Exhibit 3.22
OPERATING AGREEMENT
OF
PHH/PAYMENTECH L.L.C.
Effective with the first proper filing of a Certificate of Formation
(the "Certificate") with the Secretary of State of the State of Delaware, the
undersigned (the "Members") form a limited liability company pursuant to and in
accordance with the Delaware Limited Liability Company Act, as amended from time
to time (the "Act"), and in connection therewith agree as follows:
1. Name. The name of the limited liability company formed hereby is
PHH/PAYMENTECH L.L.C. (the "Company").
2. Purpose. The Company is organized for the purposes of engaging in
(i) the provision of payment cards and related services, (ii) the ownership and
operation of any property of the Company acquired in connection with the
foregoing and (iii) such other business as may be conducted by the Company from
time to time (collectively, the "Business").
3. Members. The names and addresses of the Members are as follows:
Name Address
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PHH Vehicle Management 307 International Circle
Services Corporation Hunt Valley, Maryland 21030
("PHH Member")
Paymentech Fleet Services, Inc. 1601 Elm Street, 8th Floor
("FUSA Member") Dallas, Texas 75201
4. Powers. The business and affairs of the Company shall be managed
by the Managing Member. The Managing Member shall be PHH Member. Except for
situations in which the approval of FUSA Member is expressly required by this
Agreement or by nonwaivable provisions of applicable law, the Managing Member
shall have full, complete, and exclusive
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authority to manage and control the business, affairs, and properties of the
Company, to make all decisions regarding those matters, and to perform any and
all other acts or activities customary or incident to the management of the
Business.
5. Term. The term of the Company shall commence on the date of the
filing of the Certificate with the Secretary of State of the State of Delaware
and shall be perpetual unless terminated in accordance with Section 13 hereof.
6. Capital Contributions. Concurrently with the execution of this
Agreement, PHH Member has made capital contributions to the Company comprised
of, (i) $10,000 in cash in consideration for which the Company has issued to PHH
Member a 1% membership interest in the Company and (ii) pursuant to a
Contribution Agreement dated as of the date hereof between PHH Member and the
Company, certain of the assets of PHH Member in consideration for which the
Company has issued to PHH Member a 98% membership interest in the Company. The
Members agree that the transfer of assets pursuant to the Contribution Agreement
shall be treated as a capital contribution to the Company of assets with a
recorded basis of $0 and a market value of $35,000,000. Also concurrently with
the execution of this Agreement, FUSA Member has made a capital contribution to
the Company comprised of $10,000 in cash, in consideration for which the Company
has issued to FUSA Member a 1% membership interest in the Company.
7. Capital Accounts. The Members shall have capital accounts
maintained in accordance with Section 704(b) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder.
8. Allocation of Profits and Losses. The Company's profits and
losses shall be allocated in proportion to the capital contributions of the
Members.
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9. Distributions. Distributions shall be made to the Members at the
times and in the aggregate amounts determined by the Members. Such distributions
shall be allocated among the Members in the same proportion as their then
capital account balances.
10. Transfers and Assignments. No Member may transfer or assign in
whole or in part its membership interest in the Company without the express
written consent of the other Member, which it may grant or withhold in its sole
discretion.
11. Resignation of a Member. No Member may resign from the Company
except in connection with a transfer permitted pursuant to Section 10 hereof
without the prior written consent of the other Member.
12. Amendment. This Agreement may be amended by the unanimous
written consent of the Members.
13. Dissolution. The Company shall dissolve upon the earliest to
occur of (a) the unanimous written consent of all Members, (b) the death,
retirement, resignation (other than in connection with a transfer permitted
pursuant to Section 10 hereof), expulsion, "event of bankruptcy" (as defined in
Section 18-304 of the Act) or dissolution of any Member, or the occurrence of
any other event which terminates the continued membership of a Member unless the
remaining Member consents within 90 days after the occurrence of such event to
continue the Company or (c) the entry of a decree of judicial dissolution
against the Company in accordance with the Act. Any such dissolution shall be in
accordance with the Act.
14. Indemnification. To the fullest extent permitted by law, the
Company shall indemnify the Members and their officers, directors, committee
members, employees, and agents and hold them harmless from and against any
losses, costs, liabilities, damages, and expenses (including, without
limitation, costs of suit and attorney's fees) any of them may incur as a Member
in the Company or in performing their obligations under this Agreement;
provided,
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however, then no person shall be indemnified and held harmless in the case of
bad faith or willful misconduct by such person.
15. Governing Law. This Agreement shall be governed by, and
construed under, the laws of the State of Delaware without regard to its
conflict of laws rules.
IN WITNESS WHEREOF, the undersigned have duly executed this
Operating Agreement as of the 1st day of January, 1997.
PHH VEHICLE MANAGEMENT
SERVICES CORPORATION
By: /s/ [ILLEGIBLE]
-------------------------------------
Name:
Title:
PAYMENTECH FLEET SERVICES, INC.
By: /s/ [ILLEGIBLE]
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Name:
Title: Senior VP
FIRST AMENDMENT TO
AMENDED AND RESTATED OPERATING AGREEMENT
OF PHH/PAYMENTECH L.L.C.
THIS FIRST AMENDMENT TO AMENDED AND RESTATED OPERATING AGREEMENT OF
PHH/PAYMENTECH L.L.C. (the "Amendment") is dated as of August 28, 1997, by and
between Paymentech Fleet Services, Inc. ("FUSA") and PHH Vehicle Management
Services Corporation ("PHH").
WITNESSETH:
WHEREAS, FUSA and PHH entered into that certain Amended and Restated
Operating Agreement of PHH/Paymentech L.L.C. dated as of January 1, 1997 (the
"Agreement"); and
WHEREAS, the parties have agreed to amend the Agreement as provided
herein;
NOW, THEREFORE, in consideration of the agreements herein contained and
subject to the terms and conditions herein set forth, FUSA and PHH hereby agree
as follows:
1. Definitions. Capitalized terms used herein and defined in the Agreement
shall have the meanings set forth in the Agreement except as otherwise set forth
herein.
2. Canadian Activities. The parties have agreed to extend to September 30,
1997, the time for agreeing upon the structure and terms relating to the
performance of Covered Activities with respect to Fleet Vehicles in Canada.
Accordingly, the first sentence of Section 9.09 of the Agreement is hereby
deleted in its entirety and in place thereof shall be a new sentence which shall
read as follows:
"Within the nine months after the date of this Agreement, PHH and FUSA
shall negotiate in good faith to endeavor to agree upon the structure and
terms pursuant to which the Company, or the Members jointly through
another entity, will perform Covered Activities with respect to Fleet
Vehicles in Canada; the parties will make good faith efforts to complete
the negotiations prior to the end of such nine months."
3. Continued Effect. Except to the extent amended hereby, all terms,
provisions and conditions of the Agreement shall continue in full force and
effect and the Agreement shall remain enforceable and binding in accordance with
its terms.
4. Counterparts. This Amendment may be executed in any number of
counterparts, all of which when taken together shall constitute one and the same
document, and each party hereto may execute this Amendment by signing any of
such counterparts.
5. Successors and Assigns. This Amendment shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, FUSA and PHH have caused this Amendment to be executed
by their respective authorized officers as of the date first written above.
FUSA:
Paymentech Fleet Services, Inc.
By: /s/ Mary F. Dees
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Name: Mary F. Dees
Title: Senior Vice President
PHH:
PHH Vehicle Management Services
Corporation
By: /s/ Samuel H. Wright
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Name: Samuel H. Wright
Title: Senior Vice President
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