Exhibit 3.46
LIMITED PARTNERSHIP AGREEMENT
OF
KIMBALL HILL HOMES AUSTIN, L.L.P.
We, Kimball Hill Homes Austin Operations,
L.L.C., a Texas limited liability company (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 Kimball Hill Homes
Austin Investments, L.L.C., an Illinois limited liability company
(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 May 31,
2002.
ARTICLE I
FORMATION
1.1
The parties 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 its behalf
as its 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 its behalf as its attorney for the
exclusive purpose of signing and attesting to such original or
amended application.
1.4
The purposes of the Partnership
shall be:
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 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.
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
KIMBALL HILL HOMES AUSTIN, L.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 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 13740 Research Boulevard, Bldg
Q-Suite 2, Austin, Texas 78750. This place of business shall be the
principal office in the United States as defined in the TRLPA. 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 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 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.
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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 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.
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
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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 PROPERTY AND FISCAL MATTERS
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.
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.
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 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;
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;
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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.
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. 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.
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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 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
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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 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. Always, unless actual fraud shall be involved, the
General Partner shall not be liable or obligated to the Limited
Partner and the Management Committee and the officers of the
Partnership shall not be liable or obligated to the 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. Neither the General
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Partner nor the Management Committee nor the
officers of the Partnership in any way guarantees the return of the
Limited Partner’s capital or a profit from the operation of
the Partnership or shall be responsible to any Partner because of a
loss of investment or a loss from operations, unless it shall have
been occasioned by actual fraud.
9.4
The General Partner shall be
entitled to reimbursement for any expenses it advances for
Partnership business.
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
General Partners.
A.
The 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 all other
Partners;
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 all or any substantial part of its
assets;
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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
all or any substantial part of its properties if the appointment
has not previously been vacated or stayed; and
11.
Conviction or plea of nolo
contendere or its equivalent on any felony or any crime related
to the Partnership.
B.
The General Partner shall notify the
other Partners within thirty (30) days after the occurrence of an
event of withdrawal involving the passage of a period of time
specified in Section 9.7(A).
C.
Regardless of the provisions in
Section 9.7(A), the General Partner may, at its option, continue to
be a General Partner if all Partners consent in writing.
9.8
The General Partner may be removed
by the affirmative vote of the Limited Partner. The written notice
of the General Partner’s removal shall be served upon it by
certified mail. Said notice shall set forth the d
