OPERATING AGREEMENT OF BFI WASTE SERVICES OF MASSACHUSETTS, LLC
Exhibit 3.91
This Operating Agreement (the “Agreement”) of BFI Waste Services of
Massachusetts, LLC (the “Company”) is executed as of March 16, 2001, by
Xxxxxxxx-Xxxxxx Industries, Inc. a Massachusetts corporation, the sole member
of the Company (the “Member”), and shall bind the Member, the Company, and any
other person who may acquire any interest in the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this
Agreement and not otherwise defined shall have the meanings set forth in
Section 7.6.
1.2 Formation. The Company has been formed 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 Organization.
1.3 Name. The name of the Company is BFI Waste Services of
Massachusetts, LLC. All business of the Company shall be conducted in the
Company name. The Company shall hold its property in the name of the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in
and conduct the business of non-hazardous solid waste management, and to engage
in any other activity permitted under Massachusetts law and the laws of any
jurisdiction in which the Company may do business.
1.5 Office. The registered office of the Company within the
Commonwealth of Massachusetts shall be 000 Xxxxxxxxxx Xxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxxx 00000. The registered office may be changed to any other place
within the Commonwealth of Massachusetts 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.
1.6 Registered Agent for Service of Process. The name and address
of the registered agent for service of legal process on the Company in
Massachusetts are CT Corporation System, 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000. The Company’s agent for service of legal process may be
changed upon the consent of the Member.
1.7 Certificate of Organization. The Member shall file any
amendments to the Certificate of Organization deemed necessary by it to reflect
amendments to this Agreement adopted by the Member in accordance with the terms
hereof. Upon the approval of any amendments thereto, by the Member in
accordance with this Agreement, the Member or a designee of the 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 sole Member is set forth
in 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. The Member shall not be obligated to make additional Capital
Contributions to the Company.
2.3 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 the Member may determine. The Member shall not be required to
make a Member Loan unless the Member has agreed to make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, cash and property shall be distributed
periodically to the Member in its sole discretion. No distribution shall be
declared and paid unless, after the distribution is made, the assets of the
Company are in excess of all liabilities of the Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided
otherwise in this Agreement, all decisions and actions concerning the Company
and its affairs, and all matters requiring the consent or approval of the
Member under this Agreement, shall be made within the sole discretion of 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.
4.2 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 this Agreement or in resolutions duly adopted by the Member
on behalf of the Company. The officers of the Company may include a president,
vice presidents, an executive vice president, 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 reasonably determine from time to time. Unless otherwise specified by the
Member, the following officers shall have the authority to engage in the
activities set forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of
the Member, have general supervision of the business of the Company and shall
see that all orders and resolutions of the Member are carried into effect. The
President shall execute all bonds, mortgages, contracts and other instruments
of the Company, except where required or permitted by law to be otherwise
signed and executed and except that the other officers of the Company may sign
and execute documents when so authorized by this Agreement, the Member, or the
President. The President
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shall also perform such other duties and may exercise such other powers as
from time to time may be assigned to him by this Agreement or by the
Member.
4.2.2 Vice Presidents. At the request of the President or in
his absence or in the event of his inability or refusal to act, the
Executive Vice President, if there is one acting, or in the absence of an
Executive Vice President, the Vice President or the Vice Presidents if
there are more than one, shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. Each Vice President shall perform such
other duties and have such other powers as the President from time to time
may prescribe.
4.2.3 Secretary. The Secretary shall see that all books,
reports, statements, certificates and other documents and records required
by law to be kept or filed are properly kept or filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts
of receipts and disbursements in books belonging to the Company and shall
deposit all moneys and other valuable effects in the name and to the
credit of the Company in such depositories as may be designated by the
Member. The Treasurer shall disburse the funds of the Company as may be
ordered by the Member, taking proper vouchers for such disbursements, and
shall render to the President, from time to time, when the Member so
requires, an account of all his transactions as Treasurer and of the
financial condition of the Company. If required by the Member, the
Treasurer shall give the Company a bond in such sum and with such surety
or sureties as shall be satisfactory to the Member for the faithful
performance of the duties of his office and for the restoration to the
Company, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Company.
4.2.5 Assistant Secretaries. Except as may be otherwise
provided in this Agreement, Assistant Secretaries, if there are any, shall
perform such duties and have such powers as from time to time may be
assigned to them by the Member, the President, any Vice President, if
there are any appointed, or the Secretary, and in the absence of the
Secretary or in the event of his disability or refusal to act, shall
perform the duties of the Secretary, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there
are any, shall perform such duties and have such powers as from time to
time may be assigned to them by the Member, the President, any Vice
President, if there are any appointed, or the Treasurer, and in the
absence of the Treasurer or in the event of his disability or refusal to
act, shall perform the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
Treasurer. If required by the Member, an Assistant Treasurer shall give
the Company a bond in such sum and with such surety or sureties as shall
be satisfactory to the Member for the faithful performance of the duties
of his office and for the restoration to the Company, in case of his
death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Company.
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4.2.7 Other Officers. Such other officers as the Member
may choose shall perform such duties and have such powers as from time to
time may be assigned to them by the Member. The Member may delegate to any
officer of the Company the power to choose such other officers and to
prescribe their respective duties and powers.
4.3 Indemnification. The Company, its receiver or its trustee
shall defend, indemnify and save harmless the Member and its officers and any
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.
4.4 Meetings. No annual or special meetings of the Member shall
be required. Any action required or permitted to be taken at any meeting may
be taken without a meeting if written consent setting forth the action to be
taken is signed by the Member.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve
at its office all accounts, books and other relevant Company documents. The
books of account of the Company shall be prepared and maintained on the same
basis and in a manner consistent with the records of the Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the
same as the fiscal year of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained
in a separate account or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to
occur of any of the following events:
(a) The sale of all or substantially all of the Company’s assets and
the collection of the proceeds of such sale;
(b) The election by the Member to dissolve the Company; or
(c) Upon the Member becoming bankrupt or the occurrence of any event
that terminates the membership of the Member in the Company as described in
Chapter 156C, Section 43(4) of the Act.
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(d) The entry of an order of judicial dissolution under Chapter 156C,
Section 44 of the Act.
6.2 Winding Up.
(a) General. Following the dissolution of the Company, 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 in accordance with
Section 6.3 or until a decree dissolving the Company has been entered by a
court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. The Member (or its
authorized successor in interest) shall be responsible for overseeing the
winding up and liquidation of the Company and shall take full account of the
Company’s liabilities and assets upon dissolution. Any assets not required to
discharge any liabilities of the Company shall be distributed to the Member.
Upon the completion of the winding up, liquidation and distribution of the
assets, the Company shall be deemed terminated. The Company shall comply with
any applicable requirements of the Act pertaining to the winding up of the
affairs of the Company and the final distribution of its assets.
6.3 Certificate of Cancellation. When all debts, liabilities and
obligations of the Company have been paid and discharged or adequate provisions
have been made therefor and all of the remaining property and assets of the
Company have been distributed to the Member, the Company shall execute and file
a certificate of cancellation with the Office of the Secretary of the State of
the Commonwealth of Massachusetts.
SECTION 7. MISCELLANEOUS
7.1 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.
7.2 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.
7.3 Severability. Every provision of this Agreement is intended
to be severable. If any term or provision 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.
7.4 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.
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7.5 Governing Law. The laws of the Commonwealth of Massachusetts shall govern
the validity of this Agreement, the construction of its terms and the interpretation of the rights
and duties of the Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
“Act” means the Massachusetts Limited Liability Company Act, as set forth in Chapter
156C, Sections 1 et. seq. of the General Laws of the Commonwealth of Massachusetts, as amended
from time to time (or any corresponding provisions of succeeding law).
“Agreement” means this 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.
“Certificate of Organization” has the meaning given that term in Section 1.7 hereof.
“Capital Contribution” means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
“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.
“Member Loans” has the meaning given that term in Section 2.3 hereof.
“Person” means any individual, partnership, corporation, limited liability company,
trust or other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Agreement is intended
to or shall be for the benefit of any Person not a party hereto, and no such other Person shall
have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first
above written.
| Xxxxxxxx-Xxxxxx Industries, Inc., a Massachusetts corporation |
||||
| By: | /s/ Xx Xxxx Xxxxx | |||
| Xx Xxxx Xxxxx, Secretary | ||||
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EXHIBIT
A
| Initial Capital | Percentage | |||||||
| Name and Address of Member | Contribution | Interest | ||||||
Xxxxxxxx-Xxxxxx Industries, Inc. 00000 X. Xxxxx xxx Hay den Xxxx Xxxxx 000 Xxxxxxxxxx, Xxxxxxx 00000 |
$ | 100.00 | 100 | % | ||||
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Admission of Substituted Member
Reference is made to the Operating Agreement of BFI Waste Services
of Massachusetts, LLC, a Massachusetts limited liability company (the
“Company”), dated as of March 16, 2001 (the “Agreement”), by
Xxxxxxxx-Xxxxxx Industries, Inc., a Massachusetts corporation (“Original
Member”). On the date hereof, Original Member transferred its member
interest in the Company to its parent corporation, Xxxxxxxx-Xxxxxx
Industries, Inc., a Delaware corporation (“Parent Company”). The Parent
Company then transferred its member interest in the Company to its parent
corporation, Allied Waste North America, Inc., a Delaware corporation
(the “Substituted Member”).
The Substituted Member hereby becomes a party to the Agreement and
hereby accepts and assumes all rights and obligations of the Original
Member.
Dated: April 1, 2001.
| XXXXXXXX-XXXXXX INDUSTRIES, INC. |
||||
| By: | /s/ Xx Xxxx Xxxxx | |||
| Name: | Xx Xxxx Xxxxx | |||
| Title: | Secretary | |||
Acknowledged and agreed:
ALLIED WASTE NORTH AMERICA, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Operations
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Operations
