Exhibit 3.55
THE PARTNERSHIP INTERESTS REPRESENTED BY THIS LIMITED PARTNERSHIP AGREEMENT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE
SECURITIES ACTS, IN RELIANCE UPON EXEMPTIONS UNDER THOSE ACTS. THE SALE OR OTHER
DISPOSITION OF THE PARTNERSHIP INTERESTS IS PROHIBITED UNLESS SUCH SALE OR
DISPOSITION IS MADE IN COMPLIANCE WITH ALL SUCH APPLICABLE ACTS. ADDITIONAL
RESTRICTIONS ON TRANSFER OF THE PARTNERSHIP INTERESTS ARE SET FORTH IN THIS
AGREEMENT.
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
VALOR TELECOMMUNICATIONS CORPORATE GROUP, LP
THIS AGREEMENT OF LIMITED PARTNERSHIP (the "Agreement") is entered into by
and among Valor Telecommunications Enterprises, LLC, a Delaware limited
liability company, as general partner (the "General Partner"), and Valor
Telecommunications Holding, LLC, a Delaware limited liability company, as
limited partner (the "Limited Partner"). Such parties are individually referred
to as a "Partner" and collectively as the "Partners."
Certain terms used in this Agreement are defined in Article II hereof.
ARTICLE I
GENERAL
1.1 Formation. Subject to the provisions of this Agreement (the
"Agreement"), the Partners hereby form Valor Telecommunications Corporate Group,
LP (the "Partnership"), as a limited partnership pursuant to the provisions of
the Texas Revised Limited Partnership Act (the "Texas Act"), Article 6132a-1 of
Title 105 of the Texas Revised Civil Statutes, as it may be amended from time to
time, and any successor to such Act. Except as expressly provided herein, the
rights and obligations of the Partners and the administration and termination of
the Partnership shall be governed by the Texas Act.
1.2 Purpose. The purposes and businesses of the Partnership shall be to
engage in the provision of telephone, data transmission and other
communication-related endeavors and to engage in such other activities as
lawfully conducted by limited partnerships. Any or all of the foregoing
activities may be conducted directly by the Partnership or indirectly through
another partnership, joint venture, or other arrangement.
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1.3 Term. The Partnership shall continue in existence until the close of
Partnership business on December 31, 2050, or until the earlier termination of
the Partnership in accordance with the provisions of Section 7.1 of this
Agreement.
1.4 Registered Office and Principal Office of Partnership; Addresses of
Partners.
(a) Partnership Offices. The registered office of the Partnership
in the State of Texas shall be 800 Brazos, Xxxxxx, Xxxxx 00000, and its
registered agent for service of process on the Partnership at such registered
office shall be Corporation Service Company dba CSC-Lawyers Incorporating
Service Company, or such other registered agent as the General Partner may from
time to time designate. The principal office of the Partnership shall be 000 X.
Xxx Xxxxxxx Xxxx., #0000, Xxxxxx, Xxxxx 00000, or such other place as the
General Partner may from time to time designate. The Partnership may maintain
offices at such other place or places as the General Partner deems advisable.
(b) Addresses of Partners. The address of each Partner shall be
the address of such Partner as set forth in Section 8.2 hereof.
ARTICLE II
DEFINITIONS
The following definitions shall apply to the terms used in this
Agreement, unless otherwise clearly indicated to the contrary in this Agreement.
"Adjusted Capital Account Deficit" means, with respect to any
Partner, the deficit balance, if any, in such Partner's capital account as of
the end of the relevant fiscal year, after giving effect to the following
adjustments: (a) any amounts that such Partner is, or is deemed to, be obligated
to restore pursuant to Section 1.704-1(b)(2)(ii)(c) of the Regulations, the
penultimate sentence of Section 1.704-2(g)(1) of the Regulations, or the
penultimate sentence of Section 1.704-2(i)(5) of the Regulations, shall be
credited to such Capital Account; and (b) the items described in Sections
1.704-1(b)(2)(ii)(d)(4), (5), and (6) of the Regulations shall be debited to
such Capital Account. The foregoing definition of Adjusted Capital Account
Deficit is intended to comply with the provisions of Section
1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently
therewith.
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"General Partner" means Valor Telecommunications Enterprises, LLC, a
Delaware limited liability company, and its successors assigns.
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"Limited Partner" means Valor Telecommunications Holding, LLC, a
Delaware limited liability company and its successors and assigns.
"Partnership Interest" means the interest acquired by a Partner in
the Partnership, including, without limitation, such Partner's right: (a) to an
allocable share of the profits, losses, deductions, and credits of the
Partnership; (b) to a distributive share of the assets of the Partnership; (c)
if a Limited Partner, to vote on those matters described in this Agreement; and,
(d) if a General Partner, to manage and operate the Partnership in accordance
with the Texas Act and this Agreement.
"Percentage Interest" means the percentage set forth opposite each
Partner's name on SCHEDULE "A" to this Agreement, as such SCHEDULE "A" may be
amended from time to time in accordance with this Agreement.
"Person" means an individual or a corporation, partnership, trust,
estate, unincorporated organization, association, or other entity.
"Profits" and "Losses" mean, for each fiscal year or other period,
an amount equal to the Partnership's taxable income or loss for such fiscal year
or period, determined in accordance with Code Section 703(a) (for this purpose,
all items of income, gain, loss or deduction required to be stated separately
pursuant to Code Section 703(a)(1) shall be included in taxable income or loss),
with the following adjustments:
(i) Income of the Partnership that is exempt from federal income
tax and not otherwise taken into account in computing Profits and Losses
shall be added to such taxable income or loss;
(ii) Any expenditures of the Partnership described in Code Section
705(a)(2)(B), or treated as Code Section 705(a)(2)(B) expenditures
pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise
taken into account in computing Profits and Losses shall be subtracted
from such taxable income or loss;
(iii) If the book value of any partnership asset is adjusted, the
amount of such adjustment shall be taken into account as gain or loss from
the disposition of such asset for purposes of computing Profits and
Losses;
(iv) Gain or loss resulting from any disposition of property with
respect to which gain or loss is recognized for federal income tax
purposes shall be computed by reference to the book value of the property
disposed of, notwithstanding that the adjusted tax basis of such property
differs from its book value;
(v) In lieu of the deduction for depreciation, cost recovery or
amortization taken into account in computing such taxable income or loss,
there
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shall be taken into account Book Depreciation as defined below. "Book
Depreciation" for any assets means for any fiscal year or other period an
amount that bears the same ratio to the Book Value of that asset at the
beginning of such fiscal year or other period as the federal income tax
depreciation, amortization or other cost recovery deduction allowable for
that asset for such year or other period bears to the adjusted tax basis
of that asset at the beginning of such year or other period. If the
federal income tax depreciation, amortization or other cost recovery
deduction allowable for any asset for such year or other period is zero,
then Book Depreciation for that asset shall be determined with reference
to such beginning Book Value using any reasonable method selected by the
General Partner; and
(vi) Notwithstanding any other provision of this definition, any
items that are specially allocated pursuant to Section 3.2(d) shall not be
taken into account in computing Profits and Losses.
"Regulations" means the Department of Treasury Regulations
promulgated under the Code, as amended in effect (including corresponding
provisions of succeeding regulations).
ARTICLE III
FINANCIAL MATTERS
3.1 Capital Contributions. The General Partner and the Limited Partner
shall contribute capital to the Partnership in the form of cash and other assets
as follows:
(a) As its initial capital contribution to the Partnership, the
General Partner and the Limited Partner shall contribute capital to the
Partnership in the form of cash in the amount set forth in SCHEDULE "B" attached
hereto.
(b) If at any time and from time to time during the term hereof,
capital over and above the amount contributed by the Partners is required for
the Partnership, as determined by the General Partner, then each Partner shall
contribute, within ten (10) days after written notice thereof from the General
Partner, additional capital unless otherwise agreed by the Partners, shall be
contributed by each Partner to the Partners in an amount equal to the product of
its respective Partnership Interest and the total amount required in the
aforesaid notice.
(c) Each Partner shall acquire a security interest in the other
Partner's Partnership Interest to secure the payment of capital contributions.
If any Partner shall fail to make any capital contribution as and when required
herein, then such Partner shall be deemed to be in default hereunder.
Thereafter, the non-defaulting Partners shall be entitled to contribute such
defaulting Partner's capital contribution and then to foreclose their respective
security interest in such defaulting Partner's Partnership Interest by payment
to such Partner of the sum equal to the then-current positive balance of its
capital account, less the amount of the capital contribution which caused the
default.
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3.2 Allocations of Profits and Losses.
(a) Allocation of Profits. After giving effect to the allocations
set forth in Section 3.2(d), Profits shall be allocated to the Partners in the
following manner:
(i) First, to the Partners with negative capital account
balances in the minimum amounts necessary to eliminate their
negative capital account balances; provided, however, that if there
are insufficient Profits to eliminate each Partner's negative
capital account balance, Profits shall be allocated first in the
minimum amounts necessary to cause the Partners' negative capital
account balances and then to Partners with negative capital account
balances in that ratio; and
(ii) Next, to the Partners in proportion to their Percentage
Interests.
(b) Allocation of Losses. After giving effect to the allocations
set forth in Section 3.2(d), and subject to the limitation set forth in Section
3.2(c), Losses shall be allocated to the Partners in the following manner:
(i) First, to each Partner in proportion to their positive
capital account balances until such positive account balances have
been eliminated; and
(ii) Next, to the Partners in proportion to their Percentage
Interests.
(c) Limitation on Loss Allocations. The Losses allocated pursuant
to Section 3.2(b) hereof and the next sentence of this Section 3.2(c) to any
Partner shall not exceed the maximum amount of Losses that may be allocated to
such Partner without causing such Partner to have an Adjusted Capital Account
Deficit at the end of such fiscal year. All Losses in excess of the limitation
in this Section 3.2(c) shall be allocated solely to the other Partners in
proportion to their respective Percentage Interests. If no other Partner may
receive an additional allocation of Losses pursuant to the preceding sentence of
this Section 3.2(c), such additional Losses not allocated pursuant to Section
3.2(b) of this Agreement to or the preceding sentence shall be allocated solely
to the General Partner.
(d) Special Allocations. Notwithstanding the preceding provisions
of this Section 3.2, the General Partner is authorized to make any allocations
required by Section 1.704-1 or 1.704-2 of the Regulations in order to ensure
that the allocations of profits, losses, deductions and credits pursuant to this
Agreement are respected for federal income tax purposes.
(e) Tax Allocations. In accordance with Section 704(c) of the Code
and the Regulations thereunder, income, gain, loss and deductions with respect
to any property contributed to the capital of the Partnership shall, solely for
tax purposes, be allocated among the Partners so as to take account of any
variation between the adjusted basis of such property to the Partnership for
federal income tax purposes and its fair market value when contributed to the
Partnership. For federal income tax purposes, every item of income, gain, loss
and deduction shall be allocated among the Partners in accordance with the
allocations under this Section 3.2.
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3.3 Distributions, The General Partner may, in its sole discretion,
review the Partnership's accounts from time to time to determine whether
distributions are appropriate, and make such distributions as it may determine,
without being limited to current or accumulated income or gains, but no such
distribution shall be made out of funds required to make current payments on
Partnership obligations. Except to the extent Sections 7.2 or 7.3 are
applicable, all distributions pursuant to this Section 3.3 shall be made to the
Partners in accordance with Percentage Interests. To the extent that any
distribution to a Partner is mistakenly in excess of what such Partner would be
entitled to have received if such distribution had been made to the Partners in
the correct proportion (based on its then-current Partnership Interest), such
excess amount shall be treated as a loan by the Partnership to such Partner,
repayable on demand. Any amounts distributed pursuant to the immediately
preceding sentence of this Section 3.3 shall not be deemed to be distributions
for purposes of this Agreement.
3.4 Capital Accounts.
(a) In General.
The Partnership shall maintain for each Partner a separate capital
account in accordance with this Section 3.4(a), which shall control the division
of assets upon liquidation of the Partnership as provided in Section 7.2 of this
Agreement. Such capital account shall be maintained in accordance with the
following provisions:
(i) Such capital account shall be increased by the cash
amount and the value of all capital contributions made by such
Partner to the Partnership pursuant to this Agreement, by such
Partner's allocable share of profits and by the applicable portion
of the amount of any Partnership liabilities assumed by the Partner
or that are secured by any property distributed to such Partner.
(ii) Such capital account shall be decreased by the cash
amount and the fair market value of any property distributed to such
Partner pursuant to Sections 3.3, 7.2 or 7.3 of this Agreement, by
such Partner's allocable share of losses and by the amount of any
liabilities of such Partner assumed by the Partnership or any
liabilities secured by any property contributed by such Partner to
the Partnership.
(iii) In the event all or a portion of an interest in the
Partnership is transferred in accordance with the terms of this
Agreement, the transferee shall succeed to the capital account of
the transferor to the extent it relates to the transferred interest.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of capital accounts are intended to comply with
Sections 1.704(b) and 1.704-2 of the Regulations and shall be interpreted and
applied in a manner consistent with such Regulations.
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(b) Negative Capital Accounts. If any Partner has a deficit
balance in its capital account, such Partner shall have no obligation to restore
such negative balance or to make any capital contribution to the capital of the
Partnership by reason thereof, and such negative balance shall not be considered
an asset of the Partnership or of any Partner. Notwithstanding the previous
sentence, in the event of the liquidation of the General Partner's interest in
the Partnership, the General Partner's interest in the Partnership in accordance
with the requirements of Section 1.704-1(b)(2)(ii)(c) of the Regulations shall
be in an amount equal to (but in no event will it be obligated to contribute
more than) the lesser of (i) the deficit balance (if any) in the General
Partner's capital account, or (ii) the excess of one ninety-ninth (1/99th) of
the total capital contributions of the Limited Partners over any previous
capital contributions made by the General Partner to the Partnership.
(c) Interest. No interest shall be paid by the Partnership on
capital contributions or on balances in capital accounts.
(d) No Withdrawal. No Partner shall be entitled to withdraw any
part of its capital contribution or its capital account or to receive any
distribution from the Partnership, except as provided in Section 3.3 and Article
VII of this Agreement.
(e) Loans From Partners. Loans by a Partner to the Partnership
shall not be considered capital contributions.
3.5 Ownership of Assets. All assets and property of the Partnership
shall be owned by the Partnership, subject to the terms and provisions of this
Agreement, and no Partner, individually, shall have any ownership of such assets
or property. Legal title to all assets and property of the Partnership shall be
held and conveyed in the name of the Partnership.
3.6 Tax Matters.
(a) Preparation of Tax Returns. The General Partner shall arrange
for the preparation and timely filing of all returns of Partnership income,
loss, and other items necessary for federal, state, and local income tax
purposes and shall furnish to the Partners, at least ten days before the date on
which the Partnership returns are required to be filed (after giving effect to
any applicable extensions), a copy of the Partnership's federal income tax
return and the tax information reasonably required for federal and state income
tax reporting purposes. The General Partner, in its sole discretion, may pay
state and local income taxes attributable to operations of the Partnership and
treat such taxes as an expense of the Partnership.
(b) Tax Controversies. Subject to the provisions hereof, Xxxx X.
Xxxxxx, is designated the Tax Matters Partner (as defined in Section 6231 of the
Code), and is authorized and required to represent the Partnership, at the
Partnership's expense, in connection with all examinations of the Partnership's
affairs by tax authorities. Each Partner agrees to cooperate with the Tax
Matters Partner in connection with such proceedings.
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(c) Taxation as a Partnership. No election shall be made by the
Partnership or any Partner for the Partnership to be excluded from the
application of any of the provisions of Subchapter K, Chapter 1 of Subchapter A
of the Code or from any similar provisions of any state tax laws.
ARTICLE IV
RIGHTS AND OBLIGATIONS OF PARTNERS
4.1 Rights and Obligations of the General Partner. Except as set forth
in Section 4.2, in addition to the rights and obligations set forth elsewhere in
this Agreement, the General Partner shall have the following rights and
obligations:
(a) Authority. The General Partner shall conduct, direct, and
exercise full control over all activities of the Partnership. Except as
otherwise expressly provided in this Agreement, all management powers over the
business and affairs of the Partnership shall be exclusively vested in the
General Partner. The General Partner may delegate all or a portion of its
powers, duties, rights and responsibilities, including the authority to bind the
Partnership to one or more persons who shall be referred to as "officers" of the
Partnership. The officers of the Partnership shall be chosen by the General
Partner and shall be a President, a Secretary and a Treasurer (also known as the
Chief Financial Officer). The General Partner may also choose a Chairman, a Vice
Chairman, a Chief Executive Officer, one or more Vice-President, and one or more
Assistant Secretaries and Assistant Treasurers. The officers of the Partnership
shall have such authority and shall perform such duties as are customarily
incident to their respective offices, or as may be specified from time to time
by the General Partner regardless of whether such authority and duties are
customarily incident to such office. Any number of offices may be held by the
same person, unless the Certificate of Limited Partnership, this Agreement or
the Act otherwise provide. The following are hereby elected as officers of the
Partnership, to serve until the next annual meeting of the General Partner or
until their successors are elected and qualified:
Xxxx X. Xxxxxxxx Chairman and Chief Executive Officer
Xxxxxxx X. Xxxx President and Chief Operating Officer
Xxxx X. Xxxxxx Executive Vice President and Chief Financial
Officer
Xxxxxxx X. Page Secretary
Xxxxx Xxxxxx Assistant Secretary
The Limited Partners shall have no right of control over the
business and affairs of the Partnership.
(b) Certificate of Limited Partnership, The General Partner shall
cause to be filed the Certificate of Limited Partnership of the Partnership and
such other certificates or documents as may be determined by the General Partner
to be reasonable and necessary or appropriate for the formation, qualification,
or registration and operation of a limited partnership in the State of Texas and
in any other state where the Partnership may elect to do business.
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(c) Powers of the General Partner. In addition to the powers now
or hereafter granted to a general partner of a limited partnership under
applicable law or that are granted to the General Partner under any provisions
of this Agreement, the General Partner shall have full power and authority to do
all things deemed necessary or desirable by it to conduct the business of the
Partnership, including, without limitation: (i) the determination of the
activities described in Section 1.2 herein in which the Partnership will
participate; (ii) the making of any reasonable expenditures, the borrowing of
money, the guaranteeing of indebtedness by the Partnership and other
liabilities, the issuance of evidence of indebtedness, and the incurrence of any
obligations it deems necessary or advisable for the conduct of the activities of
the Partnership; (iii) the acquisition, disposition, mortgage, pledge,
encumbrance, hypothecation, or exchange of any or all of the assets of the
Partnership; (iv) the use of the assets of the Partnership for any Partnership
purpose; (v) the negotiation, execution, and performance of any contracts
desirable, useful, or necessary to the conduct of the business or operations of
the Partnership; (vi) the distribution of Partnership cash or other assets;
(vii) the selection, hiring, and dismissal of employees, attorneys, accountants,
consultants, contractors, agents, and representatives and the determination of
their compensation and other terms of employment or hiring; (viii) the
maintenance of insurance; and, (ix) the control of any matters affecting the
rights and obligations of the Partnership, including the conduct of any
litigation, the incurring of legal expenses, and the settlement of claims and
suits. The Partnership hereby ratifies the past acts of the General Partner with
respect to the formation of the Partnership.
(d) Reliance by Third Parties. Notwithstanding any other provision
of this Agreement to the contrary, no lender or purchaser or other Person,
including any purchaser of property from the Partnership or any other Person
dealing with the Partnership, shall be required to verify any representation by
a General Partner as to its authority to encumber, mortgage, sell, transfer or
otherwise use or dispose of any assets or properties of the Partnership, and any
such lender, purchaser, or other Person shall be entitled to rely exclusively on
such representations and shall be entitled to deal with a General Partner as if
it were the sole party in interest therein, both legally and beneficially.
(e) Outside Activities. The General Partner or any affiliate
thereof and any trustee, director, officer, manager, member, employee, agent, or
representative of the General Partner or any affiliate thereof shall be entitled
to and may have business interests and engage in business activities in addition
to those relating to the Partnership, including business interests and
activities in direct competition with the Partnership. Neither the Partnership
nor any of the Partners shall have any rights by virtue of this Agreement or the
Partnership relationship created hereby in any business ventures of the General
Partner, any affiliate thereof, or any trustee, director, officer, manager,
member, employee, agent, or representative of the General Partner or any
affiliate thereof.
(f) Liability of General Partner to the Partnership. Neither the
General Partner nor its trustees, directors, officers, employees, agents, or
representatives shall be liable, responsible, or accountable in damages to the
Partnership or any Limited Partner for mistakes or
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errors in judgment or for any acts or omissions that do not constitute fraud,
bad faith, gross negligence, willful or wanton misconduct, or breach of any
material provision of this Agreement.
(g) Compensation and Reimbursement of General Partner. The General
Partner shall not be compensated for services rendered to the Partnership as a
General Partner or reimbursed for expenses incurred unless such compensation or
reimbursements have previously been approved by the Partners.
4.2 Limitations on Authority of General Partner. Notwithstanding the
provisions of Section 4.1 hereof, except upon obtaining the written approval of
the Limited Partner, the General Partner shall not:
(a) Sell, exchange or otherwise transfer all or substantially all
of the Partnership's property or any interest therein; provided, however, that
the General Partner shall be permitted to grant, convey or pledge a security
interest or lien in all or substantially all of the Partnership's property or
any interest therein.
(b) Except as otherwise provided herein, do any act which would
make it impossible to carry on the ordinary business of the Partnership;
(c) Confess a judgment against the Partnership;
(d) Possess property of the Partnership, or assign the rights of
any Partner in any Partnership property, for other than a Partnership purpose;
or
(e) Do any act in contravention of this Agreement.
4.3 Rights and Obligations of Limited Partners. In addition to the
rights and obligations of Limited Partners set forth elsewhere in this
Agreement, Limited Partners shall have the following rights and obligations.
(a) Limitation of Liability. A Limited Partner shall have no
liability under this Agreement, except as provided herein or under the Texas
Act.
(b) Management of Business. No Limited Partner shall take part in
the control (within the meaning of the Texas Act) of the Partnership's business,
transact any business in the Partnership's name, or have the power to sign
documents for or otherwise bind the Partnership, other than as specifically set
forth in this Agreement.
(c) Outside Activities. A Limited Partner shall be entitled to and
may have business interests and engage in business activities in addition to
those relating to the Partnership, including, without limitation, business
interests and activities in direct competition with the Partnership. Neither the
Partnership nor any other Partner shall have any rights by virtue of this
Agreement in any business ventures of the Limited Partner.
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(d) Return of Capital. No Limited Partner shall be entitled to the
withdrawal or return of its capital contribution except to the extent, if any,
that distributions made pursuant to this Agreement or upon termination of the
Partnership may be considered as such by law, and then only to the extent
provided for in this Agreement.
ARTICLE V
BOOKS AND RECORDS
5.1 Books of Account. The General Partner shall keep or cause to be
kept, at the principal office of the Partnership, appropriate books and records
with respect to the Partnership's business, and each Partner shall have access
to such books and records at all reasonable times.
5.2 Fiscal Year. The fiscal year of the Partnership shall be the
calendar year.
5.3 Banking. All funds of the Partnership shall be deposited in a
separate account or accounts as may be selected by the General Partner. All
receipts of the Partnership shall be promptly deposited in such accounts, and no
funds other than the funds of the Partnership shall be deposited therein. The
funds in such accounts shall be used solely for the business of the Partnership
(including distributions to the Partners) and shall be subject to withdrawal
only by persons approved by the General Partner.
ARTICLE VI
TRANSFERS
6.1 Restrictions on Transfers. The Partnership Interests of the Partners
shall not be transferred, in whole or in part, except with the written consent
of Partners owning 100% Percentage Interests, which consent may be unreasonably
withheld in the sole discretion of such Partners. Although the Partners hereby
agree that any party acquiring such Partner's Partnership Interest by way of
foreclosure of any lien or encumbrance permitted herein, or by reason of any
other transfer permitted herein, shall be entitled, without court action, to all
distributions payable with respect to such Partnership Interest, such party may
not become a substitute Partner in the Partnership without the approval of all
Partners. The term "transfer," when used in this Agreement with respect to a
Partnership Interest, includes a sale, assignment, gift, pledge, encumbrance,
hypothecation, mortgage, exchange, or any other disposition.
6.2 Withdrawals From Partnership. No Partner shall withdraw from the
Partnership, except with the written consent of the other Partners.
ARTICLE VII
DISSOLUTION AND WINDING UP
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ARTICLE VII
DISSOLUTION AND WINDING UP
7.1 Dissolution. The Partnership shall be dissolved upon:
(a) the expiration of its term as provided in Section 1.3 of this
Agreement;
(b) the bankruptcy or dissolution of the General Partner, or any
other event that results in its ceasing to be a General Partner;
(c) an election to dissolve the Partnership by the affirmative
vote of all Partners;
(d) any other event that, under the Texas Act, would cause its
dissolution.
7.2 Liquidation. Upon dissolution of the Partnership, the General
Partner, or, in the event the General Partner has been dissolved, becomes
bankrupt or withdraws from the Partnership, a liquidator or liquidating
committee selected by all of the Limited Partners, shall be the liquidator. The
liquidator shall be entitled to receive reasonable compensation for its services
as may be approved by the Partners. Except as expressly provided in this Article
VII, the liquidator appointed in the manner provided herein shall have and may
exercise, without further authorization or consent of any of the parties hereto,
all of the powers conferred upon the General Partner under the terms of this
Agreement to carry out the duties and functions of the liquidator hereunder for
and during such period of time as shall be reasonably required in the good faith
judgment of the liquidator to complete the winding up and liquidation of the
Partnership as provided for herein. The liquidator shall liquidate the assets of
the Partnership and apply and distribute the proceeds of such liquidation in the
following order of priority, unless otherwise required by mandatory provisions
of applicable law:
(a) to the payment of the expenses of the terminating transactions
including, without limitation, brokerage commission, legal fees, accounting fees
and closing costs;
(b) to the payment to creditors of the Partnership, including
Partners, in order of priority provided by law; and
(c) to the Partners in accordance with the positive balances in
their respective capital accounts as provided in Section 1.704-1(b)(2)(ii)(b)(2)
of the Regulations, provided however, that the liquidator may place in escrow a
reserve of cash or other assets of the Partnership for contingent liabilities in
an amount determined by the Liquidator to be appropriate for such purposes.
7.3 Distribution in Kind. Notwithstanding the provisions of Section 7.2
of this Agreement which require the liquidation of the assets of the
Partnership, but subject to the order of priorities set forth therein, if on
dissolution of the Partnership, the liquidator determines that an immediate sale
of part or all of the Partnership's assets would be impractical or would cause
undue loss to the Partners and assignees, the liquidator may defer for a
reasonable time the liquidation of any assets except those necessary to satisfy
liabilities of the Partnership (other than those to Partners) and/or may
distribute to the Partners and assignees, in lieu of cash, as tenants
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in common and in accordance with the provisions of Section 7.2 of this
Agreement, undivided interests in such Partnership assets as the liquidator
deems not suitable for liquidation. Any such distributions in kind shall be
subject to such conditions relating to the disposition and management of such
properties as the liquidator deems reasonable and equitable and to any joint
operating agreements or other agreements governing the operation for such
properties at such time. The liquidator shall determine the fair market value of
any property distributed in kind using such reasonable method of valuation as it
may adopt.
7.4 Liquidation of a Partner, Etc. Upon the liquidation of a Partner and
the distribution of the Partnership Interest to the owner(s) of such Partnership
Interest, the liquidated Partner's successor(s)-in-interest can continue as a
Partner, or Partners, as the case may be, in the Partnership, but only with the
consent of Partners holding, in the aggregate, 100% of the remaining Partnership
Interests.
7.5 Cancellation of Certificate of Limited Partnership. Upon the
completion of the distribution of Partnership property as provided in Section
7.2 and 7.3 of this Agreement, the Partnership shall be terminated, and the
liquidator (or the Limited Partners if necessary) shall cause the cancellation
of the Certificate of Limited Partnership and all qualifications and
registrations of the Partnership.
7.6 Return of Capital. The General Partner shall not be personally
liable for the return of the capital contributions of Limited Partners, or any
portion thereof, it being expressly understood that any such return shall be
made solely from Partnership assets.
7.7 Waiver of Partition. Each Partner hereby waives any rights to
partition of the Partnership property.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Amendments to the Agreement. The Agreement may be amended or
modified only with the written approval of all Partners.
8.2 Addresses and Notices. Any notice, demand, request, or report
required or permitted to be given or made to a Partner under this Agreement
shall be in writing and shall be deemed given or made when delivered in person,
or three days after being sent by United States registered or certified mail to
the Partner at its address as shown on the records of the Partnership,
regardless of any claim of any Person who may have an interest in any
Partnership Interest by reason of an assignment or otherwise. Initially, and
until notified otherwise by any Partner to this Agreement, notice may be
provided to any of the Partners at the following addresses:
Valor Telecommunications Enterprises, LLC
000 X. Xxx Xxxxxxx Xxxx, #0000
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Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxx, Chief Financial Officer
Valor Telecommunications Holding, LLC
000 X. Xxx Xxxxxxx Xxxx, #0000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxx, Chief Financial Officer
8.3 Titles and Captions. All article and section titles and captions in
this Agreement are for convenience only, shall not be deemed part of this
Agreement, and in no way shall define, limit, extend, or describe the scope or
intent of any provisions hereof Except as specifically provided otherwise,
references to "Articles" and "Sections" are to Articles and Sections of this
Agreement.
8.4 Pronouns and Plurals. Whenever the context may require, any pronoun
used in this Agreement shall include the corresponding masculine, feminine, or
neuter forms, and the singular form of nouns, pronouns, and verbs shall include
the plural and vice versa.
8.5 Further Action. The parties shall execute all documents, provide all
information, and take or refrain from taking all actions as may be necessary or
appropriate to achieve the purposes of this Agreement.
8.6 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their heirs, executors, administrators,
successors, legal representatives, and permitted assigns.
8.7 Integration. This Agreement constitutes the entire agreement among
the parties hereto pertaining to the subject matter hereof and supersedes all
prior agreements and understandings pertaining thereto.
8.8 Creditors. None of the provisions of this Agreement shall be for the
benefit of or enforceable by any creditors of the Partnership.
8.9 Waiver. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement, or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement, or
condition.
8.10 Counterparts. This Agreement may be executed in counterparts, all of
which together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart.
8.11 Applicable Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Texas, without regard to the principles
of conflicts of law.
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8.l2 Invalidity of Provisions. If any provision of this Agreement is
declared or found to be illegal, unenforceable, or void, in whole or in part,
then the parties shall be relieved of all obligations arising under such
provision, but only to the extent that it is illegal, unenforceable, or void, it
being the intent and agreement of the parties that this Agreement shall be
deemed amended by modifying such provision to the extent necessary to make it
legal and enforceable while preserving its intent or, if that is not possible,
by substituting therefor another provision that is legal and enforceable and
achieves the same objectives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
this 31st day of August, 2000.
GENERAL PARTNER:
Valor Telecommunications Enterprises, LLC,
a Delaware limited liability company
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx, Chief Financial Officer
LIMITED PARTNER:
Valor Telecommunications Holding, LLC, a
Delaware limited liability company
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx, Chief Financial Officer
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SCHEDULE "A"
PERCENTAGE INTEREST
OF EACH PARTNER
PARTNER: PERCENTAGE INTEREST:
-------- --------------------
General Partner:
Valor Telecommunications Enterprises, LLC 1%
Limited Partner:
Valor Telecommunications Holding, LLC 99%
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SCHEDULE "B"
DESCRIPTION OF INTEREST CAPITAL TO BE
CONTRIBUTED BY THE PARTNERS
PARTNER: CONTRIBUTION:
-------- -------------
Valor Telecommunications $ 1.00
Enterprises, LLC
Valor Telecommunications $99.00
Holding, LLC
17
