PARTNERSHIP AGREEMENT OF CROSSMANN COMMUNITIES PARTNERSHIP
Exhibit 3.2(p)
THIS AGREEMENT, made as of the 1st day of September, 1993, by and among Deluxe
Homes Inc., an Indiana corporation (“DHI), Deluxe Homes of Lafayette, Inc., an Indiana corporation
(“DHLI”), TriMark Homes, Inc., an Indiana corporation (“THI”), and TriMark Development, Inc., an
Indiana corporation (“TDI”) (hereinafter referred to individually as a “Partner” and collectively
as the “Partners”),
WITNESSETH THAT:
WHEREAS, the Partners desire to form a general partnership in order to carry on a general
business of development, construction and sales of single-family homes.
NOW, THEREFORE, it is agreed as follows:
ARTICLE I
Formation of Partnership
The parties hereto do hereby form a general partnership (hereinafter referred to as the
“Partnership”) pursuant to the provisions of the Uniform Partnership Act of the State of Indiana.
ARTICLE II
Name of Partnership and Names of Partners
The name of the Partnership is Crossmann Communities Partnership.
The names and addresses of the Partners are:
Deluxe Homes Inc.
|
TriMark Homes, Inc. | |
0000 Xxxx 00xx Xxxxxx
|
0000 Xxxx 00xx Xxxxxx | |
Xxxxxxxxxxxx, XX 00000
|
Xxxxxxxxxxxx, XX 00000 | |
Deluxe Homes of Lafayette, Inc.
|
TriMark Development, Inc. | |
X.X. Xxx 0000
|
0000 Xxxx 00xx Xxxxxx | |
Xxxxxxxxx, XX 00000
|
Xxxxxxxxxxxx, XX 00000 |
ARTICLE III
Purpose
The purpose of the partnership is to develop, construct and sell single-family homes and to do
all other things which are appropriate for the furtherance of the business of the Partnership.
ARTICLE IV
Place of Business
The location of the principal place of business of the Partnership shall be 0000 Xxxx 00xx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 or such other place as may be determined from time to time with
the consent of all of the Partners.
ARTICLE V
Term
The term of the Partnership shall commence immediately upon the filing of Articles of Share
Exchange with the Secretary of State of the State of Indiana for the: (i) share exchange pursuant
to which DHI shall become a wholly owned subsidiary of Crossmann Communities, (“CCI”); (ii) share
exchange pursuant to which DHLI shall become a wholly owned subsidiary of CCI; (iii) share exchange
pursuant to which THI shall become a wholly owned subsidiary of CCI; and (iv) share exchange
pursuant to which TDI shall become a wholly owned subsidiary of CCI, and shall continue until
terminated by the consent of all of the Partners.
ARTICLE VI
Capital Contributions
The Partners shall determine from time to time, with the consent of all of the Partners, the
amount of the capital to be contributed to the Partnership. Each Partner shall initially
contribute to the capital of the Partnership all of the currently owned operating assets of such
Partner (net of the liabilities of each Partner). The capital contributions of the Partners may not
be withdrawn except with the consent of all of the Partners.
ARTICLE VII
Profits and Losses
Each Partner shall share the net profits, net losses, and distributions of the Partnership as
follows:
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| Name | Percentage | |||
DHI |
27.5 | % | ||
DHLI |
17.5 | % | ||
THI |
27.5 | % | ||
TDI |
27.5 | % | ||
ARTICLE VIII
Management of Business
Section 8.1 Designation of Managing Partner. DHI is hereby designated the
Managing Partner of the Partnership.
Section 8.2 Powers of Managing Partner. The Managing Partner shall have the
full, complete and exclusive power and authority to manage the business of the Partnership and to
conduct its affairs including, but not limited to, the power:
(a) to acquire by purchase, lease, or otherwise real estate or other property for cash
or upon credit, and upon such other terms and conditions as they determine;
(b) to maintain, operate, and lease the property of the Partnership and improvements
thereon;
(c) to sell, exchange, or otherwise dispose of all the assets of the Partnership or any
part thereof;
(d) to hire employees, agents and independent contractors;
(e) to borrow money from the Partners or from others and in connection therewith to
mortgage, pledge or otherwise encumber the property of the Partnership;
(f) to enter into make, perform and carry out, or cancel and rescind, contracts;
(g) change the names of the Managing Partner;
(h) to delegate to others the management of the business of the Partnership;
(i) to effect any refinancing of the obligations of the Partnership;
(j) to have and exercise all such other powers as are necessary or appropriate to
effect the purposes for which the Partnership is formed.
Section 8.3 Exercise of Powers by Managing Partner. In exercising its powers
hereunder the Managing Partner may deal with one or more of the Partners or with any firm or
corporation in which one or more of the Partners have an interest. The transactions of the
Partnership shall be on such terms and
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conditions and for such considerations as the Managing
Partner deems advisable in its sole discretion; provided, however, that any transactions between
the Partnership and an officer or director of any Partner or an officer or director of any entity
that owns or controls at least 50% of the equity interest in such Partner (a “Parent Entity”) or
any transaction between the Partnership and any entity, the equity in which is at least 10% owned
or controlled by an officer or director of any Partner or an officer or director of a Parent
Entity, must be approved by the Board of Directors of the Parent Entity. The foregoing powers
include the power to deal with the assets of the Partnership which might or will involve periods of
time after the Partnership has been dissolved or terminated. Instruments to be signed for and on
behalf of the Partnership may be signed by the Managing Partner.
Section 8.4 Efforts of Managing Partner. The Managing Partner shall devote so
much of its time as is reasonable to ensure the proper conduct of the business of the Partnership.
The Managing Partner may also devote time to other business, whether or not similar in nature to
the business of the Partnership. The Managing Partner shall be reimbursed for expenses incurred by
it on behalf of the Partnership. The Managing Partner shall not receive any fee for the management
of the business of the Partnership, however, it may incur management costs for the management of
the business of the Partnership by others.
The Managing Partner shall be liable, responsible or accountable in damages or otherwise to
the Partnership or the other Partner for any of its acts or omissions within the scope of the
authority conferred on it by this agreement except in the event of fraud or gross negligence. The
Partnership shall indemnify the Managing Partner and hold it harmless against liability to third
parties for the acts or omissions within the scope of the authority as Managing Partner hereunder.
Section 8.5 Limitation on Powers of Other Partners. The non-managing Partners
shall not participate in or have any control over the management of the business of the
Partnership.
ARTICLE IX
Fiscal Regulations
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The Partnership books shall be maintained at the principal place of business of the
Partnership or at such other place as may be determined from time to time with the consent of all
of the Partners. The books shall be kept on a calendar year basis. All funds of, the Partnership
shall be deposited in its name in such checking account or accounts as shall be agreed upon by the
Partners. Withdrawals therefrom may be made by checks signed by any one Partner.
ARTICLE X
Withdrawal or Assignment
A Partner shall not have the right to withdraw from the Partnership. In the event a Partner
does desire to withdraw from the Partnership the other Partner shall have the right to purchase the
withdrawing Partner’s interest at the then book value of such interest. A Partner shall have the
right to assign its interest with the consent of the other Partner.
ARTICLE XI
General
The rights and liabilities created by this agreement shall inure to the benefit of, or be
binding upon, the personal representatives, heirs, devisees, assigns and other successors of the
Partners.
IN WITNESS WHEREOF, the undersigned have executed this agreement the day and year first above
written.
| DELUXE HOMES, INC. | ||||
| By: | /s/
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| Its: | ||||
| DELUXE HOMES OF LAFAYETTE, INC. | ||||
| By: | /s/
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| Its: |
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| TRIMARK HOMES, INC. | ||||
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| By: | /s/
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| Its: | ||||
| TRIMARK DEVELOPMENT, INC. | ||||
| By: | /s/
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| Its: | ||||
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I. Amendments.
The undersigned, being all of the Partners of Crossmann Communities Partnership, an Indiana
general partnership (the “Partnership”), hereby agree to amend the Partnership Agreement of the
Partnership made as of the 1st day of September, 1993, as previously amended (the
“Partnership Agreement”), in the following respects:
A. Article II of the Partnership Agreement, “Name of Partnership and Names of Partners,” is
hereby amended and restated in its entirety to read as follows:
“The name of the partnership shall be Beazer Homes Indiana LLP.”
“The names and addresses of the Partners are:
| Deluxe Homes of Lafayette, Inc. | Beazer Homes Investments, LLC | |||
| 0000 Xxxxxxxxx Xxxx, Xxxxx 0000 | 0000 Xxxxxxxxx Xxxx, Xxxxx 0000 | |||
| Xxxxxxx, XX 00000 | Xxxxxxx, XX 00000 |
B. Article VII of the Partnership Agreement is hereby amended and restated in its entirety to
read as follows:
“Each Partner shall share the net profits, net losses, and
distributions of the Partnership as follows:
| Name | Percentage | |||
Beazer Homes Investments, LLC |
83.111 | % | ||
Deluxe Homes of Lafayette, Inc. |
16.889 | %” | ||
C. Article VIII, Section 8.1 of the Partnership Agreement, “Designation of Managing Partner,”
is hereby amended and restated in its entirety to read as follows:
“Section 8.1. Designation of Managing Partner.
Beazer Homes Investments, LLC is hereby designated the Managing
Partner of the Partnership.”
D. The following is hereby added as Article XII to the Partnership Agreement:
“Limited Liability. From and after the registration of
the partnership as a limited liability partnership under applicable
law, the provisions of this Article shall be applicable. No partner
shall be liable, directly or indirectly, including by way of
indemnification, contribution, or otherwise, for the debts,
obligations, or liabilities of, or chargeable to, the partnership or
other partners, whether arising in tort, contract, or otherwise, or
the acts or omissions of any other partner, solely by reason of
being a partner, acting or failing to act as a partner, or
participating as an employee, a consultant, a contractor, or
otherwise in the conduct of the business or activities of the
partnership while the partnership is a
limited liability
partnership. The partnership shall be solely
liable out of partnership assets for the debts, obligations, and
liabilities of the partnership. A partner’s liability for the
obligations of the partnership shall be limited to the aggregate
amount of such partner’s capital account and agreed upon
contribution to the partnership.”
The amendments contained herein shall be deemed effective on and after the date hereof. In all
other respects, the Partnership Agreement remains in full force and effect without any other
amendment.
II. Consent.
The undersigned partners hereby consent to, and authorize any partner to execute and file with
the Indiana Secretary of State, an appropriate registration form, substantially in the form of
Exhibit A attached hereto, to effect the establishment and registration of the partnership
as a limited liability partnership under and in accordance with the applicable laws of the State of
Indiana.
[Signature page follows]
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Executed as of the 27th day of December, 2004.
| BEAZER HOMES INVESTMENTS, LLC | ||
| By: Beazer Homes Corp., its Managing Member | ||
| /s/ Xxx X. XxXxxxxx | ||
| DELUXE HOMES OF LAFAYETTE, INC. | ||
| /s/ Xxx X. XxXxxxxx | ||
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