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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.
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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
