Exhibit 3.20(b)
LIMITED PARTNERSHIP AGREEMENT OF
X.X. XXXXXX MORTGAGE COMPANY, LP
Table of Contents
Page
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ARTICLE I DEFINITIONS ..................................... 3
ARTICLE II FORMATION AND INITIAL ORGANIZATION .............. 2
Section 2.1 Formation ....................................... 2
Section 2.2 Term ............................................ 2
Section 2.3 Name ............................................ 2
Section 2.4 Principal Office ................................ 2
Section 2.5 Registered Office and Registered Agent .......... 2
Section 2.6 Purpose ......................................... 2
ARTICLE III MANAGEMENT ...................................... 2
Section 3.1 Powers of the General Partner ................... 2
Section 3.2 Reliance by Third Parties on General Partner .... 3
Section 3.3 Duties of General Partner; Limitations. ......... 4
Section 3.4 Indemnification of General Partner .............. 4
Section 3.5 Limited Partners. ............................... 4
Section 3.6 Officers ........................................ 5
ARTICLE IV PARTNERS AND CAPITALIZATION ..................... 7
Section 4.1 Partners ........................................ 7
Section 4.2 Contributions ................................... 7
Section 4.3 Sources of Additional Funds...................... 8
Section 4.4 Loans and Guarantees by Partners and Affiliates . 8
ARTICLE V ACCOUNTING MATTERS .............................. 9
ARTICLE VI TAX MATTERS ..................................... 9
Section 6.1 Tax Elections ................................... 9
Section 6.2 Preparation of Tax Returns ...................... 9
Section 6.3 Tax Matters Partner ............................. 9
Section 6.4 Tax Allocations ................................. 9
ARTICLE VII DISTRIBUTIONS ................................... 9
ARTICLE VIII ASSIGNMENTS ..................................... 10
ARTICLE IX DISSOLUTION, WINDING UP AND LIQUIDATION ......... 10
Section 9.1 Dissolution ..................................... 10
Section 9.2 Liquidation ..................................... 10
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ARTICLE X MISCELLANEOUS ..................................... 10
Section 10.1 Modification, Termination and Waiver .............. 10
Section 10.2 Successors and Assigns ............................ 10
Section 10.3 Creditors ......................................... 10
Section 10.4 Personal Liability ................................ 10
Section 10.5 Entire Agreement .................................. 10
Section 10.6 Governing Law ..................................... 11
Section 10.7 Notices ........................................... 11
Section 10.8 Format of Agreement; Headings ..................... 11
Section 10.9 Plurals, etc ...................................... 11
Section 10.10 Counterparts ...................................... 11
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LIMITED PARTNERSHIP AGREEMENT OF
X.X. XXXXXX MORTGAGE COMPANY, LP
THIS LIMITED PARTNERSHIP AGREEMENT, dated as of January 27, 1999, among the
parties hereto,
W I T N E S S E T H:
In consideration of the mutual agreements and covenants contained herein,
the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Any references in this Agreement to an "Article" or " Section" are
references to articles or sections of this Agreement and the definitions set
forth in this Article shall apply throughout this Agreement.
"Act" - The Texas Revised Limited Partnership Act, as amended.
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"Agreement" - This Limited Partnership Agreement, as amended from time to
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time.
"Code" - The Internal Revenue Code of 1986, as amended.
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"General Partner" - A general partner of the Partnership.
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"Limited Partner" - A limited partner of the Partnership.
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"Partner" - A General Partner or a Limited Partner.
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"Partnership" - The limited partnership existing pursuant to this
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Agreement.
"Person" - An individual, corporation, partnership, limited partnership,
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limited liability partnership, limited liability company, professional
corporation, trust, business trust, estate, custodian, trustee, executor,
administrator, or other entity in its own or representative capacity.
"Principal Office" - The principal office of the Partnership where records
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are to be kept or made available under Section 1.07 of the Act.
"TRPA" - The Texas Revised Partnership Act, as amended.
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ARTICLE II
FORMATION AND INITIAL ORGANIZATION
Section 2.1 Formation. The parties hereto hereby form the
Partnership as a limited partnership under the Act upon filing the certificate
of limited partnership required by Section 2.01 of the Act.
Section 2.2 Term. The Partnership shall be dissolved and liquidated as
provided in Article IX.
Section 2.3 Name. The Partnership shall conduct its business and affairs
under the name of "X.X. Melody Mortgage Company, LP"; provided that the General
Partner may change the Partnership's name after notice to the Partners.
Section 2.4 Principal Office. The Principal Office shall be located at
0000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000; provided that the General
Partner may change the Principal Office to any other location in the United
States after notice to the Partners.
Section 2.5 Registered Office and Registered Agent. The Partnership's
registered office in Texas is located at 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000
and the Partnership's registered agent at that address is CT Corporation System.
The General Partner may change the registered office and registered agent of the
Partnership after notice to the Partners.
Section 2.6 Purpose. The purpose of the Partnership is to transact all
lawful business for which partnerships may be organized under the Act.
ARTICLE III
MANAGEMENT
Section 3.1 Powers of the General Partner. The General Partner shall
have the power to take any action in managing the Partnership's business and
affairs as may be necessary or appropriate to conduct its business including the
power:
(a) to acquire, invest in or otherwise participate in other partnerships,
corporations or other entities;
(b) to purchase or otherwise acquire, construct, deal in, sell, lease or
otherwise dispose of full or fractional interests in real property,
depreciable property or personal property of any kind and to buy or
hold insurance of any kind;
(c) to provide or contract for services of any kind; to make, enter into,
deliver and perform contracts, agreements and other undertakings; to
contract for the services of accountants, lawyers, investment
managers, appraisers, contractors, or other service providers and to
delegate powers to any such person; to retain or employ employees;
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(d) to lend money with or without security to any person, including any
Partner or an Affiliate of a Partner, on any commercially reasonable
terms;
(e) without limitation as to amount or terms, to borrow and raise moneys,
to issue, accept, endorse and execute promissory notes; drafts, bills
of exchange, warrants, bonds, debentures and other negotiable or
nonnegotiable instruments and evidences of indebtedness, and to secure
the payment of any such indebtedness and any interest in any such
indebtedness by mortgage, pledge, transfer or assignment in trust of
all or any part of the Partnership assets, whether owned at the time
of any such transactions or acquired thereafter, and, in particular,
to use the assets of the Partnership to secure borrowings the proceeds
of which may be used to acquire companies or interests in companies in
the fastener industry, and to sell, pledge or otherwise dispose of any
such obligations of the Partnership;
(f) to guarantee any financial transaction of any kind with or without
charging a fee therefor,
(g) to have and maintain one or more offices and to rent or acquire office
space, engage personnel, purchase equipment and supplies and do
anything else which may be appropriate in connection with the
maintenance of offices;
(h) to pay any expenses related to any of the Partnership's businesses or
affairs;
(i) to compromise claims against the Partnership;
(j) to establish bank accounts and other similar accounts for the
Partnership; to make or delegate the authority to make withdraw from
such accounts by check or electronic transfer in the name of the
Partnership; and
(k) to acquire real and personal property, arrange financing, enter
contracts and complete any other arrangements on behalf of a
Partnership, in the name of the Partnership or in the name of a
nominee without having to disclose the existence of the Partnership;
provided, however, that without the prior written consent of all of the
Partners, the General Partner shall not cause the Partnership to (i) file a
petition for relief in bankruptcy under any federal bankruptcy law or any other
jurisdiction's debtor relief law; or (ii) make any decision or take any action
which would make it impossible to carry on the Partnership's business and
affairs.
Section 3.2 Reliance by Third Parties on General Partner. The
Partnership shall be bound, to the extent the General Partner purports to act on
behalf of the Partnership, to any third party who relies on the authority of the
General Partner if the General Partner communicates to the third party that the
actions taken by the General Partner are taken on behalf of the
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Partnership, and the third party shall not be deemed to have any duty to
determine whether the General Partner has the authority to take the action.
Section 3.3 Duties of General Partner; Limitations.
(a) Funds Available. Except to the extent otherwise required by the Act or
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the TRPA, any obligation of the General Partner to the Partnership and
to the other Partners under this Agreement or arising by operation of
law shall be performable only to the extent that the Partnership has
funds available therefor, and the General Partner shall not be liable
personally to furnish such funds.
(b) Duties. In exercising the powers granted by Agreement and in
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performing the duties required by this Agreement, the General Partner
has only the duty of loyalty and the duty of care that are imposed by
Section 4.04 of the TRPA.
Section 3.4 Indemnification of General Partner. To the fullest extent
permitted by law, the General Partner shall be indemnified and held harmless by
the Partnership from and against any and all losses, claims, damages,
liabilities, joint or several, expenses (including, without limitation, legal
fees and expenses), judgments, fines, penalties, interest and other amounts
arising from any and all claims, demands, actions, suits or proceedings, whether
civil, criminal, administrative or investigative, in which the General Partner
may be involved, or is threatened to be involved, as a party or otherwise, by
reason of its status as a general partner of the Partnership, provided, that in
each case the General Partner acted in good faith and in a manner which the
General Partner reasonably believed to be in the best interests of the
Partnership and, with respect to any criminal proceeding, had no reasonable
cause to believe its conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere, or equivalent shall not create a presumption that the General
Partner acted in a manner contrary to that specified above. To the fullest
extent permitted by law, expenses (including, without limitation, legal fees)
incurred by the General Partner in defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the Partnership prior to the
final disposition thereof upon receipt by the Partnership of an undertaking by
or on behalf of the General Partner to repay such amount if it shall be
determined that the General Partner is not entitled to be indemnified as
authorized in this Section.
Section 3.5 Limited Partners.
(a) No Control Over Management. Except for a exercise of a Limited
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Partner's rights and powers as a Limited Partner, no Limited Partner
shall have any authority to participate in the control of the
Partnership's business or affairs.
(b) Limited Liability. A Limited Partner shall not be liable for any debts
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or obligations of the Partnership by reason of being a limited partner
in the partnership.
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(c) No Return of Contributions. A Limited Partner shall have no right to
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withdraw from the Partnership or to a return of any contributions to
the Partnership made by such Partner except to the extent of
distributions made to such Partner as provided herein.
(d) Access to Certain Information. Upon written request by a Limited
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Partner, at the expense of the Limited Partner and at reasonable times
and for a purpose related to the Limited Partner's interest in the
Partnership, a Limited Partner may require the Partnership to provide
(i) true and full information regarding the status of the business and
financial condition of the Partnership; (ii) a copy of the
Partnership's federal, state and local income tax return; (iii) a
current list of the full name and last known address of each Partner;
and (iv) a copy of this Agreement and the certificate of limited
partnership of the Partnership.
(e) Competition. A Limited Partner may own, operate or invest in any
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property or business venture which is not owned or operated by the
Partnership and without allowing the participation of the Partnership
or the other Partners, such that neither the Partnership nor any
Partner shall have any rights with respect to any such properties or
business ventures nor any claims with respect to their effect on the
Partnership.
(f) Transactions with Partnership. A Limited Partner and any affiliate of
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a Limited Partner may transact business of any kind with the
Partnership.
Section 3.6 Officers. Pursuant to Article 6132b-3.01 of the TRPA, the
Partnership shall have officers who will be agents f the Partnership appointed
by the General Partner. Unless otherwise decided by the General Partner, the
officers shall have the titles, powers, authority, and duties described below:
(a) Titles and Number. The officers of the Partnership shall be a Chief
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Executive Officer, a Chief Financial Officer, a President, one or more
Vice Presidents, a Secretary, one or more Assistant Secretaries, a
Treasurer and one or more Assistant Treasurers and any other officer
appointed pursuant to this Section. Any person may hold two or more
offices.
(b) Appointment and Term of Office. The officers shall be appointed by the
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General Partner at such time and for such terms as the General Partner
shall determine. Any officer may be removed, with or without cause,
only by the General Partner. Vacancies in any office may be filled
only by the General Partner.
(c) Chief Executive Officer and President. The President shall be the
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Chief Executive Officer and, subject to the direction of the General
Partner, shall be responsible for the management and direction of the
day-to-day business and affairs of the Partnership, its other
officers, employees, and agents, shall supervise
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generally the affairs of the Partnership and shall have full authority
to execute all documents and take all actions that the Partnership may
legally take. The Chief Executive Officer and President shall exercise
such other powers and perform such other duties as may be assigned to
him by the General Partner, including any duties and powers stated in
any employment agreement approved by the General Partner.
(d) Chief Financial Officer. The Chief Financial Officer shall keep and
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maintain, or cause to be kept and maintained, adequate and correct
books and records of accounts of the properties and business
transactions of the Partnership, and shall have all other powers and
duties as may be prescribed by the General Partner.
(e) Vice Presidents. The Vice Presidents may include, among others,
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Executive Vice Presidents and Senior Vice Presidents. Each Vice
President appointed by the General Partner shall have the power to
execute documents on behalf of the Partnership. Each such Vice
President shall perform such other duties and may exercise such other
powers as may from time to time be assigned to him by the General
Partner or the Chief Executive Officer and President.
(f) Secretary and Assistant Secretaries. The Secretary shall record or
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cause to be recorded in books provided for that purpose the minutes of
the actions of the General Partner and meetings of the Partner, shall
see that all notices are duly given in accordance with the provisions
of this Agreement and as required by law, shall be custodian of all
records (other than financial), shall see that the books, reports,
statements, certificates and all other documents and records required
by law are properly kept and filed, and, in general, shall perform all
duties incident to the office of Secretary and such other duties as
may, from time to time, be assigned to him by this Agreement, the
General Partner, or the Chief Executive Officer and President. The
Assistant Secretaries shall exercise the powers of the Secretary
during that officer's absence or inability to act.
(g) Treasurer and Assistant Treasurer. The Treasurer shall keep or cause
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to be kept the books of account of the Partnership and shall render
statements of the financial affairs of the Partnership in such form
and as often as required by this Agreement, the General Partner or the
Chief Executive Officer and President. The Treasurer, subject to the
order of the General Partner, shall have the custody of all funds and
securities of the Partnership. The Treasurer shall perform all other
duties commonly incident to his office and shall perform such other
duties and have such other powers as this Agreement, the General
Partner or the President shall designate from time to time. The
Assistant Treasurers shall exercise the power of the Treasurer during
the officer's absence or inability or refusal to act. Each of the
Assistant Treasurers shall possess the same power as the Treasurer to
sign all certificates, contracts, obligations and other instruments of
the Partnership. If no Treasurer or Assistant Treasurer is appointed
and serving
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or in the absence of the appointed Treasurer and Assistant Treasurer,
the Vice President, or such other officer as the General Partner shall
select, shall have the powers and duties conferred upon the Treasurer.
(h) Other Officers and Agents. The General Partner may appoint such other
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officers and agents as may from time to time appear to be necessary or
advisable in the conduct of the affairs of the Partnership, who shall
hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the
General Partner.
(i) Powers of Attorney. The General Partner may xxxxx xxxxxx of attorney
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or other authority as appropriate to establish and evidence the
authority of the officers and other Persons.
(j) Officers' Delegation of Authority. Unless otherwise provided by the
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General Partner, no officer shall have the power or authority to
delegate to any Person such officers' rights and powers as an officer
to manage the business and affairs of the Partnership.
ARTICLE IV
PARTNERS AND CAPITALIZATION
Section 4.1 Partners. CBRE/LJM Mortgage Company, LLC, a Delaware limited
liability company, is the general partner of the Partnership. The General
Partner shall not receive compensation for its services as general partner of
the Partnership, but shall be entitled to reimbursement for any expenses it pays
on behalf of the Partnership. CBRE/LJM-Nevada, Inc., a Nevada corporation, is
the limited partner of the Partnership.
Section 4.2 Contributions. By their execution hereof each of the
Partners agrees to make the contribution to the Partnership in the amount set
out beside such Partner's name, and as a result thereof, is the holder of the
number of units (the "Units") set out below.
Contribution Number of Units
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CBRE/LJM Mortgage Company, LLC. $ 10 10
CBRE/LJM - Nevada, Inc. $990 990
Such contributions shall be made at the time or times requested by the
General Partner provided that each request for contributions shall be divided
among the Partners in proportion to the number of Units held by the Partners. No
Partner of the Partnership shall have any obligation to make contributions to
the Partnership in excess of that for which provision is made in this Section.
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Section 4.3 Sources of Additional Funds.
(a) Additional Contributions. The General Partner may cause the
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Partnership to issue additional Units, or classes or series of such
Units, or options, rights, warrants, or appreciation rights relating
thereto, or any other type of equity security that the Partnership may
lawfully issue, any secured or unsecured debt obligation of the
Partnership convertible into or exchangeable or exercisable for any
class or series of equity security of the Partnership (each a
"Partnership Security") at any time or from time to time to such
Person or Persons (which may include the General Partner or other
Persons theretofore Partners) and on such terms as the General Partner
may determine all without the approval of any other Partner. Any
Person to whom such additional Units or other Partnership Securities
are issued shall become a Limited Partner in respect of the Units or
other Partnership Securities so issued, except to the extent such
additional Units or other Partnership Securities are issued to the
General Partner, in which case the terms of issuance shall specify
whether the General Partner shall have the rights of a Limited Partner
or a General Partner in respect of such units or other Partnership
Securities.
Any such Partnership Security shall be issuable with such
designations, preferences, and relative, participating, optional or
other special rights, powers or duties as may be fixed by the General
Partner including the right of the holder of each such Partnership
Security to share in distributions whether before or during winding up
of the Partnership, whether such Partnership Security is redeemable
and the conditions of any such redemption, whether such Partnership
Security is convertible or exchangeable and the terms of any such
conversion or exchange, and the right of the holder of any such
Partnership Security to vote on matters relating to the Partnership.
After the issuance of any such Partnership Security, the General
Partner shall amend the provisions of this Agreement to provide for
the allocation of the Partnership's items of income, gain, loss and
deduction in accordance with applicable law.
No Partner shall have any preemptive, preferential or similar right
with respect to the issuance of any such Partnership Security by the
Partnership. Additional Units or other Partnership Securities issued
to existing Partners need not be issued in the same proportion as
Units or any other Partnership Securities theretofore held by them.
Section 4.4 Loans and Guarantees by Partners and Affiliates. No Partner
shall be obligated to contribute any funds or properties to the Partnership
other than those funds or properties for which provision is made herein. Nor
shall any Partner be obligated to loan funds to the Partnership, to guarantee
loans to the Partnership or otherwise to incur personal liability with respect
to any loan to the Partnership.
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ARTICLE V
ACCOUNTING MATTERS
The Partnership shall keep and maintain its books and records at the
Principal Office, such books and records to be kept in accordance with
accounting principles that the General Partner determines to be appropriate for
the business and affairs of the Partnership.
ARTICLE VI
TAX MATTERS
Section 6.1 Tax Elections. The General Partner shall determine whether
the Partnership shall make any election (including any election which may be
permitted with respect to the Partnership's method of accounting and any
election for which provision is made in Section 168 and Section 754 of the Code)
which is available to the Partnership for federal, state or local tax purposes,
provided, however, that the General Partner shall make no election which would
cause the Partnership to be taxed as a corporation and not as a partnership for
federal, state or local tax purposes.
Section 6.2 Preparation of Tax Returns. The General Partner shall use
its reasonable efforts to arrange, at the expense of the Partnership, for the
preparation and timely filing of all tax returns of the Partnership for federal,
state or local tax purposes and shall furnish to the Partners a copy of any
income tax returns so filed within a reasonable time after the filing thereof.
In addition, the General Partner shall furnish to the Partners such other tax
information as is reasonably required thereby for federal, state and local tax
reporting purposes.
Section 6.3 Tax Matters Partner. The General Partner is the tax matters
partner of the Partnership, within the meaning of Section 6231(a)(7) of the
Code, and is authorized to represent the Partnership (at the Partnership's
expense) in connection with any examination of the Partnership's affairs by any
tax authority, including administrative and judicial proceedings, and to expend
Partnership funds for professional services and the costs associated therewith.
Section 6.4 Tax Allocations. Unless the General Partner determines that
another allocation is required by applicable law, each item of income, gain,
loss, deduction and credit recognized by the Partnership for federal, state or
local income tax purposes shall be allocated among the holders of Units in
proportion to the number of such Units which are so held.
ARTICLE VII
DISTRIBUTIONS
The General Partner shall from time to time cause the Partnership to make
such distributions to the Partners as the General Partner may determine in its
sole discretion, and any amount so distributed, whether prior to or during the
winding up of the Partnership, shall be divided among the holders of Units in
proportion to the number of Units held by them.
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ARTICLE VIII
ASSIGNMENTS
No Partner may assign or otherwise transfer such Partner's Units (or any
interest in such Units) without the consent of the other Partners, and a Person
who holds Units and is not a Partner shall become a Partner only with the
written consent of the General Partner.
ARTICLE IX
DISSOLUTION, WINDING UP AND LIQUIDATION
Section 9.1 Dissolution. The Partnership shall be dissolved on the
occurrence of an event of withdrawal of a General Partner, as defined in Section
4.02 (other than Section 4.02(a)(4)) of the Act. The General Partner agrees not
to cause an event of withdrawal of the General Partner, as defined in Section
4.02 (other than Section 4.02(a)(4)) of the Act to occur.
Section 9.2 Liquidation. If the Partnership is dissolved, the
Partnership's affairs shall be wound up by the General Partner, that is, the
assets of the Partnership shall be converted to cash and applied to pay all
creditors of the Partnership, including Partners, in the order allowed by
applicable law, and the balance shall be distributed as provided herein. The
Partners shall allow a reasonable time for the orderly liquidation of the
Partnership in order to avoid losses to the extent possible.
ARTICLE X
MISCELLANEOUS
Section 10.1 Modification, Termination and Waiver. This Agreement may be
modified, terminated or waived only by written agreement of all parties.
Section 10.2 Successors and Assigns. Subject to Article VIII , this
Agreement shall bind, and inure the benefit of, the parties to this Agreement
and their respective successors and assigns.
Section 10.3 Creditors. No provision in this Agreement shall be
enforceable by, nor construed for the benefit of, any creditors of the
Partnership.
Section 10.4 Personal Liability. Except as may be provided in a separate
agreement delivered to the General Partner, no employee, officer, director,
shareholder, limited partner or other agent of any Partner shall be liable
personally for any obligations of such Partner under this Agreement.
Section 10.5 Entire Agreement. This Agreement represents the entire
agreement of the parties to this Agreement with respect to the Partnership and
supersedes any prior understandings between or among them. There are no oral or
written representations,
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agreements, arrangements or understandings between or among the parties to this
Agreement which relate to the Partnership other than those contained in this
Agreement.
Section 10.6 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Texas, and the rights and obligations
of the parties to this Agreement shall be governed by the laws of the State of
Texas, in each case without regard to its conflict of law provisions.
Section 10.7 Notices. Except as otherwise provided, all notices and other
communications which may be required under this Agreement shall be submitted in
writing and shall be effective as to a Partner when such notice is received at
the address of the Partner on the books of the Partnership and shall be
effective as to the Partnership when received at the Principal Office.
Section 10.8 Format of Agreement; Headings. The format of this Agreement
and the headings used throughout this Agreement are intended only for
convenience of reference and shall not affect the meaning of any provision of
this Agreement.
Section 10.9 Plurals, etc. Pronouns, nouns and other terms used in this
Agreement shall be construed as necessary to include their masculine, feminine,
neuter, singular and plural forms.
Section 10.10 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original of this Agreement but all of
which, taken together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the Partners have executed this Agreement as of the
date first written above.
GENERAL PARTNER:
CBRE/LJM MORTGAGE COMPANY, LLC, a Delaware
limited liability company
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
President
LIMITED PARTNER:
CBRE/LJM - NEVADA, INC.,
a Nevada corporation
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
President
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