EXHIBIT 3.68
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
for
Kerrville Wireless Holdings Limited Partnership
a Texas limited partnership
dated as of
September 11, 2001
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
KERRVILLE WIRELESS HOLDINGS LIMITED PARTNERSHIP
* TRANSFER RESTRICTIONS *
THE LIMITED PARTNERSHIP INTERESTS IN KERRVILLE WIRELESS HOLDINGS LIMITED
PARTNERSHIP (THE "INTERESTS") ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER AND
OTHER TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. THE INTERESTS HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER (i) THE SECURITIES
LAWS OF THE STATE OF TEXAS (THE "TEXAS ACT"), (ii) ANY OTHER STATE SECURITIES
LAWS, OR (iii) THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"FEDERAL ACT"). NEITHER THE INTERESTS NOR ANY PART THEREOF MAY BE OFFERED FOR
SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED, OR TRANSFERRED EXCEPT IN COMPLIANCE
WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT AND (1) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE TEXAS ACT OR IN A TRANSACTION WHICH IS EXEMPT
FROM REGISTRATION UNDER THE TEXAS ACT OR WHICH IS OTHERWISE IN COMPLIANCE WITH
THE TEXAS ACT, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER ANY
OTHER APPLICABLE STATE SECURITIES LAWS OR IN A TRANSACTION WHICH IS EXEMPT FROM
REGISTRATION UNDER ANY SUCH SECURITIES LAWS OR WHICH IS OTHERWISE IN COMPLIANCE
WITH SUCH SECURITIES LAWS, AND (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE FEDERAL ACT OR IN A TRANSACTION WHICH IS EXEMPT FROM
REGISTRATION UNDER THE FEDERAL ACT OR WHICH IS OTHERWISE IN COMPLIANCE WITH THE
FEDERAL ACT.
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
KERRVILLE WIRELESS HOLDINGS LIMITED PARTNERSHIP
A TEXAS LIMITED PARTNERSHIP
THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT (this "Agreement")
is made and entered into as of September 11, 2001, by and among KERRVILLE
CELLULAR MANAGEMENT, LLC, a Delaware limited liability company ("KCM"), as sole
general partner, and KERRVILLE CELLULAR HOLDINGS, LLC, a Delaware limited
liability company ("KCH"), as a substituted limited partner following an
assignment of the limited partnership interest from Kerrville Cellular, Inc.
("KCI"), and shall amend and restate in its entirety that certain Existing
Limited Partnership Agreement (as defined below).
WITNESSETH:
WHEREAS, KCM and KCI formed a limited partnership under the provisions of
the Texas Revised Limited Partnership Act as enacted in the State of Texas
("Act") and pursuant to a Limited Partnership Agreement, dated as of September
8, 2001, for the purposes described therein (the "Existing Limited Partnership
Agreement"); and
WHEREAS, KCI's initial Capital Contribution to the Partnership was its 32%
interest as a general partner in CGKC&H Rural Cellular Limited Partnership, a
Texas limited partnership, and KCM's initial Capital Contribution was $1,000
cash; and
WHEREAS, pursuant to an Assignment, dated as of September 11, 2001, KCI
assigned all of its partnership interest in the Partnership to KCH; and
WHEREAS, KCM consented to such assignment and agreed to admit KCH to the
Partnership as a limited partner; and
WHEREAS, KCM and KCH desire to set forth herein their respective rights,
duties and responsibilities with respect to the Partnership;
NOW, THEREFORE, in consideration of the premises hereof, and of the mutual
promises, obligations and agreements contained herein, the parties hereto,
intending to be legally bound, do hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 DEFINED TERMS. For the purposes of this Agreement, the
following defined terms shall have the meanings ascribed thereto:
"AGREEMENT" OR "PARTNERSHIP AGREEMENT" means this Amended and Restated
Limited Partnership Agreement.
"APPROVE," "APPROVED" OR "APPROVAL" refers to, as to the subject matter
thereof, an express approval contained in a written statement signed by the
appropriate parties as provided in this Agreement.
"CAPITAL CONTRIBUTIONS" means the aggregate and additional contributions
to the capital of the Partnership made by each Partner.
"ENTITY" means any corporation, venture (general or limited), limited
partnership, limited liability company, association, joint stock company, trust
or other business entity or organization.
"FEDERAL ACT" means the Federal Securities Act of 1933, as amended, and
the Federal Securities Exchange Act of 1934, as amended, and all regulations
promulgated under either of them.
"GENERAL PARTNER" means KERRVILLE CELLULAR MANAGEMENT, LLC, a Delaware
limited liability company, and its permitted successors and assigns.
"I.R.C." means the Internal Revenue Code of 1986, Title 26 of the United
States Code, as the same may now or hereafter be amended.
"LIMITED PARTNER" means KERRVILLE CELLULAR HOLDINGS, LLC, a Delaware
limited liability company, and its permitted successors and assigns, as
successor to the limited partnership interest of Kerrville Cellular, Inc. as set
forth in the recitals hereto.
"NET CASH FLOW" means all cash receipts received during such period and
derived from the operation of the Partnership, minus (i) all costs and expenses
of the Partnership paid during such period (other than depreciation or other
similar noncash expenses) including, without limitation, debt service on any
loan or debt obligation of the Partnership, and minus (ii) any other cash
expenditures made by the Partnership as permitted or required under the terms of
this Agreement during such period, and minus (iii) any taxes required to be paid
by the Partnership to any governmental entity, and minus (iv) funds paid into
any reserve accounts required during such period for the establishment of or
addition to such reserves as the General Farther shall reasonably deem necessary
or appropriate for the proper operation of the business of the Partnership.
"NOTICE" means a written advice or notification required or permitted by
this Agreement, given in the manner provided in Section 8.1.
"PARTNER LOAN" means a loan to the Partnership by one or more Partners
pursuant to Section 3.3.
"PARTNERS" means the General Partner and the Limited Partner and such
other Partners as may be admitted to the Partnership from time to time pursuant
to the terms hereof.
"PARTNERSHIP" means KERRVILLE WIRELESS HOLDINGS LIMITED PARTNERSHIP, a
Texas
limited partnership, formed under the Act pursuant to the terms hereof for the
limited purposes and scope set forth herein.
"PERCENTAGE INTEREST" means, with respect to a Partner as of any
particular time, that fraction, expressed as a percentage, having as its
numerator the number of Units owned by such Farther and having as its
denominator the total number of outstanding Units owned by all the Members
as of such time. The sum of the Percentage Interests of all Partners shall
at all times equal 100%. Initially, the Percentage Interest of each of the
Partners is: Kerrville Cellular Management, LLC -1 % and Kerrville
Cellular Holdings, LLC - 99%.
"REGULATIONS" means the Regulations promulgated under the I.R.C. as
such regulations may be amended from time to time. All references herein
to a specific section of the Regulations shall be deemed also to refer to
any corresponding provision of succeeding Regulations.
"UNITS" shall mean the shares in which interests of the Partners are
divided.
Section 1.2 TERMINOLOGY AND CAPTIONS. All personal pronouns used in
this Agreement, whether in the masculine, feminine or neuter gender, shall
include all other genders. Titles of Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement, and all references in this Agreement to Sections or subsections
shall refer to the corresponding Section or subsection of this Agreement,
unless otherwise expressly stated.
ARTICLE 2
THE PARTNERSHIP
Section 2.1 EFFECT OF THIS AGREEMENT AND THE ACT. Except as
otherwise specifically provided in this Agreement, the rights and
obligations of the Partners and the administration, dissolution,
liquidation, and termination of the Partnership shall be governed by the
Act and this Agreement.
Section 2.2 NAME. The name of the Partnership shall be KERRVILLE
WIRELESS HOLDINGS LIMITED PARTNERSHIP or such other name as the General
Partner may from time to time direct.
Section 2.3 PLACE OF BUSINESS; REGISTERED AGENT. The mailing
address, address of the registered office and principal place of business
of the Partnership shall be at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇. The General Partner may change the place of
business of the Partnership at any time and from time to time by providing
written notice to the Limited Partners. The Partnership may also have such
other places of business as the General Partner determines to be
appropriate. The Partnership's agent for service of process in the State
of Texas shall be ▇. ▇. ▇▇▇▇▇▇▇▇▇▇, or such other individual as the
General Partner shall determine from time to time.
Section 2.4 PURPOSES AND SCOPE. Subject to the provisions of this
Agreement, the purpose of the Partnership is to engage in any lawful business
which may be engaged in by a limited partnership organized under the Act, as
such business activities may be determined by the General Partner from time to
time.
Section 2.5 ASSUMED NAME CERTIFICATE. The Partners shall execute and file
any assumed or fictitious name certificate or certificates required by law to be
filed in connection with the formation and operation of the Partnership.
Section 2.6 CERTIFICATE OF LIMITED PARTNERSHIP. In connection with the
execution of this Agreement, the General Partner shall file a limited
partnership certificate at all appropriate offices in accordance with the
provisions of the Act. The Partners shall be obligated to execute, acknowledge,
file, record and publish, as necessary, such amendments to this Agreement as may
be required by the terms hereof or by law and such other certificates and
documents as may be appropriate to comply with the requirements of law for the
continuation, preservation and operation of the Partnership as a limited
partnership.
Section 2.7 OWNERSHIP; WAIVER OF RIGHT OF PARTITION. The interest of each
Partner in the Partnership shall be personal property for all purposes. All
property and interests in property, real or personal, owned by the Partnership
shall be deemed owned by the Partnership as an entity, and no Partner,
individually, shall have any ownership of such property or interest owned by the
Partnership except as a Partner in the Partnership. Each of the Partners
irrevocably waives, during the term of the Partnership and during any period of
its liquidation following any dissolution, any right that it may have to
maintain any action for partition with respect to any of the assets of the
Partnership.
Section 2.8 RECORDS. The Partnership shall maintain, at its principal
place of business, the books and records of the Partnership including, but not
limited to, (i) copies of the Partnership's federal, state and local income tax
returns for the three (3) most recent years, (ii) a copy of this Agreement and
any then-effective amendments to this Agreement, (iii) any financial statements
of the Partnership for the three (3) most recent years, and (iv) a list of the
full name and last known mailing address of each Partner.
Section 2.9 TERM. The Partnership shall commence on the date hereof and
shall continue until the dissolution of the Partnership pursuant to the express
provisions of Article 7 hereof.
ARTICLE 3
FINANCIAL STRUCTURE
Section 3.1 CLASSIFICATION OF PARTNERSHIP. The General Farther is
authorized and hereby directed to cause the Partnership to be classified for
federal income tax purposes as an association taxable as a corporation within
the meaning of I.R.C. Section 7701(a)(3).
Section 3.2 INITIAL CAPITAL CONTRIBUTIONS; UNITS. Each Partner (or, in the
case of KCH, its predecessor) has made an initial Capital Contribution to the
Partnership, and owns the number of Units set forth opposite its name, as set
forth on Exhibit A, attached hereto and hereby incorporated herein.
Section 3.3 PARTNER LOANS. In the event that the General Partner shall
determine, at any time and from time to time, that the Partnership requires
additional funds to pay any costs or expenses of the Partnership incurred in
accordance with the provisions of this Agreement, and the General Partner
determines that it is in the best interest of the Partnership not to obtain a
loan for such funds from an unrelated third party, then the General Partner
shall notify the Partners of the amount required to pay such costs and expenses
and the Partners shall have fifteen (15) days to elect to participate in making
a Partner Loan, provided, however, no Partner shall have any obligation to make
a Partner Loan. In the event arty Partner so elects to participate, each Partner
electing to make such Loan shall advance its pro rata share of the needed funds,
based upon the participating Partners' respective Percentage Interests. Any
Partner Loan shall bear interest at the rate equal to the "prime rate" plus two
percent (2%) per annum, non-compounded and shall have a maturity date specified
by the Partner or Partners making such Partner Loan, provided the term of any
such Partner Loan shall not be less than ninety (90) days. Principal and
interest on any Partner Loan shall be repayable solely from distributions of Net
Cash Flow as provided hereunder. In the event there is more than one Partner
Loan, the loans shall have priority and be repayable on the basis of the oldest
Partner Loan having the first priority (with all loans having been made in
response to a single notice being deemed to have been made at the same time). If
more than one Partner has participated in a Partner Loan, then as among the
Partners, distributions in repayment of the principal and interest of the
Partner Loans shall be made pro rata in accordance with the amounts advanced by
the Partners.
Section 3.4 ADDITIONAL CAPITAL CONTRIBUTIONS. No Partner shall be required
to make any additional Capital Contributions to the Partnership without the
express written consent of such Partner.
Section 3.5 WITHDRAWAL OF CAPITAL. Except as expressly provided hereunder,
no Partner may withdraw capital from the Partnership without the consent of all
other Partners. No Partner shall be entitled to interest on its contributions of
capital to the Partnership. The Partners agree that no Partner shall be
personally liable for the return of the capital contributions of any other
Partner, if and to the extent that any return is required, and any such return
shall be made solely from the assets of the Partnership, if any.
Section 3.6 DISTRIBUTIONS AND PAYMENTS OF NET CASH FLOW. Except as
provided in Section 3,7, Net Cash Flow shall be distributed or paid from time to
time as may be determined by the General Partner to the Partners in proportion
to their Percentage Interests in the Partnership, as represented by their number
of Units.
Section 3.7 DISTRIBUTIONS UPON DISSOLUTION, LIQUIDATION AND WINDING UP.
Net Cash Flow, if any, existing upon the dissolution, liquidation and winding up
of the Partnership, shall be distributed to the Partners in proportion to their
Percentage Interest in the Partnership, as represented by their number of Units.
Section 3.8 MATTERS CONCERNING ACCOUNTING AND INCOME TAXES. All income tax
and financial reports and returns of the Partnership shall be prepared on an
accounting basis selected by the General Partner. All elections with respect to
tax matters to be made by or for the Partners shall be made by the General
Farther. The fiscal year of the Partnership shall be the calendar year.
ARTICLE 4
MANAGEMENT
Section 4.1 RIGHTS AND POWERS OF THE GENERAL PARTNER. The management and
control of the business and affairs of the Partnership shall be vested in the
General Partner, subject to the limitations set forth in Section 4.2 below. The
General Partner shall conduct or cause to be conducted the Partnership's
business and manage or cause to be managed the Partnership's affairs in its
discretion and shall have and possess all rights and powers conferred by law and
under this Agreement or otherwise necessary, advisable, desirable or consistent
in connection therewith, including without limitation the following rights and
powers:
(a) Enter into, make and perform such contracts, undertakings,
leases and agreements, and do such other acts as it may deem necessary or
advisable, or as may be incidental to, or necessary for, the conduct of the
business of the Partnership;
(b) Open, maintain and close bank accounts and draw checks and other
orders for the payment of money;
(c) Perform any and all other acts or activities customary or
incident to the business of the Partnership;
(d) Be reimbursed for all reasonable and customary out-of-pocket
expenses incurred in conducting the Partnership business, including without
limitation to reasonable travel expenses, and costs related to Partnership
accounting and bookkeeping services.
In dealing with the General Partner acting on behalf of the Partnership, no
person or entity shall be required to inquire into the authority of the General
Partner to bind the Partnership. Persons and entities dealing with the
Partnership shall be entitled to rely conclusively on the power and authority of
the General Partner as set forth in this Agreement. Any document or instrument,
including, without limitation, any deed, mortgage, deed of trust, deed to secure
debt, promissory note, ▇▇▇▇ of sale, lease, contract of sale, option or
management agreement required to be executed on behalf of the Partnership shall
be executed by the General Partner, and no other signature or consent shall be
required.
Section 4.2 LIMITATION ON POWER AND AUTHORITY OF THE GENERAL PARTNER.
Notwithstanding the terms of Section 4.1, the General Farther shall not, without
the prior Approval of the Limited Partner:
(a) Materially modify or amend this Agreement to the detriment of
the Limited Partners; or
(b) Possess Partnership property or assign rights in Partnership
property for other than a Partnership purpose.
Section 4.3 LIABILITY OF PARTNERS. Neither the General Farther nor any
Limited Partner nor any of their respective employees, agents or representatives
shall be responsible to the Partnership or to any other Partner for any loss,
liability, damage, claim, judgment, cost, obligation or expense sustained,
incurred or resulting directly or indirectly from the acts or omissions of such
Partner to the extent that such Partner or any of their respective employees,
agents or representatives reasonably and in good faith believed such act or
omission to be within the express or implied scope of the authority and
responsibility vested in such Farther pursuant to this Agreement. To the extent
not due to the gross negligence or willful misconduct (including but not limited
to fraud, misrepresentation or any other intentional tort) of such Partner or
such Partner's employees, agents or representatives, the Partnership will
indemnify the Partners (including the officers, directors and employees of the
General Partner) against judgments, fines, amounts paid in settlement and
expenses (including attorneys fees) reasonably incurred by them in any civil,
criminal or investigative proceeding in which they are involved or threatened to
be involved by reason of being a Partner in the Partnership, provided that the
Partner acted in good faith, within what it reasonably believed to be the scope
of its authority and for a purpose which it reasonably believed to be in the
beat interest of the Partnership or the Partners. The provisions of the
foregoing sentences, however, shall not relieve the General Partner of its
obligation as a Farther to share in the losses, costs and expenses of the
Partnership. The provisions of this Section 4.3 shall survive any termination or
expiration of this Agreement.
Section 4.4 PARTICIPATION IN MANAGEMENT. Except as may be otherwise
expressly provided herein to the contrary, no Limited Partner shall participate
in the management or control of the Partnership's business or transact any
business for the Partnership, and no Limited Farther shall have the power to act
for or bind the Partnership, said powers being vested solely and exclusively in
the General Partner in accordance with the provisions of this Agreement.
ARTICLE 5
LIMITED LIABILITY
No Limited Partner shall be bound by, or personally liable for, the
expenses, liabilities, or obligations of the Partnership, except as provided
under the Act. Except as required under the Act, no Limited Partner shall be
required or obligated to make further contributions of any sort whatsoever to
the capital of the Partnership, unless and until such contributions have been
Approved by all of the Partners.
ARTICLE 6
TRANSFERS AND OTHER DISPOSITIONS
Section 6.1 TRANSFER LIMITATIONS.
6.1.1 LIMITED PARTNER TRANSFERS. Except as otherwise specifically
provided herein, no Limited Partner may transfer, voluntarily or involuntarily,
all or any part of its interest in the Partnership, nor shall any Limited
Partner have the power to substitute a transferee in its place as a substituted
Limited Partner, without, in either event, having obtained the prior written
consent of the General Partner, which consent shall be in the sole discretion of
the General Partner.
6.1.2 GENERAL PARTNER TRANSFERS. Except as otherwise specifically
provided herein, the General Partner shall not transfer, voluntarily or
involuntarily, all or any part of its interest in the Partnership, nor shall the
General Partner have the power to substitute a transferee in its place as a
substituted General Partner, without, in either event, having obtained the prior
written consent of each Limited Partner, which consent shall be in the Limited
Partners' sole discretion.
Section 6.2 ASSIGNEES AND NEW PARTNERS.
6.2.1 PERMITTED TRANSFEREES. In the event of a transfer of any
interest in the Partnership permitted pursuant to the provisions of this Article
6, and notwithstanding anything in this Article 6 to the contrary (except
Section 6.2.2), the person or entity to whom such transfer is made shall not
become a Partner hereunder and shall be considered only an assignee of the
Partnership Interest and as such shall only be entitled to share in those
distributions, if any, in which its assignor would otherwise have been entitled
to share, diminished by the share of the losses and obligations, if any, for
which such assignor would be liable. Such an assignee shall have no right to
require any information or accounting of any transactions of the Partnership or
inspect the Partnership books and records and shall not be deemed a Partner of
the Partnership, and the interest in the Partnership held by such assignee shall
not be permitted to vote with respect to arty Partnership matter. Such an
assignee who does not become a substituted Farther, as provided for in Section
6.2.2, remains subject to all the provisions of this Article 6 to the same
extent and in the same manner as any Partner desiring to transfer all or any
part of its Partnership interest.
6.2.2 NEW PARTNERS. An assignee of a Partner's interest in the
Partnership pursuant to a transfer permitted under the provisions of this
Article 6 may become a substituted Partner with all the rights and liabilities
of its assignor as a Partner under this Agreement if and only if (i) the General
Partner or each Limited Partner (in the case of a General Partner's transferee)
shall have consented in writing to such assignee becoming a substituted Partner,
(ii) the assignee expressly assumes and agrees to be bound by this Agreement in
the place and stead of such assignor, and (iii) the appropriate instruments,
documents, or statements, if any, are prepared executed, acknowledged, filed,
recorded, published and delivered.
6.2.3 SUBSTITUTION. Upon a transfer by a Partner of all or part of
its interest in the Partnership and substitution of a Farther with respect to
all or such portion of its Partnership interest, the transferring Partner shall
cease to be a Partner to the extent of the partnership interest so transferred.
Section 6.3 WITHDRAWAL. No Limited Partner may withdraw from the
Partnership except with the consent of the General Partner and all other Limited
Partners and the General Partner may not withdraw from the Partnership without
the consent of each Limited Partner, and in each case upon such terms and
conditions as may be specifically agreed upon between the remaining Partners and
the withdrawing Partner. The provisions of this Agreement with respect to
distributions upon withdrawal art exclusive and no Partner shall be entitled to
claim any further or different distribution upon withdrawal under the Act or
otherwise.
ARTICLE 7
TERMINATION
Section 7.1 WAIVER OF RIGHTS. Each Partner does hereby expressly waive any
and all rights to dissolve, terminate or liquidate, or to petition a court for
the partition, dissolution, termination or liquidation of the Partnership except
as provided in this Section 7.
Section 7.2 VOLUNTARY TERMINATION. Prior to the expiration of the term,
the Partnership may terminate upon: (i) the Approval of all Partners; (ii) the
purchase by one Partner of all the interests in the Partnership; or (iii) the
sale of substantially all the assets of the Partnership and the distribution to
the Partners of all proceeds from such sale.
Section 7.3 INVOLUNTARY TERMINATION. The Partnership shall not be
dissolved by the bankruptcy, insolvency, withdrawal, dissolution or acquisition
of a Limited Partner.
7.3.1 EVENTS OF INVOLUNTARY DISSOLUTION. Subject to the provisions
of Section 7.3.2, the Partnership shall be dissolved prior to the date of its
termination, upon the occurrence of the following events:
(a) the dissolution of the General Partner;
(b) the filing of an involuntary petition in bankruptcy
against the General Partner which is not dismissed within one hundred twenty
(120) days of such filings
(c) the filing by the General Partner of any petition or
answer seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
Federal Bankruptcy Code or any present or future federal, estate or other
statute or law relating to bankruptcy, insolvency or other relief for debtors;
(d) the General Partner's seeking, or consenting to, or
acquiescing in the appointment of any trustee, receiver, conservator or
liquidator of it or of all or any substantial portion of its property or
interest in the Partnership;
(e) The resignation, withdrawal of the General Partner from
the Partnership or other event causing the General Partner to cease being the
General Partner.
7.3.2 REFORMATION OF PARTNERSHIP. Notwithstanding the provisions of
Section 7.3.1, the Partnership shall not be dissolved upon the occurrence of any
of the events enumerated in Section 7.3.1 in the event that all of the Partners
not responsible for the occurrence of such event, within 60 days after the date
of any of such events, elect to continue the business of the Partnership, in a
reconstituted form, if necessary, in which case, effective as of the date of
such event, the Partner responsible for such event shall become a defaulting
Partner and if such Partner is the General Partner, its interest in the
Partnership shall automatically be converted to that of a limited partner
without further act or deed, and one or more of the Limited Partners shall
convert a portion of its interest in the Partnership to a general partner
interest and shall designate a successor general partner who shall hold said
general partner interest and serve as the successor general partner of the
Partnership.
Section 7.4 LIQUIDATION PROCEDURES. Upon the expiration of the term of the
Partnership or the earlier dissolution of the Partnership in accordance with the
provisions of Section 7.2 or Section 7.3, the Partnership shall be liquidated in
accordance with the following procedures:
7.4.1 WINDING UP. During the period of such dissolution and
liquidation, the business and affairs of the Partnership shall be conducted so
as to maintain and preserve the assets of the Partnership in a manner consistent
with the winding up of the affairs thereof.
7.4.2 FORM OF DISTRIBUTIONS. The General Partner shall determine
whether the liquidating distributions shall be entirely in cash or in whole or
in part a distribution of the Partnership's assets in kind.
7.4.3 PRIORITY OF PAYMENTS AND DISTRIBUTIONS. In the event of a
liquidation, the General Partner shall act as the liquidating trustee, unless
events specified in subsection 7.3.1 have caused the dissolution leading to
liquidation in which event the Limited Partners holding, in the aggregate, a
majority of the Percentage Interests in the Partnership shall act as the
liquidating trustee. The liquidating trustee shall immediately proceed to wind
up and terminate the business and affairs of the Partnership. The assets of the
Partnership, shall thereupon be distributed in the order of priority as set
forth in subsections 7.4.3.1 through 7.4.3.3.
7.4.3.1 First, the Partnership shall pay creditors of the
Partnership (other than the Partners) in accordance with their respective
priorities;
7.4.3.2 Second, the Partnership shall set up any reserves which the
liquidating trustee deems to be reasonably necessary for any contingent or
unforeseen liabilities or obligations of the Partnership arising out of or in
connection with the Partnership; and
7.4.3.3 Third, all remaining assets or proceeds shall be distributed
to the Partners in accordance with section 3.7.
ARTICLE 8
MISCELLANEOUS PROVISIONS
Section 8.1 NOTICES. Each Notice shall be in writing in the English
language, and shall be deemed to have been properly given or served when
transmitted by facsimile transmission or when deposited with the United States
Postal Service or any official successor thereto, designated as registered or
certified mail, return receipt requested, bearing adequate postage and addressed
as hereinafter provided, or by personal delivery (which may include delivery by
commercial courier service) if receipt is procured. The time period in which a
response to any Notice must be made, or any action taken or payment made with
respect thereto, shall commence to run from the date of the confirmation of
receipt of such facsimile transmission, the date of receipt indicated on the
return receipt of the Notice or on the date of personal delivery evidenced by a
receipt. Rejection of or other refusal to accept a Notice, or the inability to
deliver because of changed address or statue of which no Notice was given, shall
be deemed to be receipt of the Notice sent. By giving to the other Partners at
least ten (10) days' prior Notice thereof, any partner shall have the right from
time to time during the term of this Partnership Agreement to change the
address(es) thereof and to specify as the address(es) thereof any other
address(es) within the United States of America. All dates and times referred to
in this Agreement shall be determined based on local time in Kerrville, Texas.
Section 8.2 GOVERNING LAW. This Agreement and the obligations, of the
Partners hereunder shall be governed by and interpreted, construed and enforced
in accordance with the laws of the State of Texas.
Section 8.3 SEVERABILITY. If any provision of this Agreement or the
application thereof to any Entity or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to any other Entity or circumstance shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
Section 8.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the
entire agreement of the Partners with respect to the subject matter hereof.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the Partners against whom enforcement of the change, waiver, discharge or
termination is sought. The execution of any amendment to this Agreement by all
Partners shall establish, that such execution was made in accordance with any
applicable requirements for approval.
Section 8.5 SUCCESSORS AND ASSIGNS. Subject to the restrictions set forth
herein, this Agreement shall inure to the benefit of and be binding upon the
Partners and their respective heirs, executors, legal representatives,
successors and assigns. Whenever in this Agreement a reference to any Entity or
Farther is made, such reference shall be deemed to include a reference to the
permitted heirs, executors, legal representatives, successors and assigns of
such Entity or Partner.
Section 8.6 THIRD PARTIES. Under no circumstances shall any person or
entity who or which is not a party to this Agreement be entitled to enforce any
of the provisions hereof against any of the Partners.
Section 8.7 SURVIVAL. In the event this Partnership Agreement shall be
terminated in accordance with the provisions hereof, the provisions of Article 7
relating to the liquidation of the Partnership shall remain in full force and
effect and shall be binding upon the Partners for all purposes.
Section 8.8 INTERPRETATION. No provision of this Partnership Agreement
shall be construed against or interpreted to the disadvantage of any Partner by
any court or other governmental or judicial authority by reason of such Farther
having or being deemed to have drafted, structured, dictated or required such
provision.
Section 8.9 EXHIBITS. All exhibits referred to in this Agreement and
attached hereto are made a part of this Agreement by this reference.
IN WITNESS WHEREOF, the parties hereto have signed, sealed and delivered
this Agreement under seal as of the date first noted above.
GENERAL PARTNER
KERRVILLE CELLULAR MANAGEMENT,
LLC
By: KERRVILLE CELLULAR, INC., Manager
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
LIMITED PARTNER:
KERRVILLE CELLULAR HOLDINGS, LLC
By: KERRVILLE CELLULAR, INC., Manager
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
EXHIBIT A
CAPITAL CONTRIBUTIONS
Name Capital Contribution Units
---- -------------------- -----
General Partner:
Kerrville Cellular Management, LLC $1,000.00 1
Limited Partner:
Kerrville Cellular Holdings, LLC a 32% interest as a general 99
partner in CGKC&H Rural
Cellular Limited Partnership,
a Texas limited partnership
(as originally contributed by
Kerrville Cellular, Inc.)
FIRST AMENDMENT TO
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
KERRVILLE WIRELESS HOLDINGS LIMITED PARTNERSHIP
A TEXAS LIMITED PARTNERSHIP
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
(this "First Amendment") is made and entered into as of January 31, 2002 by and
among KERRVILLE CELLULAR MANAGEMENT, LLC, a Delaware limited liability company
("KCM"), as sole general partner, and KERRVILLE CELLULAR HOLDINGS, LLC, a
Delaware limited liability company ("KCH"), as sole limited partner, and shall
amend in part that certain Amended and Restated Limited Partnership Agreement of
Kerrville Wireless Holdings Limited Partnership, dated as of September 11, 2001
(the "Agreement").
WITNESSETH:
WHEREAS, KCM and KCH desire to amend the Agreement as set forth herein;
and
WHEREAS, capitalized terms used herein and not defined herein shall have
the meanings assigned to them in the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. There shall be added to the Agreement Section 8.10, which shall read in
its entirety as follows:
"Section. 8.10 OPT-IN TO ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE.
The Partners hereby agree that the Units of the Partnership shall be
securities governed by Article 8 of the Uniform Commercial Code of the
State of Texas (and the Uniform Commercial Code of any other applicable
jurisdiction)."
2. Authority. The parties acknowledge and agree that they are entering
into this First Amendment pursuant to Article 4.2 and Article 8.4 of the
Agreement,
3. Effect of Amendment. Except as amended hereby, the Agreement shall
remain unchanged and in full force and effect, and this First Amendment shall be
governed by and subject to the terms of the Agreement, as amended hereby. From
and after the date of this First Amendment, each reference in the Agreement to
"this Agreement," "hereof," "hereunder" or words of like import, and all
references to the Agreement in any and all agreements, instruments, documents,
notes, certificates and other writings of every kind and nature (other than in
this First Amendment or as otherwise expressly provided) shall be deemed to mean
the Agreement, as amended by this First Amendment.
4. General. This First Amendment: (a) shall be binding on the executors,
administrators, estates, heirs, and legal successors of the parties hereto; (b)
shall be governed by
and interpreted, construed and enforced in accordance with the laws of the State
of Texas; and (c) may be executed in more than one counterpart as of the day and
year first above written.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
2
IN WITNESS WHEREOF, the parties hereto have duly executed this First
Amendment as of the date first above written.
GENERAL PARTNER:
KERRVILLE CELLULAR MANAGEMENT, LLC
By: Kerrville Cellular, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Secretary
LIMITED PARTNER
KERRVILLE CELLULAR HOLDINGS, LLC
By: Kerrville Cellular, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Secretary