Exhibit 3.40
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LIMITED LIABILITY COMPANY AGREEMENT
OF
ACC TENNESSEE LICENSE LLC
A Delaware Limited Liability Company
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Limited Liability Company Agreement
of
ACC Tennessee License LLC
This Limited Liability Company Agreement (the "AGREEMENT") of ACC
Tennessee License LLC (the "COMPANY") is effective as of December 31, 1998.
1. FORMATION OF LIMITED LIABILITY COMPANY. ACC of Tennessee
LLC, a Delaware limited liability company (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. ACC of Tennessee LLC is the sole and managing
member of the Company. There shall be no other member of the Company other
than ACC of Tennessee LLC 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 TENNESSEE
LICENSE 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 benefit in money, property, or services to which the Member was
not legally entitled.
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(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.
15. AMENDMENTS. This Agreement may be amended or modified from
time to time only by a written instrument executed by the Member.
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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
ACC OF TENNESSEE LLC
a Delaware Limited Liability Company
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Chief Executive Officer
COMPANY
ACC TENNESSEE LICENSE LLC
a Delaware Limited Liability Company
By: /s/ Xxxxx XxXxxxxx
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Name: Xxxxx XxXxxxxx
Title: President
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