HomeMy WebLinkAboutMisc CERTIFICATE OF COMPANY RESOLUTIONS
OF
CFPFCS, LLC
I, Curtis T. Vaughan, III, Manager of CPFPCS,LLC, a Delaware limited liability company
(the "Company"), do hereby certify as of the /6Tif day of**44444 2008, as follows:
1. I am one of the duly elected and qualified Managers of the Company and the custodian of
the Company's records.
2. Set forth below is a true and correct extract from the records of the Company showing
resolutions duly adopted on June 27, 2008,by unanimous written consent of the managers
and/or members of the Company, which resolutions have not in any way been amended or
modified and are in full force and effect:
FURTHER RESOLVED, that the Managers are hereby authorized and empowered, for
and on behalf of the Company and its name: to make, execute and deliver all legal
instruments and contracts by or on behalf of the Company of whatever nature; and in
general to make, execute and deliver and to receive and accept on behalf of the Company
and in its name such other instruments as they may consider necessary from time to time
in the operation of the business of the Company, upon such terms and conditions as may
be considered proper by said manager, and when signed by any of said managers, shall be
the act and deed of the Company;
3. The following are duly elected, qualified and serving Managers of the Company, and that
the signature set out opposite the name of each officer is the genuine signature of such
person,to-wit:
Name Title Sia ature
Curtis T. Vaughan, III Manager del
Robert L. Vaughan Manager r
George C. Vaughan Manager `SCC"C� ,, r
4. (a) all franchise and other taxes required to maintain the Company's existence have been
paid when due and that no such taxes are delinquent; (b) no proceedings are pending for
the forfeiture of the Company's Certificate of Formation or the Company's dissolution,
voluntary or involuntary; (c) the Company is duly qualified to do business in the State of
Texas and any other states in which it is doing business, and is in good standing in such
states; (d)there is no provision of the Certificate of Formation or Operating Agreement of
the Company limiting the power of the members or managers to pass the resolutions set
out above, and that such resolutions are in conformity with the provisions of said
Certificate of Formation and Operating Agreement.
c
EXECUTED as of the date first above written.
LA
Curtis T Vaug f an, III, in the capacity of a Manager
of CPFP C
Signature Page
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E'dF ;'w; 0787468 OR 481 198
_13i,Locct
DECLARATION OF COVENANTS AND RESTRICTIONS
THE STATE OF TEXAS .
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF BRAZOS .
This Agreement is made as of this the agd day of AUGUST, 2002,by the
undersigned, POR NADA JOINT VENTURE, a Texas Joint Venture, composed of
Interstate Promotional Printing Company, a Texas corporation, Philip Springer,
M. L. (Red) Cashion, Peter and Donna Van Van Vleck Living Trust, and F. Garrett
Walsh (hereinafter referred to as "FOR NADA") and SOUTHCORP HOLDINGS I, L.P., a
Texas limited partnership, by and through its General Partner, SOUTHCORP REALTY
ADVISORS, INC., a Texas corporation (hereinafter referred to as "SOUTHCORP") .
WITNESSETH
WHEREAS, POR NADA on the date of this instrument has conveyed unto
SOUTHCORP all of that certain 2.00 acres tract or parcel of land, more
particularly described on Exhibit "A", out of 11.63 acres tract of land, more
particularly described on Exhibit "B" attached hereto and made a part hereof; and
WHEREAS, for the consideration hereinafter expressed, SOUTHCORP agrees to
place certain covenants and restrictions on the 2.00 acre tract described on
Exhibit "A".
NOW THEREFORE, for and in consideration of the premises, and for and in
consideration of POR NADA selling the Property described on Exhibit "A" to
SOUTHCORP and entering into that certain "Option Contract And Agreement" dated
August 31, 2001, and amendments thereto, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, it
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CA .O0
CC./
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00787468 Bk OR81 1999
PP,1f (#PPS-284)
RSSTRZC1T/R CVVAYAM ACREEMEND
is declared and agreed to by POR NADA and SOUTHCORP that the 2.00 acres conveyed
to SOUTHCORP out of the 11.63 acres and the remainder of the 11.63 acres, being
9.63 acres (cumulatively herein referred to as the "Property" now owned by POR
NADA shall be owned, used, occupied, held, sold and conveyed subject to the
following covenants and restrictions:
The Property or any part or portion thereof shall be used solely for those
"Permitted Uses" described in Section 7, Paragraph 7.13 entitled "District C-1
General Commercial", Subparagraph B. entitled "Permitted Uses" of the City of
College Station Zoning Ordinance NO. 1638 as adopted on March 13, 1986 and
revised thru February 2000. Provided, however, any provision contained in this
agreement to the contrary notwithstanding, there is excluded from said
Subparagraph B list of "Permitted Uses" "Other uses will be considered by the
Commission". Provided further, it is declared and agreed that the Property
described on Exhibit "A" and Exhibit "B" shall not be used for a cemetery,
mausoleum, crematory, or any such related purposes, or as an entrance,
entranceway, or as access to or ingress and egress to and from a cemetery,
mausoleum, crematory, or related purposes.
Except as otherwise provided, any owner or owners of the property described
on Exhibit "A" and Exhibit "B" shall have the right to enforce, by any proceeding
at law or in equity, the covenants and restrictions imposed by this Declaration
of Restrictive Covenants. Failure to enforce any covenant or restriction shall
not be deemed a waiver of the right of enforcement, either with respect to the
violation in question or any other violation. All waivers must be in writing and
signed by the owners and parties to be bound.
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Bk 481 t_ 2009
PPS:11 (#PPS-I8I)
RESTRICTIVE COVENANT AGREENEST
These restrictions and covenants shall run with the real property, shall
be permanent and perpetual, and shall be binding on all parties having any right,
title or interest in the Property, in whole or in part, and their heirs,
successors and assigns. These covenants, conditions and restrictions shall also
be for the benefit of the Property, each part or portion thereof, and each owner
of said Property or a part or portion thereof. Enforcement of these covenants
and restrictions shall be by any proceeding at law or in equity against any
person or persons violating or attempting to violate any covenant or restriction,
either to restrain violation or to recover damages.
If any punctuation, word, clause, sentence, or provision necessary to give
meaning, validity, or effect to any other word, clause, sentence, or provision
appearing in this Declaration shall be omitted herefrom, then it is hereby
declared that such omission was unintentional and that the omitted punctuation,
word, clause, sentence or provision shall be supplied by inference.
The singular, wherever used herein, shall be construed to mean the plural,
when applicable, and the necessary grammatical changes required to make the
provisions hereof apply either to corporations or individuals, males or females,
shall in all cases be assumed as though in each case fully expressed.
Invalidation of any one or more of the covenants, restrictions, conditions
or provisions contained in this Declaration, or any part thereof, shall in no
manner affect any of the other covenants, restrictions, conditions, or provisions
hereof, which shall remain in full force and effect.
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Doc OR 4811 2019
PPS,lf (IPPS-284)
RESTRICTIVE COVIN NT AGREEMENT
If any controversy, claim, or dispute arises relating to this instrument,
its breach, or enforcement, the prevailing party shall be entitled to recover
from the losing party reasonable expenses, attorneys' fees, and costs.
The covenants and restrictions of this Agreement may be amended or waived
by an instrument signed by all owners of all the property described on Exhibit
"A" and Exhibit "B" and any amendment or waiver shall be effective when recorded
in the Official Records off the County Clerk's office of Brazos County, Texas.
a,v
Executed this the day of ka.,U ST , 2002, to be effective as
of the date first written above.
POR NADA JOINT VENTURE,
a Texas Joint Venture •
BY JOINT VENTURERS:
INTERSTATE PROMOTIONAL PRINTING COMPANY,
a`�Texas corporation
by: W
Name: rW dSMITH
Title- Presid t
P ILIP S/�j
�"
M. L. CASHION
PETER AND DONNA VAN VLECX LIVING TRUST
AOLM4410...1,41A144•040
Name: DONNA VAN CK
Title: Trustee/ ,amend Individually
bY: W �TRII
iPAYNE SMI Agent and Attorney-in-Fact
for DONNA VAN VLECX
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00787468 OR 481, 2029
PPS:If (#PPS-284)
RESTRICTIVE CWSDANT AGRANINT
paevste.#7.40.44.
F. GARRETT WALSH
by:
WAYNFI SMI�, /t and Attorney-in-Fact
for F. GARRETT WALSH
SOUTHCORP HOLDINGS I, L.P.,
a Texas limited partnership
by its Gene Partner:
SOUTHCORP T . TY ADVISORS, INC.,
a T as corporation
by: I
Name:. W. ' . SISSON
Title: President
THE STATE OF ?E t' ••
COUNTY OF ehti.os ••
This instrument was acknowledged before me on this the eZr day of
2002, by WAYNE SMITH, President of INTERSTATE PROMOTIONAL PRINTING
C/ Texas corporation, as Joint Venturer of POR NADA JOINT VENTURE, a
Texas Joint Venture, on behalf of said Joint Venture and in the capacity therein
stated.
/i
A/ ,V
CLI in
N TARY, PUBLI �d for
tr`r'L,
1 . LiNDAMORGAN The State of Tex
*4 V.', MV COMMISSION EXPIRES
%ez,,t' April 23,2005
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00787468 OR 481, 2039
PPS,1f (#PPS-284)
RESTRICTIVE CPVRnAN1'A(RZIMINr
THE STATE OF 7
COUNTY OF 'SPaZaS •
Tis instrument was acknowledged before me on this the ' day of
2002, by PHILIP SPRINGER, as Joint Venturer of POR NADA JOINT
VE URE, a Texas Joint Venture, on behalf of said Joint Venture and in the
capacity therein stated.
N TARP UBLIC do for
�� UNOAMORGAN The State of Texas
.
.:* MY COMMISSION EXPIRES
ff ' 'r.,",S'�'•r �
, 2005
I
THE STATE OF •
COUNTY OFIZAS •
!'
/��� This instrument was acknowledged before me on this the old day of
/4G( ((.S , 2002, by M. L. CASHION, as Joint Venturer of POR NADA JOINT VENTURE,
Texas Joint Venture, on behalf of said Joint Venture and in the capacity
therein stated. `
'��.`''4 LINDA MORGAN /+
+. ,- MY CONDA MOR EXPIRES
._ NOTAR PUBLIC in d for
AptY23 2005 The S ate of Te
THE STATE OF DD%C�(sic ••
COUNTY OF �^fj(ZO ••
his instrument was acknowledged before me on this the 04? day of
' 2002, by WAYNE SMITH, Agent and Attorney-in-Fact for DONNA VAN VLECK,
a Trusteeand Individually of the PETER AND DONNA VAN VLECK LIVING TRUST, as
Joint Venturer of POR NADA JOINT VENTURE, a Texas Joint Venture, on behalf of
said Joint Venture and in the capacity therein stated.
ouLLfrcy
• • NOTARLIC in d for
" ,
LINDA MORGAN The State of Texa
?*__ MY COMMISSION EXPIRES
=; s April 23,2005
X45
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0D0787468 BkR 481. 2048
PPS:1f (#PPS-284)
RESTRICTIVE COVENANT ACREENENT
THE STATE OF ,CCS
COUNTY OF eI-QzeS A
his instrument was acknowledged before me on this the e. day of
44.0s , 2002, by WAYNE SMITH, Agent and Attorney-in-Fact for F. GARRETT
ALSH, as Joint Venturer of POR NADA JOINT VENTURE, a Texas Joint Venture, on
behalf of said Joint Venture and in the capacity therein st-ted.
UNDAMORGAN //
tt': s MY COMMISSION EXPIRES NOT PUBL i d and for
;{• �.q�� The State o T- as
THE STATE OFpp 7Z)r4
COUNTY OF pj"'Q eOS `` p
This instrument was acknowledged before me on this the a a day of
2002, by W. L. SISSON, President of SOUTHCORP REALTY ADVISTORS, INC.,
a Texas corporation, General Partner of SODTHCORP HOLDINGS I, L.P., a Texas
limited partnership, on behalf of SOUTHCORP HOLDINGS I, L.P., a Texas limited
partnership, and in the capacity therein stated. �YnLt//L
NO ARY UBLICi-'1 "lf' for
145114, UNOAMORGAN The State of
Texas
': . AfY COMMISSION EXPIRES
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• • METE.,.,ND BOUNDS DESCRIP'N3 7468 OR 4B, 206
OF A
2.00 ACRE TRACT
J.E SCOTT LEAGUE,ABSTRACT NO.50
COLLEGE STATION,BRAZOS COUNTY,TEXAS
Metes and bounds description of all that certain 2.00 acre tract or parcel of land,lying and being
situated in the J.E.Scott League,Abstract No.50,College Station;Brazos County,Texas and
being a portion out of that same 11.63 acre tract conveyed from Interstate Promotional Printing
Company to Por Nada Joint Venture,as described by deed recorded in Volume 474 PAGE 811
of the Deed Records of Brazos County,Texas,said 2.00 acre tract being more particularly
described as follows:
BEGINNING at a 4"x4"square concrete monument with a broken top,found marking the west
corner of said 11.63 acre tract.
THENCE N 44°49' 58"E-424.96 feet with the northwest line of said 11.63 acre tract and
generally with an existing fence line,to a Y2"iron rod set for corner,and lying in the southwest
right-of-way line of FM 2818,also known as Harvey Mitchell Parkway;
THENCE S 42°25' 09"E-187.17feet with said richt-of-way line to a TexDOT standard
concrete right-of-way monument found for angle point;
THENCE S 39°50'26"E-20.72 feet with said right-of-way line to a Vz"iron rod set for
corner.
THENCE S 44°49'58"W-413.52 feet across said 11.63 acre tract a%"iron rod set for corner
in the southwest line. An 8"diameter elm tree found for angle point in said line bears S 45° 19'
08"E-354.96 feet.
THENCE N 45° 19'08"W-207.58 feet with said southwest line to the PLACE OF
BEGINNING,and containing 2.00 acres of land.
May 2002
Municipal Development Group
College Station,Texas
Surveyed by:
A.W.Kessler
O F T' ., R.P.L.S.No.1852
1 `, 9F'f�'�•.
A.W. KESSLER. ry
.
?, 1852 le �P �;
000687-c.04(3540) /�
Exhibit" /-'�
Page of JPara
Doc Bk t' Pg
00787468 OR 48i 205
PPS:1f (MS-284)
RES2RICPIVE COVSA NT AGREEMENT
THE STATE OF /` S •
•
COUNTY OF 'grazes
Th•s instrument was acknowledged before me on this the :1J? day of
2002, by WAYNE SMITH, Agent and Attorney-in-Fact for F. GARRETT
WAL H, as Joint Venturer of POR NADA JOINT VENTURE, a Texas Joint Venture, on
behalf of said Joint Venture and in the capacity therein stated.
+p" :"••.. UNOAMORW TAR PUBLI i and for
. i OMMISSOP O(PIRES
�' MY C14‘41i Apri123.2005 The S ate of Te as
THE STATE OF TEXAS •
COUNTY OF SOS ••
T4s instrument was acknowledged before me on this the 04 day of
2002, by W. L. SISSON, President of SODTHCORP REALTY ADVISORS, INC.,
a exas corporation, General Partner of SOUTHCORP HOLDINGS I, L.P., a Texas
limited partnership, on behalf of SOUTHCORP HOLDINGS I, L.P., a Texas limited
partnership, and in the capacity therein stated.
/d 4)f
�•M"�"�g LINORGNOTARY PUBLIC in d for
AMOON£
yYCOMMISSIXANIMS
-4 Apr223.2005 The S to of Texas
"Na
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00787468 OR 481, 2079
METES AND BOUNDS DESCRIPTION
OF A
11.63 ACRE TRACT
J.E SCOTT LEAGUE,ABSTRACT NO.50
COLLEGE STATION,BRAZOS COUNTY,TEXAS
Metes and bounds description of all that certain 11.63 acre tract or parcel of land,lying and
being situated in the J.E.Scott League,Abstract No.50,College Station,Brazos County,Texas
and being all that same 11.63 acre tract conveyed from John D Hoerner,et ux,to Interstate
Promotional Printing Company to Por Nada Joint Venture,as described by deed recorded in
Volume 474 PAGE 811 of the Deed Records of Brazos County,Texas,said 11.63 acre tract
being more particularly described as follows:
BEGINNING at a 4"x4"square concrete monument with a broken top.found marking the west
corner of said 11.63 acre tract.
THENCE N 44°49' 58"E-424.96 feet with the northwest line of said 11.63 acre tract and
generally with an existing fence line.to al/2"iron rod set for corner.and lying in the southwest
right-of-way line of FM 2818,also known as Harvey Mitchell Parkway;
!HENCE S 42°25'09"E-187.17 feet with said right-of-way line to a TexDOT standard
concrete right-of-way monument found for angle point;
THENCE S 39°50'26"E—399.77 feet with said right-of-way line to a TexDOT standard
concrete right-of-way monument found for angle point;
THENCE S 35°42'32"E—401.44 feet with said right-of-way line to a TexDOT standard
concrete right-of-way monument found for angle point;
THENCE S 28°21'37"E—552.01 feet withsaid right-of-way line to a TexDOT standard
concrete right-of-way monument found for angle point;
THENCE S 10°36' 10"E—251.74 feet with said right-of-way line to a'/2"iron rod set for
corner.A TexDOT standard concrete right-of-way monument found for angle point bears S 10°
36' 10"E—435.07 feet;
THENCE N 45°36'49"W—115420 feet with the southwest line of said tract to an 8"
diameter elm tree found for angle point;
000687-c.05(3540)
Exhibit " ►a+�J
pas 1 of Pages
•
oc Bk V
• • THENCE N 45° 19'08"W—562.54,yet with said southwest line tC0 'th 11 yd f8182B>'GNI,:: dog
containing 11.63 acres of land. 7A
May 2002
Municipal Development Group
College Station,Texas
Surveyed by:
G, Z /� '-Lt/' S-Z1-0 Z
A.W.Kessler
R.P.L.S.No. 1852
A.W. KESSLER
\`i.Aa 1852
+tr 4,
•,;9y tss1° o
.°
Filed for Record in:
BBAZOS CONY
On: Aug 29,2B02 at 11:8641
As a
Recordings
Dooueent Nuaber: 88787468
!Wont 26.88
Receipt Number-281666
By,
Sylvia Polansky
SNE 1686 WV 8T
1 herby certify that this Wheat as
filed m the date a d tsae striped berm by ere
mhos dal recorded a the velem aid pap
of the maid retards of:
111115 WRY
as staged berm by it.
• Rug 29,2002
•
NONE Van cum,01p11y 1191
Bitll�NEY
•
000687-c.05(3540)
Exhibit"Page 6
a-of a- Pates
Said instrument being re-record to -
BILL$REURI�';0: add the Exhibit "A" legal description.
BRAZOS COUNTY ABSTRACT COMPANY
GF# e X1092 DocBk
Bk 7Vol 3 9
First Amendment to
61
Declaration of Covenants and Restrictions
This FIRST AMENDMENT TO DECLARATION OF COVENANTS AND
RESTRICTIONS(this"First Amendment")is dated March 29,2006 by TITAN
VALLEY PARK,LIMITED PARTNERSHIP,a New Mexico limited partnership
being the sole owner of the Property(described hereinbelow)subject to the Covenants
(described herein below).
Recitals
A. A Declaration of Covenants and Restrictions dated August 2, 2002
Document Number 00787468,Book OR,Volume 4818,Pages 198-208 (the
"Covenants")is filed against and binding upon the real property described on Exhibit A
attached hereto (the"Property").
B. As permitted by the Covenants, Titan Valley Park,Limited Partnership
hereby wishes to amend the Covenants as set forth below.
C. For good and valuable consideration,the receipt of which is hereby
acknowledged,the parties agree as follows.
Agreement
1. Amendment to Permitted Uses. The Permitted Use shall be amended to
any lawful use permitted by applicable federal, state and municipal ordinances and/or
regulations as may be amended from time to time.
2. No Further Amendment. Except as modified herein,the Covenants shall
remain in full force and effect.
IN WITNESS WHEREOF,the parties have executed this First Amendment as
of the date first set forth above.
TITAN VALLEY PARK,LIMITED PARTNERSHIP
a New Mexico limited partnership
By: Titan Development of Texas,LLC,
its general partner
By:
Ben F. Spencer,Manager
qou
co,
L ~
iivc 8.14— 494 fim
004,9214 47 OR 73,30 1%1
Doc Bk Vol Ps
00922643 OR 7233 162
STATE OF NEW MEXICO )
)ss.
COUNTY OF SANDOVAL )
SUBSCRIBED AND SWORN TO BEFORE me this . t day of March, 2006,
by Ben F. Spencer,Manager of Titan Development of Texas,LLC,general partner of Titan
Valley Park,Limited Partnership.
T-P1J�-cam--► PS vle‘.
Notary Public
My Commission Expires:
a-7( --.1-1‘=)--7 d,,,,.^,� OFFICIAL SEAL
!, Stacy R. Pearson
14
'. er` NOTARY PUBLIC
STATE OF NE MEXICO
My Commission Expires. 61 �SIo�I
iled for Record in:
BRAZOS COUNTY
Dn: ..r 0312004 at 10:43A
As a
r ABEL RECORDING
Document ,er: 009 447
Amount 5.00
Receipt N r - •7736
B91
Cynthia Rinc.
STATE OF TEXAS COUNTY OF BRAZOS
I hereby cer•ify t .t this instrument was
Piled on the date •ad ti - stamped hereon by me
and was duly re ded in t volume and vase
of the Officia blic reco 's of:
BRAZOS COUNTY
as stamped ereon by me.
Apr 03,2006
HONORABLE KAREN MCDUEEN, COUNT CLERK
BRAZOS COUNTY
2
Doc Bk Vol Fs
00922643 OR 7253 163
EXHIBIT"A"
All that certain tract or parcel of land lying and being situated in the J. E. SCOTT
LEAGUE, A-50, College Station, Brazos County, Texas and being all of the 2.00 acre
tract conveyed from Por Nada Joint Venture to Southcorp Holdings 1, L.P.,'as recorded
in Volume 4818, page 215 of the Official Records of Brazos County, Texas (O.R.B.C.)
and all of the remainder of the 11.635 acre tract conveyed from Interstate Promotional
Printing Company to Por Nada Joint Venture as recorded in Volume 474, page 811 of
the O.R.B.C.and being more particularly described as follows:
BEGINNING at a 5/8"iron rod set for the most westerly corner of this tract, also being
the west corner of the said Southcorp tract, also being the west corner of the said Por
Nada tract, also being the north corner of the Texas A&M University System 6.89 acre
tract as recorded in Volume 1066,
page 602 of the O.R.B.C., also lying in the southeast line of the Twyla T. Benson 10.15
acre tract as recorded in Volume 4136, pages 217, 221, 225, 229, 233, 237, 241 and
245, of the O.R.B.C., a 4"x4" concrete monument bears N 62° 26'06" E-0.45 feet;
THENCE following a fence along the northwest line of this tract N 44° 49' 58" E 425.44
feet to a 5/8"iron rod set at a fence corner for the most northerly corner of this tract, also
being the north corner of the said Southcorp tract, also being the north corner of the said
Por Nada tract, also being the east corner of the said Benson tract, also lying in the
southwest line of F.M. 2828;
THENCE following a fence along the northeast line of this tract and the southwest line of
F.M. 2818 the following calls:
S 42° 25'09" E, 187.17 feet to a TxDOT concrete ROW monument;
S 39° 50' 28" E, pass at 20.72 feet the east corner of the said Southcorp tract, a total
distance of 399.77 feet to a TxDOT concrete ROW monument;
S 35°43'32" E, 401.44 feet to a TxDOT concrete ROW monument;
S 28°21'37" E, 552.01 feet to a TxDOT concrete ROW monument;
S 10° 44' 12" E, 255.39 feet to a 5/8" iron rod set for the most southerly corner of this
tract, also being the south corner of the said Por Nada tract, also being a northeast
corner of the said TAMUS tract, a 1/2" iron rod bears N 10° 00' 53"W, 3.90 feet, an old
fence corner post bears N 20° 27' 53"W, 3.70 feet;
THENCE along the southwest line of this tract N 45° 29' 00"W, pass at 1157 feet an 8"
elm, pass at 1512.37 a 1/2" iron rod found at the south corner of the said Southcorp
tract, a total distance of 1720.11 feet to the PLACE OF BEGINNING, containing 11.635
acres of land, more or less.
Doc Bk Vol Ps
00922643 OR 7253 164
Filed for Record in:
BRAZOS COUNTY
On: Apr 13,2006 at 03:34P
As a
Recordinss
Document Number: 00922643
Amount 23.00
Receipt Number - 288553
By,
Lynn Greer
STATE OF TEXAS COUNTY OF BRAZOS
I hereby certify that this instrument was
filed on the date and time stamped hereon by me
and was duly recorded in the volume and ease
of the Official Public records of:
BRAZOS COUNTY
as stewed hereon by me.
Aar 13,2006
HONORABLE KAREN MCOUEEN, COUNTY CLERK
BRAZOS COUNTY
4A,
SOUTHCORP LLC
CONSENT TO ACTION TAKEN
WITHOUT MEETING OF MANAGERS
Pursuant to Section 6.201 of the Texas Business Organization Code,the undersigned being
all of the Managers of Southcorp LLC (the"Company")hereby waive notice of and consent to the
following actions taken without a meeting.
RESOLVED, that any Regulations or Operating Agreement of Southcorp LLC
previously executed or in effect shall be and are hereby revoked.
FURTHER RESOLVED, that the Regulations of Southcorp LLC dated to be
effective May 1,2010 executed by W.L. Sisson and David Hillman as Managers of
the Company shall be and are hereby ratified and affirmed in all respects.
FURTHER RESOLVED,that W.L.Sisson shall be and is hereby elected to serve as
President of the Company and David Hillman shall be and is hereby elected to serve
as Vice President of the Company until such Time as their respective successors are
elected.
FURTHER RESOLVED,that the President of the Company shall be and is hereby
authorized and directed to issue a Membership Certificate to W.L.Sisson evidencing
that W.L.Sisson owns one hundred percent(100.00%)of the membership interest of
the Company.
This consent is signed by all directors of the Company to be eff tive May 1,2010.
iv"
iv"
W. L. S'sson
David Hillman
CONSENT TO ACTION TAKEN WITHOUT MEETING OF MEMBERS Page 1
o
a�d
Brazos County Abstract Company
"More than 130 Years of Title Service"
P.O. Box 4704 Phone:(979)731-1900 3800 Cross Park Drive
Bryan,TX 77805-4704 Facsimile: (979)731-8352 Bryan,TX 77802
BCAC GF NO. 149277
Title Report Prepared October 4, 2010
for
MR. DAVID HILLMAN
SOUTHCORP REALTY ADVISORS, INC.
3401 ALLEN PARKWAY, SUITE 200
HOUSTON, TEXAS 77019
Brazos County Abstract Company
"More than 130 Years of Title Service"
EFFECTIVE DATE: September 8, 2010 at 8:00 a.m.
GF NO. 149277
PROPERTY DESCRIPTION:
Being all those certain lots, tracts or parcels of land lying and being situated
in Brazos County, Texas and being Lots One (1), Two (2), Three (3) and
Four (4), VALLEY PARK CENTER, an addition to the City of College
Station, Texas, according to plat recorded in Volume 7675, page 282,
Official Records of Brazos County,Texas.
TITLE APPEARS TO BE VESTED IN:
TITAN VALLEY PARK,LIMITED PARTNERSHIP
by Warranty Deed from Por Nada Joint Venture, dated September 21, 2005, recorded in Volume
6976,page 226,Official Records of Brazos County,Texas. (Part of Lot 3 and all of Lot 4);
CPFPCS,LLC
by Warranty Deed from Titan Mac Valley Park 1, L.P., dated July 13, 2007, recorded in Volume
8104, page 135, and corrected in Volume 8155, page 48, Official Records of Brazos County,
Texas. (Lot 1);
and
CLLVP PHASE II,LP,a Texas limited partnership
by Warranty Deed from Titan Valley Park, LP, dated May 27, 2010, recorded in Volume 9661,
page 205, Official Records of Brazos County,Texas. (2.24 acres aka Lot 2 and part of Lot 3)
SUBJECT TO:
1. LIENS: (A) Deed of Trust, Security Agreement - Financing Statement dated July 12,
2007, executed by CPFPCS,LLC to Jimmy R. Locke,Trustee, securing one
note of even date payable to The Frost National Bank, in the principal
amount of $4,100,000.00, recorded in Volume 8104, page 139, Official
Records of Brazos County, Texas; and as modified, rearranged and/or
extended in instrument recorded in Volume 9231, page 54,Official Records
of Brazos County,Texas. (Lot 1)
(B) Financing Statement for fixtures - Starvision Technologies, Inc. to Brazos
Brazos County Abstract Company
"More than 130 Years of Title Service"
Valley Bank, filed December 28, 2009, recorded in Volume 9443, page
233,Official Records of Brazos County,Texas. (Lot 1)
(C) Deed of Trust, Security Agreement and Financing Statement dated May 19,
2006, executed by Titan Valley Park, Limited Partnership to Robert J.
Hymel, Jr., Trustee, securing one note of even date payable to Inter
National Bank, in the principal amount of $1,952,281.60, recorded in
Volume 7397, page 171, Official Records of Brazos County, Texas and as
extended by instruments recorded in Volume 8714, page 275, Volume
9159, page 85, Volume 9371,page 196,Volume 9592,page 50 and Volume
9767, page 224, Official Records of Brazos County, Texas. (part of Lot 3
and all of Lot 4)
(D) Terms, conditions and stipulations as set forth in Construction Closing
Certificate and New Construction Affidavit, by and between Titan Valley
Park, Ltd. and Inter National Bank dated May 19, 2006, recorded in
Volume 7397,page 167, Official Records of Brazos County, Texas. (Part of
Lot 3 and all of Lot 4)
(E) Deed of Trust, Assignment of Rents, Security Agreement and Financing
Statement dated May 27, 2010, executed by CLLVP Phase II, LP to Paul D.
Thornton, Trustee, securing one note of even date payable to San Antonio
National Bank, in the principal amount of $3,975,194.00, recorded in
Volume 9661, page 209, Official Records of Brazos County, Texas. (2.24
acres aka Lot 2 and part of Lot 3)
Assignment of Leases and Rents from CLLVP Phase H, LP to San Antonio
National Bank, dated May 27, 2010, recorded in Volume 9661, page 228,
Official Records of Brazos County,Texas.
(F) Terms, conditions and stipulations as set forth in the Construction Closing
Certificate and Affidavit by and between CLLVP Phase II, LP and San
Antonio National Bank, dated May 27, 2010, recorded in Volume 9661,
page 234, Official Records of Brazos County,Texas. (2.24 acres aka Lot 2
and part of Lot 3)
Collateral Assignment of Construction Contract by and between CLLVP
Phase II, LP and San Antonio National Bank, dated May 27,2010, recorded
in Volume 9665,page 126, Official Records of Brazos County,Texas.
2. ABSTRACT OF JUDGMENT/FEDERAL AND/OR STATE LIENS:
NONE OF RECORD.
Brazos County Abstract Company
"More than 130 Years of Title Service"
3. EASEMENTS:
Easements and building lines as shown of record on plat of Valley Park
Center, recorded in Volume 7675, page 282, Official Records of Brazos
County,Texas.
Easement from Elizabeth Silber to City of Bryan, dated March 5, 1948,
recorded in Volume 134,page 191,Deed Records of Brazos County,Texas.
Avigation Easement from John D. Hoerner et ux to Texas A&M University,
dated January 20, 1971, recorded in Volume 328, page 632, Deed Records
of Brazos County,Texas.
Easement and Covenant Agreement by and between Titan Valley Park,
Limited Partnership and Titan Mac Valley Park 1,L.P., dated July 13,2007,
recorded in Volume 8104, page 123, Official Records of Brazos County,
Texas. (Lots 2, 3 and 4)
Temporary Blanket Utility Easement from Titan Valley Park, Limited
Partnership to the City of College Station, Texas, dated May 14, 2009,
recorded in Volume 9490, page 96, Official Records of Brazos County,
Texas. (Lots 2, 3 and 4)
4. OUTSTANDING MINERALS AND/OR ROYALTIES:
NONE OF RECORD.
5. OIL&GAS LEASES:
NONE OF RECORD.
6. RESTRICTIONS: Restrictive covenants recorded in Volume 4818, page 198, Volume 7253,
page 120 and Volume 7253, page 161, Official Records of Brazos County,
Texas.
7. TAXES: NONE REQUESTED.
8. MISCELLANEOUS:
Terms and conditions of Subordination, NonDisturbance and Attor7mient
Agreement by and between San Antonio National Bank, CLLVP Phase II,
LP and Board of Regents of The Texas A&M University System, dated
May 14, 2010, recorded in Volume 9665, page 175, Official Records of
Brazos county,Texas.
All leases, grants, exceptions or reservations of coal, lignite, oil, gas and
Brazos County Abstract Company
"More than 130 Years of Title Service"
other minerals, together with all rights, privileges and immunities relating
thereto, appearing in the Public Records. There may be leases, grants,
exceptions or reservations of mineral interests that are not listed.
THIS TITLE REPORT IS ISSUED WITH THE EXPRESS UNDERSTANDING,EVIDENCED BY
THE ACCEPTANCE OF SAME THAT THE UNDERSIGNED, BRAZOS COUNTY ABSTRACT
COMPANY DOES NOT UNDERTAKE HEREIN TO GIVE OR EXPRESS ANY OPINION AS
TO THE VALIDITY OF THE TITLE TO THE PROPERTY ABOVE DESCRIBED, NOR AS TO
THE VALIDITY OF ANY OF THE INSTRUMENTS REPORTED HEREIN, INCLUDING THE
PURPORTED DEED(S) ESTABLISHING THE RECORD OWNER(S) CITED ABOVE, BUT IS
SIMPLY REPORTING BRIEFLY HEREIN AS TO THE INSTRUMENTS FOUND OF RECORD
PERTAINING TO SAID PROPERTY, AND IT IS EXPRESSLY UNDERSTOOD AND AGREED
THAT THIS TITLE REPORT IS NETTHER A GUARANTY NOR WARRANTY OF THE TITLE.
BY ACCEPTANCE OF THIS TITLE REPORT IT IS UNDERSTOOD THAT THE LIABILITY
OF THE ISSUER HEREOF IS EXPRESSLY LIMITED TO THE ACTUAL MONETARY
CONSIDERATION PAID FOR SAID REPORT BY SCAMICOU R LTYADVISOR,S, INC, THIS
SEARCH HAS BEEN LIMITED TO THE ABOVE MATTERS AND THE ABOVE TIME
PERIOD; AND WE HAVE NOT SEARCHED FOR, NOR HAVE REFLECTED HEREIN, ANY
EXAMINATION AS TO TAX SUITS, SPECIAL ASSESSMENTS, CONFLICTS OR OTHER
INSTRUMENTS WHICH MAY AFFECT TITLE TO THE SUBJECT PROPERTY. IF TITLE
INSURANCE COVERAGE, WHICH IS NOT PROVIDED BY THIS REPORT, IS NEEDED,
SAID COVERAGE IS AVAILABLE THROUGH THE APPLICABLE PROMULGATED
POLICY(IES),AND AT A SPECIFIED RATE PREMIUM.
BRAZOS COUNTY ABSTRACT COMPANY
BY: (__4 6fink.0
LISA KEMP I
AGREEMENT OF LIMITED PARTNERSHIP
FOR
CLLVP PHASE II,LP
A Texas Limited Partnership
Dated as of Z
The undersigned Partners of CLLVP Phase II, LP, a Texas limited partnership,
agree:
ARTICLE I
DEFINITIONS
1.01 Definitions. The following terms used in this Agreement of Limited Partnership
shall have the following meanings (unless otherwise expressly provided herein).
a. "Certificate of Limited Partnership" shall mean the Certificate of Limited
Partnership for CLLVP Phase II,LP,as filed with the Texas Secretary of State,as
the same may be amended from time to time.
b. "Capital Account" as of any given date shall mean the Capital Contribution to the
Limited Partnership by a Partner as adjusted up to the date in question pursuant to
Article VII.
e. "Capital Contribution" shall mean any contribution to the capital of the Limited
Partnership in cash, property, or services by a General Partner or Limited Partner
whenever made. "Initial Capital Contribution" shall mean the initial contribution
to the capital of the Limited Partnership pursuant to this Agreement of Limited
Partnership.
d. "Capital Interest" shall mean the proportion that a General Partner's or Limited
Partner's positive Capital Account bears to the aggregate positive Capital
Accounts of all General Partners and Limited Partners whose Capital Accounts
have positive balances as may be adjusted from time to time.
e. "Limited Partnership" shall refer to CLLVP Phase II, LP, a Texas limited
partnership.
f. "Deficit Capital Account" shall mean with respect to any General Partner or
Limited Partner, the deficit balance, if any, in such General Partner's or Limited
Partner's Capital Account as of the end of the taxable year.
g. "Distribution Cash" means gross cash receipts from all sources less (a) all costs
and expenses paid on a cash basis (including debt service); (b) reasonable
revenues for the portion of such cash receipts which are needed for the business of
the Partnership; (c) reasonable reserves for amounts necessary for the satisfaction
of debts and obligation of the Partnership; and (d) reasonable reserves for
contingencies or other needs of the Partnership.
h. Partnership Interest" shall mean a General Partner's or Limited Partner's share of
the Limited Partnership's Net Profits,Net Losses and distributions of the Limited
Partnership's assets pursuant to this Agreement of Limited Partnership and the
Texas Business Organization Code. The initial Partnership Interest of each
General Partner or Limited Partner is set forth on Exhibit B and may be adjusted
from time to time as set forth herein.
i. "Limited Partner" shall mean each of the parties shown on Exhibit B, and who
executes a counterpart of this Agreement of Limited Partnership as a Limited
Partner and each of the parties who may hereafter become a Limited Partner.
j. "Entity" shall mean any general partnership, limited partnership, limited liability
company, corporation, joint venture, trust, business trust, cooperative or
association or any foreign trust,or foreign business organization.
k. "Fiscal Year" shall mean the Limited Partnership's fiscal year, which shall be the
calendar year beginning with the 2009 calendar year.
1. "IRC" shall mean the Internal Revenue Code of 1986 or corresponding provisions
of subsequent superseding federal revenue laws.
m. "Majority Vote of Partners" shall mean the affirmative vote of more than 50% of
Partnership Interest percentages as such are shown on Exhibit B to this
Agreement of Limited Partnership,as amended from time to time.
n. "General Partner" shall the party shown on Exhibit B, and who executes a
counterpart of this Agreement of Limited Partnership as a General Partner.
o. "General Partnership Interest" shall mean a General Partner's entire interest in the
Limited Partnership including the General Partner's Partnership Interest and the
right to participate in the management of the business and affairs of the Limited
Partnership, including the right to vote on, consent to or otherwise participate in
any decision or action of or by the Partners granted pursuant to this Agreement of
Limited Partnership and the Texas Business Organization Code.
p. "Net Profits" and "Net Losses" shall mean the income, gain, loss, deductions and
credits of the Limited Partnership in the aggregate or separately stated, as
appropriate.
q. "Agreement of Limited Partnership" shall mean this Agreement of Limited
Partnership as originally executed and amended from time to time.
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r. "Persons" shall mean any individual or entity, and the heirs, executors,
administrators, legal representatives, successors and assigns of the Person when
the context so permits.
s. "Partners" shall mean each of the General Partner and the Limited Partners.
t. "Reserves" shall mean,for any fiscal period, funds set aside or amounts allocated
during such period to reserves that shall be maintained in amounts deemed
sufficient by the General Partners for working capital and to pay taxes, insurance,
debt service or other costs or expenses incident to the ownership or operation of
the Limited Partnership's business.
u. "TBO Code" shall mean the Texas Business Organization code.
v. "Treasury Regulations" shall include proposed, temporary, and final regulations
promulgated under the TRC in effect as of the date of filing the Certificate of
Limited Partnership and the corresponding sections of any regulations
subsequently issued that amend or supersede those regulations.
w. "Cash Contribution Partners" shall mean those Limited Partners identified on
Exhibit"B"as having made their capital contributions to the Partnership in cash.
x. "Value Contribution Partners" shall mean those Limited Partners identified on
Exhibit "B" as having made their capital contributions to the Partnership in the
form of Cash or Services.
y. "Building" shall mean a proposed building containing approximately 25,000
square feet of space to be situated on 2.24 acres(Lot 2, Valley Park Center).
z. "Tenant" shall mean the Board of Regents of the Texas A&M System.
aa. "Lease" shall mean that certain lease dated October 16, 2009 by and between the
Tenant and the Limited Partnership.
bb. "Rent Commencement Date" shall mean the date that Tenant occupies the
Building and commences paying rent under the Lease.
cc. "Construction Period" shall begin as of the date of this Agreement and shall end
on the Rent Commencement Date.
dd. "Construction Period Rate" shall be an amount equal to the per annum interest
rate paid by San Antonio National Bank on a six (6) month certificate of deposit
as of the date of this Agreement,without compounding.
ee. "Post Construction Period Rate" shall be equal to six (6) percent simple interest
per annum.
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•
ARTICLE II
Formation of Limited Partnership
2.01 Formation. Robert J. Rockett, organized a Texas limited partnership by
executing and delivering a Certificate of Limited Partnership to the Texas Secretary of
State in accordance with and pursuant to the TBO Code.
2.02 Name. The name of the Limited Partnership is CLLVP Phase 11, LP.
2.03 Principal Place of Business. The principal place of business of the Limited
Partnership within the State of Texas shall be, 3401 Allen Parkway, Ste 200. Houston TX
77019. The Limited Partnership may locate its places of business and registered office at
any other place or places as the General Partners may from time to time deem advisable.
2.04 Registered Office and Registered Agent. The Limited Partnership's initial registered
office shall be at the office of its registered agent at 3401 Allen Parkway, Ste 200,
Houston, TX 77019, and the name of its registered agent at such address shall be W.L.
Sisson. The registered office and registered agent may be changed from time to time by
filing the address of the new registered office and/or the name of the new registered agent
with the Texas Secretary of State pursuant to the TBO Code.
2.05 Term. The term of the Limited Partnership shall be 50 Years, unless the Limited
Partnership is earlier dissolved in accordance with either the provisions of this Agreement
of Limited Partnership or the TBO Code.
ARTICLE III
Business of Limited Partnership
3.01 Permitted Business. The business of the Limited Partnership shall be:
a. Limited to acquisition, development, ownership, leasing, management
and/or sale of the real property described on the attached Exhibit A and any such
related additional real or personal property which may be acquired from time to
time by the Limited Partnership, and to do all other things ancillary thereto as
permitted by the TBO Code.
b. To accomplish any lawful business whatsoever, or which shall at any time
appear conducive to or expedient for the protection or benefit of the Limited
Partnership and its assets.
c. To exercise all other powers necessary to or reasonably connected with the
Limited Partnership's business that may be legally exercised by limited
partnerships under the TBO Code.
d. To engage in all activities necessary, customary, convenient or incident to
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any of the foregoing.
ARTICLE IV
Names and Addresses of Partners
4.01 Partners. The names of the General Partner and Limited Partners are as set forth on
the Signature Pages and on Exhibit B attached hereto.
ARTICLE V
Rights and Obligations of the General Partner
5.01 Management. The General Partner of the Limited Partnership is Southcorp LLC.
a Texas limited liability company. The business and affairs of the Limited Partnership
shall be managed by its General Partner. The General Partner shall direct, manage and
control the business of the Limited Partnership to the best of its ability. The General
Partner shall have full and compete authority, power and discretion to manage and
control the business, affairs and properties of the Limited Partnership, to make all
decisions regarding those matters and to perform any and all other acts or activities
customary or incident to the management of the Limited Partnership's business.
5.02 Enumerated Management Powers of General Partner. Without limiting the
generality of Section 5.01 above, the General Partner shall have power and authority, on
behalf of the Limited Partnership:
a. Upon majority vote of the Partners,to acquire property from any Person as
the General Partner may deem in the best interest of the Limited Partnership;
b. Upon majority vote of the Partners, to borrow money for the Limited
Partnership from banks, other lending institutions, the General Partner or Limited
Partners. members or affiliates of the General Partner or Limited Partners and/or
General Partner or Limited Partners on such terms as the General Partner deems
appropriate, and in connection therewith, to hypothecate, encumber and grant
security interests in the assets of the Limited Partnership to secure repayment of
the borrowed sums. No debt shall be contracted or liability incurred by or on
behalf of the Limited Partnership except by the General Partner, or to the extent
permitted under the TRO Code, by agents or employees of the Limited
Partnership expressly authorized to contract such debt or incur such liability by
the General Partner;
c. To purchase liability and other insurance to protect the Limited
Partnership's property and business;
d. To hold and own any Limited Partnership's real and/or personal properties
in the name of the Limited Partnership;
e. To invest any Limited Partnership funds temporarily (by way of example
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but not limitation) in time deposits, short-term governmental obligations,
commercial paper or other investments;
f. Upon the Majority Vote of Partners,to mortgage, sell or otherwise dispose
of all or substantially all of the assets of the Limited Partnership as part of a
transaction or plan so long as that disposition is not in violation of or a cause of a
default under any other agreement to which the Limited Partnership may be
bound;
g• upon majority vote of the Partner, to mortgage, sell or otherwise dispose
of any of the Limited Partnership's real property;
h. To execute on behalf of the Limited Partnership all instruments and
documents, including, without limitation: checks, drafts, notes and other
negotiable instruments, leases covering less than 26,000 square feet, and with a
majority vote of Partners, mortgages or deeds of trust, security agreements,
financing statements, documents providing for the acquisition, mortgage or
disposition of the Limited Partnership's property, assigns, bills of sale, leases
covering 26,000 or more than square feet, partnership agreements, management
agreements, development agreements, general contractor agreements and any
other instruments or documents necessary , in the opinion of the General Partner
to the business of the Limited Partnership;
i. To employ such accountants, legal counsel, or other experts to perform
services for the Limited Partnership and to compensate them from Limited
Partnership funds;
J. To enter into any and all other agreements on behalf of the Limited
Partnership,with any other Person for any purpose;
k. To enter into purchase and sale agreements and leases with parties related
to or affiliated with the General Partner and/or the Limited Partners with the
approval of the Limited Partners, which approval shall not be unreasonably
withheld,conditioned or delayed;and
1. To do and perform all other acts as may be necessary or appropriate to the
conduct of the Limited Partnership's business.
5.03 Limitation of Liability. The General Partner's liability shall be limited as set forth
in this Agreement of Limited Partnership,the TBO Code and other applicable law.
5.04 List of Partners. Upon written request from any General or Limited Partner, the
General Partner shall provide a list showing the names, address and Partnership Interests
of all General Partners and Limited Partners.
5.06 Approval of Sale of All Assets. The General Partner shall have the right, upon the
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Majority Vote of Partners, to approve the sale, exchange, or other disposition of all, or
substantially all of the Limited Partnership's assets which is to occur as part of a single
transaction or plan.
5.07 Limited Partnership Books. In accordance with Section 8.07 below, the General
Partner shall maintain and preserve, during the term of the Limited Partnership and for
five (5) years thereafter, all-accounts, books and other relevant Limited Partnership
documents. Upon reasonable request,the General Partner and Limited Partners shall have
the right, during ordinary business hours, to inspect and copy those Limited Partnership
documents at the requesting General Partner's and Limited Partner's expense.
ARTICLE VI
Meetings of Partners
6.01 Annual Meeting. The annual meeting of the Partners shall be held on the second
Tuesday in August each year or at such other time as shall be determined by the General
Partner, commencing with the year 2010, for the purpose of the transaction of such
business as may come before the meeting.
6.02 Special Meetings. Special meetings of the Partners, for any purpose or purposes,
unless otherwise prescribed by statute, may be called by the General Partner or the
Majority Vote of Partners.
6.03 Place of Meetings. The General Partner may designate any place, either within or
outside of the State of New Mexico, as the place of meeting for any meeting of the
Partners. If no designation is made, or if a special meeting be otherwise called, the place
of meeting shall be the principal executive office of the Limited Partnership, 3401 Allen
Parkway, Ste 200, Houston, Texas 77019. Upon the approval of a Majority Vote of
Partners,a meeting may be held telephonically.
6.04 Notice of Meetings. Except as provided in Section 6.05 below, written notice
stating the place, day and hour of the meeting and the purpose or purposes for which the
meeting is called shall be delivered no fewer than 10 days and no more than 50 days
before the date of the meeting, either personally, by fax,or by mail, by or at the direction
of the person calling the meeting, to each Partner entitled to vote at the meeting. If
mailed, the notice shall be deemed to be delivered two calendar days after being
deposited in the United States mail, addressed to the Partner at the Partner's address as it
appears on the books of the Limited Partnership, with postage thereon prepaid. If sent by
fax, it shall be deemed delivered upon return fax acknowledging actual receipt by the
Partner.
6.05 Meeting of All General Partners. If all of the Partners shall meet at any time and
place, either within or outside of the State of TBO Code, and each consent to the holding
of a meeting at that time and place,the meeting shall be valid without call or notice, and
at the meeting lawful action may be taken.
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6.06 Record Date. For the purpose of determining Partners entitled to notice of or to
vote at any meeting of Partners or any adjournment of the meeting, or Partners entitled to
receive payment of any distribution, or to make a determination of Partners for any other
purpose, the date on which notice of the meeting is mailed or the date on which the
resolution declaring the distribution is adopted, as the case may be, shall be the record
date for the determination of Partners. When a determination of Partners entitled to vote
at any meeting of Partners has been made as provided in this section, the determination
shall apply to adjournment of the meeting.
6.07 Quorum. Partners collectively holding at least one-half of all Partnership Interests
represented in person or by proxy, and the presence of the General Partner shall
constitute a quorum at any meeting of Partners. In the absence of a quorum at any
meeting of Partners, the Partners present at the meeting may adjourn the meeting from
time to time for a period not to exceed 60 days without further notice. However, if the
adjournment is for more than 60 days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
Partner of record entitled to vote at the meeting. At an adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally noticed. The Partners present at a duly
organized meeting may continue to transact business until adjournment, notwithstanding
the withdrawal during the meeting of that number of Majority Interest whose absence
would cause less than a quorum.
6.08 Manner of Acting. If a quorum is present, the Majority Vote of Partners shall
be the act of the Partners, unless the vote of a greater or lesser proportion or number is
otherwise required by the TBO Code, by the Certificate of Limited Partnership or by this
Agreement of Limited Partnership.
6.09 Proxies. At all meetings of Partners, a Partner may vote in person or by proxy
executed in writing by the Partner or by a duly authorized attorney-in-fact. The Proxy
shall be filed with the Limited Partnership before or at the time of the meeting. No proxy
shall be valid after 11 months from the date of its execution unless otherwise provided in
the proxy and approved by the General Partner.
6.10 Action by Partners Without a Meeting. Action required or permitted to be taken at
a meeting of Partners may be taken without a meeting if the action is evidenced by one or
more written consents describing the action taken, signed by each Partner entitled to vote
(the "Written Consent"), and delivered to the Limited Partnership for inclusion in the
minutes or for filing with the Limited Partnership records. Action taken under this section
is effective when all Partners entitled to vote have signed the Written Consent, unless the
consent specifies a different effective date. The record date for determining Partners
entitled to take action without a meeting shall be the date that the first Partner signs the
Written Consent.
6.11 Waiver of Notice. When any notice is required to be given to any Partner, a waiver
of the notice in writing signed by the Partner entitled to the notice and consent or the
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presence of the Partner to the meeting, whether before or after the meeting stated therein,
shall be equivalent to the giving of the notice.
ARTICLE VII
Contributions to the Limited Partnership
and Capital Accounts
7.01 Capital Contributions. Each General Partner and Limited Partner shall contribute
such amount as is set forth in appended Exhibit B as its share of the Initial Capital
Contribution. The Initial Capital Contributions shall be in the form of cash or in-kind
contributions of property or services. The Partners have expressly agreed to the initial
value of the Capital Contributions and the Percentage Interests set forth on Exhibit B.
For contributions of cash or property, the Initial Capital Contributions shall be made by
each initial Partner upon execution of this Agreement of Limited Partnership.
7.02. Additional Capital Contributions. If additional working capital is required the
Partnership and the General Partner is unable to finance such working capital needs by
borrowing the required amounts upon such terms and conditions as the General Partner
may deem necessary or appropriate, then the General Partner shall notify the Partners of
the need of such additional working capital on behalf of the Partnership. Thereupon, all
Partners shall have the right (but not the obligation) to contribute in cash to the
Partnership the required working capital, said contributions to be made in the same
proportion as their respective Ownership Interest in the Partnership at the time any such
notice is given (herein called "Additional Capital Contributions).
7.03. Failure to Make Additional Capital Contributions. A Partner that contributes his
or her full share of any additional working capital needed by the Partnership in the
manner provided by Section 7.02 shall be considered to be a Contributing Partner. If any
Partner fails to contribute his or her full share of any additional working capital needed
by the Partnership in the manner provided in Section 7.02 above (the "Non-Contributing
Partner")within ten (10) days after notice to the Partners, then the other Partners shall be
entitled (but not obligated) to contribute (in relation to their respective ownership
percentages)the share of such contribution that was to be made by the Non-Contributing
Partner. Any additional contributions shall be treated as Additional Capital Contributions
by the Contributing Partner or Partners,as the case may be.
7.04. Effect of Failure to Make Additional Partner Capital Contributions. In the event
any Partner does not contribute his or her full share of any additional contribution to the
Partnership, the Ownership Interest of the Non-Contributing Partner shall be diluted as
follows. Once this ten (10) day deadline has passed for making such contribution. the
General Partner shall recompute the Ownership Interests of all Partners by dividing the
sum of all capital contributions made by each individual Partner since the inception of the
Partnership (less any capital previously distributed to such Partner) by the total amount of
all capital contributed to the Partnership by all of the Partners since the inception of the
Partnership (less the total of all capital previously distributed to the Partners). The
resulting fraction shall be the adjusted Ownership Interest of each Partner and shall
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supersede the percentage interests set forth on Exhibit A attached hereto.
7.05 Capital Accounts. A separate Capital Account will be maintained for each
General Partner and Limited Partner.
a. Each Capital Account will be increased by
1. The amount of money contributed to the Limited Partnership;
2. The fair market value of property contributed to the Limited
Partnership (net of liabilities secured by such contributed property that the
Limited Partnership is considered to assume or take subject to under IRC
§752);
3. Allocations of Net Profits;and
4. Allocations of income described in IRC §705(a).
b. Each Capital Account will be decreased by:
1. The amount of money distributed to the General Partner or Limited
Partner by the Limited Partnership;
2. The fair market value of property distributed to the General Partner
or Limited Partner by the Limited Partnership(net of liabilities secured by
such distributed property that such General Partner or Limited Partner is
considered to assume or take subject to under IRC §752);
3. Allocations of expenditures described in IRC §705(a);
4. Allocations of Limited Partnership loss and deduction as set forth
in the relevant Treasury Regulations, taking into account adjustments to
reflect book value.
c. In the event of a permitted sale or exchange of a Partnership Interest in the
Limited Partnership, the Capital Account of the transferor shall become the
Capital Account of the transferee to the extent it relates to the transferred
Partnership Interest in accordance with Treas. Reg. Section 1.704-1(b).
d. The manner in which Capital Accounts are to be maintained pursuant to
this section is intended to comply with the requirements of IRC §704(b) and the
Treasury Regulations promulgated thereunder. If in the opinion of the Limited
Partnership's accountants the manner in which Capital Accounts are to be
maintained pursuant to the preceding provisions of this section should be
modified to comply with IRC §704(b) and the Treasury Regulations thereunder,
then notwithstanding anything to the contrary contained in the preceding
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provisions of this section the method in which Capital Accounts are maintained
shall be so modified; provided, however, that any change in the manner of
maintaining Capital Accounts shall not materially alter the economic agreement
between or among the Partners.
e. Upon liquidation of the Limited Partnership (or any Partner's Partnership
Interest), all liquidating distributions shall be made to the General Partners and
Limited Partners in accordance with their relative capital account balances at the
time of distribution as determined after taking into account all Capital Account
adjustments for the Limited Partnership's taxable year during which the
liquidation occurs until full repayment of such capital accounts has occurred, and
then any remaining distributions shall be in accordance with the provisions of
Section 9.03 of this Agreement of Limited Partnership. Liquidation proceeds will
be paid within 60 days of the end of the taxable year(or, if later, within 120 days
after the date of the liquidation). The Limited Partnership may offset damages for
breach of this Agreement of Limited Partnership by a General Partner or Limited
Partner whose interest is liquidated (either upon the withdrawal of the General
Partner or the liquidation of the Limited Partnership) against the amount
otherwise distributable to the General Partner.
f. Except as otherwise required in the TBO Code (and subject to Sections
7.01 and 7.02 above), no General Partner or Limited Partner shall have any
liability to restore all or any portion of a deficit balance in the General Partner's or
Limited Partner's Capital Account.
ARTICLE VIII
Allocations,Income Tax,Distributions,
Elections and Reports
8.01 Allocations of Income and Losses. The Net Profits in a year where there are no
distributions and Net Losses of the Limited Partnership for each fiscal year will be
allocated in the Partnership Interest percentages as set forth on Exhibit B. Net Profits in a
year where there are distributions will be allocated pro rata based on the amount of those
distributions.
8.02 Preferred Returns. Any Limited Partner contributing cash or services to the
Limited Partnership shall receive a preferred return based upon it outstanding
contributions. The General Partner shall maintain an accounting of each Limited
Partner's outstanding contributions which shall include the Initial Capital Contribution,
services contributed and any subsequent capital contribution pursuant to Paragraph 7.02
("Contribution Account"). The Limited Partnership's obligation to pay any Limited
Partner a preferred return under this Paragraph 8.02 shall be subject to the availability of
Distribution Cash.
a. Cash Contribution Partners shall receive a preferred return during the
Construction Period equal to the Construction Period Rate applied to the
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outstanding balance of its Contribution Account as it may be adjusted at any time
and from time to time,and such preferred return shall accrue to the benefit of each
partner as "Accrued Construction Period Returns."
b. Value Contribution Partners shall receive a preferred return during the
Post Construction Period equal to the Post Construction Period Rate applied to the
outstanding balance of its Contribution Account as it may be adjusted at any time
and from time to time and such preferred return shall accrue to the benefit of each
partner as"Accrued Post Construction Period Returns."
8.03 Distributions. Except as otherwise expressly provided herein, all distributions of
Distribution Cash or other property shall be made to the Limited Partners in the following
order and priority:
a. First, an amount equal to the tax liability incurred by a Limited Partner
from an allocation of Net Profits or other tax attributes pursuant to
Paragraph 8.01 above.
b. Second, to the satisfaction of any Accrued Construction Period Returns.
Payments pursuant to this subsection shall be made pro rata based upon
the outstanding balance of each Cash Contribution Partner's Contribution
Account at the time of the distribution.
c. Third,to the satisfaction of any Accrued Post Construction Period returns.
Payments pursuant to this subsection shall be made pro rata based upon
the outstanding balance of each Value Contribution Partner's Contribution
Account at the time of the distribution.
d. Fourth, to the satisfaction of any Limited Partner's Contribution Account.
Payments pursuant to this subsection shall be made pro rata based upon
the outstanding balance of each Limited Partner's Contribution Account at
the time of the distribution.
e. Fifth, any remaining Distribution Cash shall be paid to each Limited
Partner pro rata based upon each partner's Partnership Interest.
Nothing in Paragraphs 8.02 and 8.03 above shall be deemed to be a guaranty of any
return or payment by the Limited Partnership or the General Partner to any Partner. The
General Partner shall determine the amount and time for all distributions.
8.04 Limitation Upon Distributions. No distribution shall be declared and paid unless,
after distribution is made, the assets of the Limited Partnership are in excess of all
liabilities of the Limited Partnership, except liabilities to General Partners and Limited
Partners on account of their Capital Contributions.
8.05 Accounting Principles. The profits and losses of the Limited Partnership shall be
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determined in accordance with generally accepted accounting principles applied on a
consistent basis. It is intended that the Limited Partnership will elect those accounting
methods that provide the Limited Partnership with the greatest tax benefits with respect
to the method of income tax reporting.
8.06 Loans to Limited Partnership. Nothing in this Agreement of Limited Partnership
shall prevent any General Partner or Limited Partner from making secured or unsecured
loans to the Limited Partnership by a separate agreement with the Limited Partnership.
8.07 Records,Audits and Reports. At the expense of the Limited Partnership, the
Limited Partnership shall maintain records and accounts of all operations and
expenditures of the Limited Partnership. At a minimum the Limited Partnership shall
keep at its principal place of business the following records:
a. A current list of the full name, social security number/tax identification
number, last known business,residence or mailing address,telephone number and
fax numbers of each General Partner and Limited Partner,both past and present;
b. A copy of the Certificate of Limited Partnership and all amendments
thereto,together with executed copies of any power of attorney pursuant to which
any amendment has been executed;
c. Copies of the Limited Partnership's federal, state and local income tax
returns and reports,if any,for the four most recent years;
d. Copies of the Limited Partnership's most current effective, written
Agreement of Limited Partnership and any amendments thereto, copies of any
writings permitted or required with respect to a General Partner's obligation to
contribute cash, property or services, and copies of any financial statements of the
Limited Partnership for the three most recent years;
e. Minutes of every annual meeting, special meeting and court-ordered
meeting.
f. Copies of fully executed written consents obtained from General Partners
for actions taken by General Partners without a meeting.
8.08 Returns and Other Elections. The General Partner is hereby designated the "Tax
Matters Partner", as defined in Section 6231 of the IRC. The General Partner shall
inform the Partners of all matters which may come to the General Partner's attention in
the capacity of Tax Matters Partner by giving notice thereof within ten (10)days after
receipt of any applicable information. The General Partner shall not take any action in
the capacity of Tax Matters Partner without the prior consent of a Majority Vote of the
Partners. This provision is not intended to authorize the General Partner to take any
action that is left to the determination of an individual Partner under Sections 6222
through 6232 of the IRC. The General Partner shall cause the preparation and timely
filing of all tax returns required to be filed by the Limited Partnership pursuant to the IRC
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and all other tax returns deemed necessary and required in each jurisdiction in which the
Limited Partnership does business. Copies of those returns, or pertinent information from
the returns, shall be furnished to the General Partners within a reasonable time after the
end of the Limited Partnership's fiscal year. All elections permitted to be made by the
Limited Partnership under federal or state laws shall be made by the Limited Partnership
in the General Partner's sole discretion.
8.09 Priority and Return of Capital. Except as may be expressly provided in this
Agreement, no General Partner or Limited Partner shall have priority over any other
General Partner or Limited Partner, either for the return of Capital Contributions or for
Net Profits,Net Losses or distributions; provided that this section shall not apply to loans
(as distinguished from Capital Contributions) which a General Partner has made to the
Limited Partnership.
8.10 Liability of a Partner to the Limited Partnership. A Partner who rightfully receives
the return in whole or in part of its contribution (as defined in the TBO Code) is
nevertheless liable to the Limited Partnership only to the extent now or hereafter
provided by the TBO Code. A General Partner who receives a distribution made by the
Limited Partnership which is either in violation of this Agreement of Limited Partnership,
or made when the Limited Partnership's liabilities exceed its assets (after giving effect to
the distribution) is liable to the Limited Partnership for a period of six years after the
distribution for the amount of the distribution.
ARTICLE IX
Transfers
9.01 Transfers Restricted. No transfer of a General Partnership Interest by a General
Partner or an Partnership Interest by a Limited Partnership shall be permitted unless the
applicable provisions of this Article X and Section 14.16 have been fully satisfied.
9.02 Withdrawal of a Partner by Sale. Any General Partner or Limited Partner who
shall be desirous of selling his or her share and interest in the Limited Partnership shall give
the right of first refusal to purchase said share at the same price as being offered by a bona
fide buyer,to the non-selling General Partners and Limited Partners in shares proportionate
to their Partnership Interests. In the event that the non-selling General Partners and
Limited Partners elect to purchase the selling General Partner's or Limited Partner's
interest,the non-selling General Partners and Limited Partners shall provide written notice
of their intent to purchase and shall purchase such interest in accordance with the general
terms and conditions under which the bona fide buyer would have purchased the interest
except that the Limited Partnership, General Partners and /or Limited Partners electing to
purchase shall have the greater of one hundred twenty days or the period of time in the
bona fide offer to make the payment or first of the payments in the bona fide offer. In the
event that a non-selling General Partner or Limited Partner elects not to purchase the
selling General Partner's or Limited Partner's interest, the other non-selling General
Partners and Limited Partner's may elect to purchase all of the selling General Partner's or
Limited Partner's interest. In the event that the non-selling General Partners and Limited
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Partner's elect not to purchase the selling General Partner's or Limited Partner's interest or
fail to provide written notice of their intent to purchase within ninety (90) days after
receiving a copy of the offer from the bona fide buyer, the selling General Partner or
Limited Partner may sell his Partnership Interest to the bona fide buyer subject to the terms
and conditions of this Agreement of Limited Partnership and the Certificate of Limited
Partnership.
9.03 Death of a General Partner. Subject to the right of first refusal for the surviving
General Partners and Limited Partners hereinafter set forth, in the event of the death of a
General Partner or Limited Partner who is an individual, the deceased's heir or heirs shall
be entitled to succeed to the share and interest of the deceased General Partner or Limited
Partner. Provided, however, within ninety days after the date of death, the Limited
Partnership or its surviving General Partners and Limited Partners may elect to purchase
the deceased's interest in shares proportionate to their Partnership Interests by giving notice
to the heir or heirs of the deceased. In such case the deceased's interest shall be valued in
accordance with Section 10.01 and all amounts due to the heir or heirs shall be paid in
accordance with Section 11.01 by the Limited Partnership or the purchasing surviving
General Partners and Limited Partners, as the case may be. If the deceased's interest is to
be purchased by the surviving General Partners and Limited Partners, each surviving
General Partner and Limited Partner shall have the right to purchase the deceased's share
and interest in proportion to the Partnership Interest percentages of those General Partners
and Limited Partners electing to purchase. If no election is made by the Limited
Partnership or the surviving General Partners and Limited Partners to purchase the
deceased's interest,the Limited Partnership shall,as soon as practicable after the end of the
ninety day period, provide a document by which the heir or heirs personally affirm and
accept all the terms, conditions and provisions of this Agreement of Limited Partnership
binding themselves to the same in writing, and selecting a designated representative of the
deceased General Partner or Limited Partner.
9.04 Divorce of a General Partner. Subject to the limitations set forth herein and the right
of first refusal hereinafter set forth, in the event of the divorce of a General Partner or
Limited Partner whereby such General Partner's or Limited Partner's interest, or any
portion thereof, is awarded by an order of the court or by settlement agreement, to a non-
General Partner/non-Limited Partner ex-spouse (the "ex-spouse"), the ex-spouse shall be
entitled to succeed to the share and interest, or portions thereof, of the divorcing General
Partner or Limited Partner. Provided,however,within ninety days after the date of divorce
or settlement, the Limited Partnership or the non-divorcing General Partners and Limited
Partners may elect to purchase the entire interest acquired by the ex-spouse by giving
written notice to the ex-spouse. In such case the ex-spouses interest shall be valued in
accordance with. Section 10.01 and all amounts due to the ex-spouse shall be paid in
accordance with Section 11.01 by the Limited Partnership or the purchasing General
Partners and Limited Partners, as the case may be. If the ex-spouse's interest is to be
purchased by the non-divorcing General Partners and Limited Partners, each non-divorcing
General Partner and Limited Partner shall have the right to purchase a portion of the ex-
spouses share and interest in proportion to the Partnership Interest percentages of those
General Partners and Limited Partners electing to purchase. If no election is made by the
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Limited Partnership or the non-divorcing General Partners and Limited Partners to
purchase the ex-spouses interest, the Limited Partnership shall, as soon as practicable after
the end of the ninety day period, provide a document by which the ex-spouse personally
affirms and accepts all the terms, conditions and provisions of this Agreement of Limited
Partnership.
9.05 Dissolution of a General Partner.Subject to the right of first refusal for the surviving
General Partners and Limited Partners hereinafter set forth, in the event of the dissolution
or other termination of a General Partner that is an Entity (the "Dissolved Entity"), the
Dissolved Entity's successors or assigns shall be entitled to succeed to the share and interest
of the Dissolved Entity. Provided, however, within ninety days after the date of
dissolution,the Limited Partnership or its remaining General Partners and Limited Partners
may elect to purchase the Dissolved Entity 's interest in shares proportionate to their
Partnership Interests by giving notice to successors and assigns of the Dissolved Entity. In
such case the Dissolved Entity's interest shall be valued in accordance with Section 10.01
and all amounts due to the successors and assigns shall be paid in accordance with Section
11.01 by the Limited Partnership or the purchasing remaining General Partners and Limited
Partners, as the case may be. If the Dissolved Entity's interest is to be purchased by the
remaining General Partners and Limited Partners, each remaining General Partner and
Limited Partner shall have the right to purchase the Dissolved Entity's share and interest in
proportion to the Partnership Interest percentages of those General Partners and Limited
Partners electing to purchase. if no election is made by the Limited Partnership or the
reaming General Partners and Limited Partners to purchase the Dissolved Entity's interest,
the Limited Partnership shall, as soon as practicable after the end of the ninety day period,
provide a document by which the successors and assigns personally affirm and accept all
the terms, conditions and provisions of this Agreement of Limited Partnership binding
themselves to the same in writing, and selecting a designated representative of the
Dissolved Entity.
9.06 Transfers to Secure Loan for Benefit of General Partner or Limited Partner or for the
Limited Partnership. Notwithstanding the foregoing provisions of Article IX, the
Partnership Interest of any General Partner or Limited Partner shall be transferable
without the consent of the Partners if the transfer is for the purpose of securing a loan for
the benefit of the transferor. Such transferee (lender) shall have no right to participate in
the management of the business and affairs of the Limited Partnership or to become a
General Partner, but shall only be entitled to receive the transferor's share of the
distributions and return of capital, and to be allocated the Net Profit and Net Loss
attributable to the Partnership Interest of the transferor.
9.07 Transfers to Affiliates. Notwithstanding anything contained in Article X to the
contrary, a transfer of all Partnership Interest in the Limited Partnership by any General
Partner or Limited Partner to and Affiliate shall not be deemed a transfer under this
Agreement and is hereby expressly permitted. For the purpose of this section, an Affiliate
is defined as an Entity with the same ownership and management as the transferring
General Partner or Limited Partner, an individual who is the sole owner of an Entity
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General Partner or Limited Partner, or an Entity solely owned and managed by an
individual General Partner or Limited Partner.
ARTICLE X
Purchase Price
10.01 Value Determination. Should the General Partners and Limited Partners
(including the Proposed Transferor) be unable to agree on a value of the Interest in the
Limited Partnership to be transferred under the circumstances referred to in Sections
9.03, 9.04 or 9.05, the value of the Interest being transferred shall be determined as
follows:
a. Valuation of Marketable Assets. Subject to the provisions of subparagraph
d of this section, all assets of the Limited Partnership which have a readily
marketable value (i.e., publicly traded securities, government securities, cash,
etc.) shall be valued at the liquidation value of such assets as of the end of the
month immediately preceding the date of death or the date that the divorce decree
dividing property of the marital estate is entered, as the case may be ("Valuation
Date").
b. Valuation of Real Estate Interest Owned by the Limited Partnership. To
the extent the Limited Partnership owns, directly or indirectly, interests in real
estate, the value of such interests shall be determined as provided in this
subparagraph b. All real estate assets shall be appraised by a mutually agreed
upon licensed independent appraiser familiar with similar properties and the area.
c. Valuation of Other Assets. All assets of the Limited Partnership other
than the assets referred to in subparagraphs a and b above shall be valued at their
respective net book values calculated using generally accepted accounting
principals.
d. Valuation of Proposed Transfers of Interest in the Limited Partnership.
From the sum of the value of the assets of the Limited Partnership determined as
provided in subparagraphs a, b and c above, all liabilities of the Limited
Partnership shall be deducted and the resulting net amount shall be multiplied
times the Partnership Interest of the Proposed Transferor to determine the
purchase price (the "Purchase Price") of such General Partner's or Limited
Partner's Interest.
ARTICLE XI
Payment of the Purchase Price
11.01 Alternative Payment. Should all the General Partners and Limited Partners
electing to purchase the Partnership Interest to be transferred pursuant to 9.03,9.04 or 9.5
(including the Proposed Transferor) be unable to agree on a method of payment of the
Purchase Price,the method of payment thereof shall be as follows:
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a. Down Payment. The Limited Partnership, General Partners and/or Limited
Partners electing to purchase the Interest shall pay within one hundred eighty days
after the Valuation Date (the"Purchase Date") an amount equal to twenty percent
(20%)of the Purchase Price.
b. Balance. The balance of the Purchase Price shall be represented by a
promissory note(s)from the Limited Partnership, General Partners and/or Limited
Partners electing to purchase, with each party executing a note to the Transferor
for such purchasing party's obligation, payable in four (4) equal consecutive
annual principal and interest payments beginning on the first anniversary of the
Purchase Date, which promissory note shall have an interest rate equal to the
prime rate as published in the Wall Street Journal on the Purchase Date.
ARTICLE XII
Additional Partners
12.01 Admission as Partner. From the date of the formation of the Limited Partnership,
any Person or Entity acceptable to the Partners by their unanimous vote may become a
Partner in this Limited Partnership either by the issuance by the Limited Partnership of
Partnership Interests for such consideration as the Partners by their unanimous votes shall
determine, or as a transferee of a Partner's Partnership Interest or any portion thereof,
subject to the terms and conditions of this Agreement of Limited Partnership.
12.02 Financial Adjustments.No new Partners shall be entitled to any retroactive
allocation of losses, income or expense deductions incurred by the Limited Partnership.
The General Partner may,at its option,at the time an additional Partner is admitted, close
the Limited Partnership books (as though the Limited Partnership's tax year had ended)
ARTICLE XIII
Dissolution and Termination
13.01 Dissolution.
a. The Limited Partnership shall be dissolved upon the occurrence of any of
these events
1. By the unanimous written agreement of all Partners; or
2. Any event that under this Agreement of Limited Partnership
requires dissolution of the Limited Partnership;
3. The bankruptcy of a General Partner unless the Limited
Partnership is continued by the consent of a majority of the remaining
General Partners;
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4. The entry of a decree of judicial dissolution of the Limited
Partnership as provided in the TBO Code;or
5. Any event not set forth above that under the TBO Code requires
dissolution of the Limited Partnership.
b. As soon as possible following the occurrence of any of the events
specified in this section effecting the dissolution of the Limited Partnership, the
General Partner shall execute a statement of intent to dissolve in such form as
shall be prescribed by the TBO Code Secretary of State and file same with the
TBO Code Secretary of State's office.
c. Except as expressly permitted in this Agreement of Limited Partnership, a
General Partner shall not voluntarily resign or take any other voluntary action that
directly causes a Withdrawal Event. Unless otherwise approved by the Majority
Vote of Partners, a General Partner who resigns (a "Resigning General Partner")
or whose General Partnership Interest is otherwise terminated by virtue of a
Withdrawal Event,regardless of whether the Withdrawal Event was the result of a
voluntary act by the General Partner, shall not be entitled to receive any
distributions to which the General Partner would not have been entitled had the
General Partner remained a General Partner. Damages for breach of this
subsection (c) shall be monetary damages only, and the damages may be offset
against distributions by the Limited Partnership to which the Resigning General
Partner would otherwise be entitled.
13.02 Effect of Filing of Dissolving Statement. Upon the filing with the Texas
Secretary of State of a statement of intent to dissolve,the Limited Partnership shall cease
to carry on its business, except insofar as may be necessary for the winding up of its
business, but its separate existence shall continue until a certificate of dissolution has
been issued by the Texas Secretary of State or until a decree dissolving the Limited
Partnership has been entered by a court of competent jurisdiction.
13.03 Winding Up Liquidation. and Distribution of Assets. Upon dissolution, an
accounting shall be made by the Limited Partnership's independent accountants of the
accounts of the Limited Partnership and of the Limited Partnership's assets, liabilities,
and operations, from the date of the last previous accounting until the date of dissolution.
The General Partner shall immediately proceed to wind up the affairs of the Limited
Partnership. If the Limited Partnership is dissolved and its affairs are to be wound up, the
General Partner shall:
a. Sell or otherwise liquidate all of the Limited Partnership's assets as
promptly as practicable (except to the extent the General Partner may determine
to distribute any assets to the General Partner and Limited Partners in kind);
b. Allocate any profit or loss resulting from such sales to the General
Partners' and Limited Partners' Capital Accounts in accordance with. Article VII
- 1.9 -
above;
c. Discharge all liabilities of the Limited Partnership, including liabilities to
General Partners and Limited Partners who are creditors, to the extent otherwise
permitted by law, other than liabilities to General Partners and Limited Partners
for distributions, and establish such Reserves as may be reasonably necessary to
provide for contingencies or liabilities of the Limited Partnership (for purposes of
determining the Capital Accounts of the General Partners and Limited Partners,
the amounts of such Reserves shall be deemed to be an expense of the Limited
Partnership);
d. Distribute the remaining assets in the following order:
1. If any assets of the Limited Partnership are to be distributed in
kind, the net fair market value of those assets as of the date of dissolution
shall be determined by independent appraisal or by agreement of the
General Partners. Those assets shall be deemed to have been sold as of the
date of dissolution for their fair market value,and the Capital Accounts of
the General Partner and Limited Partners shall be adjusted pursuant to the
provisions of Article VII and Section 7.03 of this Agreement of Limited
Partnership to reflect such deemed sale.
2. The remainder of cash or assets (at fair market value) shall be
distributed to the Partners in accordance with Section 8.03.
e. Notwithstanding anything to the contrary in this Agreement of Limited
Partnership, upon a liquidation, if any General Partner or Limited Partner has a
Deficit Capital Account (after giving effect to all contributions, distributions,
allocations, and other Capital Account adjustments for all taxable years, including
the year during which such liquidation occurs), the General Partner or Limited
Partner shall have no obligation to make any Capital Contribution, and the
negative balance of the General Partner's or Limited Partner's Capital Account
shall not be considered a debt owed by the General Partner to the Limited
Partnership or to any other person for any purpose whatsoever .
f. Upon completion of the winding up, liquidation, and distribution of the
assets,the Limited Partnership shall be deemed terminated.
g. The Limited Partnership shall comply with any applicable requirements of
applicable law pertaining to the winding up of the affairs of the Limited
Partnership and the final distribution of its assets.
13.04 Articles of Dissolution.When all debts, liabilities, and obligations have been paid
and discharged or adequate provisions have been made therefore and all of the remaining
property and assets have been distributed to the General Partners, articles of dissolution
shall be executed in duplicate and verified by the person signing the articles, which
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articles shall set forth the information required by the TBO Code. Duplicate originals of
the articles of dissolution shall be delivered to the Texas Secretary of State.
13.05 Certificate of Dissolution. Upon the issuance of the certificate of dissolution,
the existence of the Limited Partnership shall cease,except for the purpose of suits, other
proceedings, and appropriate action as provided in the TBO Code. The General Partner
shall have authority to distribute any Limited Partnership property discovered after
dissolution, convey real estate, and take such other action as may be necessary on behalf
of and in the name of the Limited Partnership.
13.06 Return of Contribution Nonrecourse to Other General Partners. Except as
provided by law or as expressly provided in this operating Agreement, upon dissolution,
each General Partner and Limited Partner shall look solely to the assets of the Limited
Partnership for the return of its Capital Contribution. If the Limited Partnership property
remaining after the payment or discharge of the debts and liabilities of the Limited
Partnership is insufficient to return the cash contribution of one or more General Partners
or Limited Partners, the General Partners and Limited Partners shall have no recourse
against any other General Partner or Limited Partner.
ARTICLE XIV
Miscellaneous Provisions
14.01 Notices. Any notice, demand, or communication required or permitted to be
given by any provision of this Agreement of Limited Partnership shall be deemed to have
been sufficiently given or served for all purposes if delivered personally to the party or to
an executive officer or manager of the party to whom the same is directed or, if sent by
registered or certified mail, postage and charges prepaid, addressed to the General
Partner's, Limited Partner's and/or Limited Partnership's address, as appropriate, which is
set forth in this Agreement of Limited Partnership, any such notice shall be deemed to be
given three business days after the date on which the same was deposited in a regularly
maintained receptacle for the deposit of United States mail, addressed and sent as
aforesaid.
14.02 Books of Accounts and Records. Proper and complete records and books of
account shall be kept or shall be caused to be kept by the Limited Partnership in which
shall be entered fully and accurately all transaction and other matters relating to the
Limited Partnership's business in the detail and completeness customary and usual for
business of the type engaged in the Limited Partnership. The books and records shall be
maintained as provided in Section 8.07 above. The books and records shall at all times be
maintained at the principal executive office of the Limited Partnership and shall be open
to the reasonable inspection and examination of the General Partners, Limited Partners,
or their duly authorized representatives during reasonable business hours.
14.03 Application of Texas Law. This Operating Agreement, and the application of
interpretation hereof, shall be governed exclusively by its terms and by the laws of the
State of Texas, and specifically the 1130 Code.
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14.04 Waiver of Action for Partition. Each General Partner and Limited Partner
irrevocably waives during the term of the Limited Partnership any right that it may have
to maintain any action for partition with respect to the property of the Limited
Partnership.
14.05 Amendments. This Agreement of Limited Partnership may not be amended
except by the unanimous written agreement of all of the General Partners.
14.06 Execution of Additional Instruments. Each General Partner and Limited Partner
hereby agrees to execute such other and further statements of interest and holding,
designations, powers of attorney, and other instruments necessary to comply with any
laws, rules,or regulations.
14.07 Construction. Whenever the singular number is used in this Agreement of
Limited Partnership and when required by the context, the same shall include the plural
and vice versa, and the masculine gender shall include the feminine and neuter genders
and vice versa.
14.08 Headings. The headings in this Agreement of Limited Partnership are for
convenience only and are in no way intended to describe, interpret, defame, or limit the
scope,extent,or intent of this Agreement of Limited Partnership or any of its provisions.
14.09 Waivers. The failure of any party to seek redress for violation of or to insist upon
the strict performance of any covenant or condition of this Agreement of Limited
Partnership shall not prevent a subsequent act, that would have originally constituted a
violation, from having the effect of an original violation.
14.10 Rights and Remedies Cumulative. The rights and remedies provided by this
Agreement of Limited Partnership are cumulative and the use of anyone right or remedy
by any party shall not preclude or waive the right to use any or ail other remedies. Said
rights and remedies are given in addition to any other rights the parties may have by law,
statute,ordinance or otherwise.
14.11 Severability. 1f any provision of this Agreement of Limited Partnership or its
application to any person or circumstance shall be invalid, illegal or unenforceable to any
extent, the remainder of this Agreement of Limited Partnership and its application shall
not be affected and shall be enforceable to the fullest extent permitted by laws.
14.12 Heirs, Successors and Assigns. Each and all of the covenants, terms, provisions
and agreements contained in this Agreement of Limited Partnership shall be binding upon
and inure to the benefit of the parties hereto and, to the extent permitted by this
Agreement of Limited Partnership,their respective heirs, legal representatives,successors
and assigns.
14.13 Creditors. None of the provisions of this Agreement of Limited Partnership
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shall be for the benefit of or enforceable by any creditors of the Limited Partnership.
14.14 Counterparts. This Agreement of Limited Partnership may be executed in
counterparts, each of which shall be deemed an original but all of which shall constitute
one and the same instrument.
14.15 Rule Against Perpetuities. The parties to this Agreement of Limited
Partnership intend that the Rule against Perpetuities (and any similar rule of law) not
apply to any provisions of this Agreement of Limited Partnership. However,
notwithstanding anything to the contrary in this Agreement of Limited Partnership, if any
provision in this Agreement of Limited Partnership would be invalid or unenforceable
because of the Rule Against Perpetuities or any similar rule of law but for this section,
the parties to this Agreement of Limited Partnership hereby agree that any future interest
which is created pursuant to said provision shall cease if it is not vested within 21 years
after the death of the survivor of the group composed of the General Partners and Limited
Partners identified on Exhibit B and their issue who are living on the date this Agreement
of Limited Partnership and their issue, if any, who are living on the effective date of this
Agreement of Limited Partnership.
14.16 Investment Representations. The parties to this Agreement of Limited
Partnership agree as follows with respect to investment representation.
a. The undersigned General Partners and Limited Partners, if any understand:
I. That the Partnership Interests evidenced by this Agreement of
Limited Partnership have not been registered under the Securities Act of
1933, 15 U.S.C. 15(b) et seq., or any other state securities laws (the
"Securities Acts") because the Limited Partnership is issuing these
Partnership Interests in reliance upon the exemptions from the
registrations requirements of the Securities Acts providing for issuance of
securities not involving a public offering;
2. That the Limited Partnership has relied upon the fact that the
Partnership Interests are to be held by each General Partner and Limited
for investment; and
3. That exemption from registration under the Securities Acts would
not be available if the Partnership Interest were acquired by a Partner with
a view to distribution.
b. Accordingly,each General Partner and Limited Partner hereby confirms to
the Limited Partnership that the General Partner and Limited Partner is acquiring
the Partnership Interests for the General Partner's and Limited Partner's own
account for investment and not with a view to resale or distribution.
1. Each General Partner and Limited Partner agrees not to transfer,
-23 -
sell or offer for sale any portion of the General Partnership interests or
Partnership Interests unless there is an effective registration or other
qualification relating thereto under the Securities Act of 1933 and under
any applicable state securities laws or unless the holder of General
Partnership Interests or Partnership Interests delivers to the Limited
Partnership an opinion of counsel, satisfactory to the Limited Partnership,
that the registration or other qualification under the Securities Act of 1933
and applicable state securities laws is not required in connection with the
transfer, offer or sale.
2. Each General Partner and Limited Partner understands that the
Limited Partnership is under no obligation to register the General
Partnership Interests or Partnership Interest or to assist the General Partner
or Limited Partner in complying with any exemption from registration
under the Acts if the General Partner or Limited Partner should at a later
date wish to dispose of the General Partnership Interest or Partnership
Interest.
3. Furthermore, each General Partner and Limited Partner realizes
that the General Partnership Interests and Partnership Interests are unlikely
to qualify for disposition under Rule 144, 17 C.F.R. §230.144 (1992) of
the Securities and Exchange Commission unless the General Partner is not
an "affiliate" of the Limited Partnership and the General Partnership
Interest or Partnership Interest has been beneficially owned and fully paid
for by the General Partner or Limited Partner for at least three years.
c. Before acquiring the Partnership Interests, each General Partner and
Limited Partner has investigated the Limited Partnership and its business and has
had made available to each General Partner and Limited Partner all information
necessary for the General Partner or Limited Partner to make an informed
decision to acquire the Partnership Interest. Each General Partner and Limited
Partner considers itself to be a person possessing experience and sophistication as
an investor adequate for the evaluation of the merits and risks of the General
Partner's or Limited Partner's investment in the Partnership interest.
-24-
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR CLLVP PHASE II,LP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
GENERAL PARTNER:
SOUTHCORP LLC
a Texas limited liability c ` pany
By: f r .E
W.L. Sisson,Manager
3401 Allen Parkway, Ste 200
Houston, Texas 77019
Initial Capital Contribution: (see Exhibit B)
Initial Partnership Interest: (see Exhibit B)
-25 -
Mar 02 10 02:42p Kevin L. Reid 630-276=3700 p.1
From:Ti tan 10:918302783700 03/01/2010 15:58 ;x107 P.002/003
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR CLLV P PHASE H,LP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth bereinabove.
LIMITED PARTNER
Reid Invesimen Inc. �- _
By:
Kevin L.Reid,President
6300 Riverside Plaza Lane NW,Suite 220
Albuquerque,New Mexico 87120
Taxpayer[denti6cation Number:85-0484066
Initial Capital Contribution:(see Exhibit B)
Initial Limited Partnership Interest:(see Exhibit B)
•
26
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR CLLVP PHASE II,LP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
LIMITED PARTNER
Ben F. Spencer
6300 Riverside Plaza Lane NW, Suite 200
Albuquerque,New Mexico 87120
Social Security Number: 585-42-2201
Initial Capital Contribution: (see Exhibit B)
Initial Limited Partnership Interest: (see Exhibit B)
-27 -
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR CLLVP PHASE II,LP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
LIMITED PARTNER
Address
Address
Social Security Number:
Initial Capital Contribution: (see Exhibit B)
Initial Limited Partnership: (see Exhibit B)
-28 -
1
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR CLLVP PHASE II,LP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
LIMITED PARTNER
David R. Hillman
�_
710 Cinnamon Oak Lane
Houston, Texas 77079
Social Security Number: 450-47-0016
Initial Capital Contribution:(see Exhibit B)
Initial Limited Partnership Interest: (see Exhibit B)
-29 -
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR CLLVP PHASE H,LP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
LIMITED PARTNER J
Wilbert L. Sisson `
11
( f2 /i
( ,
11A . ady Lane
Houston, Texas 77063
Social Security Number: 453-86-1254
Initial Capital Contribution: (see Exhibit B)
Initial Membership Interest and Economic Interest Percentage: (see Exhibit B)
-30 -
THIS PAGE INTENTIONALLY BLANK.
-31 -
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR CLLVP PHASE II,LP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
LIMITED PARTNER
itpau
Address 0 Lacetiact &rl
Address !-"t 770 z --
Social Security Number: /*OZ-W`19
Initial Capital Contribution: (see Exhibit B)
Initial Limited Partnership Interest: (see Exhibit B)
-32 -
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR CLLVP PHASE II,LP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
LIMITED PARTNER
Com`""t t A..
Address
Address
Social Security Number:
Initial Capital Contribution: (see Exhibit B)
Initial Limited Partnership Interest: (see Exhibit B)
-32 -
THIS PAGE INTENTIONALLY LEFT BLANK
-33 -
1 P
EXHIBIT A
- 34-
Exhibit A
�
J 0 N E S & C A RTE R, r NC. 1716 Briarcrest Dr.,Suite 160 TEL 979 731 8000
JENGINEERS•PLANNERS•SURVEYORS Bryan,Texas 77802-2776 FAX 979 846 2893
ROSENBERG AUSTIN
SAN ANTONIO DALLAS
THE WOODLANDS HOUSTON
BRYAN/COLLEGE STATION BRENHAM
Texa.v Board of Professional Engineers Registration No.F-439
Valley Park Center Joseph Scott League
Lot 2R Abstract No. 50
2.240 Acres December 29, 2009
STATE OF TEXAS §
COUNTY OF BRAZOS §
A METES AND BOUNDS description of a 2.240-acre tract of land, being all of Lot 2 and
a portion of Lot 3 of "Valley Park Center", a plat of said subdivision being recorded in
Volume 7675, Page 282, of the Official Public Records of Brazos County (O.P.R.B.C.), in
the Joseph Scott League, Abstract 50, College Station, Brazos County, Texas said
2.240-acre tract being more particularly described as follows (all bearings being based
on the plat of said "Valley Park Center"):
BEGINNING at a "Mag" nail with washer found in a concrete driveway in the
southwesterly right-of-way line of F.M. Highway 2818 at the north corner of said Lot 2
common with the most easterly corner of Lot 1 of said "Valley Park Center";
•
THENCE, along the southwesterly right-of-way line of said F.M. Highway 2818 and the
northeasterly lines of Lot 2 and Lot 3, as follows:
South 39°50'28"East, 79.72 feet, to a concrete monument found for corner;
South 35°43'32" East, at 91.29 feet, pass the common lot corner between said Lot 2 and
said Lot 3, and continue in all a distance of 179.32 feet, to a 5/8-inch iron rod with
"Jones & Carter, Inc." cap set for the most easterly corner of the herein described
tract;
THENCE, South 44°31'00" West, 345.73 feet, leaving the southwesterly right-of-way line of
said F.M. Highway 2818 and the northeasterly line of said Lot 3 and severing said Lot 3,
to a 5/8-inch iron rod with "Jones & Carter, Inc." cap set for the most southerly corner of
the herein described tract in the southwesterly line of said Lot 3, said corner also being
in the northeasterly line of called 18.481-acre tract described in a deed to the City of
College Station, Texas, recorded in Volume 7488, Page 273, of the O.P.R.B.C.;
THENCE, North 45°29'00"West, along the southwesterly line of said Lot 3, said Lot 2, and the
northeasterly line of said called 18.481-acre tract, at 124.78 feet, pass the corner common to
said Lot 3 and said Lot 2, and continue in all a distance of 217.66 feet, to a 5/8-inch iron rod
with "Jones & Carter, Inc." cap found for the most southerly southwest corner of said Lot 2
and the most southerly corner of said Lot 1;
S:\0-JOB1C0009 Southcorp Realty\C0009-011 CS Valley Park Phase 2\Survey\Docs1M&B Lot 2R 12-29-2009.doc Page 1 of 2
Smart Engineering.Smart Solutions.`" www.jonescarter.com
r JONES & C A R T E R,INC
ENGINEERS•PLANNERS•SURVEYORS
THENCE, long the northwesterly lines of said Lot 2 common with the southeasterly lines
of said Lot 1, as follows:
North 14°07'15" East, 136.40 feet, to a "Mag" nail with washer found in a concrete
driveway for corner, and
North 51°04'21" East, 268.06 feet, to the POINT OF BEGINNING, containing 2.240
acres (97,556 square feet) of land in College Station, Brazos County, Texas.
or
�
�
L.SRRY E:DELANGEU't.'kif‘.
Larry P. DeLange, RPL PN
Texas Registered Professional Land Surveyor No. 4578
S:\O-JOB\C0009 Southcorp Realty\C0009-011 CS Valley Park Phase 2\Survey\Docs\M&B Lot 2R 12-29-2009.doc Page 2 of 2
EXHIBIT B
SUMMARY OF INITIAL PARTNERS
General Partner Initial Initial
Capital Contribution Partnership Interest
Percentage
Southcorp LLC $0.00 0%° (Non-Economic)
Limited Partners Initial Initial
Capital Contribution Partnership Interest
Percentage
Ben F. Spencer $ TBD TBD based on contrib
Reid.Investment, Inc. $ TBD TBD based on contrib
David R. Hillman $ TBD TBD based on contrib
Wilbert L. Sisson $ TBD TBD based on contrib
Bobby Hillin Jr. $ TBD TBD based on contrib
Michael J. Maloney $ TBD TBD based on contrib
- 35 -
•
04/13/2010 09:16 9793614125 COUNTY CLERK PAGE 01
:'•li,.&t..tTUR,N TO: 00787468 OR 48181 198
"l?,?JS CCUSTYAr QC,COMPANY
=; 13Lfli o1 R d er•
eScLARATIMPF COVENANT6 Fge RRR CTXON7
. TES STATE OF TEXAS
RNOW ALL MEN 9Y THESE PRESENTS:
COUNTY OF 9RTZOS
•
This Agreement is made as of this the alaii day of AUGUST, 2002,hy the
undersigned, POR N )A O0IN1 SRN, a Texas Joint Ventura, composed of
'Interstate Promotional Printing Company, a Te>aas corporation, Philip Springer,
M. D. (Rod) Cashion, Peter and Norma Van Vail V1ec]c=ring Trust, 4a4 F. Garrett
Walsh (hereinafter referred to as ``POR NNW) and SOUTECORP EOAD73`TOS T, L.P., a
Texas limited partaaexahip, by and through its General Partner, B04THCORP RF
RpPtSORs, 33aC., a Texan corporation (hereinafter'referred to a: "SOOTRCOStP").
w s T S E S S E T
wEERBAS, pox NADA on the data of thio inetrumeat hao conveyed unto
BooTECoRP all o!' chat certain. 2.00 acres tract or parcel of land, more
particularly described on Exhibit "A", out oE1i.63 acros trace of land, more
particularly described ou=chibit "W att.sched hereto and made a part.hereof; and
WI'EREAS, for the consideration hereinafter eacpressed, SOUTMCO P agrees to
place certain covenants and restrictions on the 2.00 acre tract db.Zexi.bed on
Exhibit 'A". '
NOW TREREFORE, for and in conoidoro:tion of the premises, and for and in
consideration of POR NADA selling the Troperty described on Exhibit "A" to
SOCIRCORP and entering into that certain "Option Contract And Agreerseat" dated
August 31, 2001, and amendments thexoto, and other good and valuable
consideration, the receipt and suffiticney of which is hereby acknowledged, it
Cmy Pgatyno telpge.2keaccie5Ie'otoavrnm5 as raclaiautvpd
04/13/2010 02:16 9793614125 COUNTY CLERK PAGE 10
Om a74€d CR 461Q8� 1 2079
METES An BOUNDS DESCRIPTION
OF A
11.63 ACRE TRACT
,1.E SCOTT LEAGUE,ABSTRACT NO.50
COLLEGE STATION,BRAZOS COUNTY,TEXAS
Metes and bounds description of all that certain 11.63 acre r-act or parcel of land,lying and
being situated in the J.E.Scott League,Abstract No.50,College Station,Brazos County,Texas
and being all that same 11.63 acre tract conveyed from.John 1)Hoerner,aux.,to interstate
Promotional Printing Company to PotNadaSoittt Venture,as described by deed recorded in
Volume 474 PAGE 811 of the Deed Records of Brazos County,Texas,said I 1.63 acre tract
being more particularly described as follows:
•
$EQ NN-NG at a 4"x4"square concrete monument with a broken top,found marking the west
corner of said 11.63 acre tract.
k' NCE N 44°49'58"1r-424.96 feet with the northwest line of said 11.63 are tract and
generally with an existing fence line.to a 4"iron rod set for corner.and lying in the southwest
right-of-way line of PM 2313.also known as Harvey Mitchell Parkway;
THENCE S 42°25'09"E-187.17 feet with said right-of-way lane to a TexDOT standard
concrete right-of-way monument found for angle point; •
THENCE S 39°50'26"E-399.77 feet with said right-of-way line to a TexDOT standard
concrete tight-of-way monument found for angle point;
THENCE S 35°42'S2"E—101.44 feet with said right-of-way line to a TexDOT standard
concrete right-of-way monument found for angle point;
JENCE S 23°21'3r E-552.01 feet withsztid right-of-way tine to a Te,'cDOT standard
concrete right-of-way monument found for angle point;
:,IMENcE S 10°36' 10"B-251.74 feet with said right-of-way line to a'/^_"iron rod set for
comer.A TexDOT standard concrete right-of-way monument found for angle point bears S 10°
36'10"E-435.07 feet;
'HENCE N 45°36'49"W-1154.20 feet with the southwest line of said tract to an 8"
diameter elm tree found for angle point;
oca637-cos(3s4n)
Exllihit'' • •B
P i of Paps
� ... •
•
04/13/2010 08:16 9793614125 COUNTY CLERK PAGE 11
DGC V PEI
THENcE N 45° 19'08"W-562,54 feet with said southwest line toatd9$?zhGS ££. Goes
containing 11.63 acres of land. 7$b 70:Y46 50 4'P)Q aO"
May 2002
Municipal Development Group
College Static;Texas
Surveyed by:. 57
A.W.Kessler
R3.L.S.No.1552
0.`
< 9 �
. Si tE =1'
Filed or Recant int
BROM CONY
Oa:Rng 29,2062 At t1i06A
Ps a
Rec rdin s
11ocuwo t{1R1 P1 08767468
Foot 26.63
Receipt Naaber—201666 •
Sylvia Palaasky
SIM tf MIS talrf
WIrmsert vas
filed athe�datee b alit I*this
herrnlq
• and xts dnly rezused la the sa ase ad gar
of the sand recoils DIMMR
as stuffed Orem by it.
Aug 29,,2@®2
• 168121,mllQl'WM
3311135
•
•
O0OG87.4.05(3540)
Exhibit" 2)
R aef .. Pages
r ;
PILL&RETURN'T0: OO921447 Bk 723 ,
BRAZOS COUNTY ABSTRACT COMPANY
9FI .z9s3-Iv& ) a(7
First Amendment to
Declaration of Covenants and Restrictions
This FIRST AMENDMENT TO DECLARATION OF COVENANTS AND
RESTRICTIONS (this"First Amendment")is dated March 29,2006 by TITAN
VALLEY PARK,LIMITED PARTNERSHIP,a New Mexico limited partnership
being the sole owner of the Property(described hereinbelow)subject to the Covenants
(described herein below).
Recitals
A. A Declaration of Covenants and Restrictions dated August 2,2002
Document Number 00787468,Book OR,Volume 4818,Pages 198-208(the
"Covenants")is filed against and binding upon the real property described on Exhibit A
attached hereto (the"Property").
B. As permitted by the Covenants, Titan Valley Park,Limited Partnership
hereby wishes to amend the Covenants as set forth below.
C. For good and valuable consideration,the receipt of which is hereby
acknowledged,the parties agree as follows.
Agreement
1. Amendment to Permitted Uses. The Permitted Use shall be amended to
any lawful use permitted by applicable federal,state and municipal ordinances and/or
regulations as may be amended from time to time.
2. No Further Amendment. Except as modified herein,the Covenants shall
remain in full force and effect.
IN WITNESS WHEREOF,the parties have executed this First Amendment as
of the date first set forth above.
TITAN VALLEY PARK,LIMITED PARTNERSHIP
a New Mexico limited partnership
By: Titan Development of Texas,LLC,
its general partner
Ben F.Spencer,Manager
1
J.
04/13/2010 03:16 9793614125 COUNTY CLERK PAGE 02
tro
00707466 OR 48181 1598
.fear rrtrra.3fn
e nu rrv"....mwr 1.44ZAn":
is declared and agreed to by POR J>1AB.1 sed SOtT173CORP thfit: t.hr. 2.00 n<:re n conveyed
to SOu'SLTCORP out or the 11.63 acres and the remainder of the 11.63 acres, being
9.63 acres (cumulatively herein referred to ae the "PsooenIy" now owned by POR
NAM aha11 be owned, uaeci, occupied, held, sold and conveyed subject to t.2sn
following covenants and restrictions:
The Preporty or any part or partion thinrcoi *heal be used solely for these
"Permitted Uees" described in Section 7, Paragraph 7.13 entitled "niC,ttrict 0 1
C7cncral Commercial". Subparagraph B. entitled "Permitted uses" of the city of
College station Zoning Ordinance NO. 1.63g a2 adopted on March 13. 1926 and
rovisod thru February loop. Provided. however, any provision contained in this
agrccment to the contrary notwithstanding, there is excluded from sold
Subparagraph k lint of "Permitted t7eee" 'Other uses will be considered by tl,e
Commission". Provided further, it in declared and agreed that the Property
described on Exhibit "A" and Exhibit "II' shall not be used for a cemetery.
mausoleum, crematory, or any such related purposes, or as an entrance.
entranehway, or en arenrn to or ingress and egress to and from a cemetery,
mausoleum, crematory, or related pureoeca.
wxcept an p4.11rrwi:te provided, any owner or owners of the property described
on Exhibit "A" and Exhib.iF. "P." shall have the right to enforce, by any proceeding
at law or in equity, the covenants and restriction* .Imposed by this Declaration
of Restrictive Covenants. Failure to enforce any covenant or restriction shall
not be deemed a waiver of the .right of enforcement, either with respect to the
violation in question or any other violation. 411 waivers must be in writing ane
aaignvd by she owner° and parties to be bound.
OIMY cAtyr.eac\Pp.7.'.. W QC:Srwoe of((POW*Nria Tvarktkrocv.'Pd 2
a.
04/13/2010 08:16 9793614125 COUNTY CLERK PAGE 03
0;7787468 OR 48 oc Sk Vo 81 2009
11c,�r 11117;•2611
ammuCzzvr cm:la R:A17 cccorr
These restrictions and covonontc shall run with the real property, shall
be permanent and porpetual, and shall be binding on all parties having any right,
title or interest in the Property, in whole or in part, and their heirs,
successors and assigns. these covenants, conditions and restrictions shall sloe
be for the benefit of the Property, each pert or portion thereof, and each owner
of said Property or a pant or portion thereof. ltiiorcement of these covenants
and rr,.etri, tions shall be by any proceeding at law or in equity against any
person or persons violating or attempting to violate any covenant or restriction,
either to restrain violation or to recover damages.
If any punctuation, word, clause, Sentence, or provision necessary to givo
Meaning, validity, or si:foct to any other word, clause, sentence, or provision
appearing in this Declaration shall bo omitted herefrom, then it is hereby
declared that such omission was =intentional and tbst the omitted punctuation,
word, clause, sentence or provision shall be supplied by inference.
The singular, wherever used herein, shall be construed to mean the plural,
when applicable, and the necessary grammatical changes required to make the
provisions hereof apply either to corporations or individuals, male or females,
shall in all cases be assumed n.e though in each case fully expressed.
Invalidation of any one or more of the covenants, restrictions, conditions
or provisions contained is this Declaration, or any part thereof, *hall in no
manner affect any of the other covenants, restrictions, conditions, or provisions
hereof, which shell remain in full force and effect.
Cab,Pllm12., ta1Ppr26{1drotandoR o:tvrcnquaand nbRkr:om.pd 3
04/13/2010 08:16 9793614125 COUNTY CLERK PAGE 04
00787488 OR 48k L8�801
snc,u nencs(.4)
S1t972CTCTTY71
CON AG EZMIN:
If any controversy, claim, or dispute arises relating to this inf,:tz-uttczt,
its breach, Or P.ntorcement, the prevailing party shall he entitled to recover
from they losing perby reasonable expenses, attorneys• fees, and coats.
The covenants rnd raatrietions of this Agreement may be amended or waived
Y:y an instrument signed by all owner= of sli the property described on Exhibit
"A^ and kxhjbit "8" and any amendment = waiver sboll be effective when recorded
in the official Accords of the county Clerk's office of 'Rcsros County, Texnr..
Executed tz),is the. ;Le day of UO2, to be effective as
of the date fi_ct written above.
POR NADA sOZNW ORNTORT,
a Texas Joint vcAturc
DY JOINT vENTCABAS:
INTERSTAXs PRomottogA7. PP.T.N IONN COMPANY,
A Texan corporation
Name: 5 JE SITS
Title Yroaid t
•
P Tay
.//' • ia.. ' •••••
M. A. CASFIION
PETER AND DONNA VAN VLTaCX =VIM TRVST
Name: DONNA vANCK /
Title: Trustee and Individually
bY:
WAINZ/s� and Attorney-in-Fact
for DONNA vag vxsczc
C:\}.1y Slag\Lynattm\FWPMrdaratlon Alsmrit rwAeulomi.wtd 4
,•
04/13/2010 08:16 9793614125 COUNTY CLERK PAGE 05
k Vo
00787468 OR 48181 ma
Pg
nrA,;z tlsrawto
Irscnacrrm=maw:ACUMEN"
f: iliocal-04“.
F. GARP sT WALSH
by.
NAODAlt4r114eiit.
YNg t Agent and Attorney-3o-Fact
for X. GTT 47r Lva
SOIITFtCOrYP HOLDINGS T. Z.?.,
a Texas limitod partnership
, by its GenerL Partner:
soUT$CORP 'j'•+ TT ADVISORS, X C.,
a'T• as corporation
•
w: 44 .
Vane:, W. • . SISSON'
Titlo: President
T2E STAIN OP ..r4S .
Corm.'S, of _f zutg
s impt=umortt was acknowledged before me on this the e2, day of
, 2002, by WAY7� SMITE, President of TNTTATTA.T8 PROMOTIONAL PATarTNG
ANY, a Texas corporation, as .7oisft venturor of POR NADA SonTr 9ffiNTURlti, to
Texas .pint venture, on behalf of said Soiat venture and in the capacity therein
stated. ,
[.! #4 ird Z i..
Ale' rms RY,PDPL/ in •d for
`�j 14L7AMOROAN The State%of Te
II
•
C!My FdaV.ynm4,,,R91d..aaadpn of emus=are rtesaiw.../.: 5
04/13/2010 02:16 9793614125 COUNTY CLERK PAGE 06
Doc Bk Vol pR
00787468 OR 4818 203
PM:r torr:.70d
TOE STAT: OF ,
COUNTY OF •.R,¢ril?.LL5
This instrument was acknowledged before me on this the ..Q _ day of
2002, by PEZLXR BPRZ" . at: Joint Venturer of POR NADA .701-NT•URE, a Texas Joint Venture, on behalf of said Joint Venture and in the
capacity therein stated.
- , �.TaR� -vszlc tax
^ala LIERAMOXIA0 The Stat. of 1•rx >
ir i wcomwmoNtomt3
04 1,823,200,5
TAE STATE OF [4�4�
=NTT OF ..G_ Q>c
his instrument woo acknowledged before me on this the 02 day of
L1 2002. by X, L. C SHx0N, as Joint. VcuLurer ut POR NADA,JOINT vZSTURN,
Texas Joint venture, on behalf Of Said ani.nt Venture .and in the capacity
herein stated. ,
y- rf emim62ronrx rW: NOTAR pU7•lt,.'fC in C�/d For
w`•..' �� Thee ate of Te
7005
TrIE STATE OF -C •
coUNTY or _6410pS
his instrument was acknowledged before me on this the o?� day of
2002, by WAYPZ S2IITE, Ji9ent sad ALLornmy-in-Fact for DONNA VA200'L1Gclr:,
a Trustee and Individually DJ: Lbe PETER AND DONN7 VAN VLECX LIVING TRUST. as
Joint Venturer Of ?OR NADA JOXN'l vEN'TeR2, a Texas Joint Venture. on behalf of
;rein aoint Ventire and in the Capacity therci.n stated.
NOTARY POB / 'ill
/
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04/13/2010 08:16 9793614125 COUNTY CLERK PAGE 07
00787468 OR 431,3e04g
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PPa,3L (47,8-344
PP-F7470771! ACMICFrealr
i rte' STAIR OF NQS
COMITY OF 0V S
1)+34; instrumeat wag acknowledged belorc me, oa thin the day o£
u , 2002, by Whr"h-E SR:C , Agent and Attorney-in-Fact. £oz F. GAM=WALMS, as aoi t Venturer of ?OR NADA SOYNTJC IMMTORE, a Tcxar, Joint venture, on
behalf o£ said pint Venture and in the capacity the_wip, at ted.
454 13NVP MORSAN
gIf ` rArG0 1 HES NOT PURL ' i and kax
4 YWt
' The State o T sR
SB STATE OF MA54.4 •
cowry of 46r,e2e/QS
This instrument owns acknowledged before mo on this the rg__ day of
2002, by W. L. szssoN, President o£8ott7 acoRP RLALTX UMXSTORS, Tfc.,
a orporation, General Partner of gauxEcoRP SOLDING2 I. L.P., a Te?:a73
.ima.ted partnership, on behalf of SOIITSCORP ROX=nCS X, L.P.• a Texan limited
partnership, and in the capacity therein stated.
NO ARY LIC i as £os
,4 OA
UNMORGAN The SCate of '%7t.^,
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04/13!2010 08:16 9793614125 COUNTY CLERK PAGE 08
Rk
00787468 OR 4810 2058
=Rag (0141,704)
„wttraCT n,M'.wANr ARSW.L'3VT
TSB STATE OF 2 :
COtNTY of . 44 _. .
Th a inatrunent was acknowledged before me on this the :4 dray of
, 2002, by RAYNE =ITN. Agcs.t. and .Attorney-in-Fact for F. GARRE2T
V, as Joint Venturer of FOR NADA JOINT vENTIIRE, a Texas Joint Venture, on
behalf or said Joint Venture and in the capacity therein. stated.
,h"h»t L1NDA1dG7)"AN TAR" FOBLI_ i nod fox
ilk)
MY 23p WIPES The S ate of 2'C S
TSE SATE OF (A.S ••
CO TY OF ,t4d _,. :
Th+s instrument waa acknowledged before me on this the day of
, 2002, by W. L. SISSON, Prersi.dcnt of FSOOTHCORP REALTY ADVISORS, X C.,
a exas corporation, San*ral Partner of SOVTDCORP VOLD227GS X, L.P., a Texas
limited partaerrhi,, on behalf of SODTSCORP HOLDINGS 1, L.R., a Texas 1iwitcci
partoOrsbi.p, and in the capacity therein =tatod.
,��:.,, U:ili latf NOTARY PURL= in nil for -�
NY COrvRAb81IXJ EXP�R
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04/13/2010 08:16 9793614125 COUNTY CLERK PAGE 09
Doc Bk Vol Pg
S AND BOUNDS DESCRIR" ra 7468 OR 481.8 ee6
METEOF A
2.00 ACRE TRACT
J.E SCOTf LEAGTJE,ABSTRACT NO.50
COLLEGE STATION BRAZOS COUNTY,TEXAS
Metes and bounds description of all that certain 2.00 acre tract or parcel of land,lying and being
situated in the J.E.Scott League.AbstraetNo.50,College Station;Brazos County,Texas and
being a portion out of that same 11.63 acre tract conveyed from Interstate Promotional Printing
Cotnpary to Por Nada Joint Venture,as described by deed recorded in Volume 474 PAGE 811
of the Deed Records of Brazos County,Tomas,said 2.00 acre tract being more particularly.
described as follows:
BEGINNING at a 4"x4"square concrete monument with a broken top,found marking the west
comer of said 11.63 acre tract.
't-zi..NCE 2ti 44°49'58"E-424.96 feet with the northwest line of said 11.63 acre tactand
generally with an existing fence file,to a W'iron rad set for corner,and lying in
thwest
right-of-way line cif PM 2813,also known as Harvey Mitchell Parkway;
THE`;CE S 42°25'09"E-187.17feeett with said richt.of-way line to a TexDOT standard
concrete right-of-way monument found for angle point
'1 ti CE S 39°50'26"E-20.72 feet with said right-of-way line to a V"iron rod set for
corner.
TMNCE S 44°49'58"'77.-413.52 feet moss said 11.63 acre tact a W'iron rod set for comer
in the southwest line, An S"diameter elm tree found for angle point in said line beats S 45°19'
08"E-354.96 feet.
THENCE N 45° 19'03"W.Z . acres oftsaid
southwest line to the PLACE OF
j3EG Ni 1NG,and containing 2.00
d.
•
May 2002 '
Municipal Development Group
College Station,Texas
Surveyed by: _ d .6"-2t-OZ
A. J.Kessler
RP.L.S.No.1852
U AP�v, 9Fti7
t'C :.
' A.11� si KESSL,ER:e
'Ory 1352 tea;Qi c i
0006174„onm-o)
Paga __i of_..,L_ 'taus
Brazos County Abstract Company
"More than 130 Years of Title Service"
P.O. Box 4704 Phone: (979)731-1900 3800 Cross Park Drive
Bryan, TX 77805-4704 Facsimile: (979)731-8352 Bryan, TX 77802
BCAC GF NO. 149277
Title Report Prepared September 10, 2010
for
MR. DAVID HILLMAN
SOUTHCORP REALTY ADVISORS, INC.
3401 ALLEN PARKWAY, SUITE 200
HOUSTON, TEXAS 77019
Brazos County Abstract Company
"More than 130 Years of Title Service"
EFFECTIVE DATE: September 8, 2010 at 8:00 a.m.
GF NO. 149277
PROPERTY DESCRIPTION:
Being all those certain lots, tracts or parcels of land lying and being situated
in Brazos County, Texas and being Lots One (1), Two (2), Three (3) and
Four (4), VALLEY PARK CENTER, an addition to the City of College
Station, Texas, according to plat recorded in Volume 7675, page 282,
Official Records of Brazos County,Texas.
TITLE APPEARS TO BE VESTED IN:
TITAN VALLEY PARK, LIMITED PARTNERSHIP
by Warranty Deed from Por Nada Joint Venture, dated September 21, 2005, recorded in Volume
6976,page 226, Official Records of Brazos County,Texas. (Part of Lot 3 and all of Lot 4);
CPFPCS,LLC
by Warranty Deed from Titan Mac Valley Park 1, L.P., dated July 13, 2007, recorded in Volume
8104, page 135, and corrected in Volume 8155, page 48, Official Records of Brazos County,
Texas. (Lot 1);
and
CLLVP PHASE II, LP, a Texas limited partnership
by Warranty Deed from Titan Valley Park, LP, dated May 27, 2010, recorded in Volume 9661,
page 205, Official Records of Brazos County,Texas, (2.24 acres aka Lot 2 and part of Lot 3)
SUBJECT TO:
1. LIENS: (A) Deed of Trust, Security Agreement - Financing Statement dated July 12,
2007, executed by CPFPCS, LLC to Jimmy R. Locke,Trustee, securing one
note of even date payable to The Frost National Bank, in the principal
amount of $4,100,000.00, recorded in Volume 8104, page 139, Official
Records of Brazos County, Texas; and as modified, rearranged and/or
extended in instrument recorded in Volume 9231, page 54, Official Records
of Brazos County,Texas. (Lot 1)
(B) Financing Statement for fixtures - Starvision Technologies, Inc. to Brazos
Brazos County Abstract Company
"More than 130 Years of Title Service"
Valley Bank, filed December 28, 2009, recorded in Volume 9443, page
233, Official Records of Brazos County,Texas. (Lot 1)
(C) Deed of Trust, Security Agreement and Financing Statement dated May 19,
2006, executed by Titan Valley Park, Limited Partnership to Robert J.
Hymel, Jr., Trustee, securing one note of even date payable to Inter
National Bank, in the principal amount of $1,952,281.60, recorded in
Volume 7397, page 171, Official Records of Brazos County, Texas and as
extended by instruments recorded in Volume 8714, page 275, Volume
9159,page 85,Volume 9371,page 196, Volume 9592,page 50 and Volume
9767, page 224, Official Records of Brazos County, Texas. (part of Lot 3
and all of Lot 4)
(D) Deed of Trust, Security Agreement and Financing Statement dated May 25,
2006, executed by Titan Mac Valley Park 1, LP to Paul S. Moxley.,
Trustee, securing one note of even date payable to Texas State Bank,
McAllen, in the principal amount of $3,912,000.00, recorded in Volume
7364,page 58, Official Records of Brazos County, Texas (Lot 1)
Assignment of Rents and Leases from Titan Mac Valley Park 1, LP to
Texas State Bank, McAllen,dated May 25,2006,recorded in Volume 7364,
page 72, Official Records of Brazos County,Texas.
(E) Terms, conditions and stipulations as set forth in Construction Closing
Certificate and New Construction Affidavit, by and between Titan Valley
Park, Ltd. and Inter National Bank, dated May 19, 2006, recorded in
Volume 7397, page 167, Official Records of Brazos County,Texas. (Part of
Lot 3 and all of Lot 4)
(F) Deed of Trust, Assignment of Rents, Security Agreement and Financing
Statement dated May 27,2010, executed by CLLVP Phase II, LP to Paul D.
Thornton, Trustee, securing one note of even date payable to San Antonio
National Bank, in the principal amount of $3,975,194.00, recorded in
Volume 9661, page 209, Official Records of Brazos County, Texas. (2.24
acres aka Lot 2 and part of Lot 3)
Assignment of Leases and Rents from CLLVP Phase II, LP to San Antonio
National Bank, dated May 27, 2010, recorded in Volume 9661, page 228,
Official Records of Brazos County,Texas.
(G) Terms, conditions and stipulations as set forth in the Construction Closing
Certificate and Affidavit by and between CLLVP Phase II, LP and San
Antonio National Bank, dated May 27, 2010, recorded in Volume 9661,
page 234, Official Records of Brazos County,Texas. (2.24 acres aka Lot 2
and part of Lot 3)
Brazos County Abstract Company
"More than 130 Years of Title Service"
Collateral Assignment of Construction Contract by and between CLLVP
Phase II, LP and San Antonio National Bank,dated May 27,2010,recorded
in Volume 9665,page 126, Official Records of Brazos County,Texas.
2. ABSTRACT OF JUDGMENT/FEDERAL AND/OR STATE LIENS:
NONE OF RECORD.
3. EASEMENTS:
Easements and building lines as shown of record on plat of Valley Park
Center, recorded in Volume 7675, page 282, Official Records of Brazos
County,Texas.
Easement from Elizabeth Suber to City of Bryan, dated March 5, 1948,
recorded in Volume 134, page 191,Deed Records of Brazos County,Texas.
Avigation Easement from John D. Hoerner et ux to Texas A&M University,
dated January 20, 1971, recorded in Volume 328, page 632, Deed Records
of Brazos County,Texas.
Easement and Covenant Agreement by and between Titan Valley Park,
Limited Partnership and Titan Mac Valley Park 1, L.P.,dated July 13,2007,
recorded in Volume 8104, page 123, Official Records of Brazos County,
Texas. (Lots 2, 3 and 4)
Temporary Blanket Utility Easement from Titan Valley Park, Limited
Partnership to the City of College Station, Texas, dated May 14, 2009,
recorded in Volume 9490, page 96, Official Records of Brazos County,
Texas. (Lots 2, 3 and 4)
4. OUTSTANDING MINERALS AND/OR ROYALTIES:
NONE OF RECORD.
5. OIL& GAS LEASES:
NONE OF RECORD.
6. RESTRICTIONS: Restrictive covenants recorded in Volume 4818, page 198, Volume 7253,
page 120 and Volume 7253, page 161, Official Records of Brazos County,
Texas.
7. TAXES: NONE REQUESTED.
Brazos County Abstract Company
"More than 130 Years of Title Service"
8. MISCELLANEOUS:
Terms and conditions of Subordination, NonDisturbance and Attormnent
Agreement by and between San Antonio National Bank, CLLVP Phase H,
LP and Board of Regents of The Texas A&M University System, dated
May 14, 2010, recorded in Volume 9665, page 175, Official Records of
Brazos county,Texas.
All leases, grants, exceptions or reservations of coal, lignite, oil, gas and
other minerals, together with all rights, privileges and immunities relating
thereto, appearing in the Public Records. There may be leases, grants,
exceptions or reservations of mineral interests that are not listed.
THIS TITLE REPORT IS ISSUED WITH THE EXPRESS UNDERSTANDING,EVIDENCED BY
THE ACCEPTANCE OF SAME THAT THE UNDERSIGNED, BRAZOS COUNTY ABSTRACT
COMPANY DOES NOT UNDERTAKE HEREIN TO GIVE OR EXPRESS ANY OPINION AS
TO THE VALIDITY OF THE TITLE TO THE PROPERTY ABOVE DESCRIBED, NOR AS TO
THE VALIDITY OF ANY OF THE INSTRUMENTS REPORTED HEREIN, INCLUDING THE
PURPORTED DEED(S) ESTABLISHING THE RECORD OWNER(S) CITED ABOVE, BUT IS
SIMPLY REPORTING BRIEFLY HEREIN AS TO THE INSTRUMENTS FOUND OF RECORD
PERTAINING TO SAID PROPERTY, AND IT IS EXPRESSLY UNDERSTOOD AND AGREED
THAT THIS TITLE REPORT IS NEITHER A GUARANTY NOR WARRANTY OF THE TITLE.
BY ACCEPTANCE OF THIS TITLE REPORT IT IS UNDERSTOOD THAT THE LIABILITY
OF THE ISSUER HEREOF IS EXPRESSLY LIMITED TO THE ACTUAL MONETARY
CONSIDERATION PAID FOR SAID REPORT BY SOV J COV"XE,ALTYA WiSoXS, INC., THIS
SEARCH HAS BEEN LIMITED TO THE ABOVE MATTERS AND THE ABOVE TIME
PERIOD; AND WE HAVE NOT SEARCHED FOR, NOR HAVE REFLECTED HEREIN, ANY
EXAMINATION AS TO TAX SUITS, SPECIAL ASSESSMENTS, CONFLICTS OR OTHER
INSTRUMENTS WHICH MAY AFFECT TITLE TO THE SUBJECT PROPERTY, IF TITLE
INSURANCE COVERAGE, WHICH IS NOT PROVIDED BY THIS REPORT, IS NEEDED,
SAID COVERAGE IS AVAILABLE THROUGH THE APPLICABLE PROMULGATED
POLICY(IES),AND AT A SPECIFIED RATE PREMIUM.
BRAZOS COUNTY ABSTRACT COMPANY
BY: (-/ L0(2L liArilm
LISA KEMP I v
AGREEMENT OF LIMITED PARTNERSHIP
FOR
TITAN VALLEY PARK, LIMITED PARTNERSHIP
A New Mexico Limited Partnership
Dated as of August 31, 2005
The undersigned Partners of Titan Valley Park, Limited Partnership, a New
Mexico limited partnership, agree:
ARTICLE I
DEFINITIONS
1.01 Definitions. The following terms used in this Agreement of Limited Partnership
shall have the following meanings (unless otherwise expressly provided herein).
a. "Certificate of Limited Partnership" shall mean the Certificate of Limited
Partnership for Titan Valley Park, Limited Partnership, as filed with the New
Mexico Secretary of State, as the same may be amended from time to time.
b. "Capital Account" as of any given date shall mean the Capital Contribution to the
Limited Partnership by a Partner as adjusted up to the date in question pursuant to
Article VII.
c. "Capital Contribution" shall mean any contribution to the capital of the Limited
Partnership in cash, property, or services by a General Partner or Limited Partner
whenever made. "Initial Capital Contribution" shall mean the initial contribution
to the capital of the Limited Partnership pursuant to this Agreement of Limited
Partnership.
d. "Capital Interest" shall mean the proportion that a General Partner's or Limited
Partner's positive Capital Account bears to the aggregate positive Capital
Accounts of all General Partners and Limited Partners whose Capital Accounts
have positive balances as may be adjusted from time to time.
e. "Limited Partnership" shall refer to Titan Valley Park, Limited Partnership, a
New Mexico limited partnership.
f. "Deficit Capital Account" shall mean with respect to any General Partner or
Limited Partner, the deficit balance, if any, in such General Partner's or Limited
Partner's Capital Account as of the end of the taxable year.
g. "Distribution Cash" means all cash, revenues and funds received by the Limited
Partnership from Limited Partnership operations, less the sum of the following to
the extent paid or set aside by the Limited Partnership:
1. All principal and interest payments on indebtedness of the Limited
Partnership and all other sums paid to lenders;
2. All cash expenditures incurred incident to the normal operation of
the Limited Partnership's business; and
3. Such Reserves as the General Partner deems reasonably necessary
to the proper operation of the Limited Partnership's business.
h. "Partnership Interest" shall mean a General Partner's or Limited Partner's share of
the Limited Partnership's Net Profits, Net Losses and distributions of the Limited
Partnership's assets pursuant to this Agreement of Limited Partnership and the
New Mexico Uniform Limited Partnership Act. The initial Partnership Interest of
each General Partner or Limited Partner is set forth on Exhibit B and may be
adjusted from time to time as set forth herein.
i. "Limited Partner" shall mean each of the parties shown on Exhibit B, and who
executes a counterpart of this Agreement of Limited Partnership as a Limited
Partner and each of the parties who may hereafter become a Limited Partner.
j. "Entity" shall mean any general partnership, limited partnership, limited liability
company, corporation, joint venture, trust, business trust, cooperative or
association or any foreign trust, or foreign business organization.
k. "Fiscal Year" shall mean the Limited Partnership's fiscal year, which shall be the
calendar year beginning with the 2005 calendar year.
1. "IRC" shall mean the Internal Revenue Code of 1986 or corresponding provisions
of subsequent superseding federal revenue laws.
m. "Majority Vote of Partners" shall mean the affirmative vote of more than 50% of
Partnership Interest percentages as such are shown on Exhibit B to this
Agreement of Limited Partnership, as amended from time to time.
n. "General Partner" shall the party shown on Exhibit B, and who executes a
counterpart of this Agreement of Limited Partnership as a General Partner.
o. "General Partnership Interest" shall mean a General Partner's entire interest in the
Limited Partnership including the General Partner's Partnership Interest and the
right to participate in the management of the business and affairs of the Limited
Partnership, including the right to vote on, consent to or otherwise participate in
any decision or action of or by the Partners granted pursuant to this Agreement of
Limited Partnership and the New Mexico Uniform Limited Partnership Act.
p. "Net Profits" and "Net Losses" shall mean the income, gain, loss, deductions and
- 2 -
credits of the Limited Partnership in the aggregate or separately stated, as
appropriate.
q. "Agreement of Limited Partnership" shall mean this Agreement of Limited
Partnership as originally executed and amended from time to time.
r. "Persons" shall mean any individual or entity, and the heirs, executors,
administrators, legal representatives, successors and assigns of the Person when
the context so permits.
s. "Partner" shall mean each of the General Partner and the Limited Partners.
t. "Reserves" shall mean, for any fiscal period, funds set aside or amounts allocated
during such period to reserves that shall be maintained in amounts deemed
sufficient by the General Partners for working capital and to pay taxes, insurance,
debt service or other costs or expenses incident to the ownership or operation of
the Limited Partnership's business.
u. "NMLP Act" shall mean the New Mexico Uniform Limited Partnership Act,
NMSA 1978 §54-2-1 et. seq., as amended.
v. "Treasury Regulations" shall include proposed, temporary, and final regulations
promulgated under the IRC in effect as of the date of filing the Certificate of
Limited Partnership and the corresponding sections of any regulations
subsequently issued that amend or supersede those regulations.
ARTICLE II
Formation of Limited Partnership
2.01 Formation. Christopher M. Pacheco, organized a New Mexico limited
partnership by executing and delivering a Certificate of Limited Partnership to the New
Mexico Secretary of State in accordance with and pursuant to the NMLP Act.
2.02 Name. The name of the Limited Partnership is Titan Valley Park, Limited
Partnership.
2.03 Principal Place of Business. The principal place of business of the Limited
Partnership within the State of New Mexico shall be, 6300 Riverside Plaza Lane NW,
Suite 200, Albuquerque, NM 87120. The Limited Partnership may locate its places of
business and registered office at any other place or places as the General Partners may
from time to time deem advisable.
2.04 Registered Office and Registered Agent. The Limited Partnership's initial registered
office shall be at the office of its registered agent at 333 Rio Rancho Drive, Suite 401,
Rio Rancho, New Mexico 87124, and the name of its registered agent at such address
- 3 -
shall be Christopher M. Pacheco. The registered office and registered agent may be
changed from time to time by filing the address of the new registered office and/or the
name of the new registered agent with the New Mexico State Corporation Commission
pursuant to the NMLP Act.
2.05 Term. The term of the Limited Partnership shall be 50 Years, unless the Limited
Partnership is earlier dissolved in accordance with either the provisions of this Agreement
of Limited Partnership or the NMLP Act.
ARTICLE III
Business of Limited Partnership
3.01 Permitted Business. The business of the Limited Partnership shall be:
a. Limited to acquisition, development, ownership, leasing, management
and/or sale of the real property described on the attached Exhibit A and any such
related additional real or personal property which may be acquired from time to
time by the Limited Partnership, and to do all other things ancillary thereto as
permitted by the NMLP Act.
b. To accomplish any lawful business whatsoever, or which shall at any time
appear conducive to or expedient for the protection or benefit of the Limited
Partnership and its assets.
c. To exercise all other powers necessary to or reasonably connected with the
Limited Partnership's business that may be legally exercised by limited
partnerships under the NMLP Act.
d. To engage in all activities necessary, customary, convenient or incident to
any of the foregoing.
ARTICLE IV
Names and Addresses of Partners
4.01 Partners. The names of the General Partner and Limited Partners are as set forth on
the Signature Pages and on Exhibit B attached hereto.
ARTICLE V
Rights and Obligations of the General Partner
5.01 Management. The General Partner of the Limited Partnership is Titan
Development of Texas, LLC, a New Mexico limited liability company. The business and
affairs of the Limited Partnership shall be managed by its General Partner. The General
- 4 -
Partner shall direct, manage and control the business of the Limited Partnership to the
best of its ability. The General Partner shall have full and compete authority, power and
discretion to manage and control the business, affairs and properties of the Limited
Partnership, to make all decisions regarding those matters and to perform any and all
other acts or activities customary or incident to the management of the Limited
Partnership's business.
5.02 Enumerated Management Powers of General Partner. Without limiting the
generality of Section 5.01 above, the General Partner shall have power and authority, on
behalf of the Limited Partnership:
a. Upon majority vote of the Partners, to acquire property from any Person as
the General Partner may deem in the best interest of the Limited Partnership;
b. Upon majority vote of the Partners, to borrow money for the Limited
Partnership from banks, other lending institutions, the General Partner or Limited
Partners, members or affiliates of the General Partner or Limited Partners and/or
General Partner or Limited Partners on such terms as the General Partner deems
appropriate, and in connection therewith, to hypothecate, encumber and grant
security interests in the assets of the Limited Partnership to secure repayment of
the borrowed sums. No debt shall be contracted or liability incurred by or on
behalf of the Limited Partnership except by the General Partner, or to the extent
permitted under the NMLP Act, by agents or employees of the Limited
Partnership expressly authorized to contract such debt or incur such liability by
the General Partner;
c. To purchase liability and other insurance to protect the Limited
Partnership's property and business;
d. To hold and own any Limited Partnership's real and/or personal properties
in the name of the Limited Partnership;
e. To invest any Limited Partnership funds temporarily (by way of example
but not limitation) in time deposits, short-term governmental obligations,
commercial paper or other investments;
f. Upon the Majority Vote of Partners, to mortgage, sell or otherwise dispose
of all or substantially all of the assets of the Limited Partnership as part of a
transaction or plan so long as that disposition is not in violation of or a cause of a
default under any other agreement to which the Limited Partnership may be
bound;
g. upon majority vote of the Partner, to mortgage, sell or otherwise dispose
of any of the Limited Partnership's real property;
h. To execute on behalf of the Limited Partnership all instruments and
- 5 -
documents, including, without limitation: checks, drafts, notes and other
negotiable instruments, leases covering less than 15,000 square feet, and with a
majority vote of Partners, mortgages or deeds of trust, security agreements,
financing statements, documents providing for the acquisition, mortgage or
disposition of the Limited Partnership's property, assigns, bills of sale, leases
covering 15,000 or more than square feet, partnership agreements, management
agreements, development agreements, general contractor agreements and any
other instruments or documents necessary , in the opinion of the General Partner
to the business of the Limited Partnership;
i. To employ such accountants, legal counsel, or other experts to perform
services for the Limited Partnership and to compensate them from Limited
Partnership funds;
j. To enter into any and all other agreements on behalf of the Limited
Partnership, with any other Person for any purpose;
k. To enter into purchase and sale agreements and leases with parties related
to or affiliated with the General Partner and/or the Limited Partners with the
approval of the Limited Partners, which approval shall not be unreasonably
withheld, conditioned or delayed; and
1. To do and perform all other acts as may be necessary or appropriate to the
conduct of the Limited Partnership's business.
5.03 Limitation of Liability. The General Partner's liability shall be limited as set forth
in this Agreement of Limited Partnership, the NMLP Act and other applicable law.
5.04 List of Partners. Upon written request from any General or Limited Partner, the
General Partner shall provide a list showing the names, address and Partnership Interests
of all General Partners and Limited Partners.
5.06 Approval of Sale of All Assets. The General Partner shall have the right, upon the
Majority Vote of Partners, to approve the sale, exchange, or other disposition of all, or
substantially all of the Limited Partnership's assets which is to occur as part of a single
transaction or plan.
5.07 Limited Partnership Books. In accordance with Section 8.07 below, the General
Partner shall maintain and preserve, during the term of the Limited Partnership and for
five (5) years thereafter, all-accounts, books and other relevant Limited Partnership
documents. Upon reasonable request, the General Partner and Limited Partners shall have
the right, during ordinary business hours, to inspect and copy those Limited Partnership
documents at the requesting General Partner's and Limited Partner's expense.
ARTICLE VI
- 6 -
Meetings of Partners
6.01 Annual Meeting. The annual meeting of the Partners shall be held on the second
Tuesday in August each year or at such other time as shall be determined by the General
Partner, commencing with the year 2006, for the purpose of the transaction of such
business as may come before the meeting.
6.02 Special Meetings. Special meetings of the Partners, for any purpose or purposes,
unless otherwise prescribed by statute, may be called by the General Partner or the
Majority Vote of Partners.
6.03 Place of Meetings. The General Partner may designate any place, either within or
outside of the State of New Mexico, as the place of meeting for any meeting of the
Partners. If no designation is made, or if a special meeting be otherwise called, the place
of meeting shall be the principal executive office of the Limited Partnership, 6300
Riverside Plaza Lane NW, Albuquerque, New Mexico 87120. Upon the approval of a
Majority Vote of Partners, a meeting may be held telephonically.
6.04 Notice of Meetings. Except as provided in Section 6.05 below, written notice
stating the place, day and hour of the meeting and the purpose or purposes for which the
meeting is called shall be delivered no fewer than 10 days and no more than 50 days
before the date of the meeting, either personally, by fax, or by mail, by or at the direction
of the person calling the meeting, to each Partner entitled to vote at the meeting. If
mailed, the notice shall be deemed to be delivered two calendar days after being
deposited in the United States mail, addressed to the Partner at the Partner's address as it
appears on the books of the Limited Partnership, with postage thereon prepaid. If sent by
fax, it shall be deemed delivered upon return fax acknowledging actual receipt by the
Partner.
6.05 Meeting of All General Partners. If all of the Partners shall meet at any time and
place, either within or outside of the State of New Mexico, and each consent to the
holding of a meeting at that time and place, the meeting shall be valid without call or
notice, and at the meeting lawful action may be taken.
6.06 Record Date. For the purpose of determining Partners entitled to notice of or to
vote at any meeting of Partners or any adjournment of the meeting, or Partners entitled to
receive payment of any distribution, or to make a determination of Partners for any other
purpose, the date on which notice of the meeting is mailed or the date on which the
resolution declaring the distribution is adopted, as the case may be, shall be the record
date for the determination of Partners. When a determination of Partners entitled to vote
at any meeting of Partners has been made as provided in this section, the determination
shall apply to adjournment of the meeting.
6.07 Quorum. Partners collectively holding at least one-half of all Partnership Interests
represented in person or by proxy, and the presence of the General Partner shall
constitute a quorum at any meeting of Partners. In the absence of a quorum at any
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meeting of Partners, the Partners present at the meeting may adjourn the meeting from
time to time for a period not to exceed 60 days without further notice. However, if the
adjournment is for more than 60 days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
Partner of record entitled to vote at the meeting. At an adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally noticed. The Partners present at a duly
organized meeting may continue to transact business until adjournment, notwithstanding
the withdrawal during the meeting of that number of Majority Interest whose absence
would cause less than a quorum.
6.08 Manner of Acting. If a quorum is present, the Majority Vote of Partners shall
be the act of the Partners, unless the vote of a greater or lesser proportion or number is
otherwise required by the NMLP Act, by the Certificate of Limited Partnership or by this
Agreement of Limited Partnership.
6.09 Proxies. At all meetings of Partners, a Partner may vote in person or by proxy
executed in writing by the Partner or by a duly authorized attorney-in-fact. The Proxy
shall be filed with the Limited Partnership before or at the time of the meeting. No proxy
shall be valid after 11 months from the date of its execution unless otherwise provided in
the proxy and approved by the General Partner.
6.10 Action by Partners Without a Meeting. Action required or permitted to be taken at
a meeting of Partners may be taken without a meeting if the action is evidenced by one or
more written consents describing the action taken, signed by each Partner entitled to vote
(the "Written Consent"), and delivered to the Limited Partnership for inclusion in the
minutes or for filing with the Limited Partnership records. Action taken under this section
is effective when all Partners entitled to vote have signed the Written Consent, unless the
consent specifies a different effective date. The record date for determining Partners
entitled to take action without a meeting shall be the date that the first Partner signs the
Written Consent.
6.11 Waiver of Notice. When any notice is required to be given to any Partner, a waiver
of the notice in writing signed by the Partner entitled to the notice and consent or the
presence of the Partner to the meeting, whether before or after the meeting stated therein,
shall be equivalent to the giving of the notice.
ARTICLE VII
Contributions to the Limited Partnership
and Capital Accounts
7.01 Capital Contributions. Each General Partner and Limited Partner shall contribute
such amount as is set forth in appended Exhibit B as its share of the Initial Capital
Contribution. The Initial Capital Contributions shall be in the form of cash or in-kind
contributions of property or services. The Partners have expressly agreed to the initial
value of the Capital Contributions and the Percentage Interests set forth on Exhibit B.
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Contributions of services or property must be approved by a Majority Vote of Partners.
For contributions of cash or property, the Initial Capital Contributions shall be made by
each initial Partner within an administratively reasonable period of time after the
effective date of this Agreement of Limited Partnership. If the contribution is in the form
of services, the Partners hereby agree that in the event the Limited Partnership is
liquidated on the date of the cash contributions, any Partner contributing future services
would not be entitled to a share of the proceeds as to the services not yet provided if the
Limited Partnership's assets were sold for their fair market value and the net sale
proceeds were distributed to the Partners in liquidation of the Limited Partnership. All
distributions at that time would be based upon ending capital accounts. The Partner
contributing such future services would not have made a contribution as to the services
and would not have an ending capital account (except as to cash or property contributed)
and thus would not be entitled to a share of liquidation proceeds as to the services not yet
provided.
7.02 Additional Contributions. No General Partner or Limited Partner shall be
required to make any Capital Contribution in addition to his Initial Capital Contribution.
In the event that the General Partner determines that Additional Capital Contributions are
necessary, the Limited Partnership shall give written notice to each General Partner and
Limited Partner of the Additional Capital Contribution, and each General Partner's or
Limited Partner's pro rata share thereof (in proportion to the respective Partnership
Interests on the date such notice is given). Each General Partner or Limited Partner shall
deliver to the Limited Partnership within fifteen days after receipt of said notice, a
statement indicting whether such General Partner or Limited Partner is willing to
contribute its pro rata share of the required Additional Capital Contribution. In the event
that any General Partner or Limited Partner indicates that it is unwilling to contribute its
pro rata share as set forth herein, all General and Limited Partners may agree upon the
terms, including any additional preferred returns, for those General and/or Limited
Partners willing to make the necessary Additional Capital Contribution. In the event that
the General and Limited Partners are unable to unanimously agree upon the terms and
conditions of the Additional Capital Contribution, those General and/or Limited Partners
who are willing to contribute the necessary amounts may do so in the form of a loan to
the Partnership which shall be evidenced by a promissory note(s) from the Partnership
with stated repayment terms and a stated interest rate equal to the greater of(i) 20% per
annum, or (ii) the rate at which the Partnership could obtain an unsecured loan from an
institutional lender. None of the terms, covenants, obligations or rights contained in this
section is or shall be deemed to be for the benefit of any person or entity other than the
General Partner and the Limited Partnership, and no such third person shall under any
circumstances have any right to compel any actions or payments by the General Partner
and/or Limited Partners.
7.03 Capital Accounts. A separate Capital Account will be maintained for each
General Partner and Limited Partner.
a. Each Capital Account will be increased by
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1. The amount of money contributed to the Limited Partnership;
2. The fair market value of property contributed to the Limited
Partnership (net of liabilities secured by such contributed property that the
Limited Partnership is considered to assume or take subject to under IRC
§752);
3. Allocations of Net Profits; and
4. Allocations of income described in IRC §705(a).
b. Each Capital Account will be decreased by:
1. The amount of money distributed to the General Partner or Limited
Partner by the Limited Partnership;
2. The fair market value of property distributed to the General Partner
or Limited Partner by the Limited Partnership (net of liabilities secured by
such distributed property that such General Partner or Limited Partner is
considered to assume or take subject to under IRC §752);
3. Allocations of expenditures described in IRC §705(a);
4. Allocations of Limited Partnership loss and deduction as set forth
in the relevant Treasury Regulations, taking into account adjustments to
reflect book value.
c. In the event of a permitted sale or exchange of a Partnership Interest in the
Limited Partnership, the Capital Account of the transferor shall become the
Capital Account of the transferee to the extent it relates to the transferred
Partnership Interest in accordance with Treas. Reg. Section 1.704-1(b).
d. The manner in which Capital Accounts are to be maintained pursuant to
this section is intended to comply with the requirements of IRC §704(b) and the
Treasury Regulations promulgated thereunder. If in the opinion of the Limited
Partnership's accountants the manner in which Capital Accounts are to be
maintained pursuant to the preceding provisions of this section should be
modified to comply with IRC §704(b) and the Treasury Regulations thereunder,
then notwithstanding anything to the contrary contained in the preceding
provisions of this section the method in which Capital Accounts are maintained
shall be so modified; provided, however, that any change in the manner of
maintaining Capital Accounts shall not materially alter the economic agreement
between or among the Partners.
e. Upon liquidation of the Limited Partnership (or any Partner's Partnership
Interest), all liquidating distributions shall be made to the General Partners and
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Limited Partners in accordance with their relative capital account balances at the
time of distribution as determined after taking into account all Capital Account
adjustments for the Limited Partnership's taxable year during which the
liquidation occurs until full repayment of such capital accounts has occurred, and
then any remaining distributions shall be in accordance with the provisions of
Section 9.03 of this Agreement of Limited Partnership. Liquidation proceeds will
be paid within 60 days of the end of the taxable year (or, if later, within 120 days
after the date of the liquidation). The Limited Partnership may offset damages for
breach of this Agreement of Limited Partnership by a General Partner or Limited
Partner whose interest is liquidated (either upon the withdrawal of the General
Partner or the liquidation of the Limited Partnership) against the amount
otherwise distributable to the General Partner.
f. Except as otherwise required in the NMLP Act (and subject to Sections
7.01 and 7.02 above), no General Partner or Limited Partner shall have any
liability to restore all or any portion of a deficit balance in the General Partner's or
Limited Partner's Capital Account.
7.04 Withdrawal or Reduction of Contributions to Capital. A General Partner or Limited
Partner shall not receive out of the Limited Partnership's property any part of its Capital
Contribution until all liabilities of the Limited Partnership, except liabilities to General
Partners and Limited Partners on account of their Capital Contributions, have been paid
or there remains property of the Limited Partnership sufficient to pay them. A General
Partner or Limited Partner, irrespective of the nature of its Capital Contribution and
subject to the conditions and restrictions for withdrawal and liquidation set forth in this
Agreement, has only the right to demand and receive cash in return for its Capital
Contribution.
ARTICLE VIII
Allocations, Income Tax, Distributions,
Elections and Reports
8.01 Allocations of Income and Losses. The Net Profits and Net Losses of the
Limited Partnership for each fiscal year will be allocated in the Partnership Interest
percentages as set forth on Exhibit B.
8.02 Distribution. Except as otherwise expressly provided herein, all distributions of
cash or other property shall be made to the General Partners and Limited Partners in the
following order and priority:
a. First to each General and Limited Partner, pro rata in accordance with
their Partnership Interest Percentages, the amount required to provide each a
nominal twenty percent (20%) per annum return, compounded monthly, on each
Partners Initial Capital Contribution; and
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b. The remainder, if any, 50% to the General Partner, 25% to Sisson and
25% to Hillman.
Nothing in paragraphs a. and b. above shall be deemed to be a guaranty of any return or
payment by the Limited Partnership or the General Partner to any Partner. The General
Partner shall determine the amount and time for all distributions.
8.03 Limitation Upon Distributions. No distribution shall be declared and paid unless,
after distribution is made, the assets of the Limited Partnership are in excess of all
liabilities of the Limited Partnership, except liabilities to General Partners and Limited
Partners on account of their Capital Contributions.
8.04 Accounting Principles. The profits and losses of the Limited Partnership shall be
determined in accordance with generally accepted accounting principles applied on a
consistent basis. It is intended that the Limited Partnership will elect those accounting
methods that provide the Limited Partnership with the greatest tax benefits with respect
to the method of income tax reporting.
8.05 Interest on and Return of Capital Contributions. No Partner shall be entitled to
interest on its Capital Contribution or to return of its Capital Contribution, except as
otherwise specifically provided for in this Agreement of Limited Partnership.
8.06 Loans to Limited Partnership. Nothing in this Agreement of Limited Partnership
shall prevent any General Partner or Limited Partner from making secured or unsecured
loans to the Limited Partnership by a separate agreement with the Limited Partnership.
8.07 Records, Audits and Reports. At the expense of the Limited Partnership, the
Limited Partnership shall maintain records and accounts of all operations and
expenditures of the Limited Partnership. At a minimum the Limited Partnership shall
keep at its principal place of business the following records:
a. A current list of the full name, social security number/tax identification
number, last known business, residence or mailing address, telephone number and
fax numbers of each General Partner and Limited Partner, both past and present;
b. A copy of the Certificate of Limited Partnership and all amendments
thereto, together with executed copies of any power of attorney pursuant to which
any amendment has been executed;
c. Copies of the Limited Partnership's federal, state and local income tax
returns and reports, if any, for the four most recent years;
d. Copies of the Limited Partnership's most current effective, written
Agreement of Limited Partnership and any amendments thereto, copies of any
writings permitted or required with respect to a General Partner's obligation to
contribute cash, property or services, and copies of any financial statements of the
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Limited Partnership for the three most recent years;
e. Minutes of every annual meeting, special meeting and court-ordered
meeting.
f. Copies of fully executed written consents obtained from General Partners
for actions taken by General Partners without a meeting.
8.08 Returns and Other Elections. The General Partner is hereby designated the "Tax
Matters Partner", as defined in Section 6231 of the IRC. The General Partner shall
inform the Partners of all matters which may come to the General Partner's attention in
the capacity of Tax Matters Partner by giving notice thereof within ten (10)days after
receipt of any applicable information. The General Partner shall not take any action in
the capacity of Tax Matters Partner without the prior consent of a Majority Vote of the
Partners. This provision is not intended to authorize the General Partner to take any
action that is left to the determination of an individual Partner under Sections 6222
through 6232 of the IRC. The General Partner shall cause the preparation and timely
filing of all tax returns required to be filed by the Limited Partnership pursuant to the IRC
and all other tax returns deemed necessary and required in each jurisdiction in which the
Limited Partnership does business. Copies of those returns, or pertinent information from
the returns, shall be furnished to the General Partners within a reasonable time after the
end of the Limited Partnership's fiscal year. All elections permitted to be made by the
Limited Partnership under federal or state laws shall be made by the Limited Partnership
in the General Partner's sole discretion.
8.09 Priority and Return of Capital. Except as may be expressly provided in this
Agreement, no General Partner or Limited Partner shall have priority over any other
General Partner or Limited Partner, either for the return of Capital Contributions or for
Net Profits, Net Losses or distributions; provided that this section shall not apply to loans
(as distinguished from Capital Contributions) which a General Partner has made to the
Limited Partnership.
8.10 Liability of a Partner to the Limited Partnership. A Partner who rightfully receives
the return in whole or in part of its contribution (as defined in the NMLP Act) is
nevertheless liable to the Limited Partnership only to the extent now or hereafter
provided by the NMLP Act. A General Partner who receives a distribution made by the
Limited Partnership which is either in violation of this Agreement of Limited Partnership,
or made when the Limited Partnership's liabilities exceed its assets (after giving effect to
the distribution) is liable to the Limited Partnership for a period of six years after the
distribution for the amount of the distribution.
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ARTICLE IX
Transfers
9.01 Transfers Restricted. No transfer of a General Partnership Interest by a General
Partner or an Partnership Interest by a Limited Partnership shall be permitted unless the
applicable provisions of this Article X and Section 14.16 have been fully satisfied.
9.02 Withdrawal of a Partner by Sale. Any General Partner or Limited Partner who
shall be desirous of selling his or her share and interest in the Limited Partnership shall give
the right of first refusal to purchase said share at the same price as being offered by a bona
fide buyer, to the non-selling General Partners and Limited Partners in shares proportionate
to their Partnership Interests. In the event that the non-selling General Partners and
Limited Partners elect to purchase the selling General Partner's or Limited Partner's
interest, the non-selling General Partners and Limited Partners shall provide written notice
of their intent to purchase and shall purchase such interest in accordance with the general
terms and conditions under which the bona fide buyer would have purchased the interest
except that the Limited Partnership, General Partners and /or Limited Partners electing to
purchase shall have the greater of one hundred twenty days or the period of time in the
bona fide offer to make the payment or first of the payments in the bona fide offer. In the
event that a non-selling General Partner or Limited Partner elects not to purchase the
selling General Partner's or Limited Partner's interest, the other non-selling General
Partners and Limited Partner's may elect to purchase all of the selling General Partner's or
Limited Partner's interest. In the event that the non-selling General Partners and Limited
Partner's elect not to purchase the selling General Partner's or Limited Partner's interest or
fail to provide written notice of their intent to purchase within ninety (90) days after
receiving a copy of the offer from the bona fide buyer, the selling General Partner or
Limited Partner may sell his Partnership Interest to the bona fide buyer subject to the terms
and conditions of this Agreement of Limited Partnership and the Certificate of Limited
Partnership.
9.03 Death of a General Partner. Subject to the right of first refusal for the surviving
General Partners and Limited Partners hereinafter set forth, in the event of the death of a
General Partner or Limited Partner who is an individual, the deceased's heir or heirs shall
be entitled to succeed to the share and interest of the deceased General Partner or Limited
Partner. Provided, however, within ninety days after the date of death, the Limited
Partnership or its surviving General Partners and Limited Partners may elect to purchase
the deceased's interest in shares proportionate to their Partnership Interests by giving notice
to the heir or heirs of the deceased. In such case the deceased's interest shall be valued in
accordance with Section 10.01 and all amounts due to the heir or heirs shall be paid in
accordance with Section 11.01 by the Limited Partnership or the purchasing surviving
General Partners and Limited Partners, as the case may be. If the deceased's interest is to
be purchased by the surviving General Partners and Limited Partners, each surviving
General Partner and Limited Partner shall have the right to purchase the deceased's share
and interest in proportion to the Partnership Interest percentages of those General Partners
and Limited Partners electing to purchase. If no election is made by the Limited
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Partnership or the surviving General Partners and Limited Partners to purchase the
deceased's interest, the Limited Partnership shall, as soon as practicable after the end of the
ninety day period, provide a document by which the heir or heirs personally affirm and
accept all the terms, conditions and provisions of this Agreement of Limited Partnership
binding themselves to the same in writing, and selecting a designated representative of the
deceased General Partner or Limited Partner.
9.04 Divorce of a General Partner. Subject to the limitations set forth herein and the right
of first refusal hereinafter set forth, in the event of the divorce of a General Partner or
Limited Partner whereby such General Partner's or Limited Partner's interest, or any
portion thereof, is awarded by an order of the court or by settlement agreement, to a non-
General Partner/non-Limited Partner ex-spouse (the "ex-spouse"), the ex-spouse shall be
entitled to succeed to the share and interest, or portions thereof, of the divorcing General
Partner or Limited Partner. Provided, however, within ninety days after the date of divorce
or settlement, the Limited Partnership or the non-divorcing General Partners and Limited
Partners may elect to purchase the entire interest acquired by the ex-spouse by giving
written notice to the ex-spouse. In such case the ex-spouses interest shall be valued in
accordance with Section 10.01 and all amounts due to the ex-spouse shall be paid in
accordance with Section 11.01 by the Limited Partnership or the purchasing General
Partners and Limited Partners, as the case may be. If the ex-spouse's interest is to be
purchased by the non-divorcing General Partners and Limited Partners, each non-divorcing
General Partner and Limited Partner shall have the right to purchase a portion of the ex-
spouses share and interest in proportion to the Partnership Interest percentages of those
General Partners and Limited Partners electing to purchase. If no election is made by the
Limited Partnership or the non-divorcing General Partners and Limited Partners to
purchase the ex-spouses interest, the Limited Partnership shall, as soon as practicable after
the end of the ninety day period, provide a document by which the ex-spouse personally
affirms and accepts all the terms, conditions and provisions of this Agreement of Limited
Partnership.
9.05 Dissolution of a General Partner.Subject to the right of first refusal for the surviving
General Partners and Limited Partners hereinafter set forth, in the event of the dissolution
or other termination of a General Partner that is an Entity (the "Dissolved Entity"), the
Dissolved Entity's successors or assigns shall be entitled to succeed to the share and interest
of the Dissolved Entity. Provided, however, within ninety days after the date of
dissolution, the Limited Partnership or its remaining General Partners and Limited Partners
may elect to purchase the Dissolved Entity 's interest in shares proportionate to their
Partnership Interests by giving notice to successors and assigns of the Dissolved Entity. In
such case the Dissolved Entity's interest shall be valued in accordance with Section 10.01
and all amounts due to the successors and assigns shall be paid in accordance with Section
11.01 by the Limited Partnership or the purchasing remaining General Partners and Limited
Partners, as the case may be. If the Dissolved Entity's interest is to be purchased by the
remaining General Partners and Limited Partners, each remaining General Partner and
Limited Partner shall have the right to purchase the Dissolved Entity's share and interest in
proportion to the Partnership Interest percentages of those General Partners and Limited
Partners electing to purchase. If no election is made by the Limited Partnership or the
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reaming General Partners and Limited Partners to purchase the Dissolved Entity's interest,
the Limited Partnership shall, as soon as practicable after the end of the ninety day period,
provide a document by which the successors and assigns personally affirm and accept all
the terms, conditions and provisions of this Agreement of Limited Partnership binding
themselves to the same in writing, and selecting a designated representative of the
Dissolved Entity.
9.06 Transfers to Secure Loan for Benefit of General Partner or Limited Partner or for the
Limited Partnership. Notwithstanding the foregoing provisions of Article IX, the
Partnership Interest of any General Partner or Limited Partner shall be transferable
without the consent of the Partners if the transfer is for the purpose of securing a loan for
the benefit of the transferor. Such transferee (lender) shall have no right to participate in
the management of the business and affairs of the Limited Partnership or to become a
General Partner, but shall only be entitled to receive the transferor's share of the
distributions and return of capital, and to be allocated the Net Profit and Net Loss
attributable to the Partnership Interest of the transferor.
9.07 Transfers to Affiliates. Notwithstanding anything contained in Article X to the
contrary, a transfer of all Partnership Interest in the Limited Partnership by any General
Partner or Limited Partner to and Affiliate shall not be deemed a transfer under this
Agreement and is hereby expressly permitted. For the purpose of this section, an Affiliate
is defined as an Entity with the same ownership and management as the transferring
General Partner or Limited Partner, an individual who is the sole owner of an Entity
General Partner or Limited Partner, or an Entity solely owned and managed by an
individual General Partner or Limited Partner.
ARTICLE X
Purchase Price
10.01 Value Determination. Should the General Partners and Limited Partners
(including the Proposed Transferor) be unable to agree on a value of the Interest in the
Limited Partnership to be transferred under the circumstances referred to in Sections
9.03, 9.04 or 9.05, the value of the Interest being transferred shall be determined as
follows:
a. Valuation of Marketable Assets. Subject to the provisions of subparagraph
d of this section, all assets of the Limited Partnership which have a readily
marketable value (i.e., publicly traded securities, government securities, cash,
etc.) shall be valued at the liquidation value of such assets as of the end of the
month immediately preceding the date of death or the date that the divorce decree
dividing property of the marital estate is entered, as the case may be ("Valuation
Date").
b. Valuation of Real Estate Interest Owned by the Limited Partnership. To
the extent the Limited Partnership owns, directly or indirectly, interests in real
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estate, the value of such interests shall be determined as provided in this
subparagraph b. All real estate assets shall be appraised by a licensed
independent appraiser familiar with similar properties and the area.
c. Valuation of Other Assets. All assets of the Limited Partnership other
than the assets referred to in subparagraphs a and b above shall be valued at their
respective net book values calculated using generally accepted accounting
principals.
d. Valuation of Proposed Transfers of Interest in the Limited Partnership.
From the sum of the value of the assets of the Limited Partnership determined as
provided in subparagraphs a, b and c above, all liabilities of the Limited
Partnership shall be deducted and the resulting net amount shall be multiplied
times the Partnership Interest of the Proposed Transferor to determine the
purchase price (the "Purchase Price") of such General Partner's or Limited
Partner's Interest.
ARTICLE XI
Payment of the Purchase Price
11.01 Alternative Payment. Should all the General Partners and Limited Partners
electing to purchase the Partnership Interest to be transferred pursuant to 9.03, 9.04 or 9.5
(including the Proposed Transferor) be unable to agree on a method of payment of the
Purchase Price, the method of payment thereof shall be as follows:
a. Down Payment. The Limited Partnership, General Partners and/or Limited
Partners electing to purchase the Interest shall pay within one hundred eighty days
after the Valuation Date (the "Purchase Date") an amount equal to twenty percent
(20% ) of the Purchase Price.
b. Balance. The balance of the Purchase Price shall be represented by a
promissory note(s) from the Limited Partnership, General Partners and/or Limited
Partners electing to purchase, with each party executing a note to the Transferor
for such purchasing party's obligation, payable in four (4) equal consecutive
annual principal and interest payments beginning on the first anniversary of the.
Purchase Date, which promissory note shall have an interest rate equal to the
prime rate as published in the Wall Street Journal on the Purchase Date.
ARTICLE XII
Additional Partners
12.01 Admission as Partner. From the date of the formation of the Limited Partnership,
any Person or Entity acceptable to the Partners by their unanimous vote may become a
Partner in this Limited Partnership either by the issuance by the Limited Partnership of
Partnership Interests for such consideration as the Partners by their unanimous votes shall
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determine, or as a transferee of a Partner's Partnership Interest or any portion thereof,
subject to the terms and conditions of this Agreement of Limited Partnership.
12.02 Financial Adjustments. No new Partners shall be entitled to any retroactive
allocation of losses, income or expense deductions incurred by the Limited Partnership.
The General Partner may, at its option, at the time an additional Partner is admitted, close
the Limited Partnership books (as though the Limited Partnership's tax year had ended)
ARTICLE XIII
Dissolution and Termination
13.01 Dissolution.
a. The Limited Partnership shall be dissolved upon the occurrence of any of
these events
1. By the unanimous written agreement of all Partners; or
2. Any event that under this Agreement of Limited Partnership
requires dissolution of the Limited Partnership;
3. The bankruptcy of a General Partner unless the Limited
Partnership is continued by the consent of a majority of the remaining
General Partners;
4. The entry of a decree of judicial dissolution of the Limited
Partnership as provided in the NMLP Act; or
5. Any event not set forth above that under the NMLP Act requires
dissolution of the Limited Partnership.
b. As soon as possible following the occurrence of any of the events
specified in this section effecting the dissolution of the Limited Partnership, the
General Partner shall execute a statement of intent to dissolve in such form as
shall be prescribed by the New Mexico Secretary of State and file same with the
New Mexico Secretary of State's office.
c. Except as expressly permitted in this Agreement of Limited Partnership, a
General Partner shall not voluntarily resign or take any other voluntary action that
directly causes a Withdrawal Event. Unless otherwise approved by the Majority
Vote of Partners, a General Partner who resigns (a "Resigning General Partner")
or whose General Partnership Interest is otherwise terminated by virtue of a
Withdrawal Event, regardless of whether the Withdrawal Event was the result of a
voluntary act by the General Partner, shall not be entitled to receive any
distributions to which the General Partner would not have been entitled had the
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General Partner remained a General Partner. Damages for breach of this
subsection (c) shall be monetary damages only, and the damages may be offset
against distributions by the Limited Partnership to which the Resigning General
Partner would otherwise be entitled.
13.02 Effect of Filing of Dissolving Statement. Upon the filing with the New
Mexico Secretary of State of a statement of intent to dissolve, the Limited Partnership
shall cease to carry on its business, except insofar as may be necessary for the winding up
of its business, but its separate existence shall continue until a certificate of dissolution
has been issued by the Public Regulation commission of New Mexico or until a decree
dissolving the Limited Partnership has been entered by a court of competent jurisdiction.
13.03 Winding Up Liquidation. and Distribution of Assets. Upon dissolution, an
accounting shall be made by the Limited Partnership's independent accountants of the
accounts of the Limited Partnership and of the Limited Partnership's assets, liabilities,
and operations, from the date of the last previous accounting until the date of dissolution.
The General Partner shall immediately proceed to wind up the affairs of the Limited
Partnership. If the Limited Partnership is dissolved and its affairs are to be wound up, the
General Partner shall:
a. Sell or otherwise liquidate all of the Limited Partnership's assets as
promptly as practicable (except to the extent the General Partner may determine
to distribute any assets to the General Partner and Limited Partners in kind);
b. Allocate any profit or loss resulting from such sales to the General
Partners' and Limited Partners' Capital Accounts in accordance with Article VII
above;
c. Discharge all liabilities of the Limited Partnership, including liabilities to
General Partners and Limited Partners who are creditors, to the extent otherwise
permitted by law, other than liabilities to General Partners and Limited Partners
for distributions, and establish such Reserves as may be reasonably necessary to
provide for contingencies or liabilities of the Limited Partnership (for purposes of
determining the Capital Accounts of the General Partners and Limited Partners,
the amounts of such Reserves shall be deemed to be an expense of the Limited
Partnership);
d. Distribute the remaining assets in the following order:
1. If any assets of the Limited Partnership are to be distributed in
kind, the net fair market value of those assets as of the date of dissolution
shall be determined by independent appraisal or by agreement of the
General Partners. Those assets shall be deemed to have been sold as of the
date of dissolution for their fair market value, and the Capital Accounts of
the General Partner and Limited Partners shall be adjusted pursuant to the
provisions of Article VII and Section 7.03 of this Agreement of Limited
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Partnership to reflect such deemed sale.
2. The remainder of cash or assets (at fair market value) shall be
distributed to the Partners in accordance with Section 8.02.
e. Notwithstanding anything to the contrary in this Agreement of Limited
Partnership, upon a liquidation, if any General Partner or Limited Partner has a
Deficit Capital Account (after giving effect to all contributions, distributions,
allocations, and other Capital Account adjustments for all taxable years, including
the year during which such liquidation occurs), the General Partner or Limited
Partner shall have no obligation to make any Capital Contribution, and the
negative balance of the General Partner's or Limited Partner's Capital Account
shall not be considered a debt owed by the General Partner to the Limited
Partnership or to any other person for any purpose whatsoever .
f. Upon completion of the winding up, liquidation, and distribution of the
assets, the Limited Partnership shall be deemed terminated.
g. The Limited Partnership shall comply with any applicable requirements of
applicable law pertaining to the winding up of the affairs of the Limited
Partnership and the final distribution of its assets.
13.04 Articles of Dissolution.When all debts, liabilities, and obligations have been paid
and discharged or adequate provisions have been made therefore and all of the remaining
property and assets have been distributed to the General Partners, articles of dissolution
shall be executed in duplicate and verified by the person signing the articles, which
articles shall set forth the information required by the NMLP Act. Duplicate originals of
the articles of dissolution shall be delivered to the New Mexico Secretary of State.
13.05 Certificate of Dissolution. Upon the issuance of the certificate of dissolution,
the existence of the Limited Partnership shall cease, except for the purpose of suits, other
proceedings, and appropriate action as provided in the NMLP Act. The General Partner
shall have authority to distribute any Limited Partnership property discovered after
dissolution, convey real estate, and take such other action as may be necessary on behalf
of and in the name of the Limited Partnership.
13.06 Return of Contribution Nonrecourse to Other General Partners. Except as
provided by law or as expressly provided in this operating Agreement, upon dissolution,
each General Partner and Limited Partner shall look solely to the assets of the Limited
Partnership for the return of its Capital Contribution. If the Limited Partnership property
remaining after the payment or discharge of the debts and liabilities of the Limited
Partnership is insufficient to return the cash contribution of one or more General Partners
or Limited Partners, the General Partners and Limited Partners shall have no recourse
against any other General Partner or Limited Partner.
- 20 -
ARTICLE XIV
Miscellaneous Provisions
14.01 Notices. Any notice, demand, or communication required or permitted to be
given by any provision of this Agreement of Limited Partnership shall be deemed to have
been sufficiently given or served for all purposes if delivered personally to the party or to
an executive officer or manager of the party to whom the same is directed or, if sent by
registered or certified mail, postage and charges prepaid, addressed to the General
Partner's, Limited Partner's and/or Limited Partnership's address, as appropriate, which is
set forth in this Agreement of Limited Partnership, any such notice shall be deemed to be
given three business days after the date on which the same was deposited in a regularly
maintained receptacle for the deposit of United States mail, addressed and sent as
aforesaid.
14.02 Books of Accounts and Records. Proper and complete records and books of
account shall be kept or shall be caused to be kept by the Limited Partnership in which
shall be entered fully and accurately all transaction and other matters relating to the
Limited Partnership's business in the detail and completeness customary and usual for
business of the type engaged in the Limited Partnership. The books and records shall be
maintained as provided in Section 8.07 above. The books and records shall at all times be
maintained at the principal executive office of the Limited Partnership and shall be open
to the reasonable inspection and examination of the General Partners, Limited Partners,
or their duly authorized representatives during reasonable business hours.
14.03 Application of New Mexico Law. This Operating Agreement, and the
application of interpretation hereof, shall be governed exclusively by its terms and by the
laws of the State of New Mexico, and specifically the NMLP Act.
14.04 Waiver of Action for Partition. Each General Partner and Limited Partner
irrevocably waives during the term of the Limited Partnership any right that it may have
to maintain any action for partition with respect to the property of the Limited
Partnership.
14.05 Amendments. This Agreement of Limited Partnership may not be amended
except by the unanimous written agreement of all of the General Partners.
14.06 Execution of Additional Instruments. Each General Partner and Limited Partner
hereby agrees to execute such other and further statements of interest and holding,
designations, powers of attorney, and other instruments necessary to comply with any
laws, rules, or regulations.
14.07 Construction. Whenever the singular number is used in this Agreement of
Limited Partnership and when required by the context, the same shall include the plural
and vice versa, and the masculine gender shall include the feminine and neuter genders
and vice versa.
- 21 -
14.08 Headings. The headings in this Agreement of Limited Partnership are for
convenience only and are in no way intended to describe, interpret, defame, or limit the
scope, extent, or intent of this Agreement of Limited Partnership or any of its provisions.
14.09 Waivers. The failure of any party to seek redress for violation of or to insist upon
the strict performance of any covenant or condition of this Agreement of Limited
Partnership shall not prevent a subsequent act, that would have originally constituted a
violation, from having the effect of an original violation.
14.10 Rights and Remedies Cumulative. The rights and remedies provided by this
Agreement of Limited Partnership are cumulative and the use of anyone right or remedy
by any party shall not preclude or waive the right to use any or all other remedies. Said
rights and remedies are given in addition to any other rights the parties may have by law,
statute, ordinance or otherwise.
14.11 Severability. If any provision of this Agreement of Limited Partnership or its
application to any person or circumstance shall be invalid, illegal or unenforceable to any
extent, the remainder of this Agreement of Limited Partnership and its application shall
not be affected and shall be enforceable to the fullest extent permitted by laws.
14.12 Heirs, Successors and Assigns. Each and all of the covenants, terms, provisions
and agreements contained in this Agreement of Limited Partnership shall be binding upon
and inure to the benefit of the parties hereto and, to the extent permitted by this
Agreement of Limited Partnership, their respective heirs, legal representatives, successors
and assigns.
14.13 Creditors. None of the provisions of this Agreement of Limited Partnership
shall be for the benefit of or enforceable by any creditors of the Limited Partnership.
14.14 Counterparts. This Agreement of Limited Partnership may be executed in
counterparts, each of which shall be deemed an original but all of which shall constitute
one and the same instrument.
14.15 Rule Against Perpetuities. The parties to this Agreement of Limited
Partnership intend that the Rule against Perpetuities (and any similar rule of law) not
apply to any provisions of this Agreement of Limited Partnership. However,
notwithstanding anything to the contrary in this Agreement of Limited Partnership, if any
provision in this Agreement of Limited Partnership would be invalid or unenforceable
because of the Rule Against Perpetuities or any similar rule of law but for this section,
the parties to this Agreement of Limited Partnership hereby agree that any future interest
which is created pursuant to said provision shall cease if it is not vested within 21 years
after the death of the survivor of the group composed of the General Partners and Limited
Partners identified on Exhibit B and their issue who are living on the date this Agreement
of Limited Partnership and their issue, if any, who are living on the effective date of this
Agreement of Limited Partnership.
- 22 -
14.16 Investment Representations. The parties to this Agreement of Limited
Partnership agree as follows with respect to investment representation.
a. The undersigned General Partners and Limited Partners, if any understand:
1. That the Partnership Interests evidenced by this Agreement of
Limited Partnership have not been registered under the Securities Act of
1933, 15 U.S.C. 15(b) et seq., the New Mexico Securities Act or any other
state securities laws (the "Securities Acts") because the Limited
Partnership is issuing these Partnership Interests in reliance upon the
exemptions from the registrations requirements of the Securities Acts
providing for issuance of securities not involving a public offering;
2. That the Limited Partnership has relied upon the fact that the
Partnership Interests are to be held by each General Partner and Limited
for investment; and
3. That exemption from registration under the Securities Acts would
not be available if the Partnership Interest were acquired by a Partner with
a view to distribution.
b. Accordingly, each General Partner and Limited Partner hereby confirms to
the Limited Partnership that the General Partner and Limited Partner is acquiring
the Partnership Interests for the General Partner's and Limited Partner's own
account for investment and not with a view to resale or distribution.
1. Each General Partner and Limited Partner agrees not to transfer,
sell or offer for sale any portion of the General Partnership Interests or
Partnership Interests unless there is an effective registration or other
qualification relating thereto under the Securities Act of 1933 and under
any applicable state securities laws or unless the holder of General
Partnership Interests or Partnership Interests delivers to the Limited
Partnership an opinion of counsel, satisfactory to the Limited Partnership,
that the registration or other qualification under the Securities Act of 1933
and applicable state securities laws is not required in connection with the
transfer, offer or sale.
2. Each General Partner and Limited Partner understands that the
Limited Partnership is under no obligation to register the General
Partnership Interests or Partnership Interest or to assist the General Partner
or Limited Partner in complying with any exemption from registration
under the Acts if the General Partner or Limited Partner should at a later
date wish to dispose of the General Partnership Interest or Partnership
Interest.
3. Furthermore, each General Partner and Limited Partner realizes
- 23 -
that the General Partnership Interests and Partnership Interests are unlikely
to qualify for disposition under Rule 144, 17 C.F.R. §230.144 (1992) of
the Securities and Exchange Commission unless the General Partner is not
an "affiliate" of the Limited Partnership and the General Partnership
Interest or Partnership Interest has been beneficially owned and fully paid
for by the General Partner or Limited Partner for at least three years.
c. Before acquiring the Partnership Interests, each General Partner and
Limited Partner has investigated the Limited Partnership and its business and has
had made available to each General Partner and Limited Partner all information
necessary for the General Partner or Limited Partner to make an informed
decision to acquire the Partnership Interest. Each General Partner and Limited
Partner considers itself to be a person possessing experience and sophistication as
an investor adequate for the evaluation of the merits and risks of the General
Partner's or Limited Partner's investment in the Partnership Interest.
- 24 -
SEP.28.2005 5: 16PM REIT' & ASSOCIATES
N0.940 r.e
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR TITAN VALLEY PARK,LIMITED PARTNERSHIP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
GENERAL PARTNER:
TITAN DEVELOPMENT OF TEXAS,LLC
a New Mexico limited liability company
By: 4g"' --�
Ben F. Spencer,Manager
6300 Riverside Plaza Lane NW, Suite 200
Albuquerque,New Mexico 87120
Federal Tax Identification Number: 20-2468693
Initial Capital Contribution: (see Exhibit B)
Initial Partnership Interest: (see Exhibit B)
-25 -
SEP.28.2005 5: 16PM REID & HSSOC1HILb FIV.7 +u r .o
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR TITAN VALLEY PARK, LIMITED PARTNERSHIP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
LIMITED PARTNER
Reid Inv- I s, Inc.
By:
Kevin L. Reid, President
6300 Riverside Plaza Lane NW, Suite 220
Albuquerque,New Mexico 87120
Taxpayer Identification Number: 83-0484066
Initial Capital Contribution: (see Exhibit B)
Initial Limited Partnership Interest: (see Exhibit B)
-26-
SEP.28.2005 5: 16PM REIP & ASSOCIATES
IYV.y4b r.4
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR TITAN VALLEY PARK,LIMITED PARTNERSHIP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
LIMITED PARTNER
Ben F. Spencer
6300 Riverside Plaza Lane NW, Suite 200
Albuquerque,New Mexico 87120
Social Security Number: 585-42-2201
Initial Capital Contribution: (see Exhibit B)
Initial Limited Partnership Interest: (see Exhibit B)
- 27 -
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR TITAN VALLEY PARK, LIMITED PARTNERSHIP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
LIMITED PARTNER
Ron W. Mills
3707 North St. ary's, Suite 100
San Antonio, Texas 78212
Social Security Number: 464-21-2348
Initial Capital Contribution: (see Exhibit B)
Initial Limited Partnership: (see Exhibit B)
- 28 -
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR TITAN VALLEY PARK,LIMITED PARTNERSHIP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
LIMITED PARTNER
David R. Hillman
710 Cinnamon Oak Lane
Houston,Texas 77079
Social Security Number: 450-47-0016
Initial Capital Contribution: (see Exhibit B)
Initial Limited Partnership Interest: (see Exhibit B)
29 -
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR TITAN VALLEY PARK,LIMITED PARTNERSHIP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
LIMITED PART P4 ER
Wilb- L. Sis on
11A v. a.y L ne
Houston, Texas 77063
Social Security Number: 453-86-1254
Initial Capital Contribution: (see Exhibit B)
Initial Membership Interest and Economic Interest Percentage: (see Exhibit B)
.3'-‘0‘ V k'tel c) .) she, Zr)
a`7. -11 -110‘C\
-30-
ORIGINAL CERTIFICATE AND SIGNATURE PAGE
TO AGREEMENT OF LIMITED PARTNERSHIP
FOR TITAN VALLEY PARK,LIMITED PARTNERSHIP
The undersigned hereby agree, acknowledge and certify that the foregoing
Agreement of Limited Partnership constitutes the Agreement of Limited
Partnership as adopted by the General Partners of the Limited Partnership effective
as of the date set forth hereinabove.
LIMITED PARTNER
Kirk Sp' ge
lefer
Social Security Number: 4(d2.7 33 4330
Initial Capital Contribution: (see Exhibit B)
Initial Limited Partnership Interest: (see Exhibit B)
- 32 -
THIS PAGE INTENTIONALLY LEFT BLANK
- 33 -
EXHIBIT A
L__*-- PLEDGER REUE AND ASSOCIATES
'' "7' LAND SURVEYORS
ALL TIIAT CERTAIN TRACT OR PARCEL OF LAND, lying and being situated in the J.E. Scott
League.A-50.College Station. Brazos County,Texas and being all of the 2.00-acre tract conveyed from
Por Nada Joint Venture to Southcorp Holdings 1, LP. as recorded in Volume 4818, Page 215 of the
Official Records of Brazos County. Texas{O.R.B.C.)and all of the remainder of the 11.635-acre tract
conveyed from Interstate Promotional Printing Company to Por Nada Joint Venture as recorded in Volume
474,Page 811 of the O.R.B.C.and being more particularly described as follows:
BEGLNNLNG at a 5/8"iron rod set for the most westerly corner of this tract,also being the west corner of
the sad Southcorp tract,also being the west corner of the said Por Nada tract,also being the north corner
of the Texas A&M University System 6.89-acre tract as recorded in Volume 1066, Page 602 of the
O.R.B.C.,also tying in the southeast line of the'I'wyla T.Benson 10.15-acre tract as recorded in Volume
4136,Pages 217,221,225, 229,233, 237,241, and 245 of the O.R.B.C.,a 4"x 4"concrete monument
bears N 62'26'06"E,0.45 ft;
THENCE following a fence along the northwest line of this tract N 44"49'58"E,425.44 feet to a 5/8"iron
rod set at a fence corner for the most northerly corner of this tract,also being the north corner of the said
Southcorp tract,also being the north corner of the said Por Nada tract,also being the east corner of the said
Benson tract,also lying in the southwest line of 14.M.2818:
THENCE following a fence along the northeast line of this tract and the southwest line of F.M. 2818 the
following calls:
S 42°25'09"E,187.17 feet to a TxDOT concrete ROW monument;
S 39°50'28"E,pass at 20.72 feet the east corner of the said Southcorp tract,a total distance of
399.77 feet to a TxDOT concrete ROW monument;
S 35°43'32"13,401.44 feet to a TxDOT concrete ROW monument;
S 28'21°37"E,552.01 feet to a TxDOT concrete ROW monument;
S 10'44'12"E, 255.39 feet to a 5/8"iron rod set for the most southerly corner of this tract,also
being the south corner of the said For Nada tract,also being a northeast corner of the said
TAMUS tract, a 1/2" iron rod bears N 10'00'53" W. 3.90 feet,an old fence corner post
bears N 20`27'53"W,3.70 feet:
THENCE along the southwest line of this tract N 45°29'00" W. pass at 1157 feet an 8" elm, pass at
1512.37 a 1(2"iron rod found at the south corner of the said Southcorp tract,a total distance of 1720.11
feet to the PLACE OF BEGINNING containing 11.635 acres.
Syfr yg_Yor Certification;
I,Jotn E.Pledger,III,Registered Professional Land Surveyor,do hereby certify that the above description
represents the results of an on the ground survey made under my direction and supervision,that all corners
are marked as shown,and the description is,to the best of my knowledge,true and correct.
{t ty
/elf ''
Q- ' o ;,
Jo'l A Pledger,Ill —July 15,2005 L 1'°f"essl° a°,
Regis red Professional.Land Surveyor No.2183 \.:e..'r.�'a'•s -'
Job No.51905-231
Page 1 of I
F.Wr j act FilviOmw°rati SCRV'EY t 11,561d.En!dm
P.D.Box 1736(77834-1T36)•1500 South Day Street•Brenham,Texas 77833•(979)836-6631
- .34 -
EXHIBIT B
SUMMARY OF INITIAL PARTNERS
General Partner Initial Initial
Capital Contribution Partnership Interest
Percentage
Titan Development of Texas, LLC, a
New Mexico limited liability $$5,200.00 1.00%
company
Limited Partners Initial Initial
Capital Contribution Partnership Interest
Percentage
Ben F. Spencer $97,396.00 18.73%
Reid Investment, Inc. $97,396.00 18.73%
David R. Hillman $46, 800.00 9%
Wilbert L. Sisson $213,200.00 41%
Ron W. Mills $30,000.00 5.77%
Kirk Springer $30,000.00 5.77%
- 35 -
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