DOLLARAMA L.P. AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT

Exhibit 3.4(a)

DOLLARAMA GP INC.

as “ General Partner ”

and

DOLLARAMA GROUP L.P.

as “ Founding Limited Partner ”

and

DOLLARAMA CORPORATION

as “ Additional Limited Partner ”

 

DOLLARAMA L.P.

AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT

 

As of November 29 ^th , 2004

TABLE OF CONTENTS

 

 

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AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT entered into as of November 29 ^th , 2004.

 

ARTICLE 1

INTERPRETATION

 

Section

1.1     Definitions .

Where used herein or in any amendments hereto or in any communications required or permitted to be given hereunder, the following capitalized terms shall have the following meanings, unless the context otherwise requires:

“ Affiliate ”, describing the relationship between two Persons, has the meaning ascribed thereto in the Canada Business Corporations Act .

“ Civil Code ” means the Civil Code of Québec , as now enacted and as from time to time amended, re-enacted or replaced.

“ Declaration ” means the declaration of limited partnership required by Article 2190 of the Civil Code, as amended from time to time by amending declaration, filed or to be filed under the Act respecting the legal publicity of sole proprietorships, partnerships and legal persons (Québec).

“ Distribution ”, “ Distributed ” and like words refer to amounts paid or to be paid or other property distributed or to be distributed by the Partnership to a Partner in respect of its interest in the Partnership, but do not include amounts paid or to be

 

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paid to a Partner in respect of property acquired by the Partnership from, services provided to the Partnership by, or money lent to the Partnership by such Partner.

“ Fiscal Period ” means a fiscal period of the Partnership.

“ General Partner ” means Dollarama GP Inc. or any Person admitted to the Partnership as a successor general partner, subject to the provisions of this Agreement.

“ Income for Tax Purposes ” and “ Loss for Tax Purposes ” mean, in respect of any Fiscal Period, income or loss for that Fiscal Period, including any taxable capital gain or allowable capital loss, determined in accordance with the provisions of the Tax Acts.

“ ITA ” means the Income Tax Act (Canada), S.C.R.S.C. 1985, c.C-1 and the regulations enacted thereunder as enacted on the Date of Formation and from time to time amended, re-enacted or replaced.

“ Limited Partner ” means each Person who from time to time holds Units and is admitted as a special partner, subject to the provisions of this Agreement.

“ Net Income ” means, for any Fiscal Period, the net accounting income of the Partnership for the Fiscal Period, as determined under generally accepted accounting principles in Canada.

“ Net Loss ” means, for any Fiscal Period, the net accounting loss of the Partnership for the Fiscal Period, as determined under generally accepted accounting principles in Canada.

“ Partners ” means the General Partner and each Limited Partner; and “ Partner ” means any one of the Partners.

“ Partnership ” means the limited partnership formed pursuant to the Civil Code as of the Date of Formation under the name Dollarama L.P., with its French version being Dollarama S.E.C.

“ Person ” means any individual, partnership, cooperation, company, association, trust joint venture, limited liability company, unincorporated organization entity or division or any government, governmental department or agency or political subdivision thereof.

“ Pro Rata Share ” means, when used in relation to a Partner at any time, the percentage represented by the number of Units held by such Partner divided by the total number of Units in the Partnership’s capital issued and outstanding at such time.

“ Register ” means the register of Units maintained by the General Partner pursuant to Section 9.7(a).

 

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“ Securityholders Agreement ” means the securityholders agreement of Dollarama Capital Corporation as amended from time to time.

“ Subscription ” means a subscription by a Partner for partnership interests expressed as one or more Unit(s) and in a form acceptable to the General Partner.

“ Subscription Price ” means in respect of a Unit the amount to be contributed to the capital of the Partnership as consideration for the issue of that Unit.

“ Tax Acts ” means collectively the ITA, the Taxation Act and other similar provincial legislation.

“ Taxation Act ” means the Taxation Act (Québec), R.S.Q., c. I-3, and the regulations enacted thereunder as enacted on the Date of Formation and from time to time amended, re-enacted or replaced.

“ Transfer ” means any direct or indirect transfer, sale, assignment or other disposition, or grant of a pledge, hypothecation, mortgage, security interest or other encumbrance.

“ Unit ” means an equal and undivided interest in the net assets of the Partnership acquired pursuant to a Subscription, a Transfer or otherwise, and outstanding as provided in this Agreement.

“ Unit Certificate ” means a certificate evidencing ownership by a Partner or by its principal of a Unit or Units in the form set out in Schedule A or such other form as is approved by the General Partner.

 

Section

1.2     Other Defined Terms .

In addition to the defined terms in Section 1.1, each of the following capitalized terms shall have the meaning ascribed thereto in the corresponding sections:

 

 

Section

1.3     Construction .

For purposes of this Agreement, except as otherwise expressly provided or as the context otherwise requires:

 

(a)

“ this Agreement ” or “ Agreement ” means this Amended and Restated Limited Partnership Agreement as originally executed and as supplemented, amended or

 

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restated from time to time by one or more agreement(s) entered into pursuant to the applicable provisions of this Agreement;

 

(b)

words importing gender shall include both the masculine and feminine gender and words in the singular include the plural and vice versa ;

 

(c)

the headings used herein are provided for convenience only and shall not be used to interpret, define, broaden or limit the scope, extent or intent of this Agreement or any of its provisions;

 

(d)

the words “include” or “including” mean “include (or including) without limitation”;

 

(e)

all of the dollar amounts mentioned in this Agreement shall be in Canadian funds, unless otherwise specifically denominated;

 

(f)

a reference to a statute or code shall include every regulation made pursuant thereto, all amendments to the statute or code or to any such regulation in force from time to time, and any statute, code or regulation which supplements or supersedes such statute, code or any such regulation; and

 

(g)

accounting terms not otherwise defined shall have the meanings ascribed to them in accordance with generally accepted accounting principles in Canada.

 

Section

1.4     Severability .

The provisions of this Agreement shall be deemed to be severable, and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.

 

Section

1.5     Governing Law .

This Agreement shall be construed and enforced in accordance with the laws of the Province of Québec and the federal laws of Canada applicable therein. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of the Province of Québec over any suit, action or proceeding arising out of or relating to this Agreement.

 

Section

1.6     Limited Partner not Liable as a General Partner .

Any provision of this Agreement which would have the effect of imposing on a Limited Partner, as such, any liabilities, obligations or powers of a General Partner shall be of no force and effect to the extent of such imposition.

 

Section

1.7     Restated Agreement .

Unless otherwise specifically provided herein, this Amended and Restated Limited Partnership Agreement amends, restates and replaces the Limited Partnership Agreement as of the Date of Formation.

 

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ARTICLE 2

FORMATION AND BUSINESS OF THE PARTNERSHIP

 

Section

2.1     Formation .

The General Partner and the Founding Limited Partner formed on November 11, 2004 (the “ Date of Formation ”) the Partnership, a limited partnership under and pursuant to the Civil Code, in order to, in a spirit of cooperation, carry on any lawful activity, including those indicated in Section 2.5. The Partnership shall be governed by the rules on limited partnerships in the Civil Code in force on the Date of Formation, except as supplemented or legally modified herein.

 

Section

2.2     Initial Contributions .

On the Date of Formation, each of the General Partner and the Founding Limited Partner contributed cash to the capital of the Partnership, in the proportions set out below, in exchange for one (1) Unit per $1 contributed:

 

On November 18, 2004, each of the General Partner, the Founding Limited Partner, the Additional Limited Partner, S. Rossy Inc. and 3339408 Canada Inc. (then known as Dollar A.M.A. Inc.) was issued the following units:

 

On November 18, 2004, S. Rossy Inc. and 3339408 Canada Inc. respectively transferred to Dollarama Capital Corporation 30,950,000 units and 49,921,613 units. Immediately thereafter, Dollarama Capital Corporation transferred such 80,871,613 units to Dollarama Holdings L.P. which in turn transferred them to the Founding Limited Partner. As of the end of the day of November 18, 2004, each of the General Partner, the Founding Limited Partner, the Additional Limited Partner, S. Rossy Inc. and 3339408 Canada Inc. was the legal, registered and beneficial owner of the following Units:

 

On November 29, 2004, S. Rossy Inc. and 3339408 Canada Inc. each transferred to Dollarama Capital Corporation 50,000 units. Immediately thereafter, Dollarama Capital

 

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Corporation transferred such 100,000 units to Dollarama Holdings L.P. which in turn transferred them to the Founding Limited Partner. As of the end of the day on November 29, 2004, each of the General Partner, the Founding Limited Partner and the Additional Limited Partner is the legal, registered and beneficial owner of the following Units:

 

 

Section

2.3     Firm Name of the Partnership .

The name of the Partnership is “Dollarama L.P.”, with its French version being “Dollarama S.E.C.” The French and English versions of the name of the Partnership may be used together or separately. The Partnership may also conduct business under one or more “doing business as” name(s) as the General Partner may decide from time to time and as may be properly registered in each applicable jurisdiction.

 

Section

2.4     Principal Place of Business .

The principal place of business and head office of the Partnership will be at 1155 René-Lévesque Blvd. W., 40th Floor, Montreal, Québec, H3B 2V3 or at such other location in the Province of Québec as is from time to time determined by the General Partner and set out in the Declaration. The General Partner may also elect to have the Partnership maintain places of business, offices or investments at and in any other locations inside or outside of Canada as it deems appropriate in its entire discretion.

 

Section

2.5     Nature of Business .

The Partnership may engage in any lawful activity, without restriction, within any jurisdiction in the world, without restriction. Without limitation to the foregoing, the Partnership may engage in the business of operating a retail business.

ARTICLE 3

RELATIONSHIP BETWEEN PARTNERS

 

Section

3.1     Status and Capacity of General Partner .

The General Partner represents and warrants to and covenants with each other Partner that the General Partner:

 

(a)

is and will continue to be a valid and subsisting corporation under the federal laws of Canada or such other jurisdiction under which the General Partner may be continued, or under which a successor to the General Partner may be incorporated or continued; and

 

(b)

has and will continue to have the capacity and the authority to enter into and be bound by this Agreement, act as the General Partner and perform its obligations

 

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under this Agreement without conflicting with its Articles of Incorporation or any agreement by which it is bound and without being in default under any such articles or any agreement by which it is bound.

 

Section

3.2     Status and Capacity of Partners .

Each Partner, other than the General Partner, represents and warrants to and covenants with each other Partner that such Partner has and will continue to have the capacity and authority to enter into and be bound by this Agreement and will provide such evidence thereof as the General Partner may reasonably require.

 

Section

3.3     Limitations on Authority of Limited Partners .

Subject to Article 13, no Partner other than the General Partner shall be entitled to (a) take part in the administration, management, control or operation of the business of the Partnership, (b) transact any business on behalf of the Partnership or make any commitment on behalf of or otherwise obligate or bind the Partnership, (c) in its capacity as a Partner, make any commitment on behalf of or otherwise obligate or bind any other Partner, or (d) in its capacity as Partner, be a party to any litigation involving a claim by or against the Partnership other than in respect of its rights and obligations as Limited Partner.

 

Section

3.4     Restrictions on Partners .

Except as expressly provided for in this Agreement, no Partner may (a) in its capacity as a Partner, file or record, or permit to be or remain filed or recorded against any property of the Partnership, any hypothec, mortgage, charge, privilege, lien, security interest or other encumbrance in respect of its interest in the Partnership; or (b) seek to compel a partition or sale, judicial or otherwise, of any property of the Partnership or otherwise require any property of the Partnership to be Distributed to any Partner in kind.

 

Section

3.5     General Partner Having Power of Attorney .

Each Partner nominates, constitutes and appoints the General Partner, as its true and lawful attorney on its behalf with full power and authority (including the power of substitution), in its name, place and stead to make, execute, sign, swear to, acknowledge, deliver, make and file or record when, as and where required:

 

(a)

this Agreement, the Register, the Declaration, any supplement, amendment to and restatement of this Agreement or the Declaration or any other instrument, in each case, to the extent required to qualify, form, continue and keep the Partnership in good standing in, or otherwise required to comply with the laws of, any jurisdiction in which the Partnership may carry on business or own property, including any amendment to this Agreement, the Declaration or the Register necessary to reflect any change in the Partners or in ownership of a Unit, and the General Partner is expressly granted the right to insert the name of any and all of the Partners in such documents;

 

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(b)

any instrument or amendment to the Declaration necessary to reflect any amendment to this Agreement made in accordance with this Agreement;

 

(c)

subject to Article 13, any instrument of transfer or other document required in connection with the dissolution, liquidation or termination of the Partnership;

 

(d)

any instrument, deed, agreement, certificate, declaration or document executed by the General Partner in carrying on the business of the Partnership as authorized in this Agreement;

 

(e)

all elections, determinations or designations under the Tax Acts or any other taxation or other legislation or similar laws of Canada or of any other jurisdiction in respect of the affairs of the Partnership or of a Partner’s interest in the Partnership;

 

(f)

any instrument required to be filed with any organization or governmental body and any documents in connection with the business of the Partnership or this Agreement;

 

(g)

any instrument relating to the admission of additional Partners or substitution thereof, subject to the provisions of this Agreement; and

 

(h)

any instrument in its name and on its behalf which may be deemed necessary to give effect to a Transfer of Units made in accordance with this Agreement.

 

Section

3.6     Irrevocability of Power of Attorney .

The power of attorney granted in Section 3.5 shall survive the death, disability or bankruptcy of any Partner other than the General Partner or the assignment by any such Partner of all or any part of its interest in the Partnership, extend to and bind the heirs, executors, administrators and other legal representatives and successors, trustees and assigns of such Partner, and may be exercised by the General Partner on behalf of another Partner in executing any instrument by listing therein or in a schedule thereto the name of such Partner together with the names of any other Partners and executing such instrument with a single signature as attorney and mandatory for all of them.

 

Section

3.7     Affirmation of Exercise of Power of Attorney .

Each Partner shall be bound by any action taken by the General Partner pursuant to such power of attorney and waives any and all defenses which may be available to contest, negate or disaffirm any action of the General Partner taken in good faith under such power of attorney.

 

Section

3.8     Other Activities of Limited Partners .

A Limited Partner and any of its Affiliates may engage in or hold a direct or indirect interest in any other b