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HomeMy WebLinkAboutAgreement LIMITED PARTNERSHIP AGREEMENT We,Jasper Management,L.L.C.,a Texas limited liability company, referred to in this Agreement as the "General Partner," and WILLIAM ALLEN JASPER, SHARON ANN JASPER, GREGORY FRANK JASPER, RACHEL MARIE JASPER, and MARK KNIGHT JASPER, referred to in this Agreement as the "Limited Partners," (collectively referred to as the "Partners") make this agreement on 304c ?/st• , 2002. ARTICLE I FORMATION Organization 1.01. The parties agree to form a limited partnership, named Jasper Construction, Ltd., a Texas limited partnership, referred to in this Agreement as the"Partnership." Certificate of Limited Partnership 1.02. The General Partners will execute a certificate of limited partnership at the time this Agreement is executed, file the certificate with the Secretary of State of the State of Texas, and send a file-stamped copy of the certificate to each Partner. Afterwards, as the need arises, the General Partners shall execute and file other certificates or instruments as necessary,appropriate,or convenient under the laws of the State of Texas and of any other states where the Partnership decides to transact. Purposes of Partnership 1.03. The purposes of the Partnership are: (a) To engage generally in the operation of restaurant business. (b) To engage in all other activities that are permitted under all applicable laws. ARTICLE II NAME AND PLACE OF BUSINESS Name of Limited Partnership 2.01. The business of the Partnership shall be conducted under the name Jasper Construction, Ltd. and under any variations of this name that may be necessary to comply with the laws of Texas and other states in which the Partnership may transact business.Whenever required, the General Partners shall execute and file with the proper offices in a timely manner any instruments required by the Fictitious Name or Assumed Name Act or similar laws in effect in each state in which the Partnership transacts business. Location of Partnership Offices 2.02. The principal place of business of the Partnership will be located at 1601 N. Bluebonnet Circle, College Station,Brazos County,Texas 77845.This place of business shall be the"registered office"in Texas and the "principal office in the United States" as those terms are defined in the Texas Revised Limited Partnership Act. Limited Partnership Agreement Page 1 of 28 P:\Gentry\14143 Jasper\A-Limited Partnership Agreement.wpd wWAGF File#13545 The General Partners may change the registered office in Texas and principal office in the United States when and if they comply with all provisions of the law governing such matters. The General Partners may establish additional places of business of the Partnership. Names and Addresses of Partners 2.03. The names, mailing addresses, and street addresses of the business or residence of each General Partner, in alphabetical order, are listed in Exhibit A, attached to this Agreement and incorporated by reference. The names and mailing addresses of each Limited Partner, in alphabetical order, are listed in Exhibit B, attached to this Agreement and incorporated by reference. There are no other partners of this Partnership and no other person or entity has any right to take part in the ownership, management, or other rights of the Partnership, except as otherwise provided in this Agreement. ARTICLE III TERM OF PARTNERSHIP The Partnership will begin its existence as of the date of the filing the certificate of limited partnership. The Partnership shall continue in existence until it is terminated, liquidated, or dissolved in accordance with this Agreement or by operation of law. ARTICLE IV CAPITAL CONTRIBUTIONS AND PARTNERSHIP INTERESTS Definite Contributions 4.01. Each partner shall make an"initial contribution"to the Partnership as described in Exhibit C,attached to this Agreement and incorporated by reference.The amounts shown in Exhibit C reflects the amount of cash to be contributed, or the agreed value of a contribution in a form other than cash. Partner's Ownership Interest 4.02. When a partner makes the contribution as shown in Exhibit C that partner will own the percentage interest in the Partnership as listed in such Exhibit C. Assessment of Additional Contributions 4.03. In addition to the contributions described in paragraph 4.01, the Partners may be required to make additional capital contributions. The Partnership may assess additional contributions by vote of a majority in interest of the Limited Partners. If such additional contributions are duly assessed, and if one or more Partners is in default on an obligation to make such a contribution for a period of 30 days or more, the General Partner or Partners may Limited Partnership Agreement Page 2 of 28 P:\Gentry\14143 Jasper\A-Limited Partnership Agreement wpd WWAGF File#13545 assess each non-defaulting Partner to compensate for the deficiency,without the vote of the Limited Partners. Each Partner shall be required to contribute the amount of the aggregate assessment multiplied by his or her then current percentage of interest in the Partnership. Voluntary Additional Contributions 4.04. Partners shall be permitted to make contributions to the Partnership other than those indicated in Exhibits C or assessed as provided in paragraphs 4.01 and 4.03 . Thus Partners may alter their percentage interests in the Partnership by making additional voluntary contributions. Personal Liability for Contributions 4.05. Each Partner is personally liable for the contributions to the capital of the Partnership described in this Agreement and its Exhibits. Compromise and Release of Contribution Obligations 4.06. A Partner's obligation to make contributions to the Partnership under this Agreement may not be compromised or released except by vote of sixty (60) percent in interest of the Partners. ARTICLE V PROFITS AND LOSSES Interest of Each Partner 5.01. The amount of net profits and net losses of the Partnership to be allocated to and to be charged against each Partner will be determined by multiplying the amount of net profits or net losses by the Partner's then current percentage of interest in the Partnership. Definition of Profits and Losses 5.02. For purposes of paragraph 5.01, the term, "profits," means income or gain of any kind actually received or deemed to be received by the Partnership according to generally accepted accounting procedures. The term, "losses," means any deduction, expenditure, or charge actually incurred or deemed to be incurred by the Partnership according to generally accepted accounting procedures. Capital Accounts 5.03. The General Partners shall maintain a separate capital account for each Partner. An individual Partner's capital account shall consist of the Partner's contributions to the Partnership capital under paragraphs 4.01 and 4.03 of this Agreement, plus any amounts transferred from the income account:of that Partner, less any authorized distributions paid from the Partner's capital account. Interest shall not be paid to Partners on contributions of capital to the Partnership. Limited Partnership Agreement Page 3 of 28 P:\Gentry\14143 Jasper\A-Limited Partnership Agreement.wpd wwAGF File#13545 Income Accounts 5.04. The General Partners shall maintain a separate income account for each Partner.At the end of each fiscal year,each Partner's share of the net profits or net losses of the Partnership shall be credited or debited to each Partner's income account. After any authorized withdrawals have been deducted from a Partner's income account,any balance or deficit remaining in the account shall be transferred to or charged against that Partner's capital account. Distributions to Partners 5.05. (a) The General Partners do not guarantee the return of the Limited Partners' contributions or the making of a profit from the operations of the Partnership. (b) The General Partners may, by unanimous decision, return capital contributions or distribute net profits to the Partners without regard to the current profits or losses of the Partnership from operations. These distributions shall be calculated in the same manner that profits and losses are calculated, as described above. However, the General Partners may never make any distributions that will impair the ability of the Partnership to pay its just debts as they mature. Furthermore, the General Partners may never make any distribution that would violate limitations set forth in Section 6.07(a) of Article 6132a-1 of the Revised Civil Statutes of Texas. (c) A Partner who receives a distribution in violation of this Agreement shall be personally liable to return that distribution, with interest, regardless of whether the Partner knew that the distribution was prohibited. 5.06. Assuming thata distribution is permissible under paragraph 5.05,the General Partners shall authorize the following distributions: There shall be no obligation of the Partnership to return capital or distribute profits to any Partner except on withdrawal of the Partner from the Partnership in accordance with this Agreement or on dissolution and winding up of the Partnership. Non-Cash Distributions 5.07. The Partnership may not make a distribution in a form other than cash. ARTICLE VI OWNERSHIP OF PARTNERSHIP PROPERTY All real or personal property, including all improvements placed or located on the property, acquired by the Partnership shall be owned by the Partnership. A Partner does not and may not acquire an interest in specific property of the Partnership by virtue of his or her status as a Partner. Each Partner expressly waives the right to require partition of any Partnership property or any part of that property. Limited Partnership Agreement Page 4 of 28 P:\Gentry\14143 Jasper\A-Limited Partnership Agreement.wpd WWAGF File#13545 ARTICLE VII FISCAL MATTERS Partnership Fiscal Year and Accounting Method 7.01. The Partners intend that the Partnership shall be treated as a partnership for tax purposes. The Partnership's books and records and all required income tax returns shall be kept or made on the basis of the fiscal year. The Partnership shall use the accrual method of accounting. Partnership Accounts 7.02. The General Partners shall receive all moneys of the Partnership and shall deposit them in one or more Partnership accounts at a bank or other financial institution. No other funds may be deposited in these accounts.All expenditures for Partnership business shall be made by checks drawn against these Partnership accounts. Funds deposited in the Partnership's bank accounts may be withdrawn only to pay Partnership debts and obligations or to be distributed to Partners as provided in this Agreement. Books and Records 7.03. The General Partners shall keep just and true books of account and all other Partnership records, including all records required to be kept by law, at the Partnership's principal place of business. The books and records shall be preserved for six years after the end of the Partnership term. On written request of a Partner, the Partnership shall provide, at the Partnership's expense: a copy of this Agreement as it may be amended from time to time; the certificate of limited partnership and all amendments and restatements of the certificate of limited partnership; and the Partnership's federal, state, and local information or income tax returns for each of the Partnership's six most recent tax years. In addition, a Partner may examine and copy, at the Partner's expense, any other Partnership records by making a written request stating a proper purpose for the examination or copying. Within five working days of receipt of a request described in this Paragraph, the General Partners shall make Partnership records available to Partners as is just and reasonable. The Partner or Partner's representative may examine these records at any time during normal business hours. Accounting 7.04. Within a reasonable period of time after the close of each fiscal year, the General Partners shall furnish to each Partner upon request a balance sheet for the Partnership as of the end of the accounting period and a full and detailed financial report on the business operations of the Partnership during the entire accounting period.All of the services to be performed by the General Partners and costs incurred in providing Partners with accounting and tax information shall be at the expense of the Partnership. Tax Matters 7.05. All items of Partnership income, expense, gain, loss, deduction, and credit for tax purposes shall be allocated as provided in this Agreement relating to allocations of profits and losses. The tax matters partner shall be Jasper Management, L.L.C., a Texas limited liability corporation, or such other General Partner as the other General Partners may designate in writing from time to time. The tax matters partner shall furnish Limited Partnership Agreement Page 5 of 28 P.\Gentry\14143 Jasper\A-Limited Partnership Agreement.wpd wWAGF File#13545 in a timely manner all information Partners need to complete their Federal and State income tax forms, including statements of the net distributable income or loss to each Partner from the operation of the Partnership. Audits 7.06. Any Partner shall have the right to have an audit conducted of the Partnership's books. The Partner requesting the audit shall bear the expense of the audit unless a majority in interest of the Limited Partners authorizes payment of audit expenses. The Partner requesting the audit may select the accounting firm to conduct the audit. The Partnership shall not be required to be audited more than once in any fiscal year. ARTICLE VIII MANAGEMENT OF PARTNERSHIP AFFAIRS Duties of General Partners 8.01. The General Partners shall exercise ordinary business judgment in managing the affairs of the Partnership. In acting in their official capacity as General Partners of this Partnership, they shall act in good faith and take actions they reasonably believe to be in the best interests of the Partnership and are not unlawful. The General Partners shall not take any action that they believe would be opposed to the Partnership's best interests or would be unlawful. The General Partners shall take no action in any capacity that results in their improperly receiving personal benefits relating to Partnership affairs. Management of Other Partnerships 8.02. The General Partners shall devote sufficient time, attention, and business judgment to the affairs of the Partnership to fulfill their duties to the other Partners and the Partnership. Powers of General Partners 8.03. The General Partners shall have exclusive control of the Partnership. If there is more than one General Partner, management decisions must be made by a majority, in numbers, of the General Partners. Subject to the limitations in this Agreement, the General Partners shall have the authority to take any action they deem to be necessary, appropriate, or convenient relating to the management of the Partnership, including, but not limited to, the powers to: (a) Sell, convey, exchange, convert, grant an option, assign, improve, build, manage, operate, and control Partnership property. (b) Partition, divide, subdivide, assign, develop, and improve Partnership property. (c) Make or obtain the vacation of plats, adjust boundaries, adjust differences in valuation on exchange or partition,and dedicate easements for public use,of Partnership property,with or without consideration. (d) Make ordinary and extraordinary repairs and alterations in buildings,demolish improvements, Limited Partnership Agreement Page 6 of 28 P.\Gentry114143 Jasper1A-Limited Partnership Agreement.wpd wwAGF File#13545 raze party walls or buildings, and erect party walls or buildings on Partnership property. (e) Lease Partnership property for any legal purpose, and enter into any covenants and agreements relating to the leased property or any improvements that may be erected on the property. (f) Take the following actions regarding natural resources related to Partnership property: (i) Enter into oil, gas, liquid or gaseous hydrocarbon, sulphur, metal and any and all other natural resource leases on terms the General Partners deem advisable. (ii) Enter into any pooling, unitization, repressurization, community, and other types of agreements relating to the exploration, development, operation, and conservation of properties containing minerals or other natural resources. (iii) Drill, mine, and otherwise develop oil, gas, and other minerals. (iv) Contract for the installation and operation of absorption and repressuring plants. (v) Install and maintain pipelines. (g) Borrow money on behalf of the Partnership from any person, firm, or corporation for any Partnership purpose on whatever terms and conditions that the General Partners deem advisable and to obligate the Partnership to repay the borrowed money. (h) Encumber or hypothecate Partnership property for any Partnership purpose by mortgage, deed of trust, pledge, or otherwise. (i) Carry, at the expense of the Partnership, insurance of the kinds and in the amounts that the General Partners deem advisable or make other arrangements for payment of losses or liabilities to protect the Partnership or the Partners,agents,and employees of the Partnership,or persons serving at the request of the Partnership as representatives of another enterprise. However, the insurance or arrangements to indemnify a person for any liability must be consistent with the provisions of the Texas Revised Limited Partnership Act governing such matters. (j) Invest and reinvest in property that the General Partners deem advisable, including the option to acquire an asset. (k) Vote and give proxies to vote any Partnership securities, including stock of any General Partner that is a corporation. (I) Pay any assessments or other charges levied on any Partnership stock or other security. (m) Exercise any subscription, conversion, or other rights or options that may attach to the holders of any Partnership stocks, bonds, securities, or other instruments. (n) Continue and operate, sell,or liquidate any business or partnership interests received by the Partnership. Limited Partnership Agreement Page 7 of 28 P:\Gentry\14143 Jasper\A-Limited Partnership Agreement wpd wMAGF File#13545 (o) Participate in any plans or proceedings for the foreclosure, reorganization, consolidation, merger, or liquidation of any corporation or organization that has issued securities owned by the Partnership and, incident to that participation, deposit securities with and transfer title of securities to any protective or other committee established to further or defeat any such plan or proceeding. (p) Enforce any mortgage or deed of trust or pledge owned by the Partnership and, at any sale under any such mortgage, deed of trust, or pledge, bid and purchase at Partnership expense any property subject to the security instrument. (q) Employ any attorney, investment adviser, accountant, broker, tax specialist, or any other agent, and pay reasonable compensation for all services performed by any of them as a Partnership expense. (r) Compromise, participate in mediation, submit to arbitration, release with or without consideration, extend time for payment, or otherwise adjust any claims in favor of or against the Partnership. (s) Commence or defend any litigation with respect to the Partnership or any Partnership property, at the expense of the Partnership. (t) Abandon any Partnership asset that the General Partners deem advisable. (u) Do all acts, take part in any proceedings, and exercise all rights and privileges as could an absolute owner of Partnership property, subject to the limitations expressly stated in this Agreement and the faithful performance of the General Partners' fiduciary obligations. The enumeration of powers in this Agreement shall not limit the general or implied powers of the General Partners or any additional powers provided by law. Transactions Between Partners and Partnership 8.04. A Partner may lend money to and otherwise transact business with the Partnership and has the same rights and obligations relating to those matters as a person who is not a Partner,except as otherwise provided by this Agreement and all applicable laws.The Partnership shall not borrow money from or otherwise transact business with a Partner unless the transaction is described fully in a legally binding instrument and is in the best interests of the Partnership. Prohibited Acts 8.05. As long as the Partnership is in existence, and except with the prior written consent of all Partners, no Partner may: (a) Do any act in violation of this Agreement. (b) Do any act with the intention of harming the operations of the Partnership. (c) Do any act that would make it impossible or unnecessarily difficult to carry on the intended or ordinary business of the Partnership. Limited Partnership Agreement Page 8 of 28 P:\Gentry\14143 Jasper-Limited Partnership Agreement.wpd WWAGF File#13545 Special Durable Power of Attorney for Real Estate Transactions Date: 12/3/14 Principal: Jasper Construction Ltd. c/o Greg Jasper Principal's Mailing Address: 10820 Deer Run, College Station,TX 77845 Agent: Clint Cooper Agent's Mailing Address: 1700 Research Parkway Suite 110, College Station, TX 77845 Effective Date: 12/3/14 Expiration Date: 2/18/15 Property: CAD# 10377 A000701,CRAWFORD BURNETT(ICL),TRACT 22.1, 10.434 ACRES,& ASSOCIATED BPP Powers Given with Respect to the Property: Principal appoints Agent to act for Principal to enter into, complete, execute, sign, or submit any and all permit applications, development agreements, permits or applications, planning and zoning requests or variances, utility agreements or applications,general plans, preliminary and final plats, or any other similar construction or development related instrument, application or request in connection with the Property, and Principal ratifies all acts done under this appointment.Agent's authority will begin on the Effective Date and end on the Expiration Date unless revoked sooner by Principal's signing an instrument revoking this power of attorney and filing it for record in the real property records of Brazos County,Texas.A signed and filed revocation instrument will be effective,without limitation or exception, including but not limited to being effective against a third party relying on this power of attorney without receipt of actual notice of the revocation, on the date and time of filing. This is a durable power of attorney under the Texas Probate Code, which is not affected by subsequent disability or incapacity of Principal and will not lapse because of a passage of time, but it will expire on the Expiration Date. Principal binds Principal and Principal's heirs and personal representatives to indemnify and hold Agent harmless from all claims, demands, losses, damages, actions, and expenses that Agent may sustain or incur in connection with carrying out the authority granted to Agent in this power of attorney. THE ATTORNEY-IN-FACT OR AGENT, BY ACCEPTING OR ACTING UNDER THE APPOINTMENT,ASSUMES THE FIDUCIARY ' P OTHER LEGAL RESPONSIBILITIES OF AN AGENT. . 1 [Name of Principal] THE STATE OF TEXAS § COUNTY OF BRAZOS § This instrument was acknowledged before me on the 3° day of pe.Ceµ ; o?OI4 , by Ge_eq, (s?Qle for the purposes and consideration therein expressed and in the capacity therein stat6d. iboe No4:ry Public, State t f Tex.1. 1t"• •„, KIRSTEN MYERS I�S"t ., �,. .• PVN '_°; e` Notary Public,State of Texas . = (Name - Typed or Print to) `i s �� rbc My Commission Expires '""4, ;;" May 23, 2018 t.-'tQ, o9,EJ, aolz ,°nay. (My Coission Expires)