AMENDING AGREEMENT NO. 2
Exhibit
10.2
THIS
AGREEMENT made as of the 7th
day of
July, 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 an amending agreement between the parties dated
October 11, 2005 (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
each of the following defined terms in their entirety and substituting therefor
the following:
| (i) |
“"Eligible
Manufacturer"
means any of Chrysler, Ford or General Motors or any additional
Manufacturer approved in writing from time to time by each Securitization
Agent and the Rating Agency;”;
|
| (ii) |
“"Eligible
Manufacturer Percentage"
means, in respect of an Eligible Manufacturer at any time, (x) if
such
Eligible Manufacturer's unsecured long-term debt rating by the Rating
Agency at such time is (i) BBB or higher, 90.25%, (ii) BBB (low),
88.9375%, (iii) BB (high), 87.625%, (iv) BB, 86.3125%, and (v) BB
(low) or
lower, (A) with respect to the portion of the aggregate Current Book
Values of the Partnership Program Vehicles manufactured by such Eligible
Manufacturer that represents up to and including 33% of the aggregate
Current Book Values of all Partnership Program Vehicles, 85.0%, and
(B)
with respect to the portion of the Current Book Values of the Partnership
Program Vehicles of such Eligible Manufacturer representing greater
than
33% of the aggregate Current Book Values of all Partnership Program
Vehicles, 82.50%, or (y) if a Manufacturer Event of Bankruptcy has
occurred in respect of such Eligible Manufacturer and is continuing,
76.50%;”;
|
| (iii) |
“"Funding
Termination Event”
means, in respect of a Limited Partner, the occurrence of (a) the
Normal
Course Termination Date for such Limited Partner, (b) a Liquidity
Event in
respect of such Limited Partner, (c) the breach of the covenant contained
in subsection 5.2(i), which breach continues for five Business Days
after
a Settlement Date; provided, however, that if such breach is caused
by a
Manufacturer becoming a Non-Performing Manufacturer, then such breach
will
not constitute a Funding Termination Event in respect of such Limited
Partner if within 30 days of its occurrence, (i) the General Partners
have
caused the portfolio of Partnership Vehicles then owned by the Partnership
to comply with Section 5.2(i), or (ii) the General Partners at their
own
expense have obtained for the benefit of the Partnership credit
enhancement satisfactory in form, source and amount to the Securitization
Agent for such Limited Partner; or (d) a material adverse change
since the
date hereof in the financial condition or operations of a General
Partner
or the Partnership which, in the opinion of the Securitization Agent
for
such Limited Partner, after consultation with the Rating Agency and
which
opinion has been communicated in writing to the General Partners
and the
Limited Partners, could reasonably be expected to result in a General
Partner being unable to satisfy its obligations hereunder, becoming
a
bankrupt, or seeking the protection of Insolvency Legislation;
”;
|
| (iv) |
“"Partnership
Non-program Vehicle Percentage"
means in respect of Partnership Non-program Vehicles manufactured
by a
particular Manufacturer, (i) 76.50%, to the extent a Manufacturer
Event of
Bankruptcy has occurred and is continuing in respect of such Manufacturer;
and (ii) if no such event has occurred, or such event has occurred
but is
no longer continuing, 82.50%;”; and
|
| (v) |
“"Temporary
GP Contributions"
means amounts contributed to the Partnership by a General Partner
on a
temporary basis from time to time pending Capital Calls to fund the
purchase of Partnership Vehicles up to but not in excess of the Original
Book Value of such Vehicles and not contributed to allow the aggregate
balance of the Limited Partners' Capital Accounts to be less than
or equal
to the Maximum Limited Partners' Funded
Amount;”;
|
(b) deleting
the word "Canadian" where such word is found in the defined terms "Chrysler",
"Ford" and "General Motors";
(c) deleting
the dollar amount "$350,000,000" where such dollar amount is found in the
defined term "Available Call Amount" and substituting therefor the dollar amount
"$400,000,000";
(d) adding
the words "on automobiles, minivans and sport utility vehicles and 1.8% on
trucks and vans, in each case" immediately following the words "2% per month"
where such words are found in the fifth line of the defined term
"Depreciation";
(e) adding
the words "and for which the related Manufacturer is not a Non-Performing
Manufacturer" immediately following the words "Repurchase Agreement" where
such
words are found in the second line of the defined term "Partnership Program
Vehicles";
(f) deleting
the word "and" where such word appears in the fourth line of the defined term
"Rental Revenues" and substituting therefor "," and adding the words ", and
all
Airport Concession Fees and Vehicle Licence Fees" after the words "Vehicle
Rental Agreements" where such words are found in the fifth line of the defined
term "Rental Revenues"; and
(g) adding
each of the following defined terms in the appropriate alphabetical
order:
“"Aggregate
Partnership Non-program Vehicle Amount"
means,
on any date, the sum of the products of the individual Partnership Non-program
Vehicle Percentages on such date and the sum of the Current Book Values of
the
Partnership Non-program Vehicles manufactured by each such Manufacturer on
such
date (other
than a Partnership Non-program Vehicle in respect of which a Partnership Vehicle
Receivable is outstanding);”;
“"Aggregate
Partnership Program Vehicle Amount"
means,
on any date, the sum of the products of the individual Eligible Manufacturer
Percentages on such date and the sum of the Current Book Values of the
Partnership Program Vehicles and the Program Negotiation Vehicles manufactured
by each such Eligible Manufacturer on such date (other
than any Program Negotiation Vehicles or Partnership Program Vehicles in respect
of which a Partnership Vehicle Receivable is outstanding);”;
“"Aggregate
Receivables Amount"
means,
on any date, the sum of the products of the individual Partnership Vehicle
Receivable Percentages on such date and the aggregate amount of Partnership
Vehicle Receivables owing by the relevant Manufacturer, Approved Dealer, auction
house or other Person on such date;”;
“"Airport
Concession Fees"
means
all monetary receipts (other than sales, value added and other similar Taxes
collected on behalf of a governmental authority) received from customers as
a
result of the pass through to customers of airport concession fees imposed
on
the Partnership by certain airports in respect of revenues of the Partnership
being generated at such airports;”;
“"Avis
Shareholders Equity"
means,
with respect to the Avis General Partner, an amount, calculated in accordance
with Canadian GAAP, equal to the sum of its (i) share capital, (ii) contributed
and other surplus, (iii) Intercompany Loans to the Avis General Partner, other
than from either the Budget General Partner or WTH Canada Inc., and (iv)
retained earnings, minus the sum of (v) goodwill, and (vi) other intangible
assets;”;
“"Budget
Shareholders Equity"
means,
with respect to the Budget General Partner, an amount, calculated in accordance
with Canadian GAAP, equal to the sum of its (i) share capital, (ii) contributed
and other surplus, (iii) Intercompany Loans to the Budget General Partner,
other
than from either the Avis General
Partner
or WTH Canada Inc., and (iv) retained earnings; minus (v) other intangible
assets (other than goodwill);”;
“"CCRG"
means
CCRG Canada ULC, a Nova Scotia unlimited liability company;”;
“"CCRG
Shareholders Equity"
means,
with respect to CCRG, an amount, calculated in accordance with Canadian GAAP,
equal to the sum of its (i) share capital, (ii) contributed and other surplus,
(iii) retained earnings, and (iv) Intercompany Loans owed to any non-Canadian
Affiliate of CCRG, minus the sum of (v) goodwill, (vi) other intangible assets,
and (vii) any loans or investments made by CCRG to or in any of its
Affiliates;”;
“"Intercompany
Loans"
means
all loans from any Affiliate of either General Partner to any of the Avis
General Partner, the Budget General Partner or CCRG, which loans are on terms
acceptable to each Securitization Agent, acting reasonably, and the Rating
Agency, or the Rating Agency and each Securitization Agent have otherwise
approved such loan as an "Intercompany Loan" for the purposes
hereof;”;
“"Manufacturer
Event of Bankruptcy",
in
relation to a Manufacturer, an Approved Dealer, auction house or other Person,
means:
|
(a)
|
the
failure by such Person or any Affiliate thereof to generally pay
its debts
as they become due, the admission in writing by such Person or any
Affiliate thereof of its inability to pay its debts generally or
the
making by such Person or any Affiliate thereof of an assignment for
the
benefit of its creditors;
|
|
(b)
|
the
filing by such Person or any Affiliate thereof of a notice of intention
to
make a proposal under the Bankruptcy
and Insolvency Act (Canada),
the Companies'
Creditors Arrangement Act
(Canada), Chapters 7 or 11 of the U.S. Bankruptcy Code or
any other similar legislation in the applicable jurisdiction, to
some or
all of its creditors; or
|
|
(c)
|
the
commencement or filing of a petition, notice or application by or
against
such Person or any Affiliate thereof of any proceedings to adjudicate
it a
bankrupt or insolvent or seeking liquidation, winding-up, reorganization,
arrangement, adjustment, protection, relief or composition of it
or its
debts under any law of any jurisdiction, whether now or after the
date of
this Agreement in effect, relating to the dissolution, liquidation
or
winding-up, bankruptcy, insolvency, reorganization of insolvent debtors,
arrangement of insolvent debtors, readjustment of debt or moratorium
of
debts, or to obtain an order for relief by the appointment of a receiver,
receiver manager, administrator, inspector, liquidator or trustee
or other
similar official for it or for any substantial part of its property
and,
if any such proceeding has been instituted against such Person or
any
|
Affiliate
thereof, either (i) such proceeding has not
been stayed or dismissed within 60 days or any of the actions sought in such
proceeding has not been stayed or dismissed within 60 days or any of the actions
sought in such proceeding (including the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official) are
granted in whole or in part, or (ii) such Person or any Affiliate thereof has
authorized, consented to, approved of or acquiesced in, or such Person or any
Affiliate thereof has performed any act, or omitted to perform any act, that
authorizes or indicates its consent to, approval of or acquiescence in, any
such
proceeding;”;
“"Maximum
Limited Partners’ Funded Amount"
has the
meaning ascribed thereto in Section 3.3(e);”;
“"Non-Performing
Manufacturer"
means a
Manufacturer (i) that has, or has an Affiliate that has, filed a notice of
intention to make a proposal under the Bankruptcy
and Insolvency Act
(Canada)
or Chapter 7 of the U.S. Bankruptcy Code or (ii)(A) in respect of which a
Manufacturer Event of Bankruptcy has occurred (other than as referred to in
(i)
above) and (B) which is not performing its obligations in full under its
Repurchase Agreement as a result of such occurrence;”;
“"Non-restricted
Cash"
means
all amounts in the Vehicle Account, excluding Vehicle Account Prepaid Amounts,
as described in Section 4.7(b)(vii)(E);”;
“"Partnership
Vehicle Receivable"
means,
at any time in respect of any Partnership Vehicle (i) that has been returned
to
the relevant Manufacturer for purchase whether pursuant to the terms of the
related Repurchase Agreement or otherwise, or (ii) that has been sold by
the Partnership to an Approved Dealer, an auction house or any other Person,
but
for which such Manufacturer, Approved Dealer, auction house or other Person
has
not yet paid the required purchase price to the Partnership in full, the amount
of such outstanding receivable that is owed by such Manufacturer, Approved
Dealer, auction house or other Person to the Partnership;”;
“"Partnership
Vehicle Receivable Percentage"
means,
if the related Manufacturer, Approved Dealer, auction house or other Person
who
is the debtor of the related Partnership Vehicle Receivable has a long-term
unsecured debt rating by the Rating Agency at such time of (i) BBB or higher,
90.25%, (ii) BBB (low), 88.9375%, (iii) BB (high), 15.0%, (iv) BB, 13.6875%,
(v)
BB (low) or lower, 12.375%, and if a Manufacturer Event of Bankruptcy has
occurred in respect of such Manufacturer, Approved Dealer, auction house or
other Person and is continuing, 0%;”; and
“"Vehicle
Licence Fees"
means
all monetary receipts (other than sales, value added and other similar Taxes
collected on behalf of a governmental authority) from customers resulting from
the pass through to customers of vehicle licensing
costs
imposed on the Partnership, including vehicle licensing fees and titling and
registration fees;”; and
(h) deleting
the defined terms "General Partner's Capital Commitment", "Partnership
Percentage Differential", "Partnership Program Vehicle Base Percentage" and
"Partnership Program Vehicle Percentage", each in their entirety.
| 2.2 |
Section
2.8 of the Limited Partnership Agreement is hereby amended by adding
the
following as a new subsection (h):
|
|
"(h)
|
Neither
General Partner will repay any indebtedness under any Intercompany
Loan if
to do so would cause an occurrence of a Trigger Event pursuant to
Section
8.1(n).".
|
| 2.3 |
Section
3.3(b) of the Limited Partnership Agreement is hereby amended by
deleting
the dollar amount "$350,000,000" where such dollar amount is found
in
Section 3.3(b) and substituting therefor the dollar amount
"$400,000,000".
|
| 2.4 |
Section
3.3(c) of the Limited Partnership Agreement is hereby amended by
deleting
the first sentence of section 3.3(c) in its entirety and substituting
therefor the following:
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"With
respect to any Capital Call made pursuant to section 3.3(a), either General
Partner shall make, simultaneously with the payment from the Limited Partners,
a
capital contribution by way of immediately available funds deposited to the
Vehicle Account, in such amount that, after giving effect to all such capital
contributions and the use of proceeds thereof, the aggregate of the Limited
Partners' Capital Accounts for the Limited Partners (calculated on the
assumption that all Net Income of the Partnership up to the particular time
has
been allocated to the Partners at such time), excluding any capital contributed
by the Limited Partners pursuant to Section 4.8, shall not exceed the Maximum
Limited Partners' Funded Amount.".
| 2.5 |
Section
3.3(e) of the Limited Partnership Agreement is hereby amended by
deleting
such section in its entirety and substituting therefor the
following:
|
"(e) Each
General Partner covenants and agrees to contribute at all times up to and
including the day of occurrence of a Trigger Event, but not after such day,
sufficient capital to the Partnership from time to time by way of additional
capital contribution so that the aggregate of the Limited Partners' Capital
Accounts for the Limited Partners (calculated on the assumption that all Net
Income of the Partnership up to the particular time has been allocated to the
Partners at such time), excluding any capital contributed by the Limited
Partners pursuant to Section 4.8, shall not exceed the sum of the Aggregate
Partnership Program Vehicle Amount, the Aggregate Partnership Non-program
Vehicle Amount, the Aggregate Receivables Amount, any Non-restricted Cash,
and
the balance in the Principal Funding Account, such sum being referred
to in this Agreement as the "Maximum
Limited Partners' Funded Amount".".
| 2.6 |
Section
3.3(f) of the Limited Partnership Agreement is hereby amended by
deleting
the words "General Partners' Capital Accounts shall continue to be
equal
to or greater than the General Partners' Capital Commitment" where
such
words appear in the last two lines of section 3.3(f) and substituting
therefor the words "Limited Partners' Capital Accounts shall not
exceed
the Maximum Limited Partners' Funded
Amount".
|
| 2.7 |
Section
4.7(b)(vii)(E) of the Limited Partnership Agreement is hereby amended
by
deleting the words "in the General Partners' Capital Accounts being
reduced to an amount below the General Partners' Capital Commitment"
where
such words appear in the last three lines of Section 4.7(b)(vii)(E)
and
substituting therefor the words "of the Limited Partners' Capital
Accounts
exceeding the Maximum Limited Partners’ Funded
Amount.".
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| 2.8 |
Section
5.4(a) of the Limited Partnership Agreement is hereby amended by
adding
the words ", provided such Eligible Manufacturer is not a Non-performing
Manufacturer," immediately following the words "Repurchase Agreement"
where such words are found in the fourth line of Section
5.4(a).
|
| 2.9 |
Section
5.4(c) of the Limited Partnership Agreement is hereby amended by
deleting
such section in its entirety and substituting therefor the
following:
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|
"(c)
|
When
and to the extent the General Partners make a Capital Call for the
purpose
of funding the purchase of Program Negotiation Vehicles, each of
them
shall ensure that after giving effect to such Capital Call, the aggregate
of the Limited Partners' Capital Accounts for the Limited Partners
(calculated on the assumption that all Net Income of the Partnership
up to
the particular time has been allocated to the Partners at such time)
excluding any capital contributed by the Limited Partners pursuant
to
Section 4.8 shall not exceed the Maximum Limited Partners' Funded
Amount.".
|
| 2.10 |
Section
5.4(d) of the Limited Partnership Agreement is hereby amended by
deleting
the words "in the General Partners' Capital Accounts shall continue
to be
equal to or exceed the General Partners' Capital Commitment" where
such
words appear in the second sentence of section 5.4(d) and substituting
therefor the words "of
the Limited Partners' Capital Accounts shall not exceed the Maximum
Limited Partners' Funded Amount.".
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| 2.11 |
Sections
6.2(b) and 6.5 of the Limited Partnership Agreement are hereby amended
by
deleting the references to "105" where such references appear in
such
sections and substituting therefor the reference
"120".
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| 2.12 |
Section
6.5 of the Limited Partnership Agreement is hereby amended by deleting
the
words "CCRG Canada ULC" in every place where such words are found
in
Section 6.5 and substituting therefor the word
"CCRG".
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| 2.13 |
Section
8.1(b) of the Limited Partnership Agreement is hereby amended by
deleting
such section in its entirety and substituting therefor the
following:
|
|
"(b)
|
if
the aggregate balance of the Limited Partners' Capital Accounts at
the end
of a Settlement Period exceeds the Maximum Limited Partners' Funded
Amount
and remains so for three Business Days after the next occurring Settlement
Date;".
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| 2.14 |
Section
8.1(c) of the Limited Partnership Agreement is hereby amended by
deleting
such section in its entirety and substituting therefor the
following:
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|
"(c)
|
the
breach of the covenant contained in subsection 5.2(i), which breach
continues for five Business Days after a Settlement Date; provided,
however, that if such breach is caused by a Manufacturer becoming
a
Non-Performing Manufacturer, then such breach will not constitute
a
Trigger Event if within 30 days of its occurrence, (i) the General
Partners have caused the portfolio of Partnership Vehicles then owned
by
the Partnership to comply with Section 5.2(i), or (ii) the General
Partners at their own expense have obtained for the benefit of the
Partnership credit enhancement satisfactory in form, source and amount
to
the Rating Agency, the STARS Securitization Agent and the Bay Street
Securitization Agent in respect of those Partnership Vehicles that
are
subject to Repurchase Agreements with such Manufacturer, and provided
further that if the Securitization Agent for one of the Limited Partners
is not satisfied as to such form, source and amount of credit enhancement,
such Limited Partner shall provide notice of such determination to
the
General Partners and the other Limited Partner (provided that both
Limited
Partners are offered identical inducements or consideration in connection
with the relevant determinations), and such breach shall only constitute
a
Trigger Event if the Limited Partnership Interest of the Limited
Partner
that is related to the Securitization Agent providing such notice
has not
been purchased by the applicable Option Closing Date in accordance
with
Section 8.4;".
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| 2.15 |
Section
8.1(n) of the Limited Partnership Agreement is hereby amended by
deleting
such section in its entirety and substituting therefor the
following:
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|
"(n)
|
if
at any time (i) the Avis Shareholders Equity is less than $40,000,000,
(ii) the Budget Shareholders Equity is less than $20,000,000, or
(iii) the
CCRG Shareholders Equity is less than
$40,000,000;".
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| 2.16 |
Section
8.5(b)(iv) of the Limited Partnership Agreement is hereby amended
by
deleting such section in its entirety and substituting therefor the
following:
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|
"(iv)
|
fourth,
to pay to each General Partner as a return of capital an amount equal
to
any Payout Excess or PNV Excess for such General Partner which has
not
been previously repaid, if and to the extent that after payments
pursuant
to this paragraph 8.5(b)(iv) the aggregate balance of the Limited
Partners' Capital Accounts would not exceed the Maximum Limited Partners'
Funded Amount;".
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| 2.17 |
The
form of Settlement Report attached to the Limited Partnership Agreement
as
"Schedule D" is hereby deleted and the form of Settlement Report
attached
to this Agreement as Schedule A is added to the Limited Partnership
Agreement as Schedule D.
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| 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
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(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.
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AVISCAR
INC.
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by:
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/s/
Xxxxx Xxxxxxxx
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Name:
Assistant Treasurer
Title:
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by:
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|||
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Name:
Title:
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BUDGETCAR
INC.
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by:
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/s/
Xxxxx Xxxxxxx
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|||
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Name:
President
Title:
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by:
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|||
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Name:
Title:
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BNY
TRUST COMPANY OF CANADA,
as trustee of CANADIAN
MASTER TRUST
(with liability limited to the assets of the Trust) by its Securitization
Agent, BMO
XXXXXXX XXXXX INC.
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by:
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/s/ Xxxxx Xxxxxx | |||
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Name:
Title:
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by:
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/s/
Xxxxx X. Xxxxxxx
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|||
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Name:
Title:
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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.
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by:
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/s./ Xxxx Xxx | |||
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Name:
Title:
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by:
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Name:
Title:
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The
undersigned hereby acknowledges notice of and consents to the foregoing
amendments to the Limited Partnership Agreement.
DATED
this 7th day of July, 2006.
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CENDANT
CORPORATION
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by:
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/s/
Xxxxxxxxx X. Xxxxx
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|||
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Name:
Xxxxxxxxx X. Xxxxx
Title:
Assistant Treasurer and Executive Vice President
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We
hereby
consent to the foregoing amendments to the Limited Partnership
Agreement.
DATED
this 7th day of July, 2006.
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DOMINION
BOND RATING SERVICE LIMITED
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by:
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/s/
X X Marriott
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Name:
Title:
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