PARTNERSHIP AGREEMENT OF NEWTON COUNTY LANDFILL PARTNERSHIP
Exhibit 3.681
This Partnership Agreement is entered into as of December 31, 1997, between Xxxxxx
County Development Corporation, an Indiana corporation, and Allied Waste Landfill Holdings,
Inc., a Delaware corporation, each individually referred to herein as a “Partner,” and collectively as “Partners.”
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 10.11 hereof.
1.2 Formation. The Partners hereby form the Partnership as a general partnership
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement.
1.3 Name. The name of the Partnership is Xxxxxx County Development
Corporation. The name of the Partnership may be changed upon the consent of the Partners.
1.4 Purpose. The purpose of the Partnership and the general character of its business
are primarily to engage in and conduct the business of owning and operating landfills, and to
engage in any other activity permitted under Indiana law and the laws of any jurisdiction in which
the Partnership may do business.
1.5 Office. The principal office of the Partnership shall be maintained at 00000 Xxxxx
Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, or at any other location as the
Partners may from time to time designate.
1.6 Term. The term of the Partnership shall continue until December 31, 2050,
unless the Partnership is dissolved earlier as set forth in this Agreement, or is continued
by the Partners.
SECTION 2. PERCENTAGE INTERESTS; CAPITAL CONTRIBUTIONS
2.1 Percentage Interests. The name, address and Percentage Interest of each Partner
are set forth on Exhibit A attached hereto.
2.2 Initial Capital Contributions. Upon the execution hereof, the Partners will
contribute cash or assets to the Partnership as set forth opposite their names on Exhibit A.
2.3 Additional Capital Contributions. Following the capital contributions described
in Section 2.2 hereof, no Partner shall be obligated to make additional capital contributions to
the Partnership, except upon the written agreement of all Partners.
2.4
Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no
Partner shall withdraw any capital contributions or any portion of such Partner’s Capital
Account without the written consent of the other Partner. Under circumstances requiring a return of
capital, no Partner shall have the right to receive property other than cash, except as may be
specifically provided herein.
(b) No Interest or Salary. No Partner shall receive any interest, salary or
drawing with respect to such Partner’s capital contributions or Capital Account or for
services rendered for or on behalf of the Partnership, unless agreed upon in writing by all Partners.
(c) No Third Party Rights. Nothing contained in this Agreement is intended or will be deemed to benefit
any creditor of the Partnership, and no creditor of the Partnership will be entitled to require the Partners to solicit capital contributions from any Partner or
to make any capital contributions to the Partnership.
(d) Withdrawal. No Partner may voluntarily or involuntary withdraw from
the Partnership or terminate its interest therein without the written consent of the other
Partner.
2.5 Partner Loans. Upon the approval of a Majority in Interest of the Partners, any
Partner may make loans (“Partner Loans”) to the Partnership, which shall bear interest and be
repaid on such reasonable terms and conditions as may be approved by a Majority in Interest of
the Partners, No Partner shall be required to make a Partner Loan unless such Partner has
agreed in writing to make a Partner Loan.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 9.2 hereof, Net Cash Flow, if any, shall be
distributed to the Partners in proportion to their Percentage Interests at such time or times
as may be determined by the agreement of a Majority in Interest of the Partners.
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. After giving effect to the special allocations set forth in
Section 4.2 hereof, all Profits and Losses for any fiscal year shall be allocated to the
Partners in proportion to their Percentage Interests.
4.2 Regulatory and Curative Allocations. The allocations set forth in Section 4.1
hereof are intended to comply with the requirements of Regulations Sections 1.704-l(b) and
1.704-2. If the Partnership incurs “nonrecourse deductions” or “partner nonrecourse
deductions,” or if there is any change in the Partnership’s “minimum gain,” as defined in such
Regulations, the allocation of Profits, Losses and items thereof to the Partners shall be modified
in a reasonable manner deemed necessary or advisable by the Partners, upon appropriate legal or
tax advice, to comply with such Regulations.
SECTION 5. MANAGEMENT
5.1 General. Except as may otherwise be set forth herein, all decisions relating to the
conduct and management of the Partnership’s business and affairs shall be made by a Majority in
Interest of the Partners. The Partners 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.
5.2 Right to Rely on Either Partner. Any Person dealing with the Partnership shall be
entitled without further inquiry to rely on the signature of either Partner to bind
the Partnership in any matter whatsoever affecting the Partnership.
SECTION
6. BOOKS AND RECORDS
6.1 Books and Records. The Partnership shall keep adequate books and records at its
place of business, setting forth a true and accurate account of all business transactions
arising out of and in connection with the conduct of the Partnership’s business. Each Partner or its
designated representative shall have the right, at any reasonable time, to have access to and
inspect and copy the contents of such books or records.
6.2 Tax Matters. Necessary tax information shall be delivered to each Partner after
the end of each fiscal year of the Partnership. The Partners shall select one of the Partners
to act as the “tax matters partner” pursuant to the Code, and the tax matters partner shall
coordinate with the Partnership’s accountants the preparation of tax information and tax returns relating
to the Partnership.
SECTION 7. AMENDMENTS
This Agreement may be amended only by a written instrument signed by all Partners.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
No Partner shall transfer, sell, assign, encumber, pledge, hypothecate or otherwise
dispose of all or any part of its interest in the Partnership without first obtaining the
written consent of all other Partners. Any purported transfer, sale, assignment, encumbrance, pledge,
hypothecation or other disposition of a Partnership interest in violation of this Section 8
shall be void and shall not cause or constitute a dissolution of the Partnership.
SECTION 9. DISSOLUTION AND WINDING UP
9.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of the
following events:
(a) The
expiration of the term of the Partnership as set forth herein, unless
that term is extended by all Partners;
(b) The unanimous election of the Partners to dissolve the Partnership; or
(c) The dissolution of the Partnership within the meaning of the Act.
9.2 Winding Up. Upon a dissolution of the Partnership, the Partners shall take
full account of the Partnership’s liabilities and property, and the Partnership’s property 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 Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnership’s property, to
the extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnership’s debts and
liabilities and the establishment of any necessary reserves; and
(b) To the Partners in proportion to their Percentage Interests.
9.3 Rights of Partners. Except as otherwise provided in this Agreement, the Partners
shall look solely to the assets of the Partnership for the return of their capital
contributions and shall have no right or power to demand or receive property other than cash from the
Partnership.
SECTION 10. MISCELLANEOUS
10.1 Notices. Any notice, payment, demand or communication required or permitted
to be given by any provision of this Agreement shall be in writing and shall be delivered
personally to the Partner to whom the same is directed, or sent by regular, registered or
certified mail, return receipt requested, addressed as follows: if to the Partnership, to the
Partnership at the address set forth in Section 1.5 hereof, or to such other address as the Partnership may
from time to time specify by notice to the Partners in accordance with this Section 10.1, or, if
to a Partner, to such Partner at the address for such Partner set forth below the Partner’s name
on Exhibit A, or to such other address as the Partner may from time to time specify by notice to
the Partnership in accordance with this Section 10.1. Any such notice shall be deemed to be
delivered, given and received for all purposes as of the date so delivered, if delivered
personally or if sent by regular mail, or as of the date on which the same was deposited in a regularly
maintained receptacle for the deposit of United States mail, if sent by registered or
certified mail, postage and charges prepaid.
10.2 Binding Effect. Every covenant, term and provision of this Agreement shall be
binding upon and inure to the benefit of the Partners and their respective heirs, legatees,
legal representatives and permitted successors, transferees and assigns.
10.3 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 Partner.
10.4 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.
10.5 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.
10.6 Additional Documents. Each Partner, upon the request of the other Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents which
may be reasonably necessary, appropriate or desirable to carry out this Agreement.
10.7 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.
10.8 Governing Law. The laws of the State of Indiana shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and
duties of the Partners.
10.9 Waiver of Action, for Partition. Each Partner irrevocably waives any right that it
may have to maintain any action for partition with respect to any of the Partnership’s
property.
10.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if each Partner had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
10.11 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 10.11:
“Act” means the provisions of the Indiana Code applicable to partnerships, as amended
from time to time (or any corresponding provisions of succeeding law).
“Agreement” means this Partnership 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, with respect to any Partner, a capital account maintained
for such Partner in accordance with Code § 704(b) and Regulations promulgated thereunder.
“Code” means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
“Majority in Interest of the Partners” means Partners owning a simple majority of the
Percentage Interests in the Partnership held by all Partners.
“Net Cash Flow” means the gross cash proceeds to the Partnership from all sources,
less the portion thereof used to pay or establish reserves for (1) Partnership expenses, (2) debt
payments, (3) contingencies, or (4) authorized Partnership investments or loans, all as
reasonably determined by the Partners.
“Partner” means any Person identified as a Partner on Exhibit A attached hereto and
any other Person admitted as a Partner pursuant to Section 8 hereof or pursuant to an amendment
adopted in accordance with Section 7 hereof. “Partners” means all such Persons.
“Partner Loans” has the meaning given mat term in Section 2.5 hereof.
“Partnership” means the Partnership formed pursuant to this Agreement and any
Partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
“Percentage Interest” means the Partners’ interests, expressed as a percentage, in
certain Profits, Losses and distributions of the Partnership as provided for in this Agreement. The
Partners’ Percentage Interests are set forth opposite their names on Exhibit A attached
hereto.
“Person” means any individual, partnership, corporation, trust, limited liability
company or other entity.
“Profits” and “Losses” mean, for each fiscal year or other period, an amount
equal to the Partnership’s taxable income or loss for such year or period, determined in accordance with
Code Section 703(a), adjusted as deemed necessary by the Partners to comply with Code Section
704(b) and Regulations promulgated thereunder.
“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).
10.12 Entire Agreement. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter covered herein. This Agreement supersedes all prior
agreements, representations and understandings of the parties with respect to the subject
matter covered hereby. No supplement, modification or amendment of this Agreement shall be binding
unless executed in writing by all parties. All exhibits or schedules attached to this Agreement are
incorporated herein by this reference.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date
first above written.
| Xxxxxx County Development Corporation, | Allied Waste Landfill Holdings, Inc., | |||||||
| an Indiana corporation | a Delaware corporation | |||||||
By:
|
/s/ Xxxxxx X. Xxxxxx | By: | /s/ Xxxxxx X. Xxxxxx | |||||
EXHIBIT A
| Initial Capital | Percentage | |||||||
| Names and Addresses of Partners | Contribution | Interest | ||||||
Xxxxxx County Development Corporation 00000 Xxxxx Xxxxxxxx Xxxxxx Xxxx Xxxxx 000 Xxxxxxxxxx, Xxxxxxx 00000 |
All right, title and interest in and to the operating assets and liabilities of its waste operations | 99 | % | |||||
Allied Waste Landfill Holdings, Inc. 00000 Xxxxx Xxxxxxxx Xxxxxx Xxxx Xxxxx 000 Xxxxxxxxxx, Xxxxxxx 00000 |
$ | 51,504 | 1 | % | ||||
FIRST AMENDMENT TO PARTNERSHIP AGREEMENT OF
XXXXXX COUNTY LANDFILL PARTNERSHIP
This First Amendment to Partnership Agreement of Xxxxxx County Landfill Partnership (the
“First Amendment”) is entered into effective as of August 19, 1998, by and between Allied
Waste North America, Inc., a Delaware corporation (“AWNA”) and Allied Waste Landfill Holdings,
Inc., a Delaware corporation (“AWLH”)(collectively, the “Partners”).
RECITALS
X. Xxxxxx County Landfill Partnership (the “Partnership”) was formed as an Indiana
general partnership pursuant to that certain Partnership Agreement of Xxxxxx County Landfill
Partnership, dated as of December 31, 1997 (the “Agreement”) between Xxxxxx County
Development Corporation, an Indiana corporation (“Xxxxxx”) and AWLH. Unless specifically defined herein,
capitalized terms appearing in this First Amendment shall have the meanings given those terms
in the Agreement.
H. Pursuant to an Agreement and Plan of Merger between Xxxxxx and AWNA, among
others, dated August 14, 1998, Xxxxxx merged with and into AWNA, resulting in a
transfer by operation of law of Xxxxxx’x interest in the Partnership to AWNA.
I. The Partners desire to acknowledge the merger and the admission of AWNA as a
substituted partner of the Partnership, on the terms and conditions set forth in this First Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
5. Consent to Assignment. Pursuant to Section 8 of the Agreement, AWLH hereby
consents to (a) the transfer described in Recital B above of Xxxxxx’x interest in the
Partnership to AWNA and (b) the admission of AWNA as a substituted partner.
6. Acceptance. AWNA hereby acknowledges the assumption of all of Xxxxxx’x
responsibilities and obligations with respect to the Partnership, and agrees to be bound by
the provisions of the Agreement.
3. Amendment of Agreement. Exhibit A to the Agreement is amended in its entirety to
read as set forth on Exhibit A attached hereto.
4. Continuing Effect. Except as modified or amended by this First Amendment, all
terms and provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of
the date first above written.
| Allied Waste North America, Inc., a Delaware corporation |
||||
| By: | /s/ X. X. Xxxxxx | |||
| X. X. Xxxxxx, Vice President | ||||
| Allied Waste Landfill Holdings, Inc., a Delaware corporation |
||||
| By: | /s/ X. X. Xxxxxx | |||
| X. X. Xxxxxx, President | ||||
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EXHIBIT A
| Percentage | ||
| Names and Addresses of Partners | Interest | |
Allied Waste North America, Inc. |
99% | |
00000 X. Xxxxxxxx Xxxxxx Xxxx Xxxxx 000 Xxxxxxxxxx, Xxxxxxx 00000 |
||
Allied Waste Landfill Holdings, Inc. |
1% | |
00000 X. Xxxxxxxx Xxxxxx Xxxx Xxxxx 000 Xxxxxxxxxx, Xxxxxxx 00000 |
||
TOTALS |
100% |
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SECOND AMENDMENT TO PARTNERSHIP AGREEMENT OF
XXXXXX COUNTY LANDFILL PARTNERSHIP
This Second Amendment to Partnership Agreement of Xxxxxx County Landfill
Partnership (the “Second Amendment”) is entered into effective as of December 3, 2008, by and
between Allied Waste North America, Inc., a Delaware corporation (“AWNA”) and Allied
Waste Landfill Holdings, Inc., a Delaware corporation (“AWLH”) (collectively, the
“Partners”).
RECITALS
A. The business and operations of the Xxxxxx County Landfill Partnership, an
Indiana general partnership (the “Partnership”) are governed pursuant to the terms and
conditions set forth in that certain Partnership Agreement of Xxxxxx County Landfill
Partnership, dated as of December 31, 1997, as amended by that certain First Amendment to
Purchaser Agreement, dated as of August 19, 1998 (as amended, the “Agreement”). Unless
specifically defined herein, capitalized terms appearing in this Second Amendment shall have
the meanings given those terms in the Agreement.
B. The Partners desire to amend the Agreement to correct certain provisions on the
terms and conditions set forth in this Second Amendment.
AGREEMENTS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Amendment of Agreement. The first sentence of Section 1.3 is hereby deleted
and replaced with the following:
“The name of the Partnership is Xxxxxx County Landfill
Partnership.”
2. Continuing Effect. Except as modified or amended by this Second Amendment,
all terms and provisions of the Agreement shall remain in full force and effect.
[SIGNATURES ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment as
of the date first above written.
| Allied Waste North America, Inc., a Delaware corporation |
||||
| By: | /s/ Xx Xxxx Xxxxx | |||
| Name: | Xx Xxxx Xxxxx | |||
| Its: Assistant Secretary | ||||
| Allied Waste Landfill Holdings, Inc., a Delaware corporation |
||||
| By: | /S/ Xx Xxxx Xxxxx | |||
| Name: | Xx Xxxx Xxxxx | |||
| Its: Secretary | ||||
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