OPERATING AGREEMENT OF ELLIS SCOTT LANDFILL MO, LLC
Exhibit 3.472
OPERATING AGREEMENT OF
XXXXX XXXXX LANDFILL MO, LLC
XXXXX XXXXX LANDFILL MO, LLC
This Operating Agreement is entered into as of June 5, 1997 by and between Allied Waste North
America, Inc., a Delaware corporation (“N.A.”) and Allied Waste Landfill Holdings, Inc., a
Delaware corporation (“Holdings”), each individually referred to herein as a “Member,” and
collectively as “Members.”
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 9.12 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 XXXXX XXXXX LANDFILL MO, LLC. The name of the
Company may be changed upon the consent of the Members.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of owning and operating landfills, and to engage in any other activity permitted under
Delaware law and the laws of any jurisdiction in which the Company may do business.
1.5 Intent. It is the intent of the Members that the Company shall always be operated
in a manner consistent with its treatment as a “partnership” for federal and state income tax
purposes. It also is the intent of the Members that the Company not be operated or treated as a
“partnership” for purposes of Section 303 of the federal Bankruptcy Code. No Member shall take any
action inconsistent with the express intent of the parties hereto.
1.6 Office. The registered office of the Company within the State of Delaware shall be
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of New Castle. The registered
office may be changed to any other place within the State of Delaware upon the consent of the
Members. The Company may maintain a registered office in any state within which it does business at
any location approved by the Members.
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 Delaware are The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx. The Company’s agent for service
of legal process may be changed upon the consent of the Members.
1.8 Term. The term of the Company shall commence on the date the Certification of
Formation is filed in Delaware, and shall continue in perpetuity until the Company is dissolved as
set forth in this Agreement.
1.9 Certificate of Formation. The Members shall cause a Certificate of Formation to
be filed in the State of Delaware. The Members shall file any amendments to the Certificate of
Formation deemed necessary by them to reflect amendments to this Agreement adopted by the Members
in accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Members in accordance with this Agreement, any Member or a designee of
a Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Members. The name, address and Percentage Interest of each Member are set forth on
Exhibit A to this Agreement.
2.2 Contributions of Members. The Members shall contribute to the Company the cash or
other assets set forth in Exhibit A to this Agreement. In conjunction with such contributions, each
Member shall receive a credit to its Capital Account equal to its Capital Contribution and a
Percentage Interest in the Company as set forth on Exhibit A.
2.3 Additional Capital Contributions. No Member shall be obligated to make additional
Capital Contributions to the Company, except upon the unanimous written consent of the Members.
2.4 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no Member shall
withdraw any Capital Contributions or any money or other property from the Company without the
written consent of the other Member. Under circumstances requiring a return of any Capital
Contributions, no Member shall have the right to receive property other than cash, unless otherwise
specifically agreed in writing by the Members at the time of such distribution.
(b) Liability of Members. No Member shall be liable for the debts, liabilities,
contracts or any other obligations of the Company. Except as agreed upon by the Members, and except
as otherwise provided by the Act or by any other applicable state law, the Members shall be liable
only to make their 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. No Member shall have
any personal liability for the repayment of the Capital Contributions or loans of any other Member.
(c) 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 any Member to solicit or demand Capital Contributions from any other Member.
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(d) Withdrawal. Except as provided in Section 7 hereof, no Member may voluntarily or
involuntarily withdraw from the Company or terminate its interest therein without the prior
written consent of the other Member. Any Member who withdraws from the Company in breach of this
Section 2.4(d):
(i) shall be treated as an assignee of a Member’s interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Company or to
exercise any rights of a Member under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Company, on the same
basis as if the Member had not withdrawn, provided that any damages to the Company as a result of
such withdrawal shall be offset against amounts that would otherwise be distributed to such
Member. The right to share in distributions granted under this Section 2.4(d) shall be in lieu of
any right the withdrawn member may have under Section 18-604 of the Act to receive a distribution
or payment of the fair value of its interest in the Company.
2.5 Member Loans. Upon the approval of the Members, any 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 Members. No Member shall be required to make a Member
Loan unless such Member has agreed to make such Member Loan.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 8 hereof, Net Cash Flow, if any, shall be distributed
to the Members in proportion to their Percentage Interests, at such times as may be determined by
the Members.
SECTION 4. ALLOCATIONS
4.1 Capital Accounts. A capital account shall be maintained for each Member in
accordance with the Regulations, under uniform policies established by the Members.
4.2 Profits and Losses. Unless otherwise required by Code Sections 704(b), 704(c) or
Treasury Regulations promulgated thereunder, all Profits, Losses and items thereof for each fiscal
year of the Partnership shall be allocated to the Partners in proportion to their Percentage
Interests.
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SECTION 5. MANAGEMENT
5.1 General Management Structure. Unless specifically provided otherwise herein, all
decisions and actions concerning the Company and its affairs, and all matters requiring the consent
or approval of the Members under this Agreement, shall be made or taken upon concurrence of a
Majority in Interest of the Members. The Members shall devote such time and effort as is necessary
for the management of the Company and the conduct of its business, but shall not be required to
devote their full time efforts to the Company. Any party dealing with the Company shall be
permitted to rely absolutely on the signature of any Member as binding on the Company, without any
duty of further inquiry regarding any approval of the Members required under this Agreement.
5.2 Delegation of Authority to Officers. The Members 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 duly adopted by the Members 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 Members deem appropriate. The officers of the Company
will be entitled to such compensation for their services as the Members may reasonably determine
from time to time.
5.3 Communications. The Members shall promptly advise and inform each other of any
transaction, notice, event or proposal directly relating to the management and operation of the
Company or to its assets which does or could materially affect, either adversely or favorably, the
Company, its business or its assets.
5.4 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Members and their officers and directors (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
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. Each Member shall have the right, during
ordinary business hours, to inspect and copy such Company documents.
6.2 Tax Matters. N.A. is hereby appointed on behalf of the Company as the “tax matters
partner” under the Code.
SECTION 7. TRANSFER OF COMPANY INTERESTS; NEW MEMBERS
7.1 General. No Member shall sell, assign, pledge, hypothecate, encumber or
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otherwise voluntarily transfer by any means whatever (“Transfer”) all or any portion of its
interest in the Company without the consent of the other Member. A transferee of a Member’s
interest in the Company will be admitted as a Substituted Member only pursuant to Section 7.3
hereof. Any purported Transfer which does not comply with the provisions of this Section 7 shall
be void and shall not cause or constitute a dissolution of the Company.
7.2 Assignee of Member’s Interest. If, pursuant to a Transfer of an interest in the
Company by operation of law and without violation of Section 7.1 hereof (or pursuant to a Transfer
that the Company is required to recognize notwithstanding any contrary provisions of this
Agreement), a Person acquires an interest in the Company, but is not admitted as a Substituted
Member pursuant to Section 7.3 hereof, such Person:
(a) shall be treated as an assignee of a Member’s interest, as provided in the Act;
(b) shall have no right to participate in the business and affairs of the Company or to
exercise any rights of a Member under this Agreement or the Act; and
(c) shall share in distributions and allocations from the Company with respect to the
transferred interest, on the same basis as the transferring Member.
7.3 Substituted Members. No Person taking or acquiring, by whatever means, the
interest of any Member in the Company shall be admitted as a substituted Member in the Company (a
“Substituted Member”) without the written consent of all Members, which consent may be withheld or
granted in the sole and absolute discretion of each Member.
SECTION 8. DISSOLUTION AND TERMINATION
8.1 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 unanimous election by the Members to dissolve the Company;
(c) The death, retirement, resignation, expulsion, bankruptcy or dissolution of any member (a
“Dissolution Event”) if within 90 days after the occurrence of any such Dissolution Event, a
Majority in Interest of the remaining Members affirmatively elects not to continue the Company; or
(d) The entry of a decree of dissolution under Section 18-802 of the Act.
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8.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in Section 8.1
hereof, the remaining Member(s) may participate in the winding up of the Company as provided in
Section 18-803 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 Delaware 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
remaining Member(s), or court-appointed trustee, if there are no remaining Members, 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 therefor, 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 Members who are creditors, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Members in satisfaction of any Member Loans which have not been satisfied
pursuant to Section 8.2(b)(i); and
(iii) To the Members in accordance with Section 3.
Notwithstanding anything in Section 4 hereof to the contrary, any Profits, Losses and items
thereof of the Company for the taxable year in which the liquidation of the Company occurs shall
be allocated among the Members so as to adjust the Capital Accounts of the Members as closely as
possible to distributions of such liquidation proceeds pursuant to the priorities set forth in
this Section 8.
8.3 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 Members, a certificate of
cancellation shall be executed and filed by the Members with the Delaware Secretary of State.
SECTION 9. MISCELLANEOUS
9.1 Notices. Any notice, payment, demand or communication required or permitted
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to be given by any provision of this Agreement shall be in writing and shall be delivered
personally to the Person to whom the same is directed, or sent by facsimile transmission, or by
registered or certified mail, return receipt requested, addressed as follows: if to the Company,
to the Company at the address set forth in Section 1.6 hereof, or to such other address as the
Company may from time to time specify by notice to the Members in accordance with this Section
9.1, or, if to a Member, to such Member at the address for such Member set forth on Exhibit A to
this Agreement, or to such other address as the Member may from time to time specify by notice to
the Company and the other Members in accordance with this Section 9.1. Any such notice shall be
effective upon actual receipt thereof.
9.2 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 Members
and their respective heirs, legatees, legal representatives, successors, transferees and assigns;
provided that this Section 9.2 shall not be deemed (a) to authorize any Transfer not otherwise
permitted under this Agreement, (b) to confer upon the assignee of a Member’s interest any rights
not specifically granted under this Agreement, or (c) to supersede or modify in any manner any
provision of Section 7 hereof.
9.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Member.
9.4 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.
9.5 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.
9.6 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.
9.7 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.
9.8 Delaware Law. The laws of the State of Delaware shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Members.
9.9 Waiver of Action for Partition. Each of the Members waives any right that it may
have to maintain any action for partition with respect to any of the Company’s property.
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9.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Members had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
9.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement, all
actions which any Member may take and all determinations which any Member may make pursuant to this
Agreement may be taken and made at the sole and absolute discretion of such Member.
9.12 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
“Act” means the Delaware Limited Liability Company Act, as set forth in Del. Code Xxx. Tit.
6, § 18-101, 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 Account” means the capital account maintained for each Member in accordance
with Section 4.1 hereof.
“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).
“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.
“Majority in Interest of the Members” means Members owning a simple majority of the
Percentage Interests in the Company held by all Members.
“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. “Members” refers collectively to all
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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
reasonably determined by the Members.
“Percentage Interest” means a Member’s interest, expressed as a percentage, in
Profits, Losses, and distributions of the Company as provided for in this Agreement. The Members’
Percentage Interests are set forth opposite their names on Exhibit A hereto.
“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 Members 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).
“Substituted Member” has the meaning given that term in Section 7.3 hereof.
“Transfer” has the meaning given that term in Section 7.1 hereof.
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/ Xxxxxx X. Xxxx | |||
| Its: | V. P. Legal | |||
| Allied Waste Landfill Holdings, Inc., a Delaware corporation |
||||
| By: | /s/ Xxxxxx X. Xxxx | |||
| Its: | Secretary | |||
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EXHIBIT A
| Initial Capital | Percentage | |||||||
| Names and Addresses of Members | Contribution | Interest | ||||||
Allied Waste North America, Inc. |
$ | 99 | % | |||||
00000 Xxxxx Xxxxxxxx Xxxxxx Xxxx |
||||||||
Xxxxx 000 |
||||||||
Xxxxxxxxxx, Xxxxxxx 00000 |
||||||||
Allied Waste Landfill Holdings, Inc. |
$ | 1 | % | |||||
00000 Xxxxx Xxxxxxxx Xxxxxx Xxxx |
||||||||
Xxxxx 000 |
||||||||
Xxxxxxxxxx, Xxxxxxx 00000 |
||||||||
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