Exhibit 3.46
LIMITED PARTNERSHIP AGREEMENT
for
Western Access Services of Texas, L.P.
a Delaware limited partnership
dated as of
June 30, 2003
LIMITED PARTNERSHIP AGREEMENT
OF
WESTERN ACCESS SERVICES OF TEXAS, L.P.
* TRANSFER RESTRICTIONS *
THE LIMITED PARTNERSHIP INTERESTS IN WESTERN ACCESS SERVICES OF TEXAS,
L.P. (THE "INTERESTS") ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER AND OTHER
TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. THE INTERESTS HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER (i) THE SECURITIES
LAWS OF THE STATE OF DELAWARE (THE "DELAWARE ACT"), (ii) ANY OTHER STATE
SECURITIES LAWS, OR (iii) THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "FEDERAL ACT"). NEITHER THE INTERESTS NOR ANY PART THEREOF MAY BE OFFERED
FOR SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED, OR TRANSFERRED EXCEPT IN
COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT AND (1) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE DELAWARE ACT OR IN A TRANSACTION
WHICH IS EXEMPT FROM REGISTRATION UNDER THE DELAWARE ACT OR WHICH IS OTHERWISE
IN COMPLIANCE WITH THE DELAWARE ACT, (2) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER ANY OTHER APPLICABLE STATE SECURITIES LAWS OR IN A TRANSACTION
WHICH IS EXEMPT FROM REGISTRATION UNDER ANY SUCH SECURITIES LAWS OR WHICH IS
OTHERWISE IN COMPLIANCE WITH SUCH SECURITIES LAWS, AND (3) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE FEDERAL ACT OR IN A TRANSACTION WHICH
IS EXEMPT FROM REGISTRATION UNDER THE FEDERAL ACT OR WHICH IS OTHERWISE IN
COMPLIANCE WITH THE FEDERAL ACT.
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LIMITED PARTNERSHIP AGREEMENT
OF
WESTERN ACCESS SERVICES OF TEXAS, LP.
A DELAWARE LIMITED PARTNERSHIP
THIS LIMITED PARTNERSHIP AGREEMENT (this "Agreement") is made and entered
into as of June 30, 2003, by and among WESTERN ACCESS SERVICES, LLC, a Delaware
limited liability company ("WAS"), as sole general partner, and VALOR
TELECOMMUNICATIONS INVESTMENTS, LLC, a Delaware limited liability company
("VTI"), as a limited partner.
W I T N E S S E T H:
WHEREAS, the WAS and VTI hereto desire to form a limited partnership under
the provisions of the Delaware Revised Limited Partnership Act as enacted in the
State of Delaware ("Act") for the purposes hereinafter described; and
WHEREAS, WAS and VTI desire to set forth herein their respective rights,
duties and responsibilities with respect to the Partnership;
NOW, THEREFORE, in consideration of the premises hereof, and of the mutual
promises, obligations and agreements contained herein, the parties hereto,
intending to be legally bound, do hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 DEFINED TERMS.
For the purposes of this Agreement, the following defined terms shall have the
meanings ascribed thereto:
"AGREEMENT" OR "PARTNERSHIP AGREEMENT" means this Limited Partnership
Agreement.
"APPROVE," "APPROVED" OR "APPROVAL" refers to, as to the subject matter
thereof, an express approval contained in a written statement signed by the
appropriate parties as provided in this Agreement.
"CAPITAL CONTRIBUTIONS" means the aggregate and additional contributions
to the capital of the Partnership made by each Partner.
"ENTITY" means any corporation, venture (general or limited), limited
partnership, limited liability company, association, joint stock company, trust
or other business entity or organization.
"FEDERAL ACT" means the Federal Securities Act of 1933, as amended, and
the Federal Securities Exchange Act of 1934, as amended, and all regulations
promulgated under either of them.
"GENERAL PARTNER" means WESTERN ACCESS SERVICES, LLC, a Delaware limited
liability company, and its permitted successors and assigns.
"I.R.C." means the Internal Revenue Code of 1986, Title 26 of the United
States Code, as the same may now or hereafter be amended.
"LIMITED PARTNER" means VALOR TELECOMMUNICATIONS INVESTMENTS, LLC, a
Delaware limited liability company, and its permitted successors and assigns.
"NET CASH FLOW" means all cash receipts received during such period and
derived from the operation of the Partnership, minus (i) all costs and expenses
of the Partnership paid during such period (other than depreciation or other
similar noncash expenses) including, without limitation, debt service on any
loan or debt obligation of the Partnership, and minus (ii) any other cash
expenditures made by the Partnership as permitted or required under the terms of
this Agreement during such period, and minus (iii) any taxes required to be paid
by the Partnership to any governmental entity, and minus (iv) funds paid into
any reserve accounts required during such period for the establishment of or
addition to such reserves as the General Partner shall reasonably deem necessary
or appropriate for the proper operation of the business of the Partnership.
"NOTICE" means a written advice or notification required or permitted by
this Agreement, given in the manner provided in Section 8.1.
"PARTNER LOAN" means a loan to the Partnership by one or more Partners
pursuant to Section 3.3.
"PARTNERS" means the General Partner and the Limited Partner and such
other Partners as may be admitted to the Partnership from time to time pursuant
to the terms hereof.
"PARTNERSHIP" means WESTERN ACCESS SERVICES OF TEXAS, L.P. a Delaware
limited partnership, formed under the Act pursuant to the terms hereof for the
limited purposes and scope set forth herein.
"PERCENTAGE INTEREST" means, with respect to a Partner as of any
particular time, that fraction, expressed as a percentage, having as its
numerator the number of Units owned by such Partner and having as its
denominator the total number of outstanding Units owned by all the Members as of
such time. The sum of the Percentage Interests of all Partners shall at all
times equal 100%. Initially, the Percentage Interest of each of the Partners is:
Western Access Services, LLC -1% and Valor Telecommunications Investments, LLC -
99(degree)%.
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"REGULATIONS" means the Regulations promulgated under the I.R.C. as such
regulations may be amended from time to time. All references herein to a
specific section of the Regulations shall be deemed also to refer to any
corresponding provision of succeeding Regulations.
"UNITS" shall mean the shares in which interests of the Partners are
divided.
Section 1.2 TERMINOLOGY AND CAPTIONS.
All personal pronouns used in this Agreement, whether in the masculine, feminine
or neuter gender, shall include all other genders. Titles of Sections in this
Agreement are for convenience only, and neither limit nor amplify the provisions
of this Agreement, and all references in this Agreement to Sections or
subsections shall refer to the corresponding Section or subsection of this
Agreement, unless otherwise expressly stated.
ARTICLE 2
THE PARTNERSHIP
Section 2.1 EFFECT OF THIS AGREEMENT AND THE ACT.
Except as otherwise specifically provided in this Agreement, the rights and
obligations of the Partners and the administration, dissolution, liquidation,
and termination of the Partnership shall be governed by the Act and this
Agreement.
Section 2.2 NAME.
The name of the Partnership shall be WESTERN ACCESS SERVICES OF TEXAS, L.P. or
such other name as the General Partner may from time to time direct.
Section 2.3 PLACE OF BUSINESS; REGISTERED AGENT.
The mailing address, address of the registered office and principal place of
business of the Partnership shall be at ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ I, Irving, Texas, 75062-2707. The General Partner may
change the place of business of the Partnership at any time and from time to
time by providing written notice to the Limited Partners. The Partnership may
also have such other places of business as the General Partner determines to be
appropriate. The Partnership's agent for service of process in the State of
Delaware shall be Corporation Service Company, or such other individual as the
General Partner shall determine from time to time.
Section 2.4 PURPOSES AND SCOPE.
Subject to the provisions of this Agreement, the purpose of the Partnership is
to engage in any lawful business which may be engaged in by a limited
partnership organized under the Act, as such business activities may be
determined by the General Partner from time to time.
Section 2.5 ASSUMED NAME CERTIFICATE.
The Partners shall execute and file any assumed or fictitious name certificate
or certificates required by law to be filed in connection with the formation and
operation of the Partnership.
Section 2.6 CERTIFICATE OF LIMITED PARTNERSHIP.
The Partners shall be obligated to execute, acknowledge, file, record and
publish, as necessary, such amendments to the Certificate of Limited Partnership
filed with the Delaware Secretary of State as may be required by the terms
hereof or by law and such other certificates and documents as may be appropriate
to comply with the requirements of law for the continuation, preservation and
operation of the Partnership as a limited partnership.
Section 2.7 OWNERSHIP; WAIVER OF RIGHT OF PARTITION.
The interest of each Partner in the Partnership shall be personal property for
all purposes. All property and interests in property, real or personal, owned by
the Partnership shall be deemed owned by the Partnership as an entity, and no
Partner, individually, shall have any ownership of such property or interest
owned by the Partnership except as a Partner in the Partnership. Each of the
Partners irrevocably waives, during the term of the Partnership and during any
period of its liquidation following any dissolution, any right that it may have
to maintain any action for partition with respect to any of the assets of the
Partnership.
Section 2.8 RECORDS.
The Partnership shall maintain, at its principal place of business, the books
and records of the Partnership including, but not limited to, (i) copies of the
Partnership's federal, state and local income tax returns for the three (3) most
recent years, (ii) a copy of this Agreement and any then-effective amendments to
this Agreement, (iii) any financial statements of the Partnership for the three
(3) most recent years, and (iv) a list of the full name and last known mailing
address of each Partner.
Section 2.9 TERM.
The Partnership shall commence on the date hereof and shall continue until the
dissolution of the Partnership pursuant to the express provisions of Article 7
hereof.
ARTICLE 3
FINANCIAL STRUCTURE
Section 3.1 CLASSIFICATION OF PARTNERSHIP.
The General Partner is authorized and hereby directed to cause the Partnership
to be classified for federal income tax purposes as an association taxable as a
corporation within the meaning of I.R.C. Section 7701(a)(3).
Section 3.2 INITIAL CAPITAL CONTRIBUTIONS; UNITS.
Each Partner has made an initial Capital Contribution to the Partnership, and
owns the number of Units set forth opposite its name, as set forth on Exhibit B,
attached hereto and hereby incorporated herein.
Section 3.3 PARTNER LOANS.
In the event that the General Partner shall determine, at any time and from time
to time, that the Partnership requires additional funds to pay any costs or
expenses of the Partnership incurred in accordance with the provisions of this
Agreement, and the General Partner determines that it is in the best interest of
the Partnership not to obtain a loan for such funds
from an unrelated third party, then the General Partner shall notify the
Partners of the amount required to pay such costs and expenses and the Partners
shall have fifteen (15) days to elect to participate in making a Partner Loan,
provided, however, no Partner shall have any obligation to make a Partner Loan.
In the event any Partner so elects to participate, each Partner electing to make
such Loan shall advance its pro rata share of the needed funds, based upon the
participating Partners' respective Percentage Interests. Any Partner Loan shall
bear interest at the rate equal to the "prime rate" plus two percent (2%) per
annum, non-compounded and shall have a maturity date specified by the Partner or
Partners making such Partner Loan, provided the term of any such Partner Loan
shall not be less than ninety (90) days. Principal and interest on any Partner
Loan shall be repayable solely from distributions of Net Cash Flow as provided
hereunder. In the event there is more than one Partner Loan, the loans shall
have priority and be repayable on the basis of the oldest Partner Loan having
the first priority (with all loans having been made in response to a single
notice being deemed to have been made at the same time). If more than one
Partner has participated in a Partner Loan, then as among the Partners,
distributions in repayment of the principal and interest of the Partner Loans
shall be made pro rata in accordance with the amounts advanced by the Partners.
Section 3.4 ADDITIONAL CAPITAL CONTRIBUTIONS.
No Partner shall be required to make any additional Capital Contributions to the
Partnership without the express written consent of such Partner.
Section 3.5 WITHDRAWAL OF CAPITAL.
Except as expressly provided hereunder, no Partner may withdraw capital from the
Partnership without the consent of all other Partners. No Partner shall be
entitled to interest on its contributions of capital to the Partnership. The
Partners agree that no Partner shall be personally liable for the return of the
capital contributions of any other Partner, if and to the extent that any return
is required, and any such return shall be made solely from the assets of the
Partnership, if any.
Section 3.6 DISTRIBUTIONS AND PAYMENTS OF NET CASH FLOW.
Except as provided in Section 3.7, Net Cash Flow shall be distributed or paid
from time to time as may be determined by the General Partner to the Partners in
proportion to their Percentage Interests in the Partnership, as represented by
their number of Units.
Section 3.7 DISTRIBUTIONS UPON DISSOLUTION, LIQUIDATION AND WINDING UP.
Net Cash Flow, if any, existing upon the dissolution, liquidation and winding up
of the Partnership, shall be distributed to the Partners in proportion to their
Percentage Interest in the Partnership, as represented by their number of Units.
Section 3.8 MATTERS CONCERNING ACCOUNTING AND INCOME TAXES.
All income tax and financial reports and returns of the Partnership shall be
prepared on an accounting basis selected by the General Partner. All elections
with respect to tax matters to be made by or for the Partners shall be made by
the General Partner. The fiscal year of the Partnership shall be the calendar
year.
ARTICLE 4
MANAGEMENT
Section 4.1 RIGHTS AND POWERS OF THE GENERAL PARTNER.
The management and control of the business and affairs of the Partnership shall
be vested in the General Partner, subject to the limitations set forth in
Section 4.2 below. The General Partner shall conduct or cause to be conducted
the Partnership's business and manage or cause to be managed the Partnership's
affairs in its discretion and shall have and possess all rights and powers
conferred by law and under this Agreement or otherwise necessary, advisable,
desirable or consistent in connection therewith, including without limitation
the following rights and powers:
(a) Enter into, make and perform such contracts, undertakings,
leases and agreements, and do such other acts as it may deem necessary or
advisable, or as may be incidental to, or necessary for, the conduct of the
business of the Partnership;
(b) Open, maintain and close bank accounts and draw checks and
other orders for the payment of money;
(c) Perform any and all other acts or activities customary or
incident to the business of the Partnership;
(d) Be reimbursed for all reasonable and customary out-of-pocket
expenses incurred in conducting the Partnership business, including without
limitation to reasonable travel expenses, and costs related to Partnership
accounting and bookkeeping services.
In dealing with the General Partner acting on behalf of the Partnership, no
person or entity shall be required to inquire into the authority of the General
Partner to bind the Partnership. Persons and entities dealing with the
Partnership shall be entitled to rely conclusively on the power and authority of
the General Partner as set forth in this Agreement. Any document or instrument,
including, without limitation, any deed, mortgage, deed of trust, deed to secure
debt, promissory note, ▇▇▇▇ of sale, lease, contract of sale, option or
management agreement required to be executed on behalf of the Partnership shall
be executed by the General Partner, and no other signature or consent shall be
required.
Section 4.2 LIMITATION ON POWER AND AUTHORITY OF THE GENERAL PARTNER.
Notwithstanding the terms of Section 4.1, the General Partner shall not, without
the prior Approval of the Limited Partner:
(a) Materially modify or amend this Agreement to the detriment of
the Limited Partners; or
(b) Possess Partnership property or assign rights in Partnership
property for other than a Partnership purpose.
Section 4.3 LIABILITY OF PARTNERS.
Neither the General Partner nor any Limited Partner nor any of their respective
employees, agents or representatives shall be responsible to the Partnership or
to any other Partner for any loss, liability, damage, claim, judgment, cost,
obligation or expense sustained, incurred or resulting directly or indirectly
from the acts or omissions of such Partner to the extent that such Partner or
any of their respective employees, agents or representatives reasonably and in
good faith believed such act or omission to be within the express or implied
scope of the authority and responsibility vested in such Partner pursuant to
this Agreement. To the extent not due to the gross negligence or willful
misconduct (including but not limited to fraud, misrepresentation or any other
intentional tort) of such Partner or such Partner's employees, agents or
representatives, the Partnership will indemnify the Partners (including the
officers, directors and employees of the General Partner) against judgments,
fines, amounts paid in settlement and expenses (including attorneys fees)
reasonably incurred by them in any civil, criminal or investigative proceeding
in which they are involved or threatened to be involved by reason of being a
Partner in the Partnership, provided that the Partner acted in good faith,
within what it reasonably believed to be the scope of its authority and for a
purpose which it reasonably believed to be in the beat interest of the
Partnership or the Partners. The provisions of the foregoing sentences, however,
shall not relieve the General Partner of its obligation as a Partner to share in
the losses, costs and expenses of the Partnership. The provisions of this
Section 4.3 shall survive any termination or expiration of this Agreement.
Section 4.4 PARTICIPATION IN MANAGEMENT.
Except as may be otherwise expressly provided herein to the contrary, no Limited
Partner shall participate in the management or control of the Partnership's
business or transact any business for the Partnership, and no Limited Partner
shall have the power to act for or bind the Partnership, said powers being
vested solely and exclusively in the General Partner in accordance with the
provisions of this Agreement.
ARTICLE 5
LIMITED LIABILITY
No Limited Partner shall be bound by, or personally liable for, the
expenses, liabilities, or obligations of the Partnership, except as provided
under the Act. Except as required under the Act, no Limited Partner shall be
required or obligated to make further contributions of any sort whatsoever to
the capital of the Partnership, unless and until such contributions have been
Approved by all of the Partners.
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ARTICLE 6
TRANSFERS AND OTHER DISPOSITIONS
Section 6.1 TRANSFER LIMITATIONS
6.1.1 LIMITED PARTNER TRANSFERS.
Except as otherwise specifically provided herein, no Limited Partner may
transfer, voluntarily or involuntarily, all or any part of its interest in the
Partnership, nor shall any Limited Partner have the power to substitute a
transferee in its place as a substituted Limited Partner, without, in either
event, having obtained the prior written consent of the General Partner, which
consent shall be in the sole discretion of the General Partner.
6.1.2 GENERAL PARTNER TRANSFERS.
Except as otherwise specifically provided herein, the General Partner shall not
transfer, voluntarily or involuntarily, all or any part of its interest in the
Partnership, nor shall the General Partner have the power to substitute a
transferee in its place as a substituted General Partner, without, in either
event, having obtained the prior written consent of each Limited Partner, which
consent shall be in the Limited Partners' sole discretion.
Section 6.2 ASSIGNEES AND NEW PARTNERS
6.2.1 PERMITTED TRANSFEREES.
In the event of a transfer of any interest in the Partnership permitted pursuant
to the provisions of this Article 6, and notwithstanding anything in this
Article 6 to the contrary (except Section 6.2.2), the person or entity to whom
such transfer is made shall not become a Partner hereunder and shall be
considered only an assignee of the Partnership Interest and as such shall only
be entitled to share in those distributions, if any, in which its assignor would
otherwise have been entitled to share, diminished by the share of the losses and
obligations, if any, for which such assignor would be liable. Such an assignee
shall have no right to require any information or accounting of any transactions
of the Partnership or inspect the Partnership books and records and shall not be
deemed a Partner of the Partnership, and the interest in the Partnership held by
such assignee shall not be permitted to vote with respect to any Partnership
matter. Such an assignee who does not become a substituted Partner, as provided
for in Section 6.22, remains subject to all the provisions of this Article 6 to
the same extent and in the same manner as any Partner desiring to transfer all
or any part of its Partnership interest.
6.2.2 NEW PARTNERS.
An assignee of a Partner's interest in the Partnership pursuant to a transfer
permitted under the provisions of this Article 6 may become a substituted
Partner with all the rights and liabilities of its assignor as a Partner under
this Agreement if and only if (i) the General Partner or each Limited Partner
(in the case of a General Partner's transferee) shall have consented in writing
to such assignee becoming a substituted Partner, (ii) the assignee expressly
assumes and agrees to be bound by this Agreement in the place and stead of such
assignor, and (iii) the appropriate instruments, documents, or statements, if
any, are prepared executed, acknowledged, filed, recorded, published and
delivered.
6.2.3 SUBSTITUTION.
Upon a transfer by a Partner of all or part of its interest in the Partnership
and substitution of a Partner with respect to all or such portion of its
Partnership interest, the transferring Partner shall cease to be a Partner to
the extent of the partnership interest so transferred.
6.2.4. PERMITTED TRANSFEREE IN EVENT OF DEFAULT ON LOAN DOCUMENTS.
Any designee of the administrative agent identified in writing after the
occurrence of an Event of Default under the Loan Documents shall be a Permitted
Transferee of the applicable partnership interests without the necessity of any
further consent from any partner.
Section 6.3 WITHDRAWAL
No Limited Partner may withdraw from the Partnership except with the consent of
the General Partner and all other Limited Partners and the General Partner may
not withdraw from the Partnership without the consent of each Limited Partner,
and in each case upon such terms and conditions as may be specifically agreed
upon between the remaining Partners and the withdrawing Partner. The provisions
of this Agreement with respect to distributions upon withdrawal art exclusive
and no Partner shall be entitled to claim any further or different distribution
upon withdrawal under the Act or otherwise.
ARTICLE 7
TERMINATION
Section 7.1 WAIVER OF RIGHTS.
Each Partner does hereby expressly waive any and all rights to dissolve,
terminate or liquidate, or to petition a court for the partition, dissolution,
termination or liquidation of the Partnership except as provided in this Section
7.
Section 7.2 VOLUNTARY TERMINATION.
Prior to the expiration of the term, the Partnership may terminate upon: (i) the
Approval of all Partners; (ii) the purchase by one Partner of all the interests
in the Partnership; or (iii) the sale of substantially all the assets of the
Partnership and the distribution to the Partners of all proceeds from such sale.
Section 7.3 INVOLUNTARY TERMINATION.
The Partnership shall not be dissolved by the bankruptcy, insolvency,
withdrawal, dissolution or acquisition of a Limited Partner.
7.3.1 EVENTS OF INVOLUNTARY DISSOLUTION.
Subject to the provisions of Section 7.3.2, the Partnership shall be dissolved
prior to the date of its termination, upon the occurrence of the following
events:
(a) the dissolution of the General Partner;
(b) the filing of an involuntary petition in bankruptcy
against the General Partner which is not dismissed within one hundred twenty
(120) days of such filings;
(c) The resignation, withdrawal of the General Partner from
the Partnership, except under the terms and conditions set forth in paragraph
6.1.2 above, or other event causing the General Partner to cease being the
General Partner.
7.3.2 REFORMATION OF PARTNERSHIP.
Notwithstanding the provisions of Section 7.3.1, the Partnership shall not be
dissolved upon the occurrence of any of the events enumerated in Section 7.3.1
in the event that all of the Partners not responsible for the occurrence of such
event, within 60 days after the date of any of such events, elect to continue
the business of the Partnership, in a reconstituted form, if necessary, in which
case, effective as of the date of such event, the Partner responsible for such
event shall become a defaulting Partner and if such Partner is the General
Partner, its interest in the Partnership shall automatically be converted to
that of a limited partner without further act or deed, and one or more of the
Limited Partners shall convert a portion of its interest in the Partnership to a
general partner interest and shall designate a successor general partner who
shall hold said general partner interest and serve as the successor general
partner of the Partnership.
Section 7.4 LIQUIDATION PROCEDURES.
Upon the expiration of the term of the Partnership or the earlier dissolution of
the Partnership in accordance with the provisions of Section 7.2 or Section 7.3,
the Partnership shall be liquidated in accordance with the following procedures:
7.4.1 WINDING UP.
During the period of such dissolution and liquidation, the business and affairs
of the Partnership shall be conducted so as to maintain and preserve the assets
of the Partnership in a manner consistent with the winding up of the affairs
thereof.
7.4.2 FORM OF DISTRIBUTIONS.
The General Partner shall determine whether the liquidating distributions shall
be entirely in cash or in whole or in part a distribution of the Partnership's
assets in kind.
7.4.3 PRIORITY OF PAYMENTS AND DISTRIBUTIONS.
In the event of a liquidation, the General Partner shall act as the liquidating
trustee, unless events specified in subsection 7.3.1 have caused the dissolution
leading to liquidation in which event the Limited Partners holding, in the
aggregate, a majority of the Percentage Interests in the Partnership shall act
as the liquidating trustee. The liquidating trustee shall immediately proceed to
wind up and terminate the business and affairs of the Partnership. The assets of
the Partnership, shall thereupon be distributed in the order of priority as set
forth in subsections 7.4.3.1 through 7.4.3.3.
7.4.3.1 First, the Partnership shall pay creditors of the
Partnership (other than the Partners) in accordance with their respective
priorities;
7.4.3.2 Second, the Partnership shall set up any reserves
which the liquidating trustee deems to be reasonably necessary for any
contingent or unforeseen liabilities or obligations of the Partnership arising
out of or in connection with the Partnership; and
7.4.3.3 Third, all remaining assets or proceeds shall be
distributed to the Partners in accordance with section 3.7.
ARTICLE 8
MISCELLANEOUS PROVISIONS
Section 8.1 NOTICES.
Each Notice shall be in writing in the English language, and shall be deemed to
have been properly given or served when transmitted by facsimile transmission or
when deposited with the United States Postal Service or any official successor
thereto, designated as registered or certified mail, return receipt requested,
bearing adequate postage and addressed as hereinafter provided, or by personal
delivery (which may include delivery by commercial courier service) if receipt
is procured. The time period in which a response to any Notice must be made, or
any action taken or payment made with respect thereto, shall commence to run
from the date of the confirmation of receipt of such facsimile transmission, the
date of receipt indicated on the return receipt of the Notice or on the date of
personal delivery evidenced by a receipt. Rejection of or other refusal to
accept a Notice, or the inability to deliver because of changed address or
statue of which no Notice was given, shall be deemed to be receipt of the Notice
sent. By giving to the other Partners at least ten (10) days' prior Notice
thereof, any Partner shall have the right from time to time during the term of
this Partnership Agreement to change the address(es) thereof and to specify as
the address(es) thereof any other address(es) within the United States of
America. All dates and times referred to in this Agreement shall be determined
based on local time in Irving, Texas.
Section 8.2 GOVERNING LAW.
This Agreement and the obligations of the Partners hereunder shall be
governed by and interpreted, construed and enforced in accordance with the laws
of the State of Delaware.
Section 8.3 UNIFORM COMMERCIAL CODE
The Partners hereby agree that the partnership interests of the
Partnership shall be securities governed by Article 8 of the Uniform Commercial
Code of the State of Texas (and the Uniform Commercial Code of any other
applicable jurisdiction).
Section 8.4 SEVERABILITY
If any provision of this Agreement or the application thereof to any
Entity or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Agreement and the application of such provision to any other
Entity or circumstance shall not be affected thereby and shall be enforced to
the greatest extent permitted by law.
Section 8.5 ENTIRE AGREEMENT; AMENDMENT.
This Agreement constitutes the entire agreement of the Partners with
respect to the subject matter hereof. Neither this Agreement nor any provision
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the Partners against whom enforcement of the
change, waiver, discharge or termination is sought. The
execution of any amendment to this Agreement by all Partners shall establish,
that such execution was made in accordance with any applicable requirements for
approval.
Section 8.6 SUCCESSORS AND ASSIGNS.
Subject to the restrictions set forth herein, this Agreement shall inure to the
benefit of and be binding upon the Partners and their respective heirs,
executors, legal representatives, successors and assigns. Whenever in this
Agreement a reference to any Entity or Partner is made, such reference shall be
deemed to include a reference to the permitted heirs, executors, legal
representatives, successors and assigns of such Entity or Partner.
Section 8.7 THIRD PARTIES.
Under no circumstances shall any person or entity who or which is not a party to
this Agreement be entitled to enforce any of the provisions hereof against any
of the Partners.
Section 8.8 SURVIVAL.
In the event this Partnership Agreement shall be terminated in accordance with
the provisions hereof, the provisions of Article 7 relating to the liquidation
of the Partnership shall remain in full force and effect and shall be binding
upon the Partners for all purposes.
Section 8.9 INTERPRETATION.
No provision of this Partnership Agreement shall be construed against or
interpreted to the disadvantage of any Partner by any court or other
governmental or judicial authority by reason of such Partner having or being
deemed to have drafted, structured, dictated or required such provision.
Section 8.10 EXHIBITS
All exhibits referred to in this Agreement and attached hereto are made a part
of this Agreement by this reference.
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EXHIBIT A
NAMES AND ADDRESSES OF PARTNERS
General Partner
Western Access Services, LLC
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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Limited Partner
Valor Telecommunications Investments, LLC
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EXHIBIT B
CAPITAL CONTRIBUTION
General Partner: $1 for 1 interest
Limited Partner: $99 for 99 interests
IN WITNESS WHEREOF, the parties hereto have signed, sealed and delivered
this Agreement under seal as of the date first noted above.
GENERAL PARTNER:
WESTERN ACCESS SERVICES, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Manager
LIMITED PARTNER:
VALOR TELECOMMUNICATIONS INVESTMENTS, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, T .
________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, T .
Title: Manager