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EXHIBIT 3.63
LIMITED PARTNERSHIP AGREEMENT
for
Kerrville Cellular, L.P.
a Texas limited partnership
dated as of
December 31, 2002
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LIMITED PARTNERSHIP AGREEMENT
OF
KERRVILLE CELLULAR, L.P.
* TRANSFER RESTRICTIONS *
THE
LIMITED PARTNERSHIP INTERESTS IN KERRVILLE CELLULAR, L.P. (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.
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LIMITED PARTNERSHIP AGREEMENT
OF
KERRVILLE CELLULAR, LP.
A TEXAS LIMITED PARTNERSHIP
THIS
LIMITED PARTNERSHIP AGREEMENT (this "Agreement") is made and
entered
into as of December 31, 2002, by and among
KERRVILLE COMMUNICATIONS MANAGEMENT,
LLC, a Delaware limited liability company
("KCM"), as sole general partner, and
KERRVILLE COMMUNICATIONS ENTERPRISES, LLC,
a Delaware limited liability company
("KCE"), as a limited partner.
WITNESSETH:
WHEREAS,
the KCM and KCE hereto desire to form a limited partnership
under
the provisions of the Texas Revised Limited
Partnership Act as enacted in the
State of Texas ("Act") for the purposes
hereinafter described; and
WHEREAS,
KCM and KCE 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 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.
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"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 COMMUNICATIONS 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 COMMUNICATIONS ENTERPRISES, LLC, a
Delaware limited liability company, and its
permitted successors and assigns.
"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
Partner 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 CELLULAR, L.P. 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
Partner 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 Communications Management, LLC -
1% and Kerrville Communications
Enterprises, LLC - 99%.
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"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
CELLULAR, L.P. 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 201 E. John
Carpenter Freeway, Suite 200, Las Colinas
Tower I, Irving, Texas, 75062-2707. 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
Corporation Service Company, 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.
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Section
2.6 CERTIFICATE OF LIMITED PARTNERSHIP. The Partners shall be
obligated to execute, acknowledge, file,
record and publish, as necessary, such
amendments to the Certificate of Limited
Partnership filed with the Texas
Secretary of State 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 Partner 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 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
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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 any 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
