AGREEMENT OF LIMITED PARTNERSHIP OF SOUTH CENTRAL TEXAS LAND CO. TX, LP
Exhibit 3.915
AGREEMENT OF LIMITED PARTNERSHIP OF
SOUTH CENTRAL TEXAS LAND CO. TX, LP
SOUTH CENTRAL TEXAS LAND CO. TX, LP
This Agreement of Limited Partnership is entered into as of October 24, 2003, by and between
ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and ALLIED
WASTE SYSTEMS HOLDINGS, INC., a Delaware corporation, as the Limited Partner, on the following
terms and conditions:
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 hereof.
1.2 Formation. The Partners hereby form the Partnership as a limited 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 Xxxxx Xxxxxxx Xxxxx Xxxx Xx. XX, LP
The General Partner may change the name of the Partnership upon written notice to the Limited
Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct
the business of owning and operating landfills, and to engage in any other activity permitted
under Texas law and the laws of any jurisdiction in which the Partnership may do business.
1.5 Office. The registered office of the Partnership within the State of Texas shall
be
CT Corporation System, 0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxx of Xxxxxx, Texas. The registered
office may be changed to any other place within the State of Texas by the General Partner,
upon
written notice to the Limited Partner. The Partnership may maintain a registered office in
any
state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Texas are CT Corporation System, 0000
Xxxx Xxxxxx, Xxxxxxx, Xxxxx. The agent for service of legal process may be changed by the
General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership shall commence on the date the General
Partner files a Certificate of Limited Partnership in Texas, and shall continue in perpetuity
until
the Partnership is dissolved as set forth in this Agreement or pursuant to the Act.
1.8 Filings. The General Partner shall promptly file a Certificate of Limited
Partnership with the Texas Secretary of State in accordance with the provisions of the Act.
The
Partners shall take any and all other actions, and shall execute and file such amendments to
this
Agreement or to the certificate of limited partnership as are reasonably necessary to perfect
and
maintain the status of the Partnership as a limited partnership under the laws of the State of
Texas.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are
set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The Partners shall contribute to the Partnership
the
cash or other assets set forth in Exhibit A to this Agreement. In conjunction
with such
contributions, each Partner shall receive a credit to its Capital Account equal to its
Capital
Contribution and a Percentage Interest in the Partnership as set forth on Exhibit A.
No Partner
shall be obligated to make additional Capital Contributions to the Partnership, except upon
the
unanimous written consent of the Partners.
2.3 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 money or other property from the
Partnership without the written consent of the other Partners. Under circumstances
requiring a
return of any Capital Contributions, no Partner shall have the right to receive property
other than
cash, unless otherwise specifically agreed in writing by the Partners at the time of such
distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. Except as agreed upon
by the
Partners, and except as otherwise provided by the Act or by any other applicable state law,
no
Partner shall be required to make any other Capital Contributions or to loan any funds to
the
Partnership. No Partner shall have any personal liability for the repayment of its
Capital
Contributions or loans of any other Partner.
(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 any Partner to solicit or demand Capital Contributions from any
other
Partner.
(d) Withdrawal. Except as provided in Section 8 hereof, no Partner may
voluntarily or involuntarily withdraw from the Partnership or terminate its interest therein
without the prior written consent of the other Partners. Any Partner who withdraws from
the
Partnership in breach of this Section 2.3(d):
(i) shall be treated as an assignee of a Partner’s interest, as provided in
the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership
or to exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on
the same basis as if the Partner had not withdrawn, provided that any damages to the
Partnership as a result of such withdrawal shall be offset against amounts that would otherwise be
distributed to such Partner.
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2.4 Partner Loans. Upon the approval of the General Partner, any Partner may make
loans to the Partnership, which shall bear interest and be repaid on such reasonable terms and
conditions as may be approved by the General Partner. No Partner shall be required to make a loan
to the Partnership unless such Partner has agreed to make such loan.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 hereof, Net
Cash
Flow, if any, shall be distributed to the Partners in proportion to their Percentage Interests
at such
times as may be determined by the General Partner.
3.2 Allocations of 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.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon
the advice of the Partnership’s tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest and reinvest Partnership funds for the purposes set forth in Section 1.4, in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge,
encumber and otherwise deal with Partnership property;
(c) execute any and all agreements, contracts, documents, certificates and
instruments necessary or convenient in connection with the Partnership’s business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any
Partnership property;
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(e) borrow money and issue evidences of indebtedness necessary, convenient
or incidental to the accomplishment of the purposes of the Partnership, and secure the same by
mortgage, pledge or other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend
any liabilities affecting the Partnership’s property and in connection therewith execute any
extensions or renewals of encumbrances on any or all of the Partnership’s property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may
rely upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a
condition precedent to acts by the General Partner or that are in any other manner germane to
the
affairs of the Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or
document of the Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever
involving the Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons
as officers of the Partnership. The officers shall have the authority to act for and bind
the
Partnership to the extent of the authority granted to them by the General Partner on behalf of
the
Partnership. The officers of the Partnership may include a president, vice presidents, a
secretary,
a treasurer, and such other officers as the General Partner deems appropriate. The officers of
the
Partnership will be entitled to such compensation for their services as the General Partner
may
reasonably determine from time to time.
5.4 Communications. The General Partner shall promptly advise and inform each of
the Partners of any transaction, notice, event or proposal directly relating to the management
and
operation of the Partnership or to its assets that does or could materially affect, either
adversely
or favorably, the Partnership, its business or its assets.
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5.5 Indemnification. The Partnership, its receiver or its trustee shall defend,
indemnify and save harmless the Partners 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 Partnership, 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 Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right,
during ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the
Partnership as the “tax matters partner” under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the
Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or
otherwise voluntarily transfer by any means whatever (“Transfer”) all or any portion of its
interest in the Partnership without the prior written consent of the General Partner and
Limited
Partners holding a simple majority of the Percentage Interests held by all of the
non-Transferring
Limited Partners. A transferee of a Partner’s interest in the Partnership will be admitted
as a
Substituted Limited Partner only pursuant to Section 8.3 hereof. Any purported
Transfer that
does not comply with the provisions of this Section 8 shall be void and shall not
cause or
constitute a dissolution of the Partnership.
8.2 Assignee of Partner’s Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of Section 8 hereof (or pursuant
to a
Transfer that the Partnership is required to recognize notwithstanding any contrary provisions
of
this Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted Limited Partner pursuant to Section 8.3 hereof, such Person:
(a) shall be treated as an assignee of a Partner’s interest, as provided in the
Act;
(b) shall have no right to participate in the business and affairs of the
Partnership or to exercise any rights of a Partner under this Agreement or the Act; and
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(c) shall share in distributions and allocations from the Partnership with respect to
the transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a “Substituted Limited Partner”) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of its
entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon
the
occurrence of any such event of withdrawal, such Person or its transferee shall have the right
to
receive distributions and allocations with respect to its Partnership interest, shall be
treated as the
transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner
upon the unanimous written consent of the Limited Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person
ceases to be a General Partner pursuant to Section 9.1 hereof, the remaining General Partners,
if
any, shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 hereof, and as a consequence thereof the Partnership
has no
General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the
Partnership
and its business without dissolution. The election of a new General Partner shall require
the
unanimous written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Partnership’s assets and the
collection of the proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the
Partnership and its business without dissolution pursuant to Section 9.2 hereof in the
event any
Person ceases to be a General Partner pursuant to Section 9.1 hereof; or
(d) The failure by the Limited Partners to elect a new General Partner or
General Partners pursuant to Section 9.3 hereof, in the event all of the General
Partners cease to
be General Partners pursuant to Section 9.1 hereof and no Person named as a successor
General
Partner in Section 9.3 hereof is then serving as the General Partner.
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10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or court-appointed trustee if there be no General Partner) shall take full account of the Partnership’s
liabilities and Partnership’s 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 (other than those to the Partners), including the establishment of any necessary
reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1.
Notwithstanding anything in Section 3 hereof to the contrary, any Profits, Losses and
items thereof of the Partnership for the taxable year in which the liquidation of the Partnership
occurs shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners
as closely as possible to distributions of such liquidation proceeds pursuant to the priorities
set forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of
the
Partnership have been paid and discharged or adequate provisions have been made therefor and
all of the remaining property and assets of the Partnership have been distributed to the
Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the Texas
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 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 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
Partnership,
to the Partnership at the address set forth in Section 1.6 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 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on
Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this
Section 11.1.
Any such notice shall be effective upon actual receipt thereof.
11.2 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
Partners and their respective heirs, legatees, legal representatives, successors, transferees
and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any
Transfer not
otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partner’s
interest
any rights not specifically granted under this Agreement, or (c) to supersede or modify in any
manner any provision of Section 8 hereof.
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11.3 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.
11.4 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.
11.5 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.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that
may
be reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 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.
11.8 Texas Law. The laws of the State of Texas shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of
the
Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any
right
that such Partner may have to maintain any action for partition with respect to any of the
Partnership’s property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document.
All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this
Agreement,
all actions that the General Partner may take and all determinations that the General
Partner may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of
the General Partner.
SECTION 12. DEFINITIONS
12.1 “Act” means the Texas Revised Uniform Limited Partnership Act, as set forth in
Del. Code Xxx.Tit. 6, Sections 17-101 et seq., as amended from time to time (or any
corresponding provisions of succeeding law).
12.2 “Agreement” means this Agreement of Limited Partnership, 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.
12.3 “Capital Account” means the capital account maintained for each Partner in
accordance with Section 3.4 hereof.
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12.4 “Capital Contribution” means, with respect to any Partner, the amount of money
and the net fair market value of property (other than money) contributed to the Partnership by
such Partner.
12.5 “Code” means the Internal Revenue Code of 1986, as amended from time to time
(or any corresponding provisions of succeeding law).
12.6 “General Partner” means any Person who (a) is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement
as a
General Partner, or who has become a General Partner pursuant to the terms of this Agreement,
and (b) has not ceased to be a General Partner pursuant to the terms of this Agreement.
“General
Partners” means all such Persons.
12.7 “Limited Partner” means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement
as a
Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the
terms
of this Agreement. “Limited Partners” means all such Persons.
12.8 “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 Partnership expenses,
debt
payments (including payments on loans from Partners), capital improvements, replacements and
contingencies, all as reasonably determined by the General Partner.
12.9 “Partners” means the General Partners and the Limited Partners, where no
distinction is required by the context in which the term is used herein. “Partner” means any
one
of the Partners.
12.10 “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.
12.11 “Percentage Interest” means, with respect to each Partner, a Partner’s interest,
expressed as a percentage in 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 hereto.
12.12 “Person” means any individual, partnership, corporation, limited liability
company, trust, or other entity.
12.13 “Profits” and “Losses” means, 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), reduced by any items of income or gain subject to special
allocation pursuant to this Agreement, and otherwise adjusted to comply with the Regulations.
12.14 “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).
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12.15 “Substituted Limited Partner” has the meaning given that term in Section 8.3.
12.16 “Transfer” has the meaning given that term in Section 8.1 hereof.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
GENERAL PARTNER: | LIMITED PARTNER: | |||||
Allied Waste Landfill Holdings, Inc., | Allied Waste Systems Holdings, Inc., | |||||
a Delaware corporation | a Delaware corporation | |||||
By:
|
/s/ Xxxxxx X. Xxxxxx | By: | /s/ Xx Xxxx Xxxxx | |||
Name:
|
Xxxxxx X. Xxxxxx | Name: | Xx Xxxx Xxxxx | |||
Its:
|
President | Its: | Secretary | |||
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EXHIBIT A
Initial Capital | Percentage | |||||||
Name and Addresses of Partners | Contribution | Interest | ||||||
General Partner: Allied Waste |
$ | 10.00 | 1 | % | ||||
Landfill Holdings, Inc. 00000 Xxxxx |
||||||||
Xxxxxxxx Xxxxxx Xxxx Xxxxx 000 |
||||||||
Xxxxxxxxxx, Xxxxxxx 00000 |
||||||||
Limited Partner: Allied Waste |
$ | 990.00 | 99 | % | ||||
Systems Holdings, Inc. 00000 Xxxxx |
||||||||
Xxxxxxxx Xxxxxx Xxxx Xxxxx 000 |
||||||||
Xxxxxxxxxx, Xxxxxxx 00000 |
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