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Amended And Restated Agreement of Limited Partnership

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Sectors: Computer Software and Services, Services
Governing Law: Texas, View Texas State Laws
Effective Date: February 24, 2005
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Exhibit 10.18

AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF


FAIRWAYS FRISCO, L.P.


AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF

FAIRWAYS FRISCO, L.P.


This Amended & Restated Agreement of Limited Partnership (the " Agreement" ) is entered into February 24, 2005, but effective for all purposes as of December 30, 2004, by and among Fairways Equities, LLC, a Texas limited liability company (" FE" ), as the general partner (the " General Partner" ), and the limited partners executing and delivering Subscription Agreements (as hereinafter defined).


R E C I T A L S :

WHEREAS, the General Partner and certain Limited Partners formed a limited partnership under the laws of the State of Texas pursuant to that certain Agreement of Limited Partnership Fairways Frisco, L.P. dated effective December 30, 2004 (the " Original Agreement" ) for the purpose of acquiring, owning and leasing improved real estate, including the Property (hereinafter defined).


WHEREAS, the General Partner desires to admit those persons executing and delivering to the General Partner a Subscription Agreement, to be described in the Limited Partners Partnership Interest Schedule as " Limited Partners" , into the Partnership upon full and complete execution by the Limited Partner and the General Partner of the Limited Partner' s Subscription Agreements.


WHEREAS, in connection with the formation and operation of such limited partnership, the General Partner and the Limited Partners desire to amend and restate the Original Agreement and wish to set forth their respective rights and obligations as members thereof.


A G R E E M E N T :

NOW THEREFORE, in consideration of the mutual covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the General Partner and the Limited Partners agree that the Original Agreement is hereby amended and restated to provide as follows:


ARTICLE I

DEFINITIONS

Section 1.1 Terms Defined . When used in this Agreement, the following terms shall have the meanings set forth below:

" Act" shall mean the Texas Revised Limited Partnership Act as set forth in Vernon' s Revised Civil Statutes Annotated Article 6132a-1, as subsequently amended.


AGREEMENT OF LIMITED PARTNERSHIP - Page 1

" Additional Capital Contributions" shall have the meaning set forth in Section 3.2 hereof.


" Affiliate" shall mean a Person, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with the Person in question. The term " control," as used in the immediately preceding sentence, means, with respect to an entity that is a corporation, the right to exercise, directly or indirectly, more than 50% of the voting rights attributable to the shares of such corporation and, with respect to a Person that is not a corporation, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person.


" Appraised Value" shall have the meaning set forth in Section 7.8 hereof.

" Capital Account" shall have the meaning set forth in Section 3.3 hereof.


" Capital Contribution" shall mean the cash and the fair market value of property other than cash (net of liabilities which the Partnership assumes or takes the property subject to) contributed to the capital of the Partnership by a Partner.


" Cash Flow" shall mean, for the period in question, or in the case of a Major Capital Event, the event in question, the amount by which the aggregate cash receipts of the Partnership from any source (including loans and Capital Contributions) exceed the sum of the cash expenditures of the Partnership plus a cash reserve in the amount determined by the General Partner to be sufficient to meet the working capital requirements of the Partnership.

" Certificate" shall mean the Certificate of Limited Partnership filed upon behalf of the Partnership with the Secretary of State of Texas in accordance with all applicable statutes.

" Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations thereunder.


" Contracts" shall mean all agreements and related documents pertaining to the acquisition of the Property by the Partnership or any Subsidiary.

" Cure Date" shall have the meaning set forth in Section 3.4 hereof.

" Curing Partner" shall have the meaning set forth in Section 3.4 hereof.


" Curing Partner' s Existing Equity" shall have the meaning set forth in Section 3.4(b)(i) hereof.

" Curing Partner' s New Equity" shall have the meaning set forth in Section 3.4(b)(iii) hereof.

" Equity Adjustment Formula" shall have the meaning set forth in Section 3.4(b) hereof.


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" Exhibit" shall mean an exhibit attached to this Agreement.


" Failing Partner" shall have the meaning set forth in Section 3.4 hereof.


" Failing Partner' s Existing Equity" shall have the meaning set forth in Section 3.4(b)(i) hereof.

" Failing Partner' s New Equity" shall have the meaning set forth in Section 3.4(b)(iii) hereof.

" Failure Date" shall have the meaning set forth in Section 3.4 hereof.


" Financing" shall mean all indebtedness incurred by the Partnership and/or a Subsidiary to acquire, or operate the Subsidiaries or the Subsidiary Interests and/or acquire or cause the Subsidiaries to acquire the Property, and any modification or refinancing thereof, to be secured by the Property.


" General Partner" shall mean FE, so long as such Person shall continue as a general partner hereunder, and any other Person who has been admitted as and continues to be, a general partner of the Partnership.


" Interest Rate" shall have the meaning set forth in Section 3.4(a) hereof.


" Latest Additional Capital Contribution" shall have the meaning set forth in Section 3.4(b)(ii) hereof.


" Limited Partners" shall mean the Limited Partners, so long as each such Person shall continue as a limited partner hereunder, and any other Person who has been admitted as, and who continues to be, a limited partner of the Partnership.

" Limited Partners Partnership Interest Schedule" shall mean the schedule, prepared from time to time, as appropriate, by the General Partner, showing the respective Partnership Interests of the Limited Partners, and attached hereto as Exhibit " B ," with such Exhibit " B" being replaced with a corrected schedule upon the admission of each new Limited Partner.


" Liquidating Event" shall mean the sale, liquidation, condemnation or exchange of all of the Property and the Subsidiaries, or other transaction which, individually or together with any similar transaction or transactions, results in the disposition of all of the Property and the Subsidiary Interests and occurs in the course of liquidation of the Partnership or upon and with respect to which event the Partnership is dissolved and wound up and all payments, including payments on any promissory notes, have been received.


" Major Capital Event" shall mean any event (excluding a Liquidating Event) arising other than in the ordinary course of the Partnership' s business, including, without limitation: (i) the sale of less than all of the Property and the Subsidiary Interests; (ii) a condemnation of less than substantially all of the Property; (iii) the recovery of damage


AGREEMENT OF LIMITED PARTNERSHIP - Page 3

awards or settlements or insurance proceeds from the loss of or damage to the Property; (iv) a borrowing or refinancing; and (v) a similar major capital event of a Subsidiary. The General Partner' s designation of an event as a Major Capital Event shall be binding upon the Partners and the Partnership absent manifest error.


" Major Decision" shall have the meaning set forth in Section 4.3 hereof.


" Majority in Interest" shall mean Partners (or Partners of a designated class) owning more than fifty percent (50%) of the Partnership Interests (or Partnership Interests of the designated class).


" Negative Cash Flow" shall mean, for the period in question, the amount by which the operating expenses, capital expenditures and debt service of the Partnership and the capital contributions to be made by the Partnership to the Subsidiaries due and payable within the period in question exceed the cash amounts held by the Partnership or which are expected to be received by the Partnership within the period in question and which are or will be available for payment of such expenses and debt service.


" Operations" shall mean all activities arising in the ordinary course of the Partnership' s business and the business of the Subsidiaries not constituting a Major Capital Event or a Liquidating Event.

" Partners" shall mean the General Partner, the Limited Partners. " Partner" shall mean any one of the Partners.


" Partnership" shall mean the limited partnership created and existing pursuant hereto.


" Partnership Interest" shall mean a Partner' s interest, or a designated class of Partners' interest, expressed as a percentage in Section 3.9 hereof, in the income, gains, losses, deductions, tax credits, voting rights and distributions of the Partnership as may be affected by the provisions of this Agreement and as may thereafter be adjusted.


" Partnership' s Existing Net Worth" shall have the meaning set forth in Section 3.4(b)(i) hereof.


" Partnership' s New Net Worth" shall have the meaning set forth in Section 3.4(b)(ii) hereof.

" Permitted Transferee" shall have the meaning set forth in Section 8.3 hereof.

" Person" shall mean an individual, partnership, joint venture, corporation, limited liability company, trust, estate or other entity or organization.

" Proceeding" means any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative, any appeal in such an action, suit or proceeding, and any inquiry or investigation that could lead to such an action, suit or proceeding.


AGREEMENT OF LIMITED PARTNERSHIP - Page 4

" Property" shall mean those certain tracts of improved and unimproved real property described in Exhibit " A" attached hereto, owned by a Subsidiary.

" Put Election" shall have the meaning set forth in Section 8.7 hereof.

" Put Interest" shall have the meaning set forth in Section 8.7 hereof.


" Sales Price" shall have the meaning set forth in Section 8.7 hereof.

" Section" shall mean any section or subsection in this Agreement.

" Selling Partner" shall have the meaning set forth in Section 8.7 hereof.


" Service" shall mean the Internal Revenue Service.


" Subscription Agreement" shall mean the subscription agreement in a form determined by the General Partner, executed and delivered by each Limited Partner and accepted by the General Partner, providing for such Limited Partner' s subscription and agreement to be bound by this Agreement as a Limited Partner of the respective class indicated in such agreement.


" Subsidiary" shall mean a limited partnership, trust, limited liability company, corporation and any other person or form of organization which is or may be formed to own the Property, or to own interests in entities which own all or any portion of the Property, including without limitation Fairways B1-6 F1-11, LLC, Fairways B1-7 F1-10, LLC, Fairways FS Properties, LLC, Frisco Square B1-6 F1-11, Ltd., Frisco Square B1-7 F1-10, Ltd., Frisco Square Properties, Ltd., and Frisco Square Ltd.


" Subsidiary Interests" shall mean any equity interest owned by the Partnership in each Subsidiary.


" Transfers" shall mean the sale, transfer, conveyance, assignment, pledge, hypothecation, mortgage or other encumbrance or disposition of all or any part of a Partnership Interest.


" Undistributed Yield" shall mean zero.

" Unreturned Capital Contributions" shall mean, as to each Partner, the aggregate Capital Contributions made to the Partnership by such Partner reduced by the aggregate distributions to such Partner from the Partnership pursuant to Sections 6.2(a) and (b) hereof.

" Valuation Period" shall have the meaning set forth in Section 3.5 hereof.


" Value Notice" shall have the meaning set forth in Section 7.8 hereof.

" Yield" shall mean zero percent.


AGREEMENT OF LIMITED PARTNERSHIP - Page 5

Section 1.2 Number and Gender . Whenever the context requires, references in this Agreement to the singular number shall include the plural, and the plural number shall include the singular, and words denoting gender shall include the masculine, feminine and neuter.


ARTICLE II

GENERAL

Section 2.1 Formation . The Partners created and hereby continue the Partnership as a limited partnership pursuant to the Act for the purposes hereinafter described. The General Partner has executed and filed on behalf of the Partners and the Partnership a Certificate in accordance with applicable statutory requirements in such offices and places as may be required by the laws of the State of Texas.


Section 2.2 Name . The business of the Partnership shall be conducted under the name " Fairways Frisco, L.P."

Section 2.3 Principal Place of Business; Registered Office; Registered Agent . The principal place of business and the principal office of the Partnership shall be at 16250 N. Dallas Parkway, #101, Dallas, Texas 75248. The registered agent of the Partnership shall be Cathy R. Sweeney. The General Partner may change the principal place of business of the Partnership to any other place within the State of Texas upon ten (10) days written notice to the Limited Partners.


Section 2.4 Purposes . The purposes of the Partnership shall be:

(a) to acquire, invest in, own, manage, sell or otherwise deal with the Subsidiary Interests;

(b) to borrow or cause the Subsidiaries to borrow money to finance the acquisition, development, construction and operation of the Property, and to modify and refinance such borrowings;

(c) to develop, construct improvements upon, manage, maintain, lease, sell or otherwise deal, or to cause such Subsidiaries to develop, construct improvements upon, manage, maintain, lease, sell or otherwise deal, with the Property as contemplated by the terms of this Agreement; and

(d) to do any and all other acts and things necessary, incidental or convenient to carry on the Partnership business as contemplated under this Agreement.


Section 2.5 Term . The Partnership shall continue until terminated pursuant to Section 10.1 hereof.


AGREEMENT OF LIMITED PARTNERSHIP - Page 6


ARTICLE III


CAPITAL CONTRIBUTIONS - PARTNERSHIP INTERESTS


Section 3.1 Initial Capital Contributions .


(a) General Partner . Upon the execution of this Agreement, the General Partner shall be obligated to make an initial Capital Contribution to the Partnership of cash in an amount equal to $100.00.

(b) Limited Partners . Each Limited Partner shall make Capital Contributions to the Partnership of cash up to (but not more than) the amounts set forth in such Limited Partner' s Subscription Agreement, seventy-five percent (75%) of which Capital Contributions to be made upon execution and delivery of the Subscription Agreement by such Limited Partner and the balance generally will be based on the dates and amounts required pursuant to Exhibit " C" attached hereto. Each Limited Partner shall make such Capital Contributions if, when and to the extent requested by the General Partner, provided that the General Partner shall provide the Limited Partners with at least five (5) days notice of such request for Capital Contributions.

Section 3.2 Additional Capital Contributions . After all Capital Contributions have been made pursuant to Section 3.1(b), at any time thereafter if requested by the General Partner, the Limited Partners may, but shall not be obligated to, contribute cash to the Partnership (" Additional Capital Contributions" ) for the purpose of satisfying the Partnership' s Negative Cash Flow.

Section 3.3 Capital Accounts . The Partnership shall establish and maintain a capital account (" Capital Account" ) for each Partner in accordance with Section 704(b) of the Code and Treasury Regulations Section 1.704-1(b)(2)(iv). Except as otherwise provided in this Agreement, the Capital Account balance of each Partner shall be credited (increased) by (i) the amount of cash contributed by such Partner to the capital of the Partnership, (ii) the fair market value of property contributed by such Partner to the capital of the Partnership (net of liabilities secured by such property that the Partnership assumes or takes subject to under Code Section 752), and (iii) such Partner' s allocable share of Partnership income and gain (or items thereof) including income and gain exempt from federal taxation and income and gain attributable to adjustments to reflect book value pursuant to Regulations' Section 1.704-1(b)(2)(iv)(g), but excluding income and gain attributable to tax items which differ as a result of the revaluation of Partnership property as described in Regulations' Section 1.704-1(b)(4), and the Capital Account balance of each Partner shall be debited (decreased) by (i) the amount of cash distributed to such Partner, (ii) the fair market value of property distributed to such Partner (net of liabilities secured by such property which the Partner assumes or takes subject to under Code Section 752), (iii) such Partner' s allocable share of expenditures of the Partnership described in Code Section 705(a)(2)(B), and (iv) such Partner' s allocable share of Partnership losses, depreciation and other deductions (or items thereof) including loss and deduction attributable to adjustments to reflect book value pursuant to Regulations' Section 1.704-1(b)(2)(iv)(g) but excluding expenditures described in (iii) above and loss or deduction attributable to tax items which differ as a result of the revaluation of


AGREEMENT OF LIMITED PARTNERSHIP - Page 7

Partnership property or excess percentage depletion as described in Regulations' Section 1.704-1(b)(4)(i) and (ii). Notwithstanding the foregoing, a Partner' s Capital Account shall not be adjusted to reflect gain or loss attributable to the disposition of property contributed by such Partner to the extent such Partner' s Capital Account reflected such inherent gain or loss in the property on the date of its contribution to the Partnership.


Section 3.4 Failure to Make Additional Capital Contributions . If any Limited Partner (a " Failing Partner" ) shall fail or refuse to make any Capital Contribution or Additional Capital Contribution when required, and such failure or refusal shall have continued for a period of five (5) days following written demand therefor by the General Partner, then after the expiration of the five (5) day grace period (the " Failure Date" ) the other Limited Partners, in proportion to the Limited Partnership Interests of such Partners who exercise the following election (collectively, the " Curing Partner" ) may, at their sole discretion do either of the following on or before forty-five (45) days after the Failure Date (the " Cure Date" ), in addition to any other remedies available at law:

(a) Make a nonrecourse loan to the Failing Partner through an advance to the Partnership on behalf of the Failing Partner in the amount of the Failing Partner' s required Capital Contribution. If the Curing Partner makes such a loan, the Failing Partner and its Partnership Interest shall be credited with such Capital Contribution and said loan advance shall be payable upon demand and shall bear interest at the rate of the lesser of the base or prime interest rate of Bank of America plus two percent (2%) per annum, or the highest rate permitted by law (the " Interest Rate" ). Thereafter, all Partnership distributions or withdrawals attributable to the Failing Partner' s Partnership Interest shall be paid directly to the Curing Partner until such time as all such loan amounts so advanced, together with accrued interest thereon, shall have been fully repaid. Further, the Curing Partner shall have and is hereby granted a security interest in and lien upon the Failing Partner' s Partnership Interest to secure the repayment of said loan advances and the accrued interest thereon and shall have all rights to which a secured party is entitled under the Texas Uniform Commercial Code, as amended including foreclosure.

(b) Make the Failing Partner' s required Capital Contribution, in which event the Failing Partner' s Partnership Interest shall be reduced and the Curing Partner' s Partnership Interest shall be correspondingly increased to a percentage as determined by the application of the formula (" Equity Adjustment Formula" ) as follows:

(i) The Failing Partner' s existing equity (" Failing Partner' s Existing Equity" ) shall be determined by multiplying the Failing Partner' s Partnership Interest immediately prior to the Failure Date by the Partnership' s existing net worth (" Partnership' s Existing Net Worth" ) (less any Capital Contributions made by any Partner with respect to the additional capital call from which the Failing Partner defaulted). The Curing Partner' s existing equity (" Curing Partner' s Existing Equity" ) shall likewise be determined by multiplying the Curing Partner' s Partnership Interest immediately prior to the Failure Date by the Partnership' s Existing Net Worth (less any aforesaid contributions).


AGREEMENT OF LIMITED PARTNERSHIP - Page 8

(ii) The Partnership' s new net worth (" Partnership' s New Net Worth" ) shall be determined by adding to the Partnership' s Existing Net Worth the aggregate Capital Contributions made by all Partners with respect to said call for Capital Contributions on or before the Cure Date (the " Latest Capital Contribution" ).


(iii) The Failing Partner' s new equity (" Failing Partner' s New Equity" ) shall be the same as the Failing Partner' s Existing Equity, but the Curing Partner' s new equity (" Curing Partner' s New Equity" ) shall be equal to the sum of the Curing Partner' s Existing Equity plus the Curing Partner' s portion of the Latest Capital Contribution (including the portion made on behalf of the Failing Partner).

(iv) The Failing Partner' s new Partnership Interest shall be the quotient arrived at by dividing the Failing Partner' s New Equity by the Partnership' s New Net Worth and the Curing Partner' s new Partnership Interest shall be the quotient arrived at by dividing the Curing Partner' s New Equity by the Partnership' s New Net Worth.


At any time there is a dilution of a Failing Partner' s Partnership Interest pursuant to this Section 3.4(b) , such Failing Partner shall have the option of restoring his Partnership Interest by payment to the Curing Partner of the Capital Contribution paid by such Curing Partner on behalf of such Failing Partner plus an amount equal to the Interest Rate on such amounts, provided such payment is made no later than six (6) months following the subject dilution.

If there is more than one Curing Partner, all decisions of the Curing Partner shall be made by a Majority in Interest of the Curing Partners. All expenses of the Curing Partners shall be shared pro rata based upon their Partnership Interests.


If the Curing Partner elects to make a loan to the Failing Partner pursuant to Section 3.4(a) hereof, then at any time thereafter while all or a portion of such loan remains unpaid, the Curing Partner may convert all, but not less than all of the entire outstanding principal balance of such loan into a Capital Contribution, provided that all accrued interest is paid in full, and the Partnership Interests of the Failing Partner and the Curing Partner shall be adjusted at the time of conversion in accordance with Section 3.4(b) hereof.


Section 3.5 Determination of Existing Net Worth . The Partnership' s Existing Net Worth shall be equal to the greater of (a) $100 or (b) the book value of the Partnership' s assets net of liabilities, determined based on the Partnership' s regular accounting method.


Section 3.6 Partner Loans . A Partner, or an Affiliate of a Partner, may, but is not obligated to, loan or cause to be loaned to the Partnership such additional sums as the General Partner deems appropriate or necessary for the conduct of the Partnership' s business. Loans made by a Partner, or an Affiliate of a Partner, shall be upon such terms and for such maturities as the General Partner deems reasonable in view of all the facts and circumstances and the repayment of which may be designated in priority to distributions of Cash Flow. In no event


AGREEMENT OF LIMITED PARTNERSHIP - Page 9

shall a Partner be permitted to make a loan to the Partnership pursuant to this Section 3.6 , in lieu of making an Additional Capital Contribution which it is obligated to make pursuant to Section 3.2 hereof.


Section 3.7 Other Matters Relating to Capital Contributions . Except as otherwise expressly provided herein:

(a) Loans by any Partner to the Partnership shall not be considered contributions to the capital of the Partnership;

(b) No Partner shall be required to make contributions to the capital of the Partnership except to the extent expressly provided by this Article III ;

(c) No Partner shall be entitled to withdraw, or to obtain a return of, any part of its contribution to the capital of the Partnership, or to receive property or assets other than cash in return thereof, and no Partner shall be liable to any other Partner for a return of its contributions to the capital of the Partnership, except as provided in this Agreement;

(d) No Partner shall be entitled to priority over any other Partner, either with respect to a return of its contributions to the capital of the Partnership, or to allocations of taxable income, gains, losses or credits, or to distributions, except as provided in this Agreement; and

(e) No interest shall be paid on any Partner' s Capital Contribution or Additional Capital Contribution.


Section 3.8 Deficit Capital Account Balances . Upon liquidation of the Partnership, no Partner with a deficit balance in its Capital Account shall have any obligation to restore such deficit balance, or to make any contribution to the capital of the Partnership, except to the extent such Partner is personally liable to make contributions to the capital of the Partnership pursuant to Section 3.1 of this Agreement.


Section 3.9 Partnership Interests . Except as provided in Section 3.4 , the Partnership Interest of the Partners shall be as follows:


(a) The Partnership Interest of the General Partner shall be one-tenth of one percent (0.1%) and the Partnership Interest of the Limited Partners shall be ninety-nine and nine-tenths percent (99.9%).

(b) As among the Limited Partners, each such Partner' s Partnership Interest shall be equal to the percentage determined by dividing the Capital Contributions actually made by such Partner by the Capital Contributions actually made by all Limited Partners as of the date of such determination. The General Partner is hereby authorized and instructed to update and correct the Limited Partners Partnership Interest Schedule from time to time and at the time of each change (whether by admission of a Limited Partner or otherwise) in the Limited Partners and to substitute as Exhibit " B" attached hereto such revised Limited Partners Partnership Interest Schedule for the then existing Limited


AGREEMENT OF LIMITED PARTNERSHIP - Page 10

Partners Partnership Interest Schedule, which upon such substitution, such revised Limited Partners Partnership Interest Schedule shall be deemed a part of this Agreement and the old Limited Partners Partnership Interest Schedule shall be deemed to be so amended and restated.

ARTICLE IV


RIGHTS AND POWERS OF THE GENERAL PARTNER

Section 4.1 Duties of General Partner . The General Partner shall be solely res
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