Exhibit 3.35
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
VALOR TELECOMMUNICATIONS SERVICES, LP
THE PARTNERSHIP INTERESTS REPRESENTED BY THIS LIMITED PARTNERSHIP
AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR UNDER ANY STATE SECURITIES ACTS, IN RELIANCE UPON EXEMPTIONS
UNDER THOSE ACTS. THE SALE OR OTHER DISPOSITION OF THE PARTNERSHIP
INTERESTS IS PROHIBITED UNLESS SUCH SALE OR DISPOSITION IS MADE IN
COMPLIANCE WITH ALL SUCH APPLICABLE ACTS. ADDITIONAL RESTRICTIONS ON
TRANSFER OF THE PARTNERSHIP INTERESTS ARE SET FORTH IN THIS
AGREEMENT.
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
VALOR TELECOMMUNICATIONS SERVICES, LP
THIS AGREEMENT OF LIMITED PARTNERSHIP (the "Agreement") is entered
into by and among Valor Telecommunications Enterprises, LLC, a Delaware limited
liability company, as general partner (the "General Partner"), and Valor
Telecommunications Holding, LLC, a Delaware limited liability company, as
limited partner (the "Limited Partner"). Such parties are individually referred
to as a "Partner" and collectively as the "Partners."
Certain terms used in this Agreement are defined in Article II
hereof.
ARTICLE I
GENERAL
1.1 Formation. Subject to the provisions of this Agreement (the
"Agreement"), the Partners hereby form Valor Telecommunications Services,
LP (the "Partnership"), as a limited partnership pursuant to the
provisions of the Texas Revised Limited Partnership Act (the "Texas Act"),
Article 6132a-1 of Title 105 of the Texas Revised Civil Statutes, as it
may be amended from time to time, and any successor to such Act. Except as
expressly provided herein, the rights and obligations of the Partners and
the administration and termination of the Partnership shall be governed by
the Texas Act.
1.2 Purpose. The purposes and businesses of the Partnership shall
be to engage in the provision of telephone, data transmission and other
communication-related endeavors and to engage in such other activities as
lawfully conducted by limited partnerships. Any or all of the foregoing
activities may be conducted directly by the Partnership or indirectly
through another partnership, joint venture, or other arrangement
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1.3 Term. The Partnership shall continue in existence until the
close of Partnership business on December 31, 2050, or until the earlier
termination of the Partnership in accordance with the provisions of
Section 7.1 of this Agreement.
1.4 Registered Office and Principal Office of Partnership;
Addresses of Partners.
(a) Partnership Offices. The registered office of the
Partnership in the State of Texas shall be 800 Brazos, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, and its registered agent for service of process on the Partnership
at such registered office shall be Corporation Service Company dba
CSC-Lawyers Incorporating Service Company, or such other registered agent
as the General Partner may from time to time designate. The principal
office of the Partnership shall be ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., #▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or such other place as the General Partner may from
time to time designate. The Partnership may maintain offices at such other
place or places as the General Partner deems advisable.
(b) Addresses of Partners. The address of each Partner shall
be the address of such Partner as set forth in Section 8.2 hereof.
ARTICLE II
DEFINITIONS
The following definitions shall apply to the terms used in this
Agreement, unless otherwise clearly indicated to the contrary in this
Agreement.
"Adjusted Capital Account Deficit" means, with respect to any
Partner, the deficit balance, if any, in such Partner's capital account as
of the end of the relevant fiscal year, after giving effect to the
following adjustments: (a) any amounts that such Partner is, or is deemed
to, be obligated to restore pursuant to Section 1.704-1(b)(2)(ii)(c) of
the Regulations, the penultimate sentence of Section 1.704-2(g)(1) of the
Regulations, or the penultimate sentence of Section 1.704-2(i)(5) of the
Regulations, shall be credited to such Capital Account; and (b) the items
described in Sections 1.704-1(b)(2)(ii)(d)(4), (5), and (6) of the
Regulations shall be debited to such Capital Account. The foregoing
definition of Adjusted Capital Account Deficit is intended to comply with
the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations and
shall be interpreted consistently therewith.
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"General Partner" means Valor Telecommunications Enterprises, LLC, a
Delaware limited liability company, and its successors assigns.
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"Limited Partner" means Valor Telecommunications Holding, LLC, a
Delaware limited liability company and its successors and assigns.
"Partnership Interest" means the interest acquired by a Partner in
the Partnership, including, without limitation, such Partner's right: (a)
to an allocable share of the profits, losses, deductions, and credits of
the Partnership; (b) to a distributive share of the assets of the
Partnership; (c) if a Limited Partner, to vote on those matters described
in this Agreement; and, (d) if a General Partner, to manage and operate
the Partnership in accordance with the Texas Act and this Agreement.
"Percentage Interest" means the percentage set forth opposite each
Partner's name on SCHEDULE "A" to this Agreement, as such SCHEDULE "A" may
be amended from time to time in accordance with this Agreement.
"Person" means an individual or a corporation, partnership, trust,
estate, unincorporated organization, association, or other entity.
"Profits" and "Losses" mean, for each fiscal year or other period,
an amount equal to the Partnership's taxable income or loss for such
fiscal year or period, determined in accordance with Code Section 703(a)
(for this purpose, all items of income, gain, loss or deduction required
to be stated separately pursuant to Code Section 703(a)(1) shall be
included in taxable income or loss), with the following adjustments:
(i) Income of the Partnership that is exempt from
federal income tax and not otherwise taken into account in
computing Profits and Losses shall be added to such taxable
income or loss;
(ii) Any expenditures of the Partnership described in
Code Section 705(a)(2)(B), or treated as Code Section
705(a)(2)(B) expenditures pursuant to Regulations Section
1.704-1(b)(2)(iv)(i), and not otherwise taken into account in
computing Profits and Losses shall be subtracted from such
taxable income or loss;
(iii) If the book value of any partnership asset is
adjusted, the amount of such adjustment shall be taken into
account as gain or loss from the disposition of such asset for
purposes of computing Profits and Losses;
(iv) Gain or loss resulting from any disposition of
property with respect to which gain or loss is recognized for
federal income tax purposes shall be computed by reference to
the book value of the property disposed of, notwithstanding
that the adjusted tax basis of such property differs from its
book value;
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(v) In lieu of the deduction for depreciation, cost
recovery or amortization taken into account in computing such
taxable income or loss, there shall be taken into account Book
Depreciation as defined below. "Book Depreciation" for any
assets means for any fiscal year or other period an amount
that bears the same ratio to the Book Value of that asset at
the beginning of such fiscal year or other period as the
federal income tax depreciation, amortization or other cost
recovery deduction allowable for that asset for such year or
other period bears to the adjusted tax basis of that asset at
the beginning of such year or other period. If the federal
income tax depreciation, amortization or other cost recovery
deduction allowable for any asset for such year or other
period is zero, then Book Depreciation for that asset shall be
determined with reference to such beginning Book Value using
any reasonable method selected by the General Partner; and
(vi) Notwithstanding any other provision of this
definition, any items that are specially allocated pursuant to
Section 3.2(d) shall not be taken into account in computing
Profits and Losses.
"Regulations" means the Department of Treasury Regulations
promulgated under the Code, as amended in effect (including corresponding
provisions of succeeding regulations).
ARTICLE III
FINANCIAL MATTERS
3.1 Capital Contributions. The General Partner and the Limited
Partner shall contribute capital to the Partnership in the form of cash
and other assets as follows:
(a) As its initial capital contribution to the Partnership,
the General Partner and the Limited Partner shall contribute capital to
the Partnership in the form of cash in the amount set forth in SCHEDULE
"B" attached hereto.
(b) If at any time and from time to time during the term
hereof, capital over and above the amount contributed by the Partners is
required for the Partnership, as determined by the General Partner, then
each Partner shall contribute, within ten (10) days after written notice
thereof from the General Partner, additional capital unless otherwise
agreed by the Partners, shall be contributed by each Partner to the
Partners in an amount equal to the product of its respective Partnership
Interest and the total amount required in the aforesaid notice.
(c) Each Partner shall acquire a security interest in the
other Partner's Partnership Interest to secure the payment of capital
contributions. If any Partner shall fail to make any capital contribution
as and when required herein, then such Partner shall be deemed to be in
default hereunder. Thereafter, the non-defaulting Partners shall be
entitled to contribute such defaulting Partner's capital contribution and
then to foreclose their respective security interest in such defaulting
Partner's Partnership Interest by payment to such Partner of the sum equal
to the then-current positive balance of its capital account, less the
amount of the capital contribution which caused the default
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3.2 Allocations of Profits and Losses.
(a) Allocation of Profits. After giving effect to the
allocations set forth in Section 3.2(d), Profits shall be allocated to the
Partners in the following manner:
(i) First, to the Partners with negative capital
account balances in the minimum amounts necessary to eliminate
their negative capital account balances; provided, however,
that if there are insufficient Profits to eliminate each
Partner's negative capital account balance, Profits shall be
allocated first in the minimum amounts necessary to cause the
Partners' negative capital account balances and then to
Partners with negative capital account balances in that ratio;
and
(ii) Next, to the Partners in proportion to their
Percentage Interests.
(b) Allocation of Losses. After giving effect to the
allocations set forth in Section 3.2(d), and subject to the limitation set
forth in Section 3.2(c), Losses shall be allocated to the Partners in the
following manner:
(i) First, to each Partner in proportion to their
positive capital account balances until such positive account
balances have been eliminated; and
(ii) Next, to the Partners in proportion to their
Percentage Interests.
(c) Limitation on Loss Allocations. The Losses allocated
pursuant to Section 3.2(b) hereof and the next sentence of this Section
3.2(c) to any Partner shall not exceed the maximum amount of Losses that
may be allocated to such Partner without causing such Partner to have an
Adjusted Capital Account Deficit at the end of such fiscal year. All
Losses in excess of the limitation in this Section 3.2(c) shall be
allocated solely to the other Partners in proportion to their respective
Percentage Interests. If no other Partner may receive an additional
allocation of Losses pursuant to the preceding sentence of this Section
3.2(c), such additional Losses not allocated pursuant to Section 3.2(b) of
this Agreement to or the preceding sentence shall be allocated solely to
the General Partner.
(d) Special Allocations. Notwithstanding the preceding
provisions of this Section 3.2, the General Partner is authorized to make
any allocations required by Section 1.704-1 or 1.704-2 of the Regulations
in order to ensure that the allocations of profits, losses, deductions and
credits pursuant to this Agreement are respected for federal income tax
purposes.
(e) Tax Allocations. In accordance with Section 704(c) of
the Code and the Regulations thereunder, income, gain, loss and deductions
with respect to any property contributed to the capital of the Partnership
shall, solely for tax purposes, be allocated among the
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Partners so as to take account of any variation between the adjusted basis
of such property to the Partnership for federal income tax purposes and
its fair market value when contributed to the Partnership. For federal
income tax purposes, every item of income, gain, loss and deduction shall
be allocated among the Partners in accordance with the allocations under
this Section 3.2..
3.3 Distributions. The General Partner may, in its sole
discretion, review the Partnership's accounts from time to time to
determine whether distributions are appropriate, and make such
distributions as it may determine, without being limited to current or
accumulated income or gains, but no such distribution shall be made out of
funds required to make current payments on Partnership obligations. Except
to the extent Sections 7.2 or 7.3 are applicable, all distributions
pursuant to this Section 3.3 shall be made to the Partners in accordance
with Percentage Interests. To the extent that any distribution to a
Partner is mistakenly in excess of what such Partner would be entitled to
have received if such distribution had been made to the Partners in the
correct proportion (based on its then-current Partnership Interest), such
excess amount shall be treated as a loan by the Partnership to such
Partner, repayable on demand. Any amounts distributed pursuant to the
immediately preceding sentence of this Section 3.3 shall not be deemed to
be distributions for purposes of this Agreement.
3.4 Capital Accounts.
(a) In General.
The Partnership shall maintain for each Partner a separate
capital account in accordance with this Section 3.4(a), which shall
control the division of assets upon liquidation of the Partnership as
provided in Section 7.2 of this Agreement. Such capital account shall be
maintained in accordance with the following provisions:
(i) Such capital account shall be increased by the
cash amount and the value of all capital contributions made by
such Partner to the Partnership pursuant to this Agreement, by
such Partner's allocable share of profits and by the
applicable portion of the amount of any Partnership
liabilities assumed by the Partner or that are secured by any
property distributed to such Partner.
(ii) Such capital account shall be decreased by the
cash amount and the fair market value of any property
distributed to such Partner pursuant to Sections 3.3, 7.2 or
7.3 of this Agreement, by such Partner's allocable share of
losses and by the amount of any liabilities of such Partner
assumed by the Partnership or any liabilities secured by any
property contributed by such Partner to the Partnership.
(iii) In the event all or a portion of an interest in
the Partnership is transferred in accordance with the terms of
this Agreement, the transferee shall succeed to the capital
account of the transferor to the extent it relates to the
transferred interest.
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The foregoing provisions and the other provisions of this
Agreement relating to the maintenance of capital accounts are intended to
comply with Sections 1.704(b) and 1.704-2 of the Regulations and shall be
interpreted and applied in a manner consistent with such Regulations.
(b) Negative Capital Accounts. If any Partner has a deficit
balance in its capital account, such Partner shall have no obligation to
restore such negative balance or to make any capital contribution to the
capital of the Partnership by reason thereof, and such negative balance
shall not be considered an asset of the Partnership or of any Partner.
Notwithstanding the previous sentence, in the event of the liquidation of
the General Partner's interest in the Partnership, the General Partner's
interest in the Partnership in accordance with the requirements of Section
1.704-1(b)(2)(ii)(c) of the Regulations shall be in an amount equal to
(but in no event will it be obligated to contribute more than) the lesser
of (i) the deficit balance (if any) in the General Partner's capital
account, or (ii) the excess of one ninety-ninth (1/99th) of the total
capital contributions of the Limited Partners over any previous capital
contributions made by the General Partner to the Partnership.
(c) Interest. No interest shall be paid by the Partnership
on capital contributions or on balances in capital accounts.
(d) No Withdrawal. No Partner shall be entitled to withdraw
any part of its capital contribution or its capital account or to receive
any distribution from the Partnership, except as provided in Section 3.3
and Article VII of this Agreement.
(e) Loans From Partners. Loans by a Partner to the
Partnership shall not be considered capital contributions.
3.5 Ownership of Assets. All assets and property of the
Partnership shall be owned by the Partnership, subject to the terms and
provisions of this Agreement, and no Partner, individually, shall have any
ownership of such assets or property. Legal title to all assets and
property of the Partnership shall be held and conveyed in the name of the
Partnership.
3.6 Tax Matters.
(a) Preparation of Tax Returns. The General Partner shall
arrange for the preparation and timely filing of all returns of
Partnership income, loss, and other items necessary for federal, state,
and local income tax purposes and shall furnish to the Partners, at least
ten days before the date on which the Partnership returns are required to
be filed (after giving effect to any applicable extensions), a copy of the
Partnership's federal income tax return and the tax information reasonably
required for federal and state income tax reporting purposes. The General
Partner, in its sole discretion, may pay state and local income taxes
attributable to operations of the Partnership and treat such taxes as an
expense of the Partnership.
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(b) Tax Controversies. Subject to the provisions hereof,
▇▇▇▇ ▇. ▇▇▇▇▇▇, is designated the Tax Matters Partner (as defined in
Section 6231 of the Code), and is authorized and required to represent the
Partnership, at the Partnership's expense, in connection with all
examinations of the Partnership's affairs by tax authorities. Each Partner
agrees to cooperate with the Tax Matters Partner in connection with such
proceedings.
(c) Taxation as a Partnership. No election shall be made by
the Partnership or any Partner for the Partnership to be excluded from the
application of any of the provisions of Subchapter K, Chapter 1 of
Subchapter A of the Code or from any similar provisions of any state tax
laws.
ARTICLE IV
RIGHTS AND OBLIGATIONS OF PARTNERS
4.1 Rights and Obligations of the General Partner. Except as set
forth in Section 4.2, in addition to the rights and obligations set forth
elsewhere in this Agreement, the General Partner shall have the following
rights and obligations:
(a) Authority. The General Partner shall conduct, direct,
and exercise full control over all activities of the Partnership. Except
as otherwise expressly provided in this Agreement, all management powers
over the business and affairs of the Partnership shall be exclusively
vested in the General Partner. The General Partner may delegate all or a
portion of its powers, duties, rights and responsibilities, including the
authority to bind the Partnership to one or more persons who shall be
referred to as "officers" of the Partnership. The officers of the
Partnership shall be chosen by the General Partner and shall be a
President, a Secretary and a Treasurer (also known as the Chief Financial
Officer). The General Partner may also choose a Chairman, a Vice Chairman,
a Chief Executive Officer, one or more Vice-President, and one or more
Assistant Secretaries and Assistant Treasurers. The officers of the
Partnership shall have such authority and shall perform such duties as are
customarily incident to their respective offices, or as may be specified
from time to time by the General Partner regardless of whether such
authority and duties are customarily incident to such office. Any number
of offices may be held by the same person, unless the Certificate of
Limited Partnership, this Agreement or the Act otherwise provide. The
following are hereby elected as officers of the Partnership, to serve
until the next annual meeting of the General Partner or until their
successors are elected and qualified:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ - President and Chief Executive Officer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ - Chief Operating Officer
▇▇▇▇ ▇. ▇▇▇▇▇▇ - Executive Vice President and Chief
Financial Officer
▇▇▇▇▇▇▇ ▇. Page - Secretary
▇▇▇▇ ▇. ▇▇▇▇ - Assistant Secretary
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The Limited Partners shall have no right of control over the business and
affairs of the Partnership.
(b) Certificate of Limited Partnership. The General Partner
shall cause to be filed the Certificate of Limited Partnership of the
Partnership and such other certificates or documents as may be determined
by the General Partner to be reasonable and necessary or appropriate for
the formation, qualification, or registration and operation of a limited
partnership in the State of Texas and in any other state where the
Partnership may elect to do business.
(c) Powers of the General Partner. In addition to the powers
now or hereafter granted to a general partner of a limited partnership
under applicable law or that are granted to the General Partner under any
provisions of this Agreement, the General Partner shall have full power
and authority to do all things deemed necessary or desirable by it to
conduct the business of the Partnership, including, without limitation:
(i) the determination of the activities described in Section 1.2 herein in
which the Partnership will participate; (ii) the making of any reasonable
expenditures, the borrowing of money, the guaranteeing of indebtedness by
the Partnership and other liabilities, the issuance of evidence of
indebtedness, and the incurrence of any obligations it deems necessary or
advisable for the conduct of the activities of the Partnership; (iii) the
acquisition, disposition, mortgage, pledge, encumbrance, hypothecation, or
exchange of any or all of the assets of the Partnership; (iv) the use of
the assets of the Partnership for any Partnership purpose; (v) the
negotiation, execution, and performance of any contracts desirable,
useful, or necessary to the conduct of the business or operations of the
Partnership; (vi) the distribution of Partnership cash or other assets;
(vii) the selection, hiring, and dismissal of employees, attorneys,
accountants, consultants, contractors, agents, and representatives and the
determination of their compensation and other terms of employment or
hiring; (viii) the maintenance of insurance; and, (ix) the control of any
matters affecting the rights and obligations of the Partnership, including
the conduct of any litigation, the incurring of legal expenses, and the
settlement of claims and suits. The Partnership hereby ratifies the past
acts of the General Partner with respect to the formation of the
Partnership.
(d) Reliance by Third Parties. Notwithstanding any other
provision of this Agreement to the contrary, no lender or purchaser or
other Person, including any purchaser of property from the Partnership or
any other Person dealing with the Partnership, shall be required to verify
any representation by a General Partner as to its authority to encumber,
mortgage, sell, transfer or otherwise use or dispose of any assets or
properties of the Partnership, and any such lender, purchaser, or other
Person shall be entitled to rely exclusively on such representations and
shall be entitled to deal with a General Partner as if it were the sole
party in interest therein, both legally and beneficially.
(e) Outside Activities. The General Partner or any affiliate
thereof and any trustee, director, officer, manager, member, employee,
agent, or representative of the General Partner or any affiliate thereof
shall be entitled to and may have business interests and engage in
business activities in addition to those relating to the Partnership,
including business interests and activities in direct competition with the
Partnership. Neither the Partnership nor any of the
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Partners shall have any rights by virtue of this Agreement or the
Partnership relationship created hereby in any business ventures of the
General Partner, any affiliate thereof, or any trustee, director, officer,
manager, member, employee, agent, or representative of the General Partner
or any affiliate thereof
(f) Liability of General Partner to the Partnership. Neither
the General Partner nor its trustees, directors, officers, employees,
agents, or representatives shall be liable, responsible, or accountable in
damages to the Partnership or any Limited Partner for mistakes or errors
in judgment or for any acts or omissions that do not constitute fraud, bad
faith, gross negligence, willful or wanton misconduct, or breach of any
material provision of this Agreement.
(f) Compensation and Reimbursement of General Partner. The
General Partner shall not be compensated for services rendered to the
Partnership as a General Partner or reimbursed for expenses incurred
unless such compensation or reimbursements have previously been approved
by the Partners.
4.2 Limitations on Authority of General Partner. Notwithstanding
the provisions of Section 4.1 hereof, except upon obtaining the written
approval of the Limited Partner, the General Partner shall not:
(a) Sell, exchange or otherwise transfer all or
substantially all of the Partnership's property or any interest therein;
provided, however, that the General Partner shall be permitted to grant,
convey or pledge a security interest or lien in all or substantially all
of the Partnership's property or any interest therein.
(b) Except as otherwise provided herein, do any act which
would make it impossible to carry on the ordinary business of the
Partnership;
(c) Confess a judgment against the Partnership;
(d) Possess property of the Partnership, or assign the
rights of any Partner in any Partnership property, for other than a
Partnership purpose; or
(e) Do any act in contravention of this Agreement.
4.3 Rights and Obligations of Limited Partners. In addition to the
rights and obligations of Limited Partners set forth elsewhere in this
Agreement, Limited Partners shall have the following rights and
obligations.
(a) Limitation of Liability. A Limited Partner shall have no
liability under this Agreement, except as provided herein or under the
Texas Act.
(b) Management of Business. No Limited Partner shall take
part in the control (within the meaning of the Texas Act) of the
Partnership's business, transact any business
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in the Partnership's name, or have the power to sign documents for or
otherwise bind the Partnership, other than as specifically set forth in
this Agreement.
(c) Outside Activities. A Limited Partner shall be entitled
to and may have business interests and engage in business activities in
addition to those relating to the Partnership, including, without
limitation, business interests and activities in direct competition with
the Partnership. Neither the Partnership nor any other Partner shall have
any rights by virtue of this Agreement in any business ventures of the
Limited Partner.
(d) Return of Capital. No Limited Partner shall be entitled
to the withdrawal or return of its capital contribution except to the
extent, if any, that distributions made pursuant to this Agreement or upon
termination of the Partnership may be considered as such by law, and then
only to the extent provided for in this Agreement.
ARTICLE V
BOOKS AND RECORDS
5.1 Books of Account. The General Partner shall keep or cause to
be kept, at the principal office of the Partnership, appropriate books and
records with respect to the Partnership's business, and each Partner shall
have access to such books and records at all reasonable times.
5.2 Fiscal Year. The fiscal year of the Partnership shall be the
calendar year.
5.3 Banking. All funds of the Partnership shall be deposited in a
separate account or accounts as may be selected by the General Partner.
All receipts of the Partnership shall be promptly deposited in such
accounts, and no funds other than the funds of the Partnership shall be
deposited therein. The funds in such accounts shall be used solely for the
business of the Partnership (including distributions to the Partners) and
shall be subject to withdrawal only by persons approved by the General
Partner.
ARTICLE VI
TRANSFERS
6.1 Restrictions on Transfers. The Partnership Interests of the
Partners shall not be transferred, in whole or in part, except with the
written consent of Partners owning 100% Percentage Interests, which
consent may be unreasonably withheld in the sole discretion of such
Partners. Although the Partners hereby agree that any party acquiring such
Partner's Partnership Interest by way of foreclosure of any lien or
encumbrance permitted herein, or by reason of any other transfer permitted
herein, shall be entitled, without court action, to all distributions
payable with respect to such Partnership Interest, such party may not
become a substitute Partner in the Partnership without the approval of all
Partners. The term "transfer," when used in this Agreement with respect to
a Partnership Interest, includes a sale, assignment, gift, pledge,
encumbrance, hypothecation, mortgage, exchange, or any other disposition.
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6.2 Withdrawals From Partnership. No Partner shall withdraw from
the Partnership, except with the written consent of the other Partners.
ARTICLE VII
DISSOLUTION AND WINDING UP
7.1 Dissolution. The Partnership shall be dissolved upon:
(a) the expiration of its term as provided in Section 1.3 of
this Agreement;
(b) the bankruptcy or dissolution of the General Partner, or
any other event that results in its ceasing to be a General Partner;
(c) an election to dissolve the Partnership by the
affirmative vote of all Partners;
(d) any other event that, under the Texas Act, would cause
its dissolution.
7.2 Liquidation. Upon dissolution of the Partnership, the General
Partner, or, in the event the General Partner has been dissolved, becomes
bankrupt or withdraws from the Partnership, a liquidator or liquidating
committee selected by all of the Limited Partners, shall be the
liquidator. The liquidator shall be entitled to receive reasonable
compensation for its services as may be approved by the Partners. Except
as expressly provided in this Article VII, the liquidator appointed in the
manner provided herein shall have and may exercise, without further
authorization or consent of any of the parties hereto, all of the powers
conferred upon the General Partner under the terms of this Agreement to
carry out the duties and functions of the liquidator hereunder for and
during such period of time as shall be reasonably required in the good
faith judgment of the liquidator to complete the winding up and
liquidation of the Partnership as provided for herein. The liquidator
shall liquidate the assets of the Partnership and apply and distribute the
proceeds of such liquidation in the following order of priority, unless
otherwise required by mandatory provisions of applicable law:
(a) to the payment of the expenses of the terminating
transactions including, without limitation, brokerage commission, legal
fees, accounting fees and closing costs;
(b) to the payment to creditors of the Partnership,
including Partners, in order of priority provided by law; and
(c) to the Partners in accordance with the positive balances
in their respective capital accounts as provided in Section
1.704-1(b)(2)(ii)(b)(2) of the Regulations, provided however,
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that the liquidator may place in escrow a reserve of cash or other assets
of the Partnership for contingent liabilities in an amount determined by
the Liquidator to be appropriate for such purposes.
7.3 Distribution in Kind. Notwithstanding the provisions of
Section 7,2 of this Agreement which require the liquidation of the assets
of the Partnership, but subject to the order of priorities set forth
therein, if on dissolution of the Partnership, the liquidator determines
that an immediate sale of part or all of the Partnership's assets would be
impractical or would cause undue loss to the Partners and assignees, the
liquidator may defer for a reasonable time the liquidation of any assets
except those necessary to satisfy liabilities of the Partnership (other
than those to Partners) and/or may distribute to the Partners and
assignees, in lieu of cash, as tenants in common and in accordance with
the provisions of Section 7.2 of this Agreement, undivided interests in
such Partnership assets as the liquidator deems not suitable for
liquidation. Any such distributions in kind shall be subject to such
conditions relating to the disposition and management of such properties
as the liquidator deems reasonable and equitable and to any joint
operating agreements or other agreements governing the operation for such
properties at such time. The liquidator shall determine the fair market
value of any property distributed in kind using such reasonable method of
valuation as it may adopt.
7.4 Liquidation of a Partner, Etc. Upon the liquidation of a
Partner and the distribution of the Partnership Interest to the owner(s)
of such Partnership Interest, the liquidated Partner's
successor(s)-in-interest can continue as a Partner, or Partners, as the
case may be, in the Partnership, but only with the consent of Partners
holding, in the aggregate, 100% of the remaining Partnership Interests.
7.5 Cancellation of Certificate of Limited Partnership. Upon the
completion of the distribution of Partnership property as provided in
Section 7.2 and 7.3 of this Agreement, the Partnership shall be
terminated, and the liquidator (or the Limited Partners if necessary)
shall cause the cancellation of the Certificate of Limited Partnership and
all qualifications and registrations of the Partnership.
7.6 Return of Capital. The General Partner shall not be personally
liable for the return of the capital contributions of Limited Partners, or
any portion thereof, it being expressly understood that any such return
shall be made solely from Partnership assets.
7.7 Waiver of Partition. Each Partner hereby waives any rights to
partition of the Partnership property.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Amendments to the Agreement. The Agreement may be amended or
modified only with the written approval of all Partners.
13
8.2 Addresses and Notices. Any notice, demand, request, or report
required or permitted to be given or made to a Partner under this
Agreement shall be in writing and shall be deemed given or made when
delivered in person, or three days after being sent by United States
registered or certified mail to the Partner at its address as shown on the
records of the Partnership, regardless of any claim of any Person who may
have an interest in any Partnership Interest by reason of an assignment or
otherwise. Initially, and until notified otherwise by any Partner to this
Agreement, notice may be provided to any of the Partners at the following
addresses:
Valor Telecommunications Enterprises, LLC
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer
Valor Telecommunications Holding, LLC
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer
8.3 Titles and Captions. All article and section titles and
captions in this Agreement are for convenience only, shall not be deemed
part of this Agreement, and in no way shall define, limit, extend, or
describe the scope or intent of any provisions hereof. Except as
specifically provided otherwise, references to "Articles" and "Sections"
are to Articles and Sections of this Agreement.
8.4 Pronouns and Plurals. Whenever the context may require, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine, or neuter forms, and the singular form of nouns, pronouns, and
verbs shall include the plural and vice versa.
8.5 Further Action. The parties shall execute all documents,
provide all information, and take or refrain from taking all actions as
may be necessary or appropriate to achieve the purposes of this Agreement.
8.6 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their heirs, executors,
administrators, successors, legal representatives, and permitted assigns.
8.7 Integration. This Agreement constitutes the entire agreement
among the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings pertaining thereto.
8.8 Creditors. None of the provisions of this Agreement shall be
for the benefit of or enforceable by any creditors of the Partnership.
14
8.9 Waiver. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement, or condition of this
Agreement or to exercise any right or remedy consequent upon a breach
thereof shall constitute waiver of any such breach or any other covenant,
duty, agreement, or condition.
8.10 Counterparts. This Agreement may be executed in counterparts,
all of which together shall constitute one agreement binding on all the
parties hereto, notwithstanding that all such parties are not signatories
to the original or the same counterpart.
8.11 Applicable Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Texas, without
regard to the principles of conflicts of law.
8.12 Invalidity of Provisions. If any provision of this Agreement
is declared or found to be illegal, unenforceable, or void, in whole or in
part, then the parties shall be relieved of all obligations arising under
such provision, but only to the extent that it is illegal, unenforceable,
or void, it being the intent and agreement of the parties that this
Agreement shall be deemed amended by modifying such provision to the
extent necessary to make it legal and enforceable while preserving its
intent or, if that is not possible, by substituting therefor another
provision that is legal and enforceable and achieves the same objectives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of this 21st day of June, 2000.
GENERAL PARTNER:
Valor Telecommunications Enterprises, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________________
▇▇▇▇. ▇. ▇▇▇▇▇▇, Chief Financial Officer
LIMITED PARTNER:
Valor Telecommunications Holding, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer
15
SCHEDULE "A"
PERCENTAGE INTEREST
OF EACH PARTNER
PARTNER: PERCENTAGE INTEREST:
-------- --------------------
General Partner:
Valor Telecommunications Enterprises, LLC 1%
Limited Partner:
Valor Telecommunications Holding, LLC 99%
16
SCHEDULE "B"
DESCRIPTION OF INTEREST CAPITAL TO BE
CONTRIBUTED BY THE PARTNERS
PARTNER: CONTRIBUTION:
-------- -------------
Valor Telecommunications $ 1.00
Enterprises, LLC
Valor Telecommunications $99.00
Holding, LLC
17
ANNEX C
FIRST AMENDMENT
TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
VALOR TELECOMMUNICATIONS SERVICES, LP
This First Amendment (the "Amendment') to the Agreement of Limited
Partnership of Valor Telecommunications Services, LP, a Texas limited
partnership (the "Partnership"), is made and entered into, effective for all
purposes and in all respects, as of the 1st day of January, 2001, by Valor
Telecommunications Enterprises, LLC, a Delaware limited liability company, as
the Withdrawing General Partner (the "Withdrawing General Partner"), Valor
Telecommunications Holding, LLC, a Delaware limited liability company, as the
Withdrawing Limited Partner (the "Withdrawing Limited Partner"), Valor
Telecommunications of New Mexico, LLC, a Delaware limited liability company,
Valor Telecommunications of Oklahoma, LLC, a Delaware limited liability company,
and Valor Telecommunications of Texas, LP, a Delaware limited partnership, as
the New General Partners and the New Limited Partners of the Partnership (the
"New Partners").
WHEREAS, the Limited Partnership exists under the laws of Texas under the
terms of an Agreement of Limited Partnership dated as of June 20, 2000 (the
"Partnership Agreement");
WHEREAS, the Withdrawing General Partner was the legal and beneficial
owner of a 1% general partner interest in the Partnership (the "General
Partnership Interest");
WHEREAS, the Withdrawing Limited Partner was the legal and beneficial
owner of a 99% limited partnership interest in the Partnership (the "Limited
Partnership Interest");
WHEREAS, the Withdrawing Limited Partner transferred to the Withdrawing
General Partner the Limited Partnership Interest pursuant to a distribution and
assignment agreement dated as of even date herewith;
WHEREAS, the Withdrawing General Partner transferred the Limited
Partnership Interest received from the Withdrawing Limited Partner and the
General Partnership Interest (the "Partnership Interests") to the New Partners,
with each New Partner receiving an equal portion of the Partnership Interests,
pursuant to a contribution and assignment agreement dated as of even date
herewith; and
WHEREAS, the Withdrawing General Partner, Withdrawing Limited Partner and
the New Partners desire to amend the Partnership Agreement to evidence the
change in ownership of the Partnership described herein.
NOW THEREFORE, in consideration of the foregoing and the mutual promises
of the parties hereto and other good and valuable consideration, receipt of
which is hereby
acknowledged, the Withdrawing General Partner, Withdrawing Limited Partner and
the New Partners hereby agrees as follows:
1. The Withdrawing Limited Partner hereby acknowledges the
distribution, assignment and transfer to the Withdrawing General Partner of all
of the Withdrawing Limited Partner's legal and beneficial right, title and
interest in and to the Limited Partnership Interest.
2. The Withdrawing General Partner hereby acknowledges the
contribution, assignment and transfer of all of the Withdrawing General
Partner's legal and beneficial right, title and interest in and to the
Partnership Interests to the New Partners, with each New Partner receiving an
equal portion of the Partnership Interests as set forth on Schedule A to the
Partnership Agreement, as amended herein.
3. The New Partners hereby agree to be bound by the terms and
conditions of the Partnership Agreement.
4. The New Partners hereby elect that the terms and conditions of the
Partnership Agreement shall continue in full force and effect and any and all
references to the Partnership Agreement from and after the date hereof shall
mean and include the Partnership Agreement as amended by this Amendment.
5. The second sentence of Section 1.4(a) of the Partnership Agreement
is hereby deleted in its entirety and replaced with the following:
The principal office of the Partnership shall be ▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or such other place as the General
Partner may from time to time designate.
6. The following defined terms in Article II of the Partnership
Agreement are deleted in their entirety and replaced with the following:
"General Partner" means each of Valor Telecommunications of New
Mexico, LLC, a Delaware limited liability company, Valor Telecommunications of
Oklahoma, LLC, a Delaware limited liability company and Valor Telecommunications
of Texas, LP, a Delaware limited partnership, and their successor assigns.
"Limited Partner" means each of Valor Telecommunications of New
Mexico, LLC, a Delaware limited liability company, Valor Telecommunications of
Oklahoma, LLC, a Delaware limited liability company and Valor Telecommunications
of Texas, LP, a Delaware limited partnership, and their successor assigns.
7. The first sentence of Section 4.1(a) of the Partnership Agreement is
hereby deleted in its entirety and replaced with the following:
The General Partners, by authorization of a majority of the Persons
constituting the General Partners, shall conduct, direct and exercise full
control over all activities of the Partnership.
8. The addresses for notice to be given to the Partners in Section 8.2
of the Partnership Agreement are hereby deleted in their entirety and replaced
with the following:
Valor Telecommunications of New Mexico, LLC
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer and Executive Vice
President
Valor Telecommunications of Oklahoma, LLC
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer and Executive Vice
President
Valor Telecommunications of Texas, LP
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, #▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer and Executive Vice
President
9. Schedule A to the Partnership Agreement is hereby deleted in its
entirety and replaced with the following:
PERCENTAGE INTEREST
OF EACH PARTNER
PERCENTAGE
PARTNER: INTEREST
-------- --------
General Partner
Valor Telecommunications of New Mexico, LLC 0.33%
Valor Telecommunications of Oklahoma, LLC 0.33%
Valor Telecommunications of Texas, LP 0.33%
Limited Partner
Valor Telecommunications of New Mexico, LLC 33%
Valor Telecommunications of Oklahoma, LLC 33%
Valor Telecommunications of Texas, LP 33%
IN WITNESS WHEREOF, each of the Withdrawing General Partner, the
Withdrawing Limited Partner and the New Partners have executed this Amendment as
of the date first above written.
WITHDRAWING GENERAL PARTNER:
Valor Telecommunications Enterprises,
LLC
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial
Officer and Executive Vice
President
WITHDRAWING LIMITED PARTNER:
Valor Telecommunications Holding, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial
Officer and Executive Vice
President
NEW PARTNERS:
Valor Telecommunications of New Mexico,
LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial
Officer and Executive Vice
President
Valor Telecommunications of Oklahoma,
LLC
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial
Officer and Executive Vice
President
Valor Telecommunications of Texas, LP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial
Officer and Executive Vice
President
