EXHIBIT 3.48
OPERATING AGREEMENT OF
CENTRAL LOUSIANA WASTE LLC
This OPERATING AGREEMENT (this "Agreement") is entered into as of February
1, 1996, by and among XXXXXX X. XXXXXXX, XXXX X. XXXXXXX, and XXXXXXX
X. XXXXXXX.
WHEREAS, pursuant to Articles of Organization filed with the office of the
Secretary of State of Louisiana on May 22, 1995 (the "Articles"), the parties
hereto formed Central Louisiana Waste LLC (the "Company'), as a Louisiana
limited liability company pursuant to the provisions of the Louisiana Limited
Liability Company Act (the "Act"); and
WHEREAS, the parties hereto desire to enter into this Agreement to set
forth their respective rights and responsibilities with respect to the
governance, financing and operation of the Company.
NOW, THEREFORE, for the reasons described above, and in consideration of
the mutual covenants contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1. THE COMPANY
1.1. FORMATION. The Company was formed upon the filing the Articles.
1.2. COMPANY NAME. The name of the Company is Central Louisiana Waste
LLC, and all business of the Company shall be conducted in that name.
1.3. PURPOSES. The purposes of the Company are provided for in Article 2
of the Articles of Organization.
1.4. LIMITED RELATIONSHIP. The Company exists only for the purpose
specified in Section 1.3 above. This Agreement does not and shall not be
construed to create a partnership relationship among the parties with respect to
any activities other than those specified in Section 1.3. No Member shall have
any authority to bind another Member except as specifically provided in this
Agreement.
1.5. DUTY OF LOYALTY. Except as expressly provided herein, this Agreement
shall not in any way restrict the freedom of any Member to conduct any other
business or activity whatsoever without accountability or liability to the
Company or any Member.
1.6. AUTHORIZED ACTS. In furtherance of its purposes, but subject to
every other provision of this Agreement, the Company is authorized to:
(a) acquire by purchase, lease, or otherwise any real or personal
property, tangible and intangible, that may be necessary, convenient, or
incidental to the accomplishment of the purposes of the Company;
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(b) construct, operate, maintain, finance, improve, own, sell,
convey, assign, mortgage, or lease, any real or personal property, tangible
and intangible, as may be necessary, convenient, or incidental to the
accomplishment of the purposes of the Company;
(c) borrow money and issue evidence of indebtedness in
furtherance of any purpose of the Company and to secure the same by a
mortgage, pledge, security interest, or other lien on any property of the
Company;
(d) prepay, as a whole or in part, refinance, recast, increase,
renew, modify, or extend any indebtedness of the Company and, in connection
therewith, extend, renew, or modify any mortgage, pledge, security
interest, or other lien affecting any property of the Company;
(e) loan money or other assets of the Company with or without
security;
(f) invest and reinvest the assets of the Company in, and
purchase, acquire, hold, sell, transfer, exchange and vote, securities of
all kinds whatsoever; and
(g) enter into any activity and to perform and effectuate any
contract in connection with, or necessary or incidental to, the
accomplishment of the purposes of the Company.
1.7. PRINCIPAL PLACE OF BUSINESS. The principal place of business of the
Company shall be 000 X. Xxxxxxx Xxx., Xxxxxxxx, Xxxxxxxxx 00000. Additional
places of business may be located elsewhere, within or without the State of
Louisiana.
1.8. TERM. The term of the Company commenced on the date on which the
Articles were filed with the office of the Secretary of State of Louisiana in
accordance with the Act, and shall continue until terminated, in accordance with
the Act and this Agreement.
1.9. AGENT FOR SERVICE OF PROCESS. The registered agent for service of
process on the Company shall be Xxxxxx X. Xxxxxxx, or any successor thereto as
may be hereafter appointed by the Members in accordance with the Act. The
registered office of the Company in the State of Louisiana is located at
000 X. Xxxxxxx Xxx., Xxxxxxxx, Xxxxxxxxx 00000.
1.10. DEFINITIONS the term "Affiliate" with respect to a Member shall mean
any person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such Member;
(a) the term "Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time;
(b) the term "Member" shall mean any person or entity who is
listed as a Member of the Company on Schedule A attached hereto, as that
schedule may be amended from time to time, and who has been admitted as a
Member of the Company pursuant to the terms and conditions of this
Agreement; the initial Members of the Company are Xxxxxx X. Xxxxxxx,
Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx;
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(c) the term "Membership Interest" with respect to a Member shall
mean the capital units identified on Schedule A attached hereto, as that
schedule may be amended from time to time;
(d) the term "Permitted Assignment" shall mean any sale,
assignment, exchange, transfer, mortgage, pledge or other disposition of
all or any portion of a Member's interest in the Company that is permitted
pursuant to Section 9.1 of this Agreement and Article 7 of the Articles of
Organization;
(e) the term "Profits" or "Losses" shall mean the net income or
net loss of the Company, as determined in accordance with generally
accepted accounting principles; the term "Profits" or "Losses" for tax
purposes shall mean the income or loss of the Company for federal income
tax purposes determined as of the close of the Company's fiscal year,
including, without limitation, each item of Company income, gain, loss,
deduction or credit; and
(f) the term "Treasury Regulations" shall mean final or temporary
regulations issued by the United States Treasury Department pursuant to
Title 26 of the United States Code, or any successor statute, as such
regulations may be amended from time to time.
ARTICLE 2. CAPITAL CONTRIBUTIONS; LOANS
2.1. INITIAL CAPITAL CONTRIBUTIONS. The amounts of the initial capital
contributions of the Members are set forth on Schedule A attached hereto.
2.2. ADDITIONAL CAPITAL CONTRIBUTIONS. No Member shall be required to
make any other capital contributions to the Company. However, new members will
be allowed to contribute additional capital and will be issued a certificate of
capital units representing their contribution. The per-unit price of these
capital units will be determined by unanimous concurrence of the Manager(s).
2.3. RETURN OF CAPITAL CONTRIBUTIONS. Except as otherwise provided in
this Agreement, or with the unanimous consent of the Manger(s), no Member shall
be entitled to the return of any part of such Member's capital contribution. The
Company shall not pay interest on capital contributions, and under circumstances
requiring or permitting a return of a Member's capital contribution, such Member
may demand and receive only cash in return for its capital contribution unless
unanimous concurrence of the Manager(s) determine to distribute property in
kind.
2.4. LOANS. Any person may, with the consent of a majority in interest of
the Manger(s), lend or advance money to the Company. If any Member makes any
loan or loans to the Company or advances money on its behalf, the amount of such
loan or advance shall not be treated as a capital contribution but shall be a
debt due from the Company. The amount of any such loan or advance by a lending
Member shall be evidenced by a promissory note of the Company; shall be
repayable out of the cash of the Company; shall bear interest at such rate as
the Manager(s) and the lending Member shall agree, which shall not be in excess
of the maximum lawful rate permitted under governing law; and may be subject to
such other terms
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and conditions as are agreed to by the Manager(s) and the lending Member. None
of the Members shall be obligated to make any loan or advance to the Company.
ARTICLE 3. DISTRIBUTIONS BY THE COMPANY
3.1. TAX DISTRIBUTIONS. On or before April 1 of each year, the Company
shall make a cash distribution to each Member equal to forty percent (40%) of
such Member's allocable share of the Profits (if any) of the Company for the
twelve (12) month period ending on December 31 of the preceding year.
3.2. OTHER DISTRIBUTIONS. Distributions from the Company to the Members,
other than distributions pursuant to Section 3.1, above, and distributions in
liquidation of the Company or of the interest of a Member, shall be made at such
times and in such amounts as may be determined by unanimous concurrence of the
Manager(s). Any distributions pursuant to this Section 3.2 shall be made pro
rata in accordance with the Members' respective capital units.
ARTICLE 4. TAX ALLOCATIONS
4.1. CAPITAL ACCOUNT. A capital account shall be maintained for each
Member in accordance with the capital account maintenance rules of Section
1.704-1(b)(2)(iv) of the Treasury Regulations. In the event of any inconsistency
between the terms of this Agreement and the capital account maintenance rules of
Section 1.704-1(b)(2)(iv) of the Treasury Regulations, the requirements of the
Treasury Regulations shall control.
4.2. ALLOCATION OF OPERATING PROFITS OR LOSSES. The Operating Profits or
Losses of the Company for any fiscal year shall be allocated among the Members
in proportion to the capital units owned by each member to the total capital
units outstanding. This allocation shall be made on a "daily weighted-average"
basis.
4.3. ALLOCATION OF GAINS AND/OR LOSSES FROM THE SALE OF COMPANY ASSETS.
After giving effect to any special allocations required by Section 4.4 of this
Agreement required by Section 704 of the Code or the Treasury Regulations issued
pursuant thereto, Gains and/or Losses from the sale of Company assets will be
allocated on the date of sale in proportion to the capital units owned by each
member to the total capital units outstanding on that date.
4.4. TAX ALLOCATIONS: CODE SECTION 704(c). For income tax purposes, any
item of income, gain, loss, deduction or credit with respect to any property
(other than money) that has been contributed by a Member to the capital of the
Company and which is required to be allocated to the Members for income tax
purposes under Section 704(c) of the Code so as to take into account the
variation between the tax basis of such property and its fair market value at
the time of its contribution, shall be allocated to the Members for income tax
purposes in the manner required by such Code provision and the Treasury
Regulations promulgated thereunder. Any elections or other decisions relating to
such allocations shall be made by unanimous concurrence of the Manager(s) in any
manner that reasonably reflects the purpose and intention of this Agreement.
Allocations pursuant to this Section 4.5 are solely for purposes of federal,
state, and local taxes and shall not affect, or in any way be taken into account
in computing, any Member's capital account or share of Profits, Losses, other
items, or distributions pursuant to any provisions of this Agreement.
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4.5. TAX ELECTIONS. Except as otherwise provided in this Article 4, all
elections required or permitted to be made by the Company under the Code shall
be made as determined by unanimous concurrence of the Manager(s).
ARTICLE 5. MANAGEMENT
5.1. POWER AND AUTHORITY OF THE MEMBERS. The Members shall have the sole
and exclusive right to manage the business of the Company through its Manager(s)
which shall be elected by a majority vote of the Members. Each Member will be
allowed to cast one vote for every capital unit owned on the date of any action
requiring a vote of the Members. Any action by or on behalf of the Company shall
require the unanimous concurrence of the Manager(s).
5.2. SERVICE OF MEMBERS; EXPENSE REIMBURSEMENT. The Members shall devote
whatever time and effort may be necessary or appropriate to the business and
affairs of the Company. The Company shall promptly reimburse the Members for any
and all costs and expenses reasonably incurred by them in connection with the
business of the Company with the unanimous concurrence of the Manager(s).
5.3. TRANSACTIONS WITH MEMBERS AND AFFILIATES. The Company is hereby
expressly authorized to enter into arrangements, contracts or agreements with
any Member or any Affiliate of a Member, provided that such arrangements,
contracts or agreements are necessary or beneficial to the operation of the
Company's business and are no less favorable to the Company than similar
arrangements, contracts or agreements that are available to the Company on an
arm's-length basis.
5.4. CERTIFICATE OF AUTHORITY.
(a) Any person dealing with the Company may rely (without duty of
further inquiry) upon a certificate signed by a majority in interest of
Members as to (i) the identity of any Member; (ii) the existence or absence
of any fact or facts which constitute a condition precedent to acts by the
Members or which are in any other manner germane to the affairs of the
Company, (iii) the persons who are authorized to execute and deliver any
document or instrument of or on behalf of the Company; or (iv) any act or
failure to act by the Company or any other matter whatsoever involving the
Company or any Member.
(b) All property of the Company shall be acquired in the
Company's name and any deed, mortgage, lease, xxxx of sale, security
agreement, pledge, contract, or other instrument or commitment purporting
to convey or encumber any of the property that is acquired in the Company's
name, or any interest therein, whether now or subsequently owned or leased
at any time by the Company, must be signed by all Managers) and no other
signature(s) shall be required. No person shall be required to inquire into
the authority of any person to sign any document pursuant to the provisions
of this Section 5.4(b).
5.5. BANK ACCOUNTS. All Company funds shall be deposited in its name in
one or more bank accounts or brokerage accounts in such financial institutions
as unanimous concurrence of the Manager(s) may determine. Withdrawals from the
bank accounts shall be
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made only in the ordinary course of the Company's business on the signature of a
duly authorized Manager of the Company.
5.6. INDEMNIFICATION RIGHTS OF THE MEMBERS.
(a) The Company, its receiver, or its trustee (in the case of its
receiver or trustee, to the extent of the Company's property) shall
indemnify, save harmless, and pay all judgments and claims against a Member
relating to any liability or damage incurred by reason of any act performed
or omitted to be performed by such Member in connection with the business
of the Company, including attorneys' fees incurred by such Member, in
connection with the defense of any action based on any such act or
omission, which attorneys' fees may be paid as incurred, including all such
liabilities under federal and state securities law (including the
Securities Act of 1933, as amended) as permitted by law.
(b) Notwithstanding the provisions of Sections 5.6(a) hereof, no
Member shall be indemnified from any liability for fraud, bad faith,
willful misconduct or gross negligence.
ARTICLE 6. MEETINGS OF MEMBERS
6.1. SPECIAL MEETINGS. Special meetings of the Members may be called by
any Member. Only business within the purpose or purposes described in the notice
required by paragraph 6.2 of these regulations may be conducted at a special
meeting of the Members.
6.2. NOTICE OF MEETINGS. A written notice of each special meeting of the
Members shall be given by Member(s) calling such meeting to each Member entitled
to vote at the meeting at the address of each Member reflected in the records of
the Company, not less than ten (10) nor more than sixty (60) days before the
date of the meeting. The notice shall state the date, time and place of the
meeting and the purpose or purposes for which the meeting is called. All
expenses of the voting and such notice shall be paid by the Company.
6.3. WAIVER OF NOTICE. Members may waive notice of a meeting before or
after the date and time specified in the written notice of meeting. All waivers
of notice must be in writing, be signed by the Member entitled to the notice and
be delivered to the Company for inclusion in the appropriate records. Attendance
of a Member at a meeting shall constitute a waiver of notice of the meeting,
unless the Member at the beginning of the meeting objects to holding the meeting
or transacting business at the meeting.
6.4. VOTING. Except as otherwise provided in this Agreement, action on a
matter shall be approved if a majority of capital units of the Members vote in
favor of the action.
6.5. ACTION BY WRITTEN CONSENT. Any action required or permitted to be
taken at a meeting of the Members may be taken without a meeting, without prior
notice, and without a vote, if a consent or consents in writing, setting forth
the action so taken, shall be signed and delivered to the Company by a majority
vote of capital units of the Members. Within ten (10) days after any such action
is authorized by written consent, the Company shall notify the Members who did
not consent of the action taken.
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ARTICLE 7. ACCOUNTING
7.1. BOOKS OF ACCOUNT. At all times during the existence of the Company,
the Company shall maintain the following records: (a) full and true books of
account of the Company, which shall be maintained on a cash or accrual basis, as
unanimous concurrence of the Manager(s) shall ember shall determine; (b) a
current list of the full names and last-known business addresses of all Members;
(c) a copy of the Articles of Organization of the Company and all certificates
of amendment thereto, together with executed copies of powers of attorney (if
any) pursuant to which they were signed; (d) a copy of all of the Company's
federal, state, and local income tax returns and reports for the three most
recent years; and (e) a copy of this Agreement and all amendments hereto, and
all financial statements of the Company for the three most recent years.
7.2. INSPECTION. All records of the Company shall be maintained at the
Company's principal office and are subject to inspection and copying during
ordinary business hours at the reasonable request, and at the expense, of any
Member.
7.3. FINANCIAL STATEMENTS. After the termination of each calendar year of
the Company, the certified public accounting firm engaged by the Company shall
prepare an unaudited balance sheet and income statement for the calendar year,
and copies thereof shall be sent to each Member, provided, however, that each
Member shall have the option of requesting, at such Member's expense, such
certified public accounting firm to perform an annual audit of the Company's
books and records. Except as set forth in this Section 7.3, the Company shall
pay the costs and fees for the preparation of the balance sheets and income
statements.
7.4. INCOME TAX RETURNS. The Company shall cause income tax returns for
the Company to be prepared and filed with the appropriate authorities and the
Company shall also cause such other reports as may be required by other
governmental authorities, to be prepared, filed, and distributed as required.
7.5. COSTS OF PREPARATION. Except as otherwise provided in Section 7.3 of
this Agreement, the preparation of all Company books, records, accounts, and
reports shall be at the expense of the Company.
7.6. FISCAL YEAR. The fiscal year of the Company shall be the calendar
year.
ARTICLE 8. TAX MATTERS PARTNER
8.1. DESIGNATION. The Manager(s) shall have the authority to designate
the Member who shall act as "Tax Matters Partner" for purposes of Section 6231
of the Code, and the Treasury Regulations promulgated thereunder. Xxxxxx X.
Xxxxxxx shall be the Tax Matters Partner unless and until his successor is so
appointed.
8.2. INDEMNITY. The Company shall indemnify the Tax Matters Partner
(including the officers and directors of a corporate Tax Matters Partner)
against judgments, fines, amounts paid in settlement, and expenses (including
attorneys' fees) reasonably incurred by it or them in any civil, criminal or
investigative proceeding in which it or they are involved or threatened to be
involved by reason of being the Tax Matters Partner, provided that the Tax
Matters Partner acted
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in good faith, within what it reasonably believed to be in the best interests of
the Company or the Members. The Tax Matters Partner shall not be indemnified
under this provision against any liability to the Company or the Members to
which he would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the conduct of
his office. The indemnification provided hereunder shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under any
applicable statute, agreement, vote of the Members, or otherwise.
8.3. COUNSEL. The Tax Matters Partner may employ tax counsel to represent
the Company in connection with any tax audit or investigation of the Company and
any administrative or judicial proceedings arising out of such audit. The fees
and expenses of such counsel shall be a Company expense and shall be paid by the
Company.
ARTICLE 9. ASSIGNMENTS OF MEMBERSHIP INTERESTS
9.1. RESTRICTIONS ON ASSIGNMENTS. No Member may directly or indirectly
sell, assign, gift, exchange, transfer, mortgage, pledge or otherwise dispose of
all or any part of its interest in the Company without the unanimous concurrence
of the Manager(s). Except as otherwise provided in this Section 9.1, no Member
shall attempt or effect an assignment of all or any portion of such Member's
interest in the Company. Any assignment or attempted assignment in violation of
the preceding sentence shall be null and void.
9.2. ADMISSION OF SUBSTITUTE MEMBER. A person shall be admitted as a
substitute member of the Company if, and only if: (a) such person received an
interest in the Company pursuant to a Permitted Assignment, and (b) such person
agrees to be bound by the terms and provisions of this Agreement by acceptance
of a certificate representing one or more capital units registered in their name
on the books and records of the Company.
9.3. ADMISSION OF ADDITIONAL MEMBER. A person shall be admitted as an
additional member of the Company if, and only if (a) the Manger(s) unanimously
consent to the admission of such person as an additional member of the Company;
and (b) such person agrees to be bound by the terns and provisions of this
Agreement by acceptance of a certificate representing one or more capital units
registered in their name on the books and records of the Company.
9.4. RIGHTS OF ASSIGNEE. Except as otherwise required by Louisiana law,
unless and until an assignee or other successor to an interest in the Company
interest is admitted as a Member of the Company pursuant to the terms and
conditions of this Article 9, such person shall not be entitled to participate
in the management or administration of the Company's business or affairs, to
receive any information or account of Company transactions, or to inspect the
Company's books.
9.5. AVOCATIONS AND DISTRIBUTIONS AFTER ASSIGNMENT. If a Permitted
Assignment of an interest in the Company occurs during any fiscal year of the
Company, Profits, Losses, each item thereof, and all other items attributable to
such interest for such fiscal year shall be divided and allocated between the
transferor and the transferee by taking into account their varying interests
during the fiscal year in accordance with Code Section 706(d), using any
conventions permitted by law and selected by unanimous concurrence of the
Manager(s). All distributions on
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or before the date of a Permitted Assignment shall be made to the transferor,
and all distributions thereafter shall be made to the transferee. If a transfer
of an interest in the Company is not a Permitted Assignment pursuant to the
terms of this Article 9, then all of such items shall be allocated, and all
distributions shall be made, to the person who, according to the books and
records of the Company, on the last day of the fiscal year during which the
transfer occurs, was the owner of the interest in the Company. The Company and
its Members shall incur no liability for making allocations and distributions in
accordance with the provisions of this Section 9.5, whether or not the Company
or any Member has knowledge of any transfer of ownership of any interest in the
Company.
9.6. AMENDMENT OF SCHEDULE A. The Company shall amend Schedule A attached
hereto from time to time to reflect the admission or substitution of any Member.
ARTICLE 10. WITHDRAWAL
Upon the withdrawal of a Member, the withdrawing Member shall be entitled to
those rights to allocations and distributions with respect to its interest in
the Company which are provided for in the Act or this Agreement; provided,
however, that such Member shall not be entitled to receive the balance of his or
her capital account as of the date of such Member's withdrawal.
ARTICLE 11. DISSOLUTION
11.1. LIQUIDATING EVENTS. The Company shall dissolve and terminate in
accordance with Article 8 of the Articles of Organization.
11.2. WINDING UP AND DISTRIBUTION OF PROPERTY. Upon the occurrence of a
liquidating event, the Company promptly shall commence to wind up its affairs.
To the extent not inconsistent with the foregoing, all covenants and
obligations, including provisions as to allocations and distributions, shall
continue in full force and effect until such time as the Company's assets have
been distributed pursuant to this Section 11.2 and the Company's certificate of
organization has been canceled in accordance with the Act. The net proceeds from
liquidation of the Company's assets pursuant to its dissolution and termination
shall be distributed in the following proportions and order of priority:
FIRST: to pay all of the liabilities of the Company, including liabilities
to Members who are creditors of the Company, in the order of priority
required by applicable law;
SECOND: to establish any reserves necessary for any unpaid, future, or
contingent liabilities or obligations of the Company, as reasonably
determined by unanimous concurrence of the Manager(s); and
THIRD: to the Members in accordance with the positive balances of their
capital accounts, as adjusted by taking into account all capital account
adjustments for the Company's taxable year during which the dissolution
occurs and in accordance with Section 1.704-1(b) of the Treasury
Regulations.
11.3. COMPLIANCE WITH CERTAIN REQUIREMENTS OF THE TREASURY REGULATIONS;
NEGATIVE CAPITAL ACCOUNTS. In the event the Company is "liquidated" within the
meaning of
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Treasury Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made
pursuant to this Article 11 to the Members who have positive capital accounts
balances in compliance with Section 1.704-1(b)(2)(ii)(b)(2) of the Treasury
Regulations. If any Member has a negative capital account balance (after giving
effect to all contributions, distributions and allocations for all fiscal years,
including the fiscal year during which such liquidation occurs), such Member
shall have no obligation to make any contribution to the capital of the Company
with respect to such negative capital account balance, and such negative capital
account balance shall not be considered a debt owed to the Company, to any
Member or to any other person for any purpose whatsoever.
ARTICLE 12. GENERAL PROVISIONS
12.1. GOVERNING LAW; VENUE. The laws of the State of Louisiana, excluding
its choice of law provisions if such laws would result in the application of
laws other than the laws of the State of Louisiana, shall govern any disputes
among the Members, the validity of this Agreement, the construction of its
terms, and the interpretation of the rights and duties of the Members. The forum
selected for any proceeding or suit related to a dispute among the Members or
related to this Agreement shall be in a federal or state court of competent
jurisdiction located in Calcasieu Parish, Louisiana for federal matters and
Xxxxxxxxx Xxxxx Parish, Louisiana for state matters. The Members each consent to
said courts' personal jurisdiction over them, and waive any defense, whether
asserted by motion or pleading, that Calcasieu Parish, Louisiana and Xxxxxxxxx
Xxxxx Parish, Louisiana is an improper or inconvenient venue.
12.2. FURTHER ACTION. Each Member agrees to perform all further acts and
execute, acknowledge, and deliver any documents which may be reasonably
necessary, appropriate, or desirable to carry out the provisions of this
Agreement.
12.3. NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement, whether
express or implied, is intended or may be construed to confer upon, or to grant
to, any person (other than the Members and their legal and personal
representatives, heirs, successors, and permitted assignees) any right, remedy,
or claim under or because of this Agreement or any covenant, condition, or
stipulation of it.
12.4. BINDING EFFECT; COUNTERPARTS. The covenants and agreements contained
in this Agreement shall be binding on, and shall inure to the benefit of, the
legal and personal representatives, heirs, successors, and permitted assignees
of the Members. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement.
12.5. COMPLETE AGREEMENT; MODIFICATION. This Agreement contains the final,
complete, and exclusive expression of the understanding among the Members with
respect to the Company, and supersedes any prior or contemporaneous agreement or
representation, oral or written, by any of them. This Agreement may be modified
or amended only by an agreement in writing signed by or on behalf of all of the
Members.
12.6. NOTICES. Any notice permitted or required hereunder shall be given
in writing, and shall be deemed to have been duly given (a) when delivered or
when deposited in a United
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States postal service letter box for mailing by first class mail, postage
prepaid, certified mail, with return receipt requested (regardless of whether
the return receipt is subsequently received), (b) one business day after
deposited with a nationally recognized courier service for overnight delivery or
(c) when sent prior to 5:00 PM by facsimile (or on the succeeding day if sent by
facsimile after 5:00 PM) provided that a confirmation of receipt is retained by
the sender; and, in each case, addressed by the sender: to the Company at its
principal office as set forth in Section 1.7 hereof; to the Members at their
respective addresses or facsimile numbers as set forth on Schedule A attached
hereto; or at such other addresses or facsimile numbers as the parties may
designate in writing to each other.
12.7. DESCRIPTIVE HEADINGS. The titles and captions preceding the text of
the articles and sections of this Agreement are inserted solely for convenient
reference and neither constitute a part of this Agreement nor affect its
meaning, interpretation, or effect.
12.8. SEVERABILITY. If any paragraph, or other provision of this
Agreement, or the application thereof, is held to be invalid, illegal, or
unenforceable in any respect or for any reason, the remainder of this Agreement,
and the application of the paragraph, or other provision to a person or
circumstance with respect to which it is valid, legal, and enforceable, shall
not be affected thereby.
12.9. WAIVER. The failure of any party to this Agreement at any time or
times to require performance of any provisions of this Agreement shall in no
manner affect such party's right to enforce the same; and no waiver by any party
to this Agreement of any provision (or of a breach of any provision) of this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed or construed either as a further or continuing waiver of any such
condition or breach or as a waiver of any other provision (or of a breach of any
other provision) of this Agreement.
12.10. ATTORNEYS' FEES. If any suit or action shall be instituted to
enforce or to interpret this Agreement, the prevailing party shall be entitled
to recover from the non-prevailing party all costs, fees, and reasonable
attorneys' and paralegals' fees, expended as part of such suit, action, or
appeal thereof.
12.11. CERTAIN WORDS. Throughout this Agreement, except where the context
requires otherwise, the masculine gender shall be deemed to include the feminine
and neuter and the singular number shall be deemed to include the plural, and
vice-versa. The phrase "pro rata" shall mean in the proportion that the item
being measured for each Member bears to the total amount of that item for all
the Members to whom the measurement is applicable. The phrase "a majority in
interest of the Members" shall mean Members holding a majority of the
outstanding capital units as set forth on Schedule A.
12.12. EVIDENCE OF INTEREST. The interest of each Member may be evidenced
by a certificate of capital units issued to and registered in the name of the
Member.
12.13. COMPUTATION OF TIME. Whenever the last day for the exercise of any
privilege or the discharge of any duty under this Agreement shall fall upon
Saturday, Sunday or any public or legal holiday, whether federal or of the State
of Louisiana, the party having such privilege or
Page 11 of 20
duty shall have until 5:00 p.m. on the next succeeding regular business day to
exercise such privilege or to discharge such duty.
12.14. MUTUAL CONTRIBUTION. This Agreement has been drafted on the basis of
the parties' mutual contributions of language and shall not be construed against
either party as the drafter of this Agreement.
IN WITNESS WHEREOF, the Members have signed this OPERATING AGREEMENT as of
the date first set forth above.
WITNESSES: MEMBERS:
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
---------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxx XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxx X. Xxxxxxx
---------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxx XXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxxx
---------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxx XXXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx
Page 12 of 20
SCHEDULE A
TO
OPERATING AGREEMENT
OF
CENTRAL LOUSIANA WASTE LLC
A LOUISIANA LIMITED LIABILITY COMPANY
------------------- ------------------- ------------------------------------------ -------------------- ----------------
CERTIFICATE DATE NAME, ADDRESS AND FAX NO. OF MEMBER: CAPITAL CAPITAL
NUMBER: ISSUED: CONTRIBUTION: UNITS
* ISSUED:
------------------- ------------------- ------------------------------------------ -------------------- ----------------
12 May 15, 1995 Xxxxxx X. Xxxxxxx $200.00 33,378
0000 Xxxxxxx Xx.
Xxxxxxxx, XX 00000
000-000-0000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
13 May 15, 1995 Xxxx X. Xxxxxxx $200.00 33,378
0000 Xxx 00 Xxxx
Xxxxxxx, XX 00000
000-000-0000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
14 May 15, 1995 Xxxxxxx X. Xxxxxxx $200.00 33,378
0000 Xxx 00 Xxxx
Xxxxxxx, XX 00000
000-000-0000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
* The certificate book was not ordered until the completion of the second
offering to new members on 8-1-96, and therefore, the sequence of
certificate numbers are out of order.
Page 13 of 20
ADDENDUM
TO
SCHEDULE A
TO
OPERATING AGREEMENT
OF
CENTRAL LOUISIANA WASTE LLC
A LOUISIANA LIMITED LIABILITY COMPANY
------------------- ------------------- ------------------------------------------ -------------------- ----------------
CERTIFICATE DATE NAME, ADDRESS AND FAX NO. OF MEMBER: CAPITAL CAPITAL
NUMBER: ISSUED: CONTRIBUTION: UNITS
ISSUED:
------------------- ------------------- ------------------------------------------ -------------------- ----------------
1 August 1, 1996 Xxxxxx & Xxxxxx Xxxxxxxxxx $150,000.00 27,027
Property, Inc.
000 Xxxxx Xxxxxxx Xxx.
Xxxxxxxx, XX 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
2 August 1, 1996 Xxxxx X. Xxxxxxx $100,000.00 18,018
000 X. Xxxxxxxx Xx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
3 August 1, 1996 Warner X. Xxxxxxx $50,000.00 9,009
0000 Xxxx Xxx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
4 August 1, 1996 P & S Well Service No. 2, Inc. $50,000.00 9,009
X.X. Xxx 00000
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
5 August 1, 1996 Xxxxxxx X. Xxxxxxx $7,020.75 1,265
000 Xxxxxx Xx.
Xxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
6 August 1, 1996 Xxxxxxx X. Xxxxxx $6,000.00 1,081
0000 Xxxxxx Xxxx
Xxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
7 August 1, 1996 Xxxxxxx X. Xxxxxx $14,985.00 2,700
000 X. Xxxxxxx Xxx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
8 August 1, 1996 G. Xxxxxxx Xxxxxx $30,000.00 5,405
0000 Xxxxxxx Xx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
9 Xxxxxx 0, 0000 Xxxxxxx Xxxxxx $27,750.00 5,000
00000 Xxxxxx Xxxx
Xxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
10 August 1, 1996 Xxxxxx Interest, LLC $89,993.25 16,215
0000 Xxxxxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
Page 14 of 20
------------------- ------------------- ------------------------------------------ -------------------- ----------------
11 August 1, 1996 Xxxxxx X. Xxxxx $30,000.00 5,405
X.X. Xxx 000
Xxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
As provided in Article 9.3 of the
Operating Agreement dated February 1,
1996 we the undersigned constituting all of the managers of the Company
hereby agree to the admission of all of the aforementioned individuals
and entities as additional members of the Company.
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
August 1, 1996 Xxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Page 15 of 20
ADDENDUM
TO
SCHEDULE A
TO
OPERATING AGREEMENT
OF
CENTRAL LOUISIANA WASTE LLC
A LOUISIANA LIMITED LIABILITY COMPANY
------------------- ------------------- ------------------------------------------ -------------------- ----------------
CERTIFICATE DATE NAME, ADDRESS AND FAX NO. OF MEMBER: CAPITAL CAPITAL
NUMBER: ISSUED: UNITS UNITS
SURRENDERED: ISSUED:
------------------- ------------------- ------------------------------------------ -------------------- ----------------
12 May 15, 1995 Xxxxxx X. Xxxxxxx 33,378
0000 Xxxxxxx Xx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
13 May 15, 1995 Xxxx X. Xxxxxxx 33,378
0000 Xxx 00 Xxxx
Xxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
14 May 15, 1995 Xxxxxxx X. Xxxxxxx 33,378
0000 Xxx 00 Xxxx
Xxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
17 March 15, 1999 Xxxxxx X. Xxxxxxx 31,212
0000 Xxxxxxx Xx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
16 March 15, 1999 Xxxx X. Xxxxxxx 29,711
0000 Xxx 00 Xxxx
Xxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
15 March 15, 1999 Xxxxxxx X. Xxxxxxx 31,211
0000 Xxx 00 Xxxx
Xxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
18 March 15, 1999 Xxxx Xxxxxx 1,500
000 Xxxxxxxxxxxxxx Xxx
Xxxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
00 Xxxxx 00, 0000 Xxxxxxx Corp. 6,500
000 Xxxx Xxxx Xx.
Xxxx Xxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
Page 16 of 20
As provided in Article 9.1 of the
Operating Agreement dated February 1,
1996, we the undersigned constituting all of the managers of the
Company hereby agree to the transfer of Capital Units from existing
members to new members; and as provided in Article 9.3, we hereby agree
to the admission of the aforementioned individual and entity as
additional members of the Company.
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
March 15, 1996 Xxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Page 17 of 20
ADDENDUM
TO
SCHEDULE A
TO
OPERATING AGREEMENT
OF
CENTRAL LOUISIANA WASTE LLC
A LOUISIANA LIMITED LIABILITY COMPANY
------------------- ------------------- ------------------------------------------ -------------------- ----------------
CERTIFICATE DATE NAME, ADDRESS AND FAX NO. OF MEMBER: CAPITAL CAPITAL
NUMBER: ISSUED: UNITS UNITS
SURRENDERED: ISSUED:
------------------- ------------------- ------------------------------------------ -------------------- ----------------
15 March 15, 1999 Xxxxxxx X. Xxxxxxx 31,211
0000 Xxx 00 Xxxx
Xxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
17 March 15, 1999 Xxxxxx X. Xxxxxxx 31,212
0000 Xxxxxxx Xx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
20 April 1, 1999 Xxxxxxx X. Xxxxxxx 28,211
0000 Xxx 00 Xxxx
Xxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
21 April 1, 1999 Xxxx X. Xxxxxxx 1,500
0000 Xxx 00 Xxxx
Xxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
22 April 1, 0000 Xxxxxxxx X. Xxxxxxx 1,500
0000 Xxx 00 Xxxx
Xxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
23 April 1, 1999 Xxxxxx X. Xxxxxxx 28,612
0000 Xxxxxxx Xx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
24 April 1, 1999 Xxxxxx X. Xxxxxxx 1,000
0000 Xxxxxxx Xx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
25 April 1, 1999 E. Xxxxxxx Xxxxxxx 1,000
0000 Xxxxxxx Xx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
26 April 1, 1999 Corda X. Xxxxx 250
0000 Xxxxxxxxx Xx.
Xxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
27 April 1, 1999 Xxxxxxx X. Xxxxxx 250
0000 Xxxxxxxx Xx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
Page 18 of 20
------------------- ------------------- ------------------------------------------ -------------------- ----------------
28 April 1, 1999 Xxxxxxxx Crochet 100
000 Xxxxxxx Xx., Xxx. 00
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
As provided in Article 9.1 of the
Operating Agreement dated February 1,
1996, we the undersigned constituting all of the managers of the
Company hereby agree to the transfer of Capital Units from existing
members to new members; and as provided in Article 9.3, we hereby agree
to the admission of the aforementioned individuals as additional
members of the Company.
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
April 1, 1999 Xxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Page 19 of 20
ADDENDUM
TO
SCHEDULE A
TO
OPERATING AGREEMENT
OF
CENTRAL LOUISIANA WASTE LLC
A LOUISIANA LIMITED LIABILITY COMPANY
------------------- ------------------- ------------------------------------------ -------------------- ----------------
CERTIFICATE DATE NAME, ADDRESS AND FAX NO. OF MEMBER: CAPITAL CAPITAL
NUMBER: ISSUED: UNITS UNITS
SURRENDERED: ISSUED:
------------------- ------------------- ------------------------------------------ -------------------- ----------------
1 August 1, 1996 Xxxxxx & Xxxxxx Xxxxxxxxxx 27,027
Property, Inc.
000 Xxxxx Xxxxxxx Xxx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
29 January 5, 2000 Xxxxxxx X. Xxxxxx 13,513
0000 X. Xxxxxxx Xxx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
00 Xxxxxxx 0, 0000 Xxxxxx X. Xxxxxx 13,513
000 Xxxxx Xxxxxxx Xxx.
Xxxxxxxx, XX 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
31 January 5, 2000 Xxxxxx & Xxxxxx Xxxxxxxxxx 1
Property, Inc.
000 Xxxxx Xxxxxxx Xxx.
Xxxxxxxx, XX. 00000
------------------- ------------------- ------------------------------------------ -------------------- ----------------
As provided in Article 9.1 of the Operating Agreement dated February 1,
1996, we the undersigned constituting all of the managers of the
Company hereby agree to the transfer of Capital Units from an existing
member to new members; and as provided in Article 9.3, we hereby agree
to the admission of the aforementioned individuals as additional
members of the Company.
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
January 5, 2000 Xxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
Page 20 of 20
