EXHIBIT 3.38
OPERATING AGREEMENT
PROVIDENCE SOILS, LLC
The undersigned as the Sole Members of Providence Soils, LLC, a Rhode
Island Limited Liability Company (the "LLC"), do hereby enter into this
Operating Agreement, effective as of the 27th day of January, 2000.
I.
PLACE OF BUSINESS
The principal place of business of the LLC shall be in the state of
Rhode Island. And the mailing address shall be ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, or such other address to which the business may from time to time
be moved with the approval of the Members of the LLC.
II.
DURATION OF THE LLC
The LLC shall commence upon the filing of its Articles of Organization
with the Secretary of State of Rhode Island, and shall have perpetual existence
unless terminated sooner by operation of law or by agreement between the
parties.
III.
PURPOSE
The purpose of the LLC shall be to engage in any lawful business which
a limited liability company may carry on under the General Laws of Rhode Island
(1956), as amended.
IV.
MEMBERS
The names and addresses of each of the Members of the LLC are set forth
on Schedule A, annexed hereto and made a part hereof. Additional members may be
added to the composition of the LLC upon the unanimous consent of the Member or
Members. For the purposes of this Operating Agreement, the term Member or
Members, whether in the singular or the plural, shall refer to those Members or
a Member, as the case may be, from time to time set forth on Schedule A.
V.
CAPITAL CONTRIBUTIONS
The interest of each of the Members in the LLC is set forth on Schedule
A, annexed hereto and made a part hereof. The agreed value of the initial
capital contribution to the LLC on behalf of each Member is set forth on
Schedule A. The Members of the LLC and their interests in the profits, losses
and distributions from the LLC are set forth on Schedule A.
VI.
ADDITIONAL CAPITAL CONTRIBUTIONS
The Members may but are not required to contribute in proportionate
amounts any additional capital deemed necessary for the operation of the LLC.
VII.
DIVISION OF PROFITS, LOSSES, AND DISTRIBUTIONS
All profits, losses and distributions of the LLC shall be allocated
among the Members based on their interests in the LLC as set forth on Schedule
A. A separate capital account shall be maintained for each Member. No Member
shall make any withdrawals from capital without prior approval of the LLC. If
the capital account of the Member becomes impaired, his share of subsequent LLC
profits shall be first credited to his capital account until that account has
been restored.
VIII.
RIGHTS AND DUTIES OF THE PARTIES
Decisions and actions of the Members and of the LLC, including but not
limited to the sale, transfer or other disposition of any property of the LLC
other than as specifically provided herein, shall be decided by the consent of
the Members owning a majority of the interests set forth on Schedule A in the
LLC at meetings regularly called with notice to all Members or by means of
written consent of the Members owning a majority of the interests set forth on
Schedule A in the LLC with notice to or waiver of notice from all members.
IX.
COSTS AND EXPENSES
No Member shall be separately compensated on a salaried basis for
services performed in carrying out the purpose of the LLC. No salaries or
individual compensation shall be otherwise payable, without the consent of the
Members, for the normal management of the LLC although the LLC may from time to
time employ one or more managers or other representatives at a designated
salary.
X.
MANAGEMENT
(a) Management. The business of the LLC shall be managed by and be
under the authority of a Manager or Managers, as designated by the LLC and set
forth herein, who shall have the full authority to take all actions necessary to
effectuate the purposes of the LLC pursuant to Chapter 16 of Title 7 of the
General Laws of Rhode Island (1956), as amended.
(b) Appointment of Manager. Each Manager of the LLC shall be appointed
by the Members and shall serve in such capacity until his or her earlier
resignation or removal from office by the LLC.
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(c) Limitation of Liability of Manager. A Manager of the LLC shall not
be personally liable to the LLC or to its members for monetary damages for
breach of any duty provided for in Section 17 of the Rhode Island Limited
Liability Company Act, as the same hereafter may be amended, except that
liability shall not be limited for:
(i) Breach of the Manager's duty of loyalty to the limited
liability company or its Members;
(ii) Acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
(iii) The liability imposed pursuant to the provisions
of Section 7-16-32 relating to wrongful distributions; or
(iv) Any transaction from which the Manager derived an
improper personal benefit, unless said transaction was with the informed consent
of the Members.
XI.
BANKING
All funds of the LLC shall be deposited in its name in such checking
account or accounts as shall be designated by the Manager. All withdrawals
therefrom are to be made upon checks which must be signed by the Manager or a
representative or representatives designated by the Members.
XII.
BOOKS
The ▇▇▇ ▇▇▇▇▇ shall be maintained at the offices of the LLC and each
Member shall have access thereto. The books shall be kept on a calendar year
basis, and shall be closed and balanced at the end of each fiscal year. An audit
shall be made as of the close of each year, if a request for such audit is made
in writing by the Member, and mailed or delivered to the other Members and the
Manager.
XIII.
INSURANCE
During the course of the term for which this LLC is formed, the LLC
shall carry such insurance as deemed appropriate by the Manager.
XIV.
VOLUNTARY TERMINATION
The LLC may be dissolved at any time by agreement of all the Members,
in which event the Members shall proceed with reasonable promptness to liquidate
the LLC. The assets of the LLC shall be distributed in the following order:
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A. To pay or provide for the payment of all LLC liabilities to
creditors other than Members, and liquidating expenses and obligations;
B. To pay debts owing to Members other than for capital and profits;
C. To pay debts owing to Members in respect to capital; and
D. To pay debts owing to Members in respect to profits.
XV.
WITHDRAWAL OF MEMBER BY SALE
In the event of the withdrawal of any Member pursuant to a sale,
transfer or assignment of a membership interest approved pursuant to Paragraph
XVIII, the LLC shall dissolve and liquidate unless the remaining Members
unanimously agree and consent to continue the business of the LLC. Any such
Member shall give a right of first refusal to purchase said share and interest
at the same price as that being offered by a bona fide buyer to all Members, and
each Member shall have the right to purchase that percentage of the interest
being sold obtained by dividing his interests in the LLC by the total interests
in the LLC of all Members electing to purchase.
XVI.
DEATH, RESIGNATION, EXPULSION, BANKRUPTCY OR DISSOLUTION OF A MEMBER
In the event of the death, resignation, expulsion, bankruptcy or
dissolution of any Member, the LLC shall dissolve and liquidate unless the
remaining Members unanimously agree and consent to continue the business of the
LLC.
XVII.
DISTRIBUTION
Prior to dissolution and at least annually as income has been received
by the LLC, accounts determined and tax returns filed, the Members shall
determine funds available for distribution. Upon liquidation, a reasonable
reserve determined by the Members shall be established in an amount to cover
anticipated costs and expenses, if any. Liquidation of the LLC need not be
delayed provided that such amounts are properly escrowed and arrangements are
made for performance of such services as may be required in the interest of the
LLC. Escrows, reserves or liquidating accounts may be established as escrows or
otherwise, which activity need not unduly delay the termination of the LLC for
all other purposes.
XVIII.
SALE, TRANSFER OR ASSIGNMENT OF MEMBERSHIP INTEREST
No Member shall have the right to sell, transfer or assign the Member's
membership interest in the LLC, in whole or in part, without the unanimous
consent of the other Members and no sale, transfer or assignment which has been
consented to shall be effective unless the assignee shall agree in writing to be
bound by the terms of this Agreement. If this provision is violated, the
assignee of such membership interest shall have no membership rights in the LLC.
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XIX.
AMENDMENTS
This Operating Agreement may be altered, amended, restated or repealed
and a new Operating Agreement may be adopted by the unanimous consent of the
Members of the LLC.
XX.
VIOLATION OF THIS OPERATING AGREEMENT
Any Member who shall violate any of the terms, conditions, and
provisions of this Operating Agreement shall keep and save harmless the LLC
property and shall also indemnify the other then Members from any and all
claims, demands and actions of every manner, kind and nature whatsoever which
may arise out of or by reason of such violation of any of the terms and
conditions of this agreement.
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IN WITNESS WHEREOF, the parties have hereunto set their hands the day
and year first above written.
Signed:
SYNAGRO TECHNOLOGIES, INC., Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
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Title: Executive Vice President
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and Secretary
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SCHEDULE A
MEMBERS AND CAPITAL CONTRIBUTED
Name and Address Property Contributed Membership Interest
---------------- -------------------- -------------------
Members:
Synagro Technologies, Inc. $1000 100%