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EXHIBIT 3.46
AMENDED AGREEMENT OF LIMITED PARTNERSHIP
OF
FENIX TELECOM SERVICES LIMITED PARTNERSHIP
MAY __, 2000
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TABLE OF CONTENTS
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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............................................................................3
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........................4
8. TAX ELECTIONS............................................................................................5
8.1 Tax Elections..........................................................................5
(i)
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9. DISTRIBUTIONS............................................................................................5
9.1 Cash Distributions.....................................................................5
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..............................................10
12.5 Admission of New Partner..............................................................10
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
(ii)
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15.8 Applicable Law........................................................................13
15.9 Entire Agreement......................................................................13
15.10 Counterparts..........................................................................13
15.11 No Right of Partition.................................................................13
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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AMENDED AGREEMENT OF LIMITED PARTNERSHIP
OF
FENIX TELECOM SERVICES LIMITED PARTNERSHIP
THIS AMENDED AGREEMENT OF LIMITED PARTNERSHIP ("Agreement") is entered
into and effective as of the __th day of April, 2000, by and between (i) Fenix
Telecommunications, Inc., a Florida corporation, as the general partner
("General Partner"), and (ii) Fenix Holdings, 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 provisions of the Wisconsin Uniform Revised Limited Partnership Act ("Act").
2. NAME AND OFFICE.
2.1 NAME. The name of the Partnership shall be Fenix Telecom Services Limited
Partnership. 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
1256 Russet Court, Green Bay, Wisconsin, 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 Delaware 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 all aspects of the telecom infrastructure services
business.
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(b) To engage in such other lawful activity as is unanimously agreed to
by the Partners.
(c) 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.
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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.
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
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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 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
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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 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.
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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 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
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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.
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 (within the meaning of Wisconsin Statute 179.32), 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.
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(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 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.l(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
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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 AND ADDITION OF PARTNERS.
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.; provided, however, that the General Partner hereby consents to the
sale, assignment, transfer, pledge, hypothecation, encumbrance, or other
disposal of a Limited Partner's Partnership Interest pursuant to and in
accordance with the Credit Agreement, dated December 15, 1999, among Orius
Corp., NATG Holdings, LLC, the financial institutions from time to time a party
thereto and Bankers Trust Company, as Agent, together with the related documents
thereto (including, without limitation, any guarantee agreements, security
agreements and pledge agreements), in each case as such agreements may be
amended (including any amendment and restatement thereof), supplemented or
otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowings thereunder) all or any portion of
the Indebtedness (as defined in the Credit Agreement) under such agreement or
any successor or replacement agreement and whether by the same or any other
agent, lender, or group of lenders (the "Credit Agreement").
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 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
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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; provided, however, that each of
the Limited Partners hereby consents to the sale, assignment, transfer, pledge,
hypothecation, encumbrance or other disposal of the General Partner's
Partnership Interest pursuant to and in accordance with the Credit Agreement.
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."
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);
(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
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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, 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
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(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 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
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Association. The arbitration shall be held in West Palm Beach, Florida, 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 Wisconsin 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.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first written above.
GENERAL PARTNER:
FENIX TELECOMMUNICATIONS SERVICES, INC.
By:
-----------------------------------------
Title:
--------------------------------------
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LIMITED PARTNER:
FENIX HOLDINGS, INC.
By:
-----------------------------------------
Title:
--------------------------------------
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EXHIBIT "A"
PARTNER NAME PERCENTAGE
AND ADDRESS INTEREST
- ----------- --------
GENERAL PARTNER: 1%
Fenix Telecommunications Services, Inc.
1401 Forum Way, Suite 400
West Palm Beach, FL 33401
LIMITED PARTNER: 99%
Fenix Holdings, Inc.
1401 Forum Way, Suite 400
West Palm Beach, FL 33401
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EXHIBIT "B"
CONTRIBUTED ASSETS
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