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Exhibit 3.12
OPERATING AGREEMENT OF
TA TRAVEL, L.L.C.
A DELAWARE LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT (the "Agreement") is made effective
as of the _____ day of October, 1997, by TA Operating Corporation (the
"Member").
ARTICLE 1
ORGANIZATION OF THE COMPANY
Section 1.1 Organization. On October 16, 1997, Xxxxx X.
Xxxxxxx, as the authorized representative of the Company, organized the Company
by executing and filing a Certificate of Formation with the Secretary of State
of Delaware in accordance with and pursuant to the Act. Prior to the Company's
conducting business in any jurisdiction other than the State of Delaware, the
Managers shall cause the Company to comply with all requirements necessary to
qualify the Company as a foreign limited liability company in that jurisdiction.
At the request of the Managers, the Member shall execute, acknowledge, swear to,
and deliver all certificates and other instruments conforming with this
Agreement that are necessary or appropriate to qualify, continue and terminate
the Company as a foreign limited liability company in all such jurisdictions in
which the Company may conduct business.
Section 1.2 Name. The name of the Company is TA Travel, L.L.C.
(the "Company").
Section 1.3 Principal Place of Business. The principal place
of business of the Company shall be located at 00000 Xxxxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxx 00000 or such other address as shall be designated by the Member.
Section 1.4 Purposes. The purposes of the Company are to
engage in any and all businesses or activities for which limited liability
companies may be organized under the laws of the State of Delaware, including,
but not limited to the acquisition and leasing of aircraft.
Section 1.5 Term. The term of the Company commenced on the
date of filing of the Certificate of Formation of the Company with the Secretary
of State of Delaware and shall continue until terminated by operation of law or
pursuant to the provisions hereof.
Section 1.6 Registered Agent. The registered agent for service
of process on the Company in the State of Delaware shall be Corporation Service
Company, whose address is 0000 Xxxxxx Xxxx, X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxxx
00000.
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Section 1.7 Definitions. Any capitalized term used in this
Agreement shall have the meaning ascribed to such term in Schedule A hereto,
unless otherwise expressly provided herein or unless the context otherwise
clearly requires.
ARTICLE 2
CAPITAL CONTRIBUTIONS
Section 2.1 Member's Contributions. Contemporaneously with the
execution of this Agreement, the Member shall make an initial Capital
Contribution to the Company. Additional Capital Contributions to the Company
shall be made from time to time in such amounts as may be determined by of the
Member.
Section 2.2 Return of Contributions. The Member shall be
entitled to the return of its Capital Contributions upon the terms and
conditions contained in this Agreement. No interest shall be due or payable on
either the Member's Capital Account or its Capital Contribution. An unreturned
Capital Contribution shall not be a liability of the Company.
ARTICLE 3
PROFITS AND LOSSES; DISTRIBUTIONS; ACCOUNTING MATTERS
Section 3.1 Allocation of Profits and Losses. All of the
profits and losses of the Company shall be allocated to and borne by the Member.
Section 3.2 Distributions. Excess Cash Flow shall be
calculated and distributed to the Member on a monthly basis.
Section 3.3 Withdrawals. The Member shall be entitled to make
withdrawals from its Capital Account by notice to the Managers at any time.
Section 3.4 Books; Fiscal Year. (a) The books of the Company
shall be kept on the accrual basis and in accordance with generally accepted
accounting principles consistently applied. The Managers shall keep accurate and
detailed accounts of all investments, receipts, disbursements and other
transactions and proceedings under this Agreement, and all such accounts and
other records relating thereto shall be open to inspection and audit at all
reasonable times by the Member.
(b) The fiscal year of the Company shall be the calendar year.
Section 3.6 Tax Returns. The Managers shall cause to be
prepared and filed all necessary federal and state tax returns for the Company.
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ARTICLE 4
MANAGEMENT
Section 4.1 Management by Managers. Except for situations in
which the approval of the Member is required by this Agreement or by nonwaivable
provisions of applicable law: (a) the powers of the Company shall be exercised
by or under the authority of, and the business and affairs of the Company shall
be managed under the direction of, the Managers; and (b) the Managers may make
all decisions and take all actions for the Company not otherwise provided for in
this Agreement, including (but not limited to) the following:
(1) entering into, making, and performing
contracts, agreements, and other
undertakings binding the Company that may be
necessary, appropriate, or advisable in
furtherance of the purposes of the Company;
(2) seeking, investigating and completing the
acquisition, leasing, investment or
disposition by the Company of properties and
assets;
(3) opening and maintaining bank and investment
accounts and arrangements, drawing checks
and other orders for the payment of money,
and designating individuals with authority
to sign or give instructions with respect to
those accounts and arrangements;
(4) maintaining the assets of the Company in
good order;
(5) collecting sums due the Company;
(6) paying debts and obligations of the Company;
and
(7) the acquisition or disposition by the
Company of any properties or assets.
Section 4.2 Number of Managers. Until changed in accordance
with the provisions of this Section, the number of Managers of the Company, none
of whom need be a Member, shall be four (4). The number of Managers may be
changed at the discretion of the Member.
Section 4.3 Designation of Managers. Managers shall be
designated by the Member. The following Persons shall serve as the initial
Managers: Xxxxx X. Xxxx, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx and Xxxxxxx X.
Xxxxxxxxxxx.
Section 4.4 Term of Office. Each Manager shall hold office
until such Manager's death, resignation, or removal from office by the Member.
Any vacancy resulting from any of the foregoing shall be filled by the Member.
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Section 4.5 Actions of the Managers. (a) All actions and
decisions of the Managers shall be made or approved by a majority of the
Managers. Actions and decisions by the Managers may be made or approved at a
meeting held in accordance with the provisions of this Agreement or by a written
instrument executed by the number of Managers required to take or approve such
action under this Section 4.5(a).
(b) Notwithstanding Section 4.5(a) or any other provision to
the contrary contained in this Agreement, the following matters shall require
approval by the Member:
(1) the borrowing of money or otherwise
committing the credit of the Company for any
purpose;
(2) the entering into of any transaction with
any Person where such transaction is outside
the scope of this Agreement;
(3) the admission of a Person as an additional
or substituted member of the Company;
(4) the dissolution or liquidation of the
Company;
(5) any merger or consolidation of the Company
with any other entity; and
(6) selecting, removing, and changing the
authority and responsibility of lawyers,
accountants, and other advisers and
consultants.
Section 4.6 Prohibited Actions. Notwithstanding anything in
this Agreement to the contrary, the Managers shall not do any of the following:
(a) take any action described in Section 4.5(b) of this
Agreement, unless such action has been approved by the Member; or
(b) enter into any transaction of any kind with any Person
where the liability of the Member relating to such transaction is not limited to
the Company assets.
Section 4.7 Meetings. Meetings of the Managers shall be held
at such times and places as the Managers may, by resolution or by-law, from time
to time, determine.
Section 4.8 Officers. (a) The Company may have a President and
such other officers as the Managers from time to time may appoint. All officers
are subject to removal at any time in the discretion of the Managers. Subject to
the limitations of this Agreement with respect to actions required to be taken
by the Managers or the Members, the officers shall have those duties as are
customarily possessed by such officers of a Delaware corporation, except as such
duties may be limited or expanded by action of the Managers.
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(b) The Member and initial Managers hereby designate the
following Persons to serve as the initial officers of the Company:
President & CEO Xxxxx X. Xxxx
Xx. Vice President & Xxxxx X. Xxxxxx
CFO, Secretary
Sr. Vice President, Xxxxxxx X. Xxxxx,
Market Development
Sr. Vice President, Xxxxxxx X. Xxxxxxxxxxx
Marketing
Section 4.9 Tax Matters Member. The Member shall act as the
"tax matters partner" for the Company, as that term is defined in, and for all
purposes of, Section 6231(a)(7) of the Code.
ARTICLE 5
LIMITATION OF LIABILITY; INDEMNIFICATION
Section 5.1 Proof of Failure to Satisfy Standard of Conduct.
The Member, Managers and Officers shall not be deemed to have violated any
standard of conduct under this Article 5 unless such violation is proved, by
clear and convincing evidence, in an action brought against such person. The
termination of any action, suit or proceeding by judgment, order, settlement or
upon a plea of nolo contendere or its equivalent shall not of itself constitute
proof or create a presumption that the appropriate standard of conduct has been
violated.
Section 5.2 Limitation of Liability. The Member, Managers and
Officers shall not be liable to the Company in damages for any action that the
Member, Managers and Officers take or fail to take in such capacity, unless such
action or failure to act was undertaken with deliberate intent to cause injury
to the Company or with reckless disregard for the best interests of the Company.
Section 5.3 Indemnification of Members. The Company agrees to
indemnify the Member, Managers and Officers (an "indemnified party"), to the
fullest extent permitted by law, and to save and hold each indemnified party
harmless from, and in respect of, all (1) fees, costs and expenses incurred in
connection with or resulting from any claim, action or demand against such
indemnified party or the Company that arise out of or in any way relate to the
Company, its properties, business or affairs, and (2) such claims, actions and
demands, and any losses or damages resulting from such claims, actions and
demands, including amounts paid in settlement or compromise (if recommended by
attorneys for the Company) of any such claim, action or demand; provided,
however, that this indemnification shall apply only so long as the indemnified
party has acted in good faith on behalf of the Company, in a manner reasonably
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believed by him or her to be within the scope of his or her authority under this
Agreement and in the best interests of the Company, and only if such action or
failure to act did not constitute willful misconduct, fraud or gross negligence.
Expenses, including attorneys' fees, incurred by the Member, Managers and
Officers in defending any proceeding referred to in this Section 5.3, shall be
paid by the Company, in advance of the final disposition of such proceeding,
upon receipt of an undertaking by or on behalf of the Member, Managers and
Officers to repay such amount, if it shall ultimately be determined that she or
he is entitled to be indemnified by the Company as authorized in this Section
5.3.
ARTICLE 6
DISPOSITIONS OF INTERESTS
The Member shall not sell, transfer, assign, donate or
otherwise dispose of its Membership Interest without thirty (30) days prior
notice to the Managers.
ARTICLE 7
DISSOLUTION, LIQUIDATION AND TERMINATION OF THE COMPANY
Section 7.1 Dissolution. The Company shall be dissolved and
its affairs wound up on the first to occur of the following:
(a) the written election of the Member to dissolve; or
(b) an entry of a decree of judicial dissolution of the
Company.
Section 7.2 Liquidation and Termination. On dissolution of the
Company, the Managers shall act as liquidator. The liquidator shall proceed
diligently to wind up the affairs of the Company and make final distributions as
provided herein and in the Act. The costs of liquidation shall be borne as a
Company expense. Until final distribution, the liquidator shall continue to
manage the Company assets with all of the power and authority of the Managers. A
reasonable time shall be allowed for the orderly liquidation of the assets of
the Company and the discharge of liabilities to creditors so as to enable the
liquidator to minimize any losses resulting from liquidation. The liquidator, as
promptly as possible after dissolution, shall apply the proceeds of liquidation
as set forth in the remaining sections of this Article 7.
Section 7.3 Payment of Debts. The assets shall first be
applied to the payment of the liabilities of the Company and the expenses of
liquidation.
Section 7.4 Remaining Distribution. The remaining assets shall
then be distributed to the Member.
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Section 7.5 Reserve. Notwithstanding the foregoing provisions,
the liquidator may retain such amount as it deems necessary as a reserve for any
contingent liabilities or obligations of the Company, which reserve, after the
passage of a reasonable period of time, shall be distributed pursuant to the
provisions of this Article 7.
Section 7.6 Final Accounting. The Member shall be furnished
with a statement which shall set forth the assets and liabilities of the Company
as of the date of the complete liquidation. Upon the compliance by the
liquidator with the foregoing distribution plan, the liquidator shall execute
and cause to be filed a Certificate of Cancellation and any and all other
documents necessary with respect to termination and cancellation of the Company
under the Act.
ARTICLE 8
MISCELLANEOUS
Section 8.1 Federal Income Tax Elections. In the event of a
transfer of all or part of the interest of the Member in the Company, the
Company may elect pursuant to Section 754 of the Code (or any similar provision
enacted in lieu thereof) to adjust the basis of the assets of the Company upon
written request of the transferee, unless such election would have a materially
unfavorable effect upon any of the Members.
Section 8.2 Governing Law. The Company and this Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware applicable to contracts made and to be wholly performed in Delaware.
Section 8.3 Entire Agreement. This Agreement contains the
entire understanding among the parties and supersedes any prior understanding
and agreements between them respecting the within subject matter. There are no
representations, agreements, arrangements, or understandings, oral or written,
between or among the parties hereto relating to the subject matter of this
Agreement which are not fully expressed herein.
Section 8.4 Severability. This Agreement is intended to be
performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules and regulations of the jurisdictions in which
the Company does business. If any provision of this Agreement, or the
application thereof to any person or circumstance shall, for any reason and to
any extent, be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
Section 8.5 Notices. Any notice or communication required or
permitted to be given by any provision of this Agreement shall be deemed to have
been given and received for all purposes when delivered personally to the party
to whom the same is directed or when mailed or sent by overnight delivery
service, charges prepaid, addressed to the party to whom the same is directed at
the address set forth in this Agreement, or such other address as the Company
has received written notice from the appropriate party from time to time.
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Section 8.6 Amendment. This Agreement may be amended only by
action by the Member.
Section 8.7 Heirs, Successors and Assigns. Each and all of the
covenants, terms, provisions and agreements contained in this Agreement shall be
binding upon and inure to the benefit of the parties hereto and, to the extent
permitted by this Agreement, their respective heirs, legal representatives,
successors and assigns.
Section 8.8 Creditors. None of the provisions of this
Agreement shall be for the benefit of or enforceable by any creditors of the
Company.
Section 8.9 Pronouns and Plurals. All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural, as the identity of the person or persons may require.
IN WITNESS WHEREOF, the Member has executed this Agreement as
of the date first above written.
MEMBER:
TA Operating Corporation
By: /s/ Xxxxx X. Xxxxxx
Its: Senior Vice President
and Chief Financial Officer
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SCHEDULE A
For purposes of the foregoing Operating Agreement (the
"Agreement"), the following terms shall have the meanings respectively ascribed
to them in this Schedule, which shall be treated as part of the terms of the
Agreement:
Act: "Act" shall mean the Delaware Limited Liability Company
Act codified at Del. Code Xxx. tit. 6 Section 18-101 to 18-1107, inclusive, as
in effect from time to time in the State of Delaware.
Agreement: "Agreement" shall mean the Operating Agreement of
the Company as the same may be amended from time to time in accordance with its
terms.
Capital Contribution: "Capital Contribution" shall mean the
amount in cash (or other property) contributed by the Member (or such Member's
predecessor in interest) to the capital of the Company for such Member's
Membership Interest in the Company.
Cash Flow: "Cash Flow" shall mean all revenue received by the
Company from Company operations, or from the sale, exchange or other disposition
of all or any part of the assets of the Company or from the refinancing of any
indebtedness on the assets owned by the Company, less all expenses of every kind
(before deduction for cost recovery or other non-cash expenses) of the Company
for any period.
Code: "Code" shall mean the Internal Revenue Code of 1986, as
amended.
Company: "Company" shall mean TA Travel, L.L.C., a Delaware
limited liability company.
Excess Cash Flow: "Excess Cash Flow" shall mean Cash Flow of
the Company in excess of such reserves as the Managers reasonably determine are
necessary from time to time for the efficient operation of the Company's
business.
IRS: "IRS" shall mean the Internal Revenue Service.
Manager: "Manager" shall mean each individual designated as a
manager of the Company pursuant to Article 4.
Member: "Member" shall mean TA Operating Corporation, and any
Person hereafter admitted to the Company as a Member as provided in the
Agreement.
Membership Interest: "Membership Interest" shall mean the
entire interest of a Member in the Company, including (but not limited to)
rights to distributions (liquidating or otherwise) and allocations.
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Officer: "Officer" shall mean any individual appointed to act
as the President, a Vice President, Treasurer or the Secretary of the Company or
any other office established by the Managers pursuant to the Agreement.
Person: "Person" shall have the meaning given that term
in Section 18-101(11) of the Act.
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