AMENDED AND RESTATED PARTNERSHIP AGREEMENT OF EL CENTRO LANDFILL, L.P.
Exhibit 3.466
This Amended and Restated Partnership Agreement is entered into as of August 31, 2009, by and
between ALLIED WASTE LANDFILL HOLDINGS, INC., a Delaware corporation, as the General Partner, and
ALLIED WASTE SYSTEMS HOLDINGS, INC., a Delaware corporation, as the Limited Partner, on the terms
and conditions set forth in this Agreement. This Agreement supersedes, replaces in its entirety
and more fully set forth the partnership agreement in effect prior to the effectiveness hereof
between the Partners.
SECTION 1. DEFINITIONS; THE PARTNERSHIP
1.1 Definitions. Capitalized words and phrases used in this Agreement shall have the
meanings set forth in Section 12 below.
1.2 Formation. The Partnership was formed as a Texas Limited Partnership upon the
filing of its certificate of limited partnership with the Texas Secretary of State on November
21,
2002. The Partners hereby agree to continue the Partnership as a limited partnership pursuant
to
the provisions of the Act and upon the terms and conditions set forth in this Agreement.
1.3 Name. The name of the Partnership is El Centro Landfill, L.P. The General
Partner may change the name of the Partnership upon written notice to the Limited Partners.
1.4 Purposes. The purpose of the Partnership is primarily to engage in and conduct
the business of non-hazardous solid waste management, and to engage in any other activity
permitted under Texas law and the laws of any jurisdiction in which the Partnership may do
business.
1.5 Office. The registered office of the Partnership within the State of Texas shall
be
C T Corporation System, ▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ of Dallas. The registered
office may be changed to any other place within the State of Texas by the General Partner,
upon
written notice to the Limited Partners. The Partnership may maintain a registered office in
any
state within which it does business at any location approved by the General Partner.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Partnership in Texas are C T Corporation System, ▇▇▇
▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. The agent for service of legal process may be
changed by the General Partner upon written notice to the Limited Partners.
1.7 Term. The term of the Partnership commenced on November 21, 2002, the date
on which the Partnership’s certificate of limited partnership was filed with the Texas
Secretary of
State, and shall continue in perpetuity until the Partnership is dissolved as set forth in
this
Agreement or pursuant to the Act.
1.8 Filings. The Partners shall take any and all other actions, and shall execute and
file such amendments to this Agreement or to the Partnership’s certificate of limited
partnership
as are reasonably necessary to perfect and maintain the status of the Partnership as a limited
partnership under the laws of the State of Texas. The Partners hereby authorize the General
Partner to elect to become a registered limited liability partnership if, on the General Partner’s
direction, the General Partner determines it is appropriate to do so.
SECTION 2. PARTNERS; CAPITAL CONTRIBUTIONS; LOANS
2.1 Partners. The name, address and Percentage Interest of each Partner are set forth
on Exhibit A to this Agreement.
2.2 Contributions of Partners. The General Partner acquired its interest in the
Partnership by acquiring all of the Partnership interest then held by American Ecology
Services
Corporation, a Delaware corporation, and the Limited Partner acquired its interest in the
Partnership by acquiring all of the Partnership interest then held by Texas Ecologists, Inc.,
a
Texas corporation. In conjunction with such acquisitions, each Partner received (a) a credit
to
its Capital Account equal to the value of its acquisition, and (b) a Percentage Interest in
the
Partnership, as set forth on Exhibit A. No Partner shall be obligated to make
additional Capital
Contributions to the Partnership, unless such Partner agrees in writing to do so.
2.3 Limitations Pertaining to Capital Contributions.
(a) Return of Capital. Except as otherwise provided in this Agreement, no
Partner shall withdraw any Capital Contributions or any money or other property from the
Partnership without the written consent of the other Partners. Under circumstances requiring a
return of any Capital Contributions, no Partner shall have the right to receive property other
than
cash, unless otherwise specifically agreed in writing by the Partners at the time of such
distribution.
(b) Liability of Partners. No Limited Partner shall be liable for the debts,
liabilities, contracts or any other obligations of the Partnership. During any period in which
the
Partnership is also a registered limited liability partnership, no Partner shall be liable for
the
debts, liabilities, contracts or any other obligations of the Partnership, except as
specifically
provided in the Act. Except as agreed upon by the Partners, and except as otherwise provided
by
the Act or by any other applicable state law, no Partner shall be required to make any other
Capital Contributions or to loan any funds to the Partnership. No Partner shall have any
personal
liability for the repayment of its Capital Contributions or loans of any other Partner.
(c) No Third Party Rights. Nothing contained in this Agreement is intended
or will be deemed to benefit any creditor of the Partnership, and no creditor of the
Partnership
will be entitled to require any Partner to solicit or demand Capital Contributions from any
other
Partner.
(d) Withdrawal. Except as provided in Section 8 below, no Partner may
voluntarily or involuntarily withdraw from the Partnership or terminate its interest therein
without the prior written consent of the other Partners. Any Partner who withdraws from the
Partnership in breach of this Section 2.3(d):
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(i) shall be treated as an assignee of a Partner’s interest, as provided in the Act;
(ii) shall have no right to participate in the business and affairs of the Partnership or to
exercise any rights of a Partner under this Agreement or the Act; and
(iii) shall continue to share in distributions and allocations from the Partnership, on the
same basis as if the Partner had not withdrawn, provided that any damages to the Partnership as a
result of such withdrawal shall be offset against amounts that would otherwise be distributed to
such Partner.
SECTION 3. DISTRIBUTIONS; ALLOCATIONS
3.1 Net Cash Flow. Except as otherwise provided in Section 10 below, Net
Cash
Flow, if any, shall be distributed to the Partners in proportion to their Percentage Interests
at such
times as may be determined by the General Partner.
3.2 Allocations of Profits and Losses. Unless otherwise required by Code Sections
704(b), 704(c), or Treasury Regulations promulgated thereunder, all Profits, Losses, and items
thereof for each fiscal year of the Partnership shall be allocated to the Partners in
proportion to
their Percentage Interests.
3.3 Capital Accounts. A Capital Account shall be maintained for each Partner in
accordance with the Regulations under uniform policies approved by the General Partner, upon
the advice of the Partnership’s tax accountants or attorneys.
SECTION 4. LOANS
Any Partner may loan funds to the Partnership on such terms and conditions as are agreed upon
by the lending Partner and the General Partner. No Partner shall receive any credit to its Capital
Account for any loans made by it or any of its affiliates to the Partnership.
SECTION 5. MANAGEMENT
5.1 Authority of the General Partner. The General Partner shall have the sole and
exclusive right to manage the affairs of the Partnership and shall have all of the rights and
powers that may be possessed by general partners under the Act. If two or more Persons are serving
as General Partners, decisions regarding the management of the Partnership and its business and
affairs shall be made by the consent of a majority in number of the General Partners then serving.
The rights and powers that the General Partner may exercise include, but are not limited to, the
following:
(a) invest
and reinvest Partnership funds for the purposes set forth in Section 1.4 above, in any manner deemed advisable by the General Partner;
(b) hold, manage, maintain, improve, repair, alter, mortgage, finance, pledge,
encumber and otherwise deal with Partnership property;
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(c) execute any and all agreements, contracts, documents, certificates and
instruments necessary or convenient in connection with the Partnership’s business;
(d) make loans, sell, exchange, assign, transfer or otherwise dispose of any
Partnership property;
(e) borrow money and issue evidences of indebtedness necessary, convenient
or incidental to the accomplishment of the purposes of the Partnership, and secure the same by
mortgage, pledge or other lien on any Partnership property;
(f) prepay in whole or in part, refinance, recast, increase, modify or extend
any liabilities affecting the Partnership’s property and in connection therewith execute any
extensions or renewals of encumbrances on any or all of the Partnership’s property;
(g) make any and all elections for federal, state and local tax purposes;
(h) take, or refrain from taking, all actions not expressly proscribed or limited by this
Agreement as may be necessary or appropriate to accomplish the purposes of the Partnership; and
(i) engage in any kind of activity and perform and carry out contracts of any kind necessary
or incidental to, or in connection with, the accomplishment of the purposes of the Partnership, as
may be lawfully carried on or performed by a partnership under the laws of each state in which the
Partnership is then formed or qualified.
5.2 Right to Rely on General Partner. Any Person dealing with the Partnership may
rely upon a certificate signed by the General Partner as to:
(a) the identity of the General Partners or Limited Partners;
(b) the existence or nonexistence of any fact or facts that constitute a
condition precedent to acts by the General Partner or that are in any other manner germane to
the
affairs of the Partnership;
(c) the Persons who are authorized to execute and deliver any instrument or
document of the Partnership; or
(d) any act or failure to act by the Partnership or any other matter whatsoever
involving the Partnership or any Partner.
5.3 Delegation of Authority. The General Partner may designate one or more Persons
as officers of the Partnership. The officers shall have the authority to act for and bind
the
Partnership to the extent of the authority granted to them by the General Partner on behalf of
the
Partnership. The officers of the Partnership may include a president, vice presidents, a
secretary,
a treasurer, and such other officers as the General Partner deems appropriate. The officers of
the
Partnership will be entitled to such compensation for their services as the General Partner
may
reasonably determine from time to time.
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5.4 Communications. The General Partner shall promptly advise and inform each of
the Partners of any transaction, notice, event or proposal directly relating to the management
and
operation of the Partnership or to its assets that does or could materially affect, either
adversely
or favorably, the Partnership, its business or its assets.
5.5 Indemnification. To the fullest extent permitted by law, the Partnership, its
receiver or its trustee shall defend, indemnify and save harmless the Partners and their
officers
and directors (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 Partnership, 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
6.1 Books and Records. The Partnership shall maintain and preserve at its office all
accounts, books and other relevant Partnership documents. Each Partner shall have the right,
during ordinary business hours, to inspect and copy such Partnership documents.
6.2 Tax Matters. The General Partner is hereby appointed on behalf of the
Partnership as the “tax matters partner” under the Code.
SECTION 7. AMENDMENTS
Except as provided in the next sentence, this Agreement may be amended only by a written
instrument signed by all of the Partners. This Agreement may be amended by the General Partner,
without the consent of any other Partner, to effect changes of a ministerial nature that do not
materially adversely affect the rights of the Partners, including, but not limited to, amendments
to Exhibit A to reflect the admission of additional or Substituted Partners to the
Partnership.
SECTION 8. TRANSFER OF PARTNERSHIP INTERESTS
8.1 General. No Partner shall sell, assign, pledge, hypothecate, encumber or
otherwise voluntarily transfer by any means whatever (“Transfer”) all or any portion of its
interest in the Partnership without the prior written consent of the other Partners. A
transferee of
a Partner’s interest in the Partnership will be admitted as a Substituted Limited Partner only
pursuant to Section 8.3 below. Any purported Transfer that does not comply with the
provisions
of this Section 8 shall be void and shall not cause or constitute a dissolution of the
Partnership.
8.2 Assignee of Partner’s Interest. If, pursuant to a Transfer of an interest in the
Partnership by operation of law and without violation of this Section 8 (or pursuant
to a Transfer
that the Partnership is required to recognize notwithstanding any contrary provisions of this
Agreement), a Person acquires an interest in the Partnership, but is not admitted as a
Substituted
Limited Partner pursuant to Section 8.3 below, such Person:
(a) shall be an assignee of a Partner’s interest, as provided in the Act;
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(b) shall have no right to participate in the business and affairs of the
Partnership or to exercise any rights of a Partner under this Agreement or the Act; and
(c) shall share in distributions and allocations from the Partnership with
respect to the transferred interest, on the same basis as the transferring Partner.
8.3 Substituted Limited Partners. No Person taking or acquiring, by whatever means,
the interest of any Partner in the Partnership shall be admitted as a Substituted Limited Partner
in the Partnership (a “Substituted Limited Partner”) without the written consent of the General
Partner, which consent may be withheld or granted in the sole and absolute discretion of the
General Partner.
SECTION 9. GENERAL PARTNERS
9.1 Cessation. A Person shall cease to be a General Partner upon the transfer of its
entire interest in the Partnership or upon any event of withdrawal set forth in the Act. Upon
the
occurrence of any such event of withdrawal, such Person or its transferee shall have the right
to
receive distributions and allocations with respect to its Partnership interest, shall be
treated as the
transferee of a Limited Partner, and shall have the right to become a Substituted Limited
Partner
upon the unanimous written consent of the other Partners.
9.2 Right of Remaining General Partners to Continue Partnership. If any Person
ceases to be a General Partner pursuant to Section 9.1 above, the remaining General
Partners, if
any, shall have the right and the power to continue the Partnership and its business without
dissolution.
9.3 Election of New General Partner. In the event any Person ceases to be a General
Partner pursuant to Section 9.1 above, and as a consequence thereof the Partnership
has no
General Partner, any Limited Partner may nominate one or more Persons for election as General
Partner, which Person or Persons shall have the right and the power to continue the
Partnership
and its business without dissolution. The election of a new General Partner shall require
the
unanimous written consent of the Limited Partners.
SECTION 10. DISSOLUTION AND WINDING UP
10.1 Dissolution. The Partnership shall dissolve upon the first to occur of any of
the following events:
(a) The sale of all or substantially all of the Partnership’s assets and the
collection of the proceeds of such sale;
(b) The unanimous election by the Partners to dissolve the Partnership;
(c) The failure of the remaining General Partners, if any, to continue the
Partnership and its business without dissolution pursuant to Section 9.2 above in the
event any
Person ceases to be a General Partner pursuant to Section 9.1 above; or
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(d) The failure by the Limited Partners to elect a new General Partner or General Partners
pursuant to Section 9.3 above, in the event all of the General Partners cease to be
General Partners pursuant to Section 9.1 above and no Person named as a successor General
Partner in Section 9.3 is then serving as the General Partner.
10.2 Winding Up. Upon a dissolution of the Partnership, the General Partner (or the
Limited Partners, by majority vote, if there is no General Partner) shall take full account of
the
Partnership’s liabilities and Partnership’s property, and the Partnership’s property 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 Partnership shall continue to be governed by the
provisions of this Agreement. The proceeds from liquidation of the Partnership’s property, to
the
extent sufficient therefor, shall be applied and distributed in the following order:
(a) To the payment and discharge of all of the Partnership’s debts and
liabilities (other than those to the Partners), including the establishment of any necessary
reserves;
(b) To the payment of any debts and liabilities to the Partners; and
(c) To the Partners in accordance with Section 3.1 above.
Notwithstanding anything in Section 3 to the contrary, any Profits, Losses and items
thereof of the Partnership for the taxable year in which the liquidation of the Partnership occurs
shall be allocated among the Partners so as to adjust the Capital Accounts of the Partners as
closely as possible to distributions of such liquidation proceeds pursuant to the priorities set
forth in this Section 10.
10.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Partnership have been paid and discharged or adequate provisions have been made therefor and
all of the remaining property and assets of the Partnership have been distributed to the
Partners, a
certificate of cancellation shall be executed and filed by the General Partner with the Texas
Secretary of State.
SECTION 11. MISCELLANEOUS
11.1 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 delivered
personally to the Person to whom the same is directed, or sent by facsimile transmission, or
by
registered or certified mail, return receipt requested, addressed as follows: if to the
Partnership,
to the Partnership at the address set forth in Section 1.6 above, or to such other
address as the
Partnership may from time to time specify by notice to the Partners in accordance with this
Section 11.1, or, if to a Partner, to such Partner at the address for such Partner set
forth on
Exhibit A to this Agreement, or to such other address as the Partner may from time to time
specify by notice to the Partnership and the other Partners in accordance with this
Section 11.1.
Any such notice shall be effective upon actual receipt thereof.
11.2 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
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Partners and their respective heirs, legatees, legal representatives, successors, transferees and
assigns; provided that this Section 11.2 shall not be deemed (a) to authorize any Transfer
not otherwise permitted under this Agreement, (b) to confer upon the assignee of a Partner’s
interest any rights not specifically granted under this Agreement, or (c) to supersede or modify
in any manner any provision of Section 8 above.
11.3 Construction. Every covenant, term and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner.
11.4 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.
11.5 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.
11.6 Additional Documents. Each Partner, upon the request of the General Partner,
agrees to perform all further acts and execute, acknowledge and deliver any documents that may
be reasonably necessary or appropriate to carry out the provisions of this Agreement.
11.7 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.
11.8 Texas Law. The laws of the State of Texas shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of
the
Partners.
11.9 Waiver of Action for Partition. Each of the Partners irrevocably waives any right
that such Partner may have to maintain any action for partition with respect to any of the
Partnership’s property.
11.10 Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all of the Partners had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
11.11 Sole and Absolute Discretion. Except as otherwise provided in this Agreement,
all actions that the General Partner may take and all determinations that the General Partner
may
make pursuant to this Agreement may be taken and made at the sole and absolute discretion of
the General Partner.
SECTION 12. DEFINITIONS
12.1 “Act” means the Texas Revised Limited Partnership Act, as amended from time to time
(or any corresponding provisions of succeeding law).
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12.2 “Agreement” means this Amended and Restated Partnership 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.
12.3 “Capital Account” means the capital account maintained for each Partner in
accordance with Section 3.4.
12.4 “Capital Contribution” means, with respect to any Partner, the amount of money
and the net fair market value of property (other than money) contributed to the Partnership by
such Partner.
12.5 “Code” means the Internal Revenue Code of 1986, as amended from time to time
(or any corresponding provisions of succeeding law).
12.6 “General Partner” means any Person who (a) is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement
as a
General Partner, or who has become a General Partner pursuant to the terms of this Agreement,
and (b) has not ceased to be a General Partner pursuant to the terms of this Agreement.
“General
Partners” means all such Persons.
12.7 “Limited Partner” means any Person whose name is referred to as such in the first
paragraph of this Agreement and whose name is set forth on Exhibit A to this Agreement
as a
Limited Partner or who has been admitted as a Substituted Limited Partner pursuant to the
terms
of this Agreement. “Limited Partners” means all such Persons.
12.8 “Net Cash Flow” means the gross cash proceeds to the Partnership from all
sources, less the portion thereof used to pay or establish reserves for Partnership expenses,
debt
payments (including payments on loans from Partners), capital improvements, replacements and
contingencies, all as reasonably determined by the General Partner.
12.9 “Partners” means the General Partners and the Limited Partners, where no
distinction is required by the context in which the term is used herein. “Partner” means any
one
of the Partners.
12.10 “Partnership” means the partnership formed pursuant to this Agreement and any
partnership continuing the business of this Partnership in the event of dissolution as herein
provided.
12.11 “Percentage Interest” means, with respect to each Partner, a Partner’s interest,
expressed as a percentage in Profits, Losses, and distributions of the Partnership as provided
for
in this Agreement. The Partners’ Percentage Interests are set forth opposite their names on
Exhibit A hereto.
12.12 “Person” means any individual, partnership, limited partnership, corporation,
limited liability company, trust, or other legal entity.
12.13 “Profits” and “Losses” means, for each fiscal year or other period, an amount
equal to the Partnership’s taxable income or loss for such year or period, determined in
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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 to comply with the Regulations.
12.14 “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).
12.15 “Substituted Limited Partner” has the meaning given that term in Section 8.3.
12.16 “Transfer” has the meaning given that term in Section 8.1.
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above
written.
| GENERAL PARTNER: | LIMITED PARTNER: | ||
Allied Waste Landfill Holdings, Inc.,
|
Allied Waste Systems Holdings, Inc., | ||
a Delaware corporation
|
a Delaware corporation |
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||||||
Name:
|
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||
Its:
|
President | Its: | President |
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EXHIBIT A
| Initial Capital | ||||
| Contribution by | Percentage | |||
| Names and Addresses of Partners | Acquisition | Interest | ||
General Partner: |
$10.00 | 1% | ||
Allied Waste Landfill Holdings, Inc. |
||||
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ |
||||
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
||||
Limited Partner: |
$990.00 | 99% | ||
Allied Waste Systems Holdings, Inc. |
||||
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ |
||||
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
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