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EXHIBIT 3.40
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AGREEMENT OF LIMITED PARTNERSHIP
OF
▇▇▇▇▇ TELECOM SERVICES, L.P.
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JANUARY 10, 2000
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TABLE OF CONTENTS
PAGE
1. FORMATION .................................................................. 1
1.1 Formation ............................................................ 1
2. NAME AND OFFICE ............................................................ 1
2.1 Name ................................................................. 1
2.2 Fictitious Name Certificates ......................................... 1
2.3 Principal Office ..................................................... 1
3. PURPOSES AND TERMS ......................................................... 1
3.1 Purposes ............................................................. 1
3.2 Partnership Powers ................................................... 2
3.3 Term ................................................................. 2
4. CAPITAL .....................................................................2
4.1 Capital Contributions of the Partners ................................ 2
4.2 Loans ................................................................ 2
4.3 Limited Partner's Liability .......................................... 2
4.4 No Interest on Capital Contributions ................................. 2
4.5 Withdrawal of Capital ................................................ 3
4.6 Capital Account ...................................................... 3
5. ACCOUNTING ................................................................. 3
5.1 Books and Records .................................................... 3
5.2 Fiscal Year .......................................................... 3
5.3 Reports .............................................................. 3
5.4 Tax Returns .......................................................... 4
6. BANK ACCOUNTS .............................................................. 4
6.1 Bank Accounts ........................................................ 4
7. ALLOCATION OF NET INCOME AND NET LOSS ...................................... 4
7.1 Net Income ........................................................... 4
7.2 Net Loss ............................................................. 4
7.3 Allocations in Event of Transfer, Admission of New Partner, Etc. ..... 5
8. TAX ELECTIONS .............................................................. 5
8.1 Tax Elections ........................................................ 5
9. DISTRIBUTIONS .............................................................. 5
9.1 Cash Distributions ................................................... 5
(i)
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PAGE
9.2 Property Distributions ............................................... 5
10. MANAGEMENT ................................................................ 6
10.1 Management .......................................................... 6
10.2 Standard of Care of General Partner, Indemnification ................ 6
10.3 Compensation for Services ........................................... 6
10.4 Other Activities .................................................... 7
10.5 Reimbursement of Expenses of General Partner ........................ 7
11. DISSOLUTION ............................................................... 7
11.1 Dissolution ......................................................... 7
11.2 Sale of Assets Upon Dissolution ..................................... 8
11.3 Distributions Upon Dissolution ...................................... 8
11.4 Liquidating Trustee ................................................. 8
11.5 Liquidation of a Partner's Interest ................................. 8
12. WITHDRAWAL, ASSIGNMENT AND ADDITION OF PARTNERS ........................... 9
12.1 Assignment of Limited Partner's Interest ............................ 9
12.2 Substitute Limited Partner .......................................... 9
12.3 Death, Incompetency; Etc. of a Limited Partner ...................... 9
12.4 Assignment of General Partner's Interest ............................ 9
12.5 Admission of New Partners ........................................... 9
12.6 Merger .............................................................. 9
13. POWER OF ATTORNEY .........................................................10
13.1 Power of Attorney ...................................................10
14. TAX MATTERS PARTNER .......................................................11
14.1 Tax Matters Partner .................................................11
15. GENERAL ...................................................................11
15.1 Notices .............................................................11
15.2 Amendment ...........................................................12
15.3 Captions; Section References ........................................12
15.4 Number and Gender ...................................................12
15.5 Severability ........................................................12
15.6 Arbitration .........................................................12
15.7 Binding Agreement ...................................................13
15.8 Applicable Law ......................................................13
15.9 Entire Agreement ....................................................13
15.10 Counterparts .......................................................13
15.11 No Right of Partition ..............................................13
(ii)
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GLOSSARY OF DEFINED TERMS
Defined Term Section
Act ................................................................. 1.1
Affiliate ........................................................... 10.4
Agreement ........................................................... Preamble
Capital Account ..................................................... 4.6
Contributed Assets .................................................. 7.1(e)
Fiscal Year ......................................................... 5.2
General Partner ..................................................... Preamble
Limited Partner ..................................................... Preamble
Liquidating Trustee ................................................. 11.4
Partner ............................................................. Preamble
Partners ............................................................ Preamble
Partnership ......................................................... Recitals
Percentage Interests ................................................ 4.1(a)
(iii)
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AGREEMENT OF LIMITED PARTNERSHIP
OF
▇▇▇▇▇ TELECOM SERVICES, L.P.
THIS AGREEMENT OF LIMITED PARTNERSHIP ("Agreement") is entered into and
effective as of the 10th day of January, 2000, by and between (i) ▇▇▇▇▇▇
Underground Cable, Inc., a Missouri corporation, as the general partner
("General Partner"), and (ii) North American Tel-Com Group, Inc., a Florida
corporation, as the limited partner ("Limited Partner"). The General Partner and
the Limited Partner are hereinafter collectively referred to as "Partners" and
individually as a "Partner." For purposes of this Agreement, the terms "General
Partner," "Limited Partner" and "Partner" include all persons then acting in
such capacities in accordance with the terms of this Agreement.
1. FORMATION.
1.1 FORMATION. The Partners do hereby form a limited partnership
pursuant to the visions of the Texas Revised Limited Partnership Act ("Act").
2. NAME AND OFFICE.
2.1 NAME. The name of the Partnership shall be ▇▇▇▇▇ Acquisition, L.P.
The General Partner shall have the right and authority to operate the business
of the Partnership under such other name as may be appropriate to the extent
required in any jurisdiction in which the Partnership operates.
2.2 FICTITIOUS NAME CERTIFICATES. The Partnership shall file such
certificates of fictitious name as shall be required by law.
2.3 PRINCIPAL OFFICE. The principal office of the Partnership shall be
at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other
place as shall be designated by the General Partner from time to time by notice
to the Partners. The General Partner shall notify the Partners of the
establishment of any office of the Partnership in addition to, or in replacement
of, the principal office named herein or any replacement thereof. The books of
the Partnership shall be maintained at such principal place of business or such
other place that the General Partner shall deem appropriate. The Partnership
shall at all times designate an agent for service of process in Texas in
accordance with the provisions of the Act.
3. PURPOSES AND TERMS.
3.1 PURPOSES. The purposes of the Partnership are as follows:
(a) To engage in such other lawful activity as is unanimously
agreed to by the Partners.
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(b) To do all other things necessary or desirable in
connection with the foregoing, or otherwise contemplated in this Agreement.
3.2 PARTNERSHIP POWERS. In furtherance of the purposes of the
Partnership as set forth in Section 3.1, the Partnership shall have the power to
do any and all things whatsoever necessary, appropriate or advisable as
determined by the General Partner in connection with such purposes, or as
otherwise contemplated in this Agreement. The General Partner shall not,
however, be entitled to engage in any business other than as set forth in
Section 3.1, nor take any action not contemplated in this Agreement.
3.3 TERM. The term of the Partnership shall commence as of the date
hereof and shall continue until dissolved in accordance with Section 11.
4. CAPITAL.
4.1 CAPITAL CONTRIBUTIONS OF THE PARTNERS.
(a) The Limited Partner shall have a Percentage Interest of 99
percent. The General Partner shall have a Percentage Interest of 1 percent. The
name, address and Percentage Interest of each Partner are set forth on Exhibit
"A" hereto.
(b) The General Partner and the Limited Partner shall each
make Capital Contributions to the Partnership in proportion to their respective
Percentage Interests. Upon the request of the General Partner, each Partner
shall make initial Capital Contributions of those assets subject to liabilities
set forth in Exhibit "B" hereto. A Partner shall not be required to make
additional Capital Contributions to the Partnership.
4.2 LOANS. If the partnership has a temporary need for funds, the
Partnership may borrow such funds from one or more of its Partners on such terms
and conditions as shall be agreed to by the General Partner and such Partners.
4.3 LIMITED PARTNER'S LIABILITY. Except as otherwise provided in the
Act, a Limited Partner shall not be liable for any debts, obligations or losses
of the Partnership in excess of the Limited Partner's contribution to the
capital of the Partnership and the Limited Partner's share of the undistributed
net profits of the Partnership. Furthermore, a Limited Partner shall not be
required to contribute any capital to the Partnership.
4.4 No INTEREST ON CAPITAL CONTRIBUTIONS. No Partner shall be entitled
to interest on any capital contributions made to the Partnership.
4.5 WITHDRAWAL OF CAPITAL. No Partner shall be entitled to withdraw any
part of their capital contribution to the Partnership, or receive any
distributions from the Partnership, except provided in Sections 9 and 11. No
Partner shall be entitled to demand or receive any property from the Partnership
other than cash, except as otherwise expressly provided for herein.
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4.6 CAPITAL ACCOUNT. There shall be established on the books of the
Partnership a capital account ("Capital Account") for each Partner. The Capital
Account of each Partner shall be credited with the fair market value of each
Partner's Capital Contribution. The Capital Account of each Partner shall be
maintained and adjusted by the General Partner in a manner to reflect the
Partner's economic arrangement as set forth in this Agreement. The Capital
Accounts may be adjusted and maintained in the manner specified in regulations
promulgated by the United States Treasury Department, which would apply to a
partnership subject to the provisions of subchapter K of chapter 1 of the
Internal Revenue Code of 1986, as amended. If a Partner transfers all or any
portion of the Partner's Partnership Interest in accordance with the terms of
this Agreement, the Capital Account of the transferor shall become the Capital
Account of the transferee to the extent of the Partnership Interest so
transferred.
5. ACCOUNTING.
5.1 BOOKS AND RECORDS. The General Partner shall maintain full and
accurate books of the Partnership at the Partnership's principal place of
business, or such other place as the General Partner shall deem appropriate,
showing all receipts and expenditures, assets and liabilities, net income and
loss, and all other records necessary for recording the Partnership's business
and affairs, including those sufficient to record the allocations and
distributions provided for in Sections 7, 9 and 11.
5.2 FISCAL YEAR. The fiscal year of the Partnership shall be the
calendar year ("Fiscal Year").
5.3 REPORTS.
(a) Within 30 days after such information is provided to the
General Partner by the Partnership's accountant with respect to each Fiscal Year
of the Partnership, the General Partner shall furnish to each person who was a
Partner at any time during such Fiscal Year all the information relating to the
Partnership which shall be necessary for the preparation by each such person of
their Federal and state income or other tax returns.
(b) The Partnership shall not be obligated to deliver or mail
a copy of the Partnership's Certificate of Limited Partnership, nor any
amendment or cancellation thereof, to the Limited Partners.
5.4 TAX RETURNS. It shall be the duty of the General Partner to
prepare, or cause to be prepared, and timely file, all Federal, state and local
income tax returns and information returns, if any, which the Partnership is
required to file. All expenses incurred in connection with such tax returns and
information returns, as well as for the reports referred to in Section 5.3,
shall be expenses of the Partnership.
6. BANK ACCOUNTS.
6.1 BANK ACCOUNTS. All funds of the Partnership shall be deposited in
its name into such
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checking, savings and/or money market accounts or time certificates as shall be
designated by the General Partner. Withdrawals therefrom shall be made upon such
signature or signatures as the General Partner may designate. Partnership funds
shall not be commingled with those of any other person or entity.
7. ALLOCATION OF NET INCOME AND NET LOSS.
7.1 NET INCOME.
(a) Except as otherwise provided herein, the net income of the
Partnership for each Fiscal Year shall be allocated to the Partners in
accordance with their respective Percentage Interests.
(b) If net losses are allocated to a Partner in accordance
with the provisions of Section 7.2(b), then notwithstanding the provisions of
Section 7.1(a), net income thereafter recognized by the Partnership shall be
allocated to the Partner until such time as the net income allocated to the
Partner pursuant to this Section 7.1(b) equals the net losses theretofore
allocated to the Partner pursuant to Section 7.2(b).
7.2 NET LOSS.
(a) Except as otherwise provided herein, the net loss of the
Partnership for each Fiscal Year shall be allocated to the Partners in
accordance with their respective Percentage Interests.
(b) Notwithstanding the provisions of Section 7.2(a), net
losses shall be allocated to those Partners which bear the economic risk of loss
for such net losses, if any Partner bears such economic risk of loss, when the
allocations under Section 7.2(a) would otherwise create or increase a deficit
balance in the Capital Accounts of the Partners.
(c) It is the overall intention of the Partners that all
income, losses and distributions be allocated and made to the Partners, and the
Capital Accounts of the Partners be, in proportion to their respective
Percentage Interests. Except as provided in Section 7.1(b) or 7.2(b), the
General Partner shall interpret this Agreement consistent with that overall
intention.
7.3 ALLOCATIONS IN EVENT OF TRANSFER, ADMISSION OF NEW PARTNER, ETC. In
the event of (i) the transfer of all or any part of a Partner's Partnership
Interest (in accordance with the provisions of this Agreement), or (ii) the
admission of a new Partner at any time other than at the end of a Fiscal Year,
the transferring Partner's and new Partner's shares of the Partnership's income,
gain, loss, deductions and credits allocable to such interest, as computed both
for accounting purposes and for income tax purposes, shall be allocated between
the transferor Partner and the transferee Partner (or Partners), or the new
Partner and the other Partners, as the case may be, in the same ratio as the
number of days in such Fiscal Year before and after the date of such transfer or
admission; provided, however, that the General Partner shall have the option to
treat the periods before and after the date of such transfer, admission or
disproportionate capital contributions as separate Fiscal Years and allocate the
Partnership's net income, gain, net loss, deductions and credits
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for each of such deemed separate Fiscal Years in accordance with the Partners'
respective interests in the Partnership for such deemed separate Fiscal Years.
8. TAX ELECTIONS.
8.1 TAX ELECTIONS. The General Partner shall have the authority to make
any and all tax elections to be made by the Partnership for Federal, state,
local, or foreign tax purposes. Each Partner agrees to execute any and all
necessary forms and other documents necessary to make any such tax election.
9. DISTRIBUTIONS.
9.1 CASH DISTRIBUTIONS. The Partnership's cash available for
distribution (as determined by the General Partner) shall be distributed at such
time or times as the General Partner shall determine. All such distributions
shall be made to the Partners in accordance with their respective Percentage
Interests as of the date of distribution.
9.2 PROPERTY DISTRIBUTIONS. If any property of the Partnership, other
than cash, is distributed by the Partnership to a Partner (in connection with
the liquidation of the Partnership or otherwise), the fair market value of such
Property shall be used for purposes of determining the amount of such
distribution. The difference, if any, of such fair market value over (or under)
the value at which such property is carried on the books of the Partnership
shall be credited or charged to the Capital Accounts of the Partners in
accordance with the ratio in which the Partners share in the gain and loss of
the Partnership pursuant to Sections 7.1 and 7.2. The fair market value of the
property distributed shall be agreed to by the General Partner (Liquidating
Trustee in the case of a liquidating distribution) and the distributee Partner
in good faith. If any such property is distributed other than in exchange for a
Partnership Interest, it shall be distributed in the same manner as a cash
distribution.
10. MANAGEMENT.
10.1 MANAGEMENT.
(a) Control and management of the business of the Partnership
as described in Section 3 shall be vested exclusively in the General Partner
during the term of the Partnership, including its liquidation and dissolution.
Except as specifically provided for herein, the Limited Partners shall not have
any voice in, or take part in, the management of the Partnership. The Limited
Partners shall not have any authority to act for, or to assume any obligations
or responsibilities on behalf of, any other Partner or the Partnership.
(b) The General Partner shall have the right, power and
authority on behalf of the Partnership and in its name, without the consent of
the Limited Partners, to exercise all of the rights, powers and authority which
may be possessed by a general partner pursuant to the Act including, but not
limited to, the sale of all, or substantially all, of the assets of the
Partnership, the incurring
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of indebtedness and the granting of mortgages or other security interests to
secure such indebtedness.
10.2 STANDARD OF CARE OF GENERAL PARTNER, INDEMNIFICATION.
(a) The General Partner, its officers, directors, employees
and owners shall not be liable, responsible or accountable in damages to any
Partner, or the Partnership, for any act or omission on behalf of the
Partnership performed or omitted by them in good faith and in a manner
reasonably believed by them to be within the scope of the authority granted to
the General Partner by this Agreement and in the best interests of the
Partnership, unless they have been guilty of gross negligence or willful
misconduct.
(b) To the full extent permitted by the Act, the Partnership
shall indemnify the General Partner, its officers, directors and members, for,
and hold the General Partner, its officers, directors and members, harmless
from, any loss or damage incurred by them by reason of any act or omission so
performed or omitted by them (and not involving gross negligence or willful
misconduct). To the full extent authorized or permitted by the Act, the
Partnership shall pay or reimburse reasonable expenses (including reasonable
attorneys' fees) incurred by the General Partner, its officers, directors and
member, who are a party to a proceeding in advance of final disposition of such
proceeding. The Partnership may purchase and maintain insurance on behalf of the
General Partner, its officers, directors, employees and owners against any
liability asserted against or incurred by them as a result of being the General
Partner, or officers, directors or members of the General Partner, whether or
not the Partnership would have the power to indemnify such person against the
same liability under the provisions of this Section 10.2(b) or the Act.
10.3 COMPENSATION FOR SERVICES. The General Partner shall not be
entitled to compensation for its services as General Partner unless agreed to by
the Limited Partner. The General Partner shall, however, participate in the
Partnership's profit and loss, shall receive distributions pursuant to Sections
9 and 11 and shall be entitled to reimbursement from the Partnership for
expenses incurred on behalf of the Partnership as provided in Section 10.5.
10.4 OTHER ACTIVITIES. The General Partner shall devote such of the
General Partner's time as the General Partner deems necessary to the affairs of
the Partnership's business. The General Partner and the General Partner's
Affiliates may engage in, or possess an interest in, other business ventures of
any nature and description, independently or with others, whether or not such
activities are competitive with those of the Partnership. Neither the
Partnership, nor any Partner, shall have any rights by virtue of this Agreement
in and to such independent ventures, or to the income or profits derived
therefrom. The General Partner and the General Partner's Affiliates shall not be
obligated to present any particular business opportunity of a character which,
if presented to the Partnership, could be taken by the Partnership and the
General Partner and the General Partner's Affiliates shall have the right to
take for their own account, or to recommend to others, any such particular
business opportunity. For purposes of this Agreement, the term "Affiliate" shall
mean any person, corporation, partnership, trust, limited liability company or
entity controlling (directly or indirectly), controlled by, or under common
control with, a General Partner.
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10.5 REIMBURSEMENT OF EXPENSES OF GENERAL PARTNER. Regardless of
whether any distributions are made to the Partners, the Partnership shall
reimburse the General Partner, at the General Partner's cost, for the direct
expenses which the General Partner incurs in performing services on behalf of
the Partnership, including, without limitation, costs of (i) accounting,
statistical or bookkeeping services, (ii) computing or accounting equipment and
(iii) travel, telephone, postage, legal, accounting and other expenses relating
to the operation of the business of the Partnership. Notwithstanding Section
10.3 or this Section 10.5 to the contrary, the Partnership may pay Affiliates of
the General Partner for services or the use of property provided such payments
are no less favorable to the Partnership than those that would be made to a
person that is not an Affiliate of the General Partner.
11. DISSOLUTION.
11.1 DISSOLUTION.
(a) Except as otherwise provided in the Act, the Partnership
shall dissolve upon, but not before, the first to occur of the following:
(1) The occurrence of an event of withdrawal with
respect to the General Partner unless within 90 days after the
occurrence of any such event the Limited Partner selects a successor
general partner to replace the General Partner and agrees to continue
the business of the Partnership; or
(2) The unanimous decision of the Partners to
dissolve the Partnership.
(b) Dissolution of the Partnership shall be effective upon the
date on which the event giving rise to the dissolution occurs, but the
Partnership shall not terminate until the Partnership's Certificate of Limited
Partnership has been canceled and the assets of the Partnership shall have been
distributed as provided in Section 11.3. Notwithstanding dissolution of the
Partnership, prior to the liquidation and termination of the Partnership, the
business of the Partnership and the affairs of the Partners, as such, shall
continue to be governed by this Agreement.
(c) The Partnership shall not dissolve upon the death,
bankruptcy, adjudication of incompetency or insanity, withdrawal from or
assignment of, the interest in the Partnership of a Limited Partner. In any such
event, the General Partner shall have the right and duty to continue the
business of the Partnership under the terms of this Agreement.
11.2 SALE OF ASSETS UPON DISSOLUTION. Following the occurrence of any
of the events set forth in Section 11.1(a), the Liquidating Trustee (referred to
in Section 11.4) shall determine whether the assets of the Partnership are to be
sold or whether all or any part of such assets are to be distributed to the
Partners in kind in dissolution of the Partnership.
11.3 DISTRIBUTIONS UPON DISSOLUTION. Upon the dissolution of the
Partnership, the properties of the Partnership to be sold shall be liquidated in
orderly fashion and the proceeds thereof and the property to be distributed in
kind shall be distributed on or before the later to occur of (i) the
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close of the Partnership's taxable year, or (ii) 90 days following the date of
such dissolution, as follows:
(a) First, to the payment and discharge of all of the
Partnership's debts and liabilities (including to Partners in accordance with
the priorities established by law), to the necessary expenses of liquidation and
to the establishment of any cash reserves which the Liquidating Trustee
determines to create in the Liquidating Trustee's sole discretion for unmatured
and/or contingent liabilities or obligations of the Partnership.
(b) Second, to the Partners in accordance with their
respective Percentage Interests.
11.4 LIQUIDATING TRUSTEE. Upon the occurrence of any of the events set
forth in Section 11.1(a), the General Partner, if there is any at such time,
shall constitute the Liquidating Trustee for the Partnership. If there is no
General Partner at such time, then the Limited Partner shall select one or more
individuals to act as Liquidating Trustee for the Partnership. The Liquidating
Trustee, whether or not the General Partner, shall be subject to the same
standards, and be entitled to the same indemnification, as the General Partner
pursuant to Section 10.2.
11.5 LIQUIDATION OF A PARTNER'S INTEREST. If a Partner's Partnership
Interest is to be liquidated by agreement between the Partnership and such
Partner (the Partnership being under no obligation to do so), the Partner shall
be entitled to receive in liquidation an amount equal to the amount determined
by any such agreement. Net income or net loss shall be allocated to the Partner
whose interest is to be liquidated in accordance with Section 7.3 and the
Capital Accounts of the Partners shall be adjusted by the General Partner to
reflect the liquidation.
12. WITHDRAWAL, ASSIGNMENT, ADDITION OF PARTNERS AND MERGER
12.1 ASSIGNMENT OF LIMITED PARTNER'S INTEREST. A Limited Partner may
not freely sell, assign, transfer, pledge, hypothecate, encumber or otherwise
dispose of its Partnership Interest without the consent of the General Partner
which consent may be withheld in the sole and absolute discretion of the General
Partner.
12.2 SUBSTITUTE LIMITED PARTNER. No assignee of a Limited Partner's
Partnership Interest shall have the right to become a substitute Limited Partner
unless all of the following conditions are satisfied:
(a) except in the case of death or adjudication of
incompetency or insanity, the fully executed and acknowledged written instrument
of assignment has been filed with the Partnership setting forth the intention of
the assignor that the assignee become a substitute Limited Partner in place of
the assignor with respect to the Partnership Interest assigned;
(b) the assignor and assignee execute and acknowledge such
other instruments as the General Partner deems necessary or desirable to effect
such admission, including, but not
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limited to, the written acceptance and adoption by the assignee of the
provisions of this Agreement; and
(c) the General Partner has consented to the assignment and
substitution, which shall be in the General Partner's sole and absolute
discretion.
12.3 DEATH, INCOMPETENCY, ETC. OF A LIMITED PARTNER. In the event of
the death, bankruptcy or adjudication of incapacity or incompetence of a Limited
Partner, the personal representative, heirs, legatees and devisees of the
Limited Partner, as the case may be, shall have all of the rights of an assignee
of a Limited Partner interest, but shall not become a substitute Limited Partner
unless the provisions of Section 12.2 have been complied with. In all of the
above cases, the successor-in-interest to the Limited Partner shall not have a
right to demand payment with respect to the Partnership Interest.
12.4 ASSIGNMENT OF GENERAL PARTNER'S INTEREST. The General Partner may
not sell, assign, transfer, pledge, hypothecate, encumber or otherwise dispose
of its Partnership Interest, nor withdraw from the Partnership, without the
prior written consent of all of the Limited Partners.
12.5 ADMISSION OF NEW PARTNER. Except as otherwise specifically
provided for herein, no new Partner may be admitted to the Partnership without
the consent of all of the Partners. For purposes of this Section 12.5, a
substitute Limited Partner shall not be considered a "new Partner."
12.6 MERGER. The Partnership may merge with any other limited
partnership or other entity pursuant to the applicable provisions of the Act in
the sole discretion of the General Partner.
13. POWER OF ATTORNEY.
13.1 POWER OF ATTORNEY.
(a) To the extent not inconsistent with the terms of this
Agreement, the Limited Partner, including persons who become Limited Partners or
become subject to the provisions of this Agreement after the date hereof, hereby
irrevocably constitute and appoint the General Partner, with full power of
substitution, their true and lawful attorney-in-fact, with full power and
authority, in such Limited Partner's name, place and stead, to make, execute,
consent to, swear or acknowledge, record and file with respect to the
Partnership, the following:
(1) Any certificate or other instrument which may be
required to be filed by the Partnership or the Partners under the laws
of any state, or any other jurisdiction in which the Partnership is
conducting, or proposes to conduct, business;
(2) Any and all amendments or modifications of the
instruments described in Section 13.1(a)(1);
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(3) All certificates and other instruments which may
be necessary, required or desirable to effect the dissolution and
termination of the Partnership pursuant to the provisions of this
Agreement;
(4) All such other instruments as such
attorney-in-fact may deem necessary or desirable in order to carry out
the provisions of this Agreement in accordance with its terms.
(b) The Power of Attorney hereby granted by a Limited Partner
to the General Partner is a special power of attorney coupled with an interest
and is irrevocable, and shall survive the death, insanity, incompetency,
bankruptcy or insolvency of the Limited Partner granting it. The Power of
Attorney hereby granted may be exercised on behalf of the Limited Partners by
referencing all of the Limited Partners on whose behalf a document is being
executed, and with a single signature as attorney-in-fact for all of them.
(c) The Limited Partners hereby agree to execute and deliver
to the General Partner, within five days after receipt of the General Partner's
written request therefor, such other and further powers of attorney and other
instruments which the General Partner deems necessary or desirable to comply
with any laws, rules or regulations relating to the formation of the
Partnership, or the conduct of business by the Partnership.
14. TAX MATTERS PARTNER.
14.1 TAX MATTERS PARTNER.
(a) Without limiting the authority of the General Partner
under any other provision of this Agreement, the General Partner shall have the
sole authority to take any and all actions respecting any tax authority with
regard to the determination of any item of income, expense, deduction or credit
of the Partnership or of any tax imposed upon the Partnership.
(b) The General Partner is authorized to incur expenses in
connection with any examination or investigation of the Partnership by any tax
authority and in connection with all subsequent administrative and judicial
proceedings arising out of such examination or investigation. These expenses,
whether paid to third parties or incurred by the General Partner or Affiliates
thereof, are Partnership expenses and will be paid by the Partnership.
(c) The provisions of Section 10.2 shall apply to the duties
of the General Partner under this Section 14.1.
15. GENERAL.
15.1 NOTICES.
(a) All notices, requests, demands or other communications
required or permitted under this Agreement shall be in writing and be personally
delivered against a written receipt,
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delivered to a reputable messenger service (such as Federal Express, DHL
Courier, United Parcel Service, etc.) for overnight delivery, transmitted by
confirmed telephonic facsimile (fax), or transmitted by mail, registered,
express or certified, return receipt requested, postage prepaid, addressed as
follows:
(1) If given to the Partnership, to the Partnership
at its principal office; or
(2) If given to a Partner, to the Partner at the
address set forth in the records of the Partnership.
(b) All notices, demands and requests shall be effective upon
being properly personally delivered, upon being delivered to a reputable
messenger service, upon transmission of a confirmed fax or upon being deposited
in the United States mail in the manner provided in Section 15.1(a). However,
the time period in which a response to any such notice, demand or request must
be given shall commence to run from the date of personal delivery, the date of
delivery by a reputable messenger service, the date on the confirmation of a fax
or the date on the return receipt, as applicable. The Partners shall have the
right, from time to time, during the term of the Partnership, to change their
respective addresses for notices by giving the other Partners written notice
thereof.
15.2 AMENDMENT.
(a) Except as provided in Section 15.2(b), this Agreement may
be modified or amended from time to time only upon the unanimous consent of the
Partners.
(b) This Agreement may be amended from time to time by the
General Partner without the consent of any of the other Partners to cure any
ambiguity, to correct or supplement any provision hereof which may be
inconsistent with any other provision hereof, or to make any other provisions
with respect to matters or questions arising under this Agreement which will not
be inconsistent with the provisions of this Agreement.
15.3 CAPTIONS; SECTION REFERENCES. Section titles or captions contained
in this Agreement are inserted only as a matter of convenience and reference,
and in no way define, limit, extend or describe the scope of this Agreement, or
the intent of any provision hereof. All references herein to Sections shall
refer to Sections of this Agreement unless the context clearly requires
otherwise.
15.4 NUMBER AND GENDER. Unless the context otherwise requires, when
used herein, the singular shall include the plural, the plural shall include the
singular, and all nouns, pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine or neuter, as the identity of the person or
persons may require.
15.5 SEVERABILITY. If any provision of this Agreement, or the
application thereof to any person, entity or circumstances, shall be invalid or
unenforceable to any extent, the remainder of this
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Agreement, and the application of such provision to other persons, entities or
circumstances, shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
15.6 ARBITRATION. If any dispute shall arise between the Partners as to
their rights or liabilities under this Agreement, the dispute shall be
exclusively determined, and the dispute shall be settled, by arbitration in
accordance with the commercial rules of the American Arbitration Association.
The arbitration shall be held in ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, before a panel of
three arbitrators, each of whom shall be selected from a panel selected by the
American Arbitration Association. Each of the parties to the dispute shall
select one arbitrator and the third arbitrator shall be chosen by the two
arbitrators chosen by the parties (or, if the arbitrators chosen by the parties
are unable to agree upon the third arbitrator, the third arbitrator shall be
selected by the American Arbitration Association). The decision of the
arbitrators shall be final and binding upon the Partners and the Partnership and
judgment thereon may be entered by any court of competent jurisdiction. Each of
the Partners hereby acknowledges that this provision constitutes a waiver of
their right to commence a lawsuit in any jurisdiction with respect to the
matters which are required to be settled by arbitration as provided in this
Section 15.6.
15.7 BINDING AGREEMENT. Except as otherwise herein provided, this
Agreement shall be binding upon, and inure to the benefit of, the parties
hereto, and their executors, administrators, heirs, successors and assigns.
15.8 APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Texas without regard to its
conflict of laws rules.
15.9 ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof. No
variations, modifications or changes hereof shall be binding upon any Partner
unless made in accordance with the provisions of Section 15.2.
15.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and all such counterparts shall, for all purposes, constitute one
agreement, binding upon the parties hereto, notwithstanding that all parties are
not signatory to the same counterpart.
15.11 NO RIGHT OF PARTITION. The Partners hereby agree that the
Partnership's properties are not, and will not be, suitable for partition.
Accordingly, each of the Partners hereby irrevocably waives any and all rights
which such Partner may have to maintain an action for partition of any of the
Partnership's properties.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first written above.
GENERAL PARTNER:
▇▇▇▇▇▇ Underground Cable, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
LIMITED PARTNER:
North American Tel-Com Group, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer and President
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EXHIBIT "A"
PARTNER NAME PERCENTAGE
AND ADDRESS INTEREST
GENERAL PARTNER: 1%
▇▇▇▇▇▇ Underground Cable, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LIMITED PARTNER: 99%
North American Tel-Com Group, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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EXHIBIT "B"
CONTRIBUTED ASSETS
North American Tel-Com Group, Inc. $100
▇▇▇▇▇▇ Underground Cable, Inc. $ 10
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