Exhibit 3.28
--------------------------------------------------------------------------------
LIMITED LIABILITY COMPANY AGREEMENT
OF
ACC NEW YORK LICENSE III LLC
A Delaware Limited Liability Company
--------------------------------------------------------------------------------
Limited Liability Company Agreement
of
ACC New York License III LLC
This Limited Liability Company Agreement (the "AGREEMENT") of ACC New
York License III LLC (the "COMPANY") is effective as of December 31, 1998.
1. FORMATION OF LIMITED LIABILITY COMPANY. Dutchess County Cellular
Telephone Company, Inc., a Delaware corporation (the "Member") hereby forms
the Company as a limited liability company pursuant to the provisions of the
Delaware Limited Liability Company Act, 6 DEL.C. Section 18-101, ET SEQ., as
it may be amended from time to time, and any successor to such statute (the
"ACT"). The rights and obligations of the Member and the administration and
termination of the Company shall be governed by the Agreement and the Act.
The Agreement shall be considered the "Limited Liability Company Agreement"
of the Company within the meaning of Section 18-101(7) of the Act. To the
extent this Agreement is inconsistent in any respect with the Act, this
Agreement shall control.
2. MEMBER. Dutchess County Cellular Telephone Company, Inc. is the
sole and managing member of the Company. There shall be no other member of
the Company other than Dutchess County Cellular Telephone Company, Inc. or
any successor thereto.
3. PURPOSE. The purpose of the Company is to engage in any and all
lawful businesses or activities in which a limited liability company may be
engaged under applicable law (including, without limitation, the Act)
4. NAME. The name of the Company shall be "ACC NEW YORK LICENSE III
LLC".
5. TERM OF COMPANY. The Company shall commence on the effective date
specified in the Certificate of Formation (the "CERTIFICATE") filed with the
Secretary of State of the State of Delaware and shall continue in existence
in perpetuity unless its business and affairs are earlier wound up following
dissolution at such time as this Agreement may specify.
6. REGISTERED AGENT AND PRINCIPAL OFFICE. The registered office of
the Company required by the Act to be maintained in the State of Delaware
shall be the initial registered office named in the Certificate or such other
office (which need not be a place of business of the Company) as the Member
may designate from time to time in the manner provided by the Act. The
registered agent of the Company in the State of Delaware shall be the initial
registered agent named in the Certificate or such other person or entity as
the Member may designate from time to time in the manner provided by the Act.
The principal office of the Company shall initially be at 0000 Xxxx Xxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 or at such other place as the
member may designate from time to time.
7. MANAGEMENT OF COMPANY. All decisions relating to the business,
affairs and properties of the Company shall be made by the Member in its
capacity as the managing member. The Member may appoint
a Chief Executive Officer, President, Chief Operating Officer, Chief
Financial Officer and one or more Vice Presidents and such other officers of
the Company as the Member may deem necessary or advisable to manage the
day-to-day business affairs of the Company (the "OFFICERS"). The Officers
shall serve at the pleasure of the Member. To the extent delegated by the
Member, the Officers shall have the authority to act on behalf of, bind and
execute and deliver documents in the name and on behalf of the Company. No
such delegation shall cause the Member to cease to be a Member. Such Officers
shall have such authority and responsibility as is generally attributable to
the holders of such offices in corporations incorporated under the laws of
Delaware. The Member hereby appoints the following persons to serve as the
initial Officers the Company: (i) Xxxx Xxxxx - Chief Executive Officer; (ii)
Xxxxx XxXxxxxx - President and Chief Operating Officer; (iii) Xxxxx Xxxxxx,
Xx. - Vice President, Chief Financial Officer and Secretary; (iv) Xxxxxxx
Xxxxxx - Vice President; (v) Xxxxx XxXxxxxx - Vice President; and (vi) Xxxxxx
Banaczek - Vice President.
8. CAPITAL CONTRIBUTIONS. Concurrently with the execution of this
Agreement, the Member shall contribute to the Company all of FCC licenses
owned by the Company. The Member shall not be required to make any additional
capital contributions to the Company.
9. DISTRIBUTIONS. Each distribution of cash or other property by the
Company shall be made 100% to the Member. Each item of income, gain, loss,
deduction and credit of the Company shall be allocated 100% to the Member.
10. LIMITATION ON LIABILITY. The Member shall have no liability to
the Company for monetary damages for conduct as the Member, except for acts
or omissions that involve a breach of this Agreement, intentional misconduct,
a knowing violation of law, conduct violating Section 18-607 of the Act, or
for any transaction from which the Member has personally received a benefit
in money, property or services to which the Member was not legally entitled.
If the Act is hereafter amended to authorize Company action further limiting
the personal liability of members, then the liability of the Member shall be
eliminated or limited to the full extent permitted by the Act, as so amended.
No repeal or modification of the Act or this Section 10 shall adversely
affect any right or protection of the Member existing at the time of such
repeal or modification for or with respect to an act or omission of the
Member occurring prior to such repeal or modification.
11. INDEMNIFICATION. (a) The Company shall, to the fullest extent
permitted by applicable law, indemnify, defend and hold the Member harmless
against any losses, claims, damages or liabilities to which the Member may
become subject in connection with any matter arising out of or in connection
with this Agreement or the Company's business or affairs, except for any such
losses, claims, damages or liabilities of the Member finally adjudicated to
be the result of the Member's breach of this Agreement, intentional
misconduct or a knowing violation of law by the Member, conduct of the Member
adjudged to be in violation of Section 18-607 of the Act, or any transaction
with respect to which it was finally adjudged that the Member received a
2
benefit in money, property, or services to which the Member was not legally
entitled.
(b) The right to indemnification conferred in this Section 11 shall
be a contract right and shall include the right to be paid by the Company the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, that the payment of such expenses in advance of the
final disposition of a proceeding shall be made only upon delivery to the
Company of an undertaking, by or on behalf of the Member, to repay all
amounts so advanced if it shall ultimately be determined that the Member is
not entitled to be indemnified under this Section 11 or otherwise.
(c) The right to indemnification and payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Section 11 shall not be exclusive of any other right the Member may have or
hereafter acquire under any statute, this Agreement or otherwise.
(d) No repeal or modification of the Act or this Section 11 shall
adversely affect any right of the Member to indemnification existing at the
time of such repeal or modification for or with respect to indemnification
related to an act or omission of the Member occurring prior to such repeal or
modification.
12. ASSIGNMENT. The Member may assign, in whole or in part, its
membership interest in the Company. Notwithstanding anything to the contrary
contained in the Act, any transferee of the Member's membership interest in
the Company, in whole or in part, shall be admitted as a member of the
Company upon the approval of the Member regardless of whether the Member has
transferred its entire membership interest in the Company to any such
transferee.
13. ACCOUNTING AND RECORDS. The Company shall maintain records and
accounts of all of its operations and expenditures. At a minimum, the Company
shall keep at its principal place of business the following records:
(a) A current list and past list, setting forth the full name and
last known mailing address of each member and manager, if any;
(b) A copy of the Certificate and all amendments thereto;
(c) Copies of this Agreement and all amendments hereto;
(d) Copies of the Company's federal, state, and local tax returns
and reports, if any, for the three (3) most recent years; and
(e) Copies of the Company's financial statements for the three (3)
most recent years.
14. DISSOLUTION AND WINDING UP. The Company shall dissolve and its
business and affairs shall be wound up pursuant to a written instrument
executed by the Member.
3
15. AMENDMENTS. This Agreement may be amended or modified from time
to time only by a written instrument executed by the Member.
16. SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid, illegal
or unenforceable to any extent, the remainder of this Agreement and the
application thereof shall not be affected and shall be enforceable to the
fullest extent permitted by law.
17. GOVERNING LAW. The validity and enforceability of this
Agreement shall be governed by and construed in accordance with the laws of
the State of Delaware without regard to otherwise governing principles of
conflicts of law.
18. HEIRS, SUCCESSORS AND ASSIGNS. Each and all of the covenants,
terms, provisions and agreements herein contained shall be binding upon and
inure to the benefit of the parties hereto and, to the extent permitted by
this Agreement, their respective heirs, legal representatives, successors and
assigns.
19. CREDITORS. None of the provisions of this Agreement shall be for
the benefit of or enforceable by any creditors of the Company.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date set forth above.
MEMBER
DUTCHESS COUNTY CELLULAR
TELEPHONE COMPANY, INC.
a Delaware Corporation
By: /s/ Xxxx Xxxxx
-----------------------------
Name: Xxxx Xxxxx
Title: Chief Executive Officer
COMPANY
ACC NEW YORK LICENSE III LLC
a Delaware Limited Liability Company
By: /s/ Xxxxx XxXxxxxx
-----------------------------
Name: Xxxxx XxXxxxxx
Title: President
4
