Exhibit 3.33
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
VALOR TELECOMMUNICATIONS OF TEXAS, LP
THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT (this
"Agreement") of Valor Telecommunications of Texas., LP (the "Partnership"), is
made and entered into as of the 12th day of June, 2000, by and between Valor
Telecommunications Enterprises, LLC, a Delaware limited liability company
("Enterprises")(the "General Partner"), and Enterprises and Valor
Telecommunications Holding, LLC, a Delaware limited liability company (the
"Limited Partners") (collectively, the "Partners" and individually, a
"Partner").
NOW, THEREFORE, in consideration of the promises and mutual
covenants and agreements between the parties hereto, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
FORMATION OF PARTNERSHIP
1.1 Name. The name of the Partnership shall be Valor
Telecommunications of Texas., LP
1.2 Purpose. The purposes of the Partnership are to (a) to engage
in the provision of telephone and data transmission and other
communications-related endeavors and (b) transact any and all other lawful
business for which the Partnership may be organized under Delaware law that is
incident, necessary and appropriate to accomplish the foregoing.
1.3 Specified Office. The specified office and place of business
of the Partnership, and where the records of the Partnership shall be kept,
shall be ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., #▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
1.4 Registered Agent. The registered agent shall be Corporation
Service Company, a Delaware corporation, whose business address is ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or any successor as appointed by the General
Partner in accordance with the Delaware Revised Uniform Limited Partnership Act
and any successor statute, as amended from time to time (the "Act").
1.5 Certificate. The Partnership was formed under the Act pursuant
to the filing of the Certificate of Formation with the Secretary of State of
Delaware on August 13, 1999 (the "Certificate"), which Certificate was amended
by the filing of the Certificate of Amendment with the Secretary of State of
Delaware on September 2, 1999, which was further amended by the filing of the
Certificate of Amendment with the Secretary of State of Delaware on December 6,
1999. The affairs of the Partnership are further governed by an Agreement of
Limited
Partnership dated September 3, 1999 (the "Agreement"). The General Partner
desires to continue the business of the Partnership and to amend and restate the
Agreement in its entirety.
ARTICLE II
PERCENTAGE INTERESTS AND CAPITAL CONTRIBUTIONS
2.1 Percentage Interests and Initial Capital Contributions. Each
Partner's address and percentage interest in the Partnership ("Percentage
Interest") are as follows:
Percentage
Partner Interest
------- --------
General Partner:
Valor Telecommunications Enterprises, LLC 1%
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., #▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Limited Partners:
Valor Telecommunications Enterprises, LLC 98%
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., #▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Valor Telecommunications Holding, LLC 1%
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., #▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
The General Partner's initial contribution to the capital of the
Partnership shall be $1. 00. The Limited Partners aggregate initial contribution
to the capital of the Partnership shall be $99.00.
2.2 Additional Contributions. The General Partner may, from time
to time, require the Partners to make additional contributions (which may be
made in cash or in the form of promissory notes or such other property as may be
consented to by the General Partner) to the capital of the Partnership;
provided, however, that no such contribution may be required or permitted to be
made by any Partner otherwise than in proportion to the Partners' respective
Percentage Interests unless otherwise agreed by the Partners.
ARTICLE III
MANAGEMENT
3.1 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-Presidents, 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 removed 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
The Limited Partners shall have no right of control over the business and
affairs of the Partnership.
ARTICLE IV
DISTRIBUTIONS
4.1 Definition of Net Cash Flow. As used herein, the term "Net
Cash Flow" for any period shall mean the excess, if any, of (i) the cash
receipts of the Partnership (other than from the sale of the Partnership's
assets upon liquidation) and amounts withdrawn from reserves, over (ii)
disbursements of cash by the Partnership (other than distributions to Partners
and amounts paid pursuant to Section 4.3 hereof), including the payment of
operating expenses, debt-service on any mortgage or deed of trust encumbering
the Partnership's property, capital expenditures, and such amounts as may be
required by the Partnership (as reasonably determined by the General Partner) to
pay Partnership expenses and to maintain reserves and working capital.
4.2 Distribution of Net Cash Flow. Net Cash Flow shall be
distributed on a quarterly basis (or, at the election of the General Partner, on
a more frequent basis) among the Partners at such time or times as shall be
determined by the General Partner in accordance with their respective Percentage
Interests.
4.3 Distributions upon Liquidation. (a) Upon liquidation of the
Partnership, after payment of, or adequate provision for, debts and obligations
of the Partnership, including any Partner loans, any remaining assets of the
Partnership shall be distributed to all Partners with positive Capital Accounts
(as defined in Section 5.1 hereof) in accordance with their respective positive
Capital Account balances. For purposes of this Section 4.3(a), the Capital
Account of each Partner shall be determined (i) after all adjustments made in
accordance with Article V and Section 4,2 hereof resulting from Partnership
operations and from all sales and dispositions of all or any part of the
Partnership's assets. Any distributions pursuant to this Section 4.3 shall be
made by the end of the Partnership's taxable year in which the liquidation
occurs (or, if later, within 90 days after the date of the liquidation). To the
extent deemed advisable by the General Partner, appropriate arrangements
(including the use of a liquidating trust) may be made to assure that adequate
funds are available to pay any contingent debts or obligations of the
Partnership.
(b) If the General Partner has a negative balance in its
Capital Account following a liquidation of the Partnership, as determined after
taking into account all Capital Account adjustments in accordance with Article V
and Section 4.2 hereof resulting from Partnership operations and from all sales
and dispositions of all or any part of the Partnership's assets, the General
Partner shall contribute to the Partnership an amount of cash equal to the
negative balance in its Capital Account and such cash shall be distributed by
the Partnership to creditors, if any, and then to the Limited Partner in
accordance with Section 4.3(a). Such contribution by the General Partner shall
be made by the end of the Partnership's taxable year in which the liquidation
occurs (or, if later, within 90 days after the date of the liquidation).
ARTICLE V
CAPITAL ACCOUNTS; PROFITS AND LOSSES
5.1 Capital Accounts. The General Partner, on behalf of the
Partnership, shall establish and maintain, or cause to be established and
maintained, a capital account ("Capital Account") for each Partner in accordance
with the rules described in section 1.704-1(b)(2)(iv) of the Treasury
regulations (the "Regulations") promulgated under the Internal Revenue Code of
1986, as amended (the "Code"). The Capital Accounts of the Partners shall be
adjusted to reflect a revaluation of property contributed to the Partnership
pursuant to Regulations section 1.704 1(b)(2)(iv)(f), as of the following times:
(A) the acquisition of an additional interest in the Partnership by any new or
existing Partner in exchange for more than a de minimis Capital Contribution;
(B) the distribution by the Partnership to a Partner of more than a de minimis
amount of Partnership property as consideration for an interest in the
Partnership; and (C) the liquidation of the Partnership within the meaning of
Regulations section 1,704-1(b)(2)(ii)(g); provided, however, that an adjustment
described in clauses (A) and (B) of this paragraph shall be made only if the
General Partner reasonably determines that such adjustment is necessary or
appropriate to reflect the relative economic interests of the Partners in the
Partnership.
5.2 Definition of Profit and Loss. "Profit" and "Loss" and any
items of income, gain, expense, or loss referred to in this Agreement shall be
determined in accordance with federal income tax accounting principles, as
modified by Regulations section 1.704-1(b)(2)(iv), except that Profit and Loss
shall not include items allocable pursuant to Section 5.4, 5.5, or 5.6 hereof.
All allocations of income, Profit, gain, Loss, and expense (and all items
contained therein) for federal income tax purposes shall be identical to all
allocations of such items set forth in this Article V, except as otherwise
required by section 704(c) of the Code and Regulations section 1.704-1(b)(4).
5.3 Allocation of Profit and Loss. Except as otherwise provided in
this Article V, Profit and Loss of the Partnership shall be allocated among the
Partners in accordance with their respective Percentage Interests.
5.4 Minimum Gain Chargeback. Notwithstanding any provision to the
contrary, (i) any expense of the Partnership that is a "nonrecourse deduction"
within the meaning of Regulations section 1.704-2(b)(1) shall be allocated in
accordance with the Partners' respective Percentage Interests, (ii) any expense
of the Partnership that is a "partner nonrecourse deduction" within the meaning
of Regulations section 1.704-2(i)(2) shall be allocated in accordance with
Regulations section 1.704-2(i)(1), (iii) if there is a net decrease in
Partnership Minimum Gain (as hereinafter defined) within the meaning of
Regulations section 1.704-2(f)(1) for any Partnership taxable year, items of
gain and income shall be allocated among the Partners in accordance with
Regulations section 1.704-2(f) and the ordering rules contained in Regulations
section 1.704-2(j), and (iv) if there is a net decrease in Partner Nonrecourse
Debt Minimum Gain (as hereinafter defined) within the meaning of Regulations
section 1.704-2(i)(4) for any Partnership taxable year, items of gain and income
shall be allocated among the Partners in accordance with Regulations section
1.704-2(i)(4) and the ordering rules contained in Regulations section
1.704-2(j). A Partner's "interest in partnership profits" for purposes of
determining its share of the nonrecourse liabilities of the Partnership within
the meaning of Regulations section 1.752-3(a)(3) shall be such Partner's
Percentage Interest. "Partnership Minimum Gain" shall have the meaning set forth
in Regulations section 1.704-2(d). A Partner's share of Partnership Minimum Gain
shall be determined in accordance with Regulations section 1.704-2(g)(1).
"Partner Nonrecourse Debt Minimum Gain" shall have the meaning set forth in
Regulations section 1.704-2(i). A Partner's share of Partner Nonrecourse Debt
Minimum Gain shall be determined in accordance with Regulations section
1.704-2(i)(5).
5.5 Qualified Income Offset. If the Limited Partner receives in
any taxable year an adjustment, allocation, or distribution described in
subparagraph (4), (5), or (6) of Regulations section 1.704-1(b)(2)(ii)(d) that
causes or increases a negative balance in such Partner's Capital Account that
exceeds the sum of such Partner's shares of Partnership Minimum Gain and Partner
Nonrecourse Debt Minimum Gain, as determined in accordance with Regulations
sections 1.704-2(g) and 1.704-2(i), such Partner shall be allocated specially
for such taxable year (and, if necessary, later taxable years) items of income
and gain in an amount and manner sufficient to eliminate such negative Capital
Account balance as quickly as possible as provided in Regulations section
1.704-1(b)(2)(ii)(d). After the occurrence of an allocation of income or gain to
the Limited Partner in accordance with this Section 5.5, to the extent permitted
by Regulations section 1.704-1(b) and Section 5.6 hereof, items of expense or
loss shall be allocated to such Partner in an amount necessary to offset the
income or gain previously allocated to such Partner under this Section 5.5.
5.6 Capital Account Deficits. Loss shall not be allocated to the
Limited Partner to the extent that such allocation would cause a deficit in such
Partner's Capital Account (after reduction to reflect items described in
Regulations sections 1.704-1(b)(2)(ii)(4), (5) and (6)) to exceed the sum of
such Partner's shares of Partnership Minimum Gain and Partner Nonrecourse Debt
Minimum Gain. Any Loss in excess of that limitation shall be allocated to the
General Partner. After the occurrence of an allocation of Loss to the General
Partner in accordance with this Section 5.6, to the extent permitted by
Regulations section 1.704-1(b), Profit shall be allocated to such Partner in an
amount necessary to offset the Loss previously allocated to such Partner under
this Section 5.6.
ARTICLE VI
TRANSFERS; TERMINATION
6.1 Transfers. Interests in the Partnership ("Partnership
Interests") may be assigned in whole or in part only as follows:
(a) The assignee shall have accepted and agreed to be bound
by the terms and provisions of this Agreement by executing a counterpart
or an amendment thereof.
(b) If the assignee is a corporation, partnership or trust,
the assignee shall have provided the General Partner with evidence
satisfactory to counsel for the Partnership of the assignee's authority to
become a Partner under the terms and provisions of this Agreement.
(c) The assignee shall have paid all reasonable legal fees
of the Partnership in connection with his admission as a Partner.
(d) Unless waived by the non-selling Partner, a Partnership
Interest shall not be transferred in the absence of an opinion of counsel,
satisfactory to the non-selling Partner, that the registration of the sale
of the Partnership Interest is not required under the Securities Act of
1933, as amended, or any applicable state securities laws.
(e) A Partner who has assigned his Partnership Interest
shall cease to be a Partner upon assignment of the Partner's entire
Partnership Interest and thereafter shall have no further powers, rights
and privileges as a Partner hereunder, but shall, unless otherwise
relieved of such obligations by agreement of all of the other Partners or
by operation of law, remain liable for all obligations and duties incurred
as a Partner.
(f) No person shall have a perfected lien or security
interest in a Partnership Interest unless the creation of such interest is
in accordance with the provisions of this Agreement and the Partnership is
notified of such interest and provided a copy of all documentation with
respect thereto, including financing statements, prior to execution and
filing.
(g) Any transfer not in accord with this Agreement shall be
void Ab Initio.
6.2 (a) Termination. The Partnership shall terminate as provided
for in Section 17-801 of the Act.
(b) Upon termination of the Partnership under Section
6.2(a), the Partnership shall discharge the obligations and pay the indebtedness
of the Partnership, or provide therefor, and distribute the balance, if any, of
the assets of the Partnership to the Partners as set forth in Section 4.3. After
the foregoing has been accomplished, it shall be deemed that the Partnership has
been liquidated and this Agreement shall terminate and no Partner shall have any
further rights or obligations hereunder. The liquidation of the Partnership and
the termination of the business and affairs of the Partnership shall be
conducted by the General Partner. During such period, 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 liquidation of the
Partnership.
ARTICLE VII
BOOKS, RECORDS, AND ACCOUNTING
7.1 Fiscal and Taxable Year. The fiscal and taxable year of the
Partnership shall be the calendar year.
7.2 Method of Accounting. The General Partner shall keep, or cause
to be kept, full and accurate records of all transactions of the Partnership in
accordance with a method of accounting that is (i) permissible under the
Internal Revenue Code of 1986, as amended (the "Code"), and (ii) agreed to by
the Partners.
7.3 Books and Records. All books and records of the Partnership
shall, at all times be maintained at the principal office of the Partnership or
at such other place as shall be determined by the General Partner.
7.4 Federal Tax Returns. The General Partner shall prepare, or
cause to be prepared, at the expense of the Partnership, any required federal
information tax return in compliance with the provisions of the Code, and any
required state and local tax returns for the Partnership for each taxable year
of the Partnership.
7.5 Tax Return Information. The General Partner shall cause to be
delivered to the Limited Partner such information as shall be necessary for the
preparation by the Limited Partner of its federal, state and local income and
other tax returns.
ARTICLE VIII
GENERAL
8.1 Notice. All notices, instructions, requests, demands or other
communications that are required or permitted to be given hereunder shall be in
writing and shall
be deemed to have been duly given when delivered by hand or when deposited in
the United States Mail, by registered or certified mail, return receipt
requested, postage prepaid to the addresses set forth in Article II or at such
different address as shall be specified by notice given in the manner described
herein.
8.2 Applicable Law. This Agreement and the obligations of the
parties hereunder shall be interpreted, construed, and enforced in accordance
with the laws of the State of Delaware.
8.3 Entire Agreement; Amendments. This Agreement contains the
entire agreement among the parties hereto relative to the operation of the
Partnership. No variations, modifications, or changes to or of this Agreement
shall be binding upon a party unless set forth in a document duly executed by or
on behalf of such party.
8.4 Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
8.5 Counterparts. This Agreement may be executed in counterparts
and as so executed shall constitute one Agreement.
8.6 Captions. Captions and headings contained in this Agreement
are inserted only as a matter of convenience and in no way define, limit, extend
or describe the scope of this Agreement or the intent of any provisions hereof.
8.7 Attorney's Fees. In the event of any litigation between the
Partners arising out of this Agreement or relating to the Partnership, the
prevailing party shall be entitled to recover from the nonprevailing party its
reasonable attorney's fees and costs at the trial and all appellate levels.
8.8 Binding Effect. Except as otherwise provided in this
Agreement, every covenant, term and provision of this Agreement shall be binding
upon and inure to the benefit of the Partners and their respective heirs,
legatees, legal representatives, and permitted successors, transferees, and
assigns.
IN WITNESS WHEREOF, the Partners have caused this Agreement to be
executed by its duly authorized officer or representative as of the date first
above written.
GENERAL PARTNER:
VALOR TELECOMMUNICATIONS
ENTERPRISES, LLC a Delaware limited
liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice
President and Chief Executive
Officer
LIMITED PARTNERS:
VALOR TELECOMMUNICATIONS ENTERPRISES, LLC
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice
President and Chief Executive
Officer
VALOR TELECOMMUNICATIONS HOLDING, LLC
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice
President and Chief Executive
Officer