UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
_________________
FORM
8-K
_________________
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date
of
Report (Date of Earliest Event Reported): December
20, 2006 (December 15, 2006)
_________________
Avis
Budget Group, Inc.
(Exact
Name of Registrant as Specified in its Charter)
_________________
|
Delaware
|
1-10308
|
06-0918165
|
|
(State
or Other Jurisdiction
of
Incorporation)
|
(Commission
File
Number)
|
(IRS
Employer
Identification
No.)
|
|
6
Sylvan Way
Parsippany,
NJ
|
07054
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
(973)
496-4700
(Registrant's
telephone number, including area code)
N/A
(Former
name or former address if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
[
] Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[
]
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[
] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[
] Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01. Entry into a Material Definitive Agreement.
On
December 15, 2006, two of our Canadian subsidiaries amended and extended our
Canadian rental car fleet securitization program by entering into the third
amendment to the Fourth Amended and Restated Limited Partnership Agreement
(the
"Partnership Agreement") with BNY Trust Company of Canada, in its capacity
as
trustee of STARS Trust and Montreal Trust Company of Canada, in its capacity
as
trustee of Bay Street Funding Trust, as limited partners. This amendment
extended the termination date of the Partnership Agreement to at least December
31, 2010. Such subsidiaries had previously entered into two earlier
amendments to the Partnership Agreement with such parties. A copy of the first,
second and third amendments to the Partnership Agreement are attached hereto
as
Exhibits 10.1, 10.2 and 10.3, respectively, and are incorporated by
reference herein.
In
connection with the third amendment to the Partnership Agreement, Avis Budget
Car Rental, LLC, the parent company of our vehicle rental operations, agreed
to
guarantee certain performance obligations of our subsidiaries that are party
to
the Partnership Agreement. Such obligations were formerly guaranteed by Avis
Budget Group, Inc. A copy of such guaranty is attached hereto as Exhibit
10.4 and is incorporated by reference herein.
On
December 20, 2006, an issuance of three-year 4.281% bonds under our Canadian
securitization program in the aggregate principal amount of Cdn.$ 275 million
was completed.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
The
following exhibits are filed as part of this report:
|
Exhibit
No.
|
Description
|
|
|
10.1
|
Amending
Agreement No. 1 to the Fourth Amended and Restated Limited Partnership
Agreement among Aviscar, Inc. and Budgetcar, Inc., as general partners
and
BNY Trust Company of Canada, in its capacity as trustee of STARS
Trust and
Montreal Trust Company of Canada, in its capacity as trustee of
Bay Street
Funding Trust, as limited partners.
|
|
|
10.2
|
Amending
Agreement No. 2 to the Fourth Amended and Restated Limited Partnership
Agreement among Aviscar, Inc. and Budgetcar, Inc., as general partners
and
BNY Trust Company of Canada, in its capacity as trustee of STARS
Trust and
Montreal Trust Company of Canada, in its capacity as trustee of
Bay Street
Funding Trust, as limited partners.
|
|
|
10.3
|
Amending
Agreement No. 3 to the Fourth Amended and Restated Limited
Partnership Agreement among Aviscar, Inc. and Budgetcar, Inc.,
as general
partners and BNY Trust Company of Canada, in its capacity as trustee
of
STARS Trust and Montreal Trust Company of Canada, in its capacity
as
trustee of Bay Street Funding Trust, as limited partners.
|
|
|
10.4
|
Parent
Guarantee of Avis Budget Car Rental, LLC to BNY Trust Company of
Canada,
in its capacity as trustee of STARS Trust and Montreal Trust Company
of
Canada, in its capacity as trustee of Bay Street Funding Trust,
as limited
partners.
|
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
AVIS
BUDGET GROUP, INC.
|
|||
|
By:
|
/s/
Jean M. Sera
|
||
|
Jean
M. Sera
Senior
Vice President and Secretary
|
Date:
December 20, 2006
EXHIBIT
INDEX
|
Exhibit
No.
|
Description
|
|
|
10.1
|
Amending
Agreement No. 1 to the Fourth Amended and Restated Limited Partnership
Agreement among Aviscar, Inc. and Budgetcar, Inc., as general
partners and
BNY Trust Company of Canada, in its capacity as trustee of STARS
Trust and
Montreal Trust Company of Canada, in its capacity as trustee
of Bay Street
Funding Trust, as limited partners.
|
|
|
10.2
|
Amending
Agreement No. 2 to the Fourth Amended and Restated Limited Partnership
Agreement among Aviscar, Inc. and Budgetcar, Inc., as general
partners and
BNY Trust Company of Canada, in its capacity as trustee of STARS
Trust and
Montreal Trust Company of Canada, in its capacity as trustee
of Bay Street
Funding Trust, as limited partners.
|
|
|
10.3
|
Amending
Agreement No. 3 to the Fourth Amended and Restated Limited
Partnership Agreement among Aviscar, Inc. and Budgetcar, Inc.,
as general
partners and BNY Trust Company of Canada, in its capacity as
trustee of
STARS Trust and Montreal Trust Company of Canada, in its capacity
as
trustee of Bay Street Funding Trust, as limited partners.
|
|
|
10.4
|
Parent
Guaranty of Avis Budget Car Rental, LLC to BNY Trust Company
of Canada, in
its capacity as trustee of STARS Trust and Montreal Trust Company
of
Canada, in its capacity as trustee of Bay Street Funding Trust,
as limited
partners.
|
Exhibit
10.1
THIS
AGREEMENT made as of the 11th day
of
October,
2005,
B
E T W E
E N:
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 Moody's" 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/
Gerald J. Monusky
|
|||
|
Name:
Gerald J. Monusky
Title:
Vice President
|
|
by:
|
/s/
Mark E. Costello
|
|||
|
Name:
Mark E. Costello
Title:
Assistant Secretary
|
|
BUDGETCAR
INC.
|
||||
|
by:
|
/s/
William Boxberger
|
|||
|
Name:
William Boxberger
Title:
Vice President
|
|
by:
|
/s/
Edward Peter Bertero
|
|||
|
Name:
Edward Peter Bertero
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
NESBITT BURNS INC.
|
||||
|
by:
|
/s/Chris Romano | |||
|
Name:
Title:
|
|
by:
|
/s/
J D Marriott
|
|||
|
Name:
Jerry 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/ Doug Noe | |||
|
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/
Kevin Monaco
|
|||
|
Name:
Kevin Monaco
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/
Dino Galanis
|
|||
|
Name:
Dino Galanis
Title:
Assistant Vice President
|
Exhibit
10.2
AMENDING
AGREEMENT NO. 2
THIS
AGREEMENT made as of the 7th
day of
July, 2006,
B
E T W E
E N:
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:
|
"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.".
|
| 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:
|
|
"(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.".
|
| 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".
|
| 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".
|
| 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;".
|
| 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:
|
|
"(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;".
|
| 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:
|
|
"(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;".
|
| 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:
|
|
"(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;".
|
| 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.
|
| 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/
David Calabria
|
|||
|
Name:
Assistant Treasurer
Title:
|
|
by:
|
|
|||
|
Name:
Title:
|
|
BUDGETCAR
INC.
|
||||
|
by:
|
/s/
David Blaskey
|
|||
|
Name:
President
Title:
|
|
by:
|
|
|||
|
Name:
Title:
|
|
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
NESBITT BURNS INC.
|
||||
|
by:
|
/s/ Chris Romano | |||
|
Name:
Title:
|
|
by:
|
/s/
Terry J. Ritchie
|
|||
|
Name:
Title:
|
|
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./ Doug Noe | |||
|
Name:
Title:
|
|
by:
|
||||
|
Name:
Title:
|
The
undersigned hereby acknowledges notice of and consents to the foregoing
amendments to the Limited Partnership Agreement.
DATED
this 7th day of July, 2006.
|
CENDANT
CORPORATION
|
||||
|
by:
|
/s/
Elizabeth R. Cohen
|
|||
|
Name:
Elizabeth R. Cohen
Title:
Assistant Treasurer and Executive Vice President
|
We
hereby
consent to the foregoing amendments to the Limited Partnership
Agreement.
DATED
this 7th day of July, 2006.
|
DOMINION
BOND RATING SERVICE LIMITED
|
||||
|
by:
|
/s/
J D Marriott
|
|||
|
Name:
Title:
|
Exhibit
10.3
THIS
AGREEMENT made as of the 11th day of December, 2006,
B
E T W E
E N:
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 amending agreements between the parties dated October 11, 2005
and
July 7, 2006, (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 definitions of "CCRG", "Normal Course Termination Date", "Parent"
and
"Parent Guarantee" and replacing them with the following,
respectively:
|
""CCRG"
means
Avis Budget Car Rental Canada ULC together with its successors and permitted
assigns;";
""Normal
Course Termination
Date"
means:
|
(a)
|
in
respect of the STARS Limited Partner, (i) if there are
outstanding Bonds on December 31, 2010, March 20, 2011; or
(ii) if there are no outstanding Bonds on December 31,
2010, December 31, 2010, subject, in each case, to the extension
of such date until March 31, 2012 if on or before September
30, 2010 the General Partners request an extension by notice in writing
to
the STARS Limited Partner and the STARS Limited Partner on or
before November 30, 2010 notifies the General Partners in writing
that it agrees to such extension;
and
|
|
(b)
|
in
respect of the Bay Street Limited Partner, (i) if there are
outstanding Bonds on December 31, 2010, March 20, 2011; or
(ii) if there are no outstanding Bonds on December 31, 2010, December
31, 2010, subject, in each case, to the extension of such date
until March 31, 2012 if on or before September 30, 2010 the
General Partners request an extension by notice in writing to the
Bay
Street Limited Partner and the Bay Street Limited Partner on or
before November 30, 2010 notifies the General Partners in writing
that it agrees to such extension;";
|
""Parent"
means
Avis Budget Car Rental, LLC together with its successors and permitted
assigns;"; and
""Parent
Guarantee"
means
the guarantee dated December 11,
2006
made by the Parent in favour of each of the Limited Partners pursuant to which
the Parent has guaranteed, among other things, certain of the General Partners'
obligations hereunder, as the same may be amended or restated from time to
time;";
| (b) |
adding
the words "other than a Used Vehicle," immediately following the
words
"Partnership Non-program Vehicle," where such words are found in
the third
line of the defined term "Depreciation" and adding the words "and,
for
Used Vehicles, 2.5% per month" immediately following the words "on
trucks
and vans" where such words are found in the sixth line of such defined
term;
|
| (c) |
adding
the words ", other than a Used Vehicle," immediately following the
word
"Vehicle" where such word is found in the first line of the defined
term
"Partnership Program Vehicle";
|
| (d) |
adding
the words ", including a Used Vehicle," immediately following the
word
"Vehicle" where such word is found in the first line of the defined
term
"Partnership Vehicle"; and
|
| (e) |
adding
each of the following defined terms in the appropriate alphabetical
order:
|
""Aggregate
Payables Amount"
means,
on any date, the aggregate amounts owing to Eligible Manufacturers or
Manufacturers by
the
Partnership in respect of Partnership Vehicles that are included in the
calculation of the Aggregate Partnership Non-program Vehicle Amount or the
Aggregate Partnership Program Vehicle Amount on such date;";
""Model
Year"
means
the calendar year assigned by a Manufacturer to a particular make and model
of
Vehicle as that Vehicle's "model year";";
""Partnership
Model Year"
means,
with respect to any calendar year, the period beginning on October 1 of the
prior calendar year and ending on September 30 of that calendar year, which,
by
way of example, means the 2007 "Partnership Model Year" is the period beginning
on October 1, 2006 and ending on September 30, 2007;";
""Standby
General Partner"
means
1708437 Ontario Inc.;"; and
""Used
Vehicle"
means a
Vehicle which was a used Vehicle on the date it was purchased by the Partnership
and which has been designated a Model Year by the Manufacturer which is no
more
than one Model Year prior to the Partnership Model Year in which such Vehicle
was purchased;".
| 2.2 |
Section
1.9 of the Limited Partnership Agreement is hereby amended by adding
the
following at the end of such section, "Schedule N - Form of Standby
General Partner Acknowledgement".
|
| 2.3 |
Section
3.3(e) of the Limited Partnership Agreement is hereby amended by
adding
the words "less the Aggregate Payables Amount," immediately following
the
words "balance in the Principal Funding Account," where such words
are
found in the eleventh and twelfth lines of Section
3.3(e).
|
| 2.4 |
Section
5.2(i) of the Limited Partnership Agreement is hereby amended by
deleting
the percentage "80%" from Section 5.2(i)(i) and substituting therefor
the
percentage "75%"
|
|
and
by deleting the words "and (vi)" where such words are found in
the tenth
line of Section 5.2(i) of the Limited Partnership Agreement and
substituting therefor the words "(vi) no more than 10% of the Partnership
Vehicles are Used Vehicles, (vii) no Partnership Vehicle that is
a Used
Vehicle has mileage of more than 60,000 kilometres, and (viii)".
|
| 2.5 |
Section
5.2(j) of the Limited Partnership Agreement is hereby amended by
deleting
such section in its entirety and substituting therefor the
following:
|
"(j) in
buying
Vehicles for the Partnership, other than pursuant to the Assignment and
Assumption Agreement, the General Partners shall (i) buy only Vehicles produced
by Manufacturers and only of the current model year or the immediately preceding
model year, (ii) buy Vehicles only from (A) Approved Dealers or Manufacturers
or
(B) Avis or Budget System Members or the General Partners pursuant to a Licensee
Vehicle Assignment Agreement and, in the case of Used Vehicles only, (C) any
nationally recognized automobile auction company ("Auction Company") in the
United States or Canada that is approved to sell Vehicles for Manufacturers,
and
(D) any finance company affiliated with a Manufacturer ("Approved Finance
Company"), (iii) in the case of Vehicles (other than Used Vehicles), buy from
Manufacturers and Approved Dealers only and only against a Manufacturer's
invoice, (iv) buy from Avis or Budget System Members or the General Partners
pursuant to a Licensee Vehicle Assignment Agreement only Vehicles that were
new
Vehicles when purchased by the relevant licensee or that were Used Vehicles
purchased by such licensee from an Auction Company or an Approved Finance
Company and that have had no other intermediate owners (except for the General
Partners or Affiliates of the relevant Avis or Budget System Member) and in
respect of which the Manufacturer's invoice of the relevant licensee is
delivered, (v) buy Vehicles from Avis or Budget System Members or pursuant
to a
Licensee Vehicle Assignment Agreement for a purchase price that is (A) in the
case of Partnership Program Vehicles, equal to the depreciated value ascribed
to
each Vehicle as at the date of such purchase pursuant to the applicable
Repurchase Agreement, with a reasonable allowance for age, mileage and damage
to
such Vehicle, and (B) in the case of Partnership Non-program Vehicles, the
fair
market value of each Vehicle (which shall approximate the original cash purchase
price paid by the relevant Avis or Budget System Member for such Vehicle less
depreciation at a rate in accordance with Canadian GAAP but in no event less
than 2% per month applied on a straight line basis, with a reasonable allowance
for age, mileage and damage to such Vehicle), and (vi) ensure that title to
all
Vehicles bought for the Partnership is registered in the name of either the
Partnership or a General Partner in accordance with Section 2.6.".
| 2.6 |
The
Limited Partnership Agreement is hereby amended by adding the following
as
a new Section 8.11:
|
"8.11 Standby
General Partner
(a) The
Standby General Partner is hereby appointed as an additional general partner
to
the Partnership effective upon its execution and delivery of an
acknowledgement
in the form of Schedule N hereto and upon making a capital contribution to
the
Partnership of $10.00. The Standby General Partner shall serve in addition
to
the General Partners. Notwithstanding any other provision of this Agreement,
the
Standby General Partner shall have no rights, duties or obligations hereunder
unless and until the Standby General Partner is appointed as an Additional
General Partner in accordance with, and subject to, Section 8.3(a). For greater
certainty, the Standby General Partner shall not be an Additional General
Partner for the purposes hereof but may be appointed as an Additional General
Partner by either Limited Partner in accordance with, and subject to, Section
8.3(a). Until such time as the Standby General Partner is appointed as the
Additional General Partner in accordance with the terms hereof, the fee of
the
Standby General Partner shall be paid by the General Partners at the rate agreed
to by the parties. Thereafter, such fee will be as set out in Section 8.3(a)."
| 2.7 |
Section
10.4 of the Limited Partnership Agreement is hereby amended by deleting
such section in its entirety and substituting therefor the
following:
|
"10.4 Notices
Any
notice, report, communication, payment or demand required or permitted to be
given or made hereunder shall be in writing and shall be sufficiently given
or
made for all purposes if delivered personally or transmitted by telecopy or
fax
to the party or to an officer of the party to whom the same is directed,
addressed as follows:
(a) if
to the
Avis General Partner, addressed to it at:
Aviscar
Inc.
1
Convair
Drive East
Etobicoke,
ON M9W 6Z9
Attention:
Controller
Fax
No.: (416)
213-8505
with
a
copy to:
Avis
Budget Car Rental, LLC
6
Sylvan
Way
Parsippany,
N.J.
USA
07054
Attention:
Treasurer
Fax
No.: (973)
496-3560
And
Attention: Legal
Department
Fax
No.: (973)
496-3444
and
a
copy to:
Avis
Budget Group, Inc.
6
Sylvan
Way
Parsippany,
N.J.
USA
07054
Attention:
Treasurer
Fax
No.: (973)
496-3560
(b) if
to the
Budget General Partner, addressed to it at:
Budgetcar
Inc.
1
Convair
Drive East
Etobicoke,
ON M9W 6Z9
Attention:
Controller
Fax
No.: (416)
213-8505
with
a
copy to:
Avis
Budget Car Rental, LLC
6
Sylvan
Way
Parsippany,
N.J.
USA
07054
Attention:
Treasurer
Fax
No.: (973)
496-3560
and
Attention: Legal
Department
Fax
No.: (973)
496-3444
and
a
copy to:
Avis
Budget Group, Inc.
6
Sylvan
Way
Parsippany,
N.J.
USA
07054
Attention:
Treasurer
Fax
No.: (973)
496-3560
(c) if
to the
STARS Limited Partner, addressed to it at:
STARS
Trust
c/o
BNY
Trust Company of Canada
Suite
1101, 4 King Street West
Toronto,
ON M5H 1B6
Attention: George
Bragg,
|
President
and Chief Executive Officer
|
Fax
No.: (416)
360-1711
and:
Attention:
Patricia
Benjamin,
Assistant
Treasurer and Trust Officer
Fax
No.: (416)
360-1711
with
a
copy to the STARS Securitization Agent, addressed to it at:
BMO
Nesbitt Burns Inc.
1
First
Canadian Place
3rd
Floor
Podium
Toronto,
ON M5X 1H3
Attention: Executive
Managing Director,
Securitization
and Structured Finance
Fax
No.: (416)
359-1910
(d) if
to the
Bay Street Limited Partner, addressed to it at:
Bay
Street Funding Trust
c/o
Montreal Trust Company of Canada
100
University Avenue
11th
Floor
Toronto,
Ont. M5J 2Y1
Attention: Account
Administrator
Fax
No.: (416)
981-9777
with
a
copy to the Bay Street Securitization Agent, addressed to it at:
Scotia
Capital Inc.
68th
Floor, Scotia Plaza
40
King
Street West
P.O.
Box
4085, Station "A"
Toronto,
Ontario
M5W
2X6
Attention: Director,
Securitization
Fax
No.: (416)
945-4534
(e)and
if to
the Rating Agency, addressed to it at:
Dominion
Bond Rating Service Limited
200
King
Street West
Suite
1304
Sun
Life
Centre, West Tower
P.O.
Box
34
Toronto,
ON M5H 3T4
Attention: Executive
Vice President - Structured Finance
Fax
No.: (416)
593-8432
Any
such
notice that is given by personal delivery shall be deemed to have been received
on the day of actual delivery thereof and any notice given by telecopy or fax
shall be deemed to have been received on the first Business Day after the
transmittal thereof. A Partner may change its address or fax number
by giving written notice of such change to the other Partners.".
| 2.8 |
The
Limited Partnership Agreement is hereby amended by adding Schedule
A
annexed hereto as Schedule N to the Limited Partnership
Agreement.
|
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/
Jean M. Sera
|
|||
|
Name:
Jean M. Sera
Title:
Senior Vice President and Secretary
|
|
by:
|
/s/
David Calabria
|
|||
|
Name:
David Calabria
Title:
Assistant Treasurer
|
|
BUDGETCAR
INC.
|
||||
|
by:
|
/s/
David B. Wyshner
|
|||
|
Name:
David B. Wyshner
Title:
President and Executive Vice President
|
|
by:
|
/s/
Paul Gallagher
|
|||
|
Name:
Paul Gallagher
Title:
Assistant Secretary
|
|
BNY
TRUST COMPANY OF CANADA,
as trustee of of STARS TRUST (with liability
limited to the assets of the Trust) by its Securitization Agent,
BMO NESBITT BURNS INC.
|
||||
|
by:
|
/s/ Terry J. Ritchie | |||
|
Name:
Title:
|
|
by:
|
/s/Chris
Romano
|
|||
|
Name:
Title:
|
|
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/ Doug Noe | |||
|
Name:
Title:
|
The
undersigned hereby acknowledges notice of and consents to the foregoing
amendments to the Limited Partnership Agreement.
DATED
this 11th day of December, 2006.
|
AVIS
BUDGET CAR RENTAL, LLC
|
||||
|
by:
|
/s/
Jean M. Sera
|
|||
|
Name:
Jean M. Sera
Title:
SVP and Secretary
|
We
hereby
consent to the foregoing amendments to the Limited Partnership
Agreement.
DATED
this 11th day of December, 2006.
|
DOMINION
BOND RATING SERVICE LIMITED
|
||||
|
by:
|
/s/
J D Marriott
|
|||
|
Name:
Title:
|
SCHEDULE
A
Schedule
N
To
Limited Partnership Agreement
TO: AVISCAR
INC.
BUDGETCAR INC.
AND
TO: STARS
TRUST
BAY
STREET FUNDING TRUST
RE: WTH
FUNDING LIMITED PARTNERSHIP (the "Partnership")
The
undersigned has read and understands the Fourth Amended and Restated Limited
Partnership Agreement made as of April 20, 2005 between Aviscar Inc., Budgetcar
Inc., STARS Trust and Bay Street Funding Trust (as amended, supplemented,
revised or restated from time to time, the "Partnership Agreement") relating
to
the Partnership. In consideration of the admission of the undersigned to the
Partnership as Standby General Partner and other good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, the undersigned
undertakes and agrees to be bound by and to observe the provisions of the
Partnership Agreement as Standby General Partner.
The
undersigned hereby represents and warrants that it is not a "non-resident"
within the meaning of the Income
Tax Act
(Canada).
Terms
capitalized (other than for grammatical reasons) but not defined herein have
the
meanings respectively assigned to them in the Agreement.
DATED
this n
day of
n,
2006.
|
by:
|
/s/
|
|||
|
Name:
Title:
|
Exhibit
10.4
TO: BNY
TRUST
COMPANY OF CANADA, IN ITS CAPACITY AS TRUSTEE OF STARS TRUST (the "STARS
Limited Partner")
AND
TO: MONTREAL
TRUST COMPANY OF CANADA, IN ITS CAPACITY AS TRUSTEE OF BAY STREET FUNDING TRUST
(the "Bay
Street Limited Partner",
and
collectively with the STARS Limited Partner, the "Limited
Partners")
WHEREAS
the Limited Partners, Aviscar Inc. ("Avis")
and
Budgetcar Inc. ("Budget")
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 and December 11, 2006 (collectively, and, as further
amended, supplemented, modified, restated or replaced from time to time, the
"LP
Agreement")
relating to WTH Funding Limited Partnership (the "Partnership");
AND
WHEREAS, pursuant to the LP Agreement, Avis and Budget (collectively, the
"General Partners") have been appointed, and have agreed to act, as general
partners of the Partnership under, and in accordance with, the LP
Agreement;
AND
WHEREAS 1708437 Ontario Inc. has been appointed, and has agreed to act, as
a
standby general partner of the Partnership under, and in accordance with, the
LP
Agreement;
AND
WHEREAS Avis Budget Car Rental, LLC (the "Guarantor")
has
agreed to guarantee certain obligations of the General Partners on the terms
and
conditions set out herein;
NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of the Limited Partners
entering into the LP Agreement and for other consideration (the receipt and
sufficiency of which are acknowledged), the Guarantor agrees with each Limited
Partner as follows:
1. Definitions.
(a) In
this
Guarantee:
"CCRG
Undertaking"
means
the undertaking of Avis Budget Car Rental Canada ULC (formerly CCRC Canada
ULC)
dated April 20, 2005 in favour of the Limited Partners and the
Partnership;
"Event
of Default"
shall
have the meaning ascribed thereto in Section 14;
"Guarantee"
means
this guarantee as amended, supplemented, modified, restated or replaced from
time to time;
"Guarantor
Financial Statements"
means
the audited balance sheet of the Guarantor as at September
30, 2006
and the
statements of income, retained earnings and sources and application of funds
for
the year ended December
31, 2005
and the
unaudited balance sheet of the Guarantor as at October
31, 2006 and
the
statements of income, retained earnings and sources and application of funds
for
the three-month period ending September
30, 2005
as
reported on Form 10-K and Form 10-Q, respectively, and, if applicable, Form
8-K,
filed with the Securities Exchange Commission;
"Guarantor's
Obligations"
means
all, and any part, of the guarantees, indemnities and obligations of the
Guarantor to each Limited Partner under this Guarantee;
"Indemnifiable
Tax"
means
any tax other than a tax that would not be imposed in respect of any payment
under this Guarantee but for a present or former connection between the
jurisdiction of the government or taxation authority imposing such tax and
the
relevant Limited Partner or a person related to such Limited Partner (including,
without limitation, a connection arising from such Limited Partner or related
person being or having been organized, present or engaged in a trade or business
in such jurisdiction, but excluding a connection arising solely from such
Limited Partner or related person having executed or delivered documents in
respect of, performed its obligations in respect of, or received payment of,
or
enforced, the Servicer Obligations);
"Servicer
Obligations"
means
the existing and future obligations of any kind of any of the General Partners
to each Limited Partner under those sections of the LP Agreement listed in
Schedule A annexed hereto and the obligations of Avis Budget Car Rental Canada
ULC to each Limited Partner pursuant to the CCRG Undertaking, whether direct
or
indirect, absolute or contingent, matured or not; and
"Subsidiary"
has the
meaning ascribed to such term in Section 2(5) of the Canada
Business Corporations Act,
as
amended.
(b) Unless
otherwise defined in subsection 1.1(a) (or elsewhere in this Guarantee), all
capitalized terms used in this Guarantee shall have the same meanings ascribed
thereto in, or incorporated by reference in, the LP Agreement.
2. Guarantee.
Subject
to the provisions hereof, the Guarantor unconditionally and irrevocably
guarantees in favour of each Limited Partner the punctual performance of all
of
the Servicer Obligations. The Guarantor also agrees to pay all reasonable costs
and expenses incurred by each Limited Partner in enforcing its rights under
this
Guarantee, including the reasonable fees and disbursements of counsel for such
Limited Partner incurred in connection with such enforcement (for greater
certainty, nothing in this Guarantee shall create or constitute (i) a monetary
payment, reimbursement or financial obligation of any kind on the Guarantor
unless the Guarantor fails to perform the aforementioned obligations pursuant
to
the terms hereof, in which case each Limited Partner shall be entitled to sue
for monetary damages or (ii) an obligation of the Guarantor to perform any
future obligations which any Additional General Partner may owe to the Limited
Partner from time to time). If the expenses of any action, suit or proceeding
in
enforcing rights
under
this Guarantee are to be paid by the Guarantor, the Limited Partners shall
conduct such action, suit or proceeding through the same legal counsel
acceptable to both Limited Partners, provided that a Limited Partner may employ
separate legal counsel if representation by the same legal counsel would be
inappropriate due to actual or potential differing interests between the Limited
Partners.
3. Guarantee
Absolute.
Subject
to the provisions hereof, the liability of the Guarantor hereunder shall be
absolute and unconditional irrespective of:
| (a) |
any
amendment, release, discharge or waiver of, or any consent to departure
from or any extension of time, indulgence, compromise or dealing
in
respect of the LP Agreement or the CCRG
Undertaking;
|
| (b) |
any
change in the name, objects, capital, constating documents or by-laws
of a
General Partner or Avis Budget Car Rental Canada
ULC;
|
| (c) |
the
invalidity, unenforceability, irregularity, informality or illegality,
in
whole or in part, of the LP Agreement or the CCRG
Undertaking;
|
| (d) |
any
amalgamation, merger or reorganization of a General Partner or Avis
Budget
Car Rental Canada ULC;
|
| (e) |
the
bankruptcy, winding-up, liquidation or dissolution of a General Partner
or
Avis Budget Car Rental Canada ULC;
or
|
| (f) |
any
other circumstance whatsoever, whether similar or not to the foregoing,
which might in any manner or to any extent (A) vary the risk of the
Guarantor, (B) constitute a legal or equitable release or discharge
of the
Guarantor, or (C) otherwise diminish the liability of the Guarantor
hereunder.
|
The
Servicer Obligations are hereby guaranteed notwithstanding that it may have
been
in excess of the powers of a General Partner to enter into the LP Agreement
or
to perform its obligations thereunder or of Avis Budget Car Rental Canada ULC
to
enter into the CCRG Undertaking or to perform its obligations thereunder or
that
a General Partner or Avis Budget Car Rental Canada ULC shall be the subject of
any incapacity, disability or lack or limitation of status in respect thereof.
The Servicer Obligations are hereby guaranteed notwithstanding any incapacity,
disability or lack or limitation of status or power of a General Partner to
enter into the LP Agreement or to perform its obligations thereunder or of
Avis
Budget Car Rental Canada ULC to enter into the CCRG Undertaking or to perform
its obligations thereunder.
4. Dealings
with a General Partner and Others.
(a) Each
Limited Partner may, without giving notice (other than any notice required
to be
given to the Guarantor pursuant to the LP Agreement) to or obtaining the consent
of the Guarantor if no Trigger Event has occurred and each Limited Partner
may
upon written notice to the Guarantor if a Trigger Event has occurred and is
continuing:
| (i) |
grant
extensions of time and other
indulgences;
|
| (ii) |
take
and give up security interests;
|
| (iii) |
accept
compositions;
|
| (iv) |
grant
releases and discharges, whether full, partial, conditional or
otherwise;
|
| (v) |
perfect,
fail to perfect or fail to maintain the perfection of any security
interests;
|
| (vi) |
release
any undertaking, property or assets charged by any security interests
to
third parties;
|
| (vii) |
hold
any monies received from a General Partner or
others;
|
| (viii) |
apply
such monies against such part of the Servicer Obligations and change
any
such application in whole or in part at any time and from time to
time;
|
and,
(b) each
Limited Partner may upon written notice to the Guarantor:
| (i) |
consent
to or otherwise permit any assignment of a General Partner's rights
or
obligations under the LP Agreement in compliance with the LP
Agreement;
|
| (ii) |
assign
its own rights or obligations under the LP Agreement and the CCRG
Undertaking in compliance with the LP Agreement;
or
|
| (iii) |
delay
in taking any action or otherwise deal or fail to deal with a General
Partner, Avis Budget Car Rental Canada ULC or others (including the
Guarantor),
|
all
as
such Limited Partner may see fit, without prejudice to or in any way discharging
or diminishing the Guarantor's Obligations, and no loss of or in respect of
any
other guarantees, indemnities or security interests received by such Limited
Partner from any other persons in respect of the Servicer Obligations, whether
occasioned through the fault of such Limited Partner or otherwise, shall in
any
way discharge or diminish the Guarantor's Obligations.
5. Subrogation.
The
Guarantor shall have no right to be subrogated to the rights of a Limited
Partner under the LP Agreement or the CCRG Undertaking in respect of the
Guarantor's performance under this Guarantee in respect of the Servicer
Obligations until such time as all of the Servicer Obligations have been fully
performed or satisfied. In case of the liquidation,
dissolution,
winding-up, insolvency or bankruptcy of a General Partner or Avis Budget Car
Rental Canada ULC (whether voluntary or involuntary) or in the event that a
General Partner or Avis Budget Car Rental Canada ULC shall make an arrangement
or composition with its creditors, each Limited Partner shall have the right
to
rank in priority to the Guarantor for such Limited Partner's full claims in
respect of the Guarantor's Obligations not then satisfied, and if any amount
shall be paid to the Guarantor in such circumstances when all of the Guarantor's
Obligations have not been paid or satisfied in full, such amounts shall be
held
in trust for the benefit of such Limited Partner and shall be forthwith paid
to
such Limited Partner on account of such unpaid Guarantor's Obligations. If
the
Guarantor shall perform or satisfy any or all of the Servicer Obligations and
all of the Guarantor's Obligations shall have been performed or satisfied in
full, each Limited Partner will, at the Guarantor's request and expense,
forthwith execute and deliver to the Guarantor appropriate documents, without
recourse and without representation and warranty, necessary to evidence the
transfer by subrogation to the Guarantor of any of such Limited Partner's rights
under the LP Agreement or the CCRG Undertaking in respect of the Servicer
Obligations performed or satisfied by the Guarantor. If any amount shall be
paid
to the Guarantor on account of any subrogation rights at any time when all
of
the Guarantor's Obligations have not been paid or satisfied in full, such
amounts shall be held in trust for the benefit of each Limited Partner and
shall
be forthwith paid to such Limited Partner on account of such unpaid Guarantor's
Obligations.
6. Continuing
Guarantee.
This
Guarantee is a continuing guarantee and shall apply to and secure the
performance of any and all of the Servicer Obligations. This Guarantee may
not
be terminated or determined by the Guarantor at any time.
7. Performance
by the Guarantor.
Notwithstanding
Section 3, in honouring this Guarantee, the Guarantor shall be entitled to
perform or satisfy any Servicer Obligation on the same terms and conditions
and
subject to the same rights and limitations as would have been applicable to
the
carrying out of such obligations by a General Partner under the LP Agreement
or
by Avis Budget Car Rental Canada ULC under the CCRG Undertaking.
8. Notice
of Default.
If
a
General Partner or Avis Budget Car Rental Canada ULC defaults in the performance
of any of the Servicer Obligations and such default is continuing, each Limited
Partner is entitled to require the Guarantor to honour this Guarantee by
personally performing such Servicer Obligations forthwith. A Limited Partner
shall not be bound or obliged to pursue any remedy or exhaust its recourse
against a General Partner or Avis Budget Car Rental Canada ULC or any other
person or any securities in respect of such default before being entitled to
require the Guarantor to honour this Guarantee in respect of such Servicer
Obligation.
9. Additional
Guarantees.
This
Guarantee is in addition and without prejudice to any guarantees or securities
of any kind (including guarantees whether or not in the same form as this
Guarantee) now or hereafter held by a Limited Partner in respect of the Servicer
Obligations.
10. No
Waiver; Remedies.
No
Limited Partner shall by any act, delay, omission or otherwise be deemed to
have
waived any of its rights or remedies under this Guarantee and no waiver shall
be
valid unless it is in writing and signed by each Limited Partner, and then
only
to the extent therein set forth. A waiver by the Limited Partners of any right
or remedy under this Guarantee on any one occasion shall not be construed as
a
bar to any right or remedy which the Limited Partners would otherwise have
on
any future occasion. No failure to exercise nor any delay in exercising on
the
part of a Limited Partner any right, power or privilege under this Guarantee,
shall operate as a waiver thereof; nor shall any single or partial exercise
of
any right, power or privilege under this Guarantee preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies provided under this Guarantee are cumulative and may be
exercised singly or concurrently, and are not exclusive of any rights or
remedies provided by Applicable Law.
11. Release
and Discharge.
Once
all
of the Guarantor's Obligations have been performed or satisfied, this Guarantee
and the rights granted in it shall cease and be null and void, and each of
the
Limited Partners shall, at the request and at the expense of the Guarantor,
execute and deliver to the Guarantor the documents required to release and
discharge this Guarantee.
12. Representations
and Warranties of the Guarantor.
The
Guarantor represents and warrants to each Limited Partner on the date hereof
that:
| (a) |
Organization.
The Guarantor is a limited liability company validly existing under
the
laws of the State of Delaware and
has the power to own or lease its property, to carry on its business
as
now being conducted by it and to enter into this Guarantee and to
perform
its obligations hereunder;
|
| (b) |
Authorization.
This Guarantee has been duly authorized, executed and delivered by
the
Guarantor and is a legal, valid and binding obligation of the Guarantor,
enforceable against the Guarantor by each Limited Partner in accordance
with its terms, except to the extent that enforcement may be limited
by
bankruptcy, insolvency and other laws affecting the rights of creditors
generally and except that equitable remedies may be granted only
in the
discretion of a court of competent
jurisdiction;
|
| (c) |
No
Violation.
The execution and delivery of this Guarantee by the Guarantor and
the
consummation of the transactions herein provided for will not result
in
the
|
|
material
breach or material violation of any of the provisions of, or constitute
a
material default under, or conflict with or cause the acceleration
of any
obligation of the Guarantor under (i) any Contract to which the Guarantor
is a party or by which it is or its properties are bound, (ii) any
provision of the constating documents or by-laws or resolutions of
the
board of directors (or any committee thereof) or shareholders of
the
Guarantor, (iii) any judgment, decree, order or award of any court,
governmental body or arbitrator having jurisdiction over the Guarantor,
(iv) any licence, permit, approval, consent or authorization held
by the
Guarantor necessary to the operation of the Guarantor's business,
or (v)
any Applicable Law, which breach, violation, default, conflict or
acceleration could reasonably be expected to have a material adverse
effect on the Guarantor;
|
| (d) |
No
Litigation, Etc.
Other than as disclosed in the most recent Form 10-K, Form 10-Q and,
if
applicable, Form 8-K, filed by the Guarantor with the Securities
Exchange
Commission, there are no material actions, suits, proceedings or
investigations commenced or, to the knowledge of the Guarantor,
contemplated or threatened against or affecting the Guarantor at
law or in
equity before or by any governmental department, commission, board,
bureau, court, agency, arbitrator or instrumentality, domestic or
foreign,
of any kind, which in any case would prevent or hinder the consummation
of
the transactions contemplated by this Guarantee or which could reasonably
be expected to have a material adverse effect on the
Guarantor;
|
| (e) |
Guarantor
Financial Statements.
The Guarantor Financial Statements have been prepared in accordance
with
U.S. GAAP and present fairly and disclose in all material respects
the
financial condition, assets and liabilities of the Guarantor as at
the
respective dates of the Guarantor Financial Statements and the sales,
earnings and results of operations for the Guarantor for the respective
periods covered by the Guarantor Financial Statements. There has
been no
material adverse change in the results of operations, financial position
or condition of the Guarantor since the date of the most recent balance
sheet forming part of the Guarantor Financial
Statements;
|
| (f) |
Compliance
with Applicable Laws.
The Guarantor has conducted and is conducting its business in compliance
with all Applicable Laws of each jurisdiction in which any material
portion of its business is carried on and has all required licences,
permits, registrations and qualifications under the laws of each
such
jurisdiction to carry on its business, except to the extent that
failure
to so conduct its business or to have such licences, permits,
registrations or qualifications could not reasonably be expected
to have a
material adverse effect on the
Guarantor;
|
| (g) |
Consents
and Approvals.
There is no requirement to make any filing with, give any notice
to or to
obtain a licence, permit, certificate, registration, authorization,
consent or approval of, any governmental or regulatory authority
as a
condition to the lawful consummation of the transactions contemplated
by
this Guarantee the failure of which would have a material adverse
effect
on the Guarantor;
|
| (h) |
Solvency,
Etc.
The Guarantor is not insolvent and has not (i) admitted its inability
to
pay its debts generally as they become due or failed to pay its debts
generally as they become due, (ii) proposed a compromise or arrangement
to
its creditors, (iii) had any petition for a receiving order or bankruptcy
filed against it, (iv) consented to have itself declared bankrupt
or wound
up, (v) consented to have a receiver, liquidator or trustee appointed
over
any part of its assets, (vi) had any encumbrancer take possession
of any
of its property, (vii) had any execution or distress become enforceable
or
become levied upon any of its property which could reasonably be
expected
to have a material adverse effect on the ability of the Guarantor
to carry
out its obligations hereunder, or (viii) had any unsatisfied judgment
outstanding against it for more than 15 days which could reasonably
be
expected to have a material adverse effect on the ability of the
Guarantor
to carry out its obligations
hereunder;
|
| (i) |
Ownership
of General Partners and Avis Budget Car Rental Canada
ULC.
The Guarantor directly or indirectly owns all of the issued and
outstanding shares of each General Partner and Avis Budget Car Rental
Canada ULC; and
|
| (j) |
Full
Disclosure.
Neither this Guarantee nor any document to be delivered by the Guarantor
nor any certificate, report, statement or other document furnished
by the
Guarantor to the Limited Partners, the Securitization Agents or the
Rating
Agency in connection with the negotiation of this Guarantee contains
or
will contain any untrue statement of a material fact or omits or
will omit
to state a material fact necessary to make the statements contained
herein
or therein not misleading.
|
13. Covenants
of the Guarantor.
The
Guarantor covenants and agrees with each Limited Partner that:
| (a) |
The
Guarantor shall preserve and maintain its existence (except in the
case of
a merger, consolidation, dissolution or liquidation if the surviving
entity assumes all of the Guarantor's obligations hereunder), rights,
franchises and privileges and shall qualify and remain qualified
to carry
on business in each jurisdiction in which the failure to do so would
have
a material adverse effect on the Guarantor; provided, however, nothing
in
this clause shall prohibit or limit in any respect transactions in
the
ordinary course of business of the Guarantor or any of its
Subsidiaries.
|
| (b) |
Ownership
of General Partners and Avis Budget Car Rental Canada
ULC.
The Guarantor shall own, directly or indirectly, all of the shares
of each
General Partner and Avis Budget Car Rental Canada
ULC.
|
| (c) |
No
Defaults.
The Guarantor shall promptly notify the Rating Agency and each
Securitization Agent of any events of default of which it is aware
under
this Guarantee and any Trigger Events of which it is aware under
the LP
Agreement.
|
| (d) |
Guarantor
Financial Statements.
The Guarantor shall deliver to each Limited Partner within 60 days
of the
end of the first three fiscal quarters of each fiscal period of the
Guarantor a copy of the unaudited income and cash flow statements
and the
unaudited balance sheet of the Guarantor as at and for the period
then
ended and, as soon as available but no later than 120 days after
the end
of each fiscal year of the Guarantor a copy of the audited income
and cash
flow statements and the audited balance sheet of the Guarantor as
at and
for the period then ended.
|
14. Events
of Default.
The
occurrence or existence of any one or more of the following events or facts
which is continuing (each an "Event
of Default"),
shall
constitute an Event of Default under this Guarantee:
| (a) |
the
failure by the Guarantor to perform or observe any Guarantor Obligation,
provided that if such failure is capable of being remedied, such
failure
shall not constitute an Event of Default unless it remains unremedied
for
five Business Days after written notice from a Limited
Partner;
|
| (b) |
the
inaccuracy when made of a representation or warranty of the Guarantor
hereunder in any material respect, provided that if such inaccuracy
is
capable of being remedied, then it shall not constitute an Event
of
Default unless it remains unremedied for ten Business Days after
written
notice from a Limited Partner;
|
| (c) |
the
Guarantor failing to pay when due any obligation (the "underlying
obligation")
for a sum certain in excess of U.S.$25,000,000 and such failure continuing
for three Business Days after (i) written notice to the Guarantor
from the
party to whom the underlying obligation is owed if there is no grace
period applicable to the underlying obligation or (ii) the expiry
of any
grace period applicable to the underlying
obligation;
|
| (d) |
the
Guarantor failing generally to pay its debts as they become due or
admitting its inability to do so or making a general assignment for
the
benefit of creditors or being adjudicated a bankrupt or insolvent
or
seeking the protection of Insolvency Legislation;
or
|
| (e) |
proceedings
being taken by a third party against the Guarantor under Insolvency
Legislation or a receiver being appointed over, or execution being
levied
against, any material portion of the assets of the Guarantor, unless
such
proceedings are withdrawn or terminated with prejudice to the applicant
within 60 days of having been
commenced.
|
| 15. |
Guarantor
to Investigate Financial Condition of General Partners and Avis Budget Car
Rental Canada ULC.
|
The
Guarantor acknowledges that it has fully informed itself about the financial
condition of the General Partners. The Guarantor assumes full responsibility
for
keeping fully
informed
of the financial condition of the General Partners and Avis Budget Car Rental
Canada ULC and all other circumstances affecting each General Partner's or
Avis
Budget Car Rental Canada ULC's ability to perform the Servicer Obligations
and
the Guarantor's ability to perform its obligations hereunder, and agrees that
no
Limited Partner has a duty to report to the Guarantor any information which
such
Limited Partner has or receives about the financial condition of the General
Partners or Avis Budget Car Rental Canada ULC or any circumstances bearing
on
each General Partner's or Avis Budget Car Rental Canada ULC's ability to perform
the Servicer Obligations.
16. Termination.
This
Guarantee and the Guarantor's Obligations are irrevocable. The Guarantor may
not
determine its liability in respect of any of Servicer Obligations, including
Servicer Obligations incurred in the future.
17. Tax
Indemnity.
All
sums
payable by the Guarantor to each Limited Partner under this Guarantee shall
be
made free and clear of, and without deduction for, any taxes or duties of
whatsoever nature imposed, levied, collected, withheld or assessed by any
authority having power to tax, unless the withholding or deduction of such
taxes
or duties is required by Applicable Law. If the Guarantor is so required to
deduct, then it shall promptly notify the relevant Limited Partner of such
requirement and pay to the relevant taxing authority the full amount required
to
be deducted (including the amount required to be deducted from any additional
payment made pursuant to the immediately following clause) and, provided that
such taxes or duties are Indemnifiable Taxes, pay such additional amount as
will
result in the receipt by such Limited Partner of such amounts as would have
been
received by it had no such taxes or duties been required to be deducted. The
Guarantor will indemnify and hold harmless each Limited Partner from and against
any and all claims, damages and liabilities to which such Limited Partner may
become subject due to the failure of the Guarantor to deduct such taxes or
duties and remit same to any relevant taxing authority. The obligations under
this Section 17 shall survive the termination of this Guarantee.
18. Notices.
Any
notice, report, demand or other communication required or permitted to be given
or made hereunder shall be in writing and shall be sufficiently given or made
for all purposes if delivered personally or transmitted by fax to the party
or
to an officer of the party to whom the same is directed, addressed as
follows:
(a) if
to the
Guarantor, addressed to it at:
Avis
Budget Car Rental, LLC
6
Sylvan
Way
Parsippany,
N.J.
USA
07054
Attention:
Treasurer
Fax
No.: (973)
496-3560
and
Attention: Legal
Department
Fax
No.: (973)
496-3444
with
a
copy to:
Avis
Budget Group, Inc.
6
Sylvan
Way
Parsippany,
N.J.
USA
07054
Attention:
Treasurer
Fax
No.: (973)
496-3560
(b) if
to the
STARS Limited Partner, addressed to it at:
STARS
Trust
c/o
BNY
Trust Company of Canada
4
King
Street West
Suite
1101
Toronto,
ON M5H 1B6
Attention: George
Bragg,
President
and Chief Executive Officer
Fax
No.: (416)
360-1711
and
Attention: Patricia
Benjamin
Assistant
Treasurer and Trust Officer
Fax
No.: (416)
360-1711
with
a
copy to the STARS Securitization Agent, addressed to it at:
BMO
Nesbitt Burns Inc.
1
First
Canadian Place
3rd
Floor
Podium
Toronto,
ON M5X 1H3
Attention: Executive
Managing Director,
Securitization
and Structured Finance
Fax
No.: (416)
359-1910
| (c) |
if
to the Bay Street Limited Partner, addressed to it
at:
|
Bay
Street Funding Trust
c/o
Montreal Trust Company of Canada
100
University Avenue
11th
Floor
Toronto,
ON M5J 2Y1
Attention: Account
Administrator
Fax
No.: (416)
981-9777
with
a
copy to the Bay Street Securitization Agent, addressed to it at:
Scotia
Capital Inc.
68th
Floor,
Scotia Plaza
40
King
Street West
P.O.
Box
4085, Station "A"
Toronto,
ON M5W 2X6
Attention: Director,
Securitization
Fax
No.: (416)
945-4534
(d) and
if to
the Rating Agency, addressed to it at:
Dominion
Bond Rating Service Limited
200
King
Street West
Suite
1304
Sun
Life
Centre, West Tower
P.O.
Box
34
Toronto,
ON M5H 3T4
Attention: Executive
Vice President - Structured Finance
Fax
No.: (416)
593-8432
Any
such
notice that is given by personal delivery shall be deemed to have been received
on the day of actual delivery thereof and any notice given by fax shall be
deemed to have been received on the first Business Day after the transmittal
thereof. A Limited Partner may change its address or fax number by giving
written notice of such change to the Guarantor or the Guarantor may change
its
address or fax number by giving such notice thereof to each Limited
Partner.
19. Governing
Law; Submission to Jurisdiction; Waiver of Immunities.
This
Guarantee shall be governed by and construed in accordance with the laws of
the
Province of Ontario and of Canada applicable therein and shall be treated in
all
respects as an Ontario contract. The Guarantor hereby irrevocably submits to
the
non-exclusive jurisdiction of any court sitting in the Province of Ontario
in
any action or proceeding arising out of or relating to this Guarantee and the
Guarantor irrevocably agrees that all claims in respect of any such
action
or
proceeding may be heard and determined in such Ontario court. The Guarantor
hereby irrevocably waives, to the extent permitted by Applicable Law, the
forum
non conveniens
defence
to the maintenance of any such action or proceeding. The Guarantor agrees that
a
final judgment in any action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Applicable Law. Nothing in this Section 19 shall affect the right
of
a Limited Partner to serve legal process in any other manner permitted by
Applicable Law or affect its right to bring any action or proceeding against
the
Guarantor or its property and assets in the courts of any other
jurisdiction.
20. Further
Assurances.
The
Guarantor shall at all times do, execute, acknowledge and deliver or cause
to be
done, executed, acknowledged or delivered all such further acts, deeds,
transfers, assignments and assurances as a Limited Partner may reasonably
require in order to give effect to the provisions of this
Guarantee.
21. Amendment
in Writing.
This
Guarantee may only be amended or supplemented by a written agreement signed
by
the Guarantor and each Limited Partner and agreed to in writing by the Rating
Agency.
22. Benefit
and Binding Nature; Assignment.
This
Guarantee shall bind the Guarantor, its successors and permitted assigns and
enure to the benefit of and be enforceable by each Limited Partner and its
respective successors and permitted assigns. None of the Limited Partners or
the
Guarantor may assign any of its rights or obligations under this Guarantee
without the prior written consent of the others.
23. Entire
Agreement.
This
Guarantee constitutes the entire agreement between the parties with respect
to
the subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether written or oral. There are no
representations, warranties, conditions, other agreements or acknowledgements,
whether direct or collateral, express or implied, that form part of or affect
this Guarantee except as specifically set forth herein. The execution of this
Guarantee has not been induced by, nor does the Guarantor rely upon or regard
as
material, any representations, warranties, conditions, other agreements or
acknowledgements expressly made in this Guarantee, or the agreements and other
documents to be delivered pursuant hereto.
24. Waiver
of Notice of Acceptance.
The
Guarantor waives notice of acceptance of this instrument.
IN
WITNESS WHEREOF the Guarantor has executed this Guarantee this 11th
day of
December, 2006.
|
AVIS
BUDGET CAR RENTAL, LLC
|
||||
|
by:
|
/s/
David B. Wyshner
|
|||
|
Name:
David B. Wyshner
Title:
Executive Vice President, Chief Financial Officer and Treasurer
|
SCHEDULE
A
SERVICER
OBLIGATIONS
2.8 Covenants
of General Partners
(a) Each
General Partner shall at all times during the term of the LP Agreement be a
direct or indirect wholly-owned subsidiary of, and be controlled in fact by,
the
Guarantor.
(b) Each
General Partner shall not, without the prior written consent of each Limited
Partner and the Rating Agency, have incurred or incur any liabilities or enter
into any obligations for or on behalf of the Partnership, otherwise than those
arising under or contemplated by the LP Agreement, the Assignment and Assumption
Agreement, any Licensee Vehicle Assignment Agreements and/or any other Contract
contemplated thereby or those arising in the normal course of the business
of
the Partnership.
(c) Each
General Partner shall promptly notify the Rating Agency and each Securitization
Agent of any defaults of which it is aware under the LP Agreement, the
Assignment and Assumption Agreement, any Licensee Vehicle Assignment Agreements,
this Guarantee or any Repurchase Agreement.
(d) The
General Partners shall cause the Partnership to be registered as a "vehicle
dealer" under any applicable motor vehicle dealer, highway traffic or other
legislation where such registration is reasonably determined by the General
Partners to be necessary or desirable. Such registrations are to be made
promptly and, in any event, within 90 days of the date of the LP Agreement
in
respect of the jurisdictions in which the Partnership carries on business as
of
such date, and within 60 days from the date on which the Partnership commences
to carry on business in respect of any other jurisdiction.
4.1 Estimation
Report
Not
later
than 12:00 noon (Toronto time) on each Estimation Date, the General Partners
shall provide to each Limited Partner an Estimation Report containing the items
set out in Section 4.1 of the LP Agreement.
4.2 Payout
Report
Not
later
than 12:00 noon (Toronto time) on each Payout Reporting Date, the General
Partners shall provide to each Limited Partner a Payout Report containing the
items set out in Section 4.2 of the LP Agreement.
4.3 Settlement
Report
Not
later
than 12:00 noon (Toronto time) on each Settlement Date, the General Partners
shall provide to each Limited Partner a Settlement Report containing the items
set out in Section 4.3 of the LP Agreement.
4.4 Collections
of Rental Revenues
Subject
to the following sentence, the General Partners shall deposit all Rental
Revenues into the Rental Account as promptly as possible upon receipt, and,
in
any event, no later than the first Business Day following receipt. So long
as no
Trigger Event has occurred and is continuing, notwithstanding the foregoing
sentence, the General Partners may make a single deposit of Rental Revenues
into
the Rental Account no later than 12:00 noon (Toronto time) on each Remittance
Date. All deposits of Rental Revenues into the Rental Account shall be made
in
immediately available funds.
4.5 Prepayments
So
long
as the General Partners are entitled to remit Rental Revenues on a monthly
basis, as opposed to a daily basis, pursuant to Section 4.4 of the LP Agreement,
the General Partners shall deposit into the Rental Account and the Vehicle
Account the respective amounts set out in Section 4.5 of the LP
Agreement.
4.6 Rental
Account
(a) The
General Partners shall manage for and in the name of Partnership the Rental
Account. The General Partners shall deposit all Rental Revenues as received
to
the Rental Account in accordance with Section 4.4 of the LP Agreement. The
General Partners shall deposit all Hedge Receipts as received to the Rental
Account.
(b) Subject
to Section 8.5 of the LP Agreement, on each Remittance Date, the General
Partners shall distribute cash from the Rental Account as set out in subsection
4.6(c) of the LP Agreement.
(c) Notwithstanding
subsection 4.6(c) of the LP Agreement, insofar as Expenses consist of VAT
payable upon the purchase of Partnership Vehicles, the General Partners shall
pay such Expenses directly from the VAT Account when the VAT Account is not
commingled with the Rental Account or from the Rental Account when the Rental
Account and the VAT Account are commingled, or may first transfer the necessary
amounts from the Rental Account or the VAT Account, as the case may be, to
the
Vehicle Account to be remitted with the purchase of new Vehicles.
4.7 Vehicle
Account
(a) The
General Partners shall manage for and in the name of Partnership, the Vehicle
Account.
(b) Subject
to Section 8.5 of the LP Agreement, the General Partners shall distribute cash
from the Vehicle Account as set out in subsection 4.7(b) of the LP
Agreement.
4.8 VAT
Account
The
General Partners shall manage for and in the name of the Partnership the VAT
Account. The General Partners shall deposit to the VAT Account all amounts
collected by
the
Partnership on behalf of a governmental authority in respect of VAT as a result
of the rental or sale of Vehicles by the Partnership or the provision of any
other goods or services by the Partnership and any amount received by the
Partnership from a governmental authority as a refund of VAT.
For
greater certainty, the obligations of the General Partners to make capital
contributions in the event of a shortfall as described in the Section 4.8 of
the
LP Agreement is not a Servicer Obligation.
4.9 Eligible
Investments
Pending
the distribution required or allowed in the LP Agreement, the General Partners
may use funds in the Rental Account, the Vehicle Account and the VAT Account
to
purchase Eligible Investments for the Partnership. The General Partners agree
to
ensure the amounts on deposit in such account shall be available in same day
funds on the Business Day immediately preceding such Remittance Date (except
that any amounts used to purchase Eligible Investments issued by BMO shall
be
made available in same day funds on the Remittance Date).
5.2 Powers
and Duties of General Partners
(a) In
managing the business and affairs of the Partnership, the General Partners
shall
utilize their own employees, business premises, owned or leased, and
communications and computer systems and these shall not be, and shall not be
held out to be, the employees, premises or systems of the
Partnership.
(b) The
General Partners shall exercise their powers and discharge their duties under
the LP Agreement, honestly, in good faith and in the best interest of the
Partnership and in connection therewith shall exercise the degree of care,
diligence and skill that a reasonably prudent Person would exercise in
comparable circumstances, but subject to the foregoing shall not be liable
to
the Limited Partners for any act, omission or error in judgment made in good
faith.
(c) Neither
the General Partners nor any Affiliate of the General Partners shall carry
on
any activities outside the Partnership in a manner detrimental to the interests
of the Partnership, including without limitation that neither the General
Partners nor any Affiliate of the General Partners shall directly or indirectly
own, invest in or operate a rental car business or businesses in Canada which
competes with the car rental business of the Partnership provided that the
Budget General Partner may have an interest in the Budget Vancouver licensee
or
such other entities that each Limited Partner approves, acting
reasonably.
(d) Unless
a
different standard is required by the terms of the LP Agreement, the General
Partners shall manage the business and affairs of the Partnership in a manner
consistent with the management by the Avis General Partner of its vehicle rental
business prior to June 1, 2004.
(e) Without
limiting the generality of Section 5.1 of the LP Agreement, the General Partners
shall have the full power and authority to, and shall, on behalf and in the
name
of the Partnership:
| (i) |
acquire,
insure and sell Vehicles;
|
| (ii) |
operate
the Rental Account, the Vehicle Account and the VAT
Account;
|
| (iii) |
pay
the Expenses;
|
| (iv) |
commence
or defend any action or proceeding in connection with the
Partnership;
|
| (v) |
file
on behalf of the Partnership returns required by any governmental
or like
authority and make all related remittances and receive all related
refunds
and credits;
|
| (vi) |
maintain
as valid and effective all registrations, qualifications, licences
and
permits necessary or desirable for the Partnership in the conduct
of its
business; and
|
| (vii) |
do
such other things as are in furtherance of or incidental to the business
of the Partnership or that are provided for in the LP
Agreement.
|
(f) The
General Partners shall take all actions required to qualify, continue and keep
in good standing the Partnership as a limited partnership and to maintain the
limited liability of each Limited Partner in each jurisdiction where the
Partnership may carry on business or own property and to cause the Partnership
to register as a "motor vehicle dealer" in those provinces of Canada where
it is
necessary or advisable for the Partnership to be so registered.
(g) The
General Partners shall enter into Vehicle Rental Agreements in their own names
on behalf of the Partnership as undisclosed principal.
(h) The
General Partners will, (i) in the conduct of the affairs of the Partnership,
put
all Approved Dealers, Manufacturers and other Persons with whom the Partnership
does business in its own name on notice that each Limited Partner is not liable
for the obligations the Partnership, and (ii) include in all Contracts entered
into in the name of the Partnership a notice or the provision to the effect
that
the Partnership is a limited partnership (each of which conditions may be
satisfied by contracting in the name of the Partnership as a limited
partnership).
(i) The
General Partners shall ensure at all times that the mix of Partnership Vehicles
are as set out in subsection 5.2(i) of the LP Agreement.
(j) In
buying
Vehicles for the Partnerships, other than pursuant to the Assignment and
Assumption Agreement, the General Partners shall buy such Vehicles in accordance
with subsection 5.2(j) of the LP Agreement.
(k) The
General Partners agree that in operating the business of the Partnership they
shall at all times in all material respects comply with and perform each term,
condition, representation, warranty and covenant required to be complied with
or
performed by the lessor under each Vehicle Rental Agreement and will not take
or
omit to take any action that would
cause
any
failure by the Partnership to so comply with and perform in all material
respects each such term, condition, representation, warranty and covenant
required to be complied with or performed by the lessor under each Vehicle
Rental Agreement.
(l) The
General Partners shall do or cause to be done all such acts and things as a
reasonable and prudent operator of a Vehicle rental business would do in order
to maintain, use, operate and manage the property, assets and undertaking of
such business which are necessary or of advantage to the proper conduct of
the
business including all such acts and things referred to in subsection 5.2(l)
of
the LP Agreement.
(m) The
General Partners shall at their own expense maintain the Partnership Vehicles
in
good repair, working order and condition and, in the case of a Vehicle subject
to a Repurchase Agreement, to the standard required by the relevant Repurchase
Agreement.
(n) The
General Partners shall indemnify and hold harmless the Partnership against
any
obligation of the Partnership to reimburse a Manufacturer for any allowance
or
rebate paid by a Manufacturer to a General Partner in connection with the sale
of Partnership Vehicles to the Partnership.
(o) The
General Partners shall at their own expense provide insurance for the business
of the Partnership and for the Partnership Vehicles, as set out in subsection
5.2(o) of the LP Agreement. The General Partners shall indemnify and hold
harmless the Partnership against all claims, losses and expenses within the
deductible amounts under such insurance policies.
(p) Each
General Partner shall continue to self insure and maintain adequate reserves
in
respect of such self insurance as set out in subsection 5.2(p) of the LP
Agreement.
5.3 Restrictions
on Operations and Activities
The
General Partners will manage and conduct all aspects of the day-to-day
operations and other activities of the Partnership, subject, however, to the
restrictions that are in Section 5.3 of the LP Agreement; and the Partnership's
sole assets being as set out in subsection 5.3(f) of the LP
Agreement.
5.4 Program
Negotiation Vehicles
The
General Partners shall deliver a signed copy of any letter of undertaking
referred to in subsection 5.4(a) of the LP Agreement to each Securitization
Agent and the Rating Agency as soon as reasonably practicable and, in any event,
prior to the Partnership purchasing Program Negotiation Vehicles from the
relevant Eligible Manufacturer.
5.5 Commingling
of Partnership Assets
Subject
to any monthly remittance of Rental Revenues pursuant to Section 4.4 of the
LP
Agreement, the funds and assets of the Partnership shall not be commingled
with
the funds or assets of any other Person (including those of the General
Partners).
6.1 Books
of Account
The
General Partners will keep and maintain full, complete and accurate books of
account and records of the business of the Partnership. The Partnership books
shall be kept at the principal office from time to time of the Avis General
Partner. During the existence of the Partnership and for a period of three
years
thereafter, such books of account and records shall be made available for
inspection by each Limited Partner or by its duly authorized representatives
during normal business hours at the principal office of the Avis General
Partner.
6.2 Annual
Report and Income Tax Information
(a) In
addition to the reports required by Article 4 of the LP Agreement, within 60
days after the end of each Fiscal Period, the General Partners shall deliver
to
each Limited Partner (i) an annual report in respect of such Fiscal Period
prepared in accordance with and containing the items set out in paragraph
6.2(a)(i) of the LP Agreement and (ii) information concerning the amount of
Taxable Income or Taxable Loss and credits and charges to capital accounts
allocated to each Limited Partner and such other information as is necessary
to
enable such Limited Partner to file income tax returns and partnership returns
with respect to such Limited Partner's income or loss from the Partnership
in
respect of such Fiscal Period.
(b) Within
120 days of the end of each Fiscal Period, the General Partners shall deliver
to
each Limited Partner the statements referred to in subparagraphs 6.2(a)(i)(A)
and (B) of the LP Agreement with the report of the Auditors
thereon.
6.3 Fleet
Reports
On
each
Settlement Date, the General Partners will make available a Fleet Report to
each
Limited Partner.
6.4 Financial
Reports of the Partnership
The
General Partners shall deliver to each Limited Partner within 60 days of the
end
of each of the first three fiscal quarters of each Fiscal Period a copy of
the
unaudited income and cash flow statements and the unaudited balance sheet of
the
Partnership as at and for the period then ended.
6.5 Financial
Report of the General Partners and Avis Budget Car Rental Canada
ULC
Each
General Partner shall deliver to each Limited Partner within 60 days of the
end
of each of the first three fiscal quarters of each fiscal period of such General
Partner a copy of the unaudited income and cash flow statements and the
unaudited balance sheet of such General Partner as at and for the period then
ended and, as soon as available but not later than 120 days after the end of
each fiscal period of such General Partner, a copy of the unaudited income
and
cash flow statements and the unaudited balance sheet of such General Partner
as
at and for the period then ended. Each General Partner shall cause Avis Budget
Car Rental Canada ULC to deliver to each Limited Partner within 60 days of
the
end of each of the first three fiscal quarters of each fiscal period of Avis
Budget Car Rental Canada ULC a copy of the unaudited income and cash flow
statements and the unaudited balance sheet of Avis Budget Car Rental
Canada
ULC as at and for the period then ended and, as soon as available but not later
than 120 days after the end of each fiscal period of Avis Budget Car Rental
Canada ULC, a copy of the audited income and cash flow statements and the
audited balance sheet of Avis Budget Car Rental Canada ULC as at and for the
period then ended.
6.6 Repurchase
Agreements
The
General Partners shall provide to each Securitization Agent and the Rating
Agency copies of all Repurchase Agreements entered into by the Partnership
promptly after they have been entered into by the Partnership and, in any event,
within 30 days after they have been entered into by the
Partnership.
8.5 Distribution
of Amounts in Accounts Upon Trigger Event
After
the
occurrence of a Trigger Event, the General Partners shall distribute cash from
the Rental Account and from the Vehicle Account as set out in Section 8.5 of
the
LP Agreement.
8.9 Liquidation
of the Partnership's Assets
In
connection with the dissolution of the Partnership, the General Partners shall
act as a receiver and liquidator of the assets of the Partnership and shall
settle the accounts of the Partnership and liquidate its assets, if
any.
9.1 Indemnification
by the General Partners
Without
limiting any other rights which the Limited Partners may have under the LP
Agreement or under Applicable Law, each General Partner agrees to indemnify
each
Limited Partner and its respective trustees, employees, officers, directors,
agents and assigns (collectively, the "Indemnified Parties") from and against
any and all damages, losses, claims, liabilities and related costs and expenses,
including reasonable legal fees and disbursements (all the foregoing being
collectively referred to as "Indemnified Amounts") awarded against or reasonably
incurred by any of the Indemnified Parties arising out of or as a result of
(a)
the liability of such Limited Partner not being limited in the manner provided
in Section 2.14 of the LP Agreement (unless the liability of such Limited
Partner is not so limited as a result of any act or omission of such Limited
Partner) or (b) a breach or violation of those sections of the LP Agreement
set
out in this Schedule A by a General Partner, excluding, however, damages,
losses, claims, liabilities, costs and expenses resulting from gross negligence
or wilful misconduct on the part of such Limited Partner. The obligations of
each General Partner in Section 9.1 of the LP Agreement shall survive any
termination thereof. Without limiting the generality of the foregoing but
subject to the exclusions referenced in (a) and (b), each General Partner shall
indemnify the Indemnified Parties for Indemnified Amounts awarded or incurred
as
aforesaid relating to or resulting from:
| (i) |
by
the General Partners pursuant thereto, which shall have been false,
incorrect or inaccurate in any material respect when
made;
|
|
by
the General Partners pursuant thereto, which shall have been false,
incorrect or inaccurate in any material respect when
made;
|
| (ii) |
the
failure of a General Partner to comply with any Applicable Law with
respect to any Partnership Vehicle or Vehicle Rental Agreement or
the
non-conformity of any Vehicle Rental Agreement with any Applicable
Law;
|
| (iii) |
any
claim for personal injury, death, property damage or product liability
which may arise by reason of, result from or be caused by, or relate
to
the use, operation, maintenance or ownership of, the Partnership
Vehicles;
and
|
| (iv) |
any
material failure of a General Partner to perform its covenants or
obligations set out in this Schedule A in accordance with the provisions
of the LP Agreement.
|
9.2 Notification
of Potential Liabilities
Each
of
the Partners will, upon learning of potential situations involving possible
liability under Article 9 of the LP Agreement, promptly notify the other
Partners thereof.
9.3 Litigation
At
the
request of a Limited Partner, each General Partner shall, at its expense,
co-operate with such Limited Partner in any action, suit or proceeding brought
by or against such Limited Partner relating to any of the transactions
contemplated by the LP Agreement, any Partnership Vehicles or Vehicle Rental
Agreements (other than an action, suit or proceeding by one Partner against
another Partner). In addition, each General Partner agrees to notify each
Limited Partner, at the General Partners' expense, promptly upon learning of
any
pending or threatened action, suit or proceeding, if the judgment or expenses
of
defending such action, suit or proceeding would be covered by Section 9.1 of
the
LP Agreement and (except for an action, suit or proceeding by one Partner
against another Partner) to consult with such Limited Partner, concerning the
defence and prior to settlement.
9.4 Tax
Indemnity
Each
General Partner agrees to defend and save the Indemnified Parties harmless
from
and against any and all liabilities arising out of the transactions contemplated
by the LP Agreement with respect to or resulting from any delay in paying or
any
omission to pay any Taxes otherwise required under the LP Agreement to be paid
or withheld and remitted by or on behalf of such General Partner on its own
behalf, on behalf of a Limited Partner, on behalf of the Partnership or on
behalf of any Vehicle rental customers. If such General Partner shall be
required by Applicable Law to deduct or withhold any Taxes from or in respect
of
any sum payable by or on behalf of the Partnership to a Limited Partner under
the LP Agreement or in connection with the execution, delivery, filing or
recording of the LP Agreement and of the other documents to be delivered under
the LP Agreement and the consummation of the transactions contemplated by the
LP
Agreement, or if a Limited Partner shall be required to pay any Taxes in respect
of any sums received by the LP from the Partnership under the LP
Agreement:
| (a) |
such
General Partner shall make such deductions or withholdings;
and
|
| (b) |
such
General Partner shall pay forthwith the full amount deducted or withheld
to the relevant taxation authority or other authority in accordance
with
Applicable Law and will provide to such Limited Partner copies of
such
forms as are required to be provided to such authority evidencing
the
payment by such General Partner.
|
9.7 Change
in Circumstances
If
any of
the circumstances set out in Section 9.7 of the LP Agreement occurs, the
Partnership shall, from time to time upon demand by the relevant Limited
Partner, pay to such Limited Partner or the applicable Affected Person,
simultaneously with the payment of the Funding Discount Amount or the Bond
Interest Amount, as the case may be, the amount of any such increased cost
incurred, expenses or liabilities incurred, reduction in amounts received or
receivable, reduction in rate of return or required payment made or to be
made.