AMENDED AND RESTATED OPERATING AGREEMENT OF EVERGREEN SCAVENGER SERVICE, L.L.C.
Exhibit 3.486
This Amended and Restated Operating Agreement (the “Agreement”) is executed as of November 4,
1998, by Liberty Waste Services Limited, L.L.C., a Delaware limited liability company (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 8.6 hereof.
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 Formation. This Agreement amends and restates in its entirety any previous
operating agreement of the Company.
1.3 Name. The name of the company governed by this Agreement is Evergreen Scavenger
Service, L.L.C. (the “Company”). 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 Delaware 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 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 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 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 Member.
1.8 Term. The term of the Company shall continue in perpetuity until the Company is
dissolved as set forth in this Agreement.
1.9 Certificate of Formation. The Member shall file any amendments to the
Certificate of Formation deemed necessary by it to reflect the provisions of this Agreement or any
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 of the sole Member is set forth in the heading of this
Agreement.
2.2 Contributions of Member. The Member or its predecessor previously contributed
capital to the Company, as reflected in the books and records of the Company.
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, in its sole discretion, 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
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 18-802 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 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 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 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 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 therefor 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 Delaware 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 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 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.
8.5 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
Member.
8.6 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 Amended and Restated 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 1.2 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 governed by this Agreement and any limited
liability company continuing the business of this Company in the event of dissolution as herein
provided.
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“Member” means any Person identified as a Member in the heading to this Agreement, or any
other Person admitted as a Member pursuant to the terms of this Agreement. “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.
Liberty Waste Services Limited, L.L.C.,
a Delaware limited liability company
a Delaware limited liability company
| By: Its: |
/s/ Xxxxxx X. Xxxxxx
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