Exhibit 3.8(b)
FOURTH AMENDMENT TO
BOLINGBROOK LIMITED PARTNERSHIP AGREEMENT
This FOURTH AMENDMENT TO BOLINGBROOK
LIMITED PARTNERSHIP AGREEMENT is made as of July 1, 2006, between
KIMBALL HILL, INC. (“KHI”), an Illinois corporation,
and KIMBALL HILL HOMES ILLINOIS, L.L.C. (“KHH
Illinois”), an Illinois limited liability company.
KHI, as General Partner, and Kimball
Hill Development Company (“KHDC”), an Illinois
corporation, as Limited Partner, entered into the Bolingbrook
Limited Partnership Agreement effective as of November 13,
2000. Subsequently, KHI and KHDC entered into the certain
First Amendment to Bolingbrook Limited Partnership Agreement
effective as of March 19, 2004. Thereafter, KHI assigned and
transferred to KHH Illinois, and KHH Illinois assumed, all of
KHI’s general partnership interests as provided in the
certain Assignment and Assumption of General Partnership Interest
effective as of April 30, 2004; and KHDC assigned and transferred
to KHI, and KHI assumed, all of KHDC’s limited partnership
interests as provided in the certain Assignment and Assumption of
General Partnership Interest effective as of September 28,
2005. Subsequently, KHI and KHH Illinois entered into the
Second Amendment to Bolingbrook Limited Partnership Agreement
effective December 13, 2005 and the Third Amendment to Bolingbrook
Limited Partnership Agreement dated January 17, 2006.
KHI (hereinafter called the
“Limited Partner”) and KHH Illinois (hereinafter called
the “General Partner”) wish to further amend the
Bolingbrook Limited Partnership Agreement as provided
hereinafter.
NOW, THEREFORE, the General Partner
and the Limited Partner hereby amend Article VIII of the
Bolingbrook Limited Partnership Agreement by deleting Article VIII
in its entirety and replacing it with the following new Article
VIII:
ARTICLE VIII
MANAGEMENT AND INDEMNIFICATION
Section 8.1
Authority of General
Partner
The General Partner shall have sole
authority to manage the business and affairs of the Partnership,
which authority shall be delegated as provided in this
Agreement. Subject to the limitations in this Agreement, the
General Partner shall have the authority to take any action it
deems to be necessary or appropriate in connection with the
business and affairs of the Partnership, including without
limitation the power and authority to:
8.1.1
acquire by purchase, lease, or
otherwise, any real or personal property, tangible or intangible
and to deal with, purchase, sell, mortgage, transfer, assign or
otherwise dispose of any and all of the assets of the
Partnership;
8.1.2
construct, operate, maintain,
finance, and improve, and to own, sell, convey, assign, mortgage,
or lease any real estate and any personal property;
8.1.3
sell, dispose, trade, or exchange
Partnership assets in the ordinary course of the
Partnership’s business;
8.1.4
enter into agreements and contracts
and to give receipts, releases, and discharges;
8.1.5
purchase liability and other
insurance to protect the Partnership’s properties and
business;
8.1.6
execute or modify leases with
respect to any part or all of the assets of the
Partnership;
8.1.7
prepay, in whole or in part,
refinance, amend, modify, or extend any mortgages, trust
deeds or security agreements which may affect any asset of the
Partnership and in connection therewith to execute for and on
behalf of the Partnership any extensions, renewals, or
modifications of such mortgages, trust deeds or security
agreements;
8.1.8
execute any and all other
instruments and documents which may be necessary or in the
opinion of the General Partner desirable to carry out the intent
and purpose of this Agreement, including, but not limited to,
documents whose operation and effect extend beyond the term of the
Partnership;
8.1.9
make any and all expenditures which
the General Partner, in its sole discretion, or in the discretion
of the parties to whom the General Partner has delegated the
authority to act for the Partnership as provided for above, deems
necessary or appropriate in connection with the management of the
affairs of the Partnership and the carrying out of its obligations
and responsibilities under this Agreement, including, without
limitation, all legal, accounting and other related expenses
incurred in connection with the organization and financing and
operation of the Partnership;
8.1.10
enter into any kind of activity
necessary to, in connection with, or incidental to, the
accomplishment of the purposes of the Partnership;
8.1.11
invest and reinvest Partnership
reserves in short-term instruments or money market
funds;
8.1.12
take any and all other action which
is permitted under law 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; and 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;
8.1.13
take any and all action required to
guarantee the indebtedness of Kimball Hill, Inc and/or its
subsidiaries; and
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8.1.14
delegate any or all of its authority
and powers as manager of the Partnership to the Management
Committee.
Section 8.2
Establishment of Management
Committee
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.
Section 8.3
Composition of Management
Committee
The Management Committee shall
consist of three persons (“Management Committee
Members”), who shall be appointed from time to time by the
General Partner. The General Partner hereby appoints David K
Hill, Eugene K. Rowehl and Hal H. Barber as the Management
Committee Members, effective as of the date of this Fourth
Amendment. 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 the state in which the Partnership is organized. Any
vacancy occurring in the Management Committee shall be filled by
the General Partner. The Management Committee from time to
time shall appoint officers of the Company to act for and on behalf
of the Company.
Section 8.4
Meetings of Management
Committee
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.
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Section 8.5
Quorum
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.
Section 8.6
Officers of the
Partnership
The officers of the Partnership
shall be a chairman and chief executive officer, one or more vice
chairmen, a president, one or more vice-presidents, a chief
financial officer, a treasurer, a secretary, one or more assistant
treasurers and assistant secretaries, and such other officers as
may be elected or appointed from time to time by the Management
Committee. Any two or more offices may be held by the same
person. Each officer shall hold 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. Each officer shall have the power and
authority, in his sole discretion, to delegate any and all of his
duties and responsibilities as an officer of the
Partnership.
(a)
Chairman and Chief Executive
Officer. Subject
to the direction and control of the Management Committee, the
chairman and chief executive officer shall be the chief executive
officer of the Partnership 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 Committ
