call or other electronic medium by which all attendees
are able to speak and to hear all other attendees. The attendance
of a Management Committee Member at any meeting (whether in person
or by participation in a conference telephone call or other
electronic medium) 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, a president, one
or more vice-presidents, a treasurer, a secretary, 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 office until his successor
shall have been duly elected or until his death or until
he
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shall resign or shall have been removed by the
Management Committee. Election of an officer shall not of itself
create contract rights.
(a)
Chairman. Subject to the direction and control of the
Management Committee, the chairman shall be the chief executive
officer and shall have the following general duties and
responsibilities: be in charge of the business of the Partnership;
see that the resolutions and directions of the Management Committee
are carried into effect except in those instances in which that
responsibility is specifically assigned to some other person by the
Management Committee; and, in general, discharge all duties
incident to the office of chairman and such other duties as may be
prescribed by the Management Committee from time to time. The
chairman shall preside at all meetings of the Management Committee.
Except in those instances in which the authority to execute is
expressly delegated to another officer or agent of the Partnership
or a different mode of execution is expressly prescribed by the
Management Committee, the chairman may execute for the Partnership
any contracts, deeds, mortgages, bonds, or other instruments which
the Management Committee has authorized to be executed.
(b)
President. The president shall assist the chairman in the
discharge of the chairman’s duties as the chairman may direct
and shall perform such other duties as from time to time may be
assigned to him by the chairman or by the Management Committee. In
the absence of the chairman or in the event of his inability or
refusal to act, the president shall perform the duties of the
chairman, and when so acting, shall have all the powers of the
chairman. Except in those instances in which the authority to
execute is expressly delegated to another officer or agent of the
Partnership or a different mode of execution is expressly
prescribed by the Management Committee, the president may execute
for the Partnership any contracts, deeds, mortgages, bonds or other
instruments which the Management Committee has authorized to be
executed.
(c) Vice
Presidents. Each of the vice-presidents shall assist the
president in the discharge of the president’s duties as the
president may direct and shall perform such other duties as from
time to time may be assigned to him by the chairman, the president
or the Management Committee. In the absence of the president or in
the event of his inability or refusal to act, the vice-presidents
in the order of seniority of tenure as vice-president shall perform
the duties of the president, and when so acting, shall have all the
powers of the president. Except in those instances in which the
authority to execute is expressly delegated to another officer or
agent of the Partnership or a different mode of execution is
expressly prescribed by the Management Committee, each of the
vice-presidents may execute for the Partnership any contracts,
deeds, mortgages, bonds or other instruments which the Management
Committee has authorized to be executed.
(d)
Treasurer. The treasurer shall be the chief financial
officer and principal accounting officer of the Partnership. He
shall have charge of and be responsible for the maintenance of
adequate books of account for the Partnership, have charge and
custody of all funds and securities of the Partnership and be
responsible for the receipt and disbursement thereof, and perform
all the duties incident to the office of treasurer and such other
duties as from time to time may be assigned to him by the chairman,
the president or the Management Committee.
(e)
Secretary. The secretary shall record the minutes of
Management Committee meetings or actions taken by unanimous consent
of the Management Committee, be custodian of the
Partnership’s records, sign with the chairman or the
president or a vice-president or any other officer authorized by
the Management Committee any contracts, deeds, mortgages, bonds or
other
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instruments which the Management Committee has
authorized to be executed, except when a different mode of
execution is expressly prescribed by the Management Committee, and
perform all duties incident to the office of secretary and such
other duties as from time to time may be assigned to him by the
chairman, the president or the Management Committee.
(f)
Assistant Treasurers and Assistant Secretaries. The
assistant treasurers and assistant secretaries shall perform such
duties as shall be assigned to them by the treasurer or the
secretary, respectively, or by the chairman, the president or the
Management Committee.
8.7 The
Management Committee may authorize any officer, manager or employee
of the Partnership to enter into any contract, including without
limitation contracts to borrow money, and to execute and deliver
any instrument, including without limitation promissory notes and
other evidences of indebtedness, in the name of and on behalf of
the Partnership, and such authority may be general or confined to
specific instances.
ARTICLE IX
GENERAL RESPONSIBILITIES
9.1 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.
9.2 As long
as the Partnership is in existence, and except as otherwise
provided in this Agreement or 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;
or
(c) Do any
act that would make it impossible or unnecessarily difficult to
carry on the intended or ordinary business of the
Partnership.
9.3 The
General Partner, the Management Committee and the officers of the
Partnership shall exercise ordinary business judgment in managing
the affairs of the Partnership. The General Partner shall be
entitled to reimbursement for any expenses it advances for
Partnership business.
9.4 The
General Partner may not assign or transfer any of its rights,
duties, obligations or liabilities as General Partner under this
Agreement without the consent of the Limited Partner.
9.5 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.
9.6
(a) The General Partner shall
cease to be a General Partner and shall be 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:
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(1) The
General Partner’s giving sixty (60) days written notice of
withdrawal to all other Partners;
(2)