Exhibit 10.17


 


FOURTH AMENDED AND RESTATED

LIMITED PARTNERSHIP AGREEMENT


 


 


NT LIMITED PARTNERSHIP


 






MARCH 13, 1997






 

















 


TABLE OF CONTENTS


 


	
   

  	
  ARTICLE 1

  	
   

  
	
   

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Definitions

  	
  2

  
	
  1.2

  	
  Other Rules of
  Interpretation

  	
  15

  
	
  1.3

  	
  Strict Performance of Covenants

  	
  16

  
	
  1.4

  	
  Governing Law

  	
  16

  
	
  1.5

  	
  Time

  	
  16

  
	
  1.6

  	
  Schedules

  	
  16

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 2

  	
   

  
	
   

  	
  FORMATION OF PARTNERSHIP AND RELATIONSHIP BETWEEN
  PARTNERS

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Formation

  	
  16

  
	
  2.2

  	
  Name

  	
  16

  
	
  2.3

  	
  Business of Partnership

  	
  17

  
	
  2.4

  	
  Principal Place of
  Business

  	
  17

  
	
  2.5

  	
  Fiscal Period

  	
  17

  
	
  2.6

  	
  Representation and
  Warranties of General Partner

  	
  17

  
	
  2.7

  	
  Title to Partnership
  Assets

  	
  20

  
	
  2.8

  	
  Covenants of General
  Partner

  	
  20

  
	
  2.9

  	
  Representations and
  Warranties of Limited Partner

  	
  21

  
	
  2.10

  	
  Limitations of Authority
  of Limited Partner

  	
  21

  
	
  2.11

  	
  Power of Attorney

  	
  22

  
	
  2.12

  	
  Unlimited Liability of
  General Partner

  	
  23

  
	
  2.13

  	
  Limited Liability of
  Limited Partner

  	
  23

  
	
  2.14

  	
  Other Activities of
  Limited Partner

  	
  23

  
	
  2.15

  	
  Compliance with Laws

  	
  23

  
	
  2.16

  	
  Covenants of the Limited
  Partner

  	
  23

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 3

  	
   

  
	
   

  	
  CAPITAL CONTRIBUTIONS AND ACCOUNTS

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Initial Contributions of
  Capital by the Partners

  	
  23

  
	
  3.2

  	
  Additional Capital
  Contributions

  	
  24

  
	
  3.3

  	
  Capital Accounts

  	
  25

  
	
  3.4

  	
  Capital Commitments to be
  Ongoing

  	
  26

  
	
  3.5

  	
  No Interest Payable on
  Accounts

  	
  26

  
	
  3.6

  	
  Negative Balance of
  Capital or in Capital Accounts

  	
  26

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 4

  	
   

  
	
   

  	
  CASH MANAGEMENT, DISTRIBUTIONS AND INCOME
  ALLOCATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Purchase Discount Amount

  	
  26

  
	
  4.2

  	
  Rental Account

  	
  26

  
	
  4.3

  	
  Vehicle Account

  	
  29

  



 


i

















 


	
  4.4

  	
  VAT Account

  	
  30

  
	
  4.5

  	
  Periodic Allocation of Net
  Income

  	
  30

  
	
  4.6

  	
  Periodic Allocation of Net
  Loss

  	
  31

  
	
  4.7

  	
  Fiscal Period Allocation
  of Net Income or Net Loss

  	
  31

  
	
  4.8

  	
  Allocation of Taxable
  Income

  	
  32

  
	
  4.9

  	
  Allocation of Tax Loss

  	
  32

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 5

  	
   

  
	
   

  	
  BUSINESS AND OPERATIONS OF THE PARTNERSHIP

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Authority of the General
  Partner

  	
  32

  
	
  5.2

  	
  Powers and Duties of
  General Partner

  	
  33

  
	
  5.3

  	
  Restrictions on Operations
  and Activities

  	
  36

  
	
  5.4

  	
  Program Negotiation
  Vehicles

  	
  37

  
	
  5.5

  	
  Commingling of Partnership
  Assets

  	
  38

  
	
  5.6

  	
  Fees of the General
  Partner

  	
  38

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 6

  	
   

  
	
   

  	
  BOOKS AND RECORDS AND PROVISION OF INFORMATION

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Books of Account

  	
  38

  
	
  6.2

  	
  Annual Report and Income
  Tax Information

  	
  38

  
	
  6.3

  	
  Fleet Reports

  	
  39

  
	
  6.4

  	
  Status Reports

  	
  39

  
	
  6.5

  	
  Financial Reports of the
  General Partner

  	
  39

  
	
  6.6

  	
  Repurchase Agreements

  	
  39

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 7

  	
   

  
	
   

  	
  PARTNERSHIP GOVERNANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Powers Exercisable by the
  Limited Partner

  	
  39

  
	
  7.2

  	
  Amendment to Partnership
  Agreement

  	
  40

  
	
  7.3

  	
  Assignment of Partnership
  Interests

  	
  40

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 8

  	
   

  
	
   

  	
  SUSPENSION EVENTS, TERMINATION EVENTS AND DURATION
  OF PARTNERSHIP

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Term of Partnership

  	
  41

  
	
  8.2

  	
  Termination Events

  	
  41

  
	
  8.3

  	
  Effect of a Termination
  Event

  	
  43

  
	
  8.4

  	
  Additional General Partner

  	
  44

  
	
  8.5

  	
  Certain Purchase Rights of
  the General Partner

  	
  45

  
	
  8.6

  	
  Distribution of Proceeds
  of Winding Up

  	
  48

  
	
  8.7

  	
  Negative Balance in
  Capital Account of General Partner

  	
  50

  
	
  8.8

  	
  Return of Capital

  	
  50

  
	
  8.9

  	
  Dissolution of Partnership

  	
  50

  



 


ii

















 


	
   

  	
  ARTICLE 9

  	
   

  
	
   

  	
  INDEMNIFICATION

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Indemnification by the
  General Partner

  	
  50

  
	
  9.2

  	
  Notification of Potential
  Liability

  	
  51

  
	
  9.3

  	
  Litigation

  	
  51

  
	
  9.4

  	
  Tax Indemnity

  	
  52

  
	
  9.5

  	
  Tax Credit

  	
  52

  
	
  9.6

  	
  Survival

  	
  53

  
	
  9.7

  	
  Change in Circumstances

  	
  53

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 10

  	
   

  
	
   

  	
  GENERAL

  	
   

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Notices

  	
  55

  
	
  10.2

  	
  Limited Partner Not a
  General Partner

  	
  57

  
	
  10.3

  	
  Limitation of Liability
  and Capacity

  	
  57

  
	
  10.4

  	
  Counterparts

  	
  57

  
	
  10.5

  	
  Binding Effect

  	
  57

  



 


iii

















 


DWPV Draft of October 10, 2003


 


NT LIMITED PARTNERSHIP


 


FOURTH AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT


 


THIS
AGREEMENT made as of the 13th day of March, 1997.


 


BETWEEN:


 




	
  NATIONAL
  CAR RENTAL (CANADA) INC.,

  
	
  a corporation incorporated
  under the Canada Business Corporations
  Act,

  
	
   

  
	
  (hereinafter called the “General Partner”),

  
	
   

  
	
  - and –

  
	
   

  
	
  1487792 ONTARIO INC.,

  
	
  a corporation incorporated
  under the Business Corporations Act (Ontario),

  
	
   

  
	
  (hereinafter called the “AGP”),

  
	
   

  
	
  - 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 CANADIAN MASTER TRUST, a trust established under the laws of the
  Province of Ontario,

  
	
   

  
	
  (hereinafter called the “Limited Partner”),

  






 


WHEREAS
the General Partner, the AGP and The Trust Company of Bank of Montreal, in its
capacity as trustee of Canadian Master Trust (the “Original Limited Partner”) have entered into a limited
partnership (the “Partnership”) under
the name “NT Limited Partnership” to carry on a business for profit, namely,
the ownership and rental (as lessor) of Vehicles;


 


AND
WHEREAS the General Partner and the Original Limited Partner entered into an
agreement (the “Original Agreement”) with effect as at and from March 13, 1997 for
the purposes of setting out the manner in which the business of the Partnership
was to be carried on and their relationship as partners was to be governed;


 


AND
WHEREAS the General Partner and the Original Limited Partner amended and
restated the Original Agreement on June 26, 1997 (the “Amended and Restated


 

















 


Agreement”) for the purposes of setting out more fully
their agreements with respect to the conduct of the business of the Partnership
and the governance of their relationship as Partners;


 


AND
WHEREAS the General Partner and the Original Limited Partner amended and
restated the Amended and Restated Agreement on May 22, 1998 (the “Second Amended and Restated Agreement”) for the purpose of
allowing the Partnership to buy Vehicles which are to be utilized by Alamo
Rent-A-Car (Canada), Inc. (“Alamo”), an
Affiliate of the General Partner in Alamo’s car rental business and to make
certain other related changes which were necessary or desirable;


 


AND
WHEREAS the AGP was appointed Additional General Partner on September 28, 2001;


 


AND
WHEREAS BNY Trust Company of Canada replaced The Trust Company of Bank of
Montreal as trustee of Canadian Master Trust on November 5, 2002;


 


AND
WHEREAS the General Partner, the AGP and the Limited Partner amended and restated
the Second Amended and Restated Agreement on November 20, 2002 (the “Third Amended and Restated Agreement”) for the purpose of
setting out more fully their agreements with respect to the conduct of the
business of the Partnership;


 


AND
WHEREAS the General Partner, the AGP and the Limited Partner have entered into
further amending agreements dated as of December 13, 2002, February 28, 2003,
March 31, 2003, June 25, 2003, July 10, 2003, August 27, 2003 and September 30,
2003, each amending the terms and conditions of the Third Amended and Restated
Agreement;


 


AND
WHEREAS the Partners now wish to amend and restate the Third Amended and
Restated Agreement for the purpose of setting out more fully their agreements
with respect to the conduct of the business of the Partnership and the
governance of their relationship as Partners and to make certain other related
changes which are necessary or desirable;


 


NOW
THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the respective
covenants and agreements hereinafter contained, the parties hereto covenant and
agree as follows:


 


ARTICLE 1


DEFINITIONS


 


1.1                          Definitions.


 


For
all purposes of this Agreement, except as otherwise expressly provided herein
or unless the context otherwise requires, the following terms have the
following meanings:


 


“Act” means the Limited Partnerships Act (Ontario);


 


“Additional Capital Contributions” means any funds, in addition to the Initial
Capital Contribution, contributed by a Partner to the Partnership as capital;


 


2

















 


“Additional General Partner” has the meaning ascribed thereto in Section
8.4;


 


“Affected Person” has the meaning ascribed thereto in section 9.7(b);


 


“Affiliate”
means, when used with reference to a specified Person, any Person who directly
or indirectly controls or is controlled by or is under common control with the
specified Person and for these purposes “control” means
the right to elect a majority of the board of directors of a Person that is a
corporation or the governing authority of a Person that is not a corporation,
whether through the ownership of voting securities or by contract or otherwise;


 


“Agreement”
means this fourth amended and restated agreement of limited partnership,
including the Schedules hereto, as it exists at the date hereof and as it may
from time to time be supplemented or amended as herein provided;


 


“AGP” means
1487792 Ontario Inc.;


 


“Alamo” means
Alamo Rent-a-Car (Canada), Inc.;


 


“Alamo Lease”
means the Lease made as of May 22, 1998 between the Partnership and Alamo
pursuant to which the Partnership leases certain Partnership Vehicles to Alamo;


 


“Amended and Restated Agreement” has the meaning ascribed thereto in the
recitals;


 


“Applicable Law” means all statutes, laws, by-laws, regulations, ordinances, orders,
rules and requirements of governmental or other public authorities having
jurisdiction, and all amendments thereto, at any time and from time to time in
force;


 


“Approved Dealers” means Vehicle dealers to whom Manufacturers sell new Vehicles for
resale;


 


“Asset Purchase Agreement” has the meaning ascribed thereto in the
Guarantee Letter;


 


“Assignment and Assumption Agreement” has the meaning ascribed thereto in section
8.5(a)(i);


 


“Auditors” means Ernst & Young LLP or any other national firm of chartered
accountants of recognized standing appointed by the General Partner as auditor
for the Partnership for the time being, whether or not such firm of chartered
accountants is regularly retained by the General Partner;


 


“Bank” means Bank of Montreal so long as it has a short-term debt rating of
R-l (middle) or higher from the Rating Agency provided that if Bank of Montreal
does not have a short term debt rating of R-l (middle) or higher then another
Canadian bank with a rating of R-l (middle) or higher from the Rating Agency;


 


“BMO Trust” means the trustee of the Limited Partner;


 


3

















 


“Business Day”
means any day other than a Saturday, a Sunday and a day when chartered banks
are not open for business in Toronto, Ontario;


 


“Canadian GAAP” means Canadian generally accepted accounting principles applicable to
the undertaking of the Partnership applied on a basis consistent with prior
periods;


 


“Capital Accounts” means the General Partner’s Capital Account and the Limited Partner’s
Capital Account;


 


“Capital Call”
has the meaning ascribed thereto in section 3.2;


 


“Chrysler”
means DaimlerChrysler AG and its Canadian Affiliates;


 


“Coverage Requirement”, in respect of any Estimation Period, means an amount equal to 10% of
the sum of estimated Depreciation, Net Loss on Dispositions and Income Share of
the Limited Partner for such Estimation Period; provided, however, that Coverage Requirement shall never be
less than zero and provided further that
if for any three out of twelve consecutive Settlement Periods the Estimation
Test exceeds zero, then thereafter the Coverage Requirement shall be equal to
the product of (a) the greater of (i) 10% and (ii) 150% of the largest
Estimation Test in the preceding 12 months and (b) the sum of estimated
Depreciation, Net Loss on Dispositions and Income Share of the Limited Partner
for such Estimation Period;


 


“Current Book Value” of a Partnership Vehicle at any time means its Original Book Value
less accumulated Depreciation at such time;


 


“Cut-off Time”
means 11:59 p.m. on the last day of an Estimation Period;


 


“Declaration”
means the declaration of partnership filed and recorded in respect of the
Partnership pursuant to the Act;


 


“Depreciation”,
when used in reference to a Partnership Program Vehicle, means the daily
depreciation charge set forth by an Eligible Manufacturer or Toyota Approved
Dealer in the Applicable Repurchase Agreement, provided
that in the absence of the aforementioned calculation the weighted
average rate of depreciation for the Repurchase Agreements then in place (and
in any event a rate of not less than 2.1% per month) on a straight line basis
on the Original Book Value of the Vehicle shall be used; when used in reference
to a Partnership Non-program Vehicle, “Depreciation” means depreciation at a
rate to be determined from time to time by the General Partner in accordance
with Canadian GAAP but in no event less than 2% per month on automobiles,
minivans and sport utility vehicles and 1.6% per month on trucks and vans;


 


“Dollar” or “$”, in respect of all
amounts referred to in this Agreement, unless otherwise expressly stated, shall
mean Canadian dollars;


 


“Eligible Investments” means, at any particular date, book-based securities, negotiable instruments
or securities maturing not later than the Business Day preceding the next


 


4

















 


succeeding
Settlement Date after such date represented by instruments in bearer or
registered form which evidence any of:


 


(a)                                  direct obligations of, or obligations fully
guaranteed as to the timely payment of principal and interest by, the
Government of Canada;


 


(b)                                 direct obligations of, or obligations fully
guaranteed as to the timely payment of principal and interest by, the
government of a province of Canada;


 


(c)                                  direct obligations of, or obligations fully
guaranteed as to the timely payment of principal and interest by banks or trust
companies chartered or licensed under the laws of Canada or any province
thereof which bank or trust company has a short- term debt rating from the
Rating Agency of at least R-l (middle);


 


(d)                                 commercial paper and any other securities
having, at the time of the investment or contractual commitment to invest
therein, a rating of at least R-l (middle) from the Rating Agency;


 


(e)                                  notes issued and bankers’ acceptances
accepted by, overnight repurchase agreements with and call loans to, any bank
or trust company referred to in (c) above;


 


(f)                                    any security having a rating of at least R-1
(middle) from the Rating Agency;


 


(g)                                 term deposits with an entity, the short term
debt or deposits of which have a rating of at least R-l (middle) from the
Rating Agency; and


 


(h)                                 any other class of investments approved in
writing by the Rating Agency (other than those set out in (a) to (g) above),


 


provided, however, that the aggregate amount of Eligible Investments that may be
represented by the securities of any single issuer (other than obligations of
or fully guaranteed by the Government of Canada) shall not exceed the greater
of (i) $1 million and (ii) 10% of total Eligible Investments. For greater
certainty, if otherwise qualified in accordance with the foregoing clauses of
this definition, securities of the Limited Partner, the Securitization Agent,
the Bank and any Affiliate of the foregoing are Eligible Investments;


 


“Eligible Manufacturer” means a Manufacturer (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, or (b) if its unsecured long term debt is not so rated, where the
General Partner has at its own expense obtained credit enhancement satisfactory
in form, source and amount to the Securitization Agent and the Rating Agency in
respect of the credit exposure to the Partnership represented by Repurchase
Agreements with that Manufacturer;


 


“Estimation Date” means Wednesday in each week or if such day is not a Business Day, then
the next succeeding Business Day;


 


5

















 


“Estimation Period” in respect of any Estimation Date means the period from and including
the previous Estimation Date to and including the day immediately preceding
such Estimation Date; provided, however,
that where an Estimation Period would otherwise include days included within a
Settlement Period that has ended prior to such Estimation Date, then the
Estimation Period will not include such days;


 


“Estimation Report” means a weekly report substantially in the form of Schedule B provided
by the General Partner to the Limited Partner;


 


“Estimation Test” in respect of any Settlement Period means the result (expressed as a
percentage) of the following calculation (but never less than zero):


 


([DS + LDS - GDS] - A) ÷
A,


 


where:


 


A
equals [(DE + NLDE) ÷ NE] x NS;


 


DE
means the aggregate estimated Depreciation for the Estimation Periods falling
within such Settlement Period;


 


NLDE
means the aggregate estimated Net Loss on Dispositions for the Estimation Periods
falling within such Settlement Period;


 


NE
means the aggregate number of days in such Estimation Periods;


 


NS
means the number of days in such Settlement Period;


 


DS
means Depreciation within such Settlement Period;


 


LDS
means Loss on Dispositions within such Settlement Period; and


 


GDS
means Gain on Dispositions within such Settlement Period;


 


“Expenses”
means the aggregate of all costs and expenses of the Partnership, including:


 


(a)                                  all Organizational Expenses and expenses
incurred to maintain the registrations or qualifications of the Partnership
under Applicable Law or to obtain or maintain exemptions under such laws;


 


(b)                                 all applicable Taxes;


 


(c)                                  all costs and expenses of, or incidental to,
the preparation and dispatch to Partners of all cheques, reports, circulars,
financial statements, forms and notices, and any other documents which in the
opinion of the General Partner acting reasonably are necessary or desirable in
connection with the business and administration of the Partnership;


 


6

















 


(d)                                 all costs and expenses incidental to the
preparation of amendments to this
Agreement as referred to in section 7.2;


 


(e)                                  any costs and expenses of litigation
involving the Partnership and the amount of any judgment or settlement paid in
connection therewith, excluding, however, the costs and expenses of litigation,
judgment or settlement in which the conduct of the General Partner is found to
have violated the standard of conduct required by section 5.2, the costs and
expenses of such litigation, judgment or settlement being for the personal
account of the General Partner;


 


(f)                                    audit fees of the Partnership; and


 


(g)                                 any other costs and expenses in connection
with the administration of the Partnership
that may be authorized by this Agreement;


 


“Fiscal Period” means
the fiscal period of the Partnership as determined in accordance with section
2.5;


 


“Fleet Report”
means a report concerning the Partnership Vehicles substantially in the form of
Schedule C;


 


“Ford” means
Ford Motor Company and its Canadian Affiliates;


 


“Franchisees”
means Persons (other than the Partnership) licensed by the General Partner and
its Affiliates to carry on in Canada the business of renting Vehicles using the
name “National” or “Tilden” or the logo of National Interrent;


 


“GP Financial Statements” means the balance sheet of the General
Partner as at June 30, 2003 and the statements of income, retained earnings and
sources and application of funds for the period beginning April 1, 2003 and ending
June 30, 2003;


 


“Gain on Dispositions” for any period means the amount, if any, by which Proceeds of
Disposition received by the Partnership in such period exceeds the Current Book
Value of the subject Vehicles;


 


“General Motors”
means General Motors Corporation and its Canadian Affiliates;


 


“General Partner” means National Car Rental (Canada) Inc.;


 


“General Partner’s Capital Account” has the meaning ascribed thereto in section
3.3(b);


 


“General Partner’s Capital Commitment” has the meaning ascribed thereto in section
3.2(d);


 


“Grossed-Up Payment” has the meaning ascribed thereto in section
9.5;


 


“Gross-Up”
has the meaning ascribed thereto in section 9.5;


 


7

















 


“GST” means
all amounts payable pursuant to section 165(1) of the Excise Tax Act (Canada);


 


“Guarantee Letter” means the letter dated October 14, 2003 from Vanguard to the Limited
Partner and the Partnership as amended from time to time;


 


“Hedging Transaction” means any rate swap transaction, basis swap,
forward rate transaction, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rats swap transaction, currency option or any
similar transaction (including any option with respect to any of these
transactions) or any combination of such transactions;


 


“HST”
means all amounts payable pursuant to section 165(2) of the Excise Tax Act (Canada);


 


“Income Share of the Limited Partner” means the amount, expressed in dollars for
the Estimation Period or the Tranche Period, as the case may be, equal to the
sum of (a) the Purchase Discount Amount, plus (b) the Program Fee, all in
respect of such period;


 


“Indemnified Amounts” has the meaning ascribed thereto in section
9.1;


 


“Indemnified Parties” has the meaning ascribed thereto in section 9.1;


 


“Initial Capital Contribution” means the amounts contributed by the
Partners to the Partnership pursuant to section 3.1;


 


“Insolvency Legislation” means the Bankruptcy and Insolvency
Act (Canada), the Companies’
Creditors Arrangement Act (Canada) and any other Applicable Law
under which indebtedness may be compromised;


 


“Limited Partner” means The Trust Company of Bank of Montreal in its capacity as trustee
of Canadian Master Trust;


 


“Limited Partner’s Capital Account” has the meaning ascribed thereto in section
3.3(c);


 


“Limited Partnership Interest” means the interest of the Limited Partner in the Partnership;


 


“Liquidity Agent” has the meaning ascribed thereto in section 9.7(b);


 


“Liquidity Agreement” means the agreement dated December 15, 1995 between BMO Trust, the
banks and other financial institutions whose names appear on Schedule I to such
agreement and the Bank, as such agreement may be amended from time to time;


 


“Long Option Closing Date” has the meaning ascribed thereto in section 8.5(c);


 


“Long Option Purchase Price” has the meaning ascribed thereto in section 8.5(c);


 


8

















 


“Loss on Dispositions” for any period means the amount, if any, by
which Proceeds of Disposition received by the Partnership in such period is
less than the Current Book Value of the subject Vehicles and, when a Vehicle is
written off as a result of theft, fire, accident or act of God, the amount of
the write-off;


 


“Manufacturer” means
any of Chrysler, Ford, General Motors, Toyota and any additional manufacturer
of Vehicles approved from time to time by the Securitization Agent and the
Rating Agency;


 


“Moody’s” means Moody’s Investor Services, Inc.;


 


“National System” means National Car Rental System (Canada) Inc., a corporation
incorporated under the Canada Business
Corporations Act;


 


“Net Income” or “Net Loss”, in respect
of any period, means, respectively, the net income or net loss of the
Partnership in respect of such period, as determined in accordance with
Canadian generally accepted accounting principles applied on a basis consistent
with prior periods;


 


“Net Loss on Dispositions”, in respect of any Estimation Period, means the sum of:


 


(NLDp x VDP) +
(NLDNP x VDNP)


 


where:


 


NLDNP
means the greatest NLSPNP in the last twelve consecutive Settlement
Periods (or, in the first year of the Partnership’s operations, consecutive
Settlement Periods plus consecutive calendar months starting not earlier than September
1996 so that the total equals twelve or, until September 1997, the smaller
number available);


 


NLDP
means the greatest NLSPP in the last twelve consecutive Settlement
Periods (or, in the first year of the Partnership’s operations, consecutive
Settlement Periods plus consecutive calendar months starting not earlier than
September 1996 so that the total equals twelve or, until September 1997, the
smaller number available);


 


VDP
means the number of Partnership Program Vehicles that the General Partner
estimates have been disposed of in such Estimation Period;


 


NLSPP
means the quotient of (i) Loss on Dispositions less Gain on Dispositions for
all Partnership Program Vehicles disposed of within a Settlement Period divided
by (ii) the number of Partnership Program Vehicles disposed of within such
Settlement Period, provided, however,
that NLSPP shall not be less than zero;


 


NLSPNP
means the quotient of (i) Loss on Dispositions less Gain on Dispositions for
all Partnership Non-program Vehicles disposed of within a Settlement Period


 


9

















 


divided
by (ii) the number of Partnership Non-program Vehicles disposed of within such
Settlement Period, provided, however, that NLSPNP shall not
be less than zero; and


 


VDNP
means the number of Partnership Non-program Vehicles that the General Partner
estimates have been disposed of in such Estimation Period;


 


“Normal Course Termination Date” means the Partnership Termination Date;


 


“Notes” means
short-term debt obligations of the Limited Partner with a maximum weighted
average 42 days until maturity issued by the Limited Partner
from time to time to fund the Limited Partner’s Capital Account;


 


“Option Purchase Price” has the meaning ascribed thereto in section
8.5;


 


“Organizational Expenses” means all fees, costs and expenses incurred
in respect of the formation and organization of the Partnership and its
registration and qualification under Applicable Law;


 


“Original Agreement” has the meaning ascribed thereto in the
recitals;


 


“Original Book Value” of a Partnership Vehicle means the full cash purchase price to the
Partnership of such Vehicle, without any allowance for trade-in of a Vehicle
and without deduction for cash allowances or rebates from the Manufacturer
unless such cash allowances or rebates reduce the purchase price of Vehicles
under tine relevant Repurchase Agreement, in which case Original Book Value
shall be reduced by the amount of such allowance or rebate. For greater
certainty, “full cash purchase price” does not include VAT but does include, if
applicable, up to but not in excess of $500 per Vehicle in aggregate for dealer
mark-up, pre-delivery inspection, air conditioning tax, weight tax, battery
tax, “gas guzzler” tax and other similar costs and taxes. Where a Partnership
Vehicle has been purchased from a Franchisee or, pursuant to the Assignment and
Assumption Agreement, from the General Partner, “Original Book Value” for
purposes of calculating Depreciation means the full cash purchase price to the
Franchisee or the General Partner, as the case may be;


 


“Partners”
means the General Partner, the AGP and the Limited Partner;


 


“Partnership”
means NT Limited Partnership, a partnership organized under the laws of the
Province of Ontario as a limited partnership;


 


“Partnership Interest Long Option Notice” has the meaning ascribed thereto in section
8.5(c);


 


“Partnership Interest Short Option Notice” has the meaning ascribed thereto in section
8.5(b);


 


“Partnership Non-program Vehicle” means a Partnership Vehicle that is not a
Partnership Program Vehicle;


 


10

















 


“Partnership Program Vehicle” means a Partnership Vehicle eligible for
repurchase under a Repurchase Agreement;


 


“Partnership Termination Date” means September 30, 2005;


 


“Partnership Vehicle” means a Vehicle owned by the Partnership;


 


“Person” includes an individual, corporation, partnership, joint venture,
association, syndicate, trust, unincorporated organization or other entity or
any trustee, executor, administrator or other legal representative;


 


“PNV Excess” has the meaning ascribed thereto in section 5.4(d);


 


“Prime Rate” means the fluctuating annual interest rate which, on any day, shall be
equal to the rate of interest most recently established by Bank of Montreal at
its head office in Toronto, Ontario as its reference rate of interest for the
purpose of determining interest rates it will charge on that day for demand
loans made in Canada in Canadian dollars to its Canadian commercial customers
and which it refers to as its “prime rate”;


 


“Proceeds of Disposition” means the cash or other monetary
consideration received by the Partnership from the sale of Partnership Vehicles
or from insurance in respect of Partnership Vehicles written off by the
Partnership as a result of theft, fire, accident or act of God;


 


“Program Amount” means (i)
from the date hereof up to and including the earlier of the Partnership
Termination Date or the occurrence of a Termination Event, $500,000,000 and
(ii) during the period from and after the earlier of the Partnership
Termination Date or the occurrence of a Termination Event to and including the
date that the business of the Partnership is wound up in accordance with
section 8.3(f) this Agreement, zero;


 


“Program Fee” means, unless and
until a Termination Event shall occur, three-quarters of one per cent (0.75%)
per annum of the amount of Notes outstanding, and, if a Termination Event shall
occur, means, from the date of such occurrence until the Partnership has been
dissolved, one per cent (1.0%) per annum of the amount of Notes outstanding at
the date of such occurrence;


 


“Program Negotiation Vehicle” has
the meaning ascribed thereto in section 5.4(a);


 


“Purchase Discount Amount” means, for
any Estimation Period or Tranche Period, the sum of (a) the Utilization Fee and
(b) the product of (i) the proceeds from the issuance of the Notes outstanding
in such Estimation Period or Tranche Period (whichever is applicable), (ii) to
the extent the relevant Notes were issued on or prior to October 14, 2003, the
Prime Rate on the first day of the relevant period, and to the extent the
relevant Notes are issued after such date, the weighted average discount rate
at which the Notes were issued, plus the applicable Program Fee, and (iii) the
ratio obtained by dividing the weighted average number of days the Notes were
outstanding during such Estimation Period or Tranche Period (whichever is
applicable) by 365;


 


11

















 


“Purchase Option Notice” has the meaning ascribed thereto in section
8.5;


 


“QST”
means all amounts payable pursuant to an act
respecting Quebec Sales Tax;


 


“Qualified PMSI” means a purchase money security interest (“PMSI”) in a Partnership Vehicle granted by the Partnership
to, or reserved by, an Approved Dealer or Manufacturer (a “holder”) under terms
that the PMSI will expire automatically upon payment by the Partnership to the
holder of the full cash purchase price of the Vehicle, which payment must be
made according to the agreement under which the PMSI arises within 21 days of
the date when the PMSI arose;


 


“Rating Agency”
means Dominion Bond Rating Service Limited and its successors and, at any
particular time after the date hereof, may include any other nationally
recognized credit rating agency or agencies then authorized by the
Securitization Agent to rate securities issued by the Limited Partner;


 


“Rental Account” has the meaning ascribed thereto in section 4.2(a);


 


“Rental Revenues” means monetary receipts (other than sales, value added and other
similar Taxes collected on behalf of a governmental authority) from the rental
or lease of Partnership Vehicles, the provision of other services by the
Partnership and income from Eligible Investments, whether in the form of
remittances from credit card or debit card issuers, cash payments, bank drafts,
cheques, wire transfers or otherwise;


 


“Repurchase Agreement” means an agreement between an Eligible
Manufacturer or a Toyota Approved Dealer and the Partnership pursuant to which
the Eligible Manufacturer or Toyota Approved Dealer is obligated to purchase
Partnership Vehicles from the Partnership on terms and conditions not
materially less advantageous to the Partnership man the Repurchase Agreement
for 2003 model year Vehicles as in effect between the particular Manufacturer
or Toyota Approved Dealer and the Partnership;


 


“Repurchase Closing Date” has the meaning ascribed thereto in section 8.5;


 


“S&P” means Standard & Poors Ratings Group;


 


“Second Amended and Restated Agreement” has the meaning ascribed thereto in the
recitals;


 


“Securitization Agent” means BMO Nesbitt Burns Inc.;


 


“Servicer” has the meaning ascribed thereto in section 8.4(d);


 


“Settlement Date” means the eleventh day of each calendar month (or, if such day is not
a Business Day, the next Business Day);


 


“Settlement Period” in respect of any Settlement Date means the most recently completed
calendar month prior to a Settlement Date;


 


12

















 


“Settlement Report” means a monthly report substantially in the form of Schedule D
provided by the General Partner to the Limited Partner;


 


“Short Option Closing Date” has the meaning ascribed thereto in section 8.5(b);


 


“Short Option Purchase Price” has the meaning ascribed thereto in section 8.5(b);


 


“Suspension Event” means the existence of either one or both of the following conditions
with respect to the Partnership:


 


(a)                                  the ratio for the most recently completed
Settlement Period for which the Settlement Date has occurred of Rental Revenues
to the sum of (i) Income Share of the Limited Partner, (ii) Depreciation and
(iii) Loss on Dispositions, minus (iv) Gain on Dispositions is less than 1.5:1;


 


(b)                                 as at the first day after the end of a
Settlement Period the General Partner’s Capital Account is in an amount less
than the General Partner’s Capital Commitment;


 


“Tangible Net Worth”, means, at any date (i) the sum of (A) the aggregate of the amount
which would, in accordance with Canadian GAAP, be classified on the balance
sheet of General Partner as shareholders’ equity and (B) any money owed by the
General Partner by virtue of any subordinated loans and advances which are not
repayable before the date on which the Partnership has been wound-up in
accordance with section 8.3(f), minus (ii) the sum of (A) the aggregate of
franchises, licenses, permits, patents, patent applications, copyrights, trade
marks, trade names, brand names, service marks, goodwill, experimental or
organizational expenses and other like intangibles, including any intangible assets,
which would, in accordance with Canadian GAAP, be classified as the balance
sheet of the General Partner as intangible assets; and (B) the amount of any
loans or investments in an Affiliate of the General Partner;


 


“Tax” or “Taxes” includes all present and future taxes, surtaxes,
duties, levies, imposts, rates, fees, assessments, withholdings and other
charges of any nature (including income, corporate, capital (including large
corporations), net worth, sales, consumption, use, transfer, goods and services,
value-added, stamp, registration, franchise, withholding, payroll, employment,
health, education, excise, business, school, property, occupation, customs,
anti-dumping and countervail taxes, surtaxes, duties, levies, imposts, rates,
fees, assessments, withholdings and other charges) imposed by any national,
federal, provincial, territorial, state, colonial, municipal, local, foreign or
other governmental authority, together with any penalties, fines, interest or
other additions on, to, in lieu of, for non-collection of or in respect of such
taxes, surtaxes, duties, levies, imposts, rates, fees, assessments,
withholdings and other charges;


 


“Taxable Income”
or “Tax Loss”, in respect of any Fiscal
Period means, respectively, the amount of net income or loss of the Partnership
for such period as determined by the General Partner (and reviewed by the
Auditors) in accordance with the provisions of the Income Tax Act (Canada) (including the amount of the taxable
capital gain or allowable capital loss from the disposition of each capital
property of the Partnership as determined


 


13

















 


by
the General Partner in accordance with the provisions of the Income Tax Act (Canada));


 


“Tax Credit”
has the meaning ascribed thereto in section 9.5;


 


“Temporary GP Contributions” means amounts contributed to the Partnership by the General Partner on
a temporary basis from time to time pending Capital Calls to fund the purchase
of Partnership Vehicles up to the Original Book Value of such Vehicles and not
required to make the General Partner’s Capital Account equal in value to the
General Partner’s Capital Commitment;


 


“Termination Event” has the meaning ascribed thereto in section 8.2;


 


“Toyota”
means Toyota Canada Inc. and its United States and Japanese Affiliates;


 


“Toyota Approved Dealer” means a dealer selected by Toyota Canada Inc. and approved by the
General Partner in accordance with its credit policies to whom Toyota sells new
Vehicles for resale;


 


“Tranche Period”
means the period beginning on the third day after a Settlement Date and ending
on the second day after the following Settlement Date; provided, however, that the first Tranche
Period shall begin on the date the Assignment and Assumption Agreement is
entered into and end on the second day after the first Settlement Date;


 


“Underlying Obligation” has the meaning ascribed thereto in section 8.2(h);


 


“Utilization Fee” means a fee equal to the product of (a) prior to the occurrence of a
Termination Event, 0.20% and, if a Termination Event shall have occurred, 0.25%
multiplied by the number of days in the most recently completed Tranche Period
divided by 365; and (b) the difference between (X) the Program Amount; and (Y)
average principal amount of Notes outstanding during the most recently
completed Tranche Period;


 


“Vanguard”
means Vanguard Car Rental USA Holdings Inc. a Delaware corporation;


 


“VAT” means
collectively, GST, HST and QST and any amounts payable under any similar
value-added Tax legislation in any jurisdiction in Canada;


 


“VAT Account” has
the meaning ascribed thereto in section 4.4;


 


“Vehicle”
means an automobile, minivan, sport utility vehicle, truck or van having an
Original Book Value not greater than $65,000, in the case of automobiles,
minivans and sport utility vehicles and $80,000 in the case of trucks and vans;


 


“Vehicle Account” has the meaning ascribed thereto in section 4.3(a); and


 


“Vehicle Rental Agreements” means the agreements pursuant to which the General Partner, as agent
for an undisclosed principal, rents Partnership Vehicles to retail


 


14

















 


commercial
and leisure customers, substantially in the form of the agreements used by the
General Partner for such purposes prior to the date hereof.


 


1.2                          Other
Rules of Interpretation.


 


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


 


(a)                                  any reference to a designated “Article”, “section”
or other subdivision or to a “Schedule” is to the designated Article, section
or other subdivision of or Schedule to this Agreement;


 


(b)                                 the words “herein”, “hereof” and “hereunder”
and other words of similar import refer to this Agreement as a whole and not to
any particular Article, section or other subdivision of or Schedule to this
Agreement;


 


(c)                                  the headings are for convenience of reference
only and do not form part of this Agreement and are not intended to interpret,
define or limit the scope, extent or intent of this Agreement or any provision
hereof;


 


(d)                                 the word “including” is not to be construed
to limit a general statement, term or matter to the items set forth following
such word but rather refers to all other items or matters that could reasonably
fall within the scope of such general statement, term or matter;


 


(e)                                  any reference herein to a particular
percentage of Partnership Vehicles is a reference to a percentage of the
aggregate Current Book Value of such Vehicles at the relevant time and not to a
percentage of the number of such Vehicles;


 


(f)                                    all accounting terms not otherwise defined
herein have the meanings assigned to them by, and all calculations to be made
hereunder are to be made in accordance with Canadian GAAP as it may exist from
time to time;


 


(g)                                 any reference to a statute is a reference to
such statute and to the regulations made pursuant thereto, with all amendments
made thereto and in force from time to time, and to any statute or regulations
that may be passed which have the effect of supplementing or superseding such statute
or regulations;


 


(h)                                 any reference to an entity is also a
reference to any entity that is a successor to such entity, provided that all
restrictions on assignability and transfer set forth herein are complied with;


 


(i)                                     any reference to an “approval”, “authorization”
or “consent” of a party means the written approval, written authorization or
written consent of such party; and


 


(j)                                     words importing the masculine gender include
the feminine or neuter gender and words in the singular include the plural, and
vice versa.


 


15

















 


1.3                          Strict
Performance of Covenants.


 


The
failure of any party to seek redress for a violation of, or to insist upon
strict performance of, any provision hereof shall not prevent a subsequent act,
which would have originally constituted a violation of such provision or any
other provision hereof, from having the effect of an original violation of such
provision or any other provision hereof.


 


1.4                          Governing
Law.


 


This
Agreement and the application or interpretation hereof shall be governed
exclusively by its terms and by the laws of the Province of Ontario and each
Partner irrevocably attorns to the jurisdiction of the courts of the Province
of Ontario.


 


1.5                          Time.


 


Time shall be of the essence hereof.


 


1.6                          Schedules.


 


The following are the Schedules to this Agreement:


 


	
  Schedule A

  	
   

  	
  -

  	
   

  	
  Form of Capital Call

  
	
  Schedule B

  	
   

  	
  -

  	
   

  	
  Form of Estimation Report

  
	
  Schedule C

  	
   

  	
  -

  	
   

  	
  Form of Fleet Report

  
	
  Schedule D

  	
   

  	
  -

  	
   

  	
  Form of Settlement Report

  
	
  Schedule E

  	
   

  	
  -

  	
   

  	
  Insurance

  
	
  Schedule F

  	
   

  	
  -

  	
   

  	
  Form of Vehicle Rental
  Agreement

  
	
  Schedule G

  	
   

  	
  -

  	
   

  	
  Form of Agreement Under
  Subsection 7.3

  



 


ARTICLE 2


FORMATION OF PARTNERSHIP

AND RELATIONSHIP BETWEEN PARTNERS


 


2.1                          Formation.


 


The
Partners hereby confirm the establishment of a limited partnership under the
Act. The rights, restrictions and liabilities of the Partners shall be as
provided in the Act except as herein otherwise expressly provided.


 


2.2                          Name.


 


The
name of the Partnership shall be “NT Limited Partnership” or such other name or
names as the General Partner may from time to time deem appropriate to comply
with the laws of any jurisdiction in which the Partnership may carry on
business. The Partnership may use as a French language name “NT Société en
Commandité”.


 


16

















 


2.3                          Business of Partnership.


 


The
Partnership shall carry on the business of (i) purchasing, owning and renting
Vehicles throughout Canada, (ii) selling Vehicles that it has owned as rental
Vehicles, (iii) leasing Vehicles to Alamo pursuant to the Alamo Lease, and (iv)
if approved by the Rating Agency, leasing Vehicles to Franchisees. The
Partnership shall be further authorized to exercise all powers ancillary and
incidental thereto or reasonably in furtherance thereof and
not specifically excluded by the terms of this Agreement. The Partnership shall
not carry on any business not permitted by this section 2.3.


 


2.4                          Principal
Place of Business.


 


The
principal place of business of the Partnership shall be 280 Attwell Drive,
Etobicoke, Ontario M9W 5B2 or such other address within the Province of Ontario
as the General Partner, after giving not less than 30 days’ notice to the
Limited Partner, may designate.


 


2.5                          Fiscal
Period.


 


The
first Fiscal Period of the Partnership shall commence on March 13, 1997 and end
on December 31, 1997 and thereafter each Fiscal Period shall commence on
January 1 and end on December 31 of each calendar year or such other date as
determined by the General Partner and approved by the Limited Partner.


 


2.6                          Representation and Warranties of General
Partner.


 


The
General Partner represents and warrants to the Limited
Partner that:


 


(a)                                  each of the General Partner and National
System is a corporation incorporated and subsisting under the Canada Business Corporations Act, the
General Partner is qualified to carry on business in each of the provinces of
Canada and National System is qualified to carry on business in each of the
provinces of Canada where it owns assets;


 


(b)                                 the General Partner has full power and
authority to execute this Agreement and all other agreements contemplated
hereby required to be signed by it, to act as the General Partner and to
perform its obligations under this Agreement and such execution and the
performance of such obligations have been duly authorized by all necessary
action of the General Partner and do not and shall not conflict with Applicable
Law, do not and shall not conflict with or constitute a default or accelerate
obligations under any agreement, contract, instrument or indenture by which the
General Partner is bound and do not and shall not result in the creation of any
lien, charge or encumbrance on or over any of the General Partner’s assets;


 


(c)                                  this Agreement has been duly authorized,
executed and delivered by the General Partner and constitutes a legal, valid
and binding obligation of the General Partner enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency and
other laws affecting the enforcement of creditors’


 


17

















 


rights
generally and the fact that the grant of equitable remedies is within the
discretion of a court of competent jurisdiction;


 


(d)                                 there are no actions, suits, proceedings or
investigations commenced or, to the knowledge of the General Partner after due
inquiry, contemplated or threatened against or affecting the General Partner or
National System 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
Agreement or which can reasonably be expected to have a material adverse effect
on the ability of the General Partner to carry out its obligations hereunder;


 


(e)                                  the GP Financial Statements have been
prepared in accordance with Canadian generally accepted accounting principles
applied on a basis consistent with prior periods and present fairly and disclose
in all material respects the financial condition, assets and liabilities of the General Partner as at the respective
dates of the GP Financial Statements and the sales, earnings and results of
operations for the General Partner for the respective periods covered by the GP
Financial Statements; there has been no material adverse change in the results
of operations, financial position or condition of the General Partner since the
date of the most recent balance sheet forming part of the GP Financial Statements;


 


(f)                                    the General Partner does not have any
material obligations or liabilities of any kind whatsoever, whether accrued,
contingent or otherwise, other than:


 


(i)                                     obligations or liabilities disclosed on,
reflected in or provided for in the GP Financial Statements; and


 


(ii)                                  obligations or liabilities incurred in the
ordinary course of business of the General Partner since June 30, 2003, none of
which has been materially adverse to the nature of the General Partner’s
business, results of operations, assets, financial position or condition;


 


(g)                                 each of the General Partner and National
System has conducted and is conducting its business in compliance with all
Applicable Law 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 so to conduct its business or to
have such licenses, permits, registrations or qualifications could not
reasonably be expected to have a material adverse effect on the ability of the
General Partner to carry out its obligations hereunder;


 


(h)                                 the General Partner has provided to the
Limited Partner a list of all business premises from which the General Partner
carries on the business of renting Vehicles and the General Partner or National System has a valid leasehold or
fee interest in all such premises (or license in the case of premises at
certain airports)


 


18

















 


and
neither the General Partner nor National System nor the lessor, sub-lessor or
licensor of such premises, as the case may be, is in breach of any material
provision of any
agreement pursuant to which the General Partner occupies any such premises;


 


(i)                                     the General Partner’s communications and
computer systems are adequate for the conduct of the Partnership’s business and
the use thereof by the General Partner does not infringe the rights of any
other Person;


 


(j)                                     the General Partner is not experiencing any
strike, work stoppage, slow-down or other material interference with or
impairment of its business by labour, and, to the General Partner’s knowledge,
no such strike, work stoppage, slow-down or other material interference or
impairment is threatened; the General Partner is not a party to or the subject
of any unfair labour practice complaint and is not a party to or the subject of
any prosecution, order or complaint relating to employment standards or human
rights before any governmental agency; the earliest date at which any
collective bargaining agreement covering more than 50 of the General Partner’s
employees expires is November 30, 2003;


 


(k)                                  the casualty loss and third party liability
insurance carried by the General Partner in respect of its business, business
premises and Vehicles is as described in Schedule E; such insurance is provided
by third party underwriters whose outstanding long term unsecured debt that is
rated not lower than A (low) or the equivalent by as many of the Rating Agency,
S&P and Moody’s as rate it or, if such debt is not rated by at least one of
the Rating Agency, S&P and Moody’s, whose profitability ranking has the
highest rating from T.R.A.C. Insurance Services Ltd.;


 


(1)                                  neither the General Partner nor National
System is insolvent and neither of them has: (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, or (viii) had any unsatisfied judgment outstanding against it for
more than 15 days;


 


(m)                               the General Partner and National System are
directly or indirectly wholly owned and controlled by Vanguard; and


 


(n)                                 the General Partner is not a “non-resident” of Canada for purposes of
the Income Tax Act (Canada).


 


19

















 


2.7                          Title
to Partnership Assets.


 


Title
to the assets of the Partnership, whether real, personal or mixed and whether
tangible or intangible, shall be deemed to be owned by the Partnership as an
entity, and no Partner, individually or collectively, shall have any ownership
interest in such Partnership assets or any portion thereof. Title to any or all
of the assets of the Partnership shall be held in the name of the Partnership,
unless prohibited by Applicable Law, in which case the assets of the
Partnership may be held in the name of the Limited Partner or the General
Partner, as the Partnership may determine. Each of the General Partner and the
Limited Partner hereby declares and warrants that any Partnership assets for
which legal title is held in the name of the General Partner or the Limited
Partner, as the case may be, shall be held by the General Partner or the
Limited Partner, respectively, as agent in trust for the Partnership for the
use and benefit of the Partnership in accordance with the provisions of this Agreement.
All assets of the Partnership shall be recorded as property of the Partnership
on its books and records, irrespective of the name in which legal title to such
Partnership assets is held.


 


2.8                          Covenants
of General Partner.


 


The
General Partner covenants and agrees with the Limited Partner that:


 


(a)                                  the General Partner shall maintain its
corporate existence and that of National System in good standing;


 


(b)                                 the General Partner shall in the conduct of
the Partnership’s business comply with all Applicable Law and obtain and
maintain in good standing all licences, permits, qualifications and approvals
from any and all governments and governmental agencies in any jurisdiction in
which it carries on business except to the extent that failure to so comply, obtain
or maintain does not materially affect the business or financial condition of
the Partnership and shall cause National System to comply in all material
respects with all Applicable Law and obtain and maintain in good standing all
licences, permits, qualifications and approvals material to the Partnership’s
business;


 


(c)                                  the General Partner shall not effect a merger
or amalgamation with any Person other than a direct or indirect wholly-owned
subsidiary of Vanguard (including, for greater certainty, National System) and
may do so then only if the amalgamation would not have an adverse effect on the
ability of the General Partner to carry out its obligations hereunder;


 


(d)                                 the General Partner shall at all times during
the term hereof be a direct or indirect wholly-owned subsidiary of, and
controlled in fact by, Vanguard;


 


(e)                                  the General Partner shall maintain at all
times Tangible Net Worth at an amount not less than the greater of (i)
$35,000,000 and (ii) $55,000,000 less the aggregate amount of any purchase
accounting adjustments for reductions in prepaids and sundry assets and
property, plant and equipment, all as reflected in the General Partner’s
financial statements and arising out of the transactions of purchase and sale
contemplated under the Asset Purchase Agreement;


 


20

















 


(f)                                    National System shall remain a wholly-owned
subsidiary of the General Partner (unless it is amalgamated with or into the
General Partner) so long as National System owns, leases or is the licensee of
any of the assets referred to in section 2.6(h);


 


(g)                                 the General Partner, on behalf of the
Partnership, shall have entered into legal, valid and binding Repurchase
Agreements with each of Ford, GM, Chrysler and certain Toyota Approved Dealers,
as applicable, in respect of each model year on or before December 15 of the
immediately preceding calendar year;


 


(h)                                 the General Partner irrevocably and
unconditionally guarantees the performance of Alamo of its obligations under
the Alamo Lease, and the Partnership shall not be required to exhaust any
remedies against Alamo as a precondition to the Limited Partner calling for the
performance of this guarantee; and


 


(i)                                     the General Partner shall not change, amend
or modify any provisions of the Alamo Lease without first receiving the written
approval of the Rating Agency.


 


2.9                          Representations
and Warranties of Limited Partner.


 


The
Limited Partner represents and warrants to the General Partner that it:


 


(a)                                  is a trust validly formed and existing under
the laws of the Province of Ontario;


 


(b)                                 is not a “non-resident” of Canada for the
purposes of the Income Tax Act (Canada);


 


(c)                                  is not a “non-Canadian” within the meaning of
the Investment Canada Act;


 


(d)                                 has full power and authority to execute this
Agreement and all other agreements contemplated hereby required to be signed by
it and to take all actions required pursuant hereto, and has obtained all
necessary approvals of directors, shareholders, partners, members or others;
and


 


(e)                                  has duly authorized, executed and delivered
this Agreement and that this Agreement constitutes a legal, valid and binding
obligation of it enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency and other laws affecting the enforcement
of creditors’ rights generally and the fact that the grant of equitable
remedies is within the discretion of a court of competent jurisdiction.


 


2.10                        Limitations
of Authority of Limited Partner.


 


The
Limited Partner shall not be entitled:


 


(a)                                  to take part in the control of the business
of the Partnership;


 


21

















 


(b)                                 to execute any document which binds or
purports to bind the Partnership or any other Partner as such;


 


(c)                                  to purport to have the power or authority to
bind the Partnership or any other Partner as such;


 


(d)                                 to undertake any obligation or responsibility
on behalf of the Partnership;


 


(e)                                  to bring any action for partition or sale or
otherwise in connection with any interest in any property of the Partnership,
whether real or personal, or register or permit to be filed or registered or
remain undischarged, against any property of the Partnership, any lien or
charge; or


 


(f)                                    to commence against the Partnership any
proceedings under Insolvency Legislation.


 


2.11                        Power
of Attorney.


 


The
Limited Partner hereby irrevocably nominates, constitutes and appoints the
General Partner as the Limited Partner’s agent and true and lawful attorney to
act on its behalf with full power and authority in its name, place and stead to
execute, swear to, acknowledge, deliver and record or file as and where
required:


 


(a)                                  this Agreement, the Declaration, any
amendment to this Agreement or the Declaration and any other instrument
required to qualify, continue and keep in good standing the Partnership as a
limited partnership, or otherwise to comply with the laws of any jurisdiction
in which the Partnership may carry on business or own or lease property in
order to maintain the limited liability of the Limited Partner and to comply
with the Applicable Law of such jurisdiction;


 


(b)                                 any instrument, and any amendment to the
Declaration, necessary to reflect any amendment to this Agreement;


 


(c)                                  any instrument required to record with any
governmental or regulatory authority the dissolution and termination of the
Partnership; and


 


(d)                                 any instrument required in connection with
any election that may be made under fiscal legislation in any jurisdiction in
which the Partnership is carrying on business or where the Limited Partner
resides.


 


The
power of attorney granted herein is irrevocable and is a power coupled with an
interest and extends to the successors and assigns of the Limited Partner. The
Limited Partner agrees to be bound by any representation or action made or
taken by the General Partner pursuant to this power of attorney and hereby
waives any and all defences which may be available to contest, negate or
disaffirm the action of the General Partner taken in good faith under this
power of attorney, provided that the General Partner does not incur any
liability on behalf of, or take any action which may result in any liability
to, the Limited Partner.


 


22

















 


2.12                        Unlimited
Liability of General Partner.


 


The
General Partner shall have unlimited liability for the debts, liabilities and
obligations of the Partnership.


 


2.13                        Limited
Liability of Limited Partner.


 


Subject
to the provisions of the Act, the liability of the Limited Partner for the
debts, liabilities and obligations of the Partnership at any relevant time
shall be limited to the Limited Partner’s Capital Account at that time and any
amount paid or required at such time to be paid by the Limited Partner as
Additional Capital Contributions pursuant to section 3.2 and the Limited
Partner shall not be liable for any further claims, assessments or
contributions to the Partnership.


 


2.14                        Other
Activities of Limited Partner.


 


The
Limited Partner may hold an interest in any other limited partnership that
holds property and carries on a business similar to or competitive with the
business and properties of the Partnership and the Limited Partner shall not be
required to account to or shall be liable to the General Partner or the
Partnership by reason thereof.


 


2.15                        Compliance
with Laws.


 


On
request by the General Partner, the Limited Partner shall immediately execute
such certificates and other instruments necessary to comply with any Applicable
Law of any jurisdiction for the continuation and good standing of the
Partnership.


 


2.16                        Covenants
of the Limited Partner.


 


The
Limited Partner shall during the term hereof maintain its existence as a
validly constituted trust and shall remain a resident of Canada for purposes of
the Income Tax Act (Canada). The
Limited Partnership shall not divulge, except to its agents and employees on a
need to know basis or as required by law, the confidential business of the
General Partner or of the Partnership. Information shall not be confidential
for the purposes of this section 2.16 if it becomes generally available to the
public from a source other than the Limited Partner or becomes known to the
Limited Partner from a source other than the General Partner and its
representatives provided that
such source, so far as is known to the Limited Partner, is not bound by a
contractual or other obligation of confidentiality to the General Partner or
the Partnership.


 


ARTICLE 3


CAPITAL CONTRIBUTIONS AND ACCOUNTS


 


3.1                          Initial
Contributions of Capital by the Partners.


 


The
Initial Capital Contribution of the General Partner shall be (a) in an amount
equal to 10% of the fair market value of the Purchased Assets on the Effective
Date (as defined in the Assignment and Assumption Agreement), (b) made on the
execution and delivery thereof and (c) satisfied by the transfer from the
General Partner to the Partnership of Purchased Assets


 


23

















 


(as defined in the
Assignment and Assumption Agreement). The Initial Capital Contribution of the
Limited Partner shall be (a) in an amount equal to 90% of the fair market value
of the Purchased Assets on the Closing Date, (b) made prior to or
contemporaneously with the Initial Capital Contribution of the General Partner,
and (c) satisfied by the delivery to or to the order of the Partnership of a
certified cheque or bank draft. The Partnership will use the Limited Partner’s
Initial Capital Contribution to satisfy the cash portion of the purchase price
of the Purchased Assets under the Assignment and Assumption Agreement.


 


3.2                          Additional
Capital Contributions.


 


(a)           When
there does not exist a continuing Suspension Event or Termination Event, the
General Partner may up to four times in any calendar month call for Additional
Capital Contributions from the Limited Partner by giving to the Limited Partner
a notice in the form of Schedule A hereto (a “Capital
Call”). A Capital Call shall be made solely (subject to section 5.4(d))
for the purposes of repaying to the General Partner Temporary GP Contributions
and funding purchases of Vehicles up to but not in excess of their Original
Book Value. A Capital Call must require an Additional Capital Contribution from
the Limited Partner of not less than $3,000,000 and increments of $100,000
above that amount (subject to section 5.4(d)). Notice of a Capital Call must be
delivered to the Limited Partner not later than 12:00 noon (Toronto time) on
the second Business Day prior to the day (which must be a Business Day) when
the Additional Capital Contribution is to be paid. The Limited Partner shall be
obligated to make the Additional Capital Contribution by depositing immediately
available funds to the Vehicle Account not later than the close of business
(Toronto time) on the date indicated in the call notice.


 


(b)           The
maximum amount of capital that the Limited Partner shall be obligated at any time
to contribute to the Partnership by way of Additional Capital Contributions
pursuant to this Agreement shall be equal to (i) the Program Amount, plus (ii)
any amounts of capital returned to the Limited Partner prior to such time
pursuant to section 4.3(b)(iv), minus (iii) the sum of (A) the Limited Partner’s
Initial Capital Contribution, and (B) Additional Capital Contributions from the
Limited Partner up to such time.


 


(c)           Except
in the circumstances set out in section 5.4(c), for every $1.00 called from the
Limited Partner, the General Partner must make, simultaneously with the payment
from the Limited Partner, an Additional Capital Contribution by way of
immediately available funds deposited to the Vehicle Account, of (i) $0.108033
where the $1.00 called from the Limited Partner was used to fund (A) the
purchase of Partnership Program Vehicles or Program Negotiation Vehicles or (B)
the repayment to the General Partner of that portion of any Temporary GP
Contribution used to fund the purchase of Partnership Program Vehicles or Program
Negotiation Vehicles and (ii) $0.212121 where the $1.00 called from the Limited
Partner was used to fund (A) the purchase of Partnership Non-program Vehicles
or (B) the repayment to the General Partner of that portion of any Temporary GP
Contribution used to fund the purchase of Partnership Non-program Vehicles. If
the General Partner has outstanding a Temporary GP Contribution at a time when
the General Partner would be obligated to make an Additional Capital
Contribution pursuant to this section 3.2(c), the General Partner may credit
its Temporary GP Contribution against the Additional Capital Contribution that
it would otherwise be obligated to make.


 


24

















 


(d)           The
General Partner covenants and agrees to contribute at all times up to and
including the day of occurrence of a Termination Event, but not after such day,
sufficient capital to the Partnership from time to time by way of Additional
Capital Contribution so that the General Partner’s Capital Account (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) shall be equal to at
least the product of (i) the sum of (A) the product of 9.75% and the percentage
of Partnership Vehicles that are Partnership Program Vehicles, (B) the product
of 9.75% and the percentage of Partnership Vehicles that are Program
Negotiation Vehicles and (C) the product of 17.50% 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 General
Partner pursuant to section 4.4, such amount being referred to in this Agreement
as the “General Partner’s Capital Commitment”.


 


3.3                          Capital
Accounts.


 


(a)           The
General Partner will establish separate accounts on the books of the Partnership
for the Limited Partner’s Capital Account and the General Partner’s Capital
Account.


 


(b)           As
used herein, “General Partner’s Capital Account”
means, at any time, the amount, if any, by which the aggregate dollar value of


 


(i)                                     the cash and other consideration that has
been contributed pursuant hereto by the General Partner to the Partnership as capital
at or prior to such time, and


 


(ii)                                  any amount allocated to the General Partner
from Net Income in respect of any Settlement Period at or prior to that time


 


exceeds the aggregate of


 


(iii)                               the cash that has been distributed to the
General Partner at or prior to such time,


 


(iv)                              any amount allocated to the General Partner
from Net Loss in respect of any Settlement Period at or prior to such time, and


 


(v)                                 any amount distributed to the Limited Partner
at or prior to such time pursuant to that portion of section 4.2(k) that
follows clause (ii) thereof.


 


(c)           As
used herein, “Limited Partner’s Capital Account”
means, at any time, the amount, if any, by which the aggregate of


 


(i)                                     the cash that has been contributed pursuant
hereto by the Limited Partner to the Partnership as capital at or prior to such
time, plus


 


(ii)                                  any amount allocated to the Limited Partner
from Net Income in respect of any Settlement Period at or prior to that time,
plus


 


25

















 


(iii)                               any amount by which the General Partner’s
Capital Account is reduced at or prior to such time as set out in section
3.3(b)(v),


 


exceeds the aggregate of


 


(iv)                              the cash that has been distributed to the
Limited Partner at or prior to such time, plus


 


(v)                                 any amount allocated to the Limited Partner
from Net Loss in respect of any Settlement Period at or prior to such time.


 


3.4                          Capital
Commitments to be Ongoing.


 


No
Partner will have any right to withdraw any amount or receive any distribution
from the Partnership except as expressly provided for in this Agreement.


 


3.5                          No
Interest Payable on Accounts.


 


No
Partner will have the right to receive interest on any credit balance in its
Capital Account. No Partner shall be liable to pay interest to the Partnership
on any capital returned to such Partner or on any negative balance in its
Capital Account.


 


3.6                          Negative
Balance of Capital or in Capital Accounts.


 


The
interest of a Partner in the Partnership will not terminate by reason of there
being a negative or zero balance in such Partner’s Capital Account.


 


ARTICLE 4


CASH MANAGEMENT, DISTRIBUTIONS AND INCOME ALLOCATIONS


 


4.1                          Purchase
Discount Amount.


 


On
the last Business Day of each Settlement Period the Limited Partner shall
provide to the General Partner an estimate of the Income Share of the Limited
Partner for the next Settlement Period. Not later than the ninth day of each
Settlement Period (or if such day is not a Business Day, then the immediately
preceding Business Day) the Limited Partner shall provide to the General
Partner a report outlining the Purchase Discount Amount for (i) the Settlement
Period just ended and (ii) the current Tranche Period.


 


4.2                          Rental
Account.


 


(a)           The
General Partner has opened and will manage for and in the name of the
Partnership at the Bank account no. 0002-1300-694, hereinafter referred to as
the “Rental Account”. All monies deposited
to the Rental Account shall have the status of trust monies held for and on
behalf of the Partnership and, for greater certainty, shall not be the property
of the General Partner. The Bank shall be required specifically to acknowledge
that it has no right of set-off in respect of the Rental Account. The General
Partner shall deposit all Rental Revenues as received to the Rental Account. In
the event that from time to time the General Partner


 


26

















 


identifies moneys that have
been deposited to the Rental Account as in fact not being revenues of the
Partnership, it shall be entitled to remove the amount of such moneys from the
Rental Account and on the Estimation Dates the General Partner shall advise the
Limited Partner of any amount so removed and the category of the General
Partner’s non-Partnership revenues to which such amount pertains. When a
Suspension Event has occurred and is continuing, such amounts may be removed
only on Estimation Dates simultaneously with advising the Limited Partner as
set out in the preceding sentence. When a Termination Event has occurred and is
continuing, such amounts may be removed only on Settlement Dates following
advice to the Limited Partner as to amounts and categories.


 


(b)           The
General Partner shall pay from the Rental Account the Expenses of the Partnership.
Notwithstanding the foregoing, insofar as such Expenses consist of VAT payable on
the purchase of Partnership Vehicles, the General Partner 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 price of new Vehicles.


 


(c)           Not
later than 12:00 noon (Toronto time) on each Estimation Date, the General Partner
shall provide an Estimation Report to the Limited Partner containing its best
estimate of the aggregate Rental Revenues, Expenses of the Partnership,
Depreciation, Net Loss on Dispositions (if any), Income Share of the Limited
Partner and Coverage Requirement in respect of the Estimation Period and
showing the amount in the Rental Account at the Cut-off Time.


 


(d)           On
each Estimation Date the General Partner shall transfer from the Rental Account
to the Vehicle Account an amount equal to estimated Depreciation plus Net Loss
on Dispositions (if any) in respect of the relevant Estimation Period.


 


(e)           If
following the payments in section 4.2(b) and the transfer in section 4.2(d)
there remains in the Rental Account at the Cut-off Time a positive balance
larger than the sum of (i) (A) the Income Share of the Limited Partner and (B)
the Coverage Requirement for such Estimation Period and prior Estimation
Periods in the same Settlement Period and (ii) the excess of (x) the amount of
the lease payment to be made by Alamo to the Partnership pursuant to the Alamo
Lease in respect of the Settlement Period in which such Estimation Period
occurs over (y) the sum of (I) the portions of the Alamo Purchase Discount
Amount (as defined in the Alamo Lease) allocable to the Estimation Period and
all prior Estimation Periods in the Settlement Period in which such Estimation
Period occurs (the allocation for each Estimation Period to be based on the
number of days in each such Estimation Period divided by the number of days in such
Settlement Period) and (II) the sum of the portions of the amounts deposited to
the Vehicle Account pursuant to section 4.2(d) for such Estimation Period and
all prior Estimation Periods in the Settlement Period in which such Estimation
Period occurs and which are allocable to the Vehicles which are subject to the
Alamo Lease, the General Partner shall be entitled to withdraw for its own
benefit at 2:00 p.m. (Toronto time) on the Estimation Date any such excess. If following
the payments in section 4.2(b) and the transfer in section 4.2(d) there does
not remain in the Rental Account at the Cut-off Time a positive balance larger
than the sum of (i) (A) the Income Share of the Limited Partner and (B) the
Coverage Requirement for such Estimation Period and prior Estimation Periods in
the same Settlement Period and (ii) the excess of (x) the


 


27

















 


amount of the lease payment
to be made by Alamo to the Partnership pursuant to the Alamo Lease in respect
of the Settlement Period in which such Estimation Period occurs over (y) the
sum of (I) the portions of the Alamo Purchase Discount Amount (as defined in
the Alamo Lease) allocable to the Estimation Period and all prior Estimation
Periods in the Settlement Period in which such Estimation Period occurs (the
allocation for each Estimation Period to be based on the number of days in each
such Estimation Period divided by the number of days in such Settlement Period)
and (II) the sum of the portions of the amounts deposited to the Vehicle
Account pursuant to section 4.2(d) for such Estimation Period and all prior
Estimation Periods in the Settlement Period in which such Estimation Period
occurs and which are allocable to the Vehicles which are subject to the Alamo
Lease, the General Partner shall be required forthwith to make a payment from
its own funds as an Additional Capital Contribution to the Rental Account to
bring it to a zero balance, but in no event shall the General Partner be
obligated to pay an amount greater than the sum of (i) the aggregate amount
withdrawn by the General Partner from the Rental Account pursuant to this
section 4.2(e) on Estimation Dates for Estimation Periods falling within the
same Settlement Period and (ii) Organizational Expenses.


 


(f)            Not
later than 12:00 noon (Toronto time) on each Settlement Date, the General
Partner will provide a Settlement Report to the Limited Partner containing the
aggregate Rental Revenues, Expenses of the Partnership, Depreciation, Proceeds
of Dispositions, Loss on Dispositions (if any), Gain on Dispositions (if any)
and Income Share of the Limited Partner in respect of the Settlement Period. If
during the relevant Settlement Period the General Partner has removed amounts from
the Rental Account pursuant to section 4.2(a), then the Settlement Report will
be accompanied by a letter from the General Partner reporting as to such
amounts and the categories of the General Partner’s non-Partnership revenues to
which the amounts so removed pertain.


 


(g)           On
the second Business Day after the Settlement Date, the General Partner shall
first cause an amount equal to the Income Share of the Limited Partner for the
Tranche Period, together with the amount (if any) representing the Income Share
of the Limited Partner for prior Tranche Periods not yet paid to the Limited
Partner, to be paid to the Limited Partner from the Rental Account.


 


(h)           If
the Settlement Report indicates that Depreciation for the Settlement Period is
greater than the aggregate estimates of Depreciation contained in the
Estimation Reports for the same period, the General Partner shall next on the
second Business Day after the Settlement Date transfer from the Rental Account
to the Vehicle Account funds equal to the difference. Alternatively, if the
Settlement Report indicates that Depreciation for the Settlement Period is less
than the estimates of Depreciation contained in the Estimation Reports for the
same period, the General Partner shall next transfer from the Vehicle Account
to the Rental Account funds equal to the difference.


 


(i)            If
the Settlement Report indicates that Loss on Dispositions less Gain on
Dispositions for the Settlement Period exceeds the aggregate Net Loss on
Dispositions contained in the Estimation Reports for the same period, then the
General Partner shall next on the second Business Day after the Settlement Date
transfer the amount of the excess from the Rental Account to the Vehicle
Account. Alternatively, if the Settlement Report indicates that the aggregate
Net Loss on Dispositions contained in the Estimation Reports for the Settlement


 


28

















 


Period exceeds the Loss on
Dispositions less Gain on Dispositions for the same period, then the amount of
the excess shall be transferred from the Vehicle Account to the Rental Account.


 


(j)            If
after the payments in sections 4.2(g), (h) and (i), there remains as at the end
of the relevant Settlement Period a positive balance in the Rental Account, the
General Partner shall be entitled on the second Business Day after the
Settlement Date to withdraw for its own benefit any such balance. If after the
payments in sections 4.2(g), (h) and (i), there remains as at the end of the
relevant Settlement Period a negative balance in the Rental Account, the
General Partner shall forthwith on the second Business Day after the Settlement
Date pay into the Rental Account from its own funds as an Additional Capital
Contribution an amount sufficient to return the Rental Account to a zero
balance, but in no event shall the General Partner be obligated to pay an
amount greater than the sum of (i) the aggregate amount withdrawn by the
General Partner from the Rental Account pursuant to section 4.2(e) on
Estimation Dates for Estimation Periods falling within the same Settlement
Period and (ii) Organizational Expenses.


 


(k)           if
there is not sufficient cash in the Rental Account to pay the Limited Partner
the entire amount required by section 4.2(g) and such amount still has not been
paid after any transfers to the Rental Account required by sections 4.2(h), (i)
and (j) have been made, then cash in the Vehicle Account (if any) in an amount
up to but not exceeding the value of the General Partner’s Capital Account
shall be transferred to the Rental Account and used to make the payment
required by section 4.2(g) and such transfer and payment shall reduce the
General Partner’s Capital Account.


 


4.3                          Vehicle
Account.


 


(a)           The
General Partner has opened and will manage for and in the name of the Partnership
at the Bank account no. 0002-1300-678, hereinafter referred to as the “Vehicle Account”. All monies deposited to the Vehicle
Account shall have the status of trust monies held for and on behalf of the
Partnership and, for greater certainty, shall not be the property of the
General Partner. The Bank shall be required specifically to acknowledge that it
has no right of set-off in respect of the Vehicle Account. There shall be
deposited directly to the Vehicle Account (i) all Proceeds of Disposition, and
(ii) all capital contributions of the Partners in the form of cash.


 


(b)           Funds
may be disbursed from the Vehicle Account only to the following payees and in
the following circumstances:


 


(i)                                     to refund to the General Partner from time to
time amounts representing Temporary GP Contributions and amounts to which the
General Partner is entitled pursuant to section 5.4(d);


 


(ii)                                  on the second Business Day after a Settlement
Date, to transfer funds to the Rental Account pursuant to sections 4.2(h),
4.2(i) and 4.2(k);


 


(iii)                               to pay Approved Dealers, Manufacturers and
Franchisees for Vehicles purchased for the Partnership; and


 


29

















 


(iv)                              on the second Business Day after a Settlement
Date, if there is cash in the Vehicle Account as at the close of business on
the last day of the Settlement Period (after payments pursuant to clauses (i),
(ii) and (iii) of this section 4.3(b)) in an amount determined by the General
Partner to be in excess of the cash required to fund the purchase of Vehicles
required to be paid for in the calendar month in which the Settlement Date
occurs, to return capital to the Partners in the ratio of their respective
Capital Accounts, to the extent that such payment would not result in the
balance of the General Partner’s Capital Account being reduced to an amount
below the General Partner’s Capital Commitment; provided, however, that if a Suspension Event has occurred
and is continuing then this return of capital shall be made to the Limited
Partner in priority to the General Partner if and to the extent that such a
prioritization is necessary to make the amount of the General Partner’s Capital
Account equal to the amount of the General Partner’s Capital Commitment.


 


(c)           Pending
the distributions referred to in section 4.3(b), the General Partner may use
funds in the Vehicle Account to purchase Eligible Investments for the
Partnership.


 


4.4                          VAT
Account.


 


The
General Partner shall open and manage for and in the name of the Partnership at
the Bank an account hereinafter referred to as the “VAT Account”.
All monies deposited to the VAT Account shall have the status of trust monies
held for and on behalf of the Partnership and, for greater certainty, shall not
be property of the General Partner. The Bank shall be required specifically to
acknowledge that it has no right of set-off in respect of the VAT Account. The
General Partner 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 service by the Partnership and any amount received by the
Partnership from a governmental authority as a refund of VAT. The General
Partner shall be entitled to disburse from the VAT Account any amount owed to a
governmental authority in respect of VAT collected by the Partnership and any
amount owed to a person as VAT in respect of the purchase of Vehicles or any
other goods or services acquired by the Partnership. In the event that there
are insufficient funds in the VAT Account to fund any required remittance or
payment of VAT, the General Partner shall contribute to the Partnership an
amount of capital sufficient to make up the shortfall, and such amount shall be
returned in cash to the General Partner at the earliest possible opportunity
from amounts deposited to the VAT Account in respect of input tax credits
claimed by the Partnership. Provided that a Termination Event has not occurred,
the VAT Account and the Rental Account may be operated by the General Partner
as a single commingled account, subject to the maintenance of separate
accounting records in respect of each Account.


 


4.5                          Periodic
Allocation of Net Income.


 


Net
Income in respect of any Settlement Period will be allocated as at the end of
such period as follows:


 


30

















 


(a)           firstly,
where an amount of Net Loss has previously been allocated to the Limited
Partner and has not been recovered by the Limited Partner pursuant to the
operation of this provision, to the Limited Partner;


 


(b)           secondly,
where an amount of Net Loss has previously been allocated to the General
Partner and has not been recovered by the General Partner pursuant to the
operation of this provision, to the General Partner;


 


(c)           thirdly,
to the Limited Partner up to the cumulative amount distributed to the Limited
Partner pursuant to sections 4.2(g) and 4.2(k) to the extent not previously
allocated to the Limited Partner pursuant to the operation of this provision;
and


 


(d)           fourthly,
to the General Partner as to the remainder.


 


4.6                          Periodic
Allocation of Net Loss.


 


Net
Loss in respect of any Settlement Period will be allocated
as at the end of such period as follows:


 


(a)           firstly,
to the General Partner up to a maximum amount equal to the aggregate of


 


(i)                                     the General Partner’s Capital Account
immediately prior to the end of the period, and


 


(ii)                                  such amount as the General Partner
contributes to the Partnership as capital at the end of the period to cover the
Net Loss in respect of the period; and


 


(b)           secondly,
to the Limited Partner as to the remainder.


 


4.7                          Fiscal Period Allocation of Net Income
or Net Loss.


 


Net
Income or Net Loss in respect of any Fiscal Period will be allocated as at the
end of such Fiscal Period as follows:


 


(a)           where the Partnership has earned Net Income in respect of
the Fiscal Period, there shall be allocated to the General Partner or the
Limited Partner, as the case may be, the amount by which


 


(i)                                     the aggregate of the amounts allocated to
such person pursuant to Section 4.5 in respect of the Fiscal Period


 


exceeds


 


(ii)                                  the aggregate of the amounts allocated to
such person pursuant to Section 4.6 in respect of the Fiscal Period,


 


but the aggregate amount so allocated
shall not exceed the Net Income in respect of such Fiscal Period; and


 


31

















 


(b)           where
the Partnership has realized Net Loss in respect of the Fiscal Period, there
shall be allocated to the General Partner or the Limited Partner, as the case
may be, the amount by which


 


(i)                                     the aggregate of the amounts allocated to
such person pursuant to Section 4.6 in respect of the Fiscal Period


 


exceeds


 


(ii)                                  the aggregate of the amounts allocated to
such person pursuant to Section 4.5 in respect of the Fiscal Period,


 


but the aggregate amounts so
allocated shall not exceed the Net Loss in respect of such Fiscal Period.


 


4.8                          Allocation
of Taxable Income.


 


Taxable
Income in respect of any Fiscal Period will be allocated as at the end of such
Fiscal Period as follows:


 


(a)           firstly,
to the Limited Partner up to the amount of Net Income allocated to the Limited
Partner in respect of the Fiscal Period pursuant to section 4.7(a); and


 


(b)           secondly,
to the General Partner as to the remainder.


 


4.9                          Allocation
of Tax Loss.


 


Tax
Loss in respect of any Fiscal Period will be allocated as at the end of such
Fiscal Period as follows:


 


(a)           firstly,
to the General Partner up to the amount of Net Loss allocated to the General
Partner in respect of the Fiscal Period pursuant to section 4.7(b); and


 


(b)           secondly,
to the Limited Partner as to the remainder.


 


ARTICLE 5


BUSINESS AND OPERATIONS OF THE PARTNERSHIP


 


5.1                          Authority of the General Partner.


 


Except
as otherwise provided herein, the General Partner is authorized to carry on the
business of the Partnership, with full power and authority to administer,
manage, control and operate the business of the Partnership, and has all power
and authority to do any act, take any proceeding, make any decision and execute
and deliver any instrument, deed, agreement or document necessary for or
incidental to carrying out the business of the Partnership for and on behalf of
and in the name of the Partnership. No Person dealing with the Partnership will
be required to inquire into the authority of the General Partner to do any act,
take any proceeding,


 


32

















 


make any decision or execute
and deliver any instrument, deed, agreement or document for and on behalf of or
in the name of the Partnership.


 


5.2                          Powers
and Duties of General Partner.


 


(a)           In
managing the business and affairs of the Partnership, the General Partner shall
utilize its own (or shall cause National System to use its 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 Partner will exercise its powers and discharge its duties under this 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 Partner for any
act, omission or error in judgment made in good faith.


 


(c)           The
General Partner shall not carry on its activities outside the Partnership in a manner
detrimental to the interests of the Partnership; provided, however, that the foregoing shall not prohibit the
General Partner from, directly or indirectly, owning or operating a rental car
business or businesses similar to and/or in the same geographical area as the
Partnership and otherwise competing with the Partnership in the rental car
business so long as the General Partner does not exercise a preference
detrimental to the Partnership in the acquisition, disposition, rental,
operation, maintenance or use of Partnership Vehicles, on the one hand, and Vehicles
not belonging to the Partnership, on the other hand. For the purpose of the
preceding sentence, the General Partner will not have exercised a preference
detrimental to the Partnership in its conduct of a competing rental car
business solely because of the rental pricing or marketing decisions taken by
the General Partner in operating that competing business. Subject to the foregoing
provisions of this section 5.2(c), the General Partner may carry on, invest in
or conduct, either directly or indirectly, any business of any nature or kind
and the carrying on, investment in or conduct of any such business or
businesses shall not give rise to any claim by the Partnership or any of the
other Partners of the Partnership for an accounting or for any interest in or
the profits from any such business or businesses, whether on fiduciary
principles or otherwise.


 


(d)           Unless
a different standard is required by the terms of this Agreement, the General
Partner shall manage the business and affairs of the Partnership in a manner
consistent with the management by the General Partner of its vehicle rental
business prior to the date hereof.


 


(e)           Without
limiting the generality of section 5.1, the General Partner 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 GST Account;


 


(iii)                               pay the Expenses;


 


33

















 


(iv)                              commence or defend any action or proceeding
in connection with the Partnership (but where such action involves Vehicle
Rental Agreements or the Alamo
Lease, the General Partner may or may not, as appears more beneficial to the
Partnership, commence and defend actions in the name of 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, licenses 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 this Agreement.


 


(f)            The
General Partner 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 the Limited Partner in each jurisdiction where the
Partnership may carry on business or own property and to cause the Partnership
to be registered as a “motor vehicle dealer” by not later than the first
anniversary of the date of execution hereof in those provinces of Canada where
it is necessary for the Partnership to be so registered.


 


(g)           The
General Partner shall enter into Vehicle Rental Agreements in its own name on
behalf of the Partnership as undisclosed principal.


 


(h)           The
General Partner 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 the Limited Partner is not liable
for the obligations of the Partnership, and (ii) include in all contracts
entered into in the name of the Partnership a notice or other 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 Partner shall
ensure that at all times:


 


(i)                                     at least 85% of the Partnership Vehicles are
Partnership Program Vehicles;


 


(ii)                                  at least 40% of the Partnership Program
Vehicles are manufactured by General Motors;


 


(iii)                               not more than 60% of the Partnership Program
Vehicles are manufactured by Chrysler or Ford;


 


(iv)                              not more than 5% of the Partnership Program Vehicles are manufactured by Toyota;


 


34

















 


(v)                                 not more than 1% of the Partnership Program Vehicles have been purchased
from any one Toyota Approved Dealer;


 


(vi)                              all of the Partnership Vehicles leased to
Alamo pursuant to the Alamo Lease are Partnership Program Vehicles; and


 


(vii)                           not more than 40% of the Partnership Vehicles are leased to
Alamo pursuant to the Alamo Lease.


 


(j)            In
buying Vehicles for the Partnership, the General Partner 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 Approved Dealers,
Manufacturers and Franchisees, (iii) buy from Manufacturers and Approved
Dealers only new Vehicles and only against a Manufacturer’s invoice, (iv) buy
from Franchisees only Vehicles that were new Vehicles when purchased by the
vendor and that have had not intermediate owners and in respect of which the
vendor delivers, inter alia, its
Manufacturer’s invoice, (v) buy Vehicles from Franchisees for a purchase price
not to exceed the lesser of fair market value and the current book value of the
Vehicles on the Franchisee’s books of account at the time of purchase by the
Partnership, (vi) ensure that at no time have more than 10% of the Partnership
Vehicles been purchased from Franchisees, and (vii) ensure that title to all
Vehicles bought for the Partnership is registered in the name of the
Partnership.


 


(k)           The
General Partner covenants and agrees that in operating the business of the
Partnership it 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 the Alamo Lease 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 term, condition, representation, warranty and covenant required
to be performed by the lessor under each Vehicle Rental Agreement and the Alamo
Lease.


 


(l)            The
General Partner 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.


 


(m)          The
General Partner shall at its 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 Partner 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 the General Partner in connection with the
sale of Partnership Vehicles to the Partnership.


 


(o)           The
General Partner shall at its own expense provide insurance for the business of
the Partnership and for the Partnership Vehicles, in respect both of losses and
third party liability as set out in Schedule E, and shall pay all premiums on
such insurance on a timely basis and shall maintain fully funded all escrow or
trust accounts required to be funded by the terms of


 


35

















 


such insurance. Third party
underwriters of such insurance shall meet the credit standard set out in
section 2.6(k). The General Partner shall indemnify and hold the Partnership
harmless against all claims, losses and expenses within the deductible amounts
under such insurance policies.


 


(p)           Upon
being advised by the Limited Partner in writing at any time that the effective
rate of interest on the Notes exceeds 5% per annum, the General Partner shall
promptly, and in any event within two Business Days, direct the Securitization
Agent and the Limited Partner as to the Hedging Transactions that the Limited Partner shall enter
into in connection with the issuance of Notes during the term of this Agreement
to ensure that, after giving effect to such Hedging Transactions, the effective
interest rate on such Notes shall not exceed 6% per annum. The General Partner
may, by written notice delivered to the Securitization Agent and the Limited
Partner contemporaneously with the delivery of a Settlement Report pursuant to
section 4.2(f), direct the Limited Partner to cancel one or more Hedging
Transactions and enter into one or more new Hedging Transactions; provided,
however, that the cancellation of any Hedging Transactions and the entering
into of any new Hedging Transactions does not cause the effective interest rate
on the Notes to exceed 6% per annum. The General Partner shall be responsible
for all costs and expenses associated with all such Hedging Transactions and
the counterparty to all such Hedging Transactions shall have a long-term debt
rating of at least AA (low) from the Rating Agency.


 


(q)           The
General Partner may subcontract any of the General Partner’s obligations under
this Agreement to an Affiliate of the General Partner provided that the General Partner shall remain responsible
for the performance of such obligations to the same extent as if such
obligations were performed by the General Partner.


 


5.3                          Restrictions
on Operations and Activities.


 


The
General Partner will manage and conduct all aspects of the day-to-day
operations and other activities of the Partnership, subject, however, to the
following restrictions:


 


(a)                                  the Partnership shall not have employees;


 


(b)                                 the Partnership shall not own or lease real
property;


 


(c)                                  the Partnership shall not borrow money
(although it may buy Vehicles on the ordinary payment terms of Manufacturers
and Approved Dealers);


 


(d)                                 the Partnership shall not create, give or
suffer to exist any mortgage, lien, charge, encumbrance or security interest
over its assets except that it may give Qualified PMSI’s to Manufacturers and
Approved Dealers;


 


(e)                                  the General Partner shall not use and shall
not contractually permit any Partnership Vehicles to be used in any manner (i)
that would cause such Vehicles to become ineligible for repurchase under a
Repurchase Agreement, (ii) for any illegal purpose or (iii) that could subject
such Vehicles to confiscation; and


 


(f)                                    the Partnership’s sole assets shall be (i)
cash and Eligible Investments and the Rental Account, the Vehicle Account and
the VAT Account, (ii) receivables from


 


36

















 


credit
card issuers, the General Partner, Vehicle rental customers, Manufacturers,
Toyota Approved Dealers and governmental authorities, (iii) Vehicles, (iv)
Vehicle Rental Agreements, (v) the Alamo Lease, (vi) Repurchase Agreements,
(vii) contractual rights to buy Vehicles from Approved Dealers, and (viii)
insurance policies.


 


5.4                          Program Negotiation Vehicles.


 


(a)           It
is recognized that the Partnership may purchase between August 1 and December
15 in a year Vehicles of the upcoming model year manufactured by an Eligible Manufacturer
whose current year Vehicles are subject to a Repurchase Agreement and from whom
the Partnership has (i) a letter of undertaking stating that a Repurchase
Agreement is being negotiated which, if completed, will cover that Manufacturer’s
Vehicles of the upcoming model year, or (ii) a draft form of Repurchase
Agreement tabled by that Manufacturer, that if signed, would cover that
Manufacturer’s Vehicles of the upcoming model year. Such Vehicles are referred
to herein as “Program Negotiation Vehicles”.


 


(b)           Subject
to the following sentence, Program Negotiation Vehicles shall be deemed to be
Partnership Program Vehicles for the purposes of section 5.2(i) hereof and the
definition of “Depreciation”. If a Repurchase Agreement between the Partnership
and the Eligible Manufacturer is not entered into by December 15 in the
calendar year in which the Program Negotiation Vehicle is purchased by the
Partnership, then thereafter for all purposes hereof such Vehicle will be a
Partnership Non-program Vehicle.


 


(c)           Notwithstanding
section 3.2(c), when and to the extent the General Partner makes a Capital Call
for the purpose of funding the purchase of Program Negotiation Vehicles, for every
$1.00 called from the Limited Partner the General Partner must make,
simultaneously with the payment from the Limited Partner, an Additional Capital
Contribution by way of immediately available funds deposited to the Vehicle
Account of $0.108033, so that, by way of example, if a Capital Call were made
on the Limited Partner in the amount of $3,000,000 and were entirely for the
purpose of funding the purchase of Program Negotiation Vehicles, the General
Partner would be required to contribute $324,099 to the Partnership.


 


(d)           If
a Repurchase Agreement is entered into on or before December 15 covering Partnership
Vehicles that prior thereto had been Program Negotiation Vehicles, then
thereafter all such Vehicles will be for all purposes hereof Partnership
Program Vehicles and the General Partner shall be entitled to a distribution
from the Partnership by way of return of capital of the amount, without
interest, by which its Additional Capital Contribution in respect of the
Program Negotiation Vehicles was greater than it would have been had such
Vehicles been Partnership Program Vehicles when purchased (the “PNV Excess”). For the purpose of making a distribution
under this section 5.4(d), the General Partner may, when there exists no
continuing Suspension Event or Termination Event, make a Capital Call on the
Limited Partner for an amount up to the PNV Excess, notwithstanding that the
PNV Excess may be an amount less than the amount required by section 3.2(a) for
a Capital Call and the proceeds may be used, notwithstanding section 3.2(a), to
distribute to the General Partner an amount equal to the PNV Excess. For
greater certainty, this section 5.4(d) does not increase the number of times
(four per calendar month) when the Limited Partner may be called upon to make
an Additional Capital


 


37

















 


Contribution. A Repurchase
Agreement entered into by the Partnership after the occurrence of a Suspension
Event or Termination Event which is continuing shall not be effective for the
purposes of this section 5.4(d) unless it shall have been approved by the
Securitization Agent.


 


5.5                          Commingling
of Partnership Assets.


 


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 Partner).


 


5.6                          Fees
of the General Partner.


 


The
General Partner shall not be entitled to any fees as general partner of the
Partnership. As compensation for managing the Partnership the General Partner
shall receive the Net Income allocated to it in accordance with section 4.5.


 


ARTICLE 6


BOOKS AND RECORDS AND PROVISION OF INFORMATION


 


6.1                          Books
of
Account.


 


The
General Partner 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 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 the Limited Partner or its duly authorized representatives during
normal business hours at the principal office of the General Partner.


 


6.2                          Annual
Report and Income Tax Information.


 


(a)           In
addition to the reports required by Article 4, within 60 days after the end of
each Fiscal Period, the General Partner shall deliver to the Limited Partner:


 


(i)                                     an annual report in respect of such Fiscal
Period containing:


 


(A)                              financial statements of the Partnership as at
the end of, and for, such Fiscal Period (prepared in accordance with Canadian
GAAP except as otherwise required by the terms of this Agreement), with comparative
financial statements as at the end of, and for, the immediately preceding
Fiscal Period, if any, containing a balance sheet, a statement of income,
a statement of changes in financial position and a statement of Partner’s
equity;


 


(B)                                a report on allocations and distributions to
Partners; and


 


(C)                                such other information as in the opinion of
the General Partner is material to the business of the Partnership; and


 


38

















 


(ii)                                  information concerning the amount of Taxable
Income or Tax Loss and credits and charges to capital accounts allocated to the
Limited Partner and such other information as is necessary to enable the
Limited Partner to file income tax returns and partnership returns with respect
to the 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 Partner shall deliver to
the Limited Partner the statements referred to in section 6.2(a)(i)(A) and
section 6.2(a)(i)(B) with a report of the Auditors thereon.


 


6.3                          Fleet
Reports.


 


On
each Settlement Date the General Partner will make available a Fleet Report to
the Limited Partner.


 


6.4                          Status Reports.


 


The
General Partner will forward, within 45 days after the end of each quarter
during each Fiscal Period, to the Limited Partner a status report regarding the
activities of the Partnership for such quarter.


 


6.5                          Financial Reports of the General Partner.


 


The
General Partner shall deliver to the Limited Partner within 60 days of the end
of each fiscal quarter of the General Partner a copy of the income and cash
flow statements and the balance sheet of the General Partner and National
System 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 year of the General Partner or
National System, as the case may be, a copy of the income and cash flow
statements and the balance sheet of the General Partner and National System as
at and for the period then ended in the form submitted to the independent
auditors of Vanguard or any parent corporation of Vanguard for purposes of
producing the audited financial statements of that corporation.


 


6.6                          Repurchase
Agreements.


 


The
General Partner shall provide to the Securitization Agent and the Rating Agency
copies of all Repurchase Agreements promptly after they have been entered into
by the Partnership.


 


ARTICLE 7


PARTNERSHIP GOVERNANCE


 


7.1                          Powers
Exercisable by the Limited Partner.


 


In
addition to all other powers conferred upon it by this Agreement, the Limited
Partner may:


 


39

















 


(a)                                  admit an Additional General Partner to the
Partnership as provided in section 8.4(a);


 


(b)                                 waive any default on the part of the General
Partner on such terms as the Limited Partner may determine and release it from
any claims in respect thereof;


 


(c)                                  continue the Partnership if the Partnership
would otherwise be terminated by operation of the Act;


 


(d)                                 consent to any compromise or arrangement by
the Partnership with any creditor or creditors, or class or classes of
creditors, or with the holders of any shares or securities of the General
Partner;


 


(e)                                  waive any or all of the restrictions set out
in section 5.3; and


 


(f)                                    extend the date for winding up the
Partnership as provided in section 8.1,


 


but the Limited Partner may
not exercise any of these powers if the result of so doing would be to cause a
lowering of the Rating Agency’s rating of the Notes.


 


7.2                          Amendment
to Partnership Agreement.


 


This
Agreement may be amended by mutual agreement of the General Partner, the
Additional General Partner and the Limited Partner, provided that such amendment, whether initiated by the
General Partner, the Additional General Partner or the Limited Partner, may not
in any manner allow the Limited Partner to take part in the control of the
business of the Partnership.


 


7.3                          Assignment
of Partnership Interests.


 


No
Partner may sell, exchange, transfer, assign, pledge, hypothecate or otherwise
dispose of or subject to any charge, lien, security interest or other
encumbrance all or any part of its interest in the Partnership except with the
consent of the other Partner in its absolute discretion. Notwithstanding the
foregoing, the Limited Partner may:


 


(a)                                  pledge the Limited Partnership Interest as
security for Notes; and


 


(b)                                 whenever a Termination Event has occurred and
is continuing and subject to the rights of the General Partner in section
8.5(b), transfer the whole or any part of its Partnership Interest without the
consent of the General Partner, who shall be obligated for all purposes hereof
to recognize such transfer, subject to the condition that each such transferee
pursuant to this section 7.3(b) shall agree in writing with the other Partners
to become a Partner and be bound by the provisions of this Agreement.


 


40

















 


ARTICLE 8


SUSPENSION EVENTS, TERMINATION EVENTS AND DURATION OF


PARTNERSHIP


 


8.1                          Term
of Partnership.


 


The
Partnership was formed on March 13, 1997. Unless it has wound up its activities
earlier pursuant to section 8.3, the Partnership will begin to wind up its
activities on the Partnership Termination Date.


 


8.1.1                       Suspension
Events.


 


When
a Suspension Event has occurred and while it is continuing (but has not become
a Termination Event) the Partnership shall not purchase Vehicles.


 


8.2                          Termination
Events.


 


Each
of the following shall be a Termination Event hereunder:


 


(a)                                  an event referred to in clause (a) of the
definition of “Suspension Events” continuing for any three consecutive
Settlement Periods;


 


(b)                                 an event referred to in clause (b) of the
definition of “Suspension Events” continuing for three Business Days beyond a
Settlement Date;


 


(c)                                  breach of the covenant in section 5.2(i)
which breach continues for three Business Days after a Settlement Date; provided, however, that if such breach is
caused by a Manufacturer ceasing to be an Eligible Manufacturer, then such
breach will not constitute a Termination Event if within 30 days of its
occurrence the General Partner at its own expense has obtained for the benefit
of the Partnership credit enhancement satisfactory in form, source and amount
to the Rating Agency and the Securitization Agent in respect of those
Partnership Vehicles that are subject to Repurchase Agreements with such
Manufacturer;


 


(d)                                 the General Partner making any unauthorized
payment from the Rental Account or the Vehicle Account and failing to restore
such payment within two Business Days of becoming aware of it;


 


(e)                                  the failure by the General Partner to observe
any other covenant herein which failure could be expected to have a material
adverse effect on the Partnership, provided that
if such breach of covenant is capable of being remedied then it shall not
constitute a Termination Event unless it remains unremedied for five Business Days
after notice from the Limited Partner;


 


(f)                                    the inaccuracy when made of a representation
or warranty of the General Partner herein which inaccuracy could be expected to
have a material adverse effect on the Partnership, provided that if such inaccuracy is capable of being
remedied


 


41

















 


then
it shall not constitute a Termination Event unless it remains unremedied for
five Business Days after notice from the Limited Partner;


 


(g)                                 the occurrence of a material adverse change
since the date hereof in the financial condition or operations of the General
Partner, National System or the Partnership which, in the opinion of the
Securitization Agent after consultation with the Rating Agency and which
opinion has been communicated in writing to the General Partner, is likely to
result in the General Partner (i) being unable to satisfy its obligations
hereunder, (ii) becoming a bankrupt or (iii) seeking the protection of
Insolvency Legislation;


 


(h)                                 the General Partner failing to pay when due
any obligation (the “Underlying Obligation”)
for a sum certain in excess of $2,000,000 and such failure continuing for three
Business Days after (i) notice to the General Partner 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;


 


(i)                                     the General Partner, National System or the
Partnership 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;


 


(j)                                     proceedings being taken by a third party
against the General Partner, National System or the Partnership under
Insolvency Legislation or a receiver being appointed over, or execution being
levied against, any material portion of the assets of the General Partner or
the Partnership, unless such proceedings are withdrawn or terminated with
prejudice to the applicant within 30 days of having been commenced;


 


(k)                                  the approval by the General Partner of
termination of the Partnership and its authorization by LP Resolution;


 


(l)                                     the approval by the General Partner of
termination of the Partnership following failure by the Limited Partner to meet
a Capital Call, which failure shall continue for three Business Days after
notice from the General Partner;


 


(m)                               the occurrence of the Normal Course
Termination Date;


 


(n)                                 the Notes being rated lower than R-l (high)
or its equivalent by the Rating Agency or the Securitization Agent giving
notice in writing to the General Partner that the Rating Agency has given
notice to the Securitization Agent or the Limited Partner that, unless the
Limited Partnership or the ownership by the Limited Partner of the Limited
Partnership Interest is terminated, the Rating Agency will reduce the rating on
the notes below R-l (high) or its equivalent;


 


(o)                                 the failure by Alamo to observe any covenant
in the Alamo Lease which failure could be expected to have material adverse
effect on the Partnership, provided


 


42

















 


that
if such breach of covenant is capable of being remedied then it shall not
constitute a Termination Event unless it remains unremedied for five Business
Days after notice from the Partnership;


 


(p)                                 the inaccuracy when made of a representation
or warranty of Alamo in the Alamo Lease which inaccuracy could be expected to
have a material adverse effect on the Partnership, provided that if such
inaccuracy is capable of being remedied then it shall not constitute a
Termination Event unless it remains unremedied for five Business Days after
notice from the Partnership;


 


(q)                                 the failure by Vanguard to observe any
covenant contained in the Guarantee Letter, provided
that if such breach of covenant is capable of being remedied then it
shall not constitute a Termination Event unless it remains unremedied for three
Business Days after receipt of written notice from the Limited Partner; and


 


(r)                                    the inaccuracy when made of a representation
or warranty of Vanguard contained in the Guarantee Letter, provided that if such inaccuracy is
capable of being remedied then it shall not constitute a Termination Event
unless it remains unremedied for three Business Days after receipt of written
notice from the Limited Partner.


 


The General Partner shall be
required to give to the Limited Partner and the Rating Agency written notice
forthwith upon becoming aware of the existence of a Termination Event (other
than one described in section (g), (k), (l) or (m) of section 8.2). The General
Partner shall be obligated to notify the Limited Partner, the Securitization
Agent and the Rating Agency forthwith upon learning of the occurrence of any
material adverse change in the financial condition or operations of the General
Partner or the Partnership.


 


8.3                          Effect
of a Termination Event.


 


Upon
the occurrence of a Termination Event:


 


(a)                                  sections 4.2(c), (d) and (e) and section
4.3(b) shall no longer be operative;


 


(b)                                 the text in sections 4.2(h) and (i) shall be
deemed to have been deleted and the following to have been substituted
therefor:


 


“On
each Settlement Date a sum (if positive) equal to Depreciation plus Loss on
Dispositions less Gain on Dispositions for the relevant Settlement Period
(less, on the first Settlement Date occurring after a Termination Event, any
amounts representing Depreciation plus Net Loss on Dispositions transferred
from the Rental Account to the Vehicle Account on Estimation Dates occurring
during the Settlement Period just ended) shall be transferred from the Rental
Account to the Vehicle Account”;


 


(c)                                  the General Partner shall not make any
further Capital Calls or purchase additional Vehicles for the Partnership;


 


43

















 


(d)           the General Partner
shall immediately at its own expense cause to be redelivered to the province in
Canada where it registered any Partnership Vehicle that is outside Canada and
no Partnership Vehicle shall be rented for a one-way rental for drop-off
outside of Canada;


 


(e)           distributions of
cash from the Partnership to the Partners shall be made only as permitted by
sections 4.4 and 8.6 or, when applicable, section 8.5(b);


 


(f)            the General Partner
shall sell the Partnership Vehicles and the other assets of the Partnership and
wind up the business of the Partnership in an orderly manner as expeditiously
as practicable but in any event within six months of the date of the Termination
Event; and


 


(g)           the fact that a
breach of a Partner’s covenant hereunder may constitute, or may entitle the
other Partner to declare, a Termination Event shall not be construed as a
waiver of, or disentitle the other Partner from, other remedies at law or in equity.


 


8.4                          Additional
General Partner.


 


(a)           If
a Termination Event under section (b), (c), (d), (e), (f), (g), (h), (i), (j),
(o), (p), (q) or (r) of section 8.2 has occurred and is continuing, the Limited
Partner shall be entitled to appoint an additional general partner to the
Partnership (the “Additional General Partner”) who shall serve in addition to the General
Partner. Notwithstanding the foregoing sentence if a Termination Event
described in section 8.2(c) is a result solely of a Manufacturer ceasing to be
an Eligible Manufacturer, then such a Termination Event shall not give rise to
a right of the Limited Partner to appoint an Additional General Partner. Upon
its appointment, the Additional General Partner shall execute the agreement
contemplated by the last sentence of section 7.3, make a Capital Contribution
to the Partnership of $10.00 and carry out the functions that, in the absence
of the Additional General Partner’s appointment, the General Partner would be
obligated to carry out hereunder after a Termination Event. In so doing, the
Additional General Partner shall be bound to act in the best interest of the
Partnership. The income entitlement of the Additional General Partner shall be
set at a commercially marketable rate not to exceed 1% of the liquidation
proceeds of Partnership Vehicles.


 


(a.1)        The
parties acknowledge that the AGP was appointed as Additional General Partner on
September 28, 2001. The validity of such appointment is acknowledged by the
General Partner notwithstanding that a Termination Event had not occurred as of
that date. Notwithstanding its appointment and the provisions of section 8.4,
the Additional General Partner shall not, until there shall have occurred a
Termination Event described in section (b), (c), (d), (e), (f), (g), (h), (i),
(j), (o), (p), (q) or (r), of Section 8.2 and the Limited Partner shall have
consented to the Additional General Partner so acting, (but shall if and after
such Termination Event has occurred and such consent has been given) carry out
the functions that, in the absence of the Additional General Partner’s
appointment, the General Partner would be obligated to carry out hereunder. Until
such time, if ever, as such a Termination Event shall have occurred and such
consent shall have been given, the fees of the Additional General Partner shall
be paid by the General Partner at the rate agreed to by the Parties. After such
a Termination


 


44

















 


Event shall have occurred
and such consent shall have been given, the fee will be as set out in section
8.4(a).


 


(b)           Upon
appointment of the Additional General Partner, the Additional General Partner
shall control the Rental Account, the Vehicle Account, the VAT Account and all
other assets of the Partnership, to the exclusion of the General Partner. For
greater certainty, the General Partner will be entitled, after the appointment
of an Additional General Partner, to the distributions payable to the General
Partner under section 8.6(b).


 


(c)           The
General Partner hereby irrevocably nominates, constitutes and appoints the Limited
Partner, with full power of substitution, as the General Partner’s agent and
true and lawful attorney to act on its behalf with full power and authority in
its name, place and stead to execute, swear to, acknowledge, deliver and record
or file as and where required any document that the Additional General Partner
determines to be necessary or desirable, in its sole opinion in connection with
or relating to the transfer of registered ownership of any Partnership Vehicle from
the General Partner as general partner of the Partnership to the Additional
General Partner as general partner of the Partnership. The power of attorney
granted herein is irrevocable and is a power coupled with an interest and
extends to the successors and assigns of the General Partner. The General Partner
agrees to be bound by any representation or action made or taken by the Limited
Partner pursuant to this power of attorney and hereby waives any and all
defences which may be available to contest, negate or disaffirm the action of
the Limited Partner taken in good faith under this power of attorney.


 


(d)           The
Additional General Partner may (subject to the last sentence of this section 8.4(d))
retain one or more agents, managers or servicers (collectively, a “Servicer”) to assist the Additional General Partner in
carrying out its functions and responsibilities hereunder but the compensation
of the Servicer shall be the sole responsibility of the Additional General
Partner and shall not be a Partnership Expense and the appointment by the
Additional General Partner of a Servicer shall not relieve the Additional
General Partner of any liabilities hereunder. Unless the Additional General
Partner has been approved as such by the Rating Agency, the Additional General
Partner shall appoint a Servicer approved by the Rating Agency.


 


8.5                          Certain
Purchase Rights of the General Partner.


 


(a)           After
the occurrence of a Termination Event the General Partner shall have the right,
exercisable in accordance with this section 8.5(a), to purchase from the
Partnership all (but not less than all) the Partnership Vehicles. The General
Partner may exercise its right to purchase the Partnership Vehicles by
delivering to the Partnership and the other Partners written notice (the “Purchase Option Notice”) of its exercise of its option not
later than three Business Days following occurrence of the Termination Event.
Delivery of a Purchase Option Notice shall constitute a binding agreement of
purchase and sale pursuant to which the Partnership shall sell to the General
Partner and the Genera] Partner shall purchase from the Partnership the
Partnership Vehicles for a purchase price (the “Option
Purchase Price”) equal to the Current Book Value of the Partnership
Vehicles as of the close of business on the day immediately preceding the date
of closing (the “Repurchase Closing Date”) of the
transaction.


 


45

















 


The
Repurchase Closing Date shall occur on the seventh day (or if such day is not a
Business Day, the next Business Day) following receipt of the Purchase Option
Notice by the Partnership. At closing and against payment to the Partnership of
the Option Purchase Price in cash or by bank draft or certified cheque, the
Partnership shall transfer the Partnership Vehicles to the General Partner or
as the General Partner may in writing direct, free and clear of all
encumbrances except encumbrances in favour of Manufacturers pursuant to
Qualified PMSIs, and shall deliver to the General Partner:


 


(i)                                     executed copies of the blanket assignments
pertaining to such purchase in substantially the form delivered by the General
Partner to the Partnership pursuant to the Assignment and Assumption Agreement
executed by National Tilden Operations Inc. and the Partnership on June 26,
1997 (the “Assignment and Assumption Agreement”)
or in such other form as may be reasonably required by the General Partner;


 


(ii)                                  executed motor vehicle ownership transfers in
the form prescribed by the highway traffic or motor vehicle registration
legislation applicable to the Partnership Vehicles; and


 


(iii)                               such other documents or instruments of
conveyance or further assurance as may be reasonably required by the General
Partner.


 


The
Option Purchase Price received by the Partnership shall be deposited to the Vehicle
Account and applied forthwith (whether or not the Repurchase Closing. Date is a
Settlement Date) in accordance with section 8.6(a) or 8.6(b) as the case may
be.


 


The
General Partner shall be responsible for the payment of any and all (i)
transfer fees, license fees, registration fees or other similar government fees
and charges and (ii) Taxes, in connection with the transfer of Partnership
Vehicles pursuant to this section 8.5(a).


 


(b)           After
the occurrence of a Termination Event the General Partner shall have the right,
exercisable in accordance with this section 8.5(b), to purchase from the
Limited Partner the Limited Partnership Interest. The General Partner may
exercise this right by delivering to the Limited Partner written notice (the “Partnership Interest Short Option Notice”) of its exercise
of its option not later than three Business Days after the occurrence of the
Termination Event. Delivery of a Partnership Interest Short Option Notice shall
constitute a binding agreement of purchase and sale pursuant to which the
Limited Partner shall sell to the General Partner, and the General Partner
shall purchase from the Limited Partner, the Limited Partnership Interest for
an aggregate purchase price (the “Short Option Purchase
Price”) equal to the Limited Partner’s Capital Account as of the
close of business on the day immediately preceding the date of closing of the
transaction (the “Short Option Closing Date”) plus
any unpaid Income Share of the Limited Partner calculated to the maturity date
of Notes outstanding as of the Short Option Closing Date.


 


The
Short Option Closing Date shall occur on the seventh day (or if such day is not
a Business Day, the next Business Day) following receipt of the Partnership
Interest Short Option Notice by the Limited Partner. At closing and against
payment to the Limited Partner of


 


46

















 


the Short Option Purchase
Price in cash or by bank draft or certified cheque, the Limited Partner shall
transfer to the General Partner or as it may in writing direct the Limited
Partnership Interest free and clear of all encumbrances and shall deliver to
the General Partner:


 


(i)                                     executed copies of such assignments
pertaining to such purchase and in such form as may be reasonably required by
the General Partner; and


 


(ii)                                  such other documents or instruments of
conveyance or further assurance as may be reasonably required by the General
Partner.


 


On
the Short Option Closing Date and prior to giving effect to the purchase and
sale of the Limited Partnership Interest on such date, all funds on deposit in
the Rental Account and the Vehicle Account shall be applied pursuant to and in
accordance with Sections 4.2 and 4.3 (as amended by sections 8.3(a) and (b)) as if
such date were a Settlement Date.


 


(c)           At
any time when there exists neither a Suspension Event nor a Termination Event,
the General Partner shall have the right, exercisable in accordance with this
section 8.5(c) to purchase from the Limited Partner the Limited Partnership
Interest. The General Partner may exercise this right by delivering to the
Limited Partner written notice (the “Partnership Interest Long
Option Notice”) of its exercise of the option. Delivery of a
Partnership Interest Long Option Notice shall constitute a binding agreement of
purchase and sale pursuant to which the Limited Partner shall sell to the
General Partner, and the General Partner shall purchase from the Limited
Partner, the Limited Partnership Interest for an aggregate purchase price (the “Long Option Purchase Price”) equal to the Limited Partner’s
Capital Account as of the close of business on the day preceding the day of
closing of the transaction (the “Long Option Closing Date”)
plus any unpaid Income Share of the Limited Partner calculated to and including
the day preceding the Long Option Closing Date.


 


The
Long Option Closing Date shall occur 90 days (or if such day is not a Business
Day, the next Business Day) following receipt of the Long Option Purchase
Notice by the Limited Partner. At closing and against payment to the Limited
Partner of the Long Option Purchase Price in cash or by bank draft or certified
cheque, the Limited Partner shall transfer to the General Partner or as it may
in writing direct the Limited Partnership Interest free and clear of all
encumbrances and shall deliver to the General Partner:


 


(i)                                     executed copies of such assignments
pertaining to such purchase and in such form as may be reasonably required by
the General Partner; and


 


(ii)                                  such other documents or instruments of
conveyance or further assurance as may be reasonably required by the General
Partner.


 


On
the Long Option Closing Date and prior to giving effect to the purchase and
sale of the Limited Partnership Interest on such date, all funds on deposit in
the Rental Account and the Vehicle Account shall be applied pursuant to and in
accordance with Sections 4.2 and 4.3 as if such date were a Settlement Date.


 


The
fact that the General Partner has delivered a Partnership Interest Long Option
Notice will not change any consequences hereunder of a Termination Event that
arises thereafter,


 


47

















 


except that no options shall
arise under sections (a) and (b) of this section 8.5. If a Termination Event
occurs after the General Partner has delivered a Partnership Interest Long
Option Notice, then the Long Option Closing Date shall occur on the earlier of
the date when it would have occurred in the absence of a Termination Event and
the seventh day (or if such day is not a Business Day, the next Business Day)
after the date of occurrence of the Termination Event.


 


8.6                          Distribution of Proceeds of
Winding Up.


 


(a)           On
each Settlement Date occurring after a Termination Event, the General Partner
(if no Additional General Partner has been appointed pursuant to Section 8.4)
shall distribute cash from the Rental Account and from the Vehicle Account as
follows and in the following order of priority:


 


(i)                                     from the Rental Account -


 


(A)                              firstly, to pay the expenses of liquidation
and the debts and liabilities of the Partnership to its creditors or to make
due provision for the payment thereof;


 


(B)                                secondly, to make the transfer (if any)
required by section 8.3(b) including shortfalls from prior periods;


 


(C)                                thirdly, to pay to the Limited Partner the
Income Share of the Limited Partner; and


 


(D)                               lastly, to pay any excess to the General
Partner; and 


 


(ii)                                  from the Vehicle Account


 


(A)                              firstly, to pay any portion of the expenses
of liquidation and the debts and liabilities of the Partnership to its
creditors or to make due provision for the payment thereof not paid or provided
for pursuant to section 8.6(a)(i)(A);


 


(B)                                secondly, to pay to the General Partner
amounts in respect of Temporary GP Contributions;


 


(C)                                thirdly, to pay to the General Partner
amounts (if any) to which the General Partner is entitled pursuant to section
5.4(d), if and to the extent that after payments pursuant to this section
8.6(a)(ii)(C) the amount of the General Partner’s Capital Account would be not
less than the amount of the General Partner’s Capital Commitment;


 


(D)                               fourthly, to pay to the Limited Partner any
portion of the Income Share of the Limited Partner not paid pursuant to section
8.6(a)(i)(C);


 


48

















 


(E)                                 fifthly, to pay to the Limited Partner an
amount equal to the Limited Partner’s Capital Account; and


 


(F)                                 lastly, to pay all remaining proceeds to the
General Partner.


 


(b)           On
each Settlement Date occurring after a Termination Event, if an Additional
General Partner has been appointed pursuant to Section 8.4, the Additional
General Partner shall distribute the net proceeds from the winding up of the
Partnership as follows and in the following order of priority:


 


(i)                                     from the Rental Account -


 


(A)                              firstly, to pay the expenses of liquidation
and the debts and liabilities of the Partnership to its creditors or to make
due provision for the payment thereof;


 


(B)                                secondly, to pay to the Additional General
Partner its income entitlement;


 


(C)                                thirdly, to make the transfer (if any)
required by section 8.3(b) including shortfalls from prior periods;


 


(D)                               fourthly, to pay the Income Share of the
Limited Partner; and


 


(E)                                 lastly, to pay any excess to the General
Partner; and


 


(ii)                                  from the Vehicle Account -


 


(A)                              firstly, to pay any portion of the expenses
of liquidation and the debts and liabilities of the Partnership to its
creditors or to make due provision for the payment thereof not paid or provided
for pursuant to section 8.6(b)(i)(A);


 


(B)                                secondly, to pay to the Additional General
Partner any portion of its income entitlement not paid pursuant to section
8.6(b)(i)(B));


 


(C)                                thirdly, to pay to the General Partner
amounts in respect of any Temporary GP Contributions;


 


(D)                               fourthly, to pay to the General Partner
amounts (if any) to which the General Partner is entitled pursuant to section
5.4(d), if and to the extent that after payments pursuant to this section
8.6(b)(ii)(D) the amount of the General Partner’s Capital Account would be not less
than the amount of the General Partner’s Capital Commitment;


 


(E)                                 fifthly, to pay to the Limited Partner the
Income Share of the Limited Partner to the extent not paid pursuant to section 8.6(b)(i)(D);


 


49

















 


(F)                                 sixthly, to pay to the Limited Partner an
amount equal to the Limited Partner’s Capital Account;


 


(G)                                seventh, to pay to the Additional General
Partner an amount equal to its capital account; and


 


(H)                               lastly, to pay to the General Partner all
remaining proceeds.


 


8.7                          Negative
Balance in Capital Account of General Partner.


 


Neither
the Partnership nor the Limited Partner shall have a claim against the General
Partner with respect to any negative (i.e., debit) balance in its capital
account except to the extent the assets of the Partnership are insufficient to
pay debts, liabilities and obligations of the Partnership pursuant to the
provisions of Section 8.4.


 


8.8                          Return
of Capital.


 


Except
as provided in this Agreement, no Partner shall have the right to demand or
receive a return of Capital in a form other than cash, but nothing herein shall
prohibit a return of Capital in a form other than cash.


 


8.9                          Dissolution
of Partnership.


 


The
Partnership shall be dissolved when all of its assets have been sold and the
net proceeds therefrom have been distributed to the Partners. The General
Partner shall prepare or cause to be prepared a statement of financial position
of the Partnership which shall be reported upon by the Auditor and forward a
copy to each Person who was shown on the Register as a Partner at the date of dissolution.
The parties agree that the steps necessary to dissolve the Partnership should
be chosen so that the dissolution occurs in a tax efficient manner.


 


ARTICLE 9


INDEMNIFICATION


 


9.1                          Indemnification
by the General Partner.


 


Without
limiting any other rights which the Limited Partner may have hereunder or under
Applicable Law, the General Partner hereby agrees to indemnify the Limited
Partner and its respective trustees, officers, 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, and any
costs associated with the appointment of an Additional General Partner (all of
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 the
Limited Partner not being limited in the manner provided in section 2.13
(unless the liability of the Limited Partner is not so limited as a result of
any act or omission of the Limited Partner) or (b) a breach or violation of
this Agreement by the General Partner, excluding, however, damages, losses,
claims, liabilities, costs and expenses resulting from gross negligence or
wilful misconduct on the part of the Limited Partner. The obligations of the
General Partner under this section 9.1 shall survive any


 


50

















 


termination of this
Agreement. Without limiting the generality of the foregoing, the General Partner
shall indemnify the Indemnified Parties for Indemnified Amounts awarded or
incurred as aforesaid relating to or resulting from:


 


(a)                                  reliance on any representation, warranty or
statement made by the General Partner (or any of its officers) under, in or in
connection with this Agreement, any officer’s certificate or any information or
report delivered by the General Partner pursuant hereto or thereto, which shall
have been false, incorrect or inaccurate in any material respect when made;


 


(b)                                 the failure by the 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;


 


(c)                                  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


 


(d)                                 any material failure of the General Partner
to perform its covenants or obligations in accordance with the provisions of
this Agreement.


 


9.2                          Notification
of Potential Liability.


 


Each
of the Partners will, upon learning of potential situations involving possible liability
wider this Article 9, promptly notify the other Partner thereof but a failure
to notify by the Limited Partner shall excuse the General Partner from its
liability hereunder only if and to the extent that the General Partner can
demonstrate that the amount of its liability would have been less if it had
been given prompt notice thereof.


 


9.3                          Litigation.


 


At
the request of the Limited Partner, the General Partner shall, at its expense,
cooperate with the Limited Partner in any action, suit or proceeding brought by
or against the Limited Partner relating to any of the transactions contemplated
by this Agreement, any Partnership Vehicles or Vehicle Rental Agreements (other
than an action, suit or proceeding by one Partner against the other). In addition,
the General Partner agrees to notify the Limited Partner and the Limited
Partner agrees to notify the General Partner, at the General Partner’s 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 and (except for an action, suit or proceeding by one
Partner against the other Partner) to consult with the Limited Partner,
concerning the defence and prior to settlement; provided, however, that if (i) the General Partner shall
have acknowledged that section 9.1 would cover any judgment or expenses in any
action, suit or proceeding, and (ii) in the sole determination of the Limited
Partner, the General Partner has the financial ability to satisfy such judgment
or expenses, then the General Partner shall have the right, on behalf of the
Limited Partner but at the General Partner’s expense, to defend such action,
suit or proceeding with counsel selected by the General Partner, and shall have
sole discretion as to whether to litigate, appeal or enter into an exclusively
monetary settlement.


 


51














 


9.4                          Tax
Indemnity.


 


The General
Partner agrees to defend and to save the Indemnified Parties harmless from and
against any and all liabilities arising out of the transactions contemplated by
this Agreement with respect to or resulting from any delay in paying or any
omission to pay any Taxes otherwise required under this Agreement to be paid or
withheld and remitted by or on any Vehicle rental customers. If the 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 the
Limited Partner hereunder or in connection with the execution, delivery, filing
and recording hereof and of the other documents to be delivered hereunder and
the consummation of the transaction contemplated hereby, or if the Limited
Partner shall be required to pay any Taxes in respect of any sum received by
the Limited Partner from the Partnership hereunder:


 


(a)           the sum payable to the
Limited Partner shall be increased as may be necessary (or an amount shall be
owed to the Limited Partner) so that, after all required deductions,
withholdings or payments in respect of such Taxes have been made, the Limited
Partner would have received or retained had no such deductions, withholdings or
payments been made;


 


(b)           the General Partner
shall make such deductions or withholdings; and


 


(c)           the 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 the Limited Partner copies of such forms as are required to be
provided to such authority evidencing the payment by the General Partner.


 


For greater
certainty, it is hereby acknowledged by the parties hereto that the General Partner
shall not be liable to indemnify the Indemnified Parties under this section for
any Taxes payable by, or required to be withheld by, the General Partner on
account of Taxes payable on the income of the Limited Partner, Taxes payable by
virtue of the non-resident status of the Limited Partner, Taxes payable on the
capital of the Limited Partner or Taxes payable by reason of any breach of this
Agreement by the Limited Partner.


 


9.5                          Tax
Credit.


 


If a payment
(a “Grossed-Up Payment”) made by the
General Partner includes amount (a “Gross-Up”)
referred to in section 9.4, and the Limited Partner is able to apply for or
otherwise take advantage of any tax credit, deduction in computing income or
similar benefit by reason of any withholding or deduction made by the General
Partner in respect of the Grossed-Up Payment (such credit, deduction or benefit
hereinafter being referred to as a “Tax Credit”),
then the Limited Partner will, at the expense of the General Partner, use
reasonable endeavours to obtain the Tax Credit and, if it realizes the Tax
Credit (whether by way of reducing taxes payable, receiving a tax refund, or
otherwise), the Limited Partner shall, subject to the provisos to this Section
9.5, pay to the General Partner such amount, if any (not exceeding the 


 


52

















 


Gross-Up) as is determined in
the discretion of the Limited Partner to be equal to the net after-tax value to
the Limited Partner of such part of the Tax Credit as is reasonably
attributable to such withholding or deduction having regard to all dealing
giving rise to similar credits, deductions or benefits in relation to the same
tax period and to the cost of obtaining the same. Any such reimbursement shall
be conclusive evidence of the amount due to the General Partner and shall be
accepted by it in full and final settlement of its rights of reimbursement
hereunder; provided that notwithstanding the foregoing, (i) nothing herein
contained shall interfere with the right of the Limited Partner to arrange its
tax affairs in whatever manner it deems fit and, in particular, the Limited
Partner shall not be under any obligation to claim relief from its profits or
similar tax liability in respect of any such deduction or withholding in
priority to any other relief, claims, credit or deductions available to it; and
(ii) the Limited Partner shall not be obligated to disclose to the General
Partner any information regarding its tax affairs or tax computations;
provided, further, that if, as a result of (x) an audit of the Limited
Partner by its auditors or by a taxing authority, or (y) any change to the
affairs of the Limited Partner or to the available information concerning such
affairs, which change is relevant to the determination that reimbursement with
respect to a Tax Credit is payable to the General Partner hereunder, the
Limited Partner determines, in its discretion, that any such payment made by
the Limited Partner known the results of such audit or anticipated such change,
or would have been made in a smaller amount, than the General Power shall pay
to the Limited Partner the amount of such payment which the Limited Partner so
determines to have been an overpayment.


 


9.6                          Survival.


 


It is
expressly acknowledged and agreed by the parties hereto that the obligations of
the General Partner under this Article 9 shall survive the consummation of the
transactions contemplated by this Agreement and, notwithstanding the occurrence
of such events, shall continue in full force and effect.


 


9.7                          Change
in Circumstances.


 


If at any
time:


 


(a)           the introduction of, or
any change (including any change by way of imposition or increase of any
reserve requirements) in, or in the interpretation or administration of, any
Applicable Law by any court or governmental authority;


 


(b)           the compliance by the
Limited Partner, or the liquidity agent under the Liquidity Agreement (the “Liquidity Agent”), the Securitization Agent, or any of
their Affiliates (each, an “Affected Person”),
with any changed or introduced guideline, direction or request, or any change
in, or direction regarding, the interpretation or administration thereof, from
or by any governmental authority or professional self-regulating or governing
body (including, for greater certainty, the Office of the Superintendent of
Financial Institutions Canada, the Board of Governors of the United States
Federal Reserve System or any other body or entity governing accounting
treatment or reserve requirements) (whether or not having the force of law); or


 


53

















 


(c)           any
Affected Person is required pursuant to any introduced or changed legal or
regulatory requirement, request, direction or guideline, or change in, or
direction regarding, the interpretation or administration thereof (including
with respect to reserve, deposit, capital adequacy or similar requirements),
from or by any governmental authority or other body described in (b) above, to
post or allocate additional capital to that which is maintained by any such
Affected Person and any such posting or allocation of additional capital (or
any portion thereof) is determined by the Affected Person to be due to, related
to or as a result of the Affected Person’s direct or indirect (including
through the provision of liquidity support for the Notes) obligations under or
related to this Agreement,


 


has the effect of:


 


(i)            (A)
increasing the costs, expenses, or liabilities of any Affected Person
(including as a result of a change in the Affected Person’s capital position,),
as such costs, expenses or liabilities relate to the making or funding of
capital contributions hereunder or maintaining the Limited Partner’s Capital
Account or paying for the Liquidity Agreement, (B) reducing the rate of return
(on capital or otherwise) to the Affected Person in connection with, or as a
result of the Affected Person either having to raise additional capital or
incurring a deteriorated capital position as a result of the making or funding
of capital contributions hereunder or maintaining the Limited Partner’s Capital
Account or paying for the Liquidity Agreement, (C) requiring the payment of any
Tax on or calculated with reference to the capital or debt of the Affected
Person, or (D) requiring the Affected Person to make any payment it would not
otherwise be required to make; or


 


(ii)           reducing
the amount of any Income Share of the Limited Partner,


 


the Partnership shall, from time to time upon demand by the Limited
Partner, pay the Limited Partner or the applicable Affected Person
simultaneously with the payment of the Income Share of the Limited Partner the
amount of any such increased costs, expenses or liabilities incurred, reduction
in amounts received or receivable, reduction in rate of return or required
payment made or to be made. The Limited Partner shall deliver to the
Partnership a certificate setting forth the computation of the amount of any
such increased costs, expenses or liabilities, reduction in amounts received or
receivable, reduction in rate of return, or required payment made or to be made,
which computation may utilize such averaging and attribution methods as the
Limited Partner or the applicable Affected Person believes to be fair, acting
reasonably. Upon becoming aware thereof, the Limited Partner shall promptly
notify the Partnership of any event or circumstance which could result in any
payment being required to be made by the Partnership pursuant to this Section
9.7.


 


54

















 


ARTICLE 10

GENERAL


 


10.1                        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 or if sent by
ordinary first class mail within Canada, postage prepaid, addressed as follows:


 


If to the General Partner,
addressed to it at:


 


	
  280 Attwell
  Drive

  	
   

  	
   

  
	
  Etobicoke,
  ON M9W 5B2

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
   

  	
  Chief
  Financial Officer

  
	
  Fax No.:

  	
   

  	
  416.798.1345

  
	
   

  
	
  with copies
  to:

  
	
   

  
	
  Vanguard Car
  Rental USA Holdings Inc.

  
	
  200 South
  Andrews Avenue

  
	
  11th Floor

  
	
  Fort
  Lauderdale, Florida

  
	
  33301

  
	
   

  
	
  Attention:

  	
   

  	
  Howard
  Schwartz, General Counsel

  
	
  Fax No.:

  	
   

  	
  954.320.4530

  
	
   

  
	
  -and-

  
	
   

  
	
  Cassels
  Brock & Blackwell LLP

  
	
  2100 Scotia
  Plaza, 40 King Street West

  
	
  Toronto, ON
  M5H 3C2

  
	
   

  
	
  Attention:

  	
   

  	
  Alison R.
  Manzer

  
	
  Fax No.:

  	
   

  	
  416.350.6938

  
					



 


and if to the AGP, addressed to
it at:


 


	
  c/o Ian
  Bandeen

  
	
  3 Meredith
  Crescent

  
	
  Toronto, ON
  M42 3B7

  
	
   

  
	
  with copies
  to:

  



 


55

















 


	
  c/o Davies Ward Phillips & Vineberg LLP

  	
   

  	
   

  
	
  1 First Canadian Place

  	
   

  	
   

  
	
  Suite 4400, Box 63

  	
   

  	
   

  
	
  Toronto, ON  M5X 1B1

  	
   

  	
   

  
	
   

  
	
  Attention:

  	
  Derek R.G. Vesey

  
	
  Fax No.:

  	
  416.863.0871

  
				



 


and if to the Limited Partner, addressed to
it at:


 


	
  c/o BNY Trust Company of Canada

  	
   

  	
   

  
	
  302 Bay Street, 14th Floor

  	
   

  	
   

  
	
  Toronto, ON  M5X 1A1

  	
   

  	
   

  
	
   

  
	
  Attention:

  	
  Senior Manager, Indenture Trust

  
	
  Fax No:

  	
  416.867.6264

  
				



 


with a copy to the 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

  
				



 


and if to the Rating Agency, addressed to it
at:


 


	
  Dominion Bond Rating Service

  	
   

  	
   

  
	
  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 sent by mail shall be deemed to have been received on the third Business
Day after the date on which the same was deposited in a regularly maintained
receptacle for the deposit of mail, addressed and sent as aforesaid. In the
event of any disruption, strike or interruption in the Canadian postal service
after mailing, and prior to receipt or deemed receipt, such notice shall be
deemed to have been received on the third Business Day following full
resumption of the Canadian postal service. 
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. The Limited Partner may change its address
or fax number by


 


56

















 


giving written notice of such
change to the General Partner or the General Partner may change its address or
fax number by giving such notice thereof to the Limited Partner.


 


10.2                        Limited
Partner Not a General Partner.


 


If any provision
of this Agreement has the effect of imposing upon the Limited Partner any of
the liabilities or obligations of a general partner under the Act, such
provision shall be of no force and effect. 
The intention of the parties hereto in entering into this Agreement is
to form a limited partnership and to be in relation as between themselves and
toward others of general partner and limited partner and not general partner
and general partner and not debtor and creditor and not agent and principal
(except that in renting Partnership Vehicles, the General Partner will be the
agent of the Partnership as undisclosed principal).


 


10.3                        Limitation
of Liability and Capacity.


 


The
obligations or liabilities of the Limited Partner under this Agreement shall be
satisfied only out of the property or assets of Canadian Master Trust and no
resort shall be had to the property or assets of The Trust Company of Bank of
Montreal or any of its shareholders, directors, officers, employees or agents
or any of the beneficiaries of Canadian Master Trust (other than the property
or assets of Canadian Master Trust).  The
Trust Company of Bank of Montreal is entering into this Agreement on behalf of
Canadian Master Trust in its capacity as trustee of Canadian Master Trust, and
this Agreement shall enure to the benefit of and be binding upon the successors
of The Trust Company of Bank of Montreal in its capacity as trustee of Canadian
Master Trust.


 


10.4                        Counterparts.


 


This Agreement
may be executed in any number of counterparts with the same effect as if all
parties hereto had all signed the same document.  All counterparts and adopting instruments
shall be construed together and shall constitute one and the same agreement.


 


10.5                        Binding
Effect.


 


This Agreement
shall be binding upon and enure to the benefit of the parties hereto and, to
the extent permitted hereunder, their respective successors and assigns.


 


57

















 


Executed in Toronto, Ontario on
this 14th day of October, 2003.


 


	
   

  	
  NATIONAL
  CAR RENTAL

  
	
   

  	
  (CANADA)
  INC.

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ PETER
  [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   Name:
  PETER [ILLEGIBLE]

  
	
   

  	
   

  	
   Title:
  CHIEF FINANCIAL OFFICER.

  



 


	
   

  	
   

  
	
   

  	
  1487792
  ONTARIO INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Ian
  Bandeen

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Ian Bandeen

  
	
   

  	
   

  	
    Title:
  

  	
  President

  
					



 


	
   

  	
  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/ Paul
  Smeeton

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Paul Smeeton

  
	
   

  	
   

  	
  Title: 

  	
  Executive
  Managing

  
	
   

  	
   

  	
  Director,
  Securitization and

  
	
   

  	
   

  	
  Structured
  Finance

  
					



 


	
   

  	
   

  	
  /s/ Jerry
  Marriott

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Jerry
  Marriott

  
	
   

  	
   

  	
  Title: 

  	
  Vice-President,

  
	
   

  	
   

  	
  Securitization
  and Structured

  
	
   

  	
   

  	
  Finance

  
					



 


58

















 


We hereby consent to the
amendments contained herein.


 


	
   

  	
  DOMINION
  BOND RATING

  SERVICE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/ Greg
  Nelson

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Greg Nelson

  
	
   

  	
   

  	
  Title: 

  	
  Executive
  Vice-President

  
	
   

  	
   

  	
   

  	
  Structured Finance

  
					



 


We hereby consent to the
amendments contained herein.


 


	
   

  	
  VANGUARD
  CAR RENTAL USA

  HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  by

  	
  /s/
  [ILLEGIBLE]

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   Title:

  



 


59