Exhibit 3.54
LIMITED PARTNERSHIP AGREEMENT
OF
KIMBALL HILL HOMES HOUSTON, L.L.P.
We, Kimball Hill Homes Houston
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 Houston 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 HOUSTON, 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
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 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 PROPERTYAND 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 VII
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 mai
