Exhibit
10.2
AMENDING AGREEMENT NO.
2
THIS AGREEMENT made as of the 7 th
day of July, 2006,
a corporation
incorporated under the laws of Canada,
(hereinafter
called the " Avis General Partner "),
a corporation
existing under the laws of Canada,
(hereinafter
called the " Budget General Partner "),
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 "),
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 20 th 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:
(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.
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2.
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Amendments to the Limited Partnership
Agreement
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2.1
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Section 1.1 of
the Limited Partnership Agreement is hereby amended by:
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(a) deleting each of the following defined terms in
their entirety and substituting therefor the following:
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(i)
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“"
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;”;
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(ii)
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“"
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%;”;
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(iii)
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“"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; ”;
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(iv)
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“"
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
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(v)
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“"
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;”;
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(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 app
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