HomeMy WebLinkAboutAgreement of Limited Partnership . . . .
EXHIBIT A
—...,*...-, PLEDGER REUE AND ASSOCIATES
. •f t__ LAND SURVEYORS
.
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
For Nada Joint Venture to Southcorp Holdings 1, L.P. as recorded in Volume 4818, Page 215 of the
Official Records of Brazos County. Texas (0.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:
BEGDINDIG 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 For 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" 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 F.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"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 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 2027'53"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.
smy cy or Certification;
L Job E.Pledger,HI,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.
.„....",--.-.7'.. .,..._
E..),,. ...
N £, 4-I
ct JaiN. E.PLIMOgR,1.11
Jo Itu, Pledger,Ill July 15,2005 Mr,;:•?!'ts sx°.-'-k° i
Regis red Professional Land Surveyor No.2183
Job No.51905-231
Page 1 of 1
1 EVrojpzi FikV.Documents,SURVTASt t:196Id fnl doc i
P.O.Box 1736(77834-1736)•1500 South Day Street•Brenham,Texas 77833•(979)836-6631
- .34 -
THIS PAGE INTENTIONALLY LEFT BLANK
- 33 -
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 Spr. ge
./ /
Social Security Number: 4627 3(5--
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 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 i'ER
Wilb- L. Sis on
i —
_ 1
11A *. 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)
3,10\ V\\\t,i, T?:r4_Aa: i She, 1M
1 aaA:).-,1 -r—►0V\
-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
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 -
I
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 -
SEP.28.2005 5: 16PM REID 9 flSSOCIATES NO.''40
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 -
SEP.28.2005 5: 16PM REID & R55OC1H I E5 yv•� +� r
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- , s, Inc.
By: ��_...i�-
Kevin L. Reid, President
6300 Riverside Plaza Lane NW, Suite 220
Albuquerque,New Mexico 87120
Taxpayer Identification Number: 85-0484066
Initial Capital Contribution: (see Exhibit B)
Initial Limited Partnership Interest: (see Exhibit B)
-26-
SEP.28.2005 5: 16PM REID ° ASSOCIATES NO.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 -
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 -
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 -
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 -
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 -
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 -
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
- 19 -
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
- 18
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
- 17 -
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
- 16 -
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
- 15 -
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
- 14 -
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.
- 13 -
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
- 12 -
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 eacha
nominal twenty percent (20%) per annum return, compounded monthly, on each
Partners Initial Capital Contribution; and
- 11 -
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
- 10 -
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
- 9 -
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.
- 8 -
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
- 7 -
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
I. 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 -
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 -
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 -
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 -
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 -
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:
ORDINANCE NO. 2010-3297
AN ORDINANCE MAKING CERTAIN AFFIRMATIVE FINDINGS AND
VACATING AND ABANDONING A 5,666 SQUARE FOOT, 20-FOOT WIDE
PUBLIC UTILITY EASEMENT, WHICH IS LOCATED ON LOTS 3 & 4 OF THE
VALLEY PARK CENTER SUBDIVISION ACCORDING TO THE PLAT
RECORDED IN VOLUME 7675, PAGE 282 OF THE DEED RECORDS OF BRAZOS
COUNTY, TEXAS.
WHEREAS, the City of College Station, Texas, has received an application for the
vacation and abandonment of a 5,666 square foot, 20-foot wide public utility easement,
which is located on Lots 3 & 4 of the Valley Park Center Subdivision according to the
plat recorded in Volume 7675, Page 282 of the Deed Records of Brazos County, Texas,
as described in Exhibit "A" attached hereto (such portion hereinafter referred to as the
"Easement"); and
WHEREAS, in order for the Easement to be vacated and abandoned by the City Council
of the City of College Station, Texas, the City Council must make certain affirmative
findings;now therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE
STATION, TEXAS:
PART 1: That after opening and closing a public hearing, the City Council finds the
following pertaining to the vacating and abandoning of the Easement
described in Exhibit "A" attached hereto and made a part of this ordinance
for all purposes.
1. Abandonment of the Easement will not result in property that does
not have access to public roadways or utilities.
2. There is no public need or use for the Easement.
3. There is no anticipated future public need or use for the Easement.
4. Abandonment of the Easement will not impact access for all public
utilities to serve current and future customers.
PART 2: That the Easement as described in Exhibit "A" be abandoned and vacated
by the City.
ORDINANCE NO. 2010-3297 Page 2
PASSED,ADOPTED and APPROVED this 10th day of November ,2010.
APPROVED:
i,
Mayor
ATTEST:
\A-Adu;,/ )144-04A4,—,
City Secret
APPROVED:
G,,tia xg..4 .1,-yu.
City Attorney