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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
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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.
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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.
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"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
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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 955 Water Street, P.O. Box
290130,
Kerrville, Texas, 78029-0130. 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 C. R. Weinheimer, or such other individual as
the
General Partner shall determine from time to time.
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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.
<PAGE>
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 disso
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