OPERATING AGREEMENT OF MENANDS ENVIRONMENTAL SOLUTIONS, LLC
Exhibit 3.651
OPERATING AGREEMENT OF
MENANDS ENVIRONMENTAL SOLUTIONS, LLC
MENANDS ENVIRONMENTAL SOLUTIONS, LLC
This Operating Agreement is executed as of September 21, 2004, by Allied Waste North America,
Inc., a Delaware corporation (the “ Member”) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1
Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this Agreement
and the Certificate of Formation.
1.3 Name. The name of the Company is Menands Environmental Solutions, LLC. The name of
the Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or activity
permitted under New York law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Member that the Company be treated as a separate
entity for state law purposes, but be disregarded as an entity and operated in a manner consistent
with its treatment as a “division” of the Member for federal and state income tax purposes. It also
is the intent of the Member that the Company not be operated or treated as a “partnership” for
purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of New York shall be
CT Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Xxxxxx of New York. The registered
office may be changed to any other place within the State of New York upon the consent of the
Member. The Company may maintain a registered office in any state within which it does business at
any location approved by the Member.
1.7 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in New York are CT Corporation System, 000 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx. The Company’s agent for service of legal process may be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in New York, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation to be
filed in the State of New York. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1
Member. The name and address of the Member are set forth on
Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Member, and except
as otherwise provided by the Act or by any other applicable state law, the Member shall be liable
only to make the Capital Contributions as provided in Sections 2.2 and 2.3 hereof and shall not be
required to make any other Capital Contributions or loans to the Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended or will be
deemed to benefit any creditor of the Company, and no
creditor of the Company will be entitled to require the Member to make additional Capital
Contributions.
2.5 Member Loans. The Member may make loans (“Member Loans”) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as may be approved by the
Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
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SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all
Profits,
Losses and items thereof for each fiscal year of the Company shall be allocated to the
Member in full, disregarding the Company as a separate entity for federal income tax
purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the Company and
its affairs shall be made or taken by the Member. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of the Member as binding on the Company, without any
duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in resolutions adopted by the Member on behalf of
the Company. The officers of the Company may include a president, vice presidents, a secretary, a
treasurer, and such other officers as the Member deems appropriate. The officers of the Company
will be entitled to such compensation for their services as the Member may determine from time to
time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (the
“Indemnified Parties”) from and against all losses, claims, costs, liabilities and damages incurred
by them by reason of any act performed or omitted to be performed by them in connection with the
business of the Company, including attorneys’ fees incurred by them in connection with the defense
of any action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct or gross negligence.
SECTION 6. BOOKS AND RECORDS; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred,
or otherwise disposed of without the consent of the Member. Any attempted transfer,
assignment, encumbrance, hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
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(a) The sale of all or substantially all of the Company’s assets and the collection of
the proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 347.143 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 7.1 hereof, the
Member may participate in the winding up of the Company as provided in Section 347.141 of the Act.
The Company shall cease to carry on its business, except insofar as may be necessary for the
winding up of its business, but the Company’s separate existence shall continue until a certificate
of cancellation has been filed with the New York Secretary of State or until a decree dissolving
the Company has been entered by a court of competent jurisdiction.
(b) Liquidation
and Distribution of Assets. Upon the dissolution of the Company, the Member,
or court-appointed trustee, if there is no remaining Member, shall take full account of the
Company’s liabilities and assets, and such assets shall be liquidated as promptly as is consistent
with obtaining the fair value thereof. During the period of liquidation, the business and affairs
of the Company shall continue to be governed by the provisions of this Agreement, with the
management of the Company continuing as provided in Section 5 hereof. The proceeds from liquidation
of the Company’s property, to the extent sufficient therefore, shall be applied and distributed in
the following order:
(i) To the payment and discharge of all of the
Company’s debts and liabilities, including those to the Member as a
creditor, to the extent permitted by law, and the establishment of
any necessary reserves;
(ii) To the Member in satisfaction of any Member
Loans which have not been satisfied pursuant to Section 7.2(b)(i);
and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefore and all of
the remaining property and assets of the Company have been distributed to the Member, a certificate
of cancellation shall be executed and filed by the Member with the New York Secretary of State.
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SECTION 8. MISCELLANEOUS
8.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any provision hereof.
8.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
8.4 Additional Documents. Each Member, upon the request of the other Member, agrees to
perform all further acts and execute, acknowledge and deliver any documents which may be reasonably
necessary or appropriate to carry out the provisions of this Agreement.
8.5 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
8.6 New York Law. The laws of the State of New York shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
“Act” means the New York Limited Liability Company Law, as set forth in New York Consolidated
Laws § 31.101 et. seq., as amended from time to time (or any corresponding provisions of succeeding
law).
“Agreement” means this Operating Agreement, as amended from time to time. Words such as
“herein,” “hereinafter,” “hereof,” “hereto” and “hereunder,” refer to this Agreement as a whole,
unless the context otherwise requires.
“Capital
Contribution” means, with respect to any Member, the amount of money and the net fair
market value of property (other than money) contributed to the Company by such Member.
“Certificate
of Formation” has the meaning given that term in Section 1.9 hereof.
“Code” means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
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“Company” means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
“Member” means any Person identified as a Member in the heading to this Agreement. If any
Person is admitted as a Substituted Member pursuant to the terms of this Agreement, “Member” shall
also be deemed to refer to such Person. “Member” refers collectively to all Persons who are
designated as a “Member” pursuant to this definition.
“Net
Cash Flow” means the gross cash proceeds to the Company from all sources, less the
portion thereof used to pay or establish reserves for Company expenses, debt payments (including
payments on Member Loans), capital improvements, replacements and contingencies, all as determined
by the Member.
“Person” means any individual, partnership, corporation, limited liability company, trust or
other entity.
“Profits”
and “Losses” mean, for each fiscal year or other period, an amount equal to the
Company’s taxable income or loss for such year or period, determined in accordance with Code
Section 703(a), reduced by any items of income or gain subject to special allocation pursuant to
this Agreement, and otherwise adjusted by the Member to comply with the Regulations.
“Regulations” means the Income Tax Regulations promulgated under the Code, as such regulations
may be amended from time to time (including corresponding provisions of succeeding regulations).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
| ALLIED WASTE NORTH AMERICA, INC., a Delaware corporation |
||||
| By: | /s/ Xx Xxxx Xxxxx | |||
| Xx Xxxx Xxxxx | ||||
| Assistant Secretary | ||||
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EXHIBIT A
| Initial Capital | ||||
| Name and Address of the Member | Contribution | |||
Allied Waste North America, Inc. |
$ | 100.00 | ||
00000 X Xxxxxxxx-Xxxxxx Xxxx |
||||
Xxxxx 000 |
||||
Xxxxxxxxxx, XX 00000 |
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