EXHIBIT 3.22
LIMITED LIABILITY COMPANY AGREEMENT
OF
WASTE SERVICES LIMITED PARTNER, LLC
A DELAWARE LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT (this "Agreement") is entered into as of April
21, 2004, by Waste Services, Inc., a Delaware corporation (the "Member"). By
entering into this Agreement, the Member shall become the sole Member of Waste
Services Limited Partner, LLC, a Delaware limited liability company (the
"Company").
ARTICLE I
DEFINITIONS
1.1 Affiliate. "Affiliate" of a Member shall mean any Person, directly
or indirectly, through one or more intermediaries, controlling, controlled by,
or under common control with the Member, as applicable. The term "control," as
used in the immediately preceding sentence, shall mean with respect to a
corporation or limited liability company the right to exercise, directly or
indirectly, more than fifty percent (50%) of the voting rights attributable to
the controlled corporation or limited liability company, and, with respect to
any individual, partnership, trust, other entity or association, the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of the controlled entity.
1.2 Capital Contributions. The Member's "Capital Contributions" are the
fair market value of those contributions it makes to the Company pursuant to
Section 3.1.
1.3 LLC Act. "LLC Act" shall mean the Delaware Limited Liability Company
Act under Section 18-101 et. seq. of Title 6 of the Delaware Code.
1.4 Manager. A "Manager" shall mean any of the mangers of the Company
duly appointed or elected to serve in such capacity under this Agreement.
1.5 Member. The "Member" shall mean each person or entity who has
executed this Agreement.
1.6 Membership Interest. "Membership Interest" with respect to the
Member shall mean the sole ownership interest in the Company.
1.7 Person. "Person" shall mean an individual, partnership, limited
partnership, limited liability company, corporation, trust, estate, association
or any other entity.
ARTICLE II
FORMATION, PURPOSE, NAME, ETC.
2.1 Formation. The Company has been formed as a limited liability
company pursuant to the provisions of the Act and all other pertinent laws of
the State of Delaware by the filing of a Certificate of Formation with the
Secretary of State of the State of Delaware on April 8, 2004.
2.2 Name. The Company shall conduct the Company Business under the name
of "Waste Services Limited Partner, LLC."
2.3 Purpose. The purpose of the Company shall be to hold, manage, sell,
etc., interests in limited partnerships for general business purposes (the
"Company Business") and in connection therewith to engage in any lawful business
which may be conducted by a limited liability company under the LLC Act and to
exercise all powers necessary or incidental to, or reasonably connected with,
the Company Business. The Company's place of business shall be Wilmington,
Delaware, and the Company will not conduct any business in the State of Texas.
2.4 Other Businesses. The Member may conduct businesses and activities
other than the Company Business and the Company shall have no rights by virtue
of this Agreement in such other businesses or activities.
2.5 Duration. Unless the Company is earlier dissolved under the
provisions of this Agreement or the LLC Act, the existence of the Company shall
be perpetual.
2.6 Registered Office and Agent. The Company's Registered Office in the
State of Delaware, shall be Nemours Building, Suite 1414, 1007 North Orange
Street, Wilmington, Delaware 19801, or any other place that the Member may
determine from time to time. The registered agent of the Company for service of
process at such address is Waste Services Limited Partner, LLC, or such other
agent as may be designated from time to time by the Member.
2.7 Principal Place of Business. The principal place of business of the
Company shall be located at its Registered Office, or at such other place or
places as the Member shall from time to time determine; provided, however, that
no business shall be conducted by or on behalf of the Company in the State of
Texas.
ARTICLE III
CAPITAL OF THE COMPANY
3.1 Capital Contributions. The Member shall contribute to the capital of
the Company as its Capital Contribution the money and/or property specified in
Exhibit "A" attached hereto and by this reference incorporated herein. The
Member may, but shall not be obligated to, make additional Capital
Contributions.
3.2 No Interest. The Member shall not be entitled to interest on its
Capital Contribution.
3.3 Authorization and Issuance of Unit. The Company is authorized to
issue one (1), and only one (1), common unit of the Company (the "Unit"). Any
holder of the Unit shall succeed to the rights and obligations of the Member
under this Agreement. Effective as of the date hereof, the Company shall issue
the Unit to the Member.
3.4 Certification. The Unit may be represented by a certificate, which
shall be endorsed with the following legend:
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THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 AS AMENDED. IT MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS
TO THE SECURITY UNDER SAID ACT OR AN EXEMPTION FROM REGISTRATION UNDER THE ACT.
ARTICLE IV
DISTRIBUTIONS
4.1 Distribution of Profits and Losses. Subject to Section 5.5, all
profits, losses, gain, deductions and credits either of cash or property of or
by the Company shall be distributed entirely to the Member.
4.2 Distributions of Available Cash. Subject to Section 5.5, from time
to time, and at such times as the Member may request, Available Cash (as defined
below) may be distributed to the Member. "Available Cash" of the Company shall,
for any applicable period, mean the amount (if any) by which the gross cash
receipts of the Company during such period from all sources, including net
operating income, contributions to the capital of the Company, funds borrowed by
the Company and any and all receipts in respect of the Company's interest in
other entities exceed the expenses and expenditures during such period and the
amounts required to provide for the future needs of the business of the company
and to establish and fund reasonable reserves against future costs and
liabilities.
ARTICLE V
MANAGEMENT
5.1 Management. Subject to the provisions of this Agreement, the Company
shall appoint managers (the "Managers"), who shall have exclusive authority to
act on behalf of the Company. Subject to the provisions of this Agreement, the
Managers shall have the authority to manage the business and affairs of the
Company. The Member shall have no authority to act on behalf of or bind the
Company. No Manager shall have the authority to act on behalf of the Company in
the State of Texas.
5.2 Selection, Removal and Resignation of Managers. The Member shall
select any and all Managers of the Company. The initial Managers of the Company
shall be Ivan R. Cairns, Larry D. Henk, Ronald Rubin, and Michael C. Doyle, none
of whom are residents of the State of Texas. The Member may remove any of the
Managers at any time, with or without cause, upon delivery to such Manager at
the principal office of the Company of written notice of such removal. Further,
any of the Managers may resign upon delivery to the Member at the principal
office of the Company of written notice of such resignation.
5.3 Compensation. The Managers shall receive such compensation for their
duties as Managers as the Member shall determine in its sole discretion.
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5.4 Authority of Managers. Except as otherwise provided in this
Agreement, any one of the Managers or their delegate shall have authority to act
alone on behalf of the Company with respect to all matters, including, but not
limited to:
(a) maintaining accounts and records of the Company, preparing and
accepting correspondence and filing legal documents, answering telephones,
handling any mail of the Company, interfacing with the Company's attorneys and
accountants, paying any of the Company's invoices, safekeeping any Company
records, completing and filing informational returns and business license
applications, and performing other duties as are reasonably assigned;
(b) procuring all consents, books of account or other documents
which may be required by the laws of Delaware or any state in which the Company
may do business or which may be necessary or appropriate in connection with the
business of the Company;
(c) paying all charges and expenses incident to, or arising out
of, the formation of the Company, and reimbursing any person who has made any
disbursements therefore;
(d) depositing with PNC Bank, a Delaware corporation with its
principal offices at 300 Delaware Avenue, 6th Floor, Wilmington, Delaware 19801
(the "Custodian") all or any part of any property owned by the Company (the
"Custody Account"), and entering into a custody agreement (the "Custody
Agreement") on behalf of the Company with the Custodian, attached hereto as
Exhibit A, with such terms and conditions as are requisite and proper, said
Custody Agreement to provide, inter alia, the manner in which such property so
deposited with the Custodian, and the income therefrom, shall be held, withdrawn
and/or disposed of;
(e) opening a checking account from which funds will be drawn to
pay administrative expenses (the "Checking Account") with the Custodian and
executing on behalf of the Company an agreement with the Custodian governing
such Checking Account;
(f) transferring funds from the Company's Custody Account to the
Member and executing the associated "Manager Authorization for Distribution"
form;
(g) transferring funds from the Company's Custody Account to a
limited partnership owned by the Company and executing the associated "Manager
Authorization for Contribution" form.
(h) subject to the provisions of Section 5.5, executing check
and/or withdrawal orders against the Checking Account and effecting wire
transfers from the Custody Account for purposes of making distributions to the
Member pursuant to Section 4 of this Agreement;
(i) executing check and/or withdrawal orders against the Checking
Account for purposes of paying expenses of the Company;
(j) executing a sublease contract ("Sublease Contract") with
Delaware Incorporators & Registration Service, LLC for the rental of office
space at Nemours Building, Suite 1414, 1007 North Orange Street, Wilmington,
Delaware 19801;
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(k) paying any withholding, unemployment, or other taxes imposed
upon the Company;
(l) entering into any written contracts on an arm's length basis
on behalf of the Company;
(m) executing that certain Service Agreement with Delaware
Incorporators & Registration Service, LLC for the provision of certain services
thereunder (the "Service Agreement");
(n) executing that certain Employment Agreement with Michael C.
Doyle; and
(o) taking any other action on behalf of the Company.
No Manager may perform any of the acts authorized by this Section 5.4 in
the State of Texas. Notwithstanding anything to the contrary in this Agreement,
including the foregoing provisions of this Section 5.4, the consent of a
majority of all the Managers is required for (a) the sale of any of the
Company's assets; (b) the creation of an encumbrance on any of the Company's
assets; (c) any action that would subject the Company to a liability in excess
of $5,000 (except for the execution of the Service Agreement pursuant to Section
5.4(m) above); or (d) any transfer of cash or other Company assets of $5,000 or
more from the Company to anyone other than the Member, the Custody Account or to
the Checking Account (other than as payment to Delaware Incorporators &
Registration Service, LLC for services provided under the Service Agreement
pursuant to Section 5.4(m) above).
5.5 Distributions/Contributions. All distributions to the Member, and
all contributions to any entity in which the Company owns an interest, must be
made pursuant to the prior written authorization of a Manager. Such written
authorization must be executed in the State of Delaware.
5.6 Powers and Business of the Company.
(a) The Company shall not commingle its funds with those of any
Affiliate or any other entity. Funds and other assets of the Company shall be
separately identified and segregated. All of the Company's assets shall at all
times be held by or on behalf of the Company, and, if held on behalf of the
Company by another entity, shall at all times be kept identifiable (in
accordance with customary usage) as assets owned by the Company. The Company
shall maintain its own separate bank accounts, payroll and books of account.
(b) The Company shall pay from its own assets (including
contributions by the Member) all obligations of any kind incurred by the
Company.
(c) The Company shall take all appropriate action necessary to
ensure its existence as a limited liability company in good standing under the
laws of the State of Delaware and shall otherwise comply with all formalities
required by the LLC Act. The Company shall
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maintain its books, records, resolutions and agreements as official records at
Nemours Building, Suite 1414, 1007 North Orange Street, Wilmington, Delaware
19801.
(d) All financial statements, accounting records and other
organizational documents of the Company shall be maintained separately from
those of any Affiliate or any other entity and the Company shall otherwise
observe all corporate or other organizational formalities.
(e) The annual financial statements of the Company shall disclose,
in accordance with and to the extent required under generally accepted
accounting principles, any transactions between the Company and any Affiliate.
(f) All business transactions entered into by the Company with any
Affiliate shall be on terms and conditions that are no less favorable to the
Company than the terms and conditions that would be expected to have been
obtained, at the time of such transaction and under similar circumstances, from
unaffiliated persons.
(g) The Company shall at all times hold itself out to the public
(including any Affiliate's creditors) as a separate and distinct entity
operating under the Company's own name, and the Company shall act solely in its
own name and through its own authorized agents, and the Company shall correct
any known misunderstanding regarding the Company's status as a separate and
distinct entity.
(h) The Company shall reimburse any Affiliate for any service
provided to the Company by such Affiliate (including those to be provided
pursuant to any lease, administrative or management services agreement or other
contract between the Company and any Affiliate) in accordance with the terms of
any such lease, agreement or other contract.
(i) The Company shall not acquire the obligations or securities of
any Member.
(j) The Company shall maintain and use stationery, invoices,
checks and any related identifying forms setting forth only the Company's name
or any trade that it shall adopt, and shall not set forth the name or trade name
of any Affiliate or any other entity. Except for purposes of filing any tax
return, where otherwise required or permitted by applicable law, the Company
shall not identify itself or any of its Affiliates as a division or part of the
other.
(k) The Company shall maintain adequate capital in light of its
contemplated business and purposes.
ARTICLE VI
MEMBER RIGHTS PROVISIONS
6.1 Limited Liability. Except as expressly set forth in this Agreement
or required by law, no Member shall be personally liable for any debt,
obligation, or liability of the Company, whether that liability or obligation
arises in contract, tort, or otherwise.
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6.2 Books and Records. As provided in the LLC Act, the Company will
maintain, at the Company's Registered Office (provided for in Section 2.6 of
this Agreement), the following records:
(a) A current list of the full name and last known business
address of the Member and managers, separately identifying each in alphabetical
order;
(b) A copy of the filed certificate of formation and all
amendments thereto, together with executed copies of any powers of attorney
pursuant to which any document has been executed;
(c) Copies of any then effective limited liability company
agreement of the Company;
(d) Promptly after becoming available, a copy of the limited
liability company's federal, state and local income tax returns for each year;
(e) True and full information regarding the status of the business
and financial condition of the limited liability company; and
(f) True and full information regarding the amount of cash and a
description and statement of the agreed value of any other property or services
contributed by the Member.
6.3 Taxes and Other Filings.
(a) For federal income tax purposes, the Company shall be
disregarded as an entity separate from the Member pursuant to Treasury
Regulations Section 301.7701-3(b)(1)(ii). Subject to the foregoing, the Managers
shall cause to be prepared and filed all necessary tax returns for the Company.
(b) The Managers shall cause to be prepared and timely filed, with
appropriate federal and state regulatory and administrative bodies, amendments
to, or restatements of, the Articles and all reports required to be filed by the
Company with those entities under the LLC Act or other then current applicable
laws, rules and regulations.
6.4 Transfer of LLC Interests. The Member may sell, assign, pledge,
hypothecate, or otherwise transfer or encumber all or any part of its interest
in the Company upon such terms and conditions as the Member may determine, in
its sole discretion. Upon a transferee's acquisition of the Member's interest in
the Company, the transferee shall succeed to the Membership Interest, or portion
thereof transferred, of the transferor Member in the same capacity as the
transferor Member held in the Company. Accordingly, the transferee shall acquire
all rights and obligations with respect to title, management, capital,
allocations and distributions which the transferor Member held in the Company,
as such rights and obligations are set forth in this Agreement or conferred by
law.
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6.5 Indemnity of Member.
(a) Indemnity. To the fullest extent permitted by the LLC Act, the
Company, to the extent of its assets legally available for that purpose, will
indemnify, hold harmless and defend the Member, the Managers, and any member,
partner, shareholder, director, officer, agent, affiliate and professional or
other advisor of any of them (collectively, the "Indemnified Persons") from and
against any and all loss, cost, damage, expense (including, without limitation,
fees and expenses of attorneys and other advisors and any court costs incurred
by any Indemnified Person) or liability by reason of anything any Indemnified
Person does or refrains from doing for, or in connection with the business or
affairs of, the Company, except to the extent that it is finally judicially
determined by a court of competent jurisdiction that the loss, cost damage,
expense or liability resulted primarily from the Indemnified Person's gross
negligence or willful breach of a material provision of this Agreement which in
either event causes actual damage to the Company. The Company may pay in advance
or reimburse reasonable expenses (including advancing reasonable costs of
defense) incurred by the Indemnified Person who is or is threatened to be named
or made a defendant or a respondent in a proceeding concerning the business and
affairs of the Company.
(b) Additional Indemnity. The Company, with the approval of the
Member, may indemnify any of the Indemnified Persons for any loss, cost, damage,
expense or liability for which the Indemnified Persons would not be entitled to
mandatory indemnification under Section 6.5(a).
(c) Waiver of Indemnity Rights. An Indemnified Person may waive
the benefit of indemnification under Section 6.5(a), but only by an instrument
in writing executed by such Indemnified Person.
(d) Certain Related Rights. The rights to indemnification under
Section 6.5(a) are not exclusive of other rights, which any Indemnified Person
may otherwise have at law or in equity, including, without limitation, common
law rights to indemnification or contribution. Nothing in this Section 6.5 shall
affect the rights or obligations of any Person (or the limitations on those
rights or obligations) under any other agreement or instrument to which that
Person is a party.
ARTICLE VII
SALE, DISSOLUTION, AND LIQUIDATION
7.1 Dissolution of the Company. The Company shall be dissolved upon the
occurrence of any of the following; (i) a determination in writing by the Member
to dissolve the Company; (ii) the entry of a decree of judicial dissolution
pursuant to the LLC Act and the provisions of succeeding law; (iii) the
dissolution of the Member, or (iv) the sale of all or substantially all of the
Company's assets and the payment of all its creditors; such events are
hereinafter referred to as a "Dissolution Event."
7.2 Winding Up and Dissolution.
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(a) Upon the dissolution of the Company, the Company Business
shall be wound up and its assets liquidated by the Managers. The Member shall
rely solely upon Company assets as consideration for its interest in the Company
and the Member shall not be liable for any amounts in excess of such assets.
(b) In settling accounts after dissolution, the liabilities of the
Company shall be paid in the following order:
(1) those to creditors, including the Member when the Member
is a creditor, in the order of priority as provided and to the extent otherwise
permitted by law, except those to the Member of the Company on account of its
contributions;
(2) those to the Member of the Company in respect of its
share of the profits and other compensation by way of income on its
contributions; and
(3) those to the Member of the Company in respect of its
contributions to capital.
(c) Upon complete liquidation, dissolution and distribution, the
Company and the Company Business shall cease.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Notices. Any notice to be given or to be served upon the Company or
any party hereto in connection with this Agreement must be in writing (which may
include facsimile) and will be deemed to have been given and received when
delivered to the address specified by the party to receive the notice. Any
notices, consents or other communications in connection with this Agreement
shall be in writing and addressed as follows:
TO THE AGENT OF COMPANY: Michael C. Doyle
Nemours Building, Suite 1414
1007 North Orange Street
Wilmington, Delaware 19801
TO THE COMPANY OR THE MEMBER: Michael C. Doyle
Nemours Building, Suite 1414
1007 North Orange Street
Wilmington, Delaware 19801
Notices or consents to the Member shall be to the Member's last address as
shown on the books and records of the Company. Any party may, at any time by
giving five (5) days' prior written notice to the other parties, designate any
other address in substitution of the foregoing address to which such notice will
be given.
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8.2 Binding Effect. The terms, conditions, covenants, and agreements
herein contained shall inure to the benefit of and be binding upon the Member
and its respective heirs, successors, assigns and legal representatives.
8.3 Partial Invalidity. If any term, covenant, or condition of this
Agreement or the application thereof to any person, entity, or circumstance
shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement shall not be affected thereby, and each term, covenant, or condition
of this Agreement shall be valid and enforced to the fullest extent permitted by
law.
8.4 Governing Law. The laws of the State of Delaware shall govern the
validity, construction, performance and effect of this Agreement.
8.5 Effective Date. This Agreement shall become effective as of the date
written on the first page of this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned has executed this Agreement to be
effective as of the date first set forth above.
MEMBER:
WASTE SERVICES, INC.,
a Delaware corporation
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EXHIBIT "A"
CAPITAL CONTRIBUTION
MEMBER CAPITAL CONTRIBUTION
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Waste Services, Inc. $ 2000
TOTAL $ 2000