Exhibit 3.37
AGREEMENT OF LIMITED PARTNERSHIP
OF
MTH HOMES-TEXAS, L.P.
THIS AGREEMENT OF LIMITED PARTNERSHIP is made and entered into to be
effective as of the 18th day of June 2002, by and among MTH-Texas ▇▇ ▇▇, INC.,
an Arizona corporation, as the "General Partner," and the parties executing this
Agreement as "Limited Partners" on the signature pages attached hereto.
W I T N E S E T H:
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and conditions contained herein, the Capital Contributions of the
Partners and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto form this Partnership and
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN DEFINITIONS. Unless the context otherwise
requires, the following terms shall have the following meanings for the purposes
of this Agreement:
"Act" shall mean the Texas Revised Limited Partnership Act, as amended
from time to time.
"Additional Capital Contributions" shall mean, with respect to any
Partner, any additional contributions of money or property made to the capital
of the Partnership by such Partner in accordance with the terms of Section 4.2
hereof.
"Administrative Overhead Expenses" shall mean all direct costs and
expenses attributable to the Partnership incurred by the General Partner
relating to legal, accounting, tax preparation, information reporting, travel
expenses in connection with Partnership management and administration, and any
other direct costs or expenses of Partnership management and administration.
"Affiliate" shall mean, with respect to any Person, any other Person
controlling, controlled by or under common control with that first Person, or,
with regard to a Person who is an individual, a member of such Person's family,
whether by blood or marriage. As used in this definition, the term "control"
means (a) with respect to any corporation or other entity having voting shares,
or the equivalent thereof, and its elected directors, managers or Persons
performing similar functions, the ownership or power to vote more than fifty
percent (50%) of the shares, or the equivalent thereof, that have the power to
vote for the election of directors, managers or Persons performing similar
functions, and (b) with respect to any other entity, the ability to direct its
business and affairs.
"Agreement" shall mean this Agreement of Limited Partnership of MTH
Homes-Texas, L.P. as the same may be amended, modified, supplemented or restated
from time to time in accordance with the provisions of this Agreement.
"Bankrupt" or "Bankruptcy" with respect to a Person shall mean that the
Person has:
(a) Made an assignment for the benefit of creditors;
(b) Filed a voluntary petition in bankruptcy;
(c) Been adjudicated as bankrupt or insolvent;
(d) Filed a petition or answer seeking for himself any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any statute, law or regulation;
(e) Filed an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against
him in any proceeding of this nature;
(f) Sought, consented to or acquiesced in the appointment
of a trustee, receiver or liquidator for himself or of all or any
substantial part of his properties;
(g) If, within one hundred twenty (120) days after the
commencement of any proceeding against him seeking reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any statute, law or regulation, the proceeding has
not been dismissed; or
(h) If, within ninety (90) days after the appointment
without his consent or acquiescence of a trustee, receiver or
liquidator for himself or of all or any substantial part of his
properties, the appointment is not vacated or stayed, or if, within
ninety (90) days after the expiration of any such stay, the appointment
is not vacated.
"Capital Account" shall mean a financial account to be established and
maintained by the Partnership for each Partner as computed from time to time in
accordance with Section 4.8 hereof and Subchapter K of the Code and Treasury
Regulations promulgated thereunder and the provisions of this Agreement.
"Capital Contribution" shall mean, with respect to any Partner, the
gross amount of all contributions of money or property to the capital of the
Partnership by such Partner pursuant to Article IV hereof, including Initial
Capital Contributions and any Additional Capital Contributions.
"Certificate of Limited Partnership" shall mean the certificate
required by Section 2.01 of the Act, as filed with the Secretary of State of the
State of Texas.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and all rulings and regulations (including, without limitation,
Treasury Regulations) promulgated thereunder. All references herein to Sections
of the Code shall include any corresponding provision or provisions of
succeeding law.
"Disposition" shall mean any sale, transfer, encumbrance, gift,
donation, assignment, pledge, hypothecation, mortgage or other alienation of all
or any part of a Partnership Interest, whether voluntary or involuntary, and
whether during the lifetime of the Person involved or upon or after his death or
dissolution, including, but not limited to, any Disposition by operation of law,
by court order, by judicial process or by foreclosure, levy or attachment.
"Fiscal Year" of the Partnership shall mean the twelve (12) month
period ending on December 31 of each year; provided, however, that the initial
Fiscal Year of the Partnership shall commence on the date hereof and end on
December 31, 2002.
"General Partner" shall mean MTH-Texas ▇▇ ▇▇, Inc., an Arizona
corporation and its successors and assigns pursuant to this Agreement.
"Initial Capital Contributions" shall mean, with respect to any
Partner, any initial contributions of money or property made to the capital of
the Partnership by such Partner in accordance with the terms of Section 4.1
hereof.
"Limited Partner" shall mean any Person executing this Agreement as a
Limited Partner on the Limited Partner signature page attached hereto and any
Persons hereafter admitted as limited partners pursuant hereto, but excluding
from the date of any withdrawal any such Person hereafter withdrawing as a
limited partner from the Partnership.
"Liquidator" shall have the meaning assigned to such term in Article
XII hereof, and shall be the General Partner unless otherwise provided herein.
"Liquidation and Dissolution" shall mean the liquidation and
dissolution of the Partnership pursuant to this Agreement resulting in a
distribution to the Partners of all or substantially all of the Partnership
Assets.
"Liquidation Gain or Loss" shall mean the net gain or loss realized and
recognized for federal income tax purposes upon the Liquidation and Dissolution
of the Partnership.
"Liquidation Proceeds" shall mean the amount, if any, by which all
proceeds received by the Partnership in connection with the Liquidation and
Dissolution of the Partnership as determined in accordance with the cash basis
method of accounting, exceeds the sum of all cash expenditures of any kind or
nature incurred by the Partnership and attributable to such Liquidation and
Dissolution (including payments of all outstanding indebtedness and Liquidation
and Dissolution expenses), as determined in accordance with the cash basis
method of accounting.
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"Majority in Interest" shall mean those Partners whose aggregate
Partnership Interests equal more than fifty percent (50%) of the aggregate
Partnership Interests of all Partners in the group or class entitled to vote on
a given matter.
"Operating Expenses" shall mean the expenses incurred by or on behalf
of the Partnership in acquiring, owning, holding, developing, manufacturing,
selling, managing or operating the Partnership Property, both within and outside
the United States, including, without limitation, all Administrative Overhead
Expenses and other expenses, as the case may be.
"Organizational Costs" shall mean expenses incurred incident to the
organization of the Partnership, including, but not limited to, fees and
expenses of accountants, legal and tax counsel and other experts; filing costs;
and other costs and expenses incurred in the organization of the Partnership.
"Other Partnership Expenses" shall mean any expenses of the Partnership
not constituting Operating Expenses or Organizational Costs.
"Partners" shall mean the General Partner, the Limited Partner and
their successors and assigns, unless otherwise indicated. "Partner" shall mean
any one of the Partners.
"Partnership" shall mean the limited partnership created and existing
pursuant to this Agreement, as such limited partnership may from time to time be
constituted or reconstituted.
"Partnership Assets" or "Partnership Property" shall mean any and all
assets, properties and contract rights of the Partnership, including, without
limitation, the Partnership Business and all other projects and activities
assigned to or undertaken by the Partnership.
"Partnership Business" shall mean all activities considered or
undertaken by the Partnership pursuant to the terms and provisions of this
Agreement as more fully described in Article III hereof.
"Partnership Indebtedness" shall mean all debts, obligations and
liabilities of the Partnership or incurred by the General Partner on behalf of
the Partnership.
"Partnership Interest" shall mean the interest of a Partner in the
Partnership, including without limitation, rights to distributions (liquidating
or otherwise), allocations, information and to vote, consent or approve, all of
which shall be based upon the Partner's Partnership Percentage.
"Partnership Percentage" with respect to each Partner shall mean such
Partner's percentage share of the Partnership Interest allocable to all of the
Partners, which percentage shall initially be as provided below:
General Partner: 1.0%
Limited Partner: 99.0%
"Partnership Term" or "Term of the Partnership" shall mean the term of
the Partnership as provided in Section 2.5 hereof.
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"Profits" and "Losses" shall mean, for any period, the net profits or
net losses of the Partnership for Federal income tax purposes during such period
determined under Section 702 of the Code.
"Required Interest" shall mean the Partners holding a majority of the
Partnership Interest.
"Revenues" shall mean all amounts received by the Partnership
attributable to the Partnership Business.
"Seventy-Five Percent in Interest" shall mean those Partners whose
aggregate Partnership Interests equal more than seventy-five percent (75%) of
the aggregate Partnership Interest of all Partners in the group or class
entitled to vote on a given matter.
"Tax Matters Partner" shall mean the General Partner, or any other
Partner designated in Section 10.8 hereof as the "tax matters partner", as that
term is defined in Section 6231(a)(7) of the Code.
"Termination Event" shall mean the occurrences described in Section
12.1 hereof which cause the Partnership to be liquidated and dissolved.
"Treasury Regulation" or "Treas. Reg." shall mean one or more of those
certain regulations promulgated by the United States Department of the Treasury
in connection with the interpretation and enforcement of the Code.
SECTION 1.2 TERMS GENERALLY. The definitions in Section 1.1 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The term "Person" or "Party" includes
individuals, corporations, partnerships, limited partnerships, limited liability
companies, trusts, associations and other entities. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation".
ARTICLE II
GENERAL TERMS OF THE PARTNERSHIP
SECTION 2.1 Formation of Partnership and Organization
Certificate. (a) The parties to this Agreement hereby form, constitute and
establish the Partnership as a Texas limited partnership pursuant to the Act
upon and subject to the terms of this Agreement.
(b) The General Partner shall (i) promptly file an appropriate
Certificate of Limited Partnership as required by the Act, (ii) comply with all
other legal requirements, and (iii) do such other filing, recording, publishing
and acts, all as may be appropriate to comply with all requirements of the Act
and this Agreement for the formation and operation of the Partnership.
(c) The Partners shall immediately execute, and hereby agree to
execute, any and all such certificates and other documents as the General
Partner considers necessary or desirable (i) for the formation of the
Partnership, and (ii) as may be necessary or appropriate to comply with the
requirements for the transaction of business or ownership or leasing of property
by a limited
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partnership in all jurisdictions, including, but not limited to Texas, where the
Partnership may from time to time desire to conduct business or own or lease
property.
(d) Except as provided in the Act, the Partnership shall have no
obligation to deliver or mail to any Partner any certificate of limited
partnership, amendment, dissolution or cancellation of the Partnership.
SECTION 2.2 PARTNERSHIP NAME. The business of the Partnership
shall be conducted under the name "MTH Homes-Texas, L.P.", "▇▇▇▇▇▇▇▇ Homes",
and/or under such other name or names as the General Partner may determine from
time to time. The General Partner shall promptly execute and file with the
proper offices in each county in each jurisdiction in which the Partnership
conducts business or owns property one or more certificates as required by the
fictitious name act, assumed name act or similar statute in effect in each such
jurisdiction.
SECTION 2.3 PRINCIPAL PLACE OF BUSINESS. The principal place of
business of the Partnership shall be located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, provided that the General Partner may, from time to
time, change the location or jurisdiction of the Partnership's principal place
of business. The Partnership may maintain other offices as may be designated
from time to time by the General Partner for the purpose of carrying out the
business of the Partnership. The General Partner shall give the Limited Partner
written notice of any change in the principal place of business of the
Partnership.
SECTION 2.4 ADDRESSES OF PARTNERS. The principal place of
business of the General Partner is located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The name and address of the Limited Partners are set
forth on the signature pages hereto.
SECTION 2.5 TERM OF PARTNERSHIP. The term of the Partnership
shall commence on the date of the filing of the Certificate of Limited
Partnership with the Secretary of State of the State of Texas as described in
Section 2.1 hereof and shall continue in existence until the earlier of (i)
December 31, 2042, or (ii) the date the Partnership is sooner dissolved under
Article XII hereof, and thereafter, to the extent provided herein and by
applicable law, until wound up and terminated as provided therein.
SECTION 2.6 TITLE AND OWNERSHIP. The interest of each Partner in
the Partnership shall be personal property for all purposes. All real and other
property owned by the Partnership shall be deemed owned by the Partnership as an
entity, and legal and beneficial title to such property shall be retained and
held by the Partnership. No Partner individually shall have any ownership of
such property and each Partner hereby waives any right to partition the property
of the Partnership.
SECTION 2.7 REGISTERED OFFICE; REGISTERED AGENT. The registered
office of the Partnership shall be located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and the Partnership's registered agent for service of
process at such address shall be the General Partner. The General Partner may
change the registered office or the registered agent for service of process, or
both, pursuant to the Act.
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ARTICLE III
PURPOSE AND BUSINESS OF THE PARTNERSHIP
SECTION 3.1 PURPOSE AND BUSINESS. (a) The initial purpose of the
Partnership shall be: (i) to engage in any and all activities which may be
related or incidental to real estate acquisition and development; (ii) to pursue
such other and additional opportunities and activities which are allowed by the
Act as the General Partner determines to be appropriate, in its sole and
absolute discretion; and then (ii) to dissolve, liquidate and terminate the
Partnership. The general purpose of the Partnership shall be to engage in and
carry on any and all business and additional activities that the General Partner
desires to engage in or carry on which are not prohibited by the Act.
(b) The Partnership shall be authorized to do all things allowed
to be done under the Act and other applicable Texas law to accomplish the same.
SECTION 3.2 LIMITATIONS ON THE BUSINESS OF THE PARTNERSHIP. All
terms and conditions of this Agreement shall be subject to, and limited by, the
following provisions with respect of the ability of the Partnership to conduct
its business and the Partnership shall comply with each and every one of the
following terms and conditions at all times:
(a) The Partnership shall not engage in any other business or
activities which are unrelated to the Partnership Business outlined above, and
the Partnership Business shall not be extended except by written agreement of a
Majority in Interest of the Partners.
(b) The Partnership shall not require any Limited Partner to
guarantee any obligation of the Partnership or require any Limited Partner to
contribute any additional capital to the Partnership, except as provided in
Section 4.2 below.
SECTION 3.3 MANAGEMENT OF THE PARTNERSHIP. The General Partner
shall be solely responsible for the management of the affairs of the Partnership
including, without limitation, the management of the Partnership Assets and the
Partnership Business.
ARTICLE IV
CAPITAL CONTRIBUTIONS AND PARTNERSHIP INTERESTS
SECTION 4.1 Initial Capital Contributions. The Partners shall
make Initial Capital Contributions as follows:
(a) The General Partner has contributed One Hundred Dollars
($100.00) cash to the capital of the Partnership. The General Partner shall not
be required to make any Additional Capital Contributions to the Partnership, but
may from time to time contribute other funds, contracts, commitments and
agreements.
(b) The Limited Partners' contributions to the Partnership shall
be the Initial Capital Contribution of each Limited Partner as specified on the
signature pages hereto.
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SECTION 4.2 ADDITIONAL CONTRIBUTIONS AND GENERAL PARTNER LOANS.
(a) Unless a Majority in Interest of the Partners agree in writing in advance,
no Limited Partner shall be obligated or allowed to contribute Additional
Capital Contributions to the capital of the Partnership in excess of its Initial
Capital Contribution.
(b) If the General Partner determines the cash requirements of the
Partnership from time to time to be greater than the cash available, the General
Partner may make loans to the Partnership or arrange for loans to be made to the
Partnership from third parties in such amounts that the General Partner
reasonably deems necessary or appropriate. Any such loans will be evidenced by
Partnership notes and shall bear interest at a market rate, which in the case of
loans from the General Partner will mean a floating rate equal to the lesser of
(i) the maximum rate permitted by applicable law or (ii) two percent (2%) over
the "Prime Rate" established by Guaranty Bank, or its successor bank, from time
to time.
(c) The provisions of this Section 4.2 are for the benefit of the
Partnership and the Partners only and are not meant to, nor shall they, inure to
the benefit of any third party not a party to this Agreement.
SECTION 4.3 Compromise and Release of Contribution Obligations. A
Partner's obligation to make Capital Contributions to the Partnership shall not
be compromised or released except by written agreement of all of the Partners.
SECTION 4.4 OBLIGATIONS SECURED. Each Partner hereby grants to
the Partnership a lien and security interest on his interest in the Partnership
to secure payment of any and all contributions and the performance of any and
all obligations of such Partner required or permitted hereunder. The
Partnership's rights and remedies relating to such lien shall be those of a
secured creditor under Article IX of the Texas Uniform Commercial Code, Tex.
Bus. & Com. Code ▇▇▇. (▇▇▇▇▇▇ 1968). Each Partner, upon request of the General
Partner, shall execute and deliver to the General Partner such additional
security agreements and/or financing statements as the General Partner may deem
necessary or desirable to perfect the above described lien.
SECTION 4.5 CLASSES OF LIMITED PARTNERS. There shall initially be
one (1) class of Limited Partners. The Partnership may establish additional
classes of Limited Partners as determined by the General Partner and approved by
all of the Limited Partners.
SECTION 4.6 INTEREST OF EACH PARTNER. As provided in Article V
hereof, one hundred percent (100%) of the net profits and net losses of the
Partnership shall be allocated to, or charged against, the Partners, based upon
each Partner's Partnership Percentage.
SECTION 4.7 CAPITAL ACCOUNTS. A Capital Account shall be
established and maintained for each Partner.
(a) Each Partner's Capital Account shall be increased by (i) the
amount of Capital Contributions by that Partner to the Partnership, (ii) the
fair market value of property contributed by that Partner to the Partnership
(net of liabilities secured by such contributed property that the Partnership is
considered to assume or take subject to under section 752 of the Internal
Revenue Code of 1986, as amended (the "Code"), and (iii) allocations to that
Partner of Partnership
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income and gain (or items thereof), including income and gain exempt from tax
and income and gain described in Treas. Reg. Section 1.704-1(b)(2) (iv)(g), but
excluding income and gain described in Treas. Reg. Section 1.704-1(b) (4)(i).
(b) Each Partner's Capital Account shall be decreased by (i)
distributions to that Partner by the Partnership, (ii) the fair market value of
property distributed to that Partner by the Partnership (net of liabilities
secured by such distributed property that such Partner is considered to assume
or take subject to under section 752 of the Code), (iii) allocations to that
Partner of expenditures of the Partnership described in section 705(a)(2)(B) of
the Code, and (iv) allocations of Partnership loss and deduction (or items
thereof), including loss and deduction described in Treas. Reg.
Section 1.704-1(b)(2) (iv)(g), but excluding items described in Paragraph
4.7(b)(iii) above and loss or deduction described in Treas. Reg.
Section 1.704-1(b)(4)(i) or Section 1.704-1(b)(4)(iii).
(c) The Partners' Capital Accounts shall also be maintained and
adjusted as permitted by the provisions of Treas. Reg. Section
1.704-1(b)(2)(iv)(f) and as required by the other provisions of Treas. Reg.
Section 1.704-1(b)(2)(iv) and 1.704-1(b)(4), including adjustments to reflect
the allocations to the Partners of depreciation, depletion, amortization, and
gain or loss as computed for book purposes rather than the allocation of the
corresponding items as computed for tax purposes, as required by Treas. Reg.
Section 1.704-1(b)(2)(iv)(g).
(d) A Partner that has more than one Partnership Interest shall
have a single Capital Account that reflects all such Partnership Interests,
regardless of the class of Partnership Interest owned by such Partner and
regardless of the time or manner in which such Partnership Interests were
acquired.
(e) Upon the transfer of all or part of a Partnership Interest,
the Capital Account of the transferor that is attributable to the transferred
Partnership Interest or portion thereof shall carry over to the transferee
Partner in accordance with the provisions of Treas. Reg. Section 1.704-1
(b)(2)(iv)(1).
SECTION 4.8 INCOME ACCOUNTS. The General Partner shall maintain a
separate income account for each Partner. At the end of each fiscal year, the
General Partner shall credit each Partner's Partnership Percentage of the net
profits or net losses of the Partnership to each Partner's income account as
provided herein. After any authorized withdrawals have been deducted from a
Partner's income account, any balance or deficit remaining in the account shall
be transferred to, or charged against, that Partner's Capital Account.
ARTICLE V
ALLOCATIONS AND TAX MATTERS
SECTION 5.1 ALLOCATION OF INCOME AND LOSS. All allocations of
each item of income, gain, loss, deduction or credit of the Partnership shall be
made to the Partners in accordance with their respective Partnership
Percentages, except that, if Section 704(c) of the Code or the Regulations
promulgated thereunder require a different allocation, all such items will be
allocated as required thereby. Additionally, the Partners may, by unanimous
agreement,
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specially allocate items of income, credit, gain, loss, deduction or conduct of
the Partnership to one or more Partners.
SECTION 5.2 NONRECOURSE DEDUCTIONS. The Partnership's nonrecourse
deductions, if any, shall be allocated separately to and among the Partners in
accordance with their Partnership Percentages before determining any net profit
or net loss to be allocated to and among the Partners. It is intended that such
allocation be in accordance with the Partners' interests in the Partnership
within the meaning of Treas. Reg. Section 1.704-1T(B)(4)(iv)(a).
SECTION 5.3 QUALIFIED INCOME OFFSET PROVISIONS. (a)
Notwithstanding anything else to the contrary herein, to the extent the
allocation of any loss or deduction would cause the sum of the deficit balance
(if any) of a Capital Account of any Partner to exceed any such Partner's share
of the Partnership's minimum gain, such Partner will not be allocated, as of the
end of the Partnership's taxable year to which such allocation relates, a loss
or deduction which will cause or increase a deficit balance in such Partner's
Capital Account in excess of any dollar amount of such deficit balance that such
Partner is obligated to restore upon liquidation. For purposes of this
subsection, the Capital Account of each Partner shall be reduced as provided in
Treas. Reg. Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6). A Partner who
unexpectedly receives an adjustment, allocation or distribution described above
as of the end of the Partnership's taxable year to which such allocation relates
which causes or increases a deficit balance in such Partner's Capital Account
(in excess of any dollar amount of such deficit balance that such Partner is
obligated to restore upon liquidation) and which causes the sum of such excess
deficit Capital Account balance of such Partner to exceed such Partner's share
of the Partnership's Minimum Gain, as defined in the Treasury Regulations, will
be allocated items of income and gain in an amount and manner sufficient to
eliminate such deficit balance as quickly as possible.
(b) To the extent this Section 5.3 prevents the allocation of a
deduction or loss to a Partner, such deduction or loss shall be allocated to the
other Partner or Partners who bear the burden of an economic loss corresponding
to such loss or deduction. Solely for purposes of illustration (and not by way
of limitation), any Partnership deductions or losses that are funded through
indebtedness with respect to which the General Partner has liability and with
respect to the allocation thereof to any Partner is limited under this Section
5.3, such deductions or losses are to be allocated to the General Partner.
SECTION 5.4 Tax Allocations of Items of Income, Gain, Loss and
Deduction. (a) For federal, state and local income tax purposes, except as
otherwise provided in this Section 5.4, each item of income, gain, loss and
deduction of the Partnership shall be allocated among the Partners in accordance
with the book allocations set forth in Sections 5.1 through 5.3 hereof.
(b) To the extent of any recapture income resulting from a sale or
other taxable disposition of a Partnership Asset, the amount of any gain from
such disposition allocated to (or recognized by) a Partner for federal income
tax purposes shall be deemed to be recapture income to the extent such Partner
(or his predecessor in interest) has been allocated or has claimed any deduction
directly or indirectly giving rise to the treatment of such gain as recapture
income.
SECTION 5.5 INCONSISTENT TREATMENT OF PARTNERSHIP ITEM. If any
Partner intends to file a notice of inconsistent treatment under Section 6222(b)
of the Code, then such
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Partner shall give reasonable notice under the circumstances to the other
Partners of such intent and the manner in which the Partner's intended treatment
of an item is (or may be) inconsistent with the treatment of that item by the
other Partners.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 OPERATING DISTRIBUTIONS. The General Partner shall in
its sole discretion determine whether and when to distribute available cash (if
any) generated from the operations and investments of the Partnership, from the
sale of any Partnership Property which is not made pursuant to the Liquidation
and Dissolution of the Partnership and from any other ongoing activities of the
Partnership. Any such distributions shall be made pro rata to the Partners, in
accordance with each Partner's Partnership Percentage.
SECTION 6.2 Distribution of Liquidation Proceeds and Remaining
Assets. (a) As a part of the Liquidation and Dissolution of the Partnership, the
Liquidator shall pay or make reasonable provision to pay all claims and
obligations, including all contingent, conditional or unmatured claims and
obligations, known to the Partnership and all claims and obligations which are
known to the Partnership but for which the identity of the claimant is unknown.
If there are sufficient Partnership Assets, such claims and obligations shall be
paid in full. If there are insufficient Partnership Assets, such claims and
obligations shall be paid or provided for according to their priority and, among
claims and obligations of equal priority, ratably to the extent of Partnership
Assets available therefor.
(b) Liquidation Proceeds derived from the Liquidation and
Dissolution of the Partnership, and all remaining Partnership Assets, shall be
distributed as follows:
(i) first, to creditors, including Partners who are
creditors, to the extent otherwise permitted by law, in satisfaction of
liabilities of the Partnership (whether by payment or the making of
reasonable provision for payment thereof) other than liabilities for
which reasonable provision for payment has been made;
(ii) then, to the Partners in proportion to their positive
Capital Accounts until they have received an amount equal to their
Capital Accounts before the distribution; and
(iii) then, to the Partners in proportion to their
Partnership Percentages.
(c) Should Partnership Assets other than cash be distributed, the
amount by which the fair market value of the Partnership Assets, if any, to be
distributed pursuant to this Article exceeds or is less than the basis of such
Partnership Assets shall, to the extent not otherwise recognized by the
Partnership, be taken into account in computing Liquidation Gain or Loss of the
Partnership for purposes of crediting or charging the Capital Accounts of, and
distributing Liquidation Proceeds to, the Partners.
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ARTICLE VII
STATUS AND OBLIGATIONS OF LIMITED PARTNERS
SECTION 7.1 AUTHORITY OF LIMITED PARTNERS. No Limited Partner
shall participate in the management or control of the business of, or transact
any business for, the Partnership, or have the power to act for or bind the
Partnership, said powers (as between the Limited Partner and the General
Partner) being vested solely and exclusively in the General Partner.
SECTION 7.2 LIMITED LIABILITY OF LIMITED PARTNERS. No Limited
Partner shall have any personal liability whatsoever, whether to the
Partnership, to any of the Partners or to the creditors of the Partnership, for
the debts of the Partnership or any of its losses beyond the amount contributed
or required to be contributed to the Partnership pursuant to Article IV hereof
and except as otherwise required by law. The preceding sentence shall not,
however, be construed to limit or prohibit, in any respect, the use by the
General Partner of any undistributed funds of the Partnership (regardless of
whether previously allocated to the Capital Account of any Partner) for
Partnership purposes or payment of Partnership debts.
SECTION 7.3 VOTING OF LIMITED PARTNERS. (a) Limited Partners
shall have the right to vote upon any matter requiring the vote of the Limited
Partners as set out elsewhere in this Agreement or in the Act, including,
without limitation, the ability to vote to remove the General Partner upon the
affirmative vote of seventy-five percent (75%) in Interest of the Limited
Partners.
(b) Those matters to be voted on by the Limited Partners can be
done by written consent. Such a written consent may be utilized at any meeting
of the Partners, or it may be utilized in obtaining approval by the Partners
without a meeting.
SECTION 7.4 RESTRICTIONS OF LIMITED PARTNERS. (a) No Limited
Partner shall have the right to withdraw from the Partnership or to receive a
return of any of its contributions to the Partnership until the Partnership is
terminated and its affairs wound up in accordance with Section 8.04 of the Act
and this Agreement. A Limited Partner will breach this Agreement if he or she
(1) attempts to withdraw from the Partnership, (2) interferes in the management
of the Partnership affairs, (3) engages in conduct which could result in the
Partnership losing its tax status as a partnership, (4) engages in conduct that
tends to bring the Partnership into disrepute, (5) owns a Partnership Interest
that becomes subject to a charging order, attachment, garnishment or similar
legal proceedings, (6) breaches any confidentiality provisions of this
Agreement, or (7) fails to meet any commitment to the Partnership. A Limited
Partner who is in breach of this Agreement shall be liable to the Partnership
for damages caused by the breach. The Partnership may offset for the damages
against any distribution or return of capital to the Limited Partner who has
breached this Agreement; and
(b) No Limited Partner shall have the right or power to cause the
dissolution and winding up of the Partnership by court decree or otherwise.
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ARTICLE VIII
POWERS, RIGHTS, DUTIES, AND LIABILITIES
OF GENERAL PARTNER
SECTION 8.1 Authority and Duties of General Partner. The General
Partner shall exercise ordinary business judgment in managing the affairs of the
Partnership.
(a) The General Partner shall have full, exclusive and complete
discretion in the management and control of the affairs and business of the
Partnership, subject to the terms hereof. In addition to the powers now or
hereafter granted a general partner of a limited partnership under applicable
law or granted the General Partner under any other provisions of this Agreement,
but subject to any express limitations set forth in this Agreement, the General
Partner shall have full power and authority to do all things that it considers
necessary, proper or desirable to conduct the business of the Partnership,
including, without limitation, the power and authority (without the vote or
consent of any Limited Partner) to do the following:
(i) Negotiate and execute on behalf of the Partnership
any contracts under such terms and obligations as it, in its sole and
absolute discretion, considers in the best interest of the Partnership
and/or necessary, appropriate or desirable for the conduct of the
Partnership Business or the implementation of its powers under this
Agreement, including, without limitation, taking title to Partnership
Assets in its own name on behalf of the Partnership;
(ii) Perform all obligations of the Partnership and
enforce all rights of the Partnership under the terms and conditions of
all contracts and agreements entered into by or on behalf of the
Partnership including, without limitation, payment of Operating
Expenses and Other Partnership Expenses;
(iii) Employ and compensate, and dismiss from employment,
any and all employees, agents, independent contractors, brokers,
attorneys and accountants;
(iv) Lease or license all or any portion of the
Partnership Assets for any Partnership purpose and to acquire, dispose
of, sell, transfer, exchange, mortgage, pledge, encumber or hypothecate
any or all of the Partnership Assets;
(v) Acquire and maintain insurance covering any or all
Assets of the Partnership and its activities;
(vi) Control any matters affecting the rights and
obligations of the Partnership (including initiating or defending
litigation, incurring legal expenses and settling claims and
litigation);
(vii) Distribute Partnership Assets to the Partners in
accordance with the terms set forth herein;
(viii) Do all acts and things necessary or desirable to
accomplish the objectives of the Partnership;
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(ix) Apply for and obtain any governmental approvals or
certificates with respect to the operations of the Partnership or the
ownership or use of the Partnership Properties;
(x) Admit additional Limited Partners and assignees or
transferees of Limited Partners to the Partnership as new or
substituted Limited Partners pursuant to Article XI hereof;
(xi) Submit a Partnership claim or liability to
arbitration;
(xii) Participate in any plans or proceedings for the
foreclosure, reorganization, consolidation, merger or liquidation of
any corporation or organization that has issued securities owned by the
Partnership and, incident to that participation, deposit securities
with, and transfer title of securities to, any protective or other
committee established to further or defeat any such plan or proceeding;
and
(xiii) Execute, acknowledge, deliver, file, and record any
and all instruments or documents affecting any and/or all of the
foregoing.
(b) Subject to the duties and powers reserved to the Partners
hereunder, and further subject to the availability of funds to perform such
duties, the General Partner, on behalf of the Partnership, shall have the right,
authority, power, duty and obligation to implement all decisions of the
Partners, to conduct the business and affairs of the Partnership and, without
limiting the generality of the foregoing, to conduct or cause to be conducted
the following functions of the Partnership:
(i) Maintain the books and records of the Partnership,
and prepare and deliver, or cause to be prepared and delivered, to the
Partners tax returns and reports of the state of business and affairs
of the Partnership and the Partnership Business, as generally provided
in Article X hereof;
(ii) Except as otherwise provided herein, maintain all
funds of the Partnership in the Partnership's name as generally
provided in Section 8.7 hereof, subject to withdrawal on the signature
of the General Partner or its duly appointed agents;
(iii) Take reasonable and prudent steps to ensure that the
Partnership obtains and maintains satisfactory insurance in such
amounts and with such companies as shall be deemed reasonably
satisfactory to the General Partner to protect the interests of the
Partnership and the Partners; and
(iv) Transmit to all of the Partners annual financial
reports in accordance with Section 10.5.
(c) Each Partner agrees that the consent by the General Partner to
the admission of Limited Partners from time to time or to the submission of a
Partnership claim or liability to arbitration shall constitute the consent of
the Partnership to such admission or submission. Any
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and all acts heretofore taken by the General Partner that are permitted under
this Section 8.1 are hereby ratified and confirmed by the Partners as the acts
and deeds of the Partnership.
SECTION 8.2 TIME DEVOTED TO PARTNERSHIP. The General Partner
shall devote such time to Partnership Business as it deems necessary or
appropriate to manage and supervise Partnership Business and affairs in an
efficient manner; provided, that nothing in this Agreement shall preclude the
employment of any agent, third party or Affiliate to manage or provide other
services with respect to the Partnership's Assets or business subject to the
control of the General Partner and provided that the General Partner, in all
instances, retains general control over and continues to generally supervise the
day-to-day operations of the Partnership. In this connection, the General
Partner shall provide, furnish or perform in good faith and in a diligent and
efficient manner all normal and customary business and administrative duties and
services necessary to conduct the Partnership's business in an expeditious and
economical manner.
Nothing contained in this Agreement shall in any way or manner limit
the General Partner or the Limited Partner or any director, officer, employee or
agent of the Partners in participating as a general partner, limited partner,
owner, principal, consultant, director, manager, officer, agent, representative
or otherwise in any business which could be deemed to be competing with the
Partnership Business.
SECTION 8.3 LIMITATIONS ON AUTHORITY. (a) The authority of the
General Partner over the conduct of the affairs and business of the Partnership
shall be subject only to such limitations as are expressly stated in this
Agreement or imposed by applicable law. Without the prior consent of all of the
Limited Partners, the General Partner shall not be empowered or authorized to:
(i) Possess property or assign any rights in specific
property on behalf of the Partnership other than for a Partnership
purpose;
(ii) Require any Partner to make any contribution to the
capital of the Partnership not provided for herein;
(iii) Use the Partnership's funds or the Partnership Assets
in any manner except for the primary benefit of the Partnership;
(iv) Do business in any jurisdiction or political
subdivision in which the General Partner and the Partnership have not
previously taken such steps as may be necessary to assure for the
Limited Partners the same limited liability as is provided for limited
partners in other limited partnerships formed under the Act;
(v) Commingle Partnership funds with those of any other
Person; or
(vi) Acquire any properties in exchange for interests in
the Partnership, other than as provided in Article IV, Section
8.1(a)(x) and Article XI hereof.
SECTION 8.4 LIABILITY OF GENERAL PARTNER. (a) The General Partner
shall be liable in the manner set forth in the Act for all Partnership
Indebtedness except as otherwise
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provided in the documents creating such Indebtedness; provided, however, all
Partnership Indebtedness shall be paid or discharged first with the Partnership
Assets (including insurance proceeds) before the General Partner shall be
obligated to pay or discharge any such debt or obligation with its personal
assets.
(b) To the extent permitted by applicable law, the General Partner
(which, for the purpose of this Section 8.4(b), shall include any Affiliate of
the General Partner or a director, officer, employee, agent or partner of the
General Partner or its Affiliates) shall not be liable, responsible or
accountable in damages or otherwise to the Partnership or any Partner for any
action taken, or failure to act, based upon errors of judgment or other fault
(including negligence) in connection with the business and affairs of the
Partnership.
SECTION 8.5 INDEMNIFICATION. The General Partner and its
officers, directors, employees, agents and its and their Affiliates shall have
no liability to the Partnership or any Partner for any loss suffered by the
Partnership or any Partner which arises out of any action or inaction, including
any negligent action of the General Partner or its officers, directors,
employees, agents or its or their Affiliates. The General Partner and its
officers, directors, employees, agents and its and their Affiliates shall be
indemnified by the Partnership against any losses, judgments, liabilities,
expenses and amounts paid in settlement of any claims, including any claims
based in whole or in part on the negligence of the General Partner or its
officers, directors, employees, agents or its or their Affiliates, sustained by
them in connection with their conduct of the Partnership business in accordance
with this Agreement to the maximum extent permitted by the Act and applicable
law. Expenses of the General Partner (including legal fees and expenses)
incurred or to be incurred in defending any proceeding shall be paid by the
Partnership in advance of the final disposition of such proceeding.
SECTION 8.6 RIGHT OF THIRD PARTIES TO RELY ON AUTHORITY OF
GENERAL PARTNER.
(a) Notwithstanding any other provision of this Agreement to the
contrary, no lender or purchaser of property of the Partnership, shall be
required to look to the application of proceeds hereunder or to verify any
representation by the General Partner as to the extent of the interest in the
Partnership Assets that the General Partner is entitled to encumber, sell,
convey, transfer, assign or otherwise use, and any such lender or purchaser
shall be entitled to rely exclusively on the representations of the General
Partner as to its authority to enter into such financing or sale arrangements
and shall be entitled to deal with the General Partner as if it were the sole
Party in interest therein, both legally and beneficially.
(b) In no event shall any Person dealing with the General Partner
or the General Partner's representative with respect to any business or property
of the Partnership be obligated to ascertain that the terms of this Agreement
have been complied with, and no such Person shall be obligated to inquire into
the necessity or expedience of any act or action of the General Partner or the
General Partner's representative.
SECTION 8.7 PARTNERSHIP ACCOUNTS. The funds of the Partnership
shall be deposited in such account or accounts as are designated by the General
Partner. All withdrawals
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from or charges against such accounts shall be made by the General Partner or by
its duly authorized representatives.
ARTICLE IX
FEES AND EXPENSES OF THE GENERAL PARTNER AND CERTAIN
OTHER FEES AND EXPENSES
SECTION 9.1 Fees and Reimbursement of General Partner's Expenses.
(a) Upon the General Partner's request, the Partnership shall reimburse the
General Partner or any Affiliate of the General Partner for, or pay, the
following, whenever incurred:
(i) Principal and interest on loans incurred by the
General Partner or any Affiliate of the General Partner in order to
extend a loan to the Partnership for any purpose permitted under this
Agreement;
(ii) Any fees and expenses of third parties or costs of
services or goods of third parties directly attributable to the
formation or operation of the Partnership or its business; and
(iii) Any other Operating Expenses (whether expensed or
capitalized) which have been incurred by the General Partner or any
Affiliate of the General Partner for the benefit of the Partnership.
(b) Should the amount of the reimbursement to which the General
Partner or any Affiliate of the General Partner is entitled under this Section
9.1 exceed the funds available to the Partnership for such reimbursement, the
Partnership shall reimburse the General Partner or such Affiliate to the extent
of the funds available therefor, and any excess amount not reimbursed shall be
deemed to be a loan by the General Partner or such Affiliate to the Partnership
to be repaid by the Partnership as funds become available for such purpose,
regardless of the source of such funds.
ARTICLE X
PARTNERSHIP MEETINGS, ACCOUNTING MATTERS,
BOOKS AND RECORDS, AND BANKING
SECTION 10.1 MEETINGS OF THE PARTNERS. (a) A meeting of the
Partners may be called by the General Partner or by a Majority in Interest of
the Limited Partners by making a written request therefor to the General
Partner. In such event, the General Partner shall give notice of the meeting so
called within ten (10) days after such a request for a meeting is furnished. The
notice will state the nature of the business to be transacted, and no other
business will be considered at the meeting.
(b) A meeting of the Partners will be held not less than ten (10)
nor more than sixty (60) days after the date of the mailing of the notice of
such meeting. Partners may vote in person or by proxy at any such meeting on
matters permitted to be voted on pursuant to this Agreement.
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(c) The presence in person or by proxy of the General Partner and
a Majority in Interest of the Limited Partners shall constitute a quorum. When a
quorum is present at any meeting, the affirmative vote of the General Partner
and a Majority in Interest of the Limited Partners shall decide any question
brought before such meeting, unless the question is one on which, by express
provision of law or this Agreement, a different vote is required, in which case
such express provision shall govern and control the decision of such question.
(d) The Partners present at a duly constituted meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough Partners to leave less than a quorum.
(e) Any vote that may be taken at a meeting can be taken by
written consent in lieu of a meeting if the Partners holding the required
Partnership Interest execute such written consent.
SECTION 10.2 Fiscal Year and Accounting Method. The Fiscal Year
of the Partnership shall end on December 31 of each year.
SECTION 10.3 BOOKS OF ACCOUNT. There shall be kept books of
account at the offices of the Partnership or its Affiliates in which shall be
entered fully and accurately each and every transaction of the Partnership. The
books shall be kept using the method of accounting selected by the General
Partner. For the Term of the Partnership and for a period of four (4) years
thereafter, the General Partner shall maintain and preserve all books of account
and other relevant documents.
SECTION 10.4 ANNUAL REPORT. At the end of each Fiscal Year, the
General Partner shall prepare financial statements of the Partnership as of the
close of such Fiscal Year prepared in accordance with accounting principles
selected by the General Partner consistently applied, including a balance sheet
and a statement of income or loss. The financial statements shall also be
accompanied by a cash flow statement for such year and a summary of all payments
made to the General Partner or any Affiliate during the year. A copy of such
statements for each Fiscal Year shall be made available by the General Partner
to each of the Partners not later than one hundred twenty (120) days after the
end of the Fiscal Year of the Partnership.
SECTION 10.5 ANNUAL REPORT OF GENERAL PARTNER. Within one hundred
twenty (120) days after the close of its Fiscal Year, the General Partner shall
make available to the Limited Partners a statement of the operations of the
Partnership for such year and plans for the future.
SECTION 10.6 AUDIT REQUEST. The General Partner may, but shall not
be required to, cause the books and records of the Partnership to be audited, at
the expense of the Partnership, by an accounting firm selected by the General
Partner.
SECTION 10.7 TAX RETURNS. The General Partner shall cause to be
prepared by an accountant selected by the General Partner all federal, state and
local income tax returns and reports in accordance with the operations conducted
pursuant to the terms of this Agreement. The cost of preparing such income and
other tax returns and reports shall be paid by the Partnership. Not less than
fifteen (15) days prior to the required filing date (as such date may be
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extended) for the Partnership's federal income tax return or any state or local
income tax return, the General Partner shall furnish a copy of such return
proposed to be filed to all Partners, together with such additional forms and
information as may be required by the Partners in order for the Partners to file
their own returns reflecting the Partnership's operations. In addition, not more
than thirty (30) days after the date on which such return is filed, the General
Partner shall furnish a copy of the return so filed to all Partners.
SECTION 10.8 TAX MATTERS PARTNER. The General Partner is hereby
designated the "tax matters partner" as that term is defined in Section
6231(a)(7) of the Code.
SECTION 10.9 TAX ELECTIONS. For tax purposes, the Partnership
shall elect to use the Fiscal Year as its taxable year, and to report income,
loss, deductions and credits under the method of accounting selected by the
General Partner. At the sole option and election of the General Partner:
(a) the Partnership may elect to deduct expenses incurred in
organizing the Partnership ratably over a sixty (60) month period as provided in
Section 709 of the Code;
(b) the Partnership may elect to treat all start-up expenditures
as deferred expenses and to deduct such expenses over a sixty (60) month period
as provided in Section 195 of the Code;
(c) the Partnership may file an election under section 754 of the
Code; provided, that the General Partner agrees to make an election under
Section 754 of the Code upon the written request of any Partner; and
(d) all additional elections regarding federal income tax matters
or state or local matters shall be made by the General Partner.
SECTION 10.10 OTHER INFORMATION. The General Partner may release
such information concerning the operations of the Partnership to such Persons as
may be customary in the industry or required by law or regulation or by order of
any regulatory body.
ARTICLE XI
DISPOSITION OF PARTNERSHIP INTERESTS
SECTION 11.1 TRANSFERS GENERALLY. (a) Except as otherwise provided
in this Article XI, no Partner shall engage in or suffer a Disposition without
the prior written consent of the General Partner, which consent may be withheld
in the General Partner's sole discretion, and unless such Disposition complies
with all applicable securities laws, rules and regulations as generally
described herein.
(b) No Disposition, partial or otherwise, may be made except in
compliance with the then applicable rules and regulations of any governmental
authority and in compliance with all applicable laws.
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(c) Any Disposition permitted under this Article XI shall be in
writing. The assignee shall expressly agree in writing to be bound by all the
terms of this Agreement, and shall assume and agree to perform all the
assignor's agreements and obligations hereunder existing as of or arising
subsequent to such assignment pertaining to such interests transferred pursuant
hereto.
(d) No Person to whom any interest in the Partnership is
transferred shall make any further Disposition except in accordance with the
terms and conditions hereof.
(e) If a Disposition of an interest in the Partnership shall take
place pursuant to the provisions of this Article, then the General Partner
promptly thereafter shall cause to be filed with the proper authorities one or
more certificates amending any fictitious or Assumed Name Certificate of the
Partnership in order to reflect such change.
(f) Any purported assignment or Disposition of a Partnership
Interest not permitted by this Article XI shall be null and void and of no
further force or effect whatsoever.
(g) In the event of a Disposition, whether by sale, exchange,
dissolution of a Partner or otherwise, the General Partner may have the
Partnership file the proper election under Section 754 of the Code to adjust the
basis of the Partnership Assets to reflect such transfer. Any resulting change
in the Partnership net income or net loss due to such basis adjustment shall be
allocated solely to the successor Partner or Partners. The General Partner
retains the option to avoid making such election when the resulting basis
adjustment would be too minor to justify the additional administrative costs
incurred in accounting for the adjustment.
SECTION 11.2 Permitted Disposition of Partnership Interests.
Subject to the provisions of Sections 11.1, 11.4 and 11.6 hereof, each of the
following Dispositions of Partnership Interests by Limited Partners shall be
permitted without further condition (unless otherwise specified below):
(a) Any Disposition of all or any part of the Partnership Interest
owned by a Partner to a Person who is another Partner at the time of such
Disposition;
(b) Subject to the prior approval of the General Partner, a
Disposition resulting from a Limited Partner's bona fide pledge of all or a
portion of his Partnership Interest as security of indebtedness of such Limited
Partner incurred contemporaneously with the making of such pledge, provided that
the pledgee agrees in writing with the General Partner that, prior to
foreclosing or otherwise realizing upon the Partnership Interest so pledged as a
result of a default in the payment or other terms of the obligation secure by
such pledged Partnership Interest, the pledgee will offer to sell such
Partnership Interest to the Partnership as if it were a Limited Partner
proposing to make a Disposition of the Partnership Interest in the manner stated
in Section 11.3 hereof, and the pledging Limited Partner shall be bound by and
shall join in the conveyance of the pledged Partnership Interest so purchased by
the Partnership; and,
SECTION 11.3 RIGHT OF FIRST REFUSAL. (a) Subject to Sections 11.1
and 11.6 hereof, any Disposition of a Partnership Interest by a Limited Partner
(other than a Disposition described in Section 11.2 hereof) shall not be made
except in accordance with the terms of this Section 11.3. In that regard, in the
event a Limited Partner (the "Proposing Limited Partner")
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shall desire to sell all or any portion of its Partnership Interest in the
Partnership to any third party and shall have received a bona fide written offer
therefor which is acceptable to it and such offer complies with the provisions
of this Section 11.3, it shall, within ten (10) days of receipt of the proposed
offer give a written "Notice of Sale" to the General Partner. The Notice of Sale
shall state that a bona fide offer has been received by the Proposing Limited
Partner from such third party and shall contain the following information:
(i) the price, terms and conditions of sale;
(ii) the Partnership Interest (the "Option Interest")
proposed to be sold;
(iii) the name and address of the third party to whom such
Partnership Interest is proposed to be sold; and
(iv) a copy of the written offer.
The Notice of Sale shall further contain an affirmative offer by the Proposing
Limited Partner to sell such Option Interest to the Partnership for the same
consideration and upon the same terms and conditions set forth in the Notice of
Sale.
(b) The Partnership shall have the option, at the discretion of
the General Partner for a period of thirty (30) days (the "Partnership Option
Period") from the date such Notice of Sale is provided to it, within which to
exercise its right of first refusal to purchase all or any part of the Option
Interest by notifying such Proposing Limited Partner of such election in writing
prior to the expiration of the thirty (30) day period.
(c) It is expressly agreed that the remedy at law for breach of
any of the obligations set forth is inadequate in view of (i) the complexities
and uncertainties in measuring the actual damages that would be sustained by
reason of the failure of a Partner to comply fully with each of the obligations
contained herein, and (ii) the uniqueness of the Partnership Business and the
Partnership relationship created hereby. Accordingly, each of the aforesaid
obligations shall be, and is hereby expressly made, enforceable by specific
performance in addition to any other remedy available at law and in equity.
(d) Any bona fide third party offer must comply with all of the
following requirements:
(i) the proposed offer shall include an offer to buy the
designated portion of the Proposing Limited Partners' Option Interest;
(ii) the proposed purchase price of the Option Interest
shall be payable solely in lawful money of the United States and, if not payable
in its entirety in cash, shall under no circumstances provide as security for
payment of the non-cash portion any charge, encumbrance or hypothecation of any
of the Option Interest;
(iii) the offer shall contain provisions whereby the
proposed purchaser is obligated to comply with the provisions of
Sections 11.1 and 11.6 hereof prior to the or at closing;
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(iv) the offer shall be by a principal identified in the
offer, and not an agent acting on behalf of an undisclosed principal,
and such principal shall not be an Affiliate of the Proposing Limited
Partner; and,
(v) the prospective purchaser shall evidence its
compliance with, or exemption from, all applicable federal and state
securities laws.
(e) Notwithstanding anything to the contrary contained in this
Section 11.3, no Disposition pursuant to this Section 11.3 shall be permitted in
the event that any Partner is engaged in any exercise of its rights under
Section 11.4 hereof prior to the Partnership's receipt of the Notice of Sale
pursuant to this Section 11.3.
SECTION 11.4 SUBSTITUTE LIMITED PARTNERS. (a) No assignee of any
or all of a Partnership Interest who is not a Partner at the time of the
Disposition shall be admitted to the Partnership as a substitute Limited Partner
in place of the assigning Limited Partner unless all other provisions of this
Article XI have been met and all of the following requirements are met:
(i) The assigning Limited Partner shall have designated
such intention in the instrument of assignment;
(ii) The General Partner shall have consented in writing,
which consent the General Partner may, in its sole and absolute
discretion, refuse to give;
(iii) Each assigning Limited Partner and each assignee
shall have performed all such acts and executed and delivered all such
documents at such assigning Limited Partner's expense (including
opinions of counsel) as the General Partner may reasonably require to
preserve the limited partnership or tax status of the Partnership or to
comply with applicable securities laws;
(iv) Each assigning Limited Partner and each assignee
shall have executed and delivered all such documents at such assigning
Limited Partner's expense (including a power of attorney) as the
General Partner may reasonably deem necessary or desirable to
effectuate such admission;
(v) The assignee shall have accepted, adopted and
approved in writing all of the terms and provisions of this Agreement
as the same may have been amended;
(vi) The assignee shall have paid or, at the discretion of
the General Partner, obligated itself to pay, all or part of the
reasonable expenses of such admission (including, but not limited to,
the costs of preparing and filing any amendment to this Agreement to
effectuate the admission); and
(vii) In the opinion of counsel to the Partnership, or upon
receipt of other evidence satisfactory to counsel to the Partnership,
such Disposition or offer to the assignee would not result in the
violation of applicable federal and state securities laws, or the
termination of the Partnership for federal and/or state income tax
purposes.
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(b) Upon the effectiveness of a Disposition of a Partnership
Interest under this Section 11.4 and if such Disposition has complied with this
Article XI, the General Partner, if consent to admit the assignee as a
substitute Limited Partner is obtained pursuant to this Section 11.4, shall
execute, file and record with the appropriate governmental agencies such
documents (including amendments to this Agreement) as are necessary to effect
the substitution of the assignee as a substituted Limited Partner.
(c) The Partnership shall treat a Person who becomes a substituted
Limited Partner pursuant to the provisions of this Section 11.4 as the
substituted Limited Partner with respect to the Partnership Interest assigned
from the date such assignment and admission are effective under this Section
11.4, notwithstanding the time consumed in preparing an amendment to this
Agreement and, if required, filing the necessary documents with governmental
agencies necessary to effect the substitution.
(d) Any Person admitted to the Partnership as a substituted
Limited Partner shall be subject to and bound by all provisions of this
Agreement as if originally a Party to this Agreement, and such Person's assignor
is not released from his liability to the Partnership as provided by law.
SECTION 11.5 DISPOSITIONS BY GENERAL PARTNER. (a) Subject to
Sections 11.1 and 11.4 hereof, the General Partner shall not make or suffer a
Disposition of its general partner's Partnership Interest without the
affirmative vote or written consent of all of the Limited Partners, except the
General Partner may make a Disposition of its general partner's Partnership
Interest to any Affiliate of the General Partner.
(b) Any Person to which the entire interest of the General Partner
in the Partnership is assigned in compliance with this Section 11.5 shall become
the "General Partner" of the Partnership and shall be substituted for the
General Partner by the execution of appropriate amendments to this Agreement and
the filing of appropriate documents with governmental agencies necessary to
effect the assignment.
(c) Except as permitted in this Section 11.5 hereof, the General
Partner shall not be permitted to withdraw from the Partnership; provided,
however, that nothing in this Section 11.5 shall be deemed to prohibit or limit
the ability of the General Partner to give the notice specified in Section 12.1,
or construed to mean that the occurrence with respect to the General Partner of
the events of withdrawal specified in Section 12.1 constitutes a breach of this
Agreement by such General Partner.
SECTION 11.6 ADDITIONAL RESTRICTIONS ON DISPOSITIONS. THE
PARTNERSHIP INTERESTS HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE STATE SECURITIES
LAWS OF TEXAS OR ANY OTHER STATE. WITHOUT SUCH REGISTRATION, SUCH SECURITIES MAY
NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED AT ANY TIME
WHATSOEVER, EXCEPT UPON DELIVERY TO THE PARTNERSHIP OF AN OPINION OF COUNSEL
SATISFACTORY TO THE GENERAL PARTNER OF THE PARTNERSHIP THAT REGISTRATION IS NOT
REQUIRED FOR SUCH TRANSFER AND/OR THE
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SUBMISSION TO THE GENERAL PARTNER OF THE PARTNERSHIP OF SUCH OTHER EVIDENCE AS
MAY BE SATISFACTORY TO THE GENERAL PARTNER TO THE EFFECT THAT ANY SUCH TRANSFER
WILL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, AND/OR
APPLICABLE STATE SECURITIES LAWS, AND/OR ANY RULE OR REGULATION PROMULGATED
THEREUNDER. ADDITIONALLY, ANY SALE OR OTHER TRANSFER OF THE PARTNERSHIP
INTERESTS IS SUBJECT TO CERTAIN RESTRICTIONS THAT ARE SET FORTH IN THIS
AGREEMENT OF LIMITED PARTNERSHIP AND ANY DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS INSTRUMENT SHALL BE MADE ONLY AS PROVIDED HEREIN.
SECTION 11.7 Right to Deal Exclusively with Limited Partners. For
all purposes of this Agreement, the General Partner shall be entitled to deal
with each Limited Partner as the sole party in interest with respect to his
Partnership Interest, regardless of any actual knowledge the General Partner may
have to the contrary; provided, however, that (i) as to any assignee of a
Partnership Interest of whom the General Partner has actual knowledge, the
General Partner may distribute to such assignee the amounts assignor would
otherwise be entitled, (ii) an assignee, for federal income tax purposes only
and to the extent required by law, shall be entitled merely to receive
distributions and to be allocated items of income, gain, loss, deduction or
credit to which his assignor would otherwise be entitled, but no such successor
may become a substituted Limited Partner except pursuant to Section 11.4 hereof.
ARTICLE XII
LIQUIDATION, DISSOLUTION, TERMINATION AND WINDING UP
SECTION 12.1 Events Deemed to Cause Liquidation and Dissolution.
(a) Subject to the provisions of Section 12.9 hereof, the Partnership shall be
liquidated and dissolved upon the first to occur of the following "Termination
Events":
(i) the sale, forfeiture, abandonment or other
disposition of all or substantially all of the Partnership Assets;
(ii) the unanimous consent of the Partners;
(iii) the giving of notice to the Limited Partners by the
General Partner, at least ninety (90) days before the prospective date
of termination, of the election of the General Partner to dissolve,
wind up the affairs of and terminate the Partnership;
(iv) the expiration of the term specified in Section 2.5
hereof;
(v) the occurrence of any of the following events of
withdrawal of a sole General Partner from the Partnership as the sole
general partner:
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A) the withdrawal of the General Partner from
the Partnership without substitution of a permitted assignee
as the substitute General Partner of the Partnership;
B) the withdrawal of the General Partner upon
the assignment by such General Partner of its entire interest
in the Partnership (including, without limitation, as
specified in Section 11.5 hereof);
C) the General Partner shall become a Bankrupt
or suffer an event of Bankruptcy;
D) the issuance of a certificate or decree of
dissolution or the equivalent thereof of the General Partner
(other than in connection with (A) a merger, consolidation, or
other reorganization to which the General Partner is a Party,
or (B) an exchange, sale, or other transfer of all or
substantially all of the assets of the General Partner); or
(vi) the entry of a decree of judicial dissolution of the
Partnership.
(b) Notwithstanding any provision of this Agreement which might
state or imply to the contrary, the death, insanity, incompetency, dissolution
or Bankruptcy of any Limited Partner, or the seizure and sale of any Partnership
Interest of a Limited Partner, shall not be a Termination Event.
SECTION 12.2 APPOINTMENT OF LIQUIDATOR. (a) If the Partnership is
dissolved for any reason, then, subject to Section 12.2(b) hereof, the General
Partner shall act as Liquidator.
(b) In the event that the dissolution is caused by the occurrence
of an event of withdrawal by the General Partner described in Section 12.1(a)(v)
hereof, or the wrongful dissolution of the Partnership by the General Partner,
then such Person or Persons as are selected by a Majority in Interest of the
Limited Partners shall act as Liquidator.
(c) Within thirty (30) days after the death, dissolution, removal
or resignation of the Liquidator appointed pursuant to the foregoing provisions
of this Section 12.2, a successor Liquidator (who shall have and succeed to all
the rights, powers and duties of the original Liquidator) shall be appointed by
a Majority in Interest of the Limited Partners. The right to appoint a successor
Liquidator in the manner provided herein shall be recurring and continuing for
so long as the functions and services of the Liquidator are authorized to
continue under the provisions hereof, and every reference herein to the
"Liquidator" shall be deemed to refer also to any successor Liquidator appointed
in the manner herein provided.
(d) If the Partnership is dissolved for any reason and if, within
thirty (30) days following the date of dissolution or other time period provided
in Section 12.2(c) hereof, a Liquidator or successor Liquidator has not been
appointed in the manner provided in the foregoing provisions of this Section
12.2, any interested Party shall have the right to make application to a court
of competent jurisdiction, on cause shown, for appointment of such
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Liquidator or successor Liquidator pursuant to the Act, and the said court shall
be fully authorized and empowered to appoint and designate such Liquidator or
successor Liquidator who shall have all the powers, duties, rights and
authorities of the Liquidator herein provided.
(e) The Liquidator (if other than the General Partner) appointed
as provided in Section 12.2 hereof shall be entitled to receive reasonable and
customary compensation for its services.
SECTION 12.3 TERMINATION AND WINDING UP. (a) If the Partnership is
dissolved pursuant to this Article XII, the Liquidator shall wind up the
Partnership's Business, shall proceed to cause the Assets to be sold and shall
distribute the Liquidation Proceeds as provided under Section 6.2 herein. During
such period, the business and affairs of the Partnership shall be conducted so
as to maintain and preserve the Partnership Assets in a manner consistent with
the orderly Liquidation and Dissolution of the Partnership.
(b) The Liquidator shall have sufficient business expertise and
competence to conduct the winding up and termination of the Partnership and, in
the course thereof, to cause the Partnership to perform any contracts that the
Partnership has theretofore or (subject to the limitations hereinafter set
forth) may thereafter enter into. The Liquidator shall proceed with such
termination and winding up in as expeditious a manner as is reasonably
practicable. The holders of interests in the Partnership shall continue to share
distributions, income (including gain) and losses during the period of
termination and winding up in accordance with Articles V and VI hereof.
(c) The Liquidator shall have full right and unlimited discretion
to determine the time, manner, terms and consideration to be received with
respect to any sale, exchange or transfer of Partnership Assets pursuant to such
termination and winding up, having due regard for the activity and condition of
the relevant market and general financial and economic conditions.
(d) Except as expressly provided in this Section 12.3, the
Liquidator shall have and may exercise, without further authorization or consent
of any of the parties hereto or their legal representatives or successors in
interest, all of the powers conferred upon the General Partner under the terms
of this Agreement to the extent necessary or desirable in the good faith
judgment of the Liquidator to carry out the duties and functions of the
Liquidator hereunder for and during such period of time. Without limiting the
foregoing powers, the Liquidator shall have the right to wind up the Partnership
and may in such winding up, do the following:
(i) Cause some or all of the Partnership Assets to be
sold and distribute the Liquidation Proceeds and other Partnership
assets as provided in Section 6.2 hereof.
(ii) Except in respect of (A) all Partnership Assets on
which a single, non-severable mortgage or other lien will be in effect
after such distribution, and (B) any Partnership Assets which the
Liquidator shall determine are not readily severable or distributable
in kind, have the right but not the obligation to distribute, in kind,
all or any portion of the Partnership Assets, if any, to the Partners
as set forth in Section 6.2 hereof.
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(iii) Continue to manage and operate any business of the
Partnership during the period of such termination and winding up.
(iv) Make sales, exchanges and transfers and, incident
thereto, make deeds, bills of sale, and assignments of assets of the
Partnership (provided that the Liquidator may not impose personal
liability upon any of the Partners under any such instrument).
(v) The power to borrow funds as, in the good faith
judgment of the Liquidator, may be reasonably required to pay debts,
obligations and expenses of the Partnership, and to execute and/or
grant deeds of trust, mortgages, security agreements, pledges and
collateral assignments upon and encumbering any of the Partnership
Assets as security for repayment of such loans or as security for
payment of any other indebtedness of the Partnership (provided that the
Liquidator shall not have the power to create any personal obligation
of any of the Partners to repay such loans or indebtedness).
(vi) Settle, release, compromise or adjust any claims
asserted to be owing by or to the Partnership and file, prosecute or
defend lawsuits and legal proceedings in connection with any such
matter.
SECTION 12.4 RESERVES. After making payment or provision for
payment of all debts and liabilities of the Partnership and all expenses of
liquidation, the Liquidator may set up, for a period not to exceed five (5)
years, such cash reserves as the Liquidator may deem reasonably necessary for
any contingent or unforeseen liabilities or obligations of the Partnership.
SECTION 12.5 DISTRIBUTIONS. Upon the winding up and termination of
the business and affairs of the Partnership, the Partnership Assets remaining
after payment (or provision for payment) of all Partnership liabilities
(including, without limitation, liabilities owed to the General Partner or any
Affiliate of the General Partner) and establishment of reserves pursuant to
Section 12.4 hereof shall be distributed to the Partners in accordance with
Section 6.2 hereof. Distributions pursuant to this Section 12.5 may be made in
cash and/or kind as the Liquidator in its sole and absolute discretion shall
determine.
SECTION 12.6 REPORTS. Within a reasonable period of time following
the completion of the liquidation of the Partnership's Assets, the Liquidator
shall supply to each of the Partners a statement reviewed by the Partnership's
independent accountants which shall set forth the Partnership Assets and the
liabilities of the Partnership as of the date of complete liquidation, each
Partner's portion of distributions pursuant to Section 12.5 hereof, and the
amount retained as reserves by the Liquidator pursuant to Section 12.4 hereof.
SECTION 12.7 SOURCE OF RETURN. Each holder of an interest in the
Partnership shall look solely to the Partnership Assets for all distributions
with respect to the Partnership and his Capital Account (including the return
thereof) and share of Profits or Losses thereof and shall have no recourse
therefor (upon dissolution or otherwise) against the Partnership, the General
Partner or the Liquidator. The Liquidator may vary the proportions and the mix
of the Partnership Assets distributed to the various Partners to the extent
required to effect an in-kind distribution of the Partnership Assets, and
accordingly, the Liquidator, in its sole and absolute
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discretion, may compel a Partner to accept a distribution in-kind from the
Partnership even though the percentage of the Partnership Assets distributed to
such Partner exceeds the percentage of that Partnership Assets which is equal to
the percentage in which such Partner shares in the distributions from the
Partnership.
SECTION 12.8 REQUIRED FILINGS. Upon the completion of the
liquidation of the Partnership and the distribution of all Partnership Assets,
the Partnership shall terminate and the Liquidator shall (and is hereby given
the authority to) execute and record all documents required to effectuate the
dissolution and termination of the Partnership.
SECTION 12.9 ELECTION TO CARRY ON BUSINESS. In the event of an
occurrence of any Termination Event (other than withdrawal of the General
Partner) that, but for this Section 12.9, would constitute a dissolution under
Section 12.1 hereof, the General Partner may, if and to the extent permitted
under the Act, elect to carry on the business of the Partnership. In the event
of a withdrawal of the General Partner described in Section 12.1 that, but for
this Section 12.9, would constitute a dissolution under Section 12.1 hereof,
then the Partners (other than the General Partner who has suffered an event of
withdrawal) may, if and to the extent permitted under the Act, and within ninety
(90) days following the occurrence of such event, elect to carry on the business
of the Partnership by affirmative vote of all of the remaining Partners and, if
they so elect, shall agree to the appointment of one or more new General
Partners, all as provided by the Act. Such election to continue the business of
the Partnership shall be in writing.
ARTICLE XIII
POWER OF ATTORNEY
SECTION 13.1 GRANT OF POWER OF ATTORNEY. The Limited Partners
hereby irrevocably constitute and appoint the General Partner, and its
successors and assigns, as their true and lawful attorney and agent (with full
power of substitution to each) with full power and authority in their name,
place and ▇▇▇▇▇ to execute, swear to, acknowledge, deliver, file and record in
the appropriate public offices (i) the Certificate of Limited Partnership of
this Partnership, this Agreement, fictitious or assumed name certificates and
other certificates and instruments that the General Partner considers necessary
or appropriate to qualify or continue the Partnership as a limited partnership
or conduct the business of the Partnership in any jurisdictions in which the
Partnership may conduct business or own or lease property, (ii) amendments to
this Agreement, the Certificate of Limited Partnership of this Partnership and
other instruments that the General Partner considers necessary or appropriate to
effect a change or modification of the Partnership in accordance with the terms
of this Agreement including, without limitation, those amendments relating to
the admission of additional or substitute Partners or the withdrawal of
Partners, (iii) all certificates of dissolution, conveyances and other
instruments that the General Partner considers necessary or appropriate to
effect the acquisition, disposition, pledge, mortgage, hypothecation,
encumbrance or exchange of any Partnership Assets (irrespective of whether legal
title to such Partnership Assets is in the name of the Partnership, a nominee or
one or more Partners), or the dissolution and termination of the Partnership,
and (iv) any other instrument that is now or may hereafter be required by law to
be filed on behalf of the Partnership.
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SECTION 13.2 NATURE OF POWER OF ATTORNEY. The power of attorney
granted herein shall be considered to be coupled with an interest, shall be
irrevocable and shall survive the death, incompetency, dissolution or
termination of existence of any or all of the Limited Partners. Any Person
dealing with the Partnership may conclusively presume and rely upon the fact
that any such instrument executed by the attorney and agent herein appointed is
valid and binding without further inquiry.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 ENTIRE AGREEMENT. This Agreement is the entire
agreement among the parties hereto relating to the subject matter hereof. It
supersedes all prior oral and written agreements pertaining to the subject
matter hereof and may not be amended except as provided in Section 14.4 hereof.
SECTION 14.2 APPLICABLE LAW. This Agreement shall be governed by,
and interpreted and enforced in accordance with the laws of the State of Texas,
except as may otherwise be required by the laws of any jurisdiction in which the
Partnership conducts business and then only to the extent necessary to enable
the Partnership to conduct business in such other jurisdiction.
SECTION 14.3 NOTICE. Any notice, statement, report, demand or
other communication required by this Agreement shall be considered given at the
time set forth in the last sentence hereof if a written copy is personally
delivered, or mailed postage prepaid, certified or registered mail, return
receipt requested, and deposited in the United States mail, or sent by a
nationally recognized express or overnight courier service. For purposes of
notice, the addresses of the Limited Partners shall be as set forth on the
Signature Page hereof, as amended from time to time, and the address of the
Partnership and the General Partner shall be as set forth in Sections 2.3 and
2.4 hereof. Any Limited Partner may change his address for notices by giving
notice to the General Partner. The General Partner may change its address or the
address of the Partnership by giving notice to the Limited Partners. Any notice
or other communication will be considered to have been given when (i) personally
delivered, (ii) if sent by mail, as of the third business day after the date on
which it is deposited in the United States mail in compliance with the terms of
this Section 14.3, or (iii) if sent by a nationally recognized express or
overnight courier service, on the next business day after pickup of the notice
by such service.
SECTION 14.4 AMENDMENTS. (a) Amendments to this Agreement may be
proposed by the General Partner or by the Limited Partners by submitting the
proposed amendment to all Partners in writing. Any such amendment will be
approved only upon (and at the time of receipt of) the affirmative vote or
written consent of the General Partner and a Majority in Interest of the
Partners.
(b) No amendment that, in the opinion of counsel to the
Partnership, changes the limited liability status of any Limited Partner or his
participation in any material adverse respect in the income (including gain),
losses, credits, capital or distributions of the Partnership may be made without
the affirmative vote or written consent of such Limited Partner, except as
provided
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in Paragraph (a) above. No amendment that, in the opinion of counsel to the
Partnership, would cause the Partnership to be treated as an association taxable
as any entity other than a limited partnership for federal income tax purposes
may be made without the affirmative vote or written consent of all Partners.
SECTION 14.5 CONSENT AND WAIVER. No consent or waiver, express or
implied, by any Party hereto of any right or any breach or default by any other
Party hereto in the performance of its obligations hereunder shall be deemed or
construed to be a consent or waiver to or of any other right or any other breach
or default in the performance by such Party of the same or any other obligations
of such Party hereunder. Failure on the part of any Party to complain of any act
or failure to act of another Party or to declare another Party in default,
irrespective of how long such failure continues, shall not constitute a waiver
by such Party of its rights hereunder.
SECTION 14.6 HEADINGS AND CAPTIONS. The Article and Section
headings and other captions contained in this Agreement are inserted only as a
matter of convenience, do not form a part of this Agreement and in no way
define, limit, extend or describe the scope of this Agreement or the intent of
the parties or of any provision hereof.
SECTION 14.7 SUCCESSORS AND ASSIGNS. This Agreement and all the
terms and provisions hereof shall be binding upon and (subject to the provisions
of Article XI hereof) inure to the benefit of the Partners and their respective
legal representatives, heirs, successors and assigns.
SECTION 14.8 REFERENCES AND GENDER. All references to "Articles",
"Sections", "Subsections" and "Paragraphs" contained herein are, unless
specifically indicated otherwise, references to articles, sections, subsections
and paragraphs of this Agreement. Whenever herein the singular number is used,
the same shall include the plural where appropriate, and words of any gender
shall include each other gender where appropriate.
SECTION 14.9 INVALID PROVISIONS. If any provision of this
Agreement or the application thereof to any Person or circumstance is held to be
illegal, invalid or unenforceable to any extent under present or future laws
effective during the term of this Agreement, such provision shall be fully
severable and the remainder of this Agreement and the application of such
provisions to other Persons or circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law. In that regard, this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Agreement, and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Agreement. Furthermore, in lieu of each such illegal,
invalid or unenforceable provision, there shall be added automatically as a part
of this Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and still be legal, valid and
enforceable.
SECTION 14.10 MULTIPLE COUNTERPARTS. This Agreement may be executed
in any number of identical counterparts, each of which for all purposes is to be
deemed an original, and
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all of which constitute, collectively, one agreement; provided, that in making
proof of this Agreement, it shall not be necessary to produce or account for
more than one such counterpart.
SECTION 14.11 THIRD PARTY BENEFICIARY. Nothing in this Agreement
shall be deemed to create any right in any creditor or other Person not a Party
hereto (other than the permitted successors and assigns of a Party hereto), and
this instrument shall not be construed in any respect to be a contract in whole
or in part for the benefit of any other Party except as aforesaid.
SECTION 14.12 ADDITIONAL ACTS. In connection with this Agreement,
as well as all transactions contemplated by this Agreement, each Partner agrees
to execute and deliver such additional documents or perform such additional acts
as may be necessary or appropriate to effectuate, carry out and perform all of
the terms, provisions and conditions of this Agreement and all such transactions
provided herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first hereinabove written.
SIGNATURE PAGE
TO
LIMITED PARTNERSHIP AGREEMENT OF
MTH HOMES-TEXAS, L.P.
GENERAL PARTNER SIGNATURE PAGE
DATED: June 18, 2002
---------------------------------------------------------------------------------
INITIAL PARTNERSHIP
GENERAL PARTNER CONTRIBUTION PERCENTAGE
---------------------------------------------------------------------------------
MTH-Texas ▇▇ ▇▇, Inc.
an Arizona corporation $100.00 1. 0%
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-Chairman, President and
Chief Executive Officer
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------
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SIGNATURE PAGE
TO
LIMITED PARTNERSHIP AGREEMENT OF
MTH HOMES-TEXAS, L.P.
LIMITED PARTNER SIGNATURE PAGE
The undersigned Limited Partner hereby agrees to become Limited
Partners in MTH Homes-Texas, L.P., pursuant to the terms of the Agreement, and
agrees to make the capital contribution set forth opposite its name.
---------------------------------------------------------------------------------
INITIAL CAPITAL PARTNERSHIP
LIMITED PARTNERS CONTRIBUTION PERCENTAGE
---------------------------------------------------------------------------------
MTH-Texas ▇▇ ▇▇, Inc.,
an Arizona corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ $900.00 99.0%
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Co-Chairman, President and
Chief Executive Officer
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------
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