Exhibit
4.6.1


 


CREDIT
AGREEMENT


 


among


 


 


THE HERTZ
CORPORATION,


 


THE SEVERAL
LENDERS


FROM TIME TO
TIME PARTIES HERETO,


 


DEUTSCHE BANK
AG, NEW YORK BRANCH,

as Administrative Agent and Collateral Agent,


 


LEHMAN COMMERCIAL PAPER INC.,

as Syndication Agent


 


and


 


MERRILL LYNCH &
CO., MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED,

as Documentation Agent


 


Dated as of December 21,
2005


 






 


DEUTSCHE BANK
SECURITIES INC.,

LEHMAN BROTHERS INC.

and

MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED,

as Joint Lead Arrangers


 


and


 


BNP PARIBAS,


THE ROYAL BANK
OF SCOTLAND PLC


 


and


CALYON NEW
YORK BRANCH,


 


as
Co-Arrangers


 






 


DEUTSCHE BANK
SECURITIES INC.,

LEHMAN BROTHERS INC.,

MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED,

GOLDMAN SACHS CREDIT PARTNERS L.P.

and

JPMORGAN CHASE BANK, N.A.,

as Joint Bookrunning Managers


 

















 


Table of Contents


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.
  DEFINITIONS

  	
  2

  
	
   

  	
  1.1

  	
  Defined Terms

  	
  2

  
	
   

  	
  1.2

  	
  Other Definitional Provisions

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.
  AMOUNT AND TERMS OF COMMITMENTS

  	
  43

  
	
   

  	
  2.1

  	
  Reserved

  	
  43

  
	
   

  	
  2.2

  	
  Reserved

  	
  43

  
	
   

  	
  2.3

  	
  Reserved

  	
  43

  
	
   

  	
  2.4

  	
  Reserved

  	
  43

  
	
   

  	
  2.5

  	
  Term Loans

  	
  43

  
	
   

  	
  2.6

  	
  Term Loan Notes

  	
  44

  
	
   

  	
  2.7

  	
  Procedure for Term Loan Borrowing

  	
  44

  
	
   

  	
  2.8

  	
  Record of Loans

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.
  LETTERS OF CREDIT

  	
  45

  
	
   

  	
  3.1

  	
  Funded Letters of Credit

  	
  45

  
	
   

  	
  3.2

  	
  Procedure for Issuance of Letters of Credit

  	
  46

  
	
   

  	
  3.3

  	
  Fees, Commissions and Other Charges

  	
  48

  
	
   

  	
  3.4

  	
  Participant’s Acquisition of Participations
  in Letters of Credit

  	
  48

  
	
   

  	
  3.5

  	
  Reimbursement by the Parent Borrower

  	
  50

  
	
   

  	
  3.6

  	
  Obligations Absolute

  	
  51

  
	
   

  	
  3.7

  	
  L/C Payments

  	
  51

  
	
   

  	
  3.8

  	
  L/C Request

  	
  52

  
	
   

  	
  3.9

  	
  Additional
  Issuing Lenders.

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.
  GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT.

  	
  52

  
	
   

  	
  4.1

  	
  Interest Rates and Payment Dates

  	
  52

  
	
   

  	
  4.2

  	
  Conversion and Continuation Options

  	
  53

  
	
   

  	
  4.3

  	
  Minimum Amounts of Sets

  	
  53

  
	
   

  	
  4.4

  	
  Optional and Mandatory Prepayments

  	
  54

  
	
   

  	
  4.5

  	
  Commitment Fees; Administrative Agent’s
  Fee; Other Fees

  	
  56

  
	
   

  	
  4.6

  	
  Computation of Interest and Fees

  	
  57

  
	
   

  	
  4.7

  	
  Inability to Determine Interest Rate

  	
  57

  
	
   

  	
  4.8

  	
  Pro Rata Treatment and Payments

  	
  57

  
	
   

  	
  4.9

  	
  Illegality

  	
  59

  
	
   

  	
  4.10

  	
  Requirements of Law

  	
  60

  
	
   

  	
  4.11

  	
  Taxes

  	
  61

  
	
   

  	
  4.12

  	
  Indemnity

  	
  66

  
	
   

  	
  4.13

  	
  Certain Rules Relating to the Payment
  of Additional Amounts

  	
  66

  
	
   

  	
  4.14

  	
  Controls on Prepayment if Total Lender
  Exposure Exceeds Total Commitments

  	
  68

  
						



 


i

















 


	
  SECTION 5.
  REPRESENTATIONS AND WARRANTIES

  	
  68

  
	
   

  	
  5.1

  	
  Financial Condition

  	
  68

  
	
   

  	
  5.2

  	
  No Change; Solvent

  	
  69

  
	
   

  	
  5.3

  	
  Corporate Existence; Compliance with Law

  	
  69

  
	
   

  	
  5.4

  	
  Corporate Power; Authorization; Enforceable
  Obligations

  	
  70

  
	
   

  	
  5.5

  	
  No Legal Bar

  	
  70

  
	
   

  	
  5.6

  	
  No Material Litigation

  	
  70

  
	
   

  	
  5.7

  	
  No Default

  	
  70

  
	
   

  	
  5.8

  	
  Ownership of Property; Liens

  	
  71

  
	
   

  	
  5.9

  	
  Intellectual Property

  	
  71

  
	
   

  	
  5.10

  	
  No Burdensome Restrictions

  	
  71

  
	
   

  	
  5.11

  	
  Taxes

  	
  71

  
	
   

  	
  5.12

  	
  Federal Regulations

  	
  71

  
	
   

  	
  5.13

  	
  ERISA

  	
  72

  
	
   

  	
  5.14

  	
  Collateral

  	
  72

  
	
   

  	
  5.15

  	
  Investment Company Act; Other Regulations

  	
  73

  
	
   

  	
  5.16

  	
  Subsidiaries

  	
  73

  
	
   

  	
  5.17

  	
  Purpose of Loans

  	
  73

  
	
   

  	
  5.18

  	
  Environmental Matters

  	
  73

  
	
   

  	
  5.19

  	
  No Material Misstatements

  	
  74

  
	
   

  	
  5.20

  	
  Delivery of the Acquisition Agreement

  	
  75

  
	
   

  	
  5.21

  	
  Certain Representations and Warranties
  Contained in the Acquisition Agreement

  	
  75

  
	
   

  	
  5.22

  	
  Senior Indebtedness

  	
  75

  
	
   

  	
  5.23

  	
  Labor Matters

  	
  75

  
	
   

  	
  5.24

  	
  Special Purpose Corporation

  	
  76

  
	
   

  	
  5.25

  	
  Insurance

  	
  76

  
	
   

  	
  5.26

  	
  Anti-Terrorism.

  	
  76

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.
  CONDITIONS PRECEDENT

  	
  76

  
	
   

  	
  6.1

  	
  Conditions to Initial Extension of Credit

  	
  76

  
	
   

  	
  6.2

  	
  Conditions to Each Other Extension of
  Credit

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.
  AFFIRMATIVE COVENANTS

  	
  85

  
	
   

  	
  7.1

  	
  Financial Statements

  	
  85

  
	
   

  	
  7.2

  	
  Certificates; Other Information

  	
  87

  
	
   

  	
  7.3

  	
  Payment of Obligations

  	
  88

  
	
   

  	
  7.4

  	
  Conduct of Business and Maintenance of
  Existence

  	
  88

  
	
   

  	
  7.5

  	
  Maintenance of Property; Insurance

  	
  88

  
	
   

  	
  7.6

  	
  Inspection of Property; Books and Records;
  Discussions

  	
  89

  
	
   

  	
  7.7

  	
  Notices

  	
  90

  
	
   

  	
  7.8

  	
  Environmental Laws

  	
  91

  
	
   

  	
  7.9

  	
  After-Acquired Real Property and Fixtures

  	
  92

  
	
   

  	
  7.10

  	
  Interest Rate Protection

  	
  94

  
	
   

  	
  7.11

  	
  Surveys

  	
  94

  
	
   

  	
  7.12

  	
  [Reserved].

  	
  95

  
	
   

  	
  7.13

  	
  Consummation of Transactions

  	
  95

  



 


ii

















 


	
   

  	
  7.14

  	
  Post-Closing Security Perfection

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.
  NEGATIVE COVENANTS

  	
  95

  
	
   

  	
  8.1

  	
  Financial Condition Covenants

  	
  95

  
	
   

  	
  8.2

  	
  Limitation on Indebtedness

  	
  97

  
	
   

  	
  8.3

  	
  Limitation on Liens

  	
  101

  
	
   

  	
  8.4

  	
  Limitation on Guarantee Obligations

  	
  104

  
	
   

  	
  8.5

  	
  Limitation on Fundamental Changes

  	
  106

  
	
   

  	
  8.6

  	
  Limitation on Sale of Assets

  	
  106

  
	
   

  	
  8.7

  	
  Limitation on Dividends

  	
  107

  
	
   

  	
  8.8

  	
  Limitation on Capital Expenditures

  	
  109

  
	
   

  	
  8.9

  	
  Limitation on Investments, Loans and
  Advances

  	
  110

  
	
   

  	
  8.10

  	
  Limitations on Certain Acquisitions

  	
  112

  
	
   

  	
  8.11

  	
  Limitation on Transactions with Affiliates

  	
  113

  
	
   

  	
  8.12

  	
  Limitation on Sale and Leaseback Transactions

  	
  115

  
	
   

  	
  8.13

  	
  Limitation on Dispositions of Collateral

  	
  115

  
	
   

  	
  8.14

  	
  Limitation on Optional Payments and
  Modifications of Debt Instruments and Other Documents

  	
  116

  
	
   

  	
  8.15

  	
  Limitation on Changes in Fiscal Year

  	
  117

  
	
   

  	
  8.16

  	
  Limitation on Negative Pledge Clauses

  	
  117

  
	
   

  	
  8.17

  	
  Limitation on Lines of Business

  	
  117

  
	
   

  	
  8.18

  	
  Limitations on Currency, Commodity and
  Other Hedging Transactions

  	
  118

  
	
   

  	
  8.19

  	
  Limitations on Activities of Hertz Vehicle
  Sales Corporation

  	
  118

  
	
   

  	
  8.20

  	
  Limitation on HERC Capital Expenditures.

  	
  118

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.
  EVENTS OF DEFAULT

  	
  119

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.
  THE AGENTS AND THE OTHER REPRESENTATIVES

  	
  123

  
	
   

  	
  10.1

  	
  Appointment

  	
  123

  
	
   

  	
  10.2

  	
  Delegation of Duties

  	
  124

  
	
   

  	
  10.3

  	
  Exculpatory Provisions

  	
  124

  
	
   

  	
  10.4

  	
  Reliance by the Administrative Agent

  	
  125

  
	
   

  	
  10.5

  	
  Notice of Default

  	
  125

  
	
   

  	
  10.6

  	
  Acknowledgements and Representations by
  Lenders

  	
  126

  
	
   

  	
  10.7

  	
  Indemnification

  	
  126

  
	
   

  	
  10.8

  	
  The Administrative Agent and Other
  Representatives in Their Individual Capacity

  	
  127

  
	
   

  	
  10.9

  	
  Collateral Matters

  	
  127

  
	
   

  	
  10.10

  	
  Successor Agent

  	
  128

  
	
   

  	
  10.11

  	
  Other Representatives

  	
  129

  
	
   

  	
  10.12

  	
  Reserved

  	
  129

  
	
   

  	
  10.13

  	
  Withholding Tax

  	
  129

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.
  MISCELLANEOUS

  	
  129

  
	
   

  	
  11.1

  	
  Amendments and Waivers

  	
  129

  
	
   

  	
  11.2

  	
  Notices

  	
  132

  
	
   

  	
  11.3

  	
  No Waiver; Cumulative Remedies

  	
  133

  



 


iii

















 


	
   

  	
  11.4

  	
  Survival of Representations and Warranties

  	
  133

  
	
   

  	
  11.5

  	
  Payment of Expenses and Taxes

  	
  133

  
	
   

  	
  11.6

  	
  Successors and Assigns; Participations and
  Assignments

  	
  134

  
	
   

  	
  11.7

  	
  Adjustments; Set-off; Calculations;
  Computations

  	
  139

  
	
   

  	
  11.8

  	
  Judgment

  	
  140

  
	
   

  	
  11.9

  	
  Counterparts

  	
  140

  
	
   

  	
  11.10

  	
  Severability

  	
  140

  
	
   

  	
  11.11

  	
  Integration

  	
  140

  
	
   

  	
  11.12

  	
  GOVERNING LAW

  	
  141

  
	
   

  	
  11.13

  	
  Submission To Jurisdiction; Waivers

  	
  141

  
	
   

  	
  11.14

  	
  Acknowledgements

  	
  141

  
	
   

  	
  11.15

  	
  WAIVER OF JURY TRIAL

  	
  142

  
	
   

  	
  11.16

  	
  Confidentiality

  	
  142

  
	
   

  	
  11.17

  	
  USA Patriot Act Notice

  	
  143

  
	
   

  	
  11.18

  	
  Special Provisions Regarding Pledges of
  Capital Stock in, and Promissory Notes Owed by, Persons Not Organized in the
  U.S.

  	
  143

  



 


iv

















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  	
   

  
	
  A-1

  	
  Tranche B Term Loan Commitments and
  Addresses

  	
   

  
	
  A-2

  	
  Delayed Draw Term Loan Commitments and
  Addresses

  	
   

  
	
  A-3

  	
  Letter of Credit Commitments and Addresses

  	
   

  
	
  B

  	
  Rollover Indebtedness

  	
   

  
	
  C

  	
  Unscheduled Assumed Indebtedness

  	
   

  
	
  D

  	
  Existing Letters of Credit

  	
   

  
	
  5.2

  	
  Material Adverse Effect Disclosure

  	
   

  
	
  5.4

  	
  Consents Required

  	
   

  
	
  5.6

  	
  Litigation

  	
   

  
	
  5.8

  	
  Real Property

  	
   

  
	
  5.9

  	
  Intellectual Property Claims

  	
   

  
	
  5.16

  	
  Subsidiaries

  	
   

  
	
  5.18

  	
  Environmental Matters

  	
   

  
	
  5.25

  	
  Insurance

  	
   

  
	
  6.1(d)

  	
  Intercompany Transactions

  	
   

  
	
  6.1(i)

  	
  Lien Searches

  	
   

  
	
  6.1(j)

  	
  Local and Foreign Counsel

  	
   

  
	
  6.1(n)

  	
  Title Insurance Policies

  	
   

  
	
  7.11

  	
  Surveys

  	
   

  
	
  7.14

  	
  Post-Closing Security

  	
   

  
	
  8.2(j)

  	
  Permitted Indebtedness

  	
   

  
	
  8.3(j)

  	
  Permitted Liens

  	
   

  
	
  8.4(a)

  	
  Permitted Guarantee Obligations

  	
   

  
	
  8.6(i)

  	
  Permitted Asset Sales

  	
   

  
	
  8.9(c)

  	
  Permitted Investments

  	
   

  
	
  8.11(v)

  	
  Permitted Transactions with Affiliates

  	
   

  



 


v

















 


	
  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  
	
  A

  	
  Form of Term Loan Note

  	
   

  
	
  B

  	
  Guarantee and Collateral Agreement

  	
   

  
	
  C

  	
  Form of Mortgage

  	
   

  
	
  D-1

  	
  Opinion of Debevoise & Plimpton
  LLP, Special New York Counsel to the Loan Parties

  	
   

  
	
  D-2

  	
  Opinion of Richards, Layton and Finger PA,
  Special Delaware Counsel to Certain of the Loan Parties

  	
   

  
	
  D-3

  	
  Opinion of Harold Rolfe, General Counsel to
  the Parent Borrower

  	
   

  
	
  E

  	
  Form of U.S. Tax Compliance
  Certificate

  	
   

  
	
  F

  	
  Form of Assignment and Acceptance

  	
   

  
	
  G

  	
  Form of Closing Certificate

  	
   

  
	
  H

  	
  Form of L/C Request

  	
   

  



 


vi

















 


CREDIT AGREEMENT, dated as of December 21,
2005, among, THE HERTZ CORPORATION, a Delaware corporation (together with its
successors and assigns the “Parent Borrower”), the several banks and
other financial institutions from time to time parties to this Agreement (as
further defined in Section 1.1, the “Lenders”), DEUTSCHE BANK AG,
NEW YORK BRANCH (“DBNY”), as administrative agent and collateral agent
for the Lenders hereunder (in such capacities, respectively, the “Administrative
Agent” and the “Collateral Agent”), LEHMAN COMMERCIAL PAPER INC. (“LCPI”),
as syndication agent (in such capacity, the “Syndication Agent”), and
MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER AND SMITH
INCORPORATED, (“Merrill”), as documentation agent (in such capacity, the
“Documentation Agent”).


 


The parties hereto hereby agree as follows:


 


W I  T  N  E
S  S  E  T  H:


 


WHEREAS, CCMG Holdings, Inc., a Delaware
corporation (“Holdings”), and its Wholly Owned Subsidiaries (such term
and each other capitalized term used in these recitals and not otherwise
previously defined, as hereinafter defined), including CCMG Corporation, a
Delaware corporation (together with its successors and assigns “CCMGC”),
and CCMG Acquisition Corporation, a Delaware corporation (“Acquisition Corp.”),
are each newly formed companies organized by Clayton, Dubilier & Rice, Inc.
(“CD&R”), TC Group L.L.C. (which operates under the trade name The
Carlyle Group) (“Carlyle”), Merrill Lynch Global Partners, Inc. (“MLGP”
and, collectively with CD&R and Carlyle, the “Sponsors”) or any of
their respective Affiliates;


 


WHEREAS, Holdings shall, through one or more
of its Wholly-Owned Subsidiaries, acquire (the “Acquisition”) all of the
issued and outstanding capital stock of the Parent Borrower, pursuant to the
Stock Purchase Agreement, dated as of September 12, 2005 (the “Acquisition
Agreement”), among Holdings, Ford Holdings LLC (the “Seller”) and
Ford Motor Company;


 


WHEREAS, Holdings will receive a direct or
indirect cash investment from the Equity Investors and/or one or more other
investors determined by the Equity Investors, in an aggregate amount of at
least $2,200,000,000 and will contribute such cash (net of amounts used to pay
the costs and expenses of Holdings incurred on or prior to the Closing Date in
respect of the Transactions (as defined herein)) as a common equity
contribution to CCMGC, and CCMGC shall in turn contribute such amount as a
common equity contribution to Acquisition Corp. (the “Equity Financing”);


 


WHEREAS, Parent Borrower and certain of the
Subsidiaries will obtain a senior secured asset based revolving loan facility
(the “ABL Facility”), under which, the Parent Borrower and certain of
the Subsidiaries shall obtain commitments from Lenders in respect of senior
secured revolving loans (the “ABL Facility Loans”) in an amount of up to
$1,600,000,000;


 


WHEREAS, Acquisition Corp. will issue up to
$2,800,000,000 in combined aggregate principal amount of (x) its senior
unsecured notes (in an aggregate principal amount of 


 

















 


up to $2,200,000,000)
and (y) its senior subordinated unsecured notes (in an aggregate principal
amount of up to $600,000,000) (collectively, as further defined in subsection 1.1
the “New Notes”);


 


WHEREAS, a bankruptcy-remote special purpose
entity wholly-owned by the Parent Borrower or one of its Affiliates reasonably
satisfactory to the U.S. ABS Initial Purchasers will secure financings of up to
$4,267,629,130 through the issuance of certain U.S. rental car asset backed
securities (the “U.S. Securitization”);


 


WHEREAS, one or more of the Parent Borrower’s
existing Foreign Subsidiaries and or certain Special Purpose Entities will
obtain loans and/or issue notes to finance or refinance the purchase of Rental
Car Vehicles in an aggregate principal amount of up to $1,780,639,366 (the “Foreign
Fleet Bridge Financing”);


 


WHEREAS, following the Acquisition, the
Canadian Reorganization shall be effected;


 


WHEREAS, following the Acquisition,
Acquisition Corp. will merge with and into (the “Merger” and, together
with the Acquisition, the Tender Offers, the Debt Financing, the Equity
Financing, the Canadian Reorganization and the repayment of certain existing
Indebtedness, the “Transactions”) the Parent Borrower, with the Parent
Borrower being the surviving corporation of the Merger; and


 


WHEREAS, in order to (i) fund a portion
of certain of the Transactions, (ii) repay certain existing indebtedness
of the Parent Borrower and its Subsidiaries, (iii) pay certain fees and
expenses related to the Transactions and (iv) finance the working capital
and other business requirements and other general corporate purposes of the
Parent Borrower and its Subsidiaries following the consummation of the
Acquisition and the related transactions, the Parent Borrower has requested
that the Lenders make the Loans and issue and participate in the Letters of
Credit provided for herein;


 


NOW, THEREFORE, in consideration of the
premises and the mutual agreements contained herein, the parties hereto agree
as follows:


 


SECTION 1.    DEFINITIONS.


 


1.1           Defined Terms.  As used in this Agreement, the following
terms shall have the following meanings:


 


“ABL Facility”:  as defined in the Recitals, and as the same
may be amended, supplemented, waived, otherwise modified, extended, renewed,
refinanced or replaced from time to time.


 


“ABL Facility Documents”:  any document evidencing the ABL Facility or
entered into in connection therewith, as the same may be amended, supplemented,
waived, otherwise modified, extended, renewed, refinanced or replaced from time
to time.


 


2

















 


“ABL Facility Loans”:  as defined in the Recitals, and as the same
may be amended, supplemented, waived, otherwise modified, extended, renewed,
refinanced or replaced from time to time.


 


“ABR”: 
for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%.  For purposes
hereof:  “Prime Rate” shall mean
the rate of interest per annum publicly announced from time to time by DBNY (or
another bank of recognized standing reasonably selected by the Administrative
Agent and reasonably satisfactory to the Parent Borrower) as its prime rate in
effect at its principal office in New York City (the Prime Rate not being
intended to be the lowest rate of interest charged by DBNY in connection with
extensions of credit to debtors). “Federal Funds Effective Rate” shall
mean, for any day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve of New York, or, if such rate is not so published for any day which is
a Business Day, the average of the quotations for the day of such transactions
received by the Administrative Agent from three federal funds brokers of recognized
standing selected by it.  Any change in
the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective as of the opening of business on the effective day of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.


 


“ABR Loans”:  Loans the rate of interest applicable to
which is based upon the ABR.


 


“Acceleration”:  as defined in subsection 9(e).


 


“Accounts”:  as defined in the UCC; and, with respect to
any Person, all such Accounts of such Person, whether now existing or existing
in the future, including (a) all accounts receivable of such Person
(whether or not specifically listed on schedules furnished to the
Administrative Agent), including all accounts created by or arising from all of
such Person’s sales of goods or rendition of services made under any of its
trade names, or through any of its divisions, (b) all unpaid rights of
such Person (including rescission, replevin, reclamation and stopping in
transit) relating to the foregoing or arising therefrom, (c) all rights to
any goods represented by any of the foregoing, including returned or
repossessed goods, (d) all reserves and credit balances held by such
Person with respect to any such accounts receivable of any Obligors, (e) all
letters of credit, guarantees or collateral for any of the foregoing and (f) all
insurance policies or rights relating to any of the foregoing.


 


“Acquisition”:  as defined in the Recitals hereto.


 


“Acquisition Agreement”:  as defined in the Recitals hereto.


 


“Acquisition Corp.”:  as defined in the Preamble hereto.


 


“Acquisition Documents”:  the Acquisition Agreement and the Guarantees
(as defined in the Acquisition Agreement), in each case as the same may be
amended, modified and/or supplemented from time to time in accordance with the
terms hereof and thereof.


 


3

















 


“Additional Senior Notes”:  means either (i) additional Dollar
Senior Notes issued pursuant to the New Notes Indenture governing the Dollar
Senior Notes or (ii) senior notes of the Parent Borrower issued in an
original aggregate principal amount of at least $100,000,000 pursuant to an
indenture having substantially identical terms to the New Notes Indenture
governing the Dollar Senior Notes (other than the issue price, coupon, maturity
and redemption dates), in each case (x) issued on or prior to February 10,
2006 and (y) in such principal amount as is necessary to generate net proceeds
to the Parent Borrower of an amount equal to (x) $500,000,000 minus (y) the aggregate
principal amount of Existing Notes maturing in 2010 and thereafter that are not
Late-Tendered Bonds and (z) (other than in the case of Excess Additional Senior
Notes) to be used solely to prepay, repay, purchase, defease or otherwise
acquire, or to refinance the prepayment, repayment, purchase, defeasance or
other acquisition of, the Long-Dated Bonds.


 


“Administrative Agent”:  as defined in the Preamble hereto and shall
include any successor to the Administrative Agent appointed pursuant to subsection 10.10.


 


“Affected Eurocurrency Loans”:  as defined in subsection 4.9.


 


“Affected Eurocurrency Rate”:  as defined in subsection 4.7.


 


“Affected Loans”: as defined in subsection 4.9.


 


“Affiliate”:  as to any Person, any other Person (other
than a Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person.  For purposes of this definition, “control” of
a Person means the power, directly or indirectly, either to (a) vote 20%
or more of the securities having ordinary voting power for the election of
directors of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.


 


“Agents”:  the collective reference to the Administrative
Agent, the Collateral Agent, the Syndication Agent and the Documentation Agent.


 


“Agreement”:  this Credit Agreement, as amended,
supplemented, waived or otherwise modified, from time to time.


 


“Applicable Margin”:  (a) with respect to ABR Loans, (i) 1.25%
per annum or (ii) 1.00% per annum if the Consolidated Leverage Ratio for
the most recently completed fiscal period of the Parent Borrower is less than
or equal to 3.75 to 1.00 and (b) with respect to Eurocurrency Loans, (i) 2.25%
per annum or (ii) 2.00% per annum if the Consolidated Leverage Ratio for
the most recently completed fiscal period of the Parent Borrower is less than
or equal to 3.75 to 1.00.


 


“Approved Fund”:  as defined in subsection 11.6(b).


 


“Asset Sale”:  any sale,
issuance, conveyance, transfer, lease or other disposition (including through a
Sale and Leaseback Transaction) (a “Disposition”) by the Parent Borrower
or any other Loan Party, in one or a series of related transactions, of any
real or personal, tangible or intangible, property (including Capital Stock) of
the Parent Borrower or such 


 


4

















 


Subsidiary to any
Person (other than (x) pursuant to the HERC LKE Program, (y) pursuant to the
Rental Car LKE Program or (z) in connection with any Financing Disposition).


 


“Assignee”:  as defined in subsection 11.6(b).


 


“Assignment and Acceptance”:  an Assignment and Acceptance, substantially
in the form of Exhibit F.


 


“Assumed Indebtedness”:  the collective reference to all Rollover
Indebtedness and Unscheduled Assumed Indebtedness.


 


“Average Book Value”:  for any period, the amount equal to (a) the
sum of the respective book values of Rental Car Vehicles of the Parent Borrower
and its Subsidiaries (other than Special Purpose Subsidiaries) as of the end of
each of the most recent thirteen fiscal months of the Parent Borrower that have
ended at or prior to the end of such period, divided by (b) 13.


 


“Average Interest Rate”:  for any period, the amount equal to (a) the
total interest expense of the Parent Borrower and its Subsidiaries for such
period (excluding any interest expense on any Indebtedness of any Special
Purpose Subsidiary) divided by (b) the Average Principal Amount of
Indebtedness of the Parent Borrower and its Subsidiaries for such period
(excluding any Indebtedness of any Special Purpose Subsidiary).


 


“Average Principal Amount”: for any
period, the amount equal to (a) the sum of the respective aggregate
outstanding principal amounts of the Indebtedness of the Parent Borrower and
its Subsidiaries (other than Special Purpose Subsidiaries) as of the end of
each of the most recent thirteen fiscal months of the Parent Borrower that have
ended at or prior to the end of such period, divided by (b) 13.


 


“Benefited Lender”:  as defined in subsection 11.7(a).


 


“Board”:  the Board of Governors of the Federal Reserve
System.


 


“Borrowing Date”:  any Business Day specified in a notice
pursuant to subsection 2.7 or 3.2 as a date on which the Parent Borrower
requests the Lenders to make Loans hereunder or an Issuing Lender to issue
Letters of Credit hereunder.


 


“Business Day”:  a day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York (or, with respect only to
Letters of Credit issued by an Issuing Lender not located in the City of New
York, the location of such Issuing Lender) are authorized or required by law to
close, except that, when used in connection with a Eurocurrency Loan, “Business
Day” shall mean any Business Day on which dealings in Dollars between banks may
be carried on in London, England and New York, New York; provided, however,
that, with respect to notices and determinations in connection with, and
payments of principal and interest on, Loans denominated in Euros, such day is
also a day on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer System (TARGET) (or, if such clearing system ceases to be
operative, such other clearing system (if any) determined by the Administrative
Agent to be a suitable replacement) is open for settlement of payment in Euros.


 


5

















 


“Canadian Reorganization”:  the following transactions, to occur
following the Acquisition on the Closing Date:


 


(a)           the
sale by Hertz Holdings Netherlands B.V. (“Hertz NL BV”)  of common shares (“Hertz Canada Common
shares”) of Hertz Canada Limited (“Hertz Canada”) to the Parent
Borrower, in consideration for which the Parent Borrower shall deliver to Hertz
NL BV a note issued by the Parent Borrower and payable on demand in the
principal amount of approximately $490,000,000 (the “Hertz Note”);


 


(b)           the
distribution by the Parent Borrower of the Hertz Canada Common Shares and the
preferred shares of Hertz Canada held by the Parent Borrower (together with the
Hertz Canada Common Shares, the “Hertz Canada Shares”) as a dividend to
CCMG Investor LLC, a Subsidiary of Acquisition Corp. and the sole stockholder
of the Parent Borrower immediately following the Acquisition;


 


(c)           the
sale by Acquisition Corp. of Class B Common Shares of CCMG Investor LLC to
CCMG Investor LLC for redemption, in consideration for which CCMG Investor LLC
shall sell to Acquisition Corp. common stock of the Parent Borrower (the “Hertz
Shares”), representing all of the then issued and outstanding shares of the
Parent Borrower’s capital stock;


 


(d)           the
dissolution, winding-up and termination of CCMG Investor LLC, in connection
with which  the Hertz Canada Shares shall
be transferred and assigned to CMGC Canada Acquisition ULC (“CMGC Canada”);


 


(e)           the
sale of common shares of CMGC Canada (the “CMGC Canada Shares”),
representing all of the issued and outstanding shares of CMGC Canada’s capital
stock, to the Parent Borrower as a contribution;


 


(f)            the
Merger;


 


(g)           the
sale by the Parent Borrower of the CMGC Canada Shares to Hertz International
Ltd., in consideration for which Hertz International Ltd. will enter into an
agreement with the Parent Borrower, Hertz International Ltd. and Hertz NL BV
pursuant to which the Parent Borrower will be released from its obligations
under the Hertz Note, which shall be cancelled, and Hertz International Limited
shall issue a new note (the “HIL Note”) to Hertz NL BV for the same
principal amount and otherwise containing substantially similar terms and
conditions;


 


(h)           the
sale by Hertz International Limited of the CMGC Canada Shares to Hertz NL BV in
full satisfaction of Hertz International Ltd.’s obligations under the HIL Note,
which shall be cancelled;


 


(i)            the
subscription by CMGC Canada for common shares (the “Newco (Canada) Shares”)
of 1677932 Ontario Limited, an Ontario
corporation, representing all of the issued and outstanding shares of Newco
(Canada) capital stock, in consideration for which CMGC Canada shall sell,
transfer and assign to Newco (Canada) the Hertz Canada Shares;


 


6

















 


(j)            the
amalgamation of Newco (Canada) and Hertz Canada, whereupon the amalgamated
entity shall continue under the name Hertz Canada Limited (“Hertz Canada
Amalco”);


 


(k)           the
exchange by Hertz Canada Amalco of its common shares in Matthews for preferred
shares of Matthews of equal value, and the subscription by CCMG HERC Sub, Inc.,
a Wholly-Owned Subsidiary of HERC, for common shares of Matthews; and


 


(l)            all
transactions relating thereto.


 


 “Capital
Expenditures”:  with respect to any
Person for any period, the sum of (a) the aggregate of all expenditures by
such Person and its consolidated Subsidiaries during such period (exclusive of
expenditures made (i) for investments permitted by subsection 8.9 and
(ii) for acquisitions permitted by subsection 8.10) which, in
accordance with GAAP, are or should be included in “capital expenditures,”
including, any such expenditures made for purchases of Rental Equipment, net of
(b) Dispositions of (x) property, plant and equipment, (y) Rental
Equipment and (z) Rental Car Vehicles during such period.


 


“Capital Stock”:  any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.


 


“Carlyle”:  as defined in
the Recitals hereto.


 


“Carlyle Investors”: the collective
reference to (a) Carlyle Partners IV, L.P., a Delaware limited
partnership, or any successor thereto, (b) CEP II Participations S.àr.l.,
a Luxembourg limited liability company, or any successor thereto, (c) CP
IV Co-investment L.P., a Delaware limited partnership, or any successor
thereto, (d) CEP II U.S. Investments, L.P., a Delaware limited
partnership, or any successor thereto, (e) any Affiliate of any thereof,
and (f) any successor in interest to any thereof.


 


 “Cash
Equivalents”:  (a) securities
issued or fully guaranteed or insured by the United States government or any
agency or instrumentality thereof, (b) time deposits, certificates of
deposit or bankers’ acceptances of (i) any Lender or Affiliate thereof or (ii) any
commercial bank having capital and surplus in excess of $500,000,000 and the
commercial paper of the holding company of which is rated at least A-2 or the
equivalent thereof by Standard & Poor’s Ratings Group (a division of
The McGraw Hill Companies Inc.) or any successor rating agency (“S&P”)
or at least P-2 or the equivalent thereof by Moody’s Investors Service, Inc.
or any successor rating agency (“Moody’s”) (or if at such time neither
is issuing ratings, then a comparable rating of such other nationally
recognized rating agency as shall be approved by the Administrative Agent in
its reasonable judgment), (c) commercial paper rated at least A-2 or the
equivalent thereof by S&P or at least P-2 or the equivalent thereof by
Moody’s (or if at such time neither is issuing ratings, then a comparable
rating of such other nationally recognized rating agency as shall be approved
by the Administrative Agent in its reasonable judgment), (d) investments
in money market funds complying with the risk limiting conditions of Rule 2a-7
or any successor rule of the Securities and Exchange Commission under the
Investment 


 


7

















 


Company Act, and (e) investments
similar to any of the foregoing denominated in foreign currencies approved by
the board of directors of the Parent Borrower, in each case provided in clauses
(a), (b), (c) and (e) above only, maturing within twelve months after
the date of acquisition.


 


“CCMGC”:  as defined in the Recitals hereto.


 


“CD&R”:  as defined in
the Recitals hereto.


 


“CD&R Investors”:  the
collective reference to (i) Clayton, Dubilier & Rice Fund VII,
L.P., a Cayman Islands exempted limited partnership, or any successor thereto, (ii) CD&R
CCMG Co-Investor L.P., a Cayman Islands exempted limited partnership, or any
successor thereto, (iii) CD&R Parallel Fund VII, L.P., a Cayman
Islands exempted limited partnership, or any successor thereto, (iv) any
Affiliate of any thereof, and (v) any successor in interest to any
thereof.


 


“Change in Consolidated Working Capital”:  for any period, a positive or negative number
equal to the amount of Consolidated Working Capital at the beginning of such
period minus the amount of Consolidated Working Capital at the end of such
period.


 


“Change of Control”:  the occurrence of any of the following
events:  (a) at any time prior to
the initial registered public offering of CCMGC’s or any Parent Entity’s Voting
Stock the Permitted Holders shall in the aggregate be the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of (x) so
long as CCMGC is a Subsidiary of any Parent Entity, shares of Voting Stock
having less than 51% of the total voting power of all outstanding shares of
such Parent Entity (other than a Parent Entity that is a Subsidiary of another
Parent Entity) and (y) if CCMGC is not a Subsidiary of any Parent Entity,
shares of Voting Stock having less than 51% of the total voting power of all
outstanding shares of CCMGC, (b) on and after the date of the initial
registered public offering of CCMGC’s or any Parent Entity’s Voting Stock, (i) (x)
the Permitted Holders shall in the aggregate be the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act) of (A) so
long as CCMGC is a Subsidiary of any Parent Entity, shares of Voting Stock
having less than 35% of the total voting power of all outstanding shares of
such Parent Entity (other than a Parent Entity that is a Subsidiary of another
Parent Entity) and (B) if CCMGC is not a Subsidiary of any Parent Entity,
shares of Voting Stock having less than 35% of the total voting power of all
outstanding shares of CCMGC and (y) any “person” or “group” (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act), other than one
or more Permitted Holders, shall be the “beneficial owner” of (A) so long
as CCMGC is a Subsidiary of any Parent Entity, shares of Voting Stock having
more than 35% of the total voting power of all outstanding shares of such
Parent Entity (other than a Parent Entity that is a Subsidiary of another
Parent Entity) and (B) if CCMGC is not a Subsidiary of any Parent Entity, shares
of Voting Stock having more than 35% of the total voting power of all
outstanding shares of CCMGC or (ii) the Continuing Directors shall cease
to constitute a majority of the members of the board of directors of CCMGC; (c) CCMGC
shall cease to own, directly or indirectly, 100% of the Capital Stock of the
Parent Borrower (or any successor to the Parent Borrower permitted pursuant to
subsection 8.5); or (d) a “Change of Control” as defined in any
Financing Documentation; as used in this 


 


8

















 


paragraph “Voting
Stock” shall mean shares of Capital Stock entitled to vote generally in the
election of directors.


 


“Closing Date”:  the date on which all the conditions
precedent set forth in subsection 6.1 shall be satisfied or waived.


 


“Code”:  the Internal Revenue Code of 1986, as amended
from time to time.


 


“Collateral”:  all assets of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any
Security Document.


 


“Collateral Agent”:  as defined in the Recitals hereto.


 


“Commercial L/C”:  as defined in subsection 3.1(a).


 


“Committed Lenders”:  DB, Lehman Brothers, MLCC, Goldman and
JPMorgan.


 


“Commitment”:  as to any Lender, the sum of the Term Loan
Commitments and the Letter of Credit Commitments of such Lender.


 


“Commitment Letter”:  the Commitment Letter (including the annexes
and exhibits thereto) dated September 12, 2005, among the Committed
Lenders and Holdings.


 


“Commonly Controlled Entity”:  an entity, whether or not incorporated, which
is under common control with the Parent Borrower within the meaning of Section 4001
of ERISA or is part of a group which includes the Parent Borrower and which is
treated as a single employer under Section 414(b) or (c) of the
Code or, solely for purposes of Section 302 of ERISA and Section 412
of the Code, is treated as a single employer under Sections 414(m) and (o) of
the Code.


 


“Conduit Lender”:  any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required
to be made by such Lender and designated by such Lender in a written instrument
delivered to the Administrative Agent (a copy of which shall be provided by the
Administrative Agent to the Parent Borrower on request); provided that
the designation by any Lender of a Conduit Lender shall not relieve the
designating Lender of any of its obligations under this Agreement, including
its obligation to fund a Loan if, for any reason, its Conduit Lender fails to
fund any such Loan, and the designating Lender (and not the Conduit Lender)
shall have the sole right and responsibility to deliver all consents and
waivers required or requested under this Agreement with respect to its Conduit
Lender, and provided, further, that no Conduit Lender shall (a) be
entitled to receive any greater amount pursuant to any provision of this
Agreement, including without limitation subsection 4.10, 4.11, 4.12 or
11.5, than the designating Lender would have been entitled to receive in
respect of the extensions of credit made by such Conduit Lender if such
designating Lender had not designated such Conduit Lender hereunder, (b) be
deemed to have any Term Loan Commitment or Letter of Credit Commitment or (c) be
designated if such designation would otherwise increase the costs of any
Facility to the Parent Borrower.


 


9

















 


“Confidential Information Memorandum”:  that certain Confidential Information
Memorandum (Public Version) dated November 2005 and furnished to the
Lenders.


 


“Consolidated
Current Portion of Long Term Debt”: 
at the date of determination thereof, the current portion of
Consolidated Long Term Debt that is included in Consolidated Short Term Debt.


 


“Consolidated Indebtedness”:  at the date of determination thereof, an
amount equal to (a) the sum (without duplication) of (i) Consolidated
Long Term Debt plus (ii) Consolidated Short Term Debt, minus (b) Consolidated
Vehicle Indebtedness, minus (c) the aggregate amount of cash included in
the cash accounts listed on the consolidated balance sheet of the Parent
Borrower and its consolidated Subsidiaries as at such date up to a maximum
amount of $500,000,000 to the extent such cash is not classified as “restricted”
for financial statement purposes.


 


“Consolidated Interest Expense”:  for any period, an amount equal to (a) interest
expense (accrued and paid or payable in cash for such period, and in any event
excluding any amortization or write off of financing costs) on Indebtedness of
the Parent Borrower and its consolidated Subsidiaries for such period minus (b) interest
income (accrued and received or receivable in cash for such period) of the
Parent Borrower and its consolidated Subsidiaries for such period, in each case
determined on a consolidated basis in accordance with GAAP; provided
that for purposes of calculating the Consolidated Interest Expense for any
period of four fiscal quarters ending prior to December 31, 2006,
Consolidated Interest Expense for such period of four fiscal quarters shall be
deemed to be (i) in the case of the period ended at the end of the fiscal
quarter ended March 31, 2006, Consolidated Interest Expense for such
fiscal quarter multiplied by 4, (ii) in the case of the period ended at
the end of the fiscal quarter ended June 30, 2006, Consolidated Interest
Expense for the period of two fiscal quarters ended at the end of such fiscal
quarter multiplied by 2 and (iii) in the case of the period ended at the
end of the fiscal quarter ended September 30, 2006 Consolidated Interest
Expense for the period of three fiscal quarters ended at the end of such fiscal
quarter multiplied by 4/3.


 


“Consolidated Interest Expense Ratio”:  as of the last day of any period, the ratio
of (a) EBITDA for such period to (b) Consolidated Interest Expense
(excluding Consolidated Vehicle Interest Expense) for such period.


 


“Consolidated Leverage Ratio”:  as of the last day of any period, the ratio
of (a) Consolidated Indebtedness on such day to (b) EBITDA for such
period.


 


“Consolidated Long Term Debt”:  at the date of determination thereof, all long
term debt of the Parent Borrower and its consolidated Subsidiaries as
determined on a consolidated basis in accordance with GAAP and as disclosed on
the Parent Borrower’s consolidated balance sheet most recently delivered under
subsection 7.1.


 


“Consolidated Net Income”:  for any period, net income of the Parent
Borrower and its consolidated Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.


 


10

















 


“Consolidated Short Term Debt”:  at the date of determination thereof, all
short term debt of the Parent Borrower and its consolidated Subsidiaries as
determined on a consolidated basis in accordance with GAAP and as disclosed on
the Parent Borrower’s consolidated balance sheet most recently delivered under
subsection 7.1.


 


“Consolidated Vehicle Depreciation”:  for
any period, depreciation on all Rental Car Vehicles (after adjustments
thereto), to the extent deducted in calculating Consolidated Net Income for
such period.


 


“Consolidated Vehicle Indebtedness”:  as of any date of determination, the amount
equal to the sum, without duplication, of (a) the aggregate principal
amount of then outstanding Indebtedness of any Special Purpose Subsidiary plus (b) the
aggregate principal amount of then outstanding Foreign Fleet Financing plus (c) the
aggregate principal amount of all other then outstanding Indebtedness of the
Parent Borrower and its Subsidiaries directly or indirectly incurred solely to
finance or refinance the acquisition of, or solely secured by, Rental Car
Vehicles and/or related rights and/or assets plus (d) 90% of the book
value of Rental Car Vehicles (other than (x) Rental Car Vehicles described in
clause (c) above or (y) Rental Car Vehicles securing, or the acquisition
of which is financed or refinanced by, the Foreign Fleet Financing) of the
Parent Borrower and its Subsidiaries (other than Special Purpose Subsidiaries)
(such book value being determined as of the end of the most recently ended
fiscal month of the Parent Borrower for which internal consolidated financial
statements of the Parent Borrower are available, on a pro forma basis including
any Rental Car Vehicles (other than (x) Rental Car Vehicles described in clause
(c) above or (y) Rental Car Vehicles securing, or the acquisition of which
is financed or refinanced by, the Foreign Fleet Financing) acquired by the
Parent Borrower or any Subsidiary (other than any Special Purpose Subsidiary)
since the end of such fiscal month).


 


“Consolidated Vehicle Interest Expense”:
for any period, to the extent included in calculating Consolidated Interest
Expense for such period, the sum, without duplication, of (a) the
aggregate interest expense for such period on Indebtedness of any Special
Purpose Subsidiary plus (b) the aggregate interest expense for such period
on Foreign Fleet Financing, plus (c) the aggregate interest expense for
such period on all other Indebtedness of the Parent Borrower and its
Subsidiaries (other than Special Purpose Subsidiaries) directly or indirectly
incurred solely to finance or refinance the acquisition of, or secured solely
by, Rental Car Vehicles and/or related rights and/or assets plus (d) an
amount of the total interest expense of the Parent Borrower and its
Subsidiaries (other than Special Purpose Subsidiaries) for such period equal to
(i) the Average Interest Rate for such period multiplied by (ii) the
amount equal to (1) 90% of the Average Book Value for such period of
Rental Car Vehicles (other than (x) Rental Car Vehicles described in clause (c) above
or (y) Rental Car Vehicles securing, or the acquisition of which is financed or
refinanced by, the Foreign Fleet Financing) of the Parent Borrower and its
Subsidiaries (other than Special Purpose Subsidiaries).


 


“Consolidated
Working Capital”: at the date of determination
thereof, the aggregate amount of all current assets (excluding cash, Cash
Equivalents and deferred taxes recorded as assets) minus the aggregate amount
of all current liabilities (excluding, without duplication, Indebtedness under
the ABL Facility, Consolidated Current Portion of Long Term Debt, any
Indebtedness described in subsection 8.2(e), any Indebtedness described in
subsection 8.2(v), 


 


11

















 


working
capital debt of Foreign Subsidiaries and deferred taxes recorded as
liabilities), in each case determined on a consolidated basis for the Parent
Borrower and its consolidated Subsidiaries.


 


 “Continuing
Directors”:  the directors of CCMGC
on the Closing Date, after giving effect to the Transactions and the other
transactions contemplated thereby, and each other director if, in each case,
such other director’s nomination for election to the board of directors of
CCMGC is recommended by at least a majority of the then Continuing Directors or
the election of such other director is approved by one or more Permitted
Holders.


 


“Contractual Obligation”:  as to any Person, any provision of any
material security issued by such Person or of any material agreement,
instrument or other undertaking to which such Person is a party or by which it
or any of its property is bound.


 


“Credit Linked Deposit”:  with respect to each Lender, the cash
deposit, if any, made by such Lender pursuant to subsection 3.4(b), as the
same may be (a) reduced from time to time pursuant to subsection 3.2(c) or
4.4(g) or (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 11.6.


 


“Credit Linked Deposit Account”: one
or more operating and/or investment accounts established by the Administrative
Agent that shall be for the purposes set forth in Section 3.4.


 


“Cumulative Excess Cash Flow” means
the sum of Excess Cash Flow (but not less than zero in any period) for the
fiscal year ending on December 31, 2006 and Excess Cash Flow for each
succeeding and completed fiscal year.


 


“DB”: 
DBNY, DBSI and any other Affiliates of DBSI designated by DBSI.


 


“DBNY”:  as defined in the Preamble hereto, in its
individual capacity, and any successor corporation thereto by merger,
consolidation or otherwise.


 


“DBSI”:  Deutsche Bank Securities Inc., in its
individual capacity, and any successor corporation thereto by merger,
consolidation or otherwise.


 


“Debt Financing”:  the debt financing transactions contemplated
under (a) the Loan Documents, (b) the ABL Facility Documents, (c) the
New Notes Indentures, (d) the Special Purpose Financing Documents and (e) the
Foreign Fleet Financing Documents, in each case including any Interest Rate
Protection Agreements related thereto.


 


“Default”:  any of the events specified in Section 9,
whether or not any requirement for the giving of notice (other than, in the
case of subsection 9(e), a Default Notice), the lapse of time, or both, or
any other condition specified in Section 9, has been satisfied.


 


“Default Notice”:  as defined in subsection 9(e).


 


“Defaulting Lender”:  as defined in subsection 4.8(c).


 


12

















 


“Delayed Draw Commitment Fee Rate”:
1.125% per annum.


 


“Delayed
Draw Term Loan”:  a Tranche B Term
Loan made by a Lender to the Parent Borrower after the Closing Date pursuant to
Section 2.5(b).  It is understood
and agreed that the Delayed Draw Term Loans shall be Tranche B Term Loans for
all purposes of this Agreement, unless specifically indicated to the contrary.


 


“Delayed
Draw Term Loan Commitment”:  the
commitment of a Lender to make or otherwise fund a Delayed Draw Term Loan and “Delayed
Draw Term Loan Commitments” means such commitments of all Lenders in the
aggregate.  The amount of each Lender’s
Delayed Draw Term Loan Commitment, if any, is set forth on Schedule A-2
or, in the case of any Lender that is an Assignee, the amount of the assigning
Lender’s Term Loan Commitment assigned to such Assignee pursuant to subsection 11.6(b),
subject to any adjustment or reduction pursuant to the terms and conditions
hereof.  The aggregate amount of the
Delayed Draw Term Loan Commitments as of the Closing Date is $293,000,000.


 


“Delayed
Draw Term Loan Commitment Period”: 
the time period commencing on the Closing Date through and including the
Delayed Draw Term Loan Commitment Termination Date.


 


“Delayed
Draw Term Loan Commitment Exposure”: 
with respect to any Lender, as of any date of determination and at any
time prior to the Delayed Draw Term Loan Commitment Termination Date, the
aggregate unfunded portion of such Lender’s Delayed Draw Term Loan Commitment.


 


“Delayed
Draw Term Loan Commitment Termination Date”:  the earliest to occur of (i) the date
the Delayed Draw Term Loan Commitments are permanently reduced to zero pursuant
to subsection 4.4, (ii) the date of the termination of all of the
Delayed Draw Term Loan Commitments pursuant to Section 9 and (iii) August 15,
2007.


 


“Deposit Account”:  any deposit account (as such term is defined
in Article 9 of the UCC).


 


“Designated Foreign Currency”:  Euro.


 


“Disinterested Director”:  as defined in subsection 8.11.


 


“Disposition”:  as defined in the definition of the term “Asset
Sale” in this subsection 1.1.


 


“Disqualified Capital Stock”:  any Capital Stock which, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, (a) is mandatorily
redeemable in whole or in part prior to the Termination Date, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, (b) is convertible into or
exchangeable (unless at the sole option of the issuer thereof) for (i) Indebtedness
or any Capital Stock referred to in (a) above prior to the Termination
Date, or (c) contains any mandatory repurchase obligation which comes into
effect prior to the Termination Date, provided
that any Capital Stock that would not 


 


13

















 


constitute
Disqualified Capital Stock but for provisions thereof giving holders thereof
(or the holders of any security into or for which such Capital Stock is
convertible, exchangeable or exercisable) the right to require the issuer
thereof to redeem such Capital Stock upon the occurrence of a change in control
or an asset sale shall not constitute Disqualified Capital Stock.


 


“Documentation Agent”:  as defined in the Preamble hereto.


 


“Dollar Equivalent”:  with respect to any amount in respect of any
Letter of Credit denominated in the Designated Foreign Currency at any date of
determination thereof, an amount in Dollars equivalent to such principal amount
or such other amount calculated on the basis of the Spot Rate of Exchange.


 


“Dollars” and “$”:  dollars in lawful currency of the United
States of America.


 


“Dollar Senior Notes”: 8.875% Senior
Notes due 2014 of CCMG Acquisition Corporation (to be merged with the Parent
Borrower on the date hereof) issued on the date hereof, as the same may be
exchanged for substantially similar unsecured senior notes or unsecured senior
subordinated notes, as applicable, that have been registered under the
Securities Act, and as the same or such substantially similar notes may be
amended, supplemented, waived or otherwise modified from time to time in
accordance with subsection 8.14 to the extent applicable.


 


“Domestic Subsidiary”:  any Subsidiary of the Parent Borrower which
is not a Foreign Subsidiary.


 


“EBITDA”:  for any period, the sum of (a) Consolidated
Net Income for such period adjusted (i) to exclude the following items
(without duplication) of income or expense to the extent that such items are
included in the calculation of Consolidated Net Income:  (A) Consolidated Interest Expense (less
Consolidated Vehicle Interest Expense), (B) any non-cash expenses and
charges, (C) total income tax expense, (D) depreciation expense
(other than Consolidated Vehicle Depreciation), (E) the expense associated
with amortization of intangible and other assets (including amortization or
other expense recognition of any costs associated with asset write-ups in
accordance with APB Nos. 16 and 17), (F) non-cash provisions for reserves
for discontinued operations, (G) any extraordinary, unusual or non-recurring
gains or losses or charges or credits, including but not limited to any
expenses relating to the Transactions and any non-recurring or extraordinary
items paid or accrued during such period relating to deferred compensation owed
to any Management Investor that was cancelled, waived or exchanged in
connection with the grant to such Management Investor of the right to receive
or acquire shares of common stock of CCMGC or any Parent Entity, (H) any
gain or loss associated with the sale or write-down of assets (other than
Rental Equipment) not in the ordinary course of business, (I) any income or
loss accounted for by the equity method of accounting (except in the case of
income to the extent of the amount of cash dividends or cash distributions
actually paid to the Parent Borrower or any of its Subsidiaries by the entity
accounted for by the equity method of accounting) and (J) fees paid to any
Sponsor or any Affiliate of any Sponsor for the rendering of management
consulting or financial advisory services for compensation not to exceed in the
aggregate $7,500,000 in any fiscal year and (ii) by reducing EBITDA (as
otherwise determined above) by the amount of all dividends paid by the Parent
Borrower during the 


 


14

















 


relevant period
pursuant to any of clauses (a) and (b) of subsection 8.7 (in
each case, unless and to the extent (x) the amount paid with such dividends by
CCMGC or any Parent Entity would not, if the respective expense or other item
had been incurred directly by the Parent Borrower, have reduced EBITDA
determined in accordance with the foregoing provisions of this definition or
(y) such dividend is paid by the Parent Borrower in respect of an expense or
other item that has resulted in, or will result in, a reduction of EBITDA, as
calculated pursuant to clause (a) above) plus, (b) only
with respect to determining compliance with subsection 8.1 hereof, any
Specified Equity Contribution.  For the
purposes of calculating EBITDA for any period of four consecutive fiscal
quarters (each, a “Reference Period”), (i) if at any time during
such Reference Period (and after the Closing Date) the Parent Borrower or any
of its Subsidiaries (other than any Special Purpose Subsidiary) shall have made
any Material Disposition, the EBITDA for such Reference Period shall be reduced
by an amount equal to the EBITDA (if positive) attributable to the property
that is the subject of such Material Disposition for such Reference Period or
increased by an amount equal to the EBITDA (if negative) attributable thereto
for such Reference Period and (ii) if during such Reference Period (and
after the Closing Date) the Parent Borrower or any of its Subsidiaries (other
than any Special Purpose Subsidiary) shall have made a Material Acquisition,
EBITDA for such Reference Period shall be calculated after giving pro forma
effect thereto in accordance with Regulation S-X or in such other manner
acceptable to the Administrative Agent as if such Material Acquisition occurred
on the first day of such Reference Period. 
As used in this definition, “Material Acquisition” means any
acquisition of property or series of related acquisitions of property that (x)
constitutes assets comprising all or substantially all of an operating unit of
a business or constitutes all or substantially all of the common stock of a
Person and (y) involves the payment of consideration by the Parent Borrower or
any of its Subsidiaries in excess of $5,000,000; and “Material Disposition”
means any Disposition of property or series of related Dispositions of property
that (x) constitutes assets comprising all or substantially all of an operating
unit of a business or constitutes all or substantially all of the common stock
of a Person and (y) yields gross proceeds to the Parent Borrower or any of its
Subsidiaries in excess of $5,000,000; provided that for any applicable
periods prior to the Closing Date EBITDA shall be determined in respect to the
Parent Borrower and its predecessors.


 


“ECF Percentage”:  50%, provided that with respect to any
fiscal year of the Parent Borrower ending on or after December 31, 2006,
the ECF Percentage shall be reduced to 0% if the Consolidated Leverage Ratio as
of the last day of such fiscal year is less than 3.0 to 1.0, so long as no
Default or Event of Default has occurred and is continuing as of such date and
the Parent Borrower shall be in compliance with the financial covenants
contained in subsection 8.1 for the fiscal year then ended.


 


“EMU”: 
Economic and Monetary Union as contemplated in the Treaty.


 


“Environmental Costs”:  any and all costs or expenses (including
attorney’s and consultant’s fees, investigation and laboratory fees, response
costs, court costs and litigation expenses, fines, penalties, damages,
settlement payments, judgments and awards), of whatever kind or nature, known
or unknown, contingent or otherwise, arising out of, or in any way relating to,
any actual or alleged violation of, noncompliance with or liability under any
Environmental Laws.  Environmental Costs
include any and all of the foregoing, without regard to whether they arise out
of or are related to any past, pending or threatened proceeding of any kind.


 


15

















 


“Environmental Laws”:  any and all U.S. or foreign federal, state,
provincial, territorial, foreign, local or municipal laws, rules, orders,
enforceable guidelines, orders-in-council, regulations, statutes, ordinances,
codes, decrees, and such requirements of any Governmental Authority properly
promulgated and having the force and effect of law or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health (as it relates to
exposure to Materials of Environmental Concern) or the environment, as have
been, or now or at any relevant time hereafter are, in effect.


 


“Environmental Permits”:  any and all permits, licenses, registrations,
notifications, exemptions and any other authorization required under any
Environmental Law.


 


“Equipment” means (a) any
Vehicles and (b) any equipment owned by or leased to the Parent Borrower
or any of its Subsidiaries that is revenue earning equipment, or is classified
as “revenue earning equipment” in the consolidated financial statements of the
Parent Borrower, including any such equipment consisting of (i) construction,
industrial, commercial and office equipment, (ii) earthmoving, material
handling, compaction, aerial and electrical equipment, (iii) air
compressors, pumps and small tools, and (iv) other personal property.


 


“Equity Financing”:  as defined in the Recitals hereto.


 


“Equity Financing Documents”:  the Stock Subscription Agreements, each dated
as of December 21, 2005, between CCMG Holdings, Inc., a Delaware
corporation, and the Equity Investors, in each case as the same may be amended,
modified and/or supplemented from time to time in accordance with the terms
thereof.


 


“Equity Investors”:  the
collective reference to (a) the CD&R Investors, the Carlyle Investors,
and the Merrill Lynch Investors, (b) any Person that acquires Voting Stock
of Holdings on or prior to the Closing Date, and any Affiliate of such Person
and (c) any entity that succeeds to all of the rights and obligations of
any of the foregoing by operation of law.


 


“ERISA”:  the Employee Retirement Income Security Act
of 1974, as amended from time to time.


 


“Euro MTNs”:  the Euro Medium-Term Notes of Hertz Finance
Centre plc and/or the Parent Borrower, issued and outstanding on the date
hereof pursuant to the Euro MTN Fiscal Agency Agreement.


 


“Euro MTN Fiscal Agency Agreement”:
the Amended and Restated Fiscal Agency Agreement, dated as of July 16,
2004, among the Parent Borrower, Hertz Finance Centre PLC, JPMorgan Chase Bank
and J.P. Morgan Bank Luxembourg S.A.


 


“Euro MTN Lien”:  the Lien
in favor of the holders and representatives of the Euro MTNs created pursuant
to the Security Documents; provided that the principal amount of
Indebtedness secured thereby (excluding Euro MTNs that have been tendered to
and accepted for payment by Hertz Finance Centre plc and/or the Parent
Borrower) shall be no greater than €10,000,000.


 


16

















 


“Euro MTN Secured Parties”:  the holders and representatives of the
holders of the Euro MTNs.


 


“Euro Senior Notes”:  7.875% Senior Notes due 2014 of CCMG
Acquisition Corporation (to be merged with the Parent Borrower on the date
hereof) issued on the date hereof, as the same may be exchanged for
substantially similar unsecured senior notes or unsecured senior subordinated
notes, as applicable, that have been registered under the Securities Act, and
as the same or such substantially similar notes may be amended, supplemented,
waived or otherwise modified from time to time in accordance with subsection 8.14
to the extent applicable.


 


“Eurocurrency Base Rate”:  with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan, the rate per annum determined by the
Administrative Agent to be the arithmetic mean (rounded to the nearest 1/100th
of 1%) of the offered rates for deposits in Dollars with a term comparable to
such Interest Period that appears on the Telerate British Bankers Assoc.
Interest Settlement Rates Page (as defined below) at approximately 11:00 A.M.,
London time, on the second full Business Day preceding the first day of such
Interest Period; provided, however, that if there shall at any
time no longer exist a Telerate British Bankers Assoc. Interest Settlement
Rates Page, “Eurocurrency Base Rate” shall mean, with respect to each day
during each Interest Period pertaining to a Eurocurrency Loan, the rate per
annum equal to the rate at which DBNY is offered deposits in Dollars at or
about 10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurocurrency market where
the eurocurrency and foreign currency and exchange operations in respect of
Dollars are then being conducted for delivery on the first day of such Interest
Period for the number of days comprised therein and in an amount comparable to
the amount of its Eurocurrency Loan to be outstanding during such Interest
Period.  “Telerate British Bankers
Assoc. Interest Settlement Rates Page” shall mean the display designated as
Page 3750 on the Telerate System (or such other page as may replace
such page on such service for the purpose of displaying the rates at which
Dollar deposits are offered by leading banks in the London interbank deposit
market).


 


“Eurocurrency Loans”:  Loans the rate of interest applicable to which
is based upon the Eurocurrency Rate.


 


“Eurocurrency Rate”:  with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan, a rate per annum determined for such
day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):


 


	
   

  	
  Eurocurrency Base Rate

  	
   

  
	
   

  	
  1.00 -
  Eurocurrency Reserve Requirements

  	
   

  



 


“Eurocurrency Reserve Requirements”:  for any day as applied to a Eurocurrency
Loan, the aggregate (without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including basic,
supplemental, marginal and emergency reserves under any regulations of the
Board or other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed for eurocurrency funding 


 


17

















 


(currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a
member bank of the Federal Reserve System.


 


“Euros” and the designation “€”:  the currency introduced on January 1,
1999 at the start of the third stage of European economic and monetary union
pursuant to the Treaty (expressed in euros).


 


“Event of Default”:  any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.


 


“Excess Additional Senior Notes”: in
the case of an issuance of Additional Senior Notes pursuant to clause (ii) of
the definition thereof where (x) the aggregate principal amount of Additional
Senior Notes necessary to generate the amount of net proceeds referred to in
such definition is less than $100,000,000 and (y) due to the minimum offering
size requirement specified in such clause (ii), $100,000,000 in aggregate
principal amount of Additional Senior Notes is issued, the portion of such
Additional Senior Notes equal in principal amount to the excess of $100,000,000
over the aggregate principal amount referred to in the preceding clause (x).


 


“Excess Cash Flow”:  for any period, EBITDA for such period minus (a) any
Capital Expenditures made in cash during such period (excluding the principal
amount of Indebtedness incurred in connection with such expenditures and any
such expenditures financed with the proceeds of any Reinvested Amount), minus (b) any
principal payments (other than principal payments during such period pursuant
to subsection 4.4(b) or (c) unless and to the extent that the
event giving rise to such mandatory prepayment causes an increase in EBITDA) of
the Term Loans made during such period, minus (c) any principal payments
resulting in a permanent reduction of any other Indebtedness of the Parent
Borrower or any of its consolidated Subsidiaries made during such period, minus
(d) Consolidated Interest Expense for such period, minus (e) any
taxes paid or payable in cash during such period, minus (f) the Net Cash
Proceeds from any Asset Sale to the extent that such Net Cash Proceeds (i) (without
duplication of clause (a) or (g) of this definition) consist of any
Reinvested Amount or are otherwise applied in accordance with subsection 4.4(b) and
(ii) are included in the calculation of EBITDA, minus (g) (without
duplication of clause (a) of this definition) any Investment made in
accordance with subsection 8.9(e), (g), (k) or (q), minus (h) (without
duplication of clause (b) or (c) of this definition) the proceeds of
any Sale and Leaseback Transactions entered into by the Parent Borrower or any
of its Subsidiaries in accordance with subsection 8.12 during such period
in the ordinary course of its business to the extent included in EBITDA, minus (i) to
the extent not otherwise subtracted from EBITDA in this definition of “Excess
Cash Flow”, any cash dividends, and other loans and advances, made during such
period by the Parent Borrower or any of its Subsidiaries to Holdings, so long
as such dividends, loans and advances are expressly permitted by subsection 8.7,
minus (j) to the extent included in EBITDA, the amount of any cash
contributions required by law to be made by the Parent Borrower or any of its
Subsidiaries to any Plan, minus (k) to the extent included in EBITDA, any cash
expenses relating to the Transactions, minus (l) any earnings of a Foreign
Subsidiary included in EBITDA for such period (except to the extent such
earnings are used for any purposes described in clauses (a) through (k)
above) to the extent the terms of any Indebtedness of any Foreign Subsidiary
that is 


 


18

















 


not a Loan Party prohibit
the distribution thereof, plus (m) the Change in Consolidated Working Capital
for such period.


 


“Excess Credit Linked Deposits”:  at any time, the excess, if any, of the Total
Credit Linked Deposit over the aggregate Letter of Credit Exposure at such time


 


“Exchange Act”:  the Securities Exchange Act of 1934, as
amended from time to time.


 


“Excluded Properties”:  the collective reference to the fee or
leasehold interest in real properties owned by the Parent Borrower or any of
its Subsidiaries not described in Part I of Schedule 5.8.


 


“Existing Letter of Credit” shall mean
each letter of credit issued prior to, and outstanding on, the Closing Date and
listed on Schedule D.


 


“Existing Notes”:  the collective reference to (a) the
9.000% Senior Notes due 2009 of the Hertz Corporation, issued under the
Indenture between The Hertz Corporation and Manufacturers Hanover Trust
Company, as Trustee, dated as of April 1, 1986, (b) the 6.500% Senior
Notes due May 15, 2006, the 6.300% Senior Notes due November 15, 2006,
the 7.625% Senior Notes due August 15, 2007, the 6.625% Senior Notes due May 15,
2008 and the 6.250% Senior Notes due March 15, 2009 of the Hertz
Corporation, in each case issued under the Indenture between The Hertz
Corporation and First Fidelity Bank, National Association, as Trustee, dated as
of December 1, 1994, (c) the 4.700% Senior Notes due October 2,
2006 and the Floating Rate Senior Notes due August 5, 2008 of The Hertz
Corporation, issued under the Indenture between The Hertz Corporation and The
Bank of New York, as Trustee, dated as of March 16, 2001 and (d) the
Euro MTNs, in each case not tendered pursuant to the Tender Offers.


 


“Existing Notes Indentures”:  the collective reference to (a) the
Indenture between The Hertz Corporation and Manufacturers Hanover Trust
Company, as Trustee, dated as of April 1, 1986, (b) the Indenture
between The Hertz Corporation and First Fidelity Bank, National Association, as
Trustee, dated as of December 1, 1994 and (c) the Indenture between
The Hertz Corporation and The Bank of New York, as Trustee, dated as of March 16,
2001, in each case governing the applicable Existing Notes, as the same may be
amended, supplemented waived or otherwise modified from time to time in
accordance with subsection 8.14 to the extent applicable.


 


“Extension of Credit”:  as to any Lender, the making of, or, in the
case of subsection 3.4(b)(ii), participation in, a Loan by such Lender or
the issuance of, or participation in, a Letter of Credit by such Lender.


 


“Facility”:  each of (a) the Term Loan Commitments
and the Term Loans made thereunder and (b) the Letter of Credit
Commitments and the Credit Linked Deposits funded made thereunder.


 


“Federal Funds Effective Rate”:  as defined in the definition of the term “ABR”
in this subsection 1.1.


 


19

















 


“Financing Disposition”:  any Disposition, or incurrence of any Lien
on, property or assets by the Parent Borrower or any Subsidiary thereof to or
in favor of any Special Purpose Entity, or by any Special Purpose Subsidiary,
in each case in connection with the incurrence by a Special Purpose Entity of
Indebtedness, or obligations to make payments to the obligor on Indebtedness,
which may be secured by a Lien in respect of such property or assets.


 


“Financing Documentation”:  the Loan Documents, the ABL Facility
Documents, the New Notes Indentures, the Special Purpose Financing Documents
and the Foreign Fleet Financing Documents, if any, in each case including any
Interest Rate Protection Agreements related thereto.


 


“Financing Lease”:  any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.


 


“FIRREA”:  the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, as amended from time to time.


 


“first priority” means, with respect
to any Lien purported to be created in any Collateral pursuant to any Security
Document, that such Lien is the most senior Lien to which such Collateral is
subject (subject to Permitted Liens, including the Euro MTN Lien).


 


“Fiscal Year”:  any period of twelve consecutive months
ending on December 31 of any calendar year.


 


“Foreign Backstop Letters of Credit”:  any Standby Letter of Credit issued to any
Person for the account of the Parent Borrower to provide credit support for
Indebtedness of any Foreign Subsidiary to such Person which is permitted under
subsection 8.2.


 


“Foreign Borrowing Base”: the sum of (1) 60%
of the book value of goods (excluding Equipment) held for sale, lease or use by
a Person in the ordinary course of business, net of any reserve for goods that
have been segregated by such Person to be returned to the applicable vendor for
credit, as determined in accordance with GAAP, of Foreign Subsidiaries, (2) 85%
of the book value of receivables of Foreign Subsidiaries, (3) 90% of the
book value of Equipment of Foreign Subsidiaries and (4) cash and Cash
Equivalents of Foreign Subsidiaries (in each case, determined as of the end of
the most recently ended fiscal month of the Parent Borrower for which internal
consolidated financial statements of the Parent Borrower are available, and, on
a pro forma basis including (x) any property or assets of a type described
above acquired since the end of such fiscal month and (y) any property or
assets of a type described above being acquired in connection therewith.


 


“Foreign Fleet Financing”:  as defined in subsection 8.2.


 


“Foreign Fleet Financing Documents”:
any documents pursuant to which any Foreign Fleet Financings (including the
Foreign Fleet Bridge Financing) are consummated


 


“Foreign Fleet Bridge Financing”: as
defined in the Recitals hereto.


 


20

















 


“Foreign Pension Plan”:  a registered pension plan which is subject to
applicable pension legislation other than ERISA or the Code, which a Subsidiary
sponsors or maintains, or to which it makes or is obligated to make
contributions.


 


“Foreign Plan”:  each Foreign Pension Plan, deferred compensation
or other retirement or superannuation plan, fund, program, agreement,
commitment or arrangement whether oral or written, funded or unfunded,
sponsored, established, maintained or contributed to, or required to be
contributed to, or with respect to which any liability is borne, outside the
United States of America, by the Parent Borrower or any of its Subsidiaries,
other than any such plan, fund, program, agreement or arrangement sponsored by
a Governmental Authority.


 


“Foreign Subsidiary”:  any Subsidiary of the Parent Borrower which
is organized and existing under the laws of any jurisdiction outside of the
United States of America or that is a Foreign Subsidiary Holdco.  For the avoidance of doubt, any Subsidiary of
the Parent Borrower which is organized and existing under the laws of Puerto
Rico shall be a Foreign Subsidiary.


 


“Foreign Subsidiary Holdco”:  any Subsidiary of the Parent Borrower, so
long as such Subsidiary has no material assets other than securities of one or
more Foreign Subsidiaries and Indebtedness issued by such Foreign Subsidiaries
(or Subsidiaries thereof), and other assets relating to an ownership interest
in any such securities, Indebtedness or Subsidiaries.  As of the Closing Date, each of Hertz
International Ltd. and CCMG HERC Sub, Inc. are Foreign Subsidiary Holdcos.


 


“GAAP”:  with respect to subsection 4.4(c) and
the covenants contained in subsections 8.1, 8.2 and 8.8 and all defined terms
relating thereto, generally accepted accounting principles in the United States
of America in effect on the Closing Date, and, for all other purposes under
this Agreement, generally accepted accounting principles in the United States
of America in effect from time to time.


 


“Goldman”:  Goldman, Sachs & Co., GSCP and any
other Affiliate of GSCP designed by GSCP.


 


“Governmental Authority”:  any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, including the European Union.


 


“GSCP”:  Goldman Sachs Credit Partners L.P.


 


“Guarantee and Collateral Agreement”:  the Guarantee and Collateral Agreement
delivered to the Collateral Agent as of the date hereof, substantially in the
form of Exhibit B, as the same may be amended, supplemented, waived or
otherwise modified from time to time.


 


“Guarantee Obligation”:  as to any Person (the “guaranteeing person”),
any obligation of (a) the guaranteeing person or (b) another Person
(including any bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the “primary
obligations”) of any other third Person (the “primary obligor”) in
any manner, whether directly or indirectly, 


 


21

















 


including any such
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (A) for
the purchase or payment of any such primary obligation or (B) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or
hold harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business.  The amount
of any Guarantee Obligation of any guaranteeing person shall be deemed to be
the lower of (a) an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Guarantee Obligation is made
and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or determinable, in which
case the amount of such Guarantee Obligation shall be such guaranteeing person’s
maximum reasonably anticipated liability in respect thereof as determined by
the Parent Borrower in good faith.


 


“Guarantors”:  the collective reference to CCMGC and each
Domestic Subsidiary of the Parent Borrower other than (a) any Domestic
Subsidiary of a Foreign Subsidiary, (b) any Special Purpose Subsidiary, (c) Navigations
Solutions and (d) Hertz Vehicle Sales Corporation, which is from time to
time party to the Guarantee and Collateral Agreement; individually, a “Guarantor”.


 


“Hawaiian Vehicles”: Rental Car
Vehicles the title to which is evidenced by a certificate of title issued by
the State of Hawaii or any department or agency thereof.


 


“HERC”:  Hertz Equipment Rental Corporation, together
with its successors and assigns.


 


“HERC Capital Expenditures”:  with
respect to any Person for any period, (a) the sum of the aggregate of all
expenditures for purchased Rental Equipment by such Person and its consolidated
Subsidiaries during such period which, in accordance with GAAP, are or should
be included in “capital expenditures” net of (b) all amounts arising from
Dispositions by such Person of Rental Equipment during such period.


 


“HERC LKE Account”:  any
deposit account (i) maintained by, for the benefit of, or under the
control of the “qualified intermediary” in connection with the HERC LKE Program
and (ii) which holds solely funds relating to the HERC LKE Program.


 


 “HERC
LKE Program”:  a “like-kind-exchange
program” with respect to certain of the Equipment and/or Vehicles of the Parent
Borrower and its Subsidiaries used in the equipment rental business, under
which such Equipment and/or Vehicles will be Disposed from time to time and
proceeds of such Dispositions will be held in a HERC LKE Account and used to
acquire replacement Equipment and/or Vehicles and/or repay indebtedness secured
by such 


 


22

















 


Equipment and/or
Vehicles, in a series of transactions intended to qualify as a “like-kind-exchange”
within the meaning of the Code.


 


“Holdings”:  as defined in the Recitals hereto.


 


“Indebtedness”:  of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced
by a note, bond, debenture or similar instrument, (c) all obligations of
such Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person, (e) for
purposes of subsection 8.2 and subsection 9(e) only, all
obligations of such Person in respect of interest rate protection agreements,
interest rate futures, interest rate options, interest rate caps and any other
interest rate hedge arrangements, and (f) all indebtedness or obligations
of the types referred to in the preceding clauses (a) through (e) to
the extent secured by any Lien on any property owned by such Person even though
such Person has not assumed or otherwise become liable for the payment thereof.


 


“Indenture Amendments”:  the amendments to the terms of the Existing
Notes Indentures in order to remove or amend certain provisions contained
therein, to be effective on the Closing Date.


 


“Indentures”:  the Existing Notes Indentures and the New
Notes Indentures.


 


“Individual Lender Exposure”:  as to any Lender, the sum of such Lender’s
Term Loan Exposure, Letter of Credit Exposure and Excess Credit Linked
Deposits.


 


“Insolvency”:  with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245
of ERISA.


 


“Insolvent”:  pertaining to a condition of Insolvency.


 


“Insured Fee Properties”:  the collective reference to the real
properties owned in fee by the Loan Parties described on Part I(a) of
Schedule 5.8, including without limitation, all buildings, improvements,
structures and fixtures now or subsequently located thereon and owned by any
such Loan Party.


 


“Intellectual Property”:  as defined in subsection 5.9.


 


“Intercompany Transaction Documents”:  the promissory notes evidencing the
intercompany loans identified on Schedule 6.1(d), in each case as the same
may be amended, modified or supplemented from time to time in accordance with
the terms hereof and thereof.


 


“Intercompany Transactions”:  has the meaning provided in subsection 6.1(d).


 


“Intercreditor Agreement”:  the Intercreditor Agreement dated as of the
date hereof among the Administrative Agent, the Collateral Agent and the
administrative agent and the collateral agent under the ABL Facility, and
acknowledged by certain of the Loan Parties, as 


 


23

















 


the same may be
amended, modified and/or supplemented from time to time in accordance with the
terms thereof.


 


“Interest Payment Date”:  (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such Loan is
outstanding, and the final maturity date of such Loan, (b) as to any
Eurocurrency Loan having an Interest Period of three months or less, the last
day of such Interest Period, and (c) as to any Eurocurrency Loan having an
Interest Period longer than three months, (i) each day which is three
months, or a whole multiple thereof, after the first day of such Interest
Period and (ii) the last day of such Interest Period.


 


“Interest Period”:  (a)  with respect to any Eurocurrency
Loan:


 


(i)            initially, the period commencing on
the borrowing or conversion date, as the case may be, with respect to such
Eurocurrency Loan and ending one, two, three or six months (or, if required
pursuant to subsection 2.5(a), one week) thereafter, as selected by the
Parent Borrower in its notice of borrowing or notice of conversion, as the case
may be, given with respect thereto; and


 


(ii)           thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to such
Eurocurrency Loan and ending one, two, three or six months (or, if required
pursuant to subsection 2.5(a), one week) thereafter, as selected by the
Parent Borrower by irrevocable notice to the Administrative Agent not less than
three Business Days prior to the last day of the then current Interest Period
with respect thereto; and


 


(b)  with respect to any Credit Linked Deposit (i) during the
period prior to December 31, 2005, the period commencing on the date such
Credit Linked Deposit is initially funded and ending on December 31, 2005,
and (ii) at any time after December 31, 2005, each period commencing
on December 31, 2005 or on the last day of the preceding Interest Period
applicable thereto, as the case may be, and ending on the numerically
corresponding day in the calendar month that is three months thereafter; provided
that a single Interest Period shall at all times apply to all Credit Linked
Deposits;


 


provided that all of
the foregoing provisions relating to Interest Periods are subject to the
following:


 


(A)  if
any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Business Day;


 


(B)  any
Interest Period that would otherwise extend beyond the Termination Date shall
(for all purposes other than subsection 4.12) end on the Termination Date;


 


(C)  any
Interest Period that begins on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in the calendar 


 


24

















 


month at the
end of such Interest Period) shall end on the last Business Day of a calendar
month; and


 


(D)  the
Parent Borrower shall select Interest Periods so as not to require a scheduled
payment of any Eurocurrency Loan during an Interest Period for such Loan.


 


“Interest Rate Protection Agreement”:  any interest rate protection agreement,
interest rate future, interest rate option, interest rate cap or collar or
other interest rate hedge arrangement in form and substance, and for a term,
reasonably satisfactory to the Administrative Agent, to or under which the
Parent Borrower or any of its Subsidiaries is or becomes a party or a
beneficiary.


 


“Investment Company Act”:  the Investment Company Act of 1940, as amended
from time to time.


 


“Investments”:  as defined in subsection 8.9.


 


“Issuing Lender”:  (a) any Lender, which at the request of
the Parent Borrower and with the consent of the Administrative Agent, agrees,
in such Lender’s sole discretion, to become an Issuing Lender for the purpose
of issuing Letters of Credit and (b) in respect of each Existing Letter of
Credit, the issuer thereof; provided that any issuer of an Existing
Letter of Credit that does not also have a Commitment under this Agreement shall
be an Issuing Lender with respect to such Existing Letter of Credit, Loan or
Credit Linked Deposit only, shall not be a Lender hereunder and shall not be
obligated or entitled to issue any other Letter of Credit under this Agreement.


 


“JPMCB”:  JPMorgan Chase Bank, N.A.


 


“JPMorgan”:  JPMCB, J.P. Morgan Securities Inc. and any
other Affiliate of JPMCB designed by JPMCB.


 


“L/C Fee Payment Date”:  with respect to any Letter of Credit, the
last day of each March, June, September and December to occur after
the date of issuance thereof to and including the first such day to occur on or
after the date of expiry thereof; provided that if any L/C Fee Payment
Date would otherwise occur on a day that is not a Business Day, such L/C Fee
Payment Date shall be the immediately preceding Business Day.


 


“L/C Fees”:  as defined in subsection 4.5(b).


 


“L/C Obligations”:  at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit (including in the case of outstanding Letters of Credit in the
Designated Foreign Currency, the Dollar Equivalent of the aggregate then
undrawn and unexpired amount thereof) and (b) the aggregate amount of
drawings under Letters of Credit which have not then been reimbursed pursuant
to subsection 3.5(a) (including in the case of Letters of Credit in
the Designated Foreign Currency, the Dollar Equivalent of the unreimbursed
aggregate amount of drawings thereunder, to the extent that such amount has not
been converted into Dollars in accordance with subsection 3.5(a)).


 


25

















 


“L/C Participation”:  as defined in Section 3.4(a).


 


“L/C Participants”:  each Lender having a Letter of Credit
Commitment or a Credit Linked Deposit.


 


“L/C Request”:  a letter of credit request in the form of Exhibit H
attached hereto or, in such form as the applicable Issuing Lender may specify
from time to time, requesting such Issuing Lender to issue a Letter of Credit.


 


“LBI”: 
Lehman Brothers Inc.


 


“LCPI”:  as defined in the Preamble hereto, in its
individual capacity, and any successor corporation thereto by merger,
consolidation or otherwise.


 


“Late-Tendered Bonds”:  Any Existing Notes validly tendered under the
Tender Offers after 5:00 p.m. (EST) on December 14, 2005 and prior to
the applicable expiration date and time under the Tender Offers.


 


“Lead Arrangers”:  DBSI, LBI and Merrill, as Joint Lead
Arrangers and Joint Bookrunners.


 


“Lehman Brothers”:  LCPI, LBI and any other Affiliate of LBI
designated by LBI.


 


“Lenders”:  the several banks and other financial
institutions from time to time parties to this Agreement together with, in each
case, any affiliate of any such bank or financial institution through which
such bank or financial institution elects, by notice to the Administrative
Agent and the Parent Borrower, to make any Loans or Letters of Credit available
to the Parent Borrower or to fund any Credit Linked Deposit, provided
that for all purposes of voting or consenting with respect to (a) any amendment,
supplementation or modification of any Loan Document, (b) any waiver of
any of the requirements of any Loan Document or any Default or Event of Default
and its consequences or (c) any other matter as to which a Lender may vote
or consent pursuant to subsection 11.1 hereof, the bank or financial
institution making such election shall be deemed the “Lender” rather than such
affiliate, which shall not be entitled to so vote or consent.


 


“Letters of Credit” or “L/Cs”:  the Letters of Credit issued by any Issuing
Lender pursuant to subsection 3.1 (including Existing Letters of Credit).


 


“Letter of Credit Commitment”:  the commitment of a Lender to make or
otherwise fund a Credit Linked Deposit and “Letter of Credit Commitments”
means such commitments of all Lenders in the aggregate.  The amount of each Lender’s Letter of Credit
Commitment, if any, is set forth on Appendix A-3 or in the applicable
Assignment and Acceptance, subject to any adjustment or reduction pursuant to
the terms and conditions hereof.  The
aggregate amount of the Letter of Credit Commitments as of the Closing Date is
$250,000,000.


 


26

















 


“Letter of Credit Commitment Period”:  the period from the Closing Date to but
excluding the Letter of Credit Termination Date.


 


“Letter of Credit Exposure”:  with respect to any Lender, at any time, the
sum of (a) the amount of any Unpaid Drawings in respect of which payments
from such Lender’s Credit Linked Deposit have been made (or were required to be
made) to the applicable Issuing Lender pursuant to Section 3.2(c) at
such time and (b) such Lender’s Letter of Credit Percentage of the L/C
Obligations at such time (excluding the portion thereof consisting of Unpaid
Drawings in respect of which payments from such Lender’s Credit Linked Deposit
have been made (or were required to be made) to such Issuing Lender pursuant to
Section 3.2(c)).


 


“Letter of Credit Percentage”:  as to any L/C Participant at any time, the
percentage which (a) such Lender’s unused Letter of Credit Commitment and
Credit Linked Deposit then outstanding constitutes of (b) the aggregate
unused Letter of Credit Commitments and Total Credit Linked Deposit then
outstanding.


 


“Letter of Credit Termination Date”:  the earliest to occur of (i) December 21,
2005, if the Term Loans are not made on or before that date; (ii) December 21,
2012; (iii) the date on which the L/C Obligations have been reduced to
zero pursuant to Section 4.4(g) and all Credit Linked Deposits have
been returned to the applicable Lenders; and (iv) the date of the
termination of the Letter of Credit Commitments pursuant to Section 9.


 


“Lien”:  any mortgage, pledge, hypothecation,
assignment, security deposit arrangement, encumbrance, lien (statutory or
other), charge or other security interest or any preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation , any conditional sale or other title retention
agreement and any Financing Lease having substantially the same economic effect
as any of the foregoing).


 


“Loan”:  a Term Loan; collectively, the “Loans”.


 


“Loan Documents”:  this Agreement, any Notes, the L/C Requests,
the Intercreditor Agreement, the Guarantee and Collateral Agreement and any other
Security Documents, each as amended, supplemented, waived or otherwise modified
from time to time.


 


“Loan Parties”:  CCMGC, the Parent Borrower and each
Subsidiary of the Parent Borrower that is a party to a Loan Document;
individually, a “Loan Party”.  For the
avoidance of doubt, no Special Purpose Subsidiary shall be a Loan Party.


 


“Long-Dated Bonds”: Existing Notes
maturing in 2008 and thereafter.


 


“Management Investors”:  the collective reference to the officers,
directors, employees and other members of the management of CCMGC, the Parent
Borrower or any of their Subsidiaries, or family members or relatives thereof
or trusts for the benefit of any of the foregoing, who at any particular date
shall beneficially own or have the right to acquire, directly or indirectly,
common stock of CCMGC or any Parent Entity.


 


“Management Subscription Agreements”:  one or more stock subscription, stock option,
grant or other agreements which have been or may be entered into between CCMGC
or 


 


27

















 


any Parent Entity and
one or more Management Investors (or any of their heirs, successors, assigns,
legal representatives or estates), with respect to the issuance to and/or
acquisition, ownership and/or disposition by any of such parties of common
stock of CCMGC or any Parent Entity, or options, warrants, units or other
rights in respect of common stock of CCMGC or any Parent Entity, any agreements
entered into from time to time by transferees of any such stock, options, warrants
or other rights in connection with the sale, transfer or reissuance thereof,
and any assumptions of any of the foregoing by third parties, as amended,
supplemented, waived or otherwise modified from time to time.


 


“Material Adverse Effect”:  a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
Parent Borrower and its Subsidiaries taken as a whole or (b) the validity
or enforceability as to any Loan Party thereto of this Agreement or any of the
other Loan Documents or the rights or remedies of the Administrative Agent, the
Collateral Agent and the Lenders under the Loan Documents taken as a whole.


 


“Material Subsidiaries”:  Subsidiaries of the Parent Borrower
constituting, individually or in the aggregate (as if such Subsidiaries
constituted a single Subsidiary), a “significant subsidiary” in accordance with
Rule 1-02 under Regulation S-X.


 


“Material Vehicle Lease Obligation”
any lease by any Special Purpose Subsidiary to the Parent Borrower or any of
its Subsidiaries (other than any Special Purpose Subsidiary) of Rental Car
Vehicles the aggregate net book value of which exceeds $80,000,000, entered
into in connection with any Special Purpose Financing.


 


“Materials of Environmental Concern”:  any hazardous or toxic substances or
materials or wastes defined, listed, or regulated as such in or under, or which
may give rise to liability under, any applicable Environmental Law, including
gasoline, petroleum (including crude oil or any fraction thereof), petroleum
products or by-products, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.


 


“Merger”:  as defined in the Recitals hereto.


 


“Merrill”:  as defined in the Recitals hereto.


 


“Merrill Lynch Investors”:  the collective reference to (i) ML
Global Private Equity Fund, L.P., a Cayman Islands exempted limited
partnership, or any successor thereto, (ii) Merrill Lynch Ventures L.P.
2001, a Delaware limited partnership, or any successor thereto, (iii) CMC-Hertz
Partners, L.P., a Delaware limited partnership, or any successor thereto, (iv) ML
Hertz Co-Investor, L.P., a Delaware limited partnership, or any successor
thereto, (v) any Affiliate of any thereof, and (vi) any successor in
interest to any thereof.


 


“MLCC”:  Merrill Lynch Capital Corporation.


 


“MLGP”:  as defined in the Recitals hereto.


 


“Moody’s”:  as defined in the definition of “Cash
Equivalents” in this subsection 1.1.


 


28

















 


“Mortgaged Fee Properties”:  the collective reference to the real
properties owned in fee by the Loan Parties described on Part I(b) of
Schedule 5.8, including all buildings, improvements, structures and
fixtures now or subsequently located thereon and owned by any such Loan Party.


 


“Mortgaged Properties”:  the collective reference to each of the
Insured Fee Properties and the Mortgaged Fee Properties.


 


“Mortgages”:  each of the mortgages and deeds of trust, if
any, executed and delivered by any Loan Party to the Administrative Agent,
substantially in the form of Exhibit C, as the same may be amended,
supplemented, waived or otherwise modified from time to time.


 


“Multiemployer Plan”:  a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.


 


“Navigations Solutions”:  Navigation Solutions, LLC, a Delaware limited
liability company.


 


“Net Cash Proceeds”:  with respect to any Asset Sale (including any
Sale and Leaseback Transaction), any Recovery Event, or the issuance of any
debt securities or any borrowings by the Parent Borrower or any of its Subsidiaries
(other than issuances and borrowings permitted pursuant to subsection 8.2,
except as otherwise specified), an amount equal to the gross proceeds in cash
and Cash Equivalents of such Asset Sale, Recovery Event, sale, issuance or
borrowing, net of (a) reasonable attorneys’ fees, accountants’ fees,
brokerage, consultant and other customary fees, underwriting commissions and
other reasonable fees and expenses actually incurred in connection with such
Asset Sale, Recovery Event, sale, issuance or borrowing, (b) taxes paid or
reasonably estimated to be payable as a result thereof, (c) appropriate
amounts provided or to be provided by the Parent Borrower or any of its
Subsidiaries as a reserve, in accordance with GAAP, with respect to any
liabilities associated with such Asset Sale or Recovery Event and retained by
the Parent Borrower or any such Subsidiary after such Asset Sale or Recovery
Event and other appropriate amounts to be used by the Parent Borrower or any of
its Subsidiaries to discharge or pay on a current basis any other liabilities
associated with such Asset Sale or Recovery Event, (d) in the case of a
sale, Recovery Event or Sale and Leaseback Transaction of or involving an asset
subject to a Lien securing any Indebtedness, payments made and installment
payments required to be made to repay such Indebtedness, including payments in
respect of principal, interest and prepayment premiums and penalties, (e) in
the case of a sale, Recovery Event or Sale and Leaseback Transaction of or
involving an asset of any Foreign Subsidiary that is not a Loan Party, any
amount which may not be applied as provided in subsection 4.4(b) pursuant
to any applicable restrictions under the terms of any Indebtedness of any
Foreign Subsidiary that is not a Loan Party and (f) in the case of any
Asset Sale, any portion of the proceeds thereof attributable to the Disposition
of revenue earning equipment as part of such Asset Sale.


 


“New Notes”:  the Dollar Senior Notes, the Euro Senior
Notes, the Senior Subordinated Notes and the Additional Senior Notes.


 


29

















 


“New Notes Indentures”:  the Indentures dated as of the date hereof
under which the New Notes are issued, as the same may be amended, supplemented
waived or otherwise modified from time to time in accordance with subsection 8.14
to the extent applicable.


 


“New Notes Offering”:  as defined in the Recitals.


 


“New Term Loan”:  as defined in subsection 3.2(c).  It is understood and agreed that the New Term
Loans shall be Tranche B Term Loans for all purposes of this Agreement, unless
specifically indicated to the contrary.


 


“New Term Loan Exposure”: as to any
Lender, the amount of any unpaid New Term Loan deemed made by the Parent
Borrower pursuant to subsection 3.2(c).


 


“New Term Loan Note”: any Note
evidencing Indebtedness issued as a New Term Loan.


 


“Non-Excluded Taxes”:  as defined in subsection 4.11.


 


“Non-Defaulting Lender”:  Any Lender other than a Defaulting Lender.


 


“Not Otherwise Applied” means, with
reference to any amount of Excess Cash Flow, that such amount (a) was not
required to be applied to prepay the Loans pursuant to subsection 4.4(c),
and (b) was not previously applied in determining the permissibility of a
transaction under the Loan Documents where such permissibility was (or may have
been) contingent on receipt of such amount or utilization of such amount for a
specified purpose.  The Parent Borrower
shall promptly notify the Administrative Agent of any application of such
amount as contemplated by (b) above.


 


“Notes”:  the Term Loan Notes.


 


“Obligor”:  any purchaser of goods or services or other
Person obligated to make payment to the Parent Borrower or any of its
Subsidiaries (other than any Subsidiary that is not a Loan Party) in respect of
a purchase of such goods or services.


 


“Other Representatives”:  each of DBSI, in its capacity as joint
bookrunner and joint lead arranger of the Commitments hereunder, LBI, in its
capacity as joint bookrunner and joint lead arranger of the Commitments
hereunder, Merrill, in its capacity as joint bookrunner and joint lead arranger
of the Commitments hereunder, LCPI, in its capacity as the Syndication Agent,
Merrill, in its capacity as a Documentation Agent, Goldman, Sachs &
Co., in its capacity as a joint bookrunning manager, and J.P. Morgan Securities
Inc. in its capacity as a joint bookrunning manager each in its capacity as
such.


 


“Parent Borrower”:  as defined in the Preamble hereto.


 


“Parent Entity”:  any of Holdings, and any other Person that is
a Subsidiary of Holdings and of which CCMGC is a subsidiary.


 


30

















 


“Parent Entity Expenses”:  expenses, taxes and other amounts incurred or
payable by any Parent Entity in respect of which the Parent Borrower is
permitted to make Restricted Payments pursuant to subsection 8.7.


 


“Participants”:  as defined in subsection 11.6(c).


 


“Participating Member State”:  each state so described in any EMU
legislation.


 


“PBGC”:  the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (or any successor
thereto).


 


“Permitted Cure Securities”:  common equity securities of CCMGC or any
Parent Entity, or other equity securities of CCMGC or any Parent Entity that do
not constitute Disqualified Capital Stock.


 


“Permitted Hedging Arrangement”:  as defined in subsection 8.18.


 


“Permitted Holders”:  (a) any
of the Equity Investors, Management Investors, CD&R, Carlyle, MLGP and any
of their respective Affiliates; (b) any investment fund or vehicle
managed, sponsored or advised by CD&R, Carlyle, MLGP or any Affiliate
thereof, and any Affiliate of or successor to any such investment fund or
vehicle; (c) any limited or general partners of, or other investors in,
any CD&R Investor, Carlyle Investor or Merrill Lynch Investor or any
Affiliate thereof, or any such investment fund or vehicle and (d) any
Person acting in the capacity of an underwriter in connection with a public or
private offering of Capital Stock of CCMGC or any Parent Entity.


 


“Permitted Liens”:  as defined in subsection 8.3.


 


“Person”:  an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.


 


“Plan”:  at a particular time, any employee benefit
plan which is covered by ERISA and in respect of which the Parent Borrower or a
Commonly Controlled Entity is an “employer” as defined in Section 3(5) of
ERISA.


 


“Prime Rate”:  as defined in the definition of the term “ABR”
in this subsection 1.1.


 


“Pro Forma Date”:  as defined in subsection 5.1(b).


 


“Pro Forma Financial Statements”:  as defined in subsection 5.1(b).


 


“Public Facility”:  (i) any
airport; marine port; rail, subway, bus or other transit stop, station or
terminal; stadium; convention center; or military camp, fort, post or base or (ii) any
other facility owned or operated by any nation or government or political
subdivision thereof, or agency, authority or other instrumentality of any
thereof, or other entity exercising regulatory, administrative or other
functions of or pertaining to government, or any organization 


 


31

















 


of nations (including
the United Nations, the European Union and the North Atlantic Treaty
Organization).


 


“Public Facility Operator”:  a
Person that grants or has the power to grant a Vehicle Rental Concession.


 


“Recovery Event”:  any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Parent Borrower or any of its Subsidiaries (other
than Special Purpose Subsidiaries) giving rise to Net Cash Proceeds to the
Parent Borrower or such Subsidiary (other than Special Purpose Subsidiaries),
as the case may be, in excess of $10,000,000, to the extent that such
settlement or payment does not constitute reimbursement or compensation for
amounts previously paid by the Parent Borrower or any of its Subsidiaries
(other than Special Purpose Subsidiaries) in respect of such casualty or
condemnation.


 


“Refinance”:  with respect to any then outstanding
Indebtedness, the issuance of Indebtedness issued or given in exchange for, or
the proceeds of which are used to, extend, refinance, renew, replace,
substitute or refund such theretofore outstanding Indebtedness.


 


“Register”:  as defined in subsection 11.6(b).


 


“Regulation S-X”:  Regulation S-X promulgated by the Securities
and Exchange Commission, as in effect on the Closing Date.


 


“Regulation T”:  Regulation T of the Board as in effect from
time to time.


 


“Regulation U”:  Regulation U of the Board as in effect from
time to time.


 


“Regulation X”:  Regulation X of the Board as in effect from
time to time.


 


“Reimbursement Amount”:  any amount drawn under a Letter of Credit issued
hereunder which may be reimbursed by the Parent Borrower.


 


“Reinvested Amount”:  with respect to any Asset Sale permitted by
subsection 8.6(h) or Recovery Event, that portion of the Net Cash
Proceeds thereof (which portion shall not exceed, with respect to any Asset
Sale occurring on or after the Closing Date (but not any Recovery Event),
$125,000,000 minus the aggregate Reinvested Amounts with respect to all such
Asset Sales on or after the Closing Date) as shall, according to a certificate
of a Responsible Officer of the Parent Borrower delivered to the Administrative
Agent within 30 days of such Asset Sale or Recovery Event, be reinvested in the
business of the Parent Borrower and its Subsidiaries in a manner consistent
with the requirements of subsection 8.17 and the other provisions hereof
within 180 days of the receipt of such Net Cash Proceeds with respect to any
such Asset Sale or Recovery Event or, if such reinvestment is in a project
authorized by the board of directors of the Parent Borrower that will take
longer than such 180 days to complete, the period of time necessary to complete
such project; provided that if any such certificate of a Responsible
Officer is not delivered to the Administrative Agent on the date of such Asset
Sale or Recovery Event, subject to the terms of the Intercreditor Agreement,
any Net Cash Proceeds of such Asset Sale or Recovery Event shall be immediately
deposited in a cash collateral account 


 


32

















 


established at DBNY or
to be held as collateral in favor of the Administrative Agent as applicable,
for the benefit of the Lenders on terms reasonably satisfactory to the
Administrative Agent, and shall remain on deposit in such cash collateral
account until such certificate of a Responsible Officer is delivered to the
Administrative Agent.


 


“Related Taxes”: (x) any taxes, charges or
assessments, including but not limited to sales, use, transfer, rental, ad
valorem, value-added, stamp, property, consumption, franchise, license,
capital, net worth, gross receipts, excise, occupancy, intangibles or similar
taxes, charges or assessments (other than federal, state or local taxes
measured by income and federal, state or local withholding imposed by any
government or other taxing authority on payments made by CCMGC or any Parent
Entity other than to CCMGC or another Parent Entity), required to be paid by
CCMGC or any Parent Entity by virtue of its being incorporated or having
Capital Stock outstanding (but not by virtue of owning stock or other equity
interests of any corporation or other entity other than the Parent Borrower,
any of its Subsidiaries, CCMGC or any Parent Entity), or being a holding
company parent of the Parent Borrower, any of its Subsidiaries, CCMGC or any
Parent Entity or receiving dividends from or other distributions in respect of
the Capital Stock of the Parent Borrower, any of its Subsidiaries, CCMGC or any
Parent Entity, or having guaranteed any obligations of the Parent Borrower or
any Subsidiary thereof, or having made any payment in respect of any of the
items for which the Parent Borrower or any of its Subsidiaries is permitted to
make payments to CCMGC or any Parent Entity pursuant to subsection 8.7, or
acquiring, developing, maintaining, owning, prosecuting, protecting or
defending its intellectual property and associated rights (including but not
limited to receiving or paying royalties for the use thereof) relating to the
business or businesses of the Parent Borrower or any Subsidiary thereof, or (y)
any other federal, state, foreign, provincial or local taxes measured by income
for which CCMGC or any Parent Entity is liable up to an amount not to exceed,
with respect to federal taxes, the amount of any such taxes that the Parent
Borrower and its Subsidiaries would have been required to pay on a separate
company basis, or on a consolidated basis as if the Parent Borrower had filed a
consolidated return on behalf of an affiliated group (as defined in Section 1504
of the Code or an analogous provision of state, local or foreign law) of which
it were the common parent, or with respect to state and local taxes, the amount
of any such taxes that the Parent Borrower and its Subsidiaries would have been
required to pay on a separate company basis, or on a combined basis as if the
Parent Borrower had filed a combined return on behalf of an affiliated group
consisting only of the Parent Borrower and its Subsidiaries.


 


“Rental Car LKE Account”:   any deposit account maintained for the
benefit of, or under the control of, the “qualified intermediary” in connection
with the Rental Car LKE Program.


 


“Rental Car LKE
Program”: 
a “like-kind-exchange program” with respect to certain of the Rental Car
Vehicles of the Parent Borrower and its Subsidiaries, under which such Equipment
and/or Vehicles will be Disposed from time to time and proceeds of such
Dispositions will be held in a Rental Car LKE Account and used to acquire
replacement Rental Car Vehicles and/or repay indebtedness secured by such
Rental Car Vehicles, in a series of transactions intended to qualify as a “like-kind-exchange”
within the meaning of the Code.


 


33

















 


“Rental Car Revenue Earning Vehicles”:  all
passenger Vehicles owned by or leased to the Parent Borrower or a Subsidiary of
a Parent Borrower that are classified as “revenue earning equipment” in the
consolidated financial statements of the Parent Borrower and are or have been
offered for lease or rental by any of the Parent Borrower and its Subsidiaries
in their car rental operations (and not, for the avoidance of doubt, in
connection with any business or operations involving the leasing or renting of
other types of Equipment), including any such Vehicles being held for sale.


 


“Rental Car Service Vehicles”:  all passenger Vehicles, other than Vehicles
that may lawfully be used to transport more than 15 passengers, owned by or
leased to the Parent Borrower or a Subsidiary of a Parent Borrower that are
classified as “plant, property and equipment” in the consolidated financial
statements of the Parent Borrower and are or have been utilized by any of the
Parent Borrower and its Subsidiaries in their car rental operations (and not,
for the avoidance of doubt, in connection with any business or operations
involving the leasing or renting of other types of Equipment), including any
such Vehicles being held for sale.


 


 “Rental
Car Vehicles”:  all Rental Car
Revenue Earning Vehicles and all Rental Car Service Vehicles.


 


“Rental Equipment”:  all revenue earning equipment, excluding all
Rental Car Revenue Earning Vehicles, owned by or leased to the Parent Borrower
or a Subsidiary of a Parent Borrower that are classified as “revenue earning
equipment” in the consolidated financial statements of the Parent Borrower.


 


“Reorganization”:  with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.


 


“Reportable Event”:  any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. § 2615
or any successor regulation thereto.


 


“Required Lenders”:  Lenders the sum of whose outstanding
Individual Lender Exposures represent at least a majority of the sum of the
aggregate amount of all outstanding Term Loans, Delayed Draw Term Loan
Commitments, Excess Credit Linked Deposits and the aggregate Letter of Credit
Exposure of Non-Defaulting Lenders.


 


“Requirement of Law”:  as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, statute, ordinance, code, decree, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
material property or to which such Person or any of its material property is
subject, including laws, ordinances and regulations pertaining to zoning,
occupancy and subdivision of real properties; provided that the
foregoing shall not apply to any non-binding recommendation of any Governmental
Authority.


 


“Responsible Officer”:  as to any Person, any of the following
officers of such Person:  (a) the
chief executive officer or the president of such Person and, with respect to
financial matters, the chief financial officer, the treasurer or the controller
of such Person, (b) any


 


34














 


vice president of such Person or, with
respect to financial matters, any assistant treasurer or assistant controller
of such Person, who has been designated in writing to the Administrative Agent
as a Responsible Officer by such chief executive officer or president of such
Person or, with respect to financial matters, such chief financial officer of
such Person, (c) with respect to subsection 7.7 and without limiting the
foregoing, the general counsel of such Person and (d) with respect to
ERISA matters, the senior vice president - human resources (or substantial
equivalent) of such Person.


 


“Rollover Indebtedness”:  Indebtedness the subject of the Tender Offers
and other existing Indebtedness of the Parent Borrower and its Subsidiaries
identified on Schedule B hereto, in each case that remains outstanding after
the Closing Date.


 


“S&P”:  as defined in the definition of the term “Cash
Equivalents” in this subsection 1.1.


 


“Sale and Leaseback Transaction”:  as defined in subsection 8.12.


 


“Secured Parties”:  as defined in the Guarantee and Collateral
Agreement.


 


“Securities Act”:  the Securities Act of 1933, as amended from
time to time.


 


“Security Documents”:  the collective reference to each Mortgage
related to any Mortgaged Property, the Guarantee and Collateral Agreement and
all other similar security documents hereafter delivered to the Collateral
Agent granting a Lien on any asset or assets of any Person to secure the
obligations and liabilities of the Loan Parties hereunder and/or under any of
the other Loan Documents or to secure any guarantee of any such obligations and
liabilities, including any security documents executed and delivered or caused
to be delivered to the Collateral Agent pursuant to subsection 7.9(b) or
7.9(c), in each case, as amended, supplemented, waived or otherwise modified
from time to time.


 


“Seller”:  as defined in the Recitals.


 


“Senior Subordinated Notes”:  10.500% Senior Subordinated Notes due
2016 of CCMG Acquisition Corporation (to be merged with the Parent Borrower on
the date hereof) issued on the date hereof, as the same may be exchanged for
substantially similar unsecured senior notes or unsecured senior subordinated
notes, as applicable, that have been registered under the Securities Act, and
as the same or such substantially similar notes may be amended, supplemented,
waived or otherwise modified from time to time in accordance with subsection
8.14 to the extent applicable.


 


“Senior Subordinated Notes Indenture”:  the New Notes Indenture governing
the Senior Subordinated Notes.


 


“Set”: 
the collective reference to Eurocurrency Loans of a single Tranche, the
then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Loans shall originally
have been made on the same day).


 


35

















 


“Single Employer Plan”:  any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.


 


“Solvent” and “Solvency”:  with respect to any Person on a particular
date, the condition that, on such date, (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including
contingent liabilities, of such Person, (b) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person’s ability to pay as such
debts and liabilities mature, and (d) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person’s property would constitute an unreasonably small amount of
capital.


 


“Special Purpose Entity”:  (x) any Special Purpose Subsidiary or
(y) any other Person that is engaged in the business of acquiring,
selling, leasing, financing or refinancing Vehicles and/or other Equipment,
and/or related rights (including under leases, manufacturer warranties and
buy-back programs, and insurance policies) and/or assets (including managing,
exercising and disposing of any such rights and/or assets).


 


“Special Purpose Financing Documents”:
any documents pursuant to which any Special Purpose Financings (including the
U.S. Securitization) are consummated.


 


“Special Purpose Financing”: any
financing or refinancing of assets consisting of or including Vehicles and/or
other Equipment of the Parent Borrower or any Subsidiary that have been
transferred to a Special Purpose Entity or made subject to a Lien in a
Financing Disposition.


 


“Special Purpose Financing Undertakings”:
representations, warranties, covenants, indemnities, guarantees of performance
and (subject to clause (y) of the proviso below) other agreements and
undertakings entered into or provided by the Parent Borrower or any of its
Subsidiaries that the Parent Borrower determines in good faith (which
determination shall be conclusive) are customary or otherwise necessary or
advisable in connection with a Special Purpose Financing or a Financing
Disposition; provided that (x) it is understood that Special Purpose
Financing Undertakings may consist of or include (i) reimbursement and other
obligations in respect of notes, letters of credit, surety bonds and similar
instruments provided for credit enhancement purposes or (ii) hedging
obligations, or other obligations relating to Interest Rate Protection
Agreements or Permitted Hedging Arrangements entered into by the Parent
Borrower or any Subsidiary, in respect of any Special Purpose Financing or
Financing Disposition, and (y) subject to the preceding clause (x), any such
other agreements and undertakings shall not include any Guarantee Obligations
in respect of Indebtedness of a Special Purpose Subsidiary by the Parent
Borrower or a Subsidiary that is not a Special Purpose Subsidiary.


 


 “Special
Purpose Subsidiary”: a Subsidiary of the Parent Borrower that (a) is
engaged solely in (x) the business of acquiring, selling, leasing, financing or
refinancing Vehicles and/or Equipment and/or related rights (including under
leases, manufacturer warranties and buy-back programs, and insurance policies)
and/or assets (including managing, 


 


36

















 


exercising and disposing of any such rights
and/or assets), all proceeds thereof and all rights (contractual and other),
collateral and other assets relating thereto, and (y) any business or
activities incidental or related to such business, and (b) is designated as a “Special
Purpose Subsidiary” by the board of directors of the Parent Borrower.


 


“Specified Equity Contribution”:  any cash equity contribution made to CCMGC or
any Parent Entity in exchange for Permitted Cure Securities; provided (a)(i)
such cash equity contribution to CCMGC or any Parent Entity and (ii) the
contribution of any proceeds therefrom to the Parent Borrower, occur (i) after
the Closing Date and (ii) on or prior to the date that is 10 days after
the date on which financial statements are required to be delivered for a
fiscal quarter (or year); (b) the Parent Borrower identifies such equity
contribution as a “Specified Equity Contribution”; (c) in each four fiscal
quarter period, there shall exist a period of at least two consecutive quarters
in respect of which no Specified Equity Contribution shall have been made and
(d) the amount of any Specified Equity Contribution included in the
calculation of EBITDA hereunder shall be limited to the amount required to
effect compliance with subsection 8.1 hereof.


 


“Sponsor”:  as defined in the Recitals.


 


“Spot Rate of Exchange”:  (i) with respect to the Designated Foreign
Currency (except as provided in clause (ii) below), at any date of
determination thereof, the spot rate of exchange in London that appears on the
display page applicable to the Designated Foreign Currency on the Telerate
System (or such other page as may replace such page for the purpose of
displaying the spot rate of exchange in London), provided that if there
shall at any time no longer exist such a page, the spot rate of exchange shall
be determined by reference to another similar rate publishing service selected
by the Administrative Agent and, if no such similar rate publishing service is
available, by reference to the published rate of the Administrative Agent in
effect at such date for similar commercial transactions or (ii) with respect to
any Letters of Credit denominated in the Designated Foreign Currency (x) for
the purposes of determining the Dollar Equivalent of L/C Obligations and for
the calculation of L/C Fees and related commissions, the spot rate of exchange
quoted in the Wall Street Journal on the first Business Day of each month (or,
if same does not provide rates, by such other means reasonably satisfactory to
the Administrative Agent and the Parent Borrower) and (y) for the purpose of
determining the Dollar Equivalent of any Letter of Credit with respect to (A) a
demand for payment of any drawing under such Letter of Credit (or any portion
thereof) to any L/C Participants pursuant to subsection 3.4(a) or (B) a notice
from any Issuing Lender for reimbursement of the Dollar Equivalent of any
drawing (or any portion thereof) under such Letter of Credit by the Parent
Borrower pursuant to subsection 3.5(a), the market spot rate of exchange quoted
by the Administrative Agent on the date of such drawing or notice, as
applicable.


 


“Standby Letter of Credit”:  as defined in subsection 3.1(a).


 


“Stated Amount”:  at any time, as to any Letter of Credit, (i)
if the Letter of Credit is denominated in Dollars, the maximum amount available
to be drawn thereunder (regardless of whether any conditions for drawing could
then be met) and (ii) if the Letter of Credit is denominated in the Designated
Foreign Currency, the Dollar Equivalent of the maximum amount 


 


37

















 


available to be drawn under the Letter of
Credit (regardless of whether any conditions for drawing could then be met).


 


“Subsidiary”:  as to any Person, a corporation, partnership,
limited liability company or other entity (a) of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening of
a contingency) to elect a majority of the board of directors or other managers
of such corporation, partnership, limited liability company or other entity are
at the time owned by such Person, or (b) the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person and, in the case of this clause (b), which is treated as a
consolidated subsidiary for accounting purposes. Unless otherwise qualified,
all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Parent Borrower.


 


“Subsidiary Guarantor”:  each Domestic Subsidiary of the Parent
Borrower other than: (a) any Domestic Subsidiary of a Foreign Subsidiary, (b)
any Special Purpose Subsidiary, (c) Navigations Solutions and (d) Hertz Vehicle
Sales Corporation, which executes and delivers a Subsidiary Guaranty, in each
case, unless and until such time as the respective Subsidiary Guarantor ceases
to constitute a Domestic Subsidiary of the Parent Borrower.


 


“Supermajority Lenders”:  Lenders
the sum of whose outstanding Commitments (or after the termination thereof,
outstanding Individual Lender Exposures) representing at least 66 2/3% of the
sum of the aggregate amount of the Total Commitment less the Commitments of all
Defaulting Lenders (or after the termination thereof, the sum of the Individual
Lender Exposures of Non-Defaulting Lenders) at such time.


 


“Syndication Agent”:  as defined in the Preamble hereto.


 


“Syndication Date”:  the date on which the Administrative Agent,
in its sole discretion, advises the Parent Borrower that the primary
syndication of the Commitments and Term Loans has been completed.


 


“Synthetic Purchase Agreement”:  any agreement pursuant to which the Parent
Borrower or any of its Subsidiaries is or may become obligated to make any
payment (except as otherwise permitted by this Agreement) to any third party
(other than CCMGC or any of its Subsidiaries) in connection with the purchase
or the notional purchase by such third party or any Affiliate thereof from a
Person other than Holdings or any of its Subsidiaries of any Capital Stock of
CCMGC or any Parent Entity or any Existing Notes or New Notes; provided
that the term “Synthetic Purchase Agreement” shall not be deemed to include (a)
any phantom stock, stock appreciation rights, equity purchase or similar plan
or arrangement providing for payments only to current or former officers,
directors, employees and other members of the management of CCMGC, the Parent
Borrower or any of their respective Subsidiaries, or family members or
relatives thereof or trusts for the benefit of any of the foregoing (or to
their heirs, successors, assigns, legal representatives or estates), or (b) any
agreement evidencing or relating to (i) one or more Guarantee Obligations in
connection with Indebtedness incurred by any Management Investors in connection
with any Management Subscription Agreements or other purchases by them of
Capital Stock of any Parent Entity (so long as such Parent Entity applies the
net cash 


 


38

















 


proceeds of such purchases, directly or
indirectly, to make capital contributions to, or purchase Capital Stock of,
CCMGC, or applies such proceeds to pay Parent Entity Expenses) or CCMGC, or any
refinancing, refunding, extension or renewal thereof, or (ii) one or more loans
or advances to one or more Management Investors in connection with the purchase
by such Management Investors of Capital Stock of any Parent Entity (so long as
such Parent Entity applies the net cash proceeds of such purchases, directly or
indirectly, to make capital contributions to, or purchase Capital Stock of,
CCMGC, or applies such proceeds to pay Parent Entity Expenses) or CCMGC)
(including in each case under this clause (b), without limitation, any
agreement evidencing any right or option to acquire any such stock in
connection with payment under any such Guarantee Obligation or in partial or
full satisfaction of any such loan or advance).


 


“Tax Sharing Agreement”:  the Tax Sharing Agreement among Holdings,
CCMGC and the Parent Borrower, to be entered into on or prior to the Closing
Date, as the same may be amended, supplemented or otherwise modified from time
to time in accordance with subsection 8.14(e).


 


 “Taxes”: as defined in
subsection 4.11(a).


 


“Tender Offer Documents”:  (a) (i) the Offers to Purchase and Consent
Solicitation Statement, dated October 17, 2005, (ii) the Consent and Letter of
Transmittal, dated October 17, 2005, (iii) the Letter to Clients, dated October
17, 2005, (iv) the Letter to Brokers, Dealers, etc., dated October 17, 2005 and
(v) the Indenture Amendments, in each case relating to U.S. Dollar-denominated
Existing Notes, in each case as amended, modified or supplemented form time to
time and (b) (i) the Offer to Purchase, dated October 17, 2005 and (ii) the
Indenture Amendments, in each case relating to Euro-denominated Existing Notes,
in each case as amended, modified or supplemented form time to time.


 


“Tender Offers”:  the offers by the Parent Borrower and/or
Hertz Finance Centre plc to purchase (a) the 9.000% Senior Notes due 2009 of
the Hertz Corporation, issued under the Indenture between The Hertz Corporation
and Manufacturers Hanover Trust Company, as Trustee, dated as of April 1, 1986,
(b) the 6.500% Senior Notes due May 15, 2006, the 6.300% Senior Notes due
November 15, 2006, the 7.625% Senior Notes due August 15, 2007, the 6.625%
Senior Notes due May 15, 2008 and the 6.250% Senior Notes due March 15, 2009 of
the Hertz Corporation, in each case issued under the Indenture between The
Hertz Corporation and First Fidelity Bank, National Association, as Trustee,
dated as of December 1, 1994, (c) the 4.700% Senior Notes due October 2, 2006
and the Floating Rate Senior Notes due August 5, 2008 of The Hertz Corporation,
issued under the Indenture between The Hertz Corporation and The Bank of New
York, as Trustee, dated as of March 16, 2001 and (d) the Euro MTNs.


 


“Term Priority
Collateral”: as defined in the Intercreditor
Agreement.


 


“Term Loan”: each Tranche B Term Loan,
including a Delayed Draw Term Loan, and New Term Loan.


 


“Term Loan Commitment”:  as to any Lender, its Tranche B Term Loan
Commitment and Delayed Draw Term Loan Commitment; collectively, as to all the
Term Loan 


 


39

















 


Lenders, the “Term Loan Commitments”. The
original aggregate amount of the Term Loan Commitments on the Closing Date is
$2,000,000,000.


 


“Term Loan Exposure”: as to any
Lender, such Lender’s Tranche B Term Loan Exposure, Delayed Draw Term Loan
Commitment Exposure and New Term Loan Exposure.


 


“Term Loan Lender”:  any Lender having a Term Loan Commitment
hereunder and/or a Term Loan outstanding hereunder.


 


“Term Loan Note”:  each Term Loan Note as defined in subsection
2.6(a) and each New Term Loan Note.


 


“Term Loan Percentage”:  as to any Term Loan Lender at any time, the
percentage which (a) such Lender’s Term Loans and unused Term Loan Commitment
then outstanding constitutes of (b) the sum of all of the Term Loans and unused
Total Term Loan Commitments then outstanding (or, if the Term Loan Commitments
have terminated or expired in their entirety, the percentage which such Lender’s
Term Loans then outstanding constitutes of the aggregate Term Loans then outstanding).


 


“Termination Date”:  December 21, 2012.


 


“Total Commitment”:  at any time, the sum of the Commitments of
each of the Lenders at such time.


 


“Total Credit Linked Deposit”:  at any time, the sum of all Credit Linked
Deposits at such time, as the same may be reduced from time to time pursuant to
subsection 3.2(c) or 4.4(g).


 


“Total Credit Percentage”:  as to any Lender at any time, the percentage
of the aggregate Commitments then constituted by such Lender’s Commitment and
outstanding Term Loans and unused Delayed Draw Term Loan Commitments (if any). In
making determinations pursuant to the preceding sentence, the Dollar Equivalent
of all amounts expressed in currencies other than Dollars shall be utilized.


 


“Total Lender Exposure”:  at any time, the sum of all Individual Lender
Exposures.


 


“Total Term Loan Commitment”:  at any time, the sum of the Term Loan
Commitments of all of the Lenders at such time.


 


“Tranche”:  each Tranche of Loans available hereunder,
with there being one on the Closing Date; namely Term Loans.


 


“Tranche B Term Loan”:  as defined in subsection 2.5(a), collectively
the “Tranche B Term Loans”. It is understood and agreed that the Delayed
Draw Term Loans made pursuant to subsection 2.5 and the New Term Loans made
pursuant to subsection 3.2(c) shall each be Tranche B Term Loans for all
purposes of this Agreement, unless specifically indicated to the contrary.


 


40

















 


“Tranche B Term Loan Commitment”:  as to any Lender, its obligation to make
Tranche B Term Loans to the Parent Borrower pursuant to subsection 2.5(a) in an
aggregate amount not to exceed at any one time outstanding the amount set forth
opposite such Tranche B Term Loan Lender’s name in Schedule A-1 under the
heading “Tranche B Term Loan Commitment” or, in the case of any Lender that is
an Assignee, the amount of the assigning Lender’s Tranche B Term Loan
Commitment assigned to such Assignee pursuant to subsection 11.6(b) (in each
case as such amount may be adjusted from time to time as provided herein);
collectively, as to all the Tranche B Term Loan Lenders, the “Tranche B Term
Loan Commitments”. The original aggregate amount of the Tranche B Term Loan
Commitments on the Closing Date is $1,707,000,000.


 


“Tranche B Term Loan Exposure”: as to
any Lender, at any time, the amount of unpaid Tranche B Term Loans made by such
Lender pursuant to subsection 2.5(a) or (b).


 


“Transaction Documents”:  (i) the Loan Documents, (ii) the Acquisition
Documents, (iii) the ABL Facility Documents, (iv) the Equity Financing
Documents, (v) the Special Purpose Financing Documents relating to the
U.S. Securitization, (vi) the Foreign Fleet Financing Documents relating to the
Foreign Fleet Bridge Financing, (vii) the New Notes Indentures and (viii) the
Tender Offer Documents.


 


“Transactions”:  as defined in the Recitals hereto.


 


“Transferee”:  any Participant or Assignee.


 


“Treaty”:  the Treaty establishing the European Economic
Community, being the Treaty of Rome of March 25, 1957 as amended by the Single
European Act 1986 and the Maastricht Treaty (which was signed on February 7,
1992 and came into force on November 1, 1993) and as may, from time to time, be
further amended, supplemented or otherwise modified.


 


“Type”:  the type of Loan determined based on the
currency in which the same is denominated, and the interest option applicable
thereto, with there being multiple Types of Loans hereunder, namely ABR Loans
and Eurocurrency Loans in each of the Designated Currencies.


 


“UCC”: 
the Uniform Commercial Code as in effect in the State of New York from
time to time.


 


“Underfunding”:  the excess of the present value of all
accrued benefits under a Plan (based on those assumptions used to fund such
Plan), determined as of the most recent annual valuation date, over the value
of the assets of such Plan allocable to such accrued benefits.


 


“Unfinanced
Vehicles”: 
as of any date of determination, Rental Car Vehicles that are not
pledged as security in respect of any other Indebtedness or obligations of the
Parent Borrower or any of its Subsidiaries.


 


41

















 


 “Uniform
Customs”:  the Uniform Customs and
Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, as the same may be amended from time to time.


 


“Unpaid Drawing”:  as defined in subsection 3.5.


 


“Unscheduled Assumed Indebtedness”:  existing Indebtedness of the Parent Borrower
and its Subsidiaries identified on Schedule C, which (i) does not constitute
Rollover Indebtedness, (ii) will not be repaid in connection with the
Transactions and (iii) has material terms and conditions reasonably
satisfactory to the Committed Lenders.


 


“U.S. ABS Initial Purchasers”:  Lehman Brothers, DB, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Goldman and JPMorgan.


 


“U.S. Securitization”:  as defined in the Recitals.


 


“U.S. Tax Compliance Certificate”:  as defined in subsection 4.11(b).


 


“Vehicle Rental Concession”:  any
right, whether or not exclusive, to conduct a Vehicle rental business at a
Public Facility, or to pick up or discharge persons or otherwise to possess or
use all or part of a Public Facility in connection with such a business, and
any related rights or interests.


 


“Vehicle Rental Concession Rights”:  all of the following:  (a) any
Vehicle Rental Concession, (b) any rights of the Parent Borrower or any
Subsidiary thereof under or relating to (i) any law, regulation, license,
permit, request for proposals, invitation to bid, lease, agreement or understanding
with a Public Facility Operator in connection with which a Vehicle Rental
Concession has been or may be granted to the Parent Borrower or any Subsidiary
and (ii) any agreement with, or Investment or other interest or
participation in, any Person, property or asset required (x) by any such
law, ordinance, regulation, license, permit, request for proposals, invitation
to bid, lease, agreement or understanding or (y) by any Public Facility
Operator as a condition to obtaining or maintaining a Vehicle Rental Concession,
and (c) any liabilities or obligations relating to or arising in
connection with any of the foregoing.


 


“Vehicles” means vehicles owned or
operated by, or leased or rented to or by, the Parent Borrower or any of its
Subsidiaries, including automobiles, trucks, tractors, trailers, vans, sport
utility vehicles, buses, campers, motor homes, motorcycles and other motor
vehicles.


 


“Wholly Owned Subsidiary”:  as to any Person, any Subsidiary of such
Person of which such Person owns, directly or indirectly through one or more
Wholly Owned Subsidiaries, all of the Capital Stock of such Subsidiary other
than directors qualifying shares or shares held by nominees.


 


“Year-End Liquidity”:  as defined in subsection 8.20.


 


1.2           Other
Definitional Provisions.  (a)  Unless otherwise specified therein, all terms
defined in this Agreement shall have the defined meanings when used in any
Notes, any other Loan Document or any certificate or other document made or
delivered pursuant hereto.


 


42

















 


(b)           As used herein and in any Notes and
any other Loan Document, and any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms relating to CCMGC and
its Subsidiaries not defined in subsection 1.1 and accounting terms partly
defined in subsection 1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP.


 


(c)           The words “hereof”, “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, subsection, Schedule and Exhibit references are to this Agreement
unless otherwise specified. The words “include”, “includes” and “including” shall be deemed to be followed
by the phrase “without limitation”.


 


(d)           The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of
such terms.


 


SECTION
2.  AMOUNT AND TERMS OF COMMITMENTS.


 


2.1           Reserved.


 


2.2           Reserved.


 


2.3           Reserved.


 


2.4           Reserved.


 


2.5           Term
Loans .  Subject to the terms and
conditions hereof, (a) each Lender holding a Tranche B Term Loan Commitment
severally agrees to make, in Dollars in a single draw on the Closing Date, one
or more term loans (each, a “Tranche B Term Loan”) to the Parent
Borrower in an aggregate principal amount not to exceed the amount set forth
opposite such Lender’s name in Schedule A-1 under the heading “Tranche B
Term Loan Commitment”, as such amount may be adjusted or reduced pursuant to
the terms hereof and (b) each Lender holding a Delayed Draw Term Loan
Commitment severally agrees to make, in Dollars, from time to time during the
Delayed Draw Term Loan Commitment Period, subject to the terms and conditions
hereof, one or more delayed draw term loans which shall be Tranche B Term Loans
hereunder (each, a “Delayed Draw Term Loan”) to the Parent Borrower in
an aggregate principal amount not to exceed the amount set forth opposite such
lender’s name in Schedule A-2 under the heading “Delayed Draw Term Loan
Commitment”, as such amount may be adjusted or reduced pursuant to the
terms and conditions hereof. The Term Loans:


 


(i)            except
as hereinafter provided, shall, at the option of the Parent Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or
Eurocurrency Loans, provided that (i) except as otherwise specifically
provided in subsection 4.9 and 4.10, all Term Loans comprising the same
Borrowing shall at all times be of the same Type, and (ii) unless the
Administrative Agent either otherwise agrees in its sole discretion or has
determined that the Syndication Date has occurred, all Term Loans shall be
maintained during (A) the first week following the Closing Date as ABR Loans
and (B) until the date that is 90 days following the Closing Date, shall
be incurred and maintained as (x) ABR Loans or (y) Eurocurrency Loans 


 


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with an Interest Period of one month
commencing on the first day of the period described in clause (B); and


 


(ii)           shall
be made by each such Lender in an aggregate principal amount which (A) in the
case of Tranche B Term Loans made under subsection 2.5(a), does not exceed the
Tranche B Term Loan Commitment of such Lender, (B) in the case of Delayed Draw
Term Loans, when aggregated with all Delayed Draw Term Loans made under
subsection 2.5(b), does not exceed the Delayed Draw Term Loan Commitment of
such Lender on the Closing Date and (C) in the case of Delayed Draw Term Loans
made in any borrowing after the Closing Date, does not exceed the unused and
available Delayed Draw Term Loan Commitment of such Lender at such time. Once
repaid, Term Loans incurred hereunder may not be reborrowed.


 


2.6           Term
Loan Notes.  (a)  The Parent Borrower agrees that, upon the
request to the Administrative Agent by any Lender made on or prior to the
Closing Date or in connection with any assignment pursuant to subsection
11.6(b), in order to evidence such Lender’s Term Loan, the Parent Borrower will
execute and deliver to such Lender a promissory note substantially in the form
of Exhibit A (each, as amended, supplemented, replaced or otherwise modified
from time to time, a “Term Loan Note”), with appropriate insertions
therein as to payee, date and principal amount, payable to such Lender and in a
principal amount equal to the unpaid principal amount of the applicable Term
Loans made (or acquired by assignment pursuant to subsection 11.6(b)) by such
Term Loan Lender to the Parent Borrower. Each Term Loan Note shall be dated the
Closing Date or, in the case of a Delayed Draw Term Loan, shall be dated as of
the date any such Delayed Draw Term Loans are first made by such Lender. Each
Term Loan Note shall be payable as provided in subsection 2.6(b)(i) and
(z) provide for the payment of interest in accordance with subsection 4.1.


 


(b)           The aggregate Term Loans (Tranche B
Term Loans, Delayed Draw Term Loans and New Term Loans) of all the Lenders
shall be payable in consecutive quarterly installments up to and including the
Termination Date (subject to reduction as provided in subsection 4.4), on the
dates and in the principal amounts, subject to adjustment as set forth below,
equal to the respective amounts set forth below (together with all accrued
interest thereon) opposite the applicable installment dates (or, if less, the
aggregate amount of such Term Loans then outstanding):


 


	
  Date

  	
   

  	
  Amount

  
	
   

  	
   

  	
   

  
	
  Each March 31, June 30, September 30 and
  December 31 ending prior to the Termination Date

  	
   

  	
  0.25% of the aggregate principal amount of
  all outstanding Term Loans as of such date

  
	
   

  	
   

  	
   

  
	
  Termination Date

  	
   

  	
  all unpaid aggregate principal amounts of
  any outstanding Term Loans

  



 


2.7           Procedure
for Term Loan Borrowing.  The Parent
Borrower shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative 


 


44

















 


Agent prior to 12:30 P.M., New York City
time), (i) in the case of Term Loans to be made on or within 14 days following
the Closing Date, at least three Business Days, and (ii) in the case of Delayed
Draw Term Loans to be made more than 14 days following the Closing Date, five
Business Days, prior to the date of Borrowing (including the Closing Date)
specifying the amount to be borrowed; provided that, in the case of
Delayed Draw Term Loans, such Borrowings shall be made in minimum increments of
$25,000,000 and shall be used solely to finance the repurchase, repayment or
other satisfaction of Assumed Indebtedness maturing on or before August 15,
2007, including the payment of premiums, penalties, fees and expenses related
thereto. Upon receipt of such notice the Administrative Agent shall promptly
notify each applicable Lender thereof. Each applicable Lender will make the
amount of its pro rata share (based on its applicable Term Loan Percentage) of
the applicable Term Loans available to the Administrative Agent for the account
of the Parent Borrower at the office of the Administrative Agent specified in
subsection 11.2 prior to 12:00 P.M., New York City time, on the Closing Date or
such other date of Borrowing, as applicable, in Dollars and in funds
immediately available to the Administrative Agent. The Administrative Agent
shall on such date credit the account of the Parent Borrower on the books of
the Administrative Agent with the aggregate of the amounts made available to
the Administrative Agent by the Term Loan Lenders and in like funds as received
by the Administrative Agent.


 


2.8           Record
of Loans.  (a)  Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing indebtedness of the Parent
Borrower to such Lender resulting from each Loan of such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.


 


(b)           The Administrative Agent shall
maintain the Register pursuant to subsection 11.6(b), and a subaccount therein
for each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder, the Type thereof and each Interest Period, if any, applicable
thereto, (ii) the amount of any principal or interest due and payable or to
become due and payable from the Parent Borrower to each Lender hereunder and
(iii) both the amount of any sum received by the Administrative Agent hereunder
from the Parent Borrower and each Lender’s share thereof.


 


(c)           The entries made in the Register and
the accounts of each Lender maintained pursuant to subsection 2.8(b) shall, to
the extent permitted by applicable law, be prima facie evidence of the existence
and amounts of the obligations of the Parent Borrower therein recorded; provided,
however, that the failure of any Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Parent Borrower to repay (with
applicable interest) the Loans made to the Parent Borrower by such Lender in
accordance with the terms of this Agreement.


 


SECTION
3.  LETTERS OF CREDIT.


 


3.1           Funded
Letters of Credit.  (a)  On the Closing Date, the Existing Letters of
Credit will automatically, without any action on the part of any Person, be
deemed to be Letters of Credit issued hereunder for the account of the Parent
Borrower by the applicable Issuing Lender. Subject to and upon the terms and
conditions hereof, the Parent Borrower may request that the applicable Issuing
Lender issue letters of credit (the letters of credit issued on and after 


 


45

















 


the Closing Date pursuant to this Section 3,
collectively with the Existing Letters of Credit, the “Letters of Credit”)
for the account of the Parent Borrower on any Business Day during the Letter of
Credit Commitment Period but in no event later than the 30th day prior to the
Termination Date in such form as may be approved from time to time by such
Issuing Lender; provided that no Letter of  Credit shall be issued if, after giving
effect to such issuance, (i) the aggregate Extensions of Credit to the Parent
Borrower would exceed the sum of the Total Commitments then outstanding, the
total Term Loans then outstanding and the Total Credit Linked Deposits or (ii)
the L/C Obligations in respect of Letters of Credit would exceed $250,000,000. Each
Letter of Credit shall (i) be denominated in Dollars or the Designated Foreign
Currency requested by the Parent Borrower and shall be either (A) a standby
letter of credit issued to support obligations of the Parent Borrower or any of
its Subsidiaries, contingent or otherwise, which finance or otherwise arise in
connection with the working capital and business needs of the Parent Borrower
and its Subsidiaries incurred in the ordinary course of business (a “Standby
Letter of Credit”), or (B) a commercial letter of credit in respect of the
purchase of goods or services by the Parent Borrower or any of its Subsidiaries
in the ordinary course of business (a “Commercial L/C”), and (ii) unless
otherwise agreed by the Administrative Agent expire no later than the earlier
of (A) one year after its date of issuance and (B) the 5th day prior
to the Termination Date, in the case of Standby Letters of Credit (subject to,
if requested by the Parent Borrower and agreed to by the Issuing Lender,
automatic renewals for successive periods not exceeding one year ending prior
to the 5th day prior to the Termination Date), or (A) 12 months
after its date of issuance and (B) the 30th day prior to the
Termination Date, in the case of Commercial Letters of Credit. All Letters of
Credit issued shall be denominated in Dollars or in the Designated Foreign
Currency and shall be issued for the account of the Parent Borrower.


 


(b)           Unless otherwise agreed by the
applicable Issuing Lender and the Parent Borrower, each Letter of Credit shall
be subject to the Uniform Customs and, to the extent not inconsistent
therewith, the laws of the State of New York. All Letters of Credit shall be
issued on a sight basis only.


 


(c)           No Issuing Lender shall at any time
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause such Issuing Lender or any L/C Participant to exceed any limits imposed
by, any applicable Requirement of Law.


 


3.2           Procedure
for Issuance of Letters of Credit.  (a)  The Parent Borrower may from time to time
request during the Letter of Credit Commitment Period but in no event later
than the 30th day prior to the Termination Date that an Issuing Lender issue a
Letter of Credit by delivering to such Issuing Lender and the Administrative
Agent, at their respective addresses for notices specified herein, an L/C Request
therefor in the form Exhibit H hereto (completed to the reasonable satisfaction
of such Issuing Lender), and such other certificates, documents and other
papers and information as such Issuing Lender may reasonably request. Each L/C
Request shall specify that the requested Letter of Credit is to be denominated
in Dollars or the Designated Foreign Currency. Upon receipt of any L/C Request,
such Issuing Lender will process such L/C Request and the certificates,
documents and other papers and information delivered to it in connection
therewith in accordance with its customary procedures and shall promptly issue
the Letter of Credit requested thereby (but in no event shall such Issuing
Lender be required, unless otherwise agreed to by such Issuing Lender, to issue
any Letter of Credit earlier than three 


 


46

















 


Business Days after its receipt of the L/C
Request therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed by such Issuing
Lender and the Parent Borrower. The applicable Issuing Lender shall furnish a
copy of such Letter of Credit to the Parent Borrower promptly following the
issuance thereof. Promptly after the issuance or amendment of any Standby
Letter of Credit, the applicable Issuing Lender shall notify the Parent
Borrower and the Administrative Agent, in writing, of such issuance or
amendment and such notice shall be accompanied by a copy of such issuance or
amendment. Upon receipt of such notice, the Administrative Agent shall promptly
notify the Lenders, in writing, of such issuance or amendment, and if so
requested by a Lender, the Administrative Agent shall provide to such Lender
copies of such issuance or amendment. With regards to Commercial Letters of
Credit, each Issuing Lender shall on the first Business Day of each week
provide the Administrative Agent, by facsimile, with a report detailing the aggregate
daily outstanding Commercial Letters of Credit during the previous week.


 


(b)           The making of each request for a
Letter of Credit by the Parent Borrower shall be deemed to be a representation
and warranty by the Parent Borrower that such Letter of Credit may be issued in
accordance with, and will not violate the requirements of, subsection 3.1. Unless
the respective Issuing Lender has received notice from the Required Lenders
before it issues a Letter of Credit that one or more of the applicable conditions
specified in Section 6 are not then satisfied, or that the issuance of such
Letter of Credit would violate subsection 3.1, then such Issuing Lender may
issue the requested Letter of Credit for the account of the Parent Borrower in
accordance with such Issuing Lender’s usual and customary practices.


 


(c)           Repayment by L/C Participants of
Amounts Drawn or Paid Under Letters of Credit. In the event an Issuing Lender makes any payment under any
Letter of Credit and the Parent Borrower shall not have repaid such amount in
full to such Issuing Lender pursuant to Section 3.5(a) when due, such Issuing
Lender shall notify the Administrative Agent and the Administrative Agent shall
notify each L/C Participant of such failure, and the Administrative Agent shall
apply from the Credit Linked Deposits held in the Credit Linked Deposit Account
toward the reimbursement of such payment each Participant’s Letter of Credit
Percentage of such unreimbursed payment from the Credit Linked Deposit Account.
In the event the Administrative Agent applies the Credit Linked Deposits held
in the Credit Linked Deposit Account to an unreimbursed disbursement under a
Letter of Credit pursuant to the preceding sentence, the Parent Borrower shall
have the right (provided that no Default or Event of Default shall have
occurred and be continuing), within 5 Business Days of the date of
reimbursement from the Credit Linked Deposit Account, to pay over to the
Administrative Agent in reimbursement thereof an amount equal to the full
amount of the disbursement made by such Issuing Lender, and such payment shall
be applied by the Administrative Agent in accordance with clause (ii) of the
immediately following sentence. Promptly following receipt by the
Administrative Agent of any payment by the Parent Borrower in respect of any
disbursement under a Letter of Credit, the Administrative Agent shall
distribute such payment (i) to the applicable Issuing Lender or (ii) subject to
the immediately preceding sentence, to the extent payments have been made from
the Credit Linked Deposits, to the Credit Linked Deposit Account with respect
to such Letter of Credit to be added to the Credit Linked Deposits held in the
Credit Linked Deposit Account. The Parent Borrower acknowledges that each
payment made pursuant to this paragraph in respect of any unreimbursed payment
is required to be made 


 


47

















 


for
the benefit of the applicable Issuing Lender indicated
in the immediately preceding sentence. Provided that no Event of
Default under Section 9(f) shall have occurred and be continuing, any payment
made from the Credit Linked Deposit Account (except to the extent of a
repayment by the Parent Borrower within 5 Business Days of the date of
Reimbursement from the Credit Linked Deposit Account as expressly permitted
above) pursuant to this paragraph to reimburse the applicable Issuing Lender
for any unreimbursed payment shall be deemed an extension of Term Loans made on
such date by the L/C Participants ratably in accordance with their Letter of
Credit Percentage of the Total Credit Linked Deposit, and the amount so funded
shall permanently reduce the Total Credit Linked Deposit; any amount so funded
pursuant to this paragraph shall, on and after the funding date thereof, be deemed
to be Tranche B Term Loans for all purposes hereunder and have the same terms
as other Tranche B Terms Loans hereunder (such deemed Tranche B Term Loan, a “New
Term Loan”). Any New Term Loans deemed made on the same day shall be
designated a separate “Set” of New Term Loans for all purposes of this
Agreement. In the event that the Parent Borrower is required to reimburse an
Issuing Lender for any disbursement under a Letter of Credit issued by such
Issuing Lender, for a period of 91 days following such reimbursement payment by
the Parent Borrower, the L/C Obligations shall be deemed to include (as if such
Letter of Credit were still outstanding) for purposes of determining
availability for the issuance of any new Letter of Credit during such period,
the amount of such reimbursement payment until the end of such 91-day period.


 


3.3           Fees,
Commissions and Other Charges.  (a)  The Parent Borrower shall pay to the relevant
Issuing Lender with respect to each Letter of Credit a fee equal to 1/4 of 1%
per annum calculated on the basis of a 360-day year (but in no event less than
$500 per annum for each Letter of Credit issued on its behalf) of the aggregate
amount available to be drawn under such Letter of Credit, payable quarterly in
arrears on each L/C Fee Payment Date with respect to such Letter of Credit and
on the Termination Date or such other date as the Letter of Credit Commitments
shall terminate. Such commissions and fees shall be nonrefundable. Such fees
and commissions shall be payable in Dollars, notwithstanding that a Letter of
Credit may be denominated in the Designated Foreign Currency. In respect of a
Letter of Credit denominated in the Designated Foreign Currency, such fees and
commissions shall be converted into Dollars at the Spot Rate of Exchange.


 


(b)           In addition to the foregoing
commissions and fees, the Parent Borrower agrees to pay amounts necessary to
reimburse the applicable Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by such Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit issued by an Issuing Lender.


 


3.4           Participant’s
Acquisition of Participations in Letters of Credit.  (a)  On
the Closing Date, without any further action on the part of the Issuing Lenders
or the Lenders, the Issuing Lenders hereby grant to each L/C Participant, and
each L/C Participant shall be deemed irrevocably and unconditionally to have
acquired and received from each Issuing Lender that has issued or may issue any
Letter of Credit, without recourse or warranty, an undivided interest and
participation (each, an “L/C Participation”), in each Letter of Credit
that may be issued pursuant to Section 3.1 (including each Existing Letter of
Credit) equal to such L/C Participant’s Letter of Credit Percentage of the
aggregate amount available to be drawn under each such Letter of Credit and the
L/C Participation interests in respect thereof together with rights to receive 


 


48

















 


payments under Section 3.4(b). Each L/C
Participant shall pay to the Administrative Agent in full on the Closing Date
an amount equal to such L/C Participant’s Letter of Credit Commitment, and the
Administrative Agent shall immediately transfer such funds to the Credit Linked
Deposit Account. Unless and until the Letter of Credit Termination Date has
occurred and all Letters of Credit issued by an Issuing Lender have expired
without draw, or to the extent of any draws, have been reimbursed in full, or
are cash collateralized by the Parent Borrower pursuant to Section 3.4(b), each
such Credit Linked Deposit shall be held by the Administrative Agent. Each L/C
Participant hereby absolutely and unconditionally agrees that if an Issuing
Lender makes a disbursement in respect of any Letter of Credit issued by such
Issuing Lender which is not reimbursed by the Parent Borrower on the date due
pursuant to Section 3.5, or is required to refund any reimbursement payment in
respect of any Letter of Credit issued or deemed issued by such Issuing Lender
to the Parent Borrower for any reason, the amount of such disbursement shall be
satisfied, ratably as among the L/C Participants in accordance with their
Letter of Credit Percentage (with the Administrative Agent having the
responsibility to determine and keep record of the Letter of Credit Percentage
of the L/C Participants for this purpose and all other purposes hereunder) of
the Total Credit Linked Deposit from the Credit Linked Deposits held in the
Credit Linked Deposit Account. Without limiting the foregoing, each L/C
Participant irrevocably authorizes the Administrative Agent and the Issuing
Lenders, as applicable, to apply amounts of the Credit Linked Deposits as
provided in this paragraph.


 


(b)           Credit Linked Deposit Accounts.


 


(i)            Subject
to the terms and conditions hereof, each L/C Participant severally agrees to
make, on the Closing Date, a payment to the Administrative Agent in an amount
equal to such L/C Participant’s Letter of Credit Commitment and the Administrative
Agent shall use such payments to establish a Credit Linked Deposit Account at
the Administrative Agent for the benefit of the Issuing Lenders and deposit in
the Credit Linked Deposit Account an amount as set forth on Schedule 3.2 (c). The
Credit Linked Deposits paid to the Administrative Agent shall be held by the
Administrative Agent in the Credit Linked Deposit Account, and no party other
than the Issuing Lenders shall have a right of withdrawal from the Credit
Linked Deposit Account, or any other right power or interest in or with respect
to the Credit Linked Deposits, except as expressly set forth in Sections
3.2(c), 3.4(a), 3.4(b), and Section 4.4(a). Notwithstanding any provision in
this Agreement to the contrary, the sole funding obligation of each L/C
Participant in respect of its Letter of Credit Commitment and L/C Participation
shall be satisfied in full upon the payment of the amount equal to its Letter
of Credit Commitment on the Closing Date.


 


(ii)           Each
of the Parent Borrower, the Administrative Agent, each Issuing Lender and each
L/C Participant hereby acknowledges and agrees that each L/C Participant is
making its payment on the Closing Date pursuant to Section 3.4(b)(i) to be paid
into the Credit Linked Deposit Account for application in the manner
contemplated by Sections 3.2(c) and 3.4(a). Except during periods when such
Credit Linked Deposits, or funds applied by or on behalf of such Issuing Lender
against such Credit Linked Deposits, are used to cover Unpaid Drawings
under Letters of Credit, the investment of the
Credit Linked Deposits shall be made so as to receive returns free of any
withholding or deduction of Taxes and to earn for the account of each L/C
Participant a return on its Credit Linked Deposits of such funds at a rate per annum
equal to (A) the Eurocurrency Rate for the applicable Interest Period minus (B)
(1) 0.10% per annum (based on a 360 day year) or (2) such lesser rate as may be
agreed upon between the 


 


49

















 


Administrative
Agent, the Issuing Lenders and the Parent
Borrower. Interest earned on the Credit Linked Deposits will be paid to the L/C
Participants by the Administrative Agent quarterly in arrears when fees are
payable pursuant to subsection 4.5(b). The Parent Borrower agrees it shall pay
a fee to the Administrative Agent, for the account of each L/C Participant,
quarterly in arrears when fees are payable pursuant to subsection 4.5(b), in an
amount equal to (x) 0.10% per annum (based on a 360 day year) or (y) such lesser
rate as may be agreed upon between the Administrative Agent, the each issuing
Lender and the Parent Borrower pursuant to clause (B)(2) above, in each case of
the Credit Linked Deposits of such L/C Participant.


 


(iii)          The
Parent Borrower shall have no right, title or interest in or to the Credit
Linked Deposits and no obligations with respect thereto (except for the
Reimbursement Amount in respect of Letters of Credit provided in Sections
3.2(c) and 3.4(a), it being acknowledged and agreed by the parties hereto that
the making of the Credit Linked Deposits by the L/C Participants, the payments
to the L/C Participants contemplated in Section 3.4(b)(ii), the provisions of
this Section 3.4(b)(iii) and the application of the Credit Linked Deposits in
the manner contemplated by Sections 3.2(c) and 3.4(a) constitute agreements
among the Administrative Agent, the applicable Issuing Lender and the L/C
Participants with respect to payments of each L/C Participant in respect of its
L/C Participation and do not constitute any loan or extension of credit to the
Parent Borrower.


 


(iv)          Following
the occurrence of any of the events identified in clauses (i), (ii) or (iii) of
the definition of Letter of Credit Termination Date (but solely in the case of
clause (ii)), only to the extent at such time the Parent Borrower shall have
paid all outstanding obligations then due and payable under this Agreement),
and subject to the Parent Borrower’s cash collateralization to the extent of an
Issuing Lender’s outstanding Letters of Credit, in an amount (but in no event
greater than 100% of the aggregate undrawn face amount) and manner reasonably
satisfactory to the Collateral Agent and the applicable Issuing Lender that
issued such Letters of Credit (which cash collateralization is hereby expressly
required of the Parent Borrower on any Letter of Credit Termination Date), each
Issuing Lender shall acquire the L/C Participation interests from the L/C
Participants with the remaining Credit Linked Deposits according to each L/C
Participant’s Letter of Credit Percentage.


 


3.5           Reimbursement
by the Parent Borrower.  (a)  The Parent Borrower shall have the option to
reimburse the applicable Issuing Lender, upon receipt by the Parent Borrower of
notice from such Issuing Lender of the date and amount of a draft presented
under any Letter of Credit issued on its behalf and paid by such Issuing Lender
(each such amount so paid until reimbursed and “Unpaid Drawing”), for the
amount of such draft so paid and any taxes, fees, charges or other costs or
expenses reasonably incurred by such Issuing Lender in connection with such
payment. Each such payment, if any, shall be made to the applicable Issuing
Lender, at its address for notices specified herein in the currency in which
such Letter of Credit is denominated (except that, in the case of any Letter of
Credit denominated in the Designated Foreign Currency, in the event that such
payment is not made to such Issuing Lender within three Business Days of the
date of receipt by the Parent Borrower of such notice, upon notice by such
Issuing Lender to the Parent Borrower, such payment shall be made in Dollars,
in an amount equal to the Dollar Equivalent of the amount of such payment
converted on the date of such notice into Dollars at the Spot Rate of Exchange
on such date) and in immediately available funds, on the date on which the
Parent Borrower receives such notice, if received prior to 


 


50

















 


11:00 A.M., New York City time, on a
Business Day and otherwise on the next succeeding Business Day. Any conversion
by an Issuing Lender of any payment to be made in respect of any Letter of
Credit denominated in the Designated Foreign Currency into Dollars in
accordance with this subsection 3.5(a) shall be conclusive and binding upon the
Parent Borrower and the Lenders in the absence of manifest error; provided
that upon the request of the Parent Borrower or any Lender, such Issuing Lender
shall provide to the Parent Borrower or Lender a certificate including
reasonably detailed information as to the calculation of such conversion.


 


3.6           Obligations
Absolute.  (a)  The Parent Borrower’s obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any set-off, counterclaim or defense to payment which the
Parent Borrower may have or have had against an Issuing Lender, any L/C
Participant or any beneficiary of a Letter of Credit, provided that this
paragraph shall not relieve any Issuing Lender or L/C Participant of any
liability resulting from the gross negligence or willful misconduct of such
Issuing Lender or L/C Participant, or otherwise affect any defense or other
right that the Parent Borrower may have as a result of any such gross
negligence or willful misconduct.


 


(b)           The Parent Borrower and each Lender
also agree with each Issuing Lender that such Issuing Lender and the L/C
Participants shall not be responsible for, among other things, the validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Parent Borrower and any beneficiary of any Letter
of Credit or any other party to which such Letter of Credit may be transferred
or any claims whatsoever of the Parent Borrower against any beneficiary of such
Letter of Credit or any such transferee, provided that this paragraph
shall not relieve any Issuing Lender or L/C Participant of any liability
resulting from the gross negligence or willful misconduct of such Issuing
Lender or L/C Participant, or otherwise affect any defense or other right that
the Parent Borrower may have as a result of any such gross negligence or
willful misconduct.


 


(c)           Neither any Issuing Lender nor any
L/C Participant shall be liable for any error, omission, interruption or delay
in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by such Person’s gross negligence or willful misconduct.


 


(d)           The Parent Borrower agrees that any
action taken or omitted by any Issuing Lender under or in connection with any
Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence or willful misconduct and in accordance with the standards of
care specified in the UCC shall be binding on the Parent Borrower and shall not
result in any liability of such Issuing Lender or L/C Participant to the Parent
Borrower.


 


3.7           L/C
Payments.  If any draft shall be
presented for payment under any Letter of Credit, the applicable Issuing Lender
shall promptly notify the Parent Borrower of the date and amount thereof. The
responsibility of an Issuing Lender to the Parent Borrower in respect of any
Letter of Credit in connection with any draft presented for payment under such
Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of 


 


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Credit, provided that this paragraph
shall not relieve any Issuing Lender of any liability resulting from the gross
negligence or willful misconduct of such Issuing Lender, or otherwise affect
any defense or other right that the Parent Borrower may have as a result of any
such gross negligence or willful misconduct.


 


3.8           L/C
Request.  To the extent that any
provision of any L/C Request related to any Letter of Credit is inconsistent
with the provisions of this Section 3, the provisions of this Section 3 shall
apply.


 


3.9           Additional Issuing Lenders.  The Parent
Borrower may, at any time and from time to time with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld) and
such Lender, designate one or more additional Lenders to act as an issuing
lender under the terms of this Agreement. Any Lender designated as an issuing
bank pursuant to this subsection 3.9 shall be deemed to be an “Issuing Lender”
(in addition to being a Lender) in respect of Letters of Credit issued or to be
issued by such Lender, and, with respect to such Letters of Credit, such term
shall thereafter apply to the other Issuing Lender or Issuing Lenders and such
Lender.


 


SECTION
4. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT.


 


4.1           Interest
Rates and Payment Dates.  (a)  Each Eurocurrency Loan shall bear interest
for each day during each Interest Period with respect thereto at a rate per
annum equal to the Eurocurrency Rate determined for such day plus the
Applicable Margin in effect for such day.


 


(b)           Each ABR Loan shall bear interest for
each day that it is outstanding at a rate per annum equal to the ABR for such
day plus the Applicable Margin in effect for such day.


 


(c)           If all or a portion of (i) the
principal amount of any Loan, (ii) any interest payable thereon or (iii) any
commitment fee, letter of credit commission, letter of credit fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in the case of overdue principal, the
rate that would otherwise be applicable thereto pursuant to the relevant
foregoing provisions of this subsection plus 2.00%, (y) in the case of overdue
interest, the rate that would be otherwise applicable to principal of the
related Loan pursuant to the relevant foregoing provisions of this subsection
(other than clause (x) above) plus 2.00% and (z) in the case of, fees,
commissions or other amounts, the rate described in paragraph (b) of this
subsection for ABR Loans plus 2.00%, in each case from the date of such non-payment
until such amount is paid in full (as well after as before judgment).


 


(d)           Interest shall be payable in arrears
on each Interest Payment Date, provided that interest accruing pursuant
to paragraph (c) of this subsection shall be payable from time to time on
demand.


 


(e)           It is the intention of the parties
hereto to comply strictly with applicable usury laws; accordingly, it is
stipulated and agreed that the aggregate of all amounts which constitute
interest under applicable usury laws, whether contracted for, charged, taken,
reserved, 


 


52

















 


or received, in connection with the
indebtedness evidenced by this Agreement or any Notes, or any other document
relating or referring hereto or thereto, now or hereafter existing, shall never
exceed under any circumstance whatsoever the maximum amount of interest allowed
by applicable usury laws.


 


4.2           Conversion
and Continuation Options.  (a)  The Parent Borrower may elect from time to
time to convert outstanding Term Loans from Eurocurrency Loans made or
outstanding in Dollars to ABR Loans by giving the Administrative Agent at least
two Business Days’ prior irrevocable notice of such election, provided
that any such conversion of Eurocurrency Loans may only be made on the last day
of an Interest Period with respect thereto. The Parent Borrower may elect from
time to time to convert outstanding Term Loans made or outstanding in Dollars
from ABR Loans to Eurocurrency Loans outstanding in Dollars by giving the
Administrative Agent at least three Business Days’ prior irrevocable notice of
such election. Any such notice of conversion to Eurocurrency Loans outstanding
in Dollars shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the Administrative Agent
shall promptly notify each affected Lender thereof. All or any part of
outstanding Eurocurrency Loans made or outstanding in Dollars and ABR Loans may
be converted as provided herein, provided that (i) (unless the Required
Lenders otherwise consent) no Loan may be converted into a Eurocurrency Loan
when any Default or Event of Default has occurred and is continuing and, in the
case of any Default, the Administrative Agent has given notice to the Parent
Borrower that no such conversions may be made and (ii) no Loan may be converted
into a Eurocurrency Loan after the date that is one month prior to the
Termination Date.


 


(b)           Any Eurocurrency Loan may be
continued as such upon the expiration of the then current Interest Period with
respect thereto by the Parent Borrower giving notice to the Administrative
Agent of the length of the next Interest Period to be applicable to such Loan,
determined in accordance with the applicable provisions of the term “Interest
Period” set forth in subsection 1.1, provided that no Eurocurrency Loan
may be continued as such (i) (unless the Required Lenders otherwise consent)
when any Default or Event of Default has occurred and is continuing and, in the
case of any Default, the Administrative Agent has given notice to the Parent
Borrower that no such continuations may be made or (ii) after the date that is
one month prior to the Termination Date, and provided, further,
that (A) in the case of Eurocurrency Loans made or outstanding in Dollars, if
the Parent Borrower shall fail to give any required notice as described above
in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Eurocurrency Loans shall be automatically converted to
ABR Loans on the last day of such then expiring Interest Period and (B) if the
Parent Borrower shall fail to give any required notice as described above in
this paragraph or if such continuation is not permitted pursuant to clause (i)
of the preceding proviso, such Eurocurrency Loans will be continued for the
shortest available Interest Periods as determined by the Administrative Agent. Upon
receipt of any such notice of continuation pursuant to this subsection 4.2(b),
the Administrative Agent shall promptly notify each affected Lender thereof.


 


4.3           Minimum
Amounts of Sets.  All borrowings,
conversions and continuations of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Eurocurrency Loans outstanding in Dollars comprising each Set shall be 


 


53

















 


equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and so that there shall not be more than 15 Sets
at any one time outstanding (other than Sets comprised of New Term Loans, if
any).


 


4.4           Optional
and Mandatory Prepayments.  (a)  The Parent Borrower may at any time and from
time to time prepay the Loans made to it and, in accordance with subsection
3.05, the Reimbursement Amounts in respect of Letters of Credit issued for its
account, in whole or in part, subject to subsection 4.12, without premium or
penalty, upon at least three Business Days’ irrevocable notice by the Parent
Borrower to the Administrative Agent (in the case of Eurocurrency Loans
outstanding), at least one Business Day’s irrevocable notice by the Parent
Borrower to the Administrative Agent (in the case of (x) ABR Loans and (y)
Reimbursement Amounts outstanding in Dollars). Such notice shall specify, in
the case of any prepayment of Loans, the date and amount of prepayment and
whether the prepayment is of Eurocurrency Loans, ABR Loans or a combination
thereof, and, in each case if a combination thereof, the principal amount
allocable to each and, in the case of any prepayment of Reimbursement Amounts,
the date and amount of prepayment, the identity of the applicable Letter of
Credit or Letters of Credit and the amount allocable to each of such Reimbursement
Amounts. Upon the receipt of any such notice the Administrative Agent shall
promptly notify each affected Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein, together with (if a Eurocurrency Loan is prepaid other than at the end
of the Interest Period applicable thereto) any amounts payable pursuant to
subsection 4.12 and accrued interest to such date on the amount prepaid. Partial
prepayments of (1) the Term Loans pursuant to this subsection shall be applied
pro rata to the respective installments of principal thereof, provided
that notwithstanding the foregoing, any such partial prepayment may, at the
option of the Parent Borrower, be first allocated to the Term Loans pro rata
based upon the aggregate amount of the installments thereof due in the next
twelve months and then the remainder of such partial prepayment shall be
allocated and applied as set forth above, and (2) the Reimbursement Amounts
pursuant to this subsection shall be applied to cash collateralize any
outstanding L/C Obligation on terms reasonably satisfactory to the
Administrative Agent. Partial prepayments pursuant to this subsection 4.4(a)
shall be in multiples of $1,000,000; provided that, notwithstanding the
foregoing, any Loan may be prepaid in its entirety.


 


(b)           If on or after the Closing Date (i)
the Parent Borrower or any of its Subsidiaries shall incur Indebtedness for
borrowed money (other than Indebtedness permitted pursuant to subsection 8.2,
except as otherwise specified in subsection 8.2) pursuant to a public offering
or private placement or otherwise, (ii) the Parent Borrower or any of its
Subsidiaries (other than any Special Purpose Subsidiary) shall make an Asset
Sale pursuant to subsection 8.6(h), (iii) a Recovery Event occurs or (iv) the
Parent Borrower or any of its Subsidiaries shall enter into a Sale and
Leaseback Transaction, then, in each case, if and to the extent the applicable
Net Cash Proceeds are not required to be applied to the payment of obligations
of the Parent Borrower or the other borrowers under the ABL Facility, the
Parent Borrower shall prepay, in accordance with subsection 4.4(d), the Loans
and cash collateralize the L/C Obligations in an amount equal to:  (x) in the case of the incurrence of any such
Indebtedness, 100% of the Net Cash Proceeds thereof; (y) in the case of any
such Asset Sale or Recovery Event, 100% of the Net Cash Proceeds thereof minus
any Reinvested Amounts; and (z) in the case of any such Sale and Leaseback
Transaction, 100% of the Net Cash Proceeds thereof, in each case with such
prepayment to be made on the Business Day following the date of receipt of any
such Net Cash 


 


54

















 


Proceeds except that, in the case of clause
(y), if any such Net Cash Proceeds are eligible to be reinvested in accordance
with the definition of the term “Reinvested Amount” in subsection 1.1 and the
Parent Borrower has not elected to reinvest such proceeds (or portion thereof,
as the case may be), such prepayment to be made on the earlier of (1) the date
on which the certificate of a Responsible Officer of the Parent Borrower to
such effect is delivered to the Administrative Agent in accordance with such
definition and (2) the last day of the period within which a certificate
setting forth such election is required to be delivered in accordance with such
definition). Nothing in this paragraph (b) shall limit the rights of the Agents
and the Lenders set forth in Section 9.


 


(c)           Commencing March 31, 2007, and on
each March 31 thereafter, the Parent Borrower shall, in accordance with
subsection 4.4(d), apply toward the prepayment of the Loans and the cash
collateralization of the L/C Obligations the ECF Percentage of the Parent Borrower’s
Excess Cash Flow for the fiscal year ending on the immediately preceding
December 31.


 


(d)           Prepayments pursuant to subsections
4.4(b) and (c) shall be applied, first, to prepay Term Loans then
outstanding and second, to cash collateralize any outstanding L/C
Obligations in an amount equal to 100% of such outstanding L/C Obligations on
terms reasonably satisfactory to the Administrative Agent. Prepayments of Term
Loans pursuant to subsections 4.4(b) and (c) shall be applied pro rata to
the respective installments of principal thereof; provided that
notwithstanding the foregoing, any such payment may, at the option of the
Parent Borrower, be first allocated to the Term Loans pro rata based upon the
aggregate amount of the installments thereof due in the next twelve months and,
thereafter, the remainder of such prepayment shall be allocated and applied as
provided above.


 


(e)           Amounts prepaid on account of Term
Loans pursuant to subsection 4.4(a), 4.4(b) or 4.4(c) may not be reborrowed.


 


(f)            Notwithstanding the foregoing
provisions of this subsection 4.4, if at any time any prepayment of the Loans
pursuant to subsection 4.4(a) or 4.4(b) would result, after giving effect to
the procedures set forth in this Agreement, in the Parent Borrower incurring
breakage costs under subsection 4.12 as a result of Eurocurrency Loans being
prepaid other than on the last day of an Interest Period with respect thereto,
then, the Parent Borrower may, so long as no Default or Event of Default shall
have occurred and be continuing, in its sole discretion, initially deposit a
portion (up to 100%) of the amounts that otherwise would have been paid in
respect of such Eurocurrency Loans with the Administrative Agent (which deposit
must be equal in amount to the amount of such Eurocurrency Loans not
immediately prepaid), to be held as security for the obligations of the Parent
Borrower to make such prepayment pursuant to a cash collateral agreement to be
entered into on terms reasonably satisfactory to the Administrative Agent with
such cash collateral to be directly applied upon the first occurrence
thereafter of the last day of an Interest Period with respect to such
Eurocurrency Loans (or such earlier date or dates as shall be requested by the
Parent Borrower); provided that, such unpaid Eurocurrency Loans shall
continue to bear interest in accordance with subsection 4.1 until such unpaid
Eurocurrency Loans or the related portion of such Eurocurrency Loans have or
has been prepaid.


 


55

















 


(g)           (i) Upon at least three Business Days’
prior written notice (or telephonic notice promptly confirmed in writing) to
the Administrative Agent (which notice Administrative Agent shall promptly
transmit to each of the Lenders), the Parent Borrower shall have the right,
without premium or penalty, on any day, permanently to reduce the Letter of
Credit Commitments in whole or in part, provided that (A) any partial
reduction pursuant to this subsection 4.4(g) shall be in an aggregate minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess of that
amount and (B) after giving effect to such reduction and to any cancellation or
cash collateralization of Letters of Credit made on the date thereof in
accordance with this Agreement, the aggregate amount of the Lenders’ Letter of
Credit Exposures shall not exceed the Total Credit Linked Deposit and (ii) upon
any prepayment, repayment or other satisfaction, whether in part or in full, of
any Assumed Indebtedness with a maturity date that is scheduled to occur on or before August 15,
2007, with proceeds other than from Delayed Draw Term Loans, the Delayed Draw
Term Loan Commitments shall nonetheless automatically reduce on a
dollar-for-dollar basis in an amount equal to such prepayment, repayment or the
aggregate amount of the obligation otherwise satisfied, such reduction being
applied pro rata to each Lender then holding a Delayed Draw Term Loan
Commitment. In the event the Letter of Credit Commitments shall be
reduced as provided in the immediately preceding sentence, the Administrative
Agent shall reduce the Total Credit Linked Deposits in a corresponding amount,
and return all amounts in the Credit Linked Deposit Account in excess of the
reduced Total Credit Linked Deposit to the L/C Participants ratably in
accordance with their Letter of Credit Percentage of the Total Credit Linked
Deposit (as determined immediately prior to such reduction).


 


(h)           The Parent Borrower shall have the
right, upon not less than three Business Days’ notice to the Administrative
Agent (which will promptly notify the Lenders thereof), to terminate the
Delayed Draw Term Loan Commitments or, from time to time, to reduce the amount
of the Delayed Draw Term Loan Commitments. Any such reduction shall be in an
amount equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof
and shall reduce permanently the Delayed Draw Term Loan Commitments then in
effect.


 


4.5           Commitment
Fees; Administrative Agent’s Fee; Other Fees.  (a)  The
Parent Borrower agrees to pay to the Administrative Agent for the account of
each applicable Lender (other than a Defaulting Lender), a commitment fee for
the period from and including the first day of the Delayed Draw Term Loan
Commitment Period to the Termination Date, computed at the Delayed Draw
Commitment Fee Rate on the average daily amount of the unutilized Delayed Draw
Term Loan Commitment of such Lender during the period for which payment is
made, payable quarterly in arrears on the last day of each March, June,
September and December and on the Termination Date or such earlier date as the
Delayed Draw Term Loan Commitments shall terminate as provided herein,
commencing on December 31, 2005.


 


(b)           The Parent Borrower agrees to pay
quarterly in arrears to the Administrative Agent for the account of each
applicable Lender (other than a defaulting Lender) having Letter of Credit
Exposure a fee in respect of such Lender’s Credit Linked Deposits (the “L/C
Fees”), on each L/C Fee Payment Date for the period from and including the
Closing Date to but excluding the date on which such Credit Linked Deposit is
returned to such Lender, computed at the per annum rate for each date equal to
(A) the Applicable Margin for Eurocurrency Loans times (B) the average daily
amount of such Credit Linked Deposit. The L/C 


 


56

















 


Fees shall be nonrefundable and shall be
payable in Dollars, notwithstanding that a Letter of Credit may be denominated
in the Designated Foreign Currency. In respect of a Letter of Credit denominated
in the Designated Foreign Currency, such fees and commissions shall be
converted into Dollars at the Spot Rate of Exchange.


 


(c)           The Parent Borrower agrees to pay to
the Administrative Agent and the Other Representatives any fees in the amounts
and on the dates previously agreed to in writing by Holdings, the Other
Representatives and the Administrative Agent in connection with this Agreement.


 


4.6           Computation
of Interest and Fees.  (a)  Interest (other than interest based on the
Prime Rate) shall be calculated on the basis of a 360-day year for the actual
days elapsed; and commitment fees and interest based on the Prime Rate shall be
calculated on the basis of a 365- (or 366-day year, as the case may be) day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Parent Borrower and the affected Lenders of each
determination of a Eurocurrency Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify the Parent Borrower and the affected Lenders of the effective date and
the amount of each such change in interest rate.


 


(b)           Each determination of an interest
rate by the Administrative Agent pursuant to any provision of this Agreement
shall be conclusive and binding on the Parent Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of
the Parent Borrower or any Lender, deliver to the Parent Borrower or such
Lender a statement showing in reasonable detail the calculations used by the
Administrative Agent in determining any interest rate pursuant to subsection
4.1, excluding any Eurocurrency Base Rate which is based upon the Telerate
British Bankers Assoc. Interest Settlement Rates Page and any ABR Loan which is
based upon the Prime Rate.


 


4.7           Inability
to Determine Interest Rate.  If prior
to the first day of any Interest Period, the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the Parent
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurocurrency
Rate with respect to any Eurocurrency Loan (the “Affected Rate”) for
such Interest Period, the Administrative Agent shall give telecopy or
telephonic notice thereof to the Parent Borrower and the Lenders as soon as
practicable thereafter. If such notice is given (a) any Eurocurrency Loans the
rate of interest applicable to which is based on the Affected Eurocurrency Rate
requested to be made on the first day of such Interest Period shall be made as
ABR Loans (to the extent otherwise permitted by subsection 4.2) and (b) any
Loans that were to have been converted on the first day of such Interest Period
to or continued as Eurocurrency Loans the rate of interest applicable to which
is based upon the Affected Eurocurrency Rate shall be converted to or continued
as ABR Loans (to the extent otherwise permitted by subsection 4.2).


 


4.8           Pro
Rata Treatment and Payments.  (a)  Each payment by the Parent Borrower on
account of any commitment fee in respect of the Delayed Draw Term Commitments
hereunder shall be allocated by the Administrative Agent and any reduction of
the 


 


57

















 


Delayed Draw Term Loan Commitments of the
Lenders shall be allocated by the Administrative Agent pro rata according to
the Delayed Draw Term Loan Percentage of the Lenders. Each payment (including
each prepayment) by the Parent Borrower on account of principal of and interest
on any Term Loans shall be allocated by the Administrative Agent pro rata according
to the respective outstanding principal amounts of the Term Loans then held by
the respective Lenders. All payments (including prepayments) to be made by the
Parent Borrower hereunder, whether on account of principal, interest, fees,
Reimbursement Amounts or otherwise, shall be made without set-off or
counterclaim and shall be made prior to 1:00 P.M., New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders or
the L/C Participants, as the case may be, at the Administrative Agent’s office
specified in subsection 11.2, in Dollars and L/C Obligations in the Designated
Foreign Currency and, whether in Dollars or the Designated Foreign Currency, in
immediately available funds. Payments received by the Administrative Agent
after such time shall be deemed to have been received on the next Business Day.
The Administrative Agent shall distribute such payments to such Lenders, if any
such payment is received prior to 1:00 P.M., New York City time, on a Business
Day, in like funds as received prior to the end of such Business Day and
otherwise the Administrative Agent shall distribute such payment to such
Lenders on the next succeeding Business Day. If any payment hereunder (other
than payments on the Eurocurrency Loans) becomes due and payable on a day other
than a Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a Eurocurrency Loan becomes due and payable on a day other than
a Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day (and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension)
unless the result of such extension would be to extend such payment into
another calendar month, in which event such payment shall be made on the
immediately preceding Business Day.


 


(b)           Unless the Administrative Agent shall
have been notified in writing by any Lender prior to a borrowing that such
Lender will not make the amount that would constitute its share of such
borrowing available to such Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent, and
the Administrative Agent may, in reliance upon such assumption, make available
to the Parent Borrower in respect of such borrowing a corresponding amount. If
such amount is not made available to the Administrative Agent by the required
time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent on demand, such amount with interest thereon at a rate
equal to the daily average Federal Funds Effective Rate as quoted by the
Administrative Agent for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender’s share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such
Borrowing Date, (x) the Administrative Agent shall notify the Parent Borrower
of the failure of such Lender to make such amount available to the
Administrative Agent and the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans hereunder on demand, from the Parent Borrower and (y) then the Parent
Borrower may, without waiving or limiting any rights or remedies it may have
against such Lender hereunder or under applicable law or otherwise, (i) borrow
a like amount on an unsecured basis from any 


 


58

















 


commercial bank for a period ending on the
date upon which such Lender does in fact make such borrowing available, provided
that at the time such borrowing is made and at all times while such amount is
outstanding the Parent Borrower would be permitted to borrow such amount
pursuant to subsection 2.1 and/or (ii) take any action permitted by the
following subsection 4.8(c).


 


(c)           Notwithstanding anything contained in
this Agreement:


 


(i)            If at any time a Lender shall not
make a Delayed Draw Term Loan required to be made by it hereunder (any such
Lender, a “Defaulting Lender”), the Parent Borrower shall have the right
to seek one or more Persons reasonably satisfactory to the Administrative Agent
and the Parent Borrower to each become a substitute Lender and assume all or
part of the Delayed Draw Term Loan Commitment of such Defaulting Lender. In
such event, the Parent Borrower, the Administrative Agent and any such
substitute Lender shall execute and deliver, and such Defaulting Lender shall
thereupon be deemed to have executed and delivered, an appropriately completed
Assignment and Acceptance to effect such substitution.


 


(ii)           In determining the Required Lenders,
any Lender that at the time is a Defaulting Lender (and the Delayed Draw Term
Loan and/or Delayed Draw Term Loan Commitment of such Defaulting Lender) shall
be excluded and disregarded. No commitment fee shall accrue for the account of
a Defaulting Lender so long as such Lender shall be a Defaulting Lender.


 


4.9           Illegality.
 Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof occurring after the Closing Date shall
make it unlawful for any Lender to make or maintain any Eurocurrency Loans as
contemplated by this Agreement (“Affected Loans”), (a) such Lender shall
promptly give written notice of such circumstances to the Parent Borrower and
the Administrative Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Affected Loans, continue Affected Loans as such and convert an ABR Loan to
an Affected Loan shall forthwith be cancelled and, until such time as it shall
no longer be unlawful for such Lender to make or maintain such Affected Loans,
such Lender shall then have a commitment only to make an ABR Loan when an
Affected Loan is requested (to the extent otherwise permitted by subsection
4.2), (c) such Lender’s Loans then outstanding as Affected Loans, if any, shall
be converted automatically to ABR Loans on the respective last days of the then
current Interest Periods with respect to such Loans or within such earlier
period as required by law (to the extent otherwise permitted by subsection 4.2)
and (d) such Lender’s Loans then outstanding as Affected Loans, if any, not
otherwise permitted to be converted to ABR Loans by subsection 4.2 shall, upon
notice to the Parent Borrower, be prepaid with accrued interest thereon on the
last day of the then current Interest Period with respect thereto (or such
earlier date as may be required by any such Requirement of Law). If any such
conversion or prepayment of an Affected Loan occurs on a day which is not the
last day of the then current Interest Period with respect thereto, the Parent
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to subsection 4.12.


 


59

















 


4.10         Requirements
of Law.  (a)  If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable
to any Lender, or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority, in each case made subsequent to the Closing Date (or,
if later, the date on which such Lender becomes a Lender):


 


(i)            shall subject such Lender to any tax
of any kind whatsoever with respect to any Letter of Credit, any L/C Request,
or any Eurocurrency Loans made or maintained by it or its obligation to make or
maintain Eurocurrency Loans, or change the basis of taxation of payments to
such Lender in respect thereof in each case, except for Non-Excluded Taxes and
taxes measured by or imposed upon the overall net income, or franchise taxes,
or taxes measured by or imposed upon overall capital or net worth, or branch
taxes (in the case of such capital, net worth or branch taxes, imposed in lieu
of such net income tax), of such Lender or its applicable lending office,
branch, or any affiliate thereof;


 


(ii)           shall impose, modify or hold
applicable any reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other acquisition of
funds by, any office of such Lender which is not otherwise included in the
determination of the Eurocurrency Rate hereunder; or


 


(iii)          shall impose on such Lender any other
condition (excluding any tax of any kind whatsoever);


 


and the result
of any of the foregoing is to increase the cost to such Lender, by an amount
which such Lender deems to be material, of making, converting into, continuing
or maintaining Eurocurrency Loans or issuing or participating in Letters of
Credit or to reduce any amount receivable hereunder in respect thereof, then,
in any such case, upon notice to the Parent Borrower from such Lender, through
the Administrative Agent, in accordance herewith, the Parent Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable
with respect to such Eurocurrency Loans or Letters of Credit, provided
that, in any such case, the Parent Borrower may elect to convert the
Eurocurrency Loans made by such Lender hereunder to ABR Loans (to the extent,
in the case of Eurocurrency Loans, such Eurocurrency Loans are denominated in
Dollars and, in all cases, to the extent such Loans are permitted by subsection
4.2) by giving the Administrative Agent at least one Business Day’s notice of
such election, in which case the Parent Borrower shall promptly pay to such
Lender, upon demand, without duplication, amounts theretofore required to be
paid to such Lender pursuant to this subsection 4.10(a) and such amounts, if
any, as may be required pursuant to subsection 4.12. If any Lender becomes
entitled to claim any additional amounts pursuant to this subsection, it shall
provide prompt notice thereof to the Parent Borrower, through the
Administrative Agent, certifying (x) that one of the events described in this
paragraph (a) has occurred and describing in reasonable detail the nature of
such event, (y) as to the increased cost or reduced amount resulting from such
event and (z) as to the additional amount demanded by such Lender and a
reasonably detailed explanation of the calculation thereof. Such a certificate
as to any additional amounts payable 


 


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pursuant to
this subsection submitted by such Lender, through the Administrative Agent, to
the Parent Borrower shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.


 


(b)           If any Lender shall have determined
that the adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof or compliance by such
Lender or any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority, in each case, made subsequent to the Closing Date, does
or shall have the effect of reducing the rate of return on such Lender’s or
such corporation’s capital as a consequence of such Lender’s obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or such corporation could have achieved but for such change
or compliance (taking into consideration such Lender’s or such corporation’s
policies with respect to capital adequacy) by an amount deemed by such Lender
to be material, then from time to time, within ten Business Days after
submission by such Lender to the Parent Borrower (with a copy to the
Administrative Agent) of a written request therefor certifying (x) that
one of the events described in this paragraph (b) has occurred and describing
in reasonable detail the nature of such event, (y) as to the reduction of the
rate of return on capital resulting from such event and (z) as to the
additional amount or amounts demanded by such Lender or corporation and a
reasonably detailed explanation of the calculation thereof, the Parent Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender or corporation for such reduction. Such a certificate as to any
additional amounts payable pursuant to this subsection submitted by such
Lender, through the Administrative Agent, to the Parent Borrower shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.


 


(c)           Notwithstanding anything to the
contrary this subsection 4.10, no Borrower shall be required to pay any amount
with respect to any additional cost or reduction specified in paragraph (a) or
paragraph (b) above, to the extent such additional cost or reduction is
attributable, directly or indirectly, to the application of, compliance with or
implementation of specific capital adequacy requirements or new methods of
calculating capital adequacy, including any part or “pillar” (including Pillar
2 (“Supervisory Review Process”)), of the International Convergence of Capital
Measurement Standards: a Revised Framework, published by the Basel Committee on
Banking Supervision in June 2004, or any implementation, adoption (whether
voluntary or compulsory) thereof, whether by an EC Directive or the FSA
Integrated Prudential Sourcebook or any other law or regulation, or otherwise.


 


4.11         Taxes.
 (a) 
Except as provided below in this subsection or as required by law, all
payments made by the Parent Borrower and the Administrative Agent and any
Issuing Lender under this Agreement and any Notes shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority (“Taxes”), excluding
Taxes measured by or imposed upon the overall net income of any Agent or Lender
or its applicable lending office, or any branch or affiliate thereof, and all
franchise Taxes, branch 


 


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Taxes, Taxes on doing business or Taxes
measured by or imposed upon the overall capital or net worth of any such Agent
or Lender or its applicable lending office, or any branch or affiliate thereof,
in each case imposed:  (i) by the
jurisdiction under the laws of which such Agent or Lender, applicable lending
office, branch or affiliate is organized or is located, or in which its principal
executive office is located, or any nation within which such jurisdiction is
located or any political subdivision thereof; or (ii) by reason of any
connection between the jurisdiction imposing such Tax and such Agent or Lender,
applicable lending office, branch or affiliate other than a connection arising
solely from such Agent or Lender having executed, delivered or performed its
obligations under, or received payment under or enforced, this Agreement or any
Notes. If any such non-excluded Taxes (“Non-Excluded Taxes”) are
required to be withheld from any amounts payable by the Parent Borrower or any
Agent to the Administrative Agent or any Lender hereunder or under any Notes,
the amounts so payable by the Parent Borrower shall be increased to the extent
necessary to yield to the Administrative Agent or such Lender (after payment of
all Non-Excluded Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement; provided, however,
that the Parent Borrower shall be entitled to deduct and withhold, and shall
not be required to indemnify for, any Non-Excluded Taxes, and any such amounts
payable by the Parent Borrower or any Agent to, or for the account of, any such
Agent or Lender, shall not be increased (w) with respect to any Non-Excluded
Taxes imposed by the Federal Republic of Germany or any political subdivision
or taxing authority thereof or therein on or with respect to the Credit Linked
Deposit Account or the Credit Linked Deposits or any earnings on any of the
foregoing or any payment therefrom or (x) if such
Agent or Lender fails to comply with the requirements of paragraphs (b) or (c)
of this subsection or subsection 4.14 hereof or (y) with respect to any
Non-Excluded Taxes imposed in connection with the payment of any fees paid
under this Agreement unless such Non-Excluded Taxes are imposed as a result of
a change in treaty, law or regulation that occurred after such Agent
becomes an Agent hereunder or such Lender becomes a Lender hereunder (or, if
such Agent or Lender is a non-U.S. intermediary or flow-through entity for U.S.
federal income tax purposes, after the relevant beneficiary or member of such
Agent or Lender became such a beneficiary or member, if later) (such
change, at such time, a “Change in Law”) or (z) with respect to any
Non-Excluded Taxes imposed by the United States or any state or political
subdivision thereof, unless such Non-Excluded Taxes are imposed as a result of
a Change in Law. Whenever any Non-Excluded Taxes are payable by the
Parent Borrower, as promptly as possible thereafter the Parent Borrower shall
send to the Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt
received by the Parent Borrower showing payment thereof. If the Parent Borrower
fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts
or other required documentary evidence, the Parent Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as
a result of any such failure. The agreements in this subsection 4.11 shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.


 


(b)           Each Agent and each Lender, in each
case that is not incorporated under the laws of the United States of America or
a state thereof shall:


 


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(X)          (i)  on or before the date of any payment by the
Parent Borrower under this Agreement or any Notes to, or for the account of,
such Agent or Lender, deliver to the Parent Borrower and the Administrative
Agent (A) two duly completed copies of Internal Revenue Service Form W-8BEN
(certifying that it is a resident of the applicable country within the meaning
of the income tax treaty between the United States and that country) or Form W-8ECI,
or successor applicable form, as the case may be, in each case certifying that
it is entitled to receive all payments under this Agreement and any Notes without deduction or withholding of
any United States federal income taxes, (B) in the case of DBNY, also deliver
two duly completed copies of Internal Revenue Service Form W-8IMY certifying
that it is a “U.S. branch” and that the payments it receives for the account of
others are not effectively connected with the conduct of its trade or business
in the United States and that it is using such form as evidence of its
agreement with the Parent Borrower to be treated as a U.S. person with respect
to such payments (and the Parent Borrower and DBNY agree to so treat DBNY as a
U.S. person with respect to such payments), with the effect that the Parent
Borrower can make payments to DBNY without deduction or withholding of any
Taxes imposed by the United States and (C) such other forms, documentation or
certifications, as the case may be, certifying that it is entitled to an
exemption from United States backup withholding tax with respect to payments
under this Agreement and any Notes;


 


(ii)           deliver to the Parent Borrower and
the Administrative Agent two further copies of any such form or certification
on or before the date that any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a change in the most
recent form or certificate previously delivered by it to the Parent Borrower;
and


 


(iii)          obtain such extensions of time for
filing and completing such forms or certifications as may reasonably be
requested by the Parent Borrower or the Administrative Agent; or


 


(Y)           in the case of any such Lender that
is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and is
claiming the so-called “portfolio interest exemption”,


 


(i)            represent to the Parent Borrower
that it is not a bank within the meaning of Section 881(c)(3)(A) of the Code;


 


(ii)           deliver to the Parent Borrower on or
before the date of any payment by the Parent Borrower, with a copy to the
Administrative Agent, (A) two certificates substantially in the form of
Exhibit E (any such certificate a “U.S. Tax Compliance Certificate”) and
(B) two accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN, or successor applicable form certifying to such Lender’s
legal entitlement at the date of such form to an exemption from U.S.
withholding tax under the provisions of Section 871(h) or Section 881(c) of the
Code with respect to payments to be made under 


 


63

















 


this Agreement and
any Notes (and shall also deliver to the Parent Borrower and the Administrative
Agent two further copies of such form or certificate on or before the date it
expires or becomes obsolete and after the occurrence of any event requiring a
change in the most recently provided form or certificate and, if necessary,
obtain any extensions of time reasonably requested by the Parent Borrower or
the Administrative Agent for filing and completing such forms or certificates);
and


 


(iii)          deliver, to the extent legally
entitled to do so, upon reasonable request by the Parent Borrower, to the
Parent Borrower and the Administrative Agent such other forms as may be
reasonably required in order to establish the legal entitlement of such Lender
to an exemption from withholding with respect to payments under this Agreement
and any Notes, provided that in determining the reasonableness of a
request under this clause (ii) such Lender shall be entitled to consider the
cost (to the extent unreimbursed by the Parent Borrower) which would be imposed
on such Lender of complying with such request; or


 


(Z)           in the case of any such Lender that
is a non-U.S. intermediary or flow-through entity for U.S. federal income tax
purposes,


 


(i)            on or before the date of any payment
by the Parent Borrower under this Agreement or any Notes to, or for the account
of, such Lender, deliver to the Parent Borrower and the Administrative Agent
two accurate and complete original signed copies of Internal Revenue Service
Form W-8IMY and, if any beneficiary or member of such Lender is claiming the
so-called “portfolio interest exemption”, (I) represent to the Parent Borrower
and the Administrative Agent that such Lender is not a bank within the meaning
of Section 881(c)(3)(A) of the Code, and (II) also deliver to the Parent
Borrower and the Administrative Agent two U.S. Tax Compliance Certificates
certifying to such Lender’s legal entitlement at the date of such certificate
to an exemption from U.S. Withholding tax under the provisions of Section
881(c) of the Code with respect to payments to be made under this Agreement and
any Notes; and


 


(A)          with
respect to each beneficiary or member of such Lender that is not claiming the
so-called “portfolio interest exemption”, also deliver to the Parent Borrower
and the Administrative Agent (I) two duly completed copies of United
States Internal Revenue Service Form W-8BEN (certifying that such beneficiary
or member is a resident of the applicable country within the meaning of the
income tax treaty between the United States and that country), Form W-8ECI or
Form W-9, or successor applicable form, as the case may be, in each case so
that each such beneficiary or member is entitled to receive all payments under
this Agreement and any Notes without deduction or withholding of any United
States federal income taxes and (II) such other forms, documentation or
certifications, as the case may be, certifying that each such beneficiary or member
is entitled to an exemption from United States backup 


 


64

















 


withholding
tax with respect to all payments under this Agreement and any Notes; and


 


(B)           with
respect to each beneficiary or member of such Lender that is claiming the
so-called “portfolio interest exemption”, (I) represent to the Parent Borrower
that such beneficiary or member is not a bank within the meaning of Section
881(c)(3)(A) of the Code, and (II) also deliver to the Parent Borrower and the
Administrative Agent two U.S. Tax Compliance Certificates from each beneficiary
or member and two accurate and complete original signed copies of Internal
Revenue Service Form W-8BEN, or successor applicable form, certifying to such
beneficiary’s or member’s legal entitlement at the date of such certificate to
an exemption from U.S. withholding tax under the provisions of Section 871(h)
or Section 881(c) of the Code with respect to payments to be made under this
Agreement and any Notes;


 


(ii)           deliver to the Parent Borrower and
the Administrative Agent two further copies of any such forms, certificates or
certifications referred to above on or before the date any such form,
certificate or certification expires or becomes obsolete, or any beneficiary or
member changes, and after the occurrence of any event requiring a change in the
most recently provided form, certificate or certification and obtain such
extensions of time reasonably requested by the Parent Borrower or the
Administrative Agent for filing and completing such forms, certificates or
certifications; and


 


(iii)          deliver, to the extent legally
entitled to do so, upon reasonable request by the Parent Borrower, to the
Parent Borrower and the Administrative Agent such other forms as may be
reasonably required in order to establish the legal entitlement of such Lender
(or beneficiary or member) to an exemption from withholding with respect to
payments under this Agreement and any Notes, provided that in
determining the reasonableness of a request under this clause (iii) such Lender
shall be entitled to consider the cost (to the extent unreimbursed by the
Parent Borrower) which would be imposed on such Lender (or beneficiary or
member) of complying with such request;


 


unless in any
such case any change in treaty, law or regulation has occurred after the date
such Person becomes a Lender hereunder (or a beneficiary or member in the
circumstances described in clause (Z) above, if later) which renders all such
forms inapplicable or which would prevent such Lender (or such beneficiary or
member) from duly completing and delivering any such form with respect to it
and such Lender so advises the Parent Borrower and the Administrative Agent.


 


(c)           Each Lender and each Agent, in each
case that is organized under the laws of the United States of America or a
state thereof, shall on or before the date of any payment by the Parent
Borrower under this Agreement or any Notes to such Lender or Agent, deliver to
the Parent Borrower and the Administrative Agent two duly completed copies of
Internal Revenue Service Form W-9, or successor form, certifying that such
Lender or Agent is a United States 


 


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Person (within the meaning of Section
7701(a)(30) of the Internal Revenue Code) and that such Lender or Agent is
entitled to a complete exemption from United States backup withholding tax.


 


4.12         Indemnity.
 The Parent Borrower agrees to indemnify
each Lender and to hold each such Lender harmless from any loss or expense
which such Lender may sustain or incur (other than through such Lender’s gross
negligence or willful misconduct) as a consequence of (a) default by the Parent
Borrower in making a borrowing of, conversion into or continuation of
Eurocurrency Loans after the Parent Borrower has given a notice requesting the
same in accordance with the provisions of this Agreement, (b) default by the
Parent Borrower in making any prepayment or conversion of Eurocurrency Loans
after the Parent Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a payment or prepayment of
Eurocurrency Loans or the conversion of Eurocurrency Loans on a day which is
not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or
converted, or not so borrowed, converted or continued, for the period from the
date of such prepayment or conversion or of such failure to borrow, convert or
continue to the last day of the applicable Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Eurocurrency Loans, as applicable, provided for herein
(excluding, however, the Applicable Margin included therein, if any) over (ii)
the amount of interest (as reasonably determined by such Lender) which would
have accrued to such Lender on such amount by placing such amount on deposit
for a comparable period with leading banks in the interbank eurocurrency market.
If any Lender becomes entitled to claim any amounts under the indemnity
contained in this subsection 4.12, it shall provide prompt notice thereof to
the Parent Borrower, through the Administrative Agent, certifying (x) that one
of the events described in clause (a), (b) or (c) has occurred and describing
in reasonable detail the nature of such event, (y) as to the loss or expense
sustained or incurred by such Lender as a consequence thereof and (z) as to the
amount for which such Lender seeks indemnification hereunder and a reasonably
detailed explanation of the calculation thereof. Such a certificate as to any
indemnification pursuant to this subsection submitted by such Lender, through
the Administrative Agent, to the Parent Borrower shall be conclusive in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.


 


4.13         Certain
Rules Relating to the Payment of Additional Amounts.  (a) 
Upon the request, and at the expense of the Parent Borrower, each Lender
to which the Parent Borrower is required to pay any additional amount pursuant
to subsection 4.10 or 4.11, and any Participant in respect of whose
participation such payment is required, shall reasonably afford the Parent
Borrower the opportunity to contest, and reasonably cooperate with the Parent
Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to
such payment; provided that (i) such Lender shall not be required to
afford the Parent Borrower the opportunity to so contest unless the Parent
Borrower shall have confirmed in writing to such Lender its obligation to pay
such amounts pursuant to this Agreement and (ii) the Parent Borrower shall
reimburse such Lender for its reasonable attorneys’ and accountants’ fees and
disbursements incurred in so cooperating with the Parent Borrower in contesting
the imposition of such Non-Excluded Tax; provided, however, that
notwithstanding the foregoing no Lender shall be required to afford the Parent
Borrower the opportunity to contest, or cooperate with the Parent 


 


66

















 


Borrower in contesting, the imposition of any
Non-Excluded Taxes, if such Lender in its sole discretion in good faith
determines that to do so would have an adverse effect on it.


 


(b)           If a Lender changes its applicable
lending office (other than (i) pursuant to paragraph (c) below or (ii) after an
Event of Default under subsection 9(a) or (f) has occurred and is continuing)
and the effect of such change, as of the date of such change, would be to cause
the Parent Borrower to become obligated to pay any additional amount under
subsection 4.10 or 4.11, the Parent Borrower shall not be obligated to pay such
additional amount.


 


(c)           If a condition or an event occurs
which would, or would upon the passage of time or giving of notice, result in
the payment of any additional amount to any Lender by the Parent Borrower
pursuant to subsection 4.10 or 4.11, such Lender shall promptly notify the
Parent Borrower and the Administrative Agent and shall take such steps as may
reasonably be available to it to mitigate the effects of such condition or
event (which shall include efforts to rebook the Loans held by such Lender at
another lending office, or through another branch or an affiliate, of such
Lender); provided that such Lender shall not be required to take any
step that, in its reasonable judgment, would be materially disadvantageous to
its business or operations or would require it to incur additional costs
(unless the Parent Borrower agrees to reimburse such Lender for the reasonable
incremental out-of-pocket costs thereof).


 


(d)           If the Parent Borrower shall become
obligated to pay additional amounts pursuant to subsection 4.10 or 4.11 and any
affected Lender shall not have promptly taken steps necessary to avoid the need
for payments under subsection 4.10 or 4.11, the Parent Borrower shall have the
right, for so long as such obligation remains, (i) with the assistance of the
Administrative Agent, to seek one or more substitute Lenders reasonably
satisfactory to the Administrative Agent and the Parent Borrower to purchase
the affected Loan, in whole or in part, at an aggregate price no less than such
Loan’s principal amount plus accrued interest, and assume the affected
obligations under this Agreement, or (ii) so long as no Default or Event of
Default then exists or will exist immediately after giving effect to the
respective prepayment, upon at least four Business Days’ irrevocable notice to
the Administrative Agent, to prepay the affected Loan, in whole or in part,
subject to subsection 4.12, without premium or penalty. In the case of the
substitution of a Lender, the Parent Borrower, the Administrative Agent, the
affected Lender, and any substitute Lender shall execute and deliver an
appropriately completed Assignment and Acceptance pursuant to subsection
11.6(b) to effect the assignment of rights to, and the assumption of
obligations by, the substitute Lender; provided that any fees required
to be paid by subsection 11.6(b) in connection with such assignment shall be
paid by the Parent Borrower or the substitute Lender. In the case of a
prepayment of an affected Loan, the amount specified in the notice shall be due
and payable on the date specified therein, together with any accrued interest
to such date on the amount prepaid. In the case of each of the substitution of
a Lender and of the prepayment of an affected Loan, the Parent Borrower shall
first pay the affected Lender any additional amounts owing under subsections
4.10 and 4.11 (as well as any commitment fees and other amounts then due and
owing to such Lender, including any amounts under subsection 4.13) prior to
such substitution or prepayment.


 


(e)           If any Agent or any Lender receives a
refund directly attributable to taxes for which the Parent Borrower has made
additional payments pursuant to subsection 4.10(a) or 4.11(a), such Agent or
such Lender, as the case may be, shall promptly pay such refund (together 


 


67

















 


with any interest with respect thereto
received from the relevant taxing authority, but net of any reasonable cost
incurred in connection therewith) to the Parent Borrower; provided, however,
that the Parent Borrower agrees promptly to return such refund (together with
any interest with respect thereto due to the relevant taxing authority) (free
of all Non-Excluded Taxes) to such Agent or the applicable Lender, as the case
may be, upon receipt of a notice that such refund is required to be repaid to
the relevant taxing authority.


 


(f)            The obligations of any Agent, Lender
or Participant under this subsection 4.13 shall survive the termination of this
Agreement and the payment of the Loans and all amounts payable hereunder.


 


4.14         Controls
on Prepayment if Total Lender Exposure Exceeds Total Commitments.  (a)  In
addition to the provisions set forth in subsection 4.4(c), the Parent Borrower
will implement and maintain internal controls to monitor the borrowings and
repayments of Loans by the Parent Borrower and the issuance of and drawings
under Letters of Credit, with the object of preventing any request for an
Extension of Credit that would result in the Total Lender Exposure being in
excess of the Total Commitments then in effect or (ii) any other circumstance
under which an Extension of Credit would not be permitted pursuant to
subsection 2.5 or Section 3 and of promptly identifying any circumstance
where, by reason of changes in exchange rates, the Total Lender Exposure
exceeds the Commitment then in effect or such other circumstance has arisen
which would prevent an Extension of Credit from being made pursuant to
subsection 2.15 or Section 3.


 


(b)           The (i) Administrative Agent will
calculate the Total Lender Credit Exposure from time to time, and in any event
not less frequently than once during each calendar week. In making such
calculations, the Administrative Agent will rely on the information most
recently received by it from the Issuing Lenders in respect of outstanding L/C
Obligations.


 


SECTION
5.   REPRESENTATIONS AND WARRANTIES
 To induce the Administrative
Agent and each Lender to make the Extensions of Credit requested to be made by
it on the Closing Date and on each Borrowing Date thereafter, the Parent
Borrower hereby represents and warrants, on the Closing Date, in each case
after giving effect to the Transactions, and on every Borrowing Date thereafter
to the Administrative Agent and each Lender that:


 


5.1           Financial
Condition.  (a)  The audited consolidated balance sheets of
Hertz and its consolidated Subsidiaries as of December 31, 2002, December 31,
2003 and December 31, 2004 and the related consolidated statements of income,
shareholders’ equity and cash flows for the fiscal years ended on such dates,
reported on by and accompanied by unqualified reports from
PricewaterhouseCoopers LLP, present fairly, in all material respects, the consolidated
financial condition as at such date, and the consolidated results of operations
and consolidated cash flows for the respective fiscal years then ended, of the
Parent Borrower and its consolidated Subsidiaries. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP consistently applied throughout the periods
covered thereby (except as approved by a Responsible Officer, and disclosed in
any such schedules and notes, and subject to the omission of footnotes from
such unaudited financial statements). During the period from December 31,
2004 to and including the Closing Date, except as provided in the Acquisition
Agreement and in connection with the consummation of 


 


68

















 


the Transactions, there has been no sale,
transfer or other disposition by the Parent Borrower and its consolidated
Subsidiaries of any material part of the business or property of the Parent
Borrower and its consolidated Subsidiaries, taken as a whole, and no purchase
or other acquisition by any of them of any business or property (including any
Capital Stock of any other Person) material in relation to the consolidated
financial condition of the Parent Borrower and its consolidated Subsidiaries,
taken as a whole, in each case, which is not reflected in the foregoing
financial statements or in the notes thereto and has not otherwise been
disclosed in writing to the Lenders on or prior to the Closing Date.


 


(b)           The pro forma balance sheet and
statements of operations of the Parent Borrower and its consolidated
Subsidiaries (the “Pro Forma Financial Statements”), copies of which
have heretofore been furnished to each Lender, are the balance sheet and
statements of operations of the Parent Borrower and its consolidated
Subsidiaries as of December 31, 2004 (the “Pro Forma Date”), adjusted to
give effect (as if such events had occurred on such date for purposes of the
balance sheet and on January 1, 2004 for purposes of the statement of
operations), to the consummation of the Transactions, and the Extensions of
Credit hereunder on the Closing Date.


 


5.2           No
Change; Solvent.  Since June 30,
2005, except as and to the extent disclosed on Schedule 5.2, (a) there has been
no development or event relating to or affecting any Loan Party which has had
or would be reasonably expected to have a Material Adverse Effect (after giving
effect to (i) the consummation of the Transactions, (ii) the making of the
Extensions of Credit to be made on the Closing Date and the application of the
proceeds thereof as contemplated hereby, and (iii) the payment of actual or
estimated fees, expenses, financing costs and tax payments related to the
transactions contemplated hereby) and (b) except in connection with the
Transactions or as otherwise permitted under this Agreement and each other Loan
Document, no dividends or other distributions have been declared, paid or made
upon the Capital Stock of the Parent Borrower, nor has any of the Capital Stock
of the Parent Borrower been redeemed, retired, purchased or otherwise acquired
for value by the Parent Borrower or any of its Subsidiaries. As of the Closing
Date, after giving effect to the consummation of the transactions described in
preceding clauses (i) through (iii) in clause (a) above, the Parent Borrower is
Solvent.


 


5.3           Corporate
Existence; Compliance with Law.  Each
of the Loan Parties (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation,
(b) has the corporate power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, except to the extent
that the failure to have such legal right would not be reasonably expected to
have a Material Adverse Effect, (c) is duly qualified as a foreign corporation
or limited liability company and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, other than in such jurisdictions
where the failure to be so qualified and in good standing would not be
reasonably expected to have a Material Adverse Effect and (d) is in compliance
with all Requirements of Law, except to the extent that the failure to comply
therewith would not, in the aggregate, be reasonably expected to have a
Material Adverse Effect.


 


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5.4           Corporate
Power; Authorization; Enforceable Obligations.  Each Loan Party has the corporate power and
authority, and the legal right, to make, deliver and perform the Loan Documents
to which it is a party and, in the case of the Parent Borrower, to obtain
Extensions of Credit hereunder, and each such Loan Party has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Loan Documents to which it is a party and, in the case of the Parent
Borrower, to authorize the Extensions of Credit to it, if any, on the terms and
conditions of this Agreement, any Notes and the L/C Requests. No consent or
authorization of, filing with, notice to or other similar act by or in respect
of, any Governmental Authority or any other Person is required to be obtained
or made by or on behalf of any Loan Party in connection with the execution,
delivery, performance, validity or enforceability of the Loan Documents to
which it is a party or, in the case of the Parent Borrower, with the Extensions
of Credit to it, if any, hereunder, except for (a) consents, authorizations,
notices and filings described in Schedule 5.4, all of which have been obtained
or made prior to the Closing Date, (b) filings to perfect the Liens created by
the Security Documents and (c) filings pursuant to the Assignment of Claims Act
of 1940, as amended (31 U.S.C. § 3727 et seq.), in respect of Accounts of the
Parent Borrower and its Subsidiaries the Obligor in respect of which is the
United States of America or any department, agency or instrumentality thereof
and (d) consents, authorizations, notices and filings which the failure to
obtain or make would not reasonably be expected to have a Material Adverse
Effect. This Agreement has been duly executed and delivered by the Parent
Borrower, and each other Loan Document to which any Loan Party is a party will
be duly executed and delivered on behalf of such Loan Party. This Agreement
constitutes a legal, valid and binding obligation of the Parent Borrower and
each other Loan Document to which any Loan Party is a party when executed and
delivered will constitute a legal, valid and binding obligation of such Loan
Party, enforceable against such Loan Party in accordance with its terms, except
as enforceability may be limited by applicable domestic or foreign bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).


 


5.5           No
Legal Bar.  The execution, delivery
and performance of the Loan Documents by any of the Loan Parties, the
Extensions of Credit hereunder and the use of the proceeds thereof (a) will not
violate any Requirement of Law or Contractual Obligation of such Loan Party in any
respect that would reasonably be expected to have a Material Adverse Effect and
(b) will not result in, or require, the creation or imposition of any Lien
(other than the Liens permitted by subsection 8.3) on any of its properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation.


 


5.6           No
Material Litigation.  No litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Parent Borrower, threatened by
or against CCMGC or any of its Subsidiaries or against any of their respective
properties or revenues, (a) except as described on Schedule 5.6, which is so
pending or threatened at any time on or prior to the Closing Date and relates
to any of the Loan Documents or any of the transactions contemplated hereby or
thereby or (b) which would be reasonably expected to have a Material Adverse
Effect.


 


5.7           No
Default.  Neither the Parent Borrower
nor any of its Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which would be 


 


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reasonably expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.


 


5.8           Ownership
of Property; Liens.  Each of the
Parent Borrower and its Subsidiaries has good title in fee simple to, or a
valid leasehold interest in, all its material real property, and good title to,
or a valid leasehold interest in, all its other material property, and none of
such property is subject to any Lien, except for Liens permitted by subsection
8.3. Except for the Excluded Properties, the Insured Fee Properties as listed
on Part I(a) of Schedule 5.8 and the Mortgaged Fee Properties as listed on Part
I(b) of Schedule 5.8 together constitute all the material real properties owned
in fee by the Loan Parties as of the Closing Date.


 


5.9           Intellectual
Property.  The Parent Borrower and
each of its Subsidiaries owns, or has the legal right to use, all United States
and foreign patents, patent applications, trademarks, trademark applications,
trade names, copyrights, technology, know-how and processes necessary for each
of them to conduct its business as currently conducted (the “Intellectual
Property”) except for those the failure to own or have such legal right to
use would not be reasonably expected to have a Material Adverse Effect. Except
as provided on Schedule 5.9, no claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does the
Parent Borrower know of any such claim, and, to the knowledge of the Parent
Borrower, the use of such Intellectual Property by the Parent Borrower and its
Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements which in the aggregate, would not be reasonably
expected to have a Material Adverse Effect.


 


5.10         No
Burdensome Restrictions.  Neither the
Parent Borrower nor any of its Subsidiaries is in violation of any Requirement
of Law or Contractual Obligation of or applicable to the Parent Borrower or any
of its Subsidiaries that would be reasonably expected to have a Material
Adverse Effect.


 


5.11         Taxes.
 To the knowledge of the Parent Borrower,
each of CCMGC, the Parent Borrower and its Subsidiaries has filed or caused to
be filed all United States federal income tax returns and all other material
tax returns which are required to be filed and has paid (a) all taxes shown to
be due and payable on such returns and (b) all taxes shown to be due and
payable on any assessments of which it has received notice made against it or
any of its property (including the Mortgaged Properties) and all other taxes,
fees or other charges imposed on it or any of its property by any Governmental
Authority (other than any (i) taxes, fees or other charges with respect to
which the failure to pay, in the aggregate, would not have a Material Adverse
Effect or (ii) taxes, fees or other charges the amount or validity of which are
currently being contested in good faith by appropriate proceedings diligently
conducted and with respect to which reserves in conformity with GAAP have been
provided on the books of CCMGC, the Parent Borrower or its Subsidiaries, as the
case may be); and no tax Lien has been filed, and no claim is being asserted,
with respect to any such tax, fee or other charge.


 


5.12         Federal
Regulations.  No part of the proceeds
of any Extensions of Credit will be used for any purpose which violates the
provisions of the Regulations of the Board, including without limitation,
Regulation T, Regulation U or Regulation X of the Board. If 


 


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requested by any Lender or the Administrative
Agent, the Parent Borrower will furnish to the Administrative Agent and each
Lender a statement to the foregoing effect in conformity with the requirements
of FR Form G-3 or FR Form U-1, referred to in said Regulation U.


 


5.13         ERISA.
 (a) 
During the five year period prior to each date as of which this
representation is made, or deemed made, with respect to any Plan (or, with
respect to (f) or (h) below, as of the date such representation is made or
deemed made), none of the following events or conditions, either individually
or in the aggregate, has resulted or is reasonably likely to result in a
Material Adverse Effect:  (a) a
Reportable Event; (b) an “accumulated funding deficiency” (within the meaning
of Section 412 of the Code or Section 302 of ERISA); (c) any noncompliance with
the applicable provisions of ERISA or the Code; (d) a termination of a Single
Employer Plan (other than a standard termination pursuant to Section 4041(b) of
ERISA); (e) a Lien on the property of the Parent Borrower or its Subsidiaries
in favor of the PBGC or a Plan; (f) any Underfunding with respect to any Single
Employer Plan; (g) a complete or partial withdrawal from any Multiemployer Plan
by the Parent Borrower or any Commonly Controlled Entity; (h) any liability of
the Parent Borrower or any Commonly Controlled Entity under ERISA if the Parent
Borrower or any such Commonly Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the annual valuation date most closely
preceding the date on which this representation is made or deemed made; (i) the
Reorganization or Insolvency of any Multiemployer Plan; or (j) any
transactions that resulted or could reasonably be expected to result in any
liability to the Parent Borrower or any Commonly Controlled Entity under
Section 4069 of ERISA or Section 4212(c) of ERISA.


 


(b)           With respect to any Foreign Plan,
none of the following events or conditions exists and is continuing that,
either individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect: (a) substantial non-compliance with its terms and with
the requirements of any and all applicable laws, statutes, rules, regulations
and orders; (b) failure to be maintained, where required, in good standing with
applicable regulatory authorities; (c) any obligation of the Parent Borrower or
its Subsidiaries in connection with the termination or partial termination of,
or withdrawal from, any Foreign Plan; (d) any Lien on the property of the
Parent Borrower or its Subsidiaries in favor of a Governmental Authority as a
result of any action or inaction regarding a Foreign Plan; (e) for each Foreign
Plan which is a funded or insured plan, failure to be funded or insured on an
ongoing basis to the extent required by applicable non-U.S. law (using
actuarial methods and assumptions which are consistent with the valuations last
filed with the applicable Governmental Authorities; (f) any facts that, to the
best knowledge of the Parent Borrower or any of its Subsidiaries, exist that
would reasonably be expected to give rise to a dispute and any pending or
threatened disputes that, to the best knowledge of the Parent Borrower or any
of its Subsidiaries, would reasonably be expected to result in a material
liability to the Parent Borrower or any of its Subsidiaries concerning the
assets of any Foreign Plan (other than individual claims for the payment of
benefits); and (g) failure to make all contributions in a timely manner to the
extent required by applicable non-U.S. law.


 


5.14         Collateral.
 Upon execution and delivery thereof by
the parties thereto, the Guarantee and Collateral Agreement and the Mortgages
will be effective to create (to the extent described therein) in favor of the
Collateral Agent for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral described therein, except
as may be 


 


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limited by applicable domestic or foreign
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors’ rights generally,
general equitable principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing. When (a) the
actions specified in Schedule 3 to the Guarantee and Collateral Agreement have
been duly taken, (b) all applicable Instruments, Chattel Paper and Documents
(each as described therein) a security interest in which is perfected by
possession have been delivered to, and/or are in the continued possession of,
the Collateral Agent, (c) all Deposit Accounts, Electronic Chattel Paper and
Pledged Stock (each as defined in the Guarantee and Collateral Agreement) a
security interest in which is required to be or is perfected by “control” (as
described in the UCC from time to time) are under the “control” of the
Collateral Agent or the Administrative Agent, as agent for the Collateral Agent
and as directed by the Collateral Agent and (d) the Mortgages have been duly
recorded, the security interests granted pursuant thereto shall constitute (to
the extent described therein) a perfected security interest in, all right,
title and interest of each pledgor or mortgagor (as applicable) party thereto
in the Collateral described therein (excluding Commercial Tort Claims, as
defined in the Guarantee and Collateral Agreement, other than such Commercial
Tort Claims set forth on Schedule 7 thereto (if any)) with respect to such
pledgor or mortgagor (as applicable). Notwithstanding any other provision of
this Agreement, capitalized terms which are used in this subsection 5.14 and
not defined in this Agreement are so used as defined in the applicable Security
Document.


 


5.15         Investment
Company Act; Other Regulations.  The
Parent Borrower is not an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act. The
Parent Borrower is not subject to regulation under any Federal or State statute
or regulation (other than Regulation X of the Board) which limits its ability
to incur Indebtedness as contemplated hereby.


 


5.16         Subsidiaries.
 Schedule 5.16 sets forth all the
Subsidiaries of CCMGC at the Closing Date (after giving effect to the
Transactions), the jurisdiction of their incorporation and the direct or
indirect ownership interest of CCMGC therein.


 


5.17         Purpose
of Loans.  The proceeds of the
Tranche B Term Loans (other than the Delayed Draw Term Loans), shall be used by
the Parent Borrower (a) to finance, in part, the Transactions, (b) to pay
certain transaction fees and expenses related to the Transactions and (c) for
general corporate purposes. The proceeds of the Delayed Draw Term Loans shall
be used solely to finance the repurchase, repayment or other satisfaction of
Assumed Indebtedness and to pay penalties, premiums, fees and expenses related
thereto of the Parent Borrower and its Subsidiaries.


 


5.18         Environmental
Matters.  Other than as disclosed on
Schedule 5.18 or exceptions to any of the following that would not,
individually or in the aggregate, reasonably be expected to give rise to a
Material Adverse Effect:


 


(a)           The Parent Borrower and its
Subsidiaries:  (i) are, and within the
period of all applicable statutes of limitation have been, in compliance with
all applicable Environmental Laws; (ii) hold all Environmental Permits (each of
which is in full force and effect) required for any of their current operations
or for any property owned, leased, 


 


73

















 


or otherwise operated
by any of them and reasonably expect to timely obtain without material expense
all such Environmental Permits required for planned operations; (iii) are,
and within the period of all applicable statutes of limitation have been, in
compliance with all of their Environmental Permits; and (iv) believe they will
be able to maintain compliance with Environmental Laws, including any
reasonably foreseeable future requirements thereto.


 


(b)           Materials of Environmental Concern
have not been transported, disposed of, emitted, discharged, or otherwise
released or threatened to be released, to or at any real property presently or
formerly owned, leased or operated by the Parent Borrower or any of its
Subsidiaries or at any other location, which would reasonably be expected to (i) give
rise to liability or other Environmental Costs of the Parent Borrower or any of
its Subsidiaries under any applicable Environmental Law, or (ii) interfere with
the Parent Borrower’s planned or continued operations, or (iii) impair the fair
saleable value of any real property owned by the Parent Borrower or any of its
Subsidiaries that is part of the Collateral.


 


(c)           There is no judicial, administrative,
or arbitral proceeding (including any notice of violation or alleged violation)
under any Environmental Law to which the Parent Borrower or any of its
Subsidiaries is, or to the knowledge of the Parent Borrower or any of its
Subsidiaries is reasonably likely to be, named as a party that is pending or,
to the knowledge of the Parent Borrower or any of its Subsidiaries, threatened.


 


(d)           Neither the Parent Borrower nor any
of its Subsidiaries has received any written request for information, or been
notified that it is a potentially responsible party, under the federal Comprehensive Environmental Response, Compensation, and Liability Act
or any similar Environmental Law, or received any other written request for
information from any Governmental Authority with respect to any Materials of
Environmental Concern.


 


(e)           Neither the Parent Borrower nor any
of its Subsidiaries has entered into or agreed to any consent decree, order, or
settlement or other agreement, nor is subject to any judgment, decree, or order
or other agreement, in any judicial, administrative, arbitral, or other forum,
relating to compliance with or liability under any Environmental Law.


 


5.19         No
Material Misstatements.  The written
information (including the Confidential Information Memorandum), reports,
financial statements, exhibits and schedules furnished by or on behalf of the
Parent Borrower to the Administrative Agent, the Other Representatives and the
Lenders in connection with the negotiation of any Loan Document or included
therein or delivered pursuant thereto, taken as a whole, did not contain as of
the Closing Date any material misstatement of fact and did not omit to state as
of the Closing Date any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not materially
misleading in their presentation of the Parent Borrower and its Subsidiaries
taken as a whole. It is understood that (a) no representation or warranty is
made concerning the forecasts, estimates, pro forma information, projections
and statements as to anticipated future performance or conditions, and the assumptions
on which they were based, 


 


74

















 


contained in any such information, reports,
financial statements, exhibits or schedules, except that as of the date such
forecasts, estimates, pro forma information, projections and statements were
generated, (i) such forecasts, estimates, pro forma information, projections
and statements were based on the good faith assumptions of the management of
the Parent Borrower and (ii) such assumptions were believed by such management
to be reasonable and (b) such forecasts, estimates, pro forma information and
statements, and the assumptions on which they were based, may or may not prove
to be correct.


 


5.20         Delivery
of the Acquisition Agreement.  The
Parent Borrower has delivered to the Administrative Agent a complete photocopy
of the Acquisition Agreement (including all exhibits, schedules and disclosure
letters referred to therein or delivered pursuant thereto, if any) and all
amendments thereto, waivers relating thereto and other side letters or
agreements affecting the terms thereof in any material respect.


 


5.21         Certain
Representations and Warranties Contained in the Acquisition Agreement.  Each of the Transaction Documents to be
entered into by any Loan Party on or prior to the Closing Date will have been
duly executed and delivered by each of the Loan Parties which is a party
thereto on or prior to the Closing Date and, to the knowledge of the Parent
Borrower, all other parties thereto on or prior to the Closing Date, and is in
full force and effect on the Closing Date, in each case to the extent required
pursuant to the terms of the relevant Transaction Documents. As of the Closing
Date, the representations and warranties of Holdings and, to the knowledge of
Holdings, any of the other parties thereto contained in the Acquisition
Agreement (after giving effect to any amendments, supplements, waivers or other
modifications of the Acquisition Agreement prior to the Closing Date in
accordance with this Agreement), to the extent a breach of such representation
or warranty would result in Holdings or any of its Affiliates having a right to
terminate its obligations thereunder, are true and correct in all material
respects except as otherwise disclosed to the Administrative Agent in writing
prior to the Closing Date.


 


5.22         Senior
Indebtedness.  The Loans, L/C
Obligations and all other obligations hereunder and under the other Loan
Documents constitute “Senior Indebtedness” and “Designated Senior Indebtedness”
under and as defined in the Senior Subordinated Notes Indenture (to the extent
such obligations constitute “Indebtedness” as defined in such document on the
date hereof). The obligations of each Guarantor under the Guarantee and
Collateral Agreement constitute “Guarantor Senior Indebtedness” of such
Guarantor under and as defined in the Senior Subordinated Notes Indenture (to
the extent such obligations constitute “Indebtedness” as defined in such
document on the date hereof).


 


5.23         Labor
Matters.  There are no strikes
pending or, to the knowledge of the Parent Borrower, reasonably expected to be
commenced against the Parent Borrower or any of its Subsidiaries which,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect. The hours worked and payments made to employees of the
Parent Borrower and each of its Subsidiaries have not been in violation of any
applicable laws, rules or regulations, except where such violations would not
reasonably be expected to have a Material Adverse Effect.


 


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5.24         Special Purpose Corporation.  Each of Holdings, CCMGC and Acquisition Corp.,
was formed to effect the Transactions. Prior to the consummation of the
Transactions, none of Holdings nor any of its Subsidiaries listed in the
preceding sentence had any significant assets or liabilities (except pursuant
to the Transaction Documents or otherwise relating to the Transactions).


 


5.25         Insurance.  Schedule 5.25 sets forth a complete and
correct listing of all insurance that is (a) maintained by the Loan Parties and
(b) material to the business and operations of the Parent Borrower and its
Subsidiaries taken as a whole maintained by Subsidiaries other than Loan
Parties, in each case as of the Closing Date, with the amounts insured (and any
deductibles) set forth therein.


 


5.26         Anti-Terrorism.  As of the Closing Date, the Parent Borrower
and its Subsidiaries are in compliance with the Uniting and Strengthening of
America by Providing the Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, except as would not reasonably be expected to have a
Material Adverse Effect.


 


SECTION 6. CONDITIONS
PRECEDENT.


 


6.1           Conditions to Initial Extension of
Credit.  This Agreement, including
the agreement of each Lender to make the initial Extension of Credit requested
to be made by it, shall become effective on the date on which the following
conditions precedent shall have been satisfied or waived; provided, however,
that upon the satisfaction or waiver of the conditions set forth in clauses
(a), (c), (d) (other than subclauses (i)(B) and (C) and (vii) thereof), (f),
(g) (other than subclause (iv) thereof), (h) (other than the last sentence
thereof), (i), (j), (k), (l), (o), (p), (q), (r), (s), (t), (u), (x), (y) and
(z) of this Section 6.1 to the extent provided thereby, all of the other
conditions set forth in this Section 6.1, if not satisfied or waived on such
date, shall be deemed to have been satisfied for all purposes hereunder and all
such other conditions, if not satisfied or waived on such date, shall automatically
be converted into covenants to accomplish the satisfaction of the applicable
matters described in such conditions within the time period required by
subsection 7.13:


 


(a)           Loan Documents.  The Administrative Agent shall have received
the following Loan Documents, executed and delivered as required below, with,
in the case of clause (i), a copy for each Lender:


 


(i)            this Agreement, executed and
delivered by a duly authorized officer of the Parent Borrower;


 


(ii)           [Reserved];


 


(iii)          the Guarantee and Collateral
Agreement, executed and delivered by a duly authorized officer of CCMGC, the
Parent Borrower and each Domestic Subsidiary (other than (i) any Special
Purpose Subsidiary, (ii) any Subsidiary of a Foreign Subsidiary, (iii)
Navigations Solutions and (iv) Hertz Vehicle Sales Corporation) and an
Acknowledgement and Consent in the form attached to the Guarantee and
Collateral Agreement, executed and delivered by each Issuer (as 


 


76

















 


defined therein), if
any, that is not a Loan Party (other than Hertz Finance Centre plc and Hertz
Vehicle Financing LLC);


 


(iv)          each of the Mortgages, executed and
delivered by a duly authorized officer of the Loan Party signatory thereto; and


 


(v)           the Intercreditor Agreement, executed
and delivered by a duly authorized officer of each party thereto;


 


provided that clauses (iv) and (v) notwithstanding, to the extent any guarantee or
collateral is not provided on the Closing Date, to the extent CCMGC and its
Subsidiaries have shall have used commercially reasonable efforts to provide
such guarantees and collateral, the provisions of clauses (iv) and (v) shall be
deemed to have been satisfied and the Loan Parties shall be required to provide
such guarantees and collateral in accordance with the provisions set forth in
subsection 7.13.


 


(b)           Filing of Merger Documents.


 


(i)            The Administrative Agent shall
receive, substantially concurrently with the satisfaction of the other
conditions precedent set forth in this subsection 6.1, evidence reasonably
satisfactory to it that the certificate of merger with respect to the Merger
shall have been filed with the applicable filing offices, and that the Merger
shall have become effective in accordance with applicable laws; and


 


(ii)           the Administrative Agent shall
receive, substantially concurrently with the satisfaction of the other
conditions precedent set forth in this subsection 6.1, a photocopy of each of
the documents filed publicly with the applicable filing offices in connection with
the Merger.


 


(c)           Acquisition Agreement. The
Acquisition shall have been consummated substantially pursuant to the
provisions of the Acquisition Agreement and all material conditions precedent
to the consummation of the Acquisition set forth in such Acquisition Agreement
shall have been satisfied or waived with the prior approval of the Committed
Lenders (such approval not to be unreasonably withheld or delayed). The
Acquisition Agreement, the structure and terms of the Acquisition and the
documentation for each component of the Acquisition shall be reasonably
satisfactory in form and substance to the Committed Lenders, and such
documentation and those agreements under which the Seller and its affiliates
have agreed to purchase, or cause the repurchase of, vehicles manufactured by
them from the Parent Borrower or its subsidiaries shall not have been amended,
supplemented or otherwise changed in a manner materially adverse to the Lenders
without the consent of the Committed Lenders (such consent not to be unreasonably
withheld or delayed). It is expressly acknowledged that (i) the terms and
conditions of the form of the Acquisition Agreement and all exhibits and
schedules thereto and any such repurchase agreement provided to the Committed
Lenders, in each case as in existence on the date hereof and (ii) the structure
and terms of the Acquisition specified therein, are so satisfactory.


 


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(d)           Transactions.


 


(i)            (A)  The Administrative Agent shall receive,
substantially concurrently with the satisfaction of the other conditions
precedent set forth in this subsection 6.1, evidence, in form and substance
reasonably satisfactory to it, that the Parent Borrower shall have (i)
consummated the transactions contemplated by the Notes Offering Documents and
(ii) received gross cash proceeds from the issuance of New Notes in an
aggregate amount of $2,800,000,000 and (B) the Parent Borrower shall have
delivered to the trustee pursuant to the New Notes Indentures governing subordinated
indebtedness of the Parent Borrower a writing (a copy of which shall be
furnished to the Administrative Agent and be in form and substance reasonably
satisfactory to it) to the effect that the holders of senior indebtedness
pursuant to this Agreement are being designated in writing by the Parent
Borrower to such trustee as Senior Indebtedness the holders of which shall be
required to consent to any amendment to Article XIV and Article XV, or the
definitions related thereto, in the applicable New Notes that adversely affects
the rights of the holders of Senior Indebtedness then outstanding (which
designation in writing shall meet the applicable requirements contained in
Section 902 of the applicable New Notes Indenture and (C) the Administrative Agent,
on behalf of the Lenders, shall have received an Officer’s Certificate (as
defined in the applicable New Notes), in form and substance reasonably
satisfactory to the Administrative Agent, to the effect that the Incurrence of
Indebtedness (each as defined in the applicable New Notes Indenture) on the
Closing Date pursuant to this Agreement does not (and that the incurrence of
the entire committed amount hereunder on the Closing Date would not) violate
the covenant contained in Section 407 of the applicable New Notes Indenture ,
and a copy of such certificate shall be delivered to the trustee of the
applicable New Notes.


 


(ii)           The Administrative Agent shall
receive, substantially concurrently with the satisfaction of the other
conditions precedent set forth in this subsection 6.1, evidence, in form and
substance reasonably satisfactory to it, that the Parent Borrower shall have
obtained the ABL Facility.


 


(iii)          The Administrative Agent shall
receive, substantially concurrently with the satisfaction of the other
conditions precedent set forth in this subsection 6.1, evidence, in form and
substance reasonably satisfactory to it, that the Parent Borrower or its
Subsidiaries or Affiliates shall have (i) consummated the U.S. Securitization
and (ii) received gross cash proceeds from the issuance of securities
thereunder in an aggregate amount of $4,267,629,130.


 


(iv)          The Administrative Agent shall
receive, substantially concurrently with the satisfaction of the other
conditions precedent set forth in this subsection 6.1, evidence, in form and
substance reasonably satisfactory to it, that one or more of the Foreign
Subsidiaries and/or other Affiliates of the Parent Borrower shall have
(i) consummated the Foreign Fleet Bridge Financing and (ii) received gross



 


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cash proceeds from
loans or the issuance of securities thereunder in an aggregate amount of
$1,780,639,366.


 


(v)           The Administrative Agent shall
receive, substantially concurrently with the satisfaction of the other
conditions precedent set forth in this subsection 6.1, evidence, in form and
substance reasonably satisfactory to it, that the Parent Borrower shall have
consummated the Tender Offers that expire on or prior to the Closing Date.


 


(vi)          The Administrative Agent shall
receive, substantially concurrently with the satisfaction of the other
conditions precedent set forth in this subsection 6.1, evidence in form and
substance reasonably satisfactory to it that the Parent Borrower has caused its
Subsidiaries to make the intercompany loans, repayments and transfers specified
on Schedule 6.1(d) (the “Intercompany Transactions”).


 


(vii)         On the Closing Date, the Administrative
Agent shall have received true and correct copies of the New Notes Indentures,
the ABL Facility Documents, the Special Purpose Financing Documents relating to
the U.S. Securitization and all Intercompany Transaction Documents, certified
as such by an appropriate officer of CCMGC.


 


(e)           Reserved.


 


(f)            Outstanding Indebtedness and
Preferred Equity; No Defaults. After giving effect to the consummation of
the Acquisition, Holdings and its subsidiaries shall have no outstanding
preferred equity or Indebtedness held by third parties, except for indebtedness
incurred pursuant to the Debt Financing and any Assumed Indebtedness, and all
capital stock of the Parent Borrower shall be directly or indirectly owned by
CCMGC free and clear of liens (other than those securing the obligations
arising under the Loan Documents, the ABL Facility Documents and those arising
by operation of law). All material terms and conditions of any Unscheduled
Assumed Indebtedness shall be reasonably satisfactory to the Committed Lenders.
Any other existing Indebtedness, other than any such Unscheduled Assumed
Indebtedness, shall have been repaid, defeased or otherwise discharged
substantially concurrently with or prior to the satisfaction of the other
conditions precedent set forth in this subsection 6.1.


 


(g)           Financial Information. The
Committed Lenders shall have received (i) audited financial statements of
the Parent Borrower for the three fiscal years ended December 31, 2004
certified by the Parent Borrower’s independent registered public accountants,
(ii) unaudited financial statements for the Parent Borrower for the most
recent interim quarter for which financial statements are available (but in no
event for a period ended less than 45 days prior to the Closing Date), (iii)
unaudited financial statements for the Parent Borrower for each of the most
recent months for which financial statements are available after the period for
which financial statements are delivered pursuant to clause (ii), (iv) 
annual projections of the operating budget and cash flow budget (including
related consolidated balance sheets, income statements and statements of cash
flows) of the Parent Borrower and its Subsidiaries covering the period from the
Closing Date through the fiscal year ended December 31, 2012 and (v) a pro forma consolidated balance sheet of the Parent Borrower
as of the date of the most recent consolidated 


 


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balance sheet delivered pursuant to clause
(ii) and a pro forma statement of operations for
the most recent fiscal year, interim period and 12-month period ending on the
last day of such interim period, in each case adjusted to give effect to the
Transactions, the other transactions related thereto and any other transactions
that would be required to be given pro forma
effect by Regulation S-X for a Form S-1 Registration Statement under the
Securities Act of 1933, as amended, and such other adjustments as shall be
agreed between the Parent Borrower and the Committed Lenders.


 


(h)           Governmental Approvals and/or
Consents. The applicable waiting periods specified under Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, with respect to the transactions
contemplated by the Acquisition Agreement shall have lapsed or been terminated
and all other consents or approvals under the Competition
Act (Canada) from the Canadian Bureau of Competition, the European
Commission or any competent antitrust or competition authority of any member
state of the European Union, any required approval of any Australian antitrust
or competition governmental authority, any of the antitrust or competition
governmental authorities of any other jurisdiction in which the Parent Borrower
and its Subsidiaries owns a material amount of assets, governmental authorities
in Ireland and Bermuda with respect to Irish and Bermuda insurance laws (it
being understood that approvals of the Irish and Bermuda insurance authorities
shall only be conditions if the Closing Date is on or prior to February 15,
2006) and all other consents and approvals from any other governmental
authority required to consummate the transactions contemplated by the
Acquisition Agreement, the failure of which to obtain would have a material
adverse effect on the business, condition (financial or otherwise) or results
of operations of the Parent Borrower and its Subsidiaries, taken as a whole, shall
have been obtained. At the Closing Date, there shall be no injunction,
re-straining order or decree of any nature of any Governmental Authority that
is in effect that restrains or prohibits the consummation of the transactions
contemplated by the Acquisition Agreement. All loans to the Parent Borrower
(and all guarantees thereof and security therefor), as well as the Acquisition
and the consummation thereof, shall be in substantial compliance in all
material respects with all applicable requirements of law, including
Regulations T, U and X of the Federal Reserve Board (the “Margin Regulations”).
The Administrative Agent shall have received a certificate of a Responsible
Officer of the Parent Borrower stating that all other consents, authorizations,
notices and filings referred to in Schedule 5.4 are in full force and effect or
have the status described therein, and the Administrative Agent shall have
received evidence thereof reasonably satisfactory to it.


 


(i)            Lien Searches. The
Administrative Agent shall have received the results of a recent search by a
Person reasonably satisfactory to the Administrative Agent, of the UCC,
judgment and tax lien filings which have been filed with respect to personal
property of CCMGC, the Parent Borrower and their respective Subsidiaries in any
of the jurisdictions set forth in Schedule 6.1(i), and the results of such
search shall not reveal any liens other than liens permitted by subsection 8.3.


 


(j)            Legal Opinions. The
Administrative Agent shall have received the following executed legal opinions:


 


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(i)            the executed legal opinion of
Debevoise & Plimpton LLP, special New York counsel to each of CCMGC, the
Parent Borrower and the other Loan Parties, substantially in the form of
Exhibit D-1;


 


(ii)           the executed legal opinion of
Richards, Layton & Finger PA, special Delaware counsel to each of CCMGC,
the Parent Borrower and certain other Loan Parties, substantially in the form
of Exhibit D-2;


 


(iii)          the executed legal opinion of Harold
Rolfe, general counsel to the Parent Borrower, substantially in the form of
Exhibit D-3; and


 


(iv)          the executed legal opinions of special
local counsel in the jurisdictions set forth in Schedule 6.1(j) with respect to
collateral security matters in connection with the Mortgages, each in form and
substance reasonably satisfactory to the Administrative Agent.


 


(k)           Closing Certificate. The
Administrative Agent shall have received a certificate from each Loan Party,
dated the Closing Date, substantially in the form of Exhibit G, with
appropriate insertions and attachments.


 


(l)            Perfected Liens. The
Collateral Agent shall have obtained a valid security interest in the
Collateral (with the priority contemplated in the applicable Security
Documents); and all documents, instruments, filings, recordations and searches
reasonably necessary in connection with the perfection and, in the case of the
filings with the U.S. Patent and Trademark Office and the U.S. Copyright
Office, protection of such security interests shall have been executed and
delivered, in the case of UCC filings, written authorization to make such UCC
filings shall have been delivered to the Collateral Agent, and none of such
collateral shall be subject to any other pledges, security interests or
mortgages except for Permitted Liens; provided that with respect to any
such collateral the security interest in which may not be perfected by filing
of a UCC financing statement or by making a filing with the U.S. Patent and
Trademark Office or the U.S. Copyright Office, if perfection of the Collateral
Agent’s security interest in such collateral may not be accomplished on or
before the Closing Date without undue burden or expense, then delivery of
documents and instruments for perfection of such security interest shall not
constitute a condition precedent to the initial borrowings hereunder.


 


(m)          Pledged Stock; Stock Powers;
Pledged Notes; Endorsements; Initial Transaction Statements. The Collateral
Agent shall have received:


 


(i)            the certificates, if any,
representing the Pledged Stock under (and as defined in) the Guarantee and
Collateral Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof; and


 


(ii)           the promissory notes representing
each of the Pledged Notes under (and as defined in) the Guarantee and
Collateral Agreement, duly endorsed as required by the Guarantee and Collateral
Agreement.


 


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(n)           Title Insurance Policy. The
Collateral Agent shall have received in respect of each of the Insured Fee
Properties an irrevocable written commitment to issue a mortgagee’s title
policy (or policies) or marked up unconditional binder for such insurance dated
the Closing Date. Each such policy shall (i) be in the amount set forth with
respect to such policy in Part I of Schedule 6.1(n); (ii) insure that the
Mortgage insured thereby creates a valid first Lien on the Mortgaged Property
encumbered thereby free and clear of all defects and encumbrances, except those
permitted by subsections 7.10 and 8.3 and such as may be approved by the
Collateral Agent; (iii) name the Collateral Agent for the benefit of the
Lenders as the insured thereunder; (iv) be in the form of an ALTA Loan
Policy; (v) contain such endorsements and affirmative coverage as were
contained in the ALTA Loan Policy listed with respect to such policy in Part II
of Schedule 6.1(n); and (vi) be issued by First American Title Insurance
Company or any other title companies reasonably satisfactory to the Collateral
Agent (with any other reasonably satisfactory title companies acting as
co-insurers or reinsurers, at the option of the Collateral Agent). The
Collateral Agent shall have received evidence reasonably satisfactory to it
that all premiums in respect of each such policy, and all charges for mortgage
recording tax, if any, have been paid or other reasonably satisfactory
arrangements have been made. The Collateral Agent shall have also received a
copy of all recorded documents referred to, or listed as exceptions to title
in, the title policy or policies referred to in this subsection and a copy,
certified by such parties as the Collateral Agent may deem reasonably
appropriate, of all other documents affecting the property covered by each
Mortgage as shall have been reasonably requested by the Collateral Agent.


 


(o)           Fees. The Agents and the
Lenders shall have received all fees and expenses required to be paid or
delivered by the Parent Borrower to them on or prior to the Closing Date,
including the fees referred to in subsection 4.5.


 


(p)           [Reserved].


 


(q)           Corporate Proceedings of the Loan
Parties. The Administrative Agent shall have received a copy of the
resolutions, in form and substance reasonably satisfactory to the
Administrative Agent, of the board of directors of each Loan Party authorizing,
as applicable, (i) the execution, delivery and performance of this
Agreement, any Notes and the other Loan Documents to which it is or will be a
party as of the Closing Date, (ii) the Extensions of Credit to such Loan Party
(if any) contemplated hereunder and (iii) the granting by it of the Liens to be
created pursuant to the Security Documents to which it will be a party as of
the Closing Date, certified by the Secretary or an Assistant Secretary of such
Loan Party as of the Closing Date, which certificate shall be in form and
substance reasonably satisfactory to the Administrative Agent and shall state
that the resolutions thereby certified have not been amended, modified (except
as any later such resolution may modify any earlier such resolution), revoked
or rescinded and are in full force and effect.


 


(r)            Incumbency Certificates of the
Loan Parties. The Administrative Agent shall have received a certificate of
each Loan Party, dated the Closing Date, as to the incumbency and signature of
the officers of such Loan Party executing any Loan Document, reasonably
satisfactory in form and substance to the Administrative Agent executed by a
Responsible Officer and the Secretary or any Assistant Secretary of such Loan
Party.


 


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(s)           Governing Documents. The
Administrative Agent shall have received copies of the certificate or articles
of incorporation and by-laws (or other similar governing documents serving the
same purpose) of each Loan Party, certified as of the Closing Date as complete
and correct copies thereof by the Secretary or an Assistant Secretary of such
Loan Party.


 


(t)            Insurance. Holdings shall
have used reasonable best efforts to ensure that the Administrative Agent shall
have received evidence in form and substance reasonably satisfactory to it that
all of the requirements of subsection 7.5 of this Agreement and subsection
5.2.2 of the U.S. Guarantee and Collateral Agreement shall have been satisfied.
Holdings shall have used reasonable best efforts to cause the Administrative
Agent and the other Secured Parties to have been named as additional insureds
with respect to liability policies and the Collateral Agent to have been named
as loss payee with respect to the casualty insurance maintained by the Parent
Borrower and the Subsidiary Guarantors.


 


(u)           No Material Adverse Effect. Except
as set forth in Schedule 2.1(h)(i) to the Acquisition Agreement as in existence
as of September 12, 2005, no fact, event, change or circumstances shall have
occurred since June 30, 2005 that has had or would be reasonably likely to have
a Material Adverse Effect. Only as used in this subsection 6.1(u), “Material
Adverse Effect” shall mean any fact, event, change, circumstance or effect
that is materially adverse to the business, condition (financial or otherwise)
or results of operations of the Parent Borrower and its Subsidiaries, taken as
a whole, or would materially impair the ability of the Seller or any company
that is part of the Parent Borrower and its Subsidiaries to consummate the
transactions contemplated by the Acquisition Agreement, other than any fact,
event, change, circumstance or effect resulting from (A) general changes or developments
(other than those resulting from acts of terrorism, war or armed hostilities)
in the industries in which the Parent Borrower and its Subsidiaries operate or
in the general economy, financial, banking, currency or capital markets, (B)
normal seasonal changes in the results of operations of the Parent Borrower and
its Subsidiaries, (C) the solicitation of offers to enter into the Acquisition
Agreement, the negotiation of the terms of and entering into of the Acquisition
Agreement, the announcement of the Acquisition Agreement and the consummation
of the transactions contemplated thereby or any action taken at the request of
Holdings, (D) changes in accounting requirements or principles or any changes
in applicable laws or interpretations thereof, or (E) any failure in and of
itself by the Parent Borrower and its Subsidiaries to meet any estimates of
revenues or earnings or other financial performance for any period (it being
agreed that the facts and circumstances giving rise to such failure may be taken
into account in determining whether there has been a Material Adverse Effect),
except, in the case of the foregoing clause (A), to the extent such changes
referred to therein have a disproportionate adverse effect on the Parent
Borrower and its Subsidiaries, taken as a whole, relative to other participants
in the industries in which the Parent Borrower and its Subsidiaries operate; provided
that for purposes of the definition of “Material Adverse Effect”, the
industries in which the Parent Borrower and its Subsidiaries operate shall be
deemed to be the vehicle rental industry and the construction, industrial and
materials handling equipment rental industry.


 


(v)           Reserved.


 


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(w)          Flood Insurance. With respect
to any of the Mortgaged Properties which is located in an area identified by
the Secretary of Housing and Urban Development as having special flood hazards,
if the Administrative Agent shall have delivered notice(s) to the relevant Loan
Party as required pursuant to Section 208.8(e)(3) of Regulation H of the Board,
such Loan Party shall have delivered an acknowledgment to the Administrative
Agent.


 


(x)            Absence of Defaults. There
shall not exist (pro forma for the Acquisition and
the financing thereof) any Default or Event of Default; provided that
any Default or Event of Default resulting from (x) the failure to provide
any guarantee or collateral on the Closing Date after the use of commercially
reasonable efforts by Holdings or any of its Subsidiaries to do so or (y) any
breach of any representation or warranty made by any Loan Party pursuant to any
Loan Document, other than (A) to the extent such breach also constitutes a
breach of a representation or warranty in the Acquisition Agreement that would
result in Holdings or any of its Affiliates having a right to terminate its
obligations thereunder or (B) any breach of the representations and warranties
set forth in subsections 5.4, 5.12, 5.15 and 5.22, shall in each case not
constitute a default or event of default for purposes of this clause (x).


 


(y)           Indenture Amendments. Holdings
and/or one or more of its subsidiaries shall have (i) effected Indenture
Amendments with respect to the securities the subject of the Tender Offers, and
(ii) assumed or continued to be obligated in respect of Rollover Indebtedness
consisting of Tender Indebtedness.


 


(z)            Solvency. The Administrative
Agent shall have received a certificate of the chief financial officer of the
Parent Borrower certifying the solvency of the Parent Borrower in customary
form reasonably satisfactory to the Lead Arrangers.


 


(aa)         Equity Financing. CCMGC shall
have received a portion of the Equity Financing in an amount of not less than
$2,200,000,000.


 


The making of the initial Extensions of
Credit by the Lenders hereunder shall (except as set forth in the lead-in to
this subsection 6.1) conclusively be deemed to constitute an acknowledgement by
the Administrative Agent and each Lender that each of the conditions precedent
set forth in this subsection 6.1 shall have been satisfied in accordance with
its respective terms or shall have been irrevocably waived by such Person.


 


6.2           Conditions to Each Other Extension
of Credit.  The agreement of each
Lender to make any Extension of Credit requested to be made by it on any date
(including the initial Extension of Credit and each Swing Line Loan) is subject
to the satisfaction or waiver of the following conditions precedent:


 


(a)           Representations and Warranties.
Each of the representations and warranties made by any Loan Party pursuant to
this Agreement or any other Loan Document (or in any amendment, modification or
supplement hereto or thereto) to which it is a party, and each of the
representations and warranties contained in any certificate furnished at any time
by or on behalf of any Loan Party pursuant to this Agreement or any other Loan
Document shall, except to the extent that they relate to a particular date, be
true and correct in all material respects on and as of such date as if made on
and as of such date; provided that with respect to the initial 


 


84

















 


Extension of Credit hereunder, any breach of
any such representations or warranties shall not constitute a failure to
satisfy the condition set forth in this clause (a) unless (x) such breach also
constitutes a breach of a representation or warranty in the Acquisition
Agreement that would result in Holdings or any of its Affiliates having a right
to terminate its obligations thereunder or (y) such breach is a breach of the
representations and warranties set forth in subsections 5.4, 5.12, 5.15 and
5.22.


 


(b)           No Default. No Default or
Event of Default shall have occurred and be continuing on such date or after
giving effect to the Extensions of Credit requested to be made on such date; provided
that, with respect to the initial Extension of Credit hereunder, any Default or
Event of Default resulting from (x) the failure to provide any guarantee or
collateral on the Closing Date, to the extent permitted by subsection 6.1(l) or
(y) any breach of any representation or warranty made by any Loan Party
pursuant to any Loan Document, other than (A) to the extent such breach also
constitutes a breach of a representation or warranty in the Acquisition
Agreement that would result in Holdings or any of its Affiliates having a right
to terminate its obligations thereunder or (B) any breach of the
representations and warranties set forth in subsections 5.4, 5.12, 5.15 and
5.22, shall in each case not constitute a Default or Event of Default for
purposes of this clause (b), unless in the case of clause (x) above, such
failure constitutes a breach of subsection 7.14.


 


(c)           Borrowing Notice or L/C Request.
With respect to any Borrowing, the Administrative Agent shall have received a
notice of such Borrowing as required by subsection 2.7 (or such notice
shall have been deemed given in accordance with subsection 2.7). With
respect to the issuance of any Letter of Credit, the Issuing Lenders shall have
received a L/C Request, completed to its satisfaction, and such other
certificates, documents and other papers and information as the Issuing Lenders
may reasonably request.


 


Each borrowing of Loans by and Letter of
Credit issued on behalf of the Parent Borrower hereunder shall constitute a
representation and warranty by the Parent Borrower as of the date of such
borrowing or such issuance that the conditions contained in this subsection 6.2
have been satisfied.


 


SECTION 7.  AFFIRMATIVE COVENANTS.


 


The Parent Borrower hereby agrees that, from
and after the Closing Date and so long as the Delayed Draw Term Loan
Commitments remain in effect, and thereafter until payment in full of the
Loans, all Reimbursement Amounts and any other amount then due and owing to any
Lender or any Agent hereunder and under any Note and termination or expiration
of all Letters of Credit, the Parent Borrower shall and (except in the case of
delivery of financial information, reports and notices) shall cause each of its
Subsidiaries to:


 


7.1           Financial Statements.  Furnish to the Administrative Agent for
delivery to each Lender (and the Administrative Agent agrees to make and so
deliver such copies):


 


(a)           (x) as soon as available, but in any
event not later than the fifth Business Day after the 90th day following the end
of each fiscal year of the Parent Borrower ending on or after December 31,
2005, a copy of the consolidated balance sheet of the Parent Borrower and its 


 


85

















 


consolidated Subsidiaries as at the end of
such year and the related consolidated statements of operations, changes in
common stockholders’ equity and cash flows for such year, setting forth in each
case, in comparative form the figures for and as of the end of the previous
year, reported on without a “going concern” or like qualification or exception,
or qualification arising out of the scope of the audit, by
PricewaterhouseCoopers LLP or other independent certified public accountants of
nationally recognized standing not unacceptable to the Administrative Agent in
its reasonable judgment (it being agreed that the furnishing of the Parent
Borrower’s annual report on Form 10-K for such year, as filed with the
Securities and Exchange Commission, will satisfy the Parent Borrower’s
obligation under this subsection 7.1(a)(x) with respect to such year except
with respect to the requirement that such financial statements be reported on
without a “going concern” or like qualification or exception, or qualification
arising out of the scope of the audit); and (y) to the extent and within the
time periods required under the terms of the Foreign Fleet Financing, audited
annual consolidated financial statements of Hertz International Ltd. and its
Subsidiaries meeting the requirements specified with respect thereto in the
applicable Foreign Fleet Financing Documents;


 


(b)           (x) as soon as available, but in any
event not later than the fifth Business Day after the 45th day following the
end of each of the first three quarterly periods of each fiscal year of the
Parent Borrower, the unaudited consolidated balance sheet of the Parent
Borrower and its consolidated Subsidiaries as at the end of such quarter and
the related unaudited consolidated statements of operations and cash flows of
the Parent Borrower and its consolidated Subsidiaries for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in
each case, in comparative form the figures for and as of the corresponding
periods of the previous year, certified by a Responsible Officer of the Parent
Borrower as being fairly stated in all material respects (subject to normal
year-end audit and other adjustments) (it being agreed that the furnishing of
the Parent Borrower’s quarterly report on Form 10-Q for such quarter, as filed
with the Securities and Exchange Commission, will satisfy the Parent Borrower’s
obligations under this subsection 7.1(b)(x) with respect to such quarter) and
(y) to the extent and within the time periods required under the terms of the
Foreign Fleet Financing, audited quarterly consolidated financial statements of
Hertz International Ltd. and its Subsidiaries meeting the requirements
specified with respect thereto in the applicable Foreign Fleet Financing
Documents;


 


(c)           as soon as available, but in any
event not later than the fifth Business Day after the 30th day following the
end of each month, the unaudited consolidated balance sheet of the Parent
Borrower and its consolidated Subsidiaries as at the end of such month (other
than any month that is the last month of a fiscal quarter) and the related
unaudited income statement of the Parent Borrower and its consolidated
Subsidiaries for such month, setting forth in each case, in comparative form
the figures for and as of the end of the corresponding month during the
previous year; and


 


(d)           all such financial statements
delivered pursuant to subsection 7.1(a)(x) or (b)(x) to be (and, in the case of
any financial statements delivered pursuant to subsection 7.1(b)(x) shall be
certified by a Responsible Officer of the Parent Borrower as being) complete
and correct in all material respects in conformity with GAAP and to be (and, in
the case of any financial statements delivered pursuant to subsection 7.1(b)(x)
shall be certified by a Responsible Officer of the Parent Borrower as being)
prepared in reasonable detail in accordance with GAAP 


 


86

















 


applied consistently throughout the periods
reflected therein and with prior periods that began on or after the Closing
Date (except as approved by such accountants or officer, as the case may be,
and disclosed therein, and except, in the case of any financial statements
delivered pursuant to subsection 7.1(b)(x), for the absence of certain notes).


 


7.2           Certificates; Other Information.
 Furnish to the Administrative Agent for
delivery to each Lender (and the Administrative Agent agrees to make and so
deliver such copies):


 


(a)           concurrently with the delivery of the
financial statements referred to in subsection 7.1(a)(x), a certificate of the
independent certified public accountants reporting on such financial statements
stating that in making the audit necessary therefor no knowledge was obtained
of any Default or Event of Default insofar as the same relates to any financial
accounting matters covered by their audit, except as specified in such
certificate (which certificate may be limited to the extent required by
accounting rules or guidelines);


 


(b)           concurrently with the delivery of the
financial statements and reports referred to in subsections 7.1(a)(x) and
(b)(x), a certificate signed by a Responsible Officer of each of CCMGC and the
Parent Borrower (i) stating that, to the best of such Responsible Officer’s
knowledge, each of CCMGC, the Parent Borrower and their respective Subsidiaries
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement or the
other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default, except, in each case, as specified in such
certificate, and (ii) setting forth the calculations required to determine (A)
compliance with all covenants set forth in subsection 8.1 (in the case of a
certificate furnished with the financial statements referred to in subsections
7.1(a)(x) and (b)(x)), and (B) compliance with the covenant set forth in
subsection 8.8 (in the case of a certificate furnished with the financial statements
referred to in subsection 7.1(a)(x));


 


(c)           as soon as available, but in any
event not later than the fifth Business Day following the 120th day
after the beginning of fiscal year 2006 of the Parent Borrower, and the 90th
day after the beginning of each fiscal year of the Parent Borrower thereafter,
a copy of the annual business plan by the Parent Borrower of the projected
operating budget (including an annual consolidated balance sheet, income
statement and statement of cash flows of the Parent Borrower and its
Subsidiaries and including segment information consistent with customary past
practices of the Parent Borrower, such practices subject to such adjustments as
are reasonable in the good faith determination of the Parent Borrower, each
such business plan to be accompanied by a certificate of a Responsible Officer
of the Parent Borrower to the effect that such Responsible Officer believes
such projections to have been prepared on the basis of reasonable assumptions
at the time of preparation and delivery thereof;


 


(d)           within five Business Days after the
same are sent, copies of all financial statements and reports which CCMGC or
the Parent Borrower sends to its public security holders, and within five
Business Days after the same are filed, copies of all financial statements and
periodic reports which CCMGC, the Parent Borrower, HERC or Hertz International,
Ltd. 


 


87

















 


may file with the Securities and Exchange
Commission or any successor or analogous Governmental Authority;


 


(e)           within five Business Days after the
same are filed, copies of all registration statements and any amendments and
exhibits thereto, which CCMGC, the Parent Borrower, HERC or Hertz
International, Ltd. may file with the Securities and Exchange Commission or any
successor or analogous Governmental Authority, and such other documents or
instruments as may be reasonably requested by the Administrative Agent in
connection therewith; and


 


(f)            promptly, such additional financial
and other information as any Agent or Lender may from time to time reasonably
request.


 


7.3           Payment of Obligations.  Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, including taxes, except where the
amount or validity thereof is currently being contested in good faith by
appropriate proceedings diligently conducted and reserves in conformity with
GAAP with respect thereto have been provided on the books of CCMGC or any of
its Subsidiaries, as the case may be.


 


7.4           Conduct of Business and
Maintenance of Existence.  Continue
to engage in business of the same general type as conducted by the Parent
Borrower and its Subsidiaries on the Closing Date, taken as a whole, and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of the business of the Parent
Borrower and its Subsidiaries, taken as a whole, except as otherwise expressly
permitted pursuant to subsection 8.5, provided that the Parent Borrower
and its Subsidiaries shall not be required to maintain any such rights,
privileges or franchises, if the failure to do so would not reasonably be
expected to have a Material Adverse Effect; and comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith, in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.


 


7.5           Maintenance of Property; Insurance.


 


(a)           Keep all property useful and
necessary in the business of the Parent Borrower and its Subsidiaries, taken as
a whole, in good working order and condition; maintain with financially sound
and reputable insurance companies insurance on all property material to the
business of the Parent Borrower and its Subsidiaries, taken as a whole, in at
least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption) as are
consistent with the past practices of the Parent Borrower and its Subsidiaries
and otherwise as are usually insured against in the same general area by
companies engaged in the same or a similar business; furnish to the
Administrative Agent, upon written request, information in reasonable detail as
to the insurance carried; and ensure that at all times the Administrative Agent
and the other Secured Parties shall be named as additional insureds with
respect to liability policies and the Collateral Agent shall be named as loss
payee with respect to the casualty insurance maintained by the Parent Borrower
and Subsidiary Guarantor; provided that, unless an Event of Default
shall have occurred and be 


 


88

















 


continuing, the Collateral Agent shall turn
over to the Parent Borrower any amounts received by it as loss payee under any
casualty insurance maintained by the Parent Borrower or its Subsidiaries, the
disposition of such amounts to be subject to the provisions of subsection
4.4(b), and, unless an Event of Default shall have occurred and be continuing,
the Collateral Agent agrees that the Parent Borrower and/or the applicable
Subsidiary Guarantor shall have the sole right to adjust or settle any claims
under such insurance.


 


(b)           With respect to each property of the
Parent Borrower and its Subsidiaries subject to a Mortgage:


 


(i)            [Reserved].


 


(ii)           If
any portion of any such property is located in an area identified as a special
flood hazard area by the Federal Emergency Management Agency or other
applicable agency, the Parent Borrower shall maintain or cause to be
maintained, floor insurance to the extent required by law.


 


(iii)          The
Parent Borrower and each of its applicable Subsidiaries promptly shall comply
with and conform to (i) all provisions of each such insurance policy, and (ii)
all requirements of the insurers applicable to such party or to such property
or to the use, manner of use, occupancy, possession, operation, maintenance,
alteration or repair of such property, except for such non-compliance or
non-conformity as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Parent Borrower shall not use
or permit the use of such property in any manner which would reasonably be
expected to result in the cancellation of any insurance policy or would
reasonably be expected to void coverage required to be maintained with respect
to such property pursuant to clause (a) of this subsection 7.5.


 


(iv)          If
the Parent Borrower is in default of its obligations to insure or deliver any
such prepaid policy or policies, the result of which would reasonably be
expected to have a Material Adverse Effect, then the Administrative Agent, at
its option upon 10 days’ written notice to the Parent Borrower, may effect such
insurance from year to year at rates substantially similar to the rate at which
the Parent Borrower or any Subsidiary had insured such property, and pay the
premium or premiums therefore, and the Parent Borrower shall pay to the
Administrative Agent on demand such premium or premiums so paid by the
Administrative Agent with interest from the time of payment at a rate per annum
equal to 2.00%.


 


(v)           If
such property, or any part thereof, shall be destroyed or damaged and the
reasonably estimated cost thereof would exceed $5,000,000, the Parent Borrower
shall give prompt notice thereof to the Administrative Agent. All insurance
proceeds paid or payable in connection with any damage or casualty to any
property shall be applied in the manner specified in Subsection 7.5(a).


 


7.6           Inspection of Property; Books and
Records; Discussions. Keep
proper books of records and account in which full, complete and correct entries
in conformity with GAAP and all material Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities; and
permit representatives of the Administrative Agent to 


 


89

















 


visit and inspect any of its properties and examine and, to the extent reasonable, make abstracts from any of its books and
records and to discuss the business, operations, properties and financial and
other condition of the Parent Borrower and its Subsidiaries with officers and
employees of the Parent Borrower and its Subsidiaries and with its independent
certified public accountants, in each case at any reasonable time, upon
reasonable notice, and as often as may reasonably be desired.


 


7.7           Notices.  Promptly give notice to the Administrative
Agent and each Lender of:


 


(a)           as soon as possible after a
Responsible Officer of the Parent Borrower knows or reasonably should know
thereof, the occurrence of any Default or Event of Default;


 


(b)           as soon as possible after a
Responsible Officer of the Parent Borrower knows or reasonably should know
thereof, any (i) default or event of default under any Contractual Obligation
(including with respect to lease obligations in connection with Special Purpose
Financings) of the Parent Borrower or any of its Subsidiaries, other than as
previously disclosed in writing to the Lenders, or (ii) litigation,
investigation or proceeding which may exist at any time between the Parent
Borrower or any of its Subsidiaries and any Governmental Authority, which in
either case, if not cured or if adversely determined, as the case may be, would
reasonably be expected to have a Material Adverse Effect;


 


(c)           as soon as possible after a
Responsible Officer of the Parent Borrower knows or reasonably should know
thereof, the occurrence of any default or event of default under any of the
Indentures;


 


(d)           as soon as possible after a
Responsible Officer of the Parent Borrower knows or reasonably should know
thereof, any litigation or proceeding affecting CCMGC or any of its
Subsidiaries that would reasonably be expected to have a Material Adverse
Effect;


 


(e)           the following events, as soon as
possible and in any event within 30 days after a Responsible Officer of the
Parent Borrower or any of its Subsidiaries knows or reasonably should know
thereof:  (i) the occurrence or expected
occurrence of any Reportable Event (or similar event) with respect to any
Single Employer Plan (or Foreign Plan), a failure to make any required
contribution to a Single Employer Plan, Multiemployer Plan or Foreign Plan, the
creation of any Lien on the property of the Parent Borrower or its Subsidiaries
in favor of the PBGC, a Plan or a Foreign Plan or any withdrawal from, or the
full or partial termination, Reorganization or Insolvency of, any Multiemployer
Plan or Foreign Plan; (ii) the institution of proceedings or the taking of any
other formal action by the PBGC or the Parent Borrower or any of its
Subsidiaries or any Commonly Controlled Entity or any Multiemployer Plan which
could reasonably be expected to result in the withdrawal from, or the
termination, Reorganization or Insolvency of, any Single Employer Plan,
Multiemployer Plan or Foreign Plan; provided, however, that no
such notice will be required under clause (i) or (ii) above unless the event
giving rise to such notice, when aggregated with all other such events under
clause (i) or (ii) above, could be reasonably expected to result in a Material
Adverse Effect; or (iii) the first occurrence of an Underfunding under a Single
Employer Plan or Foreign Plan that exceeds 10% of the value of the assets of
such Single Employer Plan or Foreign Plan, in each case, determined 


 


90

















 


as of the most recent annual valuation date
of such Single Employer Plan or Foreign Plan on the basis of the actuarial
assumptions used to determine the funding requirements of such Single Employer
Plan or Foreign Plan as of such date;


 


(f)            Reserved; and


 


(g)           as soon as possible after a
Responsible Officer of the Parent Borrower knows or reasonably should know
thereof, (i) any release or discharge by the Parent Borrower or any of its
Subsidiaries of any Materials of Environmental Concern required to be reported
under applicable Environmental Laws to any Governmental Authority, unless the
Parent Borrower reasonably determines that the total Environmental Costs
arising out of such release or discharge would not reasonably be expected to
have a Material Adverse Effect; (ii) any condition, circumstance, occurrence or
event not previously disclosed in writing to the Administrative Agent that
would reasonably be expected to result in liability or expense under applicable
Environmental Laws, unless the Parent Borrower reasonably determines that the
total Environmental Costs arising out of such condition, circumstance,
occurrence or event would not reasonably be expected to have a Material Adverse
Effect, or would not reasonably be expected to result in the imposition of any
lien or other material restriction on the title, ownership or transferability
of any facilities and properties owned, leased or operated by the Parent
Borrower or any of its Subsidiaries that would reasonably be expected to result
in a Material Adverse Effect; and (iii) any proposed action to be taken by the
Parent Borrower or any of its Subsidiaries that would reasonably be expected to
subject the Parent Borrower or any of its Subsidiaries to any material
additional or different requirements or liabilities under Environmental Laws,
unless the Parent Borrower reasonably determines that the total Environmental
Costs arising out of such proposed action would not reasonably be expected to
have a Material Adverse Effect.


 


Each notice pursuant to this subsection shall
be accompanied by a statement of a Responsible Officer of the Parent Borrower
(and, if applicable, the relevant Commonly Controlled Entity or Subsidiary)
setting forth details of the occurrence referred to therein and stating what
action the Parent Borrower (or, if applicable, the relevant Commonly Controlled
Entity or Subsidiary) proposes to take with respect thereto.


 


7.8           Environmental Laws.  (a)  (i)
Comply substantially with, and require substantial compliance by all tenants,
subtenants, contractors, and invitees with, all applicable Environmental Laws;
(ii) obtain, comply substantially with and maintain any and all Environmental
Permits necessary for its operations as conducted and as planned; and (iii)
require that all tenants, subtenants, contractors, and invitees obtain, comply
substantially with and maintain any and all Environmental Permits necessary for
their operations as conducted and as planned, with respect to any property
leased or subleased from, or operated by the Parent Borrower or its
Subsidiaries. For purposes of this subsection 7.8(a), noncompliance shall not
constitute a breach of this covenant, provided that, upon learning of
any actual or suspected noncompliance, the Parent Borrower and any such
affected Subsidiary shall promptly undertake and diligently pursue reasonable
efforts, if any, to achieve compliance, and provided, further,
that in any case such noncompliance would not reasonably be expected to have a
Material Adverse Effect.


 


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(b)           Promptly comply, in
all material respects, with all orders and directives of all Governmental
Authorities regarding Environmental Laws, other than such orders or directives
(i) as to which the failure to comply would not reasonably be expected to
result in a Material Adverse Effect or (ii) as to which: (x) appropriate
reserves have been established in accordance with GAAP; (y) an appeal or other
appropriate contest is or has been timely and properly taken and is being
diligently pursued in good faith; and (z) if the effectiveness of such order or
directive has not been stayed, the failure to comply with such order or
directive during the pendency of such appeal or contest could not reasonably be
expected to give rise to a Material Adverse Effect.


 


(c)           Maintain, update as appropriate, and
implement in all material respects an ongoing program reasonably designed to
ensure that all the properties and operations of the Parent Borrower and its
Subsidiaries are periodically reasonably reviewed by competent personnel to
identify and promote compliance with and to reasonably and prudently manage any
material Environmental Costs that would reasonably be expected to affect the
Parent Borrower or any of its Subsidiaries, including compliance and
liabilities relating to:  discharges to
air and water; acquisition, transportation, storage and use of hazardous
materials; waste disposal; species protection; and recordkeeping required under
Environmental Laws. For the purposes of this subsection 7.8(c), the failure to
maintain an environmental program shall not constitute an Event of Default (i)
unless it would reasonably be expected to result in a Material Adverse Effect
or (ii) if within 90 days of receipt of a reasonable request from the
Administrative Agent, the Parent Borrower and its Subsidiaries have taken
reasonable and diligent steps to implement and maintain such a program in
compliance with this subsection.


 


7.9           After-Acquired Real Property and
Fixtures.  (a)  With respect to any owned real property or
fixtures, in each case with a purchase price or a fair market value at the time
of acquisition of at least $2,000,000, in which any Loan Party acquires
ownership rights at any time after the Closing Date, promptly grant to the
Collateral Agent for the benefit of the applicable Lenders, a Lien of record on
all such owned real property and fixtures, upon terms reasonably satisfactory
in form and substance to the Collateral Agent and in accordance with any
applicable requirements of any Governmental Authority (including any required
appraisals of such property under FIRREA); provided that (i) nothing in
this subsection 7.9 shall defer or impair the attachment or perfection of any
security interest in any Collateral covered by any of the Security Documents
which would attach or be perfected pursuant to the terms thereof without action
by the Parent Borrower, any of its Subsidiaries or any other Person and
(ii) no such Lien shall be required to be granted as contemplated by this
subsection 7.9 on any owned real property or fixtures the acquisition of which
is financed, or is to be financed within any time period permitted by
subsection 8.2(g) or (h), in whole or in part through the incurrence of
Indebtedness permitted by subsection 8.2(g) or (h), until such Indebtedness is
repaid in full (and not refinanced as permitted by subsection 8.2(g) or (h))
or, as the case may be, the Parent Borrower determines not to proceed with such
financing or refinancing. In connection with any such grant to the Collateral
Agent for the benefit of the Lenders, of a Lien of record on any such real
property in accordance with this subsection, the Parent Borrower or such
Subsidiary shall deliver or cause to be delivered to the Collateral Agent any
surveys, title insurance policies, environmental reports and other documents in
connection with such grant of such Lien obtained by it in connection with the
acquisition of such ownership rights in such real property or as the Collateral
Agent shall reasonably request (in light of the value of such real property and
the cost 


 


92

















 


and availability of such surveys, title
insurance policies, environmental reports and other documents and whether the
delivery of such surveys, title insurance policies, environmental reports and
other documents would be customary in connection with such grant of such Lien
in similar circumstances).


 


(b)           With respect to any Domestic
Subsidiary (other than a Special Purpose Subsidiary or a Subsidiary of a
Foreign Subsidiary) created or acquired (including by reason of any Foreign
Subsidiary Holdco ceasing to constitute same) subsequent to the Closing Date by
the Parent Borrower or any of its Domestic Subsidiaries (other than Special
Purpose Subsidiaries or any Subsidiary of a Foreign Subsidiary), promptly
notify the Administrative Agent of such occurrence and, if the Administrative
Agent or the Required Lenders so request, promptly (i) execute and deliver to
the Collateral Agent for the benefit of the Lenders such amendments to the
Guarantee and Collateral Agreement as the Collateral Agent shall reasonably
deem necessary or reasonably advisable to grant to the Collateral Agent, for
the benefit of the Lenders, a perfected first priority security interest (or
second priority security interest in accordance with the terms of the Intercreditor
Agreement) (as and to the extent provided in the Guarantee and Collateral
Agreement) in the Capital Stock of such new Domestic Subsidiary, (ii) deliver
to the Collateral Agent the certificates (if any) representing such Capital
Stock, together with undated stock powers, executed and delivered in blank by a
duly authorized officer of the parent corporation of such new Domestic
Subsidiary and (iii) cause such new Domestic Subsidiary (A) to become a
party to the Guarantee and Collateral Agreement and (B) to take all actions
reasonably deemed by the Collateral Agent to be necessary or advisable to cause
the Lien created by the Guarantee and Collateral Agreement in such new Domestic
Subsidiary’s Collateral to be duly perfected in accordance with all applicable
Requirements of Law, including the filing of financing statements in such
jurisdictions as may be reasonably requested by the Collateral Agent.


 


(c)           (x) With respect to any Foreign
Subsidiary created or acquired subsequent to the Closing Date by the Parent
Borrower or any of its Domestic Subsidiaries (other than Special Purpose
Subsidiaries or any Subsidiary of a Foreign Subsidiary), the Capital Stock of
which is owned directly by the Parent Borrower or a Domestic Subsidiary (other
than a Special Purpose Subsidiary or a Subsidiary of a Foreign Subsidiary),
promptly notify the Administrative Agent of such occurrence and if the
Administrative Agent or the Required Lenders so request (it being understood
that if the Administrative Agent does not so request with respect to any such
Foreign Subsidiary that it believes is or is likely to become material to the
Parent Borrower and its Subsidiaries taken as a whole, it will provide notice
to the Lenders thereof), promptly (i) execute and deliver to the Collateral
Agent a new pledge agreement or such amendments to the Guarantee and Collateral
Agreement as the Collateral Agent shall reasonably deem necessary or reasonably
advisable to grant to the Collateral Agent, for the benefit of the Lenders, a
perfected first priority security interest (or second priority security
interest in accordance with the terms of the Intercreditor Agreement) (as and
to the extent provided in the Guarantee and Collateral Agreement) in the
Capital Stock of such new Foreign Subsidiary that is owned by the Parent
Borrower or any of its Domestic Subsidiaries (other than a Special Purpose
Subsidiary) (provided that in no event shall more than 65% of the
Capital Stock of any such new Foreign Subsidiary be required to be so pledged
and, provided, further, that no such pledge or security shall be
required with respect to any non-wholly owned Foreign Subsidiary to the extent
that the grant of such pledge or security interest would violate the terms of
any agreements under which the Investment by the Parent Borrower or any of its
Subsidiaries was made therein) and (ii) to the 


 


93

















 


extent reasonably deemed advisable by the
Collateral Agent, deliver to the Collateral Agent the certificates, if any, representing
such Capital Stock, together with undated stock powers, executed and delivered
in blank by a duly authorized officer of the relevant parent corporation of
such new Foreign Subsidiary and take such other action as may be reasonably
deemed by the Collateral Agent to be necessary or desirable to perfect the
Collateral Agent’s security interest therein.


 


(d)           If, during the final ten days of any
fiscal quarter, the average net book value of Rental Car Vehicles (other than
Hawaiian Vehicles) of the Parent Borrower and the other Loan Parties that do
not constitute Collateral and have not been pledged as security in respect of
any other Indebtedness or obligations of the Parent Borrower or any of its
Subsidiaries is equal to or greater than $100,000,000, then the Parent Borrower
shall, or shall cause its applicable Subsidiaries to, take all actions, to the
extent such actions may be taken without incurring undue burden or expense
(including any inability to include Rental Car Vehicles in manufacturer buy-back
programs, after using commercially reasonable efforts to do so), to ensure
that, beginning within 60 days of the end of such fiscal quarter, all
newly-acquired Rental Car Vehicles (other than Hawaiian Vehicles) of the Parent
Borrower and the other Loan Parties that have not been pledged (or acquired in
contemplation of being pledged) as security in respect of any other
Indebtedness of the Parent Borrower or any of its Subsidiaries are acquired by
a Subsidiary of the Parent Borrower that meets the requirements set forth in
clause (a) of the definition of “Special Purpose Subsidiary” and is a Loan
Party (it being understood that no further action to perfect such Lien shall be
required).


 


(e)           At its own expense, execute,
acknowledge and deliver, or cause the execution, acknowledgement and delivery
of, and thereafter register, file or record in an appropriate governmental
office, any document or instrument reasonably deemed by the Collateral Agent to
be necessary or desirable for the creation, perfection and priority and the
continuation of the validity, perfection and priority of the foregoing Liens or
any other Liens created pursuant to the Security Documents.


 


(f)            Notwithstanding anything to contrary
in this Agreement, nothing in this subsection 7.9 shall require that any Loan
Party grant a Lien with respect to any owned real property or fixtures in which
such Subsidiary acquires ownership rights to the extent that the Administrative
Agent, in its reasonable judgment, determines that the granting of such a Lien
is impracticable.


 


7.10         Interest Rate Protection.  No later than 90 days following the Closing
Date, enter into Interest Rate Protection Agreements, which, together with the
fixed interest rates then applicable to the Consolidated Funded Indebtedness of
Holdings and its Subsidiaries, shall provide interest rate protection in
respect of at least 50% of the Consolidated Funded Indebtedness of Holdings and
its Subsidiaries. Such Interest Rate Protection Agreements shall be in form and
substance reasonably satisfactory to the Administrative Agent, and for a term
of two years or longer if determined by the Parent Borrower.


 


7.11         Surveys.  Within a reasonable period following the
Closing Date, with respect to those Insured Fee Properties (set forth on Schedule
7.11) for which the title policies delivered pursuant to subsection 6.1(n)
contain the standard “survey exception”, obtain surveys 


 


94

















 


in such form as is sufficient to obtain from
the respective title companies endorsements which have the effect of deleting
such exceptions.


 


7.12         [Reserved].


 


7.13         Consummation of Transactions.  The Parent Borrower hereby agrees to cause the
consummation of each of the Acquisition, the Merger, the Equity Financing, the
initial funding under the ABL Facility financing, the initial funding under the
U.S. Securitization and the initial funding under the Foreign Fleet Bridge
Financing to occur on the Closing Date, substantially concurrently with the
satisfaction of the conditions precedent set forth in subsection 6.1.


 


7.14         Post-Closing Security Perfection.
 The Parent Borrower agrees to deliver or
cause to be delivered such documents and instruments, and take or cause to be
taken such other actions as may be reasonably necessary to provide the
perfected security interests and guarantees described in subsection 6.1(a) that
are not so provided on the Closing Date and to satisfy each other condition
precedent that was not actually satisfied, but rather “deemed” satisfied on the
Closing Date pursuant to the provisions set forth in subsection 6.1, and in any
event to provide such perfected security interests and guarantees and to
satisfy such other conditions within the applicable time periods set forth on
Schedule 7.14, as such time periods may be extended by the Administrative
Agent, in its sole discretion.


 


SECTION
8. NEGATIVE COVENANTS.  The
Parent Borrower hereby agrees that, from and after the Closing Date and so long
as the Delayed Draw Term Loan Commitments remain in effect, and thereafter
until payment in full of the Loans, all Reimbursement Amounts and any other
amount then due and owing to any Lender or any Agent hereunder and under any
Note and termination or expiration of all Letters of Credit, the Parent
Borrower shall not and shall not permit any of its Subsidiaries to, directly or
indirectly:


 


8.1           Financial Condition Covenants.


 


(a)           Consolidated Leverage Ratio. Permit
the Consolidated Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of the Parent Borrower ending during any period set
forth below to exceed the ratio set forth below opposite such period below:


 


	
  Fiscal
  Quarter

  Ending

  	
   

  	
  Consolidated 

  Leverage Ratio

  
	
   

  	
   

  	
   

  
	
  September 30, 2006

  	
   

  	
  6.25x

  
	
  December 31, 2006

  	
   

  	
  6.25x

  
	
  March 31, 2007

  	
   

  	
  5.75x

  
	
  June 30, 2007

  	
   

  	
  5.75x

  
	
  September 30, 2007

  	
   

  	
  5.75x

  
	
  December 31, 2007

  	
   

  	
  5.75x

  
	
  March 31, 2008

  	
   

  	
  5.25x

  
	
  June 30, 2008

  	
   

  	
  5.25x

  
	
  September 30, 2008

  	
   

  	
  5.25x

  



 


95

















 


	
  December 31, 2008

  	
   

  	
  5.25x

  
	
  March 31, 2009

  	
   

  	
  5.00x

  
	
  June 30, 2009

  	
   

  	
  5.00x

  
	
  September 30, 2009

  	
   

  	
  5.00x

  
	
  December 31, 2009

  	
   

  	
  5.00x

  
	
  March 31, 2010

  	
   

  	
  4.75x

  
	
  June 30, 2010

  	
   

  	
  4.75x

  
	
  September 30, 2010

  	
   

  	
  4.75x

  
	
  December 31, 2010

  	
   

  	
  4.75x

  
	
  March 31, 2011

  	
   

  	
  4.75x

  
	
  June 30, 2011

  	
   

  	
  4.75x

  
	
  September 30, 2011

  	
   

  	
  4.75x

  
	
  December 31, 2011

  	
   

  	
  4.75x

  
	
  March 31, 2012

  	
   

  	
  4.75x

  
	
  June 30, 2012

  	
   

  	
  4.75x

  
	
  September 30, 2012

  	
   

  	
  4.75x

  



 


Notwithstanding anything to the contrary contained in the table set
forth above, at any time from April 1 to and including the last day of the
third quarter of each fiscal year, the Consolidated Leverage Ratio as otherwise
set forth in the table above for the applicable period shall be adjusted by
increasing the ratio by 0.50.


 


(b)           Consolidated Interest Expense
Ratio. Permit, for any period of four consecutive fiscal quarters of the
Parent Borrower ending during any period set forth below, the Consolidated
Interest Expense Ratio as at the last day of such period of four consecutive
fiscal quarters to be less than the ratio set forth opposite such period below:


 


	
  Period

  	
   

  	
  Consolidated

  Interest Expense Ratio

  
	
  September 30, 2006

  	
   

  	
  1.50x

  
	
  December 31, 2006

  	
   

  	
  1.50x

  
	
  March 31, 2007

  	
   

  	
  1.75x

  
	
  June 30, 2007

  	
   

  	
  1.75x

  
	
  September 30, 2007

  	
   

  	
  1.75x

  
	
  December 31, 2007

  	
   

  	
  1.75x

  
	
  March 31, 2008

  	
   

  	
  2.00x

  
	
  June 30, 2008

  	
   

  	
  2.00x

  
	
  September 30, 2008

  	
   

  	
  2.00x

  
	
  December 31, 2008

  	
   

  	
  2.00x

  
	
  March 31, 2009

  	
   

  	
  2.25x

  
	
  June 30, 2009

  	
   

  	
  2.25x

  
	
  September 30, 2009

  	
   

  	
  2.25x

  
	
  December 31, 2009

  	
   

  	
  2.25x

  
	
  March 31, 2010

  	
   

  	
  2.25x

  
	
  June 30, 2010

  	
   

  	
  2.25x

  
	
  September 30, 2010

  	
   

  	
  2.25x

  
	
  December 31, 2010

  	
   

  	
  2.25x

  



 


96

















 


	
  March 31, 2011

  	
   

  	
  2.25x

  
	
  June 30, 2011

  	
   

  	
  2.25x

  
	
  September 30, 2011

  	
   

  	
  2.25x

  
	
  December 31, 2011

  	
   

  	
  2.25x

  
	
  March 31, 2012

  	
   

  	
  2.25x

  
	
  June 30, 2012

  	
   

  	
  2.25x

  
	
  September 30, 2012

  	
   

  	
  2.25x

  



 


Notwithstanding anything to the contrary contained in the table set forth
above, at any time from April 1 to and including the last day of the third
quarter of each fiscal year, the Consolidated Interest Expense Ratio as
otherwise set forth in the table above for the applicable period shall be
adjusted by decreasing the ratio by 0.25.


 


8.2           Limitation on Indebtedness.  Create, incur, assume or suffer to exist any
Indebtedness (including any Indebtedness of any of its Subsidiaries), except:


 


(a)           Indebtedness of the Parent Borrower
incurred pursuant to this Agreement and the other Loan Documents;


 


(b)           Indebtedness evidenced by the Dollar
Senior Notes and Senior Subordinated Notes; provided that (x) the
aggregate principal amount of Indebtedness evidenced by Dollar Senior Notes and
Senior Subordinated Notes at any time outstanding pursuant to this clause
(b)(i) shall not exceed $2,400,000,000 (except as a result of any
capitalization of accrued and unpaid interest thereon, including through the
issuance of pay-in-kind notes) less any repayments of principal of Indebtedness
theretofore outstanding pursuant to this clause (b)(i) and (y) the aggregate
amount of senior (as opposed to senior subordinated) Indebtedness outstanding
at any time pursuant to this clause (b)(i) shall not exceed $1,800,000,000
(except as a result of any capitalization of accrued and unpaid interest
thereon, including through the issuance of pay-in-kind notes) less the amount
of any reductions pursuant to clause (x) of this proviso as a result of
repayments of theretofore outstanding senior Indebtedness as described in
preceding clause (x) of this proviso, and (ii) Indebtedness evidenced by the
Euro Senior Notes; provided that the aggregate principal amount of
Indebtedness evidenced by Dollar Senior Notes and Senior Subordinated Notes at
any time outstanding pursuant to this clause (b)(i) shall not exceed
€225,000,000 (except as a result of any capitalization of accrued and unpaid
interest thereon, including through the issuance of pay-in-kind notes) less any
repayments of principal of Indebtedness theretofore outstanding pursuant to
this clause (b)(ii); in each case provided that the foregoing New Notes
shall not be extended, renewed, replaced, refinanced or otherwise amended,
except as permitted by subsection 8.14;


 


(c)           Assumed Indebtedness;


 


(d)           Indebtedness incurred pursuant to the
ABL Facility Documents, including any extension, refinancing, refunding,
replacement or renewal thereof; provided that the aggregate principal
amount of Indebtedness at any time outstanding pursuant to this clause (d)
shall not exceed $1,800,000,000 (except as a result of any capitalization of
accrued and unpaid interest thereon, including through the issuance of
pay-in-kind notes);


 


97

















 


(e)           Indebtedness (i) (A) of any Special
Purpose Subsidiary secured by a Lien on all or part of the assets disposed of
in, or otherwise incurred in connection with, a Financing Disposition or (B)
otherwise incurred in connection with a Special Purpose Financing; provided
that (1) such Indebtedness is not recourse to the Parent Borrower or any
Subsidiary that is not a Special Purpose Subsidiary (other than with respect to
Special Purpose Financing Undertakings), (2) in the event such Indebtedness
shall become recourse to the Parent Borrower or any Subsidiary that is not a
Special Purpose Subsidiary (other than with respect to Special Purpose
Financing Undertakings), such Indebtedness is permitted by one or more of the
other provisions of this subsection 8.2 (including clause (ii) below of this
subsection 8.2(e), in which case, if such Indebtedness is to be permitted by
subclause (c) thereof, such Indebtedness shall be deemed to have been incurred
on the date on which such Indebtedness shall have become recourse to the Parent
Borrower or such Subsidiary) for so long as such Indebtedness shall be so
recourse and (3) in the event that at any time thereafter such Indebtedness
shall comply with the provisions of the preceding subclause (1), such
Indebtedness shall be permitted under this clause (i); (ii) of the Parent
Borrower or any of its Domestic Subsidiaries directly or indirectly incurred to
finance or refinance the acquisition of, or secured by, Vehicles and/or other
Equipment and/or related rights and/or assets, so long as (A) such Indebtedness
is directly or indirectly incurred to finance or refinance the acquisition of,
or secured by, Hawaiian Vehicles (“Hawaiian Vehicle Indebtedness”), (B)
the aggregate principal amount of such Indebtedness (other than Hawaiian
Vehicle Indebtedness) does not, at any time exceed $750,000,000 outstanding or
(C) on the date of the incurrence of such Indebtedness, after giving effect to
the incurrence thereof, the amount of all secured Indebtedness of the Parent
Borrower and its Subsidiaries (other than (i) Indebtedness incurred by Special
Purpose Subsidiaries and (ii) Hawaiian Vehicle Indebtedness) then outstanding
does not exceed an amount equal to the product of (x) 2.75 and (y) EBITDA for
the Reference Period most recently ended for which consolidated financial
statements of the Parent Borrower and its Subsidiaries have been required to be
delivered pursuant to subsection 7.1(a) or 7.1(b);


 


(f)            Indebtedness of the Parent Borrower
or any Subsidiary to the Parent Borrower or any other Subsidiary;


 


(g)           Indebtedness of the Parent Borrower
and any of its Subsidiaries (other than Special Purpose Subsidiaries) incurred
to finance or refinance the acquisition, leasing, construction or improvement
of fixed or capital assets (whether pursuant to a loan, a Financing Lease or
otherwise) otherwise permitted pursuant to this Agreement, and any other
Financing Leases, in an aggregate principal amount not exceeding in the
aggregate as to the Parent Borrower and its Subsidiaries $150,000,000 at any
one time outstanding, provided that such amount shall be increased by an
amount equal to $25,000,000 on each anniversary of the Closing Date, so long as
no Default or Event of Default shall have occurred and be continuing on any
date on which such amount is to be increased;


 


(h)           (x) unsecured Indebtedness of the
Parent Borrower and any of its Subsidiaries incurred to finance or refinance
the purchase price of, or (y) Indebtedness of the Parent Borrower and any of
its Subsidiaries assumed in connection with, any acquisition permitted by
subsection 8.10; provided that (i) in the case of clause (x), such
Indebtedness is incurred prior to, substantially simultaneously with or within
six months after such acquisition or in connection with a refinancing thereof,
(ii) if such Indebtedness is owed to a Person, other than 


 


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the Person from whom such acquisition is made
or any Affiliate thereof, such Indebtedness shall have terms and conditions
reasonably satisfactory to the Administrative Agent and shall not exceed 70% of
the purchase price of such acquisition (including any Indebtedness assumed in
connection with such acquisition) (or such greater percentage as shall be
reasonably satisfactory to the Administrative Agent or, if any such purchase
price shall be greater than $75,000,000, such greater percentage as shall be
reasonably satisfactory to the Required Lenders), (iii) if such
Indebtedness is being assumed under this clause (h), such Indebtedness shall
not have been incurred by any party in contemplation of the acquisition
permitted by subsection 8.10 and (iv) immediately after giving effect to such
acquisition no Default or Event of Default shall have occurred and be
continuing;


 


(i)            to the extent that any Indebtedness
may be incurred or arise thereunder, Indebtedness of the Parent Borrower and
its Subsidiaries under Interest Rate Protection Agreements and under Permitted
Hedging Arrangements;


 


(j)            other Indebtedness outstanding or
incurred under facilities in existence on the Closing Date and listed on Schedule
8.2(j), and any refinancings, replacements, refundings, renewals or extensions
thereof on financial and other terms, in the reasonable judgment of the Parent
Borrower, no more onerous to the Parent Borrower or any of its Subsidiaries in
the aggregate than the financial and other terms of such Indebtedness, provided
that the amount of such Indebtedness is not increased at the time of such
refinancing, replacements, refunding, renewal or extension except by an amount
equal to the premium or other amounts paid, and fees and expenses incurred, in
connection with such refinancing, refunding, renewal or extension;


 


(k)           to the extent that any Guarantee
Obligation or other obligation permitted under subsection 8.4 constitutes
Indebtedness, such Indebtedness;


 


(l)            Indebtedness of Foreign Subsidiaries
of the Parent Borrower not exceeding, as to all such Foreign Subsidiaries, in
aggregate principal amount at any time outstanding an amount equal to
$50,000,000;


 


(m)          Indebtedness in respect of performance
bonds, bid bonds, appeal bonds, surety bonds and similar obligations and
trade-related letters of credit, in each case provided in the ordinary course
of business;


 


(n)           Indebtedness of the Parent Borrower
or any of its Subsidiaries in respect of Sale and Leaseback Transactions
permitted under subsection 8.12;


 


(o)           Indebtedness of the Parent Borrower
or any of its Subsidiaries incurred to finance insurance premiums in the
ordinary course of business;


 


(p)           Indebtedness of any Foreign
Subsidiary of the Parent Borrower fully supported on the date of the incurrence
thereof by a Foreign Backstop Letter of Credit;


 


(q)           Indebtedness arising from the
honoring of a check, draft or similar instrument against insufficient funds; provided
that such Indebtedness is extinguished within two Business Days of its
incurrence;


 


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(r)            Indebtedness in respect of Financing
Leases which have been funded solely by Investments of the Parent Borrower and
its Subsidiaries permitted by subsection 8.9(l);


 


(s)           Indebtedness not otherwise permitted
by the preceding clauses of this subsection 8.2 not exceeding $250,000,000 in
aggregate principal amount at any one time outstanding;


 


(t)            Indebtedness which represents an
extension, refinancing, refunding, replacement or renewal of any of the
Indebtedness described in clauses (c) and (h) hereof; provided that, (i)
the principal amount (or accreted value, if applicable) thereof does not exceed
the principal amount (or accreted value, if applicable) of the Indebtedness so
extended, refinanced, refunded, replaced or renewed, except by an amount equal
to unpaid accrued interest and premium (including applicable prepayment
penalties) thereon plus fees and expenses reasonably incurred in connection
therewith, (ii) any Liens securing such Indebtedness are limited to all or part
of the same property (including, if required by the documentation evidencing
such Indebtedness being extended, refinanced, replaced or renewed,
after-acquired property of the same type) that secured the Indebtedness being
refinanced; provided that the total value of the collateral securing
such Indebtedness incurred under this subsection 8.2(t) immediately following
such incurrence shall not be materially greater than the value of the
collateral securing the Indebtedness being extended, refinanced, replaced or
renewed immediately prior to such extension, refinancing, replacement or
renewal, (iii) no Loan Party that is not originally obligated with respect to
repayment of such Indebtedness is required to become obligated with respect
thereto, (iv) such extension, refinancing, refunding, replacement or renewal
does not result in a shortening of the average weighted maturity of the
Indebtedness so extended, refinanced, refunded, replaced or renewed and (v) if
the Indebtedness that is extended, refinanced, refunded, replaced or renewed
was subordinated in right of payment to the obligations of the Parent Borrower
hereunder and under the other Loan Documents, then the terms and conditions of
the extension, refinancing, refunding, replacement or renewal Indebtedness must
include subordination terms and conditions that are at least as favorable to
the Lenders as those that were applicable to the extended, refinanced,
refunded, replaced or renewed Indebtedness;


 


(u)           cash management obligations and other
Indebtedness in respect of netting services, overdraft protections and similar
arrangements in each case arising under standard business terms of any bank at
which the Parent Borrower or Subsidiary maintains an overdraft, cash pooling or
other similar facility or arrangement;


 


(v)           Indebtedness of any Foreign
Subsidiary of the Parent Borrower (other than any Loan Party), in an aggregate
principal amount at any time outstanding not exceeding an amount equal to (A) the
greater of (x) $2,900,000,000 and (y) an amount equal to the Foreign
Borrowing Base less the aggregate principal amount of Indebtedness incurred by
Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding
pursuant to clause (e)(i) of this subsection 8.2 plus (B) in the case of any
refinancing of any Indebtedness incurred under this clause (v), the aggregate
amount of fees, underwriting discounts, premiums and other costs and expenses
incurred in connection with such refinancing (such Indebtedness, “Foreign
Fleet Financing”); and


 


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(w)          Indebtedness evidenced by the
Additional Senior Notes.


 


For purposes
of determining compliance with this subsection 8.2 and subsection 8.3(t)(iii),
the amount of any Indebtedness denominated in any currency other than Dollars
shall be calculated based on customary currency exchange rates in effect, in
the case of such Indebtedness incurred (in respect of term Indebtedness) or
committed (in respect of Delayed Draw Term Loan Commitments and revolving
Indebtedness) on or prior to the Closing Date, on the Closing Date and, in the
case of such Indebtedness incurred (in respect of term Indebtedness) or
committed (in respect of revolving Indebtedness) after the Closing Date, on the
date that such Indebtedness was incurred (in respect of term Indebtedness) or
committed (in respect of Delayed Draw Term Loan Commitments and revolving
Indebtedness); provided that if such Indebtedness is incurred to
refinance other Indebtedness denominated in a currency other than Dollars (or
in a different currency from the Indebtedness being refinanced), and such
refinancing would cause the applicable Dollar-denominated restriction to be
exceeded if calculated at the relevant currency exchange rate in effect on the
date of such refinancing, such Dollar-denominated restriction shall be deemed
not to have been exceeded so long as the principal amount of such refinancing
Indebtedness does not exceed (i) the outstanding or committed principal amount,
as applicable, of such Indebtedness being refinanced plus (ii) the aggregate
amount of fees, underwriting discounts, premiums and other costs and expenses
incurred in connection with such refinancing.


 


8.3           Limitation on Liens.  Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for the following (Liens described below are herein
referred to as “Permitted Liens”; provided, however, that
no reference to a Permitted Lien herein, including any statement or provision
as to the acceptability of any Permitted Lien, shall in any way constitute or
be construed so as to postpone or subordinate any Liens or other rights of the
Agents, the Lenders or any of them hereunder or arising under any other Loan
Document in favor of such Permitted Lien):


 


(a)           Liens for taxes, assessments and
similar charges not yet delinquent or the nonpayment of which in the aggregate
would not reasonably be expected to have a Material Adverse Effect, or which
are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves with respect thereto are maintained on the
books of the Parent Borrower or its Subsidiaries, as the case may be, in
conformity with GAAP;


 


(b)           carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s or other like Liens arising in the ordinary course
of business and relating to obligations which are not overdue for a period of
more than 60 days or which are being contested in good faith by appropriate
proceedings diligently conducted;


 


(c)           Liens of landlords or of mortgagees
of landlords arising by operation of law or pursuant to the terms of real
property leases, provided that the rental payments secured thereby are
not yet due and payable;


 


(d)           pledges, deposits or other Liens in
connection with workers’ compensation, unemployment insurance, other social
security benefits or other insurance 


 


101

















 


related obligations
(including pledges or deposits securing liability to insurance carriers under
insurance or self-insurance arrangements);


 


(e)           Liens arising by reason of any
judgment, decree or order of any court or other Governmental Authority, if
appropriate legal proceedings which may have been duly initiated for the review
of such judgment, decree or order, are being diligently prosecuted and shall
not have been finally terminated or the period within which such proceedings
may be initiated shall not have expired;


 


(f)            Liens to secure the performance of
bids, trade contracts (other than for borrowed money), obligations for
utilities, leases, statutory obligations, surety and appeal bonds, performance
bonds, judgment and like bonds, replevin and similar bonds and other obligations
of a like nature incurred in the ordinary course of business;


 


(g)           zoning restrictions, easements,
rights-of-way, restrictions on the use of property, other similar encumbrances
incurred in the ordinary course of business and minor irregularities of title,
which do not materially interfere with the ordinary conduct of the business of
the Parent Borrower and its Subsidiaries taken as a whole;


 


(h)           Liens securing or consisting of (i)
Indebtedness of the Parent Borrower and its Subsidiaries permitted by subsection
8.2(g) incurred to finance the acquisition, leasing, construction or
improvement of fixed or capital assets or (ii) Indebtedness of the Parent
Borrower and its Subsidiaries permitted by subsection 8.2(h) assumed in
connection with any acquisition permitted by subsection 8.10, provided
that (i) such Liens shall not be created in contemplation of the acquisition
permitted by subsection 8.10 and shall be created no later than the later of
the date of such acquisition or the date of the assumption of such
Indebtedness, and (ii) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness and, in the case of
Indebtedness assumed in connection with any such acquisition, the total value
of the collateral constituting such Liens immediately following such
acquisition shall not be materially greater than the value of the collateral
constituting such Liens immediately prior to such acquisition;


 


(i)            Liens existing on assets or
properties at the time of the acquisition thereof by the Parent Borrower or any
of its Subsidiaries which do not materially interfere with the use, occupancy,
operation and maintenance of structures existing on the property subject
thereto or extend to or cover any assets or properties of the Parent Borrower
or such Subsidiary other than the assets or property being acquired;


 


(j)            Liens (i) in existence on the
Closing Date and listed in Schedule 8.3(j) and other Liens securing
Indebtedness of the Parent Borrower and its Subsidiaries permitted by subsection
8.2(j), provided that no such Lien securing Indebtedness incurred
pursuant to subsection 8.2(j) is spread to cover any additional property after
the Closing Date and that the amount of Indebtedness secured thereby is not
increased except as permitted by subsection 8.2(j) or (ii) not otherwise
permitted hereunder, all of which Liens permitted pursuant to this subsection
8.3(j)(ii) secure obligations not exceeding $50,000,000 in aggregate amount at
any time outstanding;


 


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(k)           Liens securing Guarantee Obligations
permitted under subsection 8.4(f) not exceeding (as to the Parent Borrower and
all of its Subsidiaries) $7,500,000 in aggregate amount at any time
outstanding;


 


(l)            Liens created pursuant to the
Security Documents (including the Euro MTN Lien);


 


(m)          any encumbrance or restriction
(including put and call agreements) with respect to the Capital Stock of any
joint venture or similar arrangement pursuant to the joint venture or similar
agreement with respect to such joint venture or similar arrangement, provided
that no such encumbrance or restriction affects in any way the ability of the
Parent Borrower or any of its Subsidiaries to comply with subsection 7.9(b) or
(c);


 


(n)           Liens on property subject to Sale and
Leaseback Transactions permitted under subsection 8.12 and general intangibles
related thereto;


 


(o)           Liens on property of any Foreign
Subsidiary of the Parent Borrower securing Indebtedness of such Subsidiary
permitted by subsection 8.2(l);


 


(p)           Liens on Intellectual Property; provided
that such Liens result from the granting of licenses in the ordinary course of
business to any Person to use such Intellectual Property or such foreign
patents, patent applications, trademarks, trademark applications, trade names,
copyrights, technology, know-how or processes, as the case may be;


 


(q)           Liens on or under, or arising out of
or relating to, any Vehicle Rental Concession Rights;


 


(r)            Liens on property (i) of any
Subsidiary that is not a Loan Party and (ii) that does not constitute
Collateral, which Liens secure Indebtedness of the applicable Subsidiary
permitted under subsection 8.2 or Guarantee Obligations of the applicable
Subsidiary permitted under subsection 8.4


 


(s)           Liens securing or consisting of
Indebtedness of the Parent Borrower and its Subsidiaries permitted by
subsection 8.2(d) and any refinancings, extensions and replacements thereof
otherwise permitted under this Agreement; provided that (i) such Liens
do not apply to any asset other than Collateral that is subject to a Lien
granted under a Security Document to secure the “Secured Obligations” as
defined in the Guarantee and Collateral Agreement and (ii) all such Liens shall
be subject to the Intercreditor Agreement or another intercreditor agreement
that is no less favorable to the Secured Parties than the Intercreditor
Agreement; and


 


(t)            (i) Liens
securing Indebtedness permitted by subsection 8.2(e) to the extent
secured by Vehicles and/or Equipment and/or related rights and/or assets (other
than real property, trademarks and patents owned by any Loan Party and
constituting Term Priority Collateral); (ii) Liens
securing Indebtedness permitted by subsection 8.2(v), to the extent such
Liens are limited to property or assets of one or more Foreign 


 


103

















 


Subsidiaries
(other than any Loan Parties); and (iii) Liens securing Guarantee
Obligations in respect of Indebtedness permitted by subsection 8.2(v) of (A)
Car Rental System do Brasil Locacão de Veículos Ltda or any successor in
interest thereto and/or (B) any other Subsidiary engaged in, or Special Purpose
Entity otherwise supporting or relating to, the business of leasing or renting
Vehicles in Brazil, provided that (A) the principal amount of such
Indebtedness so guaranteed shall not exceed $52,000,000 and (B) such Liens are
limited to Liens on the Collateral securing the Indebtedness provided
hereunder.


 


8.4           Limitation on Guarantee
Obligations.  Create, incur, assume
or suffer to exist any Guarantee Obligation except:


 


(a)           Guarantee Obligations in existence on
the Closing Date and listed in Schedule 8.4(a), and any refinancings,
refundings, extensions or renewals thereof, provided that the amount of
such Guarantee Obligation shall not be increased at the time of such
refinancing, refunding, extension or renewal except to the extent that the
amount of Indebtedness in respect of such Guarantee Obligations is permitted to
be increased by subsection 8.2(c) or 8.2(j);


 


(b)           Guarantee Obligations in connection
with up to an aggregate principal amount of $20,000,000 of Indebtedness
outstanding at any time incurred by any Management Investors in connection with
any Management Subscription Agreements or other purchases by them or Capital
Stock of any Parent Entity (so long as such Parent Entity applies the net cash
proceeds of such purchases to, directly or indirectly, make capital
contributions to, or purchase Capital Stock of, CCMGC or applies such proceeds
to pay Parent Entity Expenses) or CCMGC, and any refinancings, refundings,
extensions or renewals thereof; provided that such amount shall be
reduced by the aggregate then outstanding principal amount of loans and
advances permitted by subsection 8.9(n);


 


(c)           Guarantee Obligations for
performance, bid, appeal, judgment, replevin and similar bonds and suretyship
arrangements, all in the ordinary course of business;


 


(d)           Guarantee Obligations in respect of
indemnification and contribution agreements expressly permitted by subsection
8.11(iv) or similar agreements by the Parent Borrower;


 


(e)           reimbursement obligations in respect
of the Letters of Credit or any other letters of credit permitted under
subsection 8.2;


 


(f)            Guarantee Obligations in respect of
third-party loans and advances to officers or employees of the Parent Borrower
or any of its Subsidiaries (i) for travel and entertainment expenses incurred
in the ordinary course of business, (ii) for relocation expenses incurred in
the ordinary course of business, or (iii) for other purposes in an aggregate
amount (as to CCMGC and all of its Subsidiaries), together with the aggregate
amount of all Investments permitted under subsection 8.9(e)(iv), of up to
$7,500,000 outstanding at any time;


 


(g)           obligations to insurers required in
connection with worker’s compensation and other insurance coverage incurred in
the ordinary course of business;


 


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(h)           obligations of the Parent Borrower
and its Subsidiaries under any Interest Rate Protection Agreements or under
Permitted Hedging Arrangements;


 


(i)            Guarantee Obligations incurred in
connection with acquisitions permitted under subsection 8.10, provided
that if any such Guarantee Obligation inures to the benefit of any Person other
than the Person from whom such acquisition is made or any Affiliate thereof,
such Guarantee Obligation shall not exceed, with respect to any such
acquisition, 70% of the purchase price of such acquisition (including any
Indebtedness assumed in connection with any such acquisition) (or such greater
percentage as shall be reasonably satisfactory to the Administrative Agent or,
if any such purchase price shall be greater than $75,000,000, such greater
percentage shall be reasonably satisfactory to the Required Lenders);


 


(j)            guarantees made by the Parent
Borrower or any of its Subsidiaries of obligations of the Parent Borrower or
any of its Subsidiaries (other than any Indebtedness outstanding pursuant to
subsections 8.2(b), (c), (d), (e), (m), (n) and (v)) which obligations are
otherwise permitted under this Agreement;


 


(k)           Guarantee Obligations in connection
with sales or other dispositions permitted under subsection 8.6, including
indemnification obligations with respect to leases, and guarantees of
collectability in respect of accounts receivable or notes receivable for up to
face value;


 


(l)            Guarantee Obligations incurred
pursuant to the Guarantee and Collateral Agreement or otherwise in respect of
Indebtedness permitted by subsection 8.2(a);


 


(m)          Guarantee Obligations in respect of
Indebtedness permitted pursuant to subsections 8.2(b), (c), (d), (e) and (v), provided
that (x) if any such Indebtedness is subordinated in right of payment to the
obligations of the Parent Borrower hereunder and under the other Loan
Documents, then any corresponding Guarantee Obligations are subordinated to
Indebtedness outstanding pursuant to this Agreement and other Loan Documents to
substantially the same extent, (y) Guarantee Obligations in respect of
Indebtedness permitted pursuant to subsection 8.2 (b) shall be permitted only
so long as such Guarantee Obligations are incurred only by Guarantors or the
Parent Borrower and (z) Guarantee Obligations in respect of Rollover
Indebtedness permitted pursuant to subsection 8.2(c) shall be permitted to the
extent no additional guarantors of such Indebtedness are added following the
Closing Date;


 


(n)           (x) accommodation guarantees for the
benefit of trade creditors of the Parent Borrower or any of its Subsidiaries in
the ordinary course of business, (y) Guarantee Obligations in connection with
the construction or improvement of all or any portion of a Public Facility to
be used by the Parent Borrower or any Subsidiary, and (z) Guarantee Obligations
required (in the good faith determination of the Parent Borrower) in connection
with Vehicle Rental Concession Rights; and


 


(o)           Guarantee Obligations in respect of
Indebtedness or other obligations of a Person in connection with a joint
venture or similar arrangement in respect of which no 


 


105

















 


other co-investor or
other Person has a greater legal or beneficial ownership interest than the
Parent Borrower or any of its Subsidiaries, and as to all of such Persons does
not at any time exceed $20,000,000 in aggregate principal amount; provided
that (i) such amount shall be increased by an amount equal to $5,000,000 on
each anniversary of the Closing Date, so long as no Default or Event of Default
shall have occurred and be continuing on any date on which such amount is to be
increased and (ii) such amount and any increase in such amount permitted by
clause (i) shall be reduced by the aggregate amount of Investments permitted by
subsection 8.9(k).


 


8.5           Limitation on Fundamental Changes.
 Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property, business or
assets, except:


 


(a)           any Subsidiary of the Parent Borrower
may be merged, consolidated or amalgamated with or into the Parent Borrower (provided
that the Parent Borrower shall be the continuing or surviving corporation) or
with or into any one or more Wholly Owned Subsidiaries of the Parent Borrower (provided
that the Wholly Owned Subsidiary or Subsidiaries of the Parent Borrower shall
be the continuing or surviving entity, and if either such Subsidiary is HERC,
HERC shall be the continuing or surviving entity (unless merged into the Parent
Borrower);


 


(b)           any Subsidiary of the Parent Borrower
may sell, lease, transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to the Parent Borrower or any Wholly
Owned Subsidiary of the Parent Borrower (and, in the case of a non-Wholly Owned
Subsidiary, may be liquidated to the extent the Parent Borrower or any Wholly
Owned Subsidiary which is a direct parent of such non-Wholly Owned Subsidiary
receives a pro rata distribution of the assets thereof);


 


(c)           pursuant to the Merger and the
Canadian Reorganization; and


 


(d)           as expressly permitted by subsection
8.6.


 


8.6           Limitation on Sale of Assets.  Convey, sell, lease, assign, transfer,
license, abandon or otherwise dispose of any of its property, business or
assets (including receivables and leasehold interests) (other than leases or
rentals of revenue earning equipment in the ordinary course of business),
whether now owned or hereafter acquired, or, in the case of any Subsidiary of
the Parent Borrower, issue or sell any shares of such Subsidiary’s Capital
Stock, to any Person other than, subject to any applicable limitations set
forth in subsection 8.5, the Parent Borrower or any Wholly Owned Subsidiary of
the Parent Borrower, except:


 


(a)           the sale or other Disposition of
obsolete, worn out or surplus property, whether now owned or hereafter
acquired, in the ordinary course of business;


 


(b)           the sale or other Disposition of any
property (including Rental Equipment) in the ordinary course of business;


 


106

















 


(c)           the sale or discount without recourse
of accounts receivable or notes receivable arising in the ordinary course of
business, or the conversion or exchange of accounts receivable into or for
notes receivable, in connection with the compromise or collection thereof; provided
that, in the case of any Foreign Subsidiary of the Parent Borrower, any such
sale or discount may be with recourse if such sale or discount is consistent
with customary practice in such Foreign Subsidiary’s country of business;


 


(d)           as permitted by subsection 8.5(b)or
8.5(c) and pursuant to Sale and Leaseback Transactions permitted by subsection
8.12;


 


(e)           subject to any applicable limitations
set forth in subsection 8.5, Dispositions of any assets or property by the
Parent Borrower or any of its Subsidiaries to the Parent Borrower or any Wholly
Owned Subsidiary of the Parent Borrower;


 


(f)            (i) the abandonment or other
Disposition of patents, trademarks or other intellectual property that are, in
the reasonable judgment of the Parent Borrower, no longer economically
practicable to maintain or useful in the conduct of the business of the Parent
Borrower and its Subsidiaries taken as a whole and (ii) licensing of
Intellectual Property in the ordinary course of business;


 


(g)           any Disposition by the Parent
Borrower or any of its Subsidiaries, provided that the Net Cash Proceeds
of each such Disposition do not exceed $10,000,000 and the aggregate Net Cash
Proceeds of all Dispositions in any fiscal year made pursuant to this paragraph
(g) do not exceed $20,000,000;


 


(h)           any other Asset Sales by the Parent
Borrower or any of its Subsidiaries the Net Cash Proceeds of which other Asset
Sales do not exceed $125,000,000 in the aggregate after the Closing Date, provided
that in the case of any such Asset Sale, an amount equal to 100% of the Net
Cash Proceeds of such Dispositions less the Reinvested Amount is applied in
accordance with subsection 4.4(b)(ii);


 


(i)            any Disposition set forth on
Schedule 8.6(i); and


 


(j)            any Financing Disposition.


 


8.7           Limitation on Dividends.  Declare or pay any dividend (other than
dividends payable solely in common stock of the Parent Borrower or options,
warrants or other rights to purchase common stock of the Parent Borrower) on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Parent Borrower
or any warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or make any other distribution (other than distributions
payable solely in common stock of the Parent Borrower or options, warrants or
other rights to purchase common stock of the Parent Borrower) in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Parent Borrower, except that:


 


(a)           the Parent Borrower may pay cash
dividends in an amount sufficient to allow any Parent Entity or CCMGC to pay
expenses (other than taxes) incurred in the 


 


107

















 


ordinary course of
business, provided that, if any Parent Entity shall own any material
assets other than the Capital Stock of CCMGC or another Parent Entity or other
assets, relating to the ownership interest of such Parent Entity in another
Parent Entity, CCMGC or Subsidiaries of CCMGC, such cash dividends with respect
to such Parent Entity shall be limited to the reasonable and proportional
share, as determined by the Parent Borrower in its reasonable discretion, of
such expenses incurred by such Parent Entity relating or allocable to its
ownership interest in CCMGC or another Parent Entity and such other related
assets; and provided, further, that if CCMGC shall own any
material assets other than Capital Stock of the Parent Borrower or other assets
relating to the ownership interest of CCMGC in the Parent Borrower or
Subsidiaries of the Parent Borrower, such cash dividends with respect to CCMGC
shall be limited to the reasonable and proportional share, as determined by the
Parent Borrower in its reasonable discretion, of such expenses incurred by
CCMGC relating to or allocable to its ownership interest in the Parent Borrower
and such other related assets;


 


(b)           the Parent Borrower may pay cash
dividends in an amount sufficient to cover reasonable and necessary expenses
(including professional fees and expenses) (other than taxes) incurred by any
Parent Entity or CCMGC in connection with (i) registration, public offerings
and exchange listing of equity or debt securities and maintenance of the same,
(ii) compliance with reporting obligations under, or in connection with
compliance with, federal or state laws or under this Agreement or any of the
other Loan Documents and (iii) indemnification and reimbursement of
directors, officers and employees in respect of liabilities relating to their
serving in any such capacity, or obligations in respect of director and officer
insurance (including premiums therefor), provided that, in the case of
sub-clause (i) above, if any Parent Entity shall own any material assets other
than the Capital Stock of CCMGC or another Parent Entity or other assets
relating to the ownership interest of such Parent Entity in another Parent Entity,
CCMGC or its Subsidiaries, with respect to such Parent Entity such cash
dividends shall be limited to the reasonable and proportional share, as
determined by the Parent Borrower in its reasonable discretion, of such
expenses incurred by such Parent Entity relating or allocable to its ownership
interest in another Parent Entity, CCMGC and such other assets; and provided,
further, that in the case of sub-clause (i) above, if CCMGC shall own
any material assets other than the Capital Stock of the Parent Borrower or
other assets relating to the ownership interest of CCMGC in the Parent Borrower
or its Subsidiaries, with respect to CCMGC such cash dividends shall be limited
to the reasonable and proportional share, as determined by the Parent Borrower
in its reasonable discretion, of such expenses incurred by CCMGC relating or
allocable to its ownership interest in the Parent Borrower and such other
assets;


 


(c)           the Parent Borrower may pay, without
duplication, cash dividends (A) pursuant to the Tax Sharing Agreement; and (B)
to pay or permit CCMGC or any Parent Entity to pay any Related Taxes;


 


(d)           the Parent Borrower may (i) pay cash
dividends in an amount sufficient to allow CCMGC and any Parent Entity to pay
all fees and expenses incurred in connection with the Transactions and the
other transactions expressly contemplated by this Agreement and the other Loan
Documents, and to allow CCMGC to perform its 


 


108

















 


obligations under or
in connection with the Loan Documents to which it is a party and (ii) make
dividends, payments and distributions in connection with the Canadian
Reorganization;


 


(e)           the Parent Borrower may pay cash
dividends in an amount sufficient to allow CCMGC or any Parent Entity to
repurchase shares of its Capital Stock or rights, options or units in respect
thereof from any Management Investors or former Management Investors (or any of
their respective heirs, successors, assigns, legal representatives or estates),
or as otherwise contemplated by any Management Subscription Agreements, for an
aggregate purchase price not to exceed $20,000,000; provided that such
amount shall be increased by (i) an amount equal to $5,000,000 on each
anniversary of the Closing Date, commencing on the first anniversary of the
Closing Date, and (ii) an amount equal to the proceeds to CCMGC (whether
received by it directly or from a Parent Entity or applied to pay Parent Entity
Expenses) of any resales or new issuances of shares and options to any
Management Investors, at any time after the initial issuances to any Management
Investors, together with the aggregate amount of deferred compensation owed by
CCMGC or any of its Subsidiaries to any Management Investor that shall
thereafter have been cancelled, waived or exchanged at any time after the
initial issuances to any thereof in connection with the grant to such
Management Investor of the right to receive or acquire shares of CCMGC’s or any
Parent Entity’s Capital Stock; and


 


(f)            in addition to cash dividends,
payments and distributions expressly permitted by this subsection 8.7, the
Parent Borrower may make cash dividends, payments and distributions in an
aggregate amount not to exceed $150,000,000; provided that such amount
shall be increased by the amount of Cumulative Excess Cash Flow Not Otherwise
Applied (which shall be available for use hereunder only at any time that the
Consolidated Leverage Ratio of the Parent Borrower for the most recently
completed fiscal period is less than or equal to 3.75 to 1.00).


 


8.8           Limitation on Capital Expenditures.
 At any time on or after January 1, 2006,
make or commit to make any Capital Expenditures (excluding any expenses
incurred in connection with normal replacement and maintenance programs
properly charged to current operations, Reinvested Amounts with respect to any
Recovery Event and Capital Expenditures made by any Special Purpose
Subsidiaries, any expenditures for purchases of Rental Equipment, Rental Car
Vehicles and Capital Expenditures required (in the good faith determination of
the Company) in connection with Vehicle Rental Concession Rights, all of which
shall be permitted without regard to the limits of this subsection 8.8); provided
that the Parent Borrower and its Subsidiaries may make Capital Expenditures in
an amount not to exceed, for any period set forth below, the amount set forth
opposite such period below:


 


109

















 


	
  Period

  	
   

  	
  Amount

  	
   

  
	
  January 1,
  2006 to and including December 31, 2006

  	
   

  	
  $

  	
  350,000,000

  	
   

  
	
  January 1,
  2007 to and including December 31, 2007

  	
   

  	
  $

  	
  350,000,000

  	
   

  
	
  January 1,
  2008 to and including December 31, 2008

  	
   

  	
  $

  	
  400,000,000

  	
   

  
	
  January 1,
  2009 to and including December 31, 2009

  	
   

  	
  $

  	
  400,000,000

  	
   

  
	
  January 1,
  2010 to and including December 31, 2010

  	
   

  	
  $

  	
  400,000,000

  	
   

  
	
  January 1,
  2011 to and including December 31, 2011

  	
   

  	
  $

  	
  400,000,000

  	
   

  
	
  January 1,
  2012 to and including December 21, 2012

  	
   

  	
  $

  	
  400,000,000

  	
   

  



 


provided,
further, that up to 100% of any Capital Expenditures permitted above to be
made during any period and not made during such period may be carried over and
expended during the next succeeding period. In making determinations pursuant
to the preceding sentence, amounts carried over from any period into a
subsequent period shall be deemed utilized prior to the amount permitted by the
table set forth above has been utilized on Capital Expenditures during the
respective period.


 


8.9           Limitation on Investments, Loans
and Advances.  Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment, in cash or by transfer of
assets or property, in (each an “Investment”), any Person, except:


 


(a)           extensions of trade credit in the
ordinary course of business;


 


(b)           Investments in cash and Cash
Equivalents;


 


(c)           Investments existing on the Closing
Date and described in Schedule 8.9(c), setting forth the respective amounts of
such Investments as of a recent date;


 


(d)           Investments in notes receivable and
other instruments and securities obtained in connection with transactions
permitted by subsection 8.6(c);


 


(e)           loans and advances to officers,
directors or employees of CCMGC or any of its Subsidiaries (i) in the ordinary
course of business for travel and entertainment expenses, (ii) existing on the
Closing Date and described in Schedule 8.9(c), (iii) made after the Closing
Date for relocation expenses in the ordinary course of business, (iv) made
for other purposes in an aggregate amount (as to CCMGC and all of its
Subsidiaries), together with the aggregate amount of all Guarantee Obligations
permitted pursuant to subsection 8.4(f)(iii), of up to $7,500,000 outstanding
at any time and (v) relating to indemnification or reimbursement of any
officers, directors or employees in respect of liabilities relating to their
serving in any such capacity or as otherwise specified in subsection 8.11;


 


110

















 


(f)            (i) Investments by the Parent Borrower
or any Subsidiary in the Parent Borrower or any other Subsidiary and (ii)
Investments in CCMGC in amounts and for purposes for which dividends are
permitted under subsection 8.7;


 


(g)           acquisitions expressly permitted by
subsection 8.10;


 


(h)           Investments of the Parent Borrower
and its Subsidiaries under Interest Rate Protection Agreements or under
Permitted Hedging Arrangements;


 


(i)            Investments in the nature of pledges
or deposits with respect to leases or utilities provided to third parties in
the ordinary course of business or otherwise described in subsection 8.3(c),
(d) or (f);


 


(j)            Investments representing non-cash
consideration received by the Parent Borrower or any of its Subsidiaries in
connection with any Asset Sale, provided that in the case of any Asset
Sale permitted under subsection 8.6(g) or (h), such non-cash consideration
constitutes not more than 25% of the aggregate consideration received in
connection with such Asset Sale and any such non-cash consideration received by
the Parent Borrower or any other Loan Party is pledged to the Collateral Agent
for the benefit of the Lenders pursuant to the Security Documents;


 


(k)           Investments by the Parent Borrower or
any of its Subsidiaries in a Person in connection with a joint venture or
similar arrangement in respect of which no other co-investor or other Person
has a greater legal or beneficial ownership interest than the Parent Borrower
or such Subsidiary in an aggregate amount not to exceed at any time an amount
equal to $20,000,000; provided that (i) such amount shall be increased
by an amount equal to $5,000,000 on each anniversary of the Closing Date, so
long as no Default or Event of Default shall have occurred and be continuing on
any date on which such amount is to be increased, (ii) such amount and any
increase in such amount permitted by clause (i) shall be reduced by the
aggregate principal amount of Indebtedness in respect of Guarantee Obligations
permitted by subsection 8.4(o), (iii) the Parent Borrower or such Subsidiary
complies with the provisions of subsection 7.9(b) and (c) hereof, if
applicable, with respect to such ownership interest;


 


(l)            Investments in industrial
development or revenue bonds or similar obligations secured by assets leased to
and operated by the Parent Borrower or any of its Subsidiaries that were issued
in connection with the financing of such assets, so long as the Parent Borrower
or any such Subsidiary may obtain title to such assets at any time by
optionally canceling such bonds or obligations, paying a nominal fee and
terminating such financing transaction;


 


(m)          Investments representing evidences of
Indebtedness, securities or other property received from another Person by the
Parent Borrower or any of its Subsidiaries in connection with any bankruptcy
proceeding or other reorganization of such other Person or as a result of
foreclosure, perfection or enforcement of any Lien or exchange for evidences of
Indebtedness, securities or other property of such other Person held by the
Parent Borrower or any of its Subsidiaries; provided that any such
securities or other 


 


111

















 


property received by
the Parent Borrower or any other Loan Party is pledged to the Administrative
Agent for the benefit of the Lenders pursuant to the Security Documents;


 


(n)           loans and advances to Management
Investors in connection with the purchase by such Management Investors of
Capital Stock of any Parent Entity (so long as (i) such Parent Entity applies
the net cash proceeds of such purchases to, directly or indirectly, make
capital contributions to, or purchase Capital Stock of, CCMGC or applies such
proceeds to pay Parent Entity Expenses and (ii) CCMGC applies the net cash
proceeds of such purchases to, directly or indirectly, make capital contributions
to, or purchase Capital Stock of, the Parent Borrower or applies such proceeds
to pay Parent Entity Expenses) or CCMGC of up to $20,000,000 outstanding at any
one time; provided that such amount shall be reduced by the aggregate
principal amount of Indebtedness in respect of Guarantee Obligations permitted
by subsection 8.4(b);


 


(o)           Investments consisting of, or arising
out of or related to, Vehicle Rental Concession Rights (including any
Investments referred to in the definition of the term “Vehicle Rental
Concession Rights”);


 


(p)           in addition to Investments otherwise
expressly permitted by this subsection 8.9, Investments by the Parent Borrower
or any of its Subsidiaries in an aggregate amount not to exceed $400,000,000
outstanding at any time; provided that such amount shall be increased by
the amount of Cumulative Excess Cash Flow Not Otherwise Applied (which shall be
available for use hereunder only at any time that the Consolidated Leverage
Ratio of the Parent Borrower for the most recently completed fiscal period is
less than or equal to 3.75 to 1.00); and


 


(q)           Investments in or by any Special
Purpose Subsidiary, or in connection with a Financing Disposition by, to or in
favor of any Special Purpose Entity, including (1) Investments of funds in
accounts permitted or required by the arrangements governing such Financing
Disposition or any related Indebtedness, or (2) any promissory note issued by
the Parent Borrower, CCMGC or any Parent Entity, provided that if CCMGC or such
Parent Entity receives cash from the relevant Special Purpose Entity in
exchange for such note, an equal cash amount is contributed by CCMGC or any
Parent Entity to the Parent Borrower.


 


8.10         Limitations on Certain Acquisitions.
 Acquire by purchase or otherwise all the
business or assets of, or stock or other evidences of beneficial ownership of,
any Person, except that the Parent Borrower and its Subsidiaries shall be
allowed to make any such acquisitions so long as:


 


(a)           such acquisition is expressly
permitted by subsection 8.5, or


 


(b)           the aggregate consideration paid by
the Parent Borrower and its Subsidiaries for such acquisition (including cash
and indebtedness incurred or assumed in connection with such acquisition)
consists solely of any combination of:


 


(i)            Capital Stock of any Parent Entity
or CCMGC; and/or


 


112

















 


(ii)           cash in an amount equal to the Net
Cash Proceeds of the sale or issuance of Capital Stock of any Parent Entity or
CCMGC which amount is contributed to the Parent Borrower within 90 days prior
to the date of the relevant acquisition (and is not a Specified Equity
Contribution); and/or


 


(iii)          additional cash and other property
(excluding cash and other property covered under clauses (i) and (ii) of this
subsection 8.10(b)) and Indebtedness (whether incurred or assumed) in an
aggregate amount (net of any such consideration attributable to the purchase of
revenue earning equipment (based on net book value) in connection with such
acquisition) which, when aggregated with all other amounts of cash and such
other property paid for acquisitions, and Indebtedness incurred or assumed, in
each case in reliance on this clause (iii), does not exceed $300,000,000;
and/or


 


(iv)          additional cash and other property
(excluding cash and other property covered under clauses (i), (ii), and (iii)
of this subsection 8.10(b) and Indebtedness (whether incurred or assumed) in an
aggregate amount (net of any such consideration attributable to the purchase of
revenue earning equipment (based on net book value) in connection with such
acquisition) which, when aggregated with all other amounts of cash and such
other property paid for acquisitions, and Indebtedness incurred or assumed, in
each case in reliance on this clause (iv), does not exceed $500,000,000,
provided that such acquisition is made at a time when the Consolidated Leverage
Ratio, calculated on a pro forma basis after giving effect to such acquisition
(such calculation to be made in a manner reasonably satisfactory to the Administrative
Agent and to be evidenced by a certificate in form and substance reasonably
satisfactory to the Administrative Agent signed by a Responsible Officer of the
Parent Borrower and delivered to the Administrative Agent (which shall promptly
deliver copies to each Lender) at least three Business Days prior to the
consummation of such acquisition), is equal to or less than 3.75 to 1.00; provided
that such amount shall be increased by the amount of Cumulative Excess Cash
Flow Not Otherwise Applied;


 


provided, further that in the case of
each such acquisition pursuant to clauses (a) and (b) after giving effect
thereto, no Default or Event of Default shall occur as a result of such
acquisition.


 


8.11         Limitation on Transactions with
Affiliates.  Enter into any
transaction, including any purchase, sale, lease or exchange of property or the
rendering of any service, with any Affiliate unless such transaction is (a)
otherwise permitted under this Agreement, and (b) upon terms no less
favorable to the Parent Borrower or such Subsidiary, as the case may be, than
it would obtain in a comparable arm’s length transaction with a Person which is
not an Affiliate; provided that nothing contained in this subsection
8.11 shall be deemed to prohibit:


 


(i)            the Parent Borrower or any of its
Subsidiaries from entering into or performing any consulting, management or
employment agreements or other compensation arrangements with a director,
officer or employee of the Parent Borrower or any of its Subsidiaries that
provides for annual aggregate base 


 


113

















 


compensation not in
excess of $2,000,000 for each such director, officer or employee;


 


(ii)           the Parent Borrower or any of its
Subsidiaries from entering into or performing an agreement with any Sponsor or
any Affiliate of any Sponsor for the rendering of management consulting or
financial advisory services for compensation not to exceed in the aggregate
$7,500,000 per year plus reasonable out-of-pocket expenses;


 


(iii)          the payment of transaction expenses in
connection with this Agreement;


 


(iv)          the Parent Borrower or any of its
Subsidiaries from entering into, making payments pursuant to and otherwise
performing an indemnification and contribution agreement in favor of any
Permitted Holder and each person who is or becomes a director, officer, agent
or employee of the Parent Borrower or any of its Subsidiaries, in respect of
liabilities (A) arising under the Securities Act, the Exchange Act and any
other applicable securities laws or otherwise, in connection with any offering
of securities by any Parent Entity (provided that, if such Parent Entity
shall own any material assets other than the Capital Stock of CCMGC or another
Parent Entity, or other assets relating to the ownership interest of such
Parent Entity in CCMGC or another Parent Entity, such liabilities shall be
limited to the reasonable and proportional share, as determined by the Parent
Borrower in its reasonable discretion, of such liabilities relating or
allocable to the ownership interest of such Parent Entity in CCMGC or another
Parent Entity and such other related assets) or CCMGC or any of its
Subsidiaries, (B) incurred to third parties for any action or failure to act of
the Parent Borrower or any of its Subsidiaries, predecessors or successors, (C)
arising out of the performance by any Affiliate of any Sponsor of management
consulting or financial advisory services provided to the Parent Borrower or
any of its Subsidiaries, (D) arising out of the fact that any indemnitee was or
is a director, officer, agent or employee of the Parent Borrower or any of its
Subsidiaries, or is or was serving at the request of any such corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or enterprise or (E) to the fullest extent permitted by Delaware
or other applicable state law, arising out of any breach or alleged breach by
such indemnitee of his or her fiduciary duty as a director or officer of the
Parent Borrower or any of its Subsidiaries;


 


(v)           the Parent Borrower or any of its
Subsidiaries from performing any agreements or commitments with or to any
Affiliate existing on the Closing Date and described on Schedule 8.11(v);


 


(vi)          any transaction permitted under
subsection 8.4(b), 8.4(d), 8.4(f), 8.5, 8.7, 8.9(e), 8.9(f) or 8.9(n), any
transaction with a Wholly Owned Subsidiary of the Parent Borrower and any
transaction with a Special Purpose Entity;


 


114

















 


(vii)         the Parent Borrower or any of its
Subsidiaries from performing its obligations under the Tax Sharing Agreement;


 


(viii)        the Parent Borrower from paying to any
Sponsor or any of their respective Affiliates fees of up to $75,000,000 in the
aggregate, plus out-of-pocket expenses, in connection with the Transactions;
and


 


(ix)           the Transactions and all transactions
relating thereto.


 


For purposes
of this subsection 8.11, (A) any transaction with any Affiliate shall be deemed
to have satisfied the standard set forth in clause (b) of the first sentence
hereof if (i) such transaction is approved by a majority of the Disinterested
Directors of the board of directors of any Parent Entity, CCMGC, the Parent
Borrower or such Subsidiary, or (ii) in the event that at the time of any such
transaction, there are no Disinterested Directors serving on the board of
directors of any Parent Entity, CCMGC, the Parent Borrower or such Subsidiary,
such transaction shall be approved by a nationally recognized expert with
expertise in appraising the terms and conditions of the type of transaction for
which approval is required, and (B) ”Disinterested Director” shall
mean, with respect to any Person and transaction, a member of the board of
directors of such Person who does not have any material direct or indirect
financial interest in or with respect to such transaction.


 


8.12         Limitation on Sale and Leaseback
Transactions.  Enter into any
arrangement with any Person providing for the leasing by the Parent Borrower or
any of its Subsidiaries of real or personal property which has been or is to be
sold or transferred by the Parent Borrower or any such Subsidiary to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the
Parent Borrower or such Subsidiary (any of such arrangements, a “Sale and
Leaseback Transaction”), unless (a) the Parent Borrower shall be in
compliance, on a pro forma basis after
giving effect to the consummation of the Sale and Leaseback Transaction and the
application of the proceeds thereof, with the Consolidated Leverage Ratio set
forth in subsection 8.1(a), recomputed as at the last day of the most recently
ended fiscal quarter of the Parent Borrower for which the relevant information
is available as if such Sale and Leaseback Transaction had been consummated on
the first day of the relevant period for testing such compliance (such
calculation to be made in a manner reasonably satisfactory to the
Administrative Agent and to be evidenced by a certificate in form and substance
reasonably satisfactory to the Administrative Agent signed by a Responsible
Officer of the Parent Borrower and delivered to the Administrative Agent (which
shall promptly deliver copies to each Lender) at least three Business Days
prior to the consummation of such Sale and Leaseback Transaction), (b) the
lease entered into by the Parent Borrower or any of its Subsidiaries in
connection with such Sale and Leaseback Transaction is either (i) a Financing
Lease or (ii) a lease the payments under which will be treated as an operating
expense for purposes of determining EBITDA, and (c) an amount equal to 100% of
the Net Cash Proceeds of such Sale and Leaseback Transaction is applied in
accordance with subsection 4.4(b)(iv).


 


8.13         Limitation on Dispositions of
Collateral.  Convey, sell, transfer,
lease, or otherwise dispose of any of the Collateral, or attempt, offer or
contract to do so (unless such attempt, offer or contract is conditioned upon
obtaining any requisite consent of the Lenders


 


115














 


hereunder), except for (a) mergers,
amalgamations, consolidations, sales, leases, transfers or other Dispositions
expressly permitted under subsection 8.5 and (b) sales or other Dispositions
expressly permitted under subsection 8.6, including sales of Rental Equipment
in the ordinary course of business; and the Administrative Agent shall, and the
Lenders hereby authorize the Administrative Agent to, execute such releases of
Liens and take such other actions as the Parent Borrower may reasonably request
in connection with the foregoing.


 


8.14         Limitation on Optional Payments and
Modifications of Debt Instruments and Other Documents.  (a) 
Make any optional payment or prepayment on or optional repurchase or
redemption of any of the New Notes or the Existing Notes (other than pursuant
to the Tender Offers) including any payments on account of, or for a sinking or
other analogous fund for, the repurchase, redemption, defeasance or other
acquisition thereof, except optional payments, prepayments or repurchases of the
New Notes or the Existing Notes with Cumulative Excess Cash Flow Not Otherwise
Applied so long as the Consolidated Leverage Ratio of the Parent Borrower for
the most recently completed fiscal period is less than or equal to 3.75 to
1.00.


 


(b)           In the event of the occurrence of a
Change of Control, repurchase or repay any Indebtedness then outstanding
pursuant to any of the New Notes or the Existing Notes or any portion thereof,
unless the Parent Borrower shall have (i) made payment in full of the Loans and
any other amounts then due and owing to any Lender or the Administrative Agent
hereunder and under any Note and cash collateralized the L/C Obligations on
terms reasonably satisfactory to the Administrative Agent or (ii) made an offer
to pay the Loans and any amounts then due and owing to each Lender and the
Administrative Agent hereunder and under any Note and to cash collateralize the
L/C Obligations in respect of each Lender and shall have made payment in full
thereof to each such Lender or the Administrative Agent which has accepted such
offer and cash collateralized the L/C Obligations in respect of each such
Lender which has accepted such offer.


 


(c)           Amend, supplement, waive or otherwise
modify any of the provisions of (other than pursuant to the supplemental
indentures executed on the Closing Date in connection with the Merger) the New
Notes Indentures or (other than pursuant to the Indenture Amendments) any
Existing Notes document (including pursuant to an extension, renewal,
replacement or refinancing thereof):


 


(i)            which, in the case of the New Notes
Indenture governing the Senior Subordinated Notes, amends, supplements, waives,
or otherwise modifies any subordination provisions contained therein;


 


(ii)           except as permitted pursuant to
subsection 8.14(a), which shortens the fixed maturity or increases the
principal amount of, or increases the rate or shortens the time of payment of
interest on, or increases the amount or shortens the time of payment of any
principal or premium payable whether at maturity, at a date fixed for
prepayment or by acceleration or otherwise of the Indebtedness evidenced by the
New Notes or Existing Notes, or increases the amount of, or accelerates the
time of payment of, any fees or other amounts payable in connection therewith;


 


116

















 


(iii)          which relates to any material
affirmative or negative covenants or any events of default or remedies
thereunder and the effect of which is to subject the Parent Borrower or any of
its Subsidiaries to any more onerous or more restrictive provisions; or


 


(iv)          which otherwise adversely affects the
interests of the Lenders as senior secured creditors with respect to the New
Notes or Existing Notes or the interests of the Lenders under this Agreement or
any other Loan Document in any material respect.


 


(d)           (i) Amend, supplement or otherwise
modify (pursuant to a waiver or otherwise) the terms and conditions of the Tax
Sharing Agreement in any manner that would increase the amounts payable by the
Parent Borrower or any of its Subsidiaries thereunder, other than amendments
reasonably reflecting changes in law or regulations after the date hereof, or
(ii) otherwise amend, supplement or otherwise modify the terms and conditions
of the Tax Sharing Agreement except to the extent that any such amendment,
supplement or modification could not reasonably be expected to have a Material
Adverse Effect.


 


(e)           Enter into any Synthetic Purchase
Agreement if under such Synthetic Purchase Agreement it may be required to make
(i) any payment relating to the Capital Stock of any Parent Entity or CCMGC
that has the same economic effect on the Parent Borrower and its Subsidiaries
as any Investment by the Parent Borrower in Capital Stock of any Parent Entity
or CCMGC prohibited by subsection 8.9 above or (ii) any payment relating to the
New Notes that has the same economic effect on the Parent Borrower as any
optional payment or prepayment or repurchase or redemption of such New Notes
prohibited by subsection 8.14(a) above, unless, in each case, such requirement
is conditioned upon obtaining any requisite consent of the Lenders hereunder.


 


8.15         Limitation on Changes in Fiscal Year.
 Permit the fiscal year of CCMGC or the
Parent Borrower to end on a day other than December 31.


 


8.16         Limitation on Negative Pledge
Clauses.  Enter into with any Person
any agreement which prohibits or limits the ability of the Parent Borrower or
any of its Subsidiaries (other than any Special Purpose Subsidiaries or any
Foreign Subsidiaries or Subsidiaries of either thereof) to create, incur,
assume or suffer to exist any Lien in favor of the Lenders in respect of
obligations and liabilities under this Agreement or any other Loan Documents
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, other than (a) this Agreement, the other Loan Documents and any
related documents, the ABL Facility Documents and (b) any industrial revenue or
development bonds, purchase money mortgages, acquisition agreements or Financing
Leases permitted by this Agreement (in which cases, any prohibition or
limitation shall only be effective against the assets financed or acquired
thereby), operating leases of real property entered into in the ordinary course
of business or agreements relating to or arising out of Vehicle Rental
Concession Rights.


 


8.17         Limitation on Lines of Business.
 (a) 
Enter into any business, either directly or through any Subsidiary or
joint venture or similar arrangement described in subsection 8.9(k), except for
those businesses of the same general type as those in which the 


 


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Parent Borrower and its Subsidiaries are
engaged on the Closing Date or which are reasonably related thereto.


 


(b)           In the case of any Foreign Subsidiary
Holdco, (x) own any material assets other than securities or Indebtedness of
one or more Foreign Subsidiaries and other assets relating to an ownership
interest in any such securities, Indebtedness or Subsidiaries or (y) other than
with respect to Hertz International Ltd. and any successor entity that succeeds
to all of the rights and obligations of Hertz International Ltd. by operation
of law, incur or become liable for any Indebtedness for borrowed money to any
Person other than the Parent Borrower or a Subsidiary of the Parent Borrower,
any other material Indebtedness to any Person other than the Parent Borrower or
a Subsidiary of the Parent Borrower or any Guarantee Obligations of any
Indebtedness (other than of any Foreign Subsidiary or any Subsidiary of any
Foreign Subsidiary), in each case except pursuant to subsections 8.2(a) and
8.4(l).


 


8.18         Limitations on Currency, Commodity
and Other Hedging Transactions.  Enter
into, purchase or otherwise acquire agreements or arrangements relating to
currency, commodity or other hedging except, to the extent and only to the
extent that, such agreements or arrangements are entered into, purchased or
otherwise acquired in the ordinary course of business of the Parent Borrower or
any of its Subsidiaries with reputable financial institutions or vendors and
not for purposes of speculation (any such agreement or arrangement permitted by
this subsection, a “Permitted Hedging Arrangement”).


 


8.19         Limitations on Activities of Hertz
Vehicle Sales Corporation.  Permit
Hertz Vehicle Sales Corporation to (a) engage at any time in any business or
business activity other than (i) engaging in such business and business
activity as Hertz Vehicle Sales Corporation conducts on the Closing Date and
other business and business activities reasonably related thereto, (ii) actions
incidental to the consummation of the Transactions, (iii) actions required by
law to maintain its existence or to engage in the business or business
activities described in clause (i) above, (iv) the payment of dividends and
taxes and (v) activities incidental to its maintenance and continuance and
to the foregoing activities and (b) own any material assets other than those
relating to the business and business activities described in clause (a) above
in amounts consistent with historical practice (taking into account transaction
volumes); or (c) incur any indebtedness for borrowed money, other than to the
Parent Borrower or any of its Subsidiaries.


 


8.20         Limitation on  HERC Capital Expenditures.  At any time on or after January 1, 2006, make
or commit to make any HERC Capital Expenditures; provided that the
Parent Borrower and its Subsidiaries may make HERC Capital Expenditures in an
amount not to exceed, for any period below, determined on a consolidated basis,
the amount set forth opposite such period below:


 


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  Period

  	
   

  	
  Amount

  	
   

  
	
  January 1,
  2006 to and including December 31, 2006

  	
   

  	
  $

  	
  375,000,000

  	
   

  
	
  January 1,
  2007 to and including December 31, 2007

  	
   

  	
  $

  	
  400,000,000

  	
   

  
	
  January 1,
  2008 to and including December 31, 2008

  	
   

  	
  $

  	
  415,000,000

  	
   

  
	
  January 1,
  2009 to and including December 31, 2009

  	
   

  	
  $

  	
  425,000,000

  	
   

  
	
  January 1,
  2010 to and including December 31, 2010

  	
   

  	
  $

  	
  435,000,000

  	
   

  
	
  January 1,
  2011 to and including December 31, 2011

  	
   

  	
  $

  	
  445,000,000

  	
   

  
	
  January 1,
  2012 to and including December 21, 2012

  	
   

  	
  $

  	
  455,000,000

  	
   

  



 


provided, that up to 100% of any HERC Capital
Expenditures permitted above to be made during any period and not made during
such period may be carried over and expended during the next succeeding period
(amounts so carried over from any period into a subsequent period being deemed
utilized prior to the amount permitted by the table set forth above being
utilized on HERC Capital Expenditures during the respective period); and provided,
further, that to the extent that the sum of (i) the amount of cash
included in the cash accounts listed on the consolidated balance sheet of the
Parent Borrower and its consolidated Subsidiaries (to the extent such cash is not
classified as “restricted” for financial statement purposes as of the end of
such fiscal year plus (ii) the Available Revolving Credit Loan Commitment (as
defined in the ABL Facility Documents) as of the end of such fiscal year (such
sum, “Year-End Liquidity”) is equal to or exceeds $400,000,000, the
restrictions on making or committing any HERC Capital Expenditures set forth in
this subsection 8.20 shall not be applicable to the Parent Borrower and its
Subsidiaries in the succeeding fiscal year; further  provided, to
the extent Year-End Liquidity is less than $400,000,000, the Parent Borrower
and/or any of its Subsidiaries may, within twelve months following the end of
such fiscal year, issue (other than to the Parent Borrower or any of its
Subsidiaries) debt or equity securities otherwise permitted under this
Agreement yielding net proceeds to the issuer of such securities of not less
than the difference of (i) $400,000,000 minus (ii) Year-End Liquidity at the
end of such fiscal year and, upon receipt of such proceeds by such issuer,
Year-End Liquidity shall be deemed to have been in excess of $400,000,000 as of
the end of such fiscal year.


 


SECTION 9. EVENTS
OF DEFAULT.  If any of the following
events shall occur and be continuing:


 


(a)           The Parent Borrower shall fail to pay
any principal of any Loan or any Reimbursement Amount when due in accordance
with the terms hereof (whether at stated maturity, by mandatory prepayment or
otherwise); or the Parent Borrower shall fail to pay any interest on any Loan,
or any other amount payable hereunder, within five days after any such interest
or other amount becomes due in accordance with the terms hereof; or


 


(b)           Any representation or warranty made
or deemed made by any Loan Party herein or in any other Loan Document (or in
any amendment, modification or supplement hereto or thereto) or which is
contained in any certificate furnished at any time by or on 


 


119

















 


behalf of any Loan
Party pursuant to this Agreement or any such other Loan Document shall prove to
have been incorrect in any material respect on or as of the date made or deemed
made; or


 


(c)           Any Loan Party shall default in the
observance or performance of any agreement contained in subsection 7.7(a) or
Section 8 of this Agreement, Section 5.2.2 of the Guarantee and Collateral
Agreement; provided that, in the case of a default in the observance or
performance of its obligations under subsection 7.7(a) hereof, such default
shall have continued unremedied for a period of two days after a Responsible
Officer of the Parent Borrower shall have discovered or should have discovered
such default; or


 


(d)           Any Loan Party shall default in the
observance or performance of any other agreement contained in this Agreement or
any other Loan Document (other than as provided in paragraphs (a) through (c)
of this Section 9), and such default shall continue unremedied for a period
ending on the earlier of (i) the date 32 days after a Responsible Officer of
CCMGC shall have discovered or should have discovered such default and
(ii) the date 15 days after written notice has been given to CCMGC by the
Administrative Agent or the Required Lenders; or


 


(e)           CCMGC or any of its Subsidiaries
shall (A) (i) default in (x) any payment of principal of or interest on any
Indebtedness (including, without limitation, any Material Vehicle Lease
Obligation, but excluding the Loans and the Reimbursement Amount) in excess of
$60,000,000 or (y) in the payment of any Guarantee Obligation in excess of
$60,000,000, beyond the period of grace (not to exceed 30 days), if any,
provided in the instrument or agreement under which such Indebtedness or
Guarantee Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any Indebtedness
(including, without limitation, any Material Vehicle Lease Obligation, but
excluding the Loans and the Reimbursement Amount) or Guarantee Obligation
referred to in clause (i) above or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to cause, or
to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice or lapse of time if required, such Indebtedness to become due
prior to its stated maturity or such Guarantee Obligation to become payable (an
“Acceleration”), and such time shall have lapsed and, if any notice (a “Default
Notice”) shall be required to commence a grace period or declare the
occurrence of an event of default before notice of Acceleration may be
delivered, such Default Notice shall have been given or (B) default in the
observance or performance of any agreement or condition (other than as referred
to in clause (A)(i) above) relating to any Material Vehicle Lease Obligation
referred to in clause (A)(i) above, and the lessor thereunder or its permitted
assignee shall have terminated such Material Vehicle Lease Obligation, and such
termination shall have caused an “amortization event” (or similar event however
denominated) under the Special Purpose Financing to which such Material Vehicle
Lease Obligation relates; or


 


120

















 


(f)            If (i) any Loan Party or any
Material Subsidiaries of the Parent Borrower shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent,
or seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or
(B) seeking appointment of a receiver, interim receiver, receivers, receiver
and manager, trustee, custodian, conservator or other similar official for it
or for all or any substantial part of its assets, or any Loan Party or any
Material Subsidiaries of the Parent Borrower shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced against any
Loan Party or any Material Subsidiaries of the Parent Borrower any case,
proceeding or other action of a nature referred to in clause (i) above which
(A) results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged, unstayed or unbonded for
a period of 60 days; or (iii) there shall be commenced against any Loan Party
or any Material Subsidiaries of the Parent Borrower any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of its assets which
results in the entry of an order for any such relief which shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) any Loan Party or any Material Subsidiaries of the
Parent Borrower shall take any corporate action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii), or (iii) above; or (v) any Loan Party or any
Material Subsidiaries of the Parent Borrower shall be generally unable to, or
shall admit in writing its general inability to, pay its debts as they become
due; or


 


(g)           Any Person shall engage in any “prohibited
transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any “accumulated funding deficiency” (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of
either of the Parent Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is in the reasonable opinion of the
Administrative Agent likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate
for purposes of Title IV of ERISA other than a standard termination pursuant to
Section 4041(b) of ERISA, (v) either of the Parent Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Administrative Agent is reasonably likely to, incur any liability in connection
with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan, or (vi) any other event or condition shall occur or exist with respect to
a Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, could be
reasonably expected to result in a Material Adverse Effect; or


 


121

















 


(h)           One or more judgments or decrees
shall be entered against the Parent Borrower or any of its Subsidiaries
involving in the aggregate at any time a liability (net of any insurance or
indemnity payments actually received in respect thereof prior to or within 60
days from the entry thereof, or to be received in respect thereof in the event
any appeal thereof shall be unsuccessful) of $50,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 60 days from the entry thereof; or


 


(i)            Any outstanding Senior Subordinated
Notes, for any reason, shall not be or shall cease to be validly subordinated
as provided therein and in the applicable New Notes Indenture to the
obligations of the Parent Borrower under this Agreement and the other Loan
Documents, or the obligations of any other Loan Party under a guarantee of the
Senior Subordinated Notes, for any reason, shall not be or shall cease to be
validly subordinated as provided therein and in the applicable New Note
Indenture, to the obligations under the Loan Documents or Guarantee Obligations
(in each case to the extent such obligations under the Loan Documents or Guarantee
Obligations constitute “Indebtedness” as defined in the applicable New Notes
Indenture on the date hereof) of such Loan Party hereunder or under the
Guarantee and Collateral Agreement, as the case may be; or


 


(j)            Any of the Security Documents shall
cease for any reason to be in full force and effect (other than pursuant to the
terms hereof or thereof), or any Loan Party which is a party to any of the
Security Documents shall so assert in writing, or (ii) the Lien created by any
of the Security Documents shall cease to be perfected and enforceable in
accordance with its terms or of the same effect as to perfection and priority
purported to be created thereby with respect to any significant portion of the
Collateral (other than in connection with any termination of such Lien in
respect of any Collateral as permitted hereby or by any Security Document), and
such failure of such Lien to be perfected and enforceable with such priority
shall have continued unremedied for a period of 20 days; or


 


(k)           Any Loan Document (other than this
Agreement or any of the Security Documents) shall cease for any reason to be in
full force and effect (other than pursuant to the terms hereof or thereof) or
any Loan Party shall so assert in writing; or


 


(l)            A Change of Control shall have
occurred.


 


then, and in any such event, (A) if such event
is an Event of Default specified in clause (i) or (ii) of paragraph (f) above
with respect to the Parent Borrower, automatically the Commitments, if any,
shall immediately terminate and the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement (including all L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken:  (i) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders the
Administrative Agent shall, by notice to the Parent Borrower, declare the
Commitments to be terminated forthwith, whereupon the Commitments, if any,
shall 


 


122

















 


immediately
terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Parent Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement (including all L/C Obligations, whether or not the beneficiaries
of the then outstanding Letters of Credit shall have presented the documents
required thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable.


 


In the case of all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of
an acceleration pursuant to this paragraph, the Parent Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent an
amount in immediately available funds equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit (and the Parent Borrower hereby
grants to the Collateral Agent, for the ratable benefit of the Secured Parties,
a continuing security interest in all amounts at any time on deposit in such
cash collateral account to secure the undrawn and unexpired amount of such
Letters of Credit and all other obligations of the Parent Borrower under the
Loan Documents). If at any time the Administrative Agent determines that any
funds held in such cash collateral account are subject to any right or claim of
any Person other than the Collateral Agent and the Secured Parties or that the
total amount of such funds is less than the aggregate undrawn and unexpired
amount of outstanding Letters of Credit, the Parent Borrower, shall, forthwith
upon demand by the Administrative Agent pay to the Administrative Agent as
additional funds to be deposited and held in such cash collateral account, an
amount equal to the excess of (a) such aggregate undrawn and unexpired amount
over (b) the total amount of funds, if any, then held in such cash collateral
account that the Administrative Agent determines to be free and clear of any
such right and claim. Amounts held in such cash collateral account with respect
to Letters of Credit shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other obligations of the Loan Parties
hereunder and under the other Loan Documents. After all such Letters of Credit
shall have expired or been fully drawn upon, all Reimbursement Amounts shall
have been satisfied (whether by reimbursement by the Parent Borrower or a New
Term Loan) and all obligations of the Loan Parties hereunder and under the
other Loan Documents shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Parent Borrower (or such other
Person as may be lawfully entitled thereto). Notwithstanding anything to the
contrary in this Agreement or any other Loan Document, no Lender in its
capacity as a Secured Party or as beneficiary of any security granted pursuant
to the Security Documents shall have any right to exercise remedies in respect
of such security without the prior written consent of the Required Lenders.


 


Except as expressly provided above in this
Section 9, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.


 


SECTION 10. THE
AGENTS AND THE OTHER REPRESENTATIVES.


 


10.1         Appointment.  Each Lender hereby irrevocably designates and
appoints DBNY as the Administrative Agent and Collateral Agent of such Lender
under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes DBNY, as 


 


123

















 


Administrative Agent for such Lender, to take
such action on its behalf under the provisions of this Agreement and the other
Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to or required of the Administrative Agent by the terms of
this Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent and the Other
Representatives shall not have any duties or responsibilities, except, in the
case of the Administrative Agent, the Collateral Agent and the Issuing Lenders,
those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent or the Other
Representatives. Each of the Agents may perform any of their respective duties
under this Agreement, the other Loan Documents and any other instruments and
agreements referred to herein or therein by or through its respective officers,
directors, agents, employees or affiliates (it being understood and agreed, for
avoidance of doubt and without limiting the generality of the foregoing, that
the Administrative Agent and Collateral Agent may perform any of their
respective duties under the Security Documents by or through one or more of
their respective affiliates).


 


10.2         Delegation of Duties.  In performing its functions and duties under
this Agreement, each Agent shall act solely as agent for the Lenders and, as
applicable, the other Secured Parties, and no Agent assumes any (and shall not
be deemed to have assumed any) obligation or relationship of agency or trust
with or for CCMGC or any of its Subsidiaries. Each Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents
or attorneys-in-fact (including the Collateral Agent in the case of the
Administrative Agent), and shall be entitled to advice of counsel concerning
all matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact or counsel selected
by it with reasonable care.


 


10.3         Exculpatory Provisions.  None of the Administrative Agent or any Other
Representative nor any of their officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action taken or
omitted to be taken by such Person under or in connection with this Agreement
or any other Loan Document (except for the gross negligence or willful
misconduct of such Person or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates) or (b) responsible in any manner to any of the
Lenders for (i) any recitals, statements, representations or warranties made by
CCMGC, the Parent Borrower or any other Loan Party or any officer thereof
contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent or any Other Representative under or in connection
with, this Agreement or any other Loan Document, (ii) for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any Notes or any other Loan Document, (iii) for any failure of CCMGC, the
Parent Borrower or any other Loan Party to perform its obligations hereunder or
under any other Loan Document, (iv) the performance or observance of any of the
terms, provisions or conditions of this Agreement or any other Loan Document,
(v) the satisfaction of any of the conditions precedent set forth in Section 6,
or (vi) the existence or possible existence of any Default or Event of Default.
Neither the Administrative Agent nor any Other Representative shall be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained 


 


124

















 


in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of CCMGC,
the Parent Borrower or any other Loan Party. Each Lender agrees that, except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder or given to the
Administrative Agent for the account of or with copies for the Lenders, the
Administrative Agent and the Other Representatives shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of CCMGC, the Parent Borrower or any
other Loan Party which may come into the possession of the Administrative Agent
and the Other Representatives or any of their officers, directors, employees,
agents, attorneys-in-fact or Affiliates.


 


10.4         Reliance by the Administrative Agent.
 The Administrative Agent shall be
entitled to rely, and shall be fully protected (and shall have no liability to
any Person) in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including counsel to the
Parent Borrower or CCMGC), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless such Note shall
have been transferred in accordance with subsection 11.6 and all actions required
by such Section in connection with such transfer shall have been taken. Any
request, authority or consent of any Person or entity who, at the time of
making such request or giving such authority or consent, is the holder of any
Note shall be conclusive and binding on any subsequent holder, transferee,
assignee or endorsee, as the case may be, of such Note or of any Note or Notes
issued in exchange therefor. The Administrative Agent shall be fully justified
as between itself and the Lenders in failing or refusing to take any action
under this Agreement or any other Loan Document unless it shall first receive
such advice or concurrence of the Required Lenders and/or such other requisite
percentage of the Lenders as is required pursuant to subsection 11.1(a) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and any Notes and the other Loan Documents in
accordance with a request of the Required Lenders and/or such other requisite
percentage of the Lenders as is required pursuant to subsection 11.1(a), and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Loans.


 


10.5         Notice of Default.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or either of the Parent Borrower or CCMGC referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a “notice
of default”. In the event that the Administrative Agent receives such a notice,
the Administrative Agent shall give prompt notice thereof to the Lenders. The
Administrative Agent shall take such action reasonably promptly with respect to
such Default or Event of Default as shall be directed by the Required Lenders
and/or such other requisite percentage of the Lenders as is required pursuant
to subsection 11.1(a); provided that unless and 


 


125

















 


until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.


 


10.6         Acknowledgements and Representations
by Lenders.  Each Lender expressly
acknowledges that none of the Administrative Agent or the Other Representatives
nor any of their officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent or any Other Representative hereafter taken, including
any review of the affairs of the Parent Borrower or any other Loan Party, shall
be deemed to constitute any representation or warranty by the Administrative
Agent or such Other Representative to any Lender. Each Lender represents to the
Administrative Agent, the Other Representatives and each of the Loan Parties
that, independently and without reliance upon the Administrative Agent, the
Other Representatives or any other Lender, and based on such documents and
information as it has deemed appropriate, it has made and will make, its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of CCMGC and the Parent Borrower and the
other Loan Parties, it has made its own decision to make its Loans hereunder
and enter into this Agreement and it will make its own decisions in taking or
not taking any action under this Agreement and the other Loan Documents and,
except as expressly provided in this Agreement, neither the Administrative
Agent nor any Other Representative shall have any duty or responsibility,
either initially or on a continuing basis, to provide any Lender or the holder
of any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter. Each Lender represents to each other party hereto that it is
a bank, savings and loan association or other similar savings institution,
insurance company, investment fund or company or other financial institution
which makes or acquires commercial loans in the ordinary course of its
business, that it is participating hereunder as a Lender for such commercial
purposes, and that it has the knowledge and experience to be and is capable of
evaluating the merits and risks of being a Lender hereunder. Each Lender
acknowledges and agrees to comply with the provisions of subsection 11.6
applicable to the Lenders hereunder.


 


10.7         Indemnification.  (a)  The
Lenders agree to indemnify each Agent (or any Affiliate thereof) (to the extent
not reimbursed by the Parent Borrower or any other Loan Party and without
limiting the obligation of the Parent Borrower to do so), ratably according to
their respective Total Credit Percentages in effect on the date on which
indemnification is sought under this subsection (or, if indemnification is
sought after the date upon which the Delayed Draw Term Loan Commitments shall
have terminated and the Loans shall have been paid in full, ratably in
accordance with their Total Credit Percentages immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including at any time following the
payment of the Loans) be imposed on, incurred by or asserted against the
Administrative Agent (or any Affiliate thereof) in any way relating to or
arising out of this Agreement, any of the other Loan Documents or the
transactions contemplated hereby or thereby or any action taken or omitted by
any Agent (or any Affiliate thereof) under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, 


 


126

















 


expenses or disbursements to the extent
arising from (a) such Agent’s gross negligence or willful misconduct or (b)
claims made or legal proceedings commenced against such Agent by any security
holder or creditor thereof arising out of and based upon rights afforded any
such security holder or creditor solely in its capacity as such. The
obligations to indemnify each Issuing Lender shall be ratable among the L/C
Participants in accordance with their Letter of Credit Percentage. The
agreements in this subsection shall survive the payment of the Loans and all
other amounts payable hereunder.


 


(b)           Any Agent shall be fully justified in
failing or refusing to take any action hereunder and under any other Loan
Document (except actions expressly required to be taken by it hereunder or
under the Loan Documents) unless it shall first be indemnified to its
satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.


 


(c)           The agreements in this subsection
10.7 shall survive the payment of all Borrower Obligations and Guaranteed
Obligations (each as defined in the Guarantee and Collateral Agreement).


 


10.8         The Administrative Agent and Other
Representatives in Their Individual Capacity.  The Administrative Agent, the Other
Representatives and their Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Parent Borrower or any
other Loan Party as though the Administrative Agent and the Other
Representatives were not the Administrative Agent or the Other Representatives
hereunder and under the other Loan Documents. With respect to Loans made or
renewed by them and any Note issued to them and with respect to any Letter of
Credit issued or participated in by them, the Administrative Agent and the
Other Representatives shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though they were not the Administrative Agent or an Other Representative,
and the terms “Lender” and “Lenders” shall include the Administrative Agent and
the Other Representatives in their individual capacities.


 


10.9         Collateral Matters.  (a) 
Each Lender authorizes and directs the Collateral Agent to enter into
the Security Documents and the Intercreditor Agreement for the benefit of the
Lenders and the other Secured Parties. Each Lender hereby agrees, and each
holder of any Note or participant in Letters of Credit by the acceptance
thereof will be deemed to agree, that, except as otherwise set forth herein,
any action taken by the Collateral Agent or the Required Lenders in accordance
with the provisions of this Agreement, the Security Documents or the
Intercreditor Agreement, and the exercise by the Agents or the Required Lenders
of the powers set forth herein or therein, together with such other powers as
are reasonably incidental thereto, shall be authorized and binding upon all of
the Lenders. The Collateral Agent is hereby authorized on behalf of all of the
Lenders, without the necessity of any notice to or further consent from any
Lender, from time to time, to take any action with respect to any Collateral or
Security Documents which may be necessary to perfect and maintain perfected the
security interest in and liens upon the Collateral granted pursuant to the
Security Documents.


 


(b)           The Lenders hereby authorize the
Administrative Agent and the Collateral Agent, as applicable, in each case at
its option and in its discretion, to release any Lien granted to 


 


127

















 


or held by such Agent upon any Collateral (i)
upon termination of the Commitments and payment and satisfaction of all of the
obligations under the Loan Documents at any time arising under or in respect of
this Agreement or the Loan Documents or the transactions contemplated hereby or
thereby, (ii) constituting property being sold or otherwise disposed of (to Persons
other than a Loan Party) upon the sale or other disposition thereof in
compliance with subsection 8.6, (iii) if approved, authorized or ratified in
writing by the Required Lenders (or such greater amount, to the extent required
by subsection 11.1) or (iv) as otherwise may be expressly provided in the
relevant Security Documents. Upon request by the Administrative Agent or the
Collateral Agent, at any time, the Lenders will confirm in writing such Agent’s
authority to release particular types or items of Collateral pursuant to this
subsection 10.9.


 


(c)           No Agent shall have any obligation
whatsoever to the Lenders to assure that the Collateral exists or is owned by
CCMGC or any of its Subsidiaries or is cared for, protected or insured or that
the Liens granted to any Agent herein or pursuant hereto have been properly or
sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise or to continue exercising
at all or in any manner or under any duty of care, disclosure or fidelity any
of the rights, authorities and powers granted or available to the Agents in
this subsection 10.9 or in any of the Security Documents, it being understood
and agreed that in respect of the Collateral, or any act, omission or event
related thereto, each Agent may act in any manner it may deem appropriate, in
its sole discretion, given such Agent’s own interest in the Collateral as
Lender and that no Agent shall have any duty or liability whatsoever to the
Lenders, except for its gross negligence or willful misconduct.


 


(d)           The Collateral Agent may, and hereby
does, appoint the Administrative Agent as its agent for the purposes of holding
any Collateral and/or perfecting the Collateral Agent’s security interest
therein and for the purpose of taking such other action with respect to the
collateral as such Agents may from time to time agree.


 


10.10       Successor Agent.  (a)  Subject
to the appointment of a successor as set forth herein, the Administrative Agent
and the Collateral Agent may resign as Administrative Agent or Collateral
Agent, respectively, upon 10 days’ notice to the Lenders and the Parent
Borrower. If the Administrative Agent or 
Collateral Agent shall resign as Administrative Agent or Collateral
Agent, as applicable, under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint from among the Lenders a successor agent for
the Lenders, which successor agent shall be subject to approval by the Parent
Borrower (which approval shall not be unreasonably withheld or delayed),
whereupon such successor agent shall succeed to the rights, powers and duties
of the Administrative Agent or the Collateral Agent, as applicable, and the
term “Administrative Agent” or “Collateral Agent,” as applicable, shall mean
such successor agent effective upon such appointment and approval, and the
former Agent’s rights, powers and duties as Administrative Agent or Collateral
Agent, as applicable, shall be terminated, without any other or further act or
deed on the part of such former Agent or any of the parties to this Agreement
or any holders of the Loans or issuers of Letters of Credit. Each of the
Syndication Agent and the Documentation Agent, may resign as an Agent hereunder
upon 10 days’ notice to the Administrative Agent, Lenders and the Parent
Borrower. If the Syndication Agent or the Documentation Agent shall resign as
Syndication Agent or Documentation Agent hereunder, as applicable, the duties,
rights, obligations and responsibilities of such Agent hereunder, if any, shall
automatically be assumed by, and inure to the benefit of, the Administrative
Agent, without 


 


128

















 


any further act by the Arranger, any Agent or
any Lender. After any retiring Agent’s resignation or removal as Agent, the
provisions of this Section 10 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement and
the other Loan Documents. Additionally, after any retiring Agent’s resignation
as such Agent, the provisions of this subsection shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was such Agent under
this Agreement and the other Loan Documents. After the resignation of any
Administrative Agent pursuant to the preceding provisions of this subsection
10.10, such resigning Administrative Agent shall not be required to act as
Issuing Lender for any Letters of Credit to be issued after the date of such
resignation although the resigning Administrative Agent shall retain all rights
hereunder as Issuing Lender with respect to all Letters of Credit issued by it
prior to the effectiveness of its resignation as Administrative Agent
hereunder.


 


10.11       Other Representatives.  None of the Syndication Agent, the
Documentation Agent nor any of the entities identified as joint bookrunners and
joint lead arrangers pursuant to the definition of Other Representative
contained herein, shall have any duties or responsibilities hereunder or under
any other Loan Document in its capacity as such.


 


10.12       Reserved.


 


10.13       Withholding Tax.  To the extent required by any applicable law,
each Agent may withhold from any payment to any Lender an amount equivalent to
any applicable withholding tax, and in no event shall such Agent be required to
be responsible for or pay any additional amount with respect to any such
withholding. If the Internal Revenue Service or any other Governmental
Authority asserts a claim that any Agent did not properly withhold tax from
amounts paid to or for the account of any Lender because the appropriate form
was not delivered or was not properly executed or because such Lender failed to
notify such Agent of a change in circumstances which rendered the exemption
from or reduction of withholding tax ineffective or for any other reason, such
Lender shall indemnify such Agent fully for all amounts paid, directly or
indirectly, by such Agent as tax or otherwise, including any penalties or
interest and together with any expenses incurred.


 


SECTION 11. MISCELLANEOUS.


 


11.1         Amendments and Waivers.  (a) 
Neither this Agreement nor any other Loan Document, nor any terms hereof
or thereof, may be amended, supplemented, modified or waived except in
accordance with the provisions of this subsection 11.1. The Required Lenders
may, or, with the written consent of the Required Lenders, the Administrative
Agent and the Collateral Agent may, from time to time, (x) enter into with the
respective Loan Parties hereto or thereto, as the case may be, written
amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or to the other Loan
Documents or changing, in any manner the rights or obligations of the Lenders
or the Loan Parties hereunder or thereunder or (y) waive at any Loan Party’s
request, on such terms and conditions as the Required Lenders, the
Administrative Agent or the Collateral Agent, as the case may be, may specify
in such instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or
modification shall:


 


129

















 


(i)            reduce the amount or extend the
scheduled date of maturity of any Loan or any Reimbursement Amount or of any
scheduled installment thereof or reduce or forgive the stated rate of any
interest, commission or fee payable hereunder (other than as a result of any
waiver of the applicability of any post-default increase in interest rates) or
extend the scheduled date of any payment thereof or increase the amount or
extend the expiration date of any Lender’s Commitment or change the currency in
which any Loan or Reimbursement Amount is payable, in each case without the
consent of each Lender directly affected thereby (it being understood that
waivers or modifications of conditions precedent, covenants, Defaults or Events
of Default or of a mandatory reduction in the aggregate Commitment of all
Lenders shall not constitute an increase of the Commitment of any Lender, and
that an increase in the available portion of any Commitment of any Lender shall
not constitute an increase in the Commitment of such Lender);


 


(ii)           amend, modify or waive any provision
of this subsection 11.1(a) or reduce the percentage specified in the definition
of Required Lenders, or consent to the assignment or transfer by CCMGC or the
Parent Borrower of any of its rights and obligations under this Agreement and the
other Loan Documents (other than pursuant to subsection 8.5 or 11.6(a)), in
each case without the written consent of all the Lenders;


 


(iii)          release any Guarantor under any
Security Document, or, in the aggregate (in a single transaction or a series of
related transactions), substantially all of the Collateral without the consent
of all of the Lenders, except as expressly permitted hereby or by any Security
Document (as such documents are in effect on the date hereof or, if later, the
date of execution and delivery thereof in accordance with the terms hereof);


 


(iv)          require any Lender to make Loans
having an Interest Period of longer than six months without the consent of such
Lender;


 


(v)           amend, modify or waive any provision
of Section 10 without the written consent of the then Administrative Agent and
of any Other Representative affected thereby;


 


(vi)          amend, modify or waive the provisions
of any Letter of Credit or any Letter of Credit Obligation without the written
consent of the applicable Issuing Lender and each affected Letter of Credit
Participant; or


 


(vii)         amend, modify or waive the order of
application of payments set forth in subsections 4.4(d) or 4.8(a) hereof, or
Section 4.1 of the Intercreditor Agreement in each case without the consent of
the Supermajority Lenders;


 


provided  further that, notwithstanding
the foregoing, the Collateral
Agent may, in its discretion, release the Lien on Collateral valued in the
aggregate not in excess of $10,000,000 in any fiscal year without the consent
of any Lender.


 


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(b)           Any waiver and any amendment,
supplement or modification pursuant to this subsection 11.1 shall apply to each
of the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, each of the Loan Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under the
other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.


 


(c)           Notwithstanding any provision herein
to the contrary, this Agreement may be amended (or amended and restated) with
the written consent of the Required Lenders, the Administrative Agent and the
Borrowers (x) to add one or more additional credit facilities to this Agreement
and to permit the extensions of credit from time to time outstanding thereunder
and the accrued interest and fees in respect thereof to share ratably in the
benefits of this Agreement and the other Loan Documents with the existing
Facilities and the accrued interest and fees in respect thereof, (y) to
include, as appropriate, the Lenders holding such credit facilities in any
required vote or action of the Required Lenders or of the Lenders of each
Facility hereunder and (z) to provide class protection for any additional
credit facilities in a manner consistent with those provided the original
Facilities pursuant to the provisions of subsection 11.1(a) as originally in
effect.


 


(d)           If, in connection with any proposed
change, waiver, discharge or termination of or to any of the provisions of this
Agreement and/or any other Loan Document as contemplated by subsection 11.1(a),
the consent of each Lender or each affected Lender, as applicable, is required and the
consent of the Required Lenders at such time is
obtained but the consent of one or more of such other Lenders whose consent is
required is not obtained (each such other Lender, a “Non-Consenting Lender”),
then the Parent Borrower may, on ten Business Days’ prior written notice to the
Administrative and the Non-Consenting Lender, replace such Non-Consenting
Lender by causing such Lender to (and such Lender shall be obligated to) assign
pursuant to Section 11.6 (with the assignment fee and any other costs and
expenses to be paid by the Parent Borrower in such instance) all of its rights
and obligations under this Agreement to one or more assignees; provided
that neither the Administrative Agent nor any Lender shall have any obligation
to the Parent Borrower to find a replacement Lender; provided, further,
that the applicable assignee shall have agreed to the applicable change,
waiver, discharge or termination of this Agreement and/or the other Loan
Documents; and provided, further, that all obligations of the
Borrowers owing to the Non-Consenting Lender relating to the Loans and participations
so assigned shall be paid in full by the assignee Lender to such Non-Consenting
Lender concurrently with such Assignment and Acceptance. In connection with
any such replacement under this subsection 11.1(d), if the Non-Consenting
Lender does not execute and deliver to the Administrative Agent a duly
completed Assignment and Acceptance and/or any other documentation necessary to
reflect such replacement within a period of time deemed reasonable by the
Administrative Agent after the later of (a) the date on which the replacement
Lender executes and delivers such Assignment and Acceptance and/or such other
documentation and (b) the date as of which all obligations of the Borrowers
owing to the Non-Consenting Lender relating to the Loans and participations so
assigned shall be paid in full by the assignee Lender to such Non-Consenting
Lender, then such Non-Consenting Lender shall be deemed to have executed and
delivered such Assignment and Acceptance and/or such other documentation 


 


131

















 


as of such
date and the applicable Borrower shall be entitled (but not obligated) to
execute and deliver such Assignment and Acceptance and/or such other
documentation on behalf of such Non-Consenting Lender.


 


11.2         Notices.  (a)  All
notices, requests, and demands to or upon the respective parties hereto to be
effective shall be in writing (including telecopy), and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered by hand, or three days after being deposited in the mail, postage
prepaid, or, in the case of telecopy notice, when received, or, in the case of
delivery by a nationally recognized overnight courier, when received, addressed
as follows in the case of the Parent Borrower, the Administrative Agent and the
Collateral Agent, and as set forth in Schedule A in the case of the other
parties hereto, or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Loans:


 


	
  The Parent
  Borrower:

  	
  The Hertz
  Corporation

  
	
   

  	
  225 Brae
  Boulevard

  
	
   

  	
  Park Ridge,
  NJ 07656

  
	
   

  	
  Attention:
  Chief Financial Officer

  
	
   

  	
  Facsimile:
  201-307-2324

  
	
   

  	
  Telephone:
  201-307-2000

  
	
   

  	
   

  
	
  with copies
  to:

  	
  The Hertz
  Corporation

  
	
   

  	
  225 Brae
  Boulevard

  
	
   

  	
  Park Ridge,
  NJ 07656

  
	
   

  	
  Attention:
  General Counsel

  
	
   

  	
  Facsimile:
  201-594-3122

  
	
   

  	
  Telephone:
  207-307-2000

  
	
   

  	
   

  
	
   

  	
  Debevoise
  & Plimpton LLP

  
	
   

  	
  919 Third
  Avenue

  
	
   

  	
  New York,
  New York 10022

  
	
   

  	
  Attention:
  David A. Brittenham, Esq.

  
	
   

  	
  Facsimile:
  (212) 909-6836

  
	
   

  	
  Telephone:
  (212) 909-6000

  
	
   

  	
   

  
	
  The
  Administrative Agent

  	
  Deutsche
  Bank AG, New York Branch

  
	
   

  	
  the
  Administrative Agent

  
	
   

  	
  60 Wall
  Street

  
	
   

  	
  New York,
  New York 10005

  
	
   

  	
  Attention:
  Marguerite Sutton

  
	
   

  	
  Facsimile:
  (212) 797-4655

  
	
   

  	
  Telephone:
  (212) 250-6150

  



 


132

















 


	
  The
  Collateral Agent:

  	
  Deutsche
  Bank AG, New York Branch

  
	
   

  	
  the
  Collateral Agent

  
	
   

  	
  60 Wall
  Street

  
	
   

  	
  New York,
  New York 10005

  
	
   

  	
  Attention:
  Marguerite Sutton

  
	
   

  	
  Facsimile:
  (212) 797-4655

  
	
   

  	
  Telephone:
  (212) 250-6150

  



 


provided that any notice, request or demand to
or upon the Administrative Agent or the Lenders pursuant to subsection 2.7,
3.2, 4.2, 4.4 or 4.8 shall not be effective until received.


 


(b)           Without in any way limiting the
obligation of any Loan Party and its Subsidiaries to confirm in writing any
telephonic notice permitted to be given hereunder, the Administrative Agent or
any Issuing Lender (in the case of the issuance of a Letter of Credit), as the
case may be, may prior to receipt of written confirmation act without liability
upon the basis of such telephonic notice, believed by the Administrative Agent
or such Issuing Lender in good faith to be from a Responsible Officer.


 


11.3         No Waiver; Cumulative Remedies.  No failure to exercise and no delay in
exercising, on the part of the Administrative Agent, any Lender or any Loan
Party, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.


 


11.4         Survival of Representations and
Warranties.  All representations and
warranties made hereunder and in the other Loan Documents (or in any amendment,
modification or supplement hereto or thereto) and in any certificate delivered
pursuant hereto or such other Loan Documents shall survive the execution and
delivery of this Agreement and the making of the Loans hereunder.


 


11.5         Payment of Expenses and Taxes.  The Parent Borrower agrees (a) to pay or reimburse the Agents and the Other
Representatives for (1) all their reasonable out-of-pocket costs and expenses
incurred in connection with (i) the syndication of the Facilities and the
development, preparation, execution and delivery of, and any amendment,
supplement or modification to, this Agreement and the other Loan Documents and
any other documents prepared in connection herewith or therewith, (ii) the
consummation and administration of the transactions (including the syndication
of the Commitments) contemplated hereby and thereby and (iii) efforts to
monitor the Loans and verify, protect, evaluate, assess, appraise, collect,
sell, liquidate or otherwise dispose of any of the Collateral, and (2) (i) the
reasonable fees and disbursements of Latham & Watkins LLP and McMillan Binch
Mendelsohn LLP, and such other special or local counsel, consultants, advisors,
appraisers and auditors whose retention (other than during the continuance of
an Event of Default) is approved by the Parent Borrower, (b) to pay or reimburse each Lender, the Arrangers
and the Agents for all their reasonable costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any other documents prepared in
connection 


 


133

















 


herewith or therewith, including the fees and
disbursements of counsel to the Agents and the Lenders, (c) to pay, indemnify, or reimburse each Lender,
the Arrangers and the Agents for, and hold each Lender, the Arrangers and the
Agents harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other similar taxes, if any, which may be payable or determined to
be payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d) to pay, indemnify or reimburse each Lender,
the Arrangers, each Agent, their respective affiliates, and their respective
officers, directors, trustees, employees, shareholders, members, attorneys and
other advisors, agents and controlling persons (each, an “Indemnitee”)
for, and hold each Indemnitee harmless from and against, any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents and any such other documents,
including any of the foregoing relating to the use of proceeds of the Loans or
the violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Parent Borrower of any of its Subsidiaries
or any of the property of the Parent Borrower or any of its Subsidiaries (all
the foregoing in this clause (d), collectively, the “Indemnified Liabilities”),
provided that the Parent Borrower shall not have any obligation
hereunder to the Administrative Agent, any other Agent or any Lender with
respect to indemnified liabilities arising from (i) the gross negligence or
willful misconduct of the Administrative Agent, any other Agent or any such
Lender (or any of their respective directors, trustees, officers, employees,
agents, successors and assigns) or (ii) claims made or legal proceedings commenced
against the Administrative Agent, any other Agent or any such Lender by any
security holder or creditor thereof arising out of and based upon rights
afforded any such security holder or creditor solely in its capacity as such. No
Indemnitee shall be liable for any consequential or punitive damages in
connection with the Facilities. All amounts due under this Section shall be
payable not later than 30 days after written demand therefor. Statements
reflecting amounts payable by the Loan Parties pursuant to this Section shall
be submitted to the address of the Parent Borrower set forth in subsection
11.2, or to such other Person or address as may be hereafter designated by the
Parent Borrower in a notice to the Administrative Agent. Notwithstanding the
foregoing, except as provided in clauses (b) and (c) above, the Parent Borrower
shall have no obligation under this subsection 11.5 to any Indemnitee with
respect to any tax, levy, impost, duty, charge, fee, deduction or withholding
imposed, levied, collected, withheld or assessed by any Governmental Authority.
The agreements in this Section shall survive repayment of the Loans and all
other amounts payable hereunder.


 


11.6         Successors and Assigns;
Participations and Assignments.  (a)  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any affiliate of
the applicable Issuing Lender that issues any Letter of Credit), except that
(i) other than in accordance with subsection 8.5, none of the Loan Parties may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or
transfer by any Loan Party without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section.


 


134

















 


(b)           (i) 
Subject to the conditions set forth in paragraph (b)(ii) below, any
Lender other than a Conduit Lender may, in the ordinary course of business and
in accordance with applicable law, assign to one or more assignees (each, an “Assignee”)
all or a portion of its rights and obligations under this Agreement (including
its Term Loan Commitment and/or Loans, pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit F) with the prior written
consent (such consent not to be unreasonably withheld or delayed) of:


 


(A)          The
Parent Borrower, provided that no consent of the Parent Borrower shall
be required for an assignment to a Lender, an affiliate of a Lender, an
Approved Fund (as defined below) or, if an Event of Default under subsection
9(a) or (f) has occurred and is continuing, any other Person; provided, further, that if any Lender assigns
all or a portion of its rights and obligations under this Agreement to one of
its affiliates in connection with or in contemplation of the sale or other
disposition of its interest in such affiliate, the Parent Borrower’s prior
written consent shall be required for such assignment; and


 


(B)           the
Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment to a Lender or an affiliate of a
Lender.


 


(ii)           Assignments shall be subject to the
following additional conditions:


 


(A)          except
in the case of an assignment to a Lender, an affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning
Lender’s Commitments or Loans under any Facility, the amount of the Commitments
or Loans of the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $1,000,000 unless
the Parent Borrower and the Administrative Agent otherwise consent, provided
that (1) no such consent of the Parent Borrower shall be required if an Event
of Default under subsection 9(a) or (f) has occurred and is continuing and
(2) such amounts shall be aggregated in respect of each Lender and its
affiliates or Approved Funds, if any;


 


(B)           the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500; provided that for concurrent assignments to two or more
Approved Funds such assignment fee shall only be required to be paid once in
respect of and at the time of such assignments; and


 


(C)           the
Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an administrative questionnaire.


 


135

















 


For the purposes of this subsection 11.6, the
term “Approved Fund” has the following meaning:  “Approved Fund” means any Person (other than
a natural person) that is engaged in making, purchasing, holding or investing
in bank loans and similar extensions of credit in the ordinary course and that
is administered or managed by (a) a Lender, (b) an affiliate of a Lender or (c)
an entity or an affiliate of an entity that administers or manages a Lender.


 


(iii)          Subject to acceptance and recording
thereof pursuant to paragraph (b)(iv) below, from and after the effective date
specified in each Assignment and Acceptance the Assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of (and bound by any related obligations under) subsections 4.10,
4.11, 4.12, 4.13 and 11.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection 11.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c)
of this subsection.


 


(iv)          The Parent Borrower hereby designates
the Administrative Agent, and the Administrative Agent agrees, to serve as the
Parent Borrower’s agent, solely for purposes of this subsection 11.6, to
maintain at one of its offices in New York, New York a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and interest and principal
amount of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive absent manifest error, and the Parent Borrower,
the Administrative Agent, the applicable Issuing Lender and the Lenders shall
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Parent Borrower, the applicable Issuing Lender and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


(v)           Upon its receipt of a duly completed
Assignment and Acceptance executed by an assigning Lender and an Assignee, the
Assignee’s completed administrative questionnaire (unless the Assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) of this subsection and any written consent to such assignment
required by paragraph (b) of this subsection, the Administrative Agent shall
accept such Assignment and Acceptance, record the information contained therein
in the Register and give prompt notice of such assignment and recordation to
the Parent Borrower. No 


 


136

















 


assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.


 


(vi)          On or prior to the effective date of
any assignment pursuant to this subsection 11.6(b), the assigning Lender shall
surrender any outstanding Notes held by it all or a portion of which are being
assigned. Any Notes surrendered by the assigning Lender shall be returned by
the Administrative Agent to the Parent Borrower marked “cancelled”.


 


Notwithstanding the foregoing, no Assignee,
which as of the date of any assignment to it pursuant to this subsection
11.6(b) would be entitled to receive any greater payment under subsection 4.10,
4.11 or 11.5 than the assigning Lender would have been entitled to receive as
of such date under such subsections with respect to the rights assigned, shall
be entitled to receive such greater payments unless the assignment was made
after an Event of Default under subsection 9(a) or (f) has occurred and is
continuing or  the Parent Borrower has
expressly consented in writing to waive the benefit of this provision at the
time of such assignment.


 


(i)            Any
Lender other than a Conduit Lender may, in the ordinary course of its business
and in accordance with applicable law, without the consent of the Parent
Borrower or the Administrative Agent, sell participations to one or more banks
or other entities (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (C) such Lender shall remain the holder of any such Loan
for all purposes under this Agreement and the other Loan Documents, and (D) the
Parent Borrower, the Administrative Agent, the applicable Issuing Lender and
the other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement. Any
agreement pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement may provide that such Lender
will not, without the consent of the Participant, agree to any amendment,
modification or waiver that (1) requires the consent of each Lender directly affected
thereby pursuant to the proviso to the second sentence of subsection 11.1(a)
and (2) directly affects such Participant. Subject to paragraph (c)(ii) of this
subsection, the Parent Borrower agrees that each Participant shall be entitled
to the benefits of (and shall have the related obligations under) subsections
4.10, 4.11, 4.12, 4.13 and 11.5 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this
subsection. To the extent permitted by law, each Participant also shall be
entitled to the benefits of subsection 11.7(b) as though it were a Lender, provided
that such Participant shall be subject to subsection 11.7(a) as though it were
a Lender.


 


(ii)           No
Loan Party shall be obligated to make any greater payment under subsection
4.10, 4.11 or 11.5 than it would have been obligated to make in the absence of
any participation, unless the sale of such participation is made with the prior
written consent of the Parent Borrower and the Parent Borrower expressly waives
the benefit of this provision at the 


 


137

















 


time of such participation. Any Participant
that is not incorporated under the laws of the United States of America or a
state thereof shall not be entitled to the benefits of subsection 4.11 unless
such Participant complies with subsection 4.11(b) and provides the forms and
certificates referenced therein to the Lender that granted such participation.


 


(d)           Any Lender, without the consent of
the Parent Borrower or the Administrative Agent, may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this subsection
shall not apply to any such pledge or assignment of a security interest; provided
that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute (by foreclosure or
otherwise) any such pledgee or Assignee for such Lender as a party hereto.


 


(e)           No assignment or participation made
or purported to be made to any Assignee or Participant shall be effective
without the prior written consent of the Parent Borrower if it would require
the Parent Borrower to make any filing with any Governmental Authority or
qualify any Loan or Note under the laws of any jurisdiction, and the Parent
Borrower shall be entitled to request and receive such information and assurances
as it may reasonably request from any Lender or any Assignee or Participant to
determine whether any such filing or qualification is required or whether any
assignment or participation is otherwise in accordance with applicable law.


 


(f)            Notwithstanding the foregoing, any
Conduit Lender may assign any or all of the Loans it may have funded hereunder
to its designating Lender without the consent of the Parent Borrower or the
Administrative Agent and without regard to the limitations set forth in subsection
11.6(b). The Parent Borrower, each Lender and the Administrative Agent hereby
confirms that it will not institute against a Conduit Lender or join any other
Person in instituting against a Conduit Lender any domestic or foreign
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding
under any state, federal or provincial bankruptcy or similar law, for one year
and one day after the payment in full of the latest maturing commercial paper
note issued by such Conduit Lender; provided, however, that each
Lender designating any Conduit Lender hereby agrees to indemnify, save and hold
harmless each other party hereto for any loss, cost, damage or expense arising
out of its inability to institute such a proceeding against such Conduit Lender
during such period of forbearance. Each such indemnifying Lender shall pay in
full any claim received from the Parent Borrower pursuant to this subsection
11.6(f) within 30 Business Days of receipt of a certificate from a Responsible
Officer of the Parent Borrower specifying in reasonable detail the cause and
amount of the loss, cost, damage or expense in respect of which the claim is
being asserted, which certificate shall be conclusive absent manifest error. Without
limiting the indemnification obligations of any indemnifying Lender pursuant to
this subsection 11.6(f), in the event that the indemnifying Lender fails timely
to compensate the Parent Borrower for such claim, any Loans held by the
relevant Conduit Lender shall, if requested by the Parent Borrower, be assigned
promptly to the Lender that administers the Conduit Lender and the designation
of such Conduit Lender shall be void.


 


(g)           If the Parent Borrower wishes to
replace the Loans or Commitments under any Facility with ones having different
terms, it shall have the option, with the consent of the 


 


138

















 


Administrative Agent and subject to at least
three Business Days’ advance notice to the Lenders under such Facility, instead
of prepaying the Loans or reducing or terminating the Commitments to be
replaced, to (i) require the Lenders under such Facility to assign such Loans
or Commitments to the Administrative Agent or its designees and (ii) amend the
terms thereof in accordance with subsection 11.1. Pursuant to any such
assignment, all Loans and Commitments to be replaced shall be purchased at par
(allocated among the Lenders under such Facility in the same manner as would be
required if such Loans were being optionally prepaid or such Commitments were
being optionally reduced or terminated by the Parent Borrower), accompanied by
payment of any accrued interest and fees thereon and any amounts owing pursuant
to subsection 4.12. By receiving such purchase price, the Lenders under such
Facility shall automatically be deemed to have assigned the Loans or
Commitments under such Facility pursuant to the terms of the form of Assignment
and Acceptance attached hereto as Exhibit F, and accordingly no other action by
such Lenders shall be required in connection therewith. The provisions of this
paragraph are intended to facilitate the maintenance of the perfection and
priority of existing security interests in the Collateral during any such
replacement.


 


11.7         Adjustments; Set-off; Calculations;
Computations.  (a)  If any Lender (a “benefited Lender”)
shall at any time receive any payment of all or part of its Term Loans or the
Reimbursement Amounts owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in
subsection 9(f), or otherwise (except pursuant to subsection 4.4, 4.13(d) or
11.6)), in a greater proportion than any such payment to or collateral received
by any other Lender, if any, in respect of such other Lender’s Term Loans or
the Reimbursement Amounts, as the case may be, owing to it, or interest
thereon, such benefited Lender shall purchase for cash from the other Lenders
an interest (by participation, assignment or otherwise) in such portion of each
such other Lender’s Term Loans or the Reimbursement Amounts, as the case may
be, owing to it, or shall provide such other Lenders with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause such
benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such benefited Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.


 


(b)           In addition to any rights and
remedies of the Lenders provided by law, each Lender shall have the right,
without prior notice to the Parent Borrower, any such notice being expressly
waived by the Parent Borrower to the extent permitted by applicable law, upon
the occurrence of an Event of Default under subsection 9(a) to set-off and
appropriate and apply against any amount then due and payable under subsection
9(a) by the Parent Borrower any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or
the account of the Parent Borrower. Each Lender agrees promptly to notify the
Parent Borrower and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such
notice shall not affect the validity of such set-off and application.


 


139

















 


11.8         Judgment.  (a)  If,
for the purpose of obtaining or enforcing judgment against any Loan Party in
any court in any jurisdiction, it becomes necessary to convert into any other
currency (such other currency being hereinafter in this subsection 11.8 referred
to as the “Judgment Currency”) an amount due under any Loan Document in
any currency (the “Obligation Currency”) other than the Judgment
Currency, the conversion shall be made at the rate of exchange prevailing on
the Business Day immediately preceding the date of actual payment of the amount
due, in the case of any proceeding in the courts of the Province of Ontario or
in the courts of any other jurisdiction that will give effect to such
conversion being made on such date, or the date on which the judgment is given,
in the case of any proceeding in the courts of any other jurisdiction (the
applicable date as of which such conversion is made pursuant to this subsection
11.8 being hereinafter in this subsection 11.8 referred to as the “Judgment
Conversion Date”).


 


(b)           If, in the case of any proceeding in
the court of any jurisdiction referred to in subsection 11.8(a), there is a
change in the rate of exchange prevailing between the Judgment Conversion Date
and the date of actual receipt for value of the amount due, the applicable Loan
Party shall pay such additional amount (if any, but in any event not a lesser
amount) as may be necessary to ensure that the amount actually received in the
Judgment Currency, when converted at the rate of exchange prevailing on the
date of payment, will produce the amount of the Obligation Currency which could
have been purchased with the amount of the Judgment Currency stipulated in the
judgment or judicial order at the rate of exchange prevailing on the Judgment
Conversion Date. Any amount due from any Loan Party under this subsection
11.8(b) shall be due as a separate debt and shall not be affected by judgment
being obtained for any other amounts due under or in respect of any of the Loan
Documents.


 


(c)           The term “rate of exchange” in this
subsection 11.8 means the rate of exchange at which the Administrative Agent,
on the relevant date at or about 12:00 noon (New York time), would be prepared
to sell, in accordance with its normal course foreign currency exchange
practices, the Obligation Currency against the Judgment Currency.


 


11.9         Counterparts.  This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be delivered to the Parent Borrower
and the Administrative Agent.


 


11.10       Severability.  Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


11.11       Integration.  This Agreement and the other Loan Documents
represent the entire agreement of each of the Loan Parties party hereto, the
Administrative Agent and the Lenders with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by any
of the Loan Parties party hereto, the Administrative Agent 


 


140

















 


or any Lender relative to the subject matter
hereof not expressly set forth or referred to herein or in the other Loan
Documents.


 


11.12       GOVERNING LAW.  THIS AGREEMENT AND ANY NOTES AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.


 


11.13       Submission To Jurisdiction; Waivers.
 Each party hereto hereby irrevocably and
unconditionally:


 


(a)           submits for itself and its property
in any legal action or proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;


 


(b)           consents that any such action or
proceeding may be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient forum
and agrees not to plead or claim the same;


 


(c)           agrees that service of process in any
such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to the Parent Borrower, the applicable Lender or the
Administrative Agent, as the case may be, at the address specified in
subsection 11.2 or at such other address of which the Administrative Agent, any
such Lender and the Parent Borrower shall have been notified pursuant thereto;


 


(d)           agrees that nothing herein shall
affect the right to effect service of process in any other manner permitted by
law or shall limit the right to sue in any other jurisdiction; and


 


(e)           waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal
action or proceeding referred to in this subsection any consequential or
punitive damages.


 


11.14       Acknowledgements.  The Parent Borrower hereby acknowledges that:


 


(a)           it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the other Loan
Documents;


 


(b)           neither the Administrative Agent nor
any Other Representative or Lender has any fiduciary relationship with or duty
to the Parent Borrower arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between the
Administrative Agent and Lenders, on the one hand, and the Parent Borrower, on
the other hand, in connection herewith or therewith is solely that of creditor
and debtor; and


 


141

















 


(c)           no joint venture is created hereby or
by the other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby and thereby among the Lenders or among any of the Parent
Borrower and the Lenders.


 


11.15       WAIVER OF JURY TRIAL.
 EACH OF THE PARENT BORROWER, THE AGENTS
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES OR ANY
OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


11.16       Confidentiality.  Each Agent and each Lender agrees to keep
confidential any information (a) provided to it by or on behalf of CCMGC, the
Parent Borrower, or any of their respective Subsidiaries pursuant to or in
connection with the Loan Documents or (b) obtained by such Lender based on a
review of the books and records of CCMGC, the Parent Borrower or any of their
respective Subsidiaries; provided that nothing herein shall prevent any
Lender from disclosing any such information (i) to any Agent, any Other
Representative or any other Lender, (ii) to any Transferee, or prospective
Transferee or any creditor or any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Parent Borrower
and its obligations which agrees to comply with the provisions of this
subsection pursuant to a written instrument (or electronically recorded
agreement from any Person listed above in this clause (ii), which Person has
been approved by the Parent Borrower (such approval not be unreasonably
withheld), in respect to any electronic information (whether posted or
otherwise distributed on Intralinks or any other electronic distribution
system)) for the benefit of the Parent Borrower (it being understood that each
relevant Lender shall be solely responsible for obtaining such instrument (or
such electronically recorded agreement)), (iii) to its affiliates and the
employees, officers, directors, agents, attorneys, accountants and other
professional advisors of it and its affiliates, provided that such
Lender shall inform each such Person of the agreement under this subsection
11.16 and take reasonable actions to cause compliance by any such Person
referred to in this clause (iii) with this agreement (including, where
appropriate, to cause any such Person to acknowledge its agreement to be bound
by the agreement under this subsection 11.16), (iv) upon the request or demand
of any Governmental Authority having jurisdiction over such Lender or its
affiliates or to the extent required in response to any order of any court or
other Governmental Authority or as shall otherwise be required pursuant to any
Requirement of Law, provided that such Lender shall, unless prohibited
by any Requirement of Law, notify the Parent Borrower of any disclosure
pursuant to this clause (iv) as far in advance as is reasonably practicable
under such circumstances, (v) which has been publicly disclosed other than in
breach of this Agreement, (vi) in connection with the exercise of any remedy
hereunder, under any Loan Document or under any Interest Rate Protection
Agreement, (vii) in connection with periodic regulatory examinations and
reviews conducted by the National Association of Insurance Commissioners or any
Governmental Authority having jurisdiction over such Lender or its affiliates (to
the extent applicable), (viii) in connection with any litigation to which such
Lender (or, with respect to any Interest Rate Protection Agreement, any
affiliate of any Lender party thereto) may be a party, subject to the proviso
in clause (iv), and (ix) if, prior to such information having been so provided
or obtained, such information was already in an Agent’s or a Lender’s
possession on a non-confidential basis without a duty of confidentiality to the
Parent Borrower being violated.


 


142

















 


11.17       USA Patriot Act Notice.  Each Lender hereby notifies the Parent
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub.:  107-56 (signed into law October
26, 2001)) (the “Patriot Act”), it is required to obtain, verify, and
record information that identifies the Parent Borrower, which information
includes the name of the Parent Borrower and other information that will allow
such Lender to identify the Parent Borrower in accordance with the Patriot Act,
and the Parent Borrower agrees to provide such information from time to time to
any Lender.


 


11.18       Special Provisions Regarding Pledges
of Capital Stock in, and Promissory Notes Owed by, Persons Not Organized in the
U.S.  To the extent any Security
Document requires or provides for the pledge of promissory notes issued by, or
Capital Stock in, any Person organized under the laws of a jurisdiction outside
the United States, it is acknowledged that, as of the Closing Date, no actions
have been required to be taken to perfect, under local law of the jurisdiction
of the Person who issued the respective promissory notes or whose Capital Stock
is pledged, under the Security Documents. The Parent Borrower hereby agrees
that, following any request by the Administrative Agent or Required Lenders to
do so, the Parent Borrower shall, and shall cause its Subsidiaries to, take (to
the extent they may lawfully do so) such actions (including the making of any
filings and the delivery of appropriate legal opinions) under the local law of
any jurisdiction with respect to which such actions have not already been taken
as are reasonably determined by the Administrative Agent or Required Lenders to
be necessary or reasonably desirable in order to fully perfect, preserve or
protect the security interests granted pursuant to the various Security
Documents under the laws of such jurisdictions.


 


143

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.


 


	
   

  	
  THE HERTZ
  CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Harold
  E. Rolfe

  	
   

  
	
   

  	
  Name:

  	
  Harold E.
  Rolfe

  
	
   

  	
  Title:

  	
  Senior Vice
  President

  
	
   

  	
   

  	
  General
  Counsel & Secretary

  
					



 

















 


	
   

  	
  DEUTSCHE
  BANK AG, NEW YORK BRANCH, 

  Individually, as Lender and as Administrative 

  Agent and Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  Marguerite Sutton

  	
   

  
	
   

  	
  Name:

  	
  Marguerite
  Sutton

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  Evelyn Thierry

  	
   

  
	
   

  	
  Name:

  	
  Evelyn Thierry

  
	
   

  	
  Title:

  	
  Vice
  President

  



 

















 


	
   

  	
  LEHMAN
  COMMERCIAL PAPER, INC. 

  Individually, as a Lender and as Syndication Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  Jeffrey Ast

  	
   

  
	
   

  	
  Name:

  	
  Jeffrey Ast

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  
					



 

















 


	
   

  	
  MERRILL
  LYNCH & CO., MERRILL LYNCH, 

  PIERCE, FENNER AND SMITH 

  INCORPORATED,

  Individually and as Documentation Agent, Joint 

  Lead Arranger and Joint Bookrunning Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  Sheila McGillicuddy

  	
   

  
	
   

  	
  Name:

  	
  Sheila
  McGillicuddy

  
	
   

  	
  Title:

  	
  Director

  
					



 

















 


	
   

  	
  MERRILL
  LYNCH CAPITAL CORPORATION

  Individually and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  Stephanie Vallillo

  	
   

  
	
   

  	
  Name:

  	
  Stephanie
  Vallillo

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 

















 


	
   

  	
  GOLDMAN
  SACHS CREDIT PARTNERS L.P., 

  Individually and as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  William W. Archer

  	
   

  
	
   

  	
  Name:

  	
  William W.
  Archer

  
	
   

  	
  Title:

  	
  Managing
  Director

  
					



 

















 


	
   

  	
  JPMORGAN CHASE
  BANK, N.A., Individually,

  as a Lender and as Joint Bookrunning Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  Karen M. Sharf

  	
   

  
	
   

  	
  Name:

  	
  Karen M.
  Sharf

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 

















 


	
   

  	
  Bank of
  America, N.A.,

  Solely in its capacity as Issuing Lender of the 

  Existing Letters of Credit

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  Elizabeth G. Brandt

  	
   

  
	
   

  	
  Name:

  	
  Elizabeth G.
  Brandt

  
	
   

  	
  Title:

  	
  Vice
  President

  
					



 

















 


	
   

  	
  BNP PARIBAS,

  as LC Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  Cecile Scherer

  	
   

  
	
   

  	
  Name:

  	
  Cecile
  Scherer

  
	
   

  	
  Title:

  	
  Director,
  Merchant Banking Group

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/  Richard Cushing

  	
   

  
	
   

  	
  Name:

  	
  Richard
  Cushing

  
	
   

  	
  Title:

  	
  Director