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Exhibit 3.122(b)
SECOND AMENDMENT TO
WATERFORD LIMITED PARTNERSHIP AGREEMENT
This SECOND AMENDMENT TO WATERFORD LIMITED PARTNERSHIP AGREEMENT
is made as of July 1, 2006, between KIMBALL HILL, INC. ("KHI"), an
Illinois corporation, and KIMBALL HILL HOMES ILLINOIS, LLC ("KHH
Illinois"), an Illinois limited liability company.
KHI, as General Partner, and Kimball Hill Development Company
("KHDC"), as Limited Partner, entered into the Waterford Limited
Partnership Agreement effective as of November 10, 2003.
Subsequently, 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 June 1, 2005; 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 Limited Partnership Interest
effective as of September 28, 2005. Thereafter, KHI and KHH
Illinois entered into the First Amendment to Waterford Limited
Partnership Agreement effective December 13, 2005.
KHI (hereinafter called the "Limited Partner") and KHH Illinois
(hereinafter called the "General Partner") wish to further amend
the Waterford Limited Partnership Agreement as provided
hereinafter.
NOW, THEREFORE, the General Partner and the Limited Partner
hereby amend Article VIII of the Waterford Limited Partnership
Agreement by deleting Article VIII in its entirety and replacing it
with the following new Article VIII:
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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
8.1.14 delegate any or all of its
authority and powers as manager of the Partnership to the
Management Committee.
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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
Second 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.
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
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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 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,
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