AMENDING AGREEMENT NO. 3
Exhibit
10.3
THIS
AGREEMENT made as of the 11th day of December, 0000,
X
X X X X
X X:
AVISCAR
INC.,
a
corporation incorporated under the laws of Canada,
(hereinafter
called the "Avis
General Partner"),
-
and
-
BUDGETCAR
INC.,
a
corporation existing under the laws of Canada,
(hereinafter
called the "Budget
General Partner"),
-
and
-
BNY
TRUST COMPANY OF CANADA,
a
trust
company incorporated under the laws of Canada and registered to carry on the
business of a trust company in each of the provinces of Canada, in its capacity
as trustee of STARS
TRUST,
a trust
established under the laws of the Province of Ontario,
(hereinafter
called the "STARS
Limited Partner"),
-
and
-
MONTREAL
TRUST COMPANY OF CANADA,
a
trust
company incorporated under the laws of Canada and registered to carry on the
business of a trust company in each of the provinces in Canada, in its capacity
as trustee of BAY
STREET FUNDING TRUST,
a trust
established under the laws of the Province of Ontario,
(hereinafter
called the "Bay
Street Limited Partner").
WHEREAS
the Avis General Partner, the Budget General Partner, the STARS Limited Partner
and the Bay Street Limited Partner have entered into a fourth amended and
restated limited partnership agreement made as of the 20th day of April, 2005,
as amended by amending agreements between the parties dated October 11, 2005
and
July 7, 2006, (collectively, the "Limited
Partnership Agreement");
AND
WHEREAS the Avis General Partner, the Budget General Partner, the STARS Limited
Partner and the Bay Street Limited Partner wish to amend the Limited Partnership
Agreement;
NOW
THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the premises and
covenants and agreements of the parties herein contained and for other good
and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by each of the parties), the parties hereby covenant and agree
as
follows:
1. Interpretation
| (a) |
All
words and expressions defined in the Limited Partnership Agreement
and not
otherwise defined in this Agreement have the respective meanings
specified
in the Limited Partnership
Agreement.
|
| (b) |
Section
headings are for convenience only.
|
2. Amendments
to the Limited Partnership Agreement
| 2.1 |
Section
1.1 of the Limited Partnership Agreement is hereby amended
by:
|
| (a) |
deleting
the definitions of "CCRG", "Normal Course Termination Date", "Parent"
and
"Parent Guarantee" and replacing them with the following,
respectively:
|
""CCRG"
means
Avis Budget Car Rental Canada ULC together with its successors and permitted
assigns;";
""Normal
Course Termination
Date"
means:
|
(a)
|
in
respect of the STARS Limited Partner, (i) if there are
outstanding Bonds on December 31, 2010, March 20, 2011; or
(ii) if there are no outstanding Bonds on December 31,
2010, December 31, 2010, subject, in each case, to the extension
of such date until March 31, 2012 if on or before September
30, 2010 the General Partners request an extension by notice in writing
to
the STARS Limited Partner and the STARS Limited Partner on or
before November 30, 2010 notifies the General Partners in writing
that it agrees to such extension;
and
|
|
(b)
|
in
respect of the Bay Street Limited Partner, (i) if there are
outstanding Bonds on December 31, 2010, March 20, 2011; or
(ii) if there are no outstanding Bonds on December 31, 2010, December
31, 2010, subject, in each case, to the extension of such date
until March 31, 2012 if on or before September 30, 2010 the
General Partners request an extension by notice in writing to the
Bay
Street Limited Partner and the Bay Street Limited Partner on or
before November 30, 2010 notifies the General Partners in writing
that it agrees to such extension;";
|
""Parent"
means
Avis Budget Car Rental, LLC together with its successors and permitted
assigns;"; and
""Parent
Guarantee"
means
the guarantee dated December 11,
2006
made by the Parent in favour of each of the Limited Partners pursuant to which
the Parent has guaranteed, among other things, certain of the General Partners'
obligations hereunder, as the same may be amended or restated from time to
time;";
| (b) |
adding
the words "other than a Used Vehicle," immediately following the
words
"Partnership Non-program Vehicle," where such words are found in
the third
line of the defined term "Depreciation" and adding the words "and,
for
Used Vehicles, 2.5% per month" immediately following the words "on
trucks
and vans" where such words are found in the sixth line of such defined
term;
|
| (c) |
adding
the words ", other than a Used Vehicle," immediately following the
word
"Vehicle" where such word is found in the first line of the defined
term
"Partnership Program Vehicle";
|
| (d) |
adding
the words ", including a Used Vehicle," immediately following the
word
"Vehicle" where such word is found in the first line of the defined
term
"Partnership Vehicle"; and
|
| (e) |
adding
each of the following defined terms in the appropriate alphabetical
order:
|
""Aggregate
Payables Amount"
means,
on any date, the aggregate amounts owing to Eligible Manufacturers or
Manufacturers by
the
Partnership in respect of Partnership Vehicles that are included in the
calculation of the Aggregate Partnership Non-program Vehicle Amount or the
Aggregate Partnership Program Vehicle Amount on such date;";
""Model
Year"
means
the calendar year assigned by a Manufacturer to a particular make and model
of
Vehicle as that Vehicle's "model year";";
""Partnership
Model Year"
means,
with respect to any calendar year, the period beginning on October 1 of the
prior calendar year and ending on September 30 of that calendar year, which,
by
way of example, means the 2007 "Partnership Model Year" is the period beginning
on October 1, 2006 and ending on September 30, 2007;";
""Standby
General Partner"
means
1708437 Ontario Inc.;"; and
""Used
Vehicle"
means a
Vehicle which was a used Vehicle on the date it was purchased by the Partnership
and which has been designated a Model Year by the Manufacturer which is no
more
than one Model Year prior to the Partnership Model Year in which such Vehicle
was purchased;".
| 2.2 |
Section
1.9 of the Limited Partnership Agreement is hereby amended by adding
the
following at the end of such section, "Schedule N - Form of Standby
General Partner Acknowledgement".
|
| 2.3 |
Section
3.3(e) of the Limited Partnership Agreement is hereby amended by
adding
the words "less the Aggregate Payables Amount," immediately following
the
words "balance in the Principal Funding Account," where such words
are
found in the eleventh and twelfth lines of Section
3.3(e).
|
| 2.4 |
Section
5.2(i) of the Limited Partnership Agreement is hereby amended by
deleting
the percentage "80%" from Section 5.2(i)(i) and substituting therefor
the
percentage "75%"
|
|
and
by deleting the words "and (vi)" where such words are found in
the tenth
line of Section 5.2(i) of the Limited Partnership Agreement and
substituting therefor the words "(vi) no more than 10% of the Partnership
Vehicles are Used Vehicles, (vii) no Partnership Vehicle that is
a Used
Vehicle has mileage of more than 60,000 kilometres, and (viii)".
|
| 2.5 |
Section
5.2(j) of the Limited Partnership Agreement is hereby amended by
deleting
such section in its entirety and substituting therefor the
following:
|
"(j) in
buying
Vehicles for the Partnership, other than pursuant to the Assignment and
Assumption Agreement, the General Partners shall (i) buy only Vehicles produced
by Manufacturers and only of the current model year or the immediately preceding
model year, (ii) buy Vehicles only from (A) Approved Dealers or Manufacturers
or
(B) Avis or Budget System Members or the General Partners pursuant to a Licensee
Vehicle Assignment Agreement and, in the case of Used Vehicles only, (C) any
nationally recognized automobile auction company ("Auction Company") in the
United States or Canada that is approved to sell Vehicles for Manufacturers,
and
(D) any finance company affiliated with a Manufacturer ("Approved Finance
Company"), (iii) in the case of Vehicles (other than Used Vehicles), buy from
Manufacturers and Approved Dealers only and only against a Manufacturer's
invoice, (iv) buy from Avis or Budget System Members or the General Partners
pursuant to a Licensee Vehicle Assignment Agreement only Vehicles that were
new
Vehicles when purchased by the relevant licensee or that were Used Vehicles
purchased by such licensee from an Auction Company or an Approved Finance
Company and that have had no other intermediate owners (except for the General
Partners or Affiliates of the relevant Avis or Budget System Member) and in
respect of which the Manufacturer's invoice of the relevant licensee is
delivered, (v) buy Vehicles from Avis or Budget System Members or pursuant
to a
Licensee Vehicle Assignment Agreement for a purchase price that is (A) in the
case of Partnership Program Vehicles, equal to the depreciated value ascribed
to
each Vehicle as at the date of such purchase pursuant to the applicable
Repurchase Agreement, with a reasonable allowance for age, mileage and damage
to
such Vehicle, and (B) in the case of Partnership Non-program Vehicles, the
fair
market value of each Vehicle (which shall approximate the original cash purchase
price paid by the relevant Avis or Budget System Member for such Vehicle less
depreciation at a rate in accordance with Canadian GAAP but in no event less
than 2% per month applied on a straight line basis, with a reasonable allowance
for age, mileage and damage to such Vehicle), and (vi) ensure that title to
all
Vehicles bought for the Partnership is registered in the name of either the
Partnership or a General Partner in accordance with Section 2.6.".
| 2.6 |
The
Limited Partnership Agreement is hereby amended by adding the following
as
a new Section 8.11:
|
"8.11 Standby
General Partner
(a) The
Standby General Partner is hereby appointed as an additional general partner
to
the Partnership effective upon its execution and delivery of an
acknowledgement
in the form of Schedule N hereto and upon making a capital contribution to
the
Partnership of $10.00. The Standby General Partner shall serve in addition
to
the General Partners. Notwithstanding any other provision of this Agreement,
the
Standby General Partner shall have no rights, duties or obligations hereunder
unless and until the Standby General Partner is appointed as an Additional
General Partner in accordance with, and subject to, Section 8.3(a). For greater
certainty, the Standby General Partner shall not be an Additional General
Partner for the purposes hereof but may be appointed as an Additional General
Partner by either Limited Partner in accordance with, and subject to, Section
8.3(a). Until such time as the Standby General Partner is appointed as the
Additional General Partner in accordance with the terms hereof, the fee of
the
Standby General Partner shall be paid by the General Partners at the rate agreed
to by the parties. Thereafter, such fee will be as set out in Section 8.3(a)."
| 2.7 |
Section
10.4 of the Limited Partnership Agreement is hereby amended by deleting
such section in its entirety and substituting therefor the
following:
|
"10.4 Notices
Any
notice, report, communication, payment or demand required or permitted to be
given or made hereunder shall be in writing and shall be sufficiently given
or
made for all purposes if delivered personally or transmitted by telecopy or
fax
to the party or to an officer of the party to whom the same is directed,
addressed as follows:
(a) if
to the
Avis General Partner, addressed to it at:
Aviscar
Inc.
0
Xxxxxxx
Xxxxx Xxxx
Xxxxxxxxx,
XX X0X 0X0
Attention:
Controller
Fax
No.: (000)
000-0000
with
a
copy to:
Avis
Budget Car Rental, LLC
0
Xxxxxx
Xxx
Xxxxxxxxxx,
X.X.
XXX
00000
Attention:
Treasurer
Fax
No.: (000)
000-0000
And
Attention: Legal
Department
Fax
No.: (000)
000-0000
and
a
copy to:
0
Xxxxxx
Xxx
Xxxxxxxxxx,
X.X.
XXX
00000
Attention:
Treasurer
Fax
No.: (000)
000-0000
(b) if
to the
Budget General Partner, addressed to it at:
Budgetcar
Inc.
0
Xxxxxxx
Xxxxx Xxxx
Xxxxxxxxx,
XX X0X 0X0
Attention:
Controller
Fax
No.: (000)
000-0000
with
a
copy to:
Avis
Budget Car Rental, LLC
0
Xxxxxx
Xxx
Xxxxxxxxxx,
X.X.
XXX
00000
Attention:
Treasurer
Fax
No.: (000)
000-0000
and
Attention: Legal
Department
Fax
No.: (000)
000-0000
and
a
copy to:
0
Xxxxxx
Xxx
Xxxxxxxxxx,
X.X.
XXX
00000
Attention:
Treasurer
Fax
No.: (000)
000-0000
(c) if
to the
STARS Limited Partner, addressed to it at:
STARS
Trust
c/o
BNY
Trust Company of Canada
Xxxxx
0000, 0 Xxxx Xxxxxx Xxxx
Xxxxxxx,
XX X0X 0X0
Attention: Xxxxxx
Xxxxx,
|
President
and Chief Executive Officer
|
Fax
No.: (000)
000-0000
and:
Attention:
Xxxxxxxx
Xxxxxxxx,
Assistant
Treasurer and Trust Officer
Fax
No.: (000)
000-0000
with
a
copy to the STARS Securitization Agent, addressed to it at:
BMO
Xxxxxxx Xxxxx Inc.
1
First
Canadian Place
3rd
Floor
Podium
Toronto,
ON M5X 1H3
Attention: Executive
Managing Director,
Securitization
and Structured Finance
Fax
No.: (000)
000-0000
(d) if
to the
Bay Street Limited Partner, addressed to it at:
Bay
Street Funding Trust
c/o
Montreal Trust Company of Canada
000
Xxxxxxxxxx Xxxxxx
00xx
Xxxxx
Xxxxxxx,
Xxx. X0X 0X0
Attention: Account
Administrator
Fax
No.: (000)
000-0000
with
a
copy to the Bay Street Securitization Agent, addressed to it at:
Scotia
Capital Inc.
00xx
Xxxxx, Xxxxxx Xxxxx
00
Xxxx
Xxxxxx Xxxx
P.O.
Box
4085, Station "A"
Toronto,
Ontario
M5W
2X6
Attention: Director,
Securitization
Fax
No.: (000)
000-0000
(e)and
if to
the Rating Agency, addressed to it at:
Dominion
Bond Rating Service Limited
000
Xxxx
Xxxxxx Xxxx
Xxxxx
0000
Sun
Life
Centre, Xxxx Xxxxx
X.X.
Xxx
00
Xxxxxxx,
XX X0X 0X0
Attention: Executive
Vice President - Structured Finance
Fax
No.: (000)
000-0000
Any
such
notice that is given by personal delivery shall be deemed to have been received
on the day of actual delivery thereof and any notice given by telecopy or fax
shall be deemed to have been received on the first Business Day after the
transmittal thereof. A Partner may change its address or fax number
by giving written notice of such change to the other Partners.".
| 2.8 |
The
Limited Partnership Agreement is hereby amended by adding Schedule
A
annexed hereto as Schedule N to the Limited Partnership
Agreement.
|
3. Other
Documents
Any
reference to the Limited Partnership Agreement made in any documents delivered
pursuant thereto or in connection therewith shall be deemed to refer to the
Limited Partnership Agreement as amended or supplemented from time to
time.
4. Miscellaneous
| (a) |
With
the exception of the foregoing amendments, the Limited Partnership
Agreement shall continue in full force and effect,
unamended.
|
| (b) |
This
Agreement shall enure to the benefit of and be binding upon the parties,
their successors and any permitted
assigns.
|
| (c) |
This
Agreement may be executed in one or more counterparts each of which
shall
be deemed an original and all of which when taken together, shall
constitute one and the same
instrument.
|
| (d) |
None
of the rights or obligations hereunder shall be assignable or transferable
by any party without the prior written consent of the other
party.
|
| (e) |
This
Agreement shall be governed and construed in accordance with the
laws of
the Province of Ontario and the federal laws of Canada applicable
therein.
|
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their authorized signatories thereunto duly authorized, as of the date first
above written.
|
AVISCAR
INC.
|
||||
|
by:
|
/s/
Xxxx X. Sera
|
|||
|
Name:
Xxxx X. Sera
Title:
Senior Vice President and Secretary
|
|
by:
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
Name:
Xxxxx Xxxxxxxx
Title:
Assistant Treasurer
|
|
BUDGETCAR
INC.
|
||||
|
by:
|
/s/
Xxxxx X. Xxxxxxx
|
|||
|
Name:
Xxxxx X. Xxxxxxx
Title:
President and Executive Vice President
|
|
by:
|
/s/
Xxxx Xxxxxxxxx
|
|||
|
Name:
Xxxx Xxxxxxxxx
Title:
Assistant Secretary
|
|
BNY
TRUST COMPANY OF CANADA,
as trustee of of STARS TRUST (with liability
limited to the assets of the Trust) by its Securitization Agent,
BMO XXXXXXX XXXXX INC.
|
||||
|
by:
|
/s/ Xxxxx X. Xxxxxxx | |||
|
Name:
Title:
|
|
by:
|
/s/Xxxxx
Xxxxxx
|
|||
|
Name:
Title:
|
|
MONTREAL
TRUST COMPANY OF CANADA, as
trustee of
BAY STREET FUNDING TRUST (with
liability limited to the assets of the trust) by its
administrator, SCOTIA
CAPITAL INC.
|
||||
|
by:
|
/s/ Xxxx Xxx | |||
|
Name:
Title:
|
The
undersigned hereby acknowledges notice of and consents to the foregoing
amendments to the Limited Partnership Agreement.
DATED
this 11th day of December, 2006.
|
AVIS
BUDGET CAR RENTAL, LLC
|
||||
|
by:
|
/s/
Xxxx X. Sera
|
|||
|
Name:
Xxxx X. Sera
Title:
SVP and Secretary
|
We
hereby
consent to the foregoing amendments to the Limited Partnership
Agreement.
DATED
this 11th day of December, 2006.
|
DOMINION
BOND RATING SERVICE LIMITED
|
||||
|
by:
|
/s/
X X Marriott
|
|||
|
Name:
Title:
|
SCHEDULE
A
Schedule
N
To
Limited Partnership Agreement
TO: AVISCAR
INC.
BUDGETCAR INC.
AND
TO: STARS
TRUST
BAY
STREET FUNDING TRUST
RE: WTH
FUNDING LIMITED PARTNERSHIP (the "Partnership")
The
undersigned has read and understands the Fourth Amended and Restated Limited
Partnership Agreement made as of April 20, 2005 between Aviscar Inc., Budgetcar
Inc., STARS Trust and Bay Street Funding Trust (as amended, supplemented,
revised or restated from time to time, the "Partnership Agreement") relating
to
the Partnership. In consideration of the admission of the undersigned to the
Partnership as Standby General Partner and other good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, the undersigned
undertakes and agrees to be bound by and to observe the provisions of the
Partnership Agreement as Standby General Partner.
The
undersigned hereby represents and warrants that it is not a "non-resident"
within the meaning of the Income
Tax Act
(Canada).
Terms
capitalized (other than for grammatical reasons) but not defined herein have
the
meanings respectively assigned to them in the Agreement.
DATED
this n
day of
n,
2006.
|
by:
|
/s/
|
|||
|
Name:
Title:
|
