EXHIBIT 3.65
LIMITED LIABILITY COMPANY AGREEMENT
OF
KERRVILLE CELLULAR MANAGEMENT, LLC
A DELAWARE LIMITED LIABILITY COMPANY
THIS LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of KERRVILLE
CELLULAR MANAGEMENT, LLC, a Delaware limited liability company (the "Company"),
is entered into and shall be effective as August 9, 2001, by and among the
Company and Kerrville Cellular, Inc. (the "Member"), as the sole member and
manager of the Company, and all other persons who hereafter become a member or
manager of the Company, all in accordance with and pursuant to the Delaware
Limited Liability Company Act, 6 Del. C. Section 18-101 et seq., as amended
(the "Act").
RECITALS
X. X. Xxxxxxxxxx (the "Organizer"), acting in the capacity of "authorized
person" under the Act, caused the Company to be organized on August 9, 2001,
when the filing of a duly executed Certificate of Formation for the Company by
the Delaware Secretary of State became effective. The Member has agreed to
continue the Company under the terms and conditions of this Agreement. It is the
intention of the undersigned that the Company be disregarded for federal, state
and foreign tax purposes for so long as the Company has only one member;
provided however, the separate identity of the Company from that of the Member
shall be respected for all other purposes.
NOW, THEREFORE, in consideration of the mutual promises made herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE I
GENERAL PROVISIONS
1.1 Purpose. The purpose of the Company is to engage in any lawful act or
activity for which a limited liability company may be formed under the Act.
1.2 Member. The Member is the sole member of the Company and hereby
ratifies all actions heretofore taken by the Organizer in organizing the
Company.
1.3 Place of Business. The principal place of business of the Company
shall be located in the State of Delaware. The Member may change the principal
place of business of the Company to any other place and establish or close other
offices and places of business.
1.4 Duration. The existence of the Company commenced on the effective date
of the filing of the Articles of Organization of the Company and shall continue
until the Company is dissolved and its affairs are wound up in accordance with
Section 4.4 below.
1.5 Title to Property. The Company shall hold all property (real,
personal, tangible, and intangible) owned from time to time by the Company as a
result of capital contributions (as
contemplated in Section 3.1 below), operations or otherwise, in the name of the
Company and not in the name of any Member.
1.6 Limited Liability. The Member shall not be bound by, or be personally
liable for, the debts, obligations or liabilities of the Company, except as, and
to the extent that, the Member expressly agrees otherwise in writing. In
furtherance of the foregoing, in no event shall the Member be liable with
respect to, or be required to contribute capital to restore, a negative or
deficit balance in the Member's capital account, if any, upon the dissolution or
liquidation of either the Company or the Member's membership interest in the
Company, or at any other time, except to the extent the Member expressly agrees
thereto in writing to the Company.
ARTICLE II
MANAGEMENT
2.1 Management. By virtue of its status as a member, the Member shall be a
manager (within the meaning of the Act) of the Company, vested with the
exclusive control of the management of the business and affairs of the Company.
All power and- authority of the Company shall be exercised by, or under the
direction and control of, the Member in a manner consistent with this Agreement
and the Act. The Member may use the title of manager when transacting business
on behalf of the Company in accordance with this Agreement.
2.2 Officers. The Member may appoint from time to time one or more
officers of the Company with such titles, powers, duties, compensation and other
terms as the Member may determine to be necessary or appropriate. Any such
officers shall serve, subject to the provisions of this Agreement, until their
respective successors are duly appointed and qualified. Any officer may be
removed by the Member at any time for or without cause; but such removal shall
not itself affect the contractual rights, if any, of the officer so removed. The
compensation of all officers shall be fixed by the Member. The same individual
may hold any two or more offices, but no individual may act in more than one
capacity where action of two or more officers is required.
2.3 Exculpation and Indemnification. The Member and officers shall, to the
fullest extent permitted under the Act or other applicable law, be exculpated
from and indemnified by the Company against any liability, loss, damage,
penalty, action, claim, judgment, settlement, cost, expense of any kind or
nature whatsoever (including all reasonable attorneys' fees, costs and expenses
of defense, appeal and settlement of any proceedings instituted against the
Member, the officers or the Company and all costs of investigation in connection
therewith) that in any way relates to or arises out of, or is alleged to relate
to or arise out of, any action or inaction on the part of the Company, the
Member or the officers acting on behalf of the Company. Expenses incurred by the
Member or officers in defense or settlement of any claim that may be subject to
a right of indemnification hereunder may be advanced by the Company prior to the
final disposition thereof; provided however, prior to such advancement the
Member or applicable officer shall agree in writing to repay such advancement to
the extent that it shall be determined ultimately that such Member or applicable
officer is not entitled to be indemnified hereunder. The satisfaction of the
obligations of the Company under this Section 2.3 shall be from, and limited to,
the assets of the Company; the Member and the officers shall not have any
liability on account thereof. The right to indemnification and payment of
expenses conferred in
this Section 2.3 shall not be exclusive of any other right which the Member or
officers may have or hereafter acquire under law or equity, provision of this
Agreement, or otherwise.
2.4 Other Business Ventures. The Member may engage in or possess an
interest in other business ventures (unconnected with the Company) of every kind
and description, independently or with others. The Company shall not have any
rights in or to such other ventures or income or profits there from by virtue of
this Agreement or the Member's status as a member of the Company.
ARTICLE III
CAPITAL CONTRIBUTIONS, ALLOCATIONS AND DISTRIBUTIONS
3.1 Capital Contributions. On the effective date of this Agreement, the
Member contributed $1,000.00 in cash to the Company. The Member shall make such
additional contributions to the capital of the Company, and on such terms and
conditions, as the Member may- from time to. time determine in the Member's sole
discretion. The Member shall have no duty or obligation to make any other
contributions to the capital of the Company for any purpose. All capital
contributions by the Member shall be recorded on the books and records of the
Company. Property owned by the Member shall in no event be deemed owned by the
Company unless there is a writing affirmatively evidencing the Member's intent
to transfer title to such property to the Company.
3.2. Allocations. One hundred percent (100%) of the Company's profits and
losses shall be allocated to the Member. At all times that the Company has only
one member (who owns 100% of the limited liability company interests in the
Company), it is the intention of the Member that the Company be disregarded for
federal, state, local and foreign income tax purposes.
3.3. Distributions. The Company shall make such distributions of money and
other property to the Member at such times and in such amounts as determined
from time to time by the Member; provided, however, that no distribution shall
be made in violation of the Act. The Member shall not be required to return all
or part of any distributions made to the Member by the Company.
ARTICLE IV
TRANSFERS AND ISSUANCES OF MEMBERSHIP INTERESTS;
ADMISSION OF NEW MEMBERS; DISSOLUTION
4.1 Transfer of Membership Interest. The Member may assign, transfer and
otherwise convey (collectively, "convey") all or part of the Member's membership
interest in the Company only by (a) executing a written instrument of
assignment, duly describing the membership interest in the Company being
conveyed to the transferee and the rights and obligations that the transferee
shall have in respect of such interest (including whether the transferee is to
be admitted as a member of the Company), and (b) complying with the provisions
of Section 4.3. Any attempted or purported conveyance of all or part of a
membership interest in the Company that does not comply with the preceding
sentence shall be null and void and not recognized by the Company.
4.2 Admission of Additional Members. The Company, with the Member's
written consent, may issue membership interests to other persons and admit such
persons as members of the Company. Any attempted or purported admission of a
member that does not comply with the preceding sentence shall be null and void
and not recognized by the Company. The issuance of membership interests to a new
member shall become effective upon compliance with the provisions of Section
4.3.
4.3 Amended and Restated Limited Liability Company Agreement. The Company
was formed with the intention that it would have only one member, such that at
all times the Company would be disregarded as an entity separate from its owner
for federal tax purposes under section 301.7701-3(b)(1)(ii) of the Treasury
Regulations. Accordingly, any action described in Section 4.1 or 4.2 (relating
to the admission of new members to the Company) that would cause the Company to
have more than one member shall be made in conjunction with the execution by the
Company, and all of those persons who are to become members of the Company, or
an amended and restated limited liability company agreement setting forth, at a
minimum, the relative rights, obligations and duties of such members in respect
of the Company, the manner in which the Company shall be operated, and the
manner in which the Company shall be characterized for federal tax purposes
(i.e., as a partnership or an association taxable as a corporation).
4.4 Dissolution and Winding Up. The Company shall dissolve and its affairs
shall commence to be wound up upon the date specified in a written consent
executed by the Member on which dissolution is to occur. Upon its dissolution,
the Company shall conduct only such activities as are necessary to wind up its
affairs, including the sale of the assets of the Company in an orderly manner,
and the assets of the Company shall be applied in the manner, and in the order
of priority, set forth in the Act.
ARTICLE V
MISCELLANEOUS
5.1 Governing Law. This Agreement shall be governed by, and construed
under, the laws of the State of Delaware (without regard to conflict of laws
principles), all rights and remedies being governed by said laws.
5.2 Amendments. This Agreement may be modified, altered, supplemented or
amended only by the written consent of the Member.
5.3 Construction. Unless otherwise indicated, "Sections" mean and refer to
the numbered Sections of this Agreement. Words such as "herein," "hereby,"
"hereinafter," "hereof," "hereto," and "hereunder" refer to this Agreement as a
whole, unless the context requires otherwise. All headings and captions used in
this Agreement are for convenience of reference only and are not intended to
define or limit the scope or intent of this Agreement.
5.4 Separability of Provisions. Each provision of this Agreement shall be
considered separable, and if for any reason any provision or provisions herein
are determined to be invalid, unenforceable or illegal under any existing or
future law, such invalidity, unenforceability or
illegality shall not impair the operation of or affect those portions of this
Agreement that are valid, enforceable and legal.
5.5 Sole Benefit of Member. The provisions of this Agreement are intended
solely to benefit the Member and, to the fullest extent permitted by applicable
law, shall not be construed as conferring any benefit upon any creditor of the
Company (and no such creditor shall be a third-party beneficiary of this
Agreement), and the Member shall not have any duty or obligation to any creditor
of the Company to make any contributions or payments to the Company.
5.6 Seal. The Company shall not have a seal, and no agreement, instrument
or other document executed on behalf of the Company that would otherwise be
valid and binding on the Company shall be invalid or not binding on the Company
solely because no seal of the Company is affixed thereto.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
have duly executed this Agreement as of the date first written above.
"Company"
KERRVILLE CELLULAR MANAGEMENT, LLC
By: KERRVILLE CELLULAR, INC., Manager
By: /s/ X. X. Xxxxxxxxxx
----------------------------------
Name: X. X. Xxxxxxxxxx
Title: President
"Member"
KERRVILLE CELLULAR, INC.
By: /s/ X. X. Xxxxxxxxxx
----------------------------------
Name: X. X. Xxxxxxxxxx
Title: President
FIRST AMENDMENT TO
LIMITED LIABILITY AGREEMENT
OF
KERRVILLE CELLULAR MANAGEMENT, LLC
A DELAWARE LIMITED LIABILITY COMPANY
THIS FIRST AMENDMENT TO LIMITED LIABILITY COMPANY AGREEMENT of KERRVILLE
CELLULAR MANAGEMENT, LLC (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 (the "Company"), and KERRVILLE CELLULAR, INC., a Texas
corporation (the "Member"), as the sole member and manager of the Company, all
in accordance with and pursuant to the Delaware Limited Liability Company Act, 6
Del. C. Section 18-101 et sec., as amended (the "Act").
WITNESSETH:
WHEREAS, the Company was formed on August 9, 2001; and
WHEREAS, the Member and the Company are parties to the Limited Liability
Company Agreement of the Company, dated as of August 9, 2001 (the "Agreement");
and
WHEREAS, the Member and the Company desire to amend the Agreement as set
forth herein; and
WHEREAS, capitalized terms used herein and not defined herein shall have
the o meanings assigned to them in the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. There shall be added to the Agreement Section 5.7, which shall read in
its entirety as follows:
"5.7 Opt-in to Article 8 of the Uniform Commercial Code. The Member
hereby agrees that the membership interests of the Company 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. 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.
3. General. This First Amendment: (a) shall be binding on the executors,
administrators, estates, heirs, and legal successors of the Member; (b) shall be
governed by and
interpreted, construed and enforced in accordance with the laws of the State of
Delaware; and (c) may be executed in more than one counterpart as of the day and
year first above written.
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2
IN WITNESS WHEREOF, the parties hereto have duly executed this First
Amendment as of the date first above written.
COMPANY:
KERRVILLE CELLULAR MANAGEMENT, LLC
By: KERRVILLE CELLULAR, INC., its
Sole Member
By: /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------------
Xxxxxxx X. Xxxxx, Xx.
Secretary
MEMBER:
KERRVILLE CELLULAR, INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Xxxxxxx X. Xxxxx, Xx.
Secretary
