Exhibit 4.5.2


 




 


 





21 December 2005


 


INTERCREDITOR
DEED


 


between


 


HERTZ
INTERNATIONAL, LTD


as Parent


 


HERTZ
EUROPE LIMITED

as Coordinator


 


THE
ORIGINAL OBLIGORS


 


BNP PARIBAS

as A/C Facility Agent and
NZ Facility Agent


 


BNP PARIBAS

as Security Agent


 


BANCO BNP PARIBAS BRASIL S.A.


as Brazilian Facility Agent


 


BNP PARIBAS

as Australian Security Trustee


 


THE
ORIGINAL A1 BANKS


 


THE
ORIGINAL A2 BANKS


 


THE
ORIGINAL BRAZILIAN BANKS


 


THE
ORIGINAL NZ BANKS


 


THE
ORIGINAL C BANKS


 


THE
ORIGINAL INTRA-GROUP CREDITORS


(upon accession)


 


THE
ORIGINAL INTRA-GROUP DEBTORS


(upon accession)


 


and


 


THE
ORIGINAL EQUITY FINANCE PROVIDERS


 


 




 








5 Old Broad Street

London EC2N 1DW


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  1.

  	
  INTERPRETATION

  	
  2

  
	
   

  	
   

  	
   

  
	
  2.

  	
  RANKING
  OF INDEBTEDNESS

  	
  13

  
	
   

  	
   

  	
   

  
	
  3.

  	
  PROHIBITED
  PAYMENTS

  	
  13

  
	
   

  	
   

  	
   

  
	
  4.

  	
  PERMITTED
  PAYMENTS

  	
  17

  
	
   

  	
   

  	
   

  
	
  5.

  	
  ENFORCEMENT
  ACTION

  	
  17

  
	
   

  	
   

  	
   

  
	
  6.

  	
  SECURITY

  	
  20

  
	
   

  	
   

  	
   

  
	
  7.

  	
  ENFORCEMENT
  OF SECURITY

  	
  22

  
	
   

  	
   

  	
   

  
	
  8.

  	
  SUBORDINATION
  ON INSOLVENCY

  	
  23

  
	
   

  	
   

  	
   

  
	
  9.

  	
  TURNOVER
  OF RECEIPTS

  	
  24

  
	
   

  	
   

  	
   

  
	
  10.

  	
  APPLICATION
  OF RECOVERIES

  	
  27

  
	
   

  	
   

  	
   

  
	
  11.

  	
  SUBROGATION

  	
  30

  
	
   

  	
   

  	
   

  
	
  12.

  	
  PROTECTION
  OF SUBORDINATION

  	
  31

  
	
   

  	
   

  	
   

  
	
  13.

  	
  STATUS
  OF OBLIGORS

  	
  32

  
	
   

  	
   

  	
   

  
	
  14.

  	
  AMENDMENTS
  TO DOCUMENTS

  	
  32

  
	
   

  	
   

  	
   

  
	
  15.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  34

  
	
   

  	
   

  	
   

  
	
  16.

  	
  INFORMATION
  AND CO-OPERATION

  	
  34

  
	
   

  	
   

  	
   

  
	
  17.

  	
  ATTORNEY

  	
  35

  
	
   

  	
   

  	
   

  
	
  18.

  	
  HEDGING
  BANKS

  	
  36

  
	
   

  	
   

  	
   

  
	
  19.

  	
  PRO
  RATA SHARING

  	
  37

  
	
   

  	
   

  	
   

  
	
  20.

  	
  APPOINTMENT
  AND DUTIES OF SECURITY AGENT

  	
  38

  
	
   

  	
   

  	
   

  
	
  21.

  	
  FEES
  AND EXPENSES

  	
  60

  
	
   

  	
   

  	
   

  
	
  22.

  	
  INDEMNITIES

  	
  60

  
	
   

  	
   

  	
   

  
	
  23.

  	
  NOTICE

  	
  61

  
	
   

  	
   

  	
   

  
	
  24.

  	
  NO
  IMPLIED WAIVERS AND AMENDMENTS

  	
  64

  
	
   

  	
   

  	
   

  
	
  25.

  	
  INVALIDITY
  OF ANY PROVISION

  	
  64

  
	
   

  	
   

  	
   

  
	
  26.

  	
  CHANGE
  TO PARTIES

  	
  64

  
	
   

  	
   

  	
   

  
	
  27.

  	
  CERTIFICATES
  CONCLUSIVE

  	
  66

  
	
   

  	
   

  	
   

  
	
  28.

  	
  GOVERNING
  LAW AND SUBMISSION TO JURISDICTION

  	
  66

  
	
   

  	
   

  	
   

  
	
  29.

  	
  COUNTERPARTS

  	
  67

  
	
   

  	
   

  	
   

  
	
  30.

  	
  THIRD
  PARTY RIGHTS

  	
  68

  
	
   

  	
   

  	
   

  
	
  SCHEDULE
  1

  	
  69

  
	
   

  	
   

  
	
  SCHEDULE
  2

  	
  72

  



 


i

















 


THIS DEED is made on
21 December 2005 between:


 


(1)           HERTZ INTERNATIONAL LTD, a
corporation incorporated under the laws of the State of Delaware, having (as at
the date hereof) its registered office at 225 Brae Boulevard, Park Ridge, New
Jersey, 07657 (the “Parent”);


 


(2)           THE COMPANIES named in Part 1 of Schedule 1 (the “Original Obligors”);


 


(3)           BNP PARIBAS as facility agent for the A/C Finance Parties (the “A/C Facility Agent”);


 


(4)           BANCO BNP PARIBAS BRASIL
S.A. as administrative agent
for the Brazilian Finance Parties (the “Brazilian
Facility Agent”);


 


(5)           BNP PARIBAS as facility agent for the New Zealand
Finance Parties (the “NZ Facility Agent”);


 


(6)           BNP PARIBAS as security agent for the Senior Finance Parties (the
“Security Agent”);


 


(7)           BNP PARIBAS as security trustee for the Senior Finance Parties in
respect of the Australian Security Document (the “Australian Security Trustee”);


 


(8)           THE INSTITUTIONS named in Part 2 of Schedule 1 (the “Original A1 Banks”);


 


(9)           THE INSTITUTIONS named in Part 3 of Schedule 1 (the “Original A2 Banks”);


 


(10)         THE INSTITUTIONS named in Part 4 of Schedule 1 (the “Original Brazilian Banks”);


 


(11)         THE INSTITUTIONS named in Part 5 of Schedule 1 (the “Original NZ Banks”);


 


(12)         THE
INSTITUTIONS named in Part 6 of Schedule 1 (the “Original C Banks”);


 


(13)         THE COMPANIES named in Part 7 of Schedule 1 (the “Original Intra-Group Creditors”);


 


(14)         THE
COMPANIES named in Part 8 of Schedule 1 (the “Original Intra-Group Debtors”);


 


(15)         THE COMPANIES named in Part 9 of Schedule 1 (the “Original Equity Finance Providers”); and


 


(16)         HERTZ EUROPE LIMITED, a
private limited company incorporated under the laws of England and Wales with
company registration number 01008739, having (as at the date hereof) its
registered office at Hertz House, 11 Vine Street, Uxbridge, Middlesex, UB8 1QE (the “Coordinator”).


 


NOW
THIS DEED WITNESSES as follows:


 

















 


1.             INTERPRETATION


 


1.1          Definitions


 


In this Deed, unless the context otherwise
requires, the following expressions have the meanings set opposite them:


 


“A1 Banks”
means the Original A1 Banks and any assignee or transferee to whom rights
and/or obligations in respect of the A1 Facility are assigned, transferred or
novated in accordance with the A/C Facilities Agreement;


 


“A2 Banks”
means the Original A2 Banks and any assignee or transferee to whom rights
and/or obligations in respect of the A2 Facility are assigned, transferred or
novated in accordance with the A/C Facilities Agreement;


 


“A1 Discharge
Date” means the date on which all A1 Indebtedness has been fully
discharged and all commitments of the A1 Finance Parties to the Obligors have
been terminated or cancelled in accordance with the A/C Finance Documents;


 


“A2 Payment
Default” means an Event of Default in respect of the A2 Indebtedness
under clause 23.1 (Failure to Pay)
of the A/C Facilities
Agreement;


 


“A2
Standstill Period” has the meaning given to it in Clause 5.5(a)(ii)
(Permitted A2 Enforcement Action);


 


“A/C
Facilities” means together, the A Facilities and the C Facility;


 


“A/C
Facilities Agreement” means the facilities agreement dated on or
around the date hereof, as the same may be amended and restated from time to
time, between, inter alios, the
borrowers and the guarantors as named therein, the Original A1 Banks, the
Original A2 Banks, the Original C Banks, the Facility Agent, the Security
Agent, CALYON as Co-Arranger and BNP Paribas and The Royal Bank of Scotland plc
as Mandated Lead Arrangers;


 


“A/C Facility
Agent” means BNP Paribas in its capacity as facility agent for the
A/C Banks or such other facility agent for the A/C Banks as shall be appointed
under clause 34.10 (Resignation)
of the A/C Facilities Agreement;


 


“A/C Proceeds”
means any proceeds received or otherwise arising pursuant to any
Enforcement Action in respect of clause 24 (Guarantee
and Indemnity) of the A/C Facilities Agreement or the A/C Security
Documents other than, in each case, any such proceeds received from the Parent
or in respect of any Security Document executed by the Parent;


 


“A/C Security
Documents” means the Security Documents in respect of the A/C
Indebtedness only;


 


“Accession
Deed” means:


 


(a)           in relation to an A/C
Bank a Transfer Certificate as defined in the A/C Facilities Agreement; and


 


2

















 


(b)           in relation to an Equity
Finance Provider, an Intra-Group Creditor, a B Bank, or an Agent, a deed of
accession substantially in the form set out in Schedule 2 (Accession Deed);


 


“Agents”
means, together each of the Facility Agents and Security Agent and “Agent” means any one of them;


 


“Assignee
Bank” has the meaning given to it in Clause 26.2 (Accession of Assignee Banks);


 


“Assignor
Bank” has the meaning given to it in Clause 26.2 (Accession of Assignee Banks);


 


“Australian
Security Document” means the charge dated on or about the date
hereof granted by HA Funding Pty Limited (ACN 117 549 498), as chargor, in
favour of the Australian Security Trustee, as chargee, stated to be governed by
the laws of New South Wales in Australia;


 


“B Banks”
means together, (a) the NZ Banks and (b) the Brazilian Banks and “B Bank” means any one of them as the
context requires;


 


“B Facilities”
means together, (a) the Facility as defined in the NZ Facility Agreement and
(b) the Credit as defined in the Brazilian Facility Agreement;


 


“B Facility
Agreements” means together, the Brazilian Facility Agreement and the
NZ Facility Agreement;


 


“Banks”
means the A1 Banks, the A2 Banks, the B Banks and the C Banks and “Bank” means any one of them, as the context
requires;


 


“Belgian Law
Security Documents” means the Security Documents stated to be
governed by the laws of Belgium;


 


“Beneficiary”
means each Senior Finance Party (including each Hedging Bank) in its capacity
as a beneficiary of any of the Security and “Beneficiaries”
means all of them;


 


“BKBM”
has the meaning given to it in the NZ Facility Agreement;


 


“Borrowers” means each member of the Group
which is or becomes a borrower under the A/C Facilities Agreement or either of
the B Facility Agreements in accordance with the terms thereof and “Borrower” means any one of them, as the
context requires;


 


“Brazilian
Banks” means the Original Brazilian Banks and any assignee or
transferee to whom rights and/or obligations in respect of the Brazilian
Facility Agreement are assigned, transferred or novated in accordance with the provisions thereof;


 


“Brazilian Facility Agent” means Banco BNP
Paribas Brasil S.A. in its capacity as facility agent for the Brazilian Banks
or such other facility agent as shall be appointed in accordance with the
Brazilian Facility Agreement;


 


3

















 


“Brazilian
Facility Agreement” means the agreement for offering a revolving
credit facility dated on or around the date hereof, as the same may be amended
and restated from time to time, between Car Rental Systems Do Brasil Locação De Veículos Ltda, as the borrower,
Hertz Corporation, as the guarantor, the Original Brazilian Banks and the Brazilian
Facility Agent and pursuant to which the Brazilian Banks have agreed to make
available a revolving loan facility denominated in Brazilian Real to the
borrower named therein;


 


“Brazilian
Guarantee” means the guarantee dated on or around the date of the
Brazilian Facility Agreement, as the same may be amended and restated from time
to time, between the Target, as guarantor, and the Brazilian Facility Agent in
respect of the Borrower’s obligations under the Brazilian Facility Agreement;


 


“Brazilian Proceeds” means any proceeds
received or otherwise arising pursuant to any Enforcement Action in respect of
the Brazilian Guarantee and/or the Brazilian Security Documents other than any
such proceeds received from the Parent;


 


“Brazilian Security Documents” means the
Security Documents executed in respect of the Brazilian Indebtedness only;


 


“C Banks” means the Original C Banks and any
assignee or transferee to whom rights and/or obligations are assigned,
transferred or novated in respect of the C Facility in accordance with the A/C
Facilities Agreement;


 


“Canadian Law Security Documents” means the
Security Documents stated to be governed by Canadian Law;


 


“Canadian Supplemental Security Agent” means
BNP Paribas (Canada) or any additional or other individual or institution as a
separate trustee, co-trustee, security agent, security sub-agent or security
co-agent appointed by the Security Agent in respect of the Canadian
Outstandings, which appointment is confirmed by the Canadian Borrowers;


 


“CDI” has the meaning given to it in the
Brazilian Facility Agreement;


 


“Charged Property” has the meaning given to
it in the Australian Security Document;


 


“Commitments”
means together, (a) the Commitments as defined in the A/C Facilities Agreement,
(b) the Commitments as defined in the Brazilian Facility Agreement and (c) the
Commitments as defined in the NZ Facility Agreement or any of them, as the
context requires;


 


“Default”
means an Event of Default or a Potential Event of Default as defined under each
of the Facilities Agreements, as the context requires;


 


“Discharge
Date” means:


 


(a)           when designated “A/C”, the date on which all A/C Indebtedness has been fully
discharged and all commitments of the A/C Finance Parties to the Obligors have
been terminated or cancelled in accordance with the A/C Finance Documents;


 


4

















 


(b)           when designated “Brazilian”, the date on which all Brazilian Indebtedness has
been fully discharged and all commitments of the Brazilian Finance Parties to
the Obligors have been terminated or cancelled in accordance with the Brazilian
Finance Documents;


 


(c)           when designated “NZ”, the date on which all NZ Indebtedness has been fully
discharged and all commitments of the NZ Finance Parties to the Obligors have
been terminated or cancelled in accordance with the NZ Finance Documents;


 


(d)           when designated “Senior”, the date on which all Senior Indebtedness has been
fully discharged and all commitments of the Senior Finance Parties to the
Obligors have been terminated or cancelled in accordance with the Senior
Finance Documents; and


 


(e)           without any such designation the A/C
Discharge Date, the Brazilian Discharge Date, the NZ Discharge Date or the
Senior Discharge Date or any of them as the context requires;


 


“Dutch Law
Security Documents” means the Security Documents stated to be
governed by Dutch law;


 


“Early
Termination Date” means an Early Termination Date (as defined in the
relevant Hedging Agreement);


 


“Enforcement
Action” means, in relation to any Indebtedness, any action
whatsoever to:


 


(a)           make a
formal written demand for payment,
declare in writing to be prematurely due and payable or otherwise seek formally
and in writing to accelerate payment of all or any part of that Indebtedness;
or


 


(b)           take any
action to recover all or any part of that Indebtedness by exercising any rights
of set off or combination of accounts or similar action; or


 


(c)           declare an
Early Termination Date under any Hedging Agreement or demand payment of all or
any part of any amount which would become payable following an Early
Termination Date; or


 


(d)           exercise or enforce
or require the Security Agent to exercise or enforce any rights under or
pursuant to the provisions of any guarantee granted by a member of the Group in
relation to all or any part of any Indebtedness or any rights or security
granted pursuant to any Security Documents or other Security; or


 


(e)           petition
for an Insolvency Event in relation to any member of the Group; or


 


(f)            commence
legal proceedings against any Obligor;


 


“Equity
Finance Providers” means together, (a) the Original Equity Finance
Providers and (b) Holdco or any intermediate holding company of the Parent to
the extent the same are creditors in relation to any Equity Financing
Indebtedness and


 


5

















 


have acceded to this Deed pursuant to Clause
26.3(b) (Accession of New Junior Creditors);


 


“Event of
Default” means an Event of Default as defined under each of the
Facilities Agreements, as the context requires;


 


“Facilities
Agreements” means together, each of the A/C Facilities Agreement,
the Brazilian Facility Agreement and the NZ Facility Agreement;


 


“Facilities”
means together, the A1 Facility, the A2 Facility, the B Facilities and the C
Facilities and “Facility” means
any one of them, as the context requires;


 


“Facility
Agents” means the A/C Facility Agent, the Brazilian Facility Agent
and the NZ Facility Agent, and “Facility
Agent” means any one of them, as the context requires;


 


“Finance
Documents” means:


 


(a)           when
designated “A/C”, the Finance
Documents as defined in the A/C Facilities Agreement;


 


(b)           when
designated “B”, the Finance
Documents as defined in each of the B Facility Agreements;


 


(c)           when
designated “Brazilian”, the
documents relating to the Credit as set out in the Brazilian Facility
Agreement;


 


(d)           when designated “Equity”, the Shareholder Subordinated Loan
Agreements;


 


(e)           when designated “NZ”, the Finance Documents as defined in
the NZ Facility Agreement;


 


(f)            when designated “Senior”, the A/C Finance Documents and the
B Finance Documents; and


 


(g)           without
any such designation, the A/C Finance Documents, the B Finance Documents, the
Brazilian Finance Documents, the Equity Finance Documents, the NZ Finance
Documents and the Senior Finance Documents or any of them, as the context
requires;


 


“Finance
Parties” means:


 


(a)           when
designated “A1”, the A1 Banks, the
A/C Facility Agent, the Security Agent and the Global Coordinator each acting
in its capacity as agent or trustee for and on behalf of the A1 Banks;


 


(b)           when
designated “A2”, the A2 Banks, the
A/C Facility Agent, the Security Agent and the Global Coordinator each acting
in its capacity as agent or trustee for and on behalf of the A2 Banks;


 


(c)           when designated “A/C”, the Finance Parties as defined in the
A/C Facilities Agreement and any Hedging Bank which is also an A/C Bank;


 


6

















 


(d)           when designated “B”, the Brazilian Finance Parties and the
NZ Finance Parties or any of them, as the context requires;


 


(e)           when designated “Brazilian”, the Banks as defined in the
Brazilian Facility Agreement;


 


(f)            when designated “NZ”, the Finance Parties as defined in the
NZ Facility Agreement;


 


(g)           when designated “Senior”, the A/C Finance Parties and the B
Finance Parties or any of them, as the context requires; and


 


(h)           without any such
designation, the A1 Finance Parties, the A2 Finance Parties, the A/C Finance
Parties, the B Finance Parties, the Brazilian Finance Parties, the NZ Finance
Parties and the Senior Finance Parties or any of them, as the context requires;


 


“French Law
Security Documents” means those Security Documents stated to be
governed by the laws of France;


 


“German Law
Security” means that part of the Security created pursuant to the
German Law Security Documents;


 


“German Law
Security Documents” means those Security Documents stated to be
governed by the laws of the Federal Republic of Germany;


 


“Hedging Agreements” means any agreements
entered into by any Obligor with the Hedging Banks in respect of Permitted
Hedging Transactions;


 


“Hedging Bank”
means: (a) any A/C Bank or any affiliate of any A/C Bank in its capacity as a
provider of any Permitted Hedging Transaction under the A/C Facilities
Agreement or (b) any NZ Bank in its capacity as provider of any Permitted
Hedging Transaction to Hertz New Zealand Limited in connection with the NZ
Facility Agreement;


 


“Indebtedness”
means all money and liabilities now or hereafter due, owing or incurred by any
Obligor in any currency or currencies, whether present or future, actual or
contingent, whether incurred solely or jointly with any other person and
whether as principal or surety, together with all interest accruing thereon
(including without limitation, interest accruing on or after the commencement
of any Insolvency Event or any proceeding or other action with respect thereto
whether or not a claim for post-petition interest is allowed in any such
Insolvency Event or such proceeding or other action) and all costs, charges and
expenses incurred in connection therewith:


 


(a)           when designated “A1”, to the A1 Finance Parties pursuant to the A/C Finance
Documents;


 


(b)           when designated “A2”, to the A2 Finance Parties pursuant to the A/C Finance
Documents;


 


(c)           when designated “A/C” to the A/C Finance Parties pursuant to the A/C Finance
Documents;


 


7

















 


(d)           when designated “B”, to the B Finance Parties pursuant to the B Finance
Documents;


 


(e)           when designated “Brazilian” to the Brazilian Finance Parties pursuant to the
Brazilian Finance Documents;


 


(f)            when designated “C” to the C Finance Parties pursuant to the A/C Finance
Documents;


 


(g)           when designated “Equity Financing”,
pursuant to the Equity Finance Documents (or any of them);


 


(h)           when designated “Hedging”, to the Hedging Banks pursuant to the Hedging
Agreements;


 


(i)            when designated “Intra-Group”, to the Intra-Group Creditors from the
Intra-Group Debtors (other than indebtedness of any of HA Funding Pty Limited,
Hertz Australia Pty. Limited (ABN 74 117 373 574) or Hertz Note Issuer Pty
Limited (ACN 117 373 574) to any of HA Funding Pty Limited, Hertz Australia
Pty. Limited or Hertz Note Issuer Pty Limited);


 


(j)            when designated “NZ”, to the NZ Finance Parties pursuant to the NZ Finance
Documents;


 


(k)           when designated “Senior”, to the Senior Finance Parties pursuant to the Senior
Finance Documents; and


 


(l)            without
any such designation, the A1 Indebtedness the A2 Indebtedness, the A/C
Indebtedness, the B Indebtedness, the Brazilian Indebtedness, the C
Indebtedness, the Equity Financing Indebtedness, the Hedging Indebtedness, the
Intra-Group Indebtedness, the NZ Indebtedness and the Senior Indebtedness or
any of them, as the context requires,


 


and in each case includes all amounts expressed
to be payable under such documentation regardless of whether or not
recoverability is effected by any insolvency or other law (including without
limitation, all interest, fees, costs and charges that accrue after the
commencement of a bankruptcy or other insolvency proceeding at the applicable
contract rate, whether or not a claim for such interest, fees, costs or charges
is permitted in any such proceedings);


 


“Insolvency Event” means, in relation to any
Obligor:


 


(a)           any resolution is passed or order made for
the winding up, dissolution, administration or reorganisation of that Obligor
or an administrator is appointed to that Obligor (unless permitted by clause
22.10 (Mergers) of the A/C
Facilities Agreement or the equivalent clause in either of the B Facility
Agreements);


 


(b)           any composition, assignment or arrangement is
made with all or any class of its creditors;


 


8

















 


(c)           the appointment of any liquidator, receiver,
administrator, administrative receiver, compulsory manager or other similar
officer in respect of that Obligor or any material part of its assets; or


 


(d)           any analogous procedure or step is taken in
any jurisdiction;


 


“Intra-Group
Creditors” means the Original Intra-Group Creditors and those other
members of the Group being creditors in relation to any Intra-Group
Indebtedness which (a) are Obligors or (b) which are non-Obligors and have
acceded to this Deed pursuant to Clause 26.3 (a) (Accession of New Junior Creditors);


 


“Intra-Group
Debtors” means the Original Intra-Group Debtors and any other
Obligor which is a debtor in relation to any Intra-Group Indebtedness;


 


“Italian Law
Security Documents” means the Security Documents stated to be
governed by the laws of Italy;


 


“Junior
Creditors” means until the occurrence of the Senior Discharge Date,
the Equity Finance Providers and the Intra-Group Creditors;


 


“Junior Debt”
means until the occurrence of the Senior Discharge Date, the Equity Financing
Indebtedness and the Intra-Group Indebtedness;


 


“Majority A
Banks” means in relation to any A Facility, a Bank or Banks whose
aggregate Euro Amount of the A1 Commitments and A2 Commitments amount (or, if
each Bank’s A1 Commitments and the A2 Commitments have been reduced to zero,
did immediately before such reduction to zero, amount) to more than fifty per
cent. of the aggregate Euro Amount of the Total A1 Commitments and the Total A2
Commitments;


 


“Majority A1
Banks” means, at any time, a Bank or Banks whose aggregate Euro
Amount of the A1 Commitments amount (or, if each Bank’s A1 Commitments have
been reduced to zero, did immediately before such reduction to zero, amount) to
more than fifty per cent. of the aggregate Euro Amount of the Total A1
Commitments;


 


“Majority A2
Banks” means, at any time, a Bank or Banks whose aggregate Euro
Amount of the A2 Commitments amount (or if each Bank’s A2 Commitments have been
reduced to zero, did immediately before such reduction to zero, amount) to more
than fifty per cent. of the aggregate Euro Amount of the Total A2 Commitments;


 


“Majority A/C
Banks” means, at any time, in relation to the A/C Facilities, a Bank
or Banks whose aggregate Commitments in Euro Amount in respect of the A/C
Facilities amount (or, if each Bank’s Commitments have been reduced to zero,
did immediately before such reduction to zero, amount) to more than fifty per
cent. of the Euro Amount of the Total Commitments;


 


“Majority
Banks” means, the Majority A/C Banks (unless the A/C Discharge Date
shall have occurred), the Majority Brazilian Banks (unless the Brazilian
Discharge Date shall have occurred) and the Majority NZ Banks (unless the NZ
Discharge Date shall have occurred) and a reference to the “relevant Majority Banks” means those of the
Majority A/C Banks, the Majority Brazilian Banks and/or the Majority NZ


 


9

















 


Banks (as the context requires) in respect of
whose Indebtedness a Discharge Date has not occurred, as the context requires;


 


“Majority
Brazilian Banks” means, at any time, in relation to the B Facility
granted under the Brazilian Facility Agreement, a Bank or Banks whose
Commitments under the Brazilian Facility Agreement amount (or if each Bank’s
such Commitments have been reduced to zero, did immediately before such
reduction to zero amount) to more than fifty per cent. of the aggregate of all
the Commitments thereunder;


 


“Majority C
Banks” means in relation to the C Revolving Facility, a Bank or
Banks whose C Commitments amount (or, if each Bank’s C Commitments have been
reduced to zero, did immediately before such reduction to zero, amount) in
aggregate to more than fifty per cent. of the Total C Commitments;


 


“Majority NZ
Banks” means, at any time, in
relation to the B Facility granted under the NZ Facility Agreement, a Bank or
Banks whose Commitments under the NZ Facility Agreement amount (or if each
Bank’s such Commitments have been reduced to zero, did immediately before such
reduction to zero amount) to more than fifty per cent. of the aggregate of all
the Commitments thereunder;


 


“Material
Variation” means in relation to each of the Facility Agreements:


 


(a)           any increase in or a
change in the basis on which interest accrues, is calculated or is payable (not
being, for the avoidance of doubt, fluctuations of the BA Rate, BBSY, EURIBOR,
LIBOR BKBM, CDI or any Mandatory Cost Rate (or any equivalent rate) or any
substitute basis) not provided for or contemplated by the terms of the relevant
document or any related document as at the date of this Deed, except for any
such increase or change which does not result in an increase in interest
payable on any principal amount of more than 2 per cent. per annum;


 


(b)           material changes in
the basis on which a guarantee, indemnity or other fees, commissions or other
like payments are payable or are calculated not provided for or contemplated by
the terms of the relevant document as at the date of this Deed;


 


(c)           any change the result
of which is that interest, principal or fees of any kind would become payable
under the relevant Facilities Agreement on a date earlier or more frequently
than that provided for or contemplated by the terms of the relevant document as
at the date of this Deed;


 


(d)           any increase in the
amount of interest payable in cash under any of the Facility Agreements, except
for any such increase or change which does not result in an increase in
interest payable on any principal amount of more than 2 per cent. per annum;


 


(e)           any increase in the
amount of any repayment of principal;


 


(f)            any increase in the
maximum amounts available to be raised under any of the Facility Agreements as
at the date of this Deed;


 


10

















 


(g)           any amendment,
variation, waiver or release of or supplement to any agreement whereby in a
material respect any Obligor becomes liable to make an additional payment or
increase an existing payment; or


 


(h)           any amendment,
variation, waiver or release of or supplement to any agreement whereby the
ranking and/or subordination arrangements provided for herein are materially
altered or materially prejudiced,


 


provided that any variation of an
administrative, procedural or technical nature to, or any variation made pursuant
to an original provision of any of the Facility Agreements or otherwise
permitted under this Deed shall not constitute a “Material Variation”;


 


“NZ Banks”
means the Original NZ Banks and any assignee or transferee to whom rights
and/or obligations in respect of the NZ Facility Agreement are assigned,
transferred or novated in accordance with the provisions thereof;


 


“NZ
Facilities Agreement” means a senior bridge facilities agreement to
be dated on or around 21 December 2005 between, amongst others, Hertz
International Ltd, as Parent, Hertz New Zealand Limited as Borrower, Hertz
International, Ltd and Hertz New Zealand Holdings Limited as Guarantors, Hertz
Europe Limited as Coordinator, BNP Paribas and The Royal Bank of Scotland plc
as Mandated Lead Arrangers, Calyon as Co-Arranger, BNP Paribas as Facility
Agent and Security Agent, and the Banks named therein, pursuant to which the
Banks agreed to make available certain loan facilities denominated in New
Zealand Dollars to Hertz New Zealand Limited as borrower.


 


“NZ Facility Agent” means BNP Paribas in its
capacity as facility agent for the Banks party to the NZ Facility Agreement or
such other facility agent as shall be appointed in accordance with the NZ
Facility Agreement;


 


“NZ Guarantee” means the guarantee
incorporated in the NZ Facility Agreement granted by each of the Parent and
Hertz New Zealand Holdings Limited in respect of the NZ Indebtedness;


 


“NZ Proceeds” means any proceeds received or
otherwise arising pursuant to any Enforcement Action in respect of the NZ
Guarantee and/or any NZ Security Document other than any such proceeds received
from the guarantors pursuant to the NZ Guarantee or any Security given by them
in relation thereto;


 


“NZ Security Documents” means the Security
Documents executed in respect of the NZ Indebtedness only;


 


“Obligors” means together, (a) the Original
Borrowers and the Original Guarantors and (b) each of the Additional Obligors
as defined in the A/C Facilities Agreement and the Brazilian Facility Agreement
and “Obligor” means any one
of them, as the context requires;


 


“Parallel
Debt” has the meaning given to it in Clause 20.19(a) (Parallel Debt);


 


11

















 


“Parallel
Debt Security Documents” has the meaning given to it in Clause
20.19(a) (Parallel Debt in respect of the
Netherlands);


 


“Principal
Obligations” has the meaning given to it in Clause 20.19(a)(i) (Parallel Debt in respect of the Netherlands);


 


“Secured Moneys” has the meaning given to it
in the Australian Security Document;


 


“Security”
means the security interests (howsoever described) from time to time
constituted by or arising under the Security Documents;


 


“Security
Agent” means BNP Paribas acting in its capacity as trustee or agent
as the case may be in relation to the Security Documents and as agent in
relation to this Deed, or such other person as may from time to time act in
that capacity and where the context so requires, any Supplemental Security
Agent as defined in Clause 20.20 (b) (Delegation
and Appointment of Supplemental Security Agents);


 


“Security
Documents” means each of the security documents securing amounts
outstanding under any or all of the Senior Finance Documents and/or the Hedging
Agreements granted in favour of the Security Agent or the Australian Security
Trustee and/or for the benefit of or on behalf of the Beneficiaries (or any of
them) in respect of the obligations of any Obligor under any or all of the
Senior Finance Documents and/or the Hedging Agreements;


 


“Spanish Law Security Documents” means the
Security Documents stated to be governed by Spanish law;


 


“Specified Hedge Default” means, in relation
to any Hedging Agreement:


 


(a)           a failure by any
Obligor to make a payment due under a Hedging Agreement on its due date or
within any applicable grace period; or


 


(b)           the occurrence of any
of the Events of Default specified in clauses 23.1 (Failure to Pay), 23.3 (Obligations),
23.5 (Insolvency and Rescheduling)
and 23.6 (Winding-up) (inclusive)
of the A/C Facilities Agreement or the equivalent provisions under the B
Facility Agreements;


 


“Swiss Law
Security Documents” means the Security Documents stated to be
governed by Swiss law; and


 


“Trustee Acts” means together, the Trustee
Act 1925 and the Trustee Act 2000.


 


1.2          Construction


 


(a)           The provisions of clauses 1.2
(Interpretation), 1.5 (Currency Symbols), 1.6 (Agreements and Statutes), 1.7 (Headings), 1.8 (Time), 1.9 (Singular and
Plural), 1.10 (Third Party Rights)
and 1.12 (New York Law) of the
A/C Facilities Agreement shall apply herein, mutatis
mutandis, as if set out in full herein and as if references therein
to “this Agreement” were to this Deed.


 


(b)           In this Deed, unless the
context otherwise requires the phrase “fully
discharged” shall mean the irrevocable payment in full in cash of
(or the cash


 


12

















 


collateralisation (in an amount and manner, and on terms, reasonably
satisfactory to the Security Agent)) of the referenced amount or other
obligation (including, without limitation, (w) interest accruing on or after
the commencement of any Insolvency Event or any proceeding or other action with
respect thereto whether or not a claim for post-petition interest is allowed in
any such Insolvency Event or such proceeding or other action, (x) any premium
thereon, (y) any reimbursement obligation in respect of any letter of credit,
or any other liability, and (z) any fees, indemnification obligations, expense
reimbursement obligations or other liabilities payable under the documentation
governing any such amount or other obligation).


 


2.             RANKING OF INDEBTEDNESS


 


2.1          Priority


 


The Indebtedness will, at all times, until the
Senior Discharge Date, rank for all purposes in the following order of priority
for repayment:


 


(a)           first, the Senior
Indebtedness; and


 


(b)           second, the Junior Debt,


 


regardless
of the date on which such Indebtedness arises, regardless of whether the
relevant Banks are obliged to advance moneys included in such Indebtedness and
regardless of any fluctuations in the amount of such Indebtedness or any
intermediate discharge of such Indebtedness in whole or in part.


 


2.2          Hedging Indebtedness


 


In respect of each of the Facilities
separately, the Hedging Indebtedness of each Hedging Bank will rank pari passu with the other Senior
Indebtedness.


 


2.3          Other Ranking


 


This Deed does not purport to rank any of the
Junior Debt (or any elements thereof) as between itself.


 


3.             PROHIBITED PAYMENTS


 


3.1          A2 Indebtedness


 


Until (and including) the A1 Discharge Date, no A2 Finance Party will,
without the prior written consent of the Majority A1 Banks:


 


(a)           take any action to receive
payment, prepayment or repayment in respect of all or any part of the A2
Indebtedness other than as a result of action permitted by Clause 5.5 (Permitted A2 Enforcement Action) (subject
as provided in Clause 9.1 (Turnover))
or taken in accordance with Clause 8 (Subordination
on Insolvency); or


 


(b)           discharge or seek to discharge
all or any part of the A2 Indebtedness by set-off, combination of accounts or
otherwise other than as a result of action


 


13

















 


permitted by Clause 5.5 (Permitted A2
Enforcement Action) (subject as provided in Clause 9.1 (Turnover)) or taken in accordance with
Clause 8 (Subordination on Insolvency);
or


 


(c)           receive from any member of the
Group any Security over any of its assets or receive any guarantee in respect
of the A2 Indebtedness or any part thereof other than any guarantee or Security
granted under the Senior Finance Documents where the relevant Obligor has
granted an equivalent guarantee or Security, subject to the order of priority
created under this Deed, for the benefit of the Senior Finance Parties (in form
and substance reasonably satisfactory to the Security Agent); or


 


(d)           take or omit to take any
action whereby the ranking and/or subordination arrangements provided for in
this Deed would be impaired; or


 


(e)           claim or rank as a creditor in
the insolvency, winding-up, bankruptcy or liquidation of any member of the
Group with respect to any A2 Indebtedness other than as a result of action
permitted by Clause 5.5 (Permitted A2
Enforcement Action) (subject as provided in Clause 9.1 (Turnover)) or in accordance with the
provisions of Clause 8 (Subordination on
Insolvency).


 


3.2          Equity Financing Indebtedness


 


(a)           The Parent will not and shall
procure that no other Obligor will (and each Obligor will procure that none of
its subsidiaries will) without the prior written consent of all the Majority
Banks:


 


(i)            make any payment or
distribution of any kind whatsoever (whether in cash or in kind) in respect of
or on account of all or any part of the Equity Financing Indebtedness or seek
to discharge all or any part of the Equity Financing Indebtedness in any way,
other than payments permitted by Clause 4.2 (Permitted
Equity Financing Indebtedness Payments) or as a result of action
taken in accordance with Clause 8 (Subordination
on Insolvency); or


 


(ii)           save to the extent not
prohibited by the Facilities Agreements, create or permit to subsist any
security over any of its assets, or give or permit to subsist any guarantee in
respect of the Equity Financing Indebtedness or any part thereof;


 


(iii)          take or omit to take any
action whereby the ranking and/or subordination of the Equity Financing
Indebtedness contemplated by this Deed would be impaired; or


 


(iv)          save to the extent not
prohibited by the Facilities Agreements, give any financial support (including,
without limitation, the taking of any participation, the giving of any
guarantee or the making of any deposit) to any person in connection with all or
any part of the Equity Financing Indebtedness or permit any person to do any of
the things referred to in this Clause 3.2(a)(v) (Equity Financing Indebtedness).


 


14

















 


(b)           No Equity Finance Provider
will without the prior written consent of the Majority Banks:


 


(i)            make written demand for or
accept receipt of payment, prepayment or repayment in respect of the Equity
Financing Indebtedness if either (x) at the time it makes such demand or
accepts such receipt it knows that such demand or acceptance is prohibited by
Clause 4.2 (Permitted Equity Financing
Indebtedness) or (y) such demand or acceptance or a series of
related demands or acceptances is in respect of an amount in aggregate in
excess of EUR10 million (or its equivalent in other currencies) and is
prohibited under Clause 4.2 (Permitted
Equity Financing Indebtedness Payments); or


 


(ii)           discharge or seek to discharge
the Equity Financing Indebtedness by set-off, combination of accounts or
otherwise if either (x) at the time it obtains such discharge it knows that
such demand is prohibited by Clause 4.2 (Permitted
Equity Financing Indebtedness) or (y) such discharge or series of
related discharges is in an amount in aggregate in excess of EUR10 million, (or
its equivalent in other currencies) and such set-off or combination is
prohibited by Clause 4.2 (Permitted
Equity Financing Indebtedness Payments); or


 


(iii)          save to the extent not
prohibited by the Facility Agreements, receive from any member of the Group any
security over any of its assets or receive from any member of the Group any
guarantee in respect of the Equity Financing Indebtedness.


 


(c)           Nothing in this Deed shall be
interpreted as constituting a release of any Equity Financing Indebtedness.


 


(d)           If any Obligor or Equity
Finance Provider makes any payment or distribution or receives any payment or
distribution or takes any action that would otherwise be in contravention of
this Clause 3.2 (Equity Financing Indebtedness)
by reason of a breach by an Obligor or another member of the Group of clause
22.5 (Subordinated Debt) or
clause 22.8 (Permitted Distributions)
of the A/C Facilities Agreement or the equivalent provisions of any B Facility
Agreement or by reason of any other breach by an Obligor or another member of
the Group of any other provision of any Senior Finance Document and such breach
is remedied, waived or otherwise ceases to be continuing, such contravention
shall also be deemed to have been remedied or waived or otherwise to have
ceased to be continuing.


 


(e)           If an Equity Finance Provider
demands or accepts receipt of payment, prepayment or repayment or discharges or
seeks to discharge Equity Financing Indebtedness in breach of paragraph (b)
above and thereafter turns over any amount received in breach to the Security
Agent pursuant to Clause 9.1 (b) (vi) (Turnover)
then the breach by the Equity Finance Provider which would otherwise have
occurred shall be deemed remedied or waived and shall cease to be continuing.


 


15

















 


3.3          Intra-Group Indebtedness


 


(a)           No Intra-Group Debtor will
(and each Intra-Group Debtor will procure that none of its subsidiaries will)
without the prior written consent of the Majority Banks:


 


(i)            make any payment or
distribution of any kind whatsoever in respect of or on account of all or any
part of the Intra-Group Indebtedness or seek to discharge all or any part of
the Intra-Group Indebtedness in any way, other than payments permitted by
Clause 4.3 (Intra-Group Indebtedness)
or as a result of action taken in accordance with Clause 8 (Subordination on Insolvency); or


 


(ii)           save as permitted
by the Facility Agreements, create or permit to subsist any security over any
of its assets, or give or permit to subsist (whether directly or indirectly)
any guarantee in respect of the Intra-Group Indebtedness or any part thereof;
or


 


(iii)          take or omit to
take any action whereby the ranking and/or subordination of the Intra-Group
Indebtedness contemplated by this Deed would be impaired.


 


(b)           No Intra-Group Creditor will
(and each Intra-Group Creditor will procure that its subsidiaries will not)
without the prior written consent of the Majority Banks:


 


(i)            make written demand for or
accept receipt of payment, prepayment or repayment in respect of the Intra-Group
Indebtedness other than payments permitted under Clause 4.3 (Intra-Group Indebtedness) or as a result
of action taken under Clause 8.2 (Exercise
of Rights); or


 


(ii)           discharge or seek
to discharge the Intra-Group Indebtedness by set-off, combination of accounts
or otherwise, other than as permitted by Clause 4.3 (Intra-Group Indebtedness) or as a result of action taken
under Clause 8.2 (Exercise of Rights);
or


 


(iii)          save to the extent
prohibited by the Facility Agreements, receive from any member of the Group any
security over any of its assets or receive from any member of the Group any
guarantee in respect of the Intra-Group Indebtedness.


 


(c)           Nothing in this Deed shall be
interpreted as constituting a release of any Intra-Group Indebtedness save for
any express release in accordance with Clause 5.7 (Restriction on Enforcement Action by Junior Creditors).


 


(d)           If any Intra-Group Creditor or
Intra-Group Debtor makes any payment or distribution or receives any payment or
distribution or takes any action that would otherwise be in contravention of
this Clause 3.3 (Intra-Group Indebtedness)
by reason of a breach by an Obligor or another member of the Group of any other
provision of any Senior Finance Document and such breach is remedied, waived or
otherwise ceases to be continuing, such 


 


16

















 


contravention shall also be deemed to have been remedied or waived or
otherwise to have ceased to be continuing.


 


4.             PERMITTED PAYMENTS


 


4.1          Senior Indebtedness


 


Subject to Clause 5.2 (Restrictions on Enforcement Action by Hedging Banks)
and Clause 5.4 (Restrictions on A2
Enforcement Action), all repayments and prepayments of principal,
payments of interest and all other amounts (including fees and taxes) in
respect of the Senior Indebtedness may be made and received freely at all times
in accordance with the provisions of the Senior Finance Documents.


 


4.2          Permitted Equity Financing Indebtedness Payments


 


(a)           Prior to the Senior Discharge
Date, the Obligors may only make payments in respect of Equity Financing
Indebtedness permitted pursuant to clause 22.5 (Subordinated Debt) or clause 22.8 (Permitted Distributions) of the A/C
Facilities Agreement and the equivalent provisions under each of the B Facility
Agreements (which permitted payments may, for the avoidance of doubt, be made
by way of set-off).


 


(b)           Subject to the provisions of
this Deed and to the provisions of the Equity Finance Documents, following the
Senior Discharge Date, all repayments and prepayments of principal, interest
and all other amounts (including legal fees and taxes) in respect of the Equity
Financing Indebtedness may be made and freely received at all times in
accordance with the provisions of the Equity Finance Documents.


 


4.3          Intra-Group Indebtedness


 


A
member of the Group may pay interest on, repay or prepay principal of or make
any other payment (including by way of set-off) due with respect to or
discharge any Intra-Group Indebtedness and an Intra-Group Creditor may receive
any such sum, provided that, no
such payment shall be made without the prior consent of all of the Majority
Banks for so long as an Event of Default has occurred and is continuing and in
respect of which the A/C Facility Agent, the Brazilian Facility Agent or the NZ
Facility Agent has declared all or any of the advances to be immediately due
and payable pursuant to clause 23.16 (Acceleration
and Cancellation) of the A/C Facilities Agreement or the equivalent
provisions under either of the B Facility Agreements (as the case may be).


 


5.             ENFORCEMENT ACTION


 


5.1          Enforcement Action by Senior Finance Parties


 


Subject to Clause 20.1 (k) (No Independent Power), the Senior Finance
Parties (other than, until the A1 Discharge Date, the A2 Banks) may, in
relation to the Senior Indebtedness, take Enforcement Action at any time in
accordance with the Senior Finance Documents.


 


17

















 


5.2          Restrictions on Enforcement Action by Hedging Banks


 


Subject to Clauses 5.3 (Permitted Enforcement Action by the Hedging Banks)
and save as provided in Clause 7 (Enforcement
of Security) in relation to the Majority Banks, no Hedging Bank may
take Enforcement Action in relation to Hedging Indebtedness owed to them.


 


5.3          Permitted Enforcement Action by the Hedging Banks


 


(a)           If the relevant Facility Agent
has not served a notice under clause 23.16 (Acceleration
and Cancellation) of the A/C Facilities Agreement or the equivalent
provisions under either of the B Facility Agreements and a Specified Hedge
Default occurs and is continuing under a Hedging Agreement, the relevant
Hedging Bank may terminate or close-out transactions entered into by it under
the such Hedging Agreement prior to their stated maturity (including, without
limitation, giving any notice or making any demand required for that purpose or
declaring an Early Termination Date), provided that no other Enforcement Action
may be taken.


 


(b)           Following service of notice
under clause 23.16 (Acceleration and
Cancellation) of the A/C Facilities Agreement or the equivalent
provisions under either of the B Facility Agreements, each Hedging Bank may and
(if so requested by the Security Agent) will, terminate or close-out
transactions entered into by it under the relevant Hedging Agreements and make
demand for amounts due to it under the relevant Hedging Agreements.


 


5.4          Restrictions on A2 Enforcement Action


 


Subject to Clause 5.5 (Permitted A2 Enforcement Action), until
(and including) the A1 Discharge Date, no A2 Finance Party may take any
Enforcement Action in relation to the A2 Indebtedness without the prior written
consent of the Majority A1 Banks.


 


5.5          Permitted A2 Enforcement Action


 


(a)           Subject as provided in Clause
5.5(b) (Permitted A2 Enforcement Action)
below, the A2 Finance Parties (acting on the instructions of the Majority A2
Banks) may take Enforcement Action in relation to the A2 Indebtedness which
would otherwise be prohibited by Clause 5.4 (Restrictions
on A2 Enforcement Action) if (but only if):


 


(i)            an Insolvency Event in
relation to any Obligor has occurred and is continuing except that A2 Banks may
only exercise those rights (and take only the limited action) in relation to
the relevant Obligor as set out in paragraph (a) and (b) of the definition of
Enforcement Action; or


 


(ii)           an A2 Payment
Default has occurred and (i) the A2 Banks have given a notice in writing (an “A2 Enforcement Notice”) to the A/C Facility
Agent of the occurrence of such A2 Payment Default and specifying an intention
to take Enforcement Action; and (ii) a period (an “A2 Standstill Period”) of not less than 90 days, has elapsed
from the date the A/C Facility Agent received the applicable A2 Enforcement
Notice


 


18

















 


and (iii) at the end of A2 Standstill Period such A2 Payment Default is
continuing; or


 


(iii)          the A/C Facility
Agent (acting on behalf of the Majority A/C Banks has served notice of
acceleration of the A/C Indebtedness under clause 23.16 (Acceleration and Cancellation) of the A/C
Facilities Agreement, except that the A2 Banks may only take the same or
equivalent Enforcement Action in relation to the A2 Indebtedness as that taken
by the Majority A1 Banks.


 


(b)           The A2 Finance Parties may not
make any demand on, or take any other action against, any Obligor in its
capacity as such in relation to the A2 Indebtedness in circumstances which
would otherwise be permitted by this Clause 5.5 (Permitted A2 Enforcement Action) where (and only for so long
as) all of the following conditions are met:


 


(i)            the Security Agent (or any
receiver or similar officer appointed pursuant to any of the Security
Documents), acting on the instructions of the Majority A/C Banks and in
accordance with the terms hereof, confirms to the A/C Facility Agent in writing
that it is enforcing security conferred by any of the Security Documents
granted in respect of the A/C Indebtedness over the shares of such Obligor or
over the shares of any holding company of such Obligor by selling or procuring
the sale of all such shares which are subject to such security and has not
subsequently notified the A/C Facility Agent to the contrary in writing (and
the Security Agent undertakes to notify or procure that any such receiver or
similar officer notifies the A/C Facility Agent promptly upon such enforcement
being discontinued); and


 


(ii)           the period elapsed
from the date on which in the absence of this Clause 5.5(b) (Permitted A2 Enforcement Action) the A2
Finance Parties would have been permitted pursuant to this Clause 5.5 (Permitted A2 Enforcement Action) to make a
demand or otherwise take action against such Obligor in relation to the A2
Indebtedness is less than 90 days.


 


5.6          Subsequent A2 Payment Defaults


 


The A2 Banks will have the right to take
Enforcement Action under Clause 5.5 (Permitted
A2 Enforcement Action) in relation to an A2 Payment Default
notwithstanding that, at the time referred to in Clause 5.5 (Permitted A2 Enforcement Action) above, or
at any time thereafter, another A2 Standstill Period has commenced as a result
of an A2 Payment Default other than that A2 Payment Default.


 


5.7          Restriction on Enforcement Action by Junior Creditors


 


Until (and including) the Senior Discharge
Date, no Junior Creditor may take any Enforcement Action in relation to the Junior
Debt without the prior written consent of the Majority Banks, provided that
each Intra-Group Creditor shall, if so required by the Security Agent,
following service of a notice under clause 23.16 (Acceleration and Cancellation) of the A/C Facilities
Agreement or the equivalent provisions under


 


19

















 


either of the B Facility Agreements, take such
Enforcement Action in relation to the Intra-Group Debt as it is directed by the
Security Agent to take and, if so required by the Security Agent, shall waive
or release the Intra-Group Debt and/or terms applicable to it in such manner
and to such extent as the Security Agent may direct.


 


5.8          Limited recourse — HA Funding Pty Limited


 


(a)           Subject to Clause 5.8(d)
but despite any other provision of this Deed, HA Funding Pty Limited is only
obliged to pay any amount otherwise payable under or in relation to this Deed
to the extent that the amount can be satisfied out of the Charged Property.


 


(b)           Subject to Clause 5.8(d)
but despite any other provision of this Deed, the Australian Security Trustee
must not:


 


(i)            take any action against HA
Funding Pty Limited personally to recover any part of the Secured Moneys which
cannot be recovered out of the Charged Property; or


 


(ii)           levy execution or bring any
other proceedings (other than to enforce a Transaction Document) against any
property of HA Funding Pty Limited which does not form part of the Charged
Property to recover any part of the Secured Moneys.


 


(c)           Clause 5.8(b) operates as a
covenant not to sue and not as a release, and may be pleaded in bar to any
action brought in breach of it.


 


(d)           Nothing in this Clause 5.8
affects the rights of the Australian Security Trustee or the liability of HA
Funding Pty Limited with respect to fraud, gross negligence or wilful
misconduct by HA Funding Pty Limited.


 


6.             SECURITY


 


6.1          Priority and Subordination of Security


 


All
Security will, save as otherwise provided by the Canadian Law Security
Documents, for all purposes and at all times secure only Senior Indebtedness
(or part of it).


 


6.2          Hedging Indebtedness


 


The Security constituted by the Security
Documents (save for the Brazilian Security Documents) and in respect of which
the relevant Hedging Bank is a Beneficiary in its capacity as a Bank under any
of the Facility Agreements shall, to the extent permitted by applicable law,
secure the Hedging Indebtedness owed to that Hedging Bank and the remainder of
the relevant Senior Indebtedness on a pari
passu basis.


 


6.3          Junior Creditors


 


No Junior Creditor will hold or have the
benefit of any security or guarantee in respect of the Junior Debt (save to the
extent required or not prohibited by to the Senior Finance Documents).


 


20

















 


6.4          Release of Security


 


(a)           Subject to Clause 6.4 (d) and
save as otherwise provided in the Canadian Law Security Documents, the Security
Agent shall, at the request of the Parent, and is hereby authorised by each of
the Beneficiaries to execute on behalf of itself and each Beneficiary, without
the need for any further referral to, or authority from, any Beneficiary,
releases of the whole or any part of the Security (and certification of
non-crystallisation of floating charges) or any guarantees given by any Obligor
under any Senior Finance Document:


 


(i)            upon the Indebtedness secured
thereby being discharged in full;


 


(ii)           upon the security provider
ceasing to be an Obligor subject to, and in accordance with, the terms of the
Finance Documents; or


 


(iii)          in connection with (A) any
Permitted Disposal of any property that is subject to a Security, (B) any sale
or other disposition of any property otherwise permitted by the Finance
Documents, (C) any sale or other disposition of any property that is subject to
Security where the Facility Agent or the Security Agent (as required) has
consented to the disposal pursuant to the Finance Documents, (D) any sale or
any other disposition of any property pursuant to a merger, consolidation,
reorganisation, winding-up, securitisation, Take-Out Financing or sale and
leaseback permitted by the Finance Documents to the extent necessary to enable
such merger, consolidation, reorganisation, winding-up, securitisation,
Take-Out Financing or sale and leaseback to take place or (E) the creation of
any Encumbrance permitted by paragraph (x) of the definition of Permitted
Encumbrance and the equivalent provisions under either of the B Facility
Agreements, provided that, to the extent that the disposal of such property is
a Permitted Disposal or a sale or disposition otherwise permitted by the
Finance Documents, the property shall be declared to be automatically released
from the Security with effect from the day of such disposal, including without
limitation:


 


(A)          any formal release (and certification
of non-crystallisation of floating charges) of any asset in connection with any
such transaction (including any such transaction effected pursuant to an
enforcement of the Security or any part of it);


 


(B)          any release of any guarantee
given under any Senior Finance Document where all the shares in the capital of
the party giving such guarantee are disposed of in accordance with the terms of
and without any breach of the Senior Finance Documents (including pursuant to
an enforcement of the Security or part of it);


 


(C)          any release of any part of the
Security given by any Obligor which is or is a subsidiary of a company which is
sold in accordance with the terms of and without any breach of the


 


21

















 


Senior Finance Documents (including pursuant to an enforcement of the
Security or part of it); and


 


(D)          if the asset disposed of
consists of all of the shares in the share capital of an Obligor or any holding
company of that Obligor or if the Security Agent is entitled and wishes to
release, sell, transfer, assign or otherwise dispose of any intercompany loans,
receivables or other liabilities (past, present and future and both actual and
contingent) owed by that Obligor, any agreement to dispose of, or otherwise
release, all or any part of those intercompany loans, receivables or other
liabilities on (past, present and future and both actual and contingent) on
behalf of the relevant Finance Party, relevant Junior Creditor and Obligors
(with the proceeds thereof being applied as if they were the proceeds of
enforcement of Security).


 


(b)           On a Discharge Date, the
Security Agent shall, at the request and cost of the Parent or the Coordinator,
release and cancel the Security to the extent it relates only to Indebtedness
in respect of which a Discharge Date has occurred and (if applicable) procure
the re-assignment or re-transfer to the relevant Obligor of the property and
assets assigned or transferred to the Security Agent pursuant to the relevant
Security Document, in each case subject to paragraph (c) of this Clause 6.4 (Release of Security) and without recourse
to, or any representation or warranty by, the Security Agent or any of its
nominees.


 


(c)           If the Security Agent, acting
reasonably, considers that any amount paid or credited to any Beneficiary is
reasonably likely to be avoided or reduced by virtue of any bankruptcy,
insolvency, liquidation or similar laws, the liability of each Obligor under
the relevant Security Document and that part of the Security constituted by
such Security Document shall continue and such amount shall not be considered
to have been irrevocably paid.


 


(d)           Nothing in this Clause 6.4
will operate as a release, discharge or cancellation (whether or not automatic)
of the Australian Security Document without the prior written consent of the
Parent if such release, discharge or cancellation would result in any
Australian state or territory stamp or other documentary duty or tax being
levied at an ad valorem or
non-fixed rate.


 


(e)           If the Security Agent (acting
reasonably) considers that it is necessary to release an Intra-Group Debtor or
an Intra-Group Creditor from its obligations hereunder in that capacity to
facilitate a Take-Out Financing it shall take all such steps as are reasonably
necessary to do so.


 


7.             ENFORCEMENT OF SECURITY


 


7.1          Enforcement of Security


 


(a)           Prior to the Senior Discharge
Date, the Security Agent shall (save as otherwise provided in the Canadian Law
Security Documents) act:


 


22

















 


(i)            in relation to the Security
Documents in respect of all the Senior Indebtedness collectively, in accordance
with the instructions of all of the Majority Banks;


 


(ii)           in relation to the Brazilian
Security Document, in accordance with the instructions of the Majority
Brazilian Banks;


 


(iii)          in relation to the NZ Security
Documents, in accordance with the instructions of the Majority NZ Banks; and


 


(iv)          in relation to the A/C
Security Documents, in accordance with the instructions of the Majority A/C
Banks.


 


8.             SUBORDINATION ON INSOLVENCY


 


8.1          Subordination


 


Upon the occurrence of an Insolvency Event in
relation to an Obligor, the claims against that Obligor in respect of the Junior Debt will be
subordinate in right of payment to the claims against that Obligor in respect
of the Senior Indebtedness.


 


8.2          Exercise of Rights


 


Upon the occurrence of an Insolvency Event in
relation to an Obligor, the Security Agent may and is irrevocably authorised
until the time when the Senior Discharge Date has occurred, on behalf of the
Intra-Group Creditors to:


 


(a)           demand, claim, enforce and
prove for, the Intra-Group Indebtedness due from that Obligor;


 


(b)           file claims and proofs, give
receipts and take all such proceedings and do all such things as the Security Agent
considers reasonably necessary to recover, the Intra-Group Indebtedness due
from that Obligor; and


 


(c)           receive distributions of any
kind whatsoever in respect or on account of Intra-Group Indebtedness due from
that Obligor for application in accordance with Clause 10.1 (Application),


 


provided that if, for any reason whatsoever,
the Security Agent does not exercise or is not entitled to take such action for
the recovery of the Intra-Group
Indebtedness as aforesaid, the relevant Intra-Group Creditors hereby
undertake to take such action and give such notices as the Security Agent may
reasonably require from time to time. 
The Security Agent shall notify the Parent as soon as reasonably practicable following any
demand, claim or proof made by it under this Clause 8.2 (Exercise of Rights) and (upon request by
the Parent) provide
the Parent with a
copy of such documentation.


 


8.3          Voting


 


(a)           Upon the occurrence of an
Insolvency Event in relation to an Obligor prior to the A1 Discharge Date, the
A2 Finance Parties shall exercise (x) all powers of convening meetings, voting
and representations (as the case may be) in respect of the A2 Indebtedness (in
each case, to the extent required for the purposes of


 


23

















 


the following sub-paragraph (y)) and (y) all of its voting rights in any
proceeding relating to such Insolvency Event in respect of the Security,
including voting to approve a plan of reorganisation to the extent it affects
the Security or its proceeds in accordance with the instructions of the
Majority A1 Banks, provided that nothing in this paragraph (a) will entitle the
Security Agent to exercise or require the, A2 Finance Parties to exercise such
powers in order to waive, reduce, discharge or extend the due date for payment
of or reschedule any of the A2 Indebtedness and provided further that the A2
Finance Parties shall be entitled to file such claims and proofs as may be
necessary to ensure that the A2 Indebtedness may be enforced in any insolvency
or liquidation proceeding.


 


(b)           Upon the occurrence of an
Insolvency Event in relation to an Obligor, the Security Agent may, and is
irrevocably authorised until the time when the Senior Discharge Date has
occurred, on behalf of the Intra-Group Creditors to, exercise (x) all powers of
convening meetings, voting and representations (as the case may be) in respect
of the Intra-Group Debt (in each case, to the extent required for the purposes
of the following sub-paragraph (y)) and (y) all voting rights of the Intra-Group
Creditors in any proceeding relating to such Insolvency Event in respect of the
Security, including voting to approve a plan of reorganisation to the extent it
affects the Security or its proceeds, and each Intra-Group Creditor, will
provide all forms of proxy and of representation requested by the Security
Agent for that purpose, provided that if, for any reason whatsoever, the
Security Agent is not entitled to take such action or exercise such powers as
aforesaid, the Intra-Group
Creditors hereby undertake to take such action and exercise such powers as the
Security Agent may reasonably require from time to time.


 


8.4          Distributions


 


Upon the occurrence of an Insolvency Event in
relation to an Obligor (other than an Obligor under either of the B Facility
Agreements in respect of paragraph (i) below), the trustee in bankruptcy,
liquidator, assignee or other person distributing the assets of that Obligor or
their proceeds shall be directed: (i) prior to the A1 Discharge Date, by the A2
Finance Parties to pay distributions of any kind whatsoever on the A2
Indebtedness to the Security Agent for payment to the A1 Finance Parties, pro rata and (ii) by the Junior Creditors
to pay distributions of any kind whatsoever on the Junior Debt of that Obligor
direct to the Security Agent for application in accordance with Clause 10.1 (a), (b), (c) or (d) (Application), as applicable, until the
Senior Indebtedness is paid in full.


 


9.             TURNOVER OF RECEIPTS


 


9.1          Turnover


 


(a)           If at any time prior to the
occurrence of the A1 Discharge Date, any A2 Finance Party receives or recovers
(i) a payment, distribution, set-off or combination of any kind whatsoever in
respect or on account of any A2 Indebtedness; or (ii) proceeds pursuant to any
Enforcement Action (including, without limitation, action in respect of any
guarantee or the Security Documents or taken in accordance with Clause 8 (Subordination on


 


24

















 


Insolvency) or otherwise) it
will promptly pay all amounts received by it to the Security Agent for payment
to the A1 Finance Parties, pro rata,
after deducting therefrom any interest payments received by it in the ordinary
course of business and/or any amounts as permitted pursuant to Clause 4.1 (Senior Indebtedness) the costs,
liabilities and expenses (if any) reasonably incurred by such A2 Finance Party
in receiving such payment, distribution, set-off or combination and pending
such payment, will hold these amounts on trust for the Security Agent.


 


(b)           If at any time prior to the
occurrence of the Senior Discharge Date:


 


(i)            any NZ Finance Party receives
or recovers any NZ Proceeds, it will promptly pay all amounts received by it to
the Security Agent for application pursuant to Clause 10.1 (d) (Application) after deducting therefrom the
costs, liabilities and expenses (if any) reasonably incurred by such NZ Finance
Party in recovering or receiving such proceeds;


 


(ii)           any Brazilian Finance Party
receives or recovers any Brazilian Proceeds, it will promptly pay all amounts
received by it to the Security Agent for application pursuant to Clause 10.1
(c) (Application) after deducting
therefrom the costs, liabilities and expenses (if any) reasonably incurred by
such Brazilian Finance Party in recovering or receiving such proceeds;


 


(iii)          any A/C Finance Party receives
or recovers any A/C Proceeds, it will promptly pay all amounts received by it
to the Security Agent for application pursuant to Clause 10.1(b) (Application) after deducting therefrom the
costs, liabilities and expenses (if any) reasonably incurred by such A/C
Finance Party in recovering or receiving such proceeds;


 


(iv)          the Australian Security
Trustee receives or recovers proceeds pursuant to any Enforcement Action
(including, without limitation, action in respect of any guarantee or
Australian Security Document or taken in accordance with Clause 8 (Subordination on Insolvency) or otherwise,
it will promptly pay all amounts received by it to the Security Agent for
application pursuant to paragraph (a) or (b) (as the case may be) of Clause
10.1 (Application) after
deducting therefrom the costs, liabilities and expenses (if any) reasonably
incurred in recovering or receiving such proceeds;


 


(v)           any Intra-Group Creditor
receives or recovers a payment, distribution, set-off or combination of any
kind whatsoever in respect of or on account of any Intra-Group Indebtedness
which is not permitted by Clause 4.3 (Intra-Group
Indebtedness) or a payment, distribution, set-off or combination to
which the Majority Banks have not previously consented in writing, or receives
or recovers proceeds pursuant to any Enforcement Action (including, without
limitation, action taken in accordance with Clause 8 (Subordination on Insolvency)) it will
promptly pay all such amounts received by it to the


 


25

















 


Security Agent for application in accordance with Clause 10.1(a) (Application);


 


(vi)          any Equity Finance Provider
receives or recovers a payment, distribution, set-off or combination of any
kind whatsoever in respect of or on account of any Equity Financing
Indebtedness which is not permitted by Clause 4.2 (Permitted Equity Financing  Indebtedness
Payments) or a payment, distribution, set-off or combination to
which the Majority Banks have not previously consented in writing, or receives
or recovers proceeds pursuant to any Enforcement Action (including, without
limitation, action taken in accordance with Clause 8 (Subordination on Insolvency)) it will, if
either (x) at the time it makes such recovery, it knows that such receipt or
recovery is prohibited by Clause 4.2 (Permitted
Equity Financing Indebtedness)  
or (y) such receipt or recovery or a series of related receipts or
recoveries is in an aggregate amount in excess of EUR10 million (or its
equivalent in other currencies) and such payment, distribution, set-off or
combination is prohibited by Clause 4.2 (Permitted
Equity Financing Indebtedness Payments) and (in either case) the
Majority Banks have not consented in writing to it, promptly pay all such
amounts received by it to the Security Agent for application in accordance with
Clause 10.1(a) (Application)
unless the breach of clause 22.5 (Subordinated
Debt) or clause 22.8 (Permitted
Distributions) of the A/C Facilities Agreement or the equivalent provision
in either of the other Facilities Agreements which gave rise to an breach of
Clause 4.2 (Permitted Equity Financing
Indebtedness Payments) has been remedied or waived or consented to
in writing by the Majority Banks and provided that the maximum amount that the
Equity Finance Providers may be required to pay under this paragraph (vi) shall
be the lesser of the amount they receive in breach of Clause 4.2 (Permitted Equity Financing Indebtedness Payments)
and the amount then due but unpaid under the Senior Finance Documents;


 


(vii)         any Hedging Bank receives or
recovers proceeds pursuant to any Enforcement Action, it will promptly pay all
amounts received (or in the case of a recovery obtained by way of set-off, an
amount equal to the amount thereof) to the Security Agent for application in
accordance with paragraph (a) or (b) (as the case may be) of Clause 10.1 (Application) after deducting therefrom the
costs, liabilities and expenses (if any) reasonably incurred in recovering or
receiving such proceeds; or


 


(viii)        any Finance Party receives or recovers any
proceeds or amounts other than A/C Proceeds, Brazilian Proceeds or NZ Proceeds
(as applicable), it will promptly pay all amounts received by it to the
Security Agent for application pursuant to Clause 10.1 (a) (Application) after deducting therefrom the
costs, liabilities and expenses (if any) reasonably incurred by such Finance
Party in recovering or receiving such proceeds;


 


26














 


and,
in each case, pending such payment, will hold such amounts on trust for the
Security Agent.


 


9.2          No reduction or discharge


 


No Indebtedness shall be deemed to have been
reduced or discharged in any way or to any extent by any payment or
distribution to the Security Agent in accordance with Clause 9.1 (Turnover).


 


10.          APPLICATION OF RECOVERIES


 


10.1        Application


 


(a)           Save as otherwise provided in
this Deed and the Canadian Law Security Documents and save for A/C Proceeds,
Brazilian Proceeds and NZ Proceeds, all proceeds of enforcement of the Security
and all other amounts received from any Obligor in respect of any Senior
Indebtedness (other than those payments that are permitted pursuant to, and are
made in accordance with the terms of, the Senior Finance Documents ) and all
amounts paid to the Security Agent under this Deed shall be applied in the
following order:


 


(i)            first, in payment, pro rata, of unpaid fees, costs and
expenses (including interest thereon in accordance with the Security Documents)
incurred by or on behalf of the Security Agent and the Australian Security
Trustee (and any receiver, adviser or agent appointed by either of them) in
accordance with the terms of the Finance Documents and the remuneration of the
Security Agent and the Australian Security Trustee and its advisers or agents
and any receivers appointed under the Security Documents incurred in accordance
with the terms of the Finance Documents;


 


(ii)           second, in payment, pro rata, of unpaid costs and expenses
incurred in accordance with the terms of the Senior Finance Documents by or on
behalf of the Senior Finance Parties in connection with enforcement of the
Security and which any Obligor is obliged to pay or reimburse to any Senior
Finance Party in accordance with the Senior Finance Documents;


 


(iii)          third, in payment, pro rata, to:


 


(A)          the A/C Facility Agent (for
itself and for the other A/C Finance Parties) for application towards unpaid
and outstanding A/C Indebtedness;


 


(B)          the Brazilian Facility Agent
(for itself and for the other Brazilian Finance Parties) for application
towards unpaid and outstanding Brazilian Indebtedness;


 


(C)          the NZ Facility Agent (for
itself and for the other NZ Finance Parties) for application towards unpaid and
outstanding NZ Indebtedness; and


 


27

















 


(iv)          fourth, in payment of any
surplus to the relevant Obligors, the Equity Finance Providers and/or the other
persons entitled to it, in each case, as determined by the Parent in
consultation with the Security Agent.


 


(b)           Save as otherwise provided in
the Canadian Law Security Documents or as otherwise provided in this Deed, all
A/C Proceeds shall be applied in the following order:


 


(i)            first, in payment, pro rata, of unpaid fees, costs and
expenses (including interest thereon in accordance with the A/C Security
Documents) incurred by or on behalf of the Security Agent or the Australian
Security Trustee (and any receiver, adviser or agent appointed by either of
them) in accordance with the terms of the A/C Finance Documents and the
remuneration of the Security Agent or the Australian Security Trustee and their
respective advisers or agents and any receivers appointed under the A/C
Security Documents;


 


(ii)           second, in payment, pro rata, of unpaid costs and expenses
incurred in accordance with the terms of the A/C Finance Documents by or on
behalf of the A/C Finance Parties in connection with enforcement of the
relevant Security and which any Obligor is obliged to pay or reimburse to any
A/C Finance Party in accordance with the A/C Finance Documents;


 


(iii)          third, in payment to the A/C
Facility Agent (for itself and for the other A/C Finance Parties) for
application towards unpaid and outstanding A/C Indebtedness; and


 


(iv)          fourth, in payment of any
surplus to the Obligors under the A/C Finance Documents, the Equity Finance
Providers and/or the other persons entitled to it, in each case, as determined
by the Parent in consultation with the Security Agent.


 


(c)           Save as otherwise provided in
this Deed, all Brazilian Proceeds shall be applied in the following order:


 


(i)            first, in payment, pro rata, of unpaid fees, costs and
expenses (including interest thereon in accordance with the Brazilian Security
Documents) incurred by or on behalf of the Security Agent (and any receiver,
adviser or agent appointed by it) in accordance with the terms of the Brazilian
Finance Documents and the remuneration of the Security Agent and its respective
advisers or agents and any receivers appointed under the Brazilian Security Documents;


 


(ii)           second, in payment, pro rata, of unpaid costs and expenses
incurred by or on behalf of the Brazilian Finance Parties in accordance with
the terms of the Brazilian Finance Documents in connection with enforcement of
the Brazilian Guarantee and which any Obligor is obliged to pay or reimburse to
any Brazilian Finance Party in accordance with the Brazilian Finance Documents;


 


28

















 


(iii)          third, in payment to the
Brazilian Facility Agent (for itself and for the other Brazilian Finance
Parties) in accordance with the terms of the Brazilian Finance Documents for
application towards unpaid and outstanding Brazilian Indebtedness; and


 


(iv)          fourth, in payment of any
surplus to the Obligors under the Brazilian Finance Documents, the Equity
Finance Providers and/or the other persons entitled to it, in each case, as
determined by the Parent in consultation with the Security Agent.


 


(d)           Save as otherwise provided in
this Deed, all NZ Proceeds shall be applied in the following order:


 


(i)            first, in payment of unpaid
fees, costs and expenses (including interest thereon in accordance with the NZ
Security Documents) incurred by or on behalf of the Security Agent (and any
receiver, adviser or agent appointed by it) in accordance with the terms of the
NZ Finance Documents and the remuneration of the Security Agent and its
advisers or agents and any receivers appointed under the NZ Security Documents;


 


(ii)           second, in payment, pro rata, of unpaid costs and expenses
incurred by or on behalf of the NZ Finance Parties in accordance with the terms
of the NZ Finance Documents in connection with enforcement of the NZ Security
Documents and which any Obligor is obliged to pay or reimburse to any NZ
Finance Party in accordance with the NZ Finance Documents;


 


(iii)          third, in payment to the NZ
Facility Agent (for itself and for the other NZ Finance Parties) for
application towards unpaid and outstanding NZ Indebtedness; and


 


(iv)          fourth, in payment of any
surplus to the Obligors under the NZ Finance Documents, the Equity Finance
Providers and/or the other persons entitled to it, in each case, as determined
by the Parent in consultation with the Security Agent.


 


(e)           Notwithstanding the
aforementioned provisions of this Clause 10.1 (Application),
each of the parties to this Deed hereby agrees and acknowledges that each
Beneficiary which is a non German resident and
is not a Treaty Lender shall not at any time take the benefit, directly or
indirectly, of any security interest in any real estate located in Germany over
which a security interest is granted to the Security Agent for the benefit of
the Beneficiaries or in any proceeds of enforcement in respect thereof (the “Real Estate Security”), in respect of its
participation in the Senior Indebtedness. It is further hereby agreed that such
a Beneficiary shall not at any time take the benefit, directly or indirectly,
of any additional right in respect of any other security interest granted to
the Security Agent for the benefit of the Beneficiaries pursuant to the
Security Documents to compensate for such a Beneficiary not having the benefit
of any security interest in the Real Estate Security.


 


29

















 


(f)            Notwithstanding the
aforementioned provisions of this Clause 10.1 (Application),
each of the parties to this Deed hereby agrees and acknowledges that any
proceeds of enforcement of a Security Document or a guarantee of Senior
Indebtedness may only be applied to discharge amounts secured by that Security
Document or guaranteed by that guarantee.


 


(g)           Notwithstanding anything to
the contrary contained in this Clause 10 (Application
of Recoveries), each of the parties to this Deed hereby agrees and
acknowledges that no proceeds of enforcement of any of the Security Documents
(except for the Italian Law Security Documents) or any guarantee of Senior
Indebtedness shall be applied to discharge amounts outstanding under any
Italian Non-Guaranteed Tranche.


 


10.2        Appropriations


 


Subject to Clause 9.1 (Turnover) and Clause 10.1 (Application), each Senior Finance Party
until (and including) the Senior Discharge Date, may (subject in each case to
the provisions of this Deed and the other Senior Finance Documents):


 


(a)           apply any moneys received
under this Deed to any item of account or liability in respect of the Senior
Indebtedness in such order or manner as it may reasonably determine (save as
expressly provided in any Senior Finance Document); and


 


(b)           hold any moneys received under
this Deed in a suspense account (bearing interest at a market rate usual for
accounts of that type) unless and until such moneys are sufficient in aggregate
to discharge in full all amounts then due and payable in respect of the Senior
Indebtedness.


 


11.          SUBROGATION


 


11.1        Subrogation of A2 Finance Parties


 


(a)           If the A1 Indebtedness is
wholly or partially paid out of any proceeds received in respect or on account
of the A2 Indebtedness owing to one or more of the A2 Finance Parties, those A2
Finance Parties will to that extent be subrogated to the A1 Indebtedness so
paid and to all Security and guarantees for that A1 Indebtedness, provided
that:


 


(i)            the A2 Finance Parties may
not, without the prior written consent of the Majority A1 Banks, exercise such
subrogation rights prior to the A1 Discharge Date; and


 


(ii)           each A1 Finance
Party is indemnified to its reasonable satisfaction by those A2 Finance Parties
against any costs, expenses and liabilities that they incur in relation
thereto.


 


(b)           After the A1 Discharge Date,
each A1 Finance Party will give such assistance to the A2 Finance Parties
and/or the Security Agent may reasonably require in exercising such rights of
subrogation, provided that such A1 Finance Party is


 


30

















 


indemnified to its reasonable satisfaction by the A2 Finance Parties
against any costs, expenses and liabilities that they may incur in relation
thereto.


 


11.2        No Subrogation of Junior Creditors


 


The Junior Creditors will not under any
circumstances exercise any rights of subrogation in respect of any of the
rights of the Senior Finance Parties or any Security or guarantees arising
under the Finance Documents until the Senior Discharge Date, except with the
consent of all of the Majority Banks.


 


12.          PROTECTION OF SUBORDINATION


 


12.1        Continuing Subordination


 


The subordination provisions in this Deed
constitute a continuing subordination and benefit to the ultimate balance of
the Senior Indebtedness, regardless of any intermediate payment or discharge of
any such Senior Indebtedness in whole or in part.


 


12.2        Waiver of Defences


 


The subordination and priority provisions in
this Deed will not be affected by any act, omission or circumstance which (but
for this provision) may operate to release or otherwise exonerate the Senior
Finance Parties, the Equity Finance Providers, the Intra-Group Creditors and/or
the Obligors from their obligations hereunder or otherwise affect such
subordination and priority provisions including, without limitation:


 


(a)           any time or indulgence granted
to or composition with any Obligor or any other person; or


 


(b)           the taking, variation,
compromise, renewal or release of or refusal to enforce any rights, remedies or
securities against or granted by any Obligor or other member of the Group or
any other person; or


 


(c)           the actual date and time of
creation, execution, delivery, recording, filing, attachment or perfection of
any Security; or


 


(d)           any non-perfection of any
Security purportedly securing any such obligations (including, without
limitation, whether any such Security is now perfected, hereafter ceases to be
perfected, is avoidable by any bankruptcy trustee or is otherwise is set aside
or, invalidated or lapses); or


 


(e)           the initiation of any
bankruptcy, moratorium, reorganisation or other insolvency proceeding with
respect to any Obligor; or


 


(f)            any legal limitation,
disability, incapacity or other circumstance relating to any Obligor or any
other person or any amendment to or variation of the terms of this Deed or any
other document or security (including, without limitation, any Finance
Document); or


 


31

















 


(g)           any fluctuation in or partial
repayment or prepayment of the Senior Indebtedness or the Junior Debt; or


 


(h)           subject as expressly provided
herein, any variation or replacement of any Finance Document, including,
without limitation, for the purpose of increasing amounts outstanding
thereunder; or


 


(i)            any lack of validity or
enforceability of any Finance Document or any other agreement or instrument
relating thereto; or


 


(j)            any other circumstance that
might otherwise constitute a defence available to, or a discharge of, any
Obligor, a subordinated creditor or a secured subordinated creditor.


 


12.3        Marshalling


 


The A2 Finance Parties (until the A1 Discharge
Date), each of the Obligors and the Junior Creditors waive, to the fullest
extent permitted by applicable law, any requirement regarding, and agree not to
demand, request, plead or otherwise claim the benefit of, any marshalling,
appraisement, valuation or other similar right that may otherwise be available
under applicable law.


 


12.4        Set Aside of Payments


 


This Deed shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the Senior
Indebtedness is rescinded or must otherwise be returned by a Finance Party upon
the insolvency, bankruptcy or reorganisation of any Obligor or otherwise, all
as though such payment had not been made.


 


12.5        Right of Equity Finance Providers to Prove


 


Notwithstanding any other provision of this
Clause 12 or any other provision of this Deed, on the occurrence of an
Insolvency Event in relation to an Obligor, an Equity Finance Provider may
prove for the amounts owing to it by that Obligor.


 


13.          STATUS OF OBLIGORS


 


Each Obligor and each Junior Creditor
acknowledges the priorities, rights and obligations set out herein and
undertakes with each of the Senior Finance Parties to comply with its
respective obligations hereunder and not to take or agree to take any action
which would in any way prejudice or affect the enforcement of the provisions of
this Deed or any other Finance Document or do anything which would be
inconsistent with any provisions hereof.


 


14.          AMENDMENTS TO DOCUMENTS


 


14.1        Amendments to Senior Finance Documents


 


(a)           Subject to Clause 14.2 (Amendments to Security Documents), no
Senior Finance Party will, except with the prior written consent of all the
relevant Majority Banks:


 


32

















 


(i)            agree to any Material
Variation to any of the Facility Agreements to which it is party;


 


(ii)           agree to a deferral
of any scheduled repayment and/or the extension of the maturity dates of any
Advance in which it participates; or


 


(iii)          assign or otherwise
transfer (other than by way of charge or security) rights and/or obligations
under the Finance Documents to which it is party other than in accordance with
the provisions thereof and provided that, simultaneously with such assignment
or transfer, the relevant Senior Finance Party will procure that the new party
agrees in favour of the other parties to this Deed to be bound by the
provisions of this Deed pursuant to and in accordance with clause 36 (Assignments and Transfers) of the A/C
Facilities Agreement or the equivalent provisions in either of the B Facility
Agreements.


 


(b)           This Clause 14.1 (Amendments to Senior Finance Documents)
shall not apply to any Hedging Agreements or to the terms of, or the operation
of, any C Ancillary Facilities.


 


14.2        Amendments to Security Documents


 


(a)           Subject to clause 44.2 (Amendments Requiring Different Consent Levels)
of the A/C Facilities Agreement and the equivalent provisions in each of the B
Facility Agreements, any provision of a Security Document may be amended or
waived by the written agreement of the relevant Obligor or Obligors (as the
case may be) and the Security Agent (acting pursuant to sub-paragraph (b)
below) or the Australian Security Trustee (acting pursuant to the Australian
Security Trust Deed).


 


(b)           In agreeing to amend or waive
the provisions of any Security Document, the Security Agent shall act in
accordance with the instructions of the relevant Majority Banks in respect of
the Facilities in respect of which the relevant Security was granted.


 


14.3        Amendments relating to this Deed


 


(a)           Waivers, consents or
amendments in relation to this Deed not materially affecting the rights or
obligations of any of the parties to this Deed may be agreed by:


 


(i)            each of the Facility Agents
and the Coordinator; or


 


(ii)           where such waivers, consents
or amendments only relate to certain of the parties to this Deed, those parties
(including, in each case, the Facility Agents).


 


(b)           Subject to paragraph (a)
above, the Facility Agents and the Coordinator at the applicable time may, from
time to time, agree to amend this Deed and any amendments so made by the
Security Agent, Facility Agents and the Coordinator shall be binding on all the
Parties provided that any amendment


 


33

















 


which would in the reasonable opinion of the Facility Agents and the
Coordinator:


 


(i)            materially and adversely
affect any right of any of the Senior Finance Parties may not be made without
the prior written consent of the relevant Majority Banks;


 


(ii)           impose or vary any obligation
of any of the Senior Finance Parties may not be made without the prior written
consent of the relevant Majority Banks; or


 


(iii)          materially and adversely
affect any right, or impose or vary any obligation, of any other Party may not
be made without the consent of that Party.


 


15.          REPRESENTATIONS AND WARRANTIES


 


Each party to this Deed hereby represents and
warrants to and for the benefit of each of the other parties to this Deed that
it:


 


(a)           is a corporation, company or
other person duly incorporated (or as the case may be, organised) and, if
applicable, in good standing, under the laws of its jurisdiction of
incorporation has the power to own its assets and to carry on its business
substantially as it is being conducted, save where the lack of such power is not
reasonably likely to have a Material Adverse Effect; and


 


(b)           has all necessary consents,
approvals, authorisations and legal capacity to enter into this Deed and all
necessary corporate, shareholder and other action has been taken to ensure that
this Deed has been validly entered into by it and it creates, legal and valid
obligations binding on it and enforceable against it in accordance with the
terms thereof, subject to the reservations made in the Legal Opinions, in
accordance with terms thereof and, in each case subject to applicable
insolvency, bankruptcy, liquidation, administration, moratorium, reorganisation
and similar laws affecting the rights of creditors generally, general
principles of equity and any other reservations made in the Legal Opinions
unless failure to obtain such consents, approvals and authorisations or to have
such capacity or to take such action would not reasonably be expected to have a
Material Adverse Effect.


 


16.          INFORMATION AND CO-OPERATION


 


16.1        Other Information


 


Each Obligor on behalf of each other member of
the Group authorises each of the Senior Finance Parties to disclose to each
other all information relating to such member of the Group or the Group as a
whole coming into any of their possession in connection with the Senior Finance
Documents (including, without limitation, the respective amounts of the
Indebtedness outstanding from time to time) so long as such information is
treated confidentially to the extent required by the Finance Documents.


 


34

















 


16.2        Co-operation


 


Each of the Obligors (promptly upon request of
the Security Agent) and each of the Senior Finance Parties undertakes to use
all reasonable endeavours to ensure that any and all Security now or hereafter held
or obtained from any member of the Group for or in respect of the Senior
Indebtedness shall be constituted by the Security Documents and held by the
Security Agent (or the Australian Security Trustee in the case of the
Australian Security Document), in its own name or as agent, for the joint
benefit of the relevant Senior Finance Parties in accordance with their
respective priority entitlements set out in this Deed.  If for any reason it is not possible for any
such Security to be held by the Security Agent or the Australian Security
Trustee as aforesaid, the Senior Finance Parties shall procure that any
alternative holder of security shall, as a condition precedent to its accepting
any such Security, adhere to this Deed by accepting obligations mutatis mutandis identical in all material
respects to those incumbent on the Security Agent hereunder.


 


16.3        Consultation


 


The relevant Facility Agents, the Security
Agent and the Australian Security Trustee (if relating to the Australian
Security Document) shall, from time to time (to the extent practicable),
consult:


 


(a)           before taking any formal steps
to exercise any remedy against any member of the Group or the taking of any
other Enforcement Action; and


 


(b)           generally with regard to
significant matters affecting the rights of the parties as regulated by this
Deed;


 


but nothing in this Clause 16.3 (Consultation) or elsewhere in this Deed
will invalidate or otherwise affect any action or step taken without such
consultation.


 


16.4        Ranking overseas


 


Each of the Obligors (promptly upon request of
the Security Agent) and the Senior Finance Parties undertakes to use all
reasonable endeavours (not to involve expenditure of money in excess of
reasonable professional fees and out-of-pocket expenses) to ensure that the provisions
of this Deed as to the relative ranking of priorities and subordination as
between the Senior Finance Parties, the Equity Finance Providers and the Intra-Group
Creditors shall be given effect to in all relevant jurisdictions.


 


17.          ATTORNEY


 


Each Junior Creditor hereby irrevocably and by
way of security appoints (to the extent it is legally able to do so) the
Security Agent as its attorney (with full power of substitution and delegation)
in its name and on its behalf to do anything which it has authorised the
Security Agent to do under this Deed and/or is required and legally able to do
under this Deed but has failed to do for a period of 10 Business Days after
receiving notice from the Security Agent requiring it to do so unless such
party is disputing in good faith and by appropriate proceedings that it is
required to take the relevant action.


 


35

















 


18.          HEDGING BANKS


 


18.1        Hedging Agreements


 


Each Hedging Bank will promptly provide to the
Security Agent copies of the relevant Hedging Agreements to which it is a
party.  The Hedging Agreements entered
into by the Hedging Banks shall:


 


(a)           be based on the 1992 ISDA
Master Agreement (or any successor agreement); and


 


(b)           provide that in the event of
termination or closing-out of any hedging transaction entered into under the
terms of those Hedging Agreements for whatever reason, both the relevant
Hedging Bank and the relevant Obligor may be obliged to make a compensating
payment (with the intent that the defaulting party under the Hedging Agreements
will be entitled to receive payment under the Hedging Agreements if the
application of the termination provisions of the Hedging Agreements results in
a negative number);


 


(c)           provide that the relevant
Hedging Bank will, if so requested by the relevant Facility Agent under Clause
5.3(b) (Permitted Enforcement Action by
Hedging Banks) following a declaration under clause 23.16 (Acceleration and Cancellation) of the A/C
Facilities Agreement or equivalent provisions in the NZ Facility Agreement, be
entitled to terminate or close-out any hedging transaction entered into under
the relevant Hedging Agreements;


 


(d)           provide that an Event of
Default (as defined in each of the Facility Agreements) is an Event of Default
(as defined therein);


 


(e)           not elect for the application
of Automatic Early Termination (as defined in the relevant Hedging Agreements);
and


 


(f)            otherwise, be in a form
satisfactory to the Security Agent (acting reasonably).


 


18.2        Amendments


 


No Hedging Bank shall amend or vary the Hedging
Agreements to which it is party:


 


(a)           so that such Hedging
Agreements cease to comply with the requirements of this Clause 18 (Hedging Banks); or


 


(b)           in a manner which is
materially prejudicial to the interests of the Senior Finance Parties under the
Senior Finance Documents,


 


in each case, without the consent of the
Security Agent acting on the instructions of the relevant Majority Banks in
respect of the Facilities that would be affected thereby.


 


36

















 


19.          PRO RATA SHARING


 


19.1        Senior Finance Parties


 


Subject to Clause 9.1 (Turnover) and as provided in Clause 19.2 (Exceptions), if any Senior Finance Party
(the “Recovering Party”) receives
an amount in discharge of the Senior Indebtedness (a “Recovery”) after the date of service of
notice of acceleration under clause 23.16 (Acceleration
and Cancellation) of the A/C Facilities Agreement or the equivalent
provisions in each of the B Facility Agreements other than as a result of a
payment under Clause 10.1 (Application)
then:


 


(a)           within two Business Days of
receipt of the Recovery, the Recovering Party shall pay to the Security Agent
an amount equal (or equivalent) to such Recovery;


 


(b)           the Security Agent shall
redistribute such payment in accordance with Clause 10.1 (Application); and


 


(c)           save for any receipt by the
Recovering Party as a result of the operation of paragraph (b) above, as
between the relevant Obligor and the Recovering Party the Recovery shall be
treated and deemed as not having been paid.


 


Each Senior Finance Party shall notify the
Security Agent promptly of any such Recovery by it other than by payment
through the Security Agent.  If any
Recovery subsequently has to be wholly or partly refunded by the Recovering
Party which paid an amount equal thereto to the Security Agent under Clause
19.1(a), each Senior Finance Party to which any part of that amount was
distributed shall, on request from the Recovering Party, repay to the
Recovering Party that Senior Finance Party’s pro
rata share of the amount which has to be refunded by the Recovering
Party.


 


19.2        Exceptions


 


The provisions of Clause 19.1 (Senior Finance Parties) shall not apply to
any Hedging Bank as a result of exercising rights to net sums due and payable
by and to it under the Hedging Agreements.


 


19.3        Adjustments


 


To the extent that by reason of applicable law
the Security Agent or the relevant Facility Agent is not able to apply amounts
received pursuant to enforcement of guarantees and Security Documents in
payment to the Senior Finance Parties to the outstanding Senior Indebtedness
due to such Senior Finance Parties as provided for in Clause 10.1 (Application) such amount shall be applied
as the Security Agent shall reasonably determine subject to Clause 10.1(f) (Application) in accordance with applicable
law subject to the relevant Senior Finance Parties making any payments required
between themselves in order to place each of the Senior Finance Parties in the
same position as they would have been in had it been possible to apply amounts
to the Senior Indebtedness on a pro rata
basis.


 


37

















 


20.          APPOINTMENT AND DUTIES OF SECURITY AGENT


 


20.1        Trust for Beneficiaries


 


(a)           Declaration
of Trust:  To the extent
the Security is not transferred, charged or granted to the Security Agent on
trust and subject to the provisions of Clause 20.1(d) (Declaration of Trust and Appointment as Administrator
(Germany)), Clause 20.1(e) (Agent
for the Beneficiaries (France)), Clause 20.1(f) (Agent for Beneficiaries (Spain)), Clause
20.1(g) (Agent for Beneficiaries
(Switzerland)), Clause 20.1(h) (Agent
for Beneficiaries (Italy)), Clause 20.1(i) (Agent for Beneficiaries (Belgium)) and
Clause 20.1(j) (Agent for Beneficiaries
(Québec)) and without prejudice to Clause 20.18 (Abstract Acknowledgment of Indebtedness; Joint
Creditorship) and Clause 20.19 (Parallel
Debt), the Security Agent declares itself trustee of the Security
(save for any Security created pursuant to the Australian Security Document) to
hold the same on trust for the Beneficiaries on the terms and subject to the
conditions set out in this Deed. The following provisions are supplementary to
the provisions of the Trustee Acts.


 


(b)           Trust:


 


(i)            The Security Agent shall have
only those duties, obligations and responsibilities expressly specified in the
Security Documents and this Deed and no duties, obligations and
responsibilities shall be inferred or implied.


 


(ii)           In performing or
carrying out its duties, obligations and responsibilities, the Security Agent
shall be considered to be acting only in a mechanical and administrative
capacity (save as expressly provided in the Security Documents or this Deed)
and shall not have or be deemed to have any duty, obligation or responsibility
to, or relationship of trust or agency with, any Obligor (save in respect of
certain notification requirements as expressly provided in the Security
Documents).


 


(c)           Covenant to
Pay:  Subject to
clause 24 (Guarantee and Indemnity)
of the A/C Facilities Agreement and the equivalent provisions of the B Facility
Agreements (each of which shall apply to the provisions in this Deed as if set
out in full herein, mutatis mutandis),
each Obligor hereby covenants with the Security Agent as trustee for the Beneficiaries
that, on demand of the Security Agent (whether for its own account or as
trustee for the Beneficiaries) or any of the other Beneficiaries under or
pursuant to the Finance Documents, such Obligor shall pay to the Security Agent
when due and payable every sum at any time owing, due or incurred by such
Obligor to the Security Agent (whether for its own account or as trustee for
the Beneficiaries) or any of the other Beneficiaries under or pursuant to the
Finance Documents (whether present or future, actual or contingent, and whether
incurred solely or jointly and whether as principal or as surety or in some
other capacity (including any liability for further advances made or to be
made)).


 


38

















 


(d)           Declaration
of Trust and Appointment as Administrator (Germany):


 


(i)            Without prejudice to the
generality of Clause 20.1(a) (Declaration of
Trust),


 


(A)          each Beneficiary that
is or will become party to this Deed (other than the Security Agent) hereby
appoints the Security Agent as trustee (Treuhaender)
and administrator for the purpose of holding on trust (Treuhand), taking, administering,
enforcing and releasing the German Law Security for the Beneficiaries (other
than the Security Agent);


 


(B)           the Security Agent
accepts its appointment as a trustee and administrator of the German Law
Security on the terms and subject to the conditions set out in this Deed; and


 


(C)           the Beneficiaries and
all other parties to this Deed agree that, in relation to the German Law Security,
no Beneficiary (other than the Security Agent) shall exercise any independent
power to enforce any German Law Security or take any other action in relation
to the enforcement of the German Law Security, or make or receive any
declarations in relation thereto.


 


(ii)           The Security Agent
shall:


 


(A)          hold and administer
any German Law Security which is security assigned (Sicherungseigentum/Sicherungsabtretung) or otherwise
transferred under a non-accessory security right (nicht akzessorische Sicherheit) to it as a trustee (Treuhänder) for the benefit of the
Beneficiaries; and


 


(B)           hold and administer
any German Law Security which is pledged (Pfandrecht)
or otherwise transferred to it under an accessory security right (akzessorische Sichereit) for the benefit
of the Beneficiaries.


 


(iii)          Each Beneficiary
(other than the Security Agent) hereby authorises the Security Agent:


 


(A)          to enter into any
documents evidencing German Law Security and to make and accept all
declarations and take all actions it considers necessary or useful in
connection with any German Law Security on behalf of the Beneficiaries;


 


(A)          to rescind, release,
amend and/or execute new and/or different documents evidencing German Law
Security;


 


(B)           to exercise such
rights, remedies, powers and discretions as are specifically delegated to or
conferred upon the Security Agent by the German Law Security Documents together
with such powers and discretions as are reasonably incidental thereto; and


 


39

















 


(C)           to take such action
on its behalf as may from time to time be authorised under or in accordance
with the German Law Security Documents.


 


(iv)          The Security Agent
shall be exempted from the restrictions of Section 181 of the German Civil Code
and shall have the right to delegate its powers as a representative in
accordance with Clause 20.20(a) (Delegation).


 


(v)           Each Beneficiary (other than
the Security Agent) hereby ratifies and approves all acts previously done by
the Security Agent on such Beneficiary’s behalf in relation to the German Law
Security Documents.


 


(e)           Agent for the
Beneficiaries (France):


 


(i)            Each Beneficiary (other than
the Security Agent) as “mandants”
under French law:


 


(A)          hereby irrevocably
appoints the Security Agent to act as its agent (“mandataire” under French law) under and in connection with
the French Law Security Documents; and


 


(B)          irrevocably
authorises the Security Agent to execute for and on its behalf the French Law
Security Documents and to perform the duties and to exercise the rights, powers
and discretions that are specifically delegated to it under or in connection
with the French Law Security Documents, together with any other rights, powers
and discretions which are incidental thereto and to give a good discharge for
any moneys payable under the French Law Security Documents.


 


(ii)           The Security Agent
will act solely for itself and as agent for the other Beneficiaries in carrying
out its functions as agent under the French Law Security Documents.


 


(iii)          The relationship
between the Beneficiaries (other than the Security Agent) on the one hand and
the Security Agent on the other is that of principal (“mandant” under French law) and agent (“mandataire” under French law) only.  The Security Agent shall not have, nor be
deemed to have, assumed any obligations to, or trust or fiduciary relationship
with, any party to this Deed other than those for which specific provision is
made by the French Law Security Documents and, to the extent permissible under
French law, the other provisions of this Deed, which shall be deemed to be
incorporated in this Clause 20.1(e), where reference is made to any French Law
Security Documents.


 


(iv)          Notwithstanding
Clause 28.1 (Governing Law) of
this Deed, the provision of this Clause 20.1(e) and the other provisions of
this Deed which are deemed to be incorporated herein, shall be governed by, and
construed in accordance with, French law. 
Notwithstanding Clause


 


40

















 


28.2 (Submission to Jurisdiction)
but without prejudice to Clause 28.3 (Freedom
of Choice), any dispute arising out of this Clause 20.1(e) shall be
submitted to the Tribunal de Commerce de Paris.


 


(v)           The Beneficiaries, the
Security Agent and the other parties hereto which are also party to any French
Law Security Document irrevocably acknowledge that the existence and extent of
the Security Agent’s authority resulting from this Clause 20.1(e) and the
effects of the Security Agent’s exercise of this authority shall be governed by
French law.


 


(f)            Agent for the
Beneficiaries (Spain):


 


(i)            Each Beneficiary (other than
the Security Agent) as “mandante”
under Spanish law:


 


(A)          hereby irrevocably
appoints the Security Agent to act as its agent (“mandatario”) under and in connection with the Spanish Law
Security Documents and undertakes to take any actions and grant any documents
necessary for the full effectiveness of this appointment in Spain;


 


(B)          irrevocably
authorises the Security Agent to perform the duties and to exercise the rights,
powers and discretions that are specifically delegated to it under this
Agreement; and


 


(C)          irrevocably
authorises the Security Agent to execute for and on its behalf the Spanish Law
Security Documents and to perform the duties and to exercise the rights, powers
and discretions that are specifically delegated to it under or in connection
with the Spanish Law Security Documents, together with any other rights, powers
and discretions which are incidental thereto and to give a good discharge for
any moneys payable under the applicable Senior Finance Documents.


 


(ii)           The Security Agent
will act solely for itself and as agent for the other Beneficiaries in carrying
out its functions as agent under the Spanish Law Security Documents.


 


(iii)          The relationship
between the Beneficiaries (other than the Security Agent) on the one hand and
the Security Agent on the other is that of principal (“mandante”) and agent (“mandatario”) only.  The Security Agent shall not have, nor be
deemed to have, assumed any obligations to, or trust or fiduciary relationship
with, any party to this Deed other than those for which specific provision is
made by the Spanish Law Security Documents and, to the extent permissible under
Spanish law, the other provisions of this Deed, which shall be deemed to be
incorporated in this Clause 20.1 (f), where reference is made to any Spanish
Law Security Documents.


 


41

















 


(g)           Agent for the
Beneficiaries (Switzerland):


 


(i)            Each Beneficiary (other than
the Security Agent) as “mandataire”
under Swiss law:


 


(A)          hereby irrevocably appoints
the Security Agent to act as its agent (“mandataire”)
under and in connection with the Swiss Law Security Documents; and


 


(B)          irrevocably authorises the
Security Agent to execute for and on its behalf the Swiss Law Security
Documents and to perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in connection with
the Swiss Law Security Documents, together with any other rights, powers and
discretions which are incidental thereto and to give a good discharge for any
moneys payable under the Swiss Law Security Documents.


 


(ii)           The Security Agent will act
solely for itself and as agent for the other Beneficiaries in carrying out its
functions as agent under the Swiss Law Security Documents.


 


(iii)          The relationship between the
Beneficiaries (other than the Security Agent) on the one hand and the Security
Agent on the other is that of principal (“mandant”)
and agent (“mandataire”)
only.  The Security Agent shall not have,
nor be deemed to have, assumed any obligations to, or trust or fiduciary
relationship with, any party to this Deed other than those for which specific
provision is made by the Swiss Law Security Documents and the other provisions
of this Deed, which shall be deemed to be incorporated in this Clause 20.1 (g),
where reference is made to any Swiss Law Security Documents.


 


(h)           Agent for the
Beneficiaries (Italy):


 


(i)            Each Beneficiary (other than
the Security Agent) as “mandante”
under Italian law:


 


(A)          hereby irrevocably appoints
the Security Agent to act as its agent (“mandatario” under Italian law) under
and in connection with the Italian Law Security Documents; and


 


(B)          irrevocably authorises the
Security Agent to execute for and on its behalf the Italian Law Security
Documents and to perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in connection with
the Italian Law Security Documents, together with any other rights, powers and
discretions which are incidental thereto and to give a good discharge for any
moneys payable under the Italian Law Security Documents.


 


(ii)           The Security Agent will act
solely for itself and as agent for the other Beneficiaries in carrying out its
functions as agent under the Italian Law Security Documents.


 


42

















 


(iii)          The relationship between the
Beneficiaries (other than the Security Agent) on the one hand and the Security
Agent on the other is that of principal (“mandante”
under Italian law) and agent (“mandatario”
under Italian law) only.  The Security
Agent shall not have, nor be deemed to have, assumed any obligations to, or
trust or fiduciary relationship with, any party to this Deed other than those
for which specific provision is made by the Italian Law Security Documents and,
to the extent permissible under Italian law, the other provisions of this Deed,
which shall be deemed to be incorporated in this Clause 20.1(h), where
reference is made to any Italian Law Security Documents.


 


(iv)          Notwithstanding Clause 28.1
(Governing Law) of this Deed, the provision of this Clause 20.1(h) and the
other provisions of this Deed which are deemed to be incorporated herein, shall
be governed by, and construed in accordance with, Italian law.  Notwithstanding Clause 28.2 (Submission to
Jurisdiction) but without prejudice to Clause 28.3 (Freedom of Choice), any
dispute arising out of this Clause 20.1(h) shall be submitted to the Courts of
Milan.


 


(v)           The Beneficiaries, the
Security Agent and the other parties hereto which are also party to any Italian
Law Security Document irrevocably acknowledge that the existence and extent of
the Security Agent’s authority resulting from this Clause 20.1(h) and the
effects of the Security Agent’s exercise of this authority shall be governed by
Italian law.


 


(i)            Agent for the
Beneficiaries (Belgium):


 


(i)            Each Beneficiary (other than
the Security Agent) as “mandants”
under Belgian law:


 


(A)          hereby irrevocably
appoints the Security Agent to act as its agent (“mandataire” under Belgian law) under and in connection with
the Belgian Law Security Documents; and


 


(B)          irrevocably
authorises the Security Agent to execute for and on its behalf the Belgian Law
Security Documents and to perform the duties and to exercise the rights, powers
and discretions that are specifically delegated to it under or in connection
with the Belgian Law Security Documents, together with any other rights, powers
and discretions which are incidental thereto and to give a good discharge for
any moneys payable under the Belgian Law Security Documents.


 


(ii)           The Security Agent
will act solely for itself and as agent for the other Beneficiaries in carrying
out its functions as agent under the Belgian Law Security Documents.


 


(iii)          The relationship
between the Beneficiaries (other than the Security Agent) on the one hand and
the Security Agent on the other is that of principal (“mandant” under Belgian law) and agent (“mandataire”


 


43

















 


under Belgian law) only.  The
Security Agent shall not have, nor be deemed to have, assumed any obligations
to, or trust or fiduciary relationship with, any party to this Deed other than
those for which specific provision is made by the Belgian Law Security
Documents and, to the extent permissible under Belgian law, the other
provisions of this Deed, which shall be deemed to be incorporated in this
Clause 20.1(i), where reference is made to any Belgian Law Security Documents.


 


(iv)          Notwithstanding
Clause 28.1 (Governing Law) of
this Deed, the provision of this Clause 20.1(i) and the other provisions of
this Deed which are deemed to be incorporated herein, shall be governed by, and
construed in accordance with, Belgian law. 
Notwithstanding Clause 28.2 (Submission
to Jurisdiction) but without prejudice to Clause 28.3 (Freedom of Choice), any dispute arising
out of this Clause 20.1(i) shall be submitted to the Courts of Brussels,
Belgium.


 


(v)           The Beneficiaries, the
Security Agent and the other parties hereto which are also party to any Belgian
Law Security Document irrevocably acknowledge that the existence and extent of
the Security Agent’s authority resulting from this Clause 20.1(i) and the
effects of the Security Agent’s exercise of this authority shall be governed by
Belgian law.


 


(j)            Agent for the
Beneficiaries (Québec)


 


Each Beneficiary and each Canadian Borrower
confirms the appointment and designation of the Canadian Supplemental Security
Agent (or any successor thereto) as the person holding the power of attorney (“fondé de pouvoir”) within the meaning of
Article 2692 of the Civil Code of Québec for
the purposes of the hypothecary security under the deed of hypothec to be
granted by each Canadian Borrower under the laws of the Province of Québec and,
in such capacity, the Canadian Supplemental Security Agent shall hold the
hypothecs granted under the laws of the Province of Québec as such fondé de pouvoir in the exercise of the
rights conferred thereunder.  The execution
by the Canadian Supplemental Security Agent, as such fondé de pouvoir, prior to the date hereof of any deed
creating or evidencing any such hypothecs is hereby ratified and confirmed.
Notwithstanding the provisions of Section 32 of the Act respecting the special powers of legal persons (Québec),
the Canadian Supplemental Security Agent may acquire and be the holder of any
of the bonds (or similar instruments) secured by such hypothecs.  Each assignee Beneficiary that becomes party
to this Deed, by becoming a party to this Agreement, shall be deemed to have
ratified and confirmed the appointment of the Canadian Supplemental Security
Agent as fondé de pouvoir.


 


(k)           No
Independent Power:


 


(i)            The Beneficiaries (other than
the Security Agent or a delegate) shall have no independent power to enforce,
or have recourse to, any of the Security or to exercise any rights or powers
arising under the Security 


 


44

















 


Documents unless the Security Agent or, as the case may be, its
delegate, having been obligated to do so, fails to do so within a reasonable
time and such failure is continuing or (w) in the case of the Italian Law
Security Documents, as otherwise provided for by mandatory provision of Italian
law, or (x) in the case of the Spanish Law Security Documents, subject to any
limitations under Spanish law for undisclosed representation (“representación indirecta”) (y) in the case
of the French Law Security Documents, as otherwise provided for by mandatory
provisions of French law and (z) in the case of Belgian Law Security Documents,
as otherwise provided for by mandatory provisions of Belgian law.


 


(ii)           Any money recovered
by a Beneficiary in accordance with the provisions of this Clause 20.1 shall be
immediately turned over to the Security Agent in accordance with Clause 9.1 (Turnover) and the Security Agent is hereby
irrevocably instructed by the Beneficiaries to apply such monies in accordance
with this Deed.


 


(l)            The Security Agent shall not
be or be deemed to be agent or trustee for any party to this Deed other than
the Senior Finance Parties.


 


20.2        Security Agent’s Duties


 


The Security Agent
shall:


 


(a)           promptly send to the relevant
Facility Agents details of each communication received by it under this Deed or
under the Security Documents;


 


(b)           promptly send to the relevant
Facility Agents a copy of any legal opinion delivered under this Deed or any of
the Security Documents and or any other document or information received by it
pursuant to this Deed or any of the Security Documents;


 


(c)           subject to those provisions of
this Deed which require the consent of all Beneficiaries or all of a particular
category of the Beneficiaries, act in accordance with any instructions given as
provided in Clause 7 (Enforcement of Security)
or, if so instructed in accordance with Clause 7 (Enforcement of Security), refrain from exercising a right,
power or discretion vested in it under any of the Security Documents or this
Deed;


 


(d)           have only those duties,
obligations and responsibilities expressly specified in the Security Documents
or this Deed; and


 


(e)           promptly notify each of the
Facility Agents of the occurrence of any Default on becoming aware of it.


 


20.3        Security Agent’s Rights


 


Subject to the
provisions of this Deed, the Security Agent may:


 


(a)           perform any of its duties,
obligations and responsibilities under the Security Documents or this Deed by
or through its personnel, delegates or agents (on


 


45

















 


the basis that the Security Agent may extend the benefit of any
indemnity received by it hereunder to its personnel, delegates or agents);


 


(b)           refrain from exercising any
right, power or discretion vested in it under the Security Documents or this
Deed until it has received instructions in accordance with this Deed;


 


(c)           refrain from doing anything
which would or might in its opinion be contrary to any law, directive or
judgment of any court of any jurisdiction or otherwise render it liable to any
person and may do anything which is in its reasonable opinion necessary to
comply with any such law, directive or judgment;


 


(d)           if it receives instructions or
directions from the relevant Facility Agent to take any action in relation to
this Deed or the Security Documents, assume that all applicable conditions for
taking that action have been satisfied;


 


(e)           assume that (i) any
representation made or deemed to be made by any party to the Finance Documents
is true; (ii) no Default has occurred; and (iii) all the Obligors are in
compliance with their obligations under the Finance Documents to which they are
a party unless an officer of the Security Agent, while active on the account of
the Obligors, acquires actual knowledge to the contrary;


 


(f)            without being liable to any
person for any delay or loss caused thereby, refrain from taking any step (or
further step) to protect or enforce the rights of any Beneficiary under any of
the Security Documents or this Deed until it has been indemnified and/or
secured to its satisfaction against any and all costs, losses, expenses or
liabilities (including legal fees) which it would or might sustain or incur as
a result;


 


(g)           accept and rely on any notice,
communication, information, certificate, legal opinion or other document
believed by it to be genuine and correct and assume it to have been
communicated or signed by the person by whom it purports to be communicated and
signed without incurring any liability for so accepting and relying, without
having any duty to enquire as to the accuracy thereof and without being bound
to ask for further evidence or authority or otherwise;


 


(h)           accept and rely as to any
matter of fact which might reasonably be expected to be within the knowledge of
any person in a statement by or on behalf of such person without incurring any
liability for so accepting and relying, without having any duty to enquire as
to the accuracy thereof and without being bound to ask for further evidence or
authority or otherwise;


 


(i)            obtain and pay for such legal
or other expert advice or services as may seem necessary to it or desirable and
rely on any such advice;


 


(j)            accept without enquiry such
title as an Obligor may have to any asset or assets intended to be the subject
of the Security; and


 


(k)           hold or deposit any title
deeds, Security Documents or any other documents in connection with any of the
assets charged by the Security Documents with any


 


46

















 


bankers or banking company or any company whose business includes
undertaking the safe custody of deeds or documents or with any lawyer or firm
of lawyers and it shall not be responsible for or be required to insure against
any loss incurred in connection with any such holding or deposit and it may pay
all sums required to be paid on account or in respect of any such deposit.


 


20.4        Excluded Obligations


 


Notwithstanding anything to the contrary
expressed in this Deed or any Finance Document to which it is a party, the
Security Agent shall not:


 


(a)           be obliged to enquire as to
the occurrence or continuation of any Default or as to the accuracy or
completeness of any representation or warranty made by any party;


 


(b)           be bound to account to any
other Finance Party or any other party for any sum or the profit element of any
sum properly received by it for its own account;


 


(c)           unless ordered to do so by a
court of competent jurisdiction, be bound to disclose to any other person
(including any Beneficiary or Obligor) any confidential information and each
Beneficiary and Obligor agrees that it shall not take any action to obtain from
the Security Agent any such confidential information;


 


(d)           be under any obligations other
than those which are expressly and specifically provided for in this Deed or
any Security Document;


 


(e)           have or be deemed to have any
other duty, obligation or responsibility whatsoever in respect of the Finance
Documents (other than as expressly and specifically provided under this Deed or
any Security Document) or any terms and conditions relating thereto, or any of
the acts or omissions of any of the other parties thereunder;


 


(f)            have any obligation to marshal
any security created under the Security Documents;


 


(g)           be required by anything
contained in this Deed or any other Finance Document to which it is a party to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties or to exercise any of its rights thereunder;


 


(h)           in any circumstances be
obligated to give its own indemnity to any delegate or to become mortgagee in
possession (or the equivalent under the local law of any of the Security
Documents);


 


(i)            have any obligation to effect
or consider the adequacy of any insurance;


 


(j)            be bound to obtain, request,
or maintain any foreign exchange approval necessary for the conversion of any
sum received by the Security Agent in a currency other than that in which the
obligations secured by the relevant Security Document are denominated; or


 


47

















 


(k)           have or be deemed to have any
duty, obligation or responsibility whatsoever in respect of monitoring
compliance by any Obligor or any Facility Agent with their respective
obligations under any of the Finance Documents to which they are a party.


 


20.5        No responsibility to perfect security


 


The Security Agent shall not be liable for any
failure, omission or defect in perfecting or protecting its rights under the
Security Documents or the priority of the security created pursuant to such
Security Documents, including without limitation, any failure to:


 


(a)           require the deposit with it of
any deed or document certifying, representing or constituting title to any of
the security created pursuant to the Security Documents;


 


(b)           obtain any licence, consent,
approval or other authority from any person required or necessary for the
execution, delivery, legality, validity, enforceability or admissibility in
evidence of any of the Security Documents or the Security or any part thereof;


 


(c)           register, file, record or
otherwise protect any of the Security (or the priority of any Security or any
Security Documents (or any amendments thereto) under any applicable laws in any
jurisdiction or give notice to any person of the execution of any of the
Security Documents (or any amendments thereto) or of the Security;


 


(d)           take, or require any of the
Obligors to take, any steps which are or might be required to perfect its title
to any of the assets subject to the Security or to render the Security
effective or to secure the creation of any ancillary Security under the laws of
any jurisdiction;


 


(e)           take, or require any Party to
take, any steps which are or might be required to render (a) the Security
Documents (b) any amendment to the Security Documents or (c) any assignment
and/or transfer by a Party of all of its rights and obligations under any of
the Finance Documents, effective, valid and enforceable under the laws of any
jurisdiction;


 


(f)            require any further assurances
in relation to any of the Security Documents; or


 


(g)           ensure that any sums are
received into any account of any Obligor or any other person.


 


20.6        Powers Supplemental


 


The rights, powers and discretions conferred
upon the Security Agent by this Deed shall be supplemental to those conferred
on it by the Trustee Acts and in addition to any which may be vested in the
Security Agent by general law or otherwise.


 


48

















 


20.7        Merger, etc.


 


Any corporation into which the Security Agent
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Security Agent shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Security Agent, shall be
the successor of the Security Agent hereunder without the execution or filing
or any further act on the part of any party hereto.


 


20.8        Disapplication


 


Section 1 of the Trustee Act 2000 shall not
apply to the duties of the Security Agent in relation to the trusts constituted
by this Deed. Where there are any inconsistencies between the Trustee Acts and
the provisions of this Deed, the provisions of this Deed shall, to the extent
allowed by law, prevail and, in the case of any such inconsistency with the
Trustee Act 2000, the provisions of this Deed shall constitute a restriction or
exclusion for the purposes of that Act.


 


20.9        Exoneration of the Security Agent


 


Neither the Security Agent nor any of its
personnel or agents:


 


(a)           shall be responsible for the
adequacy, accuracy or completeness of any representation, warranty, statement
or information in the Security Documents or this Deed or any notice or other
document delivered under the Security Documents or this Deed;


 


(b)           shall be responsible for the
execution, delivery, validity, legality, adequacy, enforceability or
admissibility in evidence of any of the Security Documents or this Deed;


 


(c)           shall be responsible for any
failure of any Obligor or any of the Beneficiaries duly and punctually to
observe and perform their respective obligations under the Security Documents
or this Deed or for any acts or omissions on the part of any Obligor or any
other person;


 


(d)           shall be responsible for the
consequences of relying on the advice of any professional advisers selected by
any of them in connection with the Security Documents or this Deed;


 


(e)           shall be liable for acting (or
refraining from acting) in what it believes in good faith to be in the best
interests of the Beneficiaries or any of them in circumstances where it has
been unable, or it is not practicable, to obtain instructions in accordance
with this Deed;


 


(f)            shall be liable for anything
done or not done by it under or in connection with the Security Documents or
this Deed save in the case of its own gross negligence (or under Belgian law
and French law, faute grave) or
wilful misconduct (or under Belgian law and French law, dol);


 


(g)           shall be responsible for the
exercise, or failure to exercise, any judgement, discretion or power given to
it by or in connection with any Finance


 


49

















 


Documents to which it is a party, the Security Documents or any other
agreement, arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the Finance Documents to
which it is a party or the Security Documents;


 


(h)           shall be responsible for any
shortfall which arises on the enforcement of the Security Documents, or for any
deficiency or additional payment, as the case may be, which might arise because
the Security Agent is subject to any tax in respect of the Security or any part
thereof or any income therefrom or any process thereof;


 


(i)            shall be responsible for any
decline in value due to currency conversions made pursuant to the Finance
Documents;


 


(j)            shall be responsible for any
moneys other than sums actually received by the Security Agent which have not
been distributed or paid to the Beneficiaries or the person entitled or at the
time of payment reasonably believed by the Security Agent to be entitled thereto;
or


 


(k)           shall be responsible for any
costs, charges, losses, damages, liabilities or expenses arising from or
connected with any realisation of the Security or from any act, default,
omission or misconduct of the Security Agent or its officers, employees or
agents in relation to the Security Documents, save in the case of its own gross
negligence (or under Belgian law and French law, faute grave) or wilful misconduct (or under Belgian law and
French law, dol).


 


20.10      No Proceedings


 


Each party (other than the Security Agent)
agrees for the benefit of the Security Agent and its officers, employees and
agents that it will not assert any claim or take proceedings against any of the
Security Agent’s officers, employees and agents in respect of any claim it might
have against the Security Agent or in respect of any act or omission of any
kind by that officer, employee or agent in relation to the Finance Documents
and any officer, employee or agent of the Security Agent may rely on this
Clause 20.10.


 


20.11      The Security Agent as Security Agent


 


(a)           For so long as it is a Finance
Party in a capacity other than as Security Agent, the Security Agent shall have
the same rights and powers under the Finance Documents as any other Finance
Party and may exercise those rights and powers as if it were not also acting as
Security Agent.


 


(b)           The Security Agent may:


 


(i)            retain for its own benefit and
without liability to account any fee or other sum receivable by it for its own
account; and


 


(ii)           accept deposits
from, lend money to, provide any advisory, trust or other services to or engage
in any kind of banking or other business


 


50














 


with any other party to this Deed or any
subsidiary of any such party (and, in each case, may do so without any
liability to account).


 


20.12      Communications and Information


 


(a)           All communications to any
Obligor by a Finance Party in connection with the Security Documents are to be
made by or through the Security Agent.


 


(b)           The Security Agent will not be
obliged to transmit to the Beneficiaries any information in any way relating to
the Security or the Security Documents or this Deed which the Security Agent
may have acquired otherwise than in its capacity as Security Agent.  Notwithstanding anything to the contrary
expressed or implied herein, the Security Agent shall not as between itself and
the Beneficiaries be bound to disclose to any Beneficiary or other person any
information, disclosure of which might in the opinion of the Security Agent
result in a breach of any law or directive or be otherwise actionable at the
suit of any person, or any information supplied by any member of the Group to
the Security Agent in its capacity as Security Agent for the Beneficiaries or
any of them which is identified by such member of the Group at the time of
supply as being unpublished, confidential or price sensitive information or
supplied solely for the purpose of evaluating in consultation with the Security
Agent whether such transaction might require a waiver or amendment to any of
the provisions of the Security Documents or this Deed.


 


(c)           In acting as Security Agent
for the Beneficiaries or any of them, the Security Agent’s banking division
shall be treated as a separate entity from any other of its divisions (or
similar unit of the Security Agent in any subsequent re-organisation) or
subsidiaries (the “Other Divisions”)
and, in the event that the Security Agent should act for the Parent or any
member of the Group in a corporate finance or other advisory capacity (“Advisory Capacity”), any information given
by the Parent, the Coordinator or any other member of the Group to one of the
Other Divisions is to be treated as confidential and will not be available to
the Beneficiaries or the banking division of the Security Agent without the
prior written consent of the Coordinator, provided that:


 


(i)            the consent of the Coordinator
shall not be required in relation to any information which the Security Agent
reasonably determines relates to a Default or in respect of which the
Beneficiaries to which such information is disclosed have given a
confidentiality undertaking in a form satisfactory to the Security Agent and
the relevant member of the Group acting reasonably; and


 


(ii)           if representatives
or employees of the Security Agent receive information in relation to a Default
whilst acting in an Advisory Capacity, they will not be obliged to disclose
such information to representatives or employees of the Security Agent in their
capacity as Security Agent or to any of the Beneficiaries if to do so would
breach any rule, contractual undertaking or regulation or fiduciary duty
imposed upon such persons.


 


51

















 


20.13      Non-Reliance on Security Agent


 


Each Beneficiary confirms that it is (and will
at all times continue to be) solely responsible for making its own independent
investigation and appraisal of the business, operations, financial condition,
creditworthiness, status and affairs of the Parent and each other member of the
Group and has not relied, and will not at any time rely on the Security Agent:


 


(a)           to provide it with any
information relating to the business, operations, financial condition,
creditworthiness, status and affairs of the Parent or any member of the Group;
or


 


(b)           to check or enquire into the
adequacy, accuracy or completeness of any information provided by any Obligor
under or in connection with any of the Security Documents or this Deed (whether
or not such information has been or is at any time circulated to it by the
Security Agent);


 


(c)           to assess or keep under review
the business/operations, financial condition, creditworthiness, status or
affairs of the Parent or any member of the Group;


 


(d)           in respect of the legality,
validity, effectiveness, adequacy and enforceability of each of the Security
Documents and any other Finance Documents, agreement, arrangement or document
entered into, made or executed in anticipation of, pursuant to or in connection
with the Security Documents or the other Finance Documents;


 


(e)           in respect of whether that
Beneficiary has recourse, and the nature and extent of that recourse, against
any Obligor or any other person or any of their respective assets under or in
connection with the Finance Documents, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or document entered into,
made or executed in anticipation of, pursuant to or in connection with the
Finance Documents; or


 


(f)            in respect of the right or
title of any person in or to, or the value or sufficiency of any part of the
Security, the priority of any of Security or the existence of any encumbrance
effecting the security created pursuant to the Security Documents.


 


20.14      Indemnity to Security Agent


 


(a)           Each Senior Finance Party
shall from time to time, as a separate and independent obligation and
notwithstanding any release or discharge of all or any part of the security
created pursuant to the Security Documents or this Deed, promptly on demand
indemnify the Security Agent (in the proportion borne by the amount of Senior
Indebtedness due to such Senior Finance Party to the total amount of Senior
Indebtedness) against all and any cost, claim, loss, expense or liability
whether or not reasonably foreseeable sustained or incurred by the Security
Agent (including, without limitation, in its capacity as agent for the
Beneficiaries pursuant to Clause 20.1 (Trust
for Beneficiaries)  and every
delegate or sub-delegate (and their respective officers and employees) in
complying with any instructions from the Senior Finance 


 


52

















 


Parties or the Majority Banks or otherwise sustained or incurred by it
in its capacity as Security Agent for the Senior Finance Parties under or in
connection with the Security Documents or this Deed or in the performance of
its duties, obligations and responsibilities under the Security Documents or
this Deed, unless and to the extent sustained or incurred as a result of the
gross negligence or wilful misconduct of the Security Agent or any of its
personnel.


 


(b)           The provisions of paragraph
(a) of this Clause 20.14 (Indemnity to
Security Agent) are without prejudice to the obligations of the
Parent and the other members of the Group to indemnify the Security Agent to
the extent required by the provisions of the Finance Documents.


 


20.15      Resignation of Security Agent; Appointment of Successor


 


(a)           Subject to paragraph (f) below,
the Security Agent may resign its appointment at any time without assigning any
reason and without being responsible for any costs, charges or expenses
occasioned by such resignation by giving notice to the Beneficiaries and the
Parent.


 


(b)           A successor Security Agent
shall be selected:


 


(i)            by the retiring Security Agent
nominating one of its affiliates as successor Security Agent in its notice of
resignation; or


 


(ii)           if the retiring
Security Agent makes no such nomination, by the Beneficiaries nominating one of
the Beneficiaries as successor Security Agent (with the Parent’s agreement,
such agreement not to be unreasonably withheld or delayed); or


 


(iii)          if the
Beneficiaries have failed to nominate a successor Security Agent within 30 days
of the date of the retiring Security Agent’s notice of resignation, by the
retiring Security Agent (with the Parent’s agreement, such agreement not to be
unreasonably withheld or delayed) nominating a financial institution of good
standing to be the successor Security Agent.


 


(c)           The resignation of the
retiring Security Agent and the appointment of the successor Security Agent
will (subject as provided in paragraph (f) of this Clause 20.15) become
effective upon the successor Security Agent accepting its appointment as
Security Agent in writing at which time:


 


(i)            the successor Security Agent
will become bound by all the obligations of the Security Agent and become
entitled to all the rights, privileges, powers, authorities and discretions of
the Security Agent hereunder;


 


(ii)           the agency of the
retiring Security Agent will terminate but without prejudice to any liabilities
which the retiring Security Agent may have incurred prior to the termination of
its agency; and


 


53

















 


(iii)          the retiring
Security Agent will be discharged from any further liability or obligation
under or in connection with the Security Documents or this Deed.


 


(d)           The retiring Security Agent
will co-operate with the successor Security Agent in order to ensure that its
functions are transferred to the successor Security Agent and will, at the cost
of the Parent (to the extent such costs are reasonable) promptly make available
to the successor Security Agent such documents and records as have been maintained
in connection with this Deed in order that the successor Security Agent is able
to discharge its functions.


 


(e)           The provisions of this Deed
will continue in effect for the benefit of any retiring Security Agent in
respect of any actions taken or omitted to be taken by it or any event
occurring before the termination of its agency.


 


(f)            The Security Agent’s
resignation shall not take effect until its successor has acceded to this Deed
by the execution and delivery of an Accession Deed and all necessary deeds and
documents have been entered into in order to substitute its successor as holder
of the Security Documents and each other party agrees to promptly enter into
any documents reasonably required for this purpose.


 


20.16      Role of the Security Agent


 


The Security Agent shall, save as otherwise
specifically provided in the Canadian Law Security Documents, hold the benefit
of the Security as agent and trustee for itself and for and on behalf of the
Beneficiaries, or to the extent required by applicable local law shall hold the
benefit of such Security Documents for itself and on behalf of the
Beneficiaries, in each case, to apply all payments and other benefits received
by it by reason thereof, or otherwise realised thereunder, in accordance with
this Deed.


 


20.17      Change of Office of Security Agent


 


The Security Agent may at any time and from
time to time in its sole discretion by written notice to the Coordinator and each of the
Beneficiaries designate a different office in the United Kingdom from which its
duties as Security Agent will thereafter be performed.


 


20.18      Abstract Acknowledgment of Indebtedness; Joint Creditorship


 


(a)           Notwithstanding any other
provision of this Deed, each Obligor (other than each Australian Obligor only
in relation to indebtedness or contingent liability secured under the
Australian Security Document) hereby irrevocably and unconditionally agrees and
covenants with the Security Agent by way of an abstract acknowledgement of
indebtedness that it owes to the Security Agent as creditor in its own right
and not as a representative of the other Senior Finance Parties, sums equal to,
and in the currency of, each amount payable by such Obligor to each such
Finance Party under each of the Senior Finance Documents as and when that
amount falls due for payment under the relevant Finance Document or would have
fallen due but for any discharge resulting from failure of another Finance
Party to take appropriate steps in insolvency 


 


54

















 


proceedings affecting any Obligor to preserve its entitlement to be paid
such amount.  The Security Agent shall be
the joint creditor (together with the relevant Senior Finance Party) (“Gesamtglaubiger”) of all obligations of
each Obligor (other than each Australian Obligor only in relation to
indebtedness or contingent liability secured under the Australian Security
Document) towards each such Senior Finance Party under the Senior Finance
Documents.


 


(b)           Each Obligor (other than each
Australian Obligor only in relation to indebtedness or contingent liability
secured under the Australian Security Document) undertakes to pay to the
Security Agent pursuant to such abstract acknowledgement of indebtedness upon
first written demand the amounts payable by such Obligor to each of the Senior
Finance Parties under each of the applicable Senior Finance Documents as such
amount has become due and payable.


 


(c)           The Security Agent has the
independent right to demand and receive full or partial payment of the amounts
payable by each Obligor (other than each Australian Obligor only in relation to
indebtedness or contingent liability secured under the Australian Security
Document) under this Clause 20.18 irrespective of any discharge of such
Obligor’s obligation to pay those amounts to the other Senior Finance Parties
resulting from failure of another Finance Party to take appropriate steps in
insolvency proceedings affecting any Obligor to preserve its entitlement to be
paid such amount.


 


(d)           Any amount due and payable by
an Obligor to the Security Agent under this Clause 20.18 shall be decreased to
the extent that the other Senior Finance Parties have received (and are able to
retain) payment in full of the corresponding amount under the other provisions
of the Senior Finance Documents and any amount due and payable by an Obligor to
such Senior Finance Parties under those provisions shall be decreased to the
extent that the Security Agent has received (and is able to retain) payment in
full of the corresponding amount under this Clause 20.18, provided that no
Obligor may consider its obligations towards any Senior Finance Parties to be
so discharged by virtue of any set-off, counterclaim or similar defence that it
may invoke vis-à-vis the Security
Agent.


 


(e)           The Security Agent may not assign,
transfer or dispose of its rights under this Clause 20.18 other than to a
successor Security Agent appointed in accordance with the terms of this Deed.


 


(f)            The rights of the Senior
Finance Parties (other than the Security Agent) to receive payment of amounts
payable by each Obligor under the Senior Finance Documents are several and are
separate and independent from, and without prejudice to, the rights of the
Security Agent to receive payment under this Clause 20.18.


 


55

















 


20.19      Parallel Debt


 


(a)           Parallel
Debt in respect of the Netherlands


 


Without
prejudice to the provisions of this Deed and the other Senior Finance
Documents, each of the Banks and the other parties hereto acknowledge and
consent to the security grantors that are party to each of the Dutch Law
Security Documents (the “Parallel Debt
Security Documents”) undertaking therein to pay to BNP Paribas (in
its own capacity and not as agent, representative or trustee) amounts which
are:


 


(i)            equal to and in the currency
of their principal obligations (as set out in the Parallel Debt Security
Documents) (the “Principal Obligations”);
and


 


(ii)           due and payable at
the same time as the corresponding amounts under their Principal Obligations,


 


(such payment undertaking and the obligations
and liabilities resulting therefrom, as more fully described in the Parallel
Debt Security Documents, the “Parallel Debt”)
and the security rights contemplated by the Parallel Debt Documents being
granted in favour of BNP
Paribas in its own capacity as security for its claims in connection with the
Secured Obligations (as defined in the Parallel Debt Security Documents).


 


The
Banks and the other parties hereto agree that:


 


(i)            the Parallel Debt is a claim
of BNP Paribas which is separate and independent from, and without prejudice
to, the claims of the Banks in respect of the Principal Obligations; and


 


(ii)           neither such claim nor the
security rights as contemplated by the Parallel Debt Security Documents are
held jointly with the Banks,


 


provided that:


 


(A)          to the extent any
amount is paid to and received by BNP Paribas in payment of the Parallel Debt,
the total amount due and payable in respect of the Principal Obligations shall
be decreased as if such amount were received by the Banks (or any of them) in
payment of the corresponding Principal Obligations; and


 


(B)          to the extent any
amount is paid to and received by Banks (or any of them) in payment of the
Principal Obligations, the total amount due and payable in respect of the
Parallel Debt shall be decreased as if such amount were received by BNP Paribas
in payment of the corresponding Parallel Debt.


 


BNP
Paribas, acting in its own capacity, hereby agrees to apply all proceeds that
it receives in connection with any enforcement action taken under or pursuant
to the Parallel Debt Security Documents or otherwise in satisfaction 


 


56

















 


in
whole or in part of the Parallel Debt, mutatis
mutandis in accordance with Clause 10.1 (Application) and the other provisions of this Deed as well
as those of the other Senior Finance Documents relating to application of such
amounts by the Security Agent.


 


The
parties to this Deed agree that BNP Paribas may assign, transfer or dispose of
its rights under this Clause 20.19(a) to a successor appointed in
accordance with the terms of this Deed, but not to any other person.


 


(b)           Parallel
Debt in respect of Belgium


 


(i)            Notwithstanding any other
provision of this Agreement, each Belgian Obligor hereby irrevocably and
unconditionally undertakes to pay to the Security Agent, in its own right and
not as representative of the other Banks, sums equal to and in the currency of
each amount payable by such Obligor to each of the Banks under each of the Finance
Documents as and when that amount falls due for payment under the relevant
Finance Document or would have fallen due but for any discharge resulting from
failure of another Finance Party to take appropriate steps, in insolvency
proceedings affecting that Borrower, to preserve its entitlement to be paid
that amount.


 


(ii)           The Security Agent shall have
its own independent right to demand payment of the amounts payable by each
Obligor under this Clause 20.19 (b), irrespective of any discharge of such Obligor’s
obligation to pay those amounts to the other Banks resulting from failure by
them to take appropriate steps, in insolvency proceedings affecting that
Obligor, to preserve their entitlement to be paid those amounts.


 


(iii)          Any amount due and payable by
an Obligor to the Security Agent under this Clause 20.19 (b) shall be decreased
to the extent that the other Finance Parties have received (and are able to
retain) payment in full of the corresponding amount under the other provisions
of the Finance Documents, and any amount due and payable by an Obligor to the
other Finance Parties under those provisions shall be decreased to the extent
that the Security Agent has received (and is able to retain) payment in full of
the corresponding amount under this Clause 20.19 (b).


 


(iv)          The rights of the Banks (other
than the Security Agent) to receive payment of amounts payable by each Belgian
Obligor under the Finance Documents are several and are separate and
independent from, and without prejudice to, the rights of the Security Agent to
receive payment under this Clause 20.19 (b).


 


(v)           The parties to this Deed agree
that the Security Agent may assign, transfer or dispose of its rights under
this Clause 20.19(b) to a successor appointed in accordance with the terms of
this Deed, but not to any other person.


 


57

















 


20.20      Delegation and Appointment of Supplemental Security Agents


 


(a)           The Security Agent may, at any
time, to the extent permitted by any applicable laws of any jurisdiction,
delegate by power of attorney or otherwise to any person or persons for any
period, all or any of its rights, powers and discretions vested in it by any of
the Finance Documents.  Such delegation
may be made upon any terms and conditions (including the power to sub-delegate)
and subject to any restrictions as the Security Agent may think fit in the
interests of the Beneficiaries and the Security Agent shall not be bound to
supervise, or in any way be responsible for any loss incurred by reason of any
misconduct or default on the part of any delegate or sub-delegate.


 


(b)           It is the purpose of this Deed
and the other Finance Documents that there shall be no violation of any law of
any jurisdiction denying or restricting the right of banking corporations or
associations to transact business as agent or trustee in such
jurisdiction.  It is recognised that in
case of litigation under this Deed or any of the other Finance Documents, and
in particular in the case of the enforcement of any of the Finance Documents,
or in the event that the Security Agent (acting reasonably) deems that by
reason of any present or future law of any jurisdiction it may not exercise any
of the rights, powers or remedies granted herein or in any of the other Finance
Documents or take any other action which may be necessary in connection
therewith, it may be necessary that the Security Agent appoint an additional
individual or institution as separate trustees, co-trustees, security agents,
security sub-agents or security co-agents (any such additional individuals or
institutions being referred to herein individually as a “Supplemental Security Agent” and
collectively as “Supplemental Security Agents”).


 


(c)           Each Obligor acknowledges and
agrees that in the event that the Security Agent appoints a Supplemental
Security Agent with respect to any part of the Security:


 


(i)            each and every right, power,
privilege or duty expressed or intended by this Deed or any of the other Senior
Finance Documents to be exercised by or vested in or conveyed to the Security
Agent with respect to such Security or any part thereof shall be exercisable by
and vest in such Supplemental Security Agent to the extent, and only to the
extent, necessary to enable such Supplemental Security Agent to exercise such
rights, powers and privileges with respect to such Security and to perform such
duties with respect to such Security, and every covenant and obligation
contained in this Deed or any of the other Senior Finance Documents and
necessary to the exercise or performance thereof by such Supplemental Security
Agent shall run to and be enforceable by either the Security Agent or such
Supplemental Security Agent as if such provisions were set out in full herein, mutatis mutandis; and


 


(ii)           the provisions of
this Deed and of the other Finance Documents (including, without limitation,
clauses 29 (Indemnities) and 34 (The Facility Agents, The Security Agent, The Global
Coordinator and the Finance Parties) of the A/C Facilities Agreement
and the equivalent 


 


58

















 


provisions in each of the B Facility Agreements, that refer to the
Security Agent shall inure to the benefit of such Supplemental Security Agent
as if such Supplemental Security Agent had originally been party thereto and as
if such provisions were set out in full herein, mutatis mutandis, and all references therein to the Security
Agent shall be deemed to be references to the Security Agent and/or such
Supplemental Security Agent, as the context may require, notwithstanding in
each case, any other provision of any other Finance Document or the fact that
such Supplemental Security Agent is not party to such Finance Document.


 


(d)           Should any instrument in
writing from any Obligor be required by any Supplemental Security Agent so
appointed by the Security Agent for more fully and certainly vesting in and
confirming to him or it such rights, powers, privileges and duties, such
Obligor shall execute, acknowledge and deliver any and all such instruments
promptly upon request by the Security Agent. 
In the event that any Supplemental Security Agent, or a successor
thereto, shall die, become incapable of acting, resign or be removed, all the
rights, powers, privileges and duties of such Supplemental Security Agent, to
the extent permitted by law, shall vest in and be exercised by the Security
Agent until the appointment of a new Supplemental Security Agent.


 


(e)           The appointment of each
Supplemental Security Agent will only be effective upon the Security Agent and
the relevant Supplemental Security Agent executing a duly completed Accession
Deed pursuant to which the Supplemental Security Agent agrees to be bound by
all the terms of this Deed as if it had originally been party to this Deed as a
Senior Finance Party.


 


20.21      Notification to Security Agent


 


The
Coordinator shall provide to the Security Agent a copy of any
notice required to be delivered to a Facility Agent under clause 21.5 (Notification of Defaults) of the A/C
Facilities Agreement and the equivalent provisions in each of the B Facility
Agreements in accordance with such clauses.


 


20.22      Guarantee Limitations


 


If
and to the extent that an abstract acknowledgment, a parallel debt, a covenant
to pay or any similar debt obligation provided for in this Deed (including without
limitation pursuant to Clause 20.1 (c) (Covenant
to Pay), Clause 20.18 (Abstract
Acknowledgment of Indebtedness; Joint Creditorship) and
Clause 20.19 (Parallel Debt), secures loans made to any Borrower
incorporated in the Federal Republic of Germany, such abstract acknowledgment,
parallel debt, covenant to pay or similar debt obligation shall not be
enforceable against assets which qualify as interest bearing claims and
instruments qualifying as long term for tax purposes (as set out in the
guidelines of the German Federal Ministry of Finance (Bundesfinanzministerium) dated 15 July
2004, No. 19, 20 and 37 and dated 22 July 2004) or against assets which
comprise real property in Germany.


 


59

















 


21.          FEES AND EXPENSES


 


21.1        Expenses


 


(a)           The Parent will within 30
Business Days of demand pay and reimburse to the Security Agent (or cause to be
paid or reimbursed), all reasonable costs and expenses (including reasonable
legal fees of a single legal counsel in each relevant jurisdiction), as well as
accounting and valuation fees and other out of pocket expenses and any value
added tax (unless and to the extent such VAT is recoverable as input VAT) or
other similar tax thereon, properly incurred by the Security Agent in
connection with any variation, amendment, restatement, waiver, consent or
suspension of rights (or any proposal for any of the same) relating to this
Deed or the Security Documents which is requested by or on behalf of an Obligor
or which becomes necessary as a result of circumstances affecting any Obligor
that would be reasonably likely to materially prejudice the Finance Parties’
rights under this Deed.


 


(b)           The Parent will on demand pay
and reimburse to the Security Agent, all costs and expenses (including legal
fees of a single legal counsel in each relevant jurisdiction and other out of
pocket expenses and any value added tax (unless and to the extent such VAT is
recoverable as VAT) or other similar tax thereon) properly incurred by the
Security Agent in connection with the preservation, enforcement or the
attempted preservation or enforcement of any of the Security Agent’s rights
under this Deed or the Security Documents.


 


21.2        Deductions by Security Agent


 


The Security Agent shall be entitled to make
the deductions and withholdings (on account of taxes or otherwise) from
payments hereunder which it is required by any applicable law to make, and to
pay all taxes which may be assessed against it in respect of any
of Security, in respect of anything done by it in its capacity as trustee
or otherwise by virtue of its capacity as trustee.


 


21.3        Demands


 


If any Obligor fails to pay any sum payable by
it under this Deed on its due date, such Obligor will pay default interest on
such unpaid sum in accordance with clause 28.2 (Default Interest) of the A/C Facilities Agreement.


 


22.          INDEMNITIES


 


22.1        Parent’s Indemnity


 


The Parent shall (within 10 Business Days of a
demand) indemnify (or cause to be indemnified) the Security Agent and every
delegate against any cost, loss or liability (together with any applicable VAT
(unless and to the extent such VAT is recoverable as input VAT) (other than any
such cost, loss or liability which is required to be reimbursed or indemnified
by an Obligor pursuant to any other Finance Document (or would have been
required to be reimbursed or indemnified but for an exception to the
reimbursement obligation included in any other Finance Document)), properly
incurred by any of them as a result of:


 


60

















 


(a)           any failure by any Obligor to
comply with its obligations under Clause 21 (Fees
and Expenses);


 


(b)           the taking, holding,
protection or enforcement of the Security or any part thereof; or


 


(c)           the proper exercise of any of
the rights, powers, and discretions vested in any of them by the Finance
Documents or by law; and


 


(d)           any default by any Obligor,
Equity Finance Provider, Intra-Group Creditor or Intra-Group Debtor in the
performance of any of the obligations expressed to be assumed by it in the
Finance Documents.


 


22.2        Priority of Indemnity


 


The Security Agent may, in priority to any
payment to the Beneficiaries, and if not paid or caused to be paid by the
Parent to the extent required by Clause 22.1 (Parent’s
Indemnity) indemnify itself out of the Security in respect of, and
pay and retain, all sums necessary to give effect to the indemnity in Clause
22.1 (Parent’s Indemnity) from
the Parent and shall have a lien on the Security and the proceeds of the
enforcement of the Security for all moneys payable to it under this Clause
22.2.


 


22.3        Finance Parties’ Indemnity


 


If the Parent fails to perform any of its
obligations under this Clause 22 (Indemnities),
each Senior Finance Party shall (in the proportion that the Indebtedness due to
it bears to the aggregate of the Indebtedness due to all the Senior Finance
Parties for the time being (or, if the Indebtedness of each of those parties is
zero, immediately prior to it being reduced to zero)), indemnify the Security
Agent within three Business Days of demand against any cost, loss or liability
incurred by the Security Agent as a result of that failure to perform and the
Parent shall indemnify each of the Senior Finance Parties against any payment
made by it under this Clause 22 (Indemnities).


 


23.          NOTICE


 


23.1        Mode of Service


 


Any notice or other communication to be served
under or in connection with this Deed shall, unless otherwise stated, be made
in writing and served by letter or facsimile to:


 


(a)           in the case of any Obligor,
the Coordinator (on behalf of itself and/or such Obligor and/or each other
member of the Group) at its address or facsimile number shown immediately after
its name on the signature page of the relevant Facilities Agreement, or such
other address or number notified by it to the relevant Facility Agent and the
Security Agent;


 


(b)           in the case of a Facility
Agent, at its address or facsimile number shown immediately after its name on
the signature page of the relevant Facilities Agreement or such other address
or number notified by it to the Coordinator and the Security Agent;


 


61

















 


(c)           in the case of the Security
Agent, the Security Agent at its address or facsimile number shown immediately
after its name on the signature page of the A/C Facilities Agreement or such
other address or number notified by it to the Coordinator and each of the
Facility Agents;


 


(d)           in the case of any Bank, to
the relevant Facility Agent (on behalf of such Bank, as the case may be) at its
address or facsimile number shown immediately after its name on the signature
page of the relevant Facilities Agreement or such other address or number
notified by it through such Facility Agent, to the Parent and the Security
Agent; and


 


(e)           in the case of any person
becoming party to this Deed after the date hereof, the address or facsimile
number referred to in the Accession Deed pursuant to which such person became
party to this Deed or such other address or number notified by it to (as
applicable) the Coordinator, each of the Facility Agents and the Security
Agent,


 


and, in the case of any Finance Party, marked for the attention of the
person or department there specified.


 


23.2        Delivery


 


(a)           Any communication or document
made or delivered by one person to another under or in connection with the
Finance Documents will only be effectively made or delivered:


 


(i)            if sent by fax, when first
received in legible form; or


 


(ii)           if sent by post, 5
Business Days after being deposited in the post, postage prepaid, in a correctly
addressed envelope; or


 


(iii)          if sent by
electronic communication, when first received,


 


and if a particular department or officer is
specified as part of its address details provided under Clause 23.1 (Mode of Service), if addressed to that
department or officer.


 


(b)           Any communication or document
given under sub-paragraph (i) of paragraph (a) of this Clause 23.2 which is
received after 5 p.m. in the place of receipt or on a day which is not a
Business Day shall be deemed to have been received at 9 a.m. on the following
Business Day.


 


(c)           Any communication or document
to be made or delivered to an Agent under or in connection with any Finance
Document will only be effectively made or delivered when actually received by
the relevant Agent and then only if it is expressly marked for the attention of
the department or officer identified with the Agent’s signature below (or any
substitute department or officer as the Agent shall specify for this purpose).


 


(d)           Any communication or document
made or delivered to the Coordinator in accordance with this Clause 23 (Notice) will be deemed to have been made
or delivered to each of the Obligors.


 


62

















 


(e)           An Agent may assume that any
communication made or document delivered by the Parent or the Coordinator on
behalf of any Obligor is made or delivered with the consent of such Obligor.


 


23.3        Notification of Contact Details


 


Following
receipt of notification of any contact details or change of contact details
pursuant to Clause 23.1 (Mode of Service),
or if it changes its contact details, the relevant Agent shall promptly notify
the other parties to this Deed.


 


23.4        Electronic Communication


 


(a)           Any communication to be made
between any parties to this Deed under or in connection with any of the Finance
Documents may be made by e-mail or other electronic means and each of the
parties to this Deed hereby agrees that:


 


(i)            unless and until notified to
the contrary, this is to be an accepted form of communication;


 


(ii)           it will notify each
of the Facility Agents in writing of its e-mail address and/or any other
information required to enable the sending and receipt of information by such
means; and


 


(iii)          it will notify each
of the Facility Agents of any change to its e-mail address or any other such
information supplied by it.


 


(b)           Any electronic communication
made between any parties to this Deed will be effective only when actually
received in readable form and in the case of any electronic communication made
by a Finance Party to a Facility Agent, only if it is addressed in such a
manner as that Facility Agent shall specify for this purpose.


 


23.5        English Language


 


(a)           Any notice given under or in
connection with any Finance Document must be in English.


 


(b)           All other documents provided
under or in connection with any Finance Document must be:


 


(i)            in English; or


 


(ii)           if not in English,
and if so required by an Agent under the relevant Finance Document, accompanied
by a certified English translation and, in this case, the English translation
will prevail unless the document is a constitutional, statutory or other
official document.


 


63

















 


24.          NO IMPLIED WAIVERS AND AMENDMENTS


 


24.1        No Waiver


 


No failure or delay by any of the Finance
Parties in exercising any right, power or privilege under this Deed shall
operate as a waiver thereof nor shall any single or partial exercise of any
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.


 


24.2        Cumulative Rights


 


The rights and remedies of the Finance Parties
provided in this Deed are cumulative and not exclusive of any rights or
remedies provided by law.


 


24.3        Waiver in writing


 


A waiver given or consent granted by the
Finance Parties under this Deed will be effective only if given in writing and
then only in the instance and for the purpose for which it is given.


 


25.          INVALIDITY OF ANY PROVISION


 


If any provision of this Deed is or becomes
invalid, illegal or unenforceable in any respect under any law, the validity,
legality and enforceability of the remaining provisions will not be affected or
impaired in any way.


 


26.          CHANGE TO PARTIES


 


26.1        Assignment and Transfers by the Obligors


 


No
Obligor may assign or transfer all or any part of its rights, benefits or
obligations under this Deed.


 


26.2        Accession of Assignee Banks


 


(a)           To the extent that any Bank
(in each case, an “Assignor Bank”)
assigns any of its rights under and in accordance with the A/C Facilities
Agreement or the relevant B Facility Agreement to any person (an “Assignee Bank”), such Assignor Bank shall
procure that promptly and in any event within 2 Business Days following the
date of such assignment, such Assignee Bank shall accede to this Deed by executing
a duly completed Accession Deed pursuant to which that Assignee Bank agrees to
be bound by all the terms of this Deed as if it had originally been party to
this Deed as a Senior Finance Party and, if applicable, to be bound by any
provisions relating to it in its capacity as a Hedging Bank.  For the avoidance of doubt, any right which
pursuant to this Deed is purported to be conferred on an Assignee Bank shall
not be exercisable by such Assignee Bank to the extent that it has not acceded
to this Deed in accordance with this paragraph (a).


 


(b)           Each of the parties to this
Deed (other than the relevant Assignee Bank) hereby irrevocably authorises the
Security Agent to execute on its behalf any 


 


64

















 


Accession Deed which has been duly completed and created on behalf of
that Assignee Bank.


 


(c)           The Security Agent will
promptly notify the relevant Facility Agent of the receipt and execution by it
on their behalf of any Accession Deed entered into pursuant to this Clause
26.2.


 


26.3        Accession of New Junior Creditors


 


(a)           Subject to Clause 6.4 (e) (Release of Security), if a member of the
Group:


 


(i)            makes any loan or grants any
credit or makes any financial arrangement having a similar effect to or in
favour of an Obligor; or


 


(ii)           has made any loan or granted
any credit or made any financial arrangement having a similar effect to or in
favour of a person subsequently becoming an Obligor,


 


(for the purposes of this Clause 26.3 (a), each
an “intra-group loan” and collectively,
“intra-group loans”) where:


 


(A)          in the case of paragraph (i),
such intra-group loan causes the net outstanding amount owed by such Obligor
pursuant to its total amount of intra-group loans to exceed; or


 


(B)          in the case of paragraph (ii),
as at the date on which such person becomes an Obligor, the net outstanding
amount owed by such Obligor pursuant to its intra-group loans exceeds,


 


EUR10,000,000 (or its equivalent in other
currencies) in aggregate, the
Parent will procure that the person providing such intra-group loan(s) (to the
extent not already party to this Deed in the capacity of Intra-Group Creditor)
becomes a party to this Deed as an Intra-Group Creditor by executing a duly
completed Accession Deed and delivering the same to the Security Agent as soon
as reasonably practicable following the later of 90 days from the date of this
Deed and (x) in the case of paragraph (i), the making of such intra-group loan
or (y) in the case of paragraph (ii), the date on which such Obligor becomes a party
to this Deed.  For the avoidance of
doubt, following accession of any Intra-Group Creditor pursuant to this Clause,
all intra-group loans owed to such Intra-Group Creditor from time to time shall
constitute “Intra-Group Indebtedness”
for the purposes of this Deed.


 


(b)           If Holdco or any intermediate
holding company of the Parent provides a Shareholder Subordinated Loan:


 


(i)            such Shareholder Subordinated
Loan causes the net outstanding amount owed to such creditor by such Obligor
pursuant to Shareholder Subordinated Loans to exceed; or


 


(ii)           as at the date on which such
person becomes an Obligor, the net outstanding amount owed to such creditor by
such Obligor pursuant to its Shareholder Subordinated Loans exceeds,


 


65

















 


EUR10,000,000
(or its equivalent in other currencies), in aggregate the Parent will procure
that the person providing such Shareholder Subordinated Loans (to the extent
not already party to this Deed) becomes a party to this Deed as an Equity Finance
Provider by executing a duly completed Accession Deed and delivering the same
to the Security Agent as soon as reasonably practicable following the later of
90 days from the date of this Deed and (x) in the case of paragraph (i), the
making of such Shareholder Subordinated Loan or (y) in the case of paragraph
(ii), the date on which such Obligor becomes a party to this Deed.  For the avoidance of doubt, following
accession of any Equity Finance Provider pursuant to this Clause, all
Shareholder Subordinated Loan owed by such Equity Finance Provider from time to
time shall constitute “Equity Financing
Indebtedness” for the purposes of this Deed.


 


26.4        Accession of New Facility Agent


 


Notwithstanding the terms of any of the other
Finance Documents, a resignation of an existing Facility Agent shall not take effect
until the replacement Facility
Agent has executed a duly completed Accession Deed and delivered the same to
the Security Agent.


 


26.5        Accession of New Coordinator


 


Notwithstanding the terms of any of the other
Finance Documents, a change of an existing Coordinator pursuant to clause 39.7 (Change of Coordinator) of the A/C
Facilities Agreement or the equivalent provisions in the B Facility Agreements shall not
take effect until the replacement Coordinator
has executed a duly completed Guarantor Accession Memorandum and
delivered the same to the A/C Facility Agent in accordance with the terms of
such clause (or after the A/C Discharge Date, such accession memorandum duly
completed and delivered to the Security Agent as reasonably agreed by it).  Any replacement Coordinator, from time to
time, under this Deed shall act as Coordinator in respect of all of the
Facilities.


 


26.6        Benefit of Deed


 


This Deed will be binding upon, and enure for
the benefit of, each party to it and its or any subsequent successors or
assigns.


 


27.          CERTIFICATES CONCLUSIVE


 


A certificate, determination, notification or
opinion of the Security Agent or any Finance Party as to any amount payable
under this Deed or the Finance Documents will be prima facie evidence of the matters to which it relates
except in the case of manifest error.


 


28.          GOVERNING LAW AND SUBMISSION TO JURISDICTION


 


28.1        Governing Law


 


This Deed (and any dispute, controversy,
proceedings or claim of whatever nature arising out of or relating to, or any
breach of, this Deed) shall be governed by and shall be construed in all
respects in accordance with English law.


 


66

















 


28.2        Submission to Jurisdiction


 


Each party to this Deed irrevocably submits to
the jurisdiction of the courts in England for the purpose of hearing and
determining any dispute arising out of this Deed and for the purpose of
enforcement of any judgment against its assets.


 


28.3        Freedom of Choice


 


The submission to the jurisdiction of the
courts referred to in Clause 28.2 (Submission
to Jurisdiction) shall not (and shall not be construed so as to)
limit the right of the Security Agent or any other Finance Party to take
proceedings against any Obligor in the courts of any country in which such
Obligor has assets or in any other court of competent jurisdiction nor shall
the taking of proceedings in any one or more jurisdictions preclude the taking
of proceedings in any other jurisdiction (whether concurrently or not) if and
to the extent permitted by applicable law.


 


28.4        Service of Process


 


Without prejudice to any other mode or service
each Obligor, each Equity Finance Provider and each Intra-Group Creditor which
is not a company incorporated in England and Wales (together, in this Clause
28.4, the “Non English Obligors”)
irrevocably and unconditionally appoints and agrees to maintain Hertz Europe
Limited at Hertz House, 11 Vine Street, Uxbridge, Middlesex UB8 1QE for the
attention of Vice President, Legal and Corporate Affairs (or such other
registered address as it may have, from time to time, as its agent for service
of process relating to any proceedings before the English Courts in connection
with this Deed or any judgment in connection therewith, and each Non English
Obligor agrees that failure by a process agent to notify the relevant Non
English Obligors of the process will not invalidate the proceedings concerned
and consents to the service of process relating to any such proceedings by
prepaid posting of a copy of the process to its address for the time being
applying for the purposes of Clause 23 (Notice).


 


28.5        Each party to this Deed:


 


(a)           waives objection to English
courts on grounds of inconvenient forum or otherwise as regards proceedings in
connection with this Deed;


 


(b)           agrees that a judgment or
order of an English court in connection with this Deed is (subject to rights of
appeal before the English courts) conclusive and binding on it and may be
enforced against it in the courts of any other jurisdiction; and


 


(c)           hereby to the fullest extent
permitted by law waives any right it may have in any jurisdiction to have any
proceedings take the form of a trial by jury.


 


29.          COUNTERPARTS


 


This Deed may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.


 


67

















 


30.          THIRD PARTY RIGHTS


 


(a)           Unless expressly provided to
the contrary in this Deed (including, without limitation, as provided under
Clause 20.9 (Exoneration of the Security
Agent), Clause 20.10 (No
Proceedings), Clause 20.12 (Communications
and Information) and Clause 20.14 (Indemnity
to Security Agent)), a person who is not a party to this Deed has no
rights under the Contracts (Rights of Third Parties) Act 1999 to enforce or
enjoy the benefit of any terms of this Deed.


 


(b)           Notwithstanding any other term
of this Deed, the parties to this Deed may without the consent of any third
party vary or rescind this Deed.


 


IN WITNESS where of
this Deed has been duly executed and delivered as a deed by each of the parties
hereto on the date first written above.


 


68

















 


SCHEDULE 1


 


PART 1:
DETAILS OF ORIGINAL OBLIGORS


 


THE ORIGINAL BORROWERS


 


HA Funding Pty Limited (ACN
117 549 498)


 


Car Rental Systems Do Brasil Locação De Veículos Ltda


 


Hertz Belgium N.V.


 


Hertz Canada Limited


 


Hertz France SAS


 


Equipole Finance Services
SAS


 


Hertz Equipement France SAS


 


Hertz Autovermietung GmbH


 


Hertz Italiana S.p.A.


 


Hertz New Zealand Limited


 


Hertz AG


 


BNS Automobile Funding B.V.


 


Hertz (U.K.) Limited


 


THE ORIGINAL GUARANTORS


 


Hertz International, Ltd.


 


The Hertz Corporation


 


Hertz Australia Pty. Limited
(ABN 31 004 407 087)


 


Hertz Belgium N.V.


 


Hertz France SAS


 


Hertz Equipement France SAS


 


Equipole Finance Services
SAS


 


Hertz Autovermietung GmbH


 


Hertz Italiana S.p.A.


 


69

















 


Hertz New Zealand Holdings
Limited


 


Hertz de Espana S.A.


 


Hertz Alquiler de Maquinaria
S.L.


 


Hertz AG


 


BNS Automobile Funding B.V.


 


Stuurgroep Holland B.V.


 


Hertz (U.K.) Limited


 


PART 2: THE
ORIGINAL A1 BANKS


 


BNP Paribas


 


CALYON


 


Indosuez Finance (UK)
Limited


 


The Royal Bank of Scotland
plc


 


PART 3: THE
ORIGINAL A2 BANKS


 


BNP Paribas


 


CALYON


 


Indosuez Finance (UK)
Limited


 


The Royal Bank of Scotland
plc


 


PART 4: THE ORIGINAL BRAZILIAN BANKS


 


Banco BNP Paribas Brasil
S.A.


 


Banco Calyon Brasil S.A.


 


PART 5: THE
ORIGINAL NZ BANKS


 


BNP Paribas


 


CALYON


 


The Royal Bank of Scotland
plc, Australia branch


 


PART 6: THE ORIGINAL C BANKS


 


BNP Paribas


 


CALYON


 


70

















 


The Royal Bank of Scotland
plc


 


PART 7: THE ORIGINAL INTRA-GROUP
CREDITORS


 


None


 


PART 8: THE ORIGINAL INTRA-GROUP
DEBTORS


 


None


 


PART 9: THE
ORIGINAL EQUITY FINANCE PROVIDERS


 


The Hertz Corporation


 


71

















 


SCHEDULE 2


 


ACCESSION
DEED


THIS DEED is made
on [   ]


 


BETWEEN:


 


(1)           [                            ]
(the “New [Supplemental
Security Agent/Facility Agent/ Intra-Group Creditor/Equity Finance Provider/
Brazilian Bank/NZ Bank]”); and


 


(2)           [   ] in its capacity as
Security Agent under the Intercreditor Deed.*


 






*              In the
case of an accession by a replacement Security Agent, address the certificate
to the Facility Agent


 


RECITAL:


 


(A)          This Deed is
supplemental to an Intercreditor Deed dated [ ] 2005 (the “Intercreditor Deed”) between, amongst
others, the Parent, the Original Obligors (as defined therein) and the Security
Agent.


 


(B)          This Deed has been
entered into to record the accession of the new [[Supplemental] Security Agent/Facility Agent/Brazilian Bank/NZ
Bank/Intra-Group Creditor/Equity Finance Provider] as [a Senior Finance Party] [an  Equity
Finance Provider/Intra-Group
Creditor/Brazilian Finance Party/NZ Finance Party] (the “New [•]”) under the Intercreditor Deed
pursuant to the provisions of [   ]
thereof.


 


NOW THIS DEED WITNESSES as follows:


 


(1)           Definitions


 


Terms defined or construed in the Intercreditor
Deed shall have the same meanings and constructions when used in this Deed.


 


(2)           Accession of New [[Supplemental]
Security Agent/Facility Agent/ Intra-Group Creditor/Equity Finance
Provider/Brazilian Bank/NZ Bank]


 


2.1          The New [[Supplemental] Security Agent/Facility Agent/Intra-Group
Creditor/Equity Finance Provider]
hereby agrees to become, with immediate affect, [[a Senior Finance Party] [an  Intra-Group
Creditor] [a Brazilian Finance
Party] [a NZ Finance Party]
and agrees to be bound by all of the terms of the Intercreditor Deed as if it
had originally been party thereto as [a
Senior Finance Party][an
Intra-Group Creditor/Equity Finance Provider/Brazilian Bank/NZ
Bank] thereunder.


 


2.2          The New [[Supplemental] Security Agent/Facility
Agent/Intra-Group Creditor/Equity
Finance Provider/Brazilian Bank/NZ Bank] confirms that its address
details for notices in relation to Clause 23 (Notice)
of the Intercreditor Deed are as follows:


 


72

















 


	
   

  	
  Address:

  	
   

  	
  [      ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Facsimile:

  	
   

  	
  [      ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
  [      ]

  



 


2.3          By its signature
below, the Security Agent (for itself and on behalf of the Obligors, the other
Finance Parties, the Intra-Group Creditors [(other
than the New Intra-Group Creditor)]) and the Equity Finance
Providers [(other than the New Equity
Finance Provider)]confirms the acceptance of the New [[Supplemental] Security Agent/Facility
Agent/Intra-Group Creditor/Equity Finance Provider/Brazilian Bank/NZ Bank]
as [a Senior Finance Party][an  Equity
Finance Provider/Intra-Group Creditor/Brazilian Finance Party/NZ Finance Party]
for all purposes under the Intercreditor Deed in accordance with Clause [   ] thereof.


 


2.4          [By its signature below [BNP Paribas] assigns and transfers all of its
rights under Clause 20.19 (Parallel Debt)
to [name of New Supplemental Security Agent].]*


 






*              Only if new Security
Agent is being appointed


 


(3)           Law


 


This Deed shall be governed by and construed in
all respects in accordance with English law.


 


(4)           Counterparts


 


The Deed may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.


 


(5)           Third Party Rights


 


A person who is not a party to this Deed has no
rights under the Contracts (Rights of Third Parties) Act 1999 to enforce or
enjoy the benefit of any terms of this Deed.


 


IN WITNESS whereof
this Deed has been duly executed the day and year first before written.


 


73

















 


SIGNATORIES
TO THE ACCESSION DEED


 


THE NEW
[SUPPLEMENTAL SECURITY AGENT/FACILITY AGENT/INTRA-GROUP CREDITOR/EQUITY FINANCE
PROVIDER/BRAZILIAN BANK/NZ BANK]


 


	
  EXECUTED as a
  Deed by

  	
  )

  
	
   

  	
  )

  
	
  acting by

  	
  )

  
	
  and

  	
  )

  



 


[Director


 


Director/Secretary]


 


 


THE
SECURITY AGENT**


 






**           [In
the case of an accession by a replacement Security Agent, to be executed by
such Security Agent and by the Facility Agent.]


 


	
  IN WITNESS WHEREOF I have

  	
  )

  
	
  hereunto subscribed my signature

  	
  )

  
	
  and affixed the seal of

  	
  )

  
	
   

  	
  )

  
	
  on the date first mentioned above

  	
  )

  



 


Authorised Signatory


 


74

















 


SIGNATORIES
TO THE INTERCREDITOR DEED


 


PARENT


 


	
  EXECUTED as a
  Deed by HERTZ INTERNATIONAL, LTD.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting
  by

  	
  /s/
  MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/
  NUNS MOODLIAR

  	
   

  	
   

  



 


THE
COORDINATOR


 


	
  EXECUTED as a
  Deed by HERTZ EUROPE LIMITED

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting
  by

  	
  /s/
  MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/
  NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
BORROWERS


 


AUSTRALIA


 


	
  SIGNED, SEALED AND DELIVERED as a
  Deed

  	
  )

  	
   

  
	
  for HA
  FUNDING PTY LIMITED

  	
  )

  	
   

  
	
  /s/
  MICHEL TARIDE

  	
  /s/ NUNS MOODLIAR

  	
  )

  	
   

  
	
  by its attorney/s

  	
   

  	
  )

  	
   

  
	
  under power of attorney dated

  	
  December 2005

  	
   

  	
   

  



 














 


THE
BORROWERS


 


BRAZIL


 


	
  EXECUTED as a
  Deed by CAR
  RENTAL SYSTEMS DO BRASIL

  	
  )

  	
   

  
	
  LOCAÇÃO DE VEÍCULOS LTDA

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
BORROWERS


 


BELGIUM


 


	
  EXECUTED as a
  Deed by HERTZ BELGIUM N.V.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
BORROWERS


 


CANADA


 


	
  EXECUTED as a
  Deed by HERTZ CANADA LIMITED

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
BORROWERS


 


FRANCE


 


	
  EXECUTED as a
  Deed by HERTZ FRANCE SAS

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ ERIC POKROVSKY

  	
  )

  	
   

  
	
  and

  	
  /s/ ALAIN GIRARD

  	
   

  	
   

  



 


 


	
  EXECUTED as a
  Deed by EQUIPOLE FINANCE SERVICES SAS

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ ERIC POKROVSKY

  	
  )

  	
   

  
	
  and

  	
  /s/ ALAIN GIRARD

  	
   

  	
   

  



 


 


	
  EXECUTED as a
  Deed by HERTZ EQUIPEMENT FRANCE SAS

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ JACQUES MIGNON

  	
  )

  	
   

  
	
  and

  	
  /s/ CHARLES MORELLO

  	
   

  	
   

  



 

















 


THE
BORROWERS


 


GERMANY


 


	
  EXECUTED as a
  Deed by HERTZ AUTOVERMIETUNG GmbH

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
BORROWERS


 


ITALY


 


	
  EXECUTED as a
  Deed by HERTZ ITALIANA S.p.A.

  	
  )

  
	
  /s/ RICCARDO SALLUTIO

  	
  )

  
	
  acting by

  	
  )

  
	
  and

  



 

















 


THE
BORROWERS


 


NEW ZEALAND


 


EXECUTED as a Deed
by HERTZ NEW ZEALAND LIMITED


by its lawfully appointed attorney:


 


	
  Michel Taride

  	
   

  	
  /s/ MICHEL TARIDE

  	
   

  
	
   

  	
   

  
	
  Name of Attorney

  	
  Signature of Attorney

  
	
   

  	
   

  
	
  In the presence of:

  	
   

  
	
   

  	
   

  
	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  
	
  Signature of Witness

  	
   

  
	
   

  	
   

  
	
  Nuns Moodliar

  	
   

  	
   

  
	
  Name of Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Occupation

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  City/town of residence

  	
   

  



 

















 


THE
BORROWERS


 


SWITZERLAND


 


	
  EXECUTED as a
  Deed by HERTZ AG

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
BORROWERS


 


THE
NETHERLANDS


 


	
  EXECUTED as a
  Deed by BNS AUTOMOBILE FUNDING B.V.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
BORROWERS


 


UNITED
KINGDOM


 


	
  EXECUTED as a
  Deed by HERTZ (U.K.) LIMITED

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 


 

















 


THE
GUARANTORS


 


PARENT


 


	
  EXECUTED as a
  Deed by HERTZ INTERNATIONAL, LTD.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 


 


TARGET


 


	
  EXECUTED as a
  Deed by THE HERTZ CORPORATION

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
GUARANTORS


 


AUSTRALIA


 


	
  SIGNED,
  SEALED AND DELIVERED as a Deed

  	
  )

  	
   

  
	
  for HERTZ AUSTRALIA PTY. LIMITED

  	
  )

  	
   

  
	
  /s/ MICHEL TARIDE

  	
  /s/ NUNS MOODLIAR

  	
  )

  	
   

  
	
  by its attorney/s

  	
  )

  	
   

  
	
  under power of attorney
  dated

  	
  December 2005

  	
   

  	
   

  
					



 

















 


THE
GUARANTORS


 


BELGIUM


 


	
  EXECUTED as a
  Deed by HERTZ BELGIUM N.V.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
GUARANTORS


 


FRANCE


 


	
  EXECUTED as a
  Deed by HERTZ FRANCE SAS

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ ERIC POKROVSKY

  	
  )

  	
   

  
	
  and

  	
  /s/ ALAIN GIRARD

  	
   

  	
   

  



 


 


	
  EXECUTED as a
  Deed by HERTZ EQUIPEMENT FRANCE SAS

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ ERIC POKROVSKY

  	
  )

  	
   

  
	
  and

  	
  /s/ ALAIN GIRARD

  	
   

  	
   

  



 


 


	
  EXECUTED as a
  Deed by EQUIPOLE FINANCE SERVICES SAS

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ JACQUES MIGNON

  	
  )

  	
   

  
	
  and

  	
  /s/ CHARLES MORELLO

  	
   

  	
   

  



 

















 


THE
GUARANTORS


 


GERMANY


 


	
  EXECUTED as a
  Deed by HERTZ AUTOVERMIETUNG GmbH

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
GUARANTORS


 


ITALY


 


	
  EXECUTED as a
  Deed by HERTZ ITALIANA S.p.A.

  	
  )

  	
   

  
	
  /s/ RICCARDO SALLUTIO

  	
  )

  	
   

  
	
  acting by

  	
  )

  	
   

  
	
  pursuant to power of
  attorney dated

  	
  December 2005

  	
   

  	
   

  
				



 

















 


THE
GUARANTORS


 


NEW ZEALAND


 


EXECUTED as a Deed
by HERTZ NEW ZEALAND HOLDINGS LIMITED

by its lawfully appointed attorney:


 


	
  Michel Taride

  	
   

  	
  /s/ MICHEL TARIDE

  	
   

  
	
   

  	
   

  
	
  Name of Attorney

  	
  Signature of Attorney

  
	
   

  	
   

  
	
  In the presence of:

  	
   

  
	
   

  	
   

  
	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  
	
  Signature of Witness

  	
   

  
	
   

  	
   

  
	
  Nuns Moodliar

  	
   

  	
   

  
	
  Name of Witness

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Occupation

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  City/town of residence

  	
   

  



 

















 


THE
GUARANTORS


 


SPAIN


 


	
  EXECUTED as a
  Deed by HERTZ DE ESPAÑA S.A.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 


 


	
  EXECUTED as a
  Deed by HERTZ ALQUILER DE MAQUINARIA S.L.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
GUARANTORS


 


SWITZERLAND


 


	
  EXECUTED as a
  Deed by HERTZ AG

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
GUARANTORS


 


THE
NETHERLANDS


 


	
  EXECUTED as a
  Deed by BNS AUTOMOBILE FUNDING B.V.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 


 


	
  EXECUTED as a
  Deed by STUURGROEP HOLLAND B.V.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
GUARANTORS


 


UNITED
KINGDOM


 


	
  EXECUTED as a
  Deed by HERTZ (U.K.) LIMITED

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


	
  THE A/C
  FACILITY AGENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by BNP PARIBAS

  	
  )

  	
   

  
	
   

  	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ IYADH LAALAI

  	
  )

  	
   

  
	
  and

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE
  BRAZILIAN FACILITY AGENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by BANCO BNP PARIBAS BRASIL S.A.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ DEBORAH STERN VIEITAS

  	
  )

  	
   

  
	
  and

  	
  /s/ HITOSI HASSEGAWA

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE NZ
  FACILITY AGENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by BNP PARIBAS

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ IYADH LAALAI

  	
  )

  	
   

  
	
  and

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE
  SECURITY AGENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by BNP PARIBAS

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ IYADH LAALAI

  	
  )

  	
   

  
	
  and

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE
  AUSTRALIAN SECURITY TRUSTEE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED,
  SEALED AND DELIVERED

  	
  )

  	
   

  
	
  as a Deed by BNP PARIBAS

  	
  )

  	
   

  
	
  acting by

  	
  /s/ CAROLINE BECAVIN

  	
  )

  	
   

  
	
  and

  	
  )

  	
   

  
						



 

















 


THE
ORIGINAL A1 BANKS


 


	
  EXECUTED as a
  Deed by BNP PARIBAS

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ IYADH LAALAI

  	
  )

  	
   

  
	
  and

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by CALYON

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ LAURENT HAIK

  	
  )

  	
   

  
	
  and

  	
  /s/ VINCENT FLEURY

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by INDOSUEZ FINANCE (UK) LIMITED

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ LAURENT HAIK

  	
  )

  	
   

  
	
  and

  	
  /s/ VINCENT FLEURY

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by THE
  ROYAL BANK OF SCOTLAND PLC

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ ALAN PARRY

  	
  )

  	
   

  
	
  and

  	
  )

  	
   

  



 

















 


	
  THE
  ORIGINAL A2 BANKS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by BNP PARIBAS

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ IYADH LAALAI

  	
  )

  	
   

  
	
  and

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by CALYON

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ LAURENT HAIK

  	
  )

  	
   

  
	
  and

  	
  /s/ VINCENT FLEURY

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by INDOSUEZ FINANCE (UK) LIMITED

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ LAURENT HAIK

  	
  )

  	
   

  
	
  and

  	
  /s/ VINCENT FLEURY

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by THE
  ROYAL BANK OF SCOTLAND PLC

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ ALAN PARRY

  	
  )

  	
   

  
	
  and

  	
  )

  	
   

  



 

















 


THE
ORIGINAL BRAZILIAN BANKS


 


	
  EXECUTED as a
  Deed by BANCO BNP PARIBAS BRASIL S.A.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ ANDRÉ OSSER

  	
  )

  	
   

  
	
  and

  	
  /s/ HITOSI HASSEGAWA

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE
  ORIGINAL NZ BANKS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by BNP PARIBAS

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ CAROLINE BECAVIN

  	
  )

  	
   

  
	
  and

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by CALYON

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ LAURENT HAIK

  	
  )

  	
   

  
	
  and

  	
  /s/ VINCENT FLEURY

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by THE
  ROYAL BANK OF SCOTLAND PLC, 

  	
   

  	
   

  
	
  AUSTRALIA BRANCH

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ DEAN WHITE

  	
  )

  	
   

  
	
  and

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE
  ORIGINAL C BANKS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by BNP PARIBAS

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ IYADH LAALAI

  	
  )

  	
   

  
	
  and

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXECUTED as a
  Deed by CALYON

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ LAURENT HAIK

  	
  )

  	
   

  
	
  and

  	
  /s/ VINCENT FLEURY

  	
  )

  	
   

  



 

















 


THE
ORIGINAL C BANKS


 


	
  EXECUTED as a
  Deed by THE
  ROYAL BANK OF SCOTLAND PLC

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ ALAN PARRY

  	
  )

  	
   

  
	
  and

  	
  )

  	
   

  
				



 

















 


THE
ORIGINAL EQUITY FINANCE PROVIDERS


 


	
  EXECUTED as a
  Deed by THE HERTZ CORPORATION)

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
  )

  	
   

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
ORIGINAL BRAZILIAN BANKS


 


	
  EXECUTED as a Deed by BANCO CALYON BRASIL
  S.A.

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  acting by

  	
  /s/ VALTER KIYOSHI SHINTANI

  	
  )

  	
   

  
	
   

  	
  /s/ DIRECTOR EXECUTIVE

  	
  )

  	
   

  
	
  and

  	
  /s/ EDSON CREMONESI

  	
  )

  	
   

  
	
   

  	
  /s/ GENERAL MANAGER