AMENDING AGREEMENT NO. 1
Exhibit
10.1
THIS
AGREEMENT made as of the 11th day
of
October,
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 (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 words "(a) whose unsecured long-term debt is rated BBB or its equivalent
or
higher by two or more of the Rating Agency, S&P and Xxxxx'x" where such
words appear in the defined term "Eligible Manufacturer" and substituting
therefor the words "so long as Chrysler, Ford, GM or such additional
Manufacturer (a) has an unsecured long-term debt rating of BB or higher by
the
Rating Agency";
(b) adding
each of the following defined terms in the appropriate alphabetical
order:
| (i) |
“"Eligible
Manufacturer Percentage"
means, in respect of an Eligible Manufacturer at any time, if such
Eligible Manufacturer's unsecured long-term debt rating by the Rating
Agency at such time is (i) BBB or higher, a percentage equal to the
Partnership Program Vehicle Base Percentage, (ii) BBB (low), a percentage
equal to the sum of (A) the Partnership Program Vehicle Base Percentage
plus (B) one-quarter of the Partnership Percentage Differential at
such
time, (iii) BB (high), a percentage equal to the sum of (C) the
Partnership Program Vehicle Base Percentage, and (D) one-half of
the
Partnership Percentage Differential at such time, and (iii) BB, a
percentage equal to the sum of (E) the Partnership Program Vehicle
Base
Percentage, and (F) three-quarters of the Partnership Percentage
Differential at such time;”;
|
| (ii) |
“"Partnership
Non-program Vehicle Percentage"
means 17.5%;”;
|
| (iii) |
“"Partnership
Percentage Differential"
means, on any date, the positive difference between the Partnership
Program Vehicle Base Percentage on such date and the Partnership
Non-program Vehicle Percentage on such
date;”;
|
| (iv) |
“"Partnership
Program Vehicle Base Percentage"
means 9.3%;”;
|
| (v) |
“"Partnership
Program Vehicle Percentage"
means, on any date, a percentage equal to the weighted average of
the
individual Eligible Manufacturer Percentages on such date, calculated
based on the relevant percentage that the sum of the Current Book
Values
of the Partnership Program Vehicles and the Program Negotiation Vehicles
manufactured by each such Eligible Manufacturer represents of the
sum of
the Current Book Values of all Partnership Program Vehicles and Program
Negotiation Vehicles on such
date;”.
|
| 2.2 |
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:
|
"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 General
Partners' Capital Accounts for the General 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) less any capital contributed by
the
General Partners pursuant to Section 4.8 and Excluded Capital shall be at least
equal to the General Partners' Capital Commitment.".
| 2.3 |
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 General Partners' Capital
Accounts for the General 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) less any capital contributed by the General Partners
pursuant to Section 4.8 and Excluded Capital shall be equal to at least the
product of (i) the sum of (A) the product of the Partnership Program Vehicle
Percentage and the percentage of Partnership Vehicles that are Partnership
Program Vehicles (other than Program Negotiation Vehicles), (B) the product
of
the Partnership Program Vehicle
Percentage
and the percentage of Partnership Vehicles that are Program Negotiation
Vehicles, and (C) the product of the Partnership Non-program Vehicle Percentage
and the percentage of Partnership Vehicles that are Partnership Non-program
Vehicles times (ii) the total capital of the Partnership other than capital
contributed by the Partners pursuant to Section 4.8 and Excluded Capital, such
product being referred to in this Agreement as the "General
Partners' Capital Commitment".”.
| 2.4 |
Section
3.4 of the Limited Partnership Agreement is hereby amended
by:
|
| (a) |
deleting
the words "after giving effect to such Hedging Transactions," where
such
words appear in the first sentence of Section 3.4 and substituting
therefor the words ", if it were assumed that such Hedging Transactions
were entered into by the Limited Partners,";
and
|
| (b) |
inserting
the words "(on the assumption that such Hedging Transactions were
entered
into by the Limited Partners)" immediately after the words "Hedging
Transactions does not" where such words appear in the second sentence
of
Section 3.4.
|
| 2.5 |
Section
5.4(c) of the Limited Partnership Agreement is hereby amended by
deleting
such section in its entirety and substituting therefor the
following:
|
|
"(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 General Partners' Capital Accounts for the General 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)
less
any capital contributed by the General Partners pursuant to Section
4.8
and Excluded Capital shall be at least equal to the General Partners'
Capital Commitment.".
|
| 2.6 |
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.
|
| 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/
Xxxxxx X. Xxxxxxx
|
|||
|
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
|
|
by:
|
/s/
Xxxx X. Xxxxxxxx
|
|||
|
Name:
Xxxx X. Xxxxxxxx
Title:
Assistant Secretary
|
|
BUDGETCAR
INC.
|
||||
|
by:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Vice President
|
|
by:
|
/s/
Xxxxxx Xxxxx Xxxxxxx
|
|||
|
Name:
Xxxxxx Xxxxx Xxxxxxx
Title:
Senior Vice President and Treasurer
|
|
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.
|
||||
|
by:
|
/s/Xxxxx Xxxxxx | |||
|
Name:
Title:
|
|
by:
|
/s/
X X Marriott
|
|||
|
Name:
Xxxxx Marriott
Title:
Vice President, Securitization and Structured Finance
|
|
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:
|
|
by:
|
||||
|
Name:
Title:
|
The
undersigned hereby acknowledges notice of and consents to the foregoing
amendments to the Limited Partnership Agreement.
|
CENDANT
CORPORATION
|
||||
|
by:
|
/s/
Xxxxx Xxxxxx
|
|||
|
Name:
Xxxxx Xxxxxx
Title:
Group Vice President and Assistant Treasurer
|
We
hereby
consent to the foregoing amendments to the Limited Partnership
Agreement.
DATED
this 11th day
of
October, 2005.
|
DOMINION
BOND RATING SERVICE LIMITED
|
||||
|
by:
|
/s/
Xxxx Xxxxxxx
|
|||
|
Name:
Xxxx Xxxxxxx
Title:
Assistant Vice President
|
