LIMITED LIABILITY COMPANY OPERATING AGREEMENT
OF
AIRGATE NETWORK SERVICES, LLC
THIS LIMITED LIABILITY COMPANY AGREEMENT (the "Operating Agreement"),
effective as of the 29th day of September, 2000, is made by AirGate PCS, Inc., a
Delaware corporation (the "Member"), as the sole Member of AirGate Network
Services, LLC (the "Company"). The Member desires to enter into this Operating
Agreement to govern the operations of the Company.
NOW, THEREFORE, the Member agrees as follows:
1. FORMATION.
Effective with the filing of the Certificate of Formation (the
"Certificate") with the Secretary of State of the State of Delaware, the Company
constituted a limited liability company formed pursuant to the Delaware Limited
Liability Company Act (the "Delaware Act") and other applicable laws of the
State of Delaware. The Member shall, when required, file such amendments to or
restatements of the Certificate, in such public offices in the State of Delaware
or elsewhere as the Member deems advisable to give effect to the provisions of
this Operating Agreement and the Certificate, and to preserve the character of
the Company as a limited liability company.
2. NAME; PLACE OF BUSINESS; REGISTERED OFFICE AND AGENT.
The Company shall conduct business under the name of "AirGate Network
Services, LLC." The principal office and place of business of the Company shall
be located at ▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇. The initial registered agent for service of process at the
registered office of the Company shall be The Corporation Trust Company. The
registered office of the Company shall be located at Corporation Trust Center,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of New Castle, Delaware.
3. PURPOSE.
The purpose of the Company is to engage in any lawful business in which
limited liability companies formed in Delaware may engage; exercise all powers
necessary to or reasonably connected with the Company's business which may be
legally exercised by limited liability companies under the Delaware Act; and
engage in all activities necessary, customary, convenient, or incident to such
purpose.
4. STATUTORY COMPLIANCE.
The Company shall exist under and be governed by, and this Operating
Agreement shall be construed in accordance with, the applicable laws of the
State of Delaware. The Member shall execute and file such documents and
instruments as may be necessary or appropriate with respect to the formation of,
and the conduct of business by, the Company.
5. TITLE TO COMPANY PROPERTY.
All property shall be owned by the Company and, insofar as permitted by
applicable law, the Member shall have no ownership interest in the property.
6. MANAGEMENT.
6.1 Management. The business and affairs of the Company shall be
managed solely by its Member. Except as provided by applicable law, the Member
shall have full and complete authority, power and discretion to manage and
control the business, affairs and properties of the Company, to make all
decisions regarding those matters and to perform any and all other acts or
activities customary or incident to the management of the Company's business.
6.2 Duties of the Member.
6.2.1 The Member shall take, or cause the Company to take, all
actions necessary or appropriate (i) for the continuation of the Company's valid
existence as a limited liability company under the laws of the State of Delaware
and of each other jurisdiction in which such existence is necessary to protect
the limited liability of the Member or to enable the Company to conduct the
business in which it is engaged and (ii) for the accomplishment of the Company's
purpose.
6.2.2 The Member, acting through its officers, directors,
employees and agents, shall devote to the Company such time as may be necessary
for the proper performance of all of its duties under this Operating Agreement,
but the Member shall not be required to devote full time to the performance of
such duties and shall have other business interests or engage in other business
activities at its sole discretion. Except as otherwise expressly provided,
nothing in this Agreement shall be deemed to restrict in any way the rights of
the Member to conduct any other business or activity whatsoever, the Member
shall not be accountable to the Company with respect to that business or
activity even if the business or activity competes with the Company's business.
The organization of the Company shall be without prejudice to the Member's
rights to maintain, expand, or diversify such other interests and activities and
to receive and enjoy profits or compensation therefrom.
6.3 Action by Member. Action required or permitted to be taken by
the Member may be taken with or without a meeting and with or without written
consents
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or other writings describing the action taken, signed by the Member and
delivered to the Company for inclusion in its records. The signature of any one
or more officers of the Member on any document or instrument purporting to bind
the Company shall constitute conclusive evidence as to third parties of the
authority of such person to execute such document or instrument on behalf of the
Company and thereby so bind the Company.
6.4 Officers. The Member may appoint (and remove) officers of the
Company (the "Officers"), in its sole discretion, to implement the decisions of
the Member, including, but not limited to, the administration of the day-to-day
business of the Company and, subject to the other provisions of this Operating
Agreement, the administration of the ordinary and usual business affairs of the
Company, and the Officers so appointed shall be responsible for such
implementation. In addition, the Member may delegate to the Officers such other
responsibilities as deemed appropriate by approval of the Member, including, but
not limited to, the right to execute and deliver instruments on behalf of the
Company.
7. INDEMNIFICATION OF THE MEMBER AND THE OFFICERS.
7.1 Generally.
7.1.1 The Company, its receiver or its trustee shall indemnify,
save harmless, and pay all judgments and claims against the Officers and the
Member relating to any liability or damage incurred by reason of any act
performed or omitted to be performed by such Officers and the Member in
connection with the business of the Company, including attorneys' fees incurred
by such Officers and the Member in connection with the defense of any action
based on any such act or omission, which attorneys' fees may be paid as
incurred, including all such liabilities under federal and state securities laws
as permitted by law; provided, however, that the Company shall not be required
to indemnify any Officer or Member for any loss, expense or damage which such
Officer or Member, as applicable, might suffer as a result of such Officer's or
Member's, as applicable, willful or wanton misconduct or fraud.
7.1.2 The Company shall indemnify, save harmless, and pay all
expenses, costs, or liabilities of the Officers and the Member who for the
benefit of the Company make any deposit, acquire any option, or make any other
similar payment or assume any obligation in connection with any property
proposed to be acquired by the Company and who suffer any financial loss as the
result of such action.
7.2 Insurance. The Company may purchase and maintain insurance on
behalf of any one or more indemnitees under Section 7.1 and such other persons
as the Member shall determine against any liability which may be asserted
against or expense which may be incurred by such person in connection with the
Company's activities, whether or not the Company would have the power to
indemnify such person against such liability or expense under the provisions of
this Operating Agreement. The Member and the Company may enter into indemnity
contracts with indemnitees and adopt written procedures pursuant to which
arrangements are made for the advancement of expenses
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and the funding of obligations under this Section 7.2 and containing such other
procedures regarding indemnification as are appropriate.
8. RIGHTS AND OBLIGATIONS OF THE MEMBER.
8.1 Limitation on Member's Liabilities. The Member's liability
shall be limited as set forth in this Operating Agreement, the Delaware Act, as
amended, and other applicable law. The Member shall not be bound by, or be
personally liable for, the debts, liabilities or obligations of the Company,
except as provided by the Delaware Act with regard to a wrongful distribution.
8.2 New Members. New Members may be admitted to the Company,
whether as an assignee of a currently outstanding membership interest in the
Company or otherwise, only with the consent of the Member.
9. CAPITAL CONTRIBUTIONS.
9.1 Initial and Additional Capital Contributions. The Member
contributed certain intangible assets to the Company as its initial capital
contribution at the time of becoming a member. Additional capital contributions
may be made from time to time as the Member shall determine and shall be
recorded on the books and records of the Company. The Member is not required to
make any additional capital contributions.
9.2 Other Matters.
9.2.1 The Member is not entitled to interest on any capital
contribution.
9.2.2 The Member owns 100% of the membership interests of the
Company.
10. DISTRIBUTIONS.
All distributions of cash and other assets of the Company shall be
made to the Member when and as determined by the Member.
11. BOOKS AND RECORDS.
11.1 Availability. At all times during the existence of the
Company, the Member shall keep or cause to be kept complete and accurate books
and records appropriate and adequate for the Company's business. Such books and
records, whether financial, operational or otherwise and including a copy of
this Operating Agreement and any amendments, shall at all times be maintained at
the principal place of business of the Company.
11.2 Title to Company Assets.
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11.2.1 Except as provided below, all real and personal property
acquired by the Company shall be acquired and held by the Company in its name.
11.2.2 The Member may direct that legal title to all or any
portion of the Company's assets be acquired or held in a name other than the
Company's name. Without limiting the foregoing, the Member may cause title to be
acquired and held in its name or in the names of trustees, nominees, or straw
parties for the Company. It is expressly understood and agreed that the manner
of holding title to the Company's assets (or any part thereof) is solely for the
convenience of the Company, and all of assets shall be treated as Company
assets.
12. DISSOLUTION.
12.1 Events Causing Dissolution. The Company shall be dissolved and
its affairs wound up at such time as the Member determines that the Company
should be dissolved, or whenever dissolution is required by law.
12.2 Liquidation of Property and Application of Proceeds.
12.2.1 Winding Up. Upon the dissolution of the Company, the
Member shall wind up the Company's affairs in accordance with the Delaware Act.
In winding up the affairs of the Company, the Member is authorized to take any
and all actions contemplated by the Delaware Act as permissible, including,
without limitation:
(i) prosecuting and defending suits, whether civil,
criminal, or administrative;
(ii) settling and closing the Company's business;
(iii) liquidating and reducing to cash the property as
promptly as is consistent with obtaining its fair value;
(iv) discharging or making reasonable provision for
the Company's liabilities; and
(v) distributing the proceeds of liquidation and any
undisposed property.
12.2.2 Distribution of Proceeds and Undisposed Property. Upon
the winding up of the Company, the Member shall pay or make reasonable provision
to pay all claims and obligations of the Company, including all costs and
expenses of the liquidation and all contingent, conditional or unmatured claims
and obligations that are known to the Member, in the order of priority provided
by law, whether payment or the making of reasonable provisions for payment
therefor. Any remaining proceeds or assets shall be distributed to the Member.
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13. MISCELLANEOUS.
13.1 Severability. In the event of the invalidity of any provision
of this Agreement, such provision is deemed stricken from this Agreement, which
will continue in full force and effect as if the offending provision were never
a part of this Agreement.
13.2 Captions. Captions contained in this Agreement are inserted
only as a matter of convenience and for reference and in no way define, limit,
extend or prescribe the scope of this Agreement or the intent of any provision.
13.3 Applicable Law. All the terms and provisions of this Agreement
are construed under and governed by the laws of the State of Delaware without
regard to principles of conflicts of laws.
13.4 Entire Agreement. This Agreement constitutes the entire
agreement with respect to matters set forth in this Agreement and supersedes any
prior understanding or agreement, oral or written, with respect to such matters.
13.5 Amendment. Any amendment to this Agreement must be in writing
signed by the Member.
IN WITNESS WHEREOF, the undersigned, being the sole Member of the
Company, hereby makes this Operating Agreement as of the date first above
written.
AIRGATE PCS, INC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
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