Exhibit 2
LIMITED PARTNERSHIP AGREEMENT
OF
JRB INTERESTS, LT.D
ARTICLE III
Management
3.01 Powers of Management. The Powers of Management include all powers to
take any action or no action in managing the Partnership's business and affairs
as may be necessary or appropriate to achieve the Partnership's purposes,
including the power:
3.01(a) 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,
including buildings, machinery, equipment or otherwise; to sell, assign,
transfer, convey, lease, loan, exchange or otherwise dispose of all or
any part of the Partnership Assets;
3.01(b) to invest or otherwise participate in other partner-
ships, corporations or other entities;
3.01(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, whether ministerial or
discretionary; to retain or employ employees; to appoint any individual
as an officer of the Partnership; and to delegate to any such officers
or employees any of the Powers of Management;
3. 01 (d) to lend money with or without security to any person,
including any Partner or any Partner's Affiliate, on any terms
determined to be appropriate;
3.01(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 to sell,
pledge or otherwise dispose of any such obligations of the Partnership;
3.01(f) to guarantee any financial transaction of any kind
with or without charging a fee therefor;
3.01(g) to establish trusts for the benefit of the Partnership
which are revocable by the Partnership Management, and to assign and
convey all or any part of the Partnership Assets into such trusts on any
terms deemed appropriate by the Partnership Management; provided that
any such trust shall be revocable in favor of the Partnership;
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3.01(h) 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;
3.01(i) to buy or hold insurance of any kind;
3.01(j) to pay any expenses related to any of the Partnership's
businesses or affairs;
3.01(k) to compromise claims against the Partnership;
3.01(l) to establish bank accounts and other similar accounts for
the Partnership; to make or delegate the authority to make withdrawals
from such accounts by check or electronic transfer in the name of the
Partnership; and
3.01(m) to acquire real and personal property, arrange financing,
enter contracts and complete any other arrangements on behalf of the
Partnership, either in the name of the Partnership, in the name of any
General Partner having the authority to exercise the Powers of
Management or in the name of a nominee, without having to disclose the
existence of the Partnership.
3.02 Authority to Exercise Powers of Management. Except with respect to a
Partner's approval rights pertaining to Major Decisions as provided in Section
3.10, the Powers of Management shall be exercised only by those General Partners
granted the authority to exercise the Powers of Management by this Section,
which General Partners shall comprise the Partnership Management. Any exercise
of the Powers of Management in accordance with the provisions of this Section
shall be binding on the Partnership.
3.02(a) Managing Partner. Whenever there is a Managing Partner,
the Powers of Management shall be exercised only by the Managing Partner
or by unanimous consent of the General Partners.
3.02(b) No Managing Partner. Whenever there is no Managing
Partner, the Powers of Management shall be exercised only by majority
consent of the General Partners on the basis of their Percentage
Interests.
3.02(c) Exception for Life Insurance. Notwithstanding the
foregoing provisions of this Section, any decision on behalf of the
Partnership to acquire a life insurance policy which insures the life of
any Partner shall be made on behalf of the Partnership only by majority
consent of the General Partners, excluding the Partner to be insured, on
the basis of their Percentage Interests. At any time during which the
Partnership owns any life insurance policy insuring the life of any
Partner or otherwise possesses any of the incidents of ownership with
respect to any such policy, as the term "incidents of ownership" is
defined for purposes of Section 2042 of the Code, the insured Partner
shall have no right or power to exercise any Powers of Management with
respect to any incidents of ownership of the policy, including the right
to borrow from the insurance company or any other person using the
policy as collateral, to change or prevent any change in the beneficiary
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designation under the policy, to surrender the policy or any portion of
the policy for its cash surrender value, and to cancel or terminate the
policy; instead, the Powers of Management with respect to the policy
shall be exercised only by majority consent of the General Partners,
excluding the insured Partner, on the basis of their Percentage
Interests.
3.02(d) Exception for Controlled Corporations. Notwithstanding
the foregoing provisions of this Section and the other provisions of
this agreement, with respect to any corporate stock owned by the
Partnership, if the Partnership, either alone or in conjunction with any
other person, has the right to vote stock possessing at least twenty
percent of the total combined voting power of all classes of stock of
the corporation, then the stock shall be voted by the Partners and
Assignees on a proportionate basis given their respective Interests in
the partnership. Thus, for example, if there are three Partners with
Partnership Interests of 50%, 30% and 20% respectively, the first
Partner would vote 50% of the stock, the second Partner would vote 30%
of the stock, and the third Partner would vote 20% of the stock. For
purposes of this subsection, the determination of the Partnership's
percentage vote with respect to corporate stock shall be made as
provided in section 318 of the Code as if Xxxxxx X. Xxxxx owned all of
the Partnership's stock.
3.02(e) No Authority Given to Limited Partners. Other than with
respect to a Limited Partner's approval rights pertaining to Major
Decisions as provided in Section 3.10, no Limited Partner shall have any
authority to exercise any Powers of Management.
3.03 Managing Partner. Subject to the rights of Class A Limited Partners
when Guaranteed Payments are in arrears as provided in Section 7.01(c), the
Managing Partner shall serve only as provided in this Section.
3.03(a) Appointment. As the initial Managing Partner, the General
Partners appoint Xxxxxx X. Xxxxx, in his capacity as trustee of the
Xxxxxx X. Xxxxx Revocable Trust. If Xxxxxx X. Xxxxx for any reason fails
or ceases to serve as trustee of the Xxxxxx X. Xxxxx Revocable Trust,
then the successor trustee or trustees of such trust or of any successor
trusts shall serve as Managing Partner. If at any time there is no
General Partner serving as Managing Partner, then by majority consent of
the General Partners on the basis of their Percentage Interests, the
General Partners may appoint one or more of the General Partners to
serve as Managing Partner.
3.03(b) Resignation. Any General Partner may resign from that
General Partner's position as Managing Partner at any time with or
without cause by providing written notice to all of the other Partners.
3.03(c) Removal. Any General Partner may be removed from that
General Partner's position as Managing Partner by majority consent of
the General Partners on the basis of their Percentage Interests.
3.03(d) Compensation and Reimbursement. Any Managing Partner
shall receive fair and reasonable compensation for any services
performed on behalf of the
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Partnership and shall be entitled to receive reimbursement for any
expenses incurred in the performance of the Managing Partner's duties
under this Agreement.
3.04 Reliance by Third Parties on General Partners. The Partnership shall
be liable for any transaction with any third party who relies on the authority
of any General Partner within the Partnership Management if that General Partner
communicates to the third party that the actions taken by the General Partner
are taken on behalf of the 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 even if it appears to be prohibited by this Agreement; provided
that whenever there is a Managing Partner, any action taken by any person other
than the Managing Partner which has not been delegated by the Managing Partner
to the person, even if the action is stated to be taken on behalf of the
Partnership, shall not be binding on the Partnership. This Section shall not
affect the liability of any General Partner to the Partnership or the other
Partners for any conduct which violates other provisions of this Agreement.
3.05 Delegation by General Partners. Any General Partner may delegate any
obligation or power under this Agreement to any employee of the Partnership and
may utilize a power of attorney to delegate any obligation or power under this
Agreement to an agent, attorney or attorney-in-fact. To the extent provided by a
General Partner in a power of attorney, the General Partner's agent, attorney or
attorney-in-fact shall have complete authority to exercise every power granted
to the General Partner by this Agreement and to fulfill every obligation which
is required of the General Partner under this Agreement.
3.06 Time and Effort Required of General Partners. The General Partners
shall devote an amount of time and effort to the Partnership which is consistent
with the duty of care imposed by Section 3.07(d); provided that nothing in this
Agreement shall be deemed to restrict the freedom of any General Partner to
conduct any business activity separate and apart from the Partnership other than
the duty of loyalty imposed by Section 3.07(c).
3.07 Duties of General Partners; Limitations.
3.07(a) Funds Available. Except as provided in Section 10.09(b)
with respect to the restoration of Capital Account deficits, any
obligation of a General Partner under this Agreement or by operation of
law shall be performable only to the extent that the Partnership has
funds available therefor, and no General Partner shall be liable
personally with respect to any such obligation.
3.07(b) No Guarantees. Except as provided in this Agreement with
respect to Guaranteed Payments, the General Partners do not guarantee
the return of any Partner's capital contributions nor do they guarantee
any allocations of Profits or Losses nor any distributions of
Distributable Cash to any Partner or Assignee.
3.07(c) Duty of Loyalty. In exercising the powers granted by this
Agreement and in performing the duties required by this Agreement, each
General Partner has a duty (i) to account to the Partnership and to hold
for the Partnership any property, profit or benefit derived by the
General Partner in conducting and winding up the Partnership's
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business and affairs or from the General Partner's use of any of the
Partnership Assets, (ii) to refrain from dealing with the Partnership on
behalf of a party having an interest adverse to the Partnership and
(iii) to refrain from competing with the Partnership or dealing with the
Partnership in a manner adverse to the Partnership. Consistent with this
duty, any General Partner or any General Partner's Affiliate may own,
operate or invest in any property or business venture which is not owned
or operated by the Partnership without providing notice to the
Partnership, the other Partners or any Assignees and without allowing
the participation of the Partnership, the other Partners or any
Assignees, such that neither the Partnership nor any Partner or Assignee
shall have any rights with respect to any such properties or business
ventures nor any claims with respect to their effect on the Partnership.
Also consistent with this duty, any General Partner or any General
Partner's Affiliate may transact business of any kind with the
Partnership and any of the Partners or Assignees. This subsection is
intended to impose on the General Partners the duty of loyalty imposed
by Section 4.04 of the Texas Revised Partnership Act without
modification.
3.07(d) Duty of Care; Business Judgment Rule. In exercising the
powers granted by this Agreement and in performing the duties required
by this Agreement, each General Partner has a duty to act in good faith
with the reasonable belief that the General Partner's actions are in the
Partnership's best interests; provided that an error in judgment by
itself shall not constitute a violation of this duty. Consistent with
this duty, each General Partner may act without liability to the
Partnership, the other Partners or any Assignee in reliance upon any
written instrument which is reasonably believed by the General Partner
to be genuine and to have been signed or presented by the proper
parties. Also consistent with this duty, each General Partner may act or
refrain from acting without liability to the Partnership, the other
Partners or any Assignee in reliance upon any opinion of any consultant
or adviser with respect to matters which the General Partner reasonably
believes to be within the consultant's or adviser's professional
competence. This subsection is intended to impose on the General
Partners the duty of care imposed by Section 4.04 of the Texas Revised
Partnership Act without modification.
3.08 Indemnification of General Partners.
3.08(a) Mandatory Indemnification; Standards. To the fullest
extent permitted by law, the Partnership shall indemnify any Partner or
former Partner who or which was, is or is threatened to be made a named
defendant or respondent in any legal proceeding because the person is or
was a General Partner if it is determined as provided in Section 11.06
of the Act that the Partner or former Partner acted in good faith, acted
in the Partnership's best interests when acting in the official capacity
of a General Partner, and in all other cases acted in a manner which at
least was not opposed to the Partnership's best interests, such that the
indemnification permitted by Section 11.02 of the Act shall be
mandatory.
3.08(b) Scope of Indemnification. Pursuant to the indemnity
described above in this Section, the Partnership shall reimburse any
qualifying Partner or former Partner for any payments made with respect
to judgments, penalties, including excise and similar taxes,
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fines, settlements and reasonable expenses, including attorneys' fees,
related to the proceeding. The indemnification rights granted by this
Section are in addition to any rights against third parties.
3.08(c) Advance Payment of Expenses. To the fullest extent
permitted by law, the Partnership shall pay or reimburse, in advance or
during the course of any proceeding, reasonable expenses incurred by any
Partner or former Partner who or which was, is or is threatened to be
made a named defendant or respondent in any legal proceeding because the
person is or was a General Partner without the determination specified
in Section 11.06 of the Act and referenced above in this Section and
without the authorization or determination specified in Section 1 1.07
of the Act if the Partnership first receives a written affirmation by
the Partner of the Partner's good faith belief that the Partner has met
the standard of conduct necessary for indemnification under this Section
and also receives a written undertaking by or on behalf of the Partner
to repay the amount paid or reimbursed if it ultimately is determined
that indemnification against expenses incurred in connection with that
proceeding is prohibited by Section 11.05 of the Act.
3.09 Limited Partners.
3.09(a) No Control Over Management. Other than with respect to a
Limited Partner's approval rights pertaining to Major Decisions as
provided in Section 3.1 0, no Limited Partner shall have any authority
to exercise the Powers of Management nor to participate in the control
of the Partnership's business or affairs. The Partnership shall not be
bound by any act of a Limited Partner.
3.09(b) Limited Liability. The Limited Partners shall not
be personally liable for any debts or obligations of the Partnership.
3.09(c) No Return of Contributions. The Limited Partners shall
have no right to withdraw from the Partnership other than by exercising
the Put Right as provided in Section 9.02(b) and shall have no right to
a return of any contributions to the Partnership made by them except to
the extent that distributions made to them in the normal course of
business as provided in Article VII and upon liquidation of the
Partnership as provided in Section 10.06 may be considered as such by
law.
3.09(d) Access to Certain Information. Upon written request by a
Limited Partner, but only at the expense of the Limited Partner and only
at reasonable times and for a purpose related to the Limited Partner's
Limited Partnership Interest, 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 returns
promptly after they become available; (iii) a current list of the full
name and last known business, residence or mailing address of each
Partner; (iv) a copy of this Agreement and the Certificate of Limited
Partnership, together with executed copies of any powers of attorney
pursuant to which this Agreement and the Certificate of Limited
Partnership may have been executed; (v) any other information regarding
the Partnership's business and affairs as is just and reasonable; and
(vi) subject to contractual
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limitations regarding confidentiality and access to information
contained in agreements between the Partnership and third parties
covering all or any part of the Partnership Assets or properties owned
by other entities in which the Partnership owns a direct or indirect
interest, and at the Limited Partner's own risk, access to any such
Partnership Assets and properties and the opportunity to observe all
operations related to any such Partnership Assets and properties.
3.09(e) Competition. Except as specifically prohibited in Section
3.07(c), any Limited Partner may own, operate or invest in any property
or business venture which is not owned or operated by the Partnership
without providing notice to the Partnership or the other Partners 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.
3.09(f) Transactions with Partnership. Any Limited Partner or any
Limited Partner's Affiliate may transact business of any kind with the
Partnership and any of the Partners.
3.10 Approval Rights Related to Certain Major Decisions.
3.1.(a) Unanimous Approval. Subject to the procedures described
below in this Section, the following Major Decisions shall not be made
on behalf of the Partnership by any General Partner without the prior
written consent of all of the Partners:
(i) filing a petition for relief in bankruptcy under any
federal bankruptcy law or any other jurisdiction's debtor relief
law;
(ii) making any decision or taking any action which would
make it impossible to carry on the Partnership's business and
affairs; or
(iii) violating this Agreement in any manner.
3.1.(b) Procedures Regarding Major Decisions. Prior to making any
Major Decision, a General Partner shall provide all of the other
Partners with a written notice describing the Major Decision and
providing any other information which may be reasonably necessary for
them to evaluate the Major Decision; provided that the Partnership shall
bear any expenses related to providing the notice and information. If
any Partner fails to approve or disapprove the Major Decision within ten
days after receipt of the notice and information required above, that
Partner shall be deemed to have approved the Major Decision; provided
that the Partnership Management may extend the ten-day period if it
provides written notice to all of the other Partners.
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IN WITNESS OF THIS AGREEMENT, the parties to this Agreement have signed
below on the dates indicated, to be effective as of the Effective Date.
GENERAL PARTNERS:
/s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx, trustee of the
Xxxxxx X. Xxxxx Revocable Trust
Date: ______________________________
/s/ Xxxxxx Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxxx Xxxxx, as trustee of
the Xxxxxx Xxxxxx Revocable Trust
Date: ______________________________
/s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx
Date: ______________________________
/s/ Xxx X. Xxxxx
------------------------------------
Xxx X. Xxxxx
Date: ______________________________
CLASS A LIMITED PARTNER:
/s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Date: ______________________________
/s/ Xxxxxx Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxxx Xxxxx
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CLASS B LIMITED PARTNERS:
/s/ Xxxxx Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxx Xxxxxx, trustee of the
Xxxxx Xxxxx Xxxxxx GST
Trust, the Issue Trust for
Xxxxx Xxxxx Xxxxxx
Date: ______________________________
/s/ Xxxxxxx X. Xxxx
------------------------------------
Xxxxxxx X. Xxxx, trustee of the
Xxxxx Xxxxx Xxxxxx GST Trust, the
Issue Trust for Xxxxx Xxxxx Xxxxxx
and the Issue Trust for Xxx X. Xxxxx
Date: ______________________________
/s/ C. Xxxx Xxxxxxxxx
------------------------------------
C. Xxxx Xxxxxxxxx, trustee of the
Xxxxx Xxxxx Xxxxxx GST Trust and the
Issue Trust for Xxxxx Xxxxx Xxxxxx
and the Issue Trust for Xxx X. Xxxxx
Date: ______________________________
CLASS C LIMITED PARTNER:
/s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx, trustee of the
Xxxxxx X. Xxxxx Revocable Trust
Date: ______________________________
/s/ Xxxxxx Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxxx Xxxxx, as trustee of
the Xxxxxx Xxxxxx Revocable Trust
Date: ______________________________
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