Exhibit 3.42
AGREEMENT OF LIMITED PARTNERSHIP
OF
LEGACY-XXXXXXXX MATERIALS, L.P.
THIS AGREEMENT OF LIMITED PARTNERSHIP is made and entered into on
August 7, 2003. It is between Meritage Holdings, LLC, a limited liability
company organized under the laws of the State of Texas, referred to in this
Agreement as the "General Partner," and Legacy/Monterey Homes, L.P., a limited
partnership organized under the laws of the State of Texas, as the initial
"Limited Partner."
ARTICLE I
DEFINITIONS
The following terms have the following meanings when used in this
Agreement:
"Act" means the Texas Revised Limited Partnership Act.
"Affiliate" means any person or entity that controls or is controlled
by the General Partner, or is controlled by the same person or entity that
controls the General Partner. In this definition, the term "control" includes
the ownership of more than 50 percent of the beneficial interest in the person
or entity.
"Agreement" means this Agreement of Limited Partnership, including any
amendments that may be made.
"Bankruptcy" means, as to any Partner, the Partner's taking, or
acquiescing in the taking, of any action seeking relief under, or advantage of,
any applicable debtor relief, liquidation, receivership, conservatorship,
bankruptcy, moratorium, rearrangement insolvency, reorganization or similar law
affecting the rights or remedies of creditors generally, as in effect from time
to time. For the purpose of this definition,"the term "acquiescing" shall
include, without limitation, the failure to file, within 10 days after its
entry, a petition, answer, or motion to vacate or to discharge any order,
judgment, or decree providing for any relief under any such law.
"Capital Contribution(s)" means the contribution(s) made to the capital
of the Partnership from time to time by a Partner in cash or property.
"Certificate" means the certificate of limited partnership to be filed
by the General Partner with the Secretary of State of Texas in accordance with
this Agreement
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Percentage Interest" means the interest of a Partner in the capital
and profits and losses of the partnership as initially set forth in Section 10.2
of this Agreement.
"Person" means an individual or a corporation, partnership, trust,
unincorporated organization, association, or other entity. "His" or "he" shall
also mean and refer, as appropriate, to the feminine and neuter pronouns.
"Required Interest" means one or more of the Limited Partners having
among them more than 66 2/3% of the Percentage Interest of all Limited Partners
in their capacity as such.
"Transfer" means the mortgage, pledge, hypothecation, transfer, sale,
assignment, or other disposition of any part or all of an interest in the
Partnership by any Partner, whether voluntarily, by operation of law or
otherwise.
ARTICLE II
GENERAL
FORMATION
2.01. By this Agreement, the General Partner and the Limited Partner
form and establish the Partnership pursuant to the Act. Prior to conducting any
business in any jurisdiction, the General Partner shall promptly file the
Certificate as required by the Act and comply with all other legal requirements
for the formation and operation of the Partnership. Except as expressly provided
in this Agreement, the Act shall govern the rights and liabilities of the
Partners.
NAME
2.02. The name of the Partnership shall be LEGACY-XXXXXXXX
MATERIALS, L.P. The General Partner may change the name of the Partnership or
adopt such trade or fictitious names as it may determine appropriate.
INVESTMENT
2.03. The Limited Partner represents that it is acquiring an
interest in the Partnership for investment for its own account, and not with a
view to any sale or distribution of that interest.
MERGER OR CONVERSION
2.04. The Partnership may merge with or convert into another limited
partnership or other business entity, or enter into an agreement to do so, only
with the consent of the General Partner and a Required Interest.
ARTICLE III
COMMENCEMENT DATE/TERM OF PARTNERSHIP
The Partnership shall commence and be effective on the date the
Certificate is filed with the Secretary of State of the State of Texas. The
Partnership shall continue until terminated as provided in this Agreement or by
January 1, 2050, whichever occurs first.
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ARTICLE IV
PURPOSES
The purpose of the Partnership shall be the acquisition and sale of
building materials and to engage in any or all other lawful acts.
ARTICLE V
GENERAL PARTNER AND PLACE OF BUSINESS
The General Partner of the Partnership is MERITAGE HOLDINGS, LLC, with
offices at 0000 Xxxx Xxxx Xxxx., Xxxxx, Xxxxx 00000. The principal place of
business for the Partnership will be 0 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxx 00000.
The General Partner may maintain other offices for the Partnership as it may
determine to be necessary or advisable from time to time. Any requests for
information concerning the Partnership shall be directed to the General Partner
at the principal place of business of the Partnership. CT Corporation System
shall serve as the registered agent of the Partnership. The address of the
registered agent of the Partnership shall be 000 Xxxxx Xx. Xxxx Xxxxxx, Xxxxxx,
Xxxxx 00000. The address and the name of the registered agent of the Partnership
may be changed as the General Partner may designate by written notice to the
Limited Partners and by filing an amended Certificate with the Secretary of
State.
ARTICLE VI
CAPITAL CONTRIBUTIONS
GENERAL PARTNER'S CONTRIBUTION
6.01. At the time of execution of this Agreement, the General
Partner shall contribute ten dollars ($10.00) capital to the Partnership as its
initial Capital Contribution.
LIMITED PARTNER'S CONTRIBUTIONS
6.02. LEGACY/MONTEREY HOMES, L.P., the Limited Partner, shall
contribute nine-hundred and ninety dollars ($990.00) to the capital of the
Partnership. In exchange for this contribution, the initial Limited Partner will
have the Percentage Interest in the Partnership set forth in paragraph 10.02 of
this Agreement.
LIMITED LIABILITY FOR LIMITED PARTNERS
6.03. The liability of the Limited Partner to the Partnership is
limited to the amount of its Capital Contributions. Accordingly, the
contributions called for in paragraph 6.02 are the only property the Limited
Partner is required to furnish to the Partnership, whether by way of
contribution, loan, or otherwise. However, the Limited Partner is entitled to a
return of its Capital Contribution(s) only as provided in this Agreement.
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VOLUNTARY CONTRIBUTIONS
6.04. At any time, the General Partner may determine that additional
contributions of cash or property to the Partnership are desirable. Within 10
days following the receipt of notice from the General Partner, the Limited
Partner may contribute cash or property to the Partnership as a "Voluntary
Capital Contribution" on the terms and subject to the conditions set forth in
the notice from the General Partner. All such additional Voluntary Capital
Contributions shall be requested in proportion to the then Percentage Interests
of the Partners in the Partnership.
READJUSTMENT OF PERCENTAGE INTERESTS
6.05. If any Partner elects to participate in a Voluntary Capital
Contribution as described in paragraph 6.04 in an amount smaller than that
Partner's current, Percentage Interest, or elects not to participate at all,
then the Percentage Interests of the Partners shall be readjusted based on the
newly adjusted capital account balance of each Partner. Nothing in this
Agreement shall obligate any Partner to make any additional contributions to the
Partnership.
ARTICLE VII
CAPITAL ACCOUNTS
ESTABLISHMENT OF CAPITAL ACCOUNTS
7.01. Separate capital accounts shall be established and maintained
for each Partner in accordance with Section 1.704-1(b)(2)(iv) of the Treasury
Regulations, as amended from time to time.
CREDITS AND DEBITS
7.02. All Capital Contributions of a Partner, its allocable share of
Partnership income and loss, and cash or property distributions made to such
Partner shall be credited or charged to such Partner's individual capital
account as the case may be. To the extent an allocation or adjustment is not
specifically described by this provision of the Agreement that item shall be
reflected in the Partners' capital accounts in accordance with Section
1.704-1(b)(2)(iv) of the Treasury Regulations, as amended from time to time. The
capital accounts shall not bear interest.
ACCOUNTING FOR PARTNER'S LOANS
7.03. Loans made by a Partner to the Partnership shall not be
considered Capital Contributions.
RETURN OF CAPITAL
7.04. No Partner has the right to demand the return of its Capital
Contribution other than in cash and except as provided in this Agreement.
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LIQUIDATION
7.05. When the Partnership is liquidated, each Partner with a
deficit in his or her capital account (whether by virtue of failure to make an
initial contribution, loans, distribution, or any other reason) will be
obligated to contribute to the capital of the Partnership an amount of cash
equal to the deficit in the capital account balance. The cash must be paid
within 90 days after the date of the liquidation, and the amounts so contributed
may be paid to the creditors of the Partnership or distributed to the other
Partners in the ratio of the then positive balances in their respective capital
accounts.
PARTITION
7.06. All interests in the property owned by the Partnership shall
be deemed owned by the Partnership as an entity. No Partner, individually, shall
have any ownership of such property or interest except as a Partner in the
Partnership. Each of the Partners irrevocably waives, during the term of the
Partnership and during any period of its liquidation following any dissolution,
any right that it may have to maintain any action for partition with respect to
any of the assets of the Partnership.
ARTICLE VIII
CONTROL AND MANAGEMENT
ROLE OF GENERAL PARTNER
8.01.
(a) The General Partner has full, exclusive, and complete
discretion in the management and control of the Partnership for any the purposes
set forth in Article IV of this Agreement, unless specifically stated otherwise
in this Agreement.
(b) The General Partner agrees to conduct the operations
contemplated under this Agreement in a careful and prudent manner, and in
accordance with good industry practice.
(c) The General Partner (or any successor to the General Partner)
agrees to serve as general partner of the Partnership until the Partnership is
terminated without reconstitution as provided below.
GENERAL PARTNER'S AUTHORITY
8.02. Subject to any limitations expressly set forth in this
Agreement the General Partner is expressly authorized to perform any of the
following acts on behalf of the Partnership:
(a) Any and all acts necessary or appropriate to the acquisition
and management of the Partnership and interests in the Partnership.
(b) Maintenance of all necessary Partnership books and records.
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(c) Commencement of litigation or defense of litigation, including
settlement of any litigation, involving the Partnership.
(d) Establishment of bank accounts in which all Partnership funds
shall be deposited and from which payments shall be made.
(e) Procuring and maintaining insurance with responsible companies
as may be available in such amounts and covering such risks as are deemed
appropriate by the General Partner.
(f) Taking and holding all real, personal, and mixed property of
the Partnership in the name of the Partnership.
(g) Executing and delivering, on behalf of and in the name of the
Partnership, contracts, agreements, and other documents.
(h) Coordinating all accounting and clerical functions of the
Partnership and employing accountants, lawyers, engineers and other management
or service personnel as may from time to time be required to carry on the
business of the Partnership.
(i) Filing tax returns and making elections on behalf of the
Partnership as provided under the Code.
LIMITATIONS
8.03. Notwithstanding the generality of the General Partner's
authority, the General Partner is not empowered, without the consent of a
Required Interest, to:
(a) Do any act in contravention of this Agreement.
(b) Do any act that would make it impossible to carry out the
ordinary business of the Partnership, except as specifically permitted by the
terms of this Agreement.
(c) Confess a judgment against the Partnership.
(d) Possess Partnership property or assign any rights in specific
Partnership property for other than a Partnership purpose.
(e) Require any Partner to make any contribution to the capital of
the Partnership not provided for in this Agreement.
(f) Amend this Agreement.
OTHER AND COMPETING ACTIVITIES
8.04. Any Partner may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar to, or competitive with the business conducted by the Partnership.
Neither the Partnership nor any Partner shall have any
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rights in or to such independent ventures or the income or profits derived from
these other activities.
LIABILITY OF GENERAL PARTNER
8.05. The General Partner is not liable, responsible, or accountable
in damages or otherwise to the Limited Partners or the Partnership for any act
performed by the General Partner in good faith and within the scope of this
Agreement. The General Partner is liable to the Limited Partners only for
conduct that involves gross negligence, bad faith, or fraud.
INDEMNIFICATION OF GENERAL PARTNER
8.06. The Partnership shall indemnify and hold harmless the General
Partner and its officers, directors, agents, and representatives from and
against any loss, damage, liability, cost or expense (including reasonable
attorneys' fees) arising out of any act or failure to act by the General
Partner, specifically including its sole, partial, or concurrent negligence, to
the greatest extent permitted under the Act.
CONTRACTS WITH AFFILIATES
8.07. Notwithstanding anything in this Agreement to the contrary, it
is understood and agreed that the Partnership may employ any Partner and any
person affiliated with any Partner to render services on behalf of the
Partnership and may compensate the person rendering the services on customary
terms and at competitive rates. Neither the Partnership nor the other Partners
shall have any rights in or to any profits derived from any fees paid by the
Partnership for such services.
TAX MATTERS PARTNER
8.08. The General Partner is authorized and required to represent
the Partnership in connection with all examinations of the Partnership affairs
by tax authorities, including administrative and judicial proceedings, and to
expend Partnership funds for professional services and costs in connection with
such examinations. The General Partner is to be the "Tax Matters Partner" for
federal tax purposes and has authority, in its sole and absolute discretion, to
represent the Partnership and the Partners in this regard. The Limited Partner
agrees to cooperate and to do or refrain from doing any and all things
reasonably required by the Tax Matters Partner to conduct these sorts of
proceedings.
ARTICLE IX
RIGHTS AND OBLIGATIONS OF LIMITED PARTNER
LIMITED LIABILITY
9.01. The Limited Partner has no personal liability whatsoever,
whether to the Partnership, the General Partner, or any creditor of the
Partnership, for any of the debts or losses of the Partnership beyond its
respective Capital Contributions to the Partnership.
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RETURN OF DISTRIBUTIONS
9.02. To the extent that the Partnership's liabilities to its
creditors are not discharged by the Partnership or by the General Partner, the
Limited Partner will be liable to return to the Partnership the proportionate
amount of any distribution made to the Limited Partner to the extent required by
the Act.
NO MANAGEMENT RIGHTS
9.03. The Limited Partner may not take part in the management of the
Partnership or transact any business for or on behalf of the Partnership. All
management responsibility is vested in the General Partner, subject to the
approval of the Limited Partner in those specific instances described in this
Agreement.
NO AUTHORITY TO BIND PARTNERSHIP
9.04. The Limited Partners have no power or authority to sign for or
to bind the Partnership. All authority to act on behalf of the Partnership is
vested in the General Partner.
RIGHTS SPECIFIED IN THE ACT
9.05. A Limited Partner shall be entitled to all rights of limited
partners contained in the Act to the extent that those rights have not been
superseded, or may not lawfully be superseded, by the provisions of this
Agreement.
ARTICLE X
PERCENTAGE INTERESTS; ALLOCATIONS AND DISTRIBUTIONS
ACCOUNTING PRINCIPLES
10.01. The net income and net loss of the Partnership (and each item
of income, gain, loss, deduction, or credit entering into the computation of net
income and net loss) shall be determined on an annual basis in accordance with
the accounting methods followed by the Partnership for federal income tax
purposes and otherwise in accordance with generally accepted accounting
principles and procedures.
PERCENTAGE INTERESTS.
10.02.
(a) The phrase "Percentage Interest" of each Partner means that
particular Partner's interest in the capital, net income, net loss, and
distributions of the Partnership as set forth in this paragraph of this
Agreement.
(b) The initial Percentage Interest of each Partner shall be as
set forth below:
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Partner Percentage Interest
General Partner 1%
Limited Partner 99%
(c) The Percentage Interest of each Partner may be adjusted from
time to time by the methods and for the reasons described elsewhere in this
Agreement, including but not limited to the provisions of paragraphs 6.04 and
6.05.
ALLOCATIONS
10.03. All net income, net losses, and credits and items of gain or
loss of the Partnership shall be allocated to each Partner in accordance with
each Partner's Percentage Interest.
DISTRIBUTIONS
10.04. All cash flow available for distribution to the Partners,
subject to the establishment of reserves in the General Partner's reasonable
determination, shall be distributed to the Partners in accordance with their
respective Percentage Interests.
COMPLIANCE WITH TREASURY REGULATIONS
10.05. It is intended that the allocation and distribution provisions
set forth in this Article X apply in a manner consistent with the provisions of
Sections 704 and 706 of the Code, and the Treasury Regulations promulgated for
those Sections. The General Partner shall have reasonable discretion to apply
the allocation and distribution provisions set forth in this Article X in any
manner consistent with Sections 704 and 706 of the Code and the Treasury
Regulations.
ARTICLE XI
LOANS TO PARTNERSHIP
Pursuant to a written agreement approved by the General Partner, any
Partner may lend funds to the Partnership for Partnership business. The amount
of any loan or advance by the Partner shall bear interest at the lesser of: (i)
one percent in excess of the prime rate as published from time to time by the
Wall Street Journal as determined by the date of the loan; or (ii) the maximum
permissible interest rate allowable under applicable usury laws. Loans made
under this provision of this Agreement shall be deemed an obligation of
indebtedness from the Partnership to the Partner, payable prior to any
distributions to the Partners.
ARTICLE XII
TRANSFERS OF PARTNERSHIP INTERESTS
RESTRICTION ON TRANSFERS BY LIMITED PARTNERS
12.01. The Limited Partner may not transfer any or all of its
respective interest in the Partnership without the prior written consent of the
General Partner. The General Partner may grant or withhold consent, even
arbitrarily, in its sole and absolute discretion.
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TRANSFER REQUIREMENTS
12.02. No permitted assignee or transferee of all or part of the
interest of the Limited Partner in the Partnership shall have the right to
become a substitute limited partner unless all of the following occur:
(a) The transferring Limited Partner has stated the intention that
the assignee become a limited partner in his or her own right in the instrument
of assignment;
(b) The assignee has executed an instrument reasonably
satisfactory to the General Partner, accepting and adopting the terms and
provisions of this Agreement;
(c) The assignor or assignee pays any reasonable expenses in
connection with the admission of the assignee as a Limited Partner;
(d) The General Partner consents to the assignee becoming a
substitute limited partner. The General Partner may withhold its consent, even
arbitrarily, in the sole and absolute discretion of the General Partner.
GENERAL PARTNER AS LIMITED PARTNER
12.03. If the General Partner should acquire an interest as a Limited
Partner, the General Partner shall, with respect to such interest, enjoy all the
rights and be subject to all the obligations and duties of a Limited Partner to
the extent of such interest.
TRANSFER BY GENERAL PARTNER
12.04. The General Partner may not transfer any or all of its
interest in the Partnership without the prior written consent of a Required
Interest. If a transfer is approved, the transferee assumes all of the
obligations of the General Partner and the General Partner shall be relieved of
all further obligations and responsibilities. If a transfer of the General
Partner's interest is approved, the transfer will not cause the dissolution of
the Partnership, which may continue with the transferee as the General Partner
the same as if the transferee had been the initial General Partner.
The restrictions on the transfer of the General Partner's interest in
the partnership do not apply to a transfer by the General Partner to an
Affiliate of the General Partner.
ARTICLE XIII
DISSOLUTION AND TERMINATION
EVENTS OF DISSOLUTION
13.01. The Partnership shall be dissolved and its business wound up
on the earliest occurrence of any one of the following events:
(a) The expiration of the term of the Partnership as set forth in
Article III.
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(b) The General Partner's determination, with the Limited
Partner's prior written consent, that the Partnership should be dissolved.
(c) The dissolution, withdrawal, or bankruptcy of the General
Partner, unless the Partnership is reconstituted in the manner prescribed in
paragraph 13.02 of this Agreement. The dissolution, withdrawal, or bankruptcy of
the General Partner will not result in the dissolution of the Partnership so
long as the successor to the General Partner's interest in the Partnership, in
accordance with paragraph 13.02, assumes all of the General Partner's
obligations under this Agreement.
ELECTION OF NEW GENERAL PARTNER
13.02. At the time of the withdrawal, dissolution, or bankruptcy of
the General Partner, the business of the Partnership shall be continued on the
terms and subject to the conditions of this Agreement if, within 90 days after
such event, the Limited Partners unanimously elect that the business of the
Partnership should be continued and, in such election, designate one or more
persons to be substituted as general partner. New General Partner(s) elected by
this procedure will succeed to all of the powers, privileges, and obligations of
the then-existing General Partner. The interest in the Partnership of the
General Partner who is succeeded by new General Partner(s) will become a Limited
Partner's interest in the Partnership. In the event of the dissolution,
withdrawal, or bankruptcy of the General Partner and the failure of the Limited
Partner to elect to continue the business of the Partnership, the Partnership
shall be terminated forthwith.
NO RELEASE FROM LIABILITIES
13.03. It is understood and agreed that no dissolution of the
Partnership releases or relieves any of the parties to this Agreement of their
contractual obligations under this Agreement.
DISTRIBUTIONS IN LIQUIDATION
13.04. If the business of the Partnership is not continued, the
General Partner shall, if possible, act as liquidator. If the General Partner
has itself dissolved, withdrawn from the Partnership, or declared or suffered a
bankruptcy, and if the Partnership is not reconstituted with a new General
Partner as provided in this Agreement, the Limited Partner shall act as
liquidator. The liquidator shall liquidate the assets of the Partnership, make
appropriate adjustments made to the capital accounts of the Partners, and
distribute the proceeds in the following order of priorities, so far as the
proceeds will go:
(a) To the payment of debts of the Partnership (other than loans
made from the Partners to the Partnership), including the expenses of
liquidation.
(b) To the repayment of any loans that have been made by the
Partners to the Partnership, but if the amount available for such repayment is
insufficient then pro rata up to the amounts available.
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(c) To all Partners pro rata in accordance with their respective
capital account balances, as adjusted, up to the amounts of those capital
accounts.
(d) To all Partners pro rata according to their respective
Percentage Interests in the partnership.
DISTRIBUTIONS IN KIND
13.05. In the event any or all of the assets of the Partnership
cannot be liquidated, those assets are to be distributed in kind according to
the priorities set forth in paragraph 13.04. Assets of the Partnership
distributed to the Partners shall be held and owned by the Partners as tenants
in common. In the event of the distribution of Partnership properties in kind,
the fair market value of such assets shall be determined by agreement of the
Partners. The amount of gain or loss which would have been realized by the
Partnership for federal income tax purposes if the assets had been sold at such
fair market value rather than distributed in kind shall be treated as gain or
loss from a disposition of the assets of the Partnership, and allocated among
the Partners in accordance with Article X, such allocations then being reflected
in the Partners' respective capital accounts.
ARTICLE XIV
ACCOUNTING
FISCAL YEAR
14.01. The fiscal year of the Partnership shall be the calendar year.
BOOKS AND RECORDS
14.02. The General Partner shall keep, or cause to be kept, full and
accurate records of all transactions of the Partnership in accordance with
principles and practices generally accepted for the cash or accrual method of
accounting.
INSPECTION OF RECORDS
14.03. Any Partner may, for any proper purpose during regular
business hours, inspect and copy any of the Partnership books and records at the
principal place of business of the Partnership as provided in Article V, or make
other reasonable inquiries as to Partnership affairs. Costs of reproducing or
copying Partnership books and records shall be at the expense of the
Partnership.
TAX RETURNS
14.04. Within 90 days after the end of each fiscal year, the General
Partner shall prepare, or cause to be prepared, federal income tax returns for
the Partnership and, in connection with those tax returns, make any available or
necessary elections. Copies of all income tax returns of the Partnership
proposed to be filed for any year shall be furnished to each Partner at least
fifteen (15) days prior to the date for filing the returns (including any
extensions applicable to such
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returns). The returns shall be filed by the General Partner on or before the due
date (including extensions).
ARTICLE XV
REPORTS AND STATEMENTS
Within 90 days after the end of each fiscal year of the Partnership,
the General Partner will deliver to the Limited Partner, at the Partnership's
expense, financial statements setting forth, as of the end of and for that
fiscal year, the following:
(a) A profit and loss statement and a balance sheet of the
Partnership.
(b) The balance in the capital account of each Partner.
(c) Any other information that, in the judgment of the General
Partner, is be reasonably necessary for the Limited Partner to be advised of the
results of operations of the Partnership.
ARTICLE XVI
BANK ACCOUNTS
The General Partner shall open and maintain a special bank account or
accounts in which all fends of the Partnership shall be deposited. Withdrawals
from this such account or these accounts may be made on the signature or
signatures of those persons designated by the General Partner.
The General Partner may not commingle the assets of the Partnership
with the assets of any other entity or person. However, the revenues and other
receipts of the Partnership may be deposited in a central account in the name of
the General Partner or an affiliate of the General Partner, so long as separate
entries are made on the books and records of the Partnership and on the books
and records of the affiliate reflecting deposits in the bank account of the
affiliate with respect to amounts received from the Partnership and withdrawals
from the bank accounts made for the purpose of disbursing funds to the
Partnership or for the purpose of paying liabilities of the Partnership.
ARTICLE XVII
NOTICES
Whenever any notice is required or permitted to be given under this
Agreement, the notice must be in writing and signed by or on behalf of the
person giving the notice. The notice will be deemed to have been given when
delivered by personal delivery or deposited in the United States mail, postage
prepaid, certified mail, return receipt requested, properly addressed to the
persons who must receive notice at the addresses listed in this Agreement or as
changed by written notice given according to this provision of this Agreement.
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ARTICLE XVIII
POWER OF ATTORNEY
The Limited Partner irrevocably appoints the General Partner, its
successors and assigns, as its respective true and lawful attorney-in-fact with
full power and authority, on their behalf and in their respective names, to
execute, acknowledge, swear to, deliver and, if appropriate, file in such
offices and places as may be required by law (i) any amendment to this Agreement
that may be required by a change in the name of the Partnership, change in
registered agent or similar matter, and (ii) any amendment to this Agreement
made in compliance with Article XIX. The power of attorney granted by the
Limited Partner to the General Partner is a special power coupled, with an
interest and. is irrevocable, and may be exercised by any party, who, at the
time of exercise, is a General Partner of the Partnership. The power of attorney
shall survive any transfer or abandonment of a Limited Partner's Partnership
interest, or the Limited Partner's withdrawal from the Partnership.
ARTICLE XIX
AMENDMENT
This Agreement may be amended or modified by written instrument
executed by both the General Partner and a Required Interest.
ARTICLE XX
RELIANCE ON AUTHORITY
Any person dealing with the General Partner as the representative of
the Partnership may rely on the authority of the General Partner. Persons
dealing with the General Partner have no obligation to ascertain the General
Partners compliance with the terms of this Agreement. Every contract, agreement,
deed, mortgage, note, or other document or instrument executed by the General
Partner with respect to any property of the Partnership shall be conclusive
evidence in favor of any and every person relying on the signature of the
General Partner that (i) at the time of the execution or delivery of the
document this Agreement was in full force and effect, (ii) the instrument or
document was duly executed in accordance with the terms and provisions of this
Agreement and is binding on the Partnership and all Partners, and (iii) the
General Partner was duly authorized and empowered to execute and deliver any and
every such instrument or document on behalf of the Partnership.
ARTICLE XXI
MISCELLANEOUS
APPLICABLE LAWS
21.01. This Agreement, and its application or interpretation, shall
be governed exclusively by its terms and construed in accordance with the
substantive federal laws of the United States and by the laws of the State of
Texas, including the Texas conflicts of laws rules.
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CUMULATIVE REMEDIES
21.02. Each party to this Agreement is entitled to all remedies
provided by this Agreement or in law or equity. All remedies in this Agreement
and in law or equity are cumulative, and the use of one right or remedy by any
party does not preclude or waive the right to use any or all other remedies.
COUNTERPARTS
21.03. This Agreement may be executed in any number of counterparts
with the same effect as if all parties had all signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
SUCCESSORS AND ASSIGNS
21.04. The terms, provisions, and agreements contained in this
Agreement are binding on and inure to the benefit of the parties and, to the
extent permitted by this Agreement, their respective successors and assigns.
ENTIRE AGREEMENT
21.05. This Agreement shall constitute the entire contract between
the parties. There are no other or further agreements outstanding not
specifically mentioned in this Agreement. However, the parties may amend and
supplement this Agreement, in writing, from time to time, in a manner and to the
extent provided by the terms of this Agreement, including but not limited to the
terms set out in Article XIX.
PERSONAL PROPERTY
21.06. The interests owned by the Partners in this Partnership are
personal property.
INVALIDITY OF PROVISIONS
21.07. In case any one or more of the provisions contained in this
Agreement are subsequently determined to be invalid, illegal, or unenforceable
in any respect, that invalidity or unenforceability does not destroy the basis
of the bargain among the Partners as expressed in this Agreement. The validity,
legality, and enforceability of the remaining provisions contained in this
Agreement shall not be affected or impaired in any way by the determination that
some portion or portions are invalid, illegal, or unenforceable.
SIGNATURE PAGES
21.08. Each Partner authorizes the General Partner to attach an
executed signature page to this Agreement.
ATTORNEYS FEES
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21.09. If any litigation is initiated by any Partner against another
Partner relating to this Agreement or its subject matter, the Partner prevailing
in such litigation shall be entitled to recover, in addition to all damages
allowed by law and other relief, all court costs and reasonable attorney's fees
incurred in connection with the litigation.
EXECUTED AND DATED as follows:
GENERAL PARTNER:
By: Meritage Holdings, LLC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx, Vice President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx, Xxxxx 00000
Date signed: August 7, 2003
LIMITED PARTNER:
By: Legacy/Monterey Homes, L.P.
By: MTH-Texas GP, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx, Vice President
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx, Xxxxx 00000
Date signed: August 7, 2003
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