Exhibit 10.1
EXECUTION COPY
AMENDING AGREEMENT NO.
10
MEMORANDUM OF
AGREEMENT made as of the 16
th
day of March,
2009,
B E T W E E N:
|
|
|
|
|
AVISCAR INC. ,
a corporation incorporated under the laws of
Canada,
(hereinafter referred to as “ Avis
General Partner ”),
- and -
BUDGETCAR INC.,
a corporation existing under the laws of
Canada,
(hereinafter referred to as “ 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 referred to as 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, July 7,
2006, December 11, 2006, November 21,
2007, February 12, 2008, March 5,
2008, April 30, 2008, June 16, 2008 and
December 22, 2008 (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:
|
|
(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 adding the following definition in
the applicable alphabetical order:
|
““ Moody’s
Required Letter of Credit Amount ” means, at any time, an
amount equal to 4.5% of the aggregate of the Limited
Partner’s Funded Amounts for all Limited Partners at such
time;”.
|
2.2
|
Section 1.1 of the Limited Partnership
Agreement is hereby amended by deleting the definitions of “
Moody’s Aggregate Partnership Non-program Vehicle
Amount ”, and “ Moody’s Aggregate
Partnership Program Vehicle Amount ” and replacing them
with the following definitions, respectively:
|
““Moody’s
Aggregate Partnership Non-program Vehicle Amount” means, on
any date, (x) subject to (y) below, 65.79% of the sum of
the Current Book Values of the Partnership Non-program Vehicles
manufactured by each Manufacturer on such date (other than a
Partnership Non-program Vehicle in respect of which a Partnership
Vehicle Receivable is outstanding) after deducting from the sum of
such Current Book Values the aggregate amounts owing to such
Manufacturers by the Partnership in respect of such Partnership
Non-program Vehicles on such date; and (y) in respect of any
Partnership Non-program Vehicles which have become Partnership
Non-program Vehicles (after previously being Partnership Program
Vehicles) as a result of the related Manufacturer becoming a
Non-Performing Manufacturer, 57.8% of the sum of the Current Book
Values of such Partnership Non-program Vehicles manufactured by
each Manufacturer on such date (other than a Partnership
Non-program Vehicle in respect of which a Partnership Vehicle
Receivable is outstanding) after deducting from the sum of such
Current Book Values the aggregate amounts owing to such
Manufacturers by the Partnership in respect of such Partnership
Non-program Vehicles on such date;”; and
““ Moody’s
Aggregate Partnership Program Vehicle Amount ” means, on
any date, 57.8% of the sum of the Current Book Values of the
Partnership Program Vehicles and the Program Negotiation Vehicles
manufactured by each Eligible Manufacturer (other than, in either
case, any Program Negotiation Vehicles or
- 2 -
Partnership Program Vehicles in
respect of which a Partnership Vehicle Receivable is outstanding)
after de
