Exhibit 3.8
LIMITED LIABILITY COMPANY OPERATING AGREEMENT dated as of March 16, 2006,
(the "Operating Agreement"), of Avis Budget Holdings. LLC (the "Company"), by
Cendant Finance Holding Company LLC. as sole member of the Company (the
"Member").
RECITAL
The member desires to form the Company under the Delaware Limited
Liability Company Act o as amended from time to time, the "Act").
Accordingly, in consideration of the mutual covenants contained herein,
the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
Capitalized terms used by not otherwise defined herein shall have the
meanings assigned to them in the Act.
ARTICLE II
GENERAL PROVISIONS
SECTION 2.1. Formation.
The member hereby forms the Company pursuant to the Act. A Certificate of
Formation described in Section 18.201 of the Act (the "Certificate of
Formation") has been filed with the Secretary of State of the State of Delaware
in conformity with the Act.
Section 2.2. Company Name.
The name for the Company "Avis Budget Holdings, LLC" or such other name or
names as may be selected by the Members from time to time, and its business
shall be carried on in such name with such variations and changes as the
Members deem necessary to comply with requirements of the jurisdictions in
which the Company's operations are conducted.
SECTION 2.3. Registered Office: Registered Agent.
The Company shall maintain a registered office in the State of Delaware, and
the name and address of the Company's registered agent in the State of Delaware
is Corporation Service Company, 2711 Centerville Road, Suite 400. Wilmington.
Delaware 19801.
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SECTION 2.4. Place of Business.
The business address of the Company shall be determined by the Board (as
defined below). The Company may from time to time have such other place or
places of business within or without the State of Delaware as the Board may
deem advisable.
SECTION 2.5. Purpose: Nature of Business Permitted; Powers.
The Company is formed for the purpose of engaging in any lawful act or activity
for which limited liability companies may be formed under the Act. The Company
shall possess and may exercise all the powers and privileges granted by the Act
or by any other law or by the Operating Agreement, together with any powers and
privileges incidental thereto, insofar as such powers and privileges are
necessary or convenient to the conduct, promotion or attainment of the business
purpose or activities of the Company.
SECTION 2.6. Business Transactions of a Member with the Company.
In accordance with Section 18-107 of the Act, a member may lend money to.
borrow money from, act as surety, guarantor or endorser for, guarantee or
assume one or more specific obligations of, provide collateral for, and
transact other business with, the Company and, subject to applicable law, shall
have the same rights and obligations with respect to any such matter as a
person who is not a Member.
SECTION 2.7. Fiscal Year.
The fiscal year of the Company (the "Fiscal Year") for financial statement and
federal income tax purposes shall be determined by the Board.
ARTICLE III
MEMBERS
SECTION 3.1. Members.
The Members of the Company shall consist of the Members set forth on Schedule A
hereto. Schedule A shall be amended from time to time to reflect the admission
of any Member or the removal, expulsion, retirement or death of any Member, the
receipt by the Company of notice of any change of name of a Member and any
additional capital contributions. Subject to the limitations and restrictions
set forth in the Operating Agreement, each Member shall have all the rights,
powers and obligations which may be possessed by a member of a limited
liability company under the Act.
SECTION 3.2 Classes.
The membership interests of the Company shall consist of one class of common
membership interests ("Common Interests"). Except as specifically provided
herein, all Common Interests shall be identical with each other in every
respect.
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SECTION 3.3. Voting.
Except as expressly provided otherwise in the Operating Agreement, all Members
shall vote as a single class and no Member shall have the right to vote as a
separate class. Members shall only entitled to vote upon those matters
requiring approval of the Members pursuant to the Operating Agreement, the Act
or as otherwise submitted to Members for their consideration by the Board. Each
Member shall be entitled to vote in proportion to its respective Common
Interests in the Company set forth on Schedule A hereto (the "Common interest
Percentage") at the time such action is taken.
SECTION 3.4. Liability of Members.
All debts, obligations and liabilities of the Company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and no Member shall be obligated personally for any
such debt, obligation or liability of the Company solely by reason of being a
Member.
SECTION 3.5. Company Property.
No real or other property of the Company shall be deemed to be owned by any
Member individually, but shall be owned by and title shall be vested solely in
the Company. The interests of the Members in the Company shall constitute
personal property.
SECTION 3.6. Actions by the Members: Meetings; Quorum.
(a) The Members may vote, approve a matter or take any action by the vote of
the Members at a meeting, in person or by proxy, or without a meeting by
written consent. Meetings of the Members may be conducted in person or by
conference telephone facilities. Any action required or permitted to be taken
at any meeting of the Members may be taken without a meeting if such number of
members holding at least the Common Interest Percentage required to approve
such action pursuant to the terms of the Operating Agreement or the Act consent
thereto in writing, and the writing or writings are filed with the minutes of
the proceedings of the Members.
(b) For any meeting of Members, the presence in person or by proxy of Members
owning at least fifty and one-tenth percent (50.1 %) of the outstanding Common
Interests at the time of the action taken (a "Majority") constitutes a quorum
for the transaction of business.
(c) The affirmative vote of a Majority of Members constitutes approval of any
action.
ARTICLE IV
MANAGEMENT
SECTION 4.1. Management of the Company.
(a) Subject to such matters which are expressly reserved hereunder to the
Members for decision, the business and affairs of the Company shall be managed
by a Board of Managers (the "Board"), which shall be responsible for policy
setting and approval of the overall direction of the Company. The Board shall
consist of a minimum of two (2) individuals (the "Managers") each of whom shall
be designated by the Members from me to time. Each Manager shall serve a one
(1) year term and until his or her successor is duly elected and qualified.
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(b) Managers may be removed from office only upon the approval of the members
with or without cause. Any vacancy occurring on the Board due to resignation,
removal, death or disability shall be filled by the members. A Manager chosen
to fill a vacancy shall serve the unexpired term of his or her predecessor in
office.
SECTION 4.2. Meetings of the Board.
(a) The Board shall meet annually and at such other times as may be necessary
for the Company's business on at least one (1) days' prior written notice of
the time and place of such meeting given by any Manager. A majority of the
Managers elected and serving shall constitute a quorum for the transactions of
business by the Board.
(b) All actions of the Board shall require the affirmative vote of a majority
of the Managers. A Manager who is present at a meeting of the Board when action
is taken shall be deemed to have assented to the action taken unless: (i) the
Manager objects at the beginning of the meeting, or promptly upon his or her
arrival, to holding the meeting or transacting business thereat, (ii) the
Manager's dissent or abstention from the action taken is entered in the minutes
of the meeting; or (iii) the Manager delivers written notice of his or her
dissent or abstention to the presiding officer of the meeting before its
adjournment or to the Secretary of the Company immediately alter adjournment of
the meeting. The right of dissent or abstention shall not be available to a
Manager who votes in favor of the action taken.
(c) Notice of any Board meeting may be waived by any Manager before or after
such meeting.
(d) Meetings of the Board may be conducted in person or by conference telephone
facilities. Any action required or permitted to be taken at any meeting of the
Board may be taken without a meeting if all members of the Board consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board.
SECTION 4.3. Officers.
The Board shall have the authority and power to appoint and terminate with or
without cause officers of the Company and such officers shall have such powers
and duties as may be delegated to them by the Board.
SECTION 4.4. Tax Matters Partner.
Cendant Corporation is hereby designated as the Company's "Tax Matters Partner"
under Section 6231 (a) (7) of the Internal Revenue Code (the "Code") and shall
have all the powers and responsibilities of such position as provided in the
Code. The Tax Matters Partner is specifically directed and authorized to take
whatever steps are necessary or desirable to perfect such designation,
including filing any forms or documents with the Internal Revenue Service and
taking such other action as may from time to time be required under the
Regulations issued under the Code.
SECTION 4.5. Reliance by Third Parties.
Persons dealing with the Company are entitled to rely conclusively upon the
power and authority of the Board herein set forth and the power and authority
delegated to any officer of the Company by the Board.
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SECTION 4.6. Expenses.
Except as otherwise provided in the Operating Agreement, the Company will be
responsible for all expenses, including, without limitation:
(a) all expenses related to the business of the Company and all routine
administrative expenses of the Company, including the maintenance of books and
records of the Company, the preparation and dispatch to the Members of checks,
financial reports, tax returns and notices required pursuant to the Operating
Agreement or in connection with the holding of any meetings of the Members:
(b) all expenses incurred in connection with any indebtedness or guarantees of
the Company or any proposed or definitive credit facility or other credit
arrangement;
(c) all expenses incurred in connection with any litigation or arbitration
involving the Company (including the cost of any investigation and preparation)
and the amount of any judgment or settlement paid in connection therewith;
(d) all expenses for indemnity or contribution payable by the Company to any
person:
(e) all expense incurred in connection with the collection of amounts due to
the Company from any person; and
(f) all expenses incurred in connection with the preparation of amendments to
the Operating Agreement.
ARTICLE V
CAPITAL STRUCTURE AND CONTRIBUTIONS
SECTION 5.1. Capital Structure.
The capital structure of the Company shall consist of one class of Common
Interests.
SECTION 5.2. Capital Contributions.
(a) Each Member shall contribute, as an initial capital contribution ("Initial
Capital Contribution") to the Company, the following:
Cendant Finance Holding Company LLC 100%
(b) In exchange for the Initial Capital Contributions, Cendant Finance Holding
Company LLC shall receive Common Interests in the Company in the proportion to
the Common Interest Percentage set forth opposite the name of each such Member
on Schedule A hereto.
SECTION 5.3. Additional Contributions.
No Member shall be obligated to make any additional capital contribution to the
Company. Members shall be permitted to make additional capital contributions
with the approval of the Board.
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ARTICLE VI
ALLOCATIONS AND DISTRIBUTIONS
SECTION 6.1. Allocation of Profits and Losses.
For financial accounting, the Company's net profits or net losses shall be
determined on an annual basis in accordance with generally accepted accounting
principles. For tax purposes, the Company's net profits or net losses shall be
determined on an annual basis in accordance with the manner in which profit or
loss is determined for Federal income tax purposes. In each year, profits and
losses shall be allocated to the Members in proportion to each Member's Common
Interest Percentage as set forth on Schedule A hereto.
SECTION 6.2. No Right to Distributions.
No member shall have the right to demand distributions of any amount of its
capital contributions, except as expressly provided in this Article 6.
SECTION 6.3. Ordinary Distributions.
Subject to the provisions of Section 6.4 upon the approval of a majority of the
Board, the Company may make distributions (in amounts to be determined by the
Board) to Members in proportion to their respective Common Interest Percentages.
SECTION 6.4. Restrictions on Distributions.
The foregoing provisions of this Article 6 to the contrary notwithstanding, no
distribution shall be made if such distribution would violate any contract or
agreement to which the Company is then a party or any law, rule, regulation,
order or directive of any governmental authority then applicable to the Company.
SECTION 6.5. Withholding.
The Company is authorized to withhold from distributions to a Member, or with
respect to allocations to a Member, and to pay over to a Federal, state or
local government, any amounts required to be withheld pursuant to the Internal
Revenue Code of 1986, as amended, or any provisions of any other Federal, state
or local law. Any amounts so withheld shall be treated as having been
distributed to such Member pursuant to this Article 6 for all purposes of the
Operating Agreement, and shall be offset against the current or next amounts
otherwise distributable to such Member.
ARTICLE VII
BOOKS AND RECORDS
SECTION 7.1. Books and Records; Accounting.
The Company shall keep or cause to be kept at the office of the Company (or at
such other place as the Board shall determine in its discretion) full and
accurate books and records regarding the status of the business and financial
condition of the Company.
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SECTION 7.2. Company Tax Returns.
The Company shall cause to be prepared and timely filed all tax returns
required to be filed for the Company. The Tax Matters Partner may, in its
discretion, make or refrain from making any Federal, state or local income or
other tax elections for the Company that it deems necessary or advisable.
ARTICLE VIII
DURATION AND TERMINATION OF THE COMPANY
SECTION 8.1. Term.
The existence of the Company shall commence on the date of the filing of the
Certificate of Formation in the office of the Secretary of State of the State
of Delaware in accordance with the Act and shall have a perpetual life unless
one of the following events shall occur (an "Event of Termination"):
(a) a determination by a Majority of the Members to terminate the Company; or
(b) the entry of a decree of judicial dissolution under Section 18-802 of the
Act.
No other event, including the retirement, withdrawal, insolvency, liquidation,
dissolution, insanity, resignation, expulsion, bankruptcy, death, incapacity or
adjudication of incompetency of a Member, shall cause the existence of the
Company to terminate.
SECTION 8.2 Liquidation.
(a) In the event that an Event of Termination shall occur, then the Company
shall be liquidated and its affairs shall be wound up. All proceeds from such
liquidation shall be distributed in accordance with the provisions of
Section 18-804 of the Act, and all interests in the Company shall be canceled.
Distributions to the Members shall be made in accordance with each Member's
Common Interest Percentage.
(b) In the event of the dissolution of the Company, prior to any liquidation, a
proper accounting shall be made to the Members from the date of the last
previous accounting to the date of dissolution.
(c) In the event the Board determines that a portion of the Company's assets
are best distributed in kind to the Members, then such assets shall be so
distributed in kind to the Members in undivided shares therein as tenants in
common in accordance with each Member's Common Interest Percentage.
(d) Upon the completion of the distribution of the Company's assets, the
Company shall be terminated and the Members shall cause the Company to execute
and file a Certificate of Cancellation in accordance with Section 18-203 of the
Act.
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ARTICLE IX
REPORTS
SECTION 9.1. Form K-1.
After the end of each fiscal year, the Board shall cause to be prepared and
transmitted, as promptly as possible, and in any event within 90 days of the
close of the fiscal year, a federal income tax Form K-l and any required
similar state income tax form for each Member.
ARTICLE X
EXCULPATION AND INDEMNIFICATION
SECTION 10.1. Exculpation.
Notwithstanding any other provisions of the Operating Agreement, whether
express or implied, or obligation or duty at law or in equity, none of any
Manager, any Member, or any officers, directors, stockholders, partners,
employees, representatives or agents of either of the foregoing, nor any
officer, employee, representative or agent of the Company or any of its
affiliates (individually, a "Covered Person" and collectively, the "Covered
Persons") shall be liable to the Company or any other person for any act or
omission (in relation to the Company, the Operating Agreement, any related
document or any transaction contemplated hereby or thereby) taken or omitted in
good faith by a Covered Person and in the reasonable belief that such act or
omission is in or is not contrary to the best interests of the Company and is
within the scope of authority granted to such Covered Person by the Operating
Agreement, provided that such act or omission does not constitute fraud,
willful misconduct, bad faith or gross negligence.
SECTION 10.2. Indemnification.
To the fullest extent permitted by law. the Company shall indemnify and hold
harmless each Covered Person from and against any and all Losses, claims,
demands, liabilities, expenses, judgments, tines, settlements and other amounts
arising from any and all claims, demands actions, suits or proceedings, civil,
criminal. administrative or investigative, in which the Covered Person may be
involved, or threatened to be involved, as a party or otherwise, by reason of
its management of the affairs of the Company or which relates to or arises out
of the Company or its property, business or affairs. Notwithstanding the
foregoing, a Covered Person shall not be entitled to indemnification under this
Section 10.2 with respect to any claim, issue or matter in which such Covered
Person is found by a court of competent jurisdiction to have engaged in fraud,
willful misconduct, bad faith or gross negligence.
SECTION 10.3. Advancement of Expenses. The Company may pay for in advance or
reimburse the reasonable expenses, including reasonable attorneys' fees,
incurred by a Covered Person in such proceeding referred to in Section 10.2 in
advance of the final disposition of such proceeding, or, where appropriate, may
assume the defense of any such Covered Person at the Company's expense upon the
receipt by the Company of an undertaking by such Covered Person to repay any
amounts so advanced if such Covered Person is ultimately determined not to be
entitled to indemnification pursuant to Section 10.2 hereof.
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SECTION 10.4. Indemnification Not Exclusive.
The indemnification and advancement of expenses provided for in this Article X
shall not exclude, limit or preclude any other rights to which any such Covered
Person seeking indemnification or advancement of expenses may be entitled under
the Act, any agreement or contract, any other applicable law or otherwise, and
shall continue as to a Covered Person who has ceased to serve as a manager,
officer, employee, agent, partner, trustee, or in any other indemnified
capacity, and shall inure to the benefit of the heirs, executors,
administrators of any such Covered Person.
SECTION 10.5. Insurance.
The Company may purchase and maintain insurance on behalf of any Covered Person
against any liability asserted against or incurred by such Covered Person in
any capacity or arising out of his or her status as such, whether or not the
Company has the obligation or power to indemnify such Covered Person against
such liability pursuant to the provisions of this Article X. the Act. or
otherwise.
SECTION 10.6. Continuation of Indemnity.
The provisions of this Article X shall continue to apply to any proceeding
specified in Section 10.2 made or commenced against any Covered Person who has
ceased to be a Covered Person entitled to Indemnification hereunder and shall
inure to the benefit of the estate, heirs and personal representatives of such
Covered Person.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Transfers of Common Interests.
Each Member shall be entitled to transfer its Common Interest in the Company,
and the assignee of such Common Interest shall be entitled to exercise all
rights and privileges of a Member of the Company, including. without
limitation, the right to participate in the management of the Company, upon the
occurrence of each of the following:
(a) a majority of the Members (other than the Member assigning its Common
Interest) consents to the admission of such assignee as a Member of the
Company; and
(b) the Board receives written instruments whereby such assignee consents to be
bound by the terms of the Operating Agreement.
SECTION 11.2. Amendment to the Agreement.
Except as otherwise provided in the Operating Agreement, the Operating
Agreement may be amended by, and only by, a written instrument executed by all
of the Members.
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SECTION 11.3. Successors: Counterparts.
The Operating Agreement (a) shall be binding as to the legal successors,
assigns, nominees and representatives of the Members and (b) may be executed in
several counterparts with the same effect as if the parties executing the
several counterparts had all executed one counterpart.
SECTION 11.4. Governing Law; Severability.
The Operating Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without giving effect to the principles of
conflict of laws thereof. In particular, the Operating Agreement shall be
construed to the maximum extent possible to comply with all the terms and
conditions of the Act. If it shall be determined by a court of competent
jurisdiction that any provisions or wording of the Operating Agreement shall be
invalid or unenforceable under the Act or other applicable law, such invalidity
or unenforceability shall not invalidate the entire Agreement. In that case,
the Operating Agreement shall be construed so as to limit any term or provision
so as to make it enforceable or valid within the requirements of applicable
law, and, in the event such term or provisions cannot be so limited, the
Operating Agreement shall be construed to omit such invalid or unenforceable
terms or provisions. If it shall be determined by a court of competent
jurisdiction that any provision relating to the distributions and allocations
of the Company or to any expenses payable by the Company is invalid or
unenforceable, the Operating Agreement shall be construed or interpreted so as
(a) to make it enforceable or valid and (b) to make the distributions and
allocations as closely equivalent to those set forth in the Operating Agreement
as is permissible under applicable law.
SECTION 11.5. Filings.
Following the execution and delivery of the Operating Agreement, the Members
shall promptly prepare any documents required to be filed and recorded under
the Act, and the Members shall promptly cause each such document to be filed
and recorded in accordance with the Act and, to the extent required by local
law, to be filed and recorded or notice thereof to be published in the
appropriate place in each jurisdiction in which the Company may hereafter
establish a place of business. The Members shall also promptly cause to be
filed, recorded and published such statements of fictitious business name and
any other notices, certificates, statements or other instruments required by
any provision of any applicable law of the United States or any state or other
jurisdiction which governs the conduct of its business from time to time.
SECTION 11.6. Headings.
Section and other headings contained in the Operating Agreement are for
reference purposes only and are not intended to describe, interpret define or
limit the scope or intent of the Operating Agreement or any provision hereof.
SECTION 11.7. Additional Documents.
Each Member agrees to perform all further acts and execute, acknowledge and
deliver any documents that may be reasonably necessary to carry out the
provisions of the Operating Agreement.
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SECTION 11.8. Notices.
All notices, requests and other communications to any Member shall be in
writing (including telecopier or similar writing) and shall be given to such
member (and any other person designated by such Member) at its address or
telecopier number set forth in a schedule filed with the records of the Company
or such other address or telecopier number as such Member may hereafter specify
for the purpose by notice. Each such notice, request or other communication
shall be effective (a) if given by telecopier, when transmitted to the number
specified pursuant to this Section and the appropriate confirmation is
received, (b) if given by the mails with first class postage prepaid, addressed
as aforesaid, or (c) if given by any other means, when delivered at the address
specified pursuant to this Section.
SECTION 11.9. Waiver of Partition.
Each of the Members hereby irrevocably waives any and all rights that such
Member may have to maintain any action for partition of any of the Company's
property.
SECTION 11.10. Interpretation.
Wherever from the context it appears appropriate, each term stated in either
the singular or the plural shall include the singular and the plural, and
pronouns stated in either the masculine, the feminine, or the neuter gender
shall include the masculine, feminine and neuter.
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CENDANT FINANCE HOLDING COMPANY LLC
/s/ Lynn A. Feldman
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Lynn A. Feldman
Vice President and Assistant Secretary
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Schedule A
Avis Budget Holdings, LLC
Members Common Interest Percentage
- ------- --------------------------
Cendant Finance Holding Company LLC 100%
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