OPERATING AGREEMENT OF ST. JOSEPH LANDFILL, LLC
Exhibit 3.926
OPERATING AGREEMENT OF
ST. ▇▇▇▇▇▇ LANDFILL, LLC
ST. ▇▇▇▇▇▇ LANDFILL, LLC
This Operating Agreement is executed as of August 10, 2004, by Allied Waste North
America, Inc., a Delaware corporation (the“ Member”) as the sole member of the Company.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement shall
have the
meanings set forth in Section 8.7 hereof.
1.2 Formation. The parties hereby form the Company as a limited liability company
pursuant to the provisions of the Act and upon the terms and conditions set forth in this
Agreement and the Certificate of Formation.
1.3 Name. The name of the Company is St. ▇▇▇▇▇▇ Landfill, LLC. The name of the
Company may be changed at any time by the Member.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of solid waste management and disposal, and to engage in any other business or
activity
permitted under Delaware law and the laws of any jurisdiction in which the Company may do
business.
1.5 Intent. It is the intent of the Member that the Company be treated as a
separate
entity for state law purposes, but be disregarded as an entity and operated in a manner
consistent
with its treatment as a “division” of the Member for federal and state income tax purposes.
It
also is the intent of the Member that the Company not be operated or treated as a
“partnership”
for purposes of Section 303 of the federal Bankruptcy Code.
1.6 Office. The registered office of the Company within the State of Missouri shall
be
CT Corporation System, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of St. Louis
County. The registered office may be changed to any other place within the State of
Missouri
upon the consent of the Member. The Company may maintain a registered office in any state
within which it does business at any location approved by the Member.
1.7 Registered
Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Missouri are CT Corporation System, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇. The Company’s agent for service of legal process
may
be changed upon the consent of the Member.
1.8 Term. The term of the Company shall commence on the date the
Certification of
Formation is filed in Missouri, and shall continue in perpetuity until the Company is dissolved
as set forth in this Agreement.
1.9 Certificate of Formation. The Member shall cause a Certificate of Formation
to be filed in the State of Missouri. The Member shall file any amendments to the Certificate of
Formation deemed necessary by it to reflect amendments to this Agreement adopted by the Member in
accordance with the terms hereof. Upon the approval of the Certificate of Formation, or any
amendments thereto, by the Member in accordance with this Agreement, the Member or a designee of a
Member shall be authorized to execute and file such instruments with the appropriate state
agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1 Member. The name and address of the Member are set forth on Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member shall contribute to the Company the cash
or other assets set forth in Exhibit A to this Agreement.
2.3 Additional Capital Contributions. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.4 Limitations Pertaining to Capital Contributions.
(a) Liability of Member. The Member shall not be liable for the debts,
liabilities, contracts or any other obligations of the Company. Except as agreed upon by the
Member, and except as otherwise provided by the Act or by any other applicable state law, the
Member shall be liable only to make the Capital Contributions as provided in Sections 2.2 and
2.3 hereof and shall not be required to make any other Capital Contributions or loans to the
Company
(b) No Third Party Rights. Nothing contained in this Agreement is intended
or will be deemed to benefit any creditor of the Company, and no creditor of the Company will
be entitled to require the Member to make additional Capital Contributions.
2.5 Member Loans. The Member may make loans (“Member Loans”) to the
Company, which shall bear interest and be repaid on such reasonable terms and conditions as
may be approved by the Member.
SECTION 3. DISTRIBUTIONS
Except as otherwise provided in Section 7 hereof, Net Cash Flow, if any, shall be distributed
to the Member, at such times as may be determined by the Member.
2
SECTION 4. ALLOCATIONS
4.1 Profits and Losses. Unless otherwise required by the Code, all Profits, Losses
and items thereof for each fiscal year of the Company shall be allocated to the Member in full,
disregarding the Company as a separate entity for federal income tax purposes.
SECTION 5. MANAGEMENT
5.1 General Management Structure. All decisions and actions concerning the
Company and its affairs shall be made or taken by the Member. Any party dealing with the
Company shall be permitted to rely absolutely on the signature of the Member as binding on the
Company, without any duty of further inquiry.
5.2 Delegation of Authority to Officers. The Member may designate one or more
Persons as officers of the Company. The officers shall have the authority to act for and bind
the
Company to the extent of the authority granted to them in resolutions adopted by the Member on
behalf of the Company. The officers of the Company may include a president, vice presidents, a
secretary, a treasurer, and such other officers as the Member deems appropriate. The officers
of
the Company will be entitled to such compensation for their services as the Member may
determine from time to time.
5.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member, its officers and directors, and the officers of the Company (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 Company, 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; TRANSFERS
6.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents.
6.2 Transfers. No interest of the Company may be assigned, transferred, or
otherwise disposed of without the consent of the Member. Any attempted transfer,
assignment, encumbrance, hypothecation or other disposition shall be null and void.
SECTION 7. DISSOLUTION AND TERMINATION
7.1 Dissolution. The Company shall dissolve upon the first to occur of any of
the following events:
3
(a) The sale of all or substantially all of the Company’s assets and the
collection of the proceeds of such sale;
(b) The decision by the Member to dissolve the Company; or
(c) The entry of a decree of dissolution under Section 347.143 of the Act.
7.2 Winding Up.
(a) General. Following the dissolution of the Company, as provided in
Section 7.1 hereof, the Member may participate in the winding up of the Company as provided in
Section 347.141 of the Act. The Company shall cease to carry on its business, except insofar
as
may be necessary for the winding up of its business, but the Company’s separate existence
shall
continue until a certificate of cancellation has been filed with the Missouri Secretary of
State or
until a decree dissolving the Company has been entered by a court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. Upon the dissolution of the
Company, the Member, or court-appointed trustee, if there is no remaining Member, shall take
full account of the Company’s liabilities and assets, and such assets 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 Company shall continue to be governed by the provisions of
this
Agreement, with the management of the Company continuing as provided in Section 5 hereof.
The proceeds from liquidation of the Company’s property, to the extent sufficient therefore,
shall
be applied and distributed in the following order:
(i) To the payment and discharge of all of the Company’s debts and liabilities, including
those to the Member as a creditor, to the extent permitted by law, and the establishment of any
necessary reserves;
(ii) To the Member in satisfaction of any Member Loans which have not been satisfied pursuant
to Section 7.2(b)(i); and
(iii) To the Member in accordance with Section 3.
7.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefore and all
of the remaining property and assets of the Company have been distributed to the Member, a
certificate of cancellation shall be executed and filed by the Member with the Missouri
Secretary
of State.
4
SECTION 8. MISCELLANEOUS
8.1 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
Member and its heirs, legatees, legal representatives, successors, transferees and assigns.
8.2 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.
8.3 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.
8.4 Additional Documents. Each Member, upon the request of the other Member,
agrees to perform all further acts and execute, acknowledge and deliver any documents which
may be reasonably necessary or appropriate to carry out the provisions of this Agreement.
8.5 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.
8.6 Missouri Law. The laws of the State of Missouri shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of
the
Member.
8.7 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
“Act” means the Missouri Limited Liability Companies Act, as set forth in Missouri Revised
Statues § 347.010, et. seq., as amended from time to time (or any corresponding
provisions of succeeding law).
“Agreement” means this Operating Agreement, as amended from time to time. Words such as
“herein,” “hereinafter,” “hereof,” “hereto” and “hereunder,” refer to this Agreement as a whole,
unless the context otherwise requires.
“Capital Contribution” means, with respect to any Member, the amount of money and the
net fair market value of property (other than money) contributed to the Company by such Member.
“Certificate of Formation” has the meaning given that term in Section 1.9 hereof.
“Code” means the Internal Revenue Code of 1986, as amended from time to time (or any
corresponding provisions of succeeding law).
5
“Company” means the limited liability company formed pursuant to this Agreement and any
limited liability company continuing the business of this Company in the event of dissolution as
herein provided.
“Member” means any Person identified as a Member in the heading to this Agreement. If any
Person is admitted as a Substituted Member pursuant to the terms of this Agreement, “Member” shall
also be deemed to refer to such Person. “Member” refers collectively to all Persons who are
designated as a “Member” pursuant to this definition.
“Net Cash Flow” means the gross cash proceeds to the Company from all sources, less
the portion thereof used to pay or establish reserves for Company expenses, debt payments
(including payments on Member Loans), capital improvements, replacements and contingencies, all as
determined by the Member.
“Person” means any individual, partnership, corporation, limited liability company, trust or
other entity.
“Profits” and “Losses” mean, for each fiscal year or other period, an amount equal to the
Company’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 by the Member to comply with the Regulations.
“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).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
| ALLIED WASTE NORTH AMERICA, INC., a Delaware corporation |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| Vice President, Operations | ||||
6
EXHIBIT A
| Initial Capital | ||||
| Name and Address of the Member | Contribution | |||
Allied Waste North America, Inc. |
$ | 100.00 | ||
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇ |
||||
▇▇▇▇▇ ▇▇▇ |
||||
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
||||