LIMITED LIABILITY COMPANY AGREEMENT
OF
COVANTA SYSTEMS, LLC
A DELAWARE LIMITED LIABILITY COMPANY
LIMITED LIABILITY COMPANY AGREEMENT of COVANTA SYSTEMS, LLC, a
Delaware limited liability company (the "Company"), dated as of March 4, 2004.
This Limited Liability Company Agreement of Covanta Systems, LLC (the
"Company"), is entered into by Covanta Waste to Energy, LLC, as the sole equity
member (the "Member").
The Member, by execution of this Agreement, hereby forms the Company as
a limited liability company pursuant to and in accordance with the Delaware
Limited Liability Company Act (6 Del. C. ss. 18-101, et seq.), as amended from
time to time (the "Act"), and this Agreement, hereby elects as follows:
ARTICLE I
Introductory Provisions
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1.01. Certain Definitions. As used herein:
"Act" shall have the meaning specified in the recitals to this
Agreement.
"Affiliate" shall mean, with respect to any Person, any other
Person directly or indirectly controlled by, controlling or under common control
with such Person.
"Capital Contribution" shall mean a contribution by the Member
to the capital of the Company pursuant to this Agreement.
"Fiscal Year" shall have the meaning specified in paragraph
4.02.
"Person" shall mean an individual or a corporation,
partnership, trust, limited liability company, unincorporated organization,
joint stock company, joint venture, association or other entity, or any
government, or any agency or political subdivision thereof, whether organized
under the laws of (or, in the case of individuals, resident in) the United
States (or any political subdivision thereof) or any foreign jurisdiction.
"Transfer" shall mean any sale, exchange, transfer, assignment
or other disposition.
1.02. Name; Formation of the Company. The name of the Company
shall be "Covanta Systems, LLC". The Member authorized the execution of and
caused to be filed with the Secretary of State of the State of Delaware the
Certificate of Formation of the Company on March 3, 2004.
1.03. Principal Place of Business. The Company's principal
place of business shall be 00 Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx, 00000, or such
other offices or places of business for the Company as the Member may deem
appropriate.
1.04. Registered Office; Filings. The Company shall maintain a
registered office at the offices of Corporation Service Company, at Corporation
Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, in the County of
New Castle, or at such other location as the Member may from time to time
determine. At the Member's discretion, the Member shall cause to be executed,
filed and published all such certificates, notices, statements or other
instruments required under the laws of any jurisdiction, including with respect
to the qualification of the Company as a foreign limited liability company under
the laws of any other state.
1.05. Purposes. 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.
1.06. Duration. The Company was formed upon the filing of a
Certificate of Formation with the Secretary of State of the State of Delaware
pursuant to the Act. The term of the Company shall be perpetual unless the
Company is dissolved pursuant to paragraph 6.01 herein.
1.07. Limitation of Liability. The liability of the Member and
each employee of the Company to third parties for obligations of the Company
shall be limited to the fullest extent provided in the Act and other applicable
law.
ARTICLE II
Capital Contributions; Distributions; Transfers
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2.01. Capital Contributions. The Member will make Capital
Contributions as necessary and at such times as the Member elects.
2.02. Withdrawal of Capital; Limitation on Distributions. The
Member shall be entitled to withdraw any part of its Capital Contributions to,
or to receive any distributions from, the Company to the fullest extent
permitted by law. The Member shall not be entitled to demand or receive (i)
interest on its Capital Contributions or (ii) any property from the Company
other than cash (except as provided in paragraph 6.02).
2.03. Restrictions on Transfers. No Transfer by any Member of
all or any portion of its interest in the Company shall be effective until the
Person to whom the interest is to be transferred has agreed to become bound by
the provisions of this Agreement.
ARTICLE III
Management
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3.01. Management by the Member.
(a) Qualification of Office. The business and affairs
of the Company shall be carried on and managed by, or under the direction of,
the Member.
(b) Duties. The Member shall perform its duties in
good faith in a manner it reasonably believes to be in the best interest of the
Company and with such care as an ordinarily prudent person in a like position
would use under similar circumstances.
(c) Powers. The Member shall have the full right and
authority to take all actions that it deems necessary, useful or appropriate for
the management and conduct of the Company's business. The Member may exercise
all powers of the Company. All instruments, contracts, agreements and documents
of whatsoever type executed on behalf of the Company shall be executed in the
name of the Company by the Member. The Member, or any Person designated by the
Member, shall be an authorized person for purposes of executing and filing any
certificates relating to the Company with the Secretary of State of the State of
Delaware pursuant to the Act.
3.02. Officers.
(a) The Member may, from time to time, designate one or more
persons to be officers of the Company. No officer need be a resident of the
State of Delaware. Any officers so designated shall have such authority and
perform such duties as the Member may, from time to time, delegate to them. The
Member may assign titles to particular officers. Unless the Member decides
otherwise, if the title is one commonly used for officers of a business
corporation formed under the General Corporation Law of the State of Delaware,
the assignment of such title shall constitute the delegation to such officer of
the authority and duties that are normally associated with that office, subject
to any restrictions on such authority imposed by the Member. The same person may
hold any number of offices.
(b) Each officer shall hold office until his or her successor
shall be duly designated and qualified or until his or her death or until he or
she shall resign or shall have been removed in the manner hereinafter provided.
(c) Any officer may resign as such at any time. Such
resignation shall be made in writing and shall take effect at the time specified
therein, or if no time be specified, at the time of its receipt by the Member.
The acceptance of a resignation shall not be necessary to make it effective,
unless expressly so provided in the resignation.
(d) Any officer may be removed as such, either with or without
cause, by the Member whenever in its judgment the best interests of the Company
will be served thereby. The Member may fill any vacancy occurring in any office
of the Company.
3.03. Admission of New Members. New or additional members may
be admitted to the Company by the Member by the execution on the part of the
Person or Persons being so admitted of a counterpart or counterparts of this
Agreement and any other instrument or instruments required by the Member
evidencing the agreement of the Persons or Persons so admitted to be bound by
the provisions of this Agreement. In the event of the admission of new or
additional members, this Agreement may be amended to reflect the terms of such
members' participation in the Company.
3.04. Liability and Indemnification of the Member, Employees
and Agents.
(a) The Member shall not be liable, responsible or accountable
in damages or otherwise to the Company for any act or omission performed or
omitted by the Member on behalf of the Company and in a manner reasonably
believed by the Member to be within the scope of authority of the Member,
provided that such act or omission does not constitute fraud, willful misconduct
or gross negligence on the part of the Member.
(b) The Company shall indemnify and hold harmless the Member,
to the fullest extent permitted by law, against all judgments, fines, amounts
paid in settlement and expenses (including, without limitation, interest,
penalties, counsel fees and disbursements and costs of preparation and
investigation) incurred by the Member in any civil, criminal, administrative or
investigative proceeding in which the Member is or was involved or threatened to
be involved by reason of its being or having been a member in the Company or
being or having been a general partner, member, director, officer, employee or
agent of any Affiliate or, at the request of the Company, of any other
corporation, partnership, joint venture, trust or other entity; provided,
however, that the Company shall not be responsible for any judgments, fines,
amounts paid in settlement or expenses that are the result of the Member's
fraud, willful misconduct or gross negligence.
(c) The Company may indemnify any officer, employee or agent
of the Company, to the fullest extent permitted by law, against all judgments,
fines, amounts paid in settlement, and expenses (including, without limitation,
interest, penalties, counsel fees and disbursements and costs of investigation
and preparation) incurred by such Person in any civil, criminal, administrative
or investigative proceeding in which such Person is involved or threatened to be
involved by reason of such Person having been an officer, employee or agent of
the Company; provided, however, that the Company shall not be responsible for
any judgments, fines, amounts paid in settlement or expenses that are the result
of such indemnified person's fraud, willful misconduct or gross negligence.
(d) The foregoing indemnification provisions shall not
preclude any other rights to which the Persons indemnified hereunder may be
entitled under any applicable statute, agreement, decision of the Member or
otherwise, nor shall the foregoing preclude the Company from purchasing and
maintaining insurance on behalf of any indemnified Person against liability
which may be asserted against or incurred by such Person in such capacity,
whether or not the Company would have the power to indemnify such Person against
such liability under the provisions of this paragraph 3.04. Expenses incurred in
connection with any proceeding may be advanced by the Company prior to final
disposition of such proceeding upon receipt of an undertaking by or on behalf of
the indemnified Person to repay such amount if it shall be determined ultimately
that the indemnified Person is not entitled to be indemnified under or pursuant
to this paragraph 3.04.
ARTICLE IV
Books, Fiscal Year; Tax Classification
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4.01. Administrative Services, Books, Records and Reports. The
Member shall cause to be performed all general and administrative services on
behalf of the Company in order to assure that complete and accurate books and
records of the Company are maintained at the Company's principal place of
business showing the names, addresses and interests in the Company of each of
the members of the Company, all receipts and expenditures, assets and
liabilities, profits and losses, and all other records necessary for recording
the Company's business and affairs.
4.02. Membership Interest Certificates. The Company shall be
authorized to issue 100 equal shares of a single class of Limited Liability
Company Interest (as defined in the Act) (the "Interest") in the form of
membership certificates (each a "Membership Certificate") including any and all
benefits to which the holder of such Interest may be entitled in this Agreement,
together with all obligations of such person to comply with the terms and
provisions of this Agreement. Each Member shall be entitled to a Membership
Certificate in the Company. All membership certificates shall state the number
of shares of Interest evidenced thereby, may (but need not) bear the seal of the
Company and shall contain such further statements as shall be required by law.
The Member may determine the form of the membership certificates except insofar
as prescribed by law. The transfers of all Membership Certificates shall be
subject to the restrictions, if any, imposed by this Agreement or any agreement
to which the Company is party. Subject to any such restrictions (which shall be
noted on the Membership Certificates), title to the Membership Certificates and
to the membership Interest represented thereby shall be transferable on the
books of the Company upon surrender of the Membership Certificates therefore
duly endorsed, or accompanies by a separate document containing an assignment of
the certificate or a power of attorney to sell, assign, pledge or otherwise
transfer the same, signed by the person appearing by the certificate to be the
owner of the membership interest represented thereby. If any Membership
Certificate shall be lost, mutilated or destroyed, a new certificate may be
issued in place thereof on reasonable evidence of such loss or destruction and
upon such indemnity as the Company may require for its own protection.
4.03. Fiscal Year. The fiscal year of the Company for
financial reporting and for federal income tax purposes (the "Fiscal Year")
shall be the calendar year or, in the case of the first Fiscal Year, the portion
thereof commencing on the date on which the Company was formed under the Act
and, in the case of the last Fiscal Year of the term of the Company, the portion
thereof ending on the date on which the winding up of the Company is completed.
The Fiscal Year of the Company may be changed at any time by the Member.
4.04. Tax Classification. The Member recognizes and intends
that the Company will be disregarded as an entity separate from its owner for
income tax purposes, and will not make an election to be treated as an
association taxable as a corporation for U.S. federal income tax purposes
pursuant to Treasury Regulation Section 301.7701-3, or any successor provision
thereof, and to the extent necessary, the Company and the Member will make any
election required to obtain treatment consistent with the foregoing.
ARTICLE V
Distributions
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5.01. Distributions. Distributions shall be made to the Member
at such times and in such amounts as are determined by the Member, subject at
all times to the federal and state laws governing the Company.
5.02. Restoration of Funds. Except as otherwise provided by
law, the Member shall not be required to restore to the Company any funds
properly distributed to it pursuant to paragraph 5.01 above.
ARTICLE VI
Dissolution and Liquidation
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6.01. Dissolution. The Company shall be dissolved on any date
specified for dissolution by the Member at its election; provided, however, that
the Company shall dissolve at any time there is no member, unless continued by
the personal representative of the last remaining member pursuant to the Act.
6.02. Winding up Affairs and Distribution of Assets. If an
event occurs that results in a dissolution of the Company, then the Member (or
the personal representative of the Member if the Member has ceased to be a
member) shall proceed as promptly as practicable to wind up the affairs of the
Company and distribute the assets thereof or appoint one or more liquidators to
do so; provided that the assets of the Company shall be liquidated in an orderly
and businesslike manner so as not to obtain less than fair value therefor. The
appointment of any one or more liquidators may be revoked, or a successor or
additional liquidator or liquidators may be appointed, by the Member. A final
accounting shall be made by the Member or by a liquidator or liquidators so
appointed, and the accountants of the Company shall review the final accounting
and shall render their opinion with respect thereto. As part of the winding up
of the affairs of the Company, the following steps shall be taken in the
following order:
(1) The assets of the Company shall either be sold
or, with the consent of the Member, some or all of the assets of the
Company may be retained by the Company for distribution to the Member
as hereinafter provided;
(2) The assets of the Company shall be distributed as
follows:
(i) First, to creditors of the Company, including the
Member if it is a creditor, in satisfaction of debts,
liabilities and obligations of the Company (whether by payment
or establishment of reserves) other than liabilities for
distributions to the Member under Section 18-601 or 18-604 of
the Act;
(ii) Second, to the Member in satisfaction (whether
by payment or establishment of reserves) of liabilities of the
Company under Section 18-601 or 18-604 of the Act; and
(iii) Third, to the Member; and
(3) The Certificate of Formation for the Company
shall be canceled upon dissolution and completion of winding up of the
Company, as provided in the Act.
ARTICLE VII
Miscellaneous
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7.01. Notices. Any and all notices or other communications
permitted or required to be delivered or given under this Agreement shall be in
writing and signed by the party giving such notice or other communication and
shall be sent by telecopy or similar means of simultaneous transmission and
receipt or shall be delivered personally, or sent by registered or certified
mail, postage prepaid to the Company or the Member, as applicable, at the
address or addresses specified by it from time to time. In the case of personal
delivery, the date of personal delivery or, in the case of telecopy or similar
means of simultaneous transmission and receipt, the date of transmission or, in
the case of mailing, the date of receipt, as the case may be, shall be the date
of the delivery or giving of such notice.
7.02. Successors and Assigns. Subject to the restrictions on
transfer set forth herein, this Agreement, and each and every provision hereof,
shall be binding upon and shall inure to the benefit of the Member, its
successors, successors-in-title, executors, administrators, representatives,
heirs and assigns.
7.03. Title to Company Property. All property and assets owned
by the Company, whether real or personal, tangible or intangible, shall be
deemed to be owned by the Company as an entity and the Member, individually,
shall not have any ownership of such property and assets.
7.04. Headings, etc. The headings in this Agreement are
inserted for convenience of reference only and shall not affect the
interpretation of this Agreement. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall include
the singular and the plural.
7.05. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
7.06. Entire Agreement; Amendments. This Agreement constitutes
the entire understanding and agreement by the Member with respect to the subject
matter hereof, and supersedes all prior agreements and understandings by the
Member with respect to the subject matter hereof. This Agreement may be amended,
modified or supplemented only by a written instrument executed by the Member.
IN WITNESS WHEREOF, the Member has duly executed this
Agreement as of the day and year first above written.
COVANTA WASTE TO ENERGY, LLC
Attest: By:
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Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Secretary
