Contract
Exhibit
7.15
|
OF
XXXXXX
HOLDCO GP, LLC
(a
Delaware limited liability company)
__________________________________
Dated
as of December 17, 2007
__________________________________
|
This
LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”)
of Xxxxxx HoldCo GP, LLC (the “Company”), dated as of
December 17, 2007, is made by each of the individuals or entities executing
this
Agreement or joined to this Agreement from time to time hereafter.
ARTICLE
I
Organization
1.1 Formation;
Term. The Company has been formed by an authorized person
pursuant to and in accordance with the provisions of the Delaware Limited
Liability Company Act (as it may be amended from time to time, the
“Act”). The authorized person filed, on
behalf of the Company, a certificate of formation
(“Certificate”) conforming to the Act in the office of
the Secretary of State of the State of Delaware. The term of the
Company began upon the filing of the Certificate and shall continue until
a
certificate of cancellation of the Company has been filed with the Secretary
of
State of Delaware in accordance with the Act.
1.2 Name. The
name of the Company is Xxxxxx HoldCo GP, LLC. The Members (as defined
below) may change the name of the Company from time to time. In any
such event, the Members shall promptly file or caused to be filed in the
office
of the Secretary of State of the State of Delaware an amendment to the
Certificate reflecting such change of name.
1.3 Purpose. The
Company is formed for the object and purpose of, and the nature of the business
to be conducted and promoted by the Company is engaging in any lawful act
or
activity for which limited liability companies may be formed under the Act
and
engaging in any and all activities necessary or incidental to the
foregoing.
1.4 Registered
Office and Agent. The Company’s initial registered agent and the
address of its initial registered office in the State of Delaware is Corporation
Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000. The initial principal place of business of the
Company is located at c/o Macquarie Infrastructure Partners Inc., 000 Xxxx
00xx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx
Xxxxxx. The Members may change such registered office, registered
agent or principal place of business from time to time. The Company
may from time to time have such other place or places of business within
or
outside the State of Delaware as may be determined by the Members.
1.5 Fiscal
Year. The fiscal year of the Company shall end on December 31 of
each calendar year unless, for United States federal income tax purposes,
another fiscal year is required. The Company shall have the same
fiscal year for United States federal income tax purposes and for accounting
purposes.
ARTICLE
II
Capital
Contributions
2.1 Capital
Contributions. The members of the Company (the
“Members”) and the initial contribution and membership
interest (“Membership Interest”) of each Member are
set forth on Schedule A hereto. The Members are not required to make
any additional capital contributions to the Company. The capital
contribution commitments of the Members (whether now or hereafter made) are
solely for the benefit of the Members, as among themselves, and may not be
enforced by any creditor, receiver, or trustee of the Company or by any other
person.
2.2 No
Interest. The Members shall not be entitled to interest on their
capital contributions, and any interest actually received by reason of
investment of any part of the Company's funds shall be included in the Company's
property.
2.3 Member
Loans. If the Company shall have insufficient cash to pay its
obligations, the Members may advance such funds to the Company on such terms
and
conditions as the Members may determine. Each such advance shall
constitute a loan from such Member to the Company and shall not constitute
a
capital contribution.
ARTICLE
III
Rights
and Obligations of the Members; Members
3.1 Management. In
accordance with Section 18-402 of the Act, management of the Company shall
be
vested in the Members. Subject to Section 7.4, a majority in interest
of the Members as calculated by Membership Interest shall have (i) the power
to
do any and all acts necessary, convenient or incidental to or for the
furtherance of the purposes described herein, including all powers, statutory
or
otherwise, possessed by members of a limited liability company under the
laws of
the State of Delaware, and (ii) the authority to bind the Company.
3.2 Subject
to the rights and powers of the Members and the limitations thereon contained
herein, the Members may delegate to any person any or all of their powers,
rights and obligations under this Agreement and may appoint, contract or
otherwise deal with any person to perform any acts or services for the Company
as the Members may reasonably determine.
3.3 Action
by Written Consent . Subject to Section 7.4, any matter required
or permitted to be decided at any meeting of the Members may be taken without
a
meeting, without prior notice and without a vote, if a consent or consents
is
signed in writing setting forth the matter so decided shall be delivered
to the
Company. Subject to Section 7.4, written consent shall be effective
to take the action referred to therein on the date as of which the Company
has
received, in accordance with this Section 3.3, a written consent signed by
a majority in interest of the Members as calculated by Membership
Interest.
3.4 Liability
of the Members. Except as otherwise required by the Act, the
debts, obligations, and liabilities of the Company, whether arising in contract,
tort, or otherwise, shall be the debts, obligations, and liabilities solely
of
the Company, and the Members shall not be obligated personally for any of
such
debts, obligations, or liabilities solely by reason of being a
Member.
3.5 Officers. The
Members may (i) elect one or more officers of the Company with such titles
as the Members may deem necessary, appropriate, or desirable, and
(ii) delegate any or all of its rights, powers, and authority to one or
more of such officers as the Members may from time to time
determine.
3.6 Reimbursement
of Expenses. The Company shall promptly reimburse the Members and
their affiliates for all reasonable costs and other obligations paid or incurred
by them on behalf of the Company.
ARTICLE
IV
Exculpation
and Indemnification
4.1 Exculpation
and Indemnification.
(a)
No present or former Member, officer, or any direct or indirect officer,
director, stockholder, Affiliate or partner of a Member (each, an
“Indemnitee”), shall be liable, responsible or
accountable in damages or otherwise to the Company or to any Member, for
any act
or failure to act by such Indemnitee in connection with the conduct of the
business of the Company, or by any other such Indemnitee in performing or
participating in the performance of the obligations of the Company, in each
case
in such Indemnitee’s capacity as a Member, officer of the Company or any
officer, director, stockholder, Affiliate or partner of a Member, so long
as
such Indemnitee acted in the good faith belief that such action or failure
to
act was in the best interests, or not opposed to the best interests, of the
Company and/or its subsidiaries and such action or failure to act was not
in
violation of this Agreement and did not constitute gross negligence or willful
misconduct. The provisions of this Section 4.1(a) are intended by the
parties to apply even if such provisions have the effect of exculpating the
Indemnitee from legal responsibility for the consequences of such Indemnitee’s
own simple, full, partial or concurrent negligence. Except as
otherwise required by the Act, no person who is a Member, an officer, or
any
combination of the foregoing, shall be personally liable under any judgment
of a
court, or in any other manner, for any debt, obligation, or liability of
the
Company, whether that liability or obligation arises in contract, tort, or
otherwise, solely by reason of being a Member, officer or any combination
of the
foregoing. Any duties (including fiduciary duties) of an Indemnitee
to the Company or to any other Indemnitee that would otherwise apply at law
or
in equity are hereby eliminated to the fullest extent permitted under the
Act
and any other applicable law, provided that (i) the foregoing shall not
eliminate the obligation of each Indemnitee to act in compliance with the
express terms of this Agreement and (ii) the foregoing shall not be deemed
to
eliminate the implied contractual covenant of good faith and fair
dealing. Notwithstanding anything to the contrary contained in this
Agreement, each of the Members hereby acknowledges and agrees that each Member,
in determining whether or not to vote in support of or against any particular
decision for which the Members’ consent is required, may act in and consider the
best interest of the Member and shall not be required to act in or consider
the
best interests of the Company, any subsidiary of the Company or any other
Members.
(b) The
Company shall indemnify and hold harmless each Indemnitee to the fullest
extent
permitted by law, so long as such Indemnitee acted in the good faith belief
that
such action or failure to act was in the best interests, or not opposed to
the
best interests, of the Company and/or its subsidiaries and such action or
failure to act was not in violation of this Agreement and did not constitute
gross negligence or willful misconduct, against losses, damages, liabilities,
costs or expenses (including reasonable attorneys’ fees and expenses and amounts
paid in settlement) incurred by any such Indemnitee in connection with any
action, suit or proceeding to which such Indemnitee may be made a party or
otherwise involved or with which it shall be threatened by reason of its
being a
Member, Officer, or any direct or indirect officer, director, stockholder
or
partner of a Member, or while acting as (or on behalf of) a Member on behalf
of
the Company or in the Company’s interest. Such attorneys’ fees and
expenses shall be paid by the Company as they are incurred upon receipt,
in each
case, of an undertaking by or on behalf of the Indemnitee to repay such amounts
if it is ultimately determined that such Indemnitee is not entitled to
indemnification with respect thereto.
(c) The
right
of an Indemnitee to indemnification hereunder shall not be exclusive of any
other right or remedy that a Member or Officer may have pursuant to applicable
law or this Agreement.
(d) An
Indemnitee shall be fully protected in relying in good faith upon the records
of
the Company and upon such information, opinions, reports or statements presented
to the Company by any Person as to matters the Indemnitee reasonably believes
are within such other person’s professional or expert competence and who has
been selected with reasonable care by or on behalf of the Company, including
information, opinions, reports or statements as to the value and amount of
the
assets, liabilities, or any other facts pertinent to the existence and amount
of
assets from which distributions to the Member might properly be
paid.
(e) The
provisions of this Agreement, to the extent that they restrict or eliminate
the
duties and liabilities of an Indemnitee to the Company or its Members otherwise
existing at law or in equity, are agreed by the Members to replace such other
duties and liabilities of such Indemnitee.
(f)
The
satisfaction of any indemnification or expense advancement obligation pursuant
to this 4.1 shall be from and limited to the assets (including insurance)
of the
Company, and no Member, in such capacity, shall be subject to personal liability
therefor.
(g) The
foregoing provisions of this 4.1 shall survive any termination of this
Agreement, and to the extent the provisions are amended or repealed on a
future
date, Indemnitees shall be fully protected under this 4.1 to the extent the
Indemnitees’ liability arose prior to such amendment or repeal.
ARTICLE
V
Distributions
5.1 Distributions. Distributions
shall be made in accordance with the Interim Investors Agreement and Section
6.2
hereof.
ARTICLE
VI
Dissolution
and Termination
6.1 Dissolution. The
Company shall be dissolved upon the first to occur of the following events:
(i) the election of the Members to dissolve the Company at any time; or
(ii) the entry of a decree of judicial dissolution under
Section 18-802 of the Act. Upon dissolution, the Company shall
cease carrying on its business but shall not terminate until the winding
up of
the affairs of the Company is completed, the assets of the Company shall
have
been distributed as provided below and a certificate of cancellation of the
Company has been filed with the Secretary of State of Delaware in accordance
with the Act.
6.2 Liquidation. Upon
dissolution of the Company, sole and plenary authority to effectuate the
liquidation of the assets of the Company shall be vested in the Members,
which
shall have full power and authority, in the name of, and for and on behalf
of
the Company, to (i) prosecute and defend actions, suits and proceedings,
whether civil, criminal or administrative, (ii) gradually settle and close
the Company's operations, business and affairs, (iii) dispose of and convey
the Company's assets and property, (iv) discharge or make reasonable
provision for the Company's liabilities, and (v) distribute any remaining
assets to the Members. Upon the liquidation of the Company, the
assets shall be distributed in the following order of
priority: (i) first, to the creditors of the Company (including
any of the Members if it is a creditor), in the order of priority provided
by
law, in satisfaction of all liabilities and obligations of the Company (of
any
nature whatsoever, including, fixed or contingent, matured or unmatured,
legal
or equitable, secured or unsecured), whether by payment or the making of
reasonable provision for payment thereof; and (ii) thereafter, to the
Members in accordance with the terms of the Interim Investors
Agreement.
6.3 Termination. The
liquidation and winding up of the Company shall be completed when all of
its
debts, liabilities, and obligations have been paid and discharged or reasonably
adequate provision therefor has been made, and all of the remaining assets
and
properties of the Company have been distributed to the Members. Upon
the completion of the liquidation and winding up of the Company, a certificate
of cancellation of the Company shall be filed with the Secretary of State
of
Delaware and the legal existence of the Company shall terminate.
6.4 No
Negative Capital Account Obligation. Notwithstanding any other
provision of this Agreement to the contrary, in no event shall a Member if
it
has a negative capital account upon final distribution of all cash and other
property of the Company be required to restore such negative capital account
to
zero.
6.5 No
Other Cause of Dissolution. The Company shall not be dissolved,
or its legal existence terminated, for any reason whatsoever except as expressly
provided in this Article VI.
ARTICLE
VII
Miscellaneous
7.1 Amendment. No
change, modification, or amendment of this Agreement shall be valid or binding
unless such change, modification, or amendment shall be in writing and duly
executed by Members holdings at least 87% of the Membership
Interests.
7.2 Assignment. A
Member may sell, assign, or otherwise transfer all or any portion of its
interest in the Company only with the approval of the Members, except that
MIP
Waste Holdings L.P. and GS Direct, LLC may sell, assign or otherwise transfer
in
its sole discretion, all or any of its interest in the Company to Macquarie
Group Limited or Xxxxxxx, Xxxxx & Co., as applicable, and its subsidiaries
and affiliates and funds managed by Macquarie Group Limited or Xxxxxxx, Sachs
& Co., as applicable, and its subsidiaries and affiliates. Upon
any such transfer, the transferee shall succeed to the rights and obligations
of
the Member in respect of the interest in the Company so transferred and,
with
the prior written consent of a majority in interest of the Members, shall
become
a member of the Company in respect of such interest. Upon such
transfer of a Member's entire interest in the Company, such transferring
Member
shall be entitled to be deemed to have automatically resigned and withdrawn
as a
Member of the Company without any further action on the part of any Member
or
other person.
7.3 Entire
Agreement. Subject to Section 7.4, this Agreement constitutes the
entire agreement of the Members in respect of the subject matter hereof and
supersedes any prior agreement or understanding in respect of such subject
matter. All duties and liabilities (fiduciary and otherwise) of the
Members and its affiliates are restricted to those expressly stated in this
Agreement.
7.4 Interim
Investors Agreement. Notwithstanding anything to the contrary in
this Agreement, all matters addressed in the Interim Investors Agreement
shall
be governed in accordance with the terms of the Interim Investors Agreement,
and
in the event of any inconsistency between the terms of this Agreement and
the
terms of the Interim Investors Agreement, the terms of the Interim Investors
Agreement shall govern.
7.5 Severability. If
any provision of this Agreement, or the application of such provision to
any
person or circumstance, shall be held invalid under the applicable law of
any
jurisdiction, the remainder of this Agreement or the application of such
provision to other persons or circumstances or in other jurisdictions shall
not
be affected thereby. Also, if any provision of this Agreement is
invalid or unenforceable under any applicable law, then such provision shall
be
deemed inoperative to the extent that it may conflict therewith and shall
be
deemed modified to conform with such law. Any provision hereof that
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision hereof.
7.6 Governing
Law. This Agreement, and all claims or causes of action (whether
at law, in equity, in contract, in tort or otherwise) that may be based upon,
arise out of or relate to this Agreement or the negotiation, execution or
performance hereof, shall be governed by and construed in accordance with
the
laws of the State of Delaware, without giving effect to any choice or conflict
of law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware. Any dispute, claim or controversy
arising out of or relating to this Agreement, including the determination
of the
scope or applicability of this agreement to arbitrate, shall be finally
determined by arbitration in North Carolina before a single arbitrator (the
“Sole Arbitrator”). The arbitration shall
be administered by the American Arbitration Association pursuant to its
Commercial Arbitration Rules of the AAA (the
“Rules”). Judgment on any award may be
entered in any court having jurisdiction, and shall include injunctive or
other
equitable relief to the extent awarded by the Sole Arbitrator. If the
Sole Arbitrator determines that a frivolous claim or defense was asserted
by a
party, the Sole Arbitrator shall, in the award, direct that such party pay
the
costs of the arbitration, including the fees of the arbitrator and the
reasonable attorneys' fees of the other party, that are attributable to the
disposition of such frivolous claim or defense. This Section 7.6
shall not preclude parties from seeking provisional remedies in aid of
arbitration from a North Carolina state court or federal court sitting in
North
Carolina, including but not limited to temporary restraining orders and
preliminary injunctions pending the award of the Sole Arbitrator.
7.7 Exercise
of Rights and Remedies. No delay of or omission in the exercise
of any right, power or remedy accruing to any party as a result of any breach
or
default by any other party under this Agreement shall impair any such right,
power or remedy, nor shall it be construed as a waiver of or acquiescence
in any
such breach or default, or of any similar breach or default occurring later;
nor
shall any such delay, omission nor waiver of any single breach or default
be
deemed a waiver of any other breach or default occurring before or after
that
waiver.
7.8 Successors
and Assigns. This Agreement shall be binding upon and inure to
the benefit of the Members and their successors and assigns.
7.9 Headings. The
section and article headings in this Agreement are for convenience of reference
only and shall not be deemed to alter or affect the meaning or interpretation
of
any provision hereof.
7.10
Other
Terms. All references to “Articles” and “Sections” contained in
this Agreement are, unless specifically indicated otherwise, references to
Articles and Sections of this Agreement. Whenever in this Agreement
the singular number is used, the same shall include the plural where appropriate
(and vice versa), and words of any gender shall include each other gender
where
appropriate. As used in this Agreement, the following words or
phrases shall have the meanings indicated: (i) “or” means “and/or”;
(ii) “day” means a calendar day; (iii) “include”,
“including”, or their derivatives means “including without limitation”;
(iv) “laws” means statutes, regulations, rules, judicial orders, and
other legal pronouncements having the effect of law; and
(v) “person” means any individual, corporation, general or limited
partnership, limited liability company, joint venture, trust, unincorporated
association, or other form of business or legal entity or governmental
entity.
*
* * *
*
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the undersigned has entered into this Agreement as of the
date
first written above.
|
XXXXXX
HOLDCO GP, LLC
|
|||
|
By:
|
/s/
Xxx X. Xxxxx
|
||
|
Name:
Xxx X. Xxxxx
|
|||
|
Title:
Vice President
|
|||
|
MIP
WASTE HOLDINGS, L.P., by its General Partner, MIP Waste GP
LLC
|
|||
|
By:
|
/s/
Xxxxxxxxxxx Xxxxxx
|
||
|
Name:
Xxxxxxxxxxx Xxxxxx
|
|||
|
Title:
President
|
|||
|
By:
|
/s/
Xxxx Xxxx
|
||
|
Name:
Xxxx Xxxx
|
|||
|
Title:
Treasurer
|
|||
|
GS
DIRECT, LLC
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxxxxxx
|
||
|
Name:
Xxxxxx X. Xxxxxxxxx
|
|||
|
Title:
Managing Director
|
|||
|
/s/
Xxxxxx X. Xxxxx, Xx.
|
|||
|
Xxxxxx
X. Xxxxx, Xx.
|
|||
|
/s/
Xxxxxx X. Xxxxx, III
|
|||
|
Xxxxxx
X. Xxxxx, III
|
|||
|
/s/
Xxxxx X. Xxxxx
|
|||
|
Xxxxx
X. Xxxxx
|
|||
|
/s/
Xxx X. Xxxxx
|
|||
|
Xxx
X. Xxxxx
|
|
XXXXXX
X. XXXXX, III IRREVOCABLE TRUST (TAILWALKER
TRUST)
|
|||
|
By:
|
/s/
Xxxxx X. Xxxxx
|
||
|
Name:
Xxxxx X. Xxxxx
|
|||
|
Title:
Trustee
|
|||
|
XXXXXX
X. XXXXX, III IRREVOCABLE TRUST (TAILWALKER NON-GST
TRUST)
|
|||
|
By:
|
/s/
Xxxxx X. Xxxxx
|
||
|
Name:
Xxxxx X. Xxxxx
|
|||
|
Title:
Trustee
|
|||
|
XXXXXX
X. XXXXX, XX. GRANTOR TRUST DATED MAY 1, 1995
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxx, III
|
||
|
Name:
Xxxxxx X. Xxxxx, III
|
|||
|
Title:
Trustee
|
|||
|
By:
|
/s/
Xxxxx X. Xxxxx
|
||
|
Name:
Xxxxx X. Xxxxx
|
|||
|
Title:
Trustee
|
|||
|
DAMAS
II CHARITABLE REMAINDER UNITRUST U/A/D DECEMBER 13,
2007
|
|||
|
By:
|
/s/
Xxxxxx Xxxx
|
||
|
Name:
Xxxxxx Xxxx
|
|||
|
Title:
Trustee
|
|||
|
PERRY
2007 IRREVOCABLE TRUST U/A/D DECEMBER 13, 2007
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxxxx Xxxxx
|
||
|
Name:
Xxxxxxx Xxxxxxx Perry
|
|||
|
Title:
Trustee
|
|||
