Exhibit 4.7.1


 




 





CREDIT AGREEMENT


 


among


 


HERTZ EQUIPMENT RENTAL CORPORATION,

THE HERTZ CORPORATION,


THE CANADIAN BORROWERS

PARTIES HERETO,


 


THE SEVERAL LENDERS


FROM TIME TO TIME PARTIES HERETO,


 


DEUTSCHE BANK AG, NEW YORK BRANCH,

as Administrative Agent and Collateral Agent,


 


DEUTSCHE BANK AG, CANADA BRANCH,

as Canadian Agent and Canadian 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

  	
  59

  
	
   

  	
   

  	
   

  
	
  SECTION 2. AMOUNT
  AND TERMS OF COMMITMENTS

  	
  59

  
	
  2.1

  	
  Commitments

  	
  59

  
	
  2.2

  	
  Procedure for Revolving Credit Borrowing

  	
  64

  
	
  2.3

  	
  Termination or Reduction of Commitments

  	
  65

  
	
  2.4

  	
  Swing Line Commitments

  	
  66

  
	
  2.5

  	
  Reserved

  	
  69

  
	
  2.6

  	
  Reserved

  	
  69

  
	
  2.7

  	
  Reserved

  	
  69

  
	
  2.8

  	
  Repayment of Loans

  	
  69

  
	
  2.9

  	
  Increase in Total Commitments

  	
  70

  
	
   

  	
   

  	
   

  
	
  SECTION 3. LETTERS
  OF CREDIT

  	
  72

  
	
  3.1

  	
  L/C Commitment

  	
  72

  
	
  3.2

  	
  Procedure for Issuance of Letters of Credit

  	
  73

  
	
  3.3

  	
  Fees, Commissions and Other Charges

  	
  74

  
	
  3.4

  	
  L/C Participations

  	
  75

  
	
  3.5

  	
  Reimbursement Obligation of the Borrowers

  	
  76

  
	
  3.6

  	
  Obligations Absolute

  	
  77

  
	
  3.7

  	
  L/C Payments

  	
  77

  
	
  3.8

  	
  L/C Request

  	
  78

  
	
  3.9

  	
  Additional Issuing Lenders

  	
  78

  
	
   

  	
   

  	
   

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

  	
  78

  
	
  4.1

  	
  Interest Rates and Payment Dates

  	
  78

  
	
  4.2

  	
  Conversion and Continuation Options

  	
  80

  
	
  4.3

  	
  Minimum Amounts of Sets

  	
  81

  
	
  4.4

  	
  Optional and Mandatory Prepayments

  	
  81

  
	
  4.5

  	
  Commitment Fees; Administrative Agent’s Fee; Other Fees

  	
  86

  
	
  4.6

  	
  Computation of Interest and Fees

  	
  86

  
	
  4.7

  	
  Inability to Determine Interest Rate

  	
  90

  
	
  4.8

  	
  Pro Rata Treatment and Payments

  	
  90

  
	
  4.9

  	
  Illegality

  	
  93

  
	
  4.10

  	
  Requirements of Law

  	
  94

  
	
  4.11

  	
  Taxes

  	
  95

  
	
  4.12

  	
  Indemnity

  	
  100

  
	
  4.13

  	
  Certain Rules Relating to the Payment of Additional Amounts

  	
  100

  
	
  4.14

  	
  Controls on Prepayment if Aggregate Outstanding Credit Exceeds
  Aggregate Revolving Credit Loan Commitments

  	
  102

  



 


i

















 


	
  4.15

  	
  Canadian Facility Lenders

  	
  102

  
	
  4.16

  	
  Cash Receipts

  	
  103

  
	
   

  	
   

  	
   

  
	
  SECTION 5.
  REPRESENTATIONS AND WARRANTIES

  	
  107

  
	
  5.1

  	
  Financial Condition

  	
  107

  
	
  5.2

  	
  No Change; Solvent

  	
  108

  
	
  5.3

  	
  Corporate Existence; Compliance with Law

  	
  109

  
	
  5.4

  	
  Corporate Power; Authorization; Enforceable Obligations

  	
  109

  
	
  5.5

  	
  No Legal Bar

  	
  110

  
	
  5.6

  	
  No Material Litigation

  	
  110

  
	
  5.7

  	
  No Default

  	
  110

  
	
  5.8

  	
  Ownership of Property; Liens

  	
  110

  
	
  5.9

  	
  Intellectual Property

  	
  110

  
	
  5.10

  	
  No Burdensome Restrictions

  	
  110

  
	
  5.11

  	
  Taxes

  	
  111

  
	
  5.12

  	
  Federal Regulations

  	
  111

  
	
  5.13

  	
  ERISA

  	
  111

  
	
  5.14

  	
  Collateral

  	
  112

  
	
  5.15

  	
  Investment Company Act; Other Regulations

  	
  113

  
	
  5.16

  	
  Subsidiaries

  	
  113

  
	
  5.17

  	
  Purpose of Loans

  	
  113

  
	
  5.18

  	
  Environmental Matters

  	
  113

  
	
  5.19

  	
  No Material Misstatements

  	
  114

  
	
  5.20

  	
  Delivery of the Acquisition Agreement

  	
  114

  
	
  5.21

  	
  Certain Representations and Warranties Contained in the Acquisition
  Agreement

  	
  115

  
	
  5.22

  	
  Senior Indebtedness

  	
  115

  
	
  5.23

  	
  Labor Matters

  	
  115

  
	
  5.24

  	
  Special Purpose Corporation

  	
  115

  
	
  5.25

  	
  Insurance

  	
  115

  
	
  5.26

  	
  Eligible Accounts

  	
  115

  
	
  5.27

  	
  Eligible Rental Equipment

  	
  116

  
	
  5.28

  	
  Anti-Terrorism

  	
  116

  
	
   

  	
   

  	
   

  
	
  SECTION 6.
  CONDITIONS PRECEDENT

  	
  116

  
	
  6.1

  	
  Conditions to Initial Extension of Credit

  	
  116

  
	
  6.2

  	
  Conditions to Each Other Extension of Credit

  	
  125

  
	
   

  	
   

  	
   

  
	
  SECTION 7.
  AFFIRMATIVE COVENANTS

  	
  126

  
	
  7.1

  	
  Financial Statements

  	
  127

  
	
  7.2

  	
  Certificates; Other Information

  	
  128

  
	
  7.3

  	
  Payment of Obligations

  	
  129

  
	
  7.4

  	
  Conduct of Business and Maintenance of Existence

  	
  130

  
	
  7.5

  	
  Maintenance of Property; Insurance

  	
  130

  
	
  7.6

  	
  Inspection of Property; Books and Records; Discussions

  	
  131

  
	
  7.7

  	
  Notices

  	
  132

  
	
  7.8

  	
  Environmental Laws

  	
  134

  



 


ii

















 


	
  7.9

  	
  After-Acquired Real Property and Fixtures

  	
  135

  
	
  7.10

  	
  Surveys

  	
  137

  
	
  7.11

  	
  Maintenance of New York Process Agent

  	
  138

  
	
  7.12

  	
  Consummation of Transactions

  	
  138

  
	
  7.13

  	
  Post-Closing Security Perfection

  	
  138

  
	
   

  	
   

  	
   

  
	
  SECTION 8. NEGATIVE
  COVENANTS

  	
  138

  
	
  8.1

  	
  Financial Condition Covenants

  	
  138

  
	
  8.2

  	
  Limitation on Indebtedness

  	
  139

  
	
  8.3

  	
  Limitation on Liens

  	
  143

  
	
  8.4

  	
  Limitation on Guarantee Obligations

  	
  146

  
	
  8.5

  	
  Limitation on Fundamental Changes

  	
  148

  
	
  8.6

  	
  Limitation on Sale of Assets

  	
  149

  
	
  8.7

  	
  Limitation on Dividends

  	
  150

  
	
  8.8

  	
  Limitation on Capital Expenditures

  	
  152

  
	
  8.9

  	
  Limitation on Investments, Loans and Advances

  	
  153

  
	
  8.10

  	
  Limitations on Certain Acquisitions

  	
  155

  
	
  8.11

  	
  Limitation on Transactions with Affiliates

  	
  156

  
	
  8.12

  	
  Limitation on Sale and Leaseback Transactions

  	
  158

  
	
  8.13

  	
  Limitation on Dispositions of Collateral

  	
  158

  
	
  8.14

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

  	
  158

  
	
  8.15

  	
  Limitation on Changes in Fiscal Year

  	
  160

  
	
  8.16

  	
  Limitation on Negative Pledge Clauses

  	
  160

  
	
  8.17

  	
  Limitation on Lines of Business

  	
  161

  
	
  8.18

  	
  Limitations on Currency, Commodity and Other Hedging Transactions

  	
  161

  
	
  8.19

  	
  Limitations on Activities of Hertz Vehicle Sales Corporation

  	
  161

  
	
   

  	
   

  	
   

  
	
  SECTION 9. EVENTS
  OF DEFAULT

  	
  161

  
	
   

  	
   

  
	
  SECTION 10. THE
  AGENTS AND THE OTHER REPRESENTATIVES

  	
  166

  
	
  10.1

  	
  Appointment

  	
  166

  
	
  10.2

  	
  Delegation of Duties

  	
  167

  
	
  10.3

  	
  Exculpatory Provisions

  	
  168

  
	
  10.4

  	
  Reliance by Agents

  	
  168

  
	
  10.5

  	
  Notice of Default

  	
  169

  
	
  10.6

  	
  Acknowledgements and Representations by Lenders

  	
  169

  
	
  10.7

  	
  Indemnification

  	
  170

  
	
  10.8

  	
  Agents and Other Representatives in Their Individual Capacity

  	
  170

  
	
  10.9

  	
  Collateral Matters

  	
  171

  
	
  10.10

  	
  Successor Agent

  	
  172

  
	
  10.11

  	
  Other Representatives

  	
  173

  
	
  10.12

  	
  Swing Line Lender

  	
  173

  
	
  10.13

  	
  Withholding Tax

  	
  173

  
	
   

  	
   

  	
   

  
	
  SECTION 11.
  MISCELLANEOUS

  	
  173

  
	
  11.1

  	
  Amendments and Waivers

  	
  173

  



 


iii

















 


	
  11.2

  	
  Notices

  	
  176

  
	
  11.3

  	
  No Waiver; Cumulative Remedies

  	
  177

  
	
  11.4

  	
  Survival of Representations and Warranties

  	
  177

  
	
  11.5

  	
  Payment of Expenses and Taxes

  	
  177

  
	
  11.6

  	
  Successors and Assigns; Participations and Assignments

  	
  179

  
	
  11.7

  	
  Adjustments; Set-off; Calculations; Computations

  	
  183

  
	
  11.8

  	
  Judgment

  	
  184

  
	
  11.9

  	
  Counterparts

  	
  184

  
	
  11.10

  	
  Severability

  	
  185

  
	
  11.11

  	
  Integration

  	
  185

  
	
  11.12

  	
  Governing Law

  	
  185

  
	
  11.13

  	
  Submission To Jurisdiction; Waivers

  	
  185

  
	
  11.14

  	
  Acknowledgements

  	
  186

  
	
  11.15

  	
  Waiver Of Jury Trial

  	
  187

  
	
  11.16

  	
  Confidentiality

  	
  187

  
	
  11.17

  	
  USA Patriot Act Notice

  	
  188

  
	
  11.18

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

  	
  188

  
	
  11.19

  	
  Joint and Several Liability; Postponement of Subrogation

  	
  188

  
	
  11.20

  	
  Reinstatement

  	
  189

  
	
  11.21

  	
  Language

  	
  189

  



 


iv

















 


SCHEDULES


 


	
  A

  	
  Commitments and Addresses

  	
   

  
	
  B

  	
  Designated Foreign Currencies

  	
   

  
	
  C

  	
  Reserved

  	
   

  
	
  D

  	
  Rental Equipment Locations

  	
   

  
	
  E

  	
  Fiscal Periods

  	
   

  
	
  F

  	
  Rollover Indebtedness

  	
   

  
	
  G

  	
  Unscheduled Assumed Indebtedness

  	
   

  
	
  H

  	
  Existing Letters of Credit

  	
   

  
	
  4.16(a)

  	
  DDAs

  	
   

  
	
  4.16(b)

  	
  Credit Card Arrangements

  	
   

  
	
  4.16(c)

  	
  Blocked Accounts

  	
   

  
	
  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

  	
   

  
	
  7.10

  	
  Surveys

  	
   

  
	
  7.13

  	
  Time Periods to Satisfy Springing Closing Date Covenants

  	
   

  
	
  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-1

  	
  Form of Revolving Credit Note

  	
   

  
	
  A-2

  	
  Form of Swing Line Note

  	
   

  
	
  B-1

  	
  U.S. Guarantee and Collateral Agreement

  	
   

  
	
  B-2

  	
  Canadian 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

  	
   

  
	
  D-4

  	
  Opinion of Tory’s LLP, Counsel to the Canadian Borrowers

  	
   

  
	
  E

  	
  Form of U.S. Tax Compliance Certificate

  	
   

  
	
  F

  	
  Form of Assignment and Acceptance

  	
   

  
	
  G

  	
  Form of Swing Line Loan Participation Certificate

  	
   

  
	
  H

  	
  Form of Borrowing Certificate

  	
   

  
	
  I

  	
  Reserved

  	
   

  
	
  J

  	
  Form of Closing Certificate

  	
   

  
	
  K

  	
  Form of L/C Request

  	
   

  
	
  L

  	
  Form of Joinder Agreement

  	
   

  
	
  M

  	
  Form of Borrowing Base Certificate

  	
   

  



 


vi

















 


CREDIT
AGREEMENT, dated as of December 21, 2005, among HERTZ EQUIPMENT RENTAL
CORPORATION, a Delaware corporation (together with its successors and assigns, “HERC”),
THE HERTZ CORPORATION, a Delaware corporation (together with its successors and
assigns the “Parent Borrower”), the Canadian Borrowers (as hereinafter
defined) (the Canadian Borrowers together with HERC and the Parent Borrower,
being collectively referred to herein as the “Borrowers” and each being
individually referred to as a “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”), DEUTSCHE BANK AG, CANADA BRANCH
(“DBCB”), as Canadian agent and Canadian collateral agent for the
Lenders hereunder (in such capacities, respectively, the “Canadian Agent”
and the “Canadian 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, the
Parent Borrower will obtain a senior secured term loan facility (the “Senior
Term Facility”), under which the Parent Borrower shall obtain (a) senior
secured


 

















 


term loans (as
further defined in subsection 1.1, the “Senior Term Loans”) in an amount
of up to $2,000,000,000 and (b) a pre-funded synthetic letter of credit
facility in an aggregate amount of $250,000,000;


 


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 Equity Financing,
the Senior Term Facility financing, the Notes Offering, the U.S.
Securitization, Foreign Fleet Bridge 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 HERC and the Parent Borrower and their respective Subsidiaries
following the consummation of the Acquisition and the related transactions,
HERC, the Parent Borrower and the Canadian Borrowers have 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:


 


“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


 


2

















 


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 or, with respect
to Canadian Facility Revolving Credit Loans, the Canadian Prime Rate.


 


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


 


“Account
Debtor”:  each Person who is obligated on an Account, chattel
paper or a General Intangible.


 


“Accounts”:  as
defined in the UCC or (to the extent governed thereby) the PPSA as in effect
from time to time or (to the extent governed by the Civil Code
of Québec) defined as all “claims” for the purposes of the Civil Code of Québec; 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.


 


“Additional
Commitment Lender”:  as defined in subsection 2.9.


 


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, (y) in such principal amount as is necessary to generate net proceeds
to the Parent Borrower of an amount equal to (A) $500,000,000 minus (B) the
aggregate principal amount of Long-Dated Bonds 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.


 


“Adjustment
Date”:  each date, on or after the last day of the Parent
Borrower’s first fiscal quarter ended at least 6 months after the Closing Date,
that is the second Business Day following receipt by the Lenders of both (a)
the financial statements required to be delivered pursuant to subsection 7.1(a)
or 7.1(b), as applicable, for the most recently completed fiscal period and (b)
the related compliance certificate required to be delivered pursuant to
subsection 7.2(b) with respect to such fiscal period.


 


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


 


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


 


“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
Canadian Agent, the Canadian Collateral Agent, the Syndication Agent and the
Documentation Agent.


 


“Agent
Advance”:  as defined in subsection 2.1(d).


 


“Agent
Advance Period”:  as defined in subsection 2.1(d).


 


“Aggregate
Canadian Facility Lender Exposure”:  the Dollar Equivalent sum of
(a) the aggregate principal amount of all Canadian Facility Revolving
Credit Loans then outstanding and (b) the aggregate amount of all Canadian
Facility L/C Obligations at such time.


 


4

















 


“Aggregate
Outstanding Credit”:  as to any Revolving Credit Lender at any
time, an amount equal to the sum of (a) the aggregate principal amount of all
Revolving Credit Loans made by such Revolving Credit Lender then outstanding
(including in the case of Revolving Credit Loans then outstanding in any
Designated Foreign Currency, the Dollar Equivalent of the aggregate principal
amount thereof), (b) the aggregate amount equal to such Revolving Credit Lender’s
U.S. Facility Commitment Percentage or Canadian Facility Commitment Percentage,
as applicable, of the U.S. Facility L/C Obligations or the Canadian Facility
L/C Obligations, respectively, then outstanding and (c) the aggregate amount
equal to such Revolving Credit Lender’s U.S. Facility Commitment
Percentage, if any, of the Swing Line Loans then outstanding.


 


“Aggregate
U.S. Facility Lender Exposure”:  the sum of (a) the aggregate
principal amount of all U.S. Facility Revolving Credit Loans then outstanding,
(b) the aggregate amount of all U.S. Facility L/C Obligations at such time and
(c) the aggregate principal amount of the Swing Line Loans then outstanding.


 


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


 


“Applicable
Margin”:  the rate per annum determined as
follows:  during the period from the Closing Date until the first
Adjustment Date, the Applicable Margin shall equal (A) with respect to ABR
Loans, 1.00% per annum, (B) with respect to Eurocurrency Loans, 2.00% per
annum and (c) with respect to BA Equivalent Loans, 2.00% per annum.  The Applicable Margins will be adjusted on
each subsequent Adjustment Date to the applicable rate per annum set forth
under the heading “Applicable Margin for ABR Loans”, “Applicable Margin for
Canadian Prime Rate Loans”, “Applicable Margin for Eurocurrency Loans” or “Applicable
Margin for BA Equivalent Loans” on the applicable Pricing Grid which
corresponds to the Consolidated Leverage Ratio determined from the financial
statements and compliance certificate relating to the end of the fiscal quarter
immediately preceding such Adjustment Date; provided that in the event
that the financial statements required to be delivered pursuant to
subsection 7.1(a) or 7.1(b), as applicable, and the related compliance
certificate required to be delivered pursuant to subsection 7.2(b), are not
delivered when due, then:


 


(1)           if such financial
statements and certificate are delivered after the date such financial
statements and certificate were required to be delivered (without giving effect
to any applicable cure period) and the Applicable Margin increases from that
previously in effect as a result of the delivery of such financial statements,
then the Applicable Margin during the period from the date upon which such
financial statements were required to be delivered (without giving effect to
any applicable cure period) until the date upon which they actually are
delivered shall, except as otherwise provided in clause (3) below, be the
Applicable Margin as so increased;


 


(2)           if such financial
statements and certificate are delivered after the date such financial
statements and certificate were required to be delivered and the Applicable
Margin decreases from that previously in effect as a result of the delivery of
such financial statements, then such decrease in the Applicable Margin shall
not become


 


5

















 


applicable
until the date upon which the financial statements and certificate actually are
delivered; and


 


(3)           if such financial
statements and certificate are not delivered prior to the expiration of the
applicable cure period, then, effective upon such expiration, for the period
from the date upon which such financial statements and certificate were
required to be delivered (after the expiration of the applicable cure period)
until two Business Days following the date upon which they actually are
delivered, the Applicable Margin shall be 1.25% per annum, in the case of ABR
Loans, 2.25% per annum, in the case of Eurocurrency Loans and 2.25% per annum,
in the case of BA Equivalent Loans (it being understood that the foregoing
shall not limit the rights of the Administrative Agent and the Lenders set
forth in Section 9).


 


In addition,
at all times while an Event of Default known to the Parent Borrower shall have
occurred and be continuing, the Applicable Margin shall not decrease from that
previously in effect as a result of the delivery of such financial statements
and certificate.


 


“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 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.


 


“Availability
Reserves”:  without duplication of any other reserves or items
that are otherwise addressed or excluded through eligibility criteria, such
reserves, subject to subsection 2.1(c), as the Administrative Agent, in its
Permitted Discretion, determines as being appropriate to reflect any
impediments to the realization upon the Collateral consisting of Eligible
Accounts, Eligible Rental Equipment or Eligible Unbilled Accounts included in
the U.S. Borrowing Base or Canadian Borrowing Base (including claims that the
Agents determine will need to be satisfied in connection with the realization
upon such Collateral).


 


“Available
Canadian Facility Loan Commitment”:  as to any Canadian Facility
Lender at any time, an amount equal to the excess, if any, of (a) the lesser of
(i) the amount of such Canadian Facility Lender’s Canadian Facility Commitment
at such time and (ii) the sum of (A) the amount equal to such Canadian Facility
Lender’s Canadian Facility Commitment Percentage of the Canadian Borrowing Base
and (B) the amount equal to such Canadian Facility Lender’s Canadian Facility
Commitment Percentage of the U.S. Borrowing Base over (b) the


 


6

















 


sum of (i) the
aggregate unpaid principal amount at such time of all Canadian Facility
Revolving Credit Loans made by such Canadian Facility Lender (or any
Non-Canadian Affiliate of such Canadian Facility Lender), (ii) an amount equal
to such Canadian Facility Lender’s Canadian Facility Commitment Percentage of
the outstanding Canadian Facility L/C Obligations at such time, (iii) such
Canadian Facility Lender’s Canadian Facility Commitment Percentage of the sum
of (A) the aggregate unpaid principal amount at such time of all U.S. Facility
Revolving Credit Loans (including in the case of U.S. Facility Revolving Credit
Loans made in any Designated Foreign Currency, the Dollar Equivalent of the
aggregate unpaid principal amount thereof) and (B) an amount equal to the
aggregate unpaid principal amount at such time of all Swing Line Loans, provided
that for purposes of calculating Available Loan Commitments pursuant to
subsection 4.5(a) such amount under this clause (iii)(B) shall be zero, and
(iv) such Canadian Facility Lender’s Canadian Facility Revolving Credit
Commitment Percentage of the amount equal to the outstanding U.S. Facility L/C
Obligations at such time; collectively, as to all the Canadian Facility
Lenders, the “Available Canadian Facility Loan Commitments”.


 


“Available
Loan Commitment”:  without duplication of amounts calculated
thereunder, the Available Canadian Facility Loan Commitments and the Available
U.S. Facility Loan Commitments.


 


“Available U.S. Facility Loan Commitment:  as to any
U.S. Facility Lender at any time, an amount equal to the excess, if any, of (a)
the lesser of (i) the amount of such U.S. Facility Lender’s U.S. Facility
Commitment at such time and (ii) the amount equal to such U.S. Facility Lender’s
U.S. Facility Commitment Percentage of the U.S. Borrowing Base over (b)
the sum of (i) the aggregate unpaid principal amount at such time of all U.S.
Facility Revolving Credit Loans made by such U.S. Facility Lender (including in
the case of U.S. Facility Revolving Credit Loans made by such U.S. Facility
Lender in any Designated Foreign Currency, the Dollar Equivalent of the
aggregate unpaid principal amount thereof), (ii) the amount equal to such U.S.
Facility Lender’s U.S. Facility Commitment Percentage of the aggregate unpaid
principal amount at such time of all Swing Line Loans, provided that for
purposes of calculating Available Loan Commitments pursuant to subsection
4.5(a) such amount under this clause (ii) shall be zero, (iii) the amount equal
to such U.S. Facility Lender’s U.S. Facility Commitment Percentage of the
outstanding U.S. Facility L/C Obligations at such time and (iv) the amount
equal to such U.S. Facility Lender’s U.S. Facility Commitment Percentage of the
amount by which all Extensions of Credit to the Canadian Borrowers exceed the
Canadian Borrowing Base; collectively, as to all the U.S. Facility Lenders, the
“Available U.S. Facility Loan Commitments”.


 


“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).


 


7

















 


“Average
Life”:  at the date of determination
thereof, with respect to any Indebtedness, the quotient obtained by dividing
(a) the sum of the products of the number of years from such date of
determination to the dates of each successive scheduled principal payment of such
Indebtedness multiplied by the amount of such principal payment by (b) the sum
of all such principal payments.


 


“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.


 


“BA
Equivalent Loan”:  any Loan in Canadian Dollars bearing interest
at a rate determined by reference to the BA Rate in accordance with the
provisions of Article II.


 


“BA
Equivalent Loan Borrowing”:  any Borrowing comprised of BA
Equivalent Loans.


 


“BA Fee” means the amount calculated by multiplying the face
amount of each Bankers’ Acceptance by the rate for the BA Fee specified in the
Pricing Grid, and then multiplying the result by a fraction, the numerator of
which is the duration of its term on the basis of the actual number of days to
elapse from and including the date of acceptance of a Bankers’ Acceptance by
the Lender up to but excluding the maturity date of the Bankers’ Acceptance and
the denominator of which is the number of days in the calendar year in
question.


 


“BA Proceeds” means, in respect of any Bankers’ Acceptance, an
amount calculated on the applicable Borrowing Date which is (rounded to the
nearest full cent, with one half of one cent being rounded up) equal to the
face amount of such Bankers’ Acceptance multiplied by the price, where the
price is calculated by dividing one by the sum of one plus the product of (i)
the BA Rate applicable thereto expressed as a decimal fraction multiplied by
(ii) a fraction, the numerator of which is the term of such Bankers’ Acceptance
and the denominator of which is 365, which calculated price will be rounded to
the nearest multiple of 0.001%.


 


“BA Rate”: with respect to an issue of Bankers’ Acceptances in
Canadian Dollars with the same maturity date, (a) for a Schedule I Lender, (i)
the rate of interest per annum equal to the rates applicable to Bankers’
Acceptances having an identical or comparable term as the proposed BA
Equivalent Loan or Bankers’ Acceptance displayed and identified as such on the
display referred to as the “CDOR Page” (or any display substituted therefor) of
Reuter Monitor Money Rates Service as at or about 10:00 A.M. of such day (or,
if such day is not a Business Day, as of 10:00 A.M. on the immediately
preceding Business Day), or, (ii) if such rates do not appear on the CDOR Page
at such time and on such date, the rate for such date will be the annual
discount rate (rounded upward to the nearest whole multiple of 1/100 of 1%) as
of 10:00 A.M. on such day at which such Lender is then offering to purchase
Bankers’ Acceptances accepted by it having such specified term (or a term as
closely as possible comparable to such specified term), and (b) for a Lender
which is not a Schedule I Lender, the lesser of (i) the arithmetic average of
the annual discount rates for Bankers’ Acceptances for such term quoted by such
Lender at or about 10:00 A.M. and (ii) the annual discount rate applicable to
Bankers’ 


 


8

















 


Acceptances as determined for
the Schedule I Lender in (a) above for the same Bankers’ Acceptances issue plus
10 basis points; and


 


“Bankers’ Acceptance”
and “B/A”:  a bill of exchange within the meaning of the Bills of Exchange Act (Canada), including a depository bill
issued in accordance with the Depository Bills and Notes
Act (Canada), denominated in Canadian Dollars, drawn by the Canadian
Borrowers and accepted by a Canadian Facility Lender in accordance herewith and
includes a Discount Note.


 


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


 


“Blocked
Accounts”:  as defined in subsection 4.16(c).


 


“Blocked
Account Agreement”:  as defined in subsection 4.16(c).


 


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


 


“Borrowers”:  as
defined in the Preamble hereto.


 


“Borrowing”:  the
borrowing of one Type of Loan of a single Tranche by either the U.S. Borrowers
(on a joint and several basis) or the Canadian Borrowers (on a joint and
several basis), from all the Lenders having Commitments of the respective
Tranche on a given date (or resulting from a conversion or conversions on such
date) having in the case of Eurocurrency Loans and BA Equivalent Loans the same
Interest Period.


 


“Borrowing
Base Certificate”:  as defined in subsection 7.2(f).


 


“Borrowing
Date”:  any Business Day specified in a notice pursuant to
subsection 2.2, 2.4, 2.7 or 3.2 as a date on which HERC, the Parent Borrower or
any other 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 Loans made by
a Canadian Lender and Letters of Credit issued by an Issuing Lender not located
in the City of New York, the location of such Canadian Lender or 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, in the case of
any Eurocurrency Loan in Dollars, any Business Day on which dealings in Dollars
between banks may be carried on in London, England and New York, New York and,
in the case of any Eurocurrency Loan in any Designated Foreign Currency, a day
on which dealings in such Designated Foreign Currency between banks may be carried
on in London, England, New York, New York and the principal financial center of
such Designated Foreign Currency as set forth on Schedule B; 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.


 


9

















 


“Canadian
Agent”:  as defined in the Preamble.


 


“Canadian
Blocked Account”:  as defined in subsection 4.16(c).


 


“Canadian
Borrower Unpaid Drawing”:  drawings on Canadian Facility Letters
of Credit that have not been reimbursed by the applicable Canadian Borrower.


 


“Canadian
Borrowers”:  Matthews Equipment Limited and Western Shut-Down
(1995) Limited, together with their respective successors and assigns.


 


“Canadian
Borrowing Base”:  as of any date of determination, the result of,
in each case using the Dollar Equivalent of all amounts in Canadian Dollars:


 


(a)           85% of the amount of Eligible Canadian Accounts, plus


 


(b)           50% of the amount of Eligible Unbilled Canadian
Accounts (not to exceed 50% of the amount calculated under clause (a) above),
plus


 


(c)           the lesser of:


 


(i)            80% times the then extant net book value of the
Eligible Canadian Rental Equipment, and


 


(ii)           80% times the then extant Net Orderly Liquidation
Value of the Eligible Canadian Rental Equipment, minus


 


(d)           the amount of all Availability Reserves related to the
Canadian Facility.


 


“Canadian
Collateral Agent”:  as defined in the Preamble.


 


“Canadian
Dollars”:  the lawful currency of Canada, as in effect from time
to time.


 


“Canadian
Extender of Credit”: as defined in Section 4.15.


 


“Canadian
Facility”:  the credit facility available to the Canadian
Borrowers hereunder.


 


“Canadian Facility
Commitment”:  with respect to each Canadian Facility Lender, the
commitment of such Canadian Facility Lender hereunder to make Extensions of
Credit to the Borrowers in the amount set forth opposite its name on Schedule A
hereto or as may subsequently be set forth in the Register from time to time.


 


“Canadian
Facility Commitment Percentage”:  of any Canadian Facility Lender
at any time shall be that percentage which is equal to a fraction (expressed as
a percentage) the numerator of which is the Canadian Facility Commitment of
such Canadian Lender at such time and the denominator of which is the Total
Canadian Facility Commitment at such time, provided that if any such
determination is to be made after the Total Canadian Facility Commitment (and
the related Canadian Facility Commitments of the Lenders) has (or have)
terminated, the


 


10

















 


determination
of such percentages shall be made immediately before giving effect to such
termination.


 


“Canadian
Facility Issuing Lender”:  as the context may require, (i) DBCB
or (ii) any Canadian Facility Lender (and/or any Affiliate of such
Canadian Facility Lender designated by it that is a Canadian Facility Lender)
which, at the request of a Canadian Borrower and with the consent of the
Canadian Agent, agrees, in such Canadian Lender’s (or Affiliate’s) sole
discretion, to also become a Canadian Facility Issuing Lender for the purpose
of issuing Canadian Facility Letters of Credit (including Existing Letters of
Credit).


 


“Canadian
Facility 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 Canadian Facility Letters of Credit and (b) the aggregate amount of
drawings under Canadian Facility Letters of Credit which have not then been
reimbursed pursuant to subsection 3.5(a).


 


“Canadian
Facility L/C Participants”:  the Canadian Facility Lenders
(including any Non-Canadian Affiliate, as applicable).


 


“Canadian
Facility Letters of Credit”:  Letters of Credit (including
Existing Letters of Credit) issued by the Canadian Facility Issuing Lender to,
or for the account of, the Borrowers, pursuant to subsection 3.1.


 


“Canadian
Facility Lender”:  each Lender which has a Canadian Facility
Commitment (without giving effect to any termination of the Total Canadian
Facility Commitment if there are any outstanding Canadian Facility L/C
Obligations) or which has (or has any Non-Canadian Affiliate which has) any
outstanding Canadian Facility Revolving Credit Loans (or a Canadian Facility
Commitment Percentage in any then outstanding Canadian Facility L/C
Obligations).  Unless the context
otherwise requires, each reference in this Agreement to a Canadian Facility
Lender includes each Canadian Facility Lender and shall include references to
any Affiliate of any such Lender (including any Non-Canadian Affiliate, as
applicable) which is acting as a Canadian Facility Lender.


 


“Canadian
Facility Revolving Credit Loan”:  as defined in subsection
2.1(b).


 


“Canadian Guarantee
and Collateral Agreement”:  the Canadian Guarantee and Collateral
Agreement delivered to the Canadian Collateral Agent as of the date hereof,
substantially in the form of Exhibit B-2, as the same may be amended,
supplemented, waived or otherwise modified from time to time.


 


“Canadian
Lender”:  (i) each Canadian Facility Lender that is a Canadian
Resident listed on Schedule A or the Subsidiary or Affiliate of such Canadian
Facility Lender that is a Canadian Resident and that is a Lender listed on Schedule
A, and (ii) each additional Person that becomes a Canadian Facility Lender
party hereto in accordance with the provisions hereof that is a Canadian
Resident.  A Canadian Lender shall cease
to be a “Canadian Lender” when it has assigned all of its Canadian Facility
Commitment in accordance with subsection 11.6 (or its related Canadian Facility
Lender has assigned all of its Canadian Facility Commitment pursuant to
subsection 11.6).  For purposes of this
Agreement, the term “Lender” includes each Canadian Lender unless the context
otherwise requires.


 


11

















 


“Canadian
Loan Parties”:  the Canadian Borrowers and each Canadian
Subsidiary Guarantor.


 


“Canadian
Prime Rate”:  the greater of (a) rate of interest publicly
announced from time to time by Deutsche Bank AG, Canada Branch as its reference
rate of interest for loans made in Canadian Dollars to Canadian customers and
designed as its “prime” rate and (b) the rate of interest per annum equal to
the average annual yield rate for one-month Canadian Dollar bankers’
acceptances (expressed for such purposes as a yearly rate per annum) which is
shown on the “CDOR Page” (or any substitute) at 10:00 A.M. (Toronto time) on
such day (or if not a Business Day, the preceding Business Day), plus 0.75% per
annum.  Any change in the Canadian Prime
Rate, due to a change in Deutsche Bank AG, Canada Branch’s prime rate or base
rate, as applicable, shall be effective on the effective date of such change in
Deutsche Bank AG, Canada Branch’s prime rate or base rate, as applicable.


 


“Canadian
Priority Payables”:  at any time, with respect to the Canadian
Borrowers and Canadian Subsidiary Guarantors:


 


(a)           the amount past due and owing by such Person, or the
accrued amount for which such Person has an obligation to remit to a
Governmental Authority or other Person pursuant to any applicable law, rule or
regulation, in respect of (i) pension fund obligations; (ii) unemployment
insurance; (iii) goods and services taxes, sales taxes, employee income taxes
and other taxes payable or to be remitted or withheld; (iv) workers’
compensation; (v) vacation pay; and (vi) other like charges and demands; in
each case, in respect of which any Governmental Authority or other Person may
claim a security interest, lien, trust or other claim ranking or capable of
ranking in priority to or pari passu with
one or more of the Liens granted in the Security Documents; and


 


(b)           the aggregate amount of any other liabilities of such
Person (i) in respect of which a trust has been or may be imposed on any
Collateral to provide for payment or (ii) which are secured by a security
interest, pledge, lien, charge, right or claim on any Collateral, in each case,
pursuant to any applicable law, rule or regulation and which trust, security
interest, pledge, lien, charge, right or claim ranks or is capable of ranking
in priority to or pari passu with one or more of
the Liens granted in the Security Documents.


 


“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


 


12

















 


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;


 


(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.


 


“Canadian
Resident”:  (a) a person resident in Canada for purposes of the Income Tax Act (Canada), (b) an authorized foreign bank
which at all times holds all of its interest in any


 


13

















 


obligations
owed by the Canadian Borrowers hereunder in the course of its Canadian banking
business for purposes of subsection 212(13.3) of the Income Tax
Act (Canada) or (c) any Lender with respect to which payments
to such Lender of interest, fees, commission or any other amount payable by any
Canadian Borrower under the Loan Documents are not subject to any Non-Excluded
Taxes imposed by Canada or any political subdivision or taxing authority
thereof or therein and that is able to establish to the satisfaction of the
Canadian Agent and the Canadian Borrowers that, based on applicable law in
effect on the date such Lender becomes a Lender, any such payments to or for
the benefit of such Lender are not subject to the withholding or deduction of
any such Non-Excluded Taxes.


 


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


 


“Canadian
Security Documents”:  the collective reference to the Canadian
Guarantee and Collateral Agreement and all other similar security documents
hereafter delivered to the Collateral Agent or the Canadian Collateral Agent
granting or perfecting a Lien on any asset or assets of any Person to secure the
obligations and liabilities of the Canadian 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 or the Canadian
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.


 


“Canadian
Subsidiary”:  each Subsidiary of Parent Borrower that is
incorporated or organized under the laws of Canada or any province thereof.


 


“Canadian
Subsidiary Guarantor”:  each Canadian Subsidiary of any Canadian
Borrower which executes and delivers the Canadian Guarantee and Collateral
Agreement, in each case, unless and until such time as the respective Canadian
Subsidiary Guarantor ceases to constitute a Canadian Subsidiary of the Parent
Borrower or is released from all of its obligations under the Canadian
Guarantee and Collateral Agreement in accordance with the terms and provisions
thereof.


 


“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.


 


14

















 


“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 Canadian 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 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 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


 


15

















 


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


 


“Chief
Executive Office”:  with respect to any Person, the location from
which such Person manages the main part of its business operations or other
affairs.


 


“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.


 


“Collection
Bank”:  as defined in subsection 4.16(c)


 


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


 


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


 


“Commitment”:  as
to any Lender, its U.S. Facility Commitment and its Canadian Facility
Commitment. The original amount of the aggregate Commitments of the Revolving
Credit Lenders is $1,600,000,000.


 


“Commitment
Fee Rate”:  during the period from the Closing Date until the
first Adjustment Date, 0.50% per annum. 
Thereafter, the “Commitment Fee Rate” will be as set forth on the
applicable Pricing Grid which corresponds to the utilization levels set forth
therein.


 


16

















 


“Commitment
Increase”:  as defined in subsection 2.9.


 


“Commitment
Increase Date”:  as defined in subsection 2.9.


 


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


 


“Commitment
Percentage”:  of any Lender at any time shall be that percentage
which is equal to a fraction (expressed as a percentage) the numerator of which
is the Commitment of such Revolving Credit Lender at such time and the
denominator of which is the Total Commitment at such time, provided that
if any such determination is to be made after the Total Commitment (and the
related Commitments of the Revolving Credit Lenders) has terminated, the
determination of such percentages shall be made immediately before giving effect
to such termination.


 


“Commitment
Period”:  the period from and including the Closing Date to but
not including the Termination Date, or such earlier date as the Commitments
shall terminate as provided herein.


 


“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
Commitment or (c) be designated if such designation would otherwise increase
the costs of any Facility to any Borrower.


 


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


 


“Consolidated
Fixed Charge Coverage Ratio”:  (a) as of the last day of any
period, the ratio of (a) (i) EBITDA for such period minus (ii) the sum
of (A) the unfinanced portion of all Capital Expenditures other than Capital
Expenditures made for purchases of Rental


 


17

















 


Car Vehicles
and (B) all Capital Expenditures made for purchases of Unfinanced Vehicles
(excluding any Capital Expenditure made in an amount equal to all or part of
the proceeds, applied within twelve months of receipt thereof, of (x) any
casualty insurance, condemnation or eminent domain or (y) any sale of assets
(other than Rental Equipment)) of the Parent Borrower and its consolidated
Subsidiaries (other than any Special Purpose Subsidiaries) during such period,
to (b) the sum, without duplication, of (i) Debt Service Charges payable in
cash by the Parent Borrower and its consolidated Subsidiaries (other than any
Special Purpose Subsidiary) during such period plus (ii) federal,
state and foreign income taxes paid in cash by the Parent Borrower and its
consolidated Subsidiaries (other than Special Purpose Subsidiaries) (net of
refunds received) for the period of four full fiscal quarters ending on such
date plus (iii) cash paid by the Parent Borrower during the relevant
period pursuant to any of clauses (d), (f) and (g) of subsection 8.7; provided
that upon the date on which any Liquidity Event first occurs, the Consolidated
Fixed Charge Coverage Ratio shall be calculated as of end of the most recently
completed fiscal quarter of the Parent Borrower for which financial statements
shall have been required to be delivered under subsection 7.1(a) or (b).


 


“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 Fixed Charge Coverage Ratio 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
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, or the period of four full fiscal quarters most
recently ended prior to such date for which financial statements of the Parent
Borrower have been required to be delivered under subsection 7.1(a) or (b),
respectively; provided that upon the date on which any Liquidity Event
first occurs, the Consolidated Leverage Ratio shall be calculated as of the end
of the most recently completed fiscal quarter of


 


 


18

















 


the Parent
Borrower for which financial statements shall have been required to be
delivered under subsection 7.1(a) or (b).


 


“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.


 


 “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


 


19

















 


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).


 


“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
Card Notification”:  as defined in subsection 4.16(c).


 


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


 


“DBCB”:  Deutsche
Bank A.G., Canada Branch.


 


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


 


“DBNY
Account”:  as defined in subsection 4.16(d).


 


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


 


“DDA
Notification”:  as defined in subsection 4.16(c).


 


“DDAs”:  any
checking or other demand deposit account maintained by the Loan Parties (other
than any such account the proceeds of which are swept into any HERC LKE
Account).  All funds in such DDAs shall
be conclusively presumed to be Collateral and proceeds of Collateral and the
Agents and the Lenders shall have no duty to inquire as to the source of the
amounts on deposit in the DDAs, subject to the Security Documents and the
Intercreditor Agreement.


 


“Debt
Financing”:  the debt financing transactions contemplated under
(a) the Loan Documents, (b) the Senior Term Loans 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.


 


“Debt
Service Charges”:  for any period, the sum of (a) Consolidated
Interest Expense (less Consolidated Vehicle Interest Expense), plus (b)
principal payments made or


 


20

















 


required to be
made (after giving effect to any prepayments paid in cash that reduce the
amount of such required payments) on account of Restricted Indebtedness (other
than Indebtedness directly or indirectly incurred to finance or refinance the
acquisition of, or secured by, Rental Car Vehicles and/or related rights and/or
assets) of the Parent Borrower and its consolidated Subsidiaries, including the
full amount of any non-recourse Indebtedness (excluding the obligations
hereunder, payments to reimburse any drawings under any commercial letters of
credit, and any payments on Indebtedness required to be made on the final
maturity date thereof, but including any obligations in respect of Financing
Leases) for such period, plus (c) scheduled mandatory payments on account of
Disqualified Capital Stock of the Parent Borrower and its consolidated
Subsidiaries (other than any Special Purpose Subsidiary) (whether in the nature
of dividends, redemption, repurchase or otherwise) required to be made during
such period, in each case determined on a consolidated basis in accordance with
GAAP.


 


“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).


 


“Deposit
Account”:  any deposit account (as such term is defined in
Article 9 of the UCC or (to the extent governed thereby) any similar provision
of the PPSA).


 


“Deposit
Bank”:  Deutsche Bank AG, New York Branch, or any other Affiliate
of DBNY designated by DBNY to act in such capacity.


 


“Designated
Foreign Currencies”:  in the case of U.S. Facility Revolving
Credit Loans or Letters of Credit, Euro and Pounds Sterling.


 


“Discount Note”: a promissory note denominated in Canadian
Dollars, issued by the applicable Canadian Borrower to a Lender issuing BA
Equivalent Loans to evidence a BA Equivalent Loan.


 


“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 constitute Disqualified Capital Stock but
for provisions thereof giving holders thereof (or the


 


21

















 


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 the principal amount of any
Eurocurrency Loan made or outstanding in any Designated Foreign Currency or any
amount in respect of any Letter of Credit denominated in any Designated Foreign
Currency, the principal amount of any Canadian Facility Revolving Credit Loan
or the amount of any Canadian Facility Letters of Credit 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.


 


“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.


 


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


 


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


 


“Dominion
Event”:  the determination by the Administrative Agent that
Available Loan Commitments on any day are less than $160,000,000; provided
that the Administrative Agent has notified the Parent Borrower thereof; and
provided, further, that if the occurrence of a Dominion Event shall be due
solely to a fluctuation in currency exchange rates occurring within the two
Business Day period immediately preceding such occurrence, and one or more of
the Borrowers, within two Business Days following receipt of such notice from
the Administrative Agent, repays Loans in an amount such that the Available
Loan Commitments following such payment exceeds $160,000,000, a Dominion Event
shall be deemed not to have occurred. 
The occurrence of a Dominion Event shall be deemed continuing
notwithstanding that Available Loan Commitments may thereafter exceed the
amount set forth in the preceding sentence unless and until the Available Loan
Commitments exceed $175,000,000 for 30 consecutive days, in which event a
Dominion Event shall no longer be deemed to be continuing; provided that
a Dominion Event may not be cured as contemplated by this sentence more than
two times in any four fiscal quarter period.


 


“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


 


22

















 


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 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.


 


23

















 


“Eligible
Accounts”:  those Accounts created by a Loan Party in the
ordinary course of its business, arising out of its sale, lease or rental of
goods or rendition of services, that comply in all material respects with each
of the representations and warranties respecting Eligible Accounts made in the
Loan Documents, and that are not excluded as ineligible by virtue of one or
more of the excluding criteria set forth below. 
In determining the amount to be included, Eligible Accounts shall be
calculated net of customer deposits and unapplied cash.  Eligible Accounts shall not include the
following:


 


(a)           Accounts that the Account Debtor has failed to pay
within 90 days of original invoice date, provided that, notwithstanding
the foregoing, up to $15,000,000 of Accounts on extended terms shall not be
deemed ineligible under this clause so long as the Account Debtor has not
failed to pay within 120 days of the original invoice date,


 


(b)           Accounts owed by an Account Debtor (or its Affiliates)
where 50% or more of the total amount of all Accounts owed by that Account
Debtor (or its Affiliates) are deemed ineligible under clause (a) above,


 


(c)           Without duplication, the amount of any credit balances
greater than 90 days past their invoice date with respect to any Account,


 


(d)           Accounts with respect to which the Account Debtor is
(i) an Affiliate of any Loan Party (other than a portfolio company of any of the
Equity Investors or their respective Affiliates) or (ii) an employee or agent
of any Loan Party or any Affiliate of such Loan Party (other than a portfolio
company of the Equity Investors or their respective Affiliates),


 


(e)           Accounts arising in a transaction wherein goods are
placed on consignment or are sold pursuant to a guaranteed sale, a sale or
return, a sale on approval, a bill and hold, or any other terms by reason of
which the payment by the Account Debtor may be conditional (other than, for the
avoidance of doubt, a rental or lease basis),


 


(f)            Accounts that are not payable in Dollars; provided
that Eligible Canadian Accounts may be payable in Canadian Dollars,


 


(g)           Accounts with respect to which the Account Debtor is a
Person other than a Governmental Authority unless:  (i) the Account
Debtor (A) is a natural person with a billing address in the United States or
Canada, (B) maintains its Chief Executive Office in the United States or
Canada, or (C) is organized under the laws of the United States, Canada or any
state, territory, province or subdivision thereof; or (ii) (A) the Account is
supported by an irrevocable letter of credit satisfactory to the Administrative
Agent, in its Permitted Discretion (as to form, substance, and issuer or domestic
confirming bank), that has been delivered to the Administrative Agent and is
directly drawable by the Administrative Agent, or (B) the Account is covered by
credit insurance in form, substance, and amount, and by an insurer,
satisfactory to the Administrative Agent, in its Permitted Discretion,


 


(h)           Accounts with respect to which the Account Debtor is
the government of any country or sovereign state other than the United States
and Canada, or of any state, province, municipality, or other political subdivision
thereof, or of any department, agency, public corporation, or other
instrumentality thereof, unless (i) the Account is supported by an


 


24

















 


irrevocable
letter of credit satisfactory to the Administrative Agent, in its Permitted
Discretion (as to form, substance, and issuer or domestic confirming bank) that
has been delivered to the Administrative Agent and is directly drawable by the
Administrative Agent, or (ii) the Account is covered by credit insurance in
form, substance, and amount, and by an insurer, satisfactory to the
Administrative Agent, in its Permitted Discretion,


 


(i)            Accounts with respect to which the Account Debtor is
(i) the federal government of Canada or any department, agency or instrumentality
of Canada or (ii) the federal government of the United States or any
department, agency or instrumentality of the United States or any department,
agency, or instrumentality of the United States (exclusive, however, of
Accounts with respect to which the applicable Loan Party has complied, to the
reasonable satisfaction of the Administrative Agent, in the case of clause (i)
with the Financial Administration Act (Canada), and, in the case of clause
(ii), the Assignment of Claims Act of 1940 (31 USC Section 3727)),


 


(j)            (i) Accounts with respect to which the Account
Debtor is a creditor of any Loan Party or any Subsidiary of a Loan Party, has
or has asserted a right of setoff, or has disputed its obligation to pay all or
any portion of the Account, to the extent of such claim, right of setoff, or
dispute, (ii) Accounts which are subject to a rebate that has been earned
but not taken or a chargeback, to the extent of such rebate or chargeback, and
(iii) Accounts that comprise service charges or finance charges,


 


(k)           Accounts with respect to an Account Debtor whose total
obligations owing to Borrowers exceed 10% of all Eligible Accounts, to the
extent of the obligations owing by such Account Debtor in excess of such
percentage; provided, however, that, in each case, the amount of
Eligible Accounts that are excluded because they exceed the foregoing
percentage shall be determined by the Administrative Agent based on all of the
otherwise Eligible Accounts prior to giving effect to any eliminations based
upon the foregoing concentration limit,


 


(l)            Accounts with respect to which the Account Debtor is
Insolvent, is subject to a proceeding related thereto, has gone out of
business, or as to which a Loan Party has received notice of an imminent
proceeding related to such Account Debtor being or alleged to be Insolvent or
which proceeding is reasonably likely to result in a material impairment of the
financial condition of such Account Debtor,


 


(m)          Accounts with respect to which the Account Debtor is
located in a state, province or jurisdiction (e.g., New Jersey, Minnesota, and
West Virginia) that requires, as a condition to access to the courts of such
jurisdiction, that a creditor qualify to transact business, file a business
activities report or other report or form, or take one or more other actions,
unless the applicable Loan Party has so qualified, filed such reports or forms,
or taken such actions (and, in each case, paid any required fees or other
charges).  The foregoing shall not apply
to the extent that the applicable Loan Party may qualify subsequently as a
foreign entity authorized to transact business in such state or jurisdiction
and gain access to such courts, without incurring any cost or penalty viewed by
the Administrative Agent, in its Permitted Discretion, to be material in
amount, and such later qualification cures any access to such courts to enforce
payment of such Account (including, for greater certainty, the requirement for
a creditor to extra-provincially register in a province or territory of Canada
for such purposes),


 


25

















 


(n)           Accounts, the collection of which the Administrative
Agent, in its Permitted Discretion, believes to be doubtful by reason of the
Account Debtor’s financial condition, upon notice thereof to the Parent
Borrower,


 


(o)           Accounts that are not subject to a valid and perfected
first priority Lien in favor of the Collateral Agent or the Canadian Collateral
Agent, as applicable, pursuant to a Security Document (as and to the extent provided
therein (it being agreed that in no event shall any Excluded Assets be deemed
to be Eligible Accounts hereunder)),


 


(p)           Accounts with respect to which (i) the goods giving
rise to such Account have not been shipped and billed to the Account Debtor, or
(ii) the services giving rise to such Account have not been performed and
billed to the Account Debtor, or


 


(q)           Accounts that represent the right to receive progress
payments or other advance billings that are due prior to the completion of
performance by the applicable Loan Party of the subject contract for goods or
services.


 


“Eligible
Canadian Accounts”:  the Eligible Accounts owned by the Canadian
Borrowers and the Canadian Subsidiary Guarantors.


 


“Eligible
Canadian Rental Equipment”:  the Eligible Rental Equipment owned
by the Canadian Borrowers and the Canadian Subsidiary Guarantors.


 


“Eligible
Rental Equipment”:  Rental Equipment of the Loan Parties held for
renting in the ordinary course of the Loan Parties’ business, that complies in
all material respects with each of the representations and warranties
respecting Eligible Rental Equipment made in the Loan Documents, and that is
not excluded as ineligible by virtue of one or more of the excluding criteria
set forth below.  In determining the amount
to be so included, Rental Equipment shall be valued at the lower of cost or
market on a basis consistent with the Loan Parties’ historical accounting
practices and shall be net of any unrecorded rebates.  An item of Rental Equipment shall not be
included in Eligible Rental Equipment if:


 


(a)           a Loan Party does not have good and valid title
thereto,


 


(b)           it is not either (i) located at one of the
locations in the United States or Canada set forth on Schedule D, as the same
may be modified from time to time by notice to the Administrative Agent, or
(ii) on lease with a customer in the ordinary course of business and
located in the United States or Canada,


 


(c)           it is not subject to a valid and perfected first
priority Lien in favor of the Collateral Agent or the Canadian Collateral
Agent, as applicable, pursuant to a Security Document; (as and to the extent
provided therein (it being agreed that in no event shall any Excluded Assets be
deemed to be Eligible Rental Equipment hereunder)); provided that this
clause (c) will not apply to Rental Equipment represented by a certificate of
title (such Rental Equipment being subject to clause (h) below),


 


(d)           it consists of goods rejected by a Loan Party’s
customers,


 


26

















 


(e)           it consists of goods that are obsolete, unmerchantable
or slow moving, work-in-progress, raw materials, or goods that constitute spare
parts, packaging and shipping materials, supplies used or consumed in a Loan
Party’s business, or bill and hold goods,


 


(f)            it is damaged or defective, provided that,
notwithstanding the foregoing, up to $20,000,000 in aggregate net book value of
Rental Equipment shall not be deemed ineligible under this clause so long as
such damaged or defective Rental Equipment shall be repairable,


 


(g)           it is not available to rent to customers of a Loan
Party in the ordinary course of business, or


 


(h)           it is U.S. Rental Equipment represented by a
certificate of title unless (i) during the 120-day period following the
Closing Date, a Loan Party has delivered the certificate of title for such
Rental Equipment to the Collateral Agent (or its agents) and (ii) for all
periods thereafter, a Loan Party has caused the certificate of title for such
Rental Equipment to be registered with the applicable Governmental Authority
showing “Deutsche Bank AG, New York Branch, as Collateral Agent” or “Deutsche
Bank AG, Canada Branch, as Canadian Collateral Agent”, as applicable, (or a
trustee or agent reasonably acceptable to the Collateral Agent or Canadian
Collateral Agent, as applicable) as the sole lienholder thereon, such that such
Rental Equipment is subject to a valid and perfected first priority Lien in
favor of the Collateral Agent or the Canadian Collateral Agent, as applicable.


 


“Eligible
Unbilled Accounts”:  shall mean Accounts (which are Eligible
Accounts except for their failure to comply with clause (p) of the definition
of Eligible Accounts) (a) which have not been billed but for which
services have been rendered, (b) which have not been billed solely because
either (i) the services were rendered pursuant to a customer agreement which
provides for monthly billing at a date other than month-end, or (ii) the
services were rendered pursuant to a customer agreement which provides for
billing at the completion of the rental term, and such rental term has not yet
ended, and (c) which shall be billed not more than 30 days after such Account
is first included on the Borrowing Base Certificate or otherwise reported to
the Administrative Agent as Collateral.


 


“Eligible
Unbilled Canadian Accounts”:  the Eligible Unbilled Accounts
owned by the Canadian Borrowers and the Canadian Subsidiary Guarantors.


 


“Eligible
Unbilled U.S. Accounts”:  the Eligible Unbilled Accounts owned by
the U.S. Borrowers and the U.S. Subsidiary Guarantors.


 


“Eligible
U.S. Accounts”:  the Eligible Accounts owned by the U.S.
Borrowers and the U.S. Subsidiary Guarantors.


 


“Eligible
U.S. Rental Equipment”:  the Eligible Rental Equipment owned by
the U.S. Borrowers and the U.S. Subsidiary Guarantors.


 


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


 


27

















 


“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.


 


“Environmental
Laws”:  any and all U.S., Canadian or foreign federal, state,
provincial, territorial, foreign, local or municipal laws, rules, orders,
enforceable guidelines and 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.


 


28

















 


“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.


 


“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 or (in the case of Loans
made in a Designated Foreign Currency) in the applicable Designated Foreign
Currency 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 or in the applicable Designated Foreign Currency 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 or such Designated Foreign Currency, as the case may be, 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 (or
such other page on which any Designated Foreign Currency then appears) 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 or deposits in
any Designated Foreign Currency 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.


 


29

















 


“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 (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).


 


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


 


“Excluded
Assets”: as defined in the U.S. Guarantee and Collateral Agreement and the
Canadian Guarantee and Collateral Agreement.


 


“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 H.


 


“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


 


30

















 


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 2.4(d)(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 Commitments and the Extensions of Credit made thereunder and (b) any
other committed facility hereunder and the Extensions of Credit made
thereunder.


 


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


 


“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 Senior Term Loans
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.


 


31

















 


“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
Period”:  means each fiscal month of the Parent Borrower and its
Subsidiaries as described on Schedule E.


 


“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.


 


“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.


 


32

















 


“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.


 


“General
Intangibles”:  ”general intangibles” (as such term is defined in
Article 9 of the UCC or (to the extent governed thereby) any similar provision
of the PPSA), including payment intangibles, contract rights, rights to
payment, rights arising under common law, statutes, or regulations, choses or
things in action, goodwill, patents, trade names, trade secrets, trademarks,
servicemarks, copyrights, blueprints, drawings, purchase orders, customer
lists, monies due or recoverable from pension funds, route lists, rights to
payment and other rights under any royalty or licensing agreements,
infringement claims, computer programs, information contained on computer disks
or tapes, software, literature, reports, catalogs, insurance premium rebates,
tax refunds, and tax refund claims, and any and all supporting obligations in
respect thereof, and any other personal property other than Accounts, Deposit
Accounts, goods, Investment Property, and Negotiable Collateral.


 


“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
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, 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


 


33














 


(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, the U.S. Borrowers (solely with respect to the
obligations of the Canadian Borrowers hereunder and under each other Loan
Document) and each Subsidiary of the Parent Borrower (other than (a) any
Foreign Subsidiary (excluding any Canadian Subsidiary Guarantor), (b) any
Subsidiary of a Foreign Subsidiary (excluding any Canadian Subsidiary
Guarantor), (c) any Special Purpose Subsidiary, (d) Navigations Solutions and
(e) Hertz Vehicle Sales Corporation), which is from time to time party to the
U.S. Guarantee and Collateral Agreement or the Canadian Guarantee and
Collateral Agreement, as applicable; 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 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 proceeds related 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 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


 


34

















 


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
Canadian Facility Lender Exposure”:  of any Canadian Facility
Lender, at any time, the sum of (a) the aggregate principal amount of all
Canadian Facility Revolving Credit Loans made by such Canadian Facility Lender
and then outstanding and (b) the sum of such Canadian Facility Lender’s
Canadian Facility Commitment Percentage in each then outstanding Canadian
Facility Letter of Credit multiplied by the sum of the Stated Amount of the
respective Canadian Facility Letters of Credit and any Unpaid Drawings relating
thereto.


 


“Individual
Lender Exposure”:  of any Revolving Credit Lender, at any time,
the sum of such Lender’s (a) Individual U.S. Facility Lender Exposure and (b)
Individual Canadian Facility Lender Exposure.


 


“Individual
U.S. Facility Lender Exposure”:  of any U.S. Facility Lender, at
any time, the sum of (a) the aggregate principal amount of all U.S. Facility
Revolving Credit Loans made by such U.S. Facility Lender and then outstanding,
(b) the sum of such U.S. Facility Lender’s U.S. Facility Commitment Percentage
in each then outstanding U.S. Facility Letter of Credit multiplied by the sum
of the Stated Amount of the respective U.S. Facility Letters of Credit and any
Unpaid Drawings relating thereto and (c) such Revolving Credit Lender’s U.S.
Facility Commitment Percentage of the Swing Line Loans then outstanding.


 


“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.


 


35

















 


“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 Senior Term Facility,
and acknowledged by certain of the Loan Parties, as 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,
Bankers’ Acceptance or BA Equivalent Loan having an Interest Period of three
months or less, the last day of such Interest Period, and (c) as to any
Eurocurrency Loan, Bankers’ Acceptance or BA Equivalent 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”:  with respect to any Eurocurrency Loan or BA Equivalent
Loan:


 


(a)           initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurocurrency Loan, Bankers’ Acceptance or BA Equivalent
Loan and ending one, two, three or six months (or, if required pursuant to
subsections 2.1(a) or 2.1(b), one week) thereafter, as selected by the
applicable Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and


 


(b)           thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurocurrency Loan, Bankers’ Acceptance or BA Equivalent Loan
and ending one, two, three or six months (or if required pursuant to
subsections 2.1(a) or 2.1(b), one week) thereafter, as selected by the
applicable Borrower by irrevocable notice to the Administrative Agent or the
Canadian Agent, as applicable, not less than three Business Days prior to the
last day of the then current Interest Period with respect thereto;


 


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


 


(i)            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;


 


(ii)           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;


 


(iii)          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


 


36

















 


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


 


(iv)          the applicable Borrower
shall select Interest Periods so as not to require a scheduled payment of any
Eurocurrency Loan, Bankers’ Acceptance or BA Equivalent 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.


 


“Investment
Property”:  ”investment property” (as such term is defined in
Article 9 of the UCC) or (to the extent governed thereby) the PPSA, and any and
all supporting obligations in respect thereof.


 


“Investments”:  as
defined in subsection 8.9.


 


“Issuing
Lender”:  any Canadian Facility Issuing Lender and any U.S.
Facility Issuing Lender.


 


“Joinder
Agreement”:  as defined in subsection
2.9(b)(i).


 


“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 3.3.


 


“L/C
Obligations”:  the U.S. Facility L/C Obligations and the Canadian
Facility L/C Obligations.


 


“L/C
Participants”:  the U.S. Facility L/C Participants and the
Canadian Facility L/C Participants.


 


37

















 


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


 


“L/C
Reserve Account”:  as defined in subsection 4.17(c).


 


“Late-Tendered
Bonds”: any Long Dated Bonds 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.


 


“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.


 


“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 or the Canadian Agent, as applicable, and
the Borrowers, to make any Revolving Credit Loans, Swing Line Loans or Letters
of Credit available to any Borrower, 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 U.S. Facility Letters of Credit and
the Canadian Facility Letters of Credit.


 


“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).


 


“Liquidity
Event”:  the determination by the Administrative Agent that
Available Loan Commitments on any day are less than $200,000,000; provided that
the Administrative Agent has notified the Parent Borrower thereof; and
provided, further, that if the occurrence of a Liquidity Event shall be due
solely to a fluctuation in currency exchange rates occurring within the two
Business Day period immediately preceding such occurrence, and one or more of
the Borrowers, within two Business Days following receipt of such notice from
the Administrative


 


38

















 


Agent, repay
Loans in an amount such that the Available Loan Commitments following such payment
exceeds $200,000,000, a Liquidity Event shall be deemed not to have
occurred.  The occurrence of a Liquidity
Event shall be deemed continuing notwithstanding that Available Loan
Commitments may thereafter exceed the amount set forth in the preceding sentence
unless and until the Available Loan Commitments exceed $200,000,000 for 30
consecutive days, in which event a Liquidity Event shall no longer be deemed to
be continuing.


 


“Loan”:  a
Revolving Credit Loan or a Swing Line Loan, as the context shall require;
collectively, the “Loans”.


 


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


 


“Loan
Parties”:  CCMGC, the Parent Borrower, each Canadian Borrower and
each other 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 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.


 


“Mandatory
Revolving Credit Loan Borrowing”:  as defined in subsection
2.4(c).


 


“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 or with respect to
the Collateral comprising the Borrowing Base, in each case taken as a whole.


 


39

















 


“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”:  Merrill Lynch Capital Canada
Inc.


 


“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.


 


“MLGP”:  as
defined in the Recitals hereto.


 


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


 


“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.


 


40

















 


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


 


“Negotiable
Collateral”:  letters of credit, letter of credit rights,
instruments, promissory notes, drafts, documents, and chattel paper (including
electronic chattel paper and tangible chattel paper), and any and all
supporting obligations in respect thereof.


 


“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.


 


“Net
Orderly Liquidation Value”:  the orderly liquidation value (net
of costs and expenses estimated to be incurred in connection with such liquidation)
of the Loan Parties’ Rental Equipment that is estimated to be recoverable in an
orderly liquidation of such Rental Equipment expressed as a percentage of the
net book value thereof, such percentage to be as determined from time to time
by reference to the most recent Rental Equipment appraisal completed by a
qualified third-party appraisal company (approved by the Administrative Agent
in its Permitted Discretion) delivered to the Administrative Agent;


 


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


 


“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.


 


41

















 


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


 


“New York
Process Agent”:  as defined in subsection 11.13(b).


 


“Non-Canadian
Affiliate”: an Affiliate or office of a Canadian Facility Lender or
Canadian Facility Issuing Lender that is an entity (or office thereof) as shall
allow payments by any U.S. Borrower made under this Agreement and any Notes
with respect to any Extensions of Credit made to such U.S. Borrower by such
entity or office to be made without withholding of any Non-Excluded Taxes.


 


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


 


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


 


“Non BA Lender”: a Lender that cannot
or does not as a matter of policy issue Bankers’ Acceptances.


 


“North
American Subsidiaries”: the collective reference to the Canadian Borrowers,
the Canadian Subsidiary Guarantors and the Domestic Subsidiaries.


 


“Notes”:  the
collective reference to the Revolving Credit Notes, the Term Notes and the
Swing Line Note.


 


“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.


 


“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.


 


42

















 


“Payment
Conditions”:  at any time of determination, means that (a) no
Default or Event of Default then exists or would arise as a result of making
the subject Specified Payment, (b) Available Loan Commitments are no less than
$250,000,000 immediately after giving effect to the making of such Specified
Payment, (c) immediately after giving effect to the making of such Specified
Payment, the Parent Borrower is in compliance with the covenants set forth in
subsections 8.1(a) and 8.1(b) as of the end of the most recently ended four
fiscal quarter period after giving pro forma effect to such Specified Payment
as if such Specified Payment (if applicable to such calculation) had been made
as of the first day of such period, whether or not such covenants are otherwise
then applicable to the Parent Borrower under such subsections at such time and
(d) if the aggregate amount of Specified Payments is greater than $50,000,000
(after giving effect to the then proposed Specified Payment) in the 30-day
period preceding (and including) the date of the proposed payment, prior to
making the proposed Specified Payment or any further Specified Payments, the
Borrowers shall have delivered projections to the Administrative Agent
reasonably satisfactory to the Administrative Agent demonstrating that the
projected average Available Revolving Credit Commitments on the last day of
each fiscal month during the six-month period immediately succeeding any such
Specified Payment (as determined in good faith by the Parent Borrower and
certified by a Responsible Officer) shall be no less than the amount specified
in clause (b) of this definition that is applicable to the type of Specified
Payment that is proposed to be made.


 


“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
Discretion”:  the commercially reasonable judgment of the
Administrative Agent or the Canadian Agent, as applicable, exercised in good
faith in accordance with customary business practices for comparable
asset-based lending transactions, as to any factor which such Agent reasonably
determines:  (a) will or reasonably could be expected to adversely
affect in any material respect the value of any Eligible Rental Equipment,
Eligible Accounts or Eligible Unbilled Accounts, the enforceability or priority
of the applicable Agent’s Liens thereon or the amount which any Agent, the
Lenders or any Issuing Lender would be likely to receive (after giving
consideration to delays in payment and costs of enforcement) in the liquidation
of such Eligible Rental Equipment, Eligible Accounts or Eligible Unbilled
Accounts or (b) is evidence that any collateral report or financial information
delivered to such Agent by any Person on behalf of the applicable Borrower is
incomplete, inaccurate or misleading in any material respect.  In exercising such judgment, such Agent may
consider, without duplication, such factors already included in or tested by
the definition of Eligible Rental Equipment, Eligible Accounts or Eligible
Unbilled Accounts, as well as any of the following:  (i) changes
after the Closing Date in any material respect in demand for, pricing of, or
product mix of Rental Equipment; (ii) changes after the Closing Date in any
material respect in any concentration of risk with respect to Accounts; and
(iii) any other factors arising after the Closing Date that change in any
material respect the credit risk of lending to the Borrower on the security of
the Eligible Rental Equipment, Eligible Accounts or Eligible Unbilled Accounts.


 


43

















 


“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.


 


“PPSA”:  the
Personal Property Security Act (Ontario)
(or any successor statute) or similar legislation of any other Canadian
jurisdiction, including the Civil Code of Québec,
the laws of which are required by such legislation to be applied in connection
with the issue, perfection, enforcement, opposability, validity or effect of
security interests.


 


“Pricing
Grid”: with respect to Revolving Credit Loans and Swing Line Loans:


 


	
  Consolidated Leverage Ratio

  	
   

  	
  Applicable

  Margin for

  ABR Rate

  ABR Loans

  	
   

  	
  Applicable

  Margin for

  Canadian

  Prime Rate

  ABR Loans

  	
   

  	
  Applicable

  Margin for

  Eurocurrency

  Loans

  	
   

  	
  Applicable

  Margin for

  BA

  Equivalent

  Loans and

  B/A Fees

  	
   

  
	
  Greater than
  5.00:1.00

  	
   

  	
  1.25

  	
  %

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  	
  2.25

  	
  %

  
	
  Greater than
  4.25:1.00, but less than or equal to 5.00:1.00

  	
   

  	
  1.00

  	
  %

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  	
  2.00

  	
  %

  
	
  Greater than
  3.50:1.00, but less than or equal to 4.25:1.00

  	
   

  	
  0.75

  	
  %

  	
  0.75

  	
  %

  	
  1.75

  	
  %

  	
  1.75

  	
  %

  
	
  Less than or
  equal to 3.50:1.00

  	
   

  	
  0.50

  	
  %

  	
  0.50

  	
  %

  	
  1.50

  	
  %

  	
  1.50

  	
  %

  



 


44

















 


Each
determination of the Consolidated Leverage Ratio pursuant to the Pricing Grid
shall be made in a manner consistent with the determination thereof pursuant to
subsection 8.1; and


 


(c) with
respect to Commitments:


 


	
  Utilized Commitment

  	
   

  	
  Applicable

  Commitment Fee Rate

  
	
  Equal to or Greater than 50%

  	
   

  	
  0.375%

  
	
  Less than 50%

  	
   

  	
  0.50%

  



 


“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 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.


 


45

















 


“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.


 


“Refunded
Swing Line Loans”:  as defined in subsection 2.4(c).


 


“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
Obligations”:  the obligation of the applicable Borrower to
reimburse the applicable Issuing Lender pursuant to subsection 3.5(a) for
amounts drawn under the applicable Letters of Credit.


 


“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 (a) 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 (i) deposited in a cash
collateral account established at DBNY or DBCB to be held as collateral in
favor of the Administrative Agent or the Canadian Agent, as applicable, for the
benefit of the applicable Lenders on terms reasonably satisfactory to the
Administrative Agent or the Canadian Agent, as applicable, and shall remain on
deposit in such cash collateral account until such certificate of a Responsible
Officer is delivered to the Administrative Agent or (ii) used to make a
prepayment of the Revolving Credit Loans in accordance with subsection 4.4(a); provided
that, notwithstanding anything in this Agreement to the contrary, (a) no
Borrower may request any Extension of Credit under the U.S. Facility
Commitments or Canadian Facility Commitments that would reduce the aggregate
amount of the Available U.S. Facility Loan Commitments or Available Canadian
Facility Loan Commitments, respectively, to an amount that is less than the
amount of any such prepayment until such certificate of a Responsible Officer
is delivered to the Administrative


 


46

















 


Agent and (b)
any Net Cash Proceeds not so reinvested by the date required pursuant to the
terms of this definition shall be utilized on such day to prepay the Loans
pursuant to subsection 4.4(b).


 


“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
(i) maintained by, for the benefit of, or under the control of, the “qualified
intermediary” in connection with the Rental Car LKE Program and (ii) which
holds solely proceeds related to 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.


 


“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


 


47

















 


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 Commitments (or
after the termination thereof, outstanding Individual Lender Exposures)
represent at least a majority of 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.


 


“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 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


 


48

















 


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.


 


“Restricted
Indebtedness”:  as defined in subsection 8.14.


 


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


 


“Revolving
Credit Loan”:  each U.S. Facility Revolving Credit Loan and each
Canadian Facility Revolving Credit Loan.


 


“Revolving
Credit Note”:  as defined in 2.1(e).


 


“Rollover
Indebtedness”:  Indebtedness which is the subject of the Tender
Offers and other existing Indebtedness of the Parent Borrower and its
Subsidiaries identified on Schedule F 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.


 


“Schedule I
Lender”: a Lender which is a Canadian chartered bank listed on Schedule I
of the Bank Act (Canada).


 


“Secured
Parties”:  the reference to the Canadian Secured Parties, the
U.S. Secured Parties, or the collective reference thereto, as applicable.


 


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


 


“Security
Documents”:  the collective reference to the Canadian Security
Documents and the U.S. Security Documents.


 


“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.


 


49

















 


“Senior
Term Facility”:  as defined in the Recitals, and 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, or refinanced or
replaced from time to time in accordance with subsection 8.2 to the extent
applicable.


 


“Senior
Term Loans”:  as defined in the Recitals, and 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, or refinanced or
replaced from time to time in accordance with subsection 8.2 to the extent
applicable.


 


“Senior Term
Loans Credit Agreement”: the “Original Term Credit Agreement” as defined in
the Intercreditor Agreement.


 


“Senior
Term Loans Documents”:  the “Loan Documents” as defined in the
Senior Term Loans Credit Agreement, 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, or replaced from time to time in accordance with
subsection 8.2 to the extent applicable.


 


“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).


 


“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


 


50

















 


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,
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.


 


“Specified Obligations”:  obligations
of the Loan Parties under the Loan Documents consisting of (i) the payment
of principal of and interest on Loans and (ii) Reimbursement Obligations
in respect of Letters of Credit.


 


“Specified
Payment”:  (i) any dividend payment pursuant to subsection
8.7(f), (ii) any Investment pursuant to subsection 8.9(o), (iii) any
acquisition pursuant to subsection 8.10(c) and (iv) any payment, repurchase or
redemption pursuant to subsection 8.14(a).


 


51

















 


“Sponsors”:  as defined in the Recitals hereto.


 


“Spot Rate
of Exchange”:  (i) with respect to Canadian Dollars and any
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 Canadian Dollars or such 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 any Designated
Foreign Currency or Canadian Dollars (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 a Designated Foreign
Currency, the Dollar Equivalent of the maximum amount 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 U.S. Subsidiary
Guarantor and each Canadian Subsidiary Guarantor.


 


52

















 


“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.


 


“Swing Line
Commitment”:  the Swing Line Lender’s obligation to make Swing
Line Loans pursuant to subsection 2.4.


 


“Swing Line
Lender”:  DBNY, in its capacity as provider of the Swing Line
Loans.


 


“Swing Line
Loan Participation Certificate”:  a certificate in substantially
the form of Exhibit G.


 


“Swing Line
Loans”:  as defined in subsection 2.4(a).


 


“Swing Line
Note”:  as defined in subsection 2.4(b).


 


“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 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 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


 


53

















 


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.


 


“Termination
Date”:  December 21, 2010.


 


“Total
Canadian Facility Commitment”:  at any time, the sum of the
Canadian Facility Commitments of all of the Canadian Lenders at such time.  The original Total Canadian Facility Commitment
is $475,000,000.


 


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


 


“Total U.S.
Facility Commitment”:  at any time, the sum of the U.S. Facility
Commitments of all of the Lenders at such time. 
The original Total U.S. Facility Commitment is $1,125,000,000.


 


“Tranche”:  each
Tranche of Loans available hereunder, with there being two tranches on the
Closing Date; namely, Revolving Credit Loans and Swing Line Loans.


 


54

















 


“Transaction
Documents”:  (i) the Loan Documents, (ii) the Acquisition
Documents, (iii) the Senior Term Loans 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, Eurocurrency Loans in each of the Designated
Currencies and BA Equivalent Loans.


 


“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.


 


“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”:  any Canadian Borrower Unpaid Drawing and any U.S.
Borrower Unpaid Drawing.


 


“Unscheduled
Assumed Indebtedness”:  existing Indebtedness of the Parent
Borrower and its Subsidiaries identified on Schedule G, 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.


 


“Unutilized
Commitment”:  with respect to any Lender at any time, an amount
equal to the remainder of (x) such Lender’s Commitment as in effect at such
time less (y) such Lender’s Individual Lender Exposure at such time (excluding
any amounts attributable to Swingline Loans).


 


55

















 


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


 


 “U.S. Blocked Account”:  as
defined in subsection 4.16(c).


 


“U.S.
Borrower Unpaid Drawing”:  drawings on U.S. Facility Letters of
Credit that have not been reimbursed by the applicable U.S. Borrower.


 


“U.S.
Borrowers”:  HERC and the Parent Borrower.


 


“U.S. Borrowing
Base”:  as of any date of determination, the result of:


 


(a)           85% of the amount of Eligible U.S. Accounts, plus


 


(b)           50% of the amount of Eligible Unbilled U.S. Accounts
(not to exceed 50% of the amount calculated under clause (a) above), plus


 


(c)           the lesser of


 


(i)            80% times the then
extant net book value of the Eligible U.S. Rental Equipment, and


 


(ii)           80% times the then
extant Net Orderly Liquidation Value of Eligible U.S. Rental Equipment, minus


 


(d)           the amount of all Availability Reserves related to the
U.S. Facility.


 


“U.S.
Extender of Credit”:  as defined in
subsection 4.11(b).


 


“U.S.
Facility”:  the credit facility available to the U.S. Borrowers
hereunder.


 


“U.S.
Facility Commitment”:  with respect to each U.S. Facility Lender,
the commitment of such U.S. Facility Lender hereunder to make Extensions of
Credit to the U.S. Borrowers in the amount set forth opposite its name on
Schedule A hereto or as may subsequently be set forth in the Register from time
to time.


 


“U.S.
Facility Commitment Percentage”:  of any U.S. Facility Lender at
any time shall be that percentage which is equal to a fraction (expressed as a
percentage) the numerator of which is the U.S. Facility Commitment of such U.S.
Facility Credit Lender at such time and the denominator of which is the Total
U.S. Facility Commitment at such time, provided that if any such
determination is to be made after the Total U.S. Facility Commitment (and the
related U.S. Facility Commitments of the Lenders) has (or have) terminated, the
determination of such percentages shall be made immediately before giving
effect to such termination.


 


“U.S.
Facility Issuing Lender”:  as the context may require, (i) DBNY
or (ii) any U.S. Facility Lender, which at the request of HERC or the Parent
Borrower and with the consent of the Administrative Agent, agrees, in such U.S.
Facility Lender’s sole discretion, to also


 


56

















 


become a U.S.
Facility Issuing Lender for the purpose of issuing U.S. Facility Letters of
Credit (including Existing Letters of Credit).


 


“U.S.
Facility 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 U.S. Facility Letters of Credit (including in the case of outstanding
U.S. Facility Letters of Credit in any Designated Foreign Currency, the Dollar
Equivalent of the aggregate then undrawn and unexpired amount thereof) and (b)
the aggregate amount of drawings under U.S. Facility Letters of Credit which
have not then been reimbursed pursuant to subsection 3.5(a) (including in the
case of U.S. Facility Letters of Credit in any 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)).


 


“U.S.
Facility L/C Participants”:  the U.S. Facility Lenders.


 


“U.S.
Facility Letters of Credit”:  Letters of Credit (including
Existing Letters of Credit) issued by the U.S. Facility Issuing Lender to, or
for the account of the U.S. Borrowers, pursuant to subsection 3.1.


 


“U.S.
Facility Lender”:  each Lender which has a U.S. Facility
Commitment (without giving effect to any termination of the Total U.S. Facility
Commitment if there are any U.S. Facility L/C Obligations) or which has any
outstanding U.S. Facility Revolving Credit Loans (or a U.S. Facility Commitment
Percentage in any then outstanding U.S. Facility L/C Obligations).  Unless the context otherwise requires, each
reference in this Agreement to a U.S. Facility Lender includes each U.S.
Facility Lender and shall include references to any Affiliate of any such
Lender which is acting as a U.S. Facility Lender.


 


“U.S.
Facility Revolving Credit Loan”:  as provided in subsection
2.1(a).


 


“U.S.
Guarantee and Collateral Agreement”:  the U.S. Guarantee and
Collateral Agreement delivered to the Collateral Agent as of the date hereof,
substantially in the form of Exhibit B-1, as the same may be amended,
supplemented, waived or otherwise modified from time to time.


 


“U.S.
Mortgaged Property”:  each Real Property located in the United
States or any State or territory thereof with respect to which a Mortgage is
required to be delivered pursuant to the terms of this Agreement.


 


“U.S. Revolving
Facility”:  the revolving credit facility available to the U.S.
Borrowers hereunder.


 


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


 


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


 


“U.S.
Security Documents”:  the collective reference to each
Mortgage related to any U.S. Mortgaged Property, the U.S. Guarantee and
Collateral Agreement and all other similar


 


57

















 


security
documents hereafter delivered to the Collateral Agent granting or perfecting a
Lien on any asset or assets of any Person to secure the obligations and
liabilities of the U.S. 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(a), 7.9(b)
or 7.9(c), in each case, as amended, supplemented, waived or otherwise modified
from time to time.


 


“U.S.
Subsidiaries Guaranty”:  the guaranty of the obligations of the
Borrowers under the Loan Documents provided pursuant to the U.S. Guarantee and
Collateral Agreement.


 


“U.S.
Subsidiary Guarantor”:  each Domestic Subsidiary (other than any
Special Purpose Subsidiary, any Subsidiary of a Foreign Subsidiary, Navigation
Solutions LLC and Hertz Vehicle Sales Corporation) of the Parent Borrower which
executes and delivers a U.S. Subsidiary Guaranty, in each case, unless and
until such time as the respective U.S. Subsidiary Guarantor ceases to
constitute a Domestic Subsidiary of the Parent Borrower or is released from all
of its obligations under the U.S. Subsidiaries Guaranty in accordance with
terms and provisions thereof.


 


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


 


“Utilized
Commitment”:  with respect to (i) any Lender at any time, (x)
such Lender’s Individual Lender Exposure (excluding any amounts attributable to
Swing Line Loans) divided by (y) such Lender’s Commitment and (ii) all Lenders
at any time, the sum of each Lender’s Utilized Commitment as determined for
each fiscal quarter (and the interim period ending on the Termination Date) by
the Administrative Agent.


 


“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,


 


58

















 


all of the
Capital Stock of such Subsidiary other than directors qualifying shares or
shares held by nominees.


 


1.2           Other Definitional
Provisions.  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.


 


(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           Commitments.


 


(a)           Subject to and upon the terms and conditions set forth
herein, each Lender with a U.S. Facility Commitment severally agrees to make,
at any time and from time to time on or after the Closing Date and prior to the
Termination Date, a Revolving Credit Loan or Revolving Credit Loans to the U.S.
Borrowers (on a joint and several basis as between the U.S. Borrowers) (each a “U.S.
Facility Revolving Credit Loan” and, collectively, the “U.S. Facility
Revolving Credit Loans”), which U.S. Facility Revolving Credit Loans:


 


(i)            shall be denominated in Dollars or in a Designated
Foreign Currency;


 


(ii)           shall, at the option of the U.S. Borrowers, be
incurred and maintained as, and/or converted into, ABR Loans or Eurocurrency
Loans, provided that (A) except as otherwise specifically provided in
subsection 4.9 and subsection 4.10, all U.S. Facility Revolving Credit Loans
comprising the same Borrowing shall at all times be of the same Type, and (B)
unless the Administrative Agent either otherwise agrees in its sole discretion
or has determined that the Syndication Date has occurred, prior to the (1)
seventh day following the Closing Date, U.S. Facility Revolving Credit Loans
may only be incurred and maintained as ABR Loans and (2) 90th day following the
Closing Date (at which time this clause (B) shall no longer be applicable),
U.S. Facility Revolving Credit Loans may only be incurred and maintained as,
and/or converted into, Eurocurrency Loans to the extent all such outstanding


 


59

















 


Eurocurrency
Loans, together with all other outstanding Revolving Credit Loans that are
maintained as Eurocurrency Loans, are subject to an Interest Period of one
month which begins and ends on the same day, with the first such Interest
Period to begin on the date that is seven days after the Closing Date;


 


(iii)          may be repaid and reborrowed in accordance with the
provisions hereof;


 


(iv)          shall not be made (and shall not be required to be
made) by any U.S. Facility Lender to the extent the incurrence thereof (after
giving effect to the use of the proceeds thereof on the date of the incurrence
thereof to repay any amounts theretofore outstanding pursuant to this
Agreement) would cause the Individual U.S. Facility Lender Exposure of such
U.S. Facility Lender to exceed the amount of its U.S. Facility Commitment at
such time;


 


(v)           shall not be made (and shall not be required to be
made) by any U.S. Facility Lender to the extent the incurrence thereof (after
giving effect to the use of the proceeds thereof on the date of the incurrence
thereof to repay any amounts theretofore outstanding pursuant to this
Agreement) would cause (x) the Aggregate U.S. Facility Lender Exposure to
exceed the Total U.S. Facility Commitment as then in effect or (y) the
Aggregate U.S. Facility Lender Exposure to exceed the difference of (I) the
U.S. Borrowing Base at such time (based on the Borrowing Base Certificate last
delivered) minus (II) the sum of (A) the aggregate unpaid balance of
Extensions of Credit to, or for the account of, the U.S. Borrowers plus (B) the
excess of the unpaid balance of Extensions of Credit to, or for the account of,
the Canadian Borrowers over the Canadian Borrowing Base; and


 


(vi)          shall not be made (and shall not be required to be
made) by any U.S. Facility Lender to the extent any such U.S. Facility
Revolving Credit Loans to be made on any date, individually or in the
aggregate, exceed the then Available U.S. Facility Loan Commitments.


 


(b)           Subject to and upon the terms and conditions set forth
herein, each Canadian Facility Lender severally agrees to make (including
through a Non-Canadian Affiliate in the case of Revolving Credit Loans to the
U.S. Borrowers), at any time and from time to time on or after the Closing Date
and prior to the Termination Date, a Revolving Credit Loan or Revolving Credit
Loans to (i) the Canadian Borrowers (on a joint and several basis as between
the Canadian Borrowers with respect to such Revolving Credit Loans made to the
Canadian Borrowers) and (ii) the U.S. Borrowers (on a joint and several basis
as between the U.S. Borrowers with respect to such Revolving Credit Loans made
to the U.S. Borrowers) (each of the foregoing, a “Canadian Facility
Revolving Credit Loan” and, collectively, the “Canadian Facility
Revolving Credit Loans”; which Canadian Facility Revolving Credit Loans:


 


60

















 


(i)            in the case of Loans made to the Canadian Borrowers,
shall be denominated in Canadian Dollars and in the case of Loans made to the
U.S. Borrowers, shall be denominated in U.S. Dollars;


 


(ii)           shall, in the case of Loans made to the Canadian
Borrowers, at the option of the Canadian Borrowers, be incurred and maintained
as, and/or converted into, ABR Loans, Bankers’ Acceptances or BA Equivalent
Loans and, in the case of Loans made to the U.S. Borrowers, at the option of
the U.S. Borrowers, be incurred and maintained as, and/or converted into, ABR
Loans or Eurocurrency Loans, provided in each case that (A) except as
otherwise specifically provided in subsection 4.9 and subsection 4.10, all
Canadian Facility Revolving Credit Loans comprising the same Borrowing shall at
all times be of the same Type, and (B) unless the Administrative Agent either
otherwise agrees in its sole discretion or has determined that the Syndication
Date has occurred, prior to the (1) seventh day following the Closing Date,
Canadian Facility Revolving Credit Loans may only be incurred and maintained as
ABR Loans and (2) 90th day following the Closing Date (at which time this
clause (B) shall no longer be applicable), Canadian Facility Revolving Credit
Loans may only be incurred and maintained as, and/or converted into Bankers’
Acceptances or BA Equivalent Loans, in the case of Loans made to the Canadian
Borrowers, or Eurocurrency Loans, in the case of Loans made to the U.S.
Borrowers, as applicable, to the extent all such outstanding Bankers’
Acceptances or BA Equivalent Loans, or Eurocurrency Loans, as applicable,
together with all other outstanding Canadian Facility Revolving Credit Loans
that are maintained as Bankers’ Acceptances or BA Equivalent Loans, or
Eurocurrency Loans, as applicable, are subject to an Interest Period of one
month which begins and ends on the same day, with the first such Interest
Period to begin on the date that is seven days after the Closing Date;


 


(iii)          may be repaid and reborrowed in accordance with the
provisions hereof;


 


(iv)          shall not be made (and shall not be required to be
made) by any Canadian Facility Lender to the extent the incurrence thereof
(after giving effect to the use of the proceeds thereof on the date of the
incurrence thereof to repay any amounts theretofore outstanding pursuant to
this Agreement) would cause (x) the Individual Canadian Facility Lender
Exposure of such Canadian Facility Lender to exceed the amount of its Canadian
Facility Commitment at such time or (y) the Dollar Equivalent of the Aggregate
Canadian Facility Lender Exposure to exceed the lesser of (I) the Total
Canadian Facility Commitments as then in effect and (II) (A) the difference of
(1) the sum of (a) the Canadian Borrowing Base at such time plus (b) the U.S.
Borrowing Base (in each case, based on the Borrowing Base Certificate last
delivered) minus (2) the sum of (a) the aggregate unpaid balance of Extensions
of Credit to, or for the account of, the Canadian Borrowers and (b) the
aggregate unpaid balance of Extensions of Credit to, or for the account of, the
U.S. Borrowers;


 


61

















 


(v)           shall not be made (and shall not be required to be made)
by any Canadian Facility Lender (including through any Non-Canadian Affiliate
of any Canadian Facility Lender) to the extent any such Canadian Facility
Revolving Credit Loans to be made on any date, individually or in the
aggregate, exceed the then Available Canadian Facility Loan Commitments; and


 


(vi)          shall not be made (and shall not be required to be
made) to any U.S. Borrower to the extent the incurrence thereof (after giving
effect to the use of the proceeds thereof on the date of the incurrence thereof
to repay any amounts theretofore outstanding pursuant to this Agreement) would
cause the aggregate unpaid balance of Extensions of Credit to, or for the
account of, the U.S. Borrowers to exceed the difference of (x) the U.S.
Borrowing Base at such time (based on the Borrowing Base Certificate last
delivered) minus (y) the excess of the unpaid balance of Extensions of Credit
to, or for the account of, the Canadian Borrowers over the Canadian Borrowing
Base at such time (based on the Borrowing Base Certificate last delivered).


 


(c)           Notwithstanding anything to the contrary in
subsections 2.1(a) or (b) or elsewhere in this Agreement, the Administrative
Agent and the Canadian Agent, as applicable, shall have the right to establish
Availability Reserves in such amounts, and with respect to such matters, as the
Administrative Agent and the Canadian Agent, as applicable, in their Permitted
Discretion shall deem necessary or appropriate, against the U.S. Borrowing Base
and/or the Canadian Borrowing Base, as applicable, including reserves with
respect to (i) sums that the respective Borrowers are or will be required to
pay (such as taxes (including payroll and sales taxes), assessments, insurance
premiums, or, in the case of leased assets, rents or other amounts payable
under such leases) and have not yet paid and (ii) amounts owing by the
respective Borrowers or, without duplication, their respective Subsidiaries to
any Person to the extent secured by a Lien on, or trust over, any of the
Collateral, which Lien or trust, in the Permitted Discretion of the
Administrative Agent or the Canadian Agent is capable of ranking senior in
priority to or pari passu with one or more of
the Liens granted in the Security Documents (such as Canadian Priority
Payables, Liens or trusts in favor of landlords, warehousemen, carriers,
mechanics, materialmen, laborers, or suppliers, or Liens or trusts for ad
valorem, excise, sales, or other taxes where given priority under applicable
law) in and to such item of the Collateral; provided that the such
applicable Agent shall have provided the applicable Borrower at least ten
Business Days’ prior written notice of any such establishment; and provided,
further, that such Agent may only establish an Availability Reserve
after the date hereof based on an event, condition or other circumstance
arising after the Closing Date or based on facts not known to such Agent as of
the Closing Date.  The amount of any
Availability Reserve established by such Agent shall have a reasonable
relationship to the event, condition or other matter that is the basis for the
Availability Reserve.  Upon delivery of
such notice, such Agent shall be available to discuss the proposed Availability
Reserve, and the applicable Borrower may take such action as may be required so
that the event, condition or matter that is the basis for such Availability
Reserve or increase no longer exists, in a manner and to the extent reasonably
satisfactory to the applicable Agent in the exercise of its Permitted
Discretion.  In no event shall such
notice and opportunity limit the right of the applicable Agent to establish
such Availability Reserve, unless such Agent shall have determined in its
Permitted Discretion that the event, condition or other matter that is the
basis for such new Availability Reserve no longer exists or has otherwise been


 


62

















 


adequately
addressed by the applicable Borrower. 
Notwithstanding anything herein to the contrary, Reserves shall not
duplicate eligibility criteria contained in the definition of “Eligible
Accounts”, “Eligible Rental Equipment” or “Eligible Unbilled Accounts” and vice
versa, or reserves or criteria deducted in computing the net book value of
Eligible Rental Equipment or the Net Orderly Liquidation Value of Eligible
Rental Equipment and vice versa.  In
addition to the foregoing, the Administrative Agent and the Canadian Agent
shall have the right, subject to Section 7.6, to have the Loan Parties’ Rental
Equipment reappraised by a qualified appraisal company selected by the
Administrative Agent or the Canadian Agent from time to time after the Closing
Date for the purpose of re-determining the Net Orderly Liquidation Value of the
Eligible Rental Equipment, and, as a result, re-determining the U.S. Borrowing
Base or the Canadian Borrowing Base.


 


(d)           In the event the U.S. Borrowers are, or the Canadian
Borrowers are, as applicable, unable to comply with (i) the Borrowing Base
limitations set forth in subsections 2.1(a) and/or (b), as the case may be, or
(ii) the conditions precedent to the making of Revolving Credit Loans or the
issuance of Letters of Credit set forth in subsection 6, (x) the U.S. Facility
Lenders authorize the Administrative Agent, for the account of the U.S.
Facility Lenders, to make U.S. Facility Revolving Credit Loans to the U.S.
Borrowers and (y) the Canadian Facility Lenders authorize the Canadian Agent,
for the account of the Canadian Facility Lenders, to make Canadian Facility
Revolving Credit Loans to the Borrowers, which, in each case, may only be made
as ABR Loans (each, an “Agent Advance”) for a period commencing on the
date the Administrative Agent first receives a notice of Borrowing requesting
an Agent Advance until the earliest of (i) the 30th Business Day
after such date, (ii) the date the respective Borrowers or Borrower are again
able to comply with the Borrowing Base limitations and the conditions precedent
to the making of Revolving Credit Loans and issuance of Letters of Credit, or
obtains an amendment or waiver with respect thereto and (iii) the date the
Required Lenders instruct the Administrative Agent and the Canadian Agent to
cease making Agent Advances (in each case, the “Agent Advance Period”).  Neither the Administrative Agent nor the
Canadian Agent shall make any Agent Advance to the extent that at such time the
amount of such Agent Advance (A) in the case of Agent Advances made to the
Canadian Borrowers, (I) when added to the aggregate outstanding amount of all
other Agent Advances made to the Canadian Borrowers at such time, would exceed
the lesser of (i) 5% of the Total Canadian Facility Commitments as then in
effect and (ii) the difference of (1) the sum of (a) the Canadian Borrowing
Base at such time plus (b) the U.S. Borrowing Base at such time (in each case,
based on the Borrowing Base Certificate last delivered) minus (2) the sum
of (a) the aggregate unpaid balance of Extensions of Credit to, or for the
account of, the Canadian Borrowers and (b) the aggregate unpaid balance of
Extensions of Credit to, or for the account of, the U.S. Borrowers or (II) when
added to the Aggregate Canadian Facility Lender Exposure as then in effect
(immediately prior to the incurrence of such Agent Advance), would exceed the
Total Canadian Revolving Credit Loan Commitment at such time, or (B) in the
case of Agent Advances made to the U.S. Borrowers, (I) when added to the
aggregate outstanding amount of all other Agent Advances made to the U.S.
Borrowers at such time, would exceed 5% of the U.S. Borrowing Base at such time
(based on the Borrowing Base Certificate last delivered) or (II) when added to
the Aggregate U.S. Facility Lender Exposure as then in effect (immediately
prior to the incurrence of such Agent Advance), (1) would exceed the Total U.S.
Facility Commitment at such time or (2) when added to the Aggregate Canadian
Facility Lender Exposure as then in effect (immediately prior to such Agent
Advance) would exceed the sum of (a) the Canadian Borrowing Base at such time
plus (b) the


 


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U.S.
Borrowing Base at such time (in each case, based on the Borrowing Base
Certificate last delivered).  It is
understood and agreed that, subject to the requirements set forth above, Agent
Advances may be made by the Administrative Agent or the Canadian Agent in their
respective discretion to the extent the Administrative Agent or the Canadian
Agent deems such Agent Advances necessary or desirable (x) to preserve and
protect the applicable Collateral, or any portion thereof, (y) to enhance the
likelihood of, or maximize the amount of, repayment of the Loans and other
obligations of the Loan Parties hereunder and under the other Loan Documents or
(z) to pay any other amount chargeable to or required to be paid by the
Borrowers pursuant to the terms of this Agreement, including payments of
reimbursable expenses and other sums payable under the Loan Documents, and that
the Borrowers shall have no right to require that any Agent Advances be made.


 


(e)           Each Borrower agrees that, upon the request to the
Administrative Agent by any Revolving Credit 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 Revolving Credit Loans, such
Borrower will execute and deliver to such Lender a promissory note
substantially in the form of Exhibit A-1, with appropriate insertions as to
payee, date and principal amount (each, as amended, supplemented, replaced or
otherwise modified from time to time, a “Revolving Credit Note”), payable
to such Lender and in a principal amount equal to the aggregate unpaid
principal amount of all Revolving Credit Loans made by such Revolving Credit
Lender to such Borrower.  Each Revolving
Credit Note shall (i) be dated the Closing Date, (ii) be stated to mature on
the Termination Date and (iii) provide for the payment of interest in
accordance with subsection 4.1.


 


(f)            Notwithstanding anything to the contrary contained
herein, Revolving Credit Loans may not be made on the Closing Date in an
aggregate principal amount in excess of $900,000,000.


 


(g)           Notwithstanding anything to the contrary contained
herein, the parties acknowledge and agree that (i) the Canadian Borrowers shall
not be jointly or jointly and severally liable with the U.S. Borrowers for any
liabilities or obligations of the U.S. Borrowers hereunder and (ii) the U.S.
Borrowers shall not be jointly or jointly and severally liable with the
Canadian Borrowers for any liabilities or obligations of the Canadian Borrowers
hereunder.


 


2.2           Procedure for
Revolving Credit Borrowing.  Each of
the Borrowers may borrow under the Commitments during the Commitment Period on
any Business Day, provided that the applicable Borrower shall give the
Administrative Agent or the Canadian Agent, as applicable, irrevocable notice
(which notice must be received by the Administrative Agent prior to (a) 12:30
P.M., New York City time, at least three Business Days prior to the requested
Borrowing Date, if all or any part of the requested Revolving Credit Loans are
to be initially Eurocurrency Loans made in Dollars, Bankers’ Acceptances or BA
Equivalent Loans, (b) 9:00 AM, London time, at least three Business Days prior
to the requested Borrowing Date, if all or any part of the requested Revolving
Credit Loans are to be initially Eurocurrency Loans made in any Designated
Foreign Currency, (c) 12:30 p.m., New York City time, at least three Business
Days prior to the requested Borrowing Date, if all or any part of the requested
Revolving Credit Loans are to be initially ABR Loans made in any Designated
Foreign Currency or (d) 10:00 a.m., New York City time, on the requested
Borrowing Date, for ABR Loans made in a currency other


 


64

















 


than a Designated Foreign
Currency) specifying (i) the identity of the Borrower, (ii) the amount to be
borrowed, (iii) the requested Borrowing Date, (iv) whether the borrowing
is to be of Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans,
ABR Loans or a combination thereof and (v) if the borrowing is to be entirely
or partly of Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans,
the respective amounts of each such Type of Loan, the respective lengths of the
initial Interest Periods therefor and, if the Eurocurrency Loans in respect of
such borrowing are to be made entirely or partly in any Designated Foreign
Currency, the Designated Foreign Currency thereof.  Each borrowing shall be in an amount equal to
(x) in the case of ABR Loans, except any ABR Loan to be used solely to pay a
like amount of outstanding Reimbursement Obligations or Swing Line Loans, in
multiples of $1,000,000 (or, if the Commitments then available (as calculated
in accordance with subsections 2.1(a) and (b)) are less than $1,000,000, such
lesser amount) and (y) in the case of Eurocurrency Loans, Bankers’
Acceptances or BA Equivalent Loans (or, in the case of Eurocurrency Loans to be
made in any Designated Foreign Currency, Bankers’ Acceptances and BA Equivalent
Loans, the Dollar Equivalent of the principal amount thereof shall be in an
amount equal to $5,000,000 (or, in the case of Loans made to the Canadian
Borrowers, Cdn$5,000,000) or a whole multiple of $1,000,000 (or, in the case of
Loans made to the Canadian Borrowers, Cdn$1,000,000) in excess thereof.  Upon receipt of any such notice from a
Borrower, the Administrative Agent or the Canadian Agent, as applicable, shall
promptly notify each applicable Revolving Credit Lender thereof.  Subject to the satisfaction of the conditions
precedent specified in subsection 6.2, each applicable Revolving Credit Lender
will make the amount of its pro rata share of each borrowing of Revolving
Credit Loans available to the Administrative Agent or the Canadian Agent, as
applicable, for the account of the Borrower identified in such notice at the
office of the Administrative Agent or the Canadian Agent, as applicable,
specified in subsection 11.2 prior to 12:30 P.M. (or 10:00 A.M., in the case of
the initial borrowing hereunder), New York City time, or at such other office
of the Administrative Agent or the Canadian Agent, as applicable, or at such
other time as to which the Administrative Agent or the Canadian Agent, as
applicable, shall notify such Borrower reasonably in advance of the Borrowing
Date with respect thereto, on the Borrowing Date requested by such Borrower in
Dollars, Canadian Dollars or the applicable Designated Foreign Currency and in
funds immediately available to the Administrative Agent or the Canadian Agent,
as applicable.  In relation to Banker’s
Acceptances and BA Equivalent Loans, the Administrative Agent or the Canadian
Agent, as applicable, shall credit to the applicable Canadian Borrower’s
account on the applicable Borrowing Date the BA Proceeds less the applicable BA
Fee with respect to each Bankers’ Acceptance purchased and each BA Equivalent
Loan advanced by a Lender on that Borrowing Date.  Such borrowing will then be made available to
the Borrower identified in such notice by the Administrative Agent or the Canadian
Agent, as applicable, crediting the account of such Borrower on the books of
such office with the aggregate of the amounts made available to the
Administrative Agent or the Canadian Agent, as applicable, by the Revolving
Lenders and in like funds as received by the Administrative Agent or the
Canadian Agent, as applicable.


 


2.3           Termination or
Reduction of Commitments.  The Parent
Borrower (on behalf of itself and each other 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 U.S.
Facility or Canadian Facility Commitments or, from time to time, to reduce the
amount of the U.S. Facility or Canadian Facility Commitments; provided that no
such termination or reduction shall be permitted if, after giving effect
thereto and to any prepayments


 


65

















 


of the Revolving Credit Loans
and Swing Line Loans made on the effective date thereof, the aggregate
principal amount of the Revolving Credit Loans and Swing Line Loans then
outstanding (including in the case of Revolving Credit Loans then outstanding
in any Canadian Dollars or Designated Foreign Currency, the Dollar Equivalent
of the aggregate principal amount thereof), when added to the sum of the then
outstanding L/C Obligations, would exceed the Commitments then in effect.  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 applicable Commitments then in effect.


 


2.4           Swing Line
Commitments  (a)  Subject
to the terms and conditions hereof, the Swing Line Lender agrees to make swing
line loans (individually, a “Swing Line Loan”; collectively, the “Swing Line
Loans”) to any of the U.S. Borrowers from time to time during the Commitment
Period in an aggregate principal amount at any one time outstanding not to
exceed $50,000,000, provided that at no time may the sum of the then
outstanding Swing Line Loans, U.S. Facility Revolving Credit Loans (including
in the case of U.S. Facility Revolving Credit Loans then outstanding in any
Designated Foreign Currency, the Dollar Equivalent of the aggregate principal
amount thereof) and L/C Obligations exceed the lesser of (1) the U.S. Facility
Commitments then in effect and (2) the difference of (I) the U.S. Borrowing
Base then in effect (based on the most recent Borrowing Base Certificate) minus
(II) the sum of (A) the unpaid balance of Extensions of Credit made to, or for
the account of the U.S. Borrowers and (B) the excess of the unpaid balance of
Extensions of Credit made to or for the account of, the Canadian Borrowers over
the Canadian Borrowing Base (based on the most recent Borrowing Base
Certificate) (it being understood and agreed that the Administrative Agent
shall calculate the Dollar Equivalent of the then outstanding Revolving Credit
Loans in any Designated Foreign Currency on the date the notice of borrowing of
Swing Line Loans is given for purposes of determining compliance with this
subsection).  Amounts borrowed by any
U.S. Borrower under this subsection 2.4 may be repaid and, through but
excluding the Termination Date, reborrowed. 
All Swing Line Loans made to any U.S. Borrower shall be made in Dollars
as ABR Loans and shall not be entitled to be converted into Eurocurrency
Loans.  The Parent Borrower (on behalf of
itself or any other Borrower as the case may be) shall give the Swing Line
Lender irrevocable notice (which notice must be received by the Swing Line
Lender prior to 12:00 Noon, New York City time, on the requested Borrowing Date
specifying (1) the identity of the Borrower and (2) the amount of the requested
Swing Line Loan.  The proceeds of the
Swing Line Loans will be made available by the Swing Line Lender to the
Borrower identified in such notice at an office of the Swing Line Lender by
crediting the account of such Borrower at such office with such proceeds in
Dollars.


 


(b)           Each of HERC and the Parent Borrower agrees that, upon
the request to the Administrative Agent by the Swing Line 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 the Swing Line Loans such Borrower
will execute and deliver to the Swing Line Lender a promissory note substantially
in the form of Exhibit A-2, with appropriate insertions (as the same may be
amended, supplemented, replaced or otherwise modified from time to time, the “Swing
Line Note”), payable to the Swing Line Lender and representing the
obligation of such Borrower to pay the amount of the Swing Line Commitment or,
if less, the unpaid principal amount of the Swing Line Loans made to such
Borrower, with interest thereon as prescribed in subsection 4.1.


 


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The Swing Line Note shall (i)
be dated the Closing Date, (ii) be stated to mature on the Termination Date and
(iii) provide for the payment of interest in accordance with subsection 4.1.


 


(c)           The Swing Line Lender, at any time in its sole and
absolute discretion may, and, at any time as there shall be a Swing Line Loan
outstanding for more than seven Business Days, the Swing Line Lender shall, on
behalf of the Borrower to which the Swing Line Loan has been made (which hereby
irrevocably directs and authorizes such Swing Line Lender to act on its
behalf), request (provided that such request shall be deemed to have
been automatically made upon the occurrence of an Event of Default under
subsection 9(f)) each U.S. Facility Lender, including the Swing Line Lender to
make a U.S. Facility Revolving Credit Loan as an ABR Loan in an amount equal to
such U.S. Facility Lender’s U.S. Facility Commitment Percentage of the
principal amount of all Swing Line Loans made in Dollars (each, a “Mandatory
Revolving Credit Loan Borrowing”) in an amount equal to such U.S. Facility
Lender’s U.S. Facility Commitment Percentage of the principal amount of all of
the Swing Line Loans (collectively, the “Refunded Swing Line Loans”)
outstanding on the date such notice is given; provided that the provisions
of this subsection shall not affect the obligations of any U.S. Borrower to
prepay Swing Line Loans in accordance with the provisions of subsection
4.4(d).  Unless the U.S. Facility
Commitments shall have expired or terminated (in which event the procedures of
paragraph (d) of this subsection 2.4 shall apply), each U.S. Facility Lender
hereby agrees to make the proceeds of its U.S. Facility Revolving Credit Loan
(including any Eurocurrency Loan) available to the Administrative Agent for the
account of the Swing Line Lender at the office of the Administrative Agent
prior to 12:00 Noon, New York City time, in funds immediately available on the
Business Day next succeeding the date such notice is given notwithstanding (i)
that the amount of the Mandatory Revolving Credit Loan Borrowing may not comply
with the minimum amount for Revolving Credit Loans otherwise required
hereunder, (ii) whether any conditions specified in subsection 6 are then
satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the
date of such Mandatory Revolving Credit Loan Borrowing and (v) the amount of
the U.S. Facility Commitment of such, or any other, U.S. Facility Lender at
such time.  The proceeds of such U.S.
Facility Revolving Credit Loans (including without limitation, any Eurocurrency
Loan) shall be immediately applied to repay the Refunded Swing Line Loans.


 


(d)           If the U.S. Facility Commitments shall expire or
terminate at any time while Swing Line Loans are outstanding, each U.S.
Facility Lender shall, at the option of the Swing Line Lender, exercised
reasonably, either (i) notwithstanding the expiration or termination of
the U.S. Facility Commitments, make a U.S. Facility Revolving Credit Loan as an
ABR Loan (which U.S. Facility Revolving Credit Loan shall be deemed a “U.S.
Facility Revolving Credit Loan” for all purposes of this Agreement and the
other Loan Documents) or (ii) purchase an undivided participating interest in
such Swing Line Loans, in either case in an amount equal to such U.S. Facility
Lender’s U.S. Facility Commitment Percentage determined on the date of, and
immediately prior to, expiration or termination of the U.S. Facility
Commitments of the aggregate principal amount of such Swing Line Loans; provided,
that in the event that any Mandatory Revolving Credit Loan Borrowing cannot for
any reason be made on the date otherwise required above (including as a result
of the commencement of a proceeding under any domestic or foreign bankruptcy,
reorganization, dissolution, insolvency, receivership, administration or
liquidation or similar law with respect to any Borrower), then each U.S.
Facility Lender hereby agrees that it shall forthwith purchase (as of the date
the Mandatory


 


67

















 


Revolving
Credit Loan Borrowing would otherwise have occurred, but adjusted for any
payments received from such Borrower on or after such date and prior to such
purchase) from the Swing Line Lender such participations in such outstanding
Swing Line Loans as shall be necessary to cause such U.S. Facility Lenders to
share in such Swing Line Loans ratably based upon their respective U.S.
Facility Commitment Percentages, provided, further, that (x) all
interest payable on the Swing Line Loans shall be for the account of the Swing
Line Lender until the date as of which the respective participation is required
to be purchased and, to the extent attributable to the purchased participation,
shall be payable to the participant from and after such date and (y) at the
time any purchase of participations pursuant to this sentence is actually made,
the purchasing U.S. Facility Lender shall be required to pay the Swing Line
Lender interest on the principal amount of the participation purchased for each
day from and including the day upon which the Mandatory Revolving Credit Loan
Borrowing would otherwise have occurred to but excluding the date of payment
for such participation, at the rate otherwise applicable to U.S. Facility
Revolving Credit Loans made as ABR Loans. 
Each U.S. Facility Lender will make the proceeds of any U.S. Facility
Revolving Credit Loan made pursuant to the immediately preceding sentence
available to the Administrative Agent for the account of the Swing Line Lender
at the office of the Administrative Agent prior to 12:00 Noon, New York City
time, in funds immediately available on the Business Day next succeeding the
date on which the U.S. Facility Commitments expire or terminate and in the
currency in which such Swing Line Loans were made.  The proceeds of such U.S. Facility Revolving
Credit Loans shall be immediately applied to repay the Swing Line Loans
outstanding on the date of termination or expiration of the U.S. Facility
Commitments.  In the event that the U.S.
Facility Lenders purchase undivided participating interests pursuant to the
first sentence of this paragraph (d), each U.S. Facility Lender shall
immediately transfer to the Swing Line Lender, in immediately available funds
and in the currency in which such Swing Line Loans were made, the amount of its
participation and upon receipt thereof the Swing Line Lender will deliver to
such U.S. Facility Lender a Swing Line Loan Participation Certificate dated the
date of receipt of such funds and in such amount.


 


(e)           Whenever, at any time after the Swing Line Lender has
received from any U.S. Facility Lender such U.S. Facility Lender’s
participating interest in a Swing Line Loan, the Swing Line Lender receives any
payment on account thereof (whether directly from HERC or the Parent Borrower
or any other Borrower in respect of such Swing Line Loan or otherwise,
including proceeds of Collateral applied thereto by the Swing Line Lender), or
any payment of interest on account thereof, the Swing Line Lender will, if such
payment is received prior to 1:00 P.M., New York City time, on a Business Day,
distribute to such U.S. Facility Lender its pro rata share thereof prior to the
end of such Business Day and otherwise, the Swing Line Lender will distribute
such payment on the next succeeding Business Day (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which such
U.S. Facility Lender’s participating interest was outstanding and funded); provided,
however, that in the event that such payment received by the Swing Line
Lender is required to be returned, such U.S. Facility Lender will return to the
Swing Line Lender any portion thereof previously distributed by the Swing Line
Lender to it.


 


(f)            Each U.S. Facility Lender’s obligation to make the
U.S. Facility Revolving Credit Loans and to purchase participating interests
with respect to Swing Line Loans in accordance with subsections 2.4(c) and
2.4(d) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any set-off, counterclaim,


 


68

















 


recoupment,
defense or other right that such U.S. Facility Lender or any of the Borrowers
may have against the Swing Line Lender, any of the Borrowers or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of a
Default or an Event of Default; (iii) any adverse change in condition
(financial or otherwise) of any of the Borrowers; (iv) any breach of this
Agreement or any other Loan Document by any of the Borrowers, any other Loan
Party or any other U.S. Facility Lender; (v) any inability of any of the
Borrowers to satisfy the conditions precedent to borrowing set forth in this
Agreement on the date upon which such U.S. Facility Revolving Credit Loan is to
be made or participating interest is to be purchased or (vi) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.


 


2.5           Reserved.


 


2.6           Reserved.


 


2.7           Reserved.


 


2.8           Repayment of Loans.  (a)  Each U.S. Borrower hereby
unconditionally promises to pay to the Administrative Agent (in the currency in
which such Loan is denominated) for the account of:  (i) each U.S.
Facility Lender or each Canadian Facility Lender, as applicable, the then
unpaid principal amount of each Revolving Credit Loan of such Lender made to
such Borrower, on the Termination Date (or such earlier date on which the
Revolving Credit Loans become due and payable pursuant to Section 9); and (ii)
the Swing Line Lender, the then unpaid principal amount of the Swing Line Loans
made to such U.S. Borrower, on the Termination Date (or such earlier date on
which the Swing Line Loans become due and payable pursuant to Section 9). Each
U.S. Borrower hereby further agrees to pay interest (which payments shall be in
the same currency in which the respective Loan referred to above is
denominated) on the unpaid principal amount of such Loans from time to time
outstanding from the date hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in subsection 4.1.


 


(b)           Each Canadian Borrower hereby unconditionally promises
to pay to the Canadian Agent (in Canadian Dollars) for the account of each
Canadian Facility Lender, the then unpaid principal amount of each Canadian
Facility Revolving Credit Loan of such Lender made to such Borrower, on the
Termination Date (or such earlier date on which the Canadian Facility Revolving
Credit Loans become due and payable pursuant to Section 9).  Each Canadian Borrower hereby further agrees
to pay interest (which payments shall be in the same currency in which the
respective Loan referred to above is denominated) on the unpaid principal
amount of such Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
subsection 4.1.


 


(c)           Each Lender (including the Swing Line Lender) shall
maintain in accordance with its usual practice an account or accounts
evidencing indebtedness of each of the Borrowers 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.


 


69

















 


(d)           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, the Borrowers to which such Loan is made, each Interest Period, if
any, applicable thereto and whether such Loans are U.S. Facility Revolving
Credit Loans, Canadian Facility Revolving Credit Loans or U.S. Facility
Swingline Loans, (ii) the amount of any principal or interest due and payable
or to become due and payable from each of the Borrowers to each applicable
Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent and the Canadian Agent hereunder from each of the
Borrowers and each applicable Lender’s share thereof.


 


(e)           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 each of the Borrowers 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 any Borrower to repay (with applicable
interest) the Loans made to such Borrower by such Lender in accordance with the
terms of this Agreement.


 


2.9           Increase in Total
Commitments.  (a)  So long
as no Default or Event of Default exists or would arise therefrom, (i) the
Canadian Borrowers shall have the right, at any time and from time to time
after the Closing Date, to request an increase of the aggregate of the then
outstanding Canadian Facility Commitments by an amount not to exceed in the
aggregate (A) $200,000,000 minus (B) the amount of any increases in the
Total Commitments pursuant to this subsection 2.9 after the Closing Date and
(ii) the U.S. Borrowers shall have the right, at any time and from time to time
after the Closing Date, to request an increase of the aggregate of the then
outstanding U.S. Facility Commitments by an amount not to exceed in the
aggregate (A) $200,000,000 minus (B) the amount of any increases in the Total
Commitments pursuant to this subsection 2.9 after the Closing Date.  For avoidance of doubt, the aggregate
increase of all Total Commitments obtained by the Borrowers under this
subsection 2.9 shall not exceed $200,000,000. 
Any such requested increase shall be first made to all applicable
existing Lenders on a pro rata basis.  To
the extent that such existing Lenders decline to increase their Commitments, or
decline to increase their Commitments to the amount requested by the Canadian
Borrowers or the U.S. Borrowers, as applicable, the Administrative Agent, in
consultation with the Parent Borrower, will use its reasonable best efforts to
arrange for other Persons to become a Canadian Facility Lender or U.S. Facility
Lender, as applicable, hereunder and to issue commitments in an amount equal to
the amount of the increase in the Total Canadian Facility Commitment requested
by the Canadian Borrowers or the Total U.S. Facility Commitment requested by
the U.S. Borrowers and not accepted by the existing Lenders (each such increase
by either means, a “Commitment Increase,” and each Person issuing, or
Lender increasing, its Commitment, an “Additional Commitment Lender”), provided, however, that (i) no Lender shall be obligated to
provide a Commitment Increase as a result of any such request by the Canadian
Borrowers or the U.S. Borrowers, as applicable, and (ii) any Additional
Commitment Lender which is not an existing Lender shall be subject to the
approval of, (X) in the case of the U.S. Facility, the Administrative Agent,
the U.S. Facility Issuing Lender and the U.S. Borrowers and (Y) in the case of
the Canadian Facility, the Canadian Agent, the Canadian Facility Issuing Lender
and the Canadian Borrowers (each such approval not to be unreasonably withheld)
and (iii) each Additional Commitment Lender which is a Canadian Facility Lender


 


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shall be in compliance with the
provisions of subsection 4.15.  Each
Commitment Increase shall be in a minimum aggregate amount of at least
$25,000,000 and in integral multiples of $25,000,000 in excess thereof.


 


(b)           No Commitment Increase shall become effective unless
and until each of the following conditions have been satisfied:


 


(i)            The Borrowers, the Administrative Agent, and any
Additional Commitment Lender shall have executed and delivered a joinder to the
Loan Documents (“Joinder Agreement”) in substantially the form of Exhibit
L hereto;


 


(ii)           The Borrowers shall have paid such fees and other
compensation to the Additional Commitment Lenders and to the Administrative
Agent or the Canadian Agent, as applicable, as the applicable Borrowers and
such Additional Commitment Lenders shall agree;


 


(iii)          The applicable Borrowers shall deliver to the
Administrative Agent or the Canadian Agent, as applicable, and the Lenders an
opinion or opinions, in form and substance reasonably satisfactory to the
Administrative Agent or the Canadian Agent, as applicable, from counsel to the
applicable Borrowers reasonably satisfactory to the Administrative Agent or the
Canadian Agent, as applicable, and dated such date;


 


(iv)          A Revolving Credit Note (to the extent requested) will
be issued at the applicable Borrowers’ expense, to each such Additional
Commitment Lender, to be in conformity with requirements of subsection 2.1(e)
(with appropriate modification) to the extent necessary to reflect the new
Commitment of each Additional Commitment Lender; and


 


(v)           The applicable Borrowers and Additional Commitment
Lender shall have delivered such other instruments, documents and agreements as
the Administrative Agent or the Canadian Agent, as applicable, may reasonably
have requested in order to effectuate the documentation of the foregoing.


 


(c)           The Administrative Agent shall promptly notify each
Lender as to the effectiveness of each Commitment Increase (with each date of
such effectiveness being referred to herein as a “Commitment Increase Date”),
and at such time (i) the Commitments under, and for all purposes of, this
Agreement shall be increased by the aggregate amount of such Commitment
Increases, (ii) Schedule A shall be deemed modified, without further
action, to reflect the revised U.S. Facility Commitments and U.S. Facility
Commitment Percentages of the U.S. Facility Lenders or Canadian Facility
Commitments and Canadian Facility Commitment Percentages of the Canadian
Facility Lenders and (iii) this Agreement shall be deemed amended, without further
action, to the extent necessary to reflect such increased Commitments.


 


(d)           In connection with the Commitment Increases hereunder,
the Lenders and the Borrowers agree that, notwithstanding anything to the
contrary in this Agreement, (i) the applicable Borrowers shall, in coordination
with the Administrative Agent, (x) repay applicable outstanding Revolving
Credit Loans of certain Lenders, and obtain applicable Revolving Credit Loans
from certain other Lenders (including the Additional Commitment Lenders), or
(y) take


 


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such
other actions as reasonably may be required by the Administrative Agent, in
each case to the extent necessary so that the Lenders effectively participate
in each of the outstanding U.S. Facility or Canadian Facility Revolving Credit
Loans, as applicable, pro rata on the basis of their U.S. Facility Commitment
Percentages or Canadian Facility Commitment Percentages, as applicable
(determined after giving effect to any increase in the Canadian Facility
Commitments pursuant to this subsection 2.9), and (ii) the applicable Borrowers
shall pay to the Lenders any costs of the type referred to in subsection 4.12
in connection with any repayment and/or Revolving Credit Loans required
pursuant to preceding clause (i). 
Without limiting the obligations of the Borrowers provided for in this
subsection 2.9, the Administrative Agent and the Lenders agree that they will
use their best efforts to attempt to minimize the costs of the type referred to
in subsection 4.12 which the Borrowers would otherwise occur in connection with
the implementation of an increase in the U.S. Facility Commitments or the
Canadian Facility Commitments.


 


SECTION
3.    LETTERS OF CREDIT.


 


3.1           L/C Commitment.  (a)  Subject to the terms and
conditions hereof, each Issuing Lender, in reliance on the agreements of the
other Revolving Credit Lenders set forth in subsection 3.4(a), agrees to
continue under this Agreement for the account of the Parent Borrower the
Existing Letters of Credit issued by it and to issue letters of credit (the
letters of credit issued on and after the Closing Date pursuant to this Section
3, together with the Existing Letters of Credit, collectively, the “Letters
of Credit”) for the account of the applicable Borrower on any Business Day
during the 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 the
Issuing Lender; provided that no Letter of Credit shall be issued if, after
giving effect to such issuance, (i) (A) aggregate Canadian Facility L/C
Obligations shall exceed $50,000,000 or (B) the aggregate Extensions of Credit
to the U.S. Borrowers, the Canadian Borrowers or the Borrowers would exceed the
applicable limitations set forth in subsection 2.1 (it being understood and
agreed that the Administrative Agent or the Canadian Agent shall calculate the
Dollar Equivalent of the then outstanding Revolving Credit Loans in Canadian
Dollars or any Designated Foreign Currency on the date on which the applicable
Borrower has requested that the applicable Issuing Lender issue a Letter of
Credit for purposes of determining compliance with this clause (i)), (ii) the
L/C Obligations in respect of Letters of Credit would exceed $200,000,000 or
(iii) the Aggregate Outstanding Credit of all the Revolving Credit Lenders
would exceed the Commitments of all the Revolving Credit Lenders then in
effect.  Each Letter of Credit shall
(i) be denominated in Dollars, Canadian Dollars or any other Designated
Foreign Currency requested by the applicable 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 or the Canadian
Agent, as applicable, expire no later than the earlier of (A) one year
after its date of issuance and (B) the 10th day prior to the Termination Date,
in the case of Standby Letters of Credit (subject, if requested by the
applicable Borrower and agreed to by the Issuing Lender, to auto-renewals for
successive periods not exceeding one year and ending prior to the 10th
day


 


72

















 


prior to the Termination Date),
or (A) 180 days after its date of issuance and (B) the 30th day
prior to the Termination Date, in the case of Commercial Letters of
Credit.  Each Letter of Credit issued by
the U.S. Facility Issuing Lender shall be deemed to constitute a utilization of
the U.S. Facility Commitments and each Letter of Credit issued by the Canadian
Facility Issuing Lender shall be deemed to constitute a utilization of the
Canadian Facility Commitments, and shall be participated in (as more fully
described in following subsection 3.4) by the U.S. Facility Lenders or the
Canadian Facility Lenders, as applicable, in accordance with their respective
U.S. Facility Commitment Percentages or Canadian Facility Commitment
Percentages, as applicable.  All Letters
of Credit issued under the U.S. Revolving Credit Facility shall be denominated
in Dollars or in the respective Designated Foreign Currency requested by the
applicable U.S. Borrower and shall be issued for the account of the applicable
U.S. Borrower.  All Letters of Credit
issued under the Canadian Revolving Credit Facility shall be denominated in
Canadian Dollars requested by the applicable Borrower and shall be issued for
the account of the applicable 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 applicable Borrower may from time to time request
during the 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 or the Canadian
Agent, as applicable, at their respective addresses for notices specified
herein, an L/C Request therefor in the form Exhibit K 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 the Designated Foreign Currency in which the requested Letter of
Credit is to be denominated (or specify that the requested Letter of Credit is
to be denominated in Dollars or Canadian Dollars in the case of the Canadian
Borrowers).  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 an
Issuing Lender be required, unless otherwise agreed to by such Issuing Lender,
to issue any Letter of Credit earlier than three 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 applicable Borrower.  The applicable Issuing Lender shall furnish a
copy of such Letter of Credit to the applicable 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 applicable Borrower and the Administrative Agent or the
Canadian Agent, as applicable, in writing, of such issuance or amendment and
such notice shall be accompanied by a copy of such


 


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issuance or amendment. Upon
receipt of such notice, the Administrative Agent or the Canadian Agent, as
applicable, shall promptly notify the applicable Lenders, in writing, of such
issuance or amendment, and if so requested by a Lender, the Administrative
Agent or the Canadian Agent, as applicable, shall provide to such Lender copies
of such issuance or amendment. With regards to Commercial Letters of Credit,
the Issuing Lender shall on the first Business Day of each week provide the
Administrative Agent or the Canadian Agent, as applicable, 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
any 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 applicable Borrower in accordance with such
Issuing Lender’s usual and customary practices.


 


3.3           Fees, Commissions
and Other Charges. 
(a)  Each Borrower agrees to pay to the Administrative Agent
or the Canadian Agent, as applicable, a letter of credit commission with
respect to each Letter of Credit issued by such Issuing Lender on its behalf,
computed for the period from and including the date of issuance of such Letter
of Credit through to the expiration date of such Letter of Credit, computed at
a rate per annum equal to the Applicable Margin then in effect for Eurocurrency
Loans that are Revolving Credit Loans calculated on the basis of a 360 day
year, 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 earlier date as
the Commitments shall terminate as provided herein. Such commission shall be
payable to the Administrative Agent or the Canadian Agent, as applicable, for
the account of the applicable Revolving Credit Lenders to be shared ratably
among them in accordance with their respective U.S. Facility Commitment
Percentages or Canadian Facility Commitment Percentages.  Each Borrower shall pay to the relevant
Issuing Lender a fee equal to 1/4 of 1% per annum (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 Commitments shall
terminate.  Such commissions and fees
shall be nonrefundable.  Such fees and
commissions shall be payable in Dollars (or Canadian Dollars, in the case of
Canadian Borrowers), notwithstanding that a Letter of Credit may be denominated
in any Designated Foreign Currency.  In
respect of a Letter of Credit denominated in any 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,
each Borrower agrees to pay or 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 such Issuing Lender.


 


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(c)           The Administrative Agent and the Canadian Agent shall,
promptly following any receipt thereof, distribute to the applicable Issuing
Lender and the applicable L/C Participants all commissions and fees received by
such Agent for their respective accounts pursuant to this subsection 3.3.


 


3.4           L/C Participations.  (a)  Each Issuing Lender
irrevocably agrees to grant and hereby grants to each U.S. Facility L/C
Participant or Canadian Facility L/C Participant, as applicable, and, to induce
the Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the applicable Issuing Lender, without recourse or warranty, on the terms and
conditions hereinafter stated, for such L/C Participant’s own account and risk
an undivided interest equal to such L/C Participant’s U. S. Facility Revolving
Credit Loan Commitment Percentage or Canadian Facility Commitment Percentage,
as applicable, (determined on the date of issuance of the relevant Letter of
Credit) in such Issuing Lender’s obligations and rights under each Letter of
Credit issued or continued hereunder, the amount of each draft paid by such
Issuing Lender thereunder and the obligations of the applicable Borrowers under
this Agreement with respect thereto (although L/C Fees and related commissions
shall be payable directly to the Administrative Agent or the Canadian Agent, as
applicable, for the account of the applicable Issuing Lender and L/C
Participants, as provided in subsection 3.3 and the L/C Participants shall have
no right to receive any portion of any facing fees with respect to any such
Letters of Credit) and any security therefor or guaranty pertaining
thereto.  Each L/C Participant
unconditionally and irrevocably agrees with such Issuing Lender that, if a
draft is paid under any Letter of Credit for which such Issuing Lender is not
reimbursed in full by the applicable Borrower in respect of such Letter of
Credit in accordance with subsection 3.5(a), such L/C Participant shall pay to
such Issuing Lender upon demand (which demand, in the case of any demand made
in respect of any draft under a L/C denominated in any Designated Foreign
Currency, shall not be made prior to the date that the amount of such draft
shall be converted into Dollars in accordance with subsection 3.5(a)) at such
Issuing Lender’s address for notices specified herein an amount equal to such
L/C Participant’s U.S. Facility Commitment Percentage or Canadian Facility
Commitment Percentage, as applicable, of the amount of such draft, or any part
thereof, which is not so reimbursed; provided that nothing in this
paragraph shall relieve such 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 any L/C Participant may have as a result
of such gross negligence or willful misconduct. 
All calculations of an L/C Participants’ Commitment Percentages shall be
made from time to time by the Administrative Agent, which calculations shall be
conclusive absent manifest error.


 


(b)           If any amount required to be paid by any L/C
Participant to an Issuing Lender on demand by such Issuing Lender pursuant to
subsection 3.4(a) in respect of any unreimbursed portion of any payment made by
such Issuing Lender under any Letter of Credit is paid to such Issuing Lender
within three Business Days after the date such demand is made, such L/C
Participant shall pay to such Issuing Lender on demand an amount equal to the
product of such amount, times the daily average Federal Funds Effective Rate
(or, in the case of a Canadian Facility Lender, the interbank rate customarily
charged by the Canadian Agent) during the period from and including the date
such payment is required to the date on which such payment is immediately
available to such Issuing Lender, times a fraction the numerator of which is
the number of days that elapse during such period and the denominator of which
is 360.  If any such


 


75

















 


amount
required to be paid by any L/C Participant pursuant to subsection 3.4(a) is not
in fact made available to such Issuing Lender by such L/C Participant within
three Business Days after the date such payment is due, such Issuing Lender
shall be entitled to recover from such L/C Participant, on demand, such amount
with interest thereon (with interest based on the Dollar Equivalent of any
amounts denominated in Canadian Dollars or Designated Foreign Currencies)
calculated from such due date at the rate per annum applicable to Revolving
Credit Loans maintained as ABR Loans accruing interest at the ABR Rate
hereunder.  A certificate of an Issuing
Lender submitted to any L/C Participant with respect to any amounts owing under
this subsection (which shall include calculations of any such amounts in
reasonable detail) shall be conclusive in the absence of manifest error.


 


(c)           Whenever, at any time after an Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant
its pro rata share of such payment in accordance with subsection 3.4(a), such
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from a Borrower in respect of such Letter of Credit or otherwise,
including proceeds of Collateral applied thereto by such Issuing Lender), or
any payment of interest on account thereof, such Issuing Lender will, if such
payment is received prior to 1:00 P.M., New York City time, on a Business Day,
distribute to such L/C Participant its pro rata share thereof prior to the end
of such Business Day and otherwise such Issuing Lender will distribute such
payment on the next succeeding Business Day; provided, however,
that in the event that any such payment received by an Issuing Lender shall be
required to be returned by such Issuing Lender, such L/C Participant shall
return to such Issuing Lender the portion thereof previously distributed by
such Issuing Lender to it.


 


3.5           Reimbursement
Obligation of the Borrowers. 
(a)  Each Borrower hereby agrees
to reimburse each Issuing Lender, upon receipt by such Borrower of notice from
the applicable 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, 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 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 any 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 such Borrower of such
notice, upon notice by such Issuing Lender to such 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 such Borrower receives such notice, if received prior to 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 any Designated Foreign Currency into Dollars in accordance with
this subsection 3.5(a) shall be conclusive and binding upon each Borrower and
the applicable Revolving Credit Lenders in the absence of manifest error; provided
that upon the request of a Borrower or any Revolving Credit Lender, the
applicable Issuing Lender shall provide to such Borrower or Revolving Credit
Lender a certificate including reasonably detailed information as to the
calculation of such conversion.


 


76

















 


(b)           Interest shall be payable on any and all amounts
remaining unpaid (taking the Dollar Equivalent of any amounts denominated in
Canadian Dollars or any Designated Foreign Currency, as determined by the
Administrative Agent or the Canadian Agent, as applicable) by the Borrowers
under this subsection 3.5(b) from the date the draft presented under the
affected Letter of Credit is paid to the date on which the applicable Borrower
is required to pay such amounts pursuant to paragraph (a) above at the rate
which would then be payable on any outstanding ABR Loans that are Revolving
Credit Loans and (ii) thereafter until payment in full at the rate which would
be payable on any outstanding ABR Loans that are Revolving Credit Loans which
were then overdue.


 


3.6           Obligations Absolute.  (a)  Each 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 such 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 any Borrower may have as a result of any such gross negligence or
willful misconduct.


 


(b)           Each Borrower and each Lender also agree with each
Issuing Lender that such Issuing Lender and the L/C Participants shall not be
responsible for, and such Borrower’s Reimbursement Obligations under subsection
3.5(a) shall not be affected by, 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 any 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 any 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 any 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)           Each Borrower agrees that any action taken or omitted
by the 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 Uniform Commercial Code of the State of New York, shall be binding on the
Borrowers and shall not result in any liability of any Issuing Lender or L/C
Participant to any 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 applicable Borrower of the date and amount thereof.  The responsibility of an Issuing Lender to
such Borrower in respect


 


77

















 


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 Credit, provided that
this paragraph shall not relieve such Issuing Lender of any liability resulting
from the gross negligence or willful misconduct of any Issuing Lender, or
otherwise affect any defense or other right that any 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.  Any Borrower may, at any
time and from time to time with the consent of the Administrative Agent or the
Canadian Agent, as applicable, (which consent shall not be unreasonably
withheld) and such Lender, designate one or more additional Canadian Lenders or
U.S. Facility Lenders, as applicable, 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 (i) 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 and (ii) BA Equivalent Loan shall bear
interest (computed on the basis of the actual number of days elapsed over a
year of 365 or 366 days, as applicable) at a rate per annum that shall be equal
to the BA Rate, plus the Applicable Margin for BA Equivalent Loans.


 


(b)           Each ABR Loan (other than a Canadian Facility
Revolving Credit Loan made to a Canadian Borrower) 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 and each ABR Loan that is a
Canadian Facility Revolving Credit Loan made to a Canadian Borrower shall bear
interest for each day that it is outstanding at a rate per annum equal to the
Canadian Prime Rate in effect 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


 


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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 that are Revolving
Credit Loans accruing interest at the ABR Rate (or the Canadian Prime Rate in
the case of Canadian Facility Revolving Credit Loans made to a Canadian
Borrower) 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, 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.


 


(f)            Notwithstanding anything to the contrary contained in
this Agreement or in any other Loan Document, solely to the extent that a court
of competent jurisdiction finally determines that the calculation or
determination of interest or any fee payable by the Canadian Borrowers in
respect of their obligations pursuant to this Agreement and the other Credit Documents
shall be governed by the laws of any province of Canada or the federal laws of
Canada:


 


(i)            whenever any interest or fee payable by the Canadian
Borrowers is calculated using a rate based on a year of 360 days, the rate
determined pursuant to such calculation, when expressed as an annual rate, is,
for the purposes of the Interest Act
(Canada) and disclosure thereunder, equivalent to the applicable rate based on
a year of 360 days multiplied by the actual number of days in the applicable
calendar year in which such rate is to be ascertained and divided by 360;


 


(ii)           if any provision of this Agreement or of any of the
other Loan Documents would obligate the Canadian Borrowers to make any payment
of interest or other amount payable to any of the Administrative Agent, the
Canadian Agent or any Lender under this Agreement or any other Loan Document in
an amount or calculated at a rate which would be prohibited by law or would
result in a receipt by any of the Administrative Agent, the Canadian Agent or any
Lender of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada)) then, notwithstanding such
provisions, such amount or rate shall be deemed to have been adjusted with
retroactive effect to the maximum amount or rate of interest, as the case may
be, as would not be so prohibited by law or so result in a receipt by the
Administrative Agent, the Canadian Agent or any Lender of interest at a
criminal rate, such adjustment to be effected, to the extent necessary, as
follows:  (1) firstly, by reducing the amount or rate of interest


 


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required
to be paid to the Administrative Agent, the Canadian Agent or any Lender under
this subsection 4.1, and (2) thereafter, by reducing any fees,
commissions, premiums and other amounts required to be paid to the
Administrative Agent, the Canadian Agent or any Lender which would constitute “interest”
for purposes of Section 347 of the Criminal Code
(Canada). Notwithstanding the foregoing, and after giving effect to all
adjustments contemplated thereby, if the Administrative Agent, the Canadian
Agent or any Lender shall have received an amount in excess of the maximum
permitted by that Section of the Criminal Code
(Canada), the Canadian Borrowers shall be entitled, by notice in writing to the
applicable Administrative Agent, Canadian Agent or Lender, to obtain
reimbursement from such party in an amount equal to such excess and, pending
such reimbursement, such amount shall be deemed to be an amount payable by the
applicable Administrative Agent, Canadian Agent or Lender to the Canadian
Borrowers. Any amount or rate of interest referred to in this subsection 4.1(b)
shall be determined in accordance with generally accepted actuarial practices
and principles as an effective annual rate of interest over the term that the
applicable loan remains outstanding on the assumption that any charges, fees or
expenses that fall within the meaning of “interest” (as defined in the Criminal Code (Canada)) and, in the event of a dispute, a
certificate of a Fellow of the Canadian Institute of Actuaries appointed by the
Canadian Agent shall be conclusive for the purposes of such determination; and


 


(iii)          all calculations of interest payable by the Canadian
Borrowers under this Agreement or any other Loan Document are to be made on the
basis of the nominal interest rate described herein and therein and not on the
basis of effective yearly rates or on any other basis which gives effect to the
principle of deemed reinvestment of interest which principle does not apply to
any interest calculated under this Agreement or any Loan Document.  The parties hereto acknowledge that there is
a material difference between the stated nominal interest rates and the
effective yearly rates of interest and that they are capable of making the
calculations required to determine such effective yearly rates of interest.


 


4.2           Conversion and
Continuation Options. 
(a)  The applicable Borrowers may elect from time to time to
convert outstanding Revolving Credit Loans from (i) Eurocurrency Loans
made or outstanding in Dollars to ABR Loans, (ii) Bankers’ Acceptances to ABR
Loans, or (iii) BA Equivalent Loans to ABR Loans by giving the Administrative
Agent or the Canadian Agent, as applicable, at least two Business Days’ prior
irrevocable notice of such election, provided that any such conversion
of Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans may only be
made on the last day of an Interest Period with respect thereto.  The Borrowers may elect from time to time to
convert outstanding Revolving Credit Loans made or outstanding in Dollars from
(i) ABR Loans to Eurocurrency Loans outstanding in Dollars or (ii) in the
case of Canadian Facility Revolving Credit Loans made to a Canadian Borrower,
from ABR Loans to BA Equivalent Loans or Bankers’ Acceptances, by giving the
Administrative Agent or the Canadian Agent, as applicable, at least three
Business Days’ prior irrevocable notice of such election.  Any such notice of conversion to Eurocurrency
Loans outstanding in Dollars, Bankers’ Acceptances or BA Equivalent Loans shall
specify the length of the initial


 


80

















 


Interest Period or Interest
Periods therefor.  Upon receipt of any
such notice the Administrative Agent or the Canadian Agent, as applicable,
shall promptly notify each affected Lender thereof.  All or any part of outstanding Eurocurrency
Loans made or outstanding in Dollars or Bankers’ Acceptances or BA Equivalent
Loans 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 or Bankers’ Acceptances or BA Equivalent 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 applicable
Borrower that no such conversions may be made and (ii) no Loan may be converted
into a Eurocurrency Loan or BA Equivalent Loan after the date that is one month
prior to the Termination Date.


 


(b)           Any Eurocurrency Loan, Bankers’ Acceptances or BA
Equivalent Loan may be continued as such upon the expiration of the then
current Interest Period with respect thereto by the applicable Borrowers giving
notice to the Administrative Agent or the Canadian Agent, as applicable, 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, Bankers’
Acceptances or BA Equivalent 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 or the Canadian Agent, as applicable, has given notice to the applicable
Borrower that no such continuations may be made or (ii) after the date that is
one month prior to either the Termination Date, and provided, further,
that (A) in the case of Eurocurrency Loans made or outstanding in Dollars,
Bankers’ Acceptances or BA Equivalent Loans, if the applicable 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, Bankers’ Acceptances or BA Equivalent Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period and (B) in case of Eurocurrency Loans made or outstanding in
any Designated Foreign Currency, if the applicable 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 or the
Canadian Agent, as applicable, 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 equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof, the Dollar
Equivalent of the aggregate principal amount of the Eurocurrency Loans
outstanding in any Designated Foreign Currency, Bankers’ Acceptances and BA
Equivalent Loans comprising each Set shall be 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.


 


4.4           Optional and
Mandatory Prepayments. 
(a)  Each of the Borrowers may at any time and from time to
time prepay the Loans made to it and the Reimbursement Obligations in respect
of Letters of Credit issued for its account, in whole or in part, subject to
subsection 4.12,


 


81

















 


without premium or penalty,
upon at least three Business Days’ irrevocable notice by the applicable
Borrower to the Administrative Agent or the Canadian Agent, as applicable (in
the case of Eurocurrency Loans outstanding in Dollars or any Designated Foreign
Currency, Bankers’ Acceptances or BA Equivalent Loans and Reimbursement
Obligations outstanding in any Designated Foreign Currency), at least one
Business Day’s irrevocable notice by the applicable Borrower to the
Administrative Agent or the Canadian Agent, as applicable (in the case of (x)
ABR Loans other than Swing Line Loans and (y) Reimbursement Obligations
outstanding in Dollars or Canadian Dollars) or same-day irrevocable notice by
the applicable Borrower to the Administrative Agent or the Canadian Agent, as
applicable (in the case of Swing Line Loans). 
Such notice shall specify, in the case of any prepayment of Loans, the
identity of the prepaying Borrower, the date and amount of prepayment and
whether the prepayment is (i) of Revolving Credit Loans or Swing Line Loans, or
a combination thereof, and (ii) of Eurocurrency Loans, Bankers’ Acceptances, BA
Equivalent 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 Obligations, 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 Obligations.  Upon the receipt of any such notice the
Administrative Agent or the Canadian Agent, as applicable, 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,
Bankers’ Acceptances or BA Equivalent Loan is prepaid other than at the end of
the Interest Period applicable thereto) any amounts payable pursuant to
subsection 4.12 the Revolving Credit Loans and the Reimbursement Obligations
pursuant to this subsection shall (unless the Parent Borrower otherwise
directs) be applied, first, to payment of the Swing Line Loans then
outstanding, second, to payment of the Revolving Credit Loans then
outstanding, third, to payment of any Reimbursement Obligations then
outstanding and, last, to cash collateralize any outstanding Bankers’
Acceptances or L/C Obligation on terms reasonably satisfactory to the
Administrative Agent; provided, further, that any pro rata
calculations required to be made pursuant to this subsection 4.4(a) in respect
to any Loan denominated in Canadian Dollars or a Designated Foreign Currency
shall be made on a Dollar Equivalent basis. 
Partial prepayments pursuant to this subsection 4.4(a) shall be in
multiples of $1,000,000 (or, in the case of (i) partial prepayments made by the
Canadian Borrowers, Cdn$1,000,000 and (ii) Eurocurrency Loans outstanding in
any Designated Foreign Currency, the Dollar Equivalent of an aggregate
principal amount of at least approximately $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, to the extent that and for so long as Available Loan
Commitments are less than $250,000,000 immediately after giving effect to such
incurrence of Indebtedness, Asset Sale, Recovery Event or Sale and Leaseback
Transaction, the Borrowers shall prepay, in accordance with subsection 4.4(e),
the Loans and cash collateralize the Bankers’ Acceptances and the L/C
Obligations in an amount equal to the lesser


 


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of:  (A)
(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 and (B) the amount of such prepayments required in order
for Available Loan Commitments to be $250,000,000 or more, in each case with
such prepayment to be made on the Business Day following the date of receipt of
any such Net Cash 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)           (i)            On
any day (other than during an Agent Advance Period) on which the Aggregate U.S.
Facility Lender Exposure or the unpaid balance of Extensions of Credit to, or
for the account of, the U.S. Borrowers exceeds the difference of (A) the U.S.
Borrowing Base at such time (based on the Borrowing Base Certificate last
delivered) minus (B) the excess of (1) the Aggregate Canadian Facility Lender
Exposure (with respect to the Canadian Borrowers) over (2) the Canadian
Borrowing Base at such time (based on the Borrowing Base Certificate last
delivered), the U.S. Borrowers shall prepay on such day the principal of
outstanding Canadian Facility Revolving Credit Loans made to the U.S. Borrowers
and, if required, U.S. Facility Revolving Credit Loans in an amount equal to
such excess.  If, after giving effect to
the prepayment of all outstanding Canadian Facility Revolving Credit Loans made
to the U.S. Borrowers and U.S. Facility Revolving Credit Loans, the aggregate
amount of the U.S. Facility L/C Obligations and the Canadian Facility L/C
Obligations with respect to the U.S. Borrowers exceeds the difference of (A)
the U.S. Borrowing Base at such time (based on the Borrowing Base Certificate
last delivered) minus (B) the excess of (1) the Aggregate Canadian Facility
Lender Exposure (with respect to the Canadian Borrowers) over (2) the Canadian
Borrowing Base at such time (based on the Borrowing Base Certificate last
delivered), the U.S. Borrowers shall pay to the Administrative Agent or the
Canadian Agent, as applicable, at the Payment Office on such day an amount of
cash and/or Cash Equivalents equal to the amount of such excess (up to a
maximum amount equal to such L/C Obligations at such time), such cash and/or
Cash Equivalents to be held as security for all obligations of the U.S.
Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in
a cash collateral account to be established by, and under the sole dominion and
control of, the Administrative Agent.


 


(ii)           Without duplication of any mandatory prepayment
required under subsection 4.4(c)(i) above, on any day (other than during an
Agent Advance Period) on which the Aggregate Canadian Facility Revolving Credit
Exposure with respect to the Canadian Borrowers exceeds the sum of (A) the
Canadian


 


83

















 


Borrowing
Base at such time (based on the Borrowing Base Certificate last delivered) plus
(B) the excess of (1) the U.S. Borrowing Base (based on the Borrowing Base
Certificate last delivered) over (2) the unpaid balance of Extensions of Credit
to, or for the account of, the U.S. Borrowers, the Canadian Borrowers shall
prepay on such day the principal of Canadian Facility Revolving Credit Loans
made to them in an amount equal to such excess. 
If, after giving effect to the prepayment of all outstanding Canadian
Facility Revolving Credit Loans, the aggre­gate amount of the Canadian Facility
L/C Obligations with respect to the Canadian Borrowers exceeds the sum of (A)
the Canadian Borrow­ing Base at such time (based on the Borrowing Base
Certificate last delivered) plus (B) the excess of (1) the U.S. Borrowing Base
(based on the Borrowing Base Certificate last delivered) over (2) the unpaid
balance of Extensions of Credit to, or for the account of, the U.S. Borrowers,
the Canadian Borrowers shall pay to the Canadian Agent at the Payment Office on
such day an amount of cash and/or Cash Equivalents equal to the amount of such
excess (up to a maximum amount equal to the Canadian Facility L/C Obligations
at such time), such cash and/or Cash Equivalents to be held as security for all
obligations of the Canadian Borrowers to the applicable Issuing Lenders and the
Canadian Facility Lenders hereunder in a cash collateral account to be
established by, and under the sole dominion and control of, the Canadian Agent.


 


(iii)          On any day on which the Aggregate U.S. Facility Lender
Exposure exceeds the Total U.S. Facility Commitment at such time, the U.S.
Borrowers shall prepay on such day the principal of U.S. Facility Revolving
Credit Loans in an amount equal to such excess. 
If, after giving effect to the prepayment of all outstanding U.S.
Facility Revolving Credit Loans, the aggregate amount of the U.S. Facility L/C
Obligations exceeds the Total U.S. Facility Commitment at such time, the U.S.
Borrowers shall pay to the Administrative Agent at the Payment Office on such
day an amount of cash and/or Cash Equivalents equal to the amount of such excess
(up to a maximum amount equal to the U.S. Facility L/C Obligations at such
time), such cash and/or Cash Equivalents to be held as security for all
obligations of the U.S. Borrowers to the applicable Issuing Lenders and the
U.S. Facility Lenders hereunder in a cash collateral account to be established
by, and under the sole dominion and control of, the Administrative Agent.


 


(iv)          On any day on which the Dollar Equivalent of the
Aggregate Canadian Facility Revolving Credit Exposure exceeds the Total Canadian
Facility Commitment at such time, the Canadian Borrowers and, if applicable,
the U.S. Borrowers shall prepay on such day the principal of Canadian Facility
Revolving Credit Loans, in an amount equal to such excess.  If, after giving effect to the prepayment of
all outstanding Canadian Facility Revolving Credit Loans, the Dollar Equivalent
of the aggregate amount of the Canadian Facility L/C Obligations exceeds the
Total Canadian Facility Commitment at such time, the Canadian Borrowers and, if
applicable, the U.S. Borrowers shall pay to the Canadian Agent at the Payment
Office on such day an amount of cash and/or Cash Equivalents equal to the
amount of such excess (up to a maximum amount


 


84

















 


equal
to the Canadian Facility L/C Obligations at such time), such cash and/or Cash
Equivalents to be held as security for all obligations of the Canadian
Borrowers or the U.S. Borrowers, as applicable, to the applicable Issuing
Lenders and the Canadian Facility Lenders hereunder in a cash collateral
account to be established by, and under the sole dominion and control of, the
Canadian Agent.


 


(d)           The U.S. Borrowers shall prepay all Swing Line Loans
then outstanding simultaneously with each borrowing by them of Revolving Credit
Loans.


 


(e)           Prepayments pursuant to subsections 4.4(b) and 4.4(c)
shall be applied, first, to prepay Swing Line Loans then outstanding, second,
to prepay Revolving Credit Loans then outstanding, third, to pay any
Reimbursement Obligations then outstanding and, last, to cash
collateralize any outstanding Bankers’ Acceptance or L/C Obligations on terms
reasonably satisfactory to the Administrative Agent.


 


(f)            Reserved.


 


(g)           For avoidance of doubt, the Commitments shall not be
correspondingly reduced by the amount of any prepayments of Revolving Credit
Loans, payments of Reimbursement Obligations and cash collateralizations of L/C
Obligations, in each case, made under subsections 4.4(b) or 4.4(c).


 


(h)           Notwithstanding the foregoing provisions of this subsection
4.4, if at any time any prepayment of the Loans pursuant to subsection 4.4(a),
4.4(b) or 4.4(c) would result, after giving effect to the procedures set forth
in this Agreement, in any Borrower incurring breakage costs under subsection
4.12 as a result of Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent
Loans being prepaid other than on the last day of an Interest Period with
respect thereto, then, the relevant Borrower may, so long as no Default or
Event of Default shall have occurred and be continuing, in its sole discretion,
initially (i) deposit a portion (up to 100%) of the amounts that otherwise
would have been paid in respect of such Eurocurrency Loans, Bankers’
Acceptances or BA Equivalent Loans with the Administrative Agent or the Canadian
Agent, as applicable (which deposit must be equal in amount to the amount of
such Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans not
immediately prepaid), to be held as security for the obligations of such
Borrowers to make such prepayment pursuant to a cash collateral agreement to be
entered into on terms reasonably satisfactory to the Administrative Agent or
the Canadian Agent, as applicable, 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, Bankers’ Acceptances or BA
Equivalent Loans (or such earlier date or dates as shall be requested by such
Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance
with subsection 4.4(a) with an amount equal to a portion (up to 100%) of the
amounts that otherwise would have been paid in respect of such Eurocurrency
Loans or BA Equivalent Loans (which prepayment, together with any deposits
pursuant to clause (i) above, must be equal in amount to the amount of such
Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans not immediately
prepaid); provided that, notwithstanding anything in this Agreement to
the contrary, none of the Borrowers may request any Extension of Credit under
the Commitments that would reduce the aggregate amount of the Available Loan
Commitments to an amount that is less than the amount of such prepayment until
the related portion of such


 


85

















 


Eurocurrency
Loans, Bankers’ Acceptances or BA Equivalent Loans have been prepaid upon the
first occurrence thereafter of the last day of an Interest Period with respect
to such Eurocurrency Loans or BA Equivalent Loans; provided that, in the
case of either clause (i) or (ii), such unpaid Eurocurrency Loans, Bankers’
Acceptances or BA Equivalent Loans shall continue to bear interest in
accordance with subsection 4.1 until such unpaid Eurocurrency Loans, Bankers’
Acceptances or BA Equivalent Loans or the related portion of such Eurocurrency
Loans, Bankers’ Acceptances or BA Equivalent Loans, as the case may be, have or
has been prepaid.


 


4.5           Commitment Fees;
Administrative Agent’s Fee; Other Fees. 
(a)  Each U.S. Borrower agrees to
pay to the Administrative Agent, for the account of each U.S. Facility Lender,
and each Canadian Borrower agrees to the Canadian Agent, for the account of
each Canadian Facility Lender, a commitment fee for the period from and
including the first day of the Revolving Credit Loan Commitment Period to the
Termination Date, computed at the applicable Commitment Fee Rate on the average
daily amount of the Unutilized Revolving Credit Loan Commitment of such
Revolving Credit 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 Revolving
Credit Loan Commitments shall terminate as provided herein, commencing on
December 31, 2005.


 


(b)           Each Borrower agrees to pay to the Administrative
Agent or the Canadian Agent, as applicable, 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,
Canadian Prime Rate or BA 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, Canadian Prime Rate or BA Rate shall be calculated on the basis of
a 365-day year (or 366-day year, as the case may be) day year for the actual
days elapsed.  The Administrative Agent
or the Canadian Agent, as applicable, 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, the Canadian Prime
Rate 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 or the Canadian
Agent, as applicable, 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 or the Canadian Agent, as applicable, pursuant to any
provision of this Agreement shall be conclusive and binding on each of the
Borrowers and the Lenders in the absence of manifest error.  The Administrative Agent or the Canadian
Agent, as applicable, 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 or the
Canadian Agent, as applicable, 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 or the Canadian Prime Rate.


 


86

















 


(c)           Bankers’ Acceptances.


 


(i)            Term.  Each Bankers’
Acceptance shall have a term of 1, 2, 3, or 6 months (or such other periods as
the Administrative Agent or the Canadian Agent, as applicable, and the Canadian
Borrowers may agree from time to time), subject to availability.  No term of any Bankers’ Acceptance shall
extend beyond the Termination Date.


 


(ii)           BA Rate. On each Borrowing Date or other date on which
Bankers’ Acceptances are to be accepted, the Administrative Agent or the
Canadian Agent shall advise the applicable Canadian Borrowers as to such Agent’s
determination of the applicable BA Rate for the Bankers’ Acceptances to be
accepted.


 


(iii)          Purchase. Upon acceptance of a Bankers’ Acceptance by a
Canadian Lender, such Canadian Lender shall purchase, or arrange the purchase
of, such Bankers’ Acceptance at the applicable BA Rate. The Lender shall
provide to the Canadian Agent’s account for payments of the BA Proceeds less
the BA Fee payable by the applicable Canadian Borrower with respect to the
Bankers’ Acceptance.


 


(iv)          Sale.  Each Canadian
Lender may from time to time hold, sell, rediscount or otherwise dispose of any
or all Bankers’ Acceptances accepted and purchased by it.


 


(v)           Power of Attorney for the Execution of Bankers’
Acceptances.
To facilitate the availment of the Canadian Facility by Bankers’ Acceptances,
each Canadian Borrower hereby appoints each Canadian Lender as its attorney to
sign and endorse on its behalf, in handwriting or by facsimile or mechanical
signature as and when deemed necessary by such Canadian Lender, blank forms of
B/As.  In this respect, it is each
Canadian Lender’s responsibility to maintain an adequate supply of blank forms
of B/As for acceptance under this Agreement. 
Each Canadian Borrower recognizes and agrees that all B/As signed and/or
endorsed on its behalf by a Canadian Lender shall bind the applicable Canadian
Borrower as fully and effectually as if signed in the handwriting of and duly
issued by the proper signing officers of such Canadian Borrower.  Each Canadian Lender is hereby authorized to
issue such B/As endorsed in blank in such face amounts as may be determined by
such Canadian Lender; provided that the aggregate amount thereof is equal to
the aggregate amount of B/As required to be accepted and purchased by such
Canadian Lender.  No Canadian Lender
shall be liable for any damage, loss or other claim arising by reason of any
loss or improper use of any such instrument except the gross negligence or
wilful misconduct of the Canadian Lender or its officers, employees, agents or
representatives.  Each Canadian Lender
shall maintain a record with respect to B/As held by it in blank hereunder,
voided by it for any reason, accepted and purchased by it hereunder, and
cancelled at their respective maturities. 
Each Canadian Lender agrees to provide


 


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such
records to any Canadian Borrower at such Canadian Borrower’s expense upon
request.


 


(vi)          Execution.  Drafts drawn
by any Canadian Borrower to be accepted as Bankers’ Acceptances shall be signed
by a duly authorized officer or officers of the applicable Canadian Borrower or
by its attorneys.  Notwithstanding that
any Person whose signature appears on any Bankers’ Acceptance may no longer be
an authorized signatory for the Canadian Borrower at the time of issuance of a
Bankers’ Acceptance, that signature shall nevertheless be valid and sufficient
for all purposes as if the authority had remained in force at the time of
issuance and any Bankers’ Acceptance so signed shall be binding on such
Canadian Borrower.


 


(vii)         Issuance.  The
Administrative Agent or Canadian Agent, as applicable, promptly following
receipt of a notice of a Borrowing, conversion or continuation by way of
Bankers’ Acceptances, shall advise the Canadian Lenders of the notice and shall
advise each Canadian Lender of the face amount of Bankers’ Acceptances to be
accepted by it and the applicable term (which shall be identical for all
Canadian Lenders).  The aggregate face
amount of Bankers’ Acceptances to be accepted by a Canadian Lender shall be determined
by the Administrative Agent or Canadian Agent by reference to that Canadian
Lender’s Canadian Facility Commitment Percentage of the issue of Bankers’
Acceptances, except that, if the face amount of a Bankers’ Acceptance which
would otherwise be accepted by a Canadian Lender would not be Cdn$100,000, or a
whole multiple thereof, the face amount shall be increased or reduced by the
Administrative Agent or the Canadian Agent in its sole discretion to Cdn$1000,
or the nearest whole multiple of that amount, as appropriate; provided that
after such issuance, no Canadian Lender shall have aggregate outstanding
Canadian Facility Revolving Credit Loans in excess of its Canadian Facility
Commitment.


 


(viii)        Rollover.  At or before
10:00 A.M. two (2) Business Days before the maturity date of any Bankers’
Acceptances, the applicable Canadian Borrower shall give to the Administrative
Agent or Canadian Agent, as applicable, written notice which notice shall
specify either that the applicable Canadian Borrower intends to repay the
maturing Bankers’ Acceptances on the maturity date or that the applicable
Canadian Borrower intends to issue Bankers’ Acceptances on the maturity date to
provide for the payment of the maturing Bankers’ Acceptances.  If the applicable Canadian Borrower fails to
provide such notice to the Administrative Agent or the Canadian Agent or fails
to repay the maturing Bankers’ Acceptances, or if a Default or an Event of
Default has occurred and is continuing on such maturity date, the applicable Canadian
Borrower’s obligations in respect of the maturing Bankers’ Acceptances shall be
deemed to have been converted on the maturity date thereof into an ABR Loan in
an amount equal to the aggregate face amount of the maturing Bankers’
Acceptances.  Otherwise, the applicable
Canadian Borrower shall provide payment to the Administrative Agent or Canadian
Agent, as applicable, on behalf of the Canadian Lenders of an


 


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amount
equal to the aggregate face amount of the Bankers’ Acceptances issued by the
applicable Canadian Lenders on their maturity date.


 


(ix)           Waiver of Presentment and Other Conditions. Each Canadian Borrower waives
presentment for payment and any other defense to payment of any amounts due to
a Canadian Lender in respect of a Bankers’ Acceptance accepted and purchased by
it pursuant to this Agreement which might exist solely by reason of the Bankers’
Acceptance being held, at the maturity thereof, by the Canadian Lender in its
own right and each Canadian Borrower agrees not to claim any days of grace if
the Canadian Lender as holder sues such Canadian Borrower on the Bankers’
Acceptance for payment of the amount payable by the Canadian Borrower
thereunder. On the specified maturity date of a B/A, the applicable Canadian
Borrower shall pay to the Canadian Lender that has accepted such B/A the full
face amount of such B/A and after such payment, the applicable Canadian
Borrower shall have no further liability in respect of such B/A and the Canadian
Lender shall be entitled to all benefits of, and be responsible for all
payments due to third parties under, such B/A.


 


(x)            BA Equivalent Loans by Non BA Lenders. Whenever a Canadian Borrower
requests a Revolving Credit Loan by way of Bankers’ Acceptance, each Lender
which is not a Schedule I Lender and each Non BA Lender shall, in lieu of
accepting a Bankers’ Acceptance, make a BA Equivalent Loan in an amount equal
to the Non BA Lender’s Canadian Facility Commitment Percentage.


 


(xi)           Terms Applicable to Discount Notes. 
As set out in the definition of Bankers’ Acceptances, that term includes
Discount Notes and all terms of this Agreement applicable to Bankers’
Acceptances shall apply equally to Discount Notes evidencing BA Equivalent
Loans with such changes as may in the context be necessary.  For greater certainty:


 


(A)                              the term of a Discount Note shall be
the same as the term for Bankers’ Acceptances accepted and purchased on the
same Borrowing Date in respect of the same Revolving Credit Loan;


 


(B)                                an acceptance fee will be payable in
respect of a Discount Note and shall be calculated at the same rate and in the
same manner as the BA Fee in respect of a Bankers’ Acceptance; and


 


(C)                                the BA Rate applicable to a Discount
Note shall be the BA Rate applicable to Bankers’ Acceptances accepted by a
Lender other than Schedule I Lender on the same Borrowing Date or other date,
as the case may be, in respect of the same Revolving Credit Loan.


 


(xii)          Depository Bills and Notes Act (Canada). 
At the option of any Canadian Lender, Bankers’ Acceptances under this
Agreement to be accepted by that Canadian Lender may be issued in the form of
depository bills for deposit with The Canadian Depository for Securities
Limited pursuant to the Depository


 


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Bills and Notes Act (Canada).  All depository bills so issued shall be
governed by the provisions of this Section 4.6.


 


4.7           Inability to
Determine Interest Rate.  If prior to
the first day of any Interest Period, the Administrative Agent or the Canadian
Agent, as applicable, shall have determined (which determination shall be
conclusive and binding upon each of the Borrowers) 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 Eurocurrency Rate”) or the BA Rate (the
“Affected BA Rate”) with respect to any Bankers’ Acceptance or BA
Equivalent Loans (in either case, the “Affected Rate”) for such Interest
Period, the Administrative Agent or the Canadian Agent, as applicable, 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, Bankers’ Acceptances
or BA Equivalent Loans the rate of interest applicable to which is based on the
Affected Eurocurrency Rate or the Affected BA Rate, as applicable, 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), (b) any Loans that were to
have been converted on the first day of such Interest Period to or continued as
Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans the rate of
interest applicable to which is based upon the Affected Eurocurrency Rate or
Affected BA Rate shall be converted to or continued as ABR Loans (to the extent
otherwise permitted by subsection 4.2) and (c) any outstanding Eurocurrency
Loans, Bankers’ Acceptances or, BA Equivalent Loans that were to have been
converted on the first day of such Interest Period to or continued as
Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans the rate of
interest applicable to which is based upon the Affected Eurocurrency Rate or
Affected BA Rate and that are not otherwise permitted to be converted to or
continued as ABR Loans by subsection 4.2 shall, upon demand by the applicable
Revolving Credit Lenders the Commitment Percentage of which aggregate greater
than 50% of such U.S. Facility Revolving Credit Loans or Canadian Facility
Revolving Credit Loans, as applicable, be immediately repaid by the applicable
Borrower on the last day of the then current Interest Period with respect
thereto together with accrued interest thereon or otherwise, at the option of
the Parent Borrower, shall remain outstanding and bear interest at a rate which
reflects, as to each of the Revolving Credit Lenders, such Revolving Credit
Lender’s cost of funding such Eurocurrency Loans, Bankers’ Acceptances or BA
Equivalent Loans, as reasonably determined by such Revolving Credit Lender,
plus the Applicable Margin hereunder. If any such repayment occurs on a day
which is not the last day of the then current Interest Period with respect to
such affected Eurocurrency Loan, Bankers’ Acceptances or BA Equivalent Loan,
the applicable Borrower shall pay to each of the applicable Revolving Credit
Lenders such amounts, if any, as may be required pursuant to subsection
4.12.  Until such notice has been
withdrawn by the Administrative Agent, no further Eurocurrency Loans, Bankers’
Acceptances or BA Equivalent Loans the rate of interest applicable to which is
based upon the Affected Eurocurrency Rate or Affected BA Rate shall be made or
continued as such, nor shall any of the Borrowers have the right to convert ABR
Loans to Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans the
rate of interest applicable to which is based upon the Affected Eurocurrency
Rate or Affected BA Rate.


 


4.8           Pro Rata Treatment and
Payments.  (a)  Each
borrowing of U.S. Facility or Canadian Facility Revolving Credit Loans, as
applicable, (other than Swing Line Loans) by any of the applicable Borrowers
from the Lenders hereunder shall be made, each payment by any of


 


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the Borrowers on account of any
commitment fee in respect of the U.S. Facility or Canadian Facility
Commitments, as applicable, hereunder shall be allocated by the Administrative
Agent or the Canadian Agent, as applicable, and any reduction of the U.S.
Facility or Canadian Facility Commitments of the Lenders, as applicable, shall
be allocated by the Administrative Agent or the Canadian Agent, as applicable,
pro rata according to the U.S. Facility Commitment Percentage or Canadian
Facility Commitment Percentage, as applicable, of the applicable Lenders.  Each payment (including each prepayment) by
any of the applicable Borrowers on account of principal of and interest on any
U.S. Facility or Canadian Facility Revolving Credit Loans, as applicable, shall
be allocated by the Administrative Agent or the Canadian Agent, as applicable,
pro rata according to the respective outstanding principal amounts of such
Revolving Credit Loans then held by the relevant Revolving Credit Lenders.  All payments (including prepayments) to be
made by any of the Borrowers hereunder, whether on account of principal,
interest, fees, Reimbursement Obligations 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 or the Canadian
Agent, as applicable, for the account of the Lenders holding the relevant Loans
or the L/C Participants, as the case may be, at the Administrative Agent’s or
the Canadian Agent’s, as applicable, office specified in subsection 11.2, in
Dollars or Canadian Dollars, as applicable, or, in the case of Loans
outstanding in any Designated Foreign Currency and L/C Obligations in any
Designated Foreign Currency, such Designated Foreign Currency and, whether in
Dollars, Canadian Dollars or any Designated Foreign Currency, in immediately
available funds.  Payments received by
the Administrative Agent or Canadian Agent, as applicable, after such time
shall be deemed to have been received on the next Business Day.  The Administrative Agent or the Canadian
Agent, as applicable, 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 or the Canadian Agent, as applicable, shall
distribute such payment to such Lenders on the next succeeding Business
Day.  If any payment hereunder (other
than payments on the Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent
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, Bankers’ Acceptances or BA
Equivalent 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 or the Canadian Agent,
as the case may be, 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, such Agent may assume that
such Lender is making such amount available to such Agent, and such Agent may,
in reliance upon such assumption, make available to the applicable Borrowers in
respect of such borrowing a corresponding amount.  If such amount is not made available to the
Administrative Agent or the Canadian Agent, as the case may be, by the required
time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent or the Canadian Agent, as the case may be, on demand, such
amount with interest thereon at a rate equal to (i) in


 


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the
case of Loans to be made in any Designated Foreign Currency, the rate customary
in such Designated Foreign Currency for settlement of similar inter-bank
obligations, or (ii) in the case of Loans to be made in Dollars or Canadian
Dollars, the daily average Federal Funds Effective Rate or the rate customary
for settlement of Canadian Dollar interbank obligations, as applicable, and as
quoted by the Administrative Agent or the Canadian Agent, as the case may be,
in each case for the period until such Lender makes such amount immediately
available to the Administrative Agent or the Canadian Agent, as the case may
be.  A certificate of the Administrative
Agent or the Canadian Agent, as the case may be, 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 applicable Agent
by such Lender within three Business Days of such Borrowing Date, (x) the
applicable Agent shall notify the Parent Borrower of the failure of such Lender
to make such amount available to the Administrative Agent or the Canadian
Agent, as the case may be, and such Agent shall also be entitled to recover
such amount with interest thereon at the rate per annum applicable to, in the
case of Loans to be made in Dollars or Canadian Dollars, ABR Loans hereunder
or, in the case of Loans to be made in any Designated Foreign Currency, the
rate per annum applicable to such Loans pursuant to subsection 4.1, in either
case on demand, from such Borrower and (y) then such 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 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 such 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 Revolving Credit Lender shall not
make a Revolving Credit 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 Revolving Credit Lender and
assume all or part of the Commitment of such Defaulting Lender.  In such event, the Parent Borrower, the
Administrative Agent and any such substitute Revolving Credit 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 or Supermajority
Lenders, any Lender that at the time is a Defaulting Lender (and the Revolving
Credit Loans and/or 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.


 


(iii)          If at any time any Borrower shall be required to make
any payment under any Loan Document to or for the account of a Defaulting
Lender, then such Borrower, so long as it is then permitted to borrow Revolving
Credit Loans


 


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hereunder,
may set off and otherwise apply its obligation to make such payment against the
obligation of such Defaulting Lender to make such Defaulted Loan.  In such event, the amount so set off and
otherwise applied shall be deemed to constitute a Revolving Credit Loan by such
Defaulting Lender made on the date of such set-off and included within any
borrowing of Revolving Credit Loans as the Administrative Agent may reasonably
determine.


 


(iv)          If, with respect to any Defaulting Lender, which for
the purposes of this subsection 4.8(c)(iv), shall include any Revolving Credit
Lender that has taken any action or become the subject of any action or
proceeding of a type described in subsection 9(f), any Borrower shall be
required to pay any amount under any Loan Document to or for the account of
such Defaulting Lender, then such Borrower, so long as it is then permitted to
borrow Revolving Credit Loans hereunder, may satisfy such payment obligation by
paying such amount to the Administrative Agent, or the Canadian Agent, as applicable,
to be (to the extent permitted by applicable law and to the extent not utilized
by the Administrative Agent or the Canadian Agent, as applicable, to satisfy
obligations of the Defaulting Lender owing to it) held by the Administrative
Agent or the Canadian Agent, as applicable, in escrow pursuant to its standard
terms (including as to the earning of interest), and applied (together with any
accrued interest) by it from time to time to make any Revolving Credit Loans or
other payments as and when required to be made by such Defaulting Lender
hereunder.


 


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,
Bankers’ Acceptances or BA Equivalent 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 and the
Canadian Agent (in the case of Bankers’ Acceptances or BA Equivalent Loans)
(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 (or a Swing Line 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 (whether
because such Loans are denominated in a Designated Foreign Currency or
otherwise) 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
applicable Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 4.12.


 


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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, Bankers’ Acceptances or any BA Equivalent Loans made or
maintained by it or its obligation to make or maintain Eurocurrency Loans,
Bankers’ Acceptances or BA Equivalent 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 or BA Rate, as the case may be, 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, Bankers’ Acceptances or BA Equivalent 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 applicable 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, Bankers’ Acceptances, BA Equivalent Loans, or Letters of Credit, provided
that, in any such case, such Borrower may elect to convert the Eurocurrency
Loans, Bankers’ Acceptances and/or BA Equivalent 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 such
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


 


94

















 


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 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 applicable
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 each of the Borrowers and the Agents 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


 


95

















 


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 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 any
Borrower or any Agent to the Administrative Agent, the Canadian Agent or any
Lender hereunder or under any Notes, the amounts payable by such Borrower shall
be increased to the extent necessary to yield to the Administrative Agent, the
Canadian 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 each
of the Borrowers shall be entitled to deduct and withhold, and the Borrowers
shall not be required to indemnify for, any Non-Excluded Taxes, and any such
amounts payable by any Borrower or any Agent to, or for the account of, any
such Agent or Lender shall not be increased (x) if such Agent or Lender fails
to comply with the requirements of paragraphs (b) or (c) of this subsection or
subsection 4.15 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 any of the Borrowers, as
promptly as possible thereafter the applicable Borrower shall send to the
Administrative Agent or the Canadian Agent, as applicable, 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 such Borrower showing payment
thereof.  If any of the Borrowers fails
to pay any Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Administrative Agent or the Canadian Agent, as
applicable, the required receipts or other required documentary evidence, such
Borrower shall indemnify the Administrative Agent, the Canadian Agent and the
Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent, the Canadian 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 (other than the Canadian Agent and the
Canadian Collateral Agent), and each Lender that stands ready to make, makes or
holds any Extension of Credit to any U.S. Borrower (a “U.S. Extender of
Credit”), 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 any of the U.S. Borrowers under this
Agreement or any Notes to, or for the account of, such Agent or Lender, deliver
to the U.S. Borrowers and the Administrative Agent (A) two duly completed
copies of United States 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 U.S. Borrowers to be treated as a
U.S. person with respect to such payments (and the U.S. Borrowers and DBNY
agree to so treat DBNY as a U.S. person with respect to such payments), with
the effect that the U.S. Borrowers 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 U.S. Borrowers 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 U.S. Borrowers; and


 


(iii)          obtain such extensions of time for filing and
completing such forms or certifications as may reasonably be requested by any
U.S. 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 U.S. Borrowers and the Administrative
Agent that it is not a bank within the meaning of Section 881(c)(3)(A) of the
Code;


 


(ii)           deliver to the U.S. Borrowers on or before the date of
any payment by any of the U.S. Borrowers, 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 this


 


97

















 


Agreement
and any Notes (and shall also deliver to the U.S. Borrowers 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 any U.S.
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 any U.S. Borrower, to the U.S. Borrowers 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
any of the Borrowers) 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 any of the
U.S. Borrowers under this Agreement or any Notes to, or for the account of,
such Lender, deliver to the U.S. Borrowers 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 U.S. Borrowers
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 U.S.
Borrowers 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 U.S. Borrower and the Administrative Agent (I)
two duly completed copies of 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 withholding tax with respect to all payments under this Agreement and
any Notes; and


 


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(B)           with respect to each beneficiary or
member of such Lender that is claiming the so-called “portfolio interest
exemption”, (I) represent to the U.S. Borrowers and the Administrative Agent
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 U.S. Borrowers 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 U.S. Borrowers 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 any U.S. 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 any U.S. Borrower, to the U.S. Borrowers 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 any of the Borrowers) 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 Agent and each U.S. Extender of Credit, 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 any of the U.S.
Borrowers under this Agreement or any Notes to, or for the account of, such
Agent or U.S. Extender of Credit, deliver to the U.S. Borrowers and the
Administrative Agent two duly completed copies of Internal Revenue Service Form
W-9, or successor form, certifying that such Agent or U.S. Extender of Credit
is a United States Person (within the meaning of Section 7701(a)(30) of the
Internal Revenue Code) and that such Agent


 


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or
U.S. Extender of Credit is entitled to a complete exemption from United States
backup withholding tax.


 


4.12         Indemnity.  Each U.S. Borrower agrees to indemnify each
U.S. Facility Lender and each Canadian Facility Revolving Lender, as
applicable, in respect of Extensions of Credit made, or requested to be made,
to the U.S. Borrowers, and each Canadian Borrower agrees to indemnify each
Canadian Facility Lender in respect of Extensions of Credit made, or requested
to be made, to the Canadian Borrowers, and, in each case, 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 such Borrower in making a borrowing of,
conversion into or continuation of Eurocurrency Loans, Bankers’ Acceptances or
BA Equivalent Loans after the Parent Borrower has given a notice requesting the
same in accordance with the provisions of this Agreement, (b) default by such
Borrower in making any prepayment or conversion of Eurocurrency Loans, Bankers’
Acceptances or BA Equivalent 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, Bankers’ Acceptances or BA
Equivalent Loans or the conversion of Eurocurrency Loans, Bankers’ Acceptances
or BA Equivalent 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, Bankers’ Acceptances or BA Equivalent
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 applicable Borrower, each Lender to which any of the Borrowers
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 such Borrower the opportunity to contest, and
reasonably cooperate with such 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 such Borrower the opportunity to so
contest unless


 


100

















 


such Borrower shall have
confirmed in writing to such Lender its obligation to pay such amounts pursuant
to this Agreement and (ii) such Borrower shall reimburse such Lender for its
reasonable attorneys’ and accountants’ fees and disbursements incurred in so
cooperating with such Borrower in contesting the imposition of such Non-Excluded
Tax; provided, however, that notwithstanding the foregoing no
Lender shall be required to afford any Borrower the opportunity to contest, or
cooperate with such 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 any of
the Borrowers to become obligated to pay any additional amount under subsection
4.10 or 4.11, such 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 any of the Borrowers pursuant to
subsection 4.10 or 4.11, such Lender shall promptly notify the applicable
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 any of the Borrowers 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 applicable 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 such 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 (and, if applicable, the Canadian 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, HERC, the Parent Borrower (and any other applicable 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
applicable Borrower shall first pay the affected


 


101

















 


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 any of the Borrowers 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 with any interest
with respect thereto received from the relevant taxing authority, but net of
any reasonable cost incurred in connection therewith) to such Borrower; provided,
however, that such 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 Aggregate Outstanding Credit Exceeds Aggregate Revolving Credit Loan
Commitments.  (a)  In
addition to the provisions set forth in subsection 4.4(c), HERC and the Parent
Borrower will implement and maintain internal controls to monitor the
borrowings and repayments of Loans by the Borrowers and the issuance of and
drawings under Letters of Credit, with the object of (A) preventing any request
for an Extension of Credit that would result in (i) the Aggregate Outstanding
Credit with respect to all of the Revolving Credit Lenders (including the Swing
Line Lender) being in excess of the aggregate Commitments then in effect or
(ii) any other circumstance under which an Extension of Credit would not be
permitted pursuant to subsection 2.1(a) and (b) and of (B) promptly identifying
any circumstance where, by reason of changes in exchange rates, the Aggregate
Outstanding Credit with respect to all of the Revolving Credit Lenders
(including the Swing Line Lender) exceeds the aggregate Commitments then in
effect.


 


(b)           The (i) Administrative Agent will calculate the
Aggregate Outstanding Credit with respect to all of (A) the Revolving Credit
Lenders and (B) the U.S. Facility Lenders (in each case, including the Swing
Line Lender) and (ii) Canadian Agent will calculate the Aggregate Outstanding
Credit with respect to the Canadian Facility Lenders, in each case, 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 Swing Line Lender in respect of outstanding Swing Line Loans, from the
Issuing Lenders in respect of outstanding L/C Obligations and from the Canadian
Agent in respect of the Aggregate Outstanding Credit with respect to the
Canadian Facility Lenders.


 


4.15         Canadian Facility
Lenders.  The Canadian Agent, the
Canadian Collateral Agent and any Lender that holds any commitment or makes or
holds any Extension of Credit to any Canadian Borrower (such Lender, a “Canadian
Extender of Credit”) will at all times be a Canadian Resident.  To the extent legally entitled to do so, the
Canadian Agent, the Canadian Collateral Agent and each Canadian Extender of
Credit shall, upon written request by any Borrower, deliver to such Borrower or
the applicable governmental or taxing authority, any form


 


102

















 


or certificate required in
order that any payment by any Borrower under this Agreement or any Notes to, or
for the account of, such Person may be made free and clear of, and without
deduction or withholding for or on account of, any Non-Excluded Taxes, provided
that in determining the reasonableness of such a request such Person shall be
entitled to consider the cost (to the extent unreimbursed by a Borrower) which
would be imposed on such Person of complying with such request.


 


(b)           A Canadian Facility Lender may change its Affiliate
acting as Canadian Lender hereunder but only pursuant to an assignment in form
and substance reasonably satisfactory to the Administrative Agent and the
Canadian Agent (with the consent of the Administrative Agent and the Canadian
Agent and each Canadian Issuing Lender and the Canadian Borrowers), where the
respective assignee represents and warrants that it is an Affiliate of the
respective Canadian Facility Lender and represents and warrants that it is a Canadian
Resident and will act directly as a Canadian Lender with respect to the
Canadian Facility Commitment of the respective Canadian Facility Lender.


 


(c)           Each Non-Canadian Affiliate will at all times comply
with the provisions of subsection 4.11(b) or 4.11(c), as applicable.


 


4.16         Cash
Receipts. 
(a)  Annexed hereto as Schedule
4.16(a), as the same may be modified from time to time by notice to the
Administrative Agent, is a schedule of all DDAs that are maintained by the Loan
Parties, which schedule includes, with respect to each depository (i) the name
and address of such depository; (ii) the account number(s) maintained with such
depository; and (iii) a contact person at such depository.


 


(b)           Annexed hereto as Schedule 4.16(b), as the same may be
modified from time to time by notice to the Administrative Agent, is a list
describing all arrangements to which any Loan Party is a party with respect to
the payment to such Loan Party of the proceeds of all credit card charges for
sales of goods or services by such Loan Party.


 


(c)           Each Loan Party shall (i) deliver to the
Administrative Agent or, if such Loan Party is a Canadian Loan Party, the
Canadian Agent, notifications in form reasonably satisfactory to the
Administrative Agent or the Canadian Agent, as the case may be, which have been
executed on behalf of such Loan Party and addressed to such Loan Party’s credit
card clearinghouses and processors, in form reasonably satisfactory to the
Administrative Agent or the Canadian Agent, as the case may be (each, a “Credit
Card Notification”), (ii) deliver to the Administrative Agent or, if such
Loan Party is a Canadian Loan Party, the Canadian Agent, notifications executed
on behalf of the Borrowers to each depository institution with which any DDA is
maintained, in form reasonably satisfactory to the Administrative Agent or the
Canadian Agent, as the case may be, of the Administrative Agent’s (or, in the
case of any Loan Party that is a Canadian Loan Party, the Canadian Agent’s)
interest in such DDA (each, a “DDA Notification”), (iii) instruct each
depository institution for a DDA to cause all amounts on deposit and available
at the close of each Business Day in such DDA to be swept to one of the Loan
Parties’ concentration accounts no less frequently than on a daily basis, such
instructions to be irrevocable unless otherwise agreed to by the Administrative
Agent or the Canadian Agent, as the case may be, (iv) enter into a blocked
account agreement (each, a “Blocked Account Agreement”), in form
reasonably satisfactory to the Administrative Agent or the Canadian


 


103

















 


Agent,
as the case may be, with the Administrative Agent or the Canadian Agent, as the
case may be, and any bank with which such Loan Party maintains a concentration
account into which the DDAs and proceeds released from the HERC LKE Account and
the Rental Car LKE Account are swept (each such account of a Loan Party other
than a Canadian Loan Party, a “U.S. Blocked Account”, each such account
of a Canadian Loan Party, a “Canadian Blocked Account” and all such
accounts, collectively, the “Blocked Accounts”), covering each such
concentration account maintained with such bank (other than any HERC LKE
Account or Rental Car LKE Account), which concentration accounts as of the
Closing Date are listed on Schedule 4.16(c) annexed hereto and (v) instruct all
Account Debtors of the Parent Borrower and its Domestic and Canadian
Subsidiaries to remit all payments of all Accounts of such Account Debtor to
the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the
applicable DDA or concentration account, which remittances shall be collected
by the applicable bank (each, a “Collection Bank”) and deposited in the
applicable DDA or concentration account. 
All amounts received by the Parent Borrower, any of its Domestic or
Canadian Subsidiaries (including HERC) and any Collection Bank in respect of
any Account, in addition to all other cash received from any other source,
shall upon receipt be deposited into a DDA or concentration account.  Each Loan Party agrees that it will not cause
proceeds of such DDAs to be otherwise redirected.


 


(d)           Each Credit Card Notification and Blocked Account
Agreement shall require, after the occurrence and during the continuance of an
Event or Default or a Dominion Event, the ACH or wire transfer no less
frequently than once per Business Day (unless the Commitments have been
terminated and the obligations hereunder and under the other Loan Documents
have been paid in full), of all available cash balances and cash receipts,
including the then contents or then entire ledger balance of each U.S. Blocked
Account net of such minimum balance (not to exceed $10,000 per account), if
any, required by the bank at which such U.S. Blocked Account is maintained to
an account maintained by the Administrative Agent at DBNY (the “DBNY Account”)
and of each Canadian Blocked Account net of such minimum balance (not to exceed
$10,000 per account), if any, required by the bank at which such Canadian
Blocked Account is maintained to an account maintained by the Canadian Agent at
DBCB (the “DBCB Account”).  Each
Loan Party agrees that it will not cause any credit card proceeds or proceeds
of any Blocked Account to be otherwise redirected.


 


(e)           (i)  All collected
amounts received in the DBNY Account shall be distributed and applied on a
daily basis in the following order (in each case, to the extent the
Administrative Agent has actual knowledge of the amounts owing or outstanding
as described below and any applications otherwise described in following
clauses (x) and (y), and after giving effect to the application of any such
amounts (x) otherwise required to be applied pursuant to subsections 4.4(b) or
(y) constituting proceeds from any Collateral otherwise required to be applied
pursuant to the terms of the respective Security Document):  (1)
first, to the payment (on a ratable basis) of any outstanding expenses actually
due and payable to the Administrative Agent, the Collateral Agent, and, to the
extent allocable to Canadian Facility Revolving Credit Loans made to the U.S.
Borrowers, the Canadian Agent and/or the Canadian Collateral Agent under any of
the Loan Documents and to repay or prepay outstanding U.S. Facility Revolving
Credit Loans advanced by the Administrative Agent and Canadian Facility
Revolving Credit Loans made to the U.S. Borrowers by the Canadian Agent on
behalf of the applicable Lenders hereunder; (2) second, to the extent all
amounts referred to in preceding clause (1) have been paid in full, to pay (on
a ratable basis) all outstanding expenses actually due and payable to each


 


104

















 


U.S.
Issuing Lender under any of the Loan Documents and to repay all outstanding
U.S. Borrower Unpaid Drawings and all interest thereon; (3) third, to the
extent all amounts referred to in preceding clauses (1) and (2) have been paid
in full, to pay (on a ratable basis) all accrued and unpaid interest actually
due and payable on the U.S. Facility Revolving Credit Loans and Canadian
Facility Revolving Credit Loans made to the U.S. Borrowers and all accrued and
unpaid Fees actually due and payable to the Administrative Agent and the
Canadian Agent, the U.S. Issuing Lenders and the Revolving Credit Lenders under
any of the Loan Documents; (4) fourth, to the extent all amounts referred
to in preceding clauses (1) through (3), inclusive, have been paid in full, to
repay (on a ratable basis) the outstanding principal of U.S. Facility Revolving
Credit Loans and Canadian Facility Revolving Credit Loans made to the U.S.
Borrowers (whether or not then due and payable), (5) fifth, to the extent all
amounts referred to in preceding clauses (1) through (4), inclusive, have been
paid in full, to pay (on a ratable basis) all outstanding obligations of the
U.S. Borrowers then due and payable to the Administrative Agent, the Collateral
Agent, the Canadian Agent, the Canadian Collateral Agent and the Revolving
Credit Lenders under this Agreement and (6) sixth, to the extent all amounts
referred to in preceding clauses (1) through (5), inclusive, have been paid in
full, to pay (on a ratable basis) all other outstanding obligations of the U.S.
Borrowers then due and payable to the Administrative Agent, the Collateral
Agent, the Canadian Agent, the Canadian Collateral Agent and the Revolving
Credit Lenders under any of the Loan Documents.


 


(ii) 
All collected amounts held in the DBCB Account shall be distributed and
applied on a daily basis in the following order (in each case, to the extent
the Canadian Agent has actual knowledge of the amounts owing or outstanding as
described below and any applications otherwise described in following clauses
(x) and (y), and after giving effect to the application of any such amounts (x)
otherwise required to be applied pursuant to subsection 4.4(b) or (y)
constituting proceeds from any Collateral otherwise required to be applied
pursuant to the terms of the respective Security Document):  (1)
first, to the payment (on a ratable basis) of any outstanding expenses actually
due and payable by the Canadian Borrowers to the Canadian Agent and/or the
Canadian Collateral Agent under any of the Loan Documents and to repay or
prepay outstanding Canadian Facility Revolving Credit Loans made to the
Canadian Borrowers by the Canadian Agent on behalf of the Lenders hereunder;
(2) second, to the extent all amounts referred to in preceding clause (1)
have been paid in full, to pay (on a ratable basis) all outstanding expenses
actually due and payable by the Canadian Borrower to each Canadian Issuing
Lender under any of the Loan Documents and to repay all outstanding Canadian
Borrower Unpaid Drawings and interest thereon; (3) third, to the extent all
amounts referred to in preceding clauses (1) and (2) have been paid in full, to
pay (on a ratable basis) all accrued and unpaid interest actually due and
payable on the Canadian Facility Revolving Credit Loans made to the Canadian
Borrowers and all accrued and unpaid Fees actually due and payable by the
Canadian Borrowers to the Canadian Agent, the Canadian Issuing Lenders and the
Canadian Lenders under any of the Loan Documents; (4) fourth, to the extent all
amounts referred to in preceding clauses (1) through (3), inclusive, have been
paid in full, to repay (on a ratable basis) the outstanding principal of
Canadian Facility Revolving Credit Loans made to the Canadian Borrowers
(whether or not then due and payable), (5) fifth, to the extent all amounts
referred to in preceding clauses (1) through (4), inclusive, have been paid in
full, to pay (on a ratable basis) all outstanding obligations of the Canadian
Borrowers then due and payable to the Canadian Agent, the Canadian Collateral
Agent and the Canadian Lenders under this Agreement; and (6) sixth, to the
extent all amounts referred to in preceding clauses (1) through (5), inclusive,
have


 


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been paid in full, to
pay (on a ratable basis) all other outstanding obligations of the Canadian
Borrowers then due and payable to the Canadian Agent, the Canadian Collateral
Agent and the Canadian Lenders under any of the other Loan Documents.


 


(f)            If, at any time after the occurrence and during the
continuance of an Event of Default or a Dominion Event as to which the
Administrative Agent has notified the Borrower, any cash or cash equivalents
owned by any Loan Party (other than (i) de minimis cash or cash equivalents
from time to time inadvertently misapplied by any Loan Party, (ii) funds in any
HERC LKE Account, any Rental Car LKE Account or any DDA the amounts in which
are solely swept into any HERC LKE Account or Rental Car LKE Account and
(iii) any funds which are held by Hertz Claim Management Corporation or
any of its Subsidiaries on behalf of any customer in the ordinary course of
business) are deposited to any account, or held or invested in any manner,
otherwise than in a Blocked Account subject to a Blocked Account Agreement (or
a DDA which is swept daily to such Blocked Account), the Administrative Agent
or the Canadian Agent, as the case may be, shall be entitled to require the
applicable Loan Party to close such account and have all funds therein
transferred to a Blocked Account, and to caused all future deposits to be made
to a Blocked Account.


 


(g)           The Loan Parties may close DDAs or Blocked Accounts
and/or open new DDAs or Blocked Accounts, subject to the contemporaneous
execution and delivery to the Administrative Agent or the Canadian Agent, as
the case may be, of a DDA Notification or Blocked Account Agreement consistent
with the provisions of this subsection 4.16 and otherwise reasonably
satisfactory to the Administrative Agent or the Canadian Agent, as the case may
be.  Unless consented to in writing by
the Administrative Agent or the Canadian Agent, as the case may be, the Loan
Parties shall not enter into any agreements with credit card processors other
than the ones listed on Schedule 4.16(b) unless contemporaneously therewith a
Credit Card Notification is executed and a copy thereof is delivered to the
Administrative Agent or the Canadian Agent, as the case may be.


 


(h)           (i)            The
DBNY Account shall at all times be under the sole dominion and control of the
Administrative Agent.  Each Loan Party
hereby acknowledges and agrees that, except to the extent otherwise provided in
the U.S. Guarantee and Collateral Agreement (x) such Loan Party has no right of
withdrawal from the DBNY Account, (y) the funds on deposit in the DBNY Account
shall at all times continue to be collateral security for all of the
obligations of the Loan Parties (other than the Canadian Loan Parties)
hereunder and under the other Loan Documents, and (z) the funds on deposit in
the DBNY Account shall be applied as provided in this Agreement and the
Intercreditor Agreement.  In the event
that, notwithstanding the provisions of this subsection 4.16, any Loan Party
receives or otherwise has dominion and control of any proceeds or collections
required to be transferred to the DBNY Account pursuant to subsection 4.16(d),
such proceeds and collections shall be held in trust by such Loan Party for the
Administrative Agent, shall not be commingled with any of such Loan Party’s
other funds or deposited in any account of such Loan Party and shall promptly
be deposited into the DBNY Account or dealt with in such other fashion as such
Loan Party may be instructed by the Administrative Agent.


 


(ii)           The DBCB Account shall at all times be under the sole
dominion and control of the Canadian Agent. 
Each Loan Party hereby acknowledges and agrees that, except to


 


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the extent otherwise
provided in the Canadian Guarantee and Collateral Agreement (x) such Loan Party
has no right of withdrawal from the DBCB Account, (y) the funds on deposit in
the DBCB Account shall at all times continue to be collateral security for all
of the obligations of the Canadian Loan Parties hereunder and under the other
Loan Documents, and (z) the funds on deposit in the DBCB Account shall be
applied as provided in this Agreement and the Intercreditor Agreement.  In the event that, notwithstanding the
provisions of this subsection 4.16, any Loan Party receives or otherwise has
dominion and control of any proceeds or collections required to be transferred
to the DBCB Account pursuant to subsection 4.16(d), such proceeds and collections
shall be held in trust by such Loan Party for the Canadian Agent, shall not be
commingled with any of such Loan Party’s other funds or deposited in any
account of such Loan Party and shall promptly be deposited into the DBCB
Account or dealt with in such other fashion as such Loan Party may be
instructed by the Canadian Agent.


 


(i)            So long as (i) no Event of Default has occurred and is
continuing, and (ii) no Dominion Event has occurred and is continuing, the
Loan Parties may direct, and shall have sole control over, the manner of
disposition of funds in the Blocked Accounts.


 


(j)            Any amounts held or received in the DBNY Account or
the DBCB Account (including all interest and other earnings with respect
hereto, if any) at any time (x) when all of the obligations hereunder and
under the other Loan Documents have been satisfied or (y) all Events of Default
and Dominion Events have been cured, shall (subject in the case of clause (x)
to the provisions of the Intercreditor Agreement), be remitted to the operating
account of the applicable Borrower.


 


(k)           Notwithstanding anything herein to the contrary, the
Loan Parties shall be deemed to be in compliance with the requirements set
forth in this subsection 4.16 during the initial thirty (30) day period commencing
on the Closing Date to the extent that the arrangements described above are
established and effective not later than the date that is thirty (30) days
following the Closing Date or such later date as the Administrative Agent, in
its sole discretion, may agree.


 


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, each of the Parent Borrower
and HERC, in each case with respect only to itself and its Subsidiaries, 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


 


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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 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, each Borrower is Solvent.


 


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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.


 


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 each of the Borrowers, 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 each of the Borrowers, 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 each of the Borrowers,
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, (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, (d) filings pursuant to the Financial Administration Act (Canada) in respect of accounts
of the Parent Borrower and its Subsidiaries the Obligor in respect of which is
Her Majesty the Queen in the right of Canada or any department, agency or
instrumentality thereof and (e) 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 each of the Borrowers, 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 each
of the Borrowers 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).


 


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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 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(1) 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


 






(1)  We will require perfection only in the U.S.
and Canada.


 


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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 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)


 


111

















 


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.  (a)  Upon execution and delivery
thereof by the parties thereto, the U.S. 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 U.S. Secured
Parties, a legal, valid and enforceable security interest in the Collateral
described therein, except as may be 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 U.S. 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 U.S. Guarantee and Collateral Agreement) a security interest in
which is required to be or is perfected by “control” (as described in the
Uniform Commercial Code as in effect in the State of New York 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 U.S. 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.


 


(b)           Upon execution and delivery thereof by the parties
thereto, the Canadian Guarantee and Collateral Agreement will be effective to
create (to the extent described therein) in favor of the Canadian Collateral Agent,
for the ratable benefit of the Canadian Secured Parties, a legal, valid and
enforceable security interest in the Collateral described therein, except as
may be limited by applicable domestic or foreign bankruptcy, insolvency,
fraudulent


 


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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 the actions specified
in Schedule 3 to the Canadian Guarantee and Collateral Agreement have been duly
taken 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 party thereto in the Collateral described therein
with respect to such pledgor.


 


5.15         Investment Company
Act; Other Regulations.  None of the
Borrowers is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act.  None of the Borrowers is 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 Revolving Credit Loans and
Swing Line Loans shall be used by the Borrowers to finance the working capital
and business requirements of, and for general corporate purposes of, the Parent
Borrower and its Subsidiaries; provided that after giving effect to the
Borrowings hereunder on the Closing Date, the Available Loan Commitments shall
not be less than $500,000,000.


 


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, 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


 


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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,
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.


 


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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
U.S. 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.


 


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         Eligible
Accounts.  As of the date of any
Borrowing Base Certificate, all Accounts included in the calculation of
Eligible Accounts on such Borrowing Base Certificate satisfy all requirements
of an “Eligible Account” hereunder.


 


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5.27         Eligible
Rental Equipment.  As of the date of
any Borrowing Base Certificate, all Rental Equipment included in the
calculation of Eligible Rental Equipment on such Borrowing Base Certificate
satisfy all requirements of an “Eligible Rental Equipment” hereunder.


 


5.28         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), (z) and (aa) 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 each Borrower;


 


(ii)           the U.S. Guarantee and Collateral Agreement, executed
and delivered by a duly authorized officer of CCMGC, HERC, 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
(iii) Hertz Vehicle Sales Corporation) and an Acknowledgement and Consent in
the form attached to the U.S. Guarantee and Collateral Agreement, executed and
delivered by each Issuer (as defined therein), if any, that is not a Loan Party
(other than Hertz Finance Centre plc and Hertz Vehicle Financing LLC);


 


(iii)          each Canadian Security Document (which will include
full guarantees of the obligations of the Canadian Borrowers hereunder to be
provided by each Canadian Subsidiary Guarantor), executed and delivered by a
duly authorized officer of each Canadian Borrower and each other Loan Party
signatory thereto;


 


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(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 (iii), (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 (iii), (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 (i) obtained the Senior Term
Facility and (ii) received gross cash proceeds from the Senior Term Loans in an
aggregate amount of $1,707,000,000.


 


(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 Senior
Term Loans 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 Senior Term Loan 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 


 


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consolidated
balance sheet of the Parent Borrower as of the date of the most recent
consolidated 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 Borrowers (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;


 


(iv)          the executed legal opinion of Torys LLP, counsel to
the Canadian Borrowers, substantially in the form of Exhibit D-4; and


 


(v)           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 J,
with appropriate insertions and attachments.


 


(l)            Perfected Liens.


 


(i)            The Collateral Agent shall have obtained a valid security
interest in the Collateral covered by the U.S. Guarantee and Collateral
Agreement and the Mortgages (with the priority contemplated therein); 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.


 


(ii)           The Canadian Collateral Agent shall have obtained a
valid security interest in the Collateral covered by the Canadian Guarantee and
Collateral Agreement (with the priority contemplated therein); and all
documents, instruments, filings, recordations and searches reasonably necessary
in connection with the perfection and, in the case of the filings with the
Canadian Intellectual


 


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Property
Office, protection of such security interests shall have been executed and
delivered or, in the case of PPSA filings, written authorization to make such
PPSA filings shall have been delivered to the Canadian 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 PPSA financing statement or by making a filing with
the Canadian Intellectual Property Office, if perfection of the Canadian
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 U.S. Guarantee and Collateral Agreement or any
Canadian Security Document, 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 U.S. Guarantee and Collateral Agreement or
any Canadian Security Document, duly endorsed as required by the U.S. Guarantee
and Collateral Agreement.


 


(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


 


122

















 


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)           Borrowing Certificate. 
The Administrative Agent shall have received a certificate from HERC and
the Parent Borrower, dated the Closing Date, substantially in the form of
Exhibit H, with appropriate insertions and attachments, reasonably satisfactory
in form and substance to the Administrative Agent, executed by a Responsible
Officer and the Secretary or any Assistant Secretary of HERC and the Parent
Borrower.


 


(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.


 


(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 Guarantee and Collateral Agreement and any similar
section of any Canadian Guarantee and Collateral Agreement shall have been
satisfied.  Holdings shall have used
reasonable best efforts to cause the Administrative Agent and/or the Canadian
Agent, as applicable, and the other Secured Parties to have been named as
additional insureds with respect to liability policies and the Collateral Agent
and/or the Canadian Collateral Agent, as applicable,


 


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to
have been named as loss payee with respect to the casualty insurance maintained
by each 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.


 


(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


 


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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 or, if none, the treasurer, controller, vice president (finance) or
other responsible financial officer reasonably satisfactory to the
Administrative Agent of each of the Borrowers certifying the solvency of such
Borrower in customary form (as per the applicable jurisdiction of such
Borrower) reasonably satisfactory to the Lead Arrangers.


 


(aa)         Excess
Availability.  The Administrative
Agent shall have received a Borrowing Base Certificate pursuant to subsection
7.2(f) setting forth, after giving effect to the Borrowings hereunder on the
Closing Date, the Available Loan Commitments equal to an amount not less than
$500,000,000.


 


(bb)         Cash
Management.  The Lead Arrangers shall
be reasonably satisfied with the arrangements made by HERC and the Parent
Borrower to comply with the provisions set forth in subsection 4.16 hereof.


 


(cc)         Appraisal.  The Administrative Agent shall have received
(i) appraisal valuations (dated on or after August 31, 2005 but prior to the
Closing Date) of the Collateral of Borrowers prepared by appraisers reasonably
satisfactory to the Lead Arrangers, in form and substance reasonably
satisfactory to the Lead Arrangers and prepared by appraisers reasonably
satisfactory to the Lead Arrangers and (ii) the results of a completed field
examination with respect to the Collateral to be included in calculating the
U.S. Borrowing Base and Canadian Borrowing Base and of the relevant accounting
systems, policies and procedures of the Parent Borrower and its Subsidiaries


 


(dd)         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 (other than as otherwise required by
subsection 7.12 of this Agreement).


 


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:


 


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(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 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 7.13.


 


(c)           Borrowing Notice or L/C Request. 
With respect to any Borrowing, the Administrative Agent or Canadian
Agent, as applicable, shall have received a notice of such Borrowing as
required by subsections 2.2 or 2.7, as applicable (or such notice shall have
been deemed given in accordance with subsections 2.2 or 2.7, as applicable).  With respect to the issuance of any Letter of
Credit, the Issuing Lender shall have received a L/C Request, completed to its
satisfaction, and such other certificates, documents and other papers and
information as the Issuing Lender may reasonably request.


 


Each borrowing
of Loans by and each Letter of Credit issued on behalf of any of the Borrowers
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 (including, to the extent provided
herein, with respect to the initial Extension of Credit hereunder).


 


SECTION
7.    AFFIRMATIVE COVENANTS.


 


Each of the
Parent Borrower and HERC hereby agrees that, from and after the Closing Date
and so long as the Commitments remain in effect, and thereafter until payment
in full of the Loans, all Reimbursement Obligations 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


 


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Letters of
Credit, each of the Parent Borrower and HERC shall and (except in the case of
delivery of financial information, reports and notices) shall cause each of its
respective 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 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; and


 


(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, unaudited 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;


 


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(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 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 (if such compliance is at the time required) 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));


 


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(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, the Parent
Borrower, HERC or Hertz International Ltd. 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. 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)            not later than 5:00 P.M. (New York time) on or before
the tenth Business Day of each Fiscal Period of HERC and the Parent Borrower
and its Subsidiaries (or (i) more frequently as the Parent Borrower may elect
or (ii) upon the occurrence and continuance of an Event of Default, not later
than Wednesday of each week), a borrowing base certificate setting forth the
U.S. Borrowing Base and the Canadian Borrowing Base (in each case with
supporting calculations) substantially in the form of Exhibit M (each, a “Borrowing
Base Certificate”), which shall be prepared as of the last Business Day of
the preceding Fiscal Period of HERC and the Parent Borrower and its
Subsidiaries (or (x) such other applicable date in the case of clause (i) above
or (y) the previous Friday in the case of clause (ii) above) in the case of
each subsequent Borrowing Base Certificate. 
Each such Borrowing Base Certificate shall include such supporting
information as may be reasonably requested from time to time by the Administrative
Agent; and


 


(g)           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


 


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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/or the
Canadian Agent, as applicable, and the other Secured Parties shall be named as
additional insureds with respect to liability policies and the Collateral Agent
and/or the Canadian Collateral Agent, as applicable, shall be named as loss
payee with respect to the casualty insurance maintained by each Borrower and
Subsidiary Guarantor; provided that, unless an Event of Default or a
Dominion Event shall have occurred and be 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 or Dominion Event 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.


 


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(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. 
(a)  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 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 such entity and its Subsidiaries with
officers and employees of such entity 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.  Each Borrower shall keep records of its
Rental Equipment that are accurate and complete in all material respects and
shall furnish the Agents with inventory reports respecting such Rental
Equipment in form and detail reasonably satisfactory to the Agents and Lenders
at such times as the Agents may reasonably request.  Each Borrower shall, at Borrowers’ expense,
conduct a physical inventory of its serialized Rental Equipment no less
frequently than annually or shall have in place a cycle counting (or perpetual
verification) program designed to verify the physical existence of Rental
Equipment in a manner that results in the verification of substantially the
entire amount of the Rental Equipment over the course of a year and shall
provide to the Agents a report based on each such physical inventory or program
promptly after such physical inventory or after the applicable program year, as
applicable, together with such supporting information as the Administrative
Agent shall reasonably request.  The
Collateral Agent and the Canadian Collateral Agent may participate in and
observe any such physical inventory or cycle


 


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counting, which participation
shall be at the Borrowers’ expense regardless of whether an Event of Default
then exists.


 


(b)           At reasonable times during normal business hours and
upon reasonable prior notice that the Administrative Agent requests,
independently of or in connection with the visits and inspections provided for
in clause (a) above, the Parent Borrower and the Subsidiaries will grant access
to the Administrative Agent (including employees of the Administrative Agent or
any consultants, accountants, lawyers and appraisers retained by the
Administrative Agent) to such Person’s premises, books, records, accounts and
Rental Equipment so that (i) the Administrative Agent or an appraiser retained
by the Administrative Agent may conduct a Rental Equipment appraisal and (ii)
the Administrative Agent may conduct (or engage third parties to conduct) such
field examinations, verifications and evaluations (including environmental
assessments) as the Administrative Agent may deem necessary or
appropriate.  Unless an Event of Default
or Liquidity Event exists, or if previously approved by Parent Borrower or its
Subsidiary, no environmental assessment by the Administrative Agent may include
any sampling or testing of the soil, surface water or groundwater.  All such appraisals, field examinations and
other verifications and evaluations shall be at the sole expense of the Loan
Parties; provided that (i) absent the existence and continuation of an Event of
Default or a Liquidity Event, the Administrative Agent may conduct at the
expense of the Loan Parties no more than four (4) such appraisals in any
calendar year; provided that for any calendar year ending after December 31,
2006, such appraisals at the expense of the Loan Parties shall be limited to no
more than two (2) in any calendar year to the extent that the average Available
Loan Commitments for the twelve (12) month period immediately prior to the date
of calculating such average exceeds $500,000,000 and (ii) absent the existence
and continuation of an Event of Default or a Liquidity Event, the
Administrative Agent may conduct at the expense of the Loan Parties no more
than one (1) such field examination in any calendar year to the extent that the
average Available Loan Commitments for the twelve (12) month period immediately
prior to the date of calculating such average exceeds $500,000,000.  All amounts chargeable to the applicable
Borrowers under this subsection 7.6(b) shall constitute obligations that are
secured by all of the applicable Collateral and shall be payable to the Agents
hereunder.


 


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;


 


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(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
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;


 


(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


 


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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;


 


(h)           any loss, damage, or destruction to the Collateral in
the amount of $50,000,000 or more, whether or not covered by insurance; and


 


(i)            any and all default notices received under or with
respect to any leased location or public warehouse where Collateral, either
individually or in the aggregate, in excess of $50,000,000 is located.


 


Each notice
pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer of the Parent Borrower or HERC, as applicable (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.


 


(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.


 


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(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 or the Canadian Collateral Agent, as applicable, 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 or the Canadian Collateral Agent, as applicable, 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, (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 and (iii) any such mortgage by a Canadian Subsidiary
shall not secure any U.S. Borrower’s obligations.  In connection with any such grant to the
Collateral Agent or the Canadian Collateral Agent, as applicable, 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 or
the Canadian Collateral Agent, as applicable, shall reasonably request (in
light of the value of such real property and the cost 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


 


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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 U.S. 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
U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 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; with respect to any Canadian Subsidiary
created or acquired subsequent


 


136

















 


to
the Closing Date by any Canadian Borrower or any Canadian Subsidiary Guarantor,
(A) execute and deliver to the Canadian Collateral Agent for the benefit of the
Canadian Lenders such amendments to the Canadian Guarantee and Collateral
Agreement as the Canadian Collateral Agent shall reasonably deem necessary or
reasonably advisable to grant to the Canadian Collateral Agent, for the benefit
of the Canadian Lenders, a perfected first priority security interest (as and
to the extent provided in the Canadian Guarantee and Collateral Agreement) in
the Capital Stock of such new Canadian Subsidiary and (B) cause such new
Canadian Subsidiary (x) to become a party to the Canadian Guarantee and
Collateral Agreement and (y) to take all actions reasonably deemed by the
Canadian Collateral Agent to be necessary or advisable to cause the Lien
created by the Canadian Guarantee and Collateral Agreement in such new Canadian
Subsidiary’s Collateral to be duly perfected in accordance with all applicable
Requirements of Law, including, without limitation, the filing of financing
statements in such jurisdictions as may be reasonably requested by the Canadian
Collateral Agent.


 


(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 or the Canadian Collateral
Agent, as applicable, 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         Surveys.  Within a reasonable period following the
Closing Date, with respect to those Insured Fee Properties set forth on
Schedule 7.10 for which the title policies delivered pursuant to subsection
6.1(n) contain the standard “survey exception”, obtain surveys


 


137

















 


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


 


7.11         Maintenance
of New York Process Agent.  In the
case of any Canadian Borrower, maintain in New York, New York or at such other
location in the United States of America as may be reasonably satisfactory to
the Administrative Agent a Person acting as agent to receive on its behalf and
on behalf of its property service of process and capable of discharging the
functions of the New York Process Agent set forth in subsection 11.13(b).


 


7.12         Consummation
of Transactions.  The Borrower hereby
agrees to cause the consummation of each of the Acquisition, the Merger, the
Equity Financing, the initial funding under the Senior Term 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.


 


7.13         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)(ii), (iii), (iv) and 6.1(l) 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 7.13,
as such time periods may be extended by the Administrative Agent, in its sole
discretion.


 


SECTION
8.    NEGATIVE COVENANTS.   Each
of the Parent Borrower and HERC hereby agrees that, from and after the Closing
Date and so long as the Commitments remain in effect, and thereafter until
payment in full of the Loans, all Reimbursement Obligations 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 and HERC shall not and shall not permit any of its respective
Subsidiaries to, directly or indirectly:


 


8.1           Financial Condition
Covenants.


 


(a)           Consolidated Leverage Ratio. 
Upon the occurrence and during the continuance of a Liquidity Event,
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

  






 


138

















 




	
  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

  
	
  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

  






 


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 Fixed Charge Ratio.  Upon the occurrence
and during the continuance of a Liquidity Event, permit, for any period of four
consecutive fiscal quarters of the Parent Borrower, the Consolidated Fixed
Charge Coverage Ratio as at the last day of such period of four consecutive
fiscal quarters to be less than 1.00 to 1.00.


 


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 each of the Borrowers incurred
pursuant to this Agreement and the other Loan Documents;


 


(b)           (i) 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 Euro 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


 


139

















 


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 Senior Term
Loans Documents; provided that the aggregate principal amount of
Indebtedness at any time outstanding pursuant to this clause (d) shall not
exceed $2,250,000,000 (except as a result of any capitalization of accrued and
unpaid interest thereon, including through the issuance of pay-in-kind notes),
provided that such Indebtedness shall not be extended, renewed, replaced,
refinanced or otherwise amended, except as permitted by subsection 8.14;


 


(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


 


140

















 


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 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;


 


141

















 


(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;


 


(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 Borrowers 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


 


142

















 


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


 


(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 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
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;


 


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(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 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


 


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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;


 


(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


 


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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 U.S. Security Document to secure the “Secured Obligations” as
defined in the U.S. 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 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, and
shall rank pari passu with, the Liens on the Collateral securing Indebtedness
permitted by subsection 8.2(d).


 


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(o);


 


(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;


 


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(e)           Reimbursement Obligations in respect of the Letters of
Credit;


 


(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;


 


(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 U.S.
Guarantee and Collateral Agreement or any Canadian Security Document 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 Borrowers 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 Borrowers
and (z)


 


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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 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)); provided that in any case where the Subsidiary that is the
non-surviving entity is a North American Subsidiary and such Subsidiary’s
assets include real property owned by such North American Subsidiary or Voting
Stock of any other North American Subsidiary, or if such merger or
consolidation constitutes (alone or together with any related merger or
consolidation by any North American Subsidiary) a transfer of all or
substantially all of the assets of the Domestic Subsidiaries or Canadian
Subsidiaries that are Loan Parties, (1) the continuing or surviving entity
shall be a Loan Party, or (2) such merger, consolidation or amalgamation shall
be in the ordinary course of business, or (3) if the continuing or surviving
entity is not a Loan Party, the Net Cash Proceeds of all such assets
transferred by a North American Subsidiary pursuant to this clause (3) do not
exceed $20,000,000 in any fiscal year, or (4) at the time of such merger,
consolidation or amalgamation, the Payment Conditions are satisfied;


 


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(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); provided that if any Borrower so
disposes of all or substantially all of its assets, (i) in the case of HERC,
such sale, lease, transfer or other disposition of all or substantially all of
its assets may be made only to the Parent Borrower and (ii) in all other cases,
either (A) such Borrower shall, simultaneously with such disposition, (1) repay
in full all outstanding Loans made (x) to it and (y) against assets contributed
by it to the Borrowing Base, to any other Borrower and (2) terminate its right
to borrow hereunder or (B) the transferee of such assets shall be a Borrower; provided,
further, that (x) if the Subsidiary that disposes of any or all of its assets
is a North American Subsidiary and such disposition includes real property
owned by such North American Subsidiary or Voting Stock of any other North
American Subsidiary, or constitutes (alone or together with any related
disposition of assets by any North American Subsidiary) all or substantially
all of the assets of the Domestic Subsidiaries or Canadian Subsidiaries that
are Loan Parties, (1) the transferee of such assets shall be a Loan Party, or
(2) such disposition shall be in the ordinary course of business, or (3) if the
transferee of such assets is not a Loan Party, the Net Cash Proceeds of all
such assets transferred by a North American Subsidiary pursuant to this clause
(3) do not exceed $20,000,000 in any fiscal year, or (4) at the time of such
disposition, the Payment Conditions are satisfied;


 


(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;


 


(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


 


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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 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


 


150

















 


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 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


 


151

















 


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;


 


(e)           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 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;


 


(f)            in addition to the foregoing dividends, the Parent
Borrower may pay additional dividends, payments and distributions; provided
that, at the time such dividend, payment or distribution is made, the Payment
Conditions are satisfied: and


 


(g)           the Parent Borrower may pay cash dividends; provided
that the aggregate amount of such dividends pursuant to this clause (g), when
aggregated with (i) all investments, loans and advances made pursuant to
subsection 8.9(k) and (p), (ii) all cash consideration paid in respect of
acquisitions pursuant to subsection 8.10(b)(iii) and (iii) all optional
prepayments made pursuant to subsection 8.14(e), do not exceed $100,000,000 in
the aggregate.


 


8.8           Limitation
on Capital Expenditures.  At any time
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:


 


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  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
  21, 2010

  	
   

  	
  $

  	
  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;


 


(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;


 


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(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; provided
that (i) the aggregate amount of such Investments made pursuant to this clause
(k), when aggregated with (A) all cash dividends paid pursuant to subsection
8.7(g), (B) all investments, loans and advances made pursuant to clause (p) of
this subsection 8.7, (C) all cash consideration paid in respect of acquisitions
pursuant to subsection 8.10(b)(iii) and (D) all optional prepayments made
pursuant to subsection 8.14(e), do not exceed $100,000,000 in the aggregate and
(ii) 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 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


 


154

















 


(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 not otherwise permitted by the other
clauses of this subsection 8.9; provided that at the time such
Investments are made the Payment Conditions are satisfied;


 


(p)           other Investments; provided that (i) the
aggregate amount of such Investments made pursuant to this clause (p), when
aggregated with (A) all cash dividends paid pursuant to subsections 8.7(g), (B)
all investments, loans and advances made pursuant to clause (k) of this
subsection 8.9, (C) all cash consideration paid in respect of acquisitions
pursuant to subsection 8.10(b)(iii) and (D) all optional prepayments made
pursuant to subsection 8.14(e), do not exceed $100,000,000 in the aggregate;


 


(q)           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”);
and


 


(r)            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


 


155

















 


(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 in clauses (i) and (ii) of this subsection 8.10(b)) and
Indebtedness (whether incurred or assumed, in an aggregate amount); provided
that the aggregate amount of such cash consideration (net of any increase in
the Available Loan Commitment attributable to the purchase of revenue earning
equipment in connection with such acquisition) paid pursuant to this clause
(b)(iii), when aggregated with (A) all cash dividends paid pursuant to
subsections 8.7 (g), (B) all investments, loans and advances made pursuant to
subsections 8.9(k) and (p) and (C) all optional prepayments made pursuant to
subsection 8.14(e), do not exceed $100,000,000 in the aggregate; or


 


(c)           the Payment Conditions shall have been satisfied;


 


provided, further that in the case of
each such acquisition pursuant to clauses (a), (b) and (c) 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 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


 


156

















 


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;


 


(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)


 


157

















 


“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 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 Senior Term Loans or the New Notes (together, “Restricted
Indebtedness”) or the Existing Notes (other than pursuant to the Tender
Offers) (in each case, other than as provided in the respective definition
thereof) or any other Indebtedness (other than Indebtedness incurred pursuant
to subsections 8.2(a), (c) (to the extent such Indebtedness constitutes
Long-Dated Bonds being refinanced with proceeds from the issuance of Additional
Senior Notes), (e), (f), (l), (p), (q), (u), (v)), including any payments on
account of, or for a sinking or other analogous fund for, the repurchase,
redemption, defeasance or other acquisition thereof, unless, in each case, the
Payment Conditions shall have been satisfied.


 


158

















 


(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 Borrowers
shall have (i) made payment in full of the Loans, all Reimbursement Obligations
and any other amounts then due and owing to any Lender or the Administrative
Agent hereunder and under any Note and cash collateralized the Bankers’
Acceptances and the L/C Obligations on terms reasonably satisfactory to the
Administrative Agent or (ii) made an offer to pay the Loans, all Reimbursement
Obligations and any amounts then due and owing to each Lender and the
Administrative Agent hereunder and under any Note and to cash collateralize the
Bankers’ Acceptances and 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
Bankers’ Acceptances and 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) any New Notes Indenture 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;


 


(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)           Amend, supplement, waive or otherwise
modify any of the provisions of any Senior Term Loans Document (including
pursuant to an extension, renewal, replacement or refinancing thereof) which
shortens the average weighted maturity or the fixed maturity or increases the
principal amount of the Indebtedness evidenced by the Senior Term Loans
Documents; or effect any extension, refinancing, refunding, replacement or
renewal of


 


159

















 


Indebtedness under the Senior
Term Loan Documents, unless such refinancing Indebtedness, if secured, is
secured only by assets of the Loan Parties that constitute Collateral for the
obligations of the Borrowers hereunder and under the other Loan Documents
pursuant to a security agreement subject to the Intercreditor Agreement or
another intercreditor agreement that is no less favorable to the Secured
Parties than the Intercreditor Agreement;


 


(e)           (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.


 


(f)            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 Senior
Term Loans, the New Notes or the Existing Notes that has the same economic
effect on the Parent Borrower as any optional payment or prepayment or
repurchase or redemption of such Senior Term Loans, New Notes or Existing 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 or
the Payment Conditions being satisfied.


 


(g)           Notwithstanding the foregoing, the Parent Borrower
shall be permitted to make optional payments in respect of the Senior Term
Loans, the New Notes or the Existing Notes; provided that the aggregate
amount of optional payments made pursuant to this clause (e), when aggregated
with (i) all cash dividends paid pursuant to subsections 8.7 (g), (ii) all
investments, loans and advances made pursuant to subsections 8.9(k) and (p) and
(iii) all cash consideration paid in respect of acquisitions pursuant to
subsection 8.10(b)(iii), do not exceed $100,000,000 in the aggregate.


 


8.15         Limitation
on Changes in Fiscal Year.  Permit
the fiscal year of HERC, 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
HERC or 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 Senior Term Loans Documents, (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


 


160

















 


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 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.


 


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


 


(a)           Any of the Borrowers shall fail to pay any principal
of any Loan or any Reimbursement Obligation when due in accordance with the
terms hereof (whether at stated maturity, by mandatory prepayment or
otherwise); or any of the Borrowers shall


 


161

















 


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 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 subsections 4.16, 7.2(f) (after one Business Day
grace period), 7.4 (with respect to maintenance of existence) 7.5, 7.6, 7.7(a)
or Section 8 of this Agreement, Section 5.2.2 of the U.S. Guarantee and
Collateral Agreement or Section 5.2.2 of the Canadian 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; and provided, further, that if (x) any such failure
with respect to subsections 4.16, 7.4, 7.5 or 7.6  is of a type that can be cured within five
Business Days and (y) such Default could not materially adversely impact the
Lenders’ Liens on the Collateral, such failure shall not constitute an Event of
Default for five Business Days after the occurrence thereof so long as the Loan
Parties are diligently pursuing the cure of such failure; 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 Obligations) 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
Obligations) 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


 


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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


 


(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


 


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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


 


(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 Notes Indenture, to
the obligations of the Borrowers hereunder or Guarantee Obligations (in each
case to the extent such obligations of such Borrowers or such Guarantee
Obligations constitute “Indebtedness” as defined in the applicable New Notes
Indenture on the date hereof) of such Loan Party hereunder, or under the U.S.
Guarantee and Collateral Agreement or the Canadian 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


 


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(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 any 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 amounts of BA
Equivalent Loans and L/C Obligations, whether or not the beneficiaries of the
then outstanding Letters of Credit shall have presented the documents required
thereunder and whether or not the BA Equivalent Loans have matured) 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 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
amounts of Bankers’ Acceptances and L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder and whether or not the Bankers’ Acceptances
have matured) to be due and payable forthwith, whereupon the same shall
immediately become due and payable.


 


In the case of
all U.S. Facility 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 applicable U.S. 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 U.S. Facility Letters of Credit (and each U.S. Borrower hereby grants to
the Collateral Agent, for the ratable benefit of the applicable 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 U.S.
Facility Letters of Credit and all other obligations under the Loan Documents
of the US Borrowers).  In the case of all
Canadian Facility 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 applicable Canadian Borrower shall at such time deposit in a cash
collateral account opened by the applicable Agent an amount in immediately
available funds equal to the aggregate then undrawn and unexpired amount of
such Canadian Facility Letters of Credit (and the Canadian Borrowers hereby
grant to the Canadian Collateral Agent, for the ratable benefit of the
applicable 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 Canadian Facility Letters of Credit and all other
obligations of such Canadian Borrowers under the Loan Documents).  If at any time the Administrative Agent or
the Canadian Agent, as applicable, determines that any funds held in any such
cash collateral account are subject to any right or claim of any Person other
than the Collateral Agent or the Canadian Collateral Agent, as applicable, and
the applicable Secured Parties, or that the total amount of such funds is less
than the aggregate undrawn and unexpired amount of outstanding U.S. Facility
Letters of Credit or Canadian Facility Letters of Credit, as applicable, the
applicable Borrowers, shall, forthwith upon demand by the Administrative Agent
or the Canadian Agent, as applicable, pay to the Administrative Agent or the
Canadian Agent, as applicable, as additional funds to be deposited and held in
such cash collateral account, an


 


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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 or the Canadian Agent, as applicable, determines to be
free and clear of any such right and claim. 
Amounts held in any such cash collateral account with respect to U.S.
Facility Letters of Credit shall be applied by the Administrative Agent to the
payment of drafts drawn under such U.S. Facility Letters of Credit, and the
unused portion thereof after all such U.S. Facility 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.  Amounts held in any such cash
collateral account with respect to Canadian Facility Letters of Credit shall be
applied by the applicable Agent to the payment of drafts drawn under such
Canadian Facility Letters of Credit, and the unused portion thereof after all
such Canadian Facility 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 Obligations shall have been satisfied and all other
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 applicable 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.  (a) 
Each Lender hereby irrevocably designates and appoints the Agents as the
agents of such Lender under this Agreement and the other Loan Documents, and
each such Lender irrevocably authorizes each agent, in such capacity, 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 such 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 Agents and the Other
Representatives shall not have any duties or responsibilities, except, in the
case of the Administrative Agent, the Collateral Agent, the Canadian Agent, the
Canadian Collateral Agent, and the Issuing Lender, 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 any
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, the Collateral Agent, the Canadian Agent and the Canadian Collateral
Agent may perform any of their respective duties under the Security Documents
by or through one or more of their respective affiliates).


 


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(b)           For greater certainty, and without
limiting the powers of the Agents or any other Person acting as an agent,
attorney-in-fact or mandatory for the Agents under this Agreement or under any
of the Loan Documents, each Lender (for itself and for all other Secured
Parties that are Affiliates of such Lender) and each Agent hereby
(a) irrevocably appoints and constitutes (to the extent necessary) and
confirms the constitution of (to the extent necessary), the Canadian Collateral
Agent as the holder of an irrevocable power of attorney (in such capacity, the “fondé de pouvoir”) within the meaning of Article 2692 of the Civil Code of Québec for the purposes of
entering and holding on their behalf, and for their benefit, any Liens,
including hypothecs (“Hypothecs”), granted or to be granted by any Loan
Party on movable or immovable property pursuant to the laws of the Province of
Québec to secure obligations of any Loan Party under any bond issued by any
Loan Party and exercising such powers and duties which are conferred upon the
Canadian Collateral Agent in its capacity as fondé
de pouvoir under any of the Hypothecs; and (b) appoints (and
confirms the appointment of) and agrees that the Canadian Agent, acting as
agent for the applicable Secured Parties, may act as the custodian, registered
holder and mandatory (in such capacity, the “Custodian”) with respect to
any bond that may be issued and pledged from time to time for the benefit of
the applicable Secured Parties.  Each
applicable Secured Party shall be entitled to the benefits of any charged
property covered by any of the Hypothecs and will participate in the proceeds
of realization of any such charged property, the whole in accordance with the
terms thereof.


 


(c)           The said constitution of the Canadian Collateral Agent
as fondé de pouvoir (within the
meaning of Article 2692 of the Civil Code of
Québec) and of the Canadian Agent as Custodian with respect to any
bond that may be issued and pledged by any Loan Party from time to time for the
benefit of the applicable Secured Parties shall
be deemed to have been ratified and confirmed by any Assignee by the execution
of an Assignment and Acceptance.


 


(d)           Notwithstanding the provisions of Section 32 of An Act Respecting the Special Powers of Legal Persons
(Québec), the Administrative Agent, the Collateral Agent, the Canadian Agent
and the Canadian Collateral Agent may purchase, acquire and be the holder of
any bond issued by any Loan Party.  Each
of the Loan Parties hereby acknowledges that any such bond shall constitute a
title of indebtedness, as such term is used in Article 2692 of the Civil Code of Québec.


 


(e)           The Canadian Collateral Agent herein appointed as fondé de pouvoir and Custodian shall have
the same rights, powers and immunities as the Agents as stipulated in this
Section 10 of the Credit Agreement, which shall apply mutatis
mutandis.  Without limitation,
the provisions of Section 9.9 shall apply mutatis mutandis
to the resignation and appointment of a successor to the Canadian Collateral
Agent acting as fondé de pouvoir and Custodian.


 


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 Canadian Agent in the case of the
Administrative Agent and the Administrative Agent in the case of the Canadian
Agent, the Canadian Collateral Agent in the case of the Collateral Agent, the
Collateral Agent in the case of


 


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the Canadian
Collateral Agent, the Collateral Agent in the case of the Administrative Agent
and the Canadian Collateral Agent in the case of the Canadian 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 Agents 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, any 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 Agents 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, any 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 Agents
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 in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of CCMGC, any 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 or the Canadian
Agent hereunder or given to the Agents for the account of or with copies for
the Lenders, the Agents 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), any Borrower or any other
Loan Party which may come into the possession of the Agents and the Other
Representatives or any of their officers, directors, employees, agents,
attorneys-in-fact or Affiliates.


 


10.4         Reliance
by Agents.  Each 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 any Borrower or CCMGC),
independent accountants and other experts selected by each Agent.  The Agents 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


 


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may be, of
such Note or of any Note or Notes issued in exchange therefor.  Each 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.  Each 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.  No Agent shall 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, HERC, 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 Agents 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 until the Agents shall
have received such directions, the Agents 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 Agents 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 any Agent or any Other Representative hereafter taken, including any review
of the affairs of any Borrowers or any other Loan Party, shall be deemed to constitute
any representation or warranty by such Agent or such Other Representative to
any Lender.  Each Lender represents to
the Agents, the Other Representatives and each of the Loan Parties that,
independently and without reliance upon the any 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 Borrowers
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
Agents 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


 


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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.  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 Commitment 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 Commitments
shall have terminated and the Loans shall have been paid in full, ratably in
accordance with their Commitment 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 such 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,
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 the Issuing Lender and Swing Line Lender shall be
ratable among the Revolving Credit Lenders in accordance with their respective
Commitments (or, if the Commitments have been terminated, the outstanding
principal amount of their respective Revolving Credit Loans and L/C Obligations
and their respective participating interests in the outstanding Letters of
Credit and shall be payable only by the Revolving Credit Lenders).  The agreements in this subsection shall
survive the payment of the Loans and all other amounts payable hereunder.


 


(a)           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.


 


(b)           The agreements in this subsection 10.7 shall survive
the payment of all Borrower Obligations and Guaranteed Obligations (each as
defined in the U.S. Guarantee and Collateral Agreement).


 


10.8         Agents
and Other Representatives in Their Individual Capacity.  Each Agent, the Other Representatives and
their Affiliates may make loans to, accept deposits from and generally engage
in any kind of business with any Borrower or any other Loan Party as though
such Agent and the Other Representatives were not an 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


 


170

















 


participated
in by them, each 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 an Agent or an Other
Representative, and the terms “Lender” and “Lenders” shall include the Agents
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,
the Collateral Agent, the Canadian Agent and the Canadian Collateral Agent, as
applicable, in each case at its option and in its discretion, to release any
Lien granted to 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, the Collateral Agent, the Canadian Agent or the Canadian
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.


 


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(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.  The
Canadian Collateral Agent may, and hereby does, appoint the Canadian Agent as
its agent for the purposes of holding any Collateral and/or perfecting the
Canadian 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, the
Collateral Agent, the Canadian Agent and the Canadian Collateral Agent may
resign as Administrative Agent, Collateral Agent, Canadian Agent or Canadian
Collateral Agent, respectively, upon 10 days’ notice to the applicable
Lenders and the Parent Borrower.  If the
Administrative Agent, the Collateral Agent, the Canadian Agent or the Canadian
Collateral Agent shall resign as Administrative Agent, Collateral Agent,
Canadian Agent or Canadian Collateral Agent, as applicable, under this
Agreement and the other Loan Documents, then the Required Lenders (in the case
of the Administrative Agent and the Collateral Agent) or the majority of the
remaining Canadian Lenders (in the case of the Canadian Agent or the Canadian
Collateral Agent) 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, the Collateral Agent, the Canadian Agent or the
Canadian Collateral Agent, as applicable, and the term “Administrative Agent”, “Collateral
Agent”, “Canadian Agent” or Canadian 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, Collateral
Agent, Canadian Agent or Canadian 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
HERC.  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 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 such
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 (x) shall not be required to act as Issuing
Lender for any Letters of Credit to be issued after the date of such
resignation and (y) shall not be required to act as Swing Line Lender with
respect to Swing Line Loans to be made after the date of such resignation (and
all outstanding Swing Line Loans of such resigning Administrative Agent shall
be required to be repaid in full upon its resignation), although the resigning
Administrative Agent shall retain all rights hereunder as Issuing Lender and
Swing Line Lender with respect to


 


172

















 


all Letters of
Credit issued by it, and all Swing Line Loans made 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       Swing
Line Lender.  The provisions of this
Section 10 shall apply to the Swing Line Lender in its capacity as such to the
same extent that such provisions apply to the Administrative Agent.


 


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
Canadian Agent, the Collateral Agent or the Canadian Collateral Agent, as applicable)
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 or the Administrative Agent (or the
Canadian Agent, the Collateral Agent or the Canadian Collateral Agent, as
applicable), 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:


 


(i)            reduce or forgive the amount or extend the scheduled
date of maturity of any Loan or any Reimbursement Obligation or of any
scheduled installment thereof or reduce 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


 


173

















 


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 Obligation
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 Supermajority Lenders, or consent to the assignment or
transfer by CCMGC, the Parent Borrower or HERC 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 Agents and of any Other Representative
affected thereby;


 


(vi)          amend, modify or waive any provision of the Swing Line
Note (if any) or subsection 2.4 without the written consent of the Swing Line
Lender and each other Lender, if any, which holds, or is required to purchase,
a participation in any Swing Line Loan pursuant to subsection 2.4(d); or


 


(vii)         amend, modify or waive the provisions of any Letter of
Credit or any L/C Obligation without the written consent of the Issuing Lender
and each affected L/C Participant;


 


(viii)        increase the advance rates set forth in the definition
of Canadian Borrowing Base or U.S. Borrowing Base, or make any change to the
definition of “Borrowing Base” (by adding additional categories or components
thereof), “Eligible Accounts”, “Eligible Rental Equipment”, “Eligible Unbilled
Accounts” or “Net Orderly Liquidation Value” that would have the effect of
increasing the amount of the Canadian Borrowing Base or the U.S. Borrowing
Base, reduce the Dollar amount set forth in the definition of  “Dominion Event” or “Liquidity


 


174

















 


Event”,
or increase the maximum amount of permitted Agent Advances under subsection
2.1(d) (which, when aggregated with all other Extensions of Credit made
hereunder, shall under no circumstance exceed the Commitments) in each case,
without the written consent of the Supermajority Lenders; or


 


(ix)           amend, modify or waive the order of application of
payments set forth in the last sentence of subsection 4.4(a), 4.4(e), 4.8(a) or
4.16(e) hereof, or Section 4.1 of the Intercreditor Agreement in each case
without the consent of the Supermajority Lenders.


 


provided  further that, notwithstanding
and in addition to 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.


 


(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 Agents and
all future holders of the Loans.  In the
case of any waiver, each of the Loan Parties, the Lenders and the Agents 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


 


175

















 


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 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 Borrowers, the Administrative Agent,
the Canadian Agent, the Collateral Agent and the Canadian 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
  Borrowers:

  	
   

  	
  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

  



 


176

















 


	
  The Administrative 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

  
	
   

  	
   

  	
   

  
	
  The Canadian Agent/

  	
   

  	
  Deutsche Bank AG, Canada Branch

  
	
  Canadian
  Collateral Agent

  	
   

  	
  222 Bay
  Street, Suite 1100, P.O. Box 64

  
	
   

  	
   

  	
  Toronto,
  Ontario M5K 1E7

  
	
   

  	
   

  	
  Attention:
  Marcellus Leung

  
	
   

  	
   

  	
  Assistant
  Vice President

  
	
   

  	
   

  	
  Facsimile:
  (416) 682-8484

  
	
   

  	
   

  	
  Telephone:
  (416) 682-8252

  



 


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, the Swing Line
Lender (in the case of a Borrowing of Swing Line Loans) 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, the Swing Line
Lender 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 any 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


 


177

















 


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 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.


 


178

















 


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.


 


(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 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 $5,000,000 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;


 


179

















 


(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;


 


(C)           the Assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an administrative
questionnaire; and


 


(D)          any assignment made by a Canadian
Facility Lender of its Canadian Facility Commitment shall only be made to an assignee
with a Non-Canadian Affiliate.


 


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, 4.15 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 Borrowers hereby designate the Administrative
Agent, and the Administrative Agent agrees, to serve as the Borrowers’ 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
Borrowers, the Administrative Agent, the 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,


 


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notwithstanding
notice to the contrary.  The Register
shall be available for inspection by the Borrowers, the 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 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.


 


(c)           (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 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


 


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paragraph
(c)(ii) of this subsection, each 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, 4.15 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 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).  Each 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


 


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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 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 Borrowers), 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 Revolving Credit
Loans or the Reimbursement Obligations 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 Revolving Credit Loans or the Reimbursement Obligations, 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 Revolving Credit Loans
or the Reimbursement Obligations, 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 any
Borrower, any such notice being


 


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expressly
waived by each 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 such 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 such
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.


 


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.


 


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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 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.  (a)  Each party hereto hereby irrevocably and
unconditionally:


 


(i)            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;


 


(ii)           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;


 


(iii)          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
applicable Borrower (or, in the case of any Canadian Borrower, as specified in
paragraph (b)), 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 any such Borrower shall
have been notified pursuant thereto;


 


(iv)          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


 


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(v)           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.


 


(b)           Each Canadian Borrower hereby agrees to irrevocably
and unconditionally appoint an agent for service of process located in The City
of New York (the “New York Process Agent”), reasonably satisfactory to
the Administrative Agent, as its agent to receive on behalf of such Canadian
Borrower and its property service of copies of the summons and complaint and
any other process which may be served in any action or proceeding in any such
New York State or Federal court described in paragraph (a) of this subsection
and agrees promptly to appoint a successor New York Process Agent in The City
of New York (which successor New York Process Agent shall accept such
appointment in a writing reasonably satisfactory to the Administrative Agent)
prior to the termination for any reason of the appointment of the initial New
York Process Agent.  CT Corporation, a
woltersKluwer Company, located at 111 Eighth Avenue, 13th Floor; New York, NY
10011; telephone: 212-590-9310; facsimile: 212-590-9190, has been appointed as
the initial New York Process Agent.  In
any action or proceeding in New York State or Federal court, service may be
made on a Canadian Borrower by delivering a copy of such process to such
Canadian Borrower in care of the New York Process Agent at the New York Process
Agent’s address and by depositing a copy of such process in the mails by
certified or registered air mail, addressed to such Canadian Borrower at its
address specified in subsection 11.2 with (if applicable) a copy to the Parent
Borrower (such service to be effective upon such receipt by the New York
Process Agent and the depositing of such process in the mails as
aforesaid).  Each of the Canadian
Borrowers hereby irrevocably and unconditionally authorizes and directs the New
York Process Agent to accept such service on its behalf. As an alternate method
of service, each of the Canadian Borrowers irrevocably and unconditionally
consents to the service of any and all process in any such action or proceeding
in such New York State or Federal court by mailing of copies of such process to
such Canadian Borrower by certified or registered air mail at its address
specified in subsection 11.2.  Each of
the Canadian Borrowers agrees that, to the fullest extent permitted by
applicable law, a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law.


 


(c)           To the extent that any Canadian Borrower has or hereafter
may acquire any immunity (sovereign or otherwise) from any legal action, suit
or proceeding, from jurisdiction of any court or from set-off or any legal
process (whether service or notice, attachment prior to judgment, attachment in
aid of execution of judgment, execution of judgment or otherwise) with respect
to itself or any of its property, such Canadian Borrower hereby irrevocably
waives and agrees not to plead or claim such immunity in respect of its
obligations under this Agreement and any Note.


 


11.14       Acknowledgements.  Each 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 any Agent nor any Other Representative or Lender
has any fiduciary relationship with or duty to any Borrower arising out of or
in connection with this


 


186

















 


Agreement
or any of the other Loan Documents, and the relationship between the
Administrative Agent and Lenders, on the one hand, and the Borrowers, on the
other hand, in connection herewith or therewith is solely that of creditor and
debtor; and


 


(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 Borrowers and the
Lenders.


 


11.15       Waiver
Of Jury Trial.  EACH OF THE
BORROWERS, 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, HERC 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, HERC 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 any 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,


 


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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 any
Borrower being violated.


 


11.17       USA
Patriot Act Notice.  Each Lender
hereby notifies each 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 each Borrower, which information includes the name
of each Borrower and other information that will allow such Lender to identify
each Borrower in accordance with the Patriot Act, and each 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. or Canada. 
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 or Canada, 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.


 


(b)           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.


 


11.19       Joint and Several Liability; Postponement of Subrogation.  (a) The obligations of the U.S. Borrowers
hereunder and under the other Loan Documents shall be joint and several and, as
such, each U.S. Borrower shall be liable for all of the such obligations of the
other U.S. Borrower under this Agreement and the other Loan Documents.  The obligations of the Canadian Borrowers
hereunder and under the other Loan Documents shall be joint and several and, as
such, each Canadian Borrower shall be liable for all of such obligations of the
other Canadian Borrower under this Agreement and the other Loan Documents.  To the fullest extent permitted by law the
liability of each Borrower for the obligations under this Agreement and the other
Loan Documents of the other applicable Borrowers with whom it has joint and
several liability shall be absolute, unconditional and irrevocable, without
regard to (i) the validity or enforceability of this Agreement or any other
Loan Document, any of the obligations hereunder or thereunder or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by any applicable Secured Party,
(ii) any defense, set-off or counterclaim (other than a defense of payment or
performance hereunder; provided that no Borrower hereby waives any suit
for breach of a contractual provision of any of the Loan Documents) which may
at any time be available to or be asserted by such other applicable Borrower or
any other Person against any Secured Party or (iii) any other circumstance
whatsoever (with or without notice to or knowledge of such other applicable
Borrower or such Borrower) which constitutes, or might be construed to
constitute, an equitable


 


188

















 


or legal discharge of such
other applicable Borrower for the obligations hereunder or under any other Loan
Document, or of such Borrower under this Section, in bankruptcy or in any other
instance.


 


(b)           Each Borrower agrees that it will not exercise any
rights which it may acquire by way of rights of subrogation under this
Agreement, by any payments made hereunder or otherwise, until the prior payment
in full in cash of all of the obligations hereunder and under any other Loan
Document, the termination or expiration of all Letters of Credit and the
permanent termination of all Commitments. 
Any amount paid to any Borrower on account of any such subrogation
rights prior to the payment in full in cash of all of the obligations hereunder
and under any other Loan Document, the termination or expiration of all Letters
of Credit and the permanent termination of all Commitments shall be held in
trust for the benefit of the applicable Secured Parties and shall immediately be
paid to the Administrative Agent or the Canadian Agent, as applicable, for the
benefit of the applicable Secured Parties and credited and applied against the
obligations of the applicable Borrowers, whether matured or unmatured, in such
order as the Administrative Agent or the Canadian Agent, as applicable, shall
elect.  In furtherance of the foregoing,
for so long as any obligations of the Borrowers hereunder, any Letters of
Credit or any Commitments remain outstanding, each Borrower shall refrain from
taking any action or commencing any proceeding against any other Borrower (or
any of its successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amounts in respect of payments made in
respect of the obligations hereunder or under any other Loan Document of such
other Borrower to any Secured Party. 
Notwithstanding any other provision contained in this Agreement or any
other Loan Document, if a “secured creditor” (as that term is defined under the
Bankruptcy and Insolvency Act
(Canada)) is determined by a court of competent jurisdiction not to include a
Person to whom obligations are owed on a joint or joint and several basis, then
the Borrowers’ Obligations (and the obligations of their Subsidiaries), to the
extent such obligations are secured, only shall be several obligations and not
joint or joint and several obligations.


 


11.20       Reinstatement.  This Agreement shall remain in full force and
effect and continue to be effective should any petition or other proceeding be
filed by or against any Loan Party for liquidation or reorganization, should
any Loan Party become insolvent or make an assignment for the benefit of any
creditor or creditors or should an interim receiver, receiver, receiver and
manager or trustee be appointed for all or any significant part of any Loan
Party’s assets, and shall continue to be effective or to be reinstated, as the
case may be, if at any time payment and performance of the obligations of the
Borrowers under the Loan Documents, or any part thereof, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored
or returned by any obligee of the obligations, whether as a fraudulent
preference, reviewable transaction or otherwise, all as though such payment or
performance had not been made.  In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the obligations of the Borrowers hereunder shall be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.


 


11.21       Language  The parties hereto confirm that it is their
wish that this Agreement, as well as any other documents relating to this
Agreement, including notices, schedules and authorizations, have been and shall
be drawn up in the English language only. 
Les


 


189

















 


signataires conferment leur volonté que la
présente convention, de même que tous les documents s’y rattachant, y compris
tout avis, annexe et autorisation, soient rédigés en anglais seulement.


 


190

















 


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.


 


	
   

  	
   

  	
   

  	
  HERTZ
  EQUIPMENT RENTAL CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Harold
  E. Rolfe

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Harold E.
  Rolfe

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President & Secretary

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  THE HERTZ
  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Harold
  E. Rolfe

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Harold E.
  Rolfe

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
  General
  Counsel & Secretary

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  MATTHEWS
  EQUIPMENT LIMITED

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ John R.
  Samuelson

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John R.
  Samuelson

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  WESTERN
  SHUT-DOWN (1995) LIMITED

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ John R.
  Samuelson

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John R.
  Samuelson

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
						



 














 


	
   

  	
   

  	
   

  	
  DEUTSCHE
  BANK AG, NEW YORK BRANCH, 

  
	
   

  	
   

  	
   

  	
  Individually,
  as a 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

  
						



 

















 


	
   

  	
   

  	
   

  	
  DEUTSCHE
  BANK AG, CANADA BRANCH, 

  
	
   

  	
   

  	
   

  	
  Individually,
  as Lender and as Canadian Agent and 

  
	
   

  	
   

  	
   

  	
  Canadian
  Collateral Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Paul M.
  Jurist

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Paul M.
  Jurist

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director & Principal

  
	
   

  	
   

  	
   

  	
   

  	
  Officer

  
						



 

















 


	
   

  	
   

  	
   

  	
  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

  
						



 

















 


	
   

  	
   

  	
   

  	
  LEHMAN
  COMMERCIAL PAPER INC.

  
	
   

  	
   

  	
   

  	
  Individually,
  as a Lender and as Syndication Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Jeffrey
  Ast

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jeffrey Ast

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
						



 

















 


	
   

  	
   

  	
   

  	
  Bayerische
  Hypo – und Vereinsbank AG, New 

  
	
   

  	
   

  	
   

  	
  York Branch

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Sven
  Schuessler

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Sven
  Schuessler

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Aaron
  Witte

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Aaron Witte

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior
  Associate

  
						



 

















 


	
   

  	
   

  	
   

  	
  Sumitomo
  Mitsui Banking Corporation

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Shigeru
  Tsuru

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Shigeru
  Tsuru

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Joint
  General Manager

  
						



 

















 


	
   

  	
   

  	
   

  	
  THE
  NORINCHUKIN TRUST & BANKING CO.,

  
	
   

  	
   

  	
   

  	
  LTD., Acting
  as Trustee for Trust Account

  
	
   

  	
   

  	
   

  	
  No.[Account
  Number]

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Seiji
  Kuramoto

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Seiji
  Kuramoto

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Chief
  Manager

  
						



 

















 


	
   

  	
   

  	
   

  	
  Mizuho
  Corporate Bank, Ltd., as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ James
  Fayen

  
	
   

  	
   

  	
   

  	
  Name:

  	
  James Fayen

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Deputy
  General Manager

  
						



 

















 


	
   

  	
   

  	
   

  	
  ING CAPITAL
  LLC

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ William
  C. Beddingfield

  
	
   

  	
   

  	
   

  	
  Name:

  	
  William C.
  Beddingfield

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
						



 

















 


	
   

  	
   

  	
   

  	
  The Bank
  of Tokyo-Mitsubishi, Ltd.

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Charles
  Stewart

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Charles
  Stewart

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
						



 

















 


	
   

  	
   

  	
   

  	
  SIEMENS
  FINANCIAL SERVICES, INC.

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Frank
  Amodio

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Frank Amodio

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President - Credit

  
						



 

















 


	
   

  	
   

  	
   

  	
  Banca Intesa

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ John J.
  Michalisin

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John J.
  Michalisin

  
	
   

  	
   

  	
   

  	
  Title:

  	
  First Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Nicholas
  A. Matacchieri

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Nicholas A. Matacchieri

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
						



 

















 


	
   

  	
   

  	
   

  	
  BAYERISCHE
  LANDESBANK, acting through its 

  New York Branch, as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Stuart
  Schulman

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Stuart
  Schulman

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Norman
  McClave

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Norman
  McClave

  
	
   

  	
   

  	
   

  	
  Title:

  	
  First Vice
  President

  
						



 

















 


	
   

  	
   

  	
   

  	
  BURDALE
  FINANCIAL LIMITED

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
  /s/ N B Hogg

  
	
   

  	
   

  	
   

  	
  Name:

  	
  N B Hogg

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
							



 

















 


	
   

  	
   

  	
   

  	
  LLOYDS TSB
  COMMERCIAL FINANCE LIMITED 

  
	
   

  	
   

  	
   

  	
  As a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Paul
  Herrington

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Paul
  Herrington

  
	
   

  	
   

  	
   

  	
  Title:

  	
  International
  Director, ABL

  
							



 

















 


	
   

  	
   

  	
   

  	
  NATEXIS
  BANQUES POPULAIRES

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  	
  /s/ Harold
  Birk

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Harold Birk

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ William
  J. Burke

  
	
   

  	
   

  	
   

  	
  Name:

  	
  William J.
  Burke

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
								



 

















 


	
   

  	
   

  	
   

  	
  General
  Electric Capital Corporation

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Michelle
  Handy

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Michelle
  Handy

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Its Duly
  Authorized Signatory

  
						



 

















 


	
   

  	
   

  	
   

  	
  UPS Capital
  Corporation

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ John P.
  Holloway

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John P.
  Holloway

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director of
  Portfolio Management

  
						



 

















 


	
   

  	
   

  	
   

  	
  Bank of
  America N.A., as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Elizabeth G. Brandt

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Elizabeth G.
  Brandt

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
						



 

















 


	
   

  	
   

  	
   

  	
  FORTIS
  CAPITAL CORP

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ John
  Crawford

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John
  Crawford

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Michiel
  van der Voort

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Michiel van
  der Voort

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
							



 

















 


	
   

  	
   

  	
   

  	
  GOLDMAN
  SACHS CREDIT PARTNERS L.P.,

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ William
  W. Archer

  
	
   

  	
   

  	
   

  	
  Name:

  	
  William W.
  Archer

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
						



 

















 


	
   

  	
   

  	
   

  	
  RZB Finance
  LLC

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Christoph Hoedl

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Christoph
  Hoedl

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Group Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ John A.
  Valiska

  
	
   

  	
   

  	
   

  	
  Name:

  	
  John A.
  Valiska

  
	
   

  	
   

  	
   

  	
  Title:

  	
  First Vice
  President

  
							



 

















 


	
   

  	
   

  	
   

  	
  The Bank of
  New York

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Patrick
  Vatel

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Patrick
  Vatel

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
						



 

















 


	
   

  	
   

  	
   

  	
  Wachovia
  Bank, National Association

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Jason
  Searle

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jason Searle

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate

  
						



 

















 


	
   

  	
   

  	
   

  	
  Credit
  Industriel et Commercial

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Anthony
  Rock

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Anthony Rock

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Sean
  Mounier

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Sean Mounier

  
	
   

  	
   

  	
   

  	
  Title:

  	
  First Vice
  President

  
						



 

















 


	
   

  	
   

  	
   

  	
  E*TRADE BANK

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Sam Crow

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Sam Crow

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior
  Manager, Commercial

  
	
   

  	
   

  	
   

  	
   

  	
  Lending

  
						



 

















 


	
   

  	
   

  	
   

  	
  HSBC
  Business Credit (USA) Inc. as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Jimmy
  Schwartz

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jimmy
  Schwartz

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
						



 

















 


	
   

  	
   

  	
   

  	
  Israel
  Discount Bank of New York

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Andy
  Ballta

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Andy Ballta

  
	
   

  	
   

  	
   

  	
  Title:

  	
  First Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Ronald
  Bongiovanni

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Ronald
  Bongiovanni

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice
  President

  
							



 

















 


	
   

  	
   

  	
   

  	
  LANDESBANK
  BADEN-WUERTTEMBERG 

  
	
   

  	
   

  	
   

  	
  NEW YORK
  BRANCH AND/OR CAYMAN 

  
	
   

  	
   

  	
   

  	
  ISLANDS
  BRANCH

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Karen
  Richard

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Karen
  Richard

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Konrad
  Kestering

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Konrad
  Kestering

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant
  Vice President

  
						



 

















 


	
   

  	
   

  	
   

  	
  North Fork
  Business Capital Corporation

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Barry S.
  Fein

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Barry S.
  Fein

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice
  President

  
						



 

















 


	
   

  	
   

  	
   

  	
  PNC Bank,
  N.A.

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Karen A.
  Grexa

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Karen A.
  Grexa

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
						



 

















 


	
   

  	
   

  	
   

  	
  LASALLE
  BUSINESS CREDIT, LLC

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Thomas
  J. Brennan

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Thomas J.
  Brennan

  
	
   

  	
   

  	
   

  	
  Title:

  	
  First Vice
  President

  
						



 

















 


	
   

  	
   

  	
   

  	
  THE CIT
  GROUP/BUSINESS CREDIT, INC.,

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Robert
  E. Chimenti

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Robert E.
  Chimenti

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
						



 

















 


	
   

  	
   

  	
   

  	
  UBS Loan
  Finance LLC

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Irja R.
  Otsa

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Irja R. Otsa

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  
	
   

  	
   

  	
   

  	
   

  	
  Banking
  Products Services, US

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Pamela
  Oh

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Pamela Oh

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  
	
   

  	
   

  	
   

  	
   

  	
  Banking
  Products Services, US

  
							



 

















 


	
   

  	
   

  	
   

  	
  CALYON NEW
  YORK BRANCH

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Alex
  Averbukh

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Alex
  Averbukh

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Michael
  Regan

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Michael
  Regan

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Director

  
							



 

















 


	
   

  	
   

  	
   

  	
  National
  City Bank

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Renee M.
  Bonnell

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Renee M.
  Bonnell

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Assistant
  Vice President

  
						



 

















 


	
   

  	
   

  	
   

  	
  THE ROYAL
  BANK OF SCOTLAND

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ David
  Gilio

  
	
   

  	
   

  	
   

  	
  Name:

  	
  David Gilio

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
						



 

















 


	
   

  	
   

  	
   

  	
  MERRILL
  LYNCH CAPITAL CANADA INC. as 

  
	
   

  	
   

  	
   

  	
  a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Jacquie
  Alexander

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Jacquie
  Alexander

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
						



 

















 


	
   

  	
   

  	
   

  	
  Congress
  Financial Corporation (Canada)

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Sophie
  Ronan

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Sophie Ronan

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President, Relationship Manager

  
	
   

  	
   

  	
   

  	
   

  	
  Congress
  Financial Corporation

  
	
   

  	
   

  	
   

  	
   

  	
  (Canada)

  
							



 

















 


	
   

  	
   

  	
   

  	
  WELLS FARGO
  FINANCIAL CORPORATION 

  
	
   

  	
   

  	
   

  	
  CANADA

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Nick Scarfo

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Nick Scarfo

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
						



 

















 


	
   

  	
   

  	
   

  	
  GE Canada
  Finance Holding Company

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Ellis
  Gaston

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Ellis Gaston

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Its Duly
  Authorized Signatory

  
						



 

















 


	
   

  	
   

  	
   

  	
  BANK OF
  AMERICA, N.A., acting through its 

  
	
   

  	
   

  	
   

  	
  Canada
  branch, as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ L.M.
  Junior Del Brocco

  
	
   

  	
   

  	
   

  	
  Name:

  	
  L.M. Junior
  Del Brocco

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice
  President

  
						



 

















 


	
   

  	
   

  	
   

  	
  Fortis
  Capital (Canada) Ltd.

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Darrell
  Holley

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Darrell
  Holley

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Doug
  Clark

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Doug Clark

  
	
   

  	
   

  	
   

  	
  Title:

  	
  SVP

  
							



 

















 


	
   

  	
   

  	
   

  	
  JPMorgan
  Chase Bank, N.A., Toronto Branch

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Christine Chan

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Christine
  Chan

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
						



 

















 


	
   

  	
   

  	
   

  	
  LaSalle
  Business Credit, a division of ABN AMRO 

  
	
   

  	
   

  	
   

  	
  Bank N.V.,
  Canada Branch

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Darcy
  Mack

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Darcy Mack

  
	
   

  	
   

  	
   

  	
  Title:

  	
  First Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Barry
  Walsh

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Barry Walsh

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
							



 

















 


	
   

  	
   

  	
   

  	
  National
  City Bank, Canada Branch

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Caroline
  M. Stade

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Caroline M.
  Stade

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ C.W.
  Hunt

  
	
   

  	
   

  	
   

  	
  Name:

  	
  C.W. Hunt

  
	
   

  	
   

  	
   

  	
  Title:

  	
  SVP

  
							



 

















 


	
   

  	
   

  	
   

  	
  CIT
  FINANCIAL LTD.,

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ K. I.
  Brown

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Kenneth I.
  Brown

  
	
   

  	
   

  	
   

  	
  Title:

  	
  EVP

  
						



 

















 


	
   

  	
   

  	
   

  	
  UBS AG
  Canada Branch

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Marie A.
  Haddad

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Marie A.
  Haddad

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  
	
   

  	
   

  	
   

  	
   

  	
  Banking
  Products Services, US

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Barbara
  Ezell-McMichael

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Barbara
  Ezell-McMichael

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  
	
   

  	
   

  	
   

  	
   

  	
  Banking
  Products Services, US

  
						



 

















 


	
   

  	
   

  	
   

  	
  BNP PARIBAS
  (Canada)

  
	
   

  	
   

  	
   

  	
  77 KING ST.
  W., STE. 4100

  
	
   

  	
   

  	
   

  	
  P.O.B. 31, Toronto,
  Ontario

  
	
   

  	
   

  	
   

  	
  M5K 1N8

  
	
   

  	
   

  	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ James
  Goodall

  
	
   

  	
   

  	
   

  	
  Name:

  	
  James
  Goodall

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  	
   

  	
   

  	
  Leveraged
  Finance &

  
	
   

  	
   

  	
   

  	
   

  	
  Real Estate
  Finance

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Eric Borromeo

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Eric Borromeo

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
  Leveraged Finance

  
						



 


 

















 


 


EXHIBIT A-1 TO


CREDIT AGREEMENT


 


FORM OF REVOLVING
CREDIT NOTE


 


THIS REVOLVING CREDIT NOTE AND THE OBLIGATIONS
EVIDENCED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE
TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF
THIS REVOLVING CREDIT NOTE AND THE OBLIGATIONS EVIDENCED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.


 


	
  $                                 

  	
   

  	
  New York, New York

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [                         ],
  2005

  



 


FOR VALUE RECEIVED, the undersigned, [HERTZ
EQUIPMENT RENTAL CORPORATION, a Delaware corporation] [[MATTHEWS EQUIPMENT
LIMITED] [WESTERN SHUT-DOWN (1995) LIMITED], a corporation organized under the
laws of Canada] [THE HERTZ CORPORATION, a Delaware corporation] (the “[Parent]
Borrower”), hereby unconditionally promises to pay to
[                                ]
(the “Lender”) and its successors and assigns, at the office of Deutsche
Bank AG, New York Branch, located at 60 Wall Street, New York, New York 10005,
in lawful money of the United States of America (or, in the case of Loans
denominated in Canadian Dollars or a Designated Foreign Currency (as defined in
the Credit Agreement referred to below) evidenced hereby, Canadian Dollars or
the relevant Designated Foreign Currency in which the Revolving Credit Loans
evidenced hereby are made) and in immediately available funds, the aggregate
unpaid principal amount of the Revolving Credit Loans made by the Lender to the
undersigned pursuant to subsection 2.1 of the Credit Agreement referred to
below, which sum shall be payable on the Termination Date, provided that,
notwithstanding the fact that the principal amount of this Note is denominated
in Dollars, to the extent provided in the Credit Agreement, all payments
hereunder with respect to Revolving Credit Loans denominated in Canadian
Dollars or a Designated Foreign Currency evidenced hereby shall be made in
Canadian Dollars or the relevant Designated Foreign Currency in which the
Revolving Credit Loans evidenced hereby are made, whether or not the Dollar
Equivalent (as defined in the Credit Agreement) of such amounts, when added to
the outstanding principal amount of the Revolving Credit Loans denominated in
Dollars (as defined in the Credit Agreement) evidenced hereby, would exceed the
stated principal amount of this Note.


 


The [Parent] Borrower further agrees to pay interest
in like money at such office on the unpaid principal amount hereof from time to
time at the applicable rates per annum and on the dates set forth in subsection 4.1
of the Credit Agreement until such principal amount is paid in full (both
before and after judgment).


 


A-1-1

















 


This Revolving Credit Note is one of the Revolving
Credit Notes referred to in, and is subject in all respects to, the Credit
Agreement, dated as of December [     ], 2005 (as
amended, supplemented, waived or otherwise modified from time to time, the “Credit
Agreement”), among [the Parent Borrower,] [the Borrower,] [THE HERTZ
CORPORATION, a Delaware corporation,] [HERTZ EQUIPMENT RENTAL CORPORATION, a
Delaware corporation,] [MATTHEWS EQUIPMENT LIMITED, a corporation organized
under the laws of Canada] [WESTERN SHUT-DOWN (1995) LIMITED, a corporation
organized under the laws of Canada], the several banks and other financial
institutions from time to time parties thereto (including the Lender) (the “Lenders”),
DEUTSCHE BANK AG, NEW YORK BRANCH, as administrative agent and collateral agent
for the Lenders, DEUTSCHE BANK AG, CANADA BRANCH, as Canadian agent and
Canadian collateral agent for the Lenders, LEHMAN COMMERCIAL PAPER INC., as
syndication agent, and MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER
AND SMITH INCORPORATED, as documentation agent, and is entitled to the benefits
thereof, is secured and guaranteed as provided therein and is subject to
optional and mandatory prepayment in whole or in part as provided therein.
Reference is hereby made to the Loan Documents for a description of the
properties and assets in which a security interest has been granted, the nature
and extent of the security and the guarantees, the terms and conditions upon
which the security interests and each guarantee were granted and the rights of
the holder of this Revolving Credit Note in respect thereof. Each holder
hereof, by its acceptance of this Revolving Credit Note, agrees to the terms
of, and to be bound by and to observe the provisions applicable to the Lenders
contained in, the Credit Agreement. Terms used herein which are defined in the
Credit Agreement shall have such defined meanings unless otherwise defined
herein or unless the context otherwise requires.


 


Upon the occurrence of any one or more of the Events
of Default specified in the Credit Agreement, all amounts then remaining unpaid
on this Revolving Credit Note shall become, or may be declared to be,
immediately due and payable, all as provided therein.


 


All parties now and hereafter liable with respect to
this Revolving Credit Note, whether maker, principal, surety, guarantor,
endorser or otherwise, hereby waive, to the maximum extent permitted by
applicable law, presentment, demand, protest and all other notices of any kind
under this Revolving Credit Note.


 


A-1-2

















 


THIS REVOLVING CREDIT NOTE SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.


 


 


	
   

  	
  [HERTZ EQUIPMENT RENTAL

  CORPORATION]

  
	
   

  	
  [THE HERTZ CORPORATION]

  	
   

  
	
   

  	
  [MATTHEWS EQUIPMENT LIMITED]

  
	
   

  	
  [WESTERN SHUT-DOWN (1995)

  LIMITED]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


A-1-3

















 


EXHIBIT A-2 TO


CREDIT AGREEMENT


 


FORM OF SWING LINE NOTE


 


	
  $                                 

  	
   

  	
  New York, New York

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [                         ],
  2005

  



 


FOR VALUE RECEIVED, the undersigned, [HERTZ
EQUIPMENT RENTAL CORPORATION, a Delaware corporation (the “Borrower”)]
[THE HERTZ CORPORATION, a Delaware corporation (the “Parent Borrower”)],
hereby unconditionally promises to pay to DEUTSCHE BANK AG, NEW YORK BRANCH
(the “Swing Line Lender”) and its successors and assigns, at the office
of Deutsche Bank AG, New York Branch, 60 Wall Street, New York, New York  10005, in lawful money of the United States
of America and in immediately available funds, the aggregate unpaid principal
amount of the Swing Line Loans made by the Swing Line Lender to the undersigned
pursuant to subsection 2.4 of the Credit Agreement referred to below,
which sum shall be payable on the Termination Date.


 


The [Parent] Borrower further agrees to pay interest
in like money at such office on the unpaid principal amount hereof from time to
time at the applicable rates per annum and on the dates set forth in subsection 4.1
of the Credit Agreement until paid in full (both before and after judgment).


 


This Swing Line Note is the Swing Line Note referred
to in, and is subject in all respects to, the Credit Agreement, dated as of December [     ],
2005 (as amended, supplemented, waived or otherwise modified from time to time,
the “Credit Agreement”), among [HERTZ EQUIPMENT RENTAL CORPORATION, a
Delaware corporation, the Parent Borrower, the Canadian Borrowers (as defined
in the Credit Agreement)] [the Borrower, THE HERTZ CORPORATION, a Delaware
corporation, the Canadian Borrowers (as defined in the Credit Agreement)], the
several banks and other financial institutions from time to time parties
thereto (including the Swing Line Lender) (the “Lenders”), DEUTSCHE BANK
AG, NEW YORK BRANCH, as administrative agent and collateral agent for the
Lenders, DEUTSCHE BANK AG, CANADA BRANCH, as Canadian agent and Canadian
collateral agent for the Lenders, LEHMAN COMMERCIAL PAPER INC., as syndication
agent, and MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER AND
SMITH INCORPORATED, as documentation agent, and is entitled to the benefits
thereof, is secured and guaranteed as provided therein and in the Loan
Documents and is subject to optional and mandatory prepayment in whole or in
part as provided therein. Reference is hereby made to the Loan Documents for a
description of the properties and assets in which a security interest has been
granted, the nature and extent of the security and the guarantees, the terms
and conditions upon which the security interests and each guarantee were
granted and the rights of the holder of this Swing Line Note in respect
thereof. The holder hereof, by its acceptance of this Swing Line Note, agrees
to the terms of, and to be bound by and to observe the provisions applicable to
the Lenders contained in, the Credit Agreement.


 


A-2-1

















 


Terms
used herein which are defined in the Credit Agreement shall have such defined
meanings unless otherwise defined herein or unless the context otherwise
requires.


 


Upon the occurrence of any one or more of the Events
of Default specified in the Credit Agreement, all amounts remaining unpaid on
this Swing Line Note shall become, or may be declared to be, immediately due
and payable all as provided therein.


 


All parties now and hereafter liable with respect to
this Swing Line Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive, to the maximum extent permitted by applicable law,
presentment, demand, protest and all other notices of any kind under this Swing
Line Note.


 


THIS SWING LINE NOTE SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.


 


 


	
   

  	
  [HERTZ EQUIPMENT RENTAL CORPORATION]

  	
   

  
	
   

  	
  [THE HERTZ CORPORATION]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


A-2-2

















 


EXHIBIT B-1 TO


CREDIT AGREEMENT


 


FORM OF U.S. GUARANTEE
AND

COLLATERAL AGREEMENT


 


See
Execution Version


 


B-1-1

















 


EXHIBIT B-2 TO


CREDIT AGREEMENT


 


FORM OF CANADIAN
GUARANTEE AND

COLLATERAL AGREEMENT


 


See
Execution Version


 


B-2-1

















 


EXHIBIT C TO


CREDIT AGREEMENT


 


FORM OF MORTGAGE 


 


C-1

















 


EXHIBIT C TO


CREDIT
AGREEMENT


 


This document is intended to be recorded in [County],
[State]


 


This
Deed of Trust was prepared by

and when recorded should be returned to:


 


Latham &
Watkins LLP


885
Third Avenue


Suite 1000


New
York, New York 10022-4802


Attention:  Aaron S. Adler, Esq.


(212)
906-1200

031347-0012


 


FORM OF


 


DEED OF TRUST, SECURITY AGREEMENT,


AND ASSIGNMENT OF LEASES AND RENTS AND

FIXTURE FILING


 


by


 


[THE HERTZ CORPORATION, a Delaware
Corporation,]

as Grantor,


 


to


 


DEUTSCHE BANK AG, NEW YORK BRANCH,


as Collateral Agent,

as Beneficiary,


 


Dated as of December     ,
2005


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  Background

  	
  1

  
	
  Granting Clauses

  	
  2

  
	
  Terms and Conditions

  	
  5

  
	
  1.

  	
  Defined Terms

  	
  5

  
	
  2.

  	
  Warranty of Title

  	
  5

  
	
  3.

  	
  Payment of Obligations

  	
  5

  
	
  4.

  	
  Requirements

  	
  5

  
	
  5.

  	
  Payment of Taxes and Other Impositions

  	
  5

  
	
  6.

  	
  Insurance

  	
  6

  
	
  7.

  	
  Restrictions on Liens and Encumbrances

  	
  6

  
	
  8.

  	
  Due on Sale and Other Transfer Restrictions

  	
  6

  
	
  9.

  	
  Condemnation/Eminent Domain

  	
  6

  
	
  10.

  	
  Leases

  	
  6

  
	
  11.

  	
  Further Assurances

  	
  7

  
	
  12.

  	
  Beneficiary’s Right to Perform

  	
  7

  
	
  13.

  	
  Remedies

  	
  7

  
	
  14.

  	
  Right of Beneficiary to Credit Sale

  	
  9

  
	
  15.

  	
  Appointment of Receiver

  	
  9

  
	
  16.

  	
  Extension, Release, etc

  	
  9

  
	
  17.

  	
  Security Agreement under Uniform Commercial Code

  	
  10

  
	
  18.

  	
  Assignment of Rents

  	
  10

  
	
  19.

  	
  Additional Rights

  	
  11

  
	
  20.

  	
  Notices

  	
  11

  
	
  21.

  	
  No Oral Modification

  	
  11

  
	
  22.

  	
  Partial Invalidity

  	
  12

  
	
  23.

  	
  Grantor’s Waiver of Rights

  	
  12

  
	
  24.

  	
  Remedies Not Exclusive

  	
  12

  
	
  25.

  	
  Multiple Security

  	
  13

  
	
  26.

  	
  Successors and Assigns

  	
  14

  
	
  27.

  	
  No Waivers, etc

  	
  14

  
	
  28.

  	
  Governing Law, etc

  	
  14

  
	
  29.

  	
  Certain Definitions

  	
  14

  
	
  30.

  	
  Last Dollars Secured; Priority

  	
  15

  
	
  31.

  	
  Release

  	
  15

  
	
  32.

  	
  Conflict With Credit Agreement

  	
  15

  
	
  33.

  	
  Change in Tax Law

  	
  15

  
	
  34.

  	
  Subrogation

  	
  16

  
	
  35.

  	
  Beneficiary as Agent

  	
  16

  
	
  36.

  	
  Intercreditor Agreements

  	
  16

  
	
  37.

  	
  State Specific Provisions

  	
  17

  
	
  38.

  	
  Rights and Responsibilities of Trustee; Other Provisions Relating to
  Trustee

  	
  17

  
				



 

















 


DEED OF TRUST, SECURITY
AGREEMENT,

ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING


 


THIS
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE
FILING, dated as of December __, 2005 is made by [THE HERTZ
CORPORATION/THE HERTZ EQUIPMENT RENTAL CORPORATION, a Delaware corporation] (“Grantor”), whose address is 225 Brae Blvd.,
Park Ridge, New Jersey 07656, to [ADD TRUSTEE’S NAME], with an address at
[                       ],
as trustee (together with its successors and assigns, in such capacity, “Trustee”), in favor of DEUTSCHE BANK AG,
NEW YORK BRANCH, as Collateral Agent (in such capacity, “Beneficiary”), whose address is 60 Wall
Street, New York, New York 10005. References to this “Deed of Trust” shall mean this instrument
and any and all renewals, modifications, amendments, supplements, extensions,
consolidations, substitutions, spreaders and replacements of this instrument.


 


Background


 


A.                                   Hertz Equipment Rental Corporation, a
Delaware corporation, and The Hertz Corporation, a Delaware corporation, have
entered into that certain Credit Agreement dated as of the date hereof (as the
same may be amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”) among Hertz
Equipment Rental Corporation (together with any assignee of, or successor by
merger to, Hertz Equipment Rental Corporation’s rights and obligations
thereunder as provided therein, “HERC”)
and The Hertz Corporation (together with any assignee of, or successor by
merger to, The Hertz Corporation’s rights and obligations thereunder as
provided therein, the “Parent Borrower”),
the Canadian Borrowers (as defined in the Credit Agreement, and together with
HERC and the Parent Borrower, being collectively referred to as the “Borrowers” and each being individually
referred to as a “Borrower”), the
several banks and other financial institutions from time to time parties
thereto (together with all other parties defined to be “Lenders” in the Credit
Agreement, the “Lenders”),
Beneficiary, as Administrative Agent and Collateral Agent, Deutsche Bank AG,
Canada Branch as Canadian Agent and Canadian Collateral Agent for the Lenders
thereunder, Lehman Commercial Paper Inc., as Syndication Agent, and Merrill
Lynch Capital Corporation, as Documentation Agent.


 


B.                                     Grantor (i) is the owner of the fee
simple estate in the parcel(s) of real property, if any, described on Schedule A
attached hereto (the “Owned Land”);
and (ii) owns, leases or otherwise has the right to use all of the
buildings, improvements, structures, and fixtures now or subsequently located
on the Owned Land (the “Improvements”;
the Owned Land and the Improvements being collectively referred to as the “Real Estate”).


 


C.                                     Pursuant to the terms and conditions of the
Credit Agreement, inter alia: (1) the Term Loan Lenders have severally
agreed to make certain Term Loans to the Borrower, and (2) the Revolving
Credit Lenders have agreed to make certain Revolving Credit Loans to the
Borrower, which include (a) the Swing Line Lender’s agreement to make
certain Swing Line Loans, and (b) the Issuing Lender’s agreement to issue,
and the agreement of the Lenders who are L/C Participants to acquire
participating interests in, Letters of Credit for the account of the Borrower.


 

















 


D.                                    It is a condition precedent, among others, to
the effectiveness of the Credit Agreement and the obligations of the Secured
Parties to make the Loans, to issue and participate in Letters of Credit, and to
enter into any Interest Rate Protection Agreement or Permitted Hedging
Arrangement that Grantor secure its obligations under the Credit Agreement and
other Loan Documents by executing and delivering this Deed of Trust.


 


E.                                      Concurrently with entering into the Credit
Agreement, the Borrowers entered into that certain Senior Term Facility, dated
as of an equal date therewith. All obligations of Grantor under the Senior Term
Facility are secured by, among other things, a certain Deed of Trust, Security
Agreement, Assignment of Leases and Rents and Fixture Filing, executed by
Grantor for the benefit of Beneficiary (in such capacity, “Term Beneficiary”), dated as of the date
hereof (as the same may be amended, restated, supplemented, replaced, extended
or otherwise modified from time to time, the “Term
Deed of Trust”).


 


F.                                      In order to induce the Lenders to consent to
the entry into the Credit Agreement by the Borrowers and to induce the Lenders
to extend credit and other financial accommodations and lend monies to or for
the benefit of the Borrowers, Beneficiary, the Borrowers and certain other
parties have agreed to the subordination, intercreditor and other provisions
set forth in that certain Intercreditor Agreement, dated as of the date of the
Credit Agreement (the “Intercreditor
Agreement”).


 


Granting Clauses


 


For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Grantor agrees that to secure all
obligations and liabilities of the Grantor in respect of: (1) the unpaid
principal of and interest on (including interest accruing after the maturity of
the Loans and Reimbursement Obligations and interest accruing after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Grantor, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans, the Reimbursement Obligations, and all other obligations and
liabilities of the Grantor to the Secured Parties, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, the Credit
Agreement, the Loans, the Letters of Credit, the other Loan Documents, any Interest
Rate Protection Agreement, Permitted Hedging Arrangement or Bank Products
Agreement (as defined in the Intercreditor Agreement) entered into with any
Person who was at the time of entry into such agreement a Lender or affiliate
of any Lender (provided notice of such Interest Rate Protection Agreement,
Permitted Hedging Arrangement or Bank Products Agreement (as defined in the
Intercreditor Agreement) was provided to Beneficiary, as Administrative Agent
and Collateral Agent), any Guarantee Obligations of CCMG Corporation, a
Delaware corporation (“CCMGC”), or
any Domestic Subsidiary as to which any Secured Party is a beneficiary, the
provision of cash management services by any Lender or an Affiliate thereof to
the Parent Borrower or any subsidiary thereof, or any other document made,
delivered or given in connection therewith, in each case whether on account of
principal, interest, reimbursement obligations, amounts payable in connection
with the provision of such cash management services or a termination of any
transaction entered into pursuant to any such Interest Rate Protection
Agreement, Permitted Hedging Arrangement or Bank Products Agreement (as defined
in the Intercreditor Agreement), fees, indemnities, costs, expenses or
otherwise (including all reasonable out-of-pocket fees, expenses and
disbursements


 


2

















 


of
counsel to the Administrative Agent, Collateral Agent or any other Secured
Party that are required to be paid by the Grantor pursuant to the terms of the
Credit Agreement or any other Loan Document) (collectively, the “ABL Obligations”) and (2) the Euro MTN
Obligations (as defined in the Intercreditor Agreement) (the ABL Obligations
and the Euro MTN Obligations are referred to collectively herein as the “Obligations”)


 


GRANTOR
HEREBY GRANTS TO TRUSTEE A LIEN UPON AND A SECURITY INTEREST IN, AND HEREBY
MORTGAGES, GIVES, GRANTS, BARGAINS, SELLS, CONVEYS AND CONFIRMS, ASSIGNS,
TRANSFERS AND SETS OVER TO TRUSTEE AND TO ITS SUCCESSORS AND ASSIGNS FOR THE
BENEFIT AND SECURITY OF BENEFICIARY FOREVER, SUBJECT ONLY TO THE PERMITTED
EXCEPTIONS:


 


(a)                                  all right, title and interest of Grantor in,
to and under the Owned Land;


 


(b)                                 all right, title and interest Grantor now has
or may hereafter acquire in and to the Improvements or any part thereof
(whether owned in fee by Grantor or held otherwise);


 


(c)                                  all right, title and interest of Grantor in,
to and under all easements, rights of way, licenses, operating agreements,
abutting strips and gores of land, streets, ways, alleys, passages, sewer
rights, waters, water courses, water and flowage rights, development rights,
air rights, mineral and soil rights, plants, standing and fallen timber, and
all estates, rights, titles, interests, privileges, licenses, tenements,
hereditaments and appurtenances belonging, relating or appertaining to the Real
Estate, and any reversions, remainders, rents, issues, profits and revenue
thereof and all land lying in the bed of any street, road or avenue, in front
of or adjoining the Real Estate to the center line thereof;


 


(d)                                 all right, title and interest of Grantor in
and to all of the fixtures, chattels, business machines, machinery, apparatus,
equipment, furnishings, fittings, and articles of personal property of every
kind and nature whatsoever, and all appurtenances and additions thereto and
substitutions or replacements thereof (together with, in each case,
attachments, components, parts and accessories) currently owned or subsequently
acquired by Grantor and now or subsequently attached to, the Real Estate, but
excluding any Rental Car Vehicles to the extent such vehicles are pledged as
security for any financing (or refinancing) incurred in connection with the
purchase or acquisition of such vehicles (all of the foregoing in this
paragraph (d) being referred to as the “Equipment”);


 


(e)                                  all right, title and interest of Grantor in
and to all substitutes and replacements of, and all additions and improvements
to, the Real Estate and the Equipment, subsequently acquired by or released to
Grantor or constructed, assembled or placed by Grantor on the Real Estate,
immediately upon such acquisition, release, construction, assembling or
placement, including any and all building materials whether stored at the Real
Estate or offsite, and, in each such case, without any further deed,
conveyance, assignment or other act by Grantor;


 


(f)                                    all right, title and interest of Grantor in,
to and under all leases, subleases, underlettings, concession agreements,
management agreements, licenses and other agreements relating to the use or
occupancy of the Real Estate or the Equipment or any part thereof, now existing
or subsequently entered into by Grantor and whether written or oral and all
guarantees


 


3

















 


of
any of the foregoing (collectively, as any of the foregoing may be amended,
restated, extended, renewed or modified from time to time, the “Leases”), and all rights of Grantor in
respect of cash and securities deposited thereunder and the right to receive
and collect the revenues, income, rents, issues and profits thereof, together
with all other rents, royalties, issues, profits, revenue, income and other
benefits arising from the use and enjoyment of the Mortgaged Property (as
defined below) (collectively, the “Rents”);


 


(g)                                 all right, title and interest of Grantor, to
the extent assignable, in and to all unearned premiums under insurance policies
now or subsequently obtained by Grantor relating to the Real Estate or
Equipment and Grantor’s interest in and to all proceeds of any such insurance
policies (including title insurance policies) including the right to collect
and receive such proceeds, subject to the provisions relating to insurance
generally set forth below; and all awards and other compensation, including the
interest payable thereon and the right to collect and receive the same, made to
the present or any subsequent owner of the Real Estate or Equipment for the
taking by eminent domain, condemnation or otherwise, of all or any part of the Real
Estate or any easement or other right therein, subject to the provisions
relating to condemnation awards generally set forth below;


 


(h)                                 to the extent not prohibited under the
applicable contract, consent, license or other item unless the appropriate consent
has been obtained, all right, title and interest of Grantor in and to (i) all
contracts from time to time executed by Grantor or any manager or agent on its
behalf relating to the ownership, construction, maintenance, repair, operation,
occupancy, sale or financing of the Real Estate or Equipment or any part
thereof and all agreements and options relating to the purchase or lease of any
portion of the Real Estate or any property which is adjacent or peripheral to
the Real Estate, together with the right to exercise such options and all leases of Equipment, (ii) all
consents, licenses, building permits, certificates of occupancy and other
governmental approvals relating to construction, completion, occupancy, use or
operation of the Real Estate or any part thereof, and (iii) all drawings,
plans, specifications and similar or related items relating to the Real Estate;
and


 


(i)                                     all proceeds, both cash and noncash, of the
foregoing.


 


(All
of the foregoing property and all rights, titles and interests now owned or
held or subsequently acquired by Grantor and described in the foregoing clauses
(a) through (d) are collectively referred to as the “Premises”, and all rights, titles and
interests now owned or held or subsequently acquired by Grantor and described in
the foregoing clauses (a) through (i) are collectively referred to as
the “Mortgaged Property”).


 


TO HAVE AND TO HOLD the Mortgaged Property and the
rights and privileges hereby granted to Trustee and/or Beneficiary, their
respective successors and assigns for the uses and purposes set forth, until
the Obligations are fully paid and performed, provided, however, that the
condition of this Deed of Trust is such that if the ABL Obligations are fully
paid and performed, then the estate hereby granted shall cease, terminate and
become void.


 


This Deed of Trust covers present and future
advances and re-advances, in the aggregate amount of the obligations secured
hereby, made by the Secured Parties for the benefit of Grantor, and the lien of
such future advances and re-advances shall relate back to the date of


 


4

















 


this
Deed of Trust. The maximum amount of the obligations secured hereby will not
exceed [
                           
DOLLARS
($                         )].


 


Terms and Conditions


 


Grantor further represents, warrants, covenants and
agrees with Beneficiary and the Secured Parties as follows:


 


1.                                       Defined
Terms. Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement. References in this Deed of
Trust to the “Default Rate” shall
mean the interest rate applicable pursuant to subsection 4.1(c) of
the Credit Agreement. References herein to the “Secured Parties” shall mean the collective reference to (i) the
Administrative Agent, Collateral Agent and each Other Representative, (ii) the
Lenders (including the Issuing Lender and the Swing Line Lender), (iii) with
respect to any Interest Rate Protection Agreement, Permitted Hedging
Arrangement or Bank Products Agreement (as defined in the Intercreditor
Agreement) with CCMGC or any of its subsidiaries, any counterparty thereto
that, at the time such agreement or arrangement was entered into, was a Lender
or Affiliate of any Lender, (iv) any Lender or Affiliate thereof which
provides cash management services to the Parent Borrower or any of its
subsidiaries, (v) with respect to any Management Loans (as defined in the
Security Agreement), any lender thereof that, at the time such Indebtedness was
extended (or agreement to extend such Indebtedness was entered into), was a
Lender or an Affiliate of any Lender, (vi) the Euro MTN Secured Parties
(as defined in the Intercreditor Agreement), and (vii) their respective
successors and assigns and their permitted transferees and endorsees.


 


2.                                       Warranty
of Title. Grantor warrants that it has good title in fee simple to the Real
Estate, and good title to the rest of the Mortgaged Property, subject only to
the matters that are set forth in Schedule B of the title insurance policy
or policies being issued to Beneficiary to insure the lien of this Deed of
Trust and any other Permitted Liens (the “Permitted
Exceptions”). Grantor shall warrant, defend and preserve such title
and the lien of this Deed of Trust against all claims of all persons and
entities (not including the holders of the Permitted Exceptions). Grantor
represents and warrants that it has the right to mortgage the Mortgaged
Property.


 


3.                                       Payment
of Obligations. Grantor shall pay and perform the Obligations at the times
and places and in the manner specified in the Loan Documents.


 


4.                                       Requirements.
Grantor shall promptly comply with all covenants, restrictions and conditions
now or later of record which may be applicable to any of the Mortgaged
Property, or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration, repair or reconstruction of any of the Mortgaged
Property, except where a failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


5.                                       Payment
of Taxes and Other Impositions. (a)  Promptly when due or prior to the
date on which any fine, penalty, interest or cost may be added thereto or
imposed, Grantor shall pay and discharge all taxes, charges and assessments of
every kind and nature, all charges for any easement or agreement maintained for
the benefit of any of the Real Estate, all general and special assessments,
levies, permits, inspection and license fees, all water and sewer rents and
charges, vault taxes and all other public charges even if unforeseen or
extraordinary,


 


5

















 


imposed upon or assessed
against or which may become a lien on any of the Real Estate, or arising in
respect of the occupancy, use or possession thereof, together with any
penalties or interest on any of the foregoing (all of the foregoing are
collectively referred to herein as the “Impositions”), except where (i) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, and (ii) the Grantor has set aside on its books adequate
reserves with respect thereto in accordance with GAAP. Upon request by
Beneficiary, Grantor shall within 30 days after the request of Beneficiary,
deliver to Beneficiary evidence reasonably acceptable to Beneficiary showing
the payment of any such Imposition. If by law any Imposition, at Grantor’s
option, may be paid in installments (whether or not interest shall accrue on
the unpaid balance of such Imposition), Grantor may elect to pay such
Imposition in such installments and shall be responsible for the payment of
such installments with interest, if any.


 


(b)                                 Nothing herein shall affect any right or
remedy of Beneficiary under this Deed of Trust or otherwise, without notice or
demand to Grantor, to pay any Imposition after the date such Imposition shall
have become due, and add to the Obligations the amount so paid, together with
interest from the time of payment at the Default Rate. Any sums paid by
Beneficiary in discharge of any Impositions shall be (i) a lien on the
Premises secured hereby prior to any right or title to, interest in, or claim
upon the Premises subordinate to the lien of this Deed of Trust, and (ii) payable
on demand by Grantor to Beneficiary together with interest at the Default Rate
as set forth above.


 


(c)                                  Grantor shall not be entitled to any credit
against the Obligations by reason of the payment of Impositions.


 


6.                                       Insurance.
Grantor shall maintain insurance in accordance with the provisions of the
Credit Agreement.


 


7.                                       Restrictions
on Liens and Encumbrances. Except for the lien of this Deed of Trust and
the Permitted Exceptions and except as otherwise permitted pursuant to the
terms of the Credit Agreement, Grantor shall not further mortgage, nor
otherwise encumber the Mortgaged Property nor create or suffer to exist any
lien, charge or encumbrance on the Mortgaged Property, or any part thereof,
whether superior or subordinate to the lien of this Deed of Trust and whether
recourse or non-recourse.


 


8.                                       Due
on Sale and Other Transfer Restrictions. Except as permitted under subsection 8.6
of the Credit Agreement, Grantor shall not sell, transfer, convey or assign all
or any portion of, or any interest in, the Mortgaged Property.


 


9.                                       Condemnation/Eminent Domain. Promptly upon obtaining knowledge
of the institution of any proceedings for the condemnation of the Mortgaged
Property, or any material portion thereof, Grantor will notify Beneficiary of
the pendency of such proceedings. All awards and proceeds relating to such
condemnation shall be deemed proceeds from a Recovery Event and applied in the
manner specified in the Credit Agreement.


 


10.                                 Leases.
Except as permitted under the Credit Agreement with respect to any Lease having
an annual rental of more than $1,000,000, Grantor shall not (a) execute an
assignment or pledge of any Lease relating to all or any portion of the
Mortgaged Property other than in favor of Beneficiary, or (b) without the
prior written consent of Beneficiary, which


 


6

















 


consent shall not be
unreasonably withheld or delayed, execute or permit to exist any Lease of any
material portion of the Mortgaged Property, except for Permitted Exceptions.
Beneficiary agrees that, upon the reasonable request of Grantor, Beneficiary
will enter into a subordination, non-disturbance and attornment agreement with
a tenant (other than affiliate of Grantor) that has executed a lease after the
date hereof with respect to all or a portion of the Mortgaged Property,
provided (i) Grantor certifies in writing to Beneficiary that such lease
contains commercially reasonable terms, including being at fair market rent, (ii) such
subordination, non-disturbance and attornment agreement is in form and
substance reasonably acceptable to the Beneficiary and (iii) all the costs
and expenses related thereto (including reasonable attorneys’ fees) shall be
borne by Grantor.


 


11.                                 Further
Assurances. To further assure Beneficiary’s rights under this Deed of
Trust, Grantor agrees promptly upon demand of Beneficiary to do any act or
execute any additional documents (including security agreements on any
personalty included or to be included in the Mortgaged Property and a separate
assignment of each Lease in recordable form) as may be reasonably required by
Beneficiary to confirm the lien of this Deed of Trust and all other rights or
benefits conferred on Beneficiary by this Deed of Trust.


 


12.                                 Beneficiary’s
Right to Perform. If Grantor fails to perform any of the covenants or
agreements of Grantor under this Deed of Trust, within the applicable grace
period, if any, provided for in the Credit Agreement, Beneficiary, without
waiving or releasing Grantor from any obligation or default under this Deed of
Trust, may, at any time upon 10 days’ written notice to Grantor (but shall be
under no obligation to) pay or perform the same, and the amount or cost
thereof, with interest at the Default Rate, shall immediately be due from
Grantor to Beneficiary and the same shall be secured by this Deed of Trust and
shall be a lien on the Mortgaged Property prior to any right, title to,
interest in, or claim upon the Mortgaged Property attaching subsequent to the
lien of this Deed of Trust. No payment or advance of money by Beneficiary under
this Section shall be deemed or construed to cure Grantor’s default or waive
any right or remedy of Beneficiary.


 


13.                                 Remedies.
(a)  Upon the occurrence and during the continuance of any Event of
Default, Beneficiary may immediately take such action, without notice or
demand, as it deems advisable to protect and enforce its rights against Grantor
and in and to the Mortgaged Property (subject to the terms of any documentation
governing any Permitted Receivables Transaction), including the following
actions, each of which may be pursued concurrently or otherwise, at such time
and in such manner as Beneficiary may determine, in its sole discretion,
without impairing or otherwise affecting the other rights and remedies of
Beneficiary:


 


(i)                                     Beneficiary may, to the extent permitted by
applicable law, (A) institute and maintain an action of mortgage
foreclosure against all or any part of the Mortgaged Property, (B) institute
and maintain an action on the Loans or the Credit Agreement, the Guarantee and
Collateral Agreement or any other Loan Document, (C) sell all or part of
the Mortgaged Property (Grantor expressly granting to Beneficiary the power of
sale), or (D) take such other action at law or in equity for the
enforcement of this Deed of Trust or any of the Loan Documents as the law may
allow. Beneficiary may proceed in any such action to final judgment and
execution thereon for all sums due hereunder, together with interest thereon as
provided in the Credit Agreement and all reasonable out-of-pocket


 


7

















 


costs of suit, including reasonable out-of-pocket
attorneys’ fees and disbursements. Interest at the Default Rate shall be due on
any judgment obtained by Beneficiary from the date of judgment until actual
payment is made of the full amount of the judgment. Grantor agrees that in
addition to all other rights of Beneficiary hereunder and without waiving or
modifying any of its rights, Beneficiary may to the maximum extent permitted by
law, foreclose and at its sole option utilize the provisions of any statute
which allows Beneficiary to obtain the Mortgaged Property by using a shortened
redemption period; and


 


(ii)                                  Beneficiary may personally, or by its agents,
attorneys and employees and without regard to the adequacy or inadequacy of the
Mortgaged Property or any other collateral as security for the Obligations
enter into and upon the Mortgaged Property and each and every part thereof and
exclude Grantor and its agents and employees therefrom without liability for
trespass, damage or otherwise (Grantor hereby agreeing to surrender possession
of the Mortgaged Property to Beneficiary upon demand at any such time) and use,
operate, manage, maintain and control the Mortgaged Property and every part
thereof (subject to the terms of any documentation governing any Permitted
Receivables Transaction). Following such entry and taking of possession,
Beneficiary shall be entitled, without limitation, (x) to lease all or any part
or parts of the Mortgaged Property for such periods of time and upon such
conditions as Beneficiary may, in its discretion, deem proper, (y) to enforce,
cancel or modify any Lease and (z) generally to execute, do and perform any
other act, deed, matter or thing concerning the Mortgaged Property as
Beneficiary shall deem appropriate as fully as Grantor might do (subject to the
terms of any documentation governing any Permitted Receivables Transaction).


 


(b)                                 In case of a foreclosure sale, the Real
Estate may be sold, at Beneficiary’s election, in one parcel or in more than
one parcel and Beneficiary is specifically empowered (without being required to
do so, and in its sole and absolute discretion) to cause successive sales of
portions of the Mortgaged Property to be held.


 


(c)                                  In the event of any breach of any of the
covenants, agreements, terms or conditions contained in this Deed of Trust,
Beneficiary shall be entitled to enjoin such breach and obtain specific
performance of any covenant, agreement, term or condition and Beneficiary shall
have the right to invoke any equitable right or remedy as though other remedies
were not provided for in this Deed of Trust.


 


(d)                                 It is agreed that if an Event of Default
shall occur and be continuing, any and all proceeds of the Mortgaged Property
received by the Beneficiary shall be held by the Beneficiary for the benefit of
the Secured Parties as collateral security for the Obligations (whether matured
or unmatured), and/or then or at any time thereafter may, in the sole
discretion of the Beneficiary, be applied, following the application thereof to
pay any unsatisfied Euro MTN Obligations (as defined in the Intercreditor
Agreement), by the Beneficiary against the ABL Obligations then due and owing
in the order of priority set forth in the Intercreditor Agreement.


 


8

















 


(e)                                  To the extent Trustee, under applicable state
law, is required to take action on behalf of the Beneficiary under this Section 13,
the Trustee may take any action or seek any remedy granted to Beneficiary under
this Section 13, upon request by Beneficiary.


 


14.                                 Right
of Beneficiary to Credit Sale. Upon the occurrence of any sale made under
this Deed of Trust, whether made under the power of sale or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale,
Beneficiary may bid for and acquire the Mortgaged Property or any part thereof.
In lieu of paying cash therefor, Beneficiary may make settlement for the
purchase price by crediting upon the Obligations or other sums secured by this
Deed of Trust, the net sales price after deducting therefrom the expenses of
sale and the reasonable, out-of-pocket cost of the action and any other sums
which Beneficiary is authorized to deduct under this Deed of Trust. In such
event, this Deed of Trust, the Credit Agreement, the Guarantee and Collateral
Agreement and documents evidencing expenditures secured hereby may be presented
to the person or persons conducting the sale in order that the amount so used
or applied may be credited upon the Obligations as having been paid.


 


15.                                 Appointment
of Receiver. If an Event of Default shall have occurred and be continuing,
Beneficiary, to the extent permitted under applicable law, as a matter of right
and without notice to Grantor, and without regard to the adequacy or inadequacy
of the Mortgaged Property or any other collateral or the interest of Grantor
therein as security for the Obligations, shall have the right to apply to any
court having jurisdiction to appoint a receiver or receivers or other manager
of the Mortgaged Property, and Grantor hereby irrevocably consents to such appointment
and waives notice of any application therefor (except as may be required by
law). Any such receiver or receivers or manager shall have all the usual powers
and duties of receivers in like or similar cases and all the powers and duties
of Beneficiary in case of entry as provided in this Deed of Trust, including
and to the extent permitted by law, the right to enter into leases of all or
any part of the Mortgaged Property, and shall continue as such and exercise all
such powers until the date of confirmation of sale of the Mortgaged Property
unless such receivership is sooner terminated.


 


16.                                 Extension, Release, etc. (a)  Without affecting the
lien or charge of this Deed of Trust upon any portion of the Mortgaged Property
not then or theretofore released as security for the full amount of the
Obligations, Beneficiary may, from time to time and without notice, agree to (i) release
any person liable for the indebtedness borrowed or guaranteed under the Loan
Documents, (ii) extend the maturity or alter any of the terms of the
indebtedness borrowed or guaranteed under the Loan Documents or any other
guaranty thereof, (iii) grant other indulgences, (iv) release or
reconvey, or cause to be released or reconveyed at any time at Beneficiary’s
option any parcel, portion or all of the Mortgaged Property, (v) take or
release any other or additional security for any obligation herein mentioned,
or (vi) make compositions or other arrangements with debtors in relation
thereto.


 


(b)                                 No recovery of any judgment by Beneficiary
and no levy of an execution under any judgment upon the Mortgaged Property or
upon any other property of Grantor shall affect the lien of this Deed of Trust
or any liens, rights, powers or remedies of Beneficiary hereunder, and such
liens, rights, powers and remedies shall continue unimpaired.


 


(c)                                  If Beneficiary shall have the right to
foreclose this Deed of Trust or to direct a power of sale, Grantor authorizes
Beneficiary at its option to foreclose the lien of this


 


9

















 


Deed
of Trust or direct the sale of the Mortgaged Property, as the case may be,
subject to the rights of any tenants of the Mortgaged Property. The failure to
make any such tenants parties defendant to any such foreclosure proceeding and
to foreclose their rights, or to provide notice to such tenants as required in
any statutory procedure governing a sale of the Mortgaged Property, or to
terminate such tenant’s rights in such sale will not be asserted by Grantor as
a defense to any proceeding instituted by Beneficiary to collect the
Obligations or to foreclose the lien of this Deed of Trust.


 


(d)                                 Unless expressly provided otherwise, in the
event that ownership of this Deed of Trust and title to the Mortgaged Property
or any estate therein shall become vested in the same person or entity, this
Deed of Trust shall not merge in such title but shall continue as a valid lien
on the Mortgaged Property for the amount secured hereby.


 


17.                                 Security
Agreement under Uniform Commercial Code. (a)  It is the intention of
the parties hereto that this Deed of Trust shall constitute a “security
agreement” within the meaning of the Uniform Commercial Code (the “Code”) of the State in which the Mortgaged
Property is located. If an Event of Default shall occur and be continuing, then
in addition to having any other right or remedy available at law or in equity,
Beneficiary shall have the option of either (i) proceeding under the Code
and exercising such rights and remedies as may be provided to a secured party
by the Code with respect to all or any portion of the Mortgaged Property which
is personal property (including taking possession of and selling such property)
or (ii) treating such property as real property and proceeding with
respect to both the real and personal property constituting the Mortgaged
Property in accordance with Beneficiary’s rights, powers and remedies with
respect to the real property (in which event the default provisions of the Code
shall not apply). If Beneficiary shall elect to proceed under the Code, then 10
days’ notice of sale of the personal property shall be deemed reasonable notice
and the reasonable expenses of retaking, holding, preparing for sale, selling
and the like incurred by Beneficiary shall include reasonable, out-of-pocket
attorneys’ fees and legal expenses. At Beneficiary’s request, during the
continuance of an Event of Default, Grantor shall assemble the personal
property and make it available to Beneficiary at a place designated by
Beneficiary which is reasonably convenient to both parties (subject to the
terms of any documentation governing any Permitted Receivables Transaction).


 


(b)                                 Grantor and Beneficiary agree, to the extent
permitted by law, that: (i) all of the goods described within the
definition of the word “Equipment”
are or are to become fixtures on the Real Estate; (ii) this Deed of Trust
upon recording or registration in the real estate records of the proper office
shall constitute a financing statement filed as a “fixture filing” within the
meaning of Sections 9a-334 and 9a-502 of the Code; (iii) Grantor is the
record owner of the Owned Land; and (iv) the addresses of Grantor and
Beneficiary are as set forth on the first page of this Deed of Trust.


 


18.                                 Assignment
of Rents. (a)  Grantor hereby assigns to Beneficiary the Rents as
further security for the payment of and performance of the Obligations, and
Grantor grants to Beneficiary the right to enter the Mortgaged Property for the
purpose of collecting the same and to let the Mortgaged Property or any part
thereof, and to apply the Rents on account of the Obligations. The foregoing
assignment and grant is present and absolute and shall continue in effect until
the Obligations are fully paid and performed, but Beneficiary hereby waives the
right to enter the Mortgaged Property for the purpose of collecting the Rents
and Grantor shall be


 


10

















 


entitled to collect,
receive, use and retain the Rents until the occurrence and during the
continuance of an Event of Default, such right of Grantor to collect, receive,
use and retain the Rents may be revoked by Beneficiary upon the occurrence and
during the continuance of any Event of Default under this Deed of Trust by
giving not less than 10 days’ written notice of such revocation to Grantor; in
the event such notice is given, Grantor shall pay over to Beneficiary, or to
any receiver appointed to collect the Rents, any lease security deposits, and
shall pay monthly in advance to Beneficiary, or to any such receiver, the fair
and reasonable rental value as determined by Beneficiary for the use and
occupancy of such part of the Mortgaged Property as may be in the possession of
Grantor or any affiliate of Grantor, and upon default in any such payment
Grantor and any such affiliate will vacate and surrender the possession of the
Mortgaged Property to Beneficiary or to such receiver, and in default thereof
may be evicted by summary proceedings or otherwise (subject to the terms of any
documentation governing any Permitted Receivables Transaction). Grantor shall
not accept prepayments of installments of Rent to become due for a period of
more than one month in advance (except for security deposits and estimated
payments of percentage rent, if any).


 


(b)                                 Grantor has not affirmatively done any act
which would prevent Beneficiary from, or limit Beneficiary in, acting under any
of the provisions of the foregoing assignment.


 


(c)                                  Except for any matter disclosed in the Credit
Agreement, no action has been brought or, so far as is known to Grantor, is
threatened, which would interfere in any way with the right of Grantor to
execute the foregoing assignment and perform all of Grantor’s obligations
contained in this Section and in the Leases.


 


19.                                 Additional
Rights. The holder of any subordinate lien or subordinate deed of trust on
the Mortgaged Property shall have no right to terminate any Lease whether or
not such Lease is subordinate to this Deed of Trust nor shall Grantor consent
to any holder of any subordinate lien or subordinate deed of trust joining any
tenant under any Lease in any action to foreclose the lien or modify, interfere
with, disturb or terminate the rights of any tenant under any Lease. By
recordation of this Deed of Trust all subordinate lienholders and the Beneficiaries
and beneficiaries under subordinate mortgages are subject to and notified of
this provision, and any action taken by any such lienholder or beneficiary
contrary to this provision shall be null and void. Upon the occurrence and
during the continuance of any Event of Default, Beneficiary may, in its sole
discretion and without regard to the adequacy of its security under this Deed
of Trust, apply all or any part of any amounts on deposit with Beneficiary
under this Deed of Trust against all or any part of the Obligations. Any such
application shall not be construed to cure or waive any Default or Event of
Default or invalidate any act taken by Beneficiary on account of such Default
or Event of Default.


 


20.                                 Notices.
All notices, requests, demands and other communications hereunder shall be
given in accordance with the provisions of subsection 11.2 of the Credit
Agreement to Grantor and to Beneficiary as specified therein.


 


21.                                 No
Oral Modification. This Deed of Trust may not be amended, supplemented or otherwise
modified except in accordance with the provisions of subsection 11.1 of
the Credit Agreement. Any agreement made by Grantor and Beneficiary after the
date of this 


 


11

















 


Deed
of Trust relating to this Deed of Trust shall be superior to the rights of the
holder of any intervening or subordinate lien or encumbrance.


 


22.                                 Partial
Invalidity. In the event any one or more of the provisions contained in
this Deed of Trust shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, but each shall be construed as if
such invalid, illegal or unenforceable provision had never been included. Notwithstanding
to the contrary anything contained in this Deed of Trust or in any provisions
of any Loan Document, the obligations of Grantor and of any other obligor under
any Loan Documents or with respect to the Euro MTN Obligations shall be subject
to the limitation that Beneficiary shall not charge, take or receive, nor shall
Grantor or any other obligor be obligated to pay to Beneficiary, any amounts
constituting interest in excess of the maximum rate permitted by law to be
charged by Beneficiary.


 


23.                                 Grantor’s
Waiver of Rights. To the fullest extent permitted by law, Grantor waives
the benefit of all laws now existing or that may subsequently be enacted
providing for (a) any appraisement before sale of any portion of the
Mortgaged Property, (b) any extension of the time for the enforcement of
the collection of the Obligations or the creation or extension of a period of
redemption from any sale made in collecting such debt and (c) exemption of
the Mortgaged Property from attachment, levy or sale under execution or
exemption from civil process. To the full extent Grantor may do so, Grantor
agrees that Grantor will not at any time insist upon, plead, claim or take the
benefit or advantage of any law now or hereafter in force providing for any
appraisement, valuation, stay, exemption, extension or redemption, or requiring
foreclosure of this Deed of Trust before exercising any other remedy granted
hereunder and Grantor, for Grantor and its successors and assigns, and for any
and all persons ever claiming any interest in the Mortgaged Property, to the
extent permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of election to mature
(except as expressly provided in the Credit Agreement) or declare due the whole
of the secured indebtedness and marshalling in the event of exercise by
Beneficiary of the foreclosure rights, power of sale, or other rights hereby
created.


 


24.                                 Remedies
Not Exclusive. Beneficiary shall be entitled to enforce payment and
performance of the Obligations and to exercise all rights and powers under this
Deed of Trust or under any of the other Loan Documents or other agreement or
any laws now or hereafter in force, notwithstanding some or all of the
Obligations may now or hereafter be otherwise secured, whether by deed of
trust, mortgage, security agreement, pledge, lien, assignment or otherwise.
Neither the acceptance of this Deed of Trust nor its enforcement, shall
prejudice or in any manner affect Beneficiary’s rights to realize upon or
enforce any other security now or hereafter held by Beneficiary, it being
agreed that Beneficiary shall be entitled to enforce this Deed of Trust and any
other security now or hereafter held by Beneficiary in such order and manner as
Beneficiary may determine in its absolute discretion. No remedy herein
conferred upon or reserved to Beneficiary is intended to be exclusive of any
other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute. Every power or
remedy given by any of the Loan Documents to Beneficiary or to which either may
otherwise be entitled, may be exercised, concurrently or independently, from
time to time and as often as may be deemed expedient by Beneficiary, as the
case may be. In no event shall Beneficiary, in the exercise of the remedies
provided in this Deed of Trust (including in


 


12

















 


connection
with the assignment of Rents to Beneficiary, or the appointment of a receiver
and the entry of such receiver on to all or any part of the Mortgaged
Property), be deemed a “Beneficiary in possession,” and Beneficiary shall not
in any way be made liable for any act, either of commission or omission, in
connection with the exercise of such remedies.


 


25.                                 Multiple
Security. If (a) the Premises shall consist of one or more parcels,
whether or not contiguous and whether or not located in the same county, or (b) in
addition to this Deed of Trust, Beneficiary shall now or hereafter hold or be
the beneficiary of one or more additional mortgages, liens, deeds of trust or
other security (directly or indirectly) for the Obligations upon other property
in the State in which the Premises are located (whether or not such property is
owned by Grantor or by others) or (c) both the circumstances described in
clauses (a) and (b) shall be true, then to the fullest extent
permitted by law, Beneficiary may, at its election, commence or consolidate in
a single foreclosure action all foreclosure proceedings against all such
collateral securing the Obligations (including the Mortgaged Property), which
action may be brought or consolidated in the courts of, or sale conducted in,
any county in which any of such collateral is located. Grantor acknowledges
that the right to maintain a consolidated foreclosure action is a specific
inducement to Beneficiary to extend the indebtedness borrowed pursuant to or
guaranteed by the Loan Documents, and Grantor expressly and irrevocably waives
any objections to the commencement or consolidation of the foreclosure
proceedings in a single action and any objections to the laying of venue or
based on the grounds of forum non conveniens which it may now or hereafter
have. Grantor further agrees that if Beneficiary shall be prosecuting one or
more foreclosure or other proceedings against a portion of the Mortgaged
Property or against any collateral other than the Mortgaged Property, which collateral
directly or indirectly secures the Obligations, or if Beneficiary shall have
obtained a judgment of foreclosure and sale or similar judgment against such
collateral, then, whether or not such proceedings are being maintained or
judgments were obtained in or outside the State in which the Premises are
located, Beneficiary may commence or continue any foreclosure proceedings and
exercise its other remedies granted in this Deed of Trust against all or any
part of the Mortgaged Property and Grantor waives any objections to the
commencement or continuation of a foreclosure of this Deed of Trust or exercise
of any other remedies hereunder based on such other proceedings or judgments,
and waives any right to seek to dismiss, stay, remove, transfer or consolidate
either any action under this Deed of Trust or such other proceedings on such
basis. Neither the commencement nor continuation of proceedings to foreclose
this Deed of Trust, nor the exercise of any other rights hereunder nor the
recovery of any judgment by Beneficiary in any such proceedings or the
occurrence of any sale in any such proceedings shall prejudice, limit or
preclude Beneficiary’s right to commence or continue one or more foreclosure or
other proceedings or obtain a judgment against any other collateral (either in
or outside the State in which the Premises are located) which directly or
indirectly secures the Obligations, and Grantor expressly waives any objections
to the commencement of, continuation of, or entry of a judgment in such other
sales or proceedings or exercise of any remedies in such sales or proceedings
based upon any action or judgment connected to this Deed of Trust, and Grantor
also waives any right to seek to dismiss, stay, remove, transfer or consolidate
either such other sales or proceedings or any sale or action under this Deed of
Trust on such basis. It is expressly understood and agreed that to the fullest
extent permitted by law, Beneficiary may, at its election, cause the sale of
all collateral which is the subject of a single foreclosure action at either a
single sale or at multiple sales conducted simultaneously and take such other
measures as are appropriate in order to effect the agreement of the parties to
dispose of and administer all


 


13

















 


collateral securing the
Obligations (directly or indirectly) in the most economical and least
time-consuming manner.


 


26.                                 Successors
and Assigns. All covenants of Grantor contained in this Deed of Trust are
imposed solely and exclusively for the benefit of Beneficiary, and its
successors and assigns, and no other person or entity shall have standing to
require compliance with such covenants or be deemed, under any circumstances,
to be a beneficiary of such covenants, any or all of which may be freely waived
in whole or in part by Beneficiary at any time if in its sole discretion it
deems such a waiver advisable. All such covenants of Grantor shall run with the
land and bind Grantor, the successors and assigns of Grantor (and each of them)
and all subsequent owners, encumbrancers and tenants of the Mortgaged Property,
and shall inure to the benefit of Beneficiary and its successors and assigns.
The word “Grantor” shall be construed as if it read “Grantors” whenever the
sense of this Deed of Trust so requires and if there shall be more than one
Grantor, the obligations of the Grantors shall be joint and several.


 


27.                                 No Waivers, etc. Any failure by Beneficiary to insist upon
the strict performance by Grantor of any of the terms and provisions of this
Deed of Trust shall not be deemed to be a waiver of any of the terms and
provisions hereof, and Beneficiary, notwithstanding any such failure, shall
have the right thereafter to insist upon the strict performance by Grantor of
any and all of the terms and provisions of this Deed of Trust to be performed
by Grantor. Beneficiary may release, regardless of consideration and without
the necessity for any notice to or consent by the holder of any subordinate
lien on the Mortgaged Property, any part of the security held for the
obligations secured by this Deed of Trust without, as to the remainder of the
security, in any way impairing or affecting the lien of this Deed of Trust or
the priority of such lien over any subordinate lien or deed of trust.


 


28.                                 Governing
Law, etc. This Deed of Trust shall be governed by and construed and
interpreted in accordance with the laws of the State in which the Premises are
located, except that Grantor expressly acknowledges that by their respective
terms the Loan Documents shall be governed and construed in accordance with the
laws of the State of New York, without regard to the conflicts of laws
principles thereof, and for purposes of consistency, Grantor agrees that in any
in personam proceeding related to this Deed of Trust the rights of the parties
to this Deed of Trust shall also be governed by and construed in accordance
with the laws of the State of New York governing contracts made and to be
performed in that State, without regard to the conflicts of laws principles
thereof.


 


29.                                 Certain
Definitions. Unless the context clearly indicates a contrary intent or
unless otherwise specifically provided herein, words used in this Deed of Trust
shall be used interchangeably in singular or plural form and the word “Grantor”
shall mean “each Grantor or any subsequent owner or owners of the Mortgaged
Property or any part thereof or interest therein,” the word “Beneficiary” shall
mean “Beneficiary or any successor Administrative Agent,” the word “person”
shall include any individual, corporation, partnership, limited liability
company, trust, unincorporated association, government, governmental authority,
or other entity, and the words “Mortgaged Property” shall include any portion
of the Mortgaged Property or interest therein. Whenever the context may
require, any pronouns used herein shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural and vice versa. The captions in this Deed of Trust are for
convenience or 


 


14

















 


reference only and in no
way limit or amplify the provisions hereof. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase without limitation.


 


30.                                 Last
Dollars Secured; Priority. This Deed of Trust secures only a portion of the
indebtedness owing or which may become owing by the Grantor to the Secured
Parties. The parties agree that any payments or repayments of such indebtedness
shall be and be deemed to be applied first to the portion of the indebtedness
that is not secured hereby, it being the parties’ intent that the portion of
the indebtedness last remaining unpaid shall be secured hereby. If at any time
this Deed of Trust shall secure less than all of the principal amount of the
Obligations, it is expressly agreed that any repayments of the principal amount
of the Obligations shall not reduce the amount of the lien of this Deed of
Trust until the lien amount shall equal the principal amount of the Obligations
outstanding.


 


31.                                 Release.
If any of the Mortgaged Property shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the Credit Agreement,
then the Beneficiary, at the request and sole expense of such Grantor, shall
execute and deliver to such Grantor all releases or other documents reasonably
necessary or desirable for the release of the Liens created hereby on such
Mortgaged Property. The Grantor shall deliver to the Beneficiary, at least 10
Business Days prior to the date of the proposed release, a written request for
release identifying the sale or other disposition in reasonable detail,
including the price thereof and any expenses in connection therewith, together
with a certification by the Grantor stating that such transaction is in
compliance with, and permitted by, the Credit Agreement and the other Loan
Documents.


 


32.                                 Conflict
With Credit Agreement. In the event of any conflict or inconsistency
between the terms and provisions of this Deed of Trust and the terms and
provisions of the Credit Agreement, the terms and provisions of the Credit
Agreement shall govern, other than with respect to the section of this
Deed of Trust captioned “Governing Law, etc.”. By their execution of the Credit
Agreement, each Lender hereby agrees that it shall not have the right to
institute any suit for enforcement of any Note or any other Indebtedness
secured by this Deed of Trust or any other Security Document, if and to the
extent that the institution or prosecution thereof or the entry of judgment
therein would, upon applicable law, result in the surrender, impairment, waiver
or loss of the Lien of this Deed of Trust or any other Security Document or
impede or delay the enforcement of the Lien of this Deed of Trust or any other
Security Document.


 


33.                                 Change
in Tax Law. Upon the enactment of or change in (including a change in
interpretation of) any applicable law (i) deducting or allowing Grantor to
deduct from the value of the Mortgaged Property for the purpose of taxation any
lien or security interest thereon or (ii) subjecting Beneficiary or any of
the Lenders to any tax or changing the basis of taxation of mortgages, deeds of
trust, or other liens or debts secured thereby, or the manner of collection of
such taxes, in each such case, so as to affect this Deed of Trust, the
Obligations or Beneficiary, and the result is to increase the taxes imposed
upon or the cost to Beneficiary of maintaining the Obligations, or to reduce
the amount of any payments receivable hereunder, then, and in any such event,
Grantor shall, on demand, pay to Beneficiary and the Lenders additional amounts
to compensate for such increased costs or reduced amounts, provided that if any
such payment or reimbursement shall be unlawful, or taxable to Beneficiary, or
would constitute usury or render the Obligations wholly or partially usurious
under applicable law, then Grantor


 


15

















 


shall pay or reimburse
Beneficiary or the Lenders for payment of the lawful and non-usurious portion
thereof.


 


34.                                 Subrogation.
To the extent proceeds of the Loan have been used to extinguish, extend or
renew any indebtedness against the Mortgaged Property, then Beneficiary shall
be subrogated to all of the rights, liens and interests existing against the
Mortgaged Property and held by the holder of such indebtedness and such former
rights, liens and interests, if any, are not waived, but are continued in full
force and effect in favor of Beneficiary.


 


35.                                 Beneficiary
as Agent. Beneficiary has been appointed to act as Beneficiary hereunder by
Lenders and, by their acceptance of the benefits hereof, all other Secured
Parties. Beneficiary shall be obligated, and shall have the right hereunder, to
make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action (including the release or
substitution of Mortgaged Property), solely in accordance with this Deed of
Trust and the Credit Agreement; provided, Beneficiary shall exercise, or
refrain from exercising, any remedies provided for herein in accordance with
the instructions of Required Lenders to the extent required pursuant to the
Credit Agreement. In furtherance of the foregoing provisions of this Section,
each Secured Party, by its acceptance of the benefits hereof, agrees that it
shall have no right individually to realize upon any of the Mortgaged Property,
it being understood and agreed by such Secured Party that all rights and
remedies hereunder may be exercised solely by Beneficiary for the benefit of
Lenders and the other Secured Parties in accordance with the terms of this
Section. Beneficiary shall at all times be the same Person that is Collateral
Agent under the Credit Agreement. Written notice of resignation by Collateral
Agent pursuant to terms of the Credit Agreement shall also constitute notice of
resignation as Beneficiary under this Deed of Trust; removal of Collateral
Agent pursuant to the terms of the Credit Agreement shall also constitute
removal as Beneficiary under this Deed of Trust; and appointment of a successor
Collateral Agent pursuant to the terms of the Credit Agreement shall also
constitute appointment of a successor Beneficiary under this Deed of Trust.
Upon the acceptance of any appointment as Collateral Agent under the terms of
the Credit Agreement by a successor Collateral Agent, that successor Collateral
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Beneficiary under this Deed of
Trust, and the retiring or removed Beneficiary under this Deed of Trust shall
promptly (i) transfer to such successor Beneficiary all sums, securities
and other items of Mortgaged Property held hereunder, together with all records
and other documents necessary or appropriate in connection with the performance
of the duties of the successor Beneficiary under this Deed of Trust, and (ii) execute
and deliver to such successor Beneficiary such amendments to financing statements,
and take such other actions, as may be necessary or appropriate in connection
with the assignment to such successor Beneficiary of the security interests
created hereunder, whereupon such retiring or removed Beneficiary shall be
discharged from its duties and obligations under this Deed of Trust thereafter
accruing. After any retiring or removed Collateral Agent’s resignation or
removal hereunder as Beneficiary, the provisions of this Deed of Trust shall
continue to enure to its benefit as to any actions taken or omitted to be taken
by it under this Deed of Trust while it was Beneficiary hereunder.


 


36.                                 Intercreditor
Agreements. The lien of this Deed of Trust herein granted to Beneficiary
pursuant to the ABL Credit Agreement (as defined in the Intercreditor
Agreement) is expressly subject and subordinate to the liens granted to Term
Beneficiary pursuant to the Term Credit Agreement (as defined in the
Intercreditor Agreement)  and the Term
Deed of Trust with 


 


16

















 


respect to (i) all
of the Mortgaged Property, (ii) all of the terms, covenants and conditions
of this Deed of Trust and all extensions, renewals, modifications,
consolidations, spreaders or replacements of this Deed of Trust, (iii) any
other action permitted or contemplated by this Deed of Trust and (iv) any
assignment of any other property rights mortgaged or assigned to Beneficiary as
additional security for the Obligations. Notwithstanding anything to the
contrary contained herein, the lien and security interest granted to
Beneficiary pursuant to this Deed of Trust and the exercise of any right or
remedy by Beneficiary hereunder are subject to the provisions of the
Intercreditor Agreement. The foregoing provisions of this paragraph shall
remain in full force and effect for so long as the Term Credit Agreement
remains outstanding. In the event of any conflict between the terms and
provisions of the Intercreditor Agreement and the terms and provisions of this
Deed of Trust, the terms and provisions of the Intercreditor Agreement shall
govern and control. As among the beneficiaries and holders of the ABL
Obligations, as defined in the Intercreditor Agreement: (a) all rights and
claims of such beneficiaries shall be subject to the Intercreditor Agreement;
and (b) if the ABL Credit Agreement is modified in a manner that modifies
any definition, the resulting modification in definition (as it applies in this
Deed of Trust) shall bind only any parties that were bound by such change in
the ABL Credit Agreement.


 


37.                                 State
Specific Provisions. [To be added]


 


38.                                 Rights
and Responsibilities of Trustee; Other Provisions Relating to Trustee.
Notwithstanding anything to the contrary in this Deed of Trust, Grantor and
Beneficiary agree as follows:


 


(a)                                  Exercise of Remedies by Trustee. To the extent that this Deed of Trust or
applicable law authorizes or empowers Beneficiary to exercise any remedies set
forth in Section 13 hereof or otherwise, or perform any acts in connection
therewith, Trustee (but not to the exclusion of Beneficiary unless so required
under the law of the State) shall have the power to exercise any or all such
remedies, and to perform any acts provided for in this Deed of Trust in
connection therewith, all for the benefit of Beneficiary and on Beneficiary’s
behalf in accordance with applicable law of the State. In connection therewith,
Trustee: (i) shall not exercise, or waive the exercise of, any Beneficiary’s
remedies (other than any rights of Trustee to any indemnity or reimbursement), except
at Beneficiary’s request, and (ii) shall exercise, or waive the exercise
of, any or all of Beneficiary’s remedies at Beneficiary’s request, and in
accordance with Beneficiary’s directions as to the manner of such exercise or
waiver. Trustee may, however, decline to follow Beneficiary’s request or
direction if Trustee shall be advised by counsel that the action or proceeding,
or manner thereof, so directed may not lawfully be taken or waived.


 


(b)                                 Rights and Privileges of Trustee. To the extent that this Deed of Trust
requires Grantor to reimburse Beneficiary for any expenditures Beneficiary may
incur, Trustee shall be entitled to the same rights to reimbursement of
expenses as Beneficiary, subject to such limitations and conditions as would
apply in the case of Beneficiary. To the extent that this Deed of Trust negates
or limits Beneficiary’s liability as to any matter, Trustee shall be entitled
to the same negation or limitation of liability. To the extent that Grantor,
pursuant to this Deed of Trust, appoints Beneficiary as Grantor’s attorney in
fact for any purpose, Beneficiary or (when so instructed by Beneficiary)
Trustee shall be entitled to act on Grantor’s behalf without joinder or
confirmation by the other.


 


17


 

















 


 


 


(c)                                  Intentionally
Deleted.


 


(d)                                 Authority of
Beneficiary.  If Beneficiary is a
banking corporation, state banking corporation or a national banking
association and the instrument of appointment of any successor or replacement
Trustee is executed on Beneficiary’s behalf by an officer of such corporation,
state banking corporation or national banking association, then such
appointment may be executed by any authorized officer or agent of Beneficiary
and such appointment shall be conclusively presumed to be executed with
authority and shall be valid and sufficient without proof of any action by the
board of directors or any superior officer of Beneficiary.


 


(e)                                  Effect of
Appointment of Successor Trustee. 
Upon the appointment and designation of any successor, substitute or
replacement Trustee, Trustee’s entire estate and title in the Mortgaged
Property shall vest in the designated successor, substitute or replacement
Trustee.  Such successor, substitute or
replacement Trustee shall thereupon succeed to and shall hold, possess and
execute all the rights, powers, privileges, immunities and duties herein
conferred upon Trustee.  All references
herein to Trustee shall be deemed to refer to Trustee (including any successor
or substitute appointed and designated as herein provided) from time to time
acting hereunder.


 


(f)                                    Confirmation of
Transfer and Succession.  Any new
Trustee appointed pursuant to any of the provisions hereof shall, without any
further act, deed or conveyance, become vested with all the estates,
properties, rights, powers and trusts of his predecessor in the rights
hereunder with like effect as if originally named as Trustee herein; but
nevertheless, upon the written request of Beneficiary or of any successor,
substitute or replacement Trustee, any former Trustee ceasing to act shall
execute and deliver an instrument transferring to such successor, substitute or
replacement Trustee all of the right, title, estate and interest in the
Mortgaged Property of Trustee so ceasing to act, together with all the rights,
powers, privileges, immunities and duties herein conferred upon Trustee, and
shall duly assign, transfer and deliver all properties and moneys held by said
Trustee hereunder to said successor, substitute or replacement Trustee.


 


(g)                                 Exculpation.  Trustee shall not be liable for any error of
judgment or act done by Trustee in good faith, or otherwise be responsible or
accountable under any circumstances whatsoever, except for Trustee’s gross
negligence, willful misconduct or knowing violation of law.  Trustee shall not be personally liable in
case of entry by him, or anyone entering by virtue of the powers herein granted
him, upon the Mortgaged Property for debts contracted or liability or damages
incurred in the management or operation of the Mortgaged Property.  Trustee shall have the right to rely on any
instrument, document or signature authorizing or supporting any action taken or
proposed to be taken by it hereunder, believed by it in good faith to be
genuine.  All moneys received by Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated in any manner
from any other moneys (except to the extent required by law).  Trustee shall be under no liability for
interest on any moneys received by it hereunder.


 


(h)                                 Endorsement and
Execution of Documents.  Upon
Beneficiary’s written request, Trustee shall, without liability or notice to
Grantor, execute, consent to, or join in any instrument or agreement in
connection with or necessary to effectuate the purposes of the Credit Documents
(as defined in the Intercreditor Agreement). 
Grantor hereby irrevocably designates 


 


18

















 


Trustee as its attorney in fact to execute, acknowledge and deliver, on
Grantor’s behalf and in Grantor’s name, all instruments or agreements necessary
to implement any provision(s) of this Deed of Trust or to further perfect the
lien created by this Deed of Trust on the Mortgaged Property.  This power of attorney shall be deemed to be
coupled with an interest and shall survive any disability of Grantor.


 


(i)                                     Multiple
Trustees.  If Beneficiary appoints
multiple trustees, then any Trustee, individually, may exercise all powers granted
to Trustee under this instrument, without the need for action by any other
Trustee(s).


 


(j)                                     No Required
Action.  Trustee shall not be
required to take any action under this Deed of Trust or to institute, appear in
or defend any action, suit or other proceeding in connection therewith where in
his opinion such action will be likely to involve him in expense or liability,
unless requested so to do by a written instrument signed by Beneficiary and, if
Trustee so requests, unless Trustee is tendered security and indemnity
satisfactory to him against any and all costs, expense and liabilities arising
therefrom.  Trustee shall not be
responsible for the execution, acknowledgment or validity of the Credit
Documents (as defined in the Intercreditor Agreement), or for the proper
authorization thereof, or for the sufficiency of the lien and security interest
purported to be created hereby, and makes no representation in respect thereof
or in respect of the rights, remedies and recourses of Beneficiary.


 


(k)                                  Terms of Trustee’s
Acceptance.  Trustee accepts the
trust created by this Deed of Trust upon the following terms and conditions:


 


(i)                                     Delegation.  Trustee may exercise any of its powers
through appointment of attorney(s) in fact or agents.


 


(ii)                                  Security.  Trustee shall be under no obligation to take
any action upon any Event of Default unless furnished security or indemnity, in
form satisfactory to Trustee, against costs, expenses, and liabilities that
Trustee may incur.


 


(iii)                               Costs and Expenses.  Grantor shall reimburse Trustee, as part of
the Loan Obligations secured hereunder, for all reasonable disbursements and
expenses (including reasonable legal fees and expenses) incurred by reason of
or arising from an Actionable Default and as provided for in this Deed of
Trust, including any of the foregoing incurred in Trustee’s administering and
executing the trust created by this Deed of Trust and performing Trustee’s
duties and exercising Trustee’s powers under this Deed of Trust.


 


[SIGNATURE PAGE FOLLOWS]


 


19

















 


This Deed of Trust has been duly executed by the undersigned and is
intended to be effective as the date first above written.


 


	
   

  	
  [THE HERTZ CORPORATION],

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
					



 


20

















 


	
  STATE OF

  	
  )

  
	
   

  	
  ) ss.:

  
	
  COUNTY OF

  	
  )

  



 


I certify that on         
    , 2005,
                    
personally came before me and this person acknowledged under oath, to my
satisfaction, that:


 


a.                                       this
person signed and delivered the attached document as
                   
of
                   ,
the corporation named in this document; and


 


b.                                      this
document was signed and made by the corporation as its voluntary act and deed
by virtue of authority from its Board of Directors.


 


	
   

  	
   

  	
   

  
	
   

  	
  NOTARY
  PUBLIC

  
	
   

  	
  State of                           

  	
   

  
	
   

  	
  My
  Commission Expires:

  



 


[SEAL]


 


21

















 


Schedule A


 


Description of the Owned Land


 


i

















EXHIBIT C TO


CREDIT AGREEMENT


 


This document is intended to be recorded in [County],
[State]


 


This Mortgage was
prepared by

and when recorded should be returned to:


 


Latham & Watkins
LLP

885 Third Avenue

Suite 1000

New York, New York 10022-4802

Attention:  Aaron S. Adler, Esq.

(212) 906-1200

031347-0012


 


FORM OF


 


MORTGAGE, SECURITY AGREEMENT,


AND ASSIGNMENT OF LEASES AND RENTS AND
FIXTURE FILING


 


by


 


[THE HERTZ CORPORATION, a Delaware
Corporation,]

as Mortgagor,


 


to


 


DEUTSCHE BANK AG, NEW YORK BRANCH,


as Collateral Agent,

as Mortgagee,


 


Dated as of December    ,
2005


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Background

  	
  1

  
	
  Granting
  Clauses

  	
  2

  
	
  Terms and
  Conditions

  	
  5

  
	
  1.

  	
  Defined
  Terms

  	
  5

  
	
  2.

  	
  Warranty of
  Title

  	
  6

  
	
  3.

  	
  Payment of
  Obligations

  	
  6

  
	
  4.

  	
  Requirements

  	
  6

  
	
  5.

  	
  Payment of
  Taxes and Other Impositions

  	
  6

  
	
  6.

  	
  Insurance

  	
  7

  
	
  7.

  	
  Restrictions
  on Liens and Encumbrances

  	
  7

  
	
  8.

  	
  Due on Sale
  and Other Transfer Restrictions

  	
  7

  
	
  9.

  	
  Condemnation/Eminent Domain

  	
  7

  
	
  10.

  	
  Leases

  	
  7

  
	
  11.

  	
  Further
  Assurances

  	
  8

  
	
  12.

  	
  Mortgagee’s
  Right to Perform

  	
  8

  
	
  13.

  	
  Remedies

  	
  8

  
	
  14.

  	
  Right of
  Mortgagee to Credit Sale

  	
  10

  
	
  15.

  	
  Appointment
  of Receiver

  	
  10

  
	
  16.

  	
  Extension, Release, etc

  	
  10

  
	
  17.

  	
  Security
  Agreement under Uniform Commercial Code

  	
  11

  
	
  18.

  	
  Assignment
  of Rents

  	
  12

  
	
  19.

  	
  Additional
  Rights

  	
  13

  
	
  20.

  	
  Notices

  	
  13

  
	
  21.

  	
  No Oral
  Modification

  	
  13

  
	
  22.

  	
  Partial
  Invalidity

  	
  13

  
	
  23.

  	
  Mortgagor’s
  Waiver of Rights

  	
  14

  
	
  24.

  	
  Remedies Not
  Exclusive

  	
  14

  
	
  25.

  	
  Multiple
  Security

  	
  15

  
	
  26.

  	
  Successors
  and Assigns

  	
  16

  
	
  27.

  	
  No Waivers, etc

  	
  16

  
	
  28.

  	
  Governing
  Law, etc

  	
  16

  
	
  29.

  	
  Certain
  Definitions

  	
  16

  
	
  30.

  	
  Last Dollars
  Secured; Priority

  	
  17

  
	
  31.

  	
  Release

  	
  17

  
	
  32.

  	
  Conflict
  With Credit Agreement

  	
  17

  
	
  33.

  	
  Change in
  Tax Law

  	
  18

  
	
  34.

  	
  Subrogation

  	
  18

  
	
  35.

  	
  Mortgagee as
  Agent

  	
  18

  
	
  36.

  	
  Intercreditor
  Agreements

  	
  19

  
	
  37.

  	
  State
  Specific Provisions

  	
  20

  



 

















 


MORTGAGE,
SECURITY AGREEMENT,

ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING


 


THIS MORTGAGE, SECURITY
AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING, dated as of December    ,
2005 is made by [THE HERTZ CORPORATION/THE HERTZ EQUIPMENT RENTAL CORPORATION, a Delaware
corporation] (“Mortgagor”), whose
address is 225 Brae Blvd., Park Ridge, New Jersey 07656, to DEUTSCHE BANK AG,
NEW YORK BRANCH, as Collateral Agent (in such capacity, “Mortgagee”), whose address is 60 Wall
Street, New York, New York 10005.  References
to this “Mortgage” shall mean this
instrument and any and all renewals, modifications, amendments, supplements,
extensions, consolidations, substitutions, spreaders and replacements of this
instrument.


 


Background


 


A.                                   Hertz
Equipment Rental Corporation, a Delaware corporation, and The Hertz
Corporation, a Delaware corporation, have entered into that certain Credit
Agreement dated as of the date hereof (as the same may be amended, supplemented
or otherwise modified from time to time, the “Credit
Agreement”) among Hertz Equipment Rental Corporation (together with
any assignee of, or successor by merger to, Hertz Equipment Rental Corporation’s
rights and obligations thereunder as provided therein, “HERC”)
and The Hertz Corporation (together with any assignee of, or successor by
merger to, The Hertz Corporation’s rights and obligations thereunder as
provided therein, the “Parent Borrower”),
the Canadian Borrowers (as defined in the Credit Agreement, and  together with HERC and the Parent Borrower,
being collectively referred to as the “Borrowers”
and each being individually referred to as a “Borrower”),
the several banks and other financial institutions from time to time parties
thereto (together with all other parties defined to be “Lenders” in the Credit
Agreement, the “Lenders”),
Mortgagee, as Administrative Agent and Collateral Agent, Deutsche Bank AG,
Canada Branch as Canadian Agent and Canadian Collateral Agent for the Lenders
thereunder, Lehman Commercial Paper Inc., as Syndication Agent, and Merrill Lynch
Capital Corporation, as Documentation Agent.


 


B.                                     Mortgagor
(i) is the owner of the fee simple estate in the parcel(s) of real
property, if any, described on Schedule A attached hereto (the “Owned Land”); and (ii) owns, leases or
otherwise has the right to use all of the buildings, improvements, structures,
and fixtures now or subsequently located on the Owned Land (the “Improvements”; the Owned Land and the
Improvements being collectively referred to as the “Real Estate”).


 


C.                                     Pursuant
to the terms and conditions of the Credit Agreement the Lenders have severally
agreed to make certain Loans to the Borrower, inter alia, certain Revolving
Credit Loans to the Borrower, which include (i) the Swing Line Lender’s
agreement to make certain Swing Line Loans, and (ii) the Issuing Lender’s
agreement to


 

















 


 issue, and the agreement of the
Lenders who are L/C Participants to acquire participating interests in, Letters
of Credit for the account of the Borrower.


 


D.                                    It
is a condition precedent, among others, to the effectiveness of the Credit
Agreement and the obligations of the Secured Parties to make the Loans, to
issue and participate in Letters of Credit, and to enter into any Interest Rate
Protection Agreement or Permitted Hedging Arrangement that Mortgagor secure its
obligations under the Credit Agreement and other Loan Documents by executing
and delivering this Mortgage.


 


E.                                      Concurrently
with entering into the Credit Agreement, the Borrowers entered into that
certain Senior Term Facility, dated as of an equal date therewith.  All obligations of Mortgagor under the Senior
Term Facility are secured by, among other things, a certain Mortgage, Security
Agreement, Assignment of Leases and Rents and Fixture Filing, executed by Mortgagor
for the benefit of Mortgagee (in such capacity, “Term
Mortgagee”), dated as of the date hereof (as the same may be
amended, restated, supplemented, replaced, extended or otherwise modified from
time to time, the “Term Mortgage”).


 


F.                                      In
order to induce the Lenders to consent to the entry into the Credit Agreement
by the Borrowers and to induce the Lenders to extend credit and other financial
accommodations and lend monies to or for the benefit of the Borrowers,
Mortgagee, the Borrowers and certain other parties have agreed to the subordination,
intercreditor and other provisions set forth in that certain Intercreditor
Agreement, dated as of the date of the Credit Agreement (the “Intercreditor Agreement”).


 


Granting Clauses


 


For good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Mortgagor agrees that to secure all obligations and liabilities
of the Mortgagor in respect of: (1) the unpaid principal of and interest
on (including interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Mortgagor, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the Loans,
the Reimbursement Obligations, and all other obligations and liabilities of the
Mortgagor to the Secured Parties, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, the Credit Agreement, the
Loans, the Letters of Credit, the other Loan Documents, any Interest Rate
Protection Agreement, Permitted Hedging Arrangement or Bank Products Agreement
(as defined in the Intercreditor Agreement) entered into with any Person who
was at the time of entry into such agreement a Lender or affiliate of any
Lender (provided notice of such Interest Rate Protection Agreement, Permitted
Hedging Arrangement or Bank Products Agreement (as defined in the Intercreditor
Agreement) 


 


2

















 


was provided to Mortgagee, as Administrative Agent and Collateral
Agent), any Guarantee Obligations of CCMG Corporation, a Delaware corporation
(“CCMGC”), or any Domestic Subsidiary as
to which any Secured Party is a beneficiary, the provision of cash management
services by any Lender or an Affiliate thereof to the Parent Borrower or any
subsidiary thereof, or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest,
reimbursement obligations, amounts payable in connection with the provision of
such cash management services or a termination of any transaction entered into
pursuant to any such Interest Rate Protection Agreement, Permitted Hedging
Arrangement or Bank Products Agreement (as defined in the Intercreditor
Agreement), fees, indemnities, costs, expenses or otherwise (including all
reasonable out-of-pocket fees, expenses and disbursements of counsel to the
Administrative Agent, Collateral Agent or any other Secured Party that are
required to be paid by the Mortgagor pursuant to the terms of the Credit
Agreement or any other Loan Document) (collectively, the “ABL Obligations”) and (2) the Euro
MTN Obligations (as defined in the Intercreditor Agreement) (the ABL
Obligations and the Euro MTN Obligations are referred to collectively herein as
the “Obligations”)


 


MORTGAGOR HEREBY GRANTS
TO MORTGAGEE A LIEN UPON AND A SECURITY INTEREST IN, AND HEREBY MORTGAGES,
GIVES, GRANTS, BARGAINS, SELLS, CONVEYS AND CONFIRMS, ASSIGNS, TRANSFERS AND
SETS OVER TO MORTGAGEE AND TO ITS SUCCESSORS AND ASSIGNS FOREVER, SUBJECT ONLY
TO THE PERMITTED EXCEPTIONS:


 


(a)                                  all
right, title and interest of Mortgagor in, to and under the Owned Land;


 


(b)                                 all
right, title and interest Mortgagor now has or may hereafter acquire in and to
the Improvements or any part thereof (whether owned in fee by Mortgagor or held
otherwise);


 


(c)                                  all
right, title and interest of Mortgagor in, to and under all easements, rights
of way, licenses, operating agreements, abutting strips and gores of land,
streets, ways, alleys, passages, sewer rights, waters, water courses, water and
flowage rights, development rights, air rights, mineral and soil rights,
plants, standing and fallen timber, and all estates, rights, titles, interests,
privileges, licenses, tenements, hereditaments and appurtenances belonging,
relating or appertaining to the Real Estate, and any reversions, remainders,
rents, issues, profits and revenue thereof and all land lying in the bed of any
street, road or avenue, in front of or adjoining the Real Estate to the center
line thereof;


 


(d)                                 all
right, title and interest of Mortgagor in and to all of the fixtures, chattels,
business machines, machinery, apparatus, equipment, furnishings, fittings, and
articles of personal property of every kind and nature whatsoever, and all
appurtenances and additions thereto and substitutions or replacements thereof
(together with, in each 


 


3

















 


case, attachments, components, parts and accessories) currently owned
or subsequently acquired by Mortgagor and now or subsequently attached to, the
Real Estate, but excluding any Rental Car Vehicles to the extent such vehicles
are pledged as security for any financing (or refinancing) incurred in
connection with the purchase or acquisition of such vehicles (all of the
foregoing in this paragraph (d) being referred to as the “Equipment”);


 


(e)                                  all
right, title and interest of Mortgagor in and to all substitutes and
replacements of, and all additions and improvements to, the Real Estate and the
Equipment, subsequently acquired by or released to Mortgagor or constructed,
assembled or placed by Mortgagor on the Real Estate, immediately upon such
acquisition, release, construction, assembling or placement, including any and
all building materials whether stored at the Real Estate or offsite, and, in
each such case, without any further deed, conveyance, assignment or other act
by Mortgagor;


 


(f)                                    all
right, title and interest of Mortgagor in, to and under all leases, subleases,
underlettings, concession agreements, management agreements, licenses and other
agreements relating to the use or occupancy of the Real Estate or the Equipment
or any part thereof, now existing or subsequently entered into by Mortgagor and
whether written or oral and all guarantees of any of the foregoing
(collectively, as any of the foregoing may be amended, restated, extended,
renewed or modified from time to time, the “Leases”),
and all rights of Mortgagor in respect of cash and securities deposited
thereunder and the right to receive and collect the revenues, income, rents,
issues and profits thereof, together with all other rents, royalties, issues,
profits, revenue, income and other benefits arising from the use and enjoyment
of the Mortgaged Property (as defined below) (collectively, the “Rents”);


 


(g)                                 all
right, title and interest of Mortgagor, to the extent assignable, in and to all
unearned premiums under insurance policies now or subsequently obtained by
Mortgagor relating to the Real Estate or Equipment and Mortgagor’s interest in
and to all proceeds of any such insurance policies (including title insurance
policies) including the right to collect and receive such proceeds, subject to
the provisions relating to insurance generally set forth below; and all awards
and other compensation, including the interest payable thereon and the right to
collect and receive the same, made to the present or any subsequent owner of
the Real Estate or Equipment for the taking by eminent domain, condemnation or
otherwise, of all or any part of the Real Estate or any easement or other right
therein, subject to the provisions relating to condemnation awards generally
set forth below;


 


(h)                                 to
the extent not prohibited under the applicable contract, consent, license or
other item unless the appropriate consent has been obtained, all right, title
and interest of Mortgagor in and to (i) all contracts from time to time
executed by Mortgagor or any manager or agent on its behalf relating to the
ownership, construction, maintenance, repair, operation, occupancy, sale or
financing of the Real Estate or 


 


4

















 


Equipment or any part thereof and all agreements and options relating
to the purchase or lease of any portion of the Real Estate or any property
which is adjacent or peripheral to the Real Estate, together with the right to
exercise such options and all
leases of Equipment, (ii) all consents, licenses, building permits,
certificates of occupancy and other governmental approvals relating to
construction, completion, occupancy, use or operation of the Real Estate or any
part thereof, and (iii) all drawings, plans, specifications and similar or
related items relating to the Real Estate; and


 


(i)                                     all
proceeds, both cash and noncash, of the foregoing.


 


(All of the foregoing
property and all rights, titles and interests now owned or held or subsequently
acquired by Mortgagor and described in the foregoing clauses (a) through (d) are
collectively referred to as the “Premises”,
and all rights, titles and interests now owned or held or subsequently acquired
by Mortgagor and described in the foregoing clauses (a) through (i) are
collectively referred to as the “Mortgaged
Property”).


 


TO HAVE AND TO HOLD the Mortgaged Property and the rights and
privileges hereby mortgaged unto Mortgagee, its successors and assigns for the
uses and purposes set forth, until the Obligations are fully paid and
performed, provided, however, that the condition of this Mortgage is such that
if the ABL Obligations are fully paid and performed, then the estate hereby
granted shall cease, terminate and become void.


 


This Mortgage covers present and future advances and re-advances, in
the aggregate amount of the obligations secured hereby, made by the Secured
Parties for the benefit of Mortgagor, and the lien of such future advances and
re-advances shall relate back to the date of this Mortgage.  The maximum amount of the obligations secured
hereby will not exceed [         
DOLLARS ($       )].


 


Terms and Conditions


 


Mortgagor further represents, warrants, covenants and agrees with
Mortgagee and the Secured Parties as follows:


 


1.                                       Defined
Terms.  Capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the Credit
Agreement.  References in this Mortgage
to the “Default Rate” shall mean
the interest rate applicable pursuant to subsection 4.1(c) of the
Credit Agreement.  References herein to
the “Secured Parties” shall mean
the collective reference to (i) the Administrative Agent, Collateral Agent
and each Other Representative, (ii) the Lenders (including the Issuing
Lender and the Swing Line Lender), (iii) with respect to any Interest Rate
Protection Agreement, Permitted Hedging Arrangement or Bank Products Agreement
(as defined in the Intercreditor Agreement) with CCMGC or any of its
subsidiaries, any counterparty thereto that, at the time such agreement or
arrangement was entered into, was a Lender or Affiliate of any Lender, (iv) any
Lender or Affiliate thereof which provides cash management services to 


 


5

















 


the Parent Borrower or any of its subsidiaries, (v) with respect
to any Management Loans (as defined in the Security Agreement), any lender
thereof that, at the time such Indebtedness was extended (or agreement to
extend such Indebtedness was entered into), was a Lender or an Affiliate of any
Lender, (vi) the Euro MTN Secured Parties (as defined in the Intercreditor
Agreement), and (vii) their respective successors and assigns and their
permitted transferees and endorsees.


 


2.                                       Warranty
of Title.  Mortgagor warrants that it
has good title in fee simple to the Real Estate, and good title to the rest of
the Mortgaged Property, subject only to the matters that are set forth in Schedule B
of the title insurance policy or policies being issued to Mortgagee to insure
the lien of this Mortgage and any other Permitted Liens (the “Permitted Exceptions”). 
Mortgagor shall warrant, defend and preserve such title and the lien of
this Mortgage against all claims of all persons and entities (not including the
holders of the Permitted Exceptions). 
Mortgagor represents and warrants that it has the right to mortgage the
Mortgaged Property.


 


3.                                       Payment
of Obligations.  Mortgagor shall pay
and perform the Obligations at the times and places and in the manner specified
in the Loan Documents.


 


4.                                       Requirements.  Mortgagor shall promptly comply with all
covenants, restrictions and conditions now or later of record which may be
applicable to any of the Mortgaged Property, or to the use, manner of use,
occupancy, possession, operation, maintenance, alteration, repair or
reconstruction of any of the Mortgaged Property, except where a failure to do
so could not reasonably be expected to have a Material Adverse Effect.


 


5.                                       Payment
of Taxes and Other Impositions.  (a) 
Promptly when due or prior to the date on which any fine, penalty, interest or
cost may be added thereto or imposed, Mortgagor shall pay and discharge all
taxes, charges and assessments of every kind and nature, all charges for any
easement or agreement maintained for the benefit of any of the Real Estate, all
general and special assessments, levies, permits, inspection and license fees,
all water and sewer rents and charges, vault taxes and all other public charges
even if unforeseen or extraordinary, imposed upon or assessed against or which
may become a lien on any of the Real Estate, or arising in respect of the
occupancy, use or possession thereof, together with any penalties or interest
on any of the foregoing (all of the foregoing are collectively referred to
herein as the “Impositions”), except where (i) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, and (ii) the Mortgagor has set aside on its books adequate
reserves with respect thereto in accordance with GAAP.  Upon request by Mortgagee, Mortgagor shall
within 30 days after the request of Mortgagee, deliver to Mortgagee evidence
reasonably acceptable to Mortgagee showing the payment of any such
Imposition.  If by law any Imposition, at
Mortgagor’s option, may be paid in installments (whether or not interest shall
accrue on the unpaid balance of such Imposition), Mortgagor may elect to pay
such 


 


6

















 


Imposition in such installments and shall be responsible for the
payment of such installments with interest, if any.


 


(b)                                 Nothing herein shall
affect any right or remedy of Mortgagee under this Mortgage or otherwise,
without notice or demand to Mortgagor, to pay any Imposition after the date
such Imposition shall have become due, and add to the Obligations the amount so
paid, together with interest from the time of payment at the Default Rate.  Any sums paid by Mortgagee in discharge of
any Impositions shall be (i) a lien on the Premises secured hereby prior
to any right or title to, interest in, or claim upon the Premises subordinate
to the lien of this Mortgage, and (ii) payable on demand by Mortgagor to
Mortgagee together with interest at the Default Rate as set forth above.


 


(c)                                  Mortgagor shall not
be entitled to any credit against the Obligations by reason of the payment of
Impositions.


 


6.                                       Insurance.  Mortgagor shall maintain insurance in
accordance with the provisions of the Credit Agreement.


 


7.                                       Restrictions
on Liens and Encumbrances.  Except
for the lien of this Mortgage and the Permitted Exceptions and except as
otherwise permitted pursuant to the terms of the Credit Agreement, Mortgagor
shall not further mortgage, nor otherwise encumber the Mortgaged Property nor
create or suffer to exist any lien, charge or encumbrance on the Mortgaged
Property, or any part thereof, whether superior or subordinate to the lien of
this Mortgage and whether recourse or non-recourse.


 


8.                                       Due
on Sale and Other Transfer Restrictions. 
Except as permitted under subsection 8.6 of the Credit Agreement,
Mortgagor shall not sell, transfer, convey or assign all or any portion of, or
any interest in, the Mortgaged Property.


 


9.                                       Condemnation/Eminent Domain.  Promptly
upon obtaining knowledge of the institution of any proceedings for the
condemnation of the Mortgaged Property, or any material portion thereof,
Mortgagor will notify Mortgagee of the pendency of such proceedings.  All awards and proceeds relating to such
condemnation shall be deemed proceeds from a Recovery Event and applied in the
manner specified in the Credit Agreement.


 


10.                                 Leases.  Except as permitted under the Credit Agreement
with respect to any Lease having an annual rental of more than $1,000,000,
Mortgagor shall not (a) execute an assignment or pledge of any Lease
relating to all or any portion of the Mortgaged Property other than in favor of
Mortgagee, or (b) without the prior written consent of Mortgagee, which
consent shall not be unreasonably withheld or delayed, execute or permit to
exist any Lease of any material portion of the Mortgaged Property, except for
Permitted Exceptions. Mortgagee agrees that, upon the reasonable request of
Mortgagor, Mortgagee will enter into a subordination, non-disturbance and
attornment 


 


7

















 


agreement with a tenant (other than affiliate of Mortgagor) that has
executed a lease after the date hereof with respect to all or a portion of the
Mortgaged Property, provided (i) Mortgagor certifies in writing to
Mortgagee that such lease contains commercially reasonable terms, including
being at fair market rent, (ii) such subordination, non-disturbance and
attornment agreement is in form and substance reasonably acceptable to the
Mortgagee and (iii) all the costs and expenses related thereto (including
reasonable attorneys’ fees) shall be borne by Mortgagor.


 


11.                                 Further
Assurances.  To further assure
Mortgagee’s rights under this Mortgage, Mortgagor agrees promptly upon demand
of Mortgagee to do any act or execute any additional documents (including
security agreements on any personalty included or to be included in the
Mortgaged Property and a separate assignment of each Lease in recordable form)
as may be reasonably required by Mortgagee to confirm the lien of this Mortgage
and all other rights or benefits conferred on Mortgagee by this Mortgage.


 


12.                                 Mortgagee’s
Right to Perform.  If Mortgagor fails
to perform any of the covenants or agreements of Mortgagor under this Mortgage,
within the applicable grace period, if any, provided for in the Credit
Agreement, Mortgagee, without waiving or releasing Mortgagor from any
obligation or default under this Mortgage, may, at any time upon 10 days’
written notice to Mortgagor (but shall be under no obligation to) pay or
perform the same, and the amount or cost thereof, with interest at the Default
Rate, shall immediately be due from Mortgagor to Mortgagee and the same shall
be secured by this Mortgage and shall be a lien on the Mortgaged Property prior
to any right, title to, interest in, or claim upon the Mortgaged Property
attaching subsequent to the lien of this Mortgage.  No payment or advance of money by Mortgagee
under this Section shall be deemed or construed to cure Mortgagor’s
default or waive any right or remedy of Mortgagee.


 


13.                                 Remedies.  (a)  Upon the occurrence and during the
continuance of any Event of Default, Mortgagee may immediately take such action,
without notice or demand, as it deems advisable to protect and enforce its
rights against Mortgagor and in and to the Mortgaged Property (subject to the
terms of any documentation governing any Permitted Receivables Transaction),
including the following actions, each of which may be pursued concurrently or
otherwise, at such time and in such manner as Mortgagee may determine, in its
sole discretion, without impairing or otherwise affecting the other rights and
remedies of Mortgagee:


 


(i)                                     Mortgagee may, to
the extent permitted by applicable law, (A) institute and maintain an
action of mortgage foreclosure against all or any part of the Mortgaged
Property, (B) institute and maintain an action on the Loans or the Credit
Agreement, the Guarantee and Collateral Agreement or any other Loan Document, (C) sell
all or part of the Mortgaged Property (Mortgagor expressly granting to
Mortgagee the 


 


8

















 


power of sale), or (D) take such other
action at law or in equity for the enforcement of this Mortgage or any of the
Loan Documents as the law may allow. 
Mortgagee may proceed in any such action to final judgment and execution
thereon for all sums due hereunder, together with interest thereon as provided
in the Credit Agreement and all reasonable out-of-pocket costs of suit,
including reasonable out-of-pocket attorneys’ fees and disbursements.  Interest at the Default Rate shall be due on
any judgment obtained by Mortgagee from the date of judgment until actual
payment is made of the full amount of the judgment. Mortgagor agrees that in
addition to all other rights of Mortgagee hereunder and without waiving or
modifying any of its rights, Mortgagee may to the maximum extent permitted by
law, foreclose and at its sole option utilize the provisions of any statute
which allows Mortgagee to obtain the Mortgaged Property by using a shortened
redemption period; and


 


(ii)                                  Mortgagee may
personally, or by its agents, attorneys and employees and without regard to the
adequacy or inadequacy of the Mortgaged Property or any other collateral as
security for the Obligations enter into and upon the Mortgaged Property and
each and every part thereof and exclude Mortgagor and its agents and employees
therefrom without liability for trespass, damage or otherwise (Mortgagor hereby
agreeing to surrender possession of the Mortgaged Property to Mortgagee upon
demand at any such time) and use, operate, manage, maintain and control the
Mortgaged Property and every part thereof (subject to the terms of any
documentation governing any Permitted Receivables Transaction).  Following such entry and taking of
possession, Mortgagee shall be entitled, without limitation, (x) to lease all
or any part or parts of the Mortgaged Property for such periods of time and
upon such conditions as Mortgagee may, in its discretion, deem proper, (y) to
enforce, cancel or modify any Lease and (z) generally to execute, do and
perform any other act, deed, matter or thing concerning the Mortgaged Property
as Mortgagee shall deem appropriate as fully as Mortgagor might do (subject to
the terms of any documentation governing any Permitted Receivables
Transaction).


 


(b)                                 In case of a
foreclosure sale, the Real Estate may be sold, at Mortgagee’s election, in one
parcel or in more than one parcel and Mortgagee is specifically empowered
(without being required to do so, and in its sole and absolute discretion) to
cause successive sales of portions of the Mortgaged Property to be held.


 


(c)                                  In the event of any
breach of any of the covenants, agreements, terms or conditions contained in
this Mortgage, Mortgagee shall be entitled to enjoin such breach and obtain
specific performance of any covenant, agreement, term or condition 


 


9

















 


and Mortgagee shall have the right to invoke any equitable right or
remedy as though other remedies were not provided for in this Mortgage.


 


(d)                                 It is agreed that if
an Event of Default shall occur and be continuing, any and all proceeds of the
Mortgaged Property received by the Mortgagee shall be held by the Mortgagee for
the benefit of the Secured Parties as collateral security for the Obligations
(whether matured or unmatured), and/or then or at any time thereafter may, in
the sole discretion of the Mortgagee, be applied, following the application
thereof to pay any unsatisfied Euro MTN Obligations (as defined in the
Intercreditor Agreement), by the Mortgagee against the ABL Obligations then due
and owing in the order of priority set forth in the Intercreditor Agreement.


 


14.                                 Right
of Mortgagee to Credit Sale.  Upon
the occurrence of any sale made under this Mortgage, whether made under the
power of sale or by virtue of judicial proceedings or of a judgment or decree
of foreclosure and sale, Mortgagee may bid for and acquire the Mortgaged
Property or any part thereof.  In lieu of
paying cash therefor, Mortgagee may make settlement for the purchase price by
crediting upon the Obligations or other sums secured by this Mortgage, the net
sales price after deducting therefrom the expenses of sale and the reasonable,
out-of-pocket cost of the action and any other sums which Mortgagee is
authorized to deduct under this Mortgage. 
In such event, this Mortgage, the Credit Agreement, the Guarantee and
Collateral Agreement and documents evidencing expenditures secured hereby may
be presented to the person or persons conducting the sale in order that the
amount so used or applied may be credited upon the Obligations as having been
paid.


 


15.                                 Appointment
of Receiver.  If an Event of Default
shall have occurred and be continuing, Mortgagee, to the extent permitted under
applicable law, as a matter of right and without notice to Mortgagor, and
without regard to the adequacy or inadequacy of the Mortgaged Property or any
other collateral or the interest of Mortgagor therein as security for the
Obligations, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers or other manager of the Mortgaged Property, and
Mortgagor hereby irrevocably consents to such appointment and waives notice of
any application therefor (except as may be required by law).  Any such receiver or receivers or manager
shall have all the usual powers and duties of receivers in like or similar
cases and all the powers and duties of Mortgagee in case of entry as provided
in this Mortgage, including and to the extent permitted by law, the right to
enter into leases of all or any part of the Mortgaged Property, and shall
continue as such and exercise all such powers until the date of confirmation of
sale of the Mortgaged Property unless such receivership is sooner terminated.


 


16.                                 Extension, Release, etc.  (a) 
Without affecting the lien or charge of this Mortgage upon any portion of the
Mortgaged Property not then or theretofore released as security for the full
amount of the Obligations, Mortgagee may, from time to time and without notice,
agree to (i) release any person liable for the indebtedness 


 


10

















 


borrowed or guaranteed under the Loan Documents, (ii) extend the
maturity or alter any of the terms of the indebtedness borrowed or guaranteed
under the Loan Documents or any other guaranty thereof, (iii) grant other
indulgences, (iv) release or reconvey, or cause to be released or reconveyed
at any time at Mortgagee’s option any parcel, portion or all of the Mortgaged
Property, (v) take or release any other or additional security for any
obligation herein mentioned, or (vi) make compositions or other
arrangements with debtors in relation thereto.


 


(b)                                 No recovery of any
judgment by Mortgagee and no levy of an execution under any judgment upon the
Mortgaged Property or upon any other property of Mortgagor shall affect the
lien of this Mortgage or any liens, rights, powers or remedies of Mortgagee
hereunder, and such liens, rights, powers and remedies shall continue
unimpaired.


 


(c)                                  If Mortgagee shall
have the right to foreclose this Mortgage or to direct a power of sale,
Mortgagor authorizes Mortgagee at its option to foreclose the lien of this
Mortgage or direct the sale of the Mortgaged Property, as the case may be,
subject to the rights of any tenants of the Mortgaged Property.  The failure to make any such tenants parties
defendant to any such foreclosure proceeding and to foreclose their rights, or
to provide notice to such tenants as required in any statutory procedure
governing a sale of the Mortgaged Property, or to terminate such tenant’s
rights in such sale will not be asserted by Mortgagor as a defense to any
proceeding instituted by Mortgagee to collect the Obligations or to foreclose
the lien of this Mortgage.


 


(d)                                 Unless expressly
provided otherwise, in the event that ownership of this Mortgage and title to
the Mortgaged Property or any estate therein shall become vested in the same
person or entity, this Mortgage shall not merge in such title but shall
continue as a valid lien on the Mortgaged Property for the amount secured
hereby.


 


17.                                 Security
Agreement under Uniform Commercial Code. 
(a)  It is the intention of the parties hereto that this Mortgage
shall constitute a “security agreement” within the meaning of the Uniform
Commercial Code (the “Code”) of the
State in which the Mortgaged Property is located.  If an Event of Default shall occur and be
continuing, then in addition to having any other right or remedy available at
law or in equity, Mortgagee shall have the option of either (i) proceeding
under the Code and exercising such rights and remedies as may be provided to a
secured party by the Code with respect to all or any portion of the Mortgaged
Property which is personal property (including taking possession of and selling
such property) or (ii) treating such property as real property and
proceeding with respect to both the real and personal property constituting the
Mortgaged Property in accordance with Mortgagee’s rights, powers and remedies
with respect to the real property (in which event the default provisions of the
Code shall not apply).  If Mortgagee
shall elect to proceed under the Code, then 10 days’ notice of sale of the
personal property shall be deemed reasonable notice and the reasonable expenses
of retaking, holding, preparing for sale, selling and the like incurred 


 


11

















 


by Mortgagee shall include reasonable, out-of-pocket attorneys’ fees
and legal expenses.  At Mortgagee’s
request, during the continuance of an Event of Default, Mortgagor shall
assemble the personal property and make it available to Mortgagee at a place
designated by Mortgagee which is reasonably convenient to both parties (subject
to the terms of any documentation governing any Permitted Receivables
Transaction).


 


(b)                                 Mortgagor and
Mortgagee agree, to the extent permitted by law, that: (i) all of the
goods described within the definition of the word “Equipment” are or are to become fixtures on the Real Estate; (ii) this
Mortgage upon recording or registration in the real estate records of the
proper office shall constitute a financing statement filed as a “fixture
filing” within the meaning of Sections 9a-334 and 9a-502 of the Code; (iii) Mortgagor
is the record owner of the Owned Land; and (iv) the addresses of Mortgagor
and Mortgagee are as set forth on the first page of this Mortgage.


 


18.                                 Assignment
of Rents.  (a)  Mortgagor hereby
assigns to Mortgagee the Rents as further security for the payment of and
performance of the Obligations, and Mortgagor grants to Mortgagee the right to
enter the Mortgaged Property for the purpose of collecting the same and to let
the Mortgaged Property or any part thereof, and to apply the Rents on account
of the Obligations.  The foregoing
assignment and grant is present and absolute and shall continue in effect until
the Obligations are fully paid and performed, but Mortgagee hereby waives the
right to enter the Mortgaged Property for the purpose of collecting the Rents
and Mortgagor shall be entitled to collect, receive, use and retain the Rents
until the occurrence and during the continuance of an Event of Default, such
right of Mortgagor to collect, receive, use and retain the Rents may be revoked
by Mortgagee upon the occurrence and during the continuance of any Event of
Default under this Mortgage by giving not less than 10 days’ written notice of
such revocation to Mortgagor; in the event such notice is given, Mortgagor
shall pay over to Mortgagee, or to any receiver appointed to collect the Rents,
any lease security deposits, and shall pay monthly in advance to Mortgagee, or
to any such receiver, the fair and reasonable rental value as determined by Mortgagee
for the use and occupancy of such part of the Mortgaged Property as may be in
the possession of Mortgagor or any affiliate of Mortgagor, and upon default in
any such payment Mortgagor and any such affiliate will vacate and surrender the
possession of the Mortgaged Property to Mortgagee or to such receiver, and in
default thereof may be evicted by summary proceedings or otherwise (subject to
the terms of any documentation governing any Permitted Receivables
Transaction).  Mortgagor shall not accept
prepayments of installments of Rent to become due for a period of more than one
month in advance (except for security deposits and estimated payments of
percentage rent, if any).


 


(b)                                 Mortgagor has not
affirmatively done any act which would prevent Mortgagee from, or limit
Mortgagee in, acting under any of the provisions of the foregoing assignment.


 


12

















 


(c)                                  Except for any matter
disclosed in the Credit Agreement, no action has been brought or, so far as is
known to Mortgagor, is threatened, which would interfere in any way with the
right of Mortgagor to execute the foregoing assignment and perform all of
Mortgagor’s obligations contained in this Section and in the Leases.


 


19.                                 Additional
Rights.  The holder of any
subordinate lien or subordinate deed of trust on the Mortgaged Property shall
have no right to terminate any Lease whether or not such Lease is subordinate
to this Mortgage nor shall Mortgagor consent to any holder of any subordinate
lien or subordinate deed of trust joining any tenant under any Lease in any
action to foreclose the lien or modify, interfere with, disturb or terminate
the rights of any tenant under any Lease. 
By recordation of this Mortgage all subordinate lienholders and the
mortgagees and beneficiaries under subordinate mortgages are subject to and
notified of this provision, and any action taken by any such lienholder or
beneficiary contrary to this provision shall be null and void.  Upon the occurrence and during the
continuance of any Event of Default, Mortgagee may, in its sole discretion and
without regard to the adequacy of its security under this Mortgage, apply all
or any part of any amounts on deposit with Mortgagee under this Mortgage
against all or any part of the Obligations. 
Any such application shall not be construed to cure or waive any Default
or Event of Default or invalidate any act taken by Mortgagee on account of such
Default or Event of Default.


 


20.                                 Notices.  All notices, requests, demands and other
communications hereunder shall be given in accordance with the provisions of
subsection 11.2 of the Credit Agreement to Mortgagor and to Mortgagee as
specified therein.


 


21.                                 No
Oral Modification.  This Mortgage may
not be amended, supplemented or otherwise modified except in accordance with
the provisions of subsection 11.1 of the Credit Agreement.  Any agreement made by Mortgagor and Mortgagee
after the date of this Mortgage relating to this Mortgage shall be superior to
the rights of the holder of any intervening or subordinate lien or encumbrance.


 


22.                                 Partial
Invalidity.  In the event any one or
more of the provisions contained in this Mortgage shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, but
each shall be construed as if such invalid, illegal or unenforceable provision
had never been included.  Notwithstanding
to the contrary anything contained in this Mortgage or in any provisions of any
Loan Document, the obligations of Mortgagor and of any other obligor under any
Loan Documents or with respect to the Euro MTN Obligations shall be subject to
the limitation that Mortgagee shall not charge, take or receive, nor shall
Mortgagor or any other obligor be obligated to pay to Mortgagee, any amounts
constituting interest in excess of the maximum rate permitted by law to be
charged by Mortgagee.


 


13

















 


23.                                 Mortgagor’s
Waiver of Rights.  To the fullest
extent permitted by law, Mortgagor waives the benefit of all laws now existing
or that may subsequently be enacted providing for (a) any appraisement
before sale of any portion of the Mortgaged Property, (b) any extension of
the time for the enforcement of the collection of the Obligations or the
creation or extension of a period of redemption from any sale made in
collecting such debt and (c) exemption of the Mortgaged Property from
attachment, levy or sale under execution or exemption from civil process.  To the full extent Mortgagor may do so,
Mortgagor agrees that Mortgagor will not at any time insist upon, plead, claim
or take the benefit or advantage of any law now or hereafter in force providing
for any appraisement, valuation, stay, exemption, extension or redemption, or
requiring foreclosure of this Mortgage before exercising any other remedy
granted hereunder and Mortgagor, for Mortgagor and its successors and assigns,
and for any and all persons ever claiming any interest in the Mortgaged
Property, to the extent permitted by law, hereby waives and releases all rights
of redemption, valuation, appraisement, stay of execution, notice of election
to mature (except as expressly provided in the Credit Agreement) or declare due
the whole of the secured indebtedness and marshalling in the event of exercise
by Mortgagee of the foreclosure rights, power of sale, or other rights hereby
created.


 


24.                                 Remedies
Not Exclusive.  Mortgagee shall be
entitled to enforce payment and performance of the Obligations and to exercise
all rights and powers under this Mortgage or under any of the other Loan
Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Obligations may now or hereafter be
otherwise secured, whether by deed of trust, mortgage, security agreement,
pledge, lien, assignment or otherwise. 
Neither the acceptance of this Mortgage nor its enforcement, shall
prejudice or in any manner affect Mortgagee’s rights to realize upon or enforce
any other security now or hereafter held by Mortgagee, it being agreed that
Mortgagee shall be entitled to enforce this Mortgage and any other security now
or hereafter held by Mortgagee in such order and manner as Mortgagee may
determine in its absolute discretion.  No
remedy herein conferred upon or reserved to Mortgagee is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute.  Every power or remedy given by any of the
Loan Documents to Mortgagee or to which either may otherwise be entitled, may
be exercised, concurrently or independently, from time to time and as often as
may be deemed expedient by Mortgagee, as the case may be.  In no event shall Mortgagee, in the exercise
of the remedies provided in this Mortgage (including in connection with the
assignment of Rents to Mortgagee, or the appointment of a receiver and the
entry of such receiver on to all or any part of the Mortgaged Property), be
deemed a “Mortgagee in possession,” and Mortgagee  shall not in any way be made liable for any
act, either of commission or omission, in connection with the exercise of such
remedies.


 


14

















 


25.                                 Multiple
Security.  If (a) the Premises
shall consist of one or more parcels, whether or not contiguous and whether or
not located in the same county, or (b) in addition to this Mortgage,
Mortgagee shall now or hereafter hold or be the beneficiary of one or more
additional mortgages, liens, deeds of trust or other security (directly or
indirectly) for the Obligations upon other property in the State in which the
Premises are located (whether or not such property is owned by Mortgagor or by
others) or (c) both the circumstances described in clauses (a) and (b) shall
be true, then to the fullest extent permitted by law, Mortgagee may, at its
election, commence or consolidate in a single foreclosure action all
foreclosure proceedings against all such collateral securing the Obligations
(including the Mortgaged Property), which action may be brought or consolidated
in the courts of, or sale conducted in, any county in which any of such
collateral is located.  Mortgagor
acknowledges that the right to maintain a consolidated  foreclosure action is a specific inducement
to Mortgagee to extend the indebtedness borrowed pursuant to or guaranteed by
the Loan Documents, and Mortgagor expressly and irrevocably waives any
objections to the commencement or consolidation of the foreclosure proceedings
in a single action and any objections to the laying of venue or based on the
grounds of forum non conveniens which it may now or hereafter have.  Mortgagor further agrees that if Mortgagee
shall be prosecuting one or more foreclosure or other proceedings against a
portion of the Mortgaged Property or against any collateral other than the
Mortgaged Property, which collateral directly or indirectly secures the
Obligations, or if Mortgagee shall have obtained a judgment of foreclosure and
sale or similar judgment against such collateral, then, whether or not such
proceedings are being maintained or judgments were obtained in or outside the
State in which the Premises are located, Mortgagee may commence or continue
any  foreclosure proceedings and exercise
its other remedies granted in this Mortgage against all or any part of the
Mortgaged Property and Mortgagor waives any objections to the commencement or
continuation of a foreclosure of this Mortgage or exercise of any other
remedies hereunder based on such other proceedings or judgments, and waives any
right to seek to dismiss, stay, remove, transfer or consolidate either any
action under this Mortgage or such other proceedings on such basis.  Neither the commencement nor continuation of
proceedings to foreclose this Mortgage, nor the exercise of any other rights
hereunder nor the recovery of any judgment by Mortgagee in any such proceedings
or the occurrence of any sale in any such proceedings shall prejudice, limit or
preclude Mortgagee’s right to commence or continue one or more foreclosure or
other proceedings or obtain a judgment against any other collateral (either in
or outside the State in which the Premises are located) which directly or
indirectly secures the Obligations, and Mortgagor expressly waives any
objections to the commencement of, continuation of, or entry of a judgment in
such other sales or proceedings or exercise of any remedies in such sales or
proceedings based upon any action or judgment connected to this Mortgage, and
Mortgagor also waives any right to seek to dismiss, stay, remove, transfer or
consolidate either such other sales or proceedings or any sale or action under
this Mortgage on such basis.  It is
expressly understood and agreed that to the fullest extent permitted by law,
Mortgagee may, at its election, cause the sale of all collateral which is the
subject of a 


 


15

















 


single foreclosure action at either a single sale or at multiple sales
conducted simultaneously and take such other measures as are appropriate in
order to effect the agreement of the parties to dispose of and administer all
collateral securing the Obligations (directly or indirectly) in the most
economical and least time-consuming manner.


 


26.                                 Successors
and Assigns.  All covenants of
Mortgagor contained in this Mortgage are imposed solely and exclusively for the
benefit of Mortgagee, and its successors and assigns, and no other person or
entity shall have standing to require compliance with such covenants or be
deemed, under any circumstances, to be a beneficiary of such covenants, any or
all of which may be freely waived in whole or in part by Mortgagee at any time
if in its sole discretion it deems such a waiver advisable.  All such covenants of Mortgagor shall run
with the land and bind Mortgagor, the successors and assigns of Mortgagor (and
each of them) and all subsequent owners, encumbrancers and tenants of the
Mortgaged Property, and shall inure to the benefit of Mortgagee and its
successors and assigns.  The word
“Mortgagor” shall be construed as if it read “Mortgagors” whenever the sense of
this Mortgage so requires and if there shall be more than one Mortgagor, the obligations
of the Mortgagors shall be joint and several.


 


27.                                 No Waivers, etc.  Any
failure by Mortgagee to insist upon the strict performance by Mortgagor of any
of the terms and provisions of this Mortgage shall not be deemed to be a waiver
of any of the terms and provisions hereof, and Mortgagee, notwithstanding any
such failure, shall have the right thereafter to insist upon the strict
performance by Mortgagor of any and all of the terms and provisions of this
Mortgage to be performed by Mortgagor. 
Mortgagee may release, regardless of consideration and without the
necessity for any notice to or consent by the holder of any subordinate lien on
the Mortgaged Property, any part of the security held for the obligations
secured by this Mortgage without, as to the remainder of the security, in any
way impairing or affecting the lien of this Mortgage or the priority of such
lien over any subordinate lien or deed of trust.


 


28.                                 Governing
Law, etc.  This Mortgage shall be
governed by and construed and interpreted in accordance with the laws of the
State in which the Premises are located, except that Mortgagor expressly
acknowledges that by their respective terms the Loan Documents shall be
governed and construed in accordance with the laws of the State of New York,
without regard to the conflicts of laws principles thereof, and for purposes of
consistency, Mortgagor agrees that in any in personam proceeding related to
this Mortgage the rights of the parties to this Mortgage shall also be governed
by and construed in accordance with the laws of the State of New York governing
contracts made and to be performed in that State, without regard to the
conflicts of laws principles thereof.


 


29.                                 Certain
Definitions.  Unless the context
clearly indicates a contrary intent or unless otherwise specifically provided
herein, words used in this Mortgage shall 


 


16

















 


be used interchangeably in singular or plural form and the word
“Mortgagor” shall mean “each Mortgagor or any subsequent owner or owners of the
Mortgaged Property or any part thereof or interest therein,” the word
“Mortgagee” shall mean “Mortgagee or any successor Administrative Agent,” the
word “person” shall include any individual, corporation, partnership, limited
liability company, trust, unincorporated association, government, governmental
authority, or other entity, and the words “Mortgaged Property” shall include
any portion of the Mortgaged Property or interest therein.  Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural and
vice versa.  The captions in this
Mortgage are for convenience or reference only and in no way limit or amplify
the provisions hereof.  The words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase without limitation.


 


30.                                 Last
Dollars Secured; Priority.  This
Mortgage secures only a portion of the indebtedness owing or which may become
owing by the Mortgagor to the Secured Parties. 
The parties agree that any payments or repayments of such indebtedness
shall be and be deemed to be applied first to the portion of the indebtedness
that is not secured hereby, it being the parties’ intent that the portion of
the indebtedness last remaining unpaid shall be secured hereby.  If at any time this Mortgage shall secure
less than all of the principal amount of the Obligations, it is expressly
agreed that any repayments of the principal amount of the Obligations shall not
reduce the amount of the lien of this Mortgage until the lien amount shall
equal the principal amount of the Obligations outstanding.


 


31.                                 Release.  If any of the Mortgaged Property shall
be sold, transferred or otherwise disposed of by any Mortgagor in a transaction
permitted by the Credit Agreement, then the Mortgagee, at the request and sole
expense of such Mortgagor, shall execute and deliver to such Mortgagor all
releases or other documents reasonably necessary or desirable for the release
of the Liens created hereby on such Mortgaged Property.  The Mortgagor shall deliver to the Mortgagee,
at least 10 Business Days prior to the date of the proposed release, a written
request for release identifying the sale or other disposition in reasonable
detail, including the price thereof and any expenses in connection therewith,
together with a certification by the Mortgagor stating that such transaction is
in compliance with, and permitted by, the Credit Agreement and the other Loan
Documents.


 


32.                                 Conflict
With Credit Agreement.  In the event
of any conflict or inconsistency between the terms and provisions of this
Mortgage and the terms and provisions of the Credit Agreement, the terms and
provisions of the Credit Agreement shall govern, other than with respect to the
section of this Mortgage captioned “Governing Law, etc.”.  By their execution of the Credit Agreement,
each Lender hereby agrees that it shall not have the right to institute any
suit for enforcement of any Note or 


 


17

















 


any other Indebtedness secured by this Mortgage or any other Security
Document, if and to the extent that the institution or prosecution thereof or
the entry of judgment therein would, upon applicable law, result in the
surrender, impairment, waiver or loss of the Lien of this Mortgage or any other
Security Document or impede or delay the enforcement of the Lien of this
Mortgage or any other Security Document.


 


33.                                 Change in Tax Law.  Upon the enactment of or change in (including
a change in interpretation of) any applicable law (i) deducting or
allowing Mortgagor to deduct from the value of the Mortgaged Property for the
purpose of taxation any lien or security interest thereon or (ii) subjecting
Mortgagee or any of the Lenders to any tax or changing the basis of taxation of
mortgages, deeds of trust, or other liens or debts secured thereby, or the
manner of collection of such taxes, in each such case, so as to affect this
Mortgage, the Obligations or Mortgagee, and the result is to increase the taxes
imposed upon or the cost to Mortgagee of maintaining the Obligations, or to
reduce the amount of any payments receivable hereunder, then, and in any such
event, Mortgagor shall, on demand, pay to Mortgagee and the Lenders additional
amounts to compensate for such increased costs or reduced amounts, provided
that if any such payment or reimbursement shall be unlawful, or taxable to
Mortgagee, or would constitute usury or render the Obligations wholly or
partially usurious under applicable law, then Mortgagor shall pay or reimburse
Mortgagee or the Lenders for payment of the lawful and non-usurious portion
thereof.


 


34.                                 Subrogation.  To the extent proceeds of the Loan have been
used to extinguish, extend or renew any indebtedness against the Mortgaged
Property, then Mortgagee shall be subrogated to all of the rights, liens and
interests existing against the Mortgaged Property and held by the holder of
such indebtedness and such former rights, liens and interests, if any, are not
waived, but are continued in full force and effect in favor of Mortgagee.


 


35.                                 Mortgagee
as Agent.  Mortgagee has been
appointed to act as Mortgagee hereunder by Lenders and, by their acceptance of
the benefits hereof, all other Secured Parties. 
Mortgagee shall be obligated, and shall have the right hereunder, to
make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action (including the release or
substitution of Mortgaged Property), solely in accordance with this Mortgage
and the Credit Agreement; provided, Mortgagee shall exercise, or refrain from
exercising, any remedies provided for herein in accordance with the
instructions of Required Lenders to the extent required pursuant to the Credit
Agreement.  In furtherance of the
foregoing provisions of this Section, each Secured Party, by its acceptance of
the benefits hereof, agrees that it shall have no right individually to realize
upon any of the Mortgaged Property, it being understood and agreed by such Secured
Party that all rights and remedies hereunder may be exercised solely by
Mortgagee for the benefit of Lenders and the other Secured Parties in
accordance with the terms of this Section. 
Mortgagee shall at all times be the same 


 


18

















 


Person that is Collateral Agent under the Credit Agreement.  Written notice of resignation by Collateral
Agent pursuant to terms of the Credit Agreement shall also constitute notice of
resignation as Mortgagee under this Mortgage; removal of Collateral Agent
pursuant to the terms of the Credit Agreement shall also constitute removal as
Mortgagee under this Mortgage; and appointment of a successor Collateral Agent
pursuant to the terms of the Credit Agreement shall also constitute appointment
of a successor Mortgagee under this Mortgage. 
Upon the acceptance of any appointment as Collateral Agent under the
terms of the Credit Agreement by a successor Collateral Agent, that successor
Collateral Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring or removed Mortgagee
under this Mortgage, and the retiring or removed Mortgagee under this Mortgage
shall promptly (i) transfer to such successor Mortgagee all sums,
securities and other items of Mortgaged Property held hereunder, together with
all records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Mortgagee under this Mortgage, and (ii) execute
and deliver to such successor Mortgagee such amendments to financing
statements, and take such other actions, as may be necessary or appropriate in
connection with the assignment to such successor Mortgagee of the security
interests created hereunder, whereupon such retiring or removed Mortgagee shall
be discharged from its duties and obligations under this Mortgage thereafter
accruing.  After any retiring or removed
Collateral Agent’s resignation or removal hereunder as Mortgagee, the
provisions of this Mortgage shall continue to enure to its benefit as to any
actions taken or omitted to be taken by it under this Mortgage while it was
Mortgagee hereunder.


 


36.                                 Intercreditor
Agreements. The lien of this Mortgage herein granted to Mortgagee pursuant
to the ABL Credit Agreement (as defined in the Intercreditor Agreement) is
expressly subject and subordinate to the liens granted to Term Mortgagee
pursuant to the Term Credit Agreement (as defined in the Intercreditor
Agreement) and the Term Mortgage with respect to (i) all of the Mortgaged
Property, (ii) all of the terms, covenants and conditions of this Mortgage
and all extensions, renewals, modifications, consolidations, spreaders or
replacements of this Mortgage, (iii) any other action permitted or
contemplated by this Mortgage and (iv) any assignment of any other
property rights mortgaged or assigned to Mortgagee as additional security for
the Obligations. Notwithstanding anything to the contrary contained herein, the
lien and security interest granted to Mortgagee pursuant to this Mortgage and
the exercise of any right or remedy by Mortgagee hereunder are subject to the
provisions of the Intercreditor Agreement. 
The foregoing provisions of this paragraph shall remain in full force
and effect for so long as the Term Credit Agreement remains outstanding.  In the event of any conflict between the
terms and provisions of the Intercreditor Agreement and the terms and
provisions of this Mortgage, the terms and provisions of the Intercreditor Agreement
shall govern and control.  As among the
beneficiaries and holders of the ABL Obligations, as defined in the
Intercreditor Agreement: (a) all rights and claims of such beneficiaries
shall be subject to the Intercreditor Agreement; and (b) if the ABL Credit
Agreement is modified in a manner that modifies any definition, the resulting
modification in definition 


 


19

















 


(as it applies in this Mortgage) shall bind only any parties that were
bound by such change in the ABL Credit Agreement.


 


37.                                 State
Specific Provisions.  [To be added]


 


[SIGNATURE PAGE FOLLOWS]


 


20


 

















 


 


 


This Mortgage has been duly executed by the
undersigned and is intended to be effective as the date first above written.


 


	
   

  	
  [THE HERTZ CORPORATION],

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


21

















 


	
  STATE OF
                       

  	
  )

  
	
   

  	
  ) ss.:

  
	
  COUNTY OF
                   

  	
  )

  



 


I certify that on
                 
        , 2005,
                                                              
personally came before me and this person acknowledged under oath, to my
satisfaction, that:


 


a.                                       this
person signed and delivered the attached document as
                                             
of
                                                                      ,
the corporation named in this document; and


 


b.                                      this
document was signed and made by the corporation as its voluntary act and deed
by virtue of authority from its Board of Directors.


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NOTARY PUBLIC

  	
   

  
	
   

  	
   

  	
  State of 

  	
   

  
	
   

  	
   

  	
  My Commission Expires:

  	
   

  
					



 


 


[SEAL]


 


22

















 


Schedule A


Description of
the Owned Land


 


i

















 




	
  EXHIBIT C
  TO

  	
   

  
	
  CREDIT AGREEMENT

  	
   

  






 


This document is intended to be
recorded in [County], [State]


This Mortgage was prepared by

and when recorded should be returned to:


 


Latham & Watkins LLP

885 Third Avenue

Suite 1000

New York, New York 10022-4802

Attention:  Aaron S. Adler, Esq.

(212) 906-1200

031347-0012


 


FORM OF


 


MORTGAGE, SECURITY AGREEMENT,


AND ASSIGNMENT OF LEASES AND
RENTS AND

FIXTURE FILING



by



[THE HERTZ CORPORATION, a Delaware Corporation,]

as Mortgagor,



to



DEUTSCHE BANK AG, NEW YORK BRANCH,


as Collateral Agent,

as Mortgagee,


 


Dated as of December      , 2005


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  Background

  	
  1

  
	
  Granting Clauses

  	
  2

  
	
  Terms and Conditions

  	
  6

  
	
  1.

  	
   

  	
  Defined Terms

  	
  6

  
	
  2.

  	
   

  	
  Warranty of Title

  	
  7

  
	
  3.

  	
   

  	
  Payment of Obligations

  	
  7

  
	
  4.

  	
   

  	
  Requirements

  	
  7

  
	
  5.

  	
   

  	
  Payment of Taxes and Other Impositions

  	
  7

  
	
  6.

  	
   

  	
  Insurance

  	
  8

  
	
  7.

  	
   

  	
  Restrictions on Liens and Encumbrances

  	
  8

  
	
  8.

  	
   

  	
  Due on Sale and Other Transfer Restrictions

  	
  8

  
	
  9.

  	
   

  	
  Condemnation/Eminent
  Domain

  	
  8

  
	
  10.

  	
   

  	
  Leases

  	
  8

  
	
  11.

  	
   

  	
  Further Assurances

  	
  8

  
	
  12.

  	
   

  	
  Mortgagee’s Right to Perform

  	
  9

  
	
  13.

  	
   

  	
  Remedies

  	
  9

  
	
  14.

  	
   

  	
  Right of Mortgagee to Credit Sale

  	
  10

  
	
  15.

  	
   

  	
  Appointment of Receiver

  	
  10

  
	
  16.

  	
   

  	
  Extension,
  Release, etc

  	
  11

  
	
  17.

  	
   

  	
  Security Agreement under Uniform Commercial
  Code

  	
  11

  
	
  18.

  	
   

  	
  Assignment of Rents

  	
  12

  
	
  19.

  	
   

  	
  Additional Rights

  	
  13

  
	
  20.

  	
   

  	
  Notices

  	
  13

  
	
  21.

  	
   

  	
  No Oral Modification

  	
  13

  
	
  22.

  	
   

  	
  Partial Invalidity

  	
  13

  
	
  23.

  	
   

  	
  Mortgagor’s Waiver of Rights

  	
  13

  
	
  24.

  	
   

  	
  Remedies Not Exclusive

  	
  14

  
	
  25.

  	
   

  	
  Multiple Security

  	
  14

  
	
  26.

  	
   

  	
  Successors and Assigns

  	
  15

  
	
  27.

  	
   

  	
  No Waivers, etc

  	
  15

  
	
  28.

  	
   

  	
  Governing Law, etc

  	
  16

  
	
  29.

  	
   

  	
  Certain Definitions

  	
  16

  
	
  30.

  	
   

  	
  Last Dollars Secured; Priority

  	
  16

  
	
  31.

  	
   

  	
  Release

  	
  16

  
	
  32.

  	
   

  	
  Conflict With Credit Agreement

  	
  17

  
	
  33.

  	
   

  	
  Change in Tax Law

  	
  17

  
	
  34.

  	
   

  	
  Subrogation

  	
  17

  
	
  35.

  	
   

  	
  Mortgagee as Agent

  	
  17

  
	
  36.

  	
   

  	
  Intercreditor Agreements

  	
  18

  
	
  37.

  	
   

  	
  State Specific Provisions

  	
  18

  



 

















 


MORTGAGE,
SECURITY AGREEMENT,

ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING


 


THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND
FIXTURE FILING, dated as of December       ,
2005 is made by [THE HERTZ CORPORATION/THE HERTZ EQUIPMENT RENTAL CORPORATION,
a Delaware corporation] (“Mortgagor”),
whose address is 225 Brae Blvd., Park Ridge, New Jersey 07656, to DEUTSCHE BANK
AG, NEW YORK BRANCH, as Collateral Agent under the Senior Term Credit Agreement
(as hereinafter defined) (in such capacity, “Mortgagee”),
whose address is 60 Wall Street, New York, New York 10005.  References to this “Mortgage” shall mean this instrument and
any and all renewals, modifications, amendments, supplements, extensions,
consolidations, substitutions, spreaders and replacements of this instrument.


 


Background


 


A.                                   The Hertz
Corporation, a Delaware corporation, has entered into that certain Credit
Agreement dated as of the date hereof (as the same may be amended, supplemented
or otherwise modified from time to time, the “Senior
Term  Credit Agreement”)
among The Hertz Corporation (together with any assignee of, or successor by
merger to, The Hertz Corporation’s rights and obligations thereunder as
provided therein, the “Parent Borrower”),
the several banks and other financial institutions from time to time parties
thereto (together with all other parties defined to be “Lenders” in the Senior
Term Credit Agreement, the “Senior Term
Lenders”), Mortgagee, as Administrative Agent and Collateral Agent,
Lehman Commercial Paper Inc., as Syndication Agent, and Merrill Lynch Capital
Corporation, as Documentation Agent.


 


B.                                     Hertz Equipment
Rental Corporation, a Delaware corporation, and the Parent Borrower have
entered into that certain Credit Agreement dated as of the date hereof (as the
same may be amended, supplemented or otherwise modified from time to time, the
“ABL  Credit Agreement” and together with the Senior Term Credit
Agreement, the “Credit Agreements”)
among Hertz Equipment Rental Corporation (together with any assignee of, or
successor by merger to, Hertz Equipment Rental Corporation’s rights and
obligations thereunder as provided therein, “HERC”)
and the Parent Borrower, the Canadian Borrowers (as defined in the ABL Credit
Agreement, and  together with HERC and
the Parent Borrower, being collectively referred to as the “Borrowers” and each being individually
referred to as a “Borrower”), the
several banks and other financial institutions from time to time parties
thereto (together with all other parties defined to be “Lenders” in the ABL
Credit Agreement, the “ABL  Lenders”; the ABL Lenders and the Senior
Term Lenders are collectively referred to herein as the “Lenders”), Mortgagee, as Administrative
Agent and Collateral Agent, Deutsche Bank AG, Canada Branch as Canadian Agent
and Canadian Collateral Agent for the ABL Lenders thereunder, Lehman Commercial
Paper Inc., as Syndication Agent, and Merrill Lynch Capital Corporation, as
Documentation Agent.


 


C.                                     Mortgagor (i) is
the owner of the fee simple estate in the parcel(s) of real property, if any,
described on Schedule A attached hereto (the “Owned Land”); and (ii) owns, leases or otherwise has the
right to use all of the buildings, improvements, structures, and fixtures now
or subsequently located on the Owned Land (the “Improvements”; the Owned Land and the Improvements being
collectively referred to as the “Real Estate”).


 

















 


D.                                    Pursuant to the
terms and conditions of the Senior Term Credit Agreement, inter alia: (1) the
Term Loan Lenders (as defined in the Senior Term Credit Agreement) have
severally agreed to make certain Term Loans (as defined in the Senior Term
Credit Agreement) to the Parent Borrower, and (2) each Issuing Lender (as
defined in the Senior Term Credit Agreement) has agreed to issue, and the
Senior Term Lenders who are L/C Participants (as defined in the Senior Credit
Agreement) have agreed to acquire participating interests in, Letters of Credit
(as defined in the Senior Term Credit Agreement) for the account of the Parent
Borrower.


 


E.                                      Pursuant to the
terms and conditions of the ABL Credit Agreement, the Lenders (as defined in
the ABL Credit Agreement) have severally agreed to make certain Loans (as
defined in the ABL Credit Agreement) to the Borrowers, inter alia, certain
Revolving Credit Loans (as defined in the ABL Credit Agreement) to the
Borrowers, which include (i) the Swing Line Lender’s (as defined in the
ABL Credit Agreement) agreement to make certain Swing Line Loans (as defined in
the ABL Credit Agreement), and (ii) each Issuing Lender (as defined in the
ABL Credit Agreement) has agreed to issue, and the ABL Lenders who are L/C
Participants (as defined in the ABL Credit Agreement)  to acquire participating interests in,
Letters of Credit (as defined in the ABL Credit Agreement) for the account of the
Borrowers.


 


F.                                      It is a condition
precedent, among others, to the effectiveness of each Credit Agreement and the
obligations of the Secured Parties to make the Loans (as defined in each Credit
Agreement), to issue and participate in Letters of Credit (as defined in each
Credit Agreement), and to enter into any Interest Rate Protection Agreement or
Permitted Hedging Arrangement (each as defined in each Credit Agreement) that
Mortgagor secure its obligations under each Credit Agreement and other Loan Documents
(as defined in each Credit Agreement) by executing and delivering this
Mortgage.


 


G.                                     In order to induce
the Lenders to consent to the entry into the Senior Term Credit Agreement by
the Parent Borrower and the ABL Credit Agreement by the Borrowers, and to
induce the Lenders to extend credit and other financial accommodations and lend
monies to or for the benefit of the Parent Borrower or the Borrowers, as
applicable, Mortgagee, the Borrowers and certain other parties have agreed to
the subordination, intercreditor and other provisions set forth in that certain
Intercreditor Agreement, dated as of the date hereof (as the same may be
amended, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”).


 


H.                                    Pursuant to the
terms of the Intercreditor Agreement, Mortgagee is holding the liens and
interests granted to it hereunder for the benefit of (i) itself as
Collateral Agent under the Senior Term Credit Agreement, (ii) itself as
Collateral Agent under the ABL Credit Agreement, and (iii) the Euro MTN
Secured Parties (as defined in the Intercreditor Agreement).


 


Granting
Clauses


 


For good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Mortgagor agrees that
to secure all obligations and liabilities of the Mortgagor in respect of:


 


2

















 


1.                                       the unpaid
principal of and interest on (including interest accruing after the maturity of
the Loans (as defined in the Senior Term Credit Agreement) and reimbursement
obligations and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Mortgagor, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) the Loans (as defined
in the Senior Term Credit Agreement), reimbursement obligations, and all other
obligations and liabilities of the Mortgagor to the Secured Parties, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the Senior Term Credit Agreement, the Loans (as defined in the Senior
Term Credit Agreement), the Letters of Credit (as defined in the Senior Term
Credit Agreement), the other Loan Documents (as defined in the Senior Term
Credit Agreement), any Interest Rate Protection Agreement, Permitted Hedging
Arrangement (each as defined in the Senior Term Credit Agreement) or Bank
Products Agreement (as defined in the Intercreditor Agreement) entered into
with any Person who was at the time of entry into such agreement a Senior Term
Lender or affiliate of any Senior Term Lender (provided notice of such Interest
Rate Protection Agreement or Permitted Hedging Arrangement was provided to
Mortgagee, as Administrative Agent and Collateral Agent under the Senior Term
Credit Agreement) or otherwise a Term Hedging Affiliate (as defined in the
Intercreditor Agreement), any Guarantee Obligations (as defined in the Senior
Term Credit Agreement) of CCMG Corporation, a Delaware corporation (“CCMGC”), or any Domestic Subsidiary as to
which any Secured Party is a beneficiary, the provision of cash management
services by any Senior Term Lender or an Affiliate thereof to the Parent
Borrower or any subsidiary thereof, the Brazil Guaranty (as defined in the
Intercreditor Agreement), or any other document made, delivered or given in
connection therewith, in each case whether on account of principal, interest,
reimbursement obligations, amounts payable in connection with the provision of
such cash management services or a termination of any transaction entered into
pursuant to any such Interest Rate Protection Agreement or Permitted Hedging
Arrangement (each as defined in the Senior Term Credit Agreement), fees,
indemnities, costs, expenses or otherwise (including all reasonable
out-of-pocket fees, expenses and disbursements of counsel to the Administrative
Agent (as defined in the Senior Term Credit Agreement), Collateral Agent (as defined
in the Senior Term Credit Agreement) or any other Secured Party that are
required to be paid by the Mortgagor pursuant to the terms of the Senior Term
Credit Agreement or any other Loan Document (as defined in the Senior Term
Credit Agreement)) (collectively, the “Term
Obligations”);


 


2.                                       the unpaid
principal of and interest on (including interest accruing after the maturity of
the Loans (as defined in the ABL Credit Agreement) and Reimbursement
Obligations (as defined in the ABL Credit Agreement) and interest accruing
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Mortgagor,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans (as defined in the ABL Credit Agreement), the
Reimbursement Obligations (as defined in the ABL Credit Agreement), and all
other obligations and liabilities of the Mortgagor to the Secured Parties,
whether direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or in
connection with, the ABL Credit Agreement, the Loans (as defined in the ABL
Credit Agreement), the Letters of Credit (as defined in the ABL Credit Agreement),
the other Loan Documents (as defined in the ABL Credit Agreement), any Interest
Rate Protection Agreement, Permitted Hedging Arrangement (each as defined in
the ABL Credit Agreement), or


 


3

















 


Bank Products Agreement (as defined in the Intercreditor Agreement)
entered into with any Person who was at the time of entry into such agreement
an ABL Lender or affiliate of any ABL Lender (provided notice of such Interest
Rate Protection Agreement, Permitted Hedging Arrangement (each as defined in
the ABL Credit Agreement), or Bank Products Agreement (as defined in the
Intercreditor Agerement) was provided to Mortgagee, as Administrative Agent and
Collateral Agent under the ABL Credit Agreement), any Guarantee Obligations (as
defined in the ABL Credit Agreement) of CCMGC, or any Domestic Subsidiary as to
which any Secured Party is a beneficiary, the provision of cash management
services by any ABL Lender or an Affiliate thereof to the Parent Borrower or
any subsidiary thereof, or any other document made, delivered or given in
connection therewith, in each case whether on account of principal, interest,
reimbursement obligations, amounts payable in connection with the provision of
such cash management services or a termination of any transaction entered into
pursuant to any such Interest Rate Protection Agreement, Permitted Hedging
Arrangement (each as defined in the ABL Credit Agreement) or Bank Products
Agreement (as defined in the Intercreditor Agreement), fees, indemnities,
costs, expenses or otherwise (including all reasonable out-of-pocket fees,
expenses and disbursements of counsel to the Administrative Agent (as defined
in the ABL Credit Agreement), Collateral Agent (as defined in the ABL Credit
Agreement) or any other Secured Party that are required to be paid by the
Mortgagor pursuant to the terms of the ABL Credit Agreement or any other Loan
Document (as defined in the ABL Credit Agreement)) (collectively, the “ABL Obligations” and together with the Term
Obligations, the “Senior Facility Obligations”); and


 


3.                                       The Euro MTN
Obligations (as defined in the Intercreditor Agreement) of the Mortgagor, owed
to the Euro MTN Secured Parties (as defined in the Intercreditor Agreement)
(the Euro MTN Obligations and the Senior Facility Obligations are referred to
collectively herein as the “Obligations”);


 


MORTGAGOR HEREBY GRANTS TO MORTGAGEE, IN ITS CAPACITY AS COLLATERAL
AGENT UNDER THE SENIOR TERM CREDIT AGREEMENT AND IN ITS CAPACITY AS COLLATERAL
AGENT UNDER THE ABL CREDIT AGREEMENT,  A
LIEN UPON AND A SECURITY INTEREST IN, AND HEREBY MORTGAGES, GIVES, GRANTS,
BARGAINS, SELLS, CONVEYS AND CONFIRMS, ASSIGNS, TRANSFERS AND SETS OVER TO
MORTGAGEE AND TO ITS SUCCESSORS AND ASSIGNS FOREVER, SUBJECT ONLY TO THE
PERMITTED EXCEPTIONS:


 


(a)                                  all right, title and
interest of Mortgagor in, to and under the Owned Land;


 


(b)                                 all right, title and
interest Mortgagor now has or may hereafter acquire in and to the Improvements
or any part thereof (whether owned in fee by Mortgagor or held otherwise);


 


(c)                                  all right, title and
interest of Mortgagor in, to and under all easements, rights of way, licenses,
operating agreements, abutting strips and gores of land, streets, ways, alleys,
passages, sewer rights, waters, water courses, water and flowage rights,
development rights, air rights, mineral and soil rights, plants, standing and
fallen timber, and all estates, rights, titles, interests, privileges,
licenses, tenements, hereditaments and appurtenances belonging, relating or
appertaining to the Real Estate, and any reversions, remainders, rents, issues,
profits


 


4

















 


and revenue thereof and all
land lying in the bed of any street, road or avenue, in front of or adjoining
the Real Estate to the center line thereof;


 


(d)                                 all right, title and
interest of Mortgagor in and to all of the fixtures, chattels, business
machines, machinery, apparatus, equipment, furnishings, fittings, and articles
of personal property of every kind and nature whatsoever, and all appurtenances
and additions thereto and substitutions or replacements thereof (together with,
in each case, attachments, components, parts and accessories) currently owned
or subsequently acquired by Mortgagor and now or subsequently attached to, the
Real Estate, but excluding any Rental Car Vehicles to the extent such vehicles
are pledged as security for any financing (or refinancing) incurred in
connection with the purchase or acquisition of such vehicles (all of the
foregoing in this paragraph (d) being referred to as the “Equipment”);


 


(e)                                  all right, title and
interest of Mortgagor in and to all substitutes and replacements of, and all
additions and improvements to, the Real Estate and the Equipment, subsequently
acquired by or released to Mortgagor or constructed, assembled or placed by
Mortgagor on the Real Estate, immediately upon such acquisition, release,
construction, assembling or placement, including any and all building materials
whether stored at the Real Estate or offsite, and, in each such case, without
any further deed, conveyance, assignment or other act by Mortgagor;


 


(f)                                    all right, title
and interest of Mortgagor in, to and under all leases, subleases,
underlettings, concession agreements, management agreements, licenses and other
agreements relating to the use or occupancy of the Real Estate or the Equipment
or any part thereof, now existing or subsequently entered into by Mortgagor and
whether written or oral and all guarantees of any of the foregoing
(collectively, as any of the foregoing may be amended, restated, extended,
renewed or modified from time to time, the “Leases”),
and all rights of Mortgagor in respect of cash and securities deposited
thereunder and the right to receive and collect the revenues, income, rents,
issues and profits thereof, together with all other rents, royalties, issues,
profits, revenue, income and other benefits arising from the use and enjoyment
of the Mortgaged Property (as defined below) (collectively, the “Rents”);


 


(g)                                 all right, title and
interest of Mortgagor, to the extent assignable, in and to all unearned
premiums under insurance policies now or subsequently obtained by Mortgagor
relating to the Real Estate or Equipment and Mortgagor’s interest in and to all
proceeds of any such insurance policies (including title insurance policies)
including the right to collect and receive such proceeds, subject to the
provisions relating to insurance generally set forth below; and all awards and
other compensation, including the interest payable thereon and the right to
collect and receive the same, made to the present or any subsequent owner of
the Real Estate or Equipment for the taking by eminent domain, condemnation or
otherwise, of all or any part of the Real Estate or any easement or other right
therein, subject to the provisions relating to condemnation awards generally
set forth below;


 


(h)                                 to the extent not
prohibited under the applicable contract, consent, license or other item unless
the appropriate consent has been obtained, all right, title and interest of
Mortgagor in and to (i) all contracts from time to time executed by
Mortgagor or any manager or agent on its behalf relating to the ownership,
construction, maintenance, repair, operation, occupancy, sale or financing of
the Real Estate or Equipment or any part thereof and all


 


5

















 


agreements and options relating to the purchase or lease of any portion
of the Real Estate or any property which is adjacent or peripheral to the Real
Estate, together with the right to exercise such options and all leases of Equipment, (ii) all
consents, licenses, building permits, certificates of occupancy and other
governmental approvals relating to construction, completion, occupancy, use or
operation of the Real Estate or any part thereof, and (iii) all drawings,
plans, specifications and similar or related items relating to the Real Estate;
and


 


(i)                                     all proceeds, both
cash and noncash, of the foregoing.


 


(All of the foregoing property and all rights, titles and interests now
owned or held or subsequently acquired by Mortgagor and described in the
foregoing clauses (a) through (d) are collectively referred to as the
“Premises”, and all rights, titles
and interests now owned or held or subsequently acquired by Mortgagor and
described in the foregoing clauses (a) through (i) are collectively
referred to as the “Mortgaged Property”).


 


TO HAVE AND TO HOLD the Mortgaged Property
and the rights and privileges hereby mortgaged unto Mortgagee, its successors
and assigns for the uses and purposes set forth, until the Obligations are
fully paid and performed, provided, however, that the condition of this
Mortgage is such that if the Senior Facility Obligations are fully paid and
performed, then regardless of whether the Euro MTN Obligations have been fully
paid and performed, the estate hereby granted shall cease, terminate and become
void.


 


This Mortgage covers present and future
advances and re-advances, in the aggregate amount of the Obligations secured
hereby, made by the Secured Parties for the benefit of Mortgagor, and the lien
of such future advances and re-advances shall relate back to the date of this
Mortgage.  The maximum amount of the
Obligations secured hereby will not exceed [                      
DOLLARS ($                )].


 


Terms and
Conditions


 


Mortgagor further represents, warrants,
covenants and agrees with Mortgagee and the Secured Parties as follows:


 


1.                                       Defined
Terms.  Capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the Credit
Agreements, or if not the same in each Credit Agreement, then as defined in the
applicable Credit Agreement, as the use and context may require.  References in this Mortgage to the “Default Rate” shall mean the interest rate
applicable pursuant to subsection 4.1(c) of the Credit
Agreement.  References herein to the “Secured Parties” shall mean the collective
reference to (i) the Administrative Agent, Collateral Agent and each Other
Representative, (ii) the Lenders (including the Issuing Lender and the
Swing Line Lender), (iii) with respect to any Interest Rate Protection
Agreement, Permitted Hedging Arrangement or Bank Products Agreement with CCMGC
or any of its subsidiaries, any counterparty thereto that, at the time such
agreement or arrangement was entered into, was a Lender or Affiliate of any
Lender, or otherwise a Term Hedging Affiliate (as defined in the Intercreditor
Agreement), (iv) any Lender or Affiliate thereof which provides cash
management services to the Parent Borrower or any of its subsidiaries, (v) with
respect to any Management Loans (as defined in the Security Agreement), any
lender thereof that, at the time such Indebtedness was extended (or agreement
to extend such Indebtedness was entered into), was a


 


6

















 


Lender
or an Affiliate of any Lender, (vi) the Euro MTN Secured Parties (as
defined in the Intercreditor Agreement), (vii) the Brazil Debt Secured
Parties (as defined in the Intercreditor Agreement), and (viii) their
respective successors and assigns and their permitted transferees and
endorsees.


 


2.                                       Warranty
of Title.  Mortgagor warrants that it
has good title in fee simple to the Real Estate, and good title to the rest of
the Mortgaged Property, subject only to the matters that are set forth in Schedule B
of the title insurance policy or policies being issued to Mortgagee to insure
the lien of this Mortgage and any other Permitted Liens (the “Permitted Exceptions”).  Mortgagor shall warrant, defend and preserve
such title and the lien of this Mortgage against all claims of all persons and
entities (not including the holders of the Permitted Exceptions).  Mortgagor represents and warrants that it has
the right to mortgage the Mortgaged Property.


 


3.                                       Payment
of Obligations.  Mortgagor shall pay
and perform the Obligations at the times and places and in the manner specified
in the Loan Documents.


 


4.                                       Requirements.  Mortgagor shall promptly comply with all
covenants, restrictions and conditions now or later of record which may be
applicable to any of the Mortgaged Property, or to the use, manner of use,
occupancy, possession, operation, maintenance, alteration, repair or
reconstruction of any of the Mortgaged Property, except where a failure to do
so could not reasonably be expected to have a Material Adverse Effect.


 


5.                                       Payment
of Taxes and Other Impositions.  (a) 
Promptly when due or prior to the date on which any fine, penalty, interest or
cost may be added thereto or imposed, Mortgagor shall pay and discharge all
taxes, charges and assessments of every kind and nature, all charges for any
easement or agreement maintained for the benefit of any of the Real Estate, all
general and special assessments, levies, permits, inspection and license fees,
all water and sewer rents and charges, vault taxes and all other public charges
even if unforeseen or extraordinary, imposed upon or assessed against or which
may become a lien on any of the Real Estate, or arising in respect of the
occupancy, use or possession thereof, together with any penalties or interest
on any of the foregoing (all of the foregoing are collectively referred to
herein as the “Impositions”), except where (i) the validity or amount
thereof is being contested in good faith by appropriate proceedings, and (ii) the
Mortgagor has set aside on its books adequate reserves with respect thereto in
accordance with GAAP.  Upon request by
Mortgagee, Mortgagor shall within 30 days after the request of Mortgagee,
deliver to Mortgagee evidence reasonably acceptable to Mortgagee showing the payment
of any such Imposition.  If by law any
Imposition, at Mortgagor’s option, may be paid in installments (whether or not
interest shall accrue on the unpaid balance of such Imposition), Mortgagor may
elect to pay such Imposition in such installments and shall be responsible for
the payment of such installments with interest, if any.


 


(b)                                 Nothing
herein shall affect any right or remedy of Mortgagee under this Mortgage or
otherwise, without notice or demand to Mortgagor, to pay any Imposition after
the date such Imposition shall have become due, and add to the Obligations the
amount so paid, together with interest from the time of payment at the Default
Rate.  Any sums paid by Mortgagee in
discharge of any Impositions shall be (i) a lien on the Premises secured
hereby prior to any right or title to, interest in, or claim upon the Premises
subordinate to the lien of this


 


7

















 


Mortgage, and (ii) payable on demand by
Mortgagor to Mortgagee together with interest at the Default Rate as set forth
above.


 


(c)                                  Mortgagor shall not
be entitled to any credit against the Obligations by reason of the payment of
Impositions.


 


6.                                       Insurance.  Mortgagor shall maintain insurance in
accordance with the provisions of the Credit Agreement.


 


7.                                       Restrictions
on Liens and Encumbrances.  Except
for the lien of this Mortgage and the Permitted Exceptions and except as
otherwise permitted pursuant to the terms of the Credit Agreement, Mortgagor
shall not further mortgage, nor otherwise encumber the Mortgaged Property nor
create or suffer to exist any lien, charge or encumbrance on the Mortgaged
Property, or any part thereof, whether superior or subordinate to the lien of
this Mortgage and whether recourse or non-recourse.


 


8.                                       Due
on Sale and Other Transfer Restrictions. 
Except as permitted under subsection 8.6 of the Credit Agreement,
Mortgagor shall not sell, transfer, convey or assign all or any portion of, or
any interest in, the Mortgaged Property.


 


9.                                       Condemnation/Eminent Domain.  Promptly
upon obtaining knowledge of the institution of any proceedings for the
condemnation of the Mortgaged Property, or any material portion thereof,
Mortgagor will notify Mortgagee of the pendency of such proceedings.  All awards and proceeds relating to such
condemnation shall be deemed proceeds from a Recovery Event and applied in the
manner specified in the Credit Agreement.


 


10.                                 Leases.  Except as permitted under the Credit
Agreement with respect to any Lease having an annual rental of more than $1,000,000,
Mortgagor shall not (a) execute an assignment or pledge of any Lease
relating to all or any portion of the Mortgaged Property other than in favor of
Mortgagee, or (b) without the prior written consent of Mortgagee, which
consent shall not be unreasonably withheld or delayed, execute or permit to
exist any Lease of any material portion of the Mortgaged Property, except for
Permitted Exceptions. Mortgagee agrees that, upon the reasonable request of
Mortgagor, Mortgagee will enter into a subordination, non-disturbance and
attornment agreement with a tenant (other than affiliate of Mortgagor) that has
executed a lease after the date hereof with respect to all or a portion of the
Mortgaged Property, provided (i) Mortgagor certifies in writing to
Mortgagee that such lease contains commercially reasonable terms, including
being at fair market rent, (ii) such subordination, non-disturbance and
attornment agreement is in form and substance reasonably acceptable to the
Mortgagee and (iii) all the costs and expenses related thereto (including
reasonable attorneys’ fees) shall be borne by Mortgagor.


 


11.                                 Further
Assurances.  To further assure
Mortgagee’s rights under this Mortgage, Mortgagor agrees promptly upon demand
of Mortgagee to do any act or execute any additional documents (including
security agreements on any personalty included or to be included in the
Mortgaged Property and a separate assignment of each Lease in recordable form)
as may be reasonably required by Mortgagee to confirm the lien of this Mortgage
and all other rights or benefits conferred on Mortgagee by this Mortgage.


 


8

















 


12.                                 Mortgagee’s
Right to Perform.  If Mortgagor fails
to perform any of the covenants or agreements of Mortgagor under this Mortgage,
within the applicable grace period, if any, provided for in the Credit
Agreement, Mortgagee, without waiving or releasing Mortgagor from any
obligation or default under this Mortgage, may, at any time upon 10 days’
written notice to Mortgagor (but shall be under no obligation to) pay or
perform the same, and the amount or cost thereof, with interest at the Default
Rate, shall immediately be due from Mortgagor to Mortgagee and the same shall
be secured by this Mortgage and shall be a lien on the Mortgaged Property prior
to any right, title to, interest in, or claim upon the Mortgaged Property
attaching subsequent to the lien of this Mortgage.  No payment or advance of money by Mortgagee
under this Section shall be deemed or construed to cure Mortgagor’s
default or waive any right or remedy of Mortgagee.


 


13.                                 Remedies.  (a)  Upon the occurrence and during the
continuance of any Event of Default, Mortgagee may immediately take such
action, without notice or demand, as it deems advisable to protect and enforce
its rights against Mortgagor and in and to the Mortgaged Property (subject to
the terms of any documentation governing any Permitted Receivables
Transaction), including the following actions, each of which may be pursued
concurrently or otherwise, at such time and in such manner as Mortgagee may
determine, in its sole discretion, without impairing or otherwise affecting the
other rights and remedies of Mortgagee:


 


(i)                                     Mortgagee
may, to the extent permitted by applicable law, (A) institute and maintain
an action of mortgage foreclosure against all or any part of the Mortgaged
Property, (B) institute and maintain an action on the Loans or the Credit
Agreement, the Guarantee and Collateral Agreement or any other Loan Document, (C) sell
all or part of the Mortgaged Property (Mortgagor expressly granting to
Mortgagee the power of sale), or (D) take such other action at law or in
equity for the enforcement of this Mortgage or any of the Loan Documents as the
law may allow.  Mortgagee may proceed in
any such action to final judgment and execution thereon for all sums due
hereunder, together with interest thereon as provided in the Credit Agreement
and all reasonable out-of-pocket costs of suit, including reasonable
out-of-pocket attorneys’ fees and disbursements.  Interest at the Default Rate shall be due on
any judgment obtained by Mortgagee from the date of judgment until actual
payment is made of the full amount of the judgment. Mortgagor agrees that in
addition to all other rights of Mortgagee hereunder and without waiving or
modifying any of its rights, Mortgagee may to the maximum extent permitted by
law, foreclose and at its sole option utilize the provisions of any statute
which allows Mortgagee to obtain the Mortgaged Property by using a shortened
redemption period; and


 


(ii)                                  Mortgagee
may personally, or by its agents, attorneys and employees and without regard to
the adequacy or inadequacy of the Mortgaged Property or any other collateral as
security for the Obligations enter into and upon the Mortgaged Property and
each and every part thereof and exclude Mortgagor and its agents and employees
therefrom without liability for trespass, damage or otherwise (Mortgagor hereby
agreeing to surrender possession of the Mortgaged Property to Mortgagee upon
demand at any such time) and use, operate, manage, maintain and control the
Mortgaged Property and every part thereof (subject to the terms of any
documentation governing any Permitted Receivables


 


9

















 


Transaction). 
Following such entry and taking of possession, Mortgagee shall be
entitled, without limitation, (x) to lease all or any part or parts of the
Mortgaged Property for such periods of time and upon such conditions as
Mortgagee may, in its discretion, deem proper, (y) to enforce, cancel or modify
any Lease and (z) generally to execute, do and perform any other act, deed,
matter or thing concerning the Mortgaged Property as Mortgagee shall deem
appropriate as fully as Mortgagor might do (subject to the terms of any
documentation governing any Permitted Receivables Transaction).


 


(b)                                 In
case of a foreclosure sale, the Real Estate may be sold, at Mortgagee’s
election, in one parcel or in more than one parcel and Mortgagee is
specifically empowered (without being required to do so, and in its sole and
absolute discretion) to cause successive sales of portions of the Mortgaged
Property to be held.


 


(c)                                  In the event of any
breach of any of the covenants, agreements, terms or conditions contained in
this Mortgage, Mortgagee shall be entitled to enjoin such breach and obtain
specific performance of any covenant, agreement, term or condition and
Mortgagee shall have the right to invoke any equitable right or remedy as
though other remedies were not provided for in this Mortgage.


 


(d)                                 It is agreed that if
an Event of Default shall occur and be continuing, any and all proceeds of the
Mortgaged Property received by the Mortgagee shall be held by the Mortgagee for
the benefit of the Secured Parties as collateral security for the Obligations
(whether matured or unmatured), and/or then or at any time thereafter may, in
the sole discretion of the Mortgagee, be applied, following the application
thereof to pay any unsatisfied Euro MTN Obligations (as defined in the
Intercreditor Agreement), by the Mortgagee against the Senior Facility
Obligations then due and owing in the order of priority set forth in the
Intercreditor Agreement.


 


14.                                 Right
of Mortgagee to Credit Sale.  Upon
the occurrence of any sale made under this Mortgage, whether made under the
power of sale or by virtue of judicial proceedings or of a judgment or decree
of foreclosure and sale, Mortgagee may bid for and acquire the Mortgaged
Property or any part thereof.  In lieu of
paying cash therefor, Mortgagee may make settlement for the purchase price by
crediting upon the Obligations or other sums secured by this Mortgage, the net
sales price after deducting therefrom the expenses of sale and the reasonable,
out-of-pocket cost of the action and any other sums which Mortgagee is
authorized to deduct under this Mortgage. 
In such event, this Mortgage, the Credit Agreement, the Guarantee and
Collateral Agreement and documents evidencing expenditures secured hereby may
be presented to the person or persons conducting the sale in order that the
amount so used or applied may be credited upon the Obligations as having been
paid.


 


15.                                 Appointment
of Receiver.  If an Event of Default
shall have occurred and be continuing, Mortgagee, to the extent permitted under
applicable law, as a matter of right and without notice to Mortgagor, and
without regard to the adequacy or inadequacy of the Mortgaged Property or any
other collateral or the interest of Mortgagor therein as security for the
Obligations, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers or other manager of the Mortgaged Property, and
Mortgagor hereby irrevocably consents to such appointment and waives notice of
any application therefor (except as may be


 


10

















 


required by law).  Any such receiver or receivers or manager
shall have all the usual powers and duties of receivers in like or similar
cases and all the powers and duties of Mortgagee in case of entry as provided
in this Mortgage, including and to the extent permitted by law, the right to
enter into leases of all or any part of the Mortgaged Property, and shall
continue as such and exercise all such powers until the date of confirmation of
sale of the Mortgaged Property unless such receivership is sooner terminated.


 


16.                                 Extension, Release, etc.  (a) 
Without affecting the lien or charge of this Mortgage upon any portion of the
Mortgaged Property not then or theretofore released as security for the full
amount of the Obligations, Mortgagee may, from time to time and without notice,
agree to (i) release any person liable for the indebtedness borrowed or
guaranteed under the Loan Documents, (ii) extend the maturity or alter any
of the terms of the indebtedness borrowed or guaranteed under the Loan
Documents or any other guaranty thereof, (iii) grant other indulgences, (iv) release
or reconvey, or cause to be released or reconveyed at any time at Mortgagee’s
option any parcel, portion or all of the Mortgaged Property, (v) take or
release any other or additional security for any obligation herein mentioned,
or (vi) make compositions or other arrangements with debtors in relation
thereto.


 


(b)                                 No
recovery of any judgment by Mortgagee and no levy of an execution under any
judgment upon the Mortgaged Property or upon any other property of Mortgagor
shall affect the lien of this Mortgage or any liens, rights, powers or remedies
of Mortgagee hereunder, and such liens, rights, powers and remedies shall
continue unimpaired.


 


(c)                                  If Mortgagee shall
have the right to foreclose this Mortgage or to direct a power of sale,
Mortgagor authorizes Mortgagee at its option to foreclose the lien of this
Mortgage or direct the sale of the Mortgaged Property, as the case may be,
subject to the rights of any tenants of the Mortgaged Property.  The failure to make any such tenants parties
defendant to any such foreclosure proceeding and to foreclose their rights, or
to provide notice to such tenants as required in any statutory procedure
governing a sale of the Mortgaged Property, or to terminate such tenant’s
rights in such sale will not be asserted by Mortgagor as a defense to any
proceeding instituted by Mortgagee to collect the Obligations or to foreclose
the lien of this Mortgage.


 


(d)                                 Unless expressly
provided otherwise, in the event that ownership of this Mortgage and title to
the Mortgaged Property or any estate therein shall become vested in the same
person or entity, this Mortgage shall not merge in such title but shall
continue as a valid lien on the Mortgaged Property for the amount secured
hereby.


 


17.                                 Security
Agreement under Uniform Commercial Code. 
(a)  It is the intention of the parties hereto that this Mortgage
shall constitute a “security agreement” within the meaning of the Uniform
Commercial Code (the “Code”) of
the State in which the Mortgaged Property is located.  If an Event of Default shall occur and be
continuing, then in addition to having any other right or remedy available at
law or in equity, Mortgagee shall have the option of either (i) proceeding
under the Code and exercising such rights and remedies as may be provided to a
secured party by the Code with respect to all or any portion of the Mortgaged
Property which is personal property (including taking possession of and selling
such property) or (ii) treating such property as real property and
proceeding with respect to both the real and personal property constituting the
Mortgaged Property in accordance with Mortgagee’s rights,


 


11

















 


powers
and remedies with respect to the real property (in which event the default
provisions of the Code shall not apply). 
If Mortgagee shall elect to proceed under the Code, then 10 days’ notice
of sale of the personal property shall be deemed reasonable notice and the
reasonable expenses of retaking, holding, preparing for sale, selling and the
like incurred by Mortgagee shall include reasonable, out-of-pocket attorneys’
fees and legal expenses.  At Mortgagee’s
request, during the continuance of an Event of Default, Mortgagor shall
assemble the personal property and make it available to Mortgagee at a place
designated by Mortgagee which is reasonably convenient to both parties (subject
to the terms of any documentation governing any Permitted Receivables Transaction).


 


(b)                                 Mortgagor
and Mortgagee agree, to the extent permitted by law, that: (i) all of the
goods described within the definition of the word “Equipment” are or are to become fixtures on the Real Estate; (ii) this
Mortgage upon recording or registration in the real estate records of the
proper office shall constitute a financing statement filed as a “fixture
filing” within the meaning of Sections 9a-334 and 9a-502 of the Code; (iii) Mortgagor
is the record owner of the Owned Land; and (iv) the addresses of Mortgagor
and Mortgagee are as set forth on the first page of this Mortgage.


 


18.                                 Assignment
of Rents.  (a)  Mortgagor hereby
assigns to Mortgagee the Rents as further security for the payment of and
performance of the Obligations, and Mortgagor grants to Mortgagee the right to
enter the Mortgaged Property for the purpose of collecting the same and to let
the Mortgaged Property or any part thereof, and to apply the Rents on account
of the Obligations.  The foregoing
assignment and grant is present and absolute and shall continue in effect until
the Obligations are fully paid and performed, but Mortgagee hereby waives the
right to enter the Mortgaged Property for the purpose of collecting the Rents
and Mortgagor shall be entitled to collect, receive, use and retain the Rents
until the occurrence and during the continuance of an Event of Default, such
right of Mortgagor to collect, receive, use and retain the Rents may be revoked
by Mortgagee upon the occurrence and during the continuance of any Event of Default
under this Mortgage by giving not less than 10 days’ written notice of such
revocation to Mortgagor; in the event such notice is given, Mortgagor shall pay
over to Mortgagee, or to any receiver appointed to collect the Rents, any lease
security deposits, and shall pay monthly in advance to Mortgagee, or to any
such receiver, the fair and reasonable rental value as determined by Mortgagee
for the use and occupancy of such part of the Mortgaged Property as may be in
the possession of Mortgagor or any affiliate of Mortgagor, and upon default in
any such payment Mortgagor and any such affiliate will vacate and surrender the
possession of the Mortgaged Property to Mortgagee or to such receiver, and in
default thereof may be evicted by summary proceedings or otherwise (subject to
the terms of any documentation governing any Permitted Receivables
Transaction).  Mortgagor shall not accept
prepayments of installments of Rent to become due for a period of more than one
month in advance (except for security deposits and estimated payments of
percentage rent, if any).


 


(b)                                 Mortgagor
has not affirmatively done any act which would prevent Mortgagee from, or limit
Mortgagee in, acting under any of the provisions of the foregoing assignment.


 


(c)                                  Except for any matter
disclosed in the Credit Agreement, no action has been brought or, so far as is
known to Mortgagor, is threatened, which would interfere in any 


 


12

















 


way with the right of Mortgagor
to execute the foregoing assignment and perform all of Mortgagor’s obligations
contained in this Section and in the Leases.


 


19.                                 Additional
Rights.  The holder of any
subordinate lien or subordinate deed of trust on the Mortgaged Property shall
have no right to terminate any Lease whether or not such Lease is subordinate
to this Mortgage nor shall Mortgagor consent to any holder of any subordinate
lien or subordinate deed of trust joining any tenant under any Lease in any
action to foreclose the lien or modify, interfere with, disturb or terminate
the rights of any tenant under any Lease. 
By recordation of this Mortgage all subordinate lienholders and the
mortgagees and beneficiaries under subordinate mortgages are subject to and
notified of this provision, and any action taken by any such lienholder or
beneficiary contrary to this provision shall be null and void.  Upon the occurrence and during the
continuance of any Event of Default, Mortgagee may, in its sole discretion and
without regard to the adequacy of its security under this Mortgage, apply all
or any part of any amounts on deposit with Mortgagee under this Mortgage
against all or any part of the Obligations. 
Any such application shall not be construed to cure or waive any Default
or Event of Default or invalidate any act taken by Mortgagee on account of such
Default or Event of Default.


 


20.                                 Notices.  All notices, requests, demands and other
communications hereunder shall be given in accordance with the provisions of
subsection 11.2 of the Credit Agreement to Mortgagor and to Mortgagee as
specified therein.


 


21.                                 No
Oral Modification.  This Mortgage may
not be amended, supplemented or otherwise modified except in accordance with
the provisions of subsection 11.1 of the Credit Agreement.  Any agreement made by Mortgagor and Mortgagee
after the date of this Mortgage relating to this Mortgage shall be superior to
the rights of the holder of any intervening or subordinate lien or encumbrance.


 


22.                                 Partial
Invalidity.  In the event any one or
more of the provisions contained in this Mortgage shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, but
each shall be construed as if such invalid, illegal or unenforceable provision
had never been included.  Notwithstanding
to the contrary anything contained in this Mortgage or in any provisions of any
Loan Document, the obligations of Mortgagor and of any other obligor under any Loan
Documents or with respect to the Euro MTN Obligations shall be subject to the
limitation that Mortgagee shall not charge, take or receive, nor shall
Mortgagor or any other obligor be obligated to pay to Mortgagee, any amounts
constituting interest in excess of the maximum rate permitted by law to be
charged by Mortgagee.


 


23.                                 Mortgagor’s
Waiver of Rights.  To the fullest
extent permitted by law, Mortgagor waives the benefit of all laws now existing
or that may subsequently be enacted providing for (a) any appraisement
before sale of any portion of the Mortgaged Property, (b) any extension of
the time for the enforcement of the collection of the Obligations or the
creation or extension of a period of redemption from any sale made in
collecting such debt and (c) exemption of the Mortgaged Property from
attachment, levy or sale under execution or exemption from civil process.  To the full extent Mortgagor may do so,
Mortgagor agrees that Mortgagor will not at any time insist upon, plead, claim
or take the benefit or advantage of any law now or hereafter in force providing
for any appraisement, valuation, stay, exemption,


 


13

















 


extension or redemption,
or requiring foreclosure of this Mortgage before exercising any other remedy
granted hereunder and Mortgagor, for Mortgagor and its successors and assigns,
and for any and all persons ever claiming any interest in the Mortgaged
Property, to the extent permitted by law, hereby waives and releases all rights
of redemption, valuation, appraisement, stay of execution, notice of election
to mature (except as expressly provided in the Credit Agreement) or declare due
the whole of the secured indebtedness and marshalling in the event of exercise
by Mortgagee of the foreclosure rights, power of sale, or other rights hereby
created.


 


24.                                 Remedies
Not Exclusive.  Mortgagee shall be
entitled to enforce payment and performance of the Obligations and to exercise
all rights and powers under this Mortgage or under any of the other Loan
Documents or other agreement or any laws now or hereafter in force,
notwithstanding some or all of the Obligations may now or hereafter be
otherwise secured, whether by deed of trust, mortgage, security agreement,
pledge, lien, assignment or otherwise. 
Neither the acceptance of this Mortgage nor its enforcement, shall
prejudice or in any manner affect Mortgagee’s rights to realize upon or enforce
any other security now or hereafter held by Mortgagee, it being agreed that
Mortgagee shall be entitled to enforce this Mortgage and any other security now
or hereafter held by Mortgagee in such order and manner as Mortgagee may
determine in its absolute discretion.  No
remedy herein conferred upon or reserved to Mortgagee is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute.  Every power or remedy given by any of the
Loan Documents to Mortgagee or to which either may otherwise be entitled, may
be exercised, concurrently or independently, from time to time and as often as
may be deemed expedient by Mortgagee, as the case may be.  In no event shall Mortgagee, in the exercise
of the remedies provided in this Mortgage (including in connection with the
assignment of Rents to Mortgagee, or the appointment of a receiver and the
entry of such receiver on to all or any part of the Mortgaged Property), be
deemed a “Mortgagee in possession,” and Mortgagee  shall not in any way be made liable for any
act, either of commission or omission, in connection with the exercise of such
remedies.


 


25.                                 Multiple
Security.  If (a) the Premises
shall consist of one or more parcels, whether or not contiguous and whether or
not located in the same county, or (b) in addition to this Mortgage,
Mortgagee shall now or hereafter hold or be the beneficiary of one or more
additional mortgages, liens, deeds of trust or other security (directly or
indirectly) for the Obligations upon other property in the State in which the
Premises are located (whether or not such property is owned by Mortgagor or by
others) or (c) both the circumstances described in clauses (a) and (b) shall
be true, then to the fullest extent permitted by law, Mortgagee may, at its election,
commence or consolidate in a single foreclosure action all foreclosure
proceedings against all such collateral securing the Obligations (including the
Mortgaged Property), which action may be brought or consolidated in the courts
of, or sale conducted in, any county in which any of such collateral is
located.  Mortgagor acknowledges that the
right to maintain a consolidated 
foreclosure action is a specific inducement to Mortgagee to extend the
indebtedness borrowed pursuant to or guaranteed by the Loan Documents, and
Mortgagor expressly and irrevocably waives any objections to the commencement
or consolidation of the foreclosure proceedings in a single action and any
objections to the laying of venue or based on the grounds of forum non
conveniens which it may now or hereafter have. 
Mortgagor further agrees that if Mortgagee shall be prosecuting one or
more foreclosure or other proceedings against a portion of the Mortgaged
Property or against any collateral other than the Mortgaged


 


14

















 


Property, which
collateral directly or indirectly secures the Obligations, or if Mortgagee
shall have obtained a judgment of foreclosure and sale or similar judgment
against such collateral, then, whether or not such proceedings are being
maintained or judgments were obtained in or outside the State in which the
Premises are located, Mortgagee may commence or continue any  foreclosure proceedings and exercise its
other remedies granted in this Mortgage against all or any part of the
Mortgaged Property and Mortgagor waives any objections to the commencement or
continuation of a foreclosure of this Mortgage or exercise of any other
remedies hereunder based on such other proceedings or judgments, and waives any
right to seek to dismiss, stay, remove, transfer or consolidate either any
action under this Mortgage or such other proceedings on such basis.  Neither the commencement nor continuation of
proceedings to foreclose this Mortgage, nor the exercise of any other rights
hereunder nor the recovery of any judgment by Mortgagee in any such proceedings
or the occurrence of any sale in any such proceedings shall prejudice, limit or
preclude Mortgagee’s right to commence or continue one or more foreclosure or
other proceedings or obtain a judgment against any other collateral (either in
or outside the State in which the Premises are located) which directly or
indirectly secures the Obligations, and Mortgagor expressly waives any
objections to the commencement of, continuation of, or entry of a judgment in
such other sales or proceedings or exercise of any remedies in such sales or
proceedings based upon any action or judgment connected to this Mortgage, and
Mortgagor also waives any right to seek to dismiss, stay, remove, transfer or
consolidate either such other sales or proceedings or any sale or action under
this Mortgage on such basis.  It is
expressly understood and agreed that to the fullest extent permitted by law,
Mortgagee may, at its election, cause the sale of all collateral which is the
subject of a single foreclosure action at either a single sale or at multiple
sales conducted simultaneously and take such other measures as are appropriate
in order to effect the agreement of the parties to dispose of and administer
all collateral securing the Obligations (directly or indirectly) in the most
economical and least time-consuming manner.


 


26.                                 Successors
and Assigns.  All covenants of
Mortgagor contained in this Mortgage are imposed solely and exclusively for the
benefit of Mortgagee, and its successors and assigns, and no other person or
entity shall have standing to require compliance with such covenants or be
deemed, under any circumstances, to be a beneficiary of such covenants, any or
all of which may be freely waived in whole or in part by Mortgagee at any time
if in its sole discretion it deems such a waiver advisable.  All such covenants of Mortgagor shall run
with the land and bind Mortgagor, the successors and assigns of Mortgagor (and
each of them) and all subsequent owners, encumbrancers and tenants of the
Mortgaged Property, and shall inure to the benefit of Mortgagee and its
successors and assigns.  The word
“Mortgagor” shall be construed as if it read “Mortgagors” whenever the sense of
this Mortgage so requires and if there shall be more than one Mortgagor, the
obligations of the Mortgagors shall be joint and several.


 


27.                                 No Waivers, etc.  Any
failure by Mortgagee to insist upon the strict performance by Mortgagor of any
of the terms and provisions of this Mortgage shall not be deemed to be a waiver
of any of the terms and provisions hereof, and Mortgagee, notwithstanding any
such failure, shall have the right thereafter to insist upon the strict
performance by Mortgagor of any and all of the terms and provisions of this
Mortgage to be performed by Mortgagor. 
Mortgagee may release, regardless of consideration and without the
necessity for any notice to or consent by the holder of any subordinate lien on
the Mortgaged Property, any part of the security held for the Obligations
secured by this Mortgage without, as to


 


15

















 


the remainder of the security,
in any way impairing or affecting the lien of this Mortgage or the priority of
such lien over any subordinate lien or deed of trust.


 


28.                                 Governing
Law, etc.  This Mortgage shall be
governed by and construed and interpreted in accordance with the laws of the
State in which the Premises are located, except that Mortgagor expressly
acknowledges that by their respective terms the Loan Documents shall be
governed and construed in accordance with the laws of the State of New York,
without regard to the conflicts of laws principles thereof, and for purposes of
consistency, Mortgagor agrees that in any in personam proceeding related to
this Mortgage the rights of the parties to this Mortgage shall also be governed
by and construed in accordance with the laws of the State of New York governing
contracts made and to be performed in that State, without regard to the
conflicts of laws principles thereof.


 


29.                                 Certain
Definitions.  Unless the context
clearly indicates a contrary intent or unless otherwise specifically provided
herein, words used in this Mortgage shall be used interchangeably in singular
or plural form and the word “Mortgagor” shall mean “each Mortgagor or any
subsequent owner or owners of the Mortgaged Property or any part thereof or
interest therein,” the word “Mortgagee” shall mean “Mortgagee or any successor
Administrative Agent,” the word “person” shall include any individual,
corporation, partnership, limited liability company, trust, unincorporated
association, government, governmental authority, or other entity, and the words
“Mortgaged Property” shall include any portion of the Mortgaged Property or
interest therein.  Whenever the context
may require, any pronouns used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns and
pronouns shall include the plural and vice versa.  The captions in this Mortgage are for convenience
or reference only and in no way limit or amplify the provisions hereof.  The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase without limitation.


 


30.                                 Last
Dollars Secured; Priority.  This
Mortgage secures only a portion of the indebtedness owing or which may become
owing by the Mortgagor to the Secured Parties. 
The parties agree that any payments or repayments of such indebtedness
shall be and be deemed to be applied first to the portion of the indebtedness
that is not secured hereby, it being the parties’ intent that the portion of
the indebtedness last remaining unpaid shall be secured hereby.  If at any time this Mortgage shall secure
less than all of the principal amount of the Obligations, it is expressly
agreed that any repayments of the principal amount of the Obligations shall not
reduce the amount of the lien of this Mortgage until the lien amount shall
equal the principal amount of the Obligations outstanding.


 


31.                                 Release.  If any of the Mortgaged Property shall be
sold, transferred or otherwise disposed of by any Mortgagor in a transaction
permitted by the Credit Agreement, then the Mortgagee, at the request and sole
expense of such Mortgagor, shall execute and deliver to such Mortgagor all
releases or other documents reasonably necessary or desirable for the release
of the Liens created hereby on such Mortgaged Property.  The Mortgagor shall deliver to the Mortgagee,
at least 10 Business Days prior to the date of the proposed release, a written
request for release identifying the sale or other disposition in reasonable
detail, including the price thereof and any expenses in connection therewith,
together with a certification by the Mortgagor stating that such transaction is
in compliance with, and permitted by, the Credit Agreement and the other Loan
Documents.


 


16


 

















 


 


 


32.                                 Conflict
With Credit Agreement. In the event of any conflict or inconsistency
between the terms and provisions of this Mortgage and the terms and provisions
of the Credit Agreement, the terms and provisions of the Credit Agreement shall
govern, other than with respect to the section of this Mortgage captioned
“Governing Law, etc.”. By their execution of the Credit Agreement, each Lender
hereby agrees that it shall not have the right to institute any suit for
enforcement of any Note or any other Indebtedness secured by this Mortgage or
any other Security Document, if and to the extent that the institution or
prosecution thereof or the entry of judgment therein would, upon applicable
law, result in the surrender, impairment, waiver or loss of the Lien of this
Mortgage or any other Security Document or impede or delay the enforcement of
the Lien of this Mortgage or any other Security Document.


 


33.                                 Change
in Tax Law.  Upon the enactment of or
change in (including a change in interpretation of) any applicable law (i)
deducting or allowing Mortgagor to deduct from the value of the Mortgaged
Property for the purpose of taxation any lien or security interest thereon or
(ii) subjecting Mortgagee or any of the Lenders to any tax or changing the
basis of taxation of mortgages, deeds of trust, or other liens or debts secured
thereby, or the manner of collection of such taxes, in each such case, so as to
affect this Mortgage, the Obligations or Mortgagee, and the result is to
increase the taxes imposed upon or the cost to Mortgagee of maintaining the
Obligations, or to reduce the amount of any payments receivable hereunder,
then, and in any such event, Mortgagor shall, on demand, pay to Mortgagee and
the Lenders additional amounts to compensate for such increased costs or
reduced amounts, provided that if any such payment or reimbursement shall be
unlawful, or taxable to Mortgagee, or would constitute usury or render the
Obligations wholly or partially usurious under applicable law, then Mortgagor
shall pay or reimburse Mortgagee or the Lenders for payment of the lawful and
non-usurious portion thereof.


 


34.                                 Subrogation.
To the extent proceeds of the Loan have been used to extinguish, extend or
renew any indebtedness against the Mortgaged Property, then Mortgagee shall be
subrogated to all of the rights, liens and interests existing against the
Mortgaged Property and held by the holder of such indebtedness and such former
rights, liens and interests, if any, are not waived, but are continued in full
force and effect in favor of Mortgagee.


 


35.                                 Mortgagee
as Agent. Mortgagee has been appointed to act as Mortgagee hereunder by
Lenders and, by their acceptance of the benefits hereof, all other Secured
Parties. Mortgagee shall be obligated, and shall have the right hereunder, to
make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action (including the release or
substitution of Mortgaged Property), solely in accordance with this Mortgage
and the Credit Agreement; provided, Mortgagee shall exercise, or refrain from
exercising, any remedies provided for herein in accordance with the
instructions of Required Lenders to the extent required pursuant to the Credit
Agreement. In furtherance of the foregoing provisions of this Section, each
Secured Party, by its acceptance of the benefits hereof, agrees that it shall
have no right individually to realize upon any of the Mortgaged Property, it
being understood and agreed by such Secured Party that all rights and remedies
hereunder may be exercised solely by Mortgagee for the benefit of Lenders
and the other Secured Parties in accordance with the terms of this Section.
Mortgagee shall at all times be the same Person that is Collateral Agent under
the Credit Agreement. Written notice of resignation by Collateral Agent
pursuant to terms of the Credit Agreement shall also constitute notice of
resignation as Mortgagee under this Mortgage; removal of Collateral Agent
pursuant to the terms of the Credit


 


17

















 


Agreement shall also
constitute removal as Mortgagee under this Mortgage; and appointment of a
successor Collateral Agent pursuant to the terms of the Credit Agreement shall
also constitute appointment of a successor Mortgagee under this Mortgage. Upon
the acceptance of any appointment as Collateral Agent under the terms of the
Credit Agreement by a successor Collateral Agent, that successor Collateral
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Mortgagee under this Mortgage,
and the retiring or removed Mortgagee under this Mortgage shall promptly (i) transfer
to such successor Mortgagee all sums, securities and other items of Mortgaged
Property held hereunder, together with all records and other documents
necessary or appropriate in connection with the performance of the duties of
the successor Mortgagee under this Mortgage, and (ii) execute and deliver
to such successor Mortgagee such amendments to financing statements, and take
such other actions, as may be necessary or appropriate in connection with
the assignment to such successor Mortgagee of the security interests created
hereunder, whereupon such retiring or removed Mortgagee shall be discharged
from its duties and obligations under this Mortgage thereafter accruing. After
any retiring or removed Collateral Agent’s resignation or removal hereunder as
Mortgagee, the provisions of this Mortgage shall continue to enure to its
benefit as to any actions taken or omitted to be taken by it under this
Mortgage while it was Mortgagee hereunder.


 


36.                                 Intercreditor
Agreements. Notwithstanding anything to the contrary contained herein, the
lien and security interest granted to Mortgagee pursuant to this Mortgage and
the exercise of any right or remedy by Mortgagee hereunder are subject to the
provisions of the Intercreditor Agreement, which provide for, among other
items, the respective priority of the Term Obligations, the ABL Obligations and
the Euro MTN Obligations. In the event of any conflict between the terms and
provisions of the Intercreditor Agreement and the terms and provisions of this
Mortgage, the terms and provisions of the Intercreditor Agreement shall govern
and control.


 


37.                                 State
Specific Provisions. [To be added]


 


[SIGNATURE PAGE FOLLOWS]


 


18

















 


This Mortgage has been duly executed by the undersigned and is intended
to be effective as the date first above written.


 


 


	
   

  	
  [THE HERTZ CORPORATION],

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  



 


19

















 


	
  STATE OF

  	
  )

  
	
   

  	
  ) ss.:

  
	
  COUNTY OF

  	
  )

  



 


I certify that on
                      
      , 2005,
                                                                
personally came before me and this person acknowledged under oath, to my
satisfaction, that:


 


a.                                       this
person signed and delivered the attached document as
                                                      
of
                                                                      ,
the corporation named in this document; and


 


b.                                      this
document was signed and made by the corporation as its voluntary act and deed
by virtue of authority from its Board of Directors.


 


 


	
   

  	
   

  	
   

  
	
   

  	
  NOTARY
  PUBLIC

  
	
   

  	
  State
  of                       

  	
   

  
	
   

  	
  My
  Commission Expires:

  
				



 


[SEAL]


 


20

















 


Schedule A


 


Description of the Owned Land


 


i

















 


EXHIBIT D-1 TO


CREDIT
AGREEMENT


 


 


FORM OF OPINION OF DEBEVOISE & PLIMPTON LLP,

SPECIAL NEW YORK COUNSEL TO THE LOAN PARTIES


 


 


See Execution Version


 


D-1-1

















 


EXHIBIT D-2 TO

CREDIT AGREEMENT


 


FORM OF OPINION OF RICHARDS, LAYTON & FINGER, P.A.,

SPECIAL DELAWARE COUNSEL TO CERTAIN OF THE LOAN PARTIES


 


 


See Execution Version


 


D-2-1

















 


EXHIBIT D-3 TO

CREDIT AGREEMENT


 


FORM OF OPINION OF HAROLD ROLFE, GENERAL COUNSEL

OF THE PARENT BORROWER


 


 


See Execution Version


 


D-3-1

















 


EXHIBIT D-4 TO

CREDIT AGREEMENT


 


FORM OF OPINION OF TORYS, LLP, COUNSEL TO THE

CANADIAN BORROWERS


 


 


See Execution Version


 


D-4-1

















 


EXHIBIT E TO

CREDIT AGREEMENT


 


FORM OF U.S. TAX COMPLIANCE CERTIFICATE


 


Reference is made to the Loan(s) held by the undersigned pursuant to
the Credit Agreement (as amended, supplemented, waived or otherwise modified
from time to time, the “Credit Agreement”), dated as of December [    ],
2005, among HERTZ EQUIPMENT RENTAL CORPORATION, a Delaware corporation (“HERC”),
THE HERTZ CORPORATION, a Delaware corporation (the “Parent Borrower”),
the Canadian Borrowers (as defined in the Credit Agreement) (the Canadian
Borrowers together with HERC and the Parent Borrower, the “Borrowers”),
the several banks and other financial institutions from time to time parties
thereto (the “Lenders”), DEUTSCHE BANK AG, NEW YORK BRANCH, as administrative agent (the
“Administrative Agent”) and collateral agent for the Lenders, DEUTSCHE
BANK AG, CANADA BRANCH, as Canadian agent and Canadian collateral agent for the
Lenders, LEHMAN COMMERCIAL PAPER INC., as syndication agent, and MERRILL LYNCH &
CO., MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED, as documentation agent. The
undersigned hereby certifies under penalty of perjury that:


 


1.                                       The
undersigned is the sole record and beneficial owner of the Loan(s) (as well as
any Note(s) evidencing such Loan(s)) registered in its name;


 


2.                                       The
income from the Loan(s) held by the undersigned is not effectively connected
with the conduct of a trade or business within the United States;


 


3.                                       The
undersigned is not a bank (as such term is used in Section 881(c)(3)(A) of
the Internal Revenue Code of 1986, as amended (the “Code”)), is not
subject to regulatory or other legal requirements as a bank in any
jurisdiction, and has not been treated as a bank for purposes of any tax,
securities law or other filing or submission made to any governmental
authority, any application made to a rating agency or any qualification for any
exemption from any tax, securities law or other legal requirements;


 


4.                                       The
undersigned is not a 10-percent shareholder of the Borrowers within the meaning
of Section 871(h)(3)(B) of the Code; and


 


5.                                       The
undersigned is not a controlled foreign corporation receiving interest from a
related person within the meaning of Section 881(c)(3)(C) of the
Code.


 


We have furnished you with a certificate of
our non-U.S. person status on Internal Revenue Service Form W-8BEN. By
executing this certificate, the undersigned agrees that (1) if the
information provided on this certificate changes, the undersigned shall so
inform the Borrowers (for the benefit of the Borrowers and the
Administrative Agent) in writing within 30 days of such change and (2) the
undersigned shall furnish the


 


E-1

















 


Borrowers (for the benefit of the Borrowers and the Administrative
Agent), a properly completed and currently effective certificate in either the
calendar year in which payment is to be made by the Borrowers to the
undersigned, or in either of the two calendar years preceding such payment.


 


Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.


 


	
   

  	
  [NAME OF
  LENDER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  
	
   

  	
   

  
	
   

  	
  [Address]

  



 


 


Dated: 
                        ,
200  


 


E-2

















 


EXHIBIT F TO

CREDIT AGREEMENT


 


FORM OF ASSIGNMENT AND ACCEPTANCE


 


Reference is made to the Credit Agreement, dated as of December [    ],
2005 (as amended, supplemented, waived or otherwise modified from time to time,
the “Credit Agreement”), among HERTZ EQUIPMENT RENTAL CORPORATION, a
Delaware corporation (“HERC”), THE HERTZ CORPORATION, a Delaware
corporation (the “Parent Borrower”), the Canadian Borrowers (as defined
in the Credit Agreement) (the Canadian Borrowers together with HERC and the
Parent Borrower, the “Borrowers”), the several banks and other financial
institutions from time to time parties thereto (the “Lenders”), DEUTSCHE BANK AG, NEW YORK BRANCH, as
administrative agent (the “Administrative Agent”) and collateral agent
for the Lenders, DEUTSCHE BANK AG, CANADA BRANCH, as Canadian agent and
Canadian collateral agent for the Lenders, LEHMAN COMMERCIAL PAPER INC., as
syndication agent, and MERRILL LYNCH &
CO., MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED, as documentation agent. Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.


 


                                                    (the
“Assignor”) and
                                              
(the “Assignee”) agree as follows:


 


1.                                       The
Assignor hereby irrevocably sells and assigns to the Assignee without recourse
to the Assignor, and the Assignee hereby irrevocably purchases and assumes from
the Assignor without recourse to the Assignor, as of the Transfer Effective
Date (as defined below), an interest (the “Assigned Interest”) as set
forth in Schedule 1 in and to the Assignor’s rights and obligations under
the Credit Agreement and the other Loan Documents with respect to those credit
facilities provided for in the Credit Agreement as are set forth on Schedule 1
(individually, an “Assigned Facility”; collectively, the “Assigned
Facilities”), in a principal amount for each Assigned Facility as set forth
on Schedule 1.


 


2.                                       The
Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement, any other Loan Document or
any other instrument or document furnished pursuant thereto or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto, other than that it is the legal and beneficial
owner of the Assigned Interest and that it has not created any adverse claim
upon the interest being assigned by it hereunder and that such interest is free
and clear of any such adverse claim; (b) makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrowers, any of its Subsidiaries or any other obligor or the
performance or observance by the Borrowers, any of their Subsidiaries or any
other obligor of any of their respective obligations under the Credit
Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto or thereto; and (c) attaches the Note(s), if
any, held by it evidencing the Assigned Facilities [and requests that the
Administrative Agent exchange such Note(s) for a new Note or Notes payable to


 

















 


the Assignee and (if the Assignor has retained any interest in the
Assigned Facilities) a new Note or Notes payable to the Assignor in the
respective amounts which reflect the assignment being made hereby (and after
giving effect to any other assignments which have become effective on the
Transfer Effective Date)(1)].


 


3.                                       The
Assignee (a) represents and warrants that it is legally authorized to
enter into this Assignment and Acceptance; (b) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements referred to in subsection 5.1 thereof and such other documents
and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (c) agrees that
it will, independently and without reliance upon the Assignor, any Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes each applicable Agent to take such action as agent on its behalf
and to exercise such powers and discretion under the Credit Agreement, the
other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent and/or the
Canadian Agent by the terms thereof, together with such powers as are
incidental thereto; (e) hereby affirms the acknowledgements and
representations of such Assignee as a Lender contained in subsection 10.6
of the Credit Agreement [and confirms that it meets the requirements set forth
in subsection 11.6(b)(ii)(D) of the Credit Agreement]; and (f) agrees
that it will be bound by the provisions of the Credit Agreement and will perform in
accordance with the terms of the Credit Agreement all the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Lender, including its obligations pursuant to subsection 11.16 of the
Credit Agreement, and, if it is organized under the laws of a jurisdiction
outside the United States, its obligations pursuant to subsection 4.11(b) of
the Credit Agreement.


 


4.                                       The
effective date of this Assignment and Acceptance shall be
                 ,
20     (the “Transfer Effective Date”). Following
the execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for acceptance by it and recording by the Administrative
Agent pursuant to subsection 11.6 of the Credit Agreement, effective as of
the Transfer Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).


 


5.                                       Upon
such acceptance and recording, from and after the Transfer Effective Date, the
Administrative Agent and/or the Canadian Agent, as applicable, shall make all


 






(1)          Notes: should only be
requested when specifically required by the Assignee and/or the Assignor, as
the case may be.


 


F-2

















 


payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to the Transfer Effective Date or accrued subsequent
to the Transfer Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent and/or the
Canadian Agent, as applicable, for periods prior to the Transfer Effective Date
or with respect to the making of this assignment directly between themselves.


 


6.                                       From
and after the Transfer Effective Date, (a) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under
the other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement, but shall nevertheless continue to be entitled to the benefits of
subsections 4.10, 4.11, 4.12 and 11.5 thereof.


 


7.                                       Notwithstanding
any other provision hereof, if the consents of the Parent Borrower and the
Administrative Agent hereto are required under subsection 11.6 of the
Credit Agreement, this Assignment and Acceptance shall not be effective unless
such consents shall have been obtained.


 


8.                                       This
Assignment and Acceptance shall be governed by and construed in accordance with
the laws of the State of New York.


 


IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.


 


F-3

















 


SCHEDULE 1
to the

Assignment and Acceptance


 


Re: Credit Agreement, dated as of December [    ],
2005, among HERTZ EQUIPMENT RENTAL CORPORATION, a Delaware corporation, THE
HERTZ CORPORATION, a Delaware corporation, the Canadian Borrowers (as defined
in the Credit Agreement), the several banks and other financial institutions
from time to time parties thereto, DEUTSCHE BANK AG, NEW YORK
BRANCH, as
administrative agent and collateral agent, DEUTSCHE BANK AG, CANADA BRANCH, as
Canadian agent and Canadian collateral agent, LEHMAN COMMERCIAL PAPER INC., as
syndication agent, and MERRILL LYNCH &
CO., MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED, as documentation agent.


 


Name of Assignor:


 


Name of Assignee:


 


Transfer Effective Date
of Assignment:


 


	
  Credit Facility

  Assigned

  	
   

  	
  Aggregate Amount of

  Commitment/Loans

  under Credit

  Facility for all Lenders

  	
   

  	
  Amount of

  Commitment/Loans

  under Credit

  Facility Assigned

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
       .
                   %

  	
   

  	
  $

  



 


 


	
  [NAME OF ASSIGNEE]

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Name:

  
	
   

  	
  Title:

  	
   

  	
  Title:

  
						



 

















 


	
  Accepted for recording in the Register:

  	
  Consented To:

  
	
   

  	
   

  
	
  DEUTSCHE BANK AG, NEW YORK

  BRANCH

  	
  THE HERTZ CORPORATION

  
	
  By DB Services New Jersey, Inc.,

  	
  By:

  	
   

  	
   

  
	
  as Administrative Agent

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  DEUTSCHE BANK AG, NEW YORK

  
	
   

  	
  BRANCH,

  
	
   

  	
   

  	
   

  	
  By DB Services New Jersey, Inc.,

  
	
  By:

  	
   

  	
   

  	
  as Administrative Agent

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
								



 

















 


EXHIBIT G TO

CREDIT AGREEMENT


 


FORM OF SWING LINE LOAN PARTICIPATION CERTIFICATE


 


               
    , 200     


 


[Name of Lender]




 


Ladies and Gentlemen:


 


Pursuant to subsection 2.4
of the Credit Agreement, dated as of December [    ],
2005, among HERTZ EQUIPMENT RENTAL CORPORATION, a Delaware corporation (“HERC”),
THE HERTZ CORPORATION, a Delaware corporation (the “Parent Borrower”),
the Canadian Borrowers (as defined in the Credit Agreement) (the Canadian
Borrowers together with HERC and the Parent Borrower, the “Borrowers”),
the several banks and other financial institutions from time to time parties
thereto (the “Lenders”), DEUTSCHE
BANK AG, NEW YORK BRANCH, as administrative agent and collateral agent
for the Lenders, DEUTSCHE BANK AG, CANADA BRANCH, as Canadian agent and
Canadian collateral agent for the Lenders, LEHMAN COMMERCIAL PAPER INC., as
syndication agent, and MERRILL LYNCH &
CO., MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED, as documentation agent, the
undersigned hereby acknowledges receipt from you on the date hereof of        DOLLARS
($            ) as payment for a
participating interest in the following Swing Line Loan:


 


Date of Swing Line Loan:


 


Principal Amount of Swing Line Loan


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK AG, NEW YORK BRANCH,

  
	
   

  	
    as Swing Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
    Name:

  
	
   

  	
   

  	
    Title:

  



 


G-1

















 


EXHIBIT H TO

CREDIT AGREEMENT


 


FORM OF BORROWING CERTIFICATE


 


[HERTZ EQUIPMENT RENTAL EQUIPMENT]

[THE HERTZ CORPORATION]

[MATTHEWS EQUIPMENT LIMITED]

[WESTERN SHUT-DOWN (1995) LIMITED]


 


Pursuant to subsection 6.1(p) of the Credit Agreement, dated as of
December [    ], 2005 (the “Credit Agreement”;
terms defined therein being used herein as therein defined), among HERTZ
EQUIPMENT RENTAL CORPORATION, a Delaware corporation (“HERC”), THE HERTZ
CORPORATION, a Delaware corporation (the “Parent Borrower”), the
Canadian Borrowers (as defined in the Credit Agreement), the several banks and
other financial institutions from time to time parties thereto (the “Lenders”),
DEUTSCHE BANK AG,
NEW YORK BRANCH, as administrative agent and collateral agent for the
Lenders, DEUTSCHE BANK AG, CANADA BRANCH, as Canadian agent and Canadian
collateral agent for the Lenders, LEHMAN COMMERCIAL PAPER INC., as syndication
agent, and MERRILL LYNCH &
CO., MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED, as documentation agent, each
of the undersigned hereby certifies, on behalf of HERC and the Parent Borrower,
that:


 


1.                                       The
representations and warranties of HERC and the Parent Borrower set forth in the
Credit Agreement and in each of the other Loan Documents to which it is a party
or which are contained in any certificate furnished by or on behalf of HERC and
the Parent Borrower pursuant to the Credit Agreement or any of the other Loan Documents
are true and correct in all material respects on and as of the date hereof with
the same effect as if made on the date hereof except for representations and
warranties expressly stated to relate to a specific earlier date, in which case
such representations and warranties are true and correct in all material
respects as of such earlier date; and


 


2.                                       No
Default or Event of Default has occurred and is continuing as of the date
hereof or after giving effect to the Loans to be made on the date hereof and/or
the issuance of any Letters of Credit to be issued on the date hereof.


 

















 


IN WITNESS WHEREOF, the undersigned have hereunto set our names as of
the date set forth below.


 


	
  [HERTZ RENTAL EQUIPMENT

  CORPORATION]

  [THE HERTZ CORPORATION]

  [MATTHEWS EQUIPMENT LIMITED]

  [WESTERN SHUT-DOWN (1995) LIMITED]

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Date:                         
    , 20   


 


H-2

















 


EXHIBIT I TO

CREDIT AGREEMENT


 


[Reserved]


 

















 


EXHIBIT J TO

CREDIT AGREEMENT


 


FORM OF

CLOSING CERTIFICATE


 


Pursuant to subsection 6.1(k) of the Credit Agreement, dated as of
December [    ], 2005 (the “Credit Agreement”;
terms defined therein being used herein as therein defined), among HERTZ
EQUIPMENT RENTAL CORPORATION, a Delaware corporation (“HERC”), THE HERTZ
CORPORATION, a Delaware corporation (the “Parent Borrower”), the
Canadian Borrowers (as defined in the Credit Agreement) (the Canadian Borrowers
together with HERC and the Parent Borrower, the “Borrowers”), the
several banks and other financial institutions from time to time parties
thereto (the “Lenders”), DEUTSCHE BANK AG, NEW YORK BRANCH, as administrative agent and
collateral agent for the Lenders, DEUTSCHE BANK AG, CANADA BRANCH, as Canadian
agent and Canadian collateral agent for the Lenders, LEHMAN COMMERCIAL PAPER
INC., as syndication agent, and MERRILL
LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED, as documentation agent, the
undersigned [INSERT TITLE OF OFFICER] of [INSERT NAME OF LOAN PARTY] (the “Certifying
Loan Party”) hereby certifies as follows:


 


1.                                       is
the duly elected and qualified Corporate Secretary of the Certifying Loan Party
and the signature set forth for such officer below is such officer’s true and
genuine signature.


 


The undersigned Corporate Secretary of the Certifying Loan Party
certifies as follows:


 


2.                                       Attached
hereto as Annex 1 is a true and complete copy of resolutions duly
adopted by the [Board of Directors][Board of Directors* and the Executive
Committee] of the Certifying Loan Party on
                    ;
such resolutions have not in any way been amended, modified, revoked or
rescinded, have been in full force and effect since their adoption to and
including the date hereof and are now in full force and effect and are the only
corporate proceedings of the Certifying Loan Party now in force relating to or
affecting the matters referred to therein.


 


3.                                       Attached
hereto as Annex 2 is a true and complete copy of the By-Laws or the
equivalent organization document of the Certifying Loan Party as in effect on
the date hereof.


 


4.                                       Attached
hereto as Annex 3 is a true and complete copy of the Certificate of
Incorporation or the equivalent charter document of the Certifying Loan Party
as in effect on the date hereof.


 


5.                                       The
following persons are now duly elected and qualified officers of the Certifying
Loan Party holding the offices indicated next to their respective names below,
and the signatures appearing opposite their respective names below are the true
and genuine signatures of such officers, and each of such officers is duly
authorized to execute and deliver on behalf of the Certifying Loan Party each
of the Loan Documents to which it is a party and any certificate


 






*                 Attach general
authorizing resolutions with respect to the Executive Committee.


 

















 


or other document to be delivered by the Certifying Loan Party pursuant
to the Loan Documents to which it is a party:


 


	
  Name

  	
   

  	
  Office

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


J-2

















 


IN WITNESS WHEREOF, the undersigned have hereunto set our names as of
the date set forth below.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Name:

  
	
  Title:

  	
   

  	
  Title:    
  Corporate Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:
                                    ,
  2005

  	
   

  	
   

  



 


J-3

















 


ANNEX 1

to Exhibit J


 


[Board Resolutions]


 

















 


ANNEX 2

to Exhibit J


 


[By-Laws]


 

















 


ANNEX 3

to Exhibit J


 


[Certificate of Incorporation]


 

















 


EXHIBIT K TO

CREDIT AGREEMENT


 


FORM OF L/C REQUEST


 


Dated
      (2)


 


Deutsche Bank AG, New York
Branch [or name of other Issuing Lender,] as Issuing Lender, and Deutsche Bank
AG, New York Branch, as Administrative Agent, under the Credit Agreement, dated
as of December [    ], 2005 (as amended, amended and
restated, modified or supplemented from time to time, the “Credit Agreement”),
among Hertz Equipment Rental Corporation, a Delaware corporation (“HERC”),
The Hertz Corporation, a Delaware corporation (the “Parent Borrower”),
the Canadian Borrowers (as defined in the Credit Agreement) (the Canadian Borrowers
together with HERC and the Parent Borrower, the “Borrowers”), the
several banks and other financial institutions from time to time parties
thereto (the “Lenders”), Deutsche Bank AG, New York Branch, as
administrative agent and collateral agent for the Lenders, Deutsche Bank AG,
Canadian Branch, as Canadian agent and Canadian collateral agent for the
Lenders, Lehman Commercial Paper Inc., as syndication agent, and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner and Smith Incorporated, as documentation agent. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement.


 


 


 


Attention:


 


Letter of Credit Issuer: 
    (3)


 


[with a copy to:

                                            

                                            

Attention: 
                          ](4)


 






(2)          Date of L/C Request.


 


(3)          For Standby Letters of
Credit insert Deutsche Bank AG, New York Branch, Global Loan Operations,
Standby L/C Unit, 60 Wall Street, New York, New York 10005, MS NYC 60-3812. For
Trade Letters of Credit insert Deutsche Bank AG, New York Branch, Trade and
Risk Services, 60 Wall Street, New York, NY 10005, MS NYC60-2517. In the event
the L/C is to be issued by an affiliate of Deutsche Bank AG, New York Branch,
insert name and address of applicable affiliate.


 


(4)          Insert name and address
of Issuing Lender in the case of a L/C Request to any Issuing Lender other than
Deutsche Bank AG, New York Branch.


 


K-1

















 


Ladies and Gentlemen:


 


Pursuant to subsection 3.2 of the Credit
Agreement, we hereby request that the Issuing Lender referred to above issue a
[Commercial] [Standby] L/C for the account of the undersigned on
      (5)      (the “Date
of Issuance”) in the aggregate Stated Amount of
      (6)      .
The requested L/C shall be denominated in
[        (7)         ].


 


For purposes of this L/C Request, unless otherwise
defined herein, all capitalized terms used herein which are defined in the Credit
Agreement shall have the respective meanings provided therein.


 


The beneficiary of the requested L/C will be
      (8)      ,
and such L/C will be in support of
      (9)       and
will have a stated expiration date of
      (10)      .


 


We hereby certify that:


 


(A)          the representations
and warranties contained in the Credit Agreement or the other Loan Documents
are true and correct in all material respects on the date hereof except to the
extent such representations and warranties relate to a specific earlier date,
in which case such representations and warranties were true and correct in all
material respects as of such earlier date; and


 


(B)           no Default or Event
of Default has occurred and is continuing nor, immediately after giving effect
to the issuance of the L/C requested hereby, would such a Default or Event of
Default occur.


 


Copies of all documentation with respect to the supported transaction
are attached hereto.


 


 


	
   

  	
  [HERTZ
  EQUIPMENT RENTAL CORPORATION]

  
	
   

  	
  [THE HERTZ
  CORPORATION]

  
	
   

  	
  [MATTHEWS
  EQUIPMENT LIMITED]

  
	
   

  	
  [WESTERN
  SHUT-DOWN (1995) LIMITED]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 






(5)          Date of issuance which
shall be (x) a Business Day and (y) at least three days from the date hereof
(or such shorter period as is acceptable to the respective Issuing Lender in
any given case).


 


(6)          Insert aggregate Stated
Amount (in currency specified in footnote 7).


 


(7)          Insert applicable
Designated Foreign Currency or Dollars (or Canadian Dollars in the case of the
Canadian Borrowers).


 


(8)          Insert name and address
of beneficiary.


 


(9)          Insert a description of
relevant obligations.


 


(10)    Insert the last date upon
which drafts may be presented which, unless otherwise agreed by the
Administrative Agent, may not be later than the earlier of (A) one
year after its date of issuance and (B) the 10th day prior to the
Termination Date, in the case of Standby Letters of Credit, or (A) 180
days after its date of issuance and (B) the 30th day prior to the
Termination Date, in the case of Commercial Letters of Credit.


 


K-2

















 


EXHIBIT L TO

CREDIT AGREEMENT


 


FORM OF JOINDER AGREEMENT


 


THIS JOINDER AGREEMENT, dated
as of
[                    
    , 200  ] (this “Agreement”), by and among [Additional Commitment Lenders]
(each an “Additional Commitment
Lender” and collectively the “Additional
Commitment Lenders”), HERTZ EQUIPMENT RENTAL CORPORATION, a Delaware
corporation (“HERC”) MATTHEWS EQUIPMENT LIMITED, a corporation organized
under the laws of Canada (“Mathews”) WESTERN SHUT-DOWN (1995) LIMITED, a
corporation organized under the laws of Canada] (“Western”, together
with Matthews, the Canadian Borrowers), THE HERTZ CORPORATION, a Delaware
corporation (the “Parent Borrower”, together with HERC and the Canadian
Borrowers, the “Borrowers”), DEUTSCHE BANK AG, NEW YORK BRANCH, as
Administrative Agent, and DEUTSCHE BANK AG, CANADA BRANCH, as Canadian Agent.


 


RECITALS:


 


WHEREAS, reference is hereby made to the Credit Agreement, dated as of December [    ],
2005 (the “Credit Agreement”; terms defined therein being used herein as
therein defined), among the Borrowers, the SEVERAL banks and other financial institutions from
time to time parties thereto (the “Lenders”), DEUTSCHE BANK AG, NEW YORK
BRANCH, as administrative agent and collateral agent for the Lenders (the “Administrative
Agent”), DEUTSCHE BANK AG, CANADA BRANCH, as Canadian agent and Canadian
collateral agent for the Lenders (the “Canadian Agent”), LEHMAN
COMMERCIAL PAPER INC., as syndication agent, and MERRILL
LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER AND SMITH INCORPORATED, as documentation agent; and


 


WHEREAS, subject to the terms and conditions of the
Credit Agreement, (i) the Canadian Borrowers may increase the
Canadian Facility Revolving Credit Loan Commitments and (ii) HERC and the
Parent Borrower (together, “U.S. Borrowers”) may increase the U.S.
Facility Revolving Credit Loan Commitments, by entering into one or more
Joinder Agreements with the Additional Commitment Lenders.


 


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


 


Each Additional Commitment Lender party hereto hereby agrees to commit
to provide its respective Commitment Increase as set forth on Schedule A annexed
hereto, on the terms and subject to the conditions set forth below:


 


Each
Additional Commitment Lender (i) confirms that it has received a copy of
the Credit Agreement and the other Loan Documents, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Joinder Agreement (this “Agreement”); (ii) agrees that it will, independently
and without reliance upon the Canadian Agent or the Administrative Agent, as
applicable, or any other Lender or Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints
and authorizes the Canadian Agent or the Administrative Agent, as applicable,
to take such action as agent on its behalf and to exercise such powers under
the Credit Agreement and the other Loan Documents as are delegated to the
Canadian Agent or the Administrative Agent, as the case may be, by the
terms thereof, together with such powers as are reasonably incidental thereto;
and (iv) agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the Credit Agreement are required
to be performed by it as a Lender.


 


L-1

















 


Each
Additional Commitment Lender hereby agrees to make its Commitment on the
following terms and conditions:


 


1.                                       Other Fees. The applicable Borrowers agree to pay each Additional
Commitment Lender its pro rata share of an aggregate fee equal to
[                
    ,         ] on
[                  
    ,         ].


 


2.                                       Additional Commitment Lenders. Each Additional Commitment Lender
acknowledges and agrees that upon its execution of this Agreement that such
Additional Commitment Lender shall become a “Lender” under, and for all
purposes of, the Credit Agreement and the other Loan Documents, and shall be
subject to and bound by the terms thereof, and shall perform all the
obligations of and shall have all rights of a Lender thereunder.


 


3.                                       Credit Agreement Governs. Except as set forth in this Agreement,
Commitment Increases shall otherwise be subject to the provisions of the Credit
Agreement and the other Loan Documents.


 


4.                                       Parent Borrower’s Certifications. By its execution of this Agreement, the
undersigned officer of the Parent Borrower, to the best of his or her
knowledge, hereby certifies that:


 


i.                                         The
representations and warranties of the Parent Borrower set forth in the Credit
Agreement and in each of the other Loan Documents to which it is a party or
which are contained in any certificate furnished by or on behalf of the Parent
Borrower pursuant to the Credit Agreement or any of the other Loan Documents to which
it is a party are true and correct in all material respects on and as of the
date hereof, with the same effect as if made on the date hereof except for
representations and warranties expressly stated to relate to a specific earlier
date, in which case such representations and warranties are true and correct in
all material respects as of such earlier date; and


 


ii.                                      No Default or Event of
Default has occurred and is continuing as of the date hereof or after giving
effect to the Loans to be made on the date hereof and/or the issuance of any
Letters of Credit to be issued on the date hereof.


 


5.                                       Borrower Covenants. By its execution of this Agreement, the
applicable Borrower hereby covenants that:


 


i.                                         The applicable Borrowers shall
deliver or cause to be delivered the following legal opinions and documents:
[                      ],
together with all other legal opinions and other documents reasonably requested
by the Canadian Agent or the Administrative Agent, as applicable, in connection
with this Agreement; and


 


[ii.                                 Set forth on the attached
Borrowing Certificate are the calculations (in reasonable detail) demonstrating
compliance with the financial tests described in Section 8.1 of the Credit
Agreement.]


 


6.                                       Notice. For purposes of the Credit Agreement, the
initial notice address of each Additional Commitment Lender shall be as set
forth below its signature below.


 


7.                                       Non-US Lenders. For each Additional Commitment Lender that
is a non-U.S. Lender, delivered herewith to the Administrative Agent are such
forms, certificates or other evidence with respect to United States federal
income tax withholding matters as such Additional Commitment Lender may be
required to deliver to Administrative Agent pursuant to subsection 4.11(b) of
the Credit Agreement.


 


L-2

















 


8.                                       Recordation of the New Loans. Upon execution and delivery hereof, the
Administrative Agent will record the Commitment Increase made by the Additional
Commitment Lender in the Register.


 


9.                                       Amendment, Modification and
Waiver. This Agreement
may not be amended, modified or waived except by an instrument or
instruments in writing signed and delivered on behalf of each of the parties
hereto.


 


10.                                 Entire Agreement. This Agreement, the Credit Agreement
and  the other Loan Documents constitute
the entire agreement among the parties with respect to the subject matter
hereof and thereof and supersede all other prior agreements and understandings,
both written and verbal, among the parties or any of them with respect to the
subject matter hereof.


 


11.                                 GOVERNING LAW. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.


 


12.                                 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.


 


13.                                 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.


 


L-3

















 


IN WITNESS WHEREOF,
each of the undersigned has caused its duly authorized officer to execute and
deliver this Joinder Agreement as of
[                          ,
            ].


 


	
   

  	
  [NAME OF
  ADDITIONAL COMMITMENT LENDER]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  
	
   

  	
  Telephone:

  
	
   

  	
  Facsimile:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HERTZ
  EQUIPMENT RENTAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE HERTZ
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MATTHEWS
  EQUIPMENT LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WESTERN
  SHUT-DOWN (1995) LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


L-4

















 


	
   

  	
  DEUTSCHE
  BANK AG, CANADA BRANCH, as Canadian

  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE
  BANK AG, NEW YORK BRANCH, as

  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


L-5

















 


EXHIBIT M


 


FORM OF


 


BORROWING BASE CERTIFICATE


 


As of the last day of the [calendar month] ending
                          
          , 200  
(the “Determination Date”)


 


I,
                                          ,
the
                                  
of The Hertz Corporation, a Delaware
Corporation (the “Hertz Borrower Representative”) and I,
                                          ,
the
                                  
of Hertz Equipment Rental Corporation, a
Delaware Corporation (the “HERC Borrower Representative” and collectively with
the Hertz Borrower Representative, the “Borrower Representatives”), each hereby
certify to the Agents in my representative capacity on behalf of the Borrower
Representatives and the other Loan Parties and not in my individual capacity
that, to the best of my knowledge and belief, with respect to that certain
Credit Agreement dated as December [    
] among the financial institutions from time to time parties thereto
(such financial institutions, together with their respective successors and
permitted assigns, are referred to each individually as a “Lender” and
collectively as the “Lenders”), Deutsche Bank AG, New York Branch, as
administrative agent and collateral agent (the “Administrative Agent”),
Deutsche Bank AG, Canada Branch, as Canadian agent and Canadian collateral
agent (together with the Administrative Agent, the “Agents”) the other agents
party thereto, the Borrower Representatives, and each of the Borrower
Representatives’ Subsidiaries identified on the signature pages thereof as
borrowers (such Subsidiaries are referred to hereinafter each individually as a
“Borrower”, and individually and collectively, jointly and severally, as the
“Borrowers”) (including all annexes, exhibits and schedules thereto and as amended,
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”; capitalized terms that are not defined herein have the meanings
ascribed to such terms in the Credit Agreement).


 


With reference to this
Borrowing Base Certificate, each Borrower Representative hereby certifies that
the statements and calculations of the Aggregate Borrowing Base, the U.S.
Borrowing Base and the Canadian Borrowing Base set forth collectively on Annex A hereto (and the schedules
attached thereto) are true and correct as of the Determination Date and that
such calculations have been made in accordance with the requirements of the
Credit Agreement.


 


[SIGNATURE PAGE TO FOLLOW]


 

















 


IN WITNESS WHEREOF, the undersigned has caused this
Borrowing Base Certificate to be executed and delivered on the
       day of
                  ,
200    .


 


	
   

  	
  THE HERTZ
  CORPORATION,

  
	
   

  	
  as Hertz
  Borrower Representative

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HERTZ
  EQUIPMENT RENTAL

  CORPORATION,

  
	
   

  	
  as HERC
  Borrower Representative

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 

















 


Annex A


 


1. Gross Borrowing Base Formula Amount


 


	
   

  	
   

  	
  United States

  	
   

  	
  Canada

  	
   

  	
  Total

  	
   

  
	
  A.
  Available Borrowing Base

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B. Less
  Revolving Exposure Loans Letters of Credit

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.
  Excess Availability

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
  $

  	
   

  



 


2. U.S. Borrowing Base Formula Amount


 


	
  A.            Gross U.S. Accounts

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  B.            Less Total U.S.
  Ineligible Accounts (Schedule I)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  C.            Total U.S. Eligible
  Accounts (Line A less Line B)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  D.            Line C Multiplied by
  85%

  	
   

  	
  $

  	
   

  



 

















 


	
  E.              Total Eligible
  U.S. Unbilled Accounts

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  F.              Line E Multiplied
  by 50% (not to exceed 50% of the amount calculated in line D above)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  G.            1.              Net Book Value of
  the U.S. Rental Equipment  

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.              Less: Ineligible Equipment
  (Schedule III)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.              Eligible U.S.
  Rental Equipment (Schedule III)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  H.            Equipment Advance
  Rate (Schedule V)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  I.                 Line G.3
  Multiplied by Line H

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  J.              Amount of
  Availability Reserves related to the U.S. Facility

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  K.            Total Borrowing Base
  (D+F+I-J)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  L.             Available Borrowing
  Base (Lesser of K or Total Commitments)

  	
   

  	
  $

  	
   

  



 

















 


3. Canadian  Borrowing Base
Formula Amount


 


	
  A.            Gross Canadian
  Accounts

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  B.            Less Total Canadian
  Ineligible Accounts (Schedule II)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  C.            Total Canadian
  Eligible Accounts (Line A less Line B)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  D.            Line C Multiplied by
  85%

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  E.              Total Eligible
  Canadian Unbilled Accounts

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  F.              Line E Multiplied
  by 50% (not to exceed 50% of the amount calculated in line D above)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  G.            1.              Net Book Value of
  the Canadian Rental Equipment

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.              Less: Ineligible
  Equipment (Schedule IV)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.              Eligible Canadian
  Rental Equipment (Schedule IV)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  H.            Equipment Advance
  Rate (Schedule VI)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  I.                 Line G.3
  Multiplied by Line H

  	
   

  	
  $

  	
   

  



 

















 


	
  J.              Amount of
  Availability Reserves related to the Canadian Facility

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  K.            Total Borrowing Base
  (D+F+I-J)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  L.             Available Borrowing
  Base (Lesser of K or Total Commitments)

  	
   

  	
  $

  	
   

  



 

















 


Schedule I


 


1. Calculation of Ineligible U.S. Accounts


 


Amounts with respect to Ineligible U.S.
Accounts are set forth below with reference to the same lettered clause of the
definition of Eligible U.S. Accounts in the Credit Agreement


 


	
  (a)          Preamble—customer deposits or unapplied
  cash

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (b)         U.S. Accounts 90 days past original invoice date, but excluding up to
  $[15,000,000] of extended terms Accounts up to 120 days past the invoice
  date)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (c)          50% cross-age

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (d)         credit balances greater than 90 days past invoice date

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (e)          Account Debtor is (i) an Affiliate or (ii) an
  employee or agent

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (f)            Accounts arising from consignment or
  guaranteed sale, a sale or return, a sale on approval, a bill and hold, or
  any other conditional sale

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (g)         U.S. Accounts that are not payable in Dollars (other than Canadian
  Accounts payable in Canadian Dollars)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (h)         Non-U.S. or Canadian Accounts unless supported by an irrevocable
  letter of credit or covered by credit insurance

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (i)             Government accounts receivable other than
  the United States and Canada, or of any state, province, municipality, or
  other political subdivision thereof, or of any department, agency, public
  corporation, or other instrumentality thereof (unless supported by an
  irrevocable letter of credit, or covered by credit insurance)

  	
   

  	
  $

  	
   

  



 

















 


	
  (j)             Accounts arising from (i) the federal
  government of Canada or any department, agency or instrumentality of Canada
  or (ii) the federal government of the United States or any department,
  agency or instrumentality of the United States or any department, agency, or
  instrumentality unless complied with the Financial Administration Act
  (Canada), or the Assignment of Claims Act

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (k)          U.S. Accounts with respect to which the
  Account Debtor is a creditor, has asserted a right of setoff, or disputed
  payment, to the extent of such claim, right of setoff, or dispute, subject to
  a rebate that has been earned but not taken or a chargeback, to the extent of
  such rebate or chargeback, and service charges or finance charges

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (l)             Concentrations greater than 10%, to the
  extent of such excess

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (m)       Account Debtor is insolvent or is out of business

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (n)         Account Debtor is located in a state that requires certain actions, unless
  taken

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (o)         collection believed to be doubtful by reason of the Account Debtor’s
  financial condition

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (p)         not subject to a valid and perfected first priority Lien

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (q)         goods not shipped and billed to the Account Debtor, or services not
  performed and billed, or

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (r)            progress payments or other advance billings

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Ineligible U.S. Accounts

  	
   

  	
  $

  	
   

  



 

















 


Schedule II


 


1. Calculation
of Ineligible Canadian Accounts


 


Amounts with respect to Ineligible Canadian
Accounts are set forth below with reference to the same lettered clause of the
definition of Eligible Canadian Accounts in the Credit Agreement


 


	
  (a)          Preamble—customer deposits or unapplied
  cash

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (b)         Canadian Accounts 90
  days past original invoice date, but excluding up to $[15,000,000] of
  extended terms Accounts up to 120 days past the invoice date)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (c)          50% cross-age

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (d)         credit balances greater than 90 days past invoice date

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (e)          Account Debtor is
  (i) an Affiliate or (ii) an employee or agent

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (f)            Accounts arising from consignment or
  guaranteed sale, a sale or return, a sale on approval, a bill and hold, or
  any other conditional sale

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (g)         Canadian Accounts that are not payable in Dollars (other than
  Canadian Accounts payable in Canadian Dollars)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (h)         Non-U.S. or Canadian Accounts unless supported by an irrevocable
  letter of credit or covered by credit insurance

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (i)             Government accounts receivable other than
  the United States and Canada, or of any state, province, municipality, or
  other political subdivision thereof, or of any department, agency, public
  corporation, or other instrumentality thereof (unless supported by an
  irrevocable letter of credit, or covered by credit insurance)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (j)             Accounts arising from (i) the federal government of Canada
  or any department, agency or instrumentality of Canada or (ii) the
  federal government of the United States or any department, agency or
  instrumentality of the United States or any department, agency, or
  instrumentality unless complied with the Financial Administration Act
  (Canada), or the Assignment of Claims Act

  	
   

  	
  $

  	
   

  



 

















 


	
  (k)          Canadian Accounts with respect to which the
  Account Debtor is a creditor, has asserted a right of setoff, or disputed
  payment, to the extent of such claim, right of setoff, or dispute, subject to
  a rebate that has been earned but not taken or a chargeback, to the extent of
  such rebate or chargeback, and service charges or finance charges

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (l)             Concentrations
  greater than 10%, to the extent of such excess

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (m)       Account Debtor is insolvent or is out of business

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (n)         Account Debtor is located in a state that
  requires certain actions, unless taken

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (o)         collection believed to be doubtful by
  reason of the Account Debtor’s financial condition

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (p)         not subject to a valid and perfected first
  priority Lien

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (q)         goods not shipped and billed to the Account Debtor, or services not
  performed and billed, or

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (r)            progress payments
  or other advance billings

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Ineligible Canadian Accounts

  	
   

  	
  $

  	
   

  



 

















 


Schedule III


 


1. Calculation of “Net Book Value” of  Eligible U.S. Rental Equipment:


 


Amounts with respect to Ineligible U.S.
Rental Equipment are set forth below with reference to the same lettered clause
of the definition of Eligible Rental Equipment in the Credit Agreement


 


	
  (a)          Preamble—unrecorded rebates

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (b)         U.S. Loan Party does not have good, valid,
  and marketable title

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (c)          Equipment not

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  i.                  located at one of the locations in the
  continental United States or Canada set forth on Schedule D of the
  Credit Agreement, or 

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ii.               on lease with a customer

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (d)         not subject to a valid and perfected first priority Lien

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (e)          goods rejected by customers

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (f)            obsolete, unmerchantable or slow moving,
  work-in-progress, raw materials, or goods that constitute spare parts,
  packaging and shipping materials, supplies or bill and hold goods

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (g)         Less goods that are damaged or defective (excluding up to
  $[20,000,000] damaged but repairable)

  	
   

  	
  $

  	
   

  



 

















 


	
  (h)         Equipment not available to rent to
  customers

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (i)             U.S. Rental Equipment represented by a
  certificate of title unless registered with the applicable Governmental
  Authority showing “Deutsche Bank AG, New York Branch, as Collateral Agent” as
  the sole lienholder thereon.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Ineligible U.S. Rental Equipment

  	
   

  	
  $

  	
   

  



 

















 


Schedule IV


 


1. Calculation of “Net Book
Value” of  Eligible Canadian Rental
Equipment:


 


Amounts with respect to Ineligible Canadian
Rental Equipment are set forth below with reference to the same lettered clause
of the definition of Eligible Rental Equipment in the Credit Agreement


 


	
  (a)          Preamble—unrecorded rebates

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (b)         Canadian Loan Party does not have good,
  valid, and marketable title

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (c)          Equipment not

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  iii.            located at one of the locations in the
  continental United States or Canada set forth on Schedule D of the
  Credit Agreement, or

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  iv.           on lease with a customer

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (d)         not subject to a valid and perfected first priority Lien

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (e)          goods rejected by customers

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (f)            obsolete, unmerchantable or slow moving,
  work-in-progress, raw materials, or goods that constitute spare parts,
  packaging and shipping materials, supplies or bill and hold goods

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (g)         Less goods that are damaged or defective (excluding up to
  $[20,000,000] damaged but repairable)

  	
   

  	
  $

  	
   

  



 

















 


	
  (h)         Equipment not available to rent to customers

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (i)             Canadian Rental Equipment represented by a
  certificate of title unless registered with the applicable Governmental
  Authority showing “Deutsche Bank AG, New York Branch, as Collateral Agent” as
  the sole lienholder thereon.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Ineligible Canadian Rental Equipment

  	
   

  	
  $

  	
   

  



 

















 


Schedule V


 


1. Calculation of  “Net
Orderly Liquidation Value” of Eligible Rental Equipment:


 


	
  (a)          The net orderly
  liquidation value of the Loan Parties’ Eligible Rental Equipment as of the
  most recent appraisal
  dated           

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (b)         80% of (a)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (c)          Net Book Value of
  Appraised Equipment as of the most recent appraisal dated

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (d)         (b) divided by (c)

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  (e)          Equipment Advance
  Rate (lesser
  of (d) and (80%))

  	
   

  	
  $

  	
   

  



 

















 


Schedule VI


 


1. Calculation of  “Net
Orderly Liquidation Value” of Eligible Canadian Rental Equipment:


 


	
  (f)            The net orderly
  liquidation value of the Loan Parties’ Eligible Canadian Rental Equipment as
  of the most recent appraisal
  dated          

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (g)         80% of (a)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (h)         Net Book Value of Appraised Equipment as of
  the most recent appraisal dated

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  (i)             (b) divided
  by (c)

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  (j)             Equipment Advance
  Rate (lesser
  of (d) and (80%))

  	
   

  	
  $