This Second Amended and Restated Limited Liability Company Agreement (“the Agreement”) of South Hadley
Landfill, LLC (the “LLC”) is entered into as of January 29, 2006 by NEWS MA Holdings, Inc., as sole member of the LLC (in its capacity as the sole member of the LLC, the “Member”).
WHEREAS, the LLC was formed as a limited liability company under 6 Del C. §18-101, et seq., as amended from time to time (the
“Act”) on April 30, 2003;
WHEREAS, the LLC and the prior member of the LLC entered into the Limited Liability Company
Agreement of the LLC dated May 1, 2003 which was amended and restated February 2005 by the Member;
NOW, THEREFORE, in consideration
of the mutual covenants expressed herein, the parties hereby agree as follows:
The Member hereby agrees as follows:
1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings:
“Act” has the meaning set forth in the preamble hereof.
“Affiliate” means, with respect to any Person, any other Person that controls, is under common control with, or is controlled
by, such Person. As used in this context, the terms “controls,” “under common control with” or “controlled by” mean the possession, direct or indirect, of the power to direct, or cause the direction of, the management
and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
the meaning set forth in the preamble hereof.
“Covered Person” means the Member, any Affiliate of the Member and
officer, director, control person, shareholder, partner or employee of the Member and their respective Affiliates, and any officer, employee or expressly authorized agent of the LCC, or its Affiliates.
“Delaware Secretary” means the Secretary of State of the State of Delaware.
“LLC” has the meaning set forth in the preamble hereof.
“Member” has the meaning set forth in the preamble hereof.
“Officer” has the meaning set forth in Section 15 hereof.
“Person” means any individual, corporation, partnership, joint venture, limited liability company, limited liability
partnership, association, joint-stock company, trust, unincorporated organization, or other organization, whether or not a legal entity, and any governmental authority.
2. Name. The name of the limited liability company is South Hadley Landfill, LLC.
3. Certificates of Formation and Qualification to Do Business. The Member, acting through any of its duly authorized Officers or its
duly appointed counsel, as the case may be, as an authorized person within the meaning of the Act, shall execute, deliver and file, or cause the execution, delivery and filing of, all certificates required by the Act, including any amendments
thereto, to be filed with the Delaware Secretary. The Member, acting through any of its Officers or its duly appointed counsel, as the case may be, shall execute, deliver and file, or cause the execution, delivery and filing of, any other
certificates (and any amendments and/or restatements thereof) necessary for the LLC to qualify to do business in any and all jurisdictions in which the LLC may wish to conduct business.
4. Exclusive Purpose and Powers. The LLC is formed for the exclusive object and purpose of engaging in non-hazardous solid waste
collection, transportation and disposal business and to engage in and carry on any other business permitted by law; provided that, the business and purposes of the LLC shall not be limited to its initial principal business activity and, unless the
Member otherwise determines, it shall have authority to engage in any other lawful business, purpose or activity permitted by the Act, and it shall possess and may exercise all of the powers and privileges granted by the Act or which may be
exercised by any person, together with any powers incidental thereto, so far as such powers or privileges are necessary or convenient to the conduct, promotion or attainment of the business purposes or activities of the LLC.
5. Limitation. The LLC is hereby authorized to engage in the activities set forth in Section 4 hereof. Other than the foregoing,
the LLC shall not engage in any other activity except as required or authorized by the terms of this Agreement.
6. Fiscal Year: Term. Unless otherwise required, the taxable year of the LLC shall end on
December 31st in each year and the fiscal year of the LLC shall be the same as its taxable year. The LLC shall continue in existence in perpetuity from the date of filing of the Certificate of Formation, unless earlier dissolved pursuant to the
Act or as set forth in this Agreement.
7. Principal Business Office. The principal business office of the LLC shall be maintained
at such location as may hereafter be determined by the Member.
8. Registered Office and Agent. The registered agent for service of
process and the registered office shall be that person and location reflected in the Certificate of Formation of the LLC as filed with the Delaware Secretary. The Member may, from time to time, change the registered agent or office through
appropriate filings with the Delaware Secretary. In the event the registered agent ceases to act as such for any reason or the registered office shall change, the Member shall promptly designate a replacement registered agent or file a notice of
change of address, as the case may be.
9. Member. The name and the mailing address of the Member are as follows:
Name: NEWS MA Holdings, Inc.
Address: 4 Mount Royal Ave., Suite 250
Marlborough, Massachusetts 01752
10. Limited Liability. Except as otherwise provided by the Act, the debts, obligations and liabilities of the LLC, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the LLC, and the Member shall not be obligated personally for any such debt, obligation or liability of the LLC solely by reason of being a member of the LLC.
11. Admission. The Member is deemed admitted as the Member of the LLC upon its execution and delivery of this Agreement.
12. Capital Contributions. The Member may, in its sole discretion, make a capital contribution(s) to the LLC.
13. Tax Reporting. It is intended that the LLC will be classified as a disregarded entity for federal income tax purposes.
14.1 Management by Member. The business and affairs of the LLC shall be managed by the Member in its sole discretion. The Member may
delegate or sub-contract such management to other entities, including Affiliates on customary terms.
14.2 Powers. The Member shall
have the power, in its sole discretion, to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein. The Member has the authority to bind the LLC.
14.3 Acts of the Member. Any action required or permitted to be taken by the Member may be taken by a written consent of the Member.
14.4 Member as Agent. To the extent of its powers set forth in this Agreement, the Member is an agent of the LLC for the purpose
of the LLC’s business, and the actions of the Member taken in accordance with such powers set forth in this Agreement shall bind the LLC.
15. Officers. The Member may, from time to time as it deems advisable, appoint officers of the LLC (the “Officers”) to
act on behalf of the LLC and assign titles (including, without limitation, Chief Executive Officer, President, Vice President, Secretary, and Treasurer) to any such person. The Chief Executive Officer shall have general charge of the business
affairs of the LLC. He or she may employ and discharge employees and agents of the LLC, except such as shall be appointed by the Member, and he or she may delegate these powers. The Chief Executive Officer may vote the stock or other securities of
any domestic or foreign corporation of any type or kind which may at any time be owned by the LLC, may execute any stockholders’ or other consents with respect to any entity owned by the LLC and may in his or her discretion delegate such powers
by executing proxies, or otherwise, on behalf of the LLC. The Member from time to time may confer like powers upon any other person or persons. The President of the LLC shall report to the Chief Executive Officer and shall have such powers and
perform such duties as the Member or the Chief Executive Officer may from time to time prescribe. Notwithstanding the foregoing, in the absence of a resolution by the Member, the President shall not have the power to vote the stock or other
securities of any domestic or foreign corporation of any type or kind which may at any time be owned by the LLC or execute any stockholders’ or other consents with respect to any entity owned by the LLC. All other officers of the LLC shall have
such powers and perform such duties incident to each of their respective offices and such other duties as may from time to time be conferred upon or assigned to them by the Member. Any delegation pursuant to this Section 15 may be revoked at
any time by the Member.
16. Outside Business and Transactions with Affiliates. The Member or any Affiliate thereof
shall not be obligated to present any particular investment opportunity to the LLC even if such opportunity is of a character that, if presented to the LLC, could be taken by the LLC, and the Member or any Affiliate thereof shall have the right to
take for its own account (individually or as a partner, shareholder, fiduciary or otherwise) or to recommend to others any such particular investment opportunity.
17.1.1 No Covered Person shall be liable to the LLC or any other Covered Person for any loss, damage or claim incurred by reason of any act
or omission performed or omitted by such Covered Person in good faith on behalf of the LLC and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, except that a Covered Person shall
be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.
17.1.2 A Covered Person shall be fully protected in relying in good faith upon the records of the LLC and upon such information, opinions,
reports or statements presented to the LLC by any person or entity as to matters the Covered Person reasonably believes are within the professional or expert competence of such person or entity and who or which has been selected with reasonable care
by or on behalf of the LLC, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses, or any other facts pertinent to the existence and amount of assets from which distributions to
the Member might properly be paid.
17.2 Duties and Liabilities of Covered Persons. To the extent that, at law or in equity, a
Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the LLC or to any other Covered Person, a Covered Person acting under this Agreement shall not be liable to the LLC or to any other Covered Person for its
good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace
such other duties and liabilities of such Covered Person.
17.3 Entitlement to Indemnification. To the fullest extent permitted by
applicable law, a Covered Person shall be entitled to indemnification from the LLC for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of
the LLC and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by
such Covered Person by reason of gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 17 shall be provided out of and to the extent of LLC assets
only, and no Covered Person shall have any personal liability on account thereof
17.4 Expenses. To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by a Covered Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the LLC prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the
LLC of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section 17.
17.5 Insurance. The LLC may purchase and maintain insurance, to the extent and in such amounts as the Member shall, in its sole
discretion, deem reasonable, on behalf of Covered Persons and such other persons or entities as the Member shall determine, against any liability that may be asserted against or expenses that may be incurred by any such person or entity in
connection with the activities of the LLC or such indemnities, regardless of whether the LLC would have the power to indemnify such person or entity against such liability under the provisions of this Agreement. The Member and the LLC may enter into
indemnity contracts with Covered Persons and adopt written procedures pursuant to which arrangements are made for the advancement of expenses and the funding of obligations under this Section 17 and containing such other procedures regarding
indemnification as are appropriate.
18. Resignation. The Member may resign from the LLC as provided in this Section 18 and
upon satisfaction of the provisions of this Section 18, provided that such resignation will not result in a dissolution of the LLC. If the last remaining member of the LLC is permitted to resign pursuant to this Section 18, such
resignation shall not be effective until a new member or members shall be admitted to the LLC in the place and stead of the resigning member and such new member or members shall each have executed an instrument signifying its agreement to be bound
by the terms and conditions of this Agreement. Such admission shall be deemed effective immediately prior to the resignation, and, immediately following such admission, the resigning member shall cease to be a member of the LLC.
19. Dissolution. The LLC shall be dissolved without further action by the Member and its affairs wound up upon the first to occur of
any of the following events:
(i) the written consent of the Member in accordance with Section 18-801 of the Act, or
(ii) the entry of a decree of judicial dissolution under Section 18-802 of the Act.
In the event of dissolution, the LLC shall conduct only such activities as are necessary to wind
up its affairs (including the sale of the assets of the LLC in an orderly manner), and the assets of the LLC shall be applied in the manner, and in the order or priority, set forth in Section 18-804 of the Act.
20. Severability. Each provision of this Agreement shall be considered separable and if for any reason any provision or provisions
herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those provisions of this Agreement that are valid,
enforceable and legal. The preceding sentence of this Section 20 shall be of no force or effect if the consequence of enforcing the remainder of this Agreement without such invalid, unenforceable or illegal provision would be to cause the
Member to lose the material benefit of its economic bargain.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same agreement.
22. Entire Agreement. This Agreement, as amended from time to time, constitutes the entire agreement of the Member with respect to the
subject matter hereof.
23. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of
Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.
This Agreement may not be modified, altered, supplemented or amended except pursuant to a written agreement executed and delivered by the Member.
25. 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 deemed to have been received (i) on the date delivered, if delivered by hand (ii) three calendar days after deposited in the United States mail, postage prepaid, certified mail, return receipt requested, or
(iii) confirmation of receipt of facsimile provided that the transmission is to the correct facsimile number and, provided further that such facsimile is followed by a hard copy of the facsimile communication sent promptly thereafter by
registered or certified mail, postage and charges prepaid, if sent by facsimile transmission, each of which must be delivered to the party entitled to notice marked to the addresses noted below or to such other address as such party may in the
future specify by notice to the Member:
25.1 If to the LLC, to the address determined pursuant to Section 8 hereof.
25.2 If to the member, to the address set forth in Section 9 hereof.
26. Binding Effect. Except as otherwise provided in this Agreement, this Agreement shall be binding on, and inure to the benefit of,
the Member and its successors, transferees and permitted assigns.
27. 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 thereof.
28. Variation of Terms. All terms 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.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound here by, has duly executed