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EXHIBIT 3.28
LIMITED PARTNERSHIP AGREEMENT
OF
FORT BEND REGIONAL LANDFILL LP
This
Limited Partnership Agreement of Fort Bend Regional Landfill LP
(the "PARTNERSHIP"), a Texas limited
partnership (as amended, modified,
supplemented or restated from time to time
in accordance with the terms hereof,
this "AGREEMENT"), is made and entered into
effective as of the 21st day of
April, 2004 (the "EFFECTIVE DATE"), by and
between WS General Partner, LLC, a
Texas limited liability company ("GENERAL
PARTNER"), as general partner, and
Waste Services Limited Partner, LLC, a
Delaware limited liability company
("LIMITED PARTNER"), as limited
partner.
WITNESSETH:
WHEREAS, the General Partner and the Limited Partner desire and
agree to form the Partnership as a limited
partnership pursuant to the Act and
this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants set
forth
herein, and for other good and valuable
consideration, the receipt and
sufficiency of which are hereby
acknowledged, the parties hereto, intending to
be legally bound, hereby enter into this
Agreement.
ARTICLE I.
DEFINED TERMS
The defined terms used in this Agreement shall, unless the
context
otherwise requires, have the meanings
specified in this Article I.
1.1. Definitions. When
used in this Agreement, the following terms
will have the meanings set forth below.
"ACT" means the Texas Revised Limited Partnership Act, as
amended
from time to time.
"AFFILIATE" OR "AFFILIATED" shall mean, as to any Person, any
other
Person that directly or indirectly, through
one or more intermediaries controls,
is controlled by, or is under common
control with such specified Person. For the
purposes of this Agreement, a Person shall
be deemed to control a second Person
if (i) such first Person possesses the
power, directly or indirectly, to vote
50% or more of the securities having voting
power for the election of directors
of such second Person, or (ii) in the case
of a second Person that is a
partnership, such first Person is the
general partner of such partnership or
possesses, directly or indirectly, the
power described in clause (i) as to the
general partner of such partnership or the
power to replace the general partner
of such partnership, or (iii) such first
Person possesses the power to direct
the management and policies of such second
Person, directly or indirectly,
whether through the
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ownership of voting securities, by contract
or otherwise; and the terms
"affiliated," "controlling" and
"controlled" have meanings correlative to the
foregoing.
"CAPITAL ACCOUNT" means an account, with respect to each
Partner,
that is maintained for each Partner on the
books of the Partnership and which is
increased by (i) the amount of such
Partner's Capital Contributions when made
and (ii) the amount of any Net Profits
allocated to such partner pursuant to
Section 5.1 hereof, and decreased by (a)
the amount of money and the fair market
value of any property distributed to such
Partner by the Partnership and (b) the
amount of any Net Losses allocated to such
Partner pursuant to Section 5.1
hereof.
"CAPITAL CONTRIBUTION" means, with respect to any Partner, the
amount which such Partner contributes or is
deemed to contribute to the
Partnership.
"CODE" means the United States Internal Revenue Code of 1986,
as
amended from time to time, and any
successor thereto.
"COVERED PERSON" means any Partner, any Affiliate of a Partner
or
any officers, directors, managers, members,
shareholders, partners, employees,
representatives or agents of a Partner or
their respective Affiliates, or any
officer, employee or agent of the
Partnership or its Affiliates.
"DEBT" means (i) indebtedness for borrowed money, (ii)
obligations
evidenced by bonds, debentures, notes or
other similar instruments, (iii)
obligations to pay the deferred purchase
price of property or services, (iv)
obligations as lessee under leases which
shall have been or should be, in
accordance with generally accepted
accounting principles, recorded as capital
leases, and (v) obligations under direct or
indirect guaranties in respect of,
and obligations (contingent or otherwise)
to purchase or otherwise acquire, or
otherwise to assure a creditor against loss
in respect of, indebtedness or
obligations of others of the kinds referred
to in clauses (i) through (iv)
above.
"FISCAL YEAR" means the calendar year.
"GENERAL PARTNER" means WS General Partner, LLC and includes
any
Person who becomes a successor general
partner of the Partnership pursuant to
the provisions of this Agreement.
"INDEMNITEE" means any General Partner, any director, officer,
or
employee of any General Partner, any
officer of the Partnership, and any
shareholder, or shareholder of a
shareholder, of any General Partner, to the
extent any such shareholder is involved in
actions or proceedings involving any
other Indemnitee identified herein and such
shareholder and all such other
Indemnitees are represented by the
same.
"LIMITED PARTNER" means Waste Services Limited Partner, LLC and
includes any Person who is admitted as an
additional limited partner of the
Partnership or a substituted limited
partner of the Partnership pursuant to the
provisions of this Agreement and "LIMITED
PARTNERS" means any of such Persons
when acting in their capacities as a
limited partner of the Partnership.
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"NET PROFITS AND NET LOSSES", as the case may be, shall mean
the
Partnership's income and losses, including
the Partnership's realized or
allocated share of depreciation and
amortization expense, and any amounts of
gain or loss realized by the Partnership
upon the sale of all or any portion of
Partnership property, after deducting all
expenses incurred in connection with
the Partnership's business.
"PARTNER" means either the General Partner or the Limited
Partner,
and "PARTNERS" means the General Partner
and the Limited Partner.
"PARTNERSHIP EXPENSES" means all costs, expenses and charges
incurred with respect to the acquisition,
improvement, ownership, operation,
administration, and maintenance of the
Partnership and the Partnership Property,
as determined by the General Partner.
"PARTNERSHIP INTEREST" means an ownership interest in the
Partnership held by any Partner, which
includes any benefits and obligations
attributable to such Partnership Interest,
including a Partner's share of the
profits and losses of the Partnership and
the right to receive distributions of
Partnership assets in accordance with the
provisions of this Agreement and the
Act.
"PARTNERSHIP PROPERTY" means any and all assets and real,
personal,
tangible and intangible property owned by
the Partnership.
"PARTNERSHIP UNIT" means a fractional, undivided share of the
Partnership Interests of all Partners
issued hereunder. The allocation of
Partnership Units among the Partners shall
be as set forth on Exhibit A, as may
be amended from time to time.
"PERSON" means an individual or a corporation, partnership,
limited
liability company, trust, unincorporated
organization, joint stock company,
joint venture, association or other entity,
or any government, or any agency or
political subdivision thereof.
"REGULATIONS" means the regulations promulgated by the United
States
Department of the Treasury pursuant to and
in respect of provisions of the Code.
All references herein to sections of the
Regulations shall include any
corresponding provision or provisions of
succeeding, similar, substitute
proposed or final Regulations.
"SHARING PERCENTAGE" means (i) 0.5% as to the General Partner
and
(ii) 99.5% as to the Limited Partner.
"TRANSFER" means a sale, assignment, transfer, gift,
encumbrance,
hypothecation, mortgage, pledge, exchange
or any other conveyance or disposition
by law (including by merger of a Partner)
or otherwise, voluntarily or
involuntarily.
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ARTICLE II.
GENERAL
2.1. Purpose. The
Partnership's business and purpose shall consist
of any and all lawful businesses and
purposes permitted under the Act and under
applicable law, and such activities as are
necessary, incidental or appropriate
in connection therewith.
2.2. Powers. The
Partnership shall be empowered to do any and all
acts necessary, appropriate, proper,
advisable, incidental to or convenient for
the furtherance and accomplishment of the
purposes and business described in
Section 2.1 herein and for the protection
and benefit of the Partnership.
2.3. Name. The name of
the Partnership shall be "Fort Bend Regional
Landfill LP," under which all business
affairs of the Partnership shall be
conducted.
2.4. Names and
Addresses of Partners. The names and addresses of
the Partners are set forth in Exhibit A.
The Partners agree that the rights,
duties and liabilities of the Partners
shall be as provided in the Act, except
as otherwise provided herein.
2.5. Place of
Business. The principal place of business of the
Partnership shall be located at 7025 East
Greenway Parkway, Suite 100,
Scottsdale, Arizona 85254. The General
Partner may change the location of such
principal place of business at any time and
from time to time as it (in its sole
discretion) deems appropriate. The
Partnership may also have such other places
of business as the General Partner
determines to be appropriate.
2.6. Certificate of
Limited Partnership. The General Partner has
caused to be filed a Certificate of Limited
Partnership with the Secretary of
State of the State of Texas.
2.7. Additional
Filings. The General Partner shall cause the
Partnership to make any filings or
disclosures required by the laws of any other
state with respect to the qualification of
the Partnership as a foreign limited
partnership under the internal laws of each
such state.
2.8. Ownership. All
property owned by the Partnership shall be
owned by the Partnership as an entity and,
insofar as permitted by applicable
law, no Partner shall have any ownership
interest in any Partnership Property in
its individual name or right, and each
Partner's Partnership Interest shall be
personal property for all purposes.
2.9. Term. The term of
the Partnership commenced on the date the
Certificate of Limited Partnership of the
Partnership was filed with the
Secretary of State of the State of Texas
and shall continue until the first to
occur of (a) December 31, 2053 or (b) the
dissolution of the Partnership
pursuant to this Agreement. The separate
legal existence of the Partnership
shall continue until the cancellation of
the Certificate of Limited Partnership
of the Partnership in the manner required
by the Act and in accordance with
Section 9.5.
2.10. Registered Office; Registered Agent. The address of the
registered office of the Partnership in the
State of Texas is CT Corporation.
The name and address of the
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registered agent for service of process on
the Partnership in the State of Texas
is 350 N. St. Paul St., Dallas, TX 75201.
The General Partner may change the
registered office and the registered agent
by thirty (30) days prior written
notice to the other Partners.
ARTICLE III.
CAPITAL
3.1. Capital
Contributions. The Partners shall make such Capital
Contributions as are mutually agreed to by
the Partners. All such Capital
Contributions shall be made in proportion
to the Partners' respective Sharing
Percentages.
3.2. Return of
Capital. No Partner shall have the right to demand
or receive the return of such Partner's
Capital Contributions to the
Partnership, even in the event of
withdrawal, whether or not such withdrawal is
permitted hereunder or in breach
hereof.
3.3. Interest on
Capital Contributions. No Partner shall receive
any interest on such Partner's Capital
Contributions or such Partner's Capital
Account, notwithstanding any disproportion
therein as between the Partners.
3.4. Certification.
The Partnership shall issue to each Partner a
certificate summarizing the terms of such
Partner's interest in the Partnership,
including the number of Partnership Units
owned and the Percentage Interest
represented by such Partnership Units as of
the date of such certificate. The
certificate representing each Partner's
Partnership Units shall be endorsed with
the following legend:
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.
ACCOUNTING; BOOKS AND RECORDS; TAX MATTERS
4.1. Bank Accounts.
The General Partner will, at the expense of the
Partnership, deposit all funds collected by
it relating to Partnership Property
into an account or accounts in the name of
the Partnership; and withdrawals from
said accounts shall be made by signatures
only of such Persons as are designated
by the General Partner to act on behalf of
the Partnership.
4.2. Partnership
Records. The General Partner shall, at the expense
of the Partnership, keep proper books of
record and account in which full, true
and correct entries shall be made of all
dealings and transactions in relation
to the Partnership's business and
activities, and shall, at its own expense,
keep proper books of record and account in
which full, true and correct entries
shall be made of all dealings and
transactions in relation to the General
Partner's business and activities. The
General Partner shall permit
representatives of the other Partners
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upon reasonable notice, for any purpose
reasonably related to its interest in
the Partnership, to examine and make
abstracts from any such books and records,
at any reasonable time during reasonable
business hours, and to discuss the
business and financial and other condition
of the Partnership and the General
Partner with officers, accountants, and
other representatives of the General
Partner.
4.3.
Financial Accounting
and Tax Reporting. The General Partner
shall prepare and cause to be furnished to
each of the Partners in a timely
manner copies of (a) such annual and
interim financial reports and statements as
are required to be prepared under the terms
of any debt obligations of the
Partnership or any of its Affiliates, (b)
such other financial reports and
statements as the General Partner
determines are useful or appropriate, and (c)
all necessary tax reporting
information.
4.4. Preparation of
Tax Returns. The General Partner shall arrange
for the preparation and timely filing of
all returns required of the Partnership
for federal and state income tax
purposes.
4.5. Tax Elections.
For federal income tax purposes, the Company
shall be disregarded as an entity separate
from the owner of its partners (which
are also disregarded) pursuant to Treasury
Regulations section
301.7701-3(b)(l)(ii). The General Partner
shall, in its sole and absolute
discretion, determine whether to make or
revoke any elections available to the
Partnership under applicable tax laws. If
the Partnership becomes classified as
a partnership (rather than as a disregarded
entity) for federal income tax
purposes, the General Partner shall have
the right, in connection with any
assignment of a Partner's interest in the
Partnership permitted hereunder, to
make an election in the manner provided in
Regulations Section 1.754-1(b) on
behalf of the Partnership to adjust the
basis of Partnership property in the
manner provided in Code Sections 734(b) and
743(b).
4.6. Tax Matters
Partner. If the Partnership becomes classified as
a partnership (rather than as a disregarded
entity) for federal income tax
purposes, the General Partner shall be the
"tax matters partner" of the
Partnership for federal income tax purposes
under Section 6231(a)(7) of the
Code.
ARTICLE V.
ALLOCATIONS
5.1. Allocation of Net
Profits and Net Losses to Capital Accounts.
Net Profits and Net Losses (and items
thereof) for a Fiscal Year or other period
shall be allocated among the Partners for
Capital Account purposes and, subject
to Section 5.2 hereof, for tax purposes, in
proportion to their respective
Sharing Percentages.
5.2. Tax Allocations;
Code Section 704(c). If the Partnership
becomes classified as a partnership (rather
than as a disregarded entity) for
federal income tax purposes, the following
provisions of this Section 5.2 shall
apply:
(a) Proportional
to Net Income or Net Loss. Except as otherwise
provided in this Section 5.2, for each
taxable period, each item of Partnership
income, gain, deduction and
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loss for tax purposes shall be allocated
among the Partners in the same
proportion as they share the corresponding
item of Net Profits, Net Losses or
other item of Partnership income, gain,
loss or deduction for such period.
(b) Contribution
of Property. In accordance with Code Section
704(c) and the Regulations thereunder,
income, gain, loss, and deduction as to
any property contributed to the capital of
the Partnership shall, for tax
purposes, be allocated among the Partners
so as to take into account any
variation between the adjusted basis of
such property to the Partnership for
federal income tax purposes and the fair
market value of such property.
(c) Asset Value
Adjustment. If the value of any Partnership asset
is adjusted pursuant to the provisions of
Code Section 704(b) and the
Regulations thereunder, subsequent
allocations of income, gain, loss, and
deduction as to such asset shall, for tax
purposes, be made so as to eliminate
as quickly as possible any variation
between the adjusted basis of such asset
for federal income tax purposes and its
fair market value in the same manner as
pursuant to Code Section 704(c) and the
Regulations thereunder. Any elections or
other decisions relating to such
allocations shall be made by the General
Partner in any manner that reasonably
reflects the purpose and intention of this
Agreement.
(d) Discretion;
Effect. Any election or other decision relating to
allocations pursuant to this Section 5.2
shall be made by the General Partner in
any manner that reasonably reflects the
purposes and intention of this
Agreement. Allocations pursuant to this
Section 5.2 are for purposes of federal,
state and local taxes only and shall not
affect or in any way be taken into
account in computing any Partner's Capital
Account balance or share of Net
Profits, Net Losses or distributions
pursuant to any provision of the Agreement.
ARTICLE VI.
DISTRIBUTIONS
At such times as are determined by the General Partner, the
General
Partner shall cause the Distributable Cash
of the Partnership to be distributed
among the Partners in proportion to their
respective Sharing Percentages. For
these purposes, the "DISTRIBUTABLE CASH" of
the Partnership means the net cash
available from Partnership operations and
transactions (excluding cash from
Capital Contributions of the Partners) as
of the end of the quarter or after the
closing of a transaction, as the case may
be, immediately preceding the date of
a distribution, as determined in the
reasonable judgment of the General Partner,
after paying Partnership Expenses, making
all required debt service payments on
Debt of the Partnership, and establishing
or maintaining working capital
reserves.
ARTICLE VII.
MANAGEMENT AND OPERATION OF BUSINESS
7.1. Management.
Except as otherwise provided in this Agreement,
the management and operation of the
Partnership shall be vested exclusively in
the General Partner, which shall have the
power on behalf of the Partnership to
carry out any and all of the purposes
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of the Partnership and to perform all acts
and enter into and perform all
contracts and other undertakings that it
may in its discretion deem necessary or
advisable or incidental thereto. Except as
otherwise expressly provided herein,
the General Partner shall have, and shall
have full authority in its discretion
to exercise, on behalf of and in the name
of the Partnership, all rights and
powers of a general partner of a limited
partnership under the Act necessary or
convenient to carry out the purposes of the
Partnership. Without limiting the
foregoing, the General Partner is hereby
authorized and empowered in the name of
and on behalf of the Partnership:
(a) to initiate,
investigate, research, negotiate, structure and
arrange the acquisition, lease, or
disposition of Partnership Property;
(b) to possess,
monitor, manage, or otherwise deal in, and to
exercise all rights, powers, privileges and
other incidents of ownership or
possession with respect to Partnership
Property;
(c) to employ or
consult such Persons as it shall deem necessary,
appropriate or advisable for the operation
and management of the Partnership,
including, without limitation, brokers,
accountants, engineers, attorneys or
specialists in any field of endeavor
whatsoever, including such Persons who may
be Limited Partners or affiliated with or
controlled by the General Partner, and
to authorize any such Person to act for and
on behalf of the Partnership;
(d) to deposit
the funds of the Partnership in the Partnership's
name in any bank or trust company and to
entrust to such bank or trust company
any of the securities, monies, documents
and papers belonging to or relating to
the Partnership; or to deposit in and
entrust to any brokerage firm that is a
member of any national securities exchange
any of said funds, securities,
monies, documents and papers belonging to
or relating to the Partnership;
(e) to make
appropriate elections and other decisions with respect
to tax and accounting matters;
(f) to enter
into, make, deliver and perform all contracts,
agreements, instruments and other
undertakings as the General Partner may
determine to be necessary, advisable,
appropriate or incidental to the carrying
out of the objects and purposes set forth
above or contemplated hereby, the
taking of such action by the General
Partner to be conclusive evidence of such
determination;
(g) to acquire
and enter into any contract of insurance necessary
or desirable for the protection or
conservation of Partnership Property or the
protection of officers, agents, or
representatives of the Partnership (including
directors and officers insurance or
