Exhibit 4.5.1


 




 





 


Dated 21 December 2005


 


SENIOR BRIDGE FACILITIES AGREEMENT

(IN RELATION TO
FACILITIES A1, A2 AND C)


 


among


 


HERTZ INTERNATIONAL, LTD.

as Parent


 


THE ORIGINAL BORROWERS


 


THE ORIGINAL GUARANTORS


 


HERTZ EUROPE LIMITED


as Coordinator


 


BNP PARIBAS


and


THE ROYAL BANK OF SCOTLAND PLC

as Mandated Lead
Arrangers


 


CALYON

as Co-Arranger


 


BNP PARIBAS,

THE ROYAL BANK OF SCOTLAND PLC


and


CALYON

as Joint
Bookrunners


 


BNP PARIBAS

as Facility Agent


 


BNP PARIBAS

as Security Agent


 


BNP PARIBAS

as Global Coordinator


 


THE FINANCIAL INSTITUTIONS

NAMED HEREIN

as Banks


 




 





 




5 Old Broad Street

London EC2N 1DW


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
  1.

  	
  DEFINITIONS
  AND INTERPRETATION

  	
  1

  
	
   

  	
  1.1

  	
  Definitions

  	
  1

  
	
   

  	
  1.2

  	
  Interpretation

  	
  100

  
	
   

  	
  1.3

  	
  Australian
  Borrowers

  	
  103

  
	
   

  	
  1.4

  	
  Facility
  Agent

  	
  104

  
	
   

  	
  1.5

  	
  Currency
  Symbols

  	
  104

  
	
   

  	
  1.6

  	
  Agreements
  and Statutes

  	
  104

  
	
   

  	
  1.7

  	
  Headings

  	
  104

  
	
   

  	
  1.8

  	
  Time

  	
  104

  
	
   

  	
  1.9

  	
  Singular and
  Plural

  	
  104

  
	
   

  	
  1.10

  	
  Third Party
  Rights

  	
  104

  
	
   

  	
  1.11

  	
  Calculations

  	
  105

  
	
   

  	
  1.12

  	
  New York Law

  	
  105

  
	
   

  	
  1.13

  	
  Limited
  Recourse – Australian Orphan SPV

  	
  105

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  THE
  FACILITIES

  	
  106

  
	
   

  	
  2.1

  	
  Grant of the
  Facilities

  	
  106

  
	
   

  	
  2.2

  	
  Purpose and
  Application of each A Facility

  	
  108

  
	
   

  	
  2.3

  	
  Purpose and
  Application of C Facility

  	
  109

  
	
   

  	
  2.4

  	
  Professional
  Market Party Representation

  	
  109

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  CONDITIONS
  PRECEDENT

  	
  110

  
	
   

  	
  3.1

  	
  Initial
  Conditions Precedent

  	
  110

  
	
   

  	
  3.2

  	
  Additional
  Conditions Precedent

  	
  110

  
	
   

  	
  3.3

  	
  General
  Conditions Subsequent

  	
  110

  
	
   

  	
  3.4

  	
  Several
  Obligations

  	
  111

  
	
   

  	
  3.5

  	
  Several
  Rights

  	
  112

  
	
   

  	
  3.6

  	
  Coordinator

  	
  112

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  UTILISATION
  OF THE FACILITIES

  	
  112

  
	
   

  	
  4.1

  	
  Utilisation
  Conditions

  	
  112

  
	
   

  	
  4.2

  	
  Certain
  Funds Conditions

  	
  116

  
	
   

  	
  4.3

  	
  Delivery of
  an Asset Report for Letters of Credit

  	
  116

  
	
   

  	
  4.4

  	
  Completion
  of Letters of Credit

  	
  117

  
	
   

  	
  4.5

  	
  Renewal of a
  Letter of Credit

  	
  117

  



 


i

















 


	
   

  	
  4.6

  	
  Each Bank’s
  Participation in Advances

  	
  117

  
	
   

  	
  4.7

  	
  Restrictions
  on Participation in Letters of Credit

  	
  117

  
	
   

  	
  4.8

  	
  Canadian
  Advances

  	
  118

  
	
   

  	
  4.9

  	
  Reduction of
  Available Commitment

  	
  119

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  UTILISATION
  OF THE SWINGLINE FACILITIES

  	
  119

  
	
   

  	
  5.1

  	
  General

  	
  119

  
	
   

  	
  5.2

  	
  Delivery of
  a Utilisation Notice for Swingline Advances

  	
  119

  
	
   

  	
  5.3

  	
  Completion
  of a Utilisation Notice for Swingline Advances

  	
  120

  
	
   

  	
  5.4

  	
  Swingline
  Banks’ Participation

  	
  122

  
	
   

  	
  5.5

  	
  Relationship
  with the Other Facilities

  	
  124

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  SWINGLINE
  ADVANCES

  	
  124

  
	
   

  	
  6.1

  	
  Swingline

  	
  124

  
	
   

  	
  6.2

  	
  Purpose

  	
  125

  
	
   

  	
  6.3

  	
  Swingline
  Agent

  	
  125

  
	
   

  	
  6.4

  	
  Conditions
  of assignment or transfer

  	
  125

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  LETTER OF
  CREDIT COMMISSION, L/C ISSUER FEE AND COSTS AND EXPENSES

  	
  126

  
	
   

  	
  7.1

  	
  Letter of
  Credit Commission

  	
  126

  
	
   

  	
  7.2

  	
  L/C Issuer
  Fee

  	
  126

  
	
   

  	
  7.3

  	
  Costs and
  Expenses

  	
  126

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  PAYMENT AND
  CALCULATION OF INTEREST

  	
  126

  
	
   

  	
  8.1

  	
  Payment of
  Interest

  	
  126

  
	
   

  	
  8.2

  	
  Calculation
  of Interest

  	
  126

  
	
   

  	
  8.3

  	
  Effective
  Global Rate (Taux Effectif Global)

  	
  127

  
	
   

  	
  8.4

  	
  Italian Law
  Interest Cap

  	
  127

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  MARKET
  DISRUPTION AND ALTERNATIVE INTEREST RATES

  	
  127

  
	
   

  	
  9.1

  	
  Market
  Disruption

  	
  127

  
	
   

  	
  9.2

  	
  Substitute
  Interest Period and Interest Rate

  	
  128

  
	
   

  	
  9.3

  	
  Alternative
  Rate

  	
  128

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  NOTIFICATION

  	
  129

  
	
   

  	
  10.1

  	
  Advances and
  Letters of Credit

  	
  129

  
	
   

  	
  10.2

  	
  Interest
  Rate Determination

  	
  129

  
	
   

  	
  10.3

  	
  Demands
  under Letters of Credit

  	
  130

  
	
   

  	
  10.4

  	
  Changes to
  Interest Rates

  	
  130

  
	
   

  	
  10.5

  	
  Netting of
  Advances

  	
  130

  



 


ii

















 


	
  11.

  	
  REPAYMENT OF
  ADVANCES

  	
  130

  
	
   

  	
   

  	
   

  
	
  12.

  	
  C BORROWER’S
  LIABILITIES IN RELATION TO LETTERS OF CREDIT

  	
  131

  
	
   

  	
  12.1

  	
  C Borrower’s
  Indemnity to L/C Issuers

  	
  131

  
	
   

  	
  12.2

  	
  C Borrower’s
  Indemnity to Banks

  	
  131

  
	
   

  	
  12.3

  	
  Preservation
  of Rights

  	
  131

  
	
   

  	
  12.4

  	
  Settlement
  Conditional

  	
  132

  
	
   

  	
  12.5

  	
  Right to
  make Payments under Letters of Credit

  	
  132

  
	
   

  	
  12.6

  	
  Advances to
  meet Demands in respect of Letters of Credit

  	
  132

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  CANCELLATION
  AND PREPAYMENT

  	
  133

  
	
   

  	
  13.1

  	
  Voluntary
  Cancellation

  	
  133

  
	
   

  	
  13.2

  	
  Automatic
  Cancellation

  	
  133

  
	
   

  	
  13.3

  	
  Mandatory
  Reduction of the Facilities

  	
  133

  
	
   

  	
  13.4

  	
  Change of
  Control, Sale and Change of Ownership

  	
  134

  
	
   

  	
  13.5

  	
  Mandatory
  Prepayment on breach of Borrowing Base

  	
  135

  
	
   

  	
  13.6

  	
  Limitations
  on Obligations

  	
  135

  
	
   

  	
  13.7

  	
  Application
  of Amounts Prepaid

  	
  137

  
	
   

  	
  13.8

  	
  Prepayment
  Accounts

  	
  137

  
	
   

  	
  13.9

  	
  Cancellation
  of Letters of Credit

  	
  138

  
	
   

  	
  13.10

  	
  Notice of
  Cancellation or Prepayment

  	
  138

  
	
   

  	
  13.11

  	
  Notice of
  Removal of a Bank or L/C Issuer

  	
  138

  
	
   

  	
  13.12

  	
  Removal of a
  Bank or L/C Issuer

  	
  138

  
	
   

  	
  13.13

  	
  No Further
  Availability

  	
  139

  
	
   

  	
  13.14

  	
  No Other
  Repayments or Cancellation

  	
  139

  
	
   

  	
  13.15

  	
  Replacement
  of L/C Issuer

  	
  139

  
	
   

  	
  13.16

  	
  Prepayment
  of Advances by Australian Borrower

  	
  139

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  TAXES

  	
  139

  
	
   

  	
  14.1

  	
  Tax Gross-up

  	
  139

  
	
   

  	
  14.2

  	
  Tax
  Indemnity

  	
  140

  
	
   

  	
  14.3

  	
  Banks’ Tax
  Status

  	
  141

  
	
   

  	
  14.4

  	
  Claims by
  Banks

  	
  142

  
	
   

  	
  14.5

  	
  Double
  Taxation Relief

  	
  142

  
	
   

  	
  14.6

  	
  US Filings

  	
  142

  
	
   

  	
  14.7

  	
  VAT

  	
  145

  
	
   

  	
  14.8

  	
  Tax Forms

  	
  145

  
	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
  TAX RECEIPTS

  	
  145

  



 


iii

















 


	
   

  	
  15.1

  	
  Notification
  of Requirement to Deduct Tax

  	
  145

  
	
   

  	
  15.2

  	
  Evidence of
  Payment of Tax

  	
  146

  
	
   

  	
  15.3

  	
  Tax Credit
  Payment

  	
  146

  
	
   

  	
  15.4

  	
  Tax and
  Other Affairs

  	
  147

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
  INCREASED
  COSTS

  	
  147

  
	
   

  	
  16.1

  	
  Increased
  Costs

  	
  147

  
	
   

  	
  16.2

  	
  Increased
  Costs Claims

  	
  148

  
	
   

  	
  16.3

  	
  Exclusions

  	
  148

  
	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
  ILLEGALITY

  	
  148

  
	
   

  	
   

  	
   

  
	
  18.

  	
  MITIGATION
  AND OTHER PROVISIONS RELATING TO TAXES AND INCREASED COSTS

  	
  149

  
	
   

  	
  18.1

  	
  Mitigation

  	
  149

  
	
   

  	
  18.2

  	
  Removal of
  Affected Bank

  	
  150

  
	
   

  	
  18.3

  	
  Change in
  Facility Office

  	
  150

  
	
   

  	
   

  	
   

  	
   

  
	
  19.

  	
  REPRESENTATIONS

  	
  150

  
	
   

  	
  19.1

  	
  Status

  	
  150

  
	
   

  	
  19.2

  	
  Governing
  Law and Judgments

  	
  151

  
	
   

  	
  19.3

  	
  Binding
  Obligations

  	
  151

  
	
   

  	
  19.4

  	
  Execution of
  the Finance Documents

  	
  151

  
	
   

  	
  19.5

  	
  No Material
  Proceedings

  	
  152

  
	
   

  	
  19.6

  	
  Financial
  Statements

  	
  152

  
	
   

  	
  19.7

  	
  No Material
  Adverse Change

  	
  152

  
	
   

  	
  19.8

  	
  Validity and
  Admissibility in Evidence

  	
  153

  
	
   

  	
  19.9

  	
  Claims pari
  passu

  	
  153

  
	
   

  	
  19.10

  	
  Compliance
  with Laws

  	
  153

  
	
   

  	
  19.11

  	
  No
  Winding-up

  	
  154

  
	
   

  	
  19.12

  	
  No Material
  Defaults

  	
  154

  
	
   

  	
  19.13

  	
  No
  Misleading Information

  	
  154

  
	
   

  	
  19.14

  	
  Environmental
  Compliance

  	
  155

  
	
   

  	
  19.15

  	
  Environmental
  Claims

  	
  155

  
	
   

  	
  19.16

  	
  Encumbrances
  and Indebtedness

  	
  155

  
	
   

  	
  19.17

  	
  Ranking

  	
  155

  
	
   

  	
  19.18

  	
  Ownership of
  the Obligors

  	
  155

  
	
   

  	
  19.19

  	
  Ownership of
  Parent

  	
  156

  
	
   

  	
  19.20

  	
  No Event of
  Default

  	
  156

  



 


iv

















 


	
   

  	
  19.21

  	
  Consents and
  Approvals

  	
  156

  
	
   

  	
  19.22

  	
  Insurance

  	
  156

  
	
   

  	
  19.23

  	
  Taxation

  	
  156

  
	
   

  	
  19.24

  	
  Good Title
  to Assets

  	
  157

  
	
   

  	
  19.25

  	
  US
  Government Regulations

  	
  157

  
	
   

  	
  19.26

  	
  Pensions

  	
  157

  
	
   

  	
  19.27

  	
  The
  Acquisition

  	
  157

  
	
   

  	
  19.28

  	
  Centre of
  Main Interests

  	
  158

  
	
   

  	
  19.29

  	
  Professional
  Market Party

  	
  158

  
	
   

  	
  19.30

  	
  Time of
  making representations

  	
  158

  
	
   

  	
  19.31

  	
  Repetition
  of Representations

  	
  158

  
	
   

  	
   

  	
   

  	
   

  
	
  20.

  	
  FINANCIAL
  INFORMATION

  	
  159

  
	
   

  	
  20.1

  	
  Annual
  Statements

  	
  159

  
	
   

  	
  20.2

  	
  Quarterly
  Statements

  	
  159

  
	
   

  	
  20.3

  	
  Reports

  	
  160

  
	
   

  	
  20.4

  	
  Annual
  Budget

  	
  160

  
	
   

  	
  20.5

  	
  Other
  Financial Information

  	
  160

  
	
   

  	
  20.6

  	
  Accounting
  Policies

  	
  161

  
	
   

  	
  20.7

  	
  “Know your
  customer” checks

  	
  161

  
	
   

  	
   

  	
   

  	
   

  
	
  21.

  	
  POSITIVE
  COVENANTS

  	
  162

  
	
   

  	
  21.1

  	
  Maintenance
  of Legal Status and Validity

  	
  162

  
	
   

  	
  21.2

  	
  Insurance

  	
  163

  
	
   

  	
  21.3

  	
  Environmental
  Compliance

  	
  163

  
	
   

  	
  21.4

  	
  Environmental
  Claims

  	
  163

  
	
   

  	
  21.5

  	
  Notification
  of Defaults

  	
  163

  
	
   

  	
  21.6

  	
  Claims Pari
  Passu

  	
  163

  
	
   

  	
  21.7

  	
  Consents and
  Approvals

  	
  164

  
	
   

  	
  21.8

  	
  Conduct of
  Business

  	
  164

  
	
   

  	
  21.9

  	
  Tax

  	
  164

  
	
   

  	
  21.10

  	
  Preservation
  of Assets

  	
  164

  
	
   

  	
  21.11

  	
  Security
  Preservation

  	
  164

  
	
   

  	
  21.12

  	
  Litigation

  	
  165

  
	
   

  	
  21.13

  	
  Labour
  Disputes

  	
  165

  
	
   

  	
  21.14

  	
  Access

  	
  165

  
	
   

  	
  21.15

  	
  Intellectual
  Property

  	
  165

  



 


v

















 


	
   

  	
  21.16

  	
  Group
  Acceding Guarantors

  	
  166

  
	
   

  	
  21.17

  	
  Syndication

  	
  168

  
	
   

  	
  21.18

  	
  Share
  Security

  	
  168

  
	
   

  	
  21.19

  	
  Existing
  Indebtedness

  	
  169

  
	
   

  	
  21.20

  	
  New Vehicle
  and Equipment Acquisitions

  	
  169

  
	
   

  	
  21.21

  	
  Purchase
  Price

  	
  170

  
	
   

  	
  21.22

  	
  Securitisation
  and Take-Out Financing

  	
  170

  
	
   

  	
  21.23

  	
  Pension
  Schemes

  	
  171

  
	
   

  	
  21.24

  	
  On-Lending

  	
  172

  
	
   

  	
  21.25

  	
  Hedging
  Transactions

  	
  172

  
	
   

  	
  21.26

  	
  Further
  Assurances

  	
  172

  
	
   

  	
  21.27

  	
  Canadian
  Guarantor

  	
  173

  
	
   

  	
   

  	
   

  	
   

  
	
  22.

  	
  NEGATIVE
  COVENANTS

  	
  173

  
	
   

  	
  22.1

  	
  Negative
  Pledge

  	
  173

  
	
   

  	
  22.2

  	
  Loans and
  Guarantees

  	
  173

  
	
   

  	
  22.3

  	
  Indebtedness

  	
  173

  
	
   

  	
  22.4

  	
  Hedging
  Transactions

  	
  174

  
	
   

  	
  22.5

  	
  Subordinated
  Debt

  	
  174

  
	
   

  	
  22.6

  	
  Disposals

  	
  174

  
	
   

  	
  22.7

  	
  Acquisitions

  	
  174

  
	
   

  	
  22.8

  	
  Distributions

  	
  174

  
	
   

  	
  22.9

  	
  Change of
  Business

  	
  174

  
	
   

  	
  22.10

  	
  Mergers

  	
  175

  
	
   

  	
  22.11

  	
  Acquisition
  Agreement and Other Documents

  	
  175

  
	
   

  	
  22.12

  	
  Centre of
  Main Interests

  	
  175

  
	
   

  	
  22.13

  	
  Arm’s Length
  Transactions

  	
  175

  
	
   

  	
  22.14

  	
  A2
  Anti-Layering

  	
  177

  
	
   

  	
  22.15

  	
  Maximum
  number of Lenders

  	
  178

  
	
   

  	
   

  	
   

  	
   

  
	
  23.

  	
  EVENTS OF
  DEFAULT

  	
  178

  
	
   

  	
  23.1

  	
  Failure to
  Pay

  	
  178

  
	
   

  	
  23.2

  	
  Misrepresentation

  	
  178

  
	
   

  	
  23.3

  	
  Obligations

  	
  178

  
	
   

  	
  23.4

  	
  Cross
  Default

  	
  179

  
	
   

  	
  23.5

  	
  Insolvency
  and Rescheduling

  	
  180

  
	
   

  	
  23.6

  	
  Winding-up

  	
  180

  



 


vi

















 


	
   

  	
  23.7

  	
  Execution or
  Distress

  	
  181

  
	
   

  	
  23.8

  	
  Failure to
  Comply with Final Judgment

  	
  181

  
	
   

  	
  23.9

  	
  Governmental
  Intervention

  	
  181

  
	
   

  	
  23.10

  	
  Repudiation
  and Rescission

  	
  181

  
	
   

  	
  23.11

  	
  Unlawfulness
  and Invalidity

  	
  181

  
	
   

  	
  23.12

  	
  Intercreditor
  Deed

  	
  182

  
	
   

  	
  23.13

  	
  The Group’s
  Business

  	
  182

  
	
   

  	
  23.14

  	
  Material
  Adverse Change

  	
  182

  
	
   

  	
  23.15

  	
  Auditor’s
  Qualification

  	
  182

  
	
   

  	
  23.16

  	
  Acceleration
  and Cancellation

  	
  182

  
	
   

  	
  23.17

  	
  Non-material
  Subsidiaries

  	
  183

  
	
   

  	
  23.18

  	
  Certain
  Funds Period

  	
  183

  
	
   

  	
  23.19

  	
  Advances Due
  on Demand

  	
  183

  
	
   

  	
  23.20

  	
  Exercise of
  Sale Right

  	
  184

  
	
   

  	
  23.21

  	
  U.S.
  Bankruptcy

  	
  185

  
	
   

  	
  23.22

  	
  Clean-Up
  Period

  	
  185

  
	
   

  	
   

  	
   

  	
   

  
	
  24.

  	
  GUARANTEE
  AND INDEMNITY

  	
  185

  
	
   

  	
  24.1

  	
  Guarantee
  and Indemnity

  	
  185

  
	
   

  	
  24.2

  	
  Additional
  Security

  	
  187

  
	
   

  	
  24.3

  	
  Continuing
  Obligations

  	
  187

  
	
   

  	
  24.4

  	
  Obligations
  not Discharged

  	
  187

  
	
   

  	
  24.5

  	
  Settlement
  Conditional

  	
  188

  
	
   

  	
  24.6

  	
  Exercise of
  Rights

  	
  188

  
	
   

  	
  24.7

  	
  Deferral of
  Guarantor’s Rights

  	
  188

  
	
   

  	
  24.8

  	
  Suspense
  Accounts

  	
  188

  
	
   

  	
  24.9

  	
  French
  Guarantors

  	
  189

  
	
   

  	
  24.10

  	
  German
  Guarantors

  	
  189

  
	
   

  	
  24.11

  	
  Belgian
  Guarantors

  	
  192

  
	
   

  	
  24.12

  	
  UK
  Guarantors

  	
  193

  
	
   

  	
  24.13

  	
  Australian
  Guarantors

  	
  193

  
	
   

  	
  24.14

  	
  Italian
  Guarantors

  	
  193

  
	
   

  	
  24.15

  	
  Spanish
  Guarantors

  	
  194

  
	
   

  	
  24.16

  	
  Swiss
  Guarantors

  	
  194

  
	
   

  	
  24.17

  	
  Dutch
  Guarantors

  	
  196

  
	
   

  	
  24.18

  	
  German
  Confirmation

  	
  197

  



 


vii

















 


	
   

  	
  24.19

  	
  Other
  Guarantors

  	
  198

  
	
   

  	
   

  	
   

  	
   

  
	
  25.

  	
  COMMITMENT
  COMMISSION AND FEES

  	
  199

  
	
   

  	
  25.1

  	
  Commitment
  Commission

  	
  199

  
	
   

  	
  25.2

  	
  Fees

  	
  199

  
	
   

  	
   

  	
   

  	
   

  
	
  26.

  	
  CANADIAN
  PERMITTED BANK FEES

  	
  199

  
	
   

  	
   

  	
   

  
	
  27.

  	
  COSTS AND
  EXPENSES

  	
  201

  
	
   

  	
  27.1

  	
  Transaction
  Expenses

  	
  201

  
	
   

  	
  27.2

  	
  Preservation
  and Enforcement of Rights

  	
  202

  
	
   

  	
  27.3

  	
  Stamp Taxes

  	
  202

  
	
   

  	
  27.4

  	
  Amendment
  Costs

  	
  202

  
	
   

  	
  27.5

  	
  Banks’
  Liabilities for Costs

  	
  202

  
	
   

  	
  27.6

  	
  No Other Tax

  	
  203

  
	
   

  	
   

  	
   

  	
   

  
	
  28.

  	
  DEFAULT
  INTEREST AND BREAK COSTS

  	
  203

  
	
   

  	
  28.1

  	
  Default
  Interest Periods

  	
  203

  
	
   

  	
  28.2

  	
  Default
  Interest

  	
  203

  
	
   

  	
  28.3

  	
  Payment of
  Default Interest

  	
  203

  
	
   

  	
  28.4

  	
  Break Costs

  	
  204

  
	
   

  	
   

  	
   

  	
   

  
	
  29.

  	
  INDEMNITIES

  	
  204

  
	
   

  	
  29.1

  	
  Indemnity

  	
  204

  
	
   

  	
  29.2

  	
  Currency
  Indemnity

  	
  204

  
	
   

  	
  29.3

  	
  Acquisition
  Indemnity

  	
  205

  
	
   

  	
   

  	
   

  	
   

  
	
  30.

  	
  CURRENCY OF
  ACCOUNT AND PAYMENT

  	
  207

  
	
   

  	
   

  	
   

  
	
  31.

  	
  PAYMENTS

  	
  207

  
	
   

  	
  31.1

  	
  Payments to
  the Facility Agent

  	
  207

  
	
   

  	
  31.2

  	
  Payments by
  the Facility Agent

  	
  208

  
	
   

  	
  31.3

  	
  No Set-off

  	
  209

  
	
   

  	
  31.4

  	
  Clawback

  	
  209

  
	
   

  	
  31.5

  	
  Partial
  Payments

  	
  209

  
	
   

  	
  31.6

  	
  Variation of
  Partial Payments

  	
  209

  
	
   

  	
  31.7

  	
  Business
  Days

  	
  210

  
	
   

  	
   

  	
   

  	
   

  
	
  32.

  	
  SET–OFF

  	
  210

  
	
   

  	
  32.1

  	
  Contractual
  Set-off

  	
  210

  
	
   

  	
  32.2

  	
  Set-off not
  Mandatory

  	
  210

  
	
   

  	
   

  	
   

  	
   

  
	
  33.

  	
  SHARING

  	
  210

  
	
   

  	
  33.1

  	
  Payments to
  Banks

  	
  210

  



 


viii

















 


	
   

  	
  33.2

  	
  Redistribution
  of Payments

  	
  210

  
	
   

  	
  33.3

  	
  Recovering
  Bank’s Rights

  	
  211

  
	
   

  	
  33.4

  	
  Repayable
  Recoveries

  	
  211

  
	
   

  	
  33.5

  	
  Exception

  	
  211

  
	
   

  	
   

  	
   

  	
   

  
	
  34.

  	
  THE FACILITY
  AGENT, THE SECURITY AGENT, THE GLOBAL COORDINATOR AND THE FINANCE PARTIES

  	
  

  211

  
	
   

  	
  34.1

  	
  Appointment
  of the Facility Agent and the Global Coordinator

  	
  211

  
	
   

  	
  34.2

  	
  Security
  Agent’s, Facility Agent’s and Global Coordinator’s Discretions

  	
  212

  
	
   

  	
  34.3

  	
  Security
  Agent’s, Facility Agent’s and Global Coordinator’s Assumptions

  	
  213

  
	
   

  	
  34.4

  	
  Facility
  Agent’s Obligations

  	
  213

  
	
   

  	
  34.5

  	
  Excluded
  Obligations of Facility Agent, Security Agent, Global Coordinator and
  Arrangers

  	
  214

  
	
   

  	
  34.6

  	
  Indemnification

  	
  216

  
	
   

  	
  34.7

  	
  Exclusion of
  Liabilities

  	
  216

  
	
   

  	
  34.8

  	
  No Actions

  	
  217

  
	
   

  	
  34.9

  	
  Business
  with Group

  	
  217

  
	
   

  	
  34.10

  	
  Resignation

  	
  217

  
	
   

  	
  34.11

  	
  Removal of
  Facility Agent or Global Coordinator

  	
  217

  
	
   

  	
  34.12

  	
  Successor
  Facility Agent or Global Coordinator

  	
  217

  
	
   

  	
  34.13

  	
  Rights and
  Obligations

  	
  218

  
	
   

  	
  34.14

  	
  Own
  Responsibility

  	
  218

  
	
   

  	
  34.15

  	
  Agency
  Division Separate

  	
  219

  
	
   

  	
  34.16

  	
  Security
  Agent, Facility Agent or the Global Coordinator as Finance Parties

  	
  219

  
	
   

  	
  34.17

  	
  Dealings
  with the Facility Agent

  	
  219

  
	
   

  	
  34.18

  	
  Information

  	
  219

  
	
   

  	
  34.19

  	
  Copies of
  Notices

  	
  219

  
	
   

  	
   

  	
   

  	
   

  
	
  35.

  	
  THE BANKS
  AND THE L/C ISSUER

  	
  220

  
	
   

  	
  35.1

  	
  Banks’
  Indemnity

  	
  220

  
	
   

  	
  35.2

  	
  Direct
  Participation

  	
  220

  
	
   

  	
  35.3

  	
  Obligations
  not Discharged

  	
  220

  
	
   

  	
  35.4

  	
  Settlement
  Conditional

  	
  221

  
	
   

  	
  35.5

  	
  Exercise of
  Rights

  	
  221

  
	
   

  	
   

  	
   

  	
   

  
	
  36.

  	
  ASSIGNMENTS
  AND TRANSFERS

  	
  221

  
	
   

  	
  36.1

  	
  Binding
  Agreement

  	
  221

  
	
   

  	
  36.2

  	
  Assignments
  and Transfers by Obligors

  	
  221

  



 


ix

















 


	
   

  	
  36.3

  	
  Assignments
  and Transfers by Banks

  	
  221

  
	
   

  	
  36.4

  	
  Original
  Banks

  	
  223

  
	
   

  	
  36.5

  	
  Assignments
  by Banks

  	
  224

  
	
   

  	
  36.6

  	
  Transfers by
  Banks

  	
  224

  
	
   

  	
  36.7

  	
  Assignment
  and Transfer Fees

  	
  225

  
	
   

  	
  36.8

  	
  Disclosure
  of Information

  	
  225

  
	
   

  	
  36.9

  	
  The Register

  	
  226

  
	
   

  	
  36.10

  	
  Affiliates/Branches

  	
  226

  
	
   

  	
  36.11

  	
  Assignments
  and Transfers of Loan Notes

  	
  227

  
	
   

  	
  36.12

  	
  Application
  to Canadian Sale Right

  	
  228

  
	
   

  	
   

  	
   

  	
   

  
	
  37.

  	
  CHANGE OF
  CURRENCY

  	
  228

  
	
   

  	
   

  	
   

  
	
  38.

  	
  ADDITIONAL
  BORROWERS

  	
  228

  
	
   

  	
  38.1

  	
  Request for
  Additional Borrower

  	
  228

  
	
   

  	
  38.2

  	
  Borrower
  Conditions Precedent

  	
  229

  
	
   

  	
  38.3

  	
  Restrictions
  on Lending to Certain Borrowers

  	
  229

  
	
   

  	
  38.4

  	
  Resignation
  of a Borrower

  	
  230

  
	
   

  	
  38.5

  	
  Termination
  of a Borrower’s rights

  	
  230

  
	
   

  	
   

  	
   

  	
   

  
	
  39.

  	
  ADDITIONAL
  GUARANTORS, RESIGNATION OF GUARANTORS AND DESIGNATED OBLIGORS; CHANGE OF
  COORDINATOR

  	
  

  231

  
	
   

  	
  39.1

  	
  Request for
  Additional Guarantor

  	
  231

  
	
   

  	
  39.2

  	
  Guarantor
  Conditions Precedent

  	
  231

  
	
   

  	
  39.3

  	
  Resignation
  of a Guarantor

  	
  231

  
	
   

  	
  39.4

  	
  Request for
  Designated Obligor

  	
  231

  
	
   

  	
  39.5

  	
  Designated
  Obligor Conditions Precedent

  	
  231

  
	
   

  	
  39.6

  	
  Cessation of
  a Designated Obligor

  	
  232

  
	
   

  	
  39.7

  	
  Change of
  Coordinator

  	
  232

  
	
   

  	
   

  	
   

  	
   

  
	
  40.

  	
  CALCULATIONS
  AND EVIDENCE OF DEBT

  	
  232

  
	
   

  	
  40.1

  	
  Basis of
  Accrual

  	
  232

  
	
   

  	
  40.2

  	
  Quotations

  	
  234

  
	
   

  	
  40.3

  	
  Evidence of
  Debt

  	
  234

  
	
   

  	
  40.4

  	
  Control
  Accounts

  	
  234

  
	
   

  	
  40.5

  	
  Prima Facie
  Evidence

  	
  234

  
	
   

  	
  40.6

  	
  Certificates
  of Banks

  	
  234

  
	
   

  	
  40.7

  	
  Facility
  Agent’s Certificates

  	
  234

  
	
   

  	
  40.8

  	
  Letters of
  Credit

  	
  235

  



 


x

















 


	
  41.

  	
  REMEDIES AND
  WAIVERS, PARTIAL INVALIDITY

  	
  235

  
	
   

  	
  41.1

  	
  Remedies and
  Waivers

  	
  235

  
	
   

  	
  41.2

  	
  Partial
  Invalidity

  	
  235

  
	
   

  	
   

  	
   

  	
   

  
	
  42.

  	
  NOTICES

  	
  235

  
	
   

  	
  42.1

  	
  Communications
  in Writing

  	
  235

  
	
   

  	
  42.2

  	
  Addresses

  	
  235

  
	
   

  	
  42.3

  	
  Delivery

  	
  238

  
	
   

  	
  42.4

  	
  Electronic
  communication

  	
  239

  
	
   

  	
  42.5

  	
  English
  Language

  	
  239

  
	
   

  	
  42.6

  	
  Notification
  of Changes

  	
  239

  
	
   

  	
  42.7

  	
  Deemed
  Receipt by the Obligors

  	
  239

  
	
   

  	
   

  	
   

  	
   

  
	
  43.

  	
  COUNTERPARTS

  	
  240

  
	
   

  	
   

  	
   

  
	
  44.

  	
  AMENDMENTS

  	
  240

  
	
   

  	
  44.1

  	
  Amendments

  	
  240

  
	
   

  	
  44.2

  	
  Amendments
  Requiring Different Consent Levels

  	
  240

  
	
   

  	
  44.3

  	
  Exceptions

  	
  241

  
	
   

  	
   

  	
   

  	
   

  
	
  45.

  	
  LOAN NOTES
  TO BE ISSUED BY AUSTRALIAN BORROWERS

  	
  241

  
	
   

  	
  45.1

  	
  Loan Note
  Deed Poll

  	
  241

  
	
   

  	
  45.2

  	
  Issue of
  Loan Notes

  	
  241

  
	
   

  	
  45.3

  	
  Redemption
  of Loan Notes

  	
  242

  
	
   

  	
  45.4

  	
  Application
  of funds and update Loan Note Register

  	
  242

  
	
   

  	
  45.5

  	
  Establishment
  of Loan Note Register

  	
  242

  
	
   

  	
  45.6

  	
  Maintenance
  of Loan Note Register

  	
  242

  
	
   

  	
  45.7

  	
  Loan Note
  Register is paramount

  	
  243

  
	
   

  	
  45.8

  	
  Offers of
  Loan Notes

  	
  243

  
	
   

  	
  45.9

  	
  Qualifying
  Bank Representation

  	
  243

  
	
   

  	
   

  	
   

  	
   

  
	
  46.

  	
  GOVERNING
  LAW

  	
  243

  
	
   

  	
   

  	
   

  
	
  47.

  	
  JURISDICTION

  	
  243

  
	
   

  	
  47.1

  	
  English
  Courts

  	
  243

  
	
   

  	
  47.2

  	
  Convenient
  Forum

  	
  243

  
	
   

  	
  47.3

  	
  Non-Exclusive
  Jurisdiction

  	
  243

  
	
   

  	
  47.4

  	
  Service of
  Process

  	
  244

  
	
   

  	
   

  	
   

  	
   

  
	
  48.

  	
  PLEDGES ON
  BANK ACCOUNTS UNDER GENERAL TERMS AND CONDITIONS

  	
  244

  
	
   

  	
   

  	
   

  
	
  SCHEDULE 1
  THE BANKS AND THEIR COMMITMENTS

  	
  245

  
	
  SCHEDULE 2
  THE BORROWERS AND THE GUARANTORS

  	
  247

  



 


xi

















 


	
  SCHEDULE 3
  FORM OF TRANSFER CERTIFICATE

  	
  252

  
	
  SCHEDULE 4
  CONDITIONS PRECEDENT

  	
  257

  
	
  SCHEDULE 5
  UTILISATION NOTICES

  	
  263

  
	
  SCHEDULE 6
  FORM OF BORROWER ACCESSION MEMORANDUM

  	
  267

  
	
  SCHEDULE 7
  FORM OF GUARANTOR / COORDINATOR ACCESSION MEMORANDUM

  	
  270

  
	
  SCHEDULE 8
  ADDITIONAL CONDITIONS PRECEDENT

  	
  273

  
	
  SCHEDULE 9
  FORM OF RESIGNATION NOTICE

  	
  277

  
	
  SCHEDULE 10
  MANDATORY COST FORMULAE

  	
  278

  
	
  SCHEDULE 11
  FORM OF LETTER OF CREDIT

  	
  281

  
	
  SCHEDULE 12
  FORM OF TEG LETTER

  	
  283

  
	
  SCHEDULE 13
  ELIGIBLE CUSTOMER RECEIVABLES CRITERIA

  	
  285

  
	
  SCHEDULE 14
  EXISTING INDEBTEDNESS

  	
  288

  
	
  SCHEDULE 15
  TIMETABLE

  	
  289

  
	
  SCHEDULE 16
  FORM OF LOAN NOTE DEED POLL

  	
  291

  
	
  SCHEDULE 17
  CANADIAN PRO-RATA SHARE

  	
  295

  
	
  SCHEDULE 18
  SECURITY PRINCIPLES

  	
  296

  
	
  SCHEDULE 19
  FORM OF BANK CERTIFICATE

  	
  300

  
	
  SCHEDULE 20
  SECURITY DOCUMENTS

  	
  304

  
	
  SCHEDULE 21
  FORMS OF ASSET REPORTS

  	
  310

  
	
  SCHEDULE 22
  NOTIFICATION

  	
  313

  
	
  SCHEDULE 23
  FORM OF SPECIFIED ECF AMOUNT CERTIFICATE

  	
  318

  



 


xii

















 


THIS AGREEMENT is made on 21 December 2005


 


AMONG:


 


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


 


(2)           THE
COMPANIES listed
in Part 1 of Schedule 2 (The Borrowers and the
Guarantors) as Original Borrowers (the “Original
Borrowers”);


 


(3)           THE
COMPANIES listed
in Part 2 of Schedule 2 (The Borrowers and the
Guarantors) as Original Guarantors (the “Original
Guarantors”);


 


(4)           HERTZ
EUROPE LIMITED as
Coordinator;


 


(5)           BNP
PARIBAS AND  THE ROYAL BANK OF SCOTLAND
PLC as mandated lead arrangers of the Facilities (each, a “Mandated  Lead Arranger”
and together, the “Mandated Lead Arrangers”);


 


(6)           CALYON
as co-arranger
(the “Co-Arranger”);


 


(7)           BNP
PARIBAS, THE ROYAL BANK OF SCOTLAND PLC AND CALYON as joint bookrunners for the Facilities
(together, the “Joint Bookrunners”);


 


(8)           BNP
PARIBAS as
facility agent for the Banks (the “Facility Agent”);


 


(9)           BNP
PARIBAS as
security agent and security trustee on behalf of the Finance Parties (as
defined below) (the “Security Agent”);


 


(10)         BNP
PARIBAS as
documentation agent and global coordinator for the Banks (the “Global Coordinator”); and


 


(11)         THE
FINANCIAL INSTITUTIONS listed in Schedule 1 (The Banks and their
Commitments) as Banks.


 


IT IS AGREED as follows:


 


1.             DEFINITIONS
AND INTERPRETATION


 


1.1           Definitions


 


In this Agreement:


 


“25% Trigger” means any time when the Euro Amount of the
aggregate outstanding principal amount of the A1 Advances and the A2 Advances
is less than 25 per cent. of the Euro Amount of the aggregate outstanding
principal amount of (a) the A1 Advances and the A2 Advances made on
the Closing Date or (b) in the case of any A1 Advances and A2 Advances
made to any Australian Borrower, all such Advances made on the Closing Date or
not later than one Business Day succeeding the Closing Date.


 

















 


“A1 Advance Rate” means:


 


(a)           if
neither the Final C Take-Out Financing nor any A Take-Out Financing has
occurred, 70 per cent.;


 


(b)           upon
the occurrence of the first A Take-Out Financing (x) 70 per cent. less (y) the
A Take-Out Adjustment Percentage multiplied by 87.5 per cent.;


 


(c)           upon
the occurrence of any further A Take-Out Financings (x) the A1 Advance Rate at
the previous Reporting date less (y) the A Take-Out Adjustment Percentage
multiplied by 87.5 per cent.,


 


provided that
should the Final C Take-Out Financing occur prior to the Final A Take-Out
Financing, the A1 Advance Rate (at the previous Reporting Date) shall be
further reduced by the relevant Final C Take-Out Benefit Percentage multiplied
by 87.5 per cent. and provided, further, that any adjustment in the A1 Advance
Rate pursuant to the foregoing clauses (b) and (c) shall be allocated among the
remaining A1 Borrowers (except to the extent such allocation would produce
(after giving effect to any adjustments to the percentage set forth in
paragraph (a) of the definition of “A1 Borrowing Base”)
(a) any violation of applicable law, (b) liability of any of the officers,
directors or shareholders of such member or any of its holding companies or
subsidiaries or any material risk of such liability, (c) violation of the
provisions of any joint venture governing or binding on such person or its
subsidiaries or holding companies, (d) material adverse effects on the tax
position (including, without limitation, the imposition of any material
withholding tax or the loss of any material tax deduction) of the Group or,
with respect to the Group, structuring considerations identified in reasonable
detail to the Facility Agent or (e) costs (including, without limitation, any
taxes, fees, charges, duties or expenses) which the Parent has demonstrated to
the Security Agent in reasonable detail would be likely to be incurred) as the
Coordinator shall designate.


 


“A1 Australian Dollar Reserve Amount” means, as at any
determination date, an amount in Australian Dollars equal to US$272,000
(calculated at the Spot Rate of Exchange as at such date).


 


“A1 Australian Dollar Tranche” has the meaning given to it in
Clause 2.1(a)(i)(B) (Grant of the Facilities).


 


“A1 Borrowing Base” means as at any Calculation Date in
relation to any A1 Borrower, an aggregate amount equal to:


 


(a)           a
percentage (to be determined by the Mandated Lead Arrangers (acting reasonably)
and taking into account the tax, structuring and legal requirements of the
Group), which determination shall consider, without limitation, the Asset
Report delivered on each Reporting Date on or prior to such Calculation Date
(as notified to the Coordinator)) of the Borrower Asset Value of such
A1 Borrower and provided that the Mandated Lead Arrangers (acting through
the Facility Agent) will give notice on each Settlement Date of any change to
the prevailing percentage that will take effect on the second immediately
succeeding Settlement Date;


 


2

















 


(b)           87.5
per cent. of the Eligible Cash and the Eligible Cash Equivalents of such A1
Borrower (other than any Take-Out Borrower) (or, if such Borrower is a
Financeco, its Related Opco), in each case as at such Calculation Date; and


 


(c)           in
the case of any Advance under the A1 Australian Dollar Tranche or any A1
Swingline Advance made in Australian Dollars only, less the A1 Australian
Dollar Reserve Amount,


 


provided that the
aggregate of the Euro Amount of the A1 Borrowing Base of all of the A1
Borrowers shall not be less than the Euro Amount of the Total A1 Borrowing Base
as at such Calculation Date.


 


“A1 Canadian Dollar Tranche” has the meaning given to it in
Clause 2.1(a)(i)(C) (Grant of the Facilities).


 


“A1 Euro Tranche” has the meaning given to it in
Clause 2.1(a)(i)(E) (Grant of the Facilities).


 


“A1 Facility” means the revolving credit facility made
available under this Agreement as described in Clause 2.1(a)(i) (Grant of the Facilities).


 


“A1 Italian Non-Guaranteed Tranche” has the meaning given to
it in Clause 2.1(a)(i)(F) (Grant of the Facilities).


 


“A1 Outstandings” means all amounts outstanding from time to
time under the A1 Facility (including the A1 Swingline Facility).


 


“A1 Sterling Tranche” has the meaning given to it in
Clause 2.1(a)(i)(A) (Grant of the Facilities).


 


“A1 Swiss Franc Tranche” has the meaning given to it in
Clause 2.1(a)(i)(D) (Grant of the Facilities).


 


“A1 Tranches” means the A1 Sterling Tranche, the A1 Australian
Dollar Tranche, the A1 Canadian Dollar Tranche, the A1 Swiss Franc Tranche, the
A1 Euro Tranche and the A1 Italian Non-Guaranteed Tranche and “A1 Tranche” means any one or more of them, as the context
requires.


 


“A2 Advance Rate” means:


 


(a)           if
neither the Final C Take-Out Financing nor any A Take-Out Financing has
occurred, 10 per cent.;


 


(b)           upon
the occurrence of the first A Take-Out Financing (x) 10 per cent. less (y) the
A Take-Out Adjustment Percentage multiplied by 12.5 per cent.;


 


(c)           upon
the occurrence of any further A Take-Out Financings (x) the A2 Advance Rate at
the previous Reporting date less (y) the A Take-Out Adjustment Percentage
multiplied by 12.5 per cent.,


 


provided that
should the Final C Take-Out Financing occur prior to the Final A Take-Out
Financing, the A2 Advance Rate (at the previous Reporting Date) shall be
further


 


3

















 


reduced by the
relevant Final C Take-Out Benefit Percentage multiplied by 12.5 per cent. and
provided, further, that any adjustment in the A2 Advance Rate pursuant to the
foregoing clauses (b) and (c) shall be allocated among the remaining A2
Borrowers (except to the extent such allocation would produce (after giving
effect to any adjustments to the percentage set forth in paragraph (a) of the
definition of “A2 Borrowing Base”) (a) any
violation of applicable law, (b) liability of any of the officers, directors or
shareholders of such member or any of its holding companies or subsidiaries or
any material risk of such liability, (c) violation of the provisions of any
joint venture governing or binding on such person or its subsidiaries or
holding companies, (d) material adverse effects on the tax position (including,
without limitation, the imposition of any material withholding tax or the loss
of any material tax deduction) of the Group or, with respect to the Group,
structuring considerations identified in reasonable detail to the Facility
Agent or (e) costs (including, without limitation, any taxes, fees, charges, duties
or expenses) which the Parent has demonstrated to the Security Agent in
reasonable detail would be likely to be incurred) as the Coordinator shall
designate.


 


“A2 Australian Dollar Tranche” has the meaning given to it in
Clause 2.1(a)(ii)(B) (Grant of the Facilities).


 


“A2 Borrowing Base” means as at any Calculation Date in
relation to any A2 Borrower, an aggregate amount equal:


 


(a)           to
a percentage (to be determined by the Mandated Lead Arrangers (acting
reasonably) and taking into account the tax, structuring and legal requirements
of the Group), which determination shall consider, without limitation, the
Asset Report delivered on each Reporting Date on or prior to such Calculation
Date (as notified to the Coordinator)) of the Borrower Asset Value of such
A2 Borrower and provided that the Mandated Lead Arrangers (acting through
the Facility Agent) will give notice on each Settlement Date of any change to
the prevailing percentage that will take effect on the second immediately
succeeding Settlement Date; and


 


(b)           12.5
per cent. of the Eligible Cash and the Eligible Cash Equivalents of such A2
Borrower (other than any Take-Out Borrower) (or, if such Borrower is a
Financeco, its Related Opco) in each case as at such Calculation Date,


 


provided that the aggregate
of the Euro Amount of the A2 Borrowing Base of all of the A2 Borrowers shall
not be less than the Euro Amount of the Total A2 Borrowing Base as at such
Calculation Date.


 


“A2 Canadian Dollar Tranche” has the meaning given to it in
Clause 2.1(a)(ii)(C) (Grant of the Facilities).


 


“A2 Euro Tranche” has the meaning given to it in
Clause 2.1(a)(ii)(E) (Grant of the Facilities).


 


“A2 Facility” means the second ranking revolving credit
facility made available under this Agreement as described in Clause 2.1(a)(ii)
(Grant of the Facilities).


 


4

















 


“A2 Italian Non-Guaranteed Tranche” has the meaning given to
it in Clause 2.1(a)(ii)(F) (Grant of the Facilities).


 


“A2 Outstandings” means all amounts outstanding from time to
time under the A2 Facility (including the A2 Swingline Facility).


 


“A2 Sterling Tranche” has the meaning given to it in Clause
2.1(a)(ii)(A) (Grant of the Facilities).


 


“A2 Swiss Franc Tranche” has the meaning given to it in
Clause 2.1(a)(ii)(D) (Grant of the Facilities).


 


“A2 Tranches” means the A2 Sterling Tranche, the A2
Australian Dollar Tranche, the A2 Canadian Dollar Tranche, the A2 Swiss Franc
Tranche, the A2 Euro Tranche and the A2 Italian Non-Guaranteed Tranche and “A2 Tranche” means any one or more of them, as the context
requires.


 


“A Facility” means the A1 Facility and/or the A2 Facility, as
the context may require.


 


“A Margin” means, in relation to an A1 Advance (including any
A1 Swingline Advance) or an A2 Advance (including any A2 Swingline Advance)
made to any Borrower, as determined on the Relevant A Calculation Date:


 


(a)           during
the period from the Closing Date to the last day of the Carve-Out Period, the
aggregate of:


 


(i)            0.75
per cent. per annum (in the case of any A1 Advance) and 1.50 per cent. per
annum (in the case of any A2 Advance);


 


(ii)           0.25
per cent. per annum multiplied by the ratio (calculated as a percentage) of (A)
the Net Book Value of such Borrower’s Core Country Fleet comprised of vehicles
manufactured by a Vehicle Manufacturer rated B or B- by S&P or B2 or B3 by
Moody’s (provided that if any Vehicle Manufacturer has different ratings from
the Rating Agencies, the lowest such rating will apply) divided by (B) such
Borrower’s Borrower Fleet NBV (in this definition, the “B Rated
Fleet Spread”); and


 


(iii)          0.75
per cent. per annum multiplied by the ratio (calculated as a percentage) of (A)
the Net Book Value of such Borrower’s Core Country Fleet comprised of vehicles
manufactured by a non-rated Vehicle Manufacturer or a Vehicle Manufacturer
rated below or equal to CCC+ by S&P or Caa1 by Moody’s (provided that if
any Vehicle Manufacturer has different ratings from the Rating Agencies, the
lowest such rating will apply (in this definition, the “C Rated
Vehicles”)) to (B) such Borrower’s Borrower Fleet NBV;


 


5

















 


(b)           during
the period on and after the last day of the Carve-Out Period, if any
A1 Advance or A2 Advance is outstanding on or after the last day of the
Carve-Out Period, as determined on the Relevant A Calculation Date the
aggregate of:


 


(i)            0.75 per
cent. per annum (in the case of any A1 Advance) and 1.50 per cent. annum
(in the case of any A2 Advance);


 


(ii)           in relation to any A1 Advance or A2
Advance where:


 


(x)            such
Borrower is an SPV, 0.75 per cent. per annum (in the case of an A1 Advance) or
1.00 per cent. per annum (in the case of an A2 Advance), provided that if a
Monoline Compliance Event has occurred and is continuing such rate shall be
reduced to 0.50 per cent. per annum (in the case of Monoline Compliance Event
with respect to the A1 Facility) or 0.75 per cent. (in the case of a Monoline
Compliance Event with respect to the A2 Facility); or


 


(y)           such
Borrower is not an SPV, 1.00 per cent. per annum (in the case of the A1
Facility) or 1.25 per cent. per annum in the case of the A2 Facility;


 


(iii)          the B Rated Fleet Spread (as defined
above); and


 


(iv)          in relation to any A1 Advance or A2
Advance where:


 


(x)            such
Borrower is an SPV, 1.25 per cent. per annum multiplied by the ratio
(calculated as a percentage) of (A) the Net Book Value of such Borrower’s Core
Country Fleet comprised of C Rated Vehicles (as defined above) to (B) such
Borrower’s Borrower Fleet NBV; or


 


(y)           such
Borrower is not an SPV, 1.50 per cent. per annum multiplied by the ratio
(calculated as a percentage) of (A) such Borrower’s Core Country Fleet
comprised of C Rated Vehicles (as defined above) to (B) such Borrower’s
Borrower Fleet NBV; and


 


(c)           at
any time on and from the date on which the 25% Trigger occurs, 0.50 per
cent. per annum.


 


“A Swingline Facility” means any A1 Swingline Facility and/or
any A2 Swingline Facility, as the context may require.


 


“A Take-Out Adjustment Percentage” means when the A Take-Out
Financing is not the Final A Take-Out Financing the result (whether positive or
negative, expressed as a percentage) of the following equation:


 


A minus B divided by C


 


6

















 


(a)           where
“A” equals the proceeds of the A
Take-Out Financing (less any Eligible Cash or Eligible Cash Equivalents);


 


(b)           where
“B” equals the Borrower Asset Value
transferred into the A Take-Out Financing multiplied sum of the A1 Advance Rate
and the A2 Advance Rate at the previous Reporting Date; and


 


(c)           where
“C” equals the sum of the Borrower Asset
Value of all A1 Borrowers and A2 Borrowers (without duplication) as at the
previous Reporting Date less the Borrower Asset Value transferred into such A
Take-Out Financing multiplied by the sum of the A1 Advance Rate and the A2 Advance
Rate as at the previous Reporting Date.


 


“A Take-Out Financing” means any Take-Out Financing in
relation to an A Facility.


 


“Accession Memorandum” means a Borrower Accession Memorandum
or a Guarantor Accession Memorandum, as the case may be.


 


“Acquisition” means the purchase by Holdco or its direct or
indirect wholly owned subsidiaries of the Shares pursuant to, and in accordance
with, the Acquisition Agreement.


 


“Acquisition Agreement” means the stock purchase agreement
dated 12 September 2005 between the Seller and Holdco and relating to the
purchase of the Shares by Holdco.


 


“Acquisition Costs” means all costs, fees and expenses (and
taxes thereon) and all capital, stamp, documentary, registration or other taxes
incurred by or on behalf of any Parent Company or any of its affiliates, the
Merrill Lynch Investors, the Carlyle Investors or the CD&R Investors and
their respective managers or advisors, the Parent or any other member of the
Group in connection with the Acquisition and all related transactions
(including, without limitation, the financing thereof).


 


“Additional Borrower” means:


 


(a)           when
designated “A1”, an Eligible Borrower which
has acceded to this Agreement as a Borrower under the A1 Facility pursuant to
Clause 38 (Additional Borrowers);


 


(b)           when
designated “A2”, an Eligible Borrower which
has acceded to this Agreement as a Borrower under the A2 Facility pursuant to
Clause 38 (Additional Borrowers);


 


(c)           when
designated “C”, an Eligible Borrower which has
acceded to this Agreement as a Borrower under the C Facility pursuant to
Clause 38 (Additional Borrowers); and


 


(d)           without
any such designation, an “A1 Additional Borrower”,
an “A2 Additional Borrower” and/or a “C Additional Borrower” as the context requires.


 


7

















 


“Additional Guarantor” means any person which has become an
Additional Guarantor in accordance with Clause 39 (Additional
Guarantors, Resignation of Guarantors and Designated Obligors; Change of
Coordinator).


 


“Additional Obligor” means an Additional Borrower or an
Additional Guarantor.


 


“Advance” means:


 


(a)           when
designated “A1”, the principal amount of each
advance made or to be made under the A1 Facility, as reduced from time to time
by repayment or prepayment;


 


(b)           when
designated “A1 Swingline “, the principal
amount of each advance made or to be made under the A1 Swingline Facility, as
reduced from time to time by repayment or prepayment;


 


(c)           when
designated “A2”, the principal amount of each
advance made or to be made under the A2 Facility, as reduced from time to time
by repayment or prepayment;


 


(d)           when
designated “A2 Swingline”, the principal
amount of each advance made or to be made under the A2 Swingline Facility, as
reduced from time to time by repayment or prepayment;


 


(e)           when
designated “C”, the principal amount of each
advance made or to be made under the C Facility, as reduced from time to time
by repayment or prepayment;


 


(f)            when
designated “C Swingline”, the principal amount
of each advance made or to be made under the C Swingline Facility, as reduced
from time to time by repayment or prepayment;


 


(g)           when
designated “Swingline”, an A1 Swingline
Advance, an A2 Swingline Advance and/or a C Swingline Advance, as the context
requires;


 


(h)           when
designated “Rollover”, (i) an Advance
(other than a Swingline Advance) which is used to refinance a maturing Advance
(other than a Swingline Advance) and which is in the same amount and the same
currency as such maturing Advance and is to be drawn on the day such maturing
Advance is to be repaid and (ii) a C Advance which is used to satisfy any
demand made by the Facility Agent pursuant to a drawing under a Letter of
Credit; and


 


(i)            without
any such designation, an “A1 Advance”, an “A1 Swingline Advance”, an “A2
Advance”, an “A2 Swingline Advance”, a “C Advance”, a “C Swingline
Advance”, a “Swingline Advance” and/or a “Rollover Advance”, as the context
requires.


 


“AFOF” means an Australian venture capital fund of funds
within the meaning of subsection 118-410(3) of the Australian Income Tax
Assessment Act 1997.


 


8

















 


“Annual Budget” means, in relation to a calendar year, the
business plan for the Group comprising a projected annual profit and loss
account (including projected turnover and operating costs), projected EBITDA
for such calendar year with revenue broken down for each of the Core Countries
in which the Group carries on business.


 


“Antitrust/Regulatory Authorities” means any Governmental
Authority in the United States of America competent to grant clearance for the
Acquisition under the United States Hart-Scott-Rodino Antitrust Improvements
Act 1976, the European Commission, the Canadian Competition Bureau and any
Governmental Authority in Australia competent to approve the Acquisition.


 


“Antitrust Regulatory Clearances” means the approval,
consent, waiver, license, order, registration, permit, authorisation or
clearance of the Acquisition from all Antitrust/Regulatory Authorities whose
approval is required for the Acquisition.


 


“Applicable Accounting Principles” means
generally accepted accounting principles in the United States of America and
related practices.


 


“Applicable Margin” means:


 


(a)           in
relation to any A Facility (including the A1 Swingline Facility and the
A2 Swingline Facility), the A Margin; and


 


(b)           in
relation to the C Facility (including the C Swingline Facility), 2.50 per cent.
per annum.


 


“Arrangers” means the Mandated Lead Arrangers and the
Co-Arranger and “Arranger” means any of them.


 


“Asset Report” means (a) in the case of all A Advances (other
than Swingline Advances), a duly completed report in the form set out in Part A
of Part 1 of Schedule 21 (Forms of Asset Reports),
(b) in the case of all C Advances (other than Swingline Advances), a duly
completed report in the form set out in Part B of Part 1 of Schedule 21 (Forms of Asset Reports), (c) in the case of all A Swingline
Advances a duly completed report in the form set out in Part A of Part 2 of
Schedule 21 (Forms of Asset Reports), (d) in
the case of all C Swingline Advances a duly completed report in the form set
out in Part B of Part 2 of Schedule 22 (Forms of Asset Reports)
and (e) in the case of a Letter of Credit a duly completed report in the form
set out in Part 3 of Schedule 21 (Forms of Asset Reports),
in each case as the same may be modified from time to time with the consent of
the Facility Agent (acting reasonably).


 


“Auditors” means one of PricewaterhouseCoopers, Ernst &
Young, KPMG or Deloitte & Touche or such other auditors acceptable to the
Facility Agent (acting reasonably).


 


“Australian Bill” means a bill of exchange as defined in the
Australian Bills of Exchange Act 1909 (Cth).


 


“Australian Borrower” means either:


 


(a)           a
Borrower that is an Australian resident for Australian tax purposes (unless it
incurs interest under this Agreement wholly in carrying on business in a


 


9

















 


country outside Australia at or through a permanent
establishment in that country); or


 


(b)           a
Borrower that is not an Australian resident for Australian tax purposes that
incurs interest under this Agreement in carrying on business in Australia at or
through a permanent establishment in Australia.


 


“Australian Finance
Documents” means each of the following documents:


 


(a)           the
Australian Subscription Deed;


 


(b)           the
document entitled “Australian Issuer Loan Agreement (Project H)” between Noteco
(as lender) and Hertz Australia Pty. Limited (ABN 31 004 407 087) (as
borrower) dated on or before the Closing Date;


 


(c)           the
Australian Purchase Deed;


 


(d)           the
document entitled “Australian Registry Services Agreement (Project H)” between
Noteco (as issuer), HA Funding Pty Limited (ACN 117 549 498) (as
subscriber) and Perpetual Trustee Company Limited (as registrar) dated on or
before the Closing Date;


 


(e)           the
Australian Security Trust Deed; and


 


(f)            the
document entitled “Australian Loan Note Deed Poll (Project H)” given by Noteco
(as issuer) dated on or before the Closing Date.


 


“Australian Obligor” means each of Hertz Investment (Holdings)
Pty. Limited (ACN 006 181 755), Hertz Australia Pty. Limited and Noteco.


 


“Australian Orphan SPV” means HA Funding Pty Limited
(ACN 117 549 498).


 


“Australian Orphan SPV Secured Property” has the same meaning
as in the Australian Security Trust Deed.


 


“Australian Purchase Deed” means the document entitled
“Australian Purchase Deed (Project H)” between Hertz Australia Pty Limited (as
purchaser) and HA Funding Pty Limited (as seller) dated on or before the
Closing Date.


 


“Australian Reference Bank” means each of Australian and New
Zealand Banking Group Limited, Commonwealth Bank of Australia National,
Australian Bank Limited and Westpac Banking Corporation Limited.


 


“Australian Security Trust Deed” means the document entitled
“Australian Security Trust Deed (Project H)” between HA Funding Pty Limited (as
borrower) and the Security Agent dated on or before the Closing Date.


 


“Australian Subscription Deed” means the document entitled
“Australian Subscription Deed (Project H)” between HA Funding Pty Limited (as
subscriber) and Noteco (as issuer) dated on or before the Closing Date.


 


10

















 


“Authorised Risk Vehicle Percentage” means, in relation to
the A1 Borrowers and the A2 Borrowers taken together (a) 40 per cent. and (b)
on and from the date on which the 25% Trigger occurs, such other percentage as
may be reasonably agreed in good faith between the Coordinator and the Mandated
Lead Arrangers taking into account applicable commercial considerations at such
time.


 


“Authorised Signatory” means, in relation to an Obligor or
proposed Obligor, any person who is duly authorised (in such manner as may be
reasonably acceptable to the Facility Agent) and in respect of whom the
Facility Agent has received a certificate signed by a director or another
Authorised Signatory of such Obligor or proposed Obligor setting out the name
and signature of such person and confirming such person’s authority to act.


 


“Availability Period” means the period from and including the
Closing Date to and including the Final Maturity Date.


 


“Available Commitment” means in relation to a Bank and a
Facility or a Tranche at any time and, save as otherwise provided herein, its
Commitment in the relevant Base Currency in relation to that Facility or Tranche
at such time less its share of the Base Currency Amount of the Advances or
Letters of Credit made under that Facility or Tranche which are then
outstanding provided such amount shall not be less than zero.


 


“Available Facility” means, at any time in relation to a
Facility or a Tranche, the aggregate Available Commitments in relation to that
Facility or Tranche adjusted, in the case of any proposed utilisation, so as to
take into account:


 


(a)           any
reduction in the Commitment of a Bank in relation to that Facility or Tranche
pursuant to the terms hereof;


 


(b)           the
Base Currency Amount of any Advance or Letter of Credit which, pursuant to any
other utilisation, is to be made or issued under that Facility or Tranche; and


 


(c)           the
Base Currency Amount of any Advance or Letter of Credit under that Facility or
Tranche which is due to be repaid,


 


in each case on or before the proposed Utilisation
Date relating to such utilisation.


 


11

















 


“B Advance Rate” means


 


(a)           if
neither the Final A Take-Out Financing nor the Final C Take-Out Financing has
occurred, 80 per cent.;


 


(b)           if
the Final A Take-Out Financing occurs following the Final C Take-Out Financing,
(x) the B Advance Rate at the previous Reporting Date less (y) the relevant
Final A Take-Out Benefit Percentage,


 


provided, that if
the Final C Take-Out Financing occurs following the Final A Take-Out Financing,
the B Advance Rate (at the previous Reporting Date) shall be reduced by the         Final C Take-Out Benefit Percentage.


 


“B Borrower” has the meaning given to “Borrower” in each of
the B Bridge Facilities Agreements.


 


“B Bridge Facilities Agreements” means the Brazilian
Facilities Agreement and the NZ Facilities Agreement.


 


“B Bridge Finance Documents” means each of the B Bridge
Facilities Agreements and each of the B Bridge Guarantees, together with all
other Finance Documents (as such term is defined in each of the B Bridge
Facilities Agreements) from time to time.


 


“B Bridge Guarantees” means the Brazilian Guarantee and the
NZ Guarantee.


 


“BA Rate” means, in respect of any Term applicable to a
Canadian Advance (other than a Canadian Swingline Advance) or Unpaid Sum (other
than a Canadian Swingline Advance) denominated in Canadian Dollars:


 


(a)           the
applicable Screen Rate;


 


(b)           if
such Term is less than a month, the percentage rate per annum obtained by
interpolating the applicable Screen Rates for a period of one month;


 


(c)           if
such Term is more than a month, the percentage rate per annum obtained by
interpolating the applicable Screen Rates for a period of (i) one month and
(ii) two months; or


 


(d)           if
the applicable Screen Rate in relation to the BA Rate is not displayed for
Canadian Dollars for such Term, the rate of interest determined by the Canadian
Permitted Bank that is equal to the arithmetic mean (rounded upwards to the
nearest whole multiple of 1/100th of 1 per cent.) of the rates quoted by the
relevant Reference Banks on the Quotation Date in respect of Canadian Dollar
bankers’ acceptances with a term comparable to such Term,


 


and, in each case,
plus 5 basis points per annum if such Canadian Advance is made by a Bank not
listed in Schedule I to the Bank Act (Canada), provided no adjustment shall be
made to account for the difference between the number of days in a year on
which the rates referred to in this definition are based and the number of days
in a year on the basis of which interest is calculated in this Agreement.


 


12

















 


“BA Rate Loan” means an Advance (other than a Swingline
Advance) denominated in Canadian Dollars which bears interest at the BA Rate.


 


“BBSY” means, in respect of any Term applicable to an Advance
or unpaid sum denominated in Australian Dollars:


 


(a)           the
applicable Screen Rate;


 


(b)           if
such Term is less than a month, the applicable Screen Rate for a period of one
month;


 


(c)           if
such Term is more than a month, the percentage rate per annum obtained by
interpolating the applicable Screen Rates for a period of (i) one month and
(ii) two months; or


 


(d)           if
the applicable Screen Rate is not displayed for Australian Dollars for such
Term, the rate of interest determined by the Facility Agent as the average of
the rates quoted to the Facility Agent by each of the relevant Reference Banks
for the purchase of Australian Bills accepted by each of the relevant Reference
Banks which have a tenor equal to such Term and a face value amount equal to
the amount of the Advance,


 


provided that if,
in respect of such Term, the BBSY cannot be determined in accordance with the
foregoing, BBSY shall be the rate per cent. per annum determined by the
Facility Agent in good faith to be the appropriate rate having regard to
comparable indices then available in the then current bill market.


 


“Bank” means any entity (whether or not such entity is a
registered bank):


 


(a)           named
in Schedule 1 (The Banks and their
Commitments) (including unless the context otherwise requires a
Swingline Bank); or


 


(b)           which
has become a party hereto in accordance with Clause 36.5 (Assignments by Banks) or Clause 36.6 (Transfers by Banks),


 


and which has not
ceased to be a party hereto in accordance with the terms hereof.


 


“Base Currency” means, in relation to any Facility or
Tranche, the currency in which such Facility or Tranche is denominated as set
out in Schedule 1 (The Banks and their
Commitments).


 


“Base Currency Amount” means:


 


(a)           in
relation to an Advance or Letter of Credit denominated in the Base Currency of
the relevant Facility or Tranche, the amount of such Advance or Letter of Credit;
and


 


(b)           in
relation to an Advance or Letter of Credit denominated in Euro where Euro is
not the Base Currency of the relevant Facility or Tranche, the equivalent of
the amount of Euro in the relevant Base Currency calculated at the Spot Rate of
Exchange as at the relevant date of determination.


 


13

















 


“Belgian Borrower” means each Borrower having or deemed to
have its fiscal residency in Belgium for the purposes of the Belgian Corporate
Income Tax Code that is a qualifying professional investor as defined in
article 105,3o of the Royal Decree executing the Belgian Corporate
Income Tax Code.


 


“Borrower” means:


 


(a)           when
designated “A1”, any Original Borrower under
the A1 Facility or any Additional A1 Borrower;


 


(b)           when
designated “A2”, any Original Borrower under
the A2 Facility or any Additional A2 Borrower;


 


(c)           when
designated “C”, any Original Borrower under
the C Facility or any Additional C Borrower; and


 


(d)           without
any such designation, an “A1 Borrower”,
an “A2 Borrower” and/or a “C Borrower”, as the context requires,


 


provided in each
case that such Borrower has not been released from its rights and obligations
hereunder in accordance with Clause 38.4 (Resignation
of a Borrower).


 


“Borrower Accession Memorandum” means a duly completed
memorandum substantially in the form set out in Schedule 6 (Form of Borrower Accession Memorandum).


 


“Borrower Asset Value” means as at any Calculation Date:


 


(a)           in
relation to any A1 Borrower or any A2 Borrower (other than a Financeco),
determined on that Calculation Date and without double-counting, the aggregate
of:


 


(i)            the Borrower Fleet NBV of such
Borrower; and


 


(ii)           the Eligible Receivables of such
Borrower;


 


(b)           in
relation to any A1 Borrower or A2 Borrower that is a Financeco, determined on
that Calculation Date and without double-counting, the aggregate of:


 


(i)            the Borrower Fleet NBV of its
Related Opco; and


 


(ii)           the Eligible Receivables of its
Related Opco;


 


(c)           in
relation to any C Borrower (other than a Financeco), determined on that
Calculation Date and without double-counting, the aggregate of:


 


(i)            the Borrower Equipment NBV of such
Borrower; and


 


(ii)           the Eligible Receivables of such
Borrower; and


 


14

















 


(d)           in
relation to any C Borrower that is a Financeco, determined on that Calculation
Date and without double-counting, the aggregate of:


 


(i)            the Borrower Equipment NBV of its
Related Opco; and


 


(ii)           the Eligible Receivables of its
Related Opco,


 


and provided in each case:


 


(A)          once
an SPV (other than a Financeco) satisfies the criteria to and becomes an
Eligible Borrower, no subsequent additions to its Related Opco’s Core Country
Fleet or Core Country Equipment Assets (as the case may be) or Eligible Receivables
(other than Eligible Receivables which subsequently arise with respect to the
Core Country Fleet or Core Country Equipment Assets of such Opco existing on
the day on which such SPV becomes an Eligible Borrower) after the day on which
such SPV becomes an Eligible Borrower shall be taken into account in
determining such SPV’s Borrower Asset Value;


 


(B)           on
and after any Take-Out Financing, the Borrower Asset Value of any relevant
Borrower shall be reduced by the value of any assets that were the subject of
such Take-Out Financing if and to the extent such assets were included in the
calculation of such Borrower’s Borrower Asset Value immediately prior to such
Take-Out Financing;


 


(C)           without
including any vehicles or Equipment which are subject to any Encumbrance
securing Indebtedness for Borrowed Money (other than pursuant to the Security
Documents) incurred by any member of the Group to finance or refinance the
acquisition of such vehicles or Equipment,


 


and provided
further that in the case of paragraphs (b) and (d) above:


 


(I)            any
Spanish vehicles owned by such Borrower’s Related Opco shall not be required to
be subject to a Designated Obligor Charge and/or Designated Obligor Re-Charge;
and


 


(II)           if
the proceeds of any Advances made to such Financeco have been on-lent to its
Related Opco pursuant to Clause 21.24 (On-Lending), to
the extent any asset described in paragraphs (b)(i) and (ii) above or (d)(i)
and (ii) above (as the case may be) is not subject to a Designated Obligor
Charge and/or a Designated Obligor Re-Charge no later than 90 days after the
Closing Date, in the case of the Initial Borrowing, or, otherwise, the date on
which such proceeds were on-lent, the aggregate amount pursuant to paragraphs
(b) and (d) above shall be determined without reference to any such asset.


 


“Borrower Equipment Market Value” means, in relation to any C
Borrower, the market value of its Core Country Equipment Assets as calculated
within 30 days of the Closing Date and on each Collateralisation Test Date, in
each case by a third party independent appraiser appointed jointly by the
Facility Agent and the Coordinator for this purpose.


 


15

















 


“Borrower Equipment NBV” means, in relation to any C Borrower
and in respect of a Calculation Date, the Net Book Value of the Core Country
Equipment Assets of such Borrower (or, if such Borrower is a Financeco, the Net
Book Value of the Core Country Equipment Assets of the Related Opco) at such
time, as determined on such Calculation Date.


 


“Borrower Fleet NBV” means, in relation to any A1 Borrower or
A2 Borrower in respect of a Calculation Date, the Net Book Value of the Core
Country Fleet of such Borrower (or, if such Borrower is a Financeco, the Net
Book Value of the Core Country Fleet of its Related Opco) as determined on such
Calculation Date, provided that to the extent a Vehicle Manufacturer Event of
Default occurs and is then continuing with respect to the Vehicle Manufacturer
of any vehicle included in such Core Country Fleet, for the purposes of
calculating the Total A1 Borrowing Base or the Total A2 Borrowing Base (as the
case may be), the Euro Amount of the Net Book Value of all vehicles
manufactured by such Vehicle Manufacturer shall be determined by multiplying
(a) the Euro Amount of the Net Book Value of such vehicles, (b) the
A1 Advance Rate in the case of any A1 Borrower or the A2 Advance Rate in the
case of any A2 Borrower and (c) the following fraction (which shall not,
at any time, exceed 1):


 


X

Y


 


where:


 


X             is
the aggregate amount of the Euro Amount of the sale proceeds received by all A1
Borrowers or A2 Borrowers (as the case may be) (or, if any such Borrower is a
Financeco, its Related Opco) from the sale of vehicles manufactured by such
Vehicle Manufacturer in the most recently ended calendar month; and


 


Y             is
the aggregate of the Euro Amount of the Net Book Value of such sold vehicles as
such value was determined and included in the calculation of the relevant
Borrower Fleet NBV on the immediately preceding Calculation Date.


 


“Borrowing Base Calculations” means the calculations to be
made pursuant to Clause 4.1(n) (Utilisation Conditions)
and Clause 5.3(a)(vi) (Completion of a
Utilisation Notice for Swingline Advances).


 


“Brazilian Facilities Agreement” means an Agreement for
Offering a Revolving Credit Facility to be entered into on or around 21
December 2005 between, amongst others, Car Rental Systems Do Brasil Locação De
Veículos Ltda, as the Borrower, Banco BNP Paribas Brasil S.A., as
Administrative Agent and the entities named therein as Banks.


 


“Brazilian Guarantee” means the guarantee to be entered into
on or around 21 December 2005 by The Hertz Corporation in relation to the
Brazilian Facilities Agreement.


 


“Bridge  Fee Letter”
means the letter entitled “International Securitization Bridge Fee Letter”
dated 18 November 2005 between Holdco and the Arrangers.


 


16

















 


“Business Day” means a day (other than a Saturday or a
Sunday) (a) on which banks generally are open for business in London and in the
jurisdiction of organisation of each of the Borrowers and the Coordinator and
the principal financial centre of the country of each Designated Currency other
than Euro and (b) which is a TARGET Day.


 


“Buy-Back Agreement” means a Vehicle Manufacturer Buy-Back
Agreement, a Vehicle Dealer Buy-Back Agreement or an Equipment Manufacturer
Buy-Back Agreement.


 


“C Advance
Rate” means


 


(a)           if no C Take-Out Financing has
occurred, the C Combined Advance Rate;


 


(b)           upon
the occurrence of the first C Take-Out Financing, (x) the C Combined Advance
Rate less the (y) the C Take-Out Adjustment Percentage;


 


(c)           upon
the occurrence of any further C Take-Out Financings, (x) the C Advance Rate at
the previous Reporting Date less (y) the C Take-Out Adjustment Percentage,


 


provided that
should the Final A Take-Out Financing occur prior to the Final C Take-Out
Financing, the C Advance Rate (as at the previous Reporting Date) shall be
further reduced by the Final A Take-Out Benefit Percentage and provided, further,
that any adjustment in the C Advance Rate pursuant to the foregoing clauses (b)
and (c) shall be allocated among the remaining C Borrowers (except to the
extent such allocation would produce (after giving effect to any adjustments to
the percentage set forth in paragraph (a) of the definition of “C Borrowing Base”) (a) any violation of applicable law, (b)
liability of any of the officers, directors or shareholders of such member or
any of its holding companies or subsidiaries or any material risk of such
liability, (c) violation of the provisions of any joint venture governing or
binding on such person or its subsidiaries or holding companies, (d) material
adverse effects on the tax position (including, without limitation, the
imposition of any material withholding tax or the loss of any material tax
deduction) of the Group or, with respect to the Group, structuring
considerations identified in reasonable detail to the Facility Agent or (e)
costs (including, without limitation, any taxes, fees, charges, duties or
expenses) which the Parent has demonstrated to the Security Agent in reasonable
detail would be likely to be incurred),.


 


“C Borrowing Base” means, in relation to any C Borrower and
as at any Calculation Date, an aggregate amount equal to:


 


(a)           the
C Advance Rate, multiplied by the Borrower Asset Value of such C Borrower,
as at such Calculation Date; and


 


(b)           100
per cent. of the Eligible Cash and Eligible Cash Equivalents of such
C Borrower (other than any Take-Out Borrower) (or, if such Borrower is a
Financeco, its Related Opco) provided such C Borrower is not also an
A1 Borrower or an A2 Borrower on such Calculation Date.


 


17

















 


“C Combined Advance Rate” means the amount (expressed as a
percentage) of the sum of (x) the Eligible Receivables multiplied by the C
Receivables Advance Rate, in each case as at the previous Reporting Date, plus
(y) the Equipment Asset Value multiplied by the C Equipment Advance Rate, in
each case as at the previous Reporting Date, divided by (z) the sum of the
Eligible Receivables and the Equipment Asset Value, in each case as at the
previous Reporting Date.


 


“C Equipment Advance Rate” means 80 per cent. or such other
lower percentage arrived at by subtracting from 80 per cent. an amount (if
positive, expressed as a percentage) equal to the difference between (i) the
Collateralisation Ratio on the Closing Date and (ii) the Collateralisation
Ratio for the most recent Collateralisation Test Date.


 


“C Facility” means the revolving credit facility made
available under this Agreement as described in Clause 2.1(a)(iii) (Grant of the Facilities).


 


“C Outstandings” means all amounts outstanding from time to
time under the C Facility (including the C Swingline Facility and all
Letters of Credit that are issued and outstanding).


 


“C Receivables Advance Rate”
means 80 per cent.


 


“C
Take-Out Adjustment Percentage” means when the C Take-Out Financing is not the Final
C Take-Out Financing the result (whether positive or negative, expressed as a
percentage) of the following equation:


 


A minus B divided by C


 


(a)           where
“A” equals the proceeds of the C
Take-Out Financing (less any Eligible Cash or Eligible Cash Equivalents)


 


(b)           where
“B” equals the Borrower Asset Value
transferred into the C Take-Out Financing multiplied by the C Advance Rate at
the previous Reporting Date; and


 


(c)           where
“C” is the Borrower Asset Value of all C
Borrowers as at the previous Reporting Date less the Borrower Asset Value
transferred into such C Take-Out Financing multiplied by the C Advance Rate as
at the previous Reporting Date.


 


“C Take-Out Financing” means any Take-Out Financing in
relation to the C Facility.


 


“Calculation Date”
means:


 


(a)           a
First Calculation Date or a Second Calculation Date; and


 


(b)           in
the case of an A Facility, the Optional A Calculation Date.


 


“Canadian Advance”
means any Advance made to a Canadian Borrower.


 


18

















 


“Canadian Borrower” means Hertz Canada Limited and any other
Borrower that is (a) resident or deemed to be resident in Canada for the
purposes of the Income Tax Act (Canada), (b) a partnership that is a “Canadian
partnership” within the meaning of the Income Tax Act (Canada) or (c) deemed to
be resident in Canada for the purposes of Part XIII of the Income Tax Act
(Canada) in respect of any payments made by such Borrower in relation to this
Agreement.


 


“Canadian Guarantor” means subject to Clause 21.27 (Canadian Guarantor), Hertz Canada Limited and any other
Canadian Entity becoming an Additional Guarantor.


 


“Canadian Outstandings” means all amounts outstanding under
this Agreement from time to time in relation to all Canadian Advances
(including the Canadian Swingline Advances).


 


“Canadian Permitted Bank” means each of BNP Paribas (Canada)
and any replacement Bank appointed pursuant to Clause 4.8(d) (Canadian Advances), in each case acting through its Facility
Office in Canada.


 


“Canadian Pro-Rata Share” means, in relation to a
Non-Canadian Bank in respect of any Facility (or, in the case of any A
Facility, the relevant Tranche), the percentage set forth in respect of such
Non-Canadian Bank and relevant Facility or Tranche (as the case may be) in
Schedule 17 (Canadian Pro-Rata Share).


 


“Canadian Reorganisation” means 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 Target, in consideration for which the Target shall deliver to Hertz NL
BV a note issued by the Target and payable on demand in the principal amount of
approximately $490,000,000 (the “Hertz Note”);


 


(b)           the
distribution by the Target of the Hertz Canada Common Shares and the preferred
shares of Hertz Canada held by the Target (together with the Hertz Canada
Common Shares, the “Hertz Canada Shares”)
as a dividend to CCMG Investor LLC, a Subsidiary of Acquisition Corp. and the
sole stockholder of the Target 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 Target (the “Hertz Shares”),
representing all of the then issued and outstanding shares of the Target’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 Target as a contribution;


 


19

















 


(f)            the
merger of CCMG Acquisition Corp. with and into the Target;


 


(g)           the
sale by the Target of the CMGC Canada Shares to Hertz International Ltd., in
consideration for which Hertz International Ltd. will enter into an agreement
with the Target, Hertz International Ltd. and Hertz NL BV pursuant to which the
Target will be released from its obligations under the Hertz Note, which shall
be cancelled, and the Parent 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 the Parent 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 Equipment Ltd.
for preferred shares of Matthews Equipment Ltd. of equal value, and the
subscription by CCMG HERC Sub, Inc., a Wholly-Owned Subsidiary of HERC, for
common shares of Matthews Equipment Ltd.; and


 


(l)            all
transactions relating thereto.


 


“Canadian Revolving Sale Right” has the meaning set out in
Clause 4.8(b) (Canadian Advances).


 


“Canadian Sale Right” means, in respect of a Facility (or, in
the case of any A Facility, the relevant Tranche), a Canadian Revolving
Sale Right or Canadian Swingline Sale Right in relation to such Facility or
Tranche (as the case may be).


 


“Canadian Sale-Saleback Transaction” means a sale and
conditional saleback arrangement, between Hertz Canada Limited and an SPV,
consummated to effect a Take-Out Financing with respect to Hertz Canada Limited
and which provides for the conditional purchase by Hertz Canada Limited of
personal property from such SPV.


 


“Canadian Swingline Advance” means any Swingline Advance
denominated in Canadian Dollars made to a Canadian Borrower.


 


“Canadian Swingline Rate” means, in respect of any Term
applicable to a Canadian Swingline Advance, the rate offered by the Canadian
Permitted Bank (as notified to the Facility Agent) for deposits in such
currency for such Term or, if there is more than one Canadian Permitted Bank,
the weighted average of the quotations offered by each Canadian Permitted Bank
(as notified to the Facility Agent) for deposits in such


 


20

















 


currency for such
Term (weighted in proportion to the percentage participation of such Canadian
Permitted Bank in such Swingline Advance) pursuant to Clause 10.2(b) (Interest Rate Determination).


 


“Canadian Swingline Sale Right” has the meaning set out in
Clause 5.4(e) (Swingline Banks’
Participation).


 


“Capital Expenditure” means, with
respect to any person for any period, the sum of the aggregate of all
expenditures by such person and its consolidated subsidiaries during such period
for property, plant, equipment and revenue earning equipment which, in
accordance with the Applicable Accounting Principles (extant as at the date of
this Agreement), are or should be included in “capital expenditures”, net of
(a) the application of insurance monies in the reinstatement or repair of
assets in respect of which such insurance monies were attained, (b) expenditure
on (i) Reinvested Amounts and (ii) the amount invested in Permitted
Acquisitions or Permitted Investments and (c) dispositions of property, plant,
equipment and revenue earning equipment during such period.  For the avoidance of doubt, the sum of the
aggregate of all expenditures by such person during such period for revenue
earning equipment (including, without limitation, vehicles and Equipment) net
of the Net Cash Proceeds of disposition of such revenue earning equipment in
the ordinary course of business thereof shall constitute Capital Expenditures.


 


“Capital Stock” means 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.


 


“Capitalised Cost”
means:


 


(a)           with
respect to each vehicle purchased by a Borrower (or, if such Borrower is a
Financeco, its Related Opco), the price paid for such vehicle to the Vehicle
Dealer, Vehicle Manufacturer or other person selling such vehicle (including
profit and delivery charges but excluding taxes and any registration or titling
fees unless capitalised by the relevant Borrower in accordance with past
practices), less any rebates, credits or similar incentives received or
receivable in respect of such vehicle to the extent applied by the relevant
Borrower in accordance with its past practice to reduce the capitalized cost of
such vehicle; and


 


(b)           with
respect to Equipment purchased by a Borrower (or, if such Borrower is a
Financeco, its Related Opco), the price paid for such Equipment to the Vehicle
Manufacturer or other person selling such Equipment (including profit and
delivery charges but excluding taxes and any registration or titling fees),
less any rebates, credits or similar incentives received or receivable in respect
of such Equipment to the extent applied by the relevant Borrower in accordance
with its past practice to reduce the capitalized cost of such Equipment.


 


“Carlyle” means TC Group L.L.C. (which operates under the
trade name The Carlyle Group).


 


21

















 


“Carlyle Investors” means collectively (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) CEPII U.S. Investments, L.P., a Delaware limited
partnership, or any successor thereto, (e) any affiliate of any of the
foregoing and (e) any successor in interest to any of the foregoing.


 


“Carve Out Period” means the period:


 


(a)           starting on the later of:


 


(i)            the first anniversary date of the
first utilisation of any A Facility; and


 


(ii)           the
date occurring three months after the date of any Securities Demand (which
shall, in any event, be no later than the date occurring fifteen months after
the Closing Date); and


 


(b)           ending on the 90th calendar day
thereafter.


 


“Cash Collateral” means, in relation to any Letter of Credit
or L/C Proportion of a Letter of Credit, a Euro deposit in such interest-bearing
account or accounts as the Facility Agent may, acting reasonably, specify, such
deposit and account to be secured in favour of, and on terms and conditions
reasonably acceptable to, the Security Agent or the relevant L/C Issuer, as the
case may be.


 


“Cash Equivalents” means investments in:


 


(a)           marketable
obligations of or guaranteed or insured by (i) the United Kingdom, the United
States of America, France, Germany, Australia, Canada or Canadian provinces,
(ii) any other European Union member state in which the Group has operations,
(iii) any country in whose currency funds are being held specifically pending
application in the making of an investment or Capital Expenditure by the Group
in that country with such funds or (iv) any other country being a country
having one of the two highest rating categories obtainable from any Rating
Agency, or (v) an agency or instrumentality of any thereof;


 


(b)           time
deposits, certificates of deposit, notes and acceptances issued by (i) banks
which are authorised persons with permission to accept deposits under the
Financial Services and Markets Act 2000 or by building societies under the
Building Societies Act 1986, (ii) banks or institutions authorised to operate
as banks that are Finance Parties or (iii) by authorised deposit-taking
institutions or institutions authorised to operate as banks in any of the
countries referred to in paragraph (a) above, having capital and surplus in
excess of $500,000,000 and the commercial paper of the holding company of which
is rated not less than A-1 or the equivalent thereof by S&P or not less
than P-1 or the equivalent thereof by Moody’s (or if at such time neither is
issuing ratings, then a comparable rating of another nationally recognised
rating agency);


 


22

















 


(c)           money
market instruments, commercial paper or other short term obligations rated not
less than A1 by S&P or not less than P1 by Moody’s, or (where a bank or
building society is rated by both S&P and by Moody’s) is rated not less
than A1 by S&P and not less than P1 by Moody’s;


 


(d)           any cash deposited as collateral
against securitised receivables; or


 


(e)           other investments agreed between the
Facility Agent and the Parent.


 


“CCMGC” means CCMG Corporation, a Delaware corporation.


 


“CD&R” means Clayton, Dubilier & Rice, Inc.


 


“CD&R Investors” means, collectively (a) Clayton,
Dubilier & Rice Fund VII, L.P., a Cayman Islands exempted limited
partnership, or any successor thereto, (b) CD&R CCMG Co-Investor L.P., a
Cayman Islands exempted limited partnership, or any successor thereto, (c)
CD&R Parallel Fund VII, L.P., a Cayman Islands exempted limited
partnership, or any successor thereto, (d) any affiliate of any of the foregoing,
and (e) any successor in interest to any of the foregoing.


 


“Centre of Main Interests” has the meaning given to it in
Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on
Insolvency Proceedings.


 


“Certain Funds Event of Default” means any circumstance
constituting an Event of Default under any of the following Clauses:


 


(a)           Clause 23.2
(Misrepresentation) by virtue of a breach
of any of the Certain Funds Repeated Representations;


 


(b)           Clause 23.5
(Insolvency and Rescheduling) so far as
it relates to Holdco;


 


(c)           Clause 23.6
(Winding-up) so far as it relates to
Holdco; and


 


(d)           Clause 23.11 (Unlawfulness and Invalidity).


 


“Certain Funds Period” means the period from and including
the date of this Agreement to and including the earlier of:


 


(a)           the Closing Date; and


 


(b)           28 February 2006.


 


“Certain Funds Repeated Representations” means each of the
representations set out in Clause 19.1 (Status),
Clause 19.3 (Binding Obligations),
Clause 19.4 (Execution of the Finance Documents)
Clause 19.8 (Validity and Admissibility in Evidence), Clause 19.25 (US Government Regulations)
and Clause 19.27 (The Acquisition).


 


“Change in Consolidated Working Capital” means for any such
period, the amount of Consolidated Working Capital at the beginning of such
period minus the amount of Consolidated Working Capital at the end of such
period.


 


23














 


“Change of Control” means 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
Securities Exchange Act of 1934, as amended from time to time) of (x) so long
as CCMGC is a subsidiary of any Parent Entity, shares of Voting Stock having
less than 51% of the total voting power of all outstanding shares of such
Parent Entity (other than a Parent Entity that is a subsidiary of another
Parent Entity) and (y) if CCMGC is not a subsidiary of any Parent Entity,
shares of Voting Stock having less than 51% of the total voting power of all
outstanding shares of CCMGC;


 


(b)           on
and after the date of the initial registered public offering of CCMGC’s or any
Parent Entity’s Voting Stock, (i) (x) the Permitted Holders shall in the
aggregate be the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under
the Securities Exchange Act of 1934, as amended from time to time) 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 Securities Exchange Act of 1934, as
amended from time to time), 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 a 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; or


 


(c)           CCMGC
shall cease to own, directly or indirectly, 100% of the Capital Stock of the
Parent,


 


provided that for
the purposes of this paragraph “Voting Stock”
shall mean shares of Capital Stock entitled to vote generally in the election
of directors.


 


“Clean-Up Date” means the date falling 120 days after the
Closing Date.


 


“Closing Date” means the date of the completion of the
Acquisition.


 


“Collateralisation Ratio” means in relation to any C
Borrower:


 


(a)           on
the Closing Date, 100%; and


 


(b)           on
each Collateralisation Test Date, the ratio (expressed as a percentage) equal
to (i) that Borrower’s Borrower Equipment Market Value divided by (ii) that
Borrower’s Borrower Equipment NBV, in each case calculated as at such


 


24

















 


Collateralisation Test Date (provided that such ratio
shall not be more than 100%).


 


“Collateralisation Test
Date” means each anniversary of the Closing Date.


 


“Commitment”
means:


 


(a)           when
designated “A1”:


 


(i)            in
relation to a Bank which is a party hereto as at the date hereof, the amount in
each currency set opposite its name under the heading “A1 Commitment”
in Part 1 of Schedule 1 (The Banks and their
Commitments) and the amount in such currency of any other
A1 Commitment transferred to it under this Agreement; and


 


(ii)           in
relation to any other Bank, the amount in such currency of any
A1 Commitment transferred to it under this Agreement,


 


to the extent not cancelled, reduced or transferred by
it under this Agreement;


 


(b)           when
designated “A1 Tranche”:


 


(i)            in
relation to a Bank which is a party hereto as at the date hereof, the amount in
the currency set opposite its name under the heading “A1 Commitment”
in Part 1 of Schedule 1 (The Banks and their
Commitments) in relation to the relevant A1 Tranche and the amount
in such currency of any other A1 Tranche Commitments transferred to it under
this Agreement; and


 


(ii)           in
relation to any other Bank, the amount in such currency of any A1 Tranche
Commitments transferred to it under this Agreement,


 


to the extent not cancelled, reduced or transferred by
it under this Agreement;


 


(c)           when
designated “A2”:


 


(i)            in
relation to a Bank which is a party hereto as at the date hereof, the amount in
each currency set opposite its name under the heading “A2 Commitment”
in Part 1 of Schedule 1 (The Banks and their
Commitments) and the amount in such currency of any other
A2 Commitment transferred to it under this Agreement; and


 


(ii)           in
relation to any other Bank, the amount in such currency of any
A2 Commitment transferred to it under this Agreement,


 


to the extent not cancelled, reduced or transferred by
it under this Agreement;


 


(d)           when
designated “A2 Tranche”:


 


(i)            in
relation to a Bank which is a party hereto as at the date hereof, the amount in
the currency set opposite its name under the heading “A2
Commitment” in Part 1 of Schedule 1 (The Banks
and their


 


25

















 


Commitments) in relation to the relevant A2 Tranche
and the amount in such currency of any other A2 Tranche Commitments transferred
to it under this Agreement; and


 


(ii)           in
relation to any other Bank, the amount in such currency of any A2 Tranche
Commitments transferred to it under this Agreement,


 


to the extent not cancelled, reduced or transferred by
it under this Agreement;


 


(e)           when
designated “C”:


 


(i)            in
relation to a Bank which is a party hereto as at the date hereof, the amount in
Euro set opposite its name under the heading “C Commitment”
in Part 1 of Schedule 1 (The Banks and their
Commitments) and the amount in Euro of any other C Commitment
transferred to it under this Agreement; and


 


(ii)           in
relation to any other Bank, the amount in Euro of any C Commitment transferred
to it under this Agreement,


 


to the extent not cancelled, reduced or transferred by
it under this Agreement;


 


(f)            when
designated “A1 Swingline”:


 


(i)            in
relation to a Bank which is a party hereto as at the date hereof, the amount in
Euro set opposite its name under the heading “A1 Swingline
Commitment” in Part 2 of Schedule 1 (The Banks
and their Commitments) and the Euro Amount of any other A1 Swingline
Commitment transferred to it under this Agreement; and


 


(ii)           in
relation to any other Bank, the Euro Amount of any A1 Swingline Commitment
transferred to it under this Agreement,


 


to the extent not cancelled, reduced or transferred by
it under this Agreement;


 


(g)           when
designated “A2 Swingline”:


 


(i)            in
relation to a Bank which is a party hereto as at the date hereof, the amount in
Euro set opposite its name under the heading “A2 Swingline
Commitment” in Part 2 of Schedule 1 (The Banks
and their Commitments) and the Euro Amount of any other A2 Swingline
Commitment transferred to it under this Agreement; and


 


(ii)           in
relation to any other Bank, the Euro Amount of any A2 Swingline Commitment
transferred to it under this Agreement,


 


to the
extent not cancelled, reduced or transferred by it under this Agreement; and


 


26

















 


(h)           when
designated “C Swingline”:


 


(i)            in
relation to a Bank which is a party hereto as at the date hereof, the amount in
Euro set opposite its name under the heading “C Swingline
Commitment” in Part 2 of Schedule 1 (The Banks
and their Commitments) and the amount in Euro of any other C
Swingline Commitment transferred to it under this Agreement; and


 


(ii)           in
relation to any other Bank, the amount in Euro of any C Swingline Commitment
transferred to it under this Agreement,


 


to the
extent not cancelled, reduced or transferred by it under this Agreement; and


 


(i)            without
any such designation, the “A1 Commitment”,
the “A2 Commitment”, the “C Commitment”, the “A1 Swingline Commitment”,
the “A2 Swingline Commitment” and/or the “C Swingline Commitment” as the context requires.


 


“Commitment Letter” means the letter entitled “International
Securitization Bridge Commitment Letter” dated 18 November 2005 among the
Arrangers and Holdco.


 


“Consolidated Net Profit” means, for any period, net profit
of the Parent and its consolidated subsidiaries for such period, determined on
a consolidated basis in accordance with the Applicable Accounting Principles as
at the date hereof.


 


“Consolidated
Working Capital” means, at the date of determination
thereof, the aggregate amount of all current assets (excluding cash, Cash
Equivalents, pensions assets, interest receivable, income or corporation tax
receivable, the effects (if any) of the application of purchase accounting and
the fair value of Hedging Transactions) minus
the aggregate amount of all current liabilities (excluding the current
maturities of Financial Indebtedness, interest payable, provisions, pensions
liabilities, corporation tax payable, distributions and redemptions payable,
the effects (if any) of the application of purchase accounting and the fair
value of any Hedging Transactions).


 


“Continuing Directors” means 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.


 


“Coordinator” means Hertz Europe Limited
or any other subsidiary of the Parent which has replaced the existing
Coordinator pursuant to and in accordance with Clause 39.7 (Change of Coordinator).


 


“Core Countries Risk Vehicle Percentage “ means, in relation
to the A1 Borrowers and the A2 Borrowers and as at each Calculation Date, the
ratio (expressed as a percentage), equal to (a) the Euro Amount of the
aggregate Net Book Value of the Risk Vehicles of all A1 Borrowers and A2
Borrowers (or if any such Borrower is a


 


27

















 


Financeco, its
Related Opco) divided by (b) the Euro Amount of the aggregate of the
Borrower Fleet NBV of all such Borrowers, in each case as at such Calculation
Date.


 


“Core Country” means:


 


(a)           when
designated “A”, Australia, Belgium, Canada,
France, Germany, Italy, The Netherlands, Spain, Switzerland or the United
Kingdom;


 


(b)           when
designated “C”, France or Spain; and


 


(c)           without
any such designation, an “A Core Country”
and/or a “C Core Country”, as the context
requires.


 


“Core Country Equipment Assets” means, at any Calculation
Date and in relation to any C Borrower (or if such Borrower is a Financeco, its
Related Opco):


 


(a)           Equipment
that (x) is legally and beneficially owned by such Borrower or its Related Opco
(as the case may be), (y) is not damaged (other than as a result of ordinary
wear and tear) and (z) has been fully paid for by such Borrower or its Related
Opco (as the case may be) provided that:


 


(i)            in
relation to a Borrower that is an SPV, any Equipment which is leased by such
SPV to its Related Opco pursuant to a finance or capital lease will be deemed
to comply with clause (x) above if such Equipment is legally and beneficially
owned by such SPV and/or its Related Opco;


 


(ii)           except
as provided in paragraph (i) above, no Equipment that is the subject of any
finance or capital lease shall be included in this paragraph (a); and


 


(b)           Equipment
that has been purchased by such Borrower or its Related Opco (as the case may
be) but has not been fully paid for by such Borrower or its Related Opco (as
the case may be) provided:


 


(i)            such
Equipment has been delivered to, and will be paid for by, such Borrower or its
Related Opco (as the case may be) no more than 30 days after such
Calculation Date;


 


(ii)           the
outstanding purchase price in relation to such Equipment will be paid directly
from (x) the proceeds of an Advance made under the C Facility immediately
after the Settlement Date relating to such Advance and (y) the cash and Cash
Equivalents of such Borrower or its Related Opco (as the case may be); and


 


(iii)          upon
such payment by such Borrower or its Related Opco (as the case may be) in
accordance with paragraph (b)(ii) above, title to such Equipment will
immediately be transferred to such Borrower or its Related Opco (as the case
may be) free of any security (other than any security arising by operation of
law) and any retention rights arising in favour of the relevant Equipment
Manufacturer or any other third party.


 


28

















 


“Core Country Fleet” means, at any Calculation Date and in
relation to any A1 Borrower or A2 Borrower (or if such Borrower is a
Financeco, its Related Opco):


 


(a)           each
vehicle that (x) is legally and beneficially owned by such Borrower or its
Related Opco (as the case may be), (y) is not damaged (other than as a result
of ordinary wear and tear) and (z) has been fully paid for by such Borrower or
its Related Opco (as the case may be), provided that:


 


(i)            in
relation to a Borrower that is an SPV, any vehicle which is leased by such SPV
to its Related Opco pursuant to a finance or capital lease will be deemed to
comply with clause (x) above if such vehicle is legally and beneficially owned
by such SPV and/or its Related Opco;


 


(ii)           in
relation to Hertz (UK) Ltd and any vehicle which is the subject of an Eligible
Lombard Leasing Agreement, such vehicle will be deemed to comply with clauses
(x) and (z) above (1) if Hertz (UK) Ltd has made payment of the Minimum Sales
Price (as defined in, pursuant to and in accordance with such Eligible Lombard
Leasing Agreement) in relation thereto prior to or no more than 30 days after
such Calculation Date (notwithstanding that title to such vehicle will be
retained by Lombard in accordance with such Eligible Lombard Leasing Agreement)
and (2) for so long as such vehicle remains an Eligible Lombard Vehicle; and


 


(iii)          except
as provided in paragraph (i) or (ii) above, no vehicle which is the subject of
any UK Capital Lease Indebtedness, any Dutch Capital Lease Indebtedness or any
other finance or capital lease, in each case as at such Calculation Date, shall
be included in this paragraph (a); and


 


(b)           each
vehicle that has been purchased by such Borrower or its Related Opco (as the
case may be) but has not been fully paid for by such Borrower or its Related
Opco (as the case may be) provided:


 


(i)            such
vehicle has been delivered to, and will be paid for by, such Borrower or its
Related Opco (as the case may be) no more than 30 days after such Calculation
Date;


 


(ii)           the
outstanding purchase price in relation to such vehicle will be paid directly
from (x) the proceeds of an Advance made under the relevant A Facility
immediately after the Settlement Date relating to such Advance, and (y) the
cash and Cash Equivalents of such Borrower or its Related Opco (as the case may
be); and


 


(iii)          upon
such payment by such Borrower or its Related Opco (as the case may be) in
accordance with paragraph (b)(ii) above, title to such vehicle will immediately
be transferred to such Borrower or its Related Opco (as the case may be) free
of any security (other than any security arising by operation of law) and any
retention rights arising in favour of the relevant Vehicle Manufacturer or any
other third party.


 


29

















 


“CORRA” means, on any date, the overnight repo rate which
appears under the heading “Financial Statistics - Money Market Yields” on Bank
of Canada’s website in respect of that day and which is the weighted average of
GC (non-specific collateral) traded through and reported by Freedom
International Brokerage Inc., Prebon Yamane (Canada) Ltd. and Shorcan Brokers
Ltd.


 


“Defaulted Receivable” means any receivable written off
according to the company’s usual practices.


 


“Depreciation Charge” means, with respect to each vehicle or
Equipment, a percentage equal to the product of (a) the applicable Depreciation
Percentage multiplied by (b) the applicable Capitalised Costs.


 


“Depreciation Percentage” means:


 


(a)           with respect to each vehicle:


 


(i)            which
is not a Risk Vehicle, a percentage calculated on the basis of straight line
amortisation of such vehicle (with the applicable rate of amortisation
calculated on the basis of the Capitalised Cost of such vehicle amortised to
the reasonably anticipated date of buy-back under the Buy-Back Agreement
relating to such vehicle and the specified repurchase price thereof under such
Buy-Back Agreement); and


 


(ii)           which
is a Risk Vehicle, a percentage calculated on the basis of straight line
amortisation of such vehicle (with the applicable rate of amortisation
calculated on the basis of the Capitalised Cost of such vehicle amortised to
the reasonably anticipated date of sale or other disposal of such vehicle and
the reasonably anticipated residual value thereof as of such date); and


 


(b)           with
respect to each Equipment:


 


(i)            which
is subject to a Buy-Back Agreement, a percentage calculated on the basis of
straight line amortisation of such Equipment (with the applicable rate of
amortisation calculated on the basis of the Capitalised Cost of such Equipment
amortised to the reasonably anticipated date of buy-back under the Buy-Back
Agreement relating to such Equipment and the specified repurchase price thereof
under such Buy-Back Agreement); and


 


(ii)           which
is not subject to a Buy-Back Agreement, a percentage calculated on the basis of
straight line amortisation of such Equipment (with the applicable rate of
amortisation calculated on the basis of the Capitalised Cost of such Equipment
amortised to the reasonably anticipated date of sale or other disposal of such
Equipment and the reasonably anticipated residual value thereof as of such
date),


 


provided
further, that with respect to the foregoing determinations (including, without
limitation, any residual value of any vehicles or Equipment), such
determinations shall be made no less frequently than once in each three month


 


30

















 


period
and, on each additional date, as may be required by the Applicable Accounting
Principles.


 


“Designated Currency” means:


 


(a)           in
the case of the A1 Sterling Tranche and the A2 Sterling Tranche, Sterling or,
subject to Clause 2.1(b) (Grant of the Facilities),
Euro;


 


(b)           in
the case of the A1 Australian Dollar Tranche and the A2 Australian Dollar
Tranche, Australian Dollars;


 


(c)           in
the case of the A1 Canadian Dollar Tranche and the A2 Canadian Dollar Tranche,
Canadian Dollars;


 


(d)           in
the case of the A1 Italian Non-Guaranteed Tranche and the A2 Italian
Non-Guaranteed Tranche, Euro;


 


(e)           in
the case of the A1 Swiss Franc Tranche and the A2 Swiss Franc Tranche, Swiss
Francs or, subject to Clause 2.1(b) (Grant of the Facilities),
Euro;


 


(f)            in
the case of the A1 Swingline Facility and the A2 Swingline Facility, Sterling,
Australian Dollars, Canadian Dollars, Swiss Francs and Euro;


 


(g)           in
the case of the A1 Euro Tranche, the A2 Euro Tranche and the Permitted Euro
Tranche, Euro;


 


(h)           in
the case of the C Facility, Euro or, subject to Clause 2.1(c) (Grant of the Facilities), Sterling, Australian Dollars,
Canadian Dollars, Swiss Francs and Euro; and


 


(i)            in
the case of the C Swingline Facility, Euro.


 


“Designated Currency Amount” means, in relation to any amount required
to be determined hereunder, (a) if such amount (or portion thereof) is
denominated in a Designated Currency, such amount or portion in such Designated
Currency and (b) if such amount (or portion thereof) is denominated in a
currency other than such Designated Currency, the Designated Currency
Equivalent of such amount or portion, in each case as at such date of
determination.


 


“Designated Currency Equivalent” means, in relation to an
amount denominated or expressed in any currency other than the relevant
Designated Currency, the equivalent thereof in such Designated Currency
calculated at the Spot Rate of Exchange as at the relevant date of determination.


 


“Designated Obligor” means a member of the Group that is (a)
a borrower under a Designated Obligor Intercompany Loan Agreement that has been
accepted as a Designated Obligor for the purposes of this Agreement in
accordance with Clause 39.4 (Request for Designated
Obligor) and Clause 39.5 (Designated Obligor
Conditions Precedent) and has not ceased to be regarded as a
Designated Obligor under Clause 39.6 (Cessation of a Designated
Obligor) or (b) a Guarantor.


 


31

















 


“Designated Obligor Charge” means a first ranking security
assignment (or equivalent first ranking security interest) in the agreed form
or otherwise in form and substance satisfactory to the Security Agent (acting
reasonably) executed or to be executed in favour of a Borrower that on-lends
the proceeds of any Advance to a Designated Obligor under a Designated Obligor
Intercompany Loan Agreement, as security for actual, contingent, present and/or
future obligations and liabilities of such Designated Obligor under or pursuant
to such Designated Obligor Intercompany Loan Agreement.


 


“Designated Obligor Intercompany Loan Agreement” means an
intercompany loan agreement in the agreed form or otherwise in form and
substance satisfactory to the Security Agent (acting reasonably) between a
Borrower, as lender, and a Designated Obligor, as borrower, which provides for
the lending by such Borrower to such Designated Obligor of proceeds of any
Advance.


 


“Designated Obligor Re-Charge” means a first ranking
security assignment (or equivalent first ranking security interest) granted by
a Borrower that borrows an Advance the proceeds of which are to be on-lent
to a Designated Obligor under a Designated Obligor Intercompany Loan Agreement
in respect of such Designated Obligor Intercompany Loan Agreement and the
related Designated Obligor Charge in the agreed form or otherwise in form and
substance satisfactory to the Security Agent (acting reasonably) executed or to
be executed in favour of the Finance Parties represented by the Security Agent,
as security for all the actual, contingent, present and/or future obligations
and liabilities of the relevant Borrower under or pursuant to the Finance
Documents.


 


“Disclosure Letter” means the letter dated on or about the
date of this Agreement from the Parent to the Facility Agent in the agreed form
and headed “Disclosure Letter”.


 


“Dispute” has the meaning given to it in Clause 47.1 (English Courts).


 


“Double Taxation Treaty” means in relation to any payment made by
an Obligor to any Finance Party hereunder or under the Finance Documents, any
convention or agreement between the jurisdiction imposing any tax on such
payment and any other jurisdiction for the avoidance of double taxation with
respect to such taxes.


 


“Dutch Banking Act” means the Dutch Act on the Supervision of
the Credit System 1992 (Wet toezicht kredietwezen
1992).


 


“Dutch Borrower” means each Borrower incorporated in The
Netherlands.


 


“Dutch Capital Lease Indebtedness” means, at any time, the
aggregate amount of the liability of each Borrower (or if such Borrower is a
Financeco, its Related Opco) organised in The Netherlands under any finance or
capital leases or in respect of any hire purchase payments, at such time.


 


“Dutch Central Bank” means De Nederlandsche Bank N.V.


 


“EBITDA” means, for any period, the sum of Consolidated Net
Profit for such period adjusted (i) to exclude the following items (without
duplication) of income or expense


 


32

















 


to the extent that
such items are included in the calculation of Consolidated Net Profit: (a)
Interest Expense, (b) any non-cash expenses and charges, (c) total income tax
expense, (d) depreciation expense, (e) the expense associated with amortization
of intangible and other assets (including amortization or other expense
recognition of any costs associated with asset write-ups in accordance with APB
Nos. 16 and 17), (f) non-cash provisions for reserves for discontinued
operations (to the extent that the cash costs related to such reserved expenses
are deducted from EBITDA when such cash costs are incurred), (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 Company, (h) any gain or loss associated with the sale or write-down
of assets not in the ordinary course of business, and (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 or any of its subsidiaries by the entity accounted for by
the equity method of accounting) and (ii) by reducing EBITDA (as otherwise determined
above) by the amounts permitted pursuant to clause (a) of the definition of “Permitted Distributions” (other than clause (a)(iii)) paid
by the Parent during the relevant period, unless such amount has resulted in,
or will result in a reduction of EBITDA as calculated pursuant to clause (i)
above.


 


“EFS” means Equipole Finance Services SAS.


 


“Eligibility Criteria” means each of the matters required to
be satisfied in order for a person to be an Eligible Borrower.


 


“Eligible Borrower” means:


 


(a)           in
relation to any A Facility (each such person an “A1 Eligible
Borrower” or an “A2 Eligible Borrower”
as the case may be) an SPV or a Financeco which has entered into for itself (or
in the case of an Australian Borrower, by its Related Opco):


 


(i)            in
the case of an SPV (A) Vehicle Manufacturer Buy-Back Agreements and Vehicle
Manufacturer Guarantees with the relevant Vehicle Manufacturers or (B) Vehicle
Dealer Buy-Back Agreements and Vehicle Dealer Buy-Back Guarantees with the
relevant Vehicle Dealers, and (C) one or more leasing agreements or, in the
case of an SPV whose related Opco is organised in Canada or a partnership that
is a “Canadian partnership” within the meaning of the Income Tax Act (Canada),
one or more conditional sale agreements and other related ancillary agreements,
in each case with a Related Opco and in form and substance satisfactory to the
Facility Agent, acting reasonably and consistent with then customary
securitisation standards; and


 


(ii)           in
the case of a Financeco, lending or other financing agreements with one or more
Opcos or SPVs, in each case, in form and substance satisfactory to the Facility
Agent (acting reasonably and consistent


 


33

















 


with
then customary securitisation standards) and, in each case, which has satisfied
any criteria set out in Schedule 13 (Eligible Customer
Receivables Criteria) in respect of its jurisdiction of
incorporation.


 


(b)           in
relation to the C Facility (each such person a “C Eligible
Borrower”) an SPV or Financeco which has satisfied any criteria set
out in Schedule 13 (Eligible Customer
Receivables Criteria) in respect of its jurisdiction of
incorporation for the C Facility, which has entered into:


 


(i)            in
the case of an SPV, (A) Equipment Manufacturer Buy-Back Agreements with the
relevant Equipment Manufacturers and (B) leasing agreements, in each case,
to the extent available on commercially reasonable terms and in any event in
form and substance satisfactory to the Facility Agent (acting reasonably and consistent
with then customary securitisation standards); and


 


(ii)           in
the case of a Financeco, lending, or in the case of a Financeco which is also
an SPV, leasing or other operational agreements with one or more Opcos or with
the one or more SPVs and in each case, in form and substance satisfactory to
the Facility Agent (acting reasonably and consistent with then customary
securitisation standards) and, in each case, which has satisfied any criteria
set out in Schedule 13 (Eligible Customer
Receivables Criteria) in respect of its jurisdiction of
incorporation.


 


“Eligible Cash” means, at any time and in relation to any
Borrower (or if such Borrower is a Financeco, its Related Opco), all cash of
such Borrower or its Related Opco (as the case may be) at such time provided
that (a) the Security Agent has a first priority perfected security interest in
respect of such cash (including any lockbox account in which such cash is
maintained) giving the Security Agent control over the use or application of
such cash and/or such lockbox account in which such cash is maintained, and the
Security Agent is provided with legal opinions of counsel in form and substance
reasonably satisfactory to it as to such security interest or (b) such cash is
deposited in the Security Agent Account.


 


“Eligible Cash Equivalents” means, at any time and in
relation to any Borrower (or if such Borrower is a Financeco, its Related
Opco), any Cash Equivalents of such Borrower or its Related Opco (as the case
may be) at such time provided that (a) the Security Agent has a first priority
perfected security interest in respect of such Cash Equivalents (including any
lockbox account or securities account in which such Cash Equivalents are
maintained) giving the Security Agent control over the use or application of
such Cash Equivalents and/or such lockbox account or securities account in
which such Cash Equivalents are maintained, and the Security Agent is provided
with legal opinions of counsel in form and substance reasonably satisfactory to
it as to such security interest or (b) such Cash Equivalents are deposited in
the Security Agent Account.


 


34

















 


“Eligible Customer Receivables”
means, at any time and in relation to any C Borrower (or, if such Borrower is a Financeco, its
Related Opco), the aggregate of all
amounts owing to it from customers in respect of rental of any Core Country
Equipment Asset provided that:


 


(a)           in
accordance with its credit and collections policies, such receivables are
current and not more than 90 days overdue; and


 


(b)           the
criteria set out in Schedule 13 (Eligible Customer
Receivables Criteria) are satisfied.


 


“Eligible Lombard Leasing Agreement” means a Lombard Leasing
Agreement with respect to which Hertz (UK) Ltd has validly and effectively
assigned by way of security all of its rights, title, interest and benefits
thereunder in favour of the Security Agent and (a) which has not been (i)
terminated (whether automatically, voluntarily or otherwise), (ii) repudiated,
(iii) abandoned, (iv) amended, modified, supplemented or waived, to the extent
prohibited by the terms of any document pursuant to which Hertz (UK) Ltd’s
rights, title, interest and benefits under such Lombard Leasing Agreement have
been assigned by way of security in favour of the Security Agent,
(b) which has not expired according to its terms or otherwise, and
(c) pursuant to which no set-off or deduction has been claimed or
otherwise applied.


 


“Eligible Lombard Vehicle” means (a) a vehicle leased
pursuant to an Eligible Lombard Leasing Agreement for the period from the
expiry of the Fixed Period (as defined in the Eligible Lombard Leasing
Agreement) up to and excluding the seven month anniversary of such expiry date
and (b) which vehicle (i) is in the possession and control of Hertz (UK) Ltd
and is being maintained, insured, serviced and used in the ordinary course of
business of Hertz (UK) Ltd in accordance with the Eligible Lombard Leasing
Agreement, (ii) is not subject to any loss, theft, destruction or damage (other
than ordinary wear and tear), (iii) is subject to insurance paid for, and for
the benefit of, Hertz (UK) Ltd equivalent to (or more comprehensive than) the
insurance then maintained for vehicles owned by Hertz (UK) Ltd and such
insurance shall otherwise be in compliance with the applicable Eligible Lombard
Leasing Agreement, (iv) in respect of which no Total Loss (as defined in the
applicable Eligible Lombard Leasing Agreement) has occurred, (v) is not subject
to any claim for possession, decommissioning, re-transfer, delivery, storage or
replacing by Lombard or any other person and which is otherwise being
maintained or otherwise used in accordance with the applicable Eligible Lombard
Leasing Agreement, (vi) has not been sold or otherwise disposed of to any person,
and (vii) is not subject to any legal proceedings or claims materially adverse
to the interests of the Banks.


 


“Eligible Receivables” means, at any time and in relation to:


 


(a)           any
A1 Borrower or A2 Borrower (or if such Borrower is a Financeco, its Related
Opco):


 


(i)            its
Vehicle Manufacturer Receivables (other than its Excluded Vehicle Manufacturer
Receivables);


 


(ii)           its
Vehicle Dealer Receivables;


 


35

















 


(iii)          its
Rebate Receivables, other than any Rebate Receivables which are included in the
amounts described in paragraphs (i) and/or (ii) above;


 


(iv)          its
Insurance Receivables, other than any Insurance Receivables in respect of any
vehicle whose Net Book Value has been included in the amounts described in
paragraphs (i) and/or (ii) above;


 


(v)           its
VAT Receivables; and


 


(b)           in
relation to any C Borrower (or if such C Borrower is a Financeco, its Related
Opco):


 


(i)            its
Equipment Manufacturer Receivables (other than its Excluded Equipment
Manufacturer Receivables);


 


(ii)           its
Insurance Receivables other than any Insurance Receivables in respect of any
Equipment whose Net Book Value has been included in the amounts described in
paragraph (i) above;


 


(iii)          its
Eligible Customer Receivables, other than Eligible Customer Receivables which
are included in any amount described in paragraphs (i) and/or (ii) above;
and


 


(iv)          its
VAT Receivables,


 


and provided, in
each case, such receivables:


 


(A)          are not more than 90 days overdue and are evidenced by
invoices in electronic or paper form;


 


(B)           if, owed by a legal entity or by an individual that is
organised or resident in a country other than a European Union member country
or the country in which such Borrower or its Related Opco (as the case may be)
is organised, the Facility Agent has been provided with legal opinions
satisfactory to it (acting reasonably) confirming that, subject to customary
reservations and assumptions, such receivables are enforceable against the
entity or individual that owes them;


 


(C)           arise in the usual course of trade of such Borrower (or, if such Borrower is a Financeco, its
Related Opco) or, which arise in the
usual course of trade of any member of the Group and have been effectively
transferred to such Borrower (or, if such Borrower is a Financeco, its
Related Opco);


 


(D)          are not owed by a sovereign debtor to the extent that the
nature of such debtor materially and adversely prejudices the ability to obtain
an effective legal assignment of such receivables;


 


(E)           are
not owed by a debtor known by any member of the Group or other Obligor to be
subject to bankruptcy or insolvency proceedings; and


 


(F)           which
can be freely transferred (or subject to equivalent security interests to the
Security Agent in any relevant jurisdiction).


 


36

















 


“Encumbrance” means (a) a mortgage, charge, pledge, lien,
transfer of title by way of security or otherwise or other encumbrance securing
any obligation of any person, (b) any arrangement under which money held with a
bank or other financial institution may be applied, set off or made subject to
a combination of accounts so as to effect discharge of any sum owed or payable
to any person or (c) any other type of preferential arrangement (including
any title transfer and retention arrangement) having a similar effect.


 


“Engagement Letter” means the letter entitled “International
Securitization Engagement Fee Letter” dated 18 November 2005 between the
Arrangers and Holdco.


 


“Environmental Claim” means any claim, proceedings or
investigation by any person pursuant to any Environmental Law.


 


“Environmental Law” means any applicable law or regulation in
any jurisdiction in which any member of the Group or other Obligor conducts
business which relates to the pollution or protection of the environment or
harm to or the protection of human health and safety or the health of animals
or plants.


 


“Environmental Permits” means any permit, licence, consent,
approval and other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of the
business of any member of the Group or other Obligor conducted on or from the
properties owned or used by the relevant member of the Group or other Obligor.


 


“Equipment” means any equipment including, but not limited
to, aerial and air breaking equipment, bungalows, compactors, earth moving
equipment, generators, handling industrial and handling rough terrain equipment
and vans used or otherwise deployed in the ordinary course of the applicable C
Borrower’s (or if such Borrower is a Financeco, its Related Opco’s) business.


 


“Equipment Manufacturer” means the manufacturer of any
Equipment.


 


“Equipment Manufacturer Buy-Back Agreement” means in relation
to any C Borrower:


 


(a)           any
purchase and buy-back agreement between such Borrower (or if such Borrower is a
Financeco, its Related Opco) and an Equipment Manufacturer entered into prior
to the date hereof with respect to any Equipment, provided that if necessary or
desirable in the reasonable opinion of the Mandated Lead Arrangers such
Borrower shall use (or if such Borrower is a Financeco, shall procure that its
Related Opco uses) its commercially reasonable efforts after the Closing Date
(or, if such Borrower is an Opco that does not have an Operational SPV as its
parent prior to the date falling six months after the Closing Date, such
Borrower shall use its reasonable best efforts after the date falling six
months after the Closing Date) to renegotiate such agreement in a manner such
that, after giving effect to any modifications or amendments as a result
thereof:


 


37

















 


(i)            the
terms and conditions of such agreement will be satisfactory to the Facility
Agent (acting reasonably) to fully value such Equipment Manufacturer’s
commitments thereunder;


 


(ii)           such
agreement will contain retention of title provisions in favour of the Borrower
or its Related Opco (as the case may be) which will enable the Rating Agencies
to give value to such Equipment Manufacturer’s payment obligations thereunder;
and


 


(iii)          such
agreement will be in form and substance satisfactory to the Facility Agent,
acting reasonably and consistent with then customary securitisation standards;
and


 


(b)           any
purchase and buy-back agreement between such Borrower or its Related Opco (as
the case may be) and an Equipment Manufacturer entered into on or after the
date hereof with respect to any Equipment provided that:


 


(i)            the
terms and conditions of such agreement are satisfactory to the Facility Agent
(acting reasonably) to fully value such Equipment Manufacturer’s commitments
thereunder; and


 


(ii)           such
agreement will contain retention of title provisions in favour of the Borrower
or its Related Opco (as the case may be) which will enable the Rating Agencies
to give value to such Equipment Manufacturer’s payment obligations thereunder;
and


 


(iii)          such
agreement will be in form and substance satisfactory to the Facility Agent,
acting reasonably and consistent with then customary securitisation standards.


 


“Equipment Manufacturer Event of Default” means, with respect
to any Equipment Manufacturer, either of the following circumstances:


 


(a)           such
Equipment Manufacturer has failed to pay when due pursuant to the terms of the
relevant Equipment Manufacturer Buy-Back Agreement and such failure continues
unremedied for a period of 90 days or more, any amounts greater than the lesser
of:


 


(i)            EUR2,000,000
(or the Designated Currency Equivalent thereof) at such time; and


 


(ii)           the
aggregate of all amounts owed by such Equipment Manufacturer to the relevant C
Borrower (or if such Borrower is a Financeco, its Related Opco) at such time
pursuant to each Equipment Manufacturer Buy-Back Agreement and such Borrower or
its Related Opco (as the case may be), without double-counting, less such
amounts that are:


 


(A)          being
contested in good faith by such Equipment Manufacturer, as evidenced in a
writing questioning the accuracy of amounts paid or payable with respect to
certain Equipment subject to Equipment Manufacturer Buy-Back Agreements entered
into


 


38

















 


by
such Equipment Manufacturer (but excluding amounts arising pursuant to a
general repudiation by such Equipment Manufacturer of all of its obligations
under all of its Equipment Manufacturer Buy-Back Agreements with such Borrower
or its Related Opco (as the case may be)); and


 


(B)           for
which such Borrower or its Related Opco (as the case may be) has established an
adequate reserve (as determined by such Borrower, acting reasonably), which
reserve is pledged to the Security Agent for the benefit of the Finance Parties
pursuant to the Security Documents,


 


provided
that the aggregate of such excluded amounts shall not exceed EUR5,000,000 (or
the Designated Currency Equivalent thereof); or


 


(b)           any
of the events described in Clauses 23.5 (Insolvency
and Rescheduling), 23.6 (Winding-up) or
23.7 (Execution or Distress) occurs in respect
of such Equipment Manufacturer.


 


“Equipment Manufacturer Receivables” means, at any time and
in relation to any C Borrower (or, if such Borrower is a Financeco, its Related
Opco), the aggregate of all amounts owed by any Equipment Manufacturer to such
Borrower or its Related Opco (as the case may be) at such time pursuant to the
disposition by such Borrower of any Equipment under any Equipment Manufacturer
Buy-Back Agreement.


 


“Equity Financing” means the proceeds of intra-group loans
and/or cash common equity contributions (or such other cash equity
contributions acceptable to the Facility Agent (acting reasonably)) made to any
Borrower by any member of the Target Group that is not an SPV provided that in
the case of any such intra-group loans and/or cash common equity
contributions made to a Borrower by (x) any person that is not a Guarantor of
such Borrower or (y) the Parent, such cash equity contributions (A) do not
contain any mandatory put, redemption, repayment, sinking fund or other similar
provision prior to the one year anniversary of the Final Maturity Date, (B) do
not require the cash payment of interest, dividends or distributions that would
otherwise not be permitted by the terms of this Agreement, (C) do not contain
any covenants (other than periodic reporting requirements and covenants to pay
amounts when due), and (D) are otherwise reasonably satisfactory to the
Facility Agent.


 


“Equity Investors” means collectively (a) the Carlyle
Investors, the CD&R Investors and the Merrill Lynch Investors, (b) any
person that acquires Voting Stock of Holdco 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.


 


“EURIBOR” means, in relation to any amount to be advanced to,
or owing by, an Obligor under the Finance Documents in Euro on which interest
for a given period is to accrue:


 


(a)           the
applicable Screen Rate as of the time specified in the Timetable on the
Quotation Date for the offering of deposits in the relevant currency for the
relevant period;


 


39

















 


(b)           if
the applicable Screen Rate is not available for the Euro for the relevant
period, the percentage rate per annum obtained by interpolating the applicable
Screen Rates for the Euro for the two periods most closely corresponding to the
relevant period as of 11.00 a.m. (London time) on each of (i) the date
occurring immediately prior to the commencement of the relevant period and (ii)
the date occurring immediately after the end of the relevant period, for such
period; or


 


(c)           if
the applicable Screen Rate is not displayed for the Euro for the relevant
period, the arithmetic mean (rounded upwards to four decimal places) of the
rates (as notified to the Facility Agent) at which each of the relevant
Reference Banks was offering to prime banks in the London interbank market
deposits in such currency of an equivalent amount and for such period as of the
time specified in the Timetable on the Quotation Date.


 


“Euro Amount” means, in relation to any amount required to be determined
hereunder, (a) if such amount (or portion thereof) is denominated in Euro, such
amount or portion in Euro and (b) if such amount (or portion thereof) is
denominated in a currency other than Euro, the Euro Equivalent of such amount
or portion, in each case as at such date of determination.


 


“Euro Equivalent” means, in relation to an
amount denominated or expressed in any currency other than Euro, the equivalent
thereof in Euro calculated at the Spot Rate of Exchange as at the relevant date
of determination.


 


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


 


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


 


“Euro MTN Obligations” means all obligations, if any, of
Hertz Canada Limited, Hertz Finance Centre plc or any Restricted Subsidiary (as
defined in the Euro MTN Fiscal Agency Agreement) under the Euro MTNs and the
Euro MTN Fiscal Agency Agreement, and any obligations of any person under the
Finance Documents for the benefit of the holders of the Euro MTNs, whether for
principal, interest (including interest, which but for the filing of a petition
in bankruptcy with respect to such person, would have accrued on any Euro MTN
Obligation, whether or not a claim is allowed against such person for such
interest in the related bankruptcy proceeding), fees, expenses, indemnification
or otherwise.


 


“European Union” means the economic and political
confederation of European nations which share a common foreign and security
policy and co-operate on justice and home affairs, the 25 member states of
which are, at the date hereof, Austria, Belgium, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy,
Latvia, Lithuania, Luxembourg, Malta, The Netherlands, Poland, Portugal, the
Slovak Republic, Slovenia, Spain, Sweden and the United Kingdom.


 


40

















 


“Event of Default” means any of the events or circumstances
described as such in Clause 23 (Events of Default).


 


“Excess Cash Flow”
means, for any period, EBITDA minus (without
duplication) (i) any Capital Expenditure made in cash during such period
(except to the extent financed with (x) net increase in indebtedness incurred
under paragraphs (n), (q) (to the extent relating to indebtedness incurred
under the Dutch Capital Lease Indebtedness and UK Capital Lease Indebtedness
(or any refinancings thereof which are made pursuant to said paragraph (q)) or
(x) of the definition of “Permitted Indebtedness”
during such period or (y) Equity Financing made during such period by any
Parent Company to any member of the Group), minus
(ii) any principal payments resulting in a permanent reduction of any Financial
Indebtedness of the Parent or any of its subsidiaries made during such period, minus (iii) Interest Expense for such period, minus (iv) any taxes paid or payable in cash during such
period (net of any refunds or rebates), minus (v)
(without duplication of paragraph (i) of this definition) any Investment
described in the definition of “Permitted Investments”
(other than with respect to Cash Equivalents and transactions between members
of the Group) which was paid in cash during such period (except to the extent
financed with (x) net increase in indebtedness incurred under paragraphs (n),
(q) (to the extent relating to indebtedness incurred under the Dutch Capital
Lease Indebtedness and UK Capital Lease Indebtedness (or any refinancings
thereof which are made pursuant to said paragraph (q)) or (x) of the definition
of “Permitted Indebtedness” during such
period or (y) Equity Financing made during such period by any Parent Company to
any member of the Group), net of any amounts received in cash in respect of
Permitted Investments, minus (vi) any
Consideration paid in cash during such period in respect of Permitted
Acquisitions (other than Permitted Acquisitions to the extent financed with (x)
net increase in indebtedness incurred under paragraphs (e), (n), (q) (to the
extent relating to indebtedness incurred under the Dutch Capital Lease
Indebtedness and UK Capital Lease Indebtedness (or any refinancings thereof
which are made pursuant to said paragraph (q)) or (x) of the definition of “Permitted Indebtedness” during such period or (y) Equity
Financing made during such period by any Parent Company to any member of the
Group), minus (vii) to the extent not included
in EBITDA, pension cash costs as advised by the Parent’s pensions actuarial
adviser including any cash cost of funding any portion of any deficit of any
retirement, redundancy, statutory or voluntary profit sharing plan or statutory
severance plan or arrangement covering individuals who are employed by any
Obligor, the Parent or any affiliate of any of them and as to which any of the
same has any direct or indirect obligation or liability for unfunded benefits
thereunder, plus (viii) the Change in
Consolidated Working Capital for such period plus
(xi) the Hertz Variable Debt Amount.


 


“Excess Risk Vehicle Haircut” means, as at any Calculation
Date, an amount equal to (a) the difference (if positive) between the Core
Countries Risk Vehicle Percentage and the Authorised Risk Vehicle Percentage
multiplied by (b) the Borrower Fleet NBV of all of the A1 Borrowers and the A2
Borrowers as at such Calculation Date.


 


“Exchange Act” means the United States Securities Exchange
Act of 1934, as amended from time to time.


 


“Excluded Canadian Company” means Matthews Equipment Ltd.,
Western Shut-Down Ltd., their respective subsidiaries and any other entity
(a) which is not an


 


41

















 


Obligor,
(b) which owns or leases Equipment which is used or otherwise deployed in
Canada in the ordinary course of such entity’s business and (c) whose
primary business purpose is to own or lease and use such Equipment.


 


“Excluded Equipment Manufacturer Receivables” means, at any
time and in relation to any C Borrower (or, if such Borrower is a
Financeco, its Related Opco), any Equipment Manufacturer Receivables that are
owed to such Borrower or its Related Opco (as the case may be) by any Equipment
Manufacturer with respect to which an Equipment Manufacturer Event of Default
has occurred.


 


“Excluded UK Vehicles” means, as at any Calculation Date, any
vehicle which would have been included in the determination of the Borrower
Fleet NBV of any A1 Borrower or A2 Borrower as at such Calculation Date if
such vehicle had not been subject to any UK Capital Lease Indebtedness as at
such Calculation Date.


 


“Excluded Vehicle Manufacturer Receivables” means, at any
time and in relation to any A Borrower (or, if such Borrower is a Financeco,
its Related Opco), any Vehicle Manufacturer Receivables that are owed to such
Borrower or its Related Opco (as the case may be) by any Vehicle Manufacturer
with respect to which a Vehicle Manufacturer Event of Default has occurred.


 


“Exemption Regulation” means the Dutch Banking Act Exemption
Regulation 1992 (Vrijstellingsregeling Wtk 1992)
dated 22 June 2002 of the Ministry of Finance of The Netherlands, as
promulgated in connection with the Dutch Banking Act.


 


“Existing Equipment Assets” means, in relation to any C
Borrower (or if such Borrower is a Financeco, its Related Opco), the Equipment
owned by it on the Closing Date or to be owned by it following a scheduled
payment to be made not later than 30 days after the Closing Date.


 


“Existing Indebtedness” means, in relation to the Group, the
Financial Indebtedness detailed in Schedule 14 (Existing
Indebtedness).


 


“Existing Vehicle Fleet” means, in relation to any A1
Borrower or A2 Borrower (or if such Borrower is an Australian Borrower or a
Financeco, its Related Opco), the vehicles owned by it on the Closing Date or
vehicles it is in possession of and which will be owned by it following a
scheduled payment to be made not later than 30 days after the Closing Date and
located in the Core Country relating to such A1 Borrower or A2 Borrower (as the
case may be).


 


“Expiry Date” means, in relation to any Letter of Credit, the
date on which the maximum aggregate liability thereunder is to be reduced to
zero.


 


“Face Amount” means, in relation to any Letter of Credit, the
maximum amount which may be claimed under such Letter of Credit by the
beneficiary thereof as specified in paragraph 1 of such Letter of Credit.


 


“Facility” means the A1 Facility, the A2 Facility, the C
Facility, the A1 Swingline Facility, the A2 Swingline Facility and/or the C
Swingline Facility, as the context requires.


 


42

















 


“Facility Office” means, in relation to the Facility Agent,
the office identified with its signature below or such other office or offices
as it may select by notice and, in relation to any Bank, each office notified
by it to the Facility Agent in writing prior to the date hereof (or, in the
case of a Transferee, at the end of the Transfer Certificate to which it is a
party as Transferee) in relation to each Designated Currency or such other
office or offices as it may from time to time select by notice to the Facility
Agent.


 


“Fee Letters” means each of the Bridge Fee Letter and such
other contemporaneously executed fee letter.


 


“Fee Recipient” means a person to whom fees and expenses are
payable by an Obligor pursuant to this Agreement or under the Finance
Documents.


 


“Final A Take-Out Adjustment Percentage” means when the A
Take-Out Financing is the Final A Take-Out Financing the result (whether
positive or negative, expressed as a percentage) of the following equation:


 


A minus B divided by C


 


(a)           where
“A” is the proceeds of the Final A
Take-Out Financing (less any Eligible Cash or Eligible Cash Equivalents);


 


(b)           where
“B” is Borrower Asset Value transferred
into the Final A Take-Out Financing multiplied by sum of the A1 Advance Rate
and the A2 Advance Rate at the previous Reporting Date; and


 


(c)           where
“C” is (x) if the Final C Take-Out
Financing has not occurred,  the Borrower
Asset Value of all C Borrowers as at the previous Reporting Date multiplied by
the C Advance Rate as at the previous Reporting Date or (y) if the First C
Take-Out Financing has occurred, the Borrower Asset Value of all B Borrowers as
at the previous Reporting Date multiplied by the B Advance Rate as at the
previous Reporting Date.


 


“Final A Take-Out Financing” means the A Take-Out Financing
which causes the A1 Advance Rate and the A2 Advance Rate to be zero or a
negative percentage.


 


“Final C Take-Out Adjustment Percentage” means when an
applicable C Take-Out Financing is the Final C Take-Out Financing the result
(whether positive or negative, expressed as a percentage) of the following
equation:


 


A minus B divided by C


 


(a)           where
“A” equals the proceeds of the C
Take-Out Financing (less any Eligible Cash or Eligible Cash Equivalents);


 


(b)           where
“B” equals the Borrower Asset Value
transferred into the Final C Take-Out Financing multiplied by the C Advance
Rate at the previous Reporting Date; and


 


(c)           where
“C” is (x) if the Final A Take-Out
Financing has not occurred, the Borrower Asset Value of all A1 Borrowers and
all A2 Borrowers (as at the


 


43

















 


previous
Reporting Date, without duplication) multiplied by the sum of the A1 Advance
Rate and the A2 Advance Rate as at the previous Reporting Date or (y) if the
Final A Take-Out Financing has occurred, 
the Borrower Asset Value of all B Borrowers (as at the previous
Reporting Date) multiplied by the B Advance Rate (as at the previous Reporting
Date).


 


“Final C Take-Out Financing” means the C Take-Out Financing
which causes the C Advance Rate to be zero or a negative percentage.


 


“Final Maturity Date” means the date that is 5 years after
the Closing Date.


 


“Financeco”
means in relation to any Facility, any person that:


 


(a)           is
organised as a special purpose company, partnership or other legal person that
satisfies the “bankruptcy remote” criteria of each Rating Agency;


 


(b)           save
in the case of an Orphan Financeco, is a subsidiary of Holdco and a direct or
indirect wholly-owned subsidiary of the Parent;


 


(c)           is
formed principally for the purpose of making loans, or otherwise providing
funding, to a Related Opco and other matters reasonably incidental thereto; and


 


(d)           save
in the case of an Orphan Financeco, is organised in (i) a Core Country in
relation to such Facility or The Netherlands in the case of the C Facility,
(ii) in relation to an A Facility, the Republic of Ireland, or (iii) any other
jurisdiction satisfactory to the Facility Agent (acting reasonably).


 


“Finance Documents” means this Agreement, any Borrower
Accession Memorandum, the Security Documents, any Guarantor Accession
Memorandum, the Intercreditor Deed, any Designated Obligor Intercompany Loan
Agreement, any agreement or document relating to any Hedging Transaction
entered into with a Bank, the Fee Letters, any Australian Finance Document and
any other document designated in writing as a “Finance
Document” by the Facility Agent and the Parent.


 


“Finance Parties” means the Facility Agent, the Arrangers,
the Security Agent, the Global Coordinator, the Banks, any Secured Hedge
Counterparties and the L/C Issuers.


 


“Financial Indebtedness” with respect to any person, means,
without duplication, any indebtedness of such person for or in respect of:


 


(a)           Indebtedness
for Borrowed Money;


 


(b)           any
documentary credit facility;


 


(c)           any
interest rate swap, currency swap, forward foreign exchange transaction, cap,
floor, collar or option transaction or any other treasury transaction or any
combination thereof or any other transaction entered into in connection with
protection against or benefit from fluctuation in any rate or price (and the
amount of the Financial Indebtedness in relation to any such transaction shall
be calculated by reference to the mark-to-market valuation of such transaction,


 


44

















 


taking
into account the net positions in such transactions, at the relevant time); and


 


(d)           any
guarantee, indemnity, bond, standby letter of credit or any other similar
instrument issued in connection with any Indebtedness for Borrowed Money or any
other Financial Indebtedness described in paragraphs (b) and (c) above,


 


but in the case of
paragraphs (b) and (d) above, excluding for the avoidance of doubt, indemnities
or reimbursement obligations issued to or in favour of any bank or financial
institution in relation to any guarantee, indemnity, bond, standby letter of
credit or similar instrument issued by such bank or financial institution in
respect of commercial obligations of any member of the Group arising in the
ordinary course of business not otherwise constituting Financial Indebtedness.


 


“Financial Quarter” means each successive period of three
months during a Twelve Month Period.


 


“First Calculation Date”
means:


 


(a)           9
December 2005; and


 


(b)           thereafter,
the second Friday of each calendar month.


 


“French Borrower” means any Borrower which is organised under
the laws of France.


 


“Funds Flow Memorandum” means the agreed form of funds flow
statement approved by the Facility Agent in respect of the Acquisition,
together with a schedule of costs related to the Acquisition.


 


“German Obligor” means an Obligor organised under the laws of
the Federal Republic of Germany.


 


“Governmental Authority” means any (a) European, state,
federal, national, regional, provincial, municipal, local, domestic or foreign
government, or any political subdivision of the foregoing, (b) governmental,
regulatory, stock exchange, taxing or administrative entity, authority, agency,
commission, ministry or other similar body, including any public utility
control or public service commission or similar regulatory body or (c) court,
tribunal or judicial or arbitral body.


 


“Group” means the Parent and its subsidiaries from time to
time and any other Obligor from time to time.


 


“Guarantee” means, with respect to any person, (a) any
guarantee or indemnity (except as required hereby) by such person to or for the
benefit of any other person, or (b) any other voluntary assumption of any
liability, whether actual or contingent, in respect of any obligation of any
third person.


 


“Guarantor Accession Memorandum” means a duly completed
memorandum substantially in the form set out in Schedule 7 (Form of Guarantor Accession Memorandum).


 


45

















 


“Guarantors” means each Original Guarantor and each
Additional Guarantor, provided in each case that such entity has not been
released from its rights and obligations hereunder in accordance with
Clause 39.3 (Resignation of a Guarantor) or
Clause 36.2 (Assignments and Transfers by Obligors).


 


“Hedging Transaction” means any currency or interest or
commodity purchase, cap or collar agreement, forward rate agreement, interest
rate or currency future or option contract, futures contract or option on
futures, foreign exchange or currency or commodity forward purchase or sale
agreement, interest rate swap, currency swap, commodity swap or combined
interest rate and currency swap agreement and any other similar agreement.


 


“Hertz Intercompany Loan” means the loan from the Parent to
The Hertz Corporation made on or about the Closing Date not to exceed in the
aggregate US$331,669,295 (or its equivalent) at any time outstanding.


 


“Hertz International Tax Sharing Agreement” means the tax
sharing agreement among Holdco, CCMGC, the Target and the Parent, in form and
substance satisfactory to the Facility Agent (acting reasonably), 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 the terms hereof and
thereof.


 


“Hertz Variable Debt Amount” means, for any period, the
result of (whether positive or negative) an aggregate amount equal to (i) as
calculated on the last day of such period, the product of (x) the sum of (A)
the Borrower Fleet NBV and all Eligible Receivables for all A1 Borrowers and
all A2 Borrowers, (B) the Borrower Fleet NBV and all Eligible Receivables (or
equivalent amount) under the B Bridge Facilities Agreements for all B
Borrowers, and (C) the Borrower Equipment NBV and all Eligible Receivables for
all C Borrowers (the “Aggregate NBV”),
multiplied by (y) 80%, minus (ii) as calculated on the first day of such
period, the product of (x) the Aggregate NBV multiplied by (y) 80%.


 


“High Yield Financing” means the issuance by CCMG Acquisition
Corporation of up to $2,800,000,000 of notes in a 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),
pursuant to a bridge financing or by private placement or underwritten
offering, in relation to the Acquisition.


 


“Holdco” means CCMG Holdings, Inc., a corporation
incorporated under the laws of the State of Delaware, having its registered
office (as at the date hereof) at c/o M&C Corporate Services Limited (on
behalf of Clayton Dubilier & Rice Fund VII, L.P.), P.O. Box 309GT, Ugland
House, South Church Street, George Town, Grand Cayman, Cayman Islands, British
West Indies, and any successor thereto.


 


“Indebtedness for Borrowed Money” with respect to any person,
means without duplication, any indebtedness of such person for or in respect
of:


 


(a)           moneys borrowed;


 


(b)           any
amount raised by acceptance under any acceptance credit facility;


 


46

















 


(c)           any
amount raised pursuant to any note purchase facility or the issuance of bonds,
notes, debentures, loan stock or any similar instrument;


 


(d)           any
amount raised pursuant to any issue of shares which are expressed to be
redeemable either at a fixed date or at the option of the holder at any time
before the Final Maturity Date;


 


(e)           the
amount of any liability in respect of any lease or hire purchase contract which
is required (in accordance with the Applicable Accounting Principles) to be
capitalised (treated as indebtedness for moneys borrowed) on the balance sheet
of the lessee or hire purchaser;


 


(f)            the
amount of any liability in respect of any advance or deferred purchase
agreement if one of the primary reasons for entering into such agreement is to
raise finance (but excluding trade liabilities payable in the ordinary course
of business of such person);


 


(g)           the
amount raised by the sale or discount of receivables on arm’s length terms; and


 


(h)           any
amount raised under any other transaction (including any forward sale or
purchase agreement or sale and leaseback transaction) having the commercial
effect of a borrowing.


 


“Indirect SPV Investment” means any Investment in a
non-Obligor substantially all of the proceeds of which are used by that
non-Obligor to make (a) an Investment in an Obligor subordinated on terms
reasonably satisfactory to the Facility Agent or (b) an Investment in a
non-Obligor substantially all of the proceeds of which are used by that
non-Obligor to make an Investment (whether by subordinated intercompany loan or
otherwise) in an Obligor subordinated on terms reasonably satisfactory to the
Facility Agent, provided each Investment described in clause (a) or (b) above
is reasonably contemporaneous, and, substantially back-to-back,
with such Investment in the non-Obligor.


 


“Information Date” means (a) 19 December 2005 and (b)
thereafter, the Business Day falling two Specified Business Days after each
Reporting Date.


 


“Information Memorandum” means the “private” version of the
Hertz information memorandum which, at the Parent’s request and on its behalf,
has been prepared in relation to this transaction and distributed (or will
after the date hereof be prepared and distributed) by the Arrangers to selected
entities in connection with the syndication of the Facilities, together with
any supplements thereto.


 


“Initial Borrowing” means all of the Advances and Letters of
Credit made on the Closing Date.


 


“Initial Maximum Amount” means the aggregate of (a) the Euro
Amount of the Total A1 Commitments determined as of the Closing Date and
without giving effect to any Initial Borrowing, (b) the Euro Amount of the
Total A2 Commitments determined as of the Closing Date and without giving
effect to any Initial Borrowing


 


47

















 


and (c) the Euro
Amount of the Total C Commitments determined as of the Closing Date and without
giving effect to any Initial Borrowing.


 


“Initial Security Documents”
means each of the documents listed in Schedule 20 (Security
Documents)


 


“Instructing Group” means:


 


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


 


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


 


(c)           without
indication as to a specific Facility or Facilities, a Bank or Banks whose
aggregate Commitments in Euro Amount in respect of all Facilities amount (or,
if each Bank’s Commitments have been reduced to zero, did immediately before
such reduction to zero, amount) to more than fifty per cent. of the Euro Amount
of the Total Commitments.


 


“Insurance Receivables” means, at any time and in relation to
any Borrower (or, if such Borrower is a Financeco, its Related Opco), the
aggregate of all amounts owed by any Insurer to such Borrower or its Related
Opco (as the case may be) in that Borrower’s or Related Opco’s (as the case may
be) Core Countries at such time.


 


“Insurer” means any reputable and solvent insurer (including,
as at the date hereof, without limitation, AIG) who has provided insurance
coverage with respect to the loss or destruction of, or damage to, or theft or
any casualty event with respect to (a) in the case of an A1 Borrower or A2
Borrower, a vehicle which is part of such Borrower’s Core Country Fleet, and
(b) in the case of a C Borrower, any Equipment that is part of such Borrower’s
Core Country Equipment Assets.


 


“Intellectual Property” means all interests in or relating to
registered and unregistered trade marks and service marks, patents, registered
designs, trade names, titles, registered or unregistered copyrights in
published and unpublished works, unregistered designs, inventions registered or
unregistered, any other intellectual property rights and any applications for
any of the foregoing and any rights to use any of the foregoing.


 


“Intercreditor Deed” means the security trust and
intercreditor deed to be entered into between, among others, the Parent, the
Borrowers, the Guarantors, certain subsidiaries of the Parent, the Facility
Agent and the Security Agent and setting out, inter alia, the terms of the
subordination of the Shareholder Subordinated Loan Agreements, certain intra-Group
debt obligations and certain sharing arrangements between the Finance Parties.


 


48

















 


“Interest
Expense” means, 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 and its consolidated subsidiaries for such period
minus (b) interest income (accrued and received or receivable in cash for
such period) of the Parent and its consolidated subsidiaries for such period,
in each case determined on a consolidated basis in accordance with the
Applicable Accounting Principles as in effect on the date hereof.


 


“Interest Period” means in relation to an Unpaid Sum, any of those periods
mentioned in Clause 28.1 (Default Interest Periods).


 


“Internal Revenue Code” means the United States Internal
Revenue Code of 1986, as amended, including the Treasury regulations
promulgated and rulings issued thereunder.


 


“Irish Borrower” means any Borrower which is resident in
Ireland for the purposes of tax or which has a branch or agency in Ireland
through which the Commitment is advanced.


 


“Italian Banking Act” means the Italian Legislative Decree
no. 385 of 1 September 1993, as amended.


 


“Italian Borrower” means any Borrower incorporated under the
laws of Italy.


 


“Italian Fleetco” means a company to be organised under the
laws of Italy after the Closing Date as a fully owned subsidiary of Italian
Opco.


 


“Italian Non-Guaranteed Tranches” means the A1 Italian
Non-Guaranteed Tranche and the A2 Italian Non-Guaranteed Tranche.


 


“Italian Opco” means Hertz Italiana S.p.A., a società per azioni organised under the laws of Italy, having
its registered office in Rome, Viale Leonardo Da Vinci n. 421.


 


“Investment” means any advance, loan, extension of credit or
capital contribution, or any purchase of shares, stock, bonds, notes,
debentures or other securities, or any other investment in any person.


 


“L/C Amount” means:


 


(a)           each
sum paid or due and payable by an L/C Issuer to the beneficiary of a Letter of
Credit pursuant to the terms of such Letter of Credit; and


 


(b)           all
liabilities, costs (including, without limitation, any costs incurred in funding
any amount which falls due from an L/C Issuer under a Letter of Credit),
claims, losses and expenses which such L/C Issuer incurs or sustains in
connection with a Letter of Credit,


 


in each case which
has not been reimbursed pursuant to Clause 12 (C Borrower’s
Liabilities in Relation to Letters of Credit).


 


“L/C Commission Rate” means a letter of credit commission
rate equal to the Applicable Margin for the C Facility.


 


49

















 


“L/C Issuer” means a Bank which has notified the Facility
Agent that it has agreed to a C Borrower’s request to be an issuer of a Letter
of Credit pursuant to the terms hereof.


 


“L/C Proportion” means, in relation to a Bank in respect of
any Letter of Credit and save as otherwise provided herein, the proportion
(expressed as a percentage) borne by such Bank’s Available Commitment to the
Base Currency Available Facility in relation to the C Facility immediately
prior to the issue of such Letter of Credit.


 


“Legal Opinions” means each of the legal opinions referred to
in Schedule 4 (Conditions Precedent)
and Schedule 8 (Additional Conditions
Precedent).


 


“Letter of Credit” means any duly completed letter of credit
issued or to be issued by an L/C Issuer pursuant to Clause 4 (Utilisation of the Facilities) in the form set out in
Schedule 11 (Form of Letter of Credit) or any
guarantee, indemnity or other credit support instrument in a form accepted by
the relevant C Borrower (or the Coordinator on its behalf) which is acceptable
to the Facility Agent (acting on the instructions of all the Banks and the
relevant L/C Issuer).


 


“LIBOR” means, in relation to any amount to be advanced to,
or owing by, an Obligor under the Finance Documents in a currency (other than
Euro, Canadian Dollars or Australian Dollars) on which interest for a given
period is to accrue:


 


(a)           the
applicable Screen Rate as of the time specified in the Timetable on the
Quotation Date for the offering of deposits in the relevant currency for the
relevant period;


 


(b)           if
the applicable Screen Rate is not available for the relevant currency for the
relevant period, the percentage rate per annum obtained by interpolating the
applicable Screen Rates for the relevant currency for a period most closely
corresponding to the relevant period as of 11.00 a.m. (London time) on
each of (i) the date occurring immediately prior to the commencement of the
relevant period and (ii) the date occurring immediately after the end of the
relevant period, for such period; or


 


(c)           if
the applicable Screen Rate is not displayed for the relevant currency for the
relevant period, the arithmetic mean (rounded upwards to four decimal places)
of the rates (as notified to the Facility Agent) at which each of the relevant
Reference Banks was offering to prime banks in the London interbank market
deposits in such currency of an equivalent amount and for such period as of the
time specified in the Timetable on the Quotation Date.


 


“Loan Note” means a loan note issued under the Loan Note Deed
Poll.


 


“Loan Note Deed Poll” means a duly completed deed poll
substantially in the form of Schedule 16 (Form of Loan
Note Deed Poll), executed and delivered by an Australian Borrower in
accordance with Clause 45.1 (Loan Note Deed Poll).


 


“Loan Note Register” means the register for Loan Notes
maintained by the Facility Agent under Clause 45.5 (Establishment
of Loan Note Register).


 


50

















 


“Lombard” means Lombard North Central plc and its successors
in interest.


 


“Lombard Leasing Agreement” means (x) the Letter of
Understanding, dated 18 August 1997, made between Lombard and Hertz (UK)
Ltd, together with all schedules and addendums thereto on or prior to the date
hereof (as in effect on the date hereof) (the “Existing
Lombard Agreement”) and (y) such other agreement substantially in
the form of, or on commercial terms substantially similar to, the Existing
Lombard Agreement, in each case as may be acceptable to the Facility Agent
(acting reasonably).


 


“London Business Day” means a day (other than a Saturday or a
Sunday) on which banks generally are open for business in London.


 


“LTIBR” means any interest bearing receivables as set out in
the guidelines of the German Federal Ministry of Finance (BMF)
dated 15 July 2004 and 22 July 2005 with a maturity which qualifies as long
term in accordance with Section 8 No. 1 of the Trade Tax Act (GewStG).


 


“Management Investors” means, collectively, the officers,
directors, employees and other members of the management of CCMGC and/or its
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 Agreement” means 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 Cancellation Event” means any of the following
events:


 


(a)           the Acquisition Agreement is
terminated; or


 


(b)           the Closing Date has not occurred by
28 February 2006.


 


“Mandatory Cost Rate” means the percentage rate per annum
calculated by the Facility Agent in accordance with Schedule 10 (Mandatory Cost Formulae).


 


“Manufacturers” means the Equipment Manufacturers and the
Vehicle Manufacturers.


 


“Material Adverse Effect” means:


 


(a)           at
any time on or prior to the Closing Date, any fact, event, change, circumstance
or effect that is materially adverse to the business, condition


 


51

















 


(financial
or otherwise) or results of operations of the Group taken as a whole, or would
materially impair the ability of the Seller to consummate the transactions
contemplated by the Acquisition Agreement, other than any fact, event, change,
circumstance or effect resulting from:


 


(i)            general
changes or developments (other than those resulting from acts of terrorism, war
or armed hostilities) in the industries in which the Target Group operates or
in the general economy, financial, banking, currency or capital markets, except
to the extent such changes or developments have a disproportionate adverse
effect on the Target Group, taken as a whole, relative to other participants in
the industries in which the Target Group operates;


 


(ii)           normal
seasonal changes in the results of operations of the Target Group;


 


(iii)          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 Holdco;


 


(iv)          changes
in accounting requirements or principles or any changes in applicable laws or
interpretations thereof; or


 


(v)           any
failure in and of itself by any member of the Target Group (or of the Target
Group taken as a whole or any part of it) 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),


 


provided
that for purposes of this paragraph (a), the industries in which the Target
Group operates shall be deemed to be the vehicle rental industry and the
construction, industrial and materials handling equipment rental industry; and


 


(b)           at
any time after the Closing Date, any fact, event, change, circumstance or
effect that would reasonably be expected to (i) be materially adverse to the
business, financial condition or results of operations of the Target or the
Obligors, taken as a whole or (ii) have a material adverse effect on (x) the
ability of the Obligors, taken as a whole, to perform their material payment
obligations under the Finance Documents or (y) the validity or enforceability of
the definitive documentation for the Facilities, taken as a whole, or the
rights or remedies of any Arranger or any Bank under the Finance Documents,
taken as a whole.


 


“Material Intellectual Property” means any Intellectual
Property owned by any Obligor if the termination of the rights of such Obligor
to the use thereof or any other loss thereof would reasonably be expected to
have a Material Adverse Effect.


 


52

















 


“Material Subsidiary” means:


 


(a)           at
any time, a subsidiary of the Parent which has 5 per cent. of EBITDA and/or net
assets and/or total revenues of the Group, calculated on a consolidated
basis.  Compliance with this condition
shall be determined by reference to (i) the latest audited financial statements
of such subsidiary (consolidated in the case of a subsidiary which itself has
subsidiaries) if audited accounts are prepared for such subsidiary or unaudited
accounts if they are not and (ii) the latest audited consolidated financial
statements of the Group; and


 


(b)           any
subsidiary of the Parent to which a Material Subsidiary (as defined in
paragraph (a) above) transfers all or substantially all of its assets (whether
in a single transaction or a series of transactions).


 


“Merrill Lynch” means Merrill Lynch Global Partners Inc.


 


“Merrill Lynch Investors” means, collectively (a) ML Global
Private Equity Fund, L.P., a Cayman Islands exempted limited partnership, or
any successor thereto, (b) Merrill Lynch Ventures L.P. 2001, a Delaware
limited partnership, or any successor thereto, (c) CMC-Hertz Partners, L.P., a
Delaware limited partnership, or any successor thereto, (d) ML Hertz
Co-Investor, L.P., a Delaware limited partnership, or any successor thereto,
(e) any affiliate of any of the foregoing, and (f) any successor in
interest to any of the foregoing.


 


“Minimum Principal Loan Note Amount” means AUD1.00.


 


“Monoline Compliance Event” means, in the case of any A
Facility, the provision by MBIA, AMBAC and/or any other financial guarantor or
similar insurance company rated AAA and/or Aaa by the Rating Agencies and
otherwise satisfactory to the Facility Agent (acting reasonably), of a
commitment letter or other agreement in form and substance satisfactory to the
Facility Agent (acting reasonably) to wrap any asset-backed Take-Out Financing
of such Facility with the underlying risk prior to the provision of such
commitment letter or other agreement rated BBB/Baa2 by the Rating Agencies for
a premium of 0.45 per cent. per annum or less and provided that the Rating
Agencies shall have affirmed in writing that such asset-backed Take-Out
Financing shall attain such BBB/Baa2 rating.


 


“Moody’s” means Moody’s Investor Services Inc. and any
successor thereto.


 


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


 


53

















 


“NZ Guarantee” means the guarantee incorporated in the NZ
Facilities Agreement granted by each of Hertz International, Ltd. as Parent and
Hertz New Zealand Holdings Limited.


 


“Net Book Value” means:


 


(a)           with
respect to each vehicle, such vehicle’s Capitalised Cost, minus the aggregate
Depreciation Charges accrued with respect to such vehicle up to and including
the immediately preceding Calculation Date; and


 


(b)           with
respect to Equipment, such Equipment’s Capitalised Cost, minus the aggregate
Depreciation Charges accrued with respect to such Equipment up to and including
the immediately preceding Calculation Date .


 


“Net Cash Proceeds” means, with respect to (a) any disposal,
lease or other transfer of an asset (including any vehicle or Equipment), (b)
making any claim under any insurance policy or in respect of any condemnation
or casualty event in respect of vehicles or Equipment, (c) any Manufacturers’
rebates, (d) any VAT refunds or (e) any Take-Out Financing, an amount
equal to the gross proceeds in cash and Cash Equivalents of such disposal,
lease, asset transfer, claim, rebate or Take-Out Financing, net (to the extent
applicable) of:


 


(a)           reasonable
legal fees, accountants’ fees, brokerage, consultant and other customary fees,
underwriting commissions and other reasonable fees and expenses actually
incurred in connection with such disposal, lease, asset transfer, sale, claim,
rebate or Take-Out Financing;


 


(b)           any
income, capital gains, value-added or other taxes paid or reasonably
estimated to be payable as a result thereof, including as a consequence of any
transfer of funds in connection with the application thereof in accordance with
Clause 13.7 (Application of Amounts Prepaid);


 


(c)           appropriate
amounts provided or to be provided as a reserve, in accordance with Applicable
Accounting Principles, against any liabilities associated with any such
disposal, asset transfer or lease and retained by the Parent or the relevant
disposing entity after such disposal, asset transfer or lease and other
appropriate amounts to be used to discharge or pay on a current basis any other
liabilities associated with such disposal, asset transfer or lease provided
that any amount so reserved shall be applied in prepayment of the Facilities
pursuant to Clause 13.3 (Mandatory Reduction of the
Facilities) and Clause 13.7 (Application
of Amounts Prepaid) promptly upon discharge in full of the liability
in respect of which such reserve was established;


 


(d)           in
the case of any sale or other disposal of an asset subject to an Encumbrance
securing any indebtedness, payments made and instalments payments required to
be made to repay such indebtedness, including payments in respect of principal,
interest and prepayment premiums and penalties; and


 


(e)           in
the case of any Take-Out Financing, any escrowed or pledged cash proceeds which
effectively secure, or are required to be maintained as reserves


 


54

















 


for,
the indebtedness of the Borrower in respect of, or the obligations of, any
member of the Group or other Obligor under, such Take-Out Financing.


 


“New Bank” has the meaning set out in Clause 36.3 (Assignments and Transfers by Banks).


 


“New Equipment Assets” means, in relation to any C Borrower
(or if such C Borrower is a Financeco, its Related Opco), any Equipment
acquired by such C Borrower or its Related Opco (as the case may be) after
the Closing Date.


 


“New Vehicles” means, in relation to any A Borrower (or if
such A Borrower is a Financeco, its Related Opco), any vehicle acquired by such
A Borrower or its Related Opco (as the case may be) after the Closing Date.


 


“Non-Canadian Bank” means, in relation to a Canadian
Borrower, any Bank that does not satisfy paragraph (b)(i) or (b)(ii) of the
definition of “Qualifying Bank”.


 


“Noteco” means Hertz Note Issuer Pty Limited (ACN 117 373
574), a wholly owned subsidiary of Hertz Australia Pty. Limited.


 


“Notice of Exercise of Sale Right” has the meaning set out in
Clause 23.20 (Exercise of Sale Right).


 


“Notification” means (a) in respect of any Advance other than
a Swingline Advance, a duly completed notification in the form set out in Part
1 of Schedule 22 (Notification),
(b) in respect of any Swingline Advance, a duly completed notification in the
form set out in Part 2 of Schedule 22 (Notification)
and (c) in respect of any Letter of Credit, a duly completed notification in
the form set out in Part 3 of Schedule 22 (Notification).


 


“Notification Date” means, in relation to a Swingline Advance
or a Letter of Credit, the Specified Business Day on which the Facility Agent
receives a duly completed Utilization Notice for such Swingline Advance or
Letter of Credit and, subject to Clause 4.3 (Delivery of
an Asset Report for Letters of Credit) or Clause 5.2(a) (Delivery of a Utilisation Notice for Swingline Advances) (as
the case may be), an Asset Report in accordance with Clause 4.1 (Utilisation Conditions) or Clause 5.2(a) (Delivery of a Utilisation Notice for Swingline Advances) (as
the case may be).


 


“Obligors” means the Parent, the Coordinator, the Borrowers,
the Guarantors, Noteco, the Designated Obligors and the Australian Obligors and
“non-Obligor” means (a) any member
of the Group or (b) any affiliate of an Obligor which is not a member of the
Group in either case, that is not an Obligor.


 


“Opco” means:


 


(a)           when designated “A”
any subsidiary of the Parent that is:


 


(i)            an operating company that is
organised in an A Core Country; or


 


(ii)           a leasing company that is organised
in France or The Netherlands,


 


55

















 


provided
that such subsidiary owns or leases vehicles which are used or otherwise
deployed in the ordinary course of such subsidiary’s business.  For the avoidance of doubt, no Excluded
Canadian Company shall constitute an A Opco; and


 


(b)           when
designated “C”, any subsidiary of the Parent
that is an operating or a leasing company that is organised in a C Core
Country, provided that such subsidiary owns or leases Equipment which is used
or otherwise deployed in the ordinary course of such subsidiary’s business; and


 


(c)           without
any such designation, an “A Opco” and/or
a “C Opco” as the context requires.


 


“Operational SPV” means any SPV that satisfies the
Eligibility Criteria set out in paragraph (a)(i) or (b)(i) (as the case may be)
of the definition of “Eligible Borrower”.


 


“Optional A Calculation Date” means 30 December 2005.


 


“Original Equity Investors” means the CD&R Investors, the
Merrill Lynch Investors and the Carlyle Investors.


 


“Original Financial Statements” means in relation to
(a) the Parent, its preliminary consolidated financial statements for its
financial year ended 31 December 2004 and (b) any other Obligor, its
statutory or other accounts required by law for its financial year ended
31 December 2004, to the extent the same have been filed in the relevant
jurisdiction.


 


“Original Obligors” means the Parent, the Coordinator, the
Original Borrowers and the Original Guarantors.


 


“Orphan Financeco” means, in relation to any Facility, any
Financeco which:


 


(a)           is not affiliated to any other member
of the Group or any other Obligor; and


 


(b)           is
organised in any Core Country or in the Republic of Ireland or any other
jurisdiction approved by the Facility Agent (acting reasonably).


 


“Orphan SPV” means, in relation to any Facility, any SPV
which:


 


(a)           is
not directly or indirectly owned by, or otherwise affiliated with, Holdco; and


 


(b)           is
organised in any Core Country or in the Republic of Ireland or any other
jurisdiction approved by the Facility Agent (acting reasonably).


 


“Outstandings” means the A1 Outstandings, the A2 Outstandings
and the C Outstandings and any amounts of interest accrued but unpaid in
relation thereto.


 


“Overall Commitment” means in relation to any Bank and the A1
Facility, the A2 Facility or the C Facility (as the case may be):


 


(a)           the aggregate Euro Amount of its
Commitments in relation to such Facility; or


 


56

















 


(b)           in
the case of any Swingline Bank which does not have any Commitments in relation
to such Facility, the aggregate Euro Amount of the Commitments in relation to
such Facility of a Bank which is its affiliate.


 


“Parent Company” means the Target, any holding company of
Target or any intermediate holding company of the Parent.


 


“Parent Entity” means any of Holdco, and any other person
which is subsidiary of Holdco and of which CCMGC is a subsidiary.


 


“Participating Member State” means any
member state of the European Communities that adopts or has adopted the Euro as
its lawful currency in accordance with legislation of the European Community
relating to Economic and Monetary Union.


 


“Permitted Acquisition”
means:


 


(a)           the
acquisition by purchase or otherwise of (x) all or any part of the business or
assets of any person or any business unit of any person or (y) shares (or other
evidence of beneficial ownership) of any person representing at least
85 per cent. of the shares (or other beneficial ownership interests) in
such person, provided that:


 


(i)            upon
giving effect to such acquisition (taking into account reasonable synergies
evidenced to the Facility Agent in reasonable detail), (x) the aggregate
consideration (including cash and any Indebtedness for Borrowed Money incurred
or assumed in connection with such acquisitions but excluding any equity of the
Parent or any Parent Company, any proceeds of any issuances of equity or any
other increase in the share capital of the Parent or any Parent Company which
amount, in each case, is contributed to the Parent (the “Consideration”)
in respect of all of the acquisitions described in this paragraph (a) does not
exceed an aggregate amount equal to €250,000,000 and (y) if the amount of Consideration
for such acquisition exceeds €25,000,000, the Parent provides to the Facility
Agent such information about the proposed acquisition as the Facility Agent
(acting reasonably) may require (including, without limitation, an accountant’s
report) confirming, among other things, the suitability of the proposed
acquisition, its compatibility with the existing business and that it is
earnings enhancing; and


 


(ii)           in
the case of any acquisitions referred to in paragraph (i) above, (x) the
target of such acquisition has positive EBITDA, calculated on a pro forma basis
(including synergies) after giving effect to such acquisition (such calculation
to be made in a manner reasonably satisfactory to the Facility Agent and to be
evidenced by a certificate in form and substance reasonably satisfactory to the
Facility Agent signed by two Authorised Signatories of the Parent (one of whom
must be the finance director) and delivered to the Facility Agent (which shall
promptly deliver copies to each Bank) at least ten Business Days prior to the
consummation of such acquisition), (y) the target of such


 


57

















 


acquisition
carries on a similar line of business to the Group at the date hereof and in a
country in which the Group carries on business at the date hereof or in the
European Union or Norway, and (z) after giving effect to such acquisition, no
Event of Default or Potential Event of Default has occurred or is continuing or
shall occur as a result of such acquisition;


 


(b)           the
exchange of any asset (other than any asset comprising part of the Borrower
Asset Value of any Obligor) for any other assets of a similar value, in each
case over which a first priority security interest is granted in favour of the
Finance Parties (to the extent such asset(s) were subject to a similar (or
substantially similar) security interest under the Security Documents prior to
the date of exchange, and subject to any applicable limitations set out in
Clause 21.16 (Group Acceding Guarantors))
in respect of which the Facility Agent shall, if so requested by the Facility
Agent, have received a legal opinion in form and substance satisfactory to it
(acting reasonably);


 


(c)           any
acquisition made in relation to disposals permitted under paragraph (g) of the
definition of “Permitted Disposals”;


 


(d)           any
acquisition pursuant to and in accordance with the terms of the Finance
Documents;


 


(e)           any
acquisition necessary to consummate a Canadian Sale-Saleback Transaction; and


 


(f)            the
acquisitions expressly identified as such in the Disclosure Letter; and


 


(g)           any
acquisition described or referred to in the definition of Transactions.


 


“Permitted Disposals”
means:


 


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


 


(b)           the
sale, lease (whether operating or financial) or other disposal of any property
(including, without limitation, vehicles, equipment and inventory) in the
ordinary course of business (including, without limitation, the sale of
vehicles, revenue earning equipment or Equipment sold to a Vehicle
Manufacturer, Vehicle Dealer or through other customary disposal channels such
as auctions, brokered sales and sales to wholesalers and the sale of property in
connection with ordinary course adjustments in the territories allocated to
licensees and franchisees of Parent or any of its subsidiaries);


 


(c)           the
sale or discount without recourse or with limited recourse on arm’s length
terms (where the level and nature of such recourse is not unusual) of accounts
receivable or notes receivable (in each case, not comprising part of the
Borrower Asset Value of any Obligor) 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 and
not as a method of raising long term finance;


 


58

















 


(d)           the
sale, transfer or discount of receivables on arm’s length terms pursuant to any
Permitted Securitisation, provided that the Take-Out
Intercreditor/Subordination Requirements shall at all times be satisfied with
respect thereto;


 


(e)           any
asset sales not contemplated by any other paragraph of this definition provided
that (i) the aggregate gross proceeds in cash or Cash Equivalents for all such
asset sales does not exceed €25,000,000 (or its equivalent) in any Twelve Month
Period, (ii) the non-cash portion of the consideration for any such asset sale
does not exceed 25 per cent. thereof, and (iii) an amount equal to 100 per
cent. of the Net Cash Proceeds of any such asset sale, less any Reinvested
Amount, is applied to reduce the Facilities in accordance with Clause 13.3
(Mandatory Reduction of the Facilities)
and/or Clause 13.7 (Application of Amounts
Prepaid);


 


(f)            the
abandonment, sale or other disposal of patents, trademarks or other
intellectual property that are, in the reasonable judgement of the Parent, no
longer economically practicable to maintain or useful in the conduct of the
business of the Group, taken as a whole, and the licensing of intellectual
property in the ordinary course of business;


 


(g)           the
sale or other disposal of (i) an asset by any member of the Group to an
Obligor, (ii) an asset by any non-Obligor to any other non-Obligor or (iii) an
asset (other than shares and any assets comprising part of the Borrower Asset
Value of any Obligor except in the case of a disposal to a Take-Out Borrower)
by any Obligor to any non-Obligor, in the case of this clause (iii), sold or
disposed of on fair and reasonable terms in a maximum aggregate amount (which
amount shall in the case of assets other than real estate be calculated on the
basis of a value no lower than fair market value and in the case of real estate
be calculated on the basis of fair and reasonable terms) not exceeding
€25,000,000 (or its equivalent) after the date hereof (provided that such
amount shall be increased by (x) the amount of such assets disposed of pursuant
to this sub-paragraph (iii) that are subsequently returned to the relevant
Obligor and (y) the amount of such assets previously disposed of to a
non-Obligor that are held by such non-Obligor at the time it becomes an
Obligor) or (iv) any sale or disposal of shares (or equivalent ownership
interests) in a member of the Group to another member of the Group provided
that (A) to the extent that such member of the Group was a Guarantor prior to
the date of disposal, its guarantee and any security granted by it remain in
full force and effect following such disposal and (B) to the extent that shares
(or equivalent ownership interests) in such member of the Group were charged or
pledged prior to the date of disposal, such security remains in full force and
effect (or is replaced with substantially equivalent security in respect of
which the Facility Agent shall, if so requested by the Facility Agent, have
received a legal opinion in form and substance satisfactory to it acting
reasonably) following such disposal;


 


(h)           the
exchange of any asset (other than any asset comprising part of the Borrower
Asset Value of any Obligor) for any other assets of a similar value, in each
case over which a first priority security interest is granted in favour of the
Finance Parties (to the extent such asset(s) were subject to a similar (or


 


59














 


substantially
similar) security interest under the Security Documents prior to the date of
exchange, and subject to the limitations set out in Clause 21.16 (Group Acceding Guarantors)) in respect of which the Facility
Agent shall, if so requested by the Facility Agent, have received a legal
opinion in form and substance satisfactory to it (acting reasonably);


 


(i)                                     any transfer or other disposal described
or referred to in the definition of Transactions;


 


(j)                                     any sale or any other disposition of any
property or assets pursuant to a merger, solvent reorganisation, consolidation
or winding-up permitted in accordance with Clause 22.10 (Mergers);


 


(k)                                  any sale or disposal expressly identified
as such in the Disclosure Letter;


 


(l)                                     any sale or disposal necessary to
consummate a Canadian Sale-Saleback Transaction;


 


(m)                               any disposal of Vehicle Rental Concession
Rights (provided that no such disposal shall include any assets comprising any
part of the Borrower Asset Value of any Obligor);


 


(n)                                 any sale or disposal of any Excluded
Canadian Company; and


 


(o)                                 any other sale or disposal of an asset or
property on arm’s length terms provided that the aggregate gross proceeds in
cash or Cash Equivalents for all such sales and disposals do not exceed
€10,000,000 (or its equivalent) in any Twelve Month Period, provided that all
affected Borrowers remain in pro forma compliance with the Borrowing Base
Calculation requirements immediately following any such disposal.


 


“Permitted Distribution”
means:


 


(a)                                  dividends, distributions or payments in
an amount sufficient from time to time (including any applicable value added
taxes which are due and payable at the time) to enable payment, directly or
indirectly, of:


 


(i)                                     all amounts due from the Parent or any of
its subsidiaries to any Parent Company in accordance with the terms of the
Hertz International Tax Sharing Agreement;


 


(ii)                                  reasonable and necessary fees, costs and
expenses (other than taxes) incurred by any Parent Company in connection with
(without duplication) or reasonably incidental to (A) the registration,
offering and exchange listing of its shares or other securities, (B) compliance
with applicable reporting rules and regulations of any relevant governmental or
regulatory bodies, (C) the indemnification and reimbursement of, or in respect
of directors’ or officers’ liability insurance in relation to, directors,
officers and employees of any Parent Company and/or its subsidiaries relating
to their serving in such capacity, (D) any business, management, technical,
logistical and


 


60

















 


administrative
services and functions provided by such Parent Company to the Parent and its
subsidiaries (including, without limitation, any accounting, legal, treasury,
sales and marketing, information, communication, reservations, pricing,
forecasting, payment, settlement, travel agency, customer and licensee
relations, risk management, processing, billing, record keeping, control,
purchasing, supervising and training services and functions) and (E) the
establishment of any Parent Company, any Parent Company maintaining its
existence, non-executive directors’ fees, costs of shareholder communications
and meetings and legal expenses;


 


(iii)                               any Acquisition Costs incurred by any Parent Company
(x) on the Closing Date and (y) thereafter;


 


(iv)                              any amounts payable in connection with
the repurchase, acquisition, directly or indirectly, of any shares in the share
capital of Holdco and/or any of its subsidiaries and/or shares or other debt or
equity securities of any entity formed for the purpose of investing in Holdco
and/or any of its subsidiaries or any rights, options or units in respect
thereof, from any Management Investors or former Management Investors, or as
otherwise contemplated by any Management Subscription Agreement, for an
aggregate purchase price not to exceed the Euro Equivalent of US$20,000,000
from and after the Closing Date provided that such aggregate cap shall be
increased by (A) an amount equal to the Euro Equivalent of US$5,000,000 on each
anniversary of the Closing Date, commencing on the first anniversary of the
Closing Date, (B) an amount equal to the proceeds 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 any Parent Company 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 any
Parent Company;


 


(v)                                 reasonable expenses incurred by any
Parent Company in connection with the provision of insurance and
insurance-related services and functions by such Parent Company or any of its
subsidiaries (other than Parent and its subsidiaries) to any Obligor or any
other member of the Group, which shall be provided for commercially reasonable
consideration determined in good faith by the management of such Parent Company
or the relevant subsidiary of such Parent Company providing such services or
functions; and


 


(vi)                              so long as no Event of Default shall have
occurred and is then continuing (or would otherwise arise as a result of such
dividend, distribution or payment), any amounts payable in respect of
obligations and liabilities incurred by any Parent Company in the ordinary
course of business not to exceed €5,000,000 in the aggregate on and after the
Closing Date; and


 


61

















 


(b)                                 any dividends, distributions or payments,
when aggregated with the principal amount of the intercompany loans made in
accordance with paragraph (q) of the definition of “Permitted
Loans and Guarantees”, do not exceed an aggregate amount equal to
(x) so long as no Event of Default shall have occurred and is then continuing
(or would otherwise arise as a result of such dividend, distribution or
payment), the sum of the Specified ECF Amounts, as determined with respect to
each preceding Relevant Period ended after the Closing Date (provided that, in
each such case, the audited consolidated financial statements for each such
Relevant Period shall have been delivered in accordance with Clause 20.1 (Annual Statements)) and (y) €100,000,000 (or its equivalent)
(provided that such amount does not exceed the sum of cash and Cash Equivalents
of the members of the Group immediately after the Closing Date after giving
effect to the Transactions); and


 


(c)                                  (x) to the extent that the Hertz
Intercompany Loan is irrevocably repaid in cash, any dividends, distributions
or payments in an aggregate amount not exceeding the net proceeds of such cash
repayments to and including the date of such contemplated dividend,
distribution or payment or (y) any dividend or distribution of assets
comprising all or a portion of the Hertz Intercompany Loan; and


 


(d)                                 so long as no Event of Default shall have
occurred and is then continuing (or would otherwise arise as a result of such
dividend, distribution or payment), the payment or repayment of any
Indebtedness for Borrowed Money under any Qualified Shareholder Subordinated
Loan,


 


provided that in
the case of paragraphs (a)(i), (a)(ii) (other than paragraph (D) thereof),
(a)(iii)(y) (other than Acquisition Costs incurred with respect to the matters
set forth in clause (b) of the definition of “Transactions”)
and (a)(iv) (inclusive) above, if the relevant Parent Company shall own any
material assets other than the shares or other equity interests in the Parent
or another holding company of the Parent, the applicable amount which may be
paid as a cash dividend in accordance with the applicable aforementioned
paragraphs shall be limited to the reasonable and proportional share, as
determined by the Parent in its reasonable discretion (as certified by a senior
financial officer of the Parent to the Facility Agent from time to time, as
requested by the Facility Agent from time to time (acting reasonably)), of the
applicable expense, cost, liability or amount, as the case may be referred to
in the applicable aforementioned paragraph incurred by such Parent Company
relating or allocable to its direct or indirect ownership interest in the
Parent.


 


“Permitted Encumbrance”
means:


 


(a)                                  any Encumbrance entered into pursuant to
any of the Finance Documents or the B Bridge Finance Documents;


 


(b)                                 any Encumbrance over or affecting any
asset acquired by a member of the Group after the date hereof and subject to
which such asset is acquired, provided that:


 


(i)                                     such Encumbrance was not created in
contemplation of the acquisition of such asset by a member of the Group; and


 


62

















 


(ii)                                  the amount thereby secured has not been
increased in contemplation of, or since the date of, the acquisition of such
asset by a member of the Group;


 


(c)                                  any Encumbrance over or affecting any
asset of any person which becomes a member of the Group after the date hereof,
where such Encumbrance is created prior to the date on which such person
becomes a member of the Group, provided that:


 


(i)                                     such Encumbrance was not created in
contemplation of such acquisition of such person; and


 


(ii)                                  the amount thereby secured has not been
increased in contemplation of, or since the date of, the acquisition of such
person;


 


(d)                                 any netting, set-off or similar
arrangement entered into by any member of the Group in the normal course of its
banking and other trading arrangements for the purpose of its cash pooling
arrangements or netting debit and credit balances of members of the Group,
provided that such Encumbrances do not at any time encumber any part of the
Eligible Cash or Eligible Cash Equivalents of any Obligor;


 


(e)                                  any title transfer or retention of title
arrangement entered into by any member of the Group in the normal course of its
business on the counterparty’s standard or usual terms;


 


(f)                                    any Encumbrance for taxes not yet overdue
or for the non-payment of taxes which are not material, or which are being
contested in good faith by appropriate proceedings which are being diligently
conducted provided that adequate reserves with respect thereto are maintained
on the books of the applicable member of the Group, in accordance with the
Applicable Accounting Principles;


 


(g)                                 any carriers’, warehousemen’s, mechanics’,
materialmen’s or repairmen’s liens or other similar Encumbrances arising in the
ordinary course of business which are not overdue for a period of more than 60
days or which are being contested in good faith by appropriate proceedings
which are being diligently conducted;


 


(h)                                 any Encumbrances 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;


 


(i)                                     any pledges, deposits or other
Encumbrances in connection with workers’ compensation, unemployment insurance,
other social security benefits or other insurance related obligations
(including, without limitation, pledges or deposits securing liability to
insurance carriers under insurance or self-insurance arrangements);


 


(j)                                     any Encumbrances arising by reason of any
judgment, decree or order of any court or other governmental authority, if
appropriate legal proceedings which


 


63

















 


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;


 


(k)                                  any Encumbrances to secure the
performance of bids, trade contracts (other than Indebtedness for Borrowed
Money), obligations for utilities, leases, statutory obligations, surety and
appeal bonds, performance bonds, judgment and like bonds, and other obligations
of a similar nature incurred in the ordinary course of business provided that
such Encumbrances do not at any time encumber any property comprising any part
of the assets or property comprising the Borrower Fleet NBV of any Obligor;


 


(l)                                     any Encumbrances arising in relation to
planning 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 Group taken as a whole;


 


(m)                               any Encumbrances arising in relation to a
Permitted Purchase Money Obligation referred to in paragraph (m) of the
definition of “Permitted Indebtedness” in
relation to the asset financed thereby and any related rights and interests;


 


(n)                                 any Encumbrances securing Indebtedness
referred to in paragraph (e) of the definition of “Permitted
Indebtedness” incurred to finance the purchase price of, or assumed
in connection with, any such Permitted Acquisition referred to therein,
provided that (i) such Encumbrances shall be created no later than the later of
the date of such acquisition or the date of the incurrence or assumption of
such Indebtedness, and (ii) such Encumbrances 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 property
subject thereto immediately prior to such acquisition;


 


(o)                                 any Encumbrances securing guarantee or
indemnity obligations permitted under paragraph (d) of the definition of “Permitted Loans and Guarantees” not exceeding (as to the
Group) €15,000,000 (or its equivalent) in aggregate amount at any time
outstanding provided that such Encumbrances do not at any time encumber any
property comprising any part of the Borrower Asset Value of any Obligor;


 


(p)                                 any Encumbrances (including, without
limitation, any put and call agreements) on (and limited to) the equity of any
Permitted Joint Venture, including any Encumbrances pursuant to the
shareholders’ joint venture or similar arrangement with respect to such joint
venture or similar arrangement, securing Permitted Project Borrowings otherwise
permitted under the definition of “Permitted Indebtedness”;


 


(q)                                 any Encumbrances securing guarantee or
indemnity obligations permitted under paragraph (h) of the definition of “Permitted Loans and Guarantees”


 


64

















 


provided
that such Encumbrances do not at any time encumber any property comprising any
part of the Borrower Asset Value of any Obligor;


 


(r)                                    any Encumbrances arising in relation to
any Permitted Sale and Leaseback;


 


(s)                                  any Encumbrances granted by non-Obligors
to secure indebtedness in respect of local overdraft and similar working
capital facilities permitted under paragraph (n) of the definition of “Permitted Indebtedness”;


 


(t)                                    any Encumbrances on or under, or arising
out of or relating to, Vehicle Rental Concession Rights provided that such
Encumbrances do not at any time encumber any property comprising any part of
the Borrower Asset Value of any Obligor;


 


(u)                                 any Encumbrances securing Indebtedness
for Borrowed Money referred to in paragraph (r) of the definition of “Permitted Indebtedness” incurred on the property or shares
of the applicable Take-Out Borrower subject to the Take-Out Financing permitted
thereunder, provided that (i) such Encumbrances do not at any time encumber any
property other than the property of the Take-Out Borrower financed by such
Indebtedness for Borrowed Money or the shares of such Take-Out Borrower and
(ii) the Take-Out Intercreditor/Subordination Requirements shall be satisfied
at all times;


 


(v)                                 any Encumbrances on intellectual property
provided that such Encumbrances result from the granting of licenses in the
ordinary course of business of members of the Group to any person to use such intellectual
property;


 


(w)                               any Encumbrances on a bank account,
maintained by the Parent or any of its subsidiaries in the ordinary course of
business, in favour of the account bank solely as a result of the customary
general terms and conditions of such account bank;


 


(x)                                   any Encumbrances securing Indebtedness
for Borrowed Money permitted under clause (n) of the definition of “Permitted Indebtedness” provided that such Encumbrances do
not at any time encumber any property comprising any part of the Borrower Asset
Value of any Obligor;


 


(y)                                 any Encumbrances securing Indebtedness
for Borrowed Money permitted under clause (t) of the definition of “Permitted Indebtedness” not exceeding AUD2,600,000 provided
that such Encumbrances do not at any time encumber any property comprising any
part of the Borrower Asset Value of any Obligor;


 


(z)                                   any Encumbrance securing Indebtedness for
Borrowed Money incurred by such Excluded Canadian Company provided:


 


(i)                                     the liabilities in respect of such
Indebtedness for Borrowed Money are not directly or indirectly the subject of a
guarantee, indemnity or any other form of assurance, undertaking or support
from any member of the Group; and


 


65

















 


(ii)                                  the person or persons making such Indebtedness
for Borrowed Money available has/have no recourse whatsoever to any member of
the Group for the repayment of or payment of any sum relating to such
Indebtedness for Borrowed Money other than to such Excluded Canadian Company or
to any member of the Group which is the owner of any shares or other equity
interests of such Permitted Joint Venture and then only to the extent that such
member of the Group has granted security over such shares or other equity
interests legally or beneficially owned by it; and


 


(aa)                            any other Encumbrances provided that the
aggregate fair market value of the assets thereby encumbered does not, at any
time, exceed €10,000,000 (or its equivalent).


 


“Permitted Euro Tranche” has the meaning given to it in
Clause 2.1(b) (Grant of the Facilities).


 


“Permitted Hedging Transactions” means any Hedging
Transactions that are incurred for the purpose of fixing or hedging interest or
currency or commodity rates or prices or cashflows in the ordinary course of
business (it being understood that Hedging Transactions incurred for the
purpose of fixing or hedging interest rates with respect to, all or any part
of, the indebtedness arising under the Facilities shall be deemed to be in the
ordinary course of business) consistent with prudent business practice and not
incurred for speculative purposes.


 


“Permitted Holders” means:


 


(a)                                  any of the Equity Investors, Management
Investors, CD&R, Carlyle, Merrill Lynch and any of their respective
affiliates;


 


(b)                                 any investment fund or vehicle managed,
sponsored or advised by the CD&R, Carlyle, Merrill Lynch 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;


 


(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 Indebtedness” means any Permitted Loans and
Guarantees that are in the nature of indebtedness and:


 


(a)                                  any indebtedness arising under this
Agreement or any other Finance Document and the B Bridge Finance Documents;


 


(b)                                 any indebtedness arising under the
Shareholder Subordinated Loan Agreements;


 


(c)                                  any indebtedness of any member of the
Group under Permitted Hedging Transactions;


 


66

















 


(d)                                 any indebtedness arising pursuant to any
Permitted Securitisation, provided that upon the effectiveness of any Take-Out
Financing, the Facilities and Outstandings shall be reduced in accordance with
Clause 13.3 (Mandatory Reduction of the Facilities)
and/or Clause 13.7 (Application of Amounts
Prepaid) to the extent (and only to the extent and not any further)
required by either of such Clauses;


 


(e)                                  any indebtedness incurred or assumed in
relation to a Permitted Acquisition up to a maximum aggregate amount at any
time outstanding of €50,000,000 (subject to the limitations set out in the
definition of “Permitted Acquisitions”) and any
refinancings, replacements, refundings, renewals or extensions thereof on financial
and other terms, in the reasonable judgment of the Parent, no more onerous to
the Parent 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 reasonable fees and
expenses incurred in connection with such refinancing, refunding, renewal or
extension;


 


(f)                                    any indebtedness of any Obligor or any
member of the Group in respect of a Permitted Sale and Leaseback Transaction;


 


(g)                                 any indebtedness arising from the
honouring of a cheque, draft or similar instrument against insufficient funds,
provided that such indebtedness is extinguished within two Business Days of its
incurrence;


 


(h)                                 any indebtedness of any Obligor (except
the Swiss Obligor) to any member of the Group provided such indebtedness is (x)
unsecured and (y) subordinated pursuant to the terms of the Intercreditor Deed
or otherwise on terms acceptable to the Facility Agent (acting reasonably);


 


(i)                                     any indebtedness of any member of the
Group pursuant to an Indirect SPV Investment;


 


(j)                                     any indebtedness of any member of the
Group that is not an Obligor to an Obligor provided that:


 


(i)                                     the indebtedness is incurred in the
ordinary course of business as part of working capital or cash pooling
arrangements with a maturity of less than 121 days; or


 


(ii)                                  the indebtedness when aggregated with any
other indebtedness incurred under this paragraph (ii) and any Investment made
after the Closing Date in accordance with paragraph (l)(iv) of the definition
of “Permitted Investments” (without double
counting) does not exceed, during the period commencing on the Closing Date and
ending on the date falling 12 months after the Closing Date, €40,000,000 (or
its equivalent) at any time outstanding (provided that the amount of
indebtedness outstanding will be reduced by (x) the amount repaid to the
Obligor and (y) the amount of such indebtedness owed by a non Obligor at the
time it becomes an Obligor); or


 


67

















 


(iii)                               the indebtedness is otherwise permitted under any
other paragraph of the definition of “Permitted Investments”;


 


(k)                                  any indebtedness of any non-Obligor to
any other non-Obligor;


 


(l)                                     any indebtedness to the extent covered by
a Letter of Credit or any other letter of credit for the account of the
relevant company pursuant to any line of credit or other indebtedness pursuant
to paragraph (o), (p), (r) or (x) of the definition of “Permitted
Indebtedness”;


 


(m)                               any cash management obligations and other
indebtedness in respect of netting services, overdraft protections, set-off
arrangements and similar arrangements in each case arising pursuant to applicable
law or under standard business terms of any bank at which any member of the
Group maintains an overdraft, cash pooling or other similar facility or
arrangement;


 


(n)                                 any indebtedness of the Group in relation
to any Permitted Purchase Money Obligation provided that (x) except as
providing in immediately succeeding paragraph (y), such indebtedness shall be
limited to an aggregate limit at any one time outstanding not exceeding
€40,000,000 (or its equivalent), and (y) at any time that all of Commitments
hereunder shall have been fully utilised, and for so long as no Event of
Default shall then have occurred and be continuing, additional indebtedness in
relation to any Permitted Purchase Money Obligations may be incurred with
respect to newly acquired vehicles and/or Equipment (provided, further, that in
all events that such vehicles and/or Equipment shall not differ in any material
respects, whether on an individual or on a combined basis (as determined by the
Facility Agent (acting reasonably)), from those included in the definition of “Borrower Asset Value” with respect to the Obligor which has
acquired such assets).


 


(o)                                 any indebtedness in respect of local
overdraft and similar working capital facilities made available to members of
the Group not exceeding €100,000,000 in aggregate amount at any time
outstanding provided that such outstanding amount shall be reduced to
€60,000,000 on each Settlement Date or within 3 Business Days thereafter;


 


(p)                                 any indebtedness pursuant to the
transactions described in paragraph (c) of the definition of “Permitted Disposals”;


 


(q)                                 any indebtedness expressly identified as
such in the Disclosure Letter and, without duplication, any Dutch Capital Lease
Indebtedness and UK Capital Lease Indebtedness and any refinancings, replacements,
refundings, renewals or extensions thereof on financial and other terms, in the
reasonable judgment of the Parent, no more onerous to the Parent or any of its
Subsidiaries in the aggregate than the financial and other terms of such
Indebtedness, provided that (i) 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 reasonable fees and expenses
incurred in connection with such refinancing, refunding, renewal or extension,
(ii) unless specifically indicated otherwise in the Disclosure Letter, there
shall be no refinancing of such indebtedness and (iii) with respect to
indebtedness identified in such


 


68

















 


Disclosure
Letter between and/or among creditors and debtors which are, in each case, any
of Holdco and any of its subsidiaries and any related orphan entities (whether
or not affiliated to Holdco or any of its subsidiaries), no such indebtedness
will be refinanced by debt from third parties;


 


(r)                                    any indebtedness of any member of the
Group or any Obligor incurred pursuant to the Transactions;


 


(s)                                  any indebtedness of a Take-Out Borrower
incurred pursuant to its applicable Take-Out Financing, provided that (x) the
Take-Out Intercreditor/ Subordination Requirements shall at all times be
satisfied with respect thereto and (y) the Net Cash Proceeds therefrom are
applied pursuant to Clause 13.3 (Mandatory Reduction of the
Facilities) and/or Clause 13.7 (Application
of Amounts Prepaid);


 


(t)                                    any indebtedness in respect of
performance bonds, bid bonds, appeal bonds, surety bonds and similar
obligations and trade-related letters of credit;


 


(u)                                 any indebtedness (including reimbursement
obligations) of any Obligor organized in Australia with respect to a letter of
credit issued by Westpac Banking Corporation for such Obligor’s account and
which is existing as of the Closing Date in an aggregate stated amount not
exceeding AUD2,600,000;


 


(v)                                 any indebtedness arising under, and in
accordance with any Tax Sharing Agreement;


 


(w)                               any indebtedness constituting Qualified
Canadian Indebtedness; and


 


(x)                                   any additional indebtedness of the Group
(including, without limitation, Permitted Project Borrowings) of up to an
aggregate limit of €25,000,000 or its equivalent in aggregate principal amount
at any one time outstanding.


 


“Permitted Investments”
means:


 


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


 


(b)                                 any Investment in Cash Equivalents;


 


(c)                                  any Investment in notes receivable in
connection with transactions described in paragraph (c) of the definition of “Permitted Disposals”;


 


(d)                                 any Investments constituting loans to
officers, directors or employees of any member of the Group (i) in the ordinary
course of business for travel and entertainment or relocation expenses, (ii)
agreed between the Parent and the Facility Agent, (iii) made after the Closing
Date for other purposes, not to exceed (as to all such loans) €15,000,000 (or
its equivalent) at any one time outstanding when aggregated with the amount of
all guarantees at any one time outstanding permitted pursuant to paragraph (d)(iii)
of the definition of “Permitted Loans and
Guarantees” at any time or (iv) relating to indemnification or
reimbursement of any officers, directors or employees in respect of liabilities
relating to their serving in any such capacity;


 


69

















 


(e)                                  any Investment of any member of the Group
under Permitted Hedging Transactions;


 


(f)                                    any Investment which, in the judgement of
the Parent, is reasonably necessary in connection with, and pursuant to the
terms of a Take-Out Financing provided that, with respect to any Take-Out
Borrower, the aggregate amount of all such Investments shall not exceed at any
time an amount equal to (x) (A) the aggregate Borrower Asset Value which would
have been attributable to the assets and properties of such Take-Out Borrower
if such person had been a Borrower hereunder minus (B) the aggregate
outstanding amount of such Take-Out Financing, in each case at the applicable
date of determination, plus (y) returns on these Investments;


 


(g)                                 any 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 paragraphs (d), (e),
(g), (h), (i), (k), (l) or (o) of the definition of “Permitted
Encumbrances”;


 


(h)                                 any Investments representing non-cash
consideration received by any member of the Group in connection with any asset
sale or other disposal permitted under this Agreement, provided that in the
case of any asset disposal described in paragraph (e) of the definition of “Permitted Disposals” such non-cash consideration constitutes
not more than 25 per cent. of the aggregate consideration received in
connection with such asset disposal, and any such non-cash consideration
received by any Obligor is pledged to the Security Agent for the benefit of the
Finance Parties pursuant to the Security Documents (subject to the limitations
set out in Clause 21.16(b)) (Group Acceding Guarantors));


 


(i)                                     any Investment representing evidence of
indebtedness, securities or other property received from customers or other
persons in the ordinary course of business by any member of the Group in
connection with any bankruptcy proceeding or other reorganisation of such
customer or other person or as a result of foreclosure, perfection or
enforcement of any Encumbrance or exchange for evidences of indebtedness,
securities or other property of such customer or other person held by such
member of the Group;


 


(j)                                     any Investments constituting Permitted
Acquisitions;


 


(k)                                  any Investments in any Obligor;


 


(l)                                     any Investments by any Obligor in any
member of the Group that is not an Obligor provided that:


 


(i)                                     the Investment is made in the ordinary
course of business as part of working capital or cash pooling arrangements with
a maturity of less than 121 days; or


 


(ii)                                  the Investment is made from the proceeds
of (x) the issuance of cash common equity by the Parent or (y) subordinated
seller paper issued by


 


70

















 


the
Parent on terms and conditions reasonably satisfactory to the Facility Agent;
or


 


(iii)                               the Investment is made in exchange for property (other
than any property comprising any part of the Borrower Asset Value of any
Obligor) of equivalent value over which a first priority security interest is
granted in favour of the Finance Parties in respect of which the Facility Agent
shall, if so requested by the Facility Agent, have received a legal opinion in
form and substance satisfactory to it (acting reasonably); or


 


(iv)                              the Investment is an Indirect SPV
Investment; or


 


(v)                                 the Investment when aggregated with any
other Investment made after the Closing Date under this paragraph (iv) and any
indebtedness incurred in accordance with paragraph (j)(ii) of the definition of
“Permitted Indebtedness” (without double
counting) does not exceed, €40,000,000 (or its equivalent) at any time
outstanding, provided that the amounts of Investments outstanding will be
reduced by (x) returns on these Investments and (y) the amount of those
Investments in a non-Obligor outstanding at such time that it becomes an
Obligor;


 


(m)                               any Investments by any non-Obligor in any
other non-Obligor;


 


(n)                                 any Investments constituting any exchange
of any asset for other assets of similar value over which a first priority
security interest is granted in favour of the Finance Parties (to the extent
such asset or assets were subject to a similar security interest under the
Security Documents prior to the date of exchange, and subject to any applicable
limitations set out in Clause 21.16(b) (Group
Acceding Guarantors)) in respect of which the Facility Agent shall,
if so required by the Facility Agent, have received a legal opinion in form and
substance satisfactory to it (acting reasonably);


 


(o)                                 any Investments consisting of, or arising
out of or related to, relation to Vehicle Rental Concession Rights;


 


(p)                                 any Investments constituting loans to
Management Investors of up to €5,000,000 (or its equivalent) outstanding at any
time in connection with the purchase by such Management Investors, directly or
indirectly, of the share capital of the Target or any Parent Company; or


 


(q)                                 any Investments expressly identified as
such in the Disclosure Letter, pursuant to the Transactions and consummated on,
or reasonably contemporaneously with, the Closing Date or contemplated by the
Funds Flow Memorandum;


 


(r)                                    any Investments consisting the Hertz
Intercompany Loan provided that the aggregate principal amount thereof shall
not at any time exceed the aggregate principal amount thereof outstanding as of
the Closing Date;


 


(s)                                  any Investments arising under any Tax
Sharing Agreement; and


 


71

















 


(t)                                    any Investments (including, without
limitation, Permitted Joint Ventures) not otherwise permitted by the preceding
paragraphs not to exceed in the aggregate of €40,000,000 (or its equivalent) at
any time outstanding.


 


“Permitted Joint Venture” means 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 one or more members of the
Group.


 


“Permitted Loans and Guarantees” means any Permitted
Investments that are in the nature of loans, advances or extensions of credit
by any member of the Group and:


 


(a)                                  performance Guarantees or Guarantees for
performance, appeal, judgment and similar bonds, or suretyship arrangements,
all in the ordinary course of business;


 


(b)                                 any Guarantee or other obligation to
reimburse the CD&R Investors, Merrill Lynch Investors or the Carlyle
Investors or any officers, directors or employees of any member of the Group in
respect of liabilities relating to their providing services to such member of
the Group;


 


(c)                                  any Guarantee or reimbursement
obligations in respect of any Letters of Credit or any other letters of credit
issued for the account of the relevant member of the Group pursuant to any line
of credit or other indebtedness permitted pursuant to paragraphs (o), (q) or
(x) of the definition of “Permitted Indebtedness”;


 


(d)                                 any Guarantee in respect of third-party
loans and advances to officers, directors or employees of any member of the
Group (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 any other purpose and, in the case of this clause (iii),
in an aggregate principal amount (as to all such Guarantees), when aggregated
with the amount of all loans permitted pursuant to paragraph (d)(iii) of the
definition of “Permitted Investments” not to
exceed €15,000,000 (or its equivalent) outstanding at any time;


 


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


 


(f)                                    any Guarantee constituting obligations of
any member of the Group under or in respect of Permitted Hedging Transactions;


 


(g)                                 any Guarantees given by any member of the
Group of obligations of any other member of the Group, which obligations are
otherwise permitted under this Agreement;


 


(h)                                 any Guarantee (including for the
avoidance of doubt representations and warranties) in connection with Permitted
Disposals, including indemnification obligations with respect to leases, and
guarantees of collectability in respect of accounts receivables or notes
receivable for up to face value;


 


72

















 


(i)                                     (w) any Guarantees in the ordinary course
of business and reasonably consistent with past business practices (as
reasonably determined in the judgement of the Parent) (other than Guarantees in
respect of Indebtedness for Borrowed Money), (x) any Guarantees in connection
with the construction or improvement of all or any portion of a Public Facility
to be used by any member of the Group in the ordinary course of business, (y)
any Guarantees required (in the good faith determination of the Parent
Borrower) in connection with Vehicle Rental Concession Rights, or (z) any
Guarantees of obligations of any other member of the Group (other than any
Take-Out Borrowers), which obligations are otherwise permitted by this
Agreement;


 


(j)                                     any Guarantee arising in connection with
a Permitted Acquisition with respect to indebtedness permitted pursuant to
paragraph (f) of the definition of “Permitted Indebtedness”;


 


(k)                                  any Guarantee incurred pursuant to this
Agreement or otherwise in respect of Permitted Indebtedness;


 


(l)                                     any Guarantee in favour of banks to
facilitate any netting, set-off or similar arrangements entered into by a
member of the Group in the ordinary course of its banking and other trading
arrangements for the purposes of cash pooling or netting credit and debit
balances of members of the Group;


 


(m)                               any Guarantee constituting any indemnity
or reimbursement obligation issued to or in favour of any bank or financial
institution in relation to any guarantee, indemnity, bond, standby letter of
credit or similar instrument issued by such bank or financial institution in
respect of commercial obligations of any member of the Group arising in the
ordinary course of business not otherwise constituting Financial Indebtedness;


 


(n)                                 any Guarantee constituting Permitted
Indebtedness under paragraph (r) of the definition thereof;


 


(o)                                 any Guarantee in connection with up to an
aggregate principal amount of €10,000,000 (or its equivalent) of Indebtedness for
Borrowed Money 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 Company (so long as such Parent Company
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 expenses, taxes and other amounts incurred or payable by
any Parent Company);


 


(p)                                 any Guarantee reasonably necessary to
consummate any Take-Out Financing;


 


(q)                                 any intercompany loan, when aggregated
with the dividends, distributions or payments made in accordance with paragraph
(b) of the definition of “Permitted Distribution”
does not exceed an aggregate amount equal to (x) so long as no Event of Default
shall have occurred and is then continuing (or would otherwise arise as a
result of such dividend, distribution or payment), the sum of the Specified ECF
Amounts, as determined with respect to each


 


73

















 


preceding
Relevant Period ended after the Closing Date (provided that, in each such case,
the audited consolidated financial statements for each such Relevant Period
shall have been delivered in accordance with Clause 20.1 (Annual
Statements)) and (y) €100,000,000 (or its equivalent) (provided that
such amount does not exceed the sum of cash and Cash Equivalents of the members
of the Group immediately after the Closing Date after giving effect to the
Transactions); and


 


(r)                                    any Guarantee referred to in the
definition of Transactions.


 


“Permitted Project Borrowings” means any Indebtedness for
Borrowed Money incurred by a Permitted Joint Venture:


 


(a)                                  where the liabilities of such Permitted
Joint Venture in respect of such Indebtedness for Borrowed Money are not
directly or indirectly the subject of a guarantee, indemnity or any other form
of assurance, undertaking or support from any member of the Group; and


 


(b)                                 in respect of which the person or persons
making such Indebtedness for Borrowed Money available to such Permitted Joint
Venture has/have no recourse whatsoever to any member of the Group for the
repayment of or payment of any sum relating to such Indebtedness for Borrowed
Money other than to such Permitted Joint Venture or to any member of the Group
which is the owner of any shares or other equity interests of such Permitted
Joint Venture and then only to the extent that such member of the Group has
granted security over such shares or other equity interests legally or
beneficially owned by it.


 


“Permitted Purchase Money Obligation” means any Indebtedness
for Borrowed Money of any member of the Group incurred to finance or refinance
the acquisition, leasing, construction or improvement of (x) fixed or capital
assets or (y) any vehicles or Equipment which would have been included in the
Borrower Asset Value of any Obligor which acquired such assets, provided that
such Indebtedness for Borrowed Money (incurred with respect to any acquisition)
is incurred substantially simultaneously with such acquisition or within six
months after such acquisition or in connection with the refinancing thereof.


 


“Permitted Sale and Leaseback” means:


 


(a)                                  a sale and leaseback transaction by any
member of the Group involving any asset which such person is permitted pursuant
to Clause 22.6 (Disposals) to
dispose of; and


 


(b)                                 a Canadian Sale-Saleback Transaction.


 


“Permitted Securitisation” means, at any time in relation to a
Borrower (or, if such Borrower is a Financeco, its Related Opco) under any
Facility, any transaction or series of related transactions providing for the
securitisation of (a) in the case of an A1 Borrower or A2 Borrower or its
Related Opco (as the case may be), any Core Country Fleet, Eligible Receivables
or other assets, of such Borrower or its Related Opco (as the case may be) and
(b) in the case of a C Borrower or its Related Opco (as


 


74

















 


the case may be),
any Core Country Equipment Assets, Eligible Receivables or other assets of such
Borrower or its Related Opco (as the case may be) provided always such
securitisation, if it does not relate to all or substantially all the assets
comprising the Borrowing Base of the relevant Borrower shall be on terms
acceptable to the Facility Agent (acting reasonably).


 


“PMP” means a
professional market party as
defined in the Exemption Regulation.


 


“Policy Guidelines” means the 2005 Dutch Central Bank’s
Policy Guidelines (issued in relation to the Exemption Regulation) dated 29
December 2004 (Beleidsregel 2005 kernbegrippen
markttoetreding en handhaving Wtk 1992) as amended from time to
time.


 


“Potential Event of Default” means any event which but for
the passage of time or the giving of notice required under Clause 21 (Positive Covenants), Clause 22 (Negative Covenants)
or Clause 23 (Events of Default)
or any combination thereof (as expressly provided in such Clauses) would
constitute an Event of Default.


 


“Prepayment Account” means an interest bearing account in the
name of the applicable Borrower with the Security Agent (bearing interest at
the market rate applicable at such time to any such interest bearing accounts
held with such bank) which is pledged, charged or assigned to the Finance
Parties represented by the Security Agent or to the Security Agent pursuant to
the Security Documents to secure all amounts due under the Finance Documents
(subject to the terms of the proviso to Clause 21.16(b) (Group Acceding Guarantors)) and from which the only
withdrawals which may be made by the applicable Borrower are to repay or prepay
amounts due to the Banks under this Agreement.


 


“Proportion”
means at any time in relation to a Bank and:


 


(a)                                an Advance to be made under any Facility
or Tranche, the proportion borne by its Available Commitment to the Available
Facility, in each case in relation to the relevant Facility or Tranche,
immediately prior to the making of that Advance; and


 


(b)                                 in all other cases, the proportion borne
by the aggregate of the Euro Amount of its Commitments to the Euro Amount of
the Total Commitments, in each case in relation to the relevant Facility or
Tranche (as the case may be) at such time.


 


“Public Facility” (i) any airport; marine port; rail, subway,
bus or other transit stop, station or terminal, stadium, convention centre, or
military camp, fort, post or base or (ii) any other similar 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.


 


75

















 


“Purchase Price” means the Purchase Price (as such term is
defined in the Acquisition Agreement).


 


“Qualified Canadian Indebtedness” means unsecured
subordinated Indebtedness for Borrowed Money of an Obligor organised in Canada
(or treated as a Canadian resident for the purpose of the Income Tax Act
(Canada)) to a Canadian Excluded Company, issued pursuant to an agreement with
substantially similar terms and conditions to a Shareholder Subordinated Loan
Agreement, so long as (i) such Indebtedness is unsecured and is subordinated to
the Outstandings and all obligations under any Guarantee on a basis reasonably
satisfactory to the Facility Agent, (ii) such Indebtedness does not provide for
any guarantee or other support from the Parent or any subsidiary of the Parent,
(iii) such Indebtedness does not have any required amortization, maturity,
mandatory put, redemption, repayment, or other similar provision or
requirement, or any cash interest payment requirement, in any case prior to the
one year anniversary of the Final Maturity Date, and (iv) such Indebtedness
does not contain any covenants (other than periodic reporting requirements) or
any events of default (other than as a result of a payment default by the
borrower in respect of such Indebtedness).


 


“Qualified Shareholder Subordinated Loan” means unsecured
subordinated Indebtedness for Borrowed Money issued pursuant to a Shareholder
Subordinated Loan Agreement incurred after the Closing Date so long as (i) such
Indebtedness is unsecured and is subordinated to the Outstandings and all
obligations under any Guarantee on a basis reasonably satisfactory to the
Facility Agent, (ii) such Indebtedness does not provide for any guarantee or other
support from the Parent or any subsidiary of the Parent, (iii) such
Indebtedness does not have any required amortization, maturity, mandatory put,
redemption, repayment, or other similar provision or requirement, or any cash
interest payment requirement, in any case prior to the one year anniversary of
the Final Maturity Date, and (iv) such Indebtedness does not contain any
covenants (other than periodic reporting requirements) or any events of default
(other than as a result of a payment default by the borrower in respect of such
Indebtedness).


 


“Qualifying Bank” means:


 


(a)                                  in relation to any French Borrower, a
Finance Party which:


 


(i)                                     acts for the purposes of this Agreement
and the Finance Documents through a Facility Office in France provided that (A)
all payments owed to it under this Agreement and under the Finance Documents
flow exclusively through French bank accounts and, as the case may be,
exclusively through agents which have their head office (siège social) in
France and are acting from an office in France, (B) such Finance Party takes
into account all payments owed to it under this Agreement and under the Finance
Documents (except repayment of principal amounts) for the calculation of its
taxable income in France and (C) where such Finance Party has its head office
(siège social) outside France, provides certificates issued by the French tax
authorities stating the place of its French facility office and the place where
such facility office is subject to tax, in accordance with French


 


76

















 


administrative
guidelines (D. adm. 5 I 1224, no 50, 1st December 1997); or


 


(ii)                                  is a Treaty Lender; or


 


(iii)                               is exempt from withholding tax under French law;


 


(b)                                 in relation to any Canadian Borrower, a
Finance Party which:


 


(i)                                     acts for the purposes of this Agreement
and the Finance Documents through a Facility Office in Canada provided that
such Finance Party is (A) a resident of Canada for the purposes of the
Income Tax Act (Canada) or (B) an authorised foreign bank within the
meaning of the Income Tax Act (Canada) which would receive all amounts paid or
credited to it under this Agreement or under the Finance Documents in respect
of its Canadian banking business within the meaning of such Act; or


 


(ii)                                  is not liable for withholding tax
pursuant to Part XIII of the Income Tax Act (Canada) in respect of all amounts
paid or credited to it under this Agreement or under the Finance Documents;


 


(c)                                  in relation to an Australian Borrower, a
Finance Party which:


 


(i)                                     is an Australian resident for Australian
tax purposes and which does not derive or derive in part any interest on an
Advance or any fees payable in connection with any Finance Document in carrying
on business in a country outside Australia at or through a “permanent
establishment” in that country for the purposes of the Australian Income Tax
Assessment Act 1936 (Cth); or


 


(ii)                                  is a non-resident of Australia for
Australian tax purposes and is not a limited partner in a VCLP or AFOF and
derives all interest on an Advance and all fees payable in connection with any
Finance Document in carrying on business in Australia at or through a “permanent
establishment” in Australia for the purposes of the Australian Income Tax
Assessment Act 1936 (Cth); or


 


(iii)                               is a Treaty Lender with respect to taxes imposed in
Australia; or


 


(iv)                              makes the Advance on being issued Loan
Notes which have been, or will be, offered in a manner which satisfies the
requirements of section 128F of the Australian Income Tax Assessment Act 1936
(Cth) such that section 128F applies to interest paid, or any amount taken to
consist of interest, in respect of such Loan Notes;


 


(d)                                 in relation to any Belgian Borrower:


 


(i)                                     each Finance Party to which the Belgian
Borrower makes a payment of interest in relation to an Advance made to such
Borrower and which is:


 


77

















 


(A)                              entitled to such payment in its capacity
of beneficial owner; and


 


(B)                                a credit institution that is a resident
for tax purposes in a country that has entered into a double taxation agreement
with Belgium that is in force at the earlier of the interest attribution or
interest payment date and that has not allocated the Advance to a permanent
establishment located in a country that has not entered into a double taxation
agreement with Belgium that is in force at the earlier of the interest
attribution or interest payment date and that is not a member state of the
European Economic Area at said date; or


 


(C)                                a credit institution that is a resident
for tax purposes in a country that is a member state of the European Economic
Area at the earlier of the interest attribution or interest payment date and
that has not allocated the Advance to a permanent establishment located in a
country that is not a member state of the European Economic Area at the earlier
of the interest attribution or interest payment date and that has not entered
into a double taxation agreement with Belgium that is in force at said date; or


 


(D)                               a credit institution located in Belgium
as mentioned in the law of 22 March 1993 on the statute of and the supervision
on credit institutions that has not allocated the Advance to a permanent
establishment located in a country that is not a member state of the European
Economic Area at the earlier of the interest attribution or interest payment
date and that has not entered into a double taxation agreement with Belgium
that is in force at said date; or


 


(E)                                 a Treaty Lender; or


 


(F)                                 a company that is a resident for tax
purposes of Belgium and that is a qualifying professional investor as defined
in article 105, 3° of the Royal Decree executing the Belgian Corporate Income
Tax Code; or


 


(H)                               a Belgian permanent establishment of a
company that is not a resident for tax purposes of Belgium that is a qualifying
professional investor as defined in article 105, 3° of the Royal Decree
executing the Belgian Income Tax Code; or


 


(ii)                                  each Finance Party to which the Belgian
Borrower makes a payment not being interest in relation to an Advance made to
such Borrower and which is:


 


78

















 


(A)                              entitled to such payment in its capacity
of beneficial owner; and


 


(B)                                a Treaty Lender;


 


(e)                                  in relation to any Borrower incorporated
in the United Kingdom, at any time in respect of a payment made hereunder or
under the Finance Documents by or on behalf of any Obligor on a participation
in relation to an Advance, a Bank:


 


(i)                                     who is beneficially entitled to and
within the charge to United Kingdom corporation tax as regards that payment
and:


 


(A)                              if the participation in that Advance was
made by it, is a Bank which is a “bank” (as defined for the purposes of section
349 of the Taxes Act); or


 


(B)                                if the participation in that Advance was
made by a different person, that person was a “bank” (as defined for the
purposes of section 349 of the Taxes Act) at the time that Advance was made;


 


(ii)           who is beneficially entitled to that
payment and:


 


(A)                              is a company resident in the United
Kingdom for the purposes of the Taxes Act (the first condition set out in
section 349B of the Taxes Act); or


 


(B)                                satisfies one of the other conditions set
out in subsections (2) or (6) of section 349B of the Taxes Act;


 


(iii)                               who is a building society as defined in Section 832(1)
of the Taxes Act and who is entitled to receive such payment without a
deduction of tax imposed by the United Kingdom pursuant to Section 477A(7) of
the Taxes Act; or


 


(iv)                              who is a Treaty Lender (with respect to
taxes imposed by the United Kingdom);


 


(f)                                    in relation to a participation in an
Advance made to a Borrower incorporated in Spain or with respect to the
application of Spanish law only, a Dutch Borrower that is an Orphan Financeco,
a Finance Party which is:


 


(i)                                     a Spanish credit entity or financial
credit establishment recorded in the Bank of Spain to which the provisions set
out in paragraph (C) of Article 59 of Royal Decree 1777/2004 of 30 July 2004
apply;


 


(ii)                                  a Spanish permanent establishment of a
non-Spanish financial entity with which that Finance Party’s participation in
that Advance is effectively connected, and to which the provisions contained in
the second paragraph of number 1 of Article 8 of Royal Decree 1776/2004 of 30
July 2004, apply;


 


79

















 


(iii)                               a resident for tax purposes in a Member State of the
European Union (other than Spain) or a permanent establishment of such Finance
Party located in a Member State of the European Union (other than Spain) which
in each case is not acting (in relation to that participation in that Advance)
through a permanent establishment in Spain and, furthermore, not acting through
a territory considered as a tax haven (under Spanish law); or


 


(iv)                              a Spanish asset securitisation fund (Fondo de Titulización de Activos) to which the provisions
set out in paragraph (K) of Article 59 of Royal Decree 1777/2004 of 30 July
2004 apply;


 


(g)                                 in relation to an Italian Borrower, a
Finance Party or Fee Recipient which is:


 


(i)                                     a credit institution with its head office
in Italy (x) duly authorised or licensed to carry out banking activities by the
Bank of Italy in compliance with the Italian Banking Act and (y) granting a
Facility for the purposes of the Finance Documents through a Facility Office in
Italy; or


 


(ii)                                  a credit institution with its head office
in a European Union country (x) duly authorised or licensed by its competent
authority to carry out banking activities and acting in Italy through a
permanent establishment in compliance with the Italian Banking Act to which
facilities are granted under the Finance Documents are effectively connected
and (y) granting a Facility for the purposes of the Finance Documents through a
Facility Office in Italy; or


 


(iii)                               a credit institution with its head office in a country
outside the European Union acting in Italy through a permanent establishment
(x) duly authorised or licensed to carry out banking activities by the Bank of
Italy in compliance with the Italian Banking Act to which the Facilities
granted under the Finance Documents are effectively connected and (y) granting
a facility for the purposes of the Finance Documents through a Facility Office
in Italy by the Bank of Italy in compliance with the Italian Banking Act; and


 


which
is the beneficial owner of all payments received by it under the Finance
Documents and in relation to such payments is either resident for tax purposes
in Italy or is subject to income tax in Italy as a non-Italian resident entity
under article 151 and article 152, paragraph 1, of Italian Presidential Decree
no. 917 and all payment received are only attributable to that permanent
establishment;


 


(h)                                 in relation to any German Borrower, a
Finance Party which is beneficially entitled to interest payable to that
Finance Party in respect of an Advance under a Finance Document or to any fees
thereunder and which:


 


(i)                                     is German resident for German tax
purposes; or


 


80

















 


(ii)                                  has a branch or a permanent establishment
in Germany with which that Finance Party’s participation in an Advance or fee
is effectively connected; or


 


(iii)                               is a Treaty Lender;


 


(i)                                     in relation to any Swiss Borrower a
Finance Party which is a financial institution which is duly licensed as a bank
under the law of its jurisdiction of incorporation and which pursues genuine
banking activities in the jurisdiction of its lending office as referred to
under the respective regulations of the Swiss Federal Tax Administration, in
particular under Section 3.b. of Notes S-02.122.1 as well as under Section
I.232 of Notes S-02.128;


 


(j)                                     in relation to an Irish Borrower, a
Finance Party which is:


 


(i)                                     licensed, pursuant to Section 9 of the
Irish Central Bank Act 1971, to carry on banking business in Ireland and whose
facility office is located in Ireland and which is carrying on a bona fide
banking business in Ireland for the purposes of Section 246(3) of the Irish
Taxes Consolidation Act, 1997 (“TCA”);


 


(ii)                                  an authorised credit institution under
the terms of the Directive 2000/12/EC of March 2000 and has duly established a
branch in Ireland or has made all necessary notifications to its home state
competent authorities required thereunder in relation to its intention to carry
on banking business in Ireland and such financial institution carries on a bona
fide banking business in Ireland of the purposes of Section 246(3) of the TCA
and has its facility office located in Ireland;


 


(iii)                               a body corporate resident in a territory with which
Ireland has a double taxation treaty or resident in a member state of the
European Communities (other than Ireland) provided such company does not
provide its Commitment through a branch or agency in Ireland;


 


(iv)                              a body corporate which advances money in
the ordinary course of a trade which includes the lending of money, provided
that the interest is taken into account in computing the trading income of that
Finance Party, and which has complied wit the notification requirements under
Section 246(5) TCA;


 


(v)                                 a US company, provided that the US
company is incorporated in the US and subject to tax in the US on its worldwide
income provided such company does not provide its Commitment through an Irish
branch or agency;


 


(vi)                              a US LLC provided that the ultimate
recipients of the interest fall within (a)(iii) of this definition and that the
loan is effected through the US LLC for market reasons and not for tax
avoidance purposes and that such US LLC does not provide its Commitment through
an Irish branch or agency; or


 


81

















 


(vii)                           a Treaty Lender with respect to Ireland; and


 


(k)           in relation to any other Borrower,
any Finance Party.


 


“Quotation Date” means, in relation to any period for which
an interest rate is to be determined hereunder, the day specified in the
Timetable or, if not so specified, on which quotations would ordinarily be
given by the Reference Banks in the relevant interbank market for deposits in
the currency in relation to which such rate is to be determined for delivery on
the first day of that period, provided that, if, for any such period, quotations
would ordinarily be given on more than one date, the Quotation Date for that
period shall be the last of those dates.


 


“Rating Agencies” means each of S&P and Moody’s and/or
such other rating agency as may be acceptable to the Facility Agent.


 


“Rebate Receivables” means, at any time and in relation to
any A1 Borrower or A2 Borrower (or, if such Borrower is a Financeco, its
Related Opco), the aggregate of all amounts owed by any Vehicle Manufacturer to
such Borrower or its Related Opco (as the case may be) with respect to any
vehicle purchased by such Borrower or its Related Opco (as the case may be)
from such Vehicle Manufacturer at such time (other than any Vehicle Dealer
Receivables), provided that such aggregate shall not include any amount which
is subject to any set-off or other deduction (other than at the election of
such Borrower or its Related Opco (as the case may be)) by such Vehicle
Manufacturer against amounts owed by such Borrower or its Related Opco (as the
case may be) to such Vehicle Manufacturer at such time.


 


“Receivables Charge” means a first ranking security
assignment (or equivalent first ranking security interest) in respect of
receivables in the agreed form executed or to be executed in favour of the
Finance Parties represented by the Security Agent, as security for all the
actual, contingent, present and/or future obligations and liabilities of the
relevant Borrower under or pursuant to the Finance Documents.


 


“Reference Banks” means:


 


(a)                                  in relation to any amount denominated in
any currency other than Australian Dollars or Canadian Dollars, the principal
Paris office of BNP Paribas and the principal London offices of CALYON and The
Royal Bank of Scotland plc;


 


(b)                                 in relation to an amount denominated in
Australian Dollars, the Australian Reference Banks; and


 


(c)                                  in relation to an amount denominated in
Canadian Dollars, the principal Toronto offices of The Bank of Nova Scotia,
Royal Bank of Canada and Canadian Imperial Bank of Commerce,


 


and/or such other
bank or banks as may from time to time be agreed between the Parent and the
Facility Agent.


 


“Register” has the meaning given to it in Clause 36.9 (The Register).


 


“Reinvested Amount” means with respect to any asset sale,
that portion of the Net Cash Proceeds thereof as shall be reinvested in the
Group or subject to an irrevocable


 


82

















 


investment
commitment prior to the date falling 180 days after the receipt of such Net
Cash Proceeds (or, if longer, the period required by the Parent to reinvest
provided that such longer period has been approved by the Facility Agent
(acting reasonably)); provided that in respect of any asset sale or group of
related asset sales the proceeds of which exceed €5,000,000, the Parent shall
have delivered to the Facility Agent a certificate of an Authorised Signatory
of the Parent within one week following the date of such asset sale confirming
the details of such reinvestment with regard to the Net Cash Proceeds in
question.


 


“Related Opco” means:


 


(a)                                  in relation to an SPV, the Opco to which
such SPV leases vehicles or Equipment or with which such SPV enters into one or
more conditional sale agreements in respect of the vehicles or Equipment at the
time; and


 


(b)                                 in relation to a Financeco, any SPV or
Opco which it finances directly or, in relation to an SPV which is an
Australian Borrower indirectly through Noteco.


 


“Relevant A Calculation Date” means, in relation to an A1
Advance or an A2 Advance that was made on:


 


(a)           the Closing Date, the next First
Calculation Date;


 


(b)                                 a Settlement Date occurring after the
Closing Date, the next First Calculation Date or the next Second Calculation
Date (as determined by the Facility Agent from the Repayment Date specified in
the Utilisation Request).


 


“Relevant C Calculation Date” means, in relation to a C
Advance that was made on:


 


(a)           the Closing Date, the next First
Calculation Date; and


 


(b)                                 a Settlement Date occurring after the
Closing Date, the next First Calculation Date or the next Second Calculation
Date (as determined by the Facility Agent from the Repayment Date specified in
the Utilisation Request).


 


“Relevant Jurisdiction” means, in relation to any Obligor,
its jurisdiction of incorporation or organisation.


 


“Relevant Maximum Amount” means, as of any determination
date, the aggregate of (i) the Euro Amount of the Total A1 Commitments, (ii)
the Euro Amount of the Total A2 Commitments and (iii)  the Total C Commitments, in each case
determined on the last day of the last ended Relevant Period.


 


“Relevant Period” means each period of twelve months ending
on 31 December of each calendar year.


 


“Relevant Tax” means, in relation to any payment which falls
to be made hereunder by an Obligor (or by the Facility Agent in connection with
any payment by an Obligor) to a Finance Party, any taxes imposed by the laws of
(a) the Relevant Jurisdiction of such Obligor, (b) any other jurisdiction from
which, or through which, such payment is made, (c) any other jurisdiction, to
the taxation laws of which the relevant Obligor is at the time of such payment
subject to tax on a net income basis


 


83

















 


(whether by reason
of residence for tax purposes or otherwise), (d) any political sub-division of
the Relevant Jurisdiction of such Obligor, or any such other jurisdiction to
which reference is made in paragraph (b) or (c) above or (e) the European Union
or any successor thereto, in circumstances where such taxes apply to or are
imposed on taxpayers in the Relevant Jurisdiction of such Obligor, or any such
other jurisdiction to which reference is made in paragraph (b) or (c) above but
excluding in each case (x) any taxes imposed on or calculated by reference to
the overall net income of the relevant Finance Party (or to an equivalent
income or similar tax base), (y) any taxes imposed on or calculated by
reference to the overall net income of the Facility Office of such Finance
Party (or to an equivalent aggregate income or similar tax base), and
(z) any franchise taxes, branch taxes, taxes on doing business or taxes
imposed on the overall capital or net worth of such Finance Party and “Relevant Taxes” and cognate expressions shall be construed
accordingly.


 


“Reporting Date” means (a) 15 December 2005 and (b)
thereafter, the Specified Business Day falling four London Business Days after
each Calculation Date.


 


“Repeated Representations” means each of the representations
set out in Clause 19 to Clause 19.7 (No Material
Adverse Change) (other than Clause 19.1(c) (Status) (inclusive) (provided that the representations in
Clause 19.6 (Financial Statements) shall be
made as at the date of the Financial Statements in question), Clause 19.17 (Ranking), Clause 19.18 (Ownership of
the Obligors), Clause 19.24 (Good Title
to Assets), Clause 19.25 (US Government Regulations)
and Clause 19.29 (Professional Market Party).


 


“Reporting Date” means (a) 15 December 2005 and (b)
thereafter, the Business Day falling four Business Days after each Calculation
Date.


 


“Required Quarterly Information” means, in relation to any
Financial Quarter of the Parent:


 


(a)                                  a consolidated balance sheet of the Group
as at the last day of such Financial Quarter;


 


(b)                                 a consolidated profit and loss account of
the Group for such Financial Quarter;


 


(c)                                  a consolidated cash flow statement of the
Group for such Financial Quarter;


 


(d)                                 a statement of the total amount of
Capital Expenditure incurred during such Financial Quarter;


 


(e)                                  a management commentary, in reasonable
detail, on each of items (b) and (c) referred to above;


 


(f)                                    in relation to items (b) and (c) above, a
cumulative statement in respect of the period commencing at the beginning of
the current financial year and ending on the last day of such Financial
Quarter;


 


(g)                                 an up-to-date list of Material
Subsidiaries; and


 


(h)                                 a certificate from a senior financial
officer of the Parent, confirming that no Event of Default or Potential Event
of Default has occurred which is


 


84

















 


continuing
or setting out details of any Event of Default or Potential Event of Default
which is continuing and the steps being taken to remedy the same.


 


“Resignation Notice” means a duly completed notice in the
form set out in Schedule 9 (Form of Resignation Notice).


 


“Restricted Party” means any person listed
in the Annex to the Executive Order referred to in the definition of “Anti-Terrorism
Laws” or on the “Specially Designated Nationals and Blocked Persons” list
maintained by the Office of Foreign Assets Control of the United States
Department of the Treasury.


 


“Risk Vehicle” means any vehicle not the subject of a
Buy-Back Agreement.


 


“S&P” means Standard & Poor’s Ratings Services (a
division of The McGraw-Hill Companies, Inc.) and any successor thereto.


 


“Sale” means a disposal (whether in a single transaction or a
series of related transactions) of all or substantially all of the assets of
the Group.


 


“Screen Rate” means:


 


(a)                                  in relation to LIBOR, the British Bankers’
Association Interest Settlement Rate for the relevant currency and period
displayed on the appropriate page of the Telerate screen;


 


(b)                                 in relation to EURIBOR, the percentage
rate per annum determined by the Banking Federation of the European Union for
the relevant period displayed on the appropriate page of the Telerate screen;


 


(c)                                  in relation to the BA Rate, the rate per
annum determined by the Canadian Permitted Bank by reference to the average
rate quoted on the Reuters Monitor Screen (Page CDOR, or such other Page as may
replace such Page on such Screen for the purpose of displaying Canadian interbank
bid rates for Canadian Dollar bankers’ acceptances) applicable to Canadian
Dollar bankers’ acceptances with a term comparable to the relevant Term and in
the case of paragraphs (b) and (c) of the definition of “BA Rate”,
CORRA for the relevant Term; and


 


(d)                                 in relation to BBSY, the rate per cent.
per annum determined by the Facility Agent which is equal to the average of “bid
rate” quoted on the page entitled “BBSY” of the Reuters Monitor System,


 


provided that if
the agreed page is replaced or service ceases to be available, the Agent may
specify another page or service displaying the appropriate rate after
consultation with the Parent and the Banks.


 


“Second Calculation Date”
means:


 


(a)                                  27 January 2006; and


 


(b)                                 thereafter, the last Friday of each
calendar month or if that day is not a Business Day, the last Business Day in
such calendar month.


 


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“Secured Hedge Counterparty” means any Bank or any affiliate
of a Bank or Arranger which has entered into a Permitted Hedging Transaction
and which the Parent has agreed may share in the benefit of the Security.


 


“Secured Moneys” has the same meaning as in the Australian
Security Trust Deed.


 


“Securities Demand” means any demand by the Arrangers, at any
time after the Closing Date, to the Parent and the Coordinator pursuant to the
Engagement Letter to commence any Take-Out Financing.


 


“Security” means the security from time to time constituted
by or arising under the Security Documents.


 


“Security Agent Account” means in relation to a Borrower a
bank account opened in the name of the Security Agent (in its capacity as such)
and referencing the Borrower, with a bank acceptable to the Security Agent
(acting reasonably) and located in the Core Country of that Borrower (or if it
is a Financeco, its Related Opco), from which the Security Agent will
facilitate the withdrawal of money to buy vehicles or new Equipment (as
appropriate) and to repay Advances and meet other payment obligations under
this Agreement.


 


“Security Documents” means (a) the Initial Security
Documents, (b) any security documents required to be delivered pursuant to
Clause 21.26 (Further Assurances) or the
provisions of any Security Document, (c) any security documents required
to be delivered by an Additional Borrower pursuant to Clause 38 (Additional Borrowers) or an Additional Guarantor pursuant to
Clause 21.16 (Group Acceding Guarantors)
and Clause 39 (Additional Guarantors,
Resignation of Guarantors and Designated Obligors; Change of Coordinator)
and (d) any other document entered into by any member of the Group, other
Obligor or other person creating or evidencing security for all or any part of
the obligations of the Obligors or any of them under the Finance Documents or
any of them.


 


“Security Principles” means the agreed principles in respect
of the terms of the Security Documents, as set forth in Schedule 18 (Security Principles).


 


“Seller” means Ford Holdings LLC, a limited liability company
organized under the laws of the State of Delaware, and Ford Motor Company, a
corporation incorporated under the laws of the State of Delaware.


 


“Settlement Date” means:


 


(a)           the Closing Date;


 


(b)                                 thereafter and prior to the Final
Maturity Date, the Specified Business Day falling three Specified Business Days
after each Information Date; and


 


(c)           the Final Maturity Date.


 


“Shareholder Subordinated Loan” means a loan made available
pursuant to a Shareholder Subordinated Loan Agreement.


 


86

















 


“Shareholder Subordinated Loan Agreements” means all loan
agreements setting out the terms of loans made by any Parent Company or any
affiliate of a Parent Company (other than a member of the Group or an Obligor)
to any Obligor or any member of the Group, provided that all such loans shall
be (and remain) subordinated (or, in the case of any such loans existing as at
the date hereof, within 90 days after the Closing Date) pursuant to the
Intercreditor Deed or otherwise on terms reasonably acceptable to the Facility
Agent.


 


“Shares” means the issued shares in the capital of the Target
at any time.


 


“Specified Business Day”
means:


 


(a)                                  in relation to the Information Date, the
Notification Date and the Reporting Date, a day (other than a Saturday or a
Sunday) on which banks generally are open for business in London and Paris; and


 


(b)                                 in relation to the Settlement Date and
the Utilisation Date, a day (other than a Saturday or a Sunday) on which banks
generally are open for business in London and Paris and in the jurisdiction of
organisation of the relevant Borrower.


 


“Specified ECF Amount” means, for any Relevant Period ended
on or after the first anniversary of the Closing Date (provided that the
audited consolidated financial statements for such Relevant Period shall have
been delivered in accordance with Clause 20.1 (Annual
Statements)), an amount determined as follows:


 


(a)                                  at any time that Take-Out Financings have
been completed in an aggregate amount equal to 50% or more of the Initial
Maximum Amount, as determined on the last day of the last ended Relevant
Period, a percentage of Excess Cash Flow equal to the ratio (calculated as a
percentage) of (x) the aggregate Euro Amount of the Take-Out Financing
completed on such date with respect to the A1 Facility, the A2 Facility and the
C Facility to (y) the Relevant Maximum Amount; and


 


(b)                                 at any other time, zero.


 


“Specified ECF Amount Certificate” means a duly completed
certificate in the form set out in Schedule 23 (Form of
Specified ECF Amount Certificate) signed by the chief financial
officer of the Parent.


 


“Spot Rate of Exchange” means at any date of
determination thereof:


 


(a)                                  with respect to any currency to be
converted into any currency other than Euro, the spot rate of exchange in
London that appears on the display page applicable to such currency on the
Telerate system; and


 


(b)                                 with respect to any currency to be
converted into Euro, the spot rate of exchange in London that appears on
Reuters ECB page 37 at or about 2:15 pm CET on the Telerate system,


 


in each case, as
at such date of determination, or such other page as may replace such page for
the purpose of displaying the spot rate of exchange in London, provided that


 


87

















 


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 Facility Agent and, if no such similar rate publishing service is
available, by reference to the published rate of the Facility Agent in effect
at such date for similar commercial transactions.


 


“SPV” means in
relation to any Facility, Australian Orphan SPV and any person that:


 


(a)                                  is organised as a special purpose
company, partnership or other legal person and satisfies the “bankruptcy remote”
criteria of each Rating Agency;


 


(b)                                 is formed principally for the purpose of
(i) advancing credit to (or otherwise financing) or holding interests in and
capitalising an Opco in relation to such Facility, (ii) leasing vehicles or
Equipment to an Opco in relation to such Facility, (iii) purchasing and selling
(conditionally or otherwise) vehicles or Equipment or entering into one or more
conditional sales arrangements in relation to vehicles or Equipment with an
Opco and/or (iv) becoming an Eligible Borrower;


 


(c)                                  save in the case of an Orphan SPV, is a
direct or indirect subsidiary of Holdco; and


 


(d)                                 save in the case of an Orphan SPV, is
organised in (i) a Core Country in relation to such Facility, (ii) in relation
to an A Facility, the Republic of Ireland or, if its Related Opco is organised
in Canada,  the USA, (iii) any other
jurisdiction satisfactory to the Facility Agent (acting reasonably), provided
if such SPV is not an Operational SPV that such person (other than the
Coordinator) shall be organised in the same jurisdiction as its Related Opco
unless:


 


(A)                              such person is organised in a country in
the European Union; or


 


(B)                                such person is organised in any other
jurisdiction satisfactory to the Facility Agent (acting reasonably).


 


“Sterling Tranche” means the A1 Sterling Tranche or the A2
Sterling Tranche, as the case may be.


 


“Swingline Available Borrowing Base” has the meaning given to
it in Clause 5.2(a) (Delivery of a Utilisation
Notice for Swingline Advances).


 


“Swingline Bank” means:


 


(a)                                  when designated “A1”:


 


(i)                                     a Bank listed in Schedule 1 (The Banks and their
Commitments) as an A1 Swingline Bank; or


 


(ii)                                  any other person that becomes an A1
Swingline Bank after the date of this Agreement in accordance with Clause 36.3
(Assignments and Transfers by Banks);


 


88

















 


(b)                                 when designated “A2”:


 


(i)                                     a Bank listed in Schedule 1 (The Banks and their
Commitments) as an A2 Swingline Bank; or


 


(ii)                                  any other person that becomes an A2
Swingline Bank after the date of this Agreement in accordance with Clause 36.3
(Assignments and Transfers by Banks);


 


(c)           when designated “C”:


 


(i)                                     a Bank listed in Schedule 1 (The Bank and their
Commitments) as a C Swingline Bank; or


 


(ii)                                  any other person that becomes a C
Swingline Bank after the date of this Agreement in accordance with Clause 36.3
(Assignments and Transfers by Banks); and


 


(d)                                 without any such designation, an “A1 Swingline Bank”; an “A2 Swingline Bank”,
and/or a “C Swingline Bank”, as the context requires,


 


and provided in
each case that such Bank has not ceased to be a party in accordance with the
terms of this Agreement.


 


“Swingline Facility” means:


 


(a)                                  when designated “A1”,
the multi-currency swingline loan facility made available by the A1 Swingline
Banks as described in Clause 6.1(a) (Swingline);


 


(b)                                 when designated “A2”,
the multi-currency swingline loan facility made available by the A2 Swingline
Banks as described in Clause 6.1(b) (Swingline);


 


(c)                                  when designated “C”,
the multi-currency swingline loan facility made available by the C Swingline
Banks under this Agreement as described in Clause 6.1(c) (Swingline); and


 


(d)                                 without any such designation, an “A1 Swingline Facility”, an “A2 Swingline
Facility” and/or a “C Swingline Facility”,
as the context requires.


 


“Swingline Rate” means, in respect of any Term applicable to
a Swingline Advance (other than a Canadian Swingline Advance) to be made in any
currency, the weighted average of the quotations offered by each Bank
participating in such Swingline Advance (as notified to the Facility Agent) for
deposits in such currency for such Term (weighted in proportion to the
percentage participation of such Bank in such Swingline Advance) pursuant to
Clause 10.2(b) (Interest Rate
Determination).


 


“Swiss Borrower” means any Borrower that is resident or
deemed to be resident in Switzerland for the purposes of the Swiss Federal
Withholding Tax Act, in respect of any payments made by such Borrower hereunder
or under the Finance Documents.


 


89

















 


“Swiss Franc Tranche” means the A1 Swiss Franc Tranche or the
A2 Swiss Tranche, as the case may be.


 


“Swiss Guarantor” has the meaning given to it in Clause 24.16(a)
(Swiss Guarantors).


 


“Swiss Obligor” means any Obligor that is resident or deemed
to be resident in Switzerland for the purposes of the Swiss Federal Withholding
Tax Act.


 


“Swiss Withholding Tax” has the meaning given to it in Clause
24.16(a)(ii) (Swiss Guarantors).


 


“Take-Out Borrower” means a Borrower which is itself, or
whose Related Opco incurs Indebtedness under a Take-Out Financing.


 


“Take-Out Financing” means any asset-backed financing
comprised of the issue of securities backed by assets that include, without
limitation, leasing and conditional sales arrangements and equivalents and
those that would otherwise have formed part of the Borrower Asset Value
(including, without limitation and for the avoidance of doubt, any Permitted
Securitisation backed by assets that would otherwise have formed part of the
Borrower Asset Value) or any funding via a commercial paper conduit backed by
assets that include, without limitation, leasing and conditional sales
arrangements and equivalents and those that would otherwise have formed part of
the Borrower Asset Value or any other type of financing backed by assets that
would otherwise have formed part of the Borrower Asset Value (including without
limitation leasing and conditional sales arrangements and equivalents).


 


“Take-Out Financing Amount” means, with respect to a Take-Out
Borrower, the aggregate principal amount of the indebtedness referred to in
paragraph (s) of the definition of “Permitted Indebtedness”
incurred with respect to a Take-Out Financing applicable to such Take-Out
Borrower and applied to the repayment of the Outstandings of such Take-Out
Borrower to the extent required by Clause 13.3 (Mandatory
Reduction of the Facilities).


 


“Take-Out Intercreditor/Subordination Requirements” means:


 


(a)                                  the execution and delivery to the
Security Agent by the Take-Out Borrowers, all other applicable subsidiaries of
the Parent and the applicable financing parties (including, without limitation,
any trustee, paying agent or security agent for and on behalf of any lenders,
noteholders or other finance parties) providing the extensions of credit
pursuant to the Take-Out Financing, of the following documents each in form and
substance satisfactory to the Facility Agent (acting reasonably):


 


(i)                                     appropriate lien releases and/or lien
subordination agreements, as determined by the Security Agent (acting
reasonably), in either case solely with respect to the item or items of
equipment or other assets subject to the Encumbrances created pursuant to the
Take-Out Financing, on terms and conditions satisfactory to the Security Agent
(acting reasonably),


 


90

















 


(ii)                                  an intercreditor agreement (the “Take-Out Intercreditor Agreement”) with respect to the
Take-Out Financing and the Take-Out Residual Outstandings, together with such
other guarantee, collateral and security documents as may be determined by the
Security Agent (acting reasonably); and


 


(iii)                               such additional agreements, documents and certificates
as may be required by the Security Agent (acting reasonably);


 


(b)                                 the delivery of executed legal opinions
of local counsel in the applicable jurisdictions with respect to collateral,
intercreditor and related security matters in connection with the Take-Out
Financing and the matters contemplated in immediately preceding paragraph;


 


(c)                                  at the time of the incurrence of such
Take-Out Financing (and the Encumbrances incurred in connection therewith),
both before and after giving effect thereto, no Event of Default shall have
occurred and be continuing; and


 


(d)                                 with respect to the applicable Take-Out
Financing (and the proceeds thereof), the Facilities and Outstandings shall be
reduced in accordance with Clause 13.3 (Mandatory Reduction of the
Facilities) to the extent (and only to the extent and not any
further) required thereby.


 


“Take-Out Residual Outstandings” means, with respect to a
Take-Out Borrower, the Outstandings of such Take-Out Borrower which shall
remain after application of the Take-Out Financing Amount in accordance with
Clause 13.3 (Mandatory Reduction of the Facilities).


 


“Target” means The Hertz Corporation, a corporation
incorporated under the laws of the State of Delaware.


 


“TARGET” means Trans-European Automated Real-Time Gross
settlement Express Transfer payment system.


 


“TARGET Day” means any day on which TARGET is open for
settlement of payment in Euro.


 


“Target Group” means Target and its subsidiaries from time to
time.


 


“Taxes Act” means the Income and Corporation Taxes Act 1988
of the United Kingdom.


 


“Tax Sharing Agreement” (a) the Hertz International Tax
Sharing Agreement, (b) any other tax sharing arrangement in respect of any
affiliated group of which any member of the Group was or is, or was or is
required to be, a member for any tax year, and of which the Target or any of
its subsidiaries was or is, or was or is required to be, the common parent for
purposes of paying taxes or filing a tax return, the terms of which provide
that amounts payable by any member of the Group pursuant to such arrangement
shall be limited to the amount which would otherwise have been paid or would be
payable by such member of the Group calculated on a standalone basis if


 


91

















 


such member had
been the taxpayer or (c) any other arrangement with respect to group relief.


 


“Term” means, save as otherwise provided herein, in relation
to an Advance or Letter of Credit, a period beginning on the Utilisation Date
for such Advance or Letter of Credit and ending on:


 


(a)                                  in the case of an A1 Advance or an A2
Advance, the first Settlement Date to occur following the Relevant A
Calculation Date;


 


(b)                                 in the case of a C Advance, the first
Settlement Date to occur following the Relevant C Calculation Date;


 


(c)                                  in the case of a Swingline Advance in
respect of which:


 


(i)                                     an Asset Report was delivered pursuant to
Clause 5.2(a) (Delivery of a Utilisation Notice for
Swingline Advances), the first Settlement Date to occur following
the next Calculation Date; and


 


(ii)                                  an Asset Report was not required to be
delivered pursuant to Clause 5.2(a) (Delivery of a Utilisation
Notice for Swingline Advances), the first Settlement Date to occur
following the Utilisation Date relating to such Swingline Advance; and


 


(d)                                 in the case of a Letter of Credit, the
period from its Utilisation Date until its Expiry Date.


 


“Timetable” means the timetable set out in Schedule 15 (Timetable) that sets forth the number of days notice that
must be provided prior to certain events including utilisations, determining
each Bank’s participations in Advances and Letters of Credit and fixing of
LIBOR, EURIBOR, BBSY, the BA Rate, the relevant Swingline Rate or the Canadian
Swingline Rate.


 


“Total A1 Borrowing Base” means, as at any Calculation Date,
the aggregate of:


 


(a)                                  A1 Advance Rate multiplied by the
aggregate Euro Amount of the Borrower Asset Value of all the A1 Borrowers as at
such Calculation Date; minus


 


(b)                                 the Excess Risk Vehicle Haircut (if any);
minus


 


(c)                                  in the case of any Advance under the A1
Australian Dollar Tranche or any A1 Swingline Advance made in Australian
Dollars only, the A1 Australian Dollar Reserve Amount; plus


 


(d)                                 87.5 per cent. of the Eligible Cash and
Eligible Cash Equivalents of all A1 Borrowers and all A2 Borrowers (or, if such
Borrower is a Financeco, its Related Opco),


 


in each case, as
at such Calculation Date.


 


“Total  A1 Commitments”
means the aggregate of the A1 Commitments.


 


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“Total A1 Swingline Commitments” means the aggregate of the
A1 Swingline Commitments.


 


“Total A2 Borrowing Base” means, as at any Calculation Date,
the aggregate of:


 


(a)                                  A2 Advance Rate multiplied by the
aggregate Euro Amount of the Borrower Asset Value of all the A2 Borrowers as at
such Calculation Date; minus


 


(b)                                 an amount equal to the difference (if
positive) between (i) the aggregate outstanding amount of the UK Capital Lease
Indebtedness with respect to the Excluded UK Vehicles of all A1 Borrowers and
A2 Borrowers and (ii) the aggregate amount of the Borrower Fleet NBV of all A1
Borrowers and A2 Borrowers (without duplication) that would have been
attributable to the Excluded UK Vehicles of such Borrowers if such Excluded UK
Vehicles had been included in the determination of the Borrower Fleet NBV of
the respective Borrowers; minus


 


(c)                                  the Excess Risk Vehicle Haircut (if any);
plus


 


(d)                                 an amount equal to 12.5 per cent. of the
Eligible Cash and Eligible Cash Equivalents of all A1 Borrowers and all A2
Borrowers (or if such Borrower is a Financeco, its Related Opco),


 


in each case, as
at such Calculation Date.


 


“Total A2 Commitments” means the aggregate of the A2
Commitments.


 


“Total A2 Swingline Commitments” means the aggregate of the
A2 Swingline Commitments.


 


“Total B Borrowing Base”
means, as at any Calculation Date, the aggregate of:


 


(a)                                  the B Advance Rate multiplied by the
Borrower Asset Value of all the B Borrowers as at such Calculation Date; plus


 


(b)                                 the Eligible Cash and Eligible Cash
Equivalents of all B Borrowers,


 


in each case, as at such Calculation Date.


 


“Total C Borrowing Base”
means, as at any Calculation Date, the aggregate of:


 


(a)                                  C Advance Rate multiplied by the Borrower
Asset Value of all the C Borrowers, as at such Calculation Date; and


 


(b)                                 100 per cent. of the Eligible Cash and
Eligible Cash Equivalents of all the C Borrowers (or if such Borrower is a
Financeco, its Related Opco) other than any Take-Out Borrower or any C Borrower
that is also an A1 Borrower or an A2 Borrower on such Calculation Date.


 


“Total C Commitments” means the aggregate of the C
Commitments.


 


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“Total C Swingline Commitments” means the aggregate of the C
Swingline Commitments.


 


“Total Commitments” means the aggregate of the Total A1
Commitments, the Total A2 Commitments and the Total C Commitments.


 


“Tranche” means any A1 Tranche and/or A2 Tranche, as the
context may require.


 


“Transactions” means:


 


(a)                                  the Acquisition and the other
transactions contemplated by the Acquisition Agreement;


 


(b)                                 the entry into of the Finance Documents
and the B Bridge Finance Documents, the incurrence of Indebtedness thereunder
and the other transactions contemplated thereby;


 


(c)                                  the restructuring of the Group on the
Closing Date contemplated by the Letter Agreement, dated 21 December 2005 (the “Letter Agreement”), as permitted by the U.S. ABL Credit
Agreement and the U.S. LBO Credit Agreement;


 


(d)                                 the transactions expressly referred to in
the Funds Flow Memorandum;


 


(e)           the direct or indirect payment of
Acquisition Costs;


 


(f)            the Hertz Intercompany Loan; and


 


(g)           the Canadian Reorganisation.


 


“Transfer Certificate” means a duly completed certificate in
the form set out in Schedule 3 (Form of Transfer
Certificate) signed by a Bank or, as the case may be, a Transferee
under which:


 


(a)                                  such Bank seeks to procure the transfer
to such Transferee of all or a part of the rights, benefits and/or obligations
of such Bank under the Finance Documents upon and subject to the terms and
conditions set out in Clause 36.3 (Assignments and Transfers
by Banks); and


 


(b)                                 such Transferee undertakes to perform the
obligations it will assume as a result of delivery of such certificate to the
Facility Agent as contemplated in Clause 36.6 (Transfers by
Banks).


 


“Transfer Date” means, in relation to any Transfer
Certificate, the date for the making of the transfer as specified in such Transfer
Certificate.


 


“Transferee” means a bank, financial institution, fund or
other entity to which a Bank seeks to transfer by novation all or part of such
Bank’s rights, benefits and/or obligations under the Finance Documents.


 


“Treaty Lender” means a Finance Party which (a) is treated as
resident (for the purposes of the relevant double taxation agreement) in a
jurisdiction having a double taxation agreement with the Relevant Jurisdiction
of the relevant Borrower (subject to


 


94

















 


the completion of
any necessary procedural formalities) giving complete exemption from all
Relevant Tax otherwise imposed by such jurisdiction on all payments hereunder
or under the Finance Documents and (b) is not excluded from the benefit of such
exemption.


 


“Twelve Month Period” means each financial year of the
Parent.


 


“UK Capital Lease Indebtedness” means, at any time, the
aggregate amount of the liability of each Borrower or each Borrower’s Related
Opco (as applicable) organised in the United Kingdom under any Lombard Leasing
Agreement, at such time.


 


“Unpaid Sum” means the unpaid balance of any of the sums
referred to in Clause 28.1 (Default Interest Periods).


 


“USA” means the United States of America or any of its states
or territories and the District of Columbia.


 


“U.S. ABL Credit Agreement” means the Credit Agreement, dated
as of the date hereof, among Hertz Equipment Rental Corporation, a Delaware
corporation, The Hertz Corporation, a Delaware corporation, the Canadian Borrowers
(as therein defined), 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 Capital Corporation, as documentation
agent.


 


“U.S. LBO Credit Agreement” means the Credit Agreement, dated
as of the date hereof, among, The Hertz Corporation, a Delaware corporation,
the several banks and other financial institutions from time to time parties to
this Agreement, Deutsche Bank AG, New York Branch, as administrative agent and
collateral agent, Lehman Commercial Paper Inc., as syndication agent, and Merrill
Lynch Capital Corporation, as documentation agent.


 


“US Obligors” means those Obligors organised under the law of
any state of the USA.


 


“Utilisation Date”
means:


 


(a)                                  in relation to any Facility (other than a
Swingline Facility), the date on which an Advance is to be made under such
Facility, which shall be a Settlement Date in relation to such Facility;


 


(b)                                 in relation to a Swingline Facility, the
date on which a Swingline Advance is to be made under such Facility, which
shall be the Specified Business Day falling one Specified Business Day (in the
case of a Swingline Advance denominated in Sterling, Canadian Dollars or Euro)
or two Specified Business Days (in the case of a Swingline Advance or Letter of
Credit denominated in Australian Dollars and Swiss Francs) after the
Notification Date; and


 


95














 


(c)                                  in relation to a Letter of Credit, the
date on which it is to be issued, which shall be the Specified Business Day
falling four Specified Business Days after the Notification Date.


 


“Utilisation Notice” means (a) in the case of all Advances
(other than Swingline Advances) and Letters of Credit, a duly completed notice
in the form set out in Part 1 of Schedule 5 (Utilisation
Notices) and (b) in the case of all Swingline Advances, a duly
completed notice in the form set out in Part 2 of Schedule 5 (Utilisation Notices).


 


“VAT Receivables” means, at any time and in relation to any
Borrower (or, if such Borrower is a Financeco, its Related Opco), the aggregate
of all VAT repayments owed by a taxation authority to such Borrower or its
Related Opco (as the case may be) in its Core Countries at such time and in
respect of which evidence satisfactory to the Facility Agent (acting
reasonably) has been received that such VAT repayment is (i) owed to the
relevant Borrower or its Related Opco (as the case may be), (ii) will be
paid without set-off or deduction of any kind and (iii) assignable by the
relevant Obligor or its Related Opco (as the case may be) by way of Security to
the Security Agent but excluding (a) any amount of any VAT repayment so owed to
that Borrower or its Related Opco which is attributable to any supply not
actually made but only treated as made (by reason of that person’s
representative or group member status or otherwise) to any person (other than
that Financeco, in relation to which that Borrower is the Related Opco) and (b)
any VAT repayment in respect of which Security in form and substance acceptable
to the Security Agent has not been provided to the Security Agent.


 


“VCLP” means a venture capital limited partnership within the
meaning of subsection 118-405(2) of the Australian Income Tax Assessment Act
1997.


 


“Vehicle Dealer” means, in relation to any vehicle, the
dealership (being an entity which is in the business of buying and selling
cars) which sells such vehicle to the relevant A1 Borrower or A2 Borrower (or
if such A1 Borrower or A2 Borrower is a Financeco, its Related Opco).


 


“Vehicle Dealer Buy-Back
Agreement” means, in relation to any A1 Borrower or A2 Borrower:


 


(a)                                  any purchase and buy-back agreement
between such Borrower (or if such Borrower is a Financeco, its Related Opco)
and a Vehicle Dealer entered into prior to the date hereof with respect to any
vehicle, provided that if necessary or desirable in the reasonable judgement of
the Facility Agent such Borrower shall use (or if such Borrower is a Financeco,
shall procure that its Related Opco uses) its commercially reasonable efforts
after the Closing Date (or, if such Borrower is an Opco that does not have an
Operational SPV with respect to such Vehicle Dealer prior to the date falling
six months after the Closing Date, such Borrower shall use its reasonable best
efforts after the date falling six months after the Closing Date) to
renegotiate such agreement in a manner such that, after giving effect to any
modifications or amendments as a result thereof:


 


96

















 


(i)                                     the terms and conditions of such
agreement will be satisfactory to the Facility Agent (acting reasonably) to
fully value such Vehicle Dealer’s commitments thereunder;


 


(ii)                                  such agreement will contain retention of
title provisions in favour of the Borrower or its Related Opco (as the case may
be) which will enable the Rating Agencies to give value to such Vehicle Dealer’s
payment obligations thereunder; and


 


(iii)                               such agreement will be in form and
substance satisfactory to the Facility Agent, acting reasonably and consistent
with then customary securitisation market standards; and


 


(b)                                 any purchase and buy-back agreement
between such Borrower or its Related Opco (as the case may be) and a Vehicle
Dealer entered into on or after the date hereof with respect to any vehicle
provided that:


 


(i)                                     the terms and conditions of such
agreement are satisfactory to the Facility Agent (acting reasonably) to fully
value such Vehicle Dealer’s commitments thereunder;


 


(ii)                                  such agreement contains retention of
title provisions in favour of the Borrower or its Related Opco (as the case may
be) which will enable the Rating Agencies to give value to such Vehicle
Manufacturer’s payment obligations thereunder; and


 


(iii)                               such agreement is in form and substance
satisfactory to the Facility Agent, acting reasonably and consistent with then
customary securitisation market standards,


 


and
which in each case, has a credit period of less than 30 days and the credit
risk with respect to which is covered by a Vehicle Dealer Buy-Back Guarantee or
an insurance policy in each case, in form and substance satisfactory to the
Facility Agent (acting reasonably) and if, the related Vehicle Dealer Buy-Back
Agreement is assigned to the Security Agent pursuant to the Finance Documents,
such Vehicle Dealer Buy-Back Guarantee and such insurance policy have also been
so assigned.


 


“Vehicle Dealer Buy-Back Guarantee” means, in relation to any
Vehicle Dealer and any Vehicle Dealer Buy-Back Agreement:


 


(a)                                  a Vehicle Manufacturer Guarantee; or


 


(b)                                 any guarantee granted by any Vehicle
Dealer’s bank in favour of a Borrower (or if such Borrower is a Financeco, its
Related Opco) with respect to the obligations of any Vehicle Dealer under any
Vehicle Dealer Buy-Back Agreement, which guarantee shall be in form and
substance satisfactory to the Facility Agent (acting reasonably).


 


“Vehicle Dealer Receivables” means, at any time and in
relation to any Borrower (or, if such Borrower is a Financeco, its Related
Opco), the aggregate of the unpaid


 


97

















 


portion of all
amounts owed by any Vehicle Dealer to such Borrower or its Related Opco (as the
case may be) at such time pursuant to the disposition by such Borrower or its
Related Opco (as the case may be) of any vehicle under any Vehicle Dealer
Buy-Back Agreement.


 


“Vehicle Manufacturer” means, in relation to any vehicle, the
manufacturer of such vehicle.


 


“Vehicle Manufacturer Buy-Back
Agreement” means, in relation to any A1 Borrower or A2 Borrower:


 


(a)                                  any purchase and buy-back agreement
between such Borrower (or if such Borrower is a Financeco, its Related Opco)
and a Vehicle Manufacturer entered into prior to the date hereof with respect to
any vehicle, provided that if necessary or desirable in the reasonable
judgement of the Facility Agent such Borrower shall use (or if such Borrower is
a Financeco, shall procure that its Related Opco uses) its commercially
reasonable efforts after the Closing Date (or, if such Borrower is an Opco that
does not have an Operational SPV with respect to such Vehicle Manufacturer
prior to the date falling six months after the Closing Date, such Borrower
shall use its reasonable best efforts after the date falling six months after
the Closing Date) to renegotiate such agreement in a manner such that, after
giving effect to any modifications or amendments as a result thereof:


 


(i)                                     the terms and conditions of such
agreement will be satisfactory to the Facility Agent (acting reasonably) to
fully value such Vehicle Manufacturer’s commitments thereunder;


 


(ii)                                  such agreement will contain retention of
title provisions in favour of the Borrower or its Related Opco (as the case may
be) which will enable the Rating Agencies to give value to such Vehicle
Manufacturer’s payment obligations thereunder or such buy-back obligations will
be transferred to or guaranteed by a subsidiary of the Vehicle Manufacturer
acceptable to the Rating Agencies; and


 


(iii)                               such agreement will be in form and
substance satisfactory to the Facility Agent, acting reasonably and consistent
with then customary securitisation market standards; and


 


(b)                                 any purchase and buy-back agreement
between such Borrower or its Related Opco (as the case may be) and a Vehicle
Manufacturer entered into on or after the date hereof with respect to any
vehicle provided that:


 


(i)                                     the terms and conditions of such
agreement are satisfactory to the Facility Agent (acting reasonably) to fully
value such Vehicle Manufacturer’s commitments thereunder;


 


(ii)                                  such agreement contains retention of
title provisions in favour of the Borrower or its Related Opco (as the case may
be) which will enable the Rating Agencies to give value to such Vehicle
Manufacturer’s payment obligations thereunder or such buy-back obligations will
be


 


98

















 


transferred
to or guaranteed by a subsidiary of the Vehicle Manufacturer acceptable to the
Rating Agencies; and


 


(iii)                               such agreement is in form and substance
satisfactory to the Facility Agent, acting reasonably and consistent with then
customary securitisation market standards.


 


“Vehicle Manufacturer Event of Default”
means, with respect to any Vehicle Manufacturer, either of the following
circumstances:


 


(a)                                  such Vehicle Manufacturer has failed to
pay when due pursuant to the terms of the relevant Vehicle Manufacturer
Buy-Back Agreement or the relevant Vehicle Manufacturer Guarantee and such
failure continues unremedied for a period of 90 days or more, any amounts
greater than the lesser of:


 


(i)                                     the Euro Equivalent of US$15,000,000 at
such time; and


 


(ii)                                  the aggregate of all amounts owed by such
Vehicle Manufacturer or in the case of a Vehicle Manufacturer Guarantee, the
relevant Vehicle Dealer, to the relevant Borrower (or if such Borrower is a
Financeco, its Related Opco) at such time pursuant to each Vehicle Manufacturer
Buy-Back Agreement and each Vehicle Manufacturer Guarantee between such Vehicle
Manufacturer and such Borrower or its Related Opco (as the case may be),
without double-counting, less such amounts that are:


 


(A)                              being contested in good faith by such
Vehicle Manufacturer and/or Vehicle Dealer, as the case may be, as evidenced in
writing questioning the accuracy of amounts paid or payable with respect to
certain vehicles subject to Vehicle Manufacturer Buy-Back Agreements and/or
Vehicle Manufacturer Guarantees entered into by such Vehicle Manufacturer (but
excluding amounts arising pursuant to a general repudiation by such Vehicle
Manufacturer of all of its obligations under all of its Vehicle Manufacturer
Buy-Back Agreements and/or Vehicle Manufacturer Guarantees with such A1
Borrower or its Related Opco (as the case may be)); and


 


(B)                                for which such Borrower or its Related
Opco (as the case may be) has established an adequate reserve (as determined by
such Borrower, acting reasonably),


 


provided
that the aggregate of such subtracted amounts shall not exceed the Euro
Equivalent of US$25,000,000; or


 


(b)                                 any of the events described in Clause 23.5
(Insolvency and Rescheduling), Clause 23.6
(Winding-up), or Clause 23.7 (Execution or Distress) occur in respect of such Vehicle
Manufacturer.


 


“Vehicle Manufacturer Guarantee” means, in relation to any
Vehicle Dealer and any Vehicle Dealer Buy-Back Agreement, any guarantee granted
by a Vehicle


 


99

















 


Manufacturer in
favour of any Borrower (or if such Borrower is a Financeco, its Related Opco)
with respect to the obligations of such Vehicle Dealer under such Vehicle
Dealer Buy-Back Agreement, which guarantee, if entered into after the date
hereof, shall be in form and substance satisfactory to the Facility Agent
(acting reasonably).


 


“Vehicle Manufacturer Receivables” means, at any time and in
relation to any Borrower (or, if such Borrower is a Financeco, its Related
Opco), the aggregate of all amounts owed by any Vehicle Manufacturer to such
Borrower or its Related Opco (as the case may be) at such time pursuant to the
disposition by such Borrower or its Related Opco (as the case may be) of any
vehicle under any Vehicle Manufacturer Buy-Back Agreement.


 


“Vehicle Rental Concession” means 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” means:


 


(a)                                  any Vehicle Rental Concession; and


 


(b)                                 any rights of any member of the Group
under or relating to:


 


(i)                                     any law, regulation, licence, 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 any member of the Group; 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, in each case as a condition to obtaining or maintaining a
Vehicle Rental Concession.


 


“Voting Stock” of an entity means all classes of shares or
other equity interests of such entity then outstanding and normally entitled to
vote in the election of directors or all interests in such entity with the
ability to control the management or actions of such entity.


 


1.2                                 Interpretation


 


Any reference in
this Agreement to:


 


the “Facility Agent”, any “Mandated Lead Arranger”,
any “Arranger”, the “Security
Agent”, the “Global Coordinator”,
any “Bank” or any “L/C Issuer”
shall be construed so as to include its and any subsequent successors and
permitted transferees in accordance with their respective interests;


 


an “affiliate” of a person is a subsidiary of that person or a
holding company of that person or any other subsidiary of that holding company;


 


100

















 


a document being
in an “agreed form” means that document
approved by or on behalf of the Parent and the Facility Agent or, where
expressly stated, by the Parent and the Facility Agent, or the Security Agent,
as the case may be;


 


save as otherwise
indicated herein, the “equivalent” on
any given date in one currency (the “first currency”)
of an amount denominated in another currency (the “second
currency”) is a reference to the amount of the first currency which
would be purchased with the amount of the second currency at the Spot Rate of
Exchange on such date (or such other time as may be appropriate) for the
purchase of the first currency with the second currency;


 


a “holding company” of a company or corporation shall be
construed as a reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;


 


a “law” shall be construed as any law (including common or
customary law), statute, constitution, decree, judgment, treaty, regulation,
directive, bye-law, order or any other legislative measure of any government,
supranational, local government, statutory or regulatory body or court;


 


a “month” is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in the next
succeeding calendar month save that, where any such period would otherwise end
on a day which is not a Business Day, it shall end on the next succeeding
Business Day, unless that day falls in the calendar month succeeding that in
which it would otherwise have ended, in which case it shall end on the
immediately preceding Business Day, provided that, if a period starts on the
last Business Day in a calendar month or if there is no numerically
corresponding day in the month in which that period ends, that period shall end
on the last Business Day in that later month;


 


a “person” shall be construed as a reference to any person,
firm, company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal personality)
of two or more of the foregoing provided that only a firm, company, corporation
or partnership may be a subsidiary of the Parent;


 


the “relevant interbank market” is a reference to:


 


(a)                                  in relation to the Euro, the European
interbank market; or


 


(b)                                 in relation to Canadian Dollars, the
Canadian interbank market;


 


(c)                                  in relation to Australian Dollars, the
Australian interbank market; and


 


(d)                                 in relation to any other currency, the
London interbank market;


 


the “relevant interbank rate” is a reference to:


 


(a)                                  in relation to the Euro, EURIBOR;


 


(b)                                 in relation to Australian Dollars, BBSY;


 


101

















 


(c)                                  in relation to Canadian Dollars, the BA
Rate; or


 


(d)                                 in relation to any other currency, LIBOR;


 


“repay” (or any derivative form thereof) shall, subject to
any contrary indication, be construed to include “prepay”
(or, as the case may be, the corresponding derivative form thereof) and in
relation to a Letter of Credit, shall mean the reduction or cancellation of the
obligations of the L/C Issuer or the provision of Cash Collateral in relation
thereto;


 


a “subsidiary” of a company or corporation shall be construed
as a reference to any company or corporation (other than any Excluded Canadian
Company):


 


(a)                                  which is controlled, directly or
indirectly, by (and would be treated as a subsidiary in the latest financial
statements of) the first-mentioned company or corporation; or


 


(b)                                 of which more than half the issued share
capital of which is beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or


 


(c)                                  which is a subsidiary of another
subsidiary of the first-mentioned company or corporation


 


and, for these
purposes, a company or corporation shall be treated as being controlled by
another if that other company or corporation is able to direct its affairs
and/or to control the composition of its board of directors or equivalent body
provided that no Take-Out Borrower to which Clause 38.5(c) (Termination of a Borrower’s rights) applies shall be
construed as a subsidiary of the Parent from the date on which the Parent has
complied with its obligations under paragraph (c) of Clause 13.3 (Mandatory Reduction of Facilities) in respect of the Net
Cash Proceeds of such Take-Out Financing;


 


a “successor” shall be construed so as to include an assignee
or successor in title of such party and any person who under the laws of its
jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such laws,
such rights and obligations have been transferred;


 


“taxes” shall be construed to include all present and future
taxes, levies, imposts, deductions, charges, duties and withholdings and any
charges of a similar nature, and “tax”, “taxation” and cognate expressions shall be construed
accordingly;


 


“VAT” shall be construed as a reference to value added tax,
goods and services tax, and any other turnover tax, including any similar tax
in any jurisdiction which may be imposed in place thereof from time to time;


 


a “wholly-owned subsidiary” of a company or corporation shall
be construed as a reference to any company or corporation which has no
shareholder or other members except that other company or corporation and that
other company’s or corporation’s wholly-owned subsidiaries or persons acting on
behalf of that other company or corporation or its wholly-owned subsidiaries
ignoring for these purposes “golden


 


102

















 


shares”, directors’ qualifying shares and shares
held by any person to meet other statutory requirements, including in respect
of a société en commandite par actions); and


 


the “winding-up”, “dissolution” or
“administration” of a company or
corporation shall be construed so as to include any equivalent or analogous
proceedings under the law of the jurisdiction in which such company or
corporation is incorporated or any jurisdiction in which such company or
corporation carries on business including the seeking of liquidation,
winding-up, reorganisation, bankruptcy, moratorium of payments, division,
statutory merger, dissolution, administration, arrangement, adjustment,
protection or relief of debtors.


 


1.3                                 Australian Borrowers


 


(a)                                  If the circumstances described in Clause 45.1(b)
(Loan Note Deed Poll) apply then, with
respect to Australian Borrowers only, any reference in this Agreement to:


 


(i)                                     an “Advance”
is a reference to a “Loan Note”;


 


(ii)                                  the “making
of an Advance” and any equivalent concept is a reference to the “issuance of a Loan Note” or the “subscription for a Loan Note” as the
context requires;


 


(iii)                               the “repayment
of an Advance” and any equivalent concept is a reference to the “redemption of a Loan Note”; and


 


(iv)                              the “prepayment
of an Advance” and any equivalent concept is a reference to the “early redemption of a Loan Note”.


 


(b)                                 Hertz Australia Pty Limited and each other
Obligor which is party to this Agreement acknowledges and agrees in favour of
each Finance Party that in respect of Hertz Note Issuer Pty Limited (the “Relevant Australian Obligor”):


 


(i)                                     Hertz Australia Pty Limited makes or gives
each representation or warranty which is expressly stated to be made or given
by each Obligor or the Obligors under Clause 19 (Representations)
of this Agreement in respect of the Relevant Australian Obligor; and


 


(ii)                                  Hertz Australia Pty Limited must ensure that
the Relevant Australian Obligor complies with each covenant or agreement which
is expressly stated to be made, undertaken or given by each Obligor or the
Obligors under Clauses 20.5 (Other Financial
Information) and 20.7 (“Know your customer”
checks), 21 (Positive Covenants),
22 (Negative Covenants), 36 (Assignment and Transfer), 43 (Counterparts)
and 44 (Amendments) of this Agreement and
Clauses 3.2 (Equity Financing Indebtedness), 4
(Permitted Payments) and 16 (Information and Co-operation) of the Intercreditor Deed.


 


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1.4                                 Facility Agent


 


With respect to
any Advances made to any Borrower incorporated in Australia, Italy or the
United Kingdom only, the Facility Agent shall act through its Facility Office
in the jurisdiction of incorporation of such Borrower, and with respect to any
Canadian Borrower only, the Facility Agent shall act through its wholly-owned
Canadian subsidiary or Canadian branch as applicable.


 


1.5                                 Currency Symbols


 


“£” and “Sterling”
denote the lawful currency of the United Kingdom, “AUD”
and “Australian Dollars” denote the lawful
currency of Australia, “€” and “Euro” means the single currency unit of Participating Member
States, “CAD” and “Canadian
Dollars” denote the lawful currency of Canada, “CHF”
and “Swiss Francs” denotes the lawful
currency of Switzerland and “US$” denotes
the lawful currency for the time being of the USA.


 


1.6                                 Agreements and Statutes


 


Any reference in
this Agreement to:


 


(a)                                  this Agreement or any other agreement or
document shall be construed as a reference to this Agreement or, as the case
may be, such other agreement or document as the same may have been, or may from
time to time be, amended, waived, varied, refinanced, novated or supplemented;
and


 


(b)                                 a statute or treaty shall be construed as a
reference to such statute or treaty as the same may have been, or may from time
to time be, amended or, in the case of a statute, re-enacted.


 


1.7                                 Headings


 


Clause and
Schedule headings are for ease of reference only.


 


1.8                                 Time


 


Any reference in
this Agreement to a time of day shall, unless a contrary indication appears, be
a reference to London time.  Any act
required to be taken on a day which is not a Business Day shall be taken on the
next succeeding Business Day unless otherwise specifically provided in this
Agreement.


 


1.9                                 Singular and Plural


 


Any reference in
this Agreement to words importing the plural shall include the singular and
vice versa.


 


1.10                           Third Party Rights


 


A person who is
not a party to this Agreement has no right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term of this Agreement provided that Secured
Hedge Counterparties not otherwise party to this Agreement may take the benefit
of, and rely on the provisions of, Clause 24 (Guarantee
and Indemnity).


 


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Notwithstanding
any term of any Finance Document, the consent of any such Secured Hedge
Counterparty is not required to rescind, amend, waive or vary this Agreement at
any time.


 


1.11                           Calculations


 


Save as otherwise
indicated herein, if any amount under this Agreement is required to be
determined in relation to any Borrower at any time, such amount shall be
determined:


 


(a)                                  in the case of any Borrower (or, if such
Borrower is a Financeco, its Related Opco) organised in the United Kingdom, in
Sterling;


 


(b)                                 in the case of any Borrower (or, if such Borrower
is a Financeco, its Related Opco) organised in Australia, in Australian
Dollars;


 


(c)                                  in the case of any Borrower (or, if such
Borrower is a Financeco, its Related Opco) organised in Canada or whose Related
Opco is organised in Canada, in Canadian Dollars;


 


(d)                                 in the case of any Borrower (or, if such
Borrower is a Financeco, its Related Opco) organised in Switzerland, in Swiss
Francs;


 


(e)                                  in the case of any Borrower (or, if such
Borrower is a Financeco, its Related Opco) organised in any other Core Country,
in Euro,


 


provided that if
any portion of such amount includes an amount denominated or expressed in any
currency other than the relevant Designated Currency indicated above, such
portion shall be equal to its Designated Currency Equivalent at such time.


 


1.12                           New York Law


 


The terms “best
efforts”, “reasonable best efforts” and “commercially reasonable efforts” as
used herein and in the other Finance Documents shall be governed by and
construed in accordance with the laws of New York.


 


1.13                           Limited Recourse – Australian Orphan SPV


 


(a)                                  Subject to Clause 1.13(d), but despite
any other provision of this Agreement, the Australian Orphan SPV is only
obliged to pay any amount otherwise payable under or in relation to this
Agreement to the extent that the amount can be satisfied out of the Australian
Orphan SPV Secured Property.


 


(b)                                 Subject to Clause 1.13(d) but despite
any other provision of this Agreement, the Security Agent must not:


 


(i)                                     take any action against the Australian Orphan
SPV personally to recover any part of the Secured Moneys which cannot be
recovered out of the Australian Orphan SPV Secured Property; or


 


(ii)                                  levy execution or bring any other proceedings
(other than to enforce a Transaction Document) against any property of the
Australian Orphan


 


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SPV which does not form part of the Australian Orphan SPV Secured
Property to recover any part of the Secured Moneys.


 


(c)                                  This Clause 1.13(b) operates as a covenant
not to sue and not as a release, and may be pleaded in bar to any action
brought in breach of it.


 


(d)                                 Nothing in this Clause 1.13 affects the
rights of the Security Agent or the liability of the Australian Orphan SPV with
respect to fraud, gross negligence or wilful misconduct by the Australian
Orphan SPV.


 


2.                                      THE FACILITIES


 


2.1                                 Grant of the Facilities


 


(a)                                  The Banks grant upon the terms and subject to
the conditions hereof:


 


(i)                                     to the A1 Borrowers, a multicurrency
revolving credit facility as follows:


 


(A)                              a tranche in a maximum aggregate amount
of £145,800,000 (the “A1 Sterling Tranche”)
to be available in Sterling and, subject to paragraph (b) below, Euro;


 


(B)                                a tranche in a maximum aggregate amount
of AUD212,700,000 (the “A1 Australian Dollar
Tranche”) to be available in Australian Dollars;


 


(C)                                a tranche in a maximum aggregate amount
of CAD312,300,000 (the “A1 Canadian Dollar Tranche”)
to be available in Canadian Dollars;


 


(D)                               a tranche in a maximum aggregate amount
of CHF58,900,000 (the “A1 Swiss Franc Tranche”)
to be available in Swiss Francs and, subject to paragraph (b) below, Euro;


 


(E)                                 a tranche in a maximum aggregate amount
of (x) €1,390,199,500 less (y) €73,000,000 (being the maximum aggregate
amount of the A1 Italian Non-Guaranteed Tranche) and the aggregate amount of
the Dutch Capital Lease Indebtedness (determined immediately after the Closing
Date) (the “A1 Euro Tranche”) to be available
in Euro; and


 


(F)                                 a tranche in a maximum aggregate amount
of €73,000,000 (the “A1 Italian
Non-Guaranteed Tranche”) to be available, subject to paragraph (c)
below, in Euro;


 


(ii)                                  to the A2 Borrowers, a second ranking
multicurrency revolving credit facility as follows:


 


(A)                              a tranche in a maximum aggregate amount
of £20,800,000 (the “A2 Sterling Tranche”)
to be available in Sterling and, subject to paragraph (b) below, Euro;


 


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(B)                                a tranche in a maximum aggregate amount
of AUD30,400,000 (the “A2 Australian Dollar
Tranche”) to be available in Australian Dollars;


 


(C)                                a tranche in a maximum aggregate amount
of CAD44,600,000 (the “A2 Canadian Dollar Tranche”)
to be available in Canadian Dollars;


 


(D)                               a tranche in a maximum aggregate amount
of CHF8,400,000 (the “A2 Swiss Franc Tranche”)
to be available in Swiss Francs and, subject to paragraph (b) below, Euro;


 


(E)                                 a tranche in a maximum aggregate amount
of €198,599,500 less €9,754,038.68 (being the maximum aggregate amount of the
A2 Italian Non-Guaranteed Tranche) (the “A2 Euro Tranche”)
to be available in Euro; and


 


(F)                                 a tranche in a maximum aggregate amount
of €9,754,038.68 (the “A2 Italian
Non-Guaranteed Tranche”) to be available, subject to paragraph (d)
below, in Euro; and


 


(iii)                               to the C Borrowers, a multicurrency revolving
credit facility in an aggregate amount equal to the Total C Commitments to be
available in Euro and, subject to paragraph (e) below, Sterling, Australian
Dollars, Canadian Dollars, Swiss Francs and Euro.


 


(b)                                 On each Utilisation Date, to the extent any
portion of a Sterling Tranche or a Swiss Franc Tranche remains or will remain
undrawn (after giving effect to any proposed Advances in Sterling or Swiss
Francs (as the case may be) under such Tranche on such Utilisation Date), such
Tranche may be drawn in a maximum aggregate amount equal to the Euro Equivalent
(determined as of the Calculation Date relating to such Utilisation Date) of
the undrawn portion thereof (each a “Permitted
Euro Tranche”) as at such Utilisation Date. For the avoidance of
doubt, any amount drawn in Euro under a Sterling Tranche or a Swiss Franc
Tranche shall remain outstanding in Euro and shall be repayable in Euro.


 


(c)                                  On each Utilisation Date, the A1 Italian
Non-Guaranteed Tranche may be drawn only if, in the case of:


 


(i)                                     Italian Opco, €133,000,000; or


 


(ii)                                  any other Italian Borrower, the amount in
Euro indicated in the relevant Accession Memorandum,


 


has been fully drawn by it under one or more other
Tranches (after
giving effect to any proposed Advances under such Tranches on such Utilisation
Date).


 


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(d)                                 On each Utilisation Date, the A2 Italian
Non-Guaranteed Tranche may be drawn only if, in the case of:


 


(i)                                     Italian Opco, €133,000,000; or


 


(ii)                                  any other Italian Borrower, the amount in
Euro indicated in the relevant Accession Memorandum,


 


has
been fully drawn by it under one or more other Tranches (after giving effect to
any proposed Advances under such Tranches on such Utilisation Date).


 


(e)                                  The C Facility may be utilised by way of
Letters of Credit, to be available in Sterling, Australian Dollars, Canadian
Dollars, Swiss Francs and Euro, provided the maximum aggregate amount of the
actual and contingent liabilities of all L/C Issuers under:


 


(i)                                     all Letters of Credit denominated in Euro
shall not exceed €15,000,000; and


 


(ii)                                  all Letters of Credit denominated in any
Designated Currency other than Euro shall not exceed an aggregate Euro Amount
of €5,000,000.


 


2.2                                 Purpose and Application of each A Facility


 


(a)                                  The proceeds of each A1 Advance and A2
Advance made on the Closing Date will be applied in or towards:


 


(i)                                     first, refinancing:


 


(A)                              a portion of the purchase price of (1)
the relevant Borrower’s Existing Vehicle Fleet or (2) if the relevant Borrower
is a Financeco, the Existing Vehicle Fleet of its Related Opco; and/or


 


(B)                                Existing Indebtedness of any Opco or any
affiliate of the relevant Borrower which is a subsidiary of the Parent, as set
forth on Part 1 of Schedule 14 (Existing Indebtedness);
and


 


(ii)                                  secondly, making payments (including paying
dividends, making distributions or entering into intercompany loans in order to
fund payments) in connection with the Acquisition (including the repayment of
Existing Indebtedness of the Target Group), as set forth on Part 1 of Schedule
14 (Existing Indebtedness).


 


(b)                                 The proceeds of each A1 Advance and A2
Advance made after the Closing Date will be applied in or towards:


 


(i)                                     financing a portion of the purchase price of
(1) the relevant Borrower’s New Vehicles or (2) if the relevant Borrower is a
Financeco, the New Vehicles of its Related Opco; and


 


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(ii)                                  the general corporate purposes of the Group,
including without limitation the acquisition of Eligible Cash or Eligible Cash
Equivalents.


 


2.3                                 Purpose and Application of C Facility


 


(a)                                  The proceeds of each C Advance made and each
Letter of Credit issued on the Closing Date will be applied in or towards:


 


(i)                                     first, refinancing:


 


(A)                              a portion of the purchase price of (1)
the relevant C Borrower’s Existing Equipment Assets or (2) if the relevant C
Borrower is a Financeco, the Existing Equipment Assets of its Related Opco);
and/or


 


(B)                                Existing Indebtedness of any Opco or of
any affiliate of the relevant C Borrower which is a subsidiary of the Parent,
as set forth on Part 2 of Schedule 14 (Existing Indebtedness);
and


 


(ii)                                  secondly, making payments (including paying
dividends, making distributions or entering into intercompany loans in order to
fund payments) in connection with the Acquisition (including the repayment of
Existing Indebtedness of the Target Group, as set forth on Part 2 of Schedule
14 (Existing Indebtedness)) or for payment
into a Security Agent Account.


 


(b)                                 The proceeds of each C Advance made and each
Letter of Credit issued after the Closing Date will be applied in or towards:


 


(i)                                     financing a portion of the purchase price of
(1) the relevant C Borrower’s New Equipment Assets or (2) if the relevant
C Borrower is a Financeco, the New Equipment Assets of its Related Opco; and


 


(ii)                                  the general corporate purposes of the Group,
including, without limitation, the acquisition of Eligible Cash or Eligible
Cash Equivalents and intercompany loans and other transactions with other
members of the Group permitted by the terms of this Agreement or for payment
into a Security Agent Account.


 


2.4                                 Professional Market Party Representation


 


(a)                                  Each Bank which makes an Advance to a Dutch
Borrower explicitly declares and represents to each Dutch Borrower, on the date
of this Agreement and, if on such date it is a requirement of Dutch law that
each Bank is a PMP, the date on which an Advance (or any portion thereof) is
made to such Dutch Borrower, that (i) it is a PMP, (ii) it is aware that it
therefore does not benefit from the (creditor) protection offered by the Dutch
Banking Act when lending monies to persons or entities which are subject to the
prohibition of Section 82 of the Dutch Banking Act and (iii) it has made its
own credit appraisal of the Dutch Borrower.


 


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(b)                                 If on the date on which a New Bank becomes a
Bank which makes an Advance to a Dutch Borrower, it is a requirement of Dutch
law that such New Bank is a PMP, such New Bank makes the representation set out
in paragraph 10 of the Transfer Certificate.


 


(c)                                  Each Bank acknowledges that the Dutch
Borrower has relied upon such representation and undertakes, to the extent
necessary, to provide its reasonable assistance to the Dutch Borrower in
verifying such Bank’s PMP status.


 


3.                                      CONDITIONS PRECEDENT


 


3.1                                 Initial Conditions Precedent


 


(a)                                  Save as the Banks may otherwise agree, the
Banks shall not be obliged to make any utilisation of any Facility available to
any Borrower unless the Facility Agent has confirmed to the Parent and the
Banks that it has received or is satisfied (acting reasonably) that it will,
subject only to the making of an Advance, receive all of the documents and
other evidence listed in Part 1 of Schedule 4 (Conditions
Precedent) and that each is (or will, when delivered, be), in form
and substance satisfactory to the Facility Agent (acting reasonably).


 


(b)                                 The Facility Agent’s confirmation given
pursuant to paragraph (a) above shall provide conclusive evidence that, subject
to any conditions set out in such confirmation, each of the conditions
precedent described in Part 1 of Schedule 4 (Conditions
Precedent) shall have been satisfied in accordance with the
requirements of this Clause 3.1 (Initial Conditions
Precedent) or been waived by the Facility Agent and the Banks.


 


3.2                                 Additional Conditions Precedent


 


(a)                                  Save as the Banks may otherwise agree, the
Banks shall not be obliged to make any utilisation of any Facility available to
any Borrower after the Closing Date unless the Facility Agent has confirmed to
the Parent and the Banks that it has received all of the documents and other
evidence listed in Part 2 of Schedule 4 (Conditions
Precedent) and that each is in form and substance satisfactory to
the Facility Agent (acting reasonably).


 


(b)                                 The Facility Agent’s confirmation given
pursuant to paragraph (a) above shall provide conclusive evidence that, subject
to any conditions set out in such confirmation, each of the conditions
precedent described in Part 2 of Schedule 4 (Conditions
Precedent) shall have been satisfied in accordance with the
requirements of this Clause 3.2 (Additional Conditions
Precedent) or been waived by the Facility Agent and the Banks.


 


3.3                                 General Conditions Subsequent


 


(a)                                  The Parent shall procure (and each relevant
Obligor shall ensure) as soon as reasonably practicable after the Closing Date,
but in any event on or before the date that is 30 days after the Closing Date
(or such later date as the Facility


 


110





















 


Agent may agree) the delivery of restated audited consolidated
financial statements of the Group for each of the financial years ended 31
December 2003 and 31 December 2004 to the Facility Agent.


 


(b)                                 The Parent shall procure (and each relevant
Obligor shall ensure) as soon as reasonably practicable after the Closing Date,
but in any event on or before the date that is 60 days after the Closing Date
(or such later date as the Facility Agent may agree):


 


(i)                                     there shall have been delivered to the
Security Agent certified copies of all intra-group loan agreements for amounts
in excess of €10,000,000 subsisting on the Closing Date; and


 


(ii)                                  Hertz Finance Centre plc accedes to the
Intercreditor Deed in the capacity of an Equity Finance Provider (as defined in
the Intercreditor Deed) and provides the Security Agent with such evidence as
it may reasonably require (including a legal opinion satisfactory to it acting
reasonably) of its conversion to a private company and its compliance with all
applicable laws and regulations in relation thereto, including all necessary
procedures necessary to ensure that such accession does not constitute unlawful
financial assistance.


 


(c)                                  The Parent shall procure (and each relevant
Obligor shall ensure) that as soon as reasonably practicable after the Closing
Date, but in any event on or before the date that is 90 days after the Closing
Date (or such later date as the Facility Agent may agree):


 


(i)                                     all intra-group creditors and intra-group
debtors that are required to be parties to the Intercreditor Deed accede to the
Intercreditor Deed; and


 


(ii)                                  there shall have been delivered to the
Security Agent the Subsequent Security Documents in the agreed form and each
duly executed to the satisfaction of the Security Agent acting reasonably on
the basis of advice of its legal counsel in the appropriate jurisdiction,
together in each case with evidence of registration or filing with the
appropriate authorities within the necessary time periods prescribed therefor.


 


(d)                                 The Security Agent shall notify the Parent
and the Banks upon being satisfied (acting reasonably) that the conditions in
each of paragraphs (a), (b) and (c) of this Clause 3.3 have been
satisfied.


 


3.4                                 Several Obligations


 


The obligations of
each Finance Party are several and the failure by a Finance Party to perform
its obligations hereunder shall not affect the obligations of an Obligor
towards any other party hereto nor shall any other party be liable for the
failure by such Finance Party to perform its obligations hereunder.


 


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3.5                                 Several Rights


 


The rights of each
Finance Party are several and any debt arising hereunder at any time from an
Obligor to any Finance Party shall be a separate and independent debt.  Each such party shall be entitled to protect
and enforce its individual rights arising out of this Agreement (but, for the
avoidance of doubt, not the Security Documents) independently of any other
party (so that it shall not be necessary for any party hereto to be joined as
an additional party in any proceedings for this purpose).


 


3.6                                 Coordinator


 


(a)                                  Each Original Obligor hereby irrevocably
appoints the Coordinator to act as its agent for the purposes of the Finance
Documents including, without limitation, the delivery of Utilisation Notices
and the execution of any amendments or waivers contemplated under the terms of
Clause 44 (Amendments).  Each Additional Obligor shall appoint the
Coordinator as its agent for the purposes of the Finance Documents by the
execution of an Accession Memorandum. 
The Finance Parties may rely on a document signed by the Coordinator as
if the Coordinator and each other Obligor had signed it.


 


(b)                                 The Coordinator shall be responsible for
collecting and providing all information required to be delivered, in each
case, by any Obligor to any Finance Party under this Agreement, including (i)
the relevant Asset Report on each Reporting Date (in the case of Advances other
than Swingline Advances) and, subject to Clause 4.3 (Delivery of
an Asset Report for Letters of Credit) and Clause 5.2(a) (Delivery of a Utilisation Notice for Swingline Advances),
the relevant Notification Date (in the case of Letters of Credit and Swingline
Advances) and (ii) the Utilisation Notices.


 


(c)                                  The Coordinator may give a good receipt for
any amount payable by a Finance Party to any Obligor.  Any communication delivered to the
Coordinator shall be deemed for the purposes of any Finance Document to have
been delivered to each member of the Group and each other Obligor.  Any communication made by the Coordinator to
any Finance Party shall be deemed to have been made with the consent of each
other member of the Group and each other Obligor.


 


4.                                      UTILISATION OF THE
FACILITIES


 


4.1                                 Utilisation Conditions


 


Save as otherwise
provided herein, (i) an A1 Advance will be made by the Banks to an A1 Borrower,
(ii) an A2 Advance will be made to an A2 Borrower or (iii) a C Advance
will be made or a Letter of Credit will be issued by an L/C Issuer to a
C Borrower, in each case at the request of such Borrower, if:


 


(a)                                  not later than the date and time specified in
the Timetable, the Facility Agent has received a completed Utilisation Notice
from the Coordinator stating whether the utilisation is to be by way of an
Advance or Letter of Credit;


 


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(b)                                 subject to Clause 4.3 (Delivery of
an Asset Report for Letters of Credit), not later than the time
specified in the Timetable on the relevant Reporting Date (in the case of an
Advance) or the relevant Notification Date (in the case of a Letter of Credit),
the Facility Agent has received the relevant Asset Report relating to such
Borrower from the Coordinator;


 


(c)                                  the Borrower (or, if such Borrower is a
Financeco, its Related Opco) is organised:


 


(i)                                     in the case of any Advance to be made in
Sterling, in the United Kingdom;


 


(ii)                                  in the case of any Advance to be made in
Australian Dollars, in Australia;


 


(iii)                               in the case of any Advance to be made in
Canadian Dollars, in Canada;


 


(iv)                              in the case of any Advance to be made in
Swiss Francs, in Switzerland;


 


(v)                                 in the case of any Advance (other than a C
Advance, a C Swingline Advance or an Advance under the A1 Italian
Non-Guaranteed Tranche or the A2 Italian Non-Guaranteed Tranche) to be made in
Euro, in any Core Country other than the United Kingdom, Australia, Canada and
Switzerland;


 


(vi)                              in the case of a C Advance, a C Swingline
Advance or a Letter of Credit, France or Spain; and


 


(vii)                           in the case of an Advance under the Italian
Non-Guaranteed Tranches, Italy;


 


(d)                                 the proposed Utilisation Date:


 


(i)                                     in the case of any A1 Advance or A2 Advance
to be made for any purpose set forth in Clause 2.2(a) (Purpose and Application of each A Facility), or in the
case of any C Advance or Letter of Credit made for any purpose set forth in
Clause 2.3(a) (Purpose and Application of
C Facility), is the Closing Date; and


 


(ii)                                  in the case of any A1 Advance or A2 Advance
to be made for the purpose set forth in Clause 2.2(b) (Purpose and
Application of each A Facility), or in the case of any C
Advance or Letter of Credit made for any purpose set forth in
Clause 2.3(b) (Purpose and Application of
C Facility), is a Specified Business Day after the Closing Date
within the Availability Period provided that Advances (other than Swingline Advances)
under each Facility will only be made on the relevant Settlement Date, unless
the relevant Instructing Group otherwise agrees, and in the case of any Letter
of Credit in respect of which an Asset Report is required to be delivered
pursuant to this Clause 4.1, such Letter of Credit will only be made on a
Settlement Date;


 


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(e)                                  in the case of an A1 Advance or an A2 Advance
requested on the Settlement Date relating to the Optional A Calculation Date,
such Borrower’s A1 Borrowing Base or A2 Borrowing Base (as the case may
be) on such Settlement Date exceeds such Borrower’s A1 Borrowing Base or
A2 Borrowing Base (as the case may be) on the Closing Date;


 


(f)                                    in the case of an A1 Advance or an A2 Advance,
on the proposed Utilisation Date for such Advance, not less than 30 per cent.
of the aggregate Euro Amount of all Advances made to such Borrower under each A
Facility are repayable on each Settlement Date (the “Minimum Repayment Amount”), provided that if the aggregate
outstanding Euro Amount of all Advances made to such Borrower under such
Facility on such Settlement Date is less than the Minimum Repayment Amount,
such Borrower may request an Advance under such Facility in an aggregate amount
not exceeding the difference between the aggregate outstanding Euro Amount of
all Advances made to such Borrower under such Facility on such Settlement Date
and the Minimum Repayment Amount provided that immediately following the making
of such Advance the aggregate outstanding Designated Currency Amount of all
Advances to such Borrower under such Facility would not exceed such Borrower’s
A1 Borrowing Base or A2 Borrowing Base (as the case may be);


 


(g)                                 the proposed amount of such Advance is:


 


(i)                                     if less than the relevant Available Facility,
in relation to:


 


(A)                              the A1 Facility, an amount equal to at
least £2,000,000 (in the case of the A1 Sterling Tranche), AUD3,000,000 (in the
case of the A1 Australian Dollar Tranche), CAD3,000,000 (in the case of the A1
Canadian Dollar Tranche), CHF500,000 (in the case of the A1 Swiss Franc
Tranche) and €3,000,000 (in the case of the A1 Euro Tranche), €500,000 (in the
case of the A1 Italian Non-Guaranteed Tranche) and €3,500,000 (in the
case of a Permitted Euro Tranche), provided that the aggregate of the Euro
Amount of all A1 Advances on such Utilisation Date shall be equal to at least
€5,000,000,


 


(B)                                the A2 Facility, an amount equal to at
least £285,500 (in the case of the A2 Sterling Tranche), AUD428,500 (in the
case of the A2 Australian Dollar Tranche), CAD428,500 (in the case of the
A2 Canadian Dollar Tranche), CHF71,000 (in the case of the A2 Swiss Franc
Tranche) and €428,500 (in the case of the A2 Euro Tranche), €71,000 (in
the case of the A2 Italian Non-Guaranteed Tranche) and €500,000 (in the
case of a Permitted Euro Tranche), provided that the aggregate of the Euro
Amount of all A2 Advances on such Utilisation Date shall be equal to at least
€1,000,000; or


 


(C)                                the C Facility, €1,000,000; or


 


(ii)                                  equal to the amount of such Available
Facility;


 


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(h)                                 (in respect of a Letter of Credit) the
proposed Face Amount of such Letter of Credit is, subject to Clause 2.1(e)
(Grant of the Facilities), less than or
equal to the Available Facility in relation to the C Facility;


 


(i)                                     (in respect of a Letter of Credit) the
proposed Term of the Letter of Credit is a period not exceeding 12 months
ending on or prior to the earlier of (i) 10 Business Days before the
Final Maturity Date and (ii) 12 months after the date of issuance;


 


(j)                                     (in respect of an Advance other than a
Rollover Advance) the interest rate applicable to such Advance during its Term
would not fall to be determined pursuant to Clause 9.1 (Market Disruption);


 


(k)                                  (in respect of a Letter of Credit) the L/C
Issuer and the Facility Agent have each approved the terms of the Letter of
Credit (which, unless the Facility Agent otherwise agrees in writing, shall be
substantially in the form set out in Schedule 11 (Form of
Letter of Credit)), the purpose of its issue and the identity of the
beneficiary;


 


(l)                                     on and as of the proposed Utilisation Date
(save in relation to a Rollover Advance) and subject to Clause 4.2 (Certain Funds Conditions) (i) no Event of Default or
Potential Event of Default is continuing or would result from the proposed
utilisation and (ii) the Repeated Representations are true in all material
respects, provided that the Facility Agent may assume that this condition has
been satisfied unless it has received any notification to the contrary from the
Parent, such Borrower, the Coordinator or any other person prior to the
Utilisation Date;


 


(m)                               on and as of the proposed Utilisation Date in
relation to a Rollover Advance, no declaration of acceleration of any Advance,
no requirements to prepay Letters of Credit nor cancellation of any Commitment
shall have been made pursuant to Clause 23.16 (Acceleration
and Cancellation);


 


(n)                                 immediately following the making of such
Advance:


 


(i)                                     in the case of an A1 Advance:


 


(A)                              the aggregate outstanding Designated
Currency Amount of all A1 Advances to such A1 Borrower would not exceed such
Borrower’s A1 Borrowing Base;


 


(B)                                the aggregate outstanding Base Currency
Amount of all A1 Advances under each A1 Tranche would not exceed the aggregate
amount of each Bank’s Commitment in relation to such A1 Tranche; and


 


(C)                                the Euro Amount of the A1 Outstandings
would not exceed the Euro Amount of the Total A1 Commitments at such time;


 


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(ii)                                  in the case of an A2 Advance:


 


(A)                              the aggregate outstanding Designated
Currency Amount of all A2 Advances to such A2 Borrower would not exceed such
Borrower’s A2 Borrowing Base;


 


(B)                                the aggregate outstanding Base Currency
Amount of all A2 Advances under each A2 Tranche would not exceed the
aggregate amount of each Bank’s Commitment in relation to such A2 Tranche; and


 


(C)                                the Euro Amount of the A2 Outstandings
would not exceed the Euro Amount of the Total A2 Commitments at such time; and


 


(iii)                               in the case of a C Advance or a Letter of
Credit:


 


(A)                              the aggregate outstanding Designated
Currency Amount of all C Advances and Letters of Credit to such C Borrower
would not exceed such Borrower’s C Borrowing Base; and


 


(B)                                the Euro Amount of the C Outstandings would
not exceed the Euro Amount of the Total C Commitments at such time.


 


(o)                                 following the making of such Advance if such
Advance is a Canadian Advance, there shall be no more than 10 separate Canadian
Advances in existence at any one time.


 


4.2                                 Certain Funds Conditions


 


Following
satisfaction of the conditions precedent pursuant to Clause 3.1 (Initial Conditions Precedent) and subject to compliance with
the requirements of Clause 4.1 (Utilisation Conditions)
an Advance during the Certain Funds Period will be made available by the Banks
despite a failure to satisfy the requirements of Clause 4.1(l) (Utilisation Conditions) only if no Certain Funds Event of
Default has occurred and no Change of Control has occurred.


 


4.3                                 Delivery of an Asset Report for Letters of
Credit


 


A C Borrower shall
not be required to deliver an Asset Report in relation to a Letter of Credit
if:


 


(a)                                  the aggregate Euro Amount of the C Borrowing
Base for such C Borrower, as determined on the immediately preceding Reporting
Date, exceeds the aggregate outstanding Euro Amount (without double-counting)
of all C Advances and Letters of Credit to such C Borrower, as determined on
the Utilisation Date relating to such Letter of Credit to such C Borrower after
giving effect to all C Advances and Letters of Credit to be made on such
Utilisation Date to such C Borrower (such excess amount, the “L/C Available Borrowing Base”); and


 


(b)                                 the aggregate amount of the proposed
utilisation does not exceed the L/C Available Borrowing Base.


 


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4.4                                 Completion of Letters of Credit


 


The relevant L/C
Issuer is authorised to issue any Letter of Credit pursuant to Clause 4.1
(Utilisation Conditions) by:


 


(a)                                  completing the issue date and the proposed
Expiry Date of such Letter of Credit; and


 


(b)                                 executing and delivering such Letter of
Credit to the relevant recipient on the Utilisation Date.


 


4.5                                 Renewal of a Letter of Credit


 


(a)                                  Not later than the date and time specified in
the Timetable before the Expiry Date of a Letter of Credit a C Borrower may, by
written notice to the Facility Agent (with a copy to the L/C Issuer), request
that the Term of such Letter of Credit be extended.


 


(b)                                 The Finance Parties shall treat such request
in the same way as a Utilisation Notice for a Letter of Credit save that the
conditions set out in Clause 4.1(a) (Utilisation Conditions)
and Clause 4.1(k) (Utilisation Conditions)
shall not apply.


 


(c)                                  The terms of each renewed Letter of Credit
shall be the same as those of the relevant Letter of Credit immediately prior
to its renewal, save that its Term shall commence on the date which was the
Expiry Date of such Letter of Credit immediately prior to its renewal and shall
end on the proposed Expiry Date specified in such request.


 


(d)                                 The relevant L/C Issuer is authorised to
amend any such Letter of Credit pursuant to such request in paragraph (a) above
in accordance with paragraph (c) above if the conditions set out in this
Agreement have been complied with.


 


4.6                                 Each Bank’s Participation in Advances


 


(a)                                  The Facility Agent will, not later than the
time specified in the Timetable on the relevant Information Date, notify each
Bank of its respective Proportion of an Advance to be made under a Facility on
the next succeeding Settlement Date in relation to such Facility.


 


(b)                                 Save as otherwise provided in Clause 4.8 (Canadian Advances) and otherwise herein, each Bank will
participate through its relevant Facility Office in each Advance made or Letter
of Credit issued pursuant to this Clause 4 in its respective Proportion.


 


4.7                                 Restrictions on Participation in Letters of
Credit


 


If at any time
prior to the issue of a Letter of Credit any Bank is prohibited either by law
or pursuant to any requirement of any central bank or other fiscal, monetary or
other authority from having any right or obligation under this Agreement in
respect of such Letter of Credit, such Bank shall subject to Clause 18 (Mitigation and Other


 


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Provisions
Relating to Taxes and Increased Costs) notify the Facility Agent on or before the Business
Day prior to the proposed Utilisation Date and:


 


(a)                                  the Face Amount of such Letter of Credit
shall be reduced by an amount equal to what would have been the amount of such
Bank’s L/C Proportion of such Letter of Credit if such prohibition had not
occurred;


 


(b)                                 the L/C Proportion of such Bank in relation
to such Letter of Credit shall be nil; and


 


(c)                                  such Bank’s Available Commitment shall (in
relation to such Letter of Credit only) be reduced by an amount equal to what
would have been the amount of such Bank’s L/C Proportion of such Letter of
Credit if such prohibition had not occurred.


 


4.8                                 Canadian Advances


 


(a)                                  The Canadian Permitted Bank shall make each
Canadian Advance prior to the issuance of a Notice of Exercise of Sale Right.


 


(b)                                 Prior to the issuance of a Notice of Exercise
of Sale Right and concurrently with the making and funding of each Canadian
Advance by the Canadian Permitted Bank, the Canadian Permitted Bank shall be
deemed to have purchased and received from each Non-Canadian Bank and each Non-Canadian
Bank shall be deemed irrevocably, immediately and unconditionally to have sold
to the Canadian Permitted Bank, without recourse or warranty and for the
consideration described in Clause 26 (Canadian Permitted Bank
Fees), a right (each a “Canadian
Revolving Sale Right”) exercisable solely at the option of the
Canadian Permitted Bank as permitted under Clause 23.20 (Exercise of Sale Right) to sell to the Non-Canadian Bank,
and thereupon to mandatorily and irrevocably require the Non-Canadian Bank to
purchase and assume, the Non-Canadian Bank’s Canadian Pro-Rata Share of (i) all
Canadian Outstandings and (ii) the Commitments of the Canadian Permitted Bank
in respect of the A1 Canadian Dollar Tranche and the A2 Canadian Dollar
Tranche.  For the avoidance of doubt, no
Non-Canadian Bank shall have any ownership right, title or interest, legal or
beneficial, in any Canadian Outstandings in respect of a Facility, or shall be
entitled to receive any payments of principal or interest thereon, or any other
amounts in respect thereof, unless and until the Non-Canadian Bank’s purchase
of an ownership interest in such Canadian Outstandings upon the exercise of a
Canadian Revolving Sale Right by the Canadian Permitted Bank in respect of such
Canadian Outstandings pursuant to Clause 23.20 (Exercise of
Sale Right).


 


(c)                                  If any Canadian Advance is made after a
Notice of Exercise of Sale Right has been issued each Non-Canadian Bank with a
Commitment under the A1 Canadian Dollar Tranche or the A2 Canadian Dollar
Tranche (as applicable) shall fund its Canadian Pro-Rata Share of such Canadian
Advance.


 


(d)                                 If BNP Paribas ceases to be the Facility
Agent, the Non-Canadian Banks may, by unanimous consent, provide notice to the
Canadian Permitted Bank that they will cancel their obligation to purchase,
pursuant to Clause 23.20


 


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(Exercise of Sale Right), the Non-Canadian
Bank’s Canadian Pro-Rata Share of (i) all Canadian Outstandings and (ii) the
Commitments of the Canadian Permitted Bank in respect of the A1 Canadian Dollar
Tranche and the A2 Canadian Dollar Tranche and any A Swingline Facility on the
date which is 30 days after receipt of such notice by the Canadian
Permitted Bank (the “Canadian Permitted Bank
Sale Date”), and the Canadian Permitted Bank agrees to transfer all
of the foregoing interests to the successor named in such notice on such date
provided that such successor shall satisfy paragraph (b)(i) or (b)(ii) of the
definition of “Qualifying Bank”.  Notwithstanding the foregoing, at the sole
discretion of the Canadian Permitted Bank, the Canadian Permitted Bank may
elect, by providing notice to the Non-Canadian Banks prior to the Canadian
Permitted Bank Sale Date, to only transfer such interests to the extent of its
Canadian Sale Right and otherwise retain its Canadian Outstanding and
Commitments under the A1 Canadian Dollar Tranche and the A2 Canadian Dollar
Tranche and any A Swingline Facility.


 


4.9                                 Reduction of Available Commitment


 


If a Bank’s
Commitment is reduced pursuant to Clause 13 (Cancellation
and Prepayment) or Clause 17 (Illegality)
after the Facility Agent has received the Utilisation Notice pursuant to this
Clause 4 or a request for an extension of the Term of a Letter of Credit
pursuant to Clause 4.5 (Renewal of a Letter of
Credit) and such reduction was not taken into account in calculating
the relevant Available Facility, then the amount of the relevant Advance or
Letter of Credit shall be reduced accordingly provided that in the case of any
Advance or Letter of Credit to be made by a Bank or L/C Issuer (as the case may
be) to an Australian Borrower the reduction shall not at any time cause the
principal amount outstanding on the Loan Note referable to that Advance to be
less than the Minimum Principal Loan Note Amount.


 


5.                                      UTILISATION
OF THE SWINGLINE FACILITIES


 


5.1                                 General


 


The following
provisions do not apply to Swingline Advances:


 


(a)                                  Clauses 2.2 (Purpose and
Application of each A Facility) and 2.3 (Purpose and
Application of C Facility); and


 


(b)                                 Clause 4 (Utilisation
of the Facilities).


 


5.2                                 Delivery of a Utilisation Notice for
Swingline Advances


 


(a)                                  An A1 Borrower, A2 Borrower or a C Borrower
may utilise the corresponding Swingline Facility by delivery (through the
Coordinator) to the Facility Agent of a duly completed Utilisation Notice,
together with the relevant Asset Report, not later than the time specified in
the Timetable on the relevant Notification Date provided that the Coordinator
shall not be required to deliver such Asset Report if:


 


(i)                                     the aggregate Euro Amount of the A1 Borrowing
Base, the A2 Borrowing Base or the C Borrowing Base (as the case may be)
for


 


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such Borrower, as determined on the immediately preceding Reporting
Date, exceeds the aggregate outstanding Euro Amount (without double-counting)
of all Advances and Letters of Credit made to such Borrower under the A1
Facility, the A2 Facility or the C Facility (as the case may be), as determined
on the Utilisation Date relating to such Swingline Advance after giving effect
to all Advances and Letters of Credit to be made on such Utilisation Date under
such Facility to such Borrower (such excess amount, the “Swingline Available Borrowing Base”);


 


(ii)                                  the aggregate amount of the proposed
utilisation does not exceed the Swingline Available Borrowing Base; and


 


(iii)                               the Base Currency Amount of the Swingline
Advance does not exceed the Available Facility in relation to the relevant
Facility or Tranche.


 


(b)                                 In the event that the Commissioner of State
Revenue in Queensland makes an assessment of stamp duty in respect of any of
the Initial Security Documents, the Australian Orphan SPV will:


 


(i)                                     be deemed to have issued a Utilisation Notice
for an A1 Swingline Advance denominated in Australian Dollars in an amount
equal to such stamp duty; and


 


(ii)                                  be taken to have authorised the Facility
Agent to apply such amount directly in discharge of such liability without
first paying such amount to the Australian Orphan SPV,


 


provided
that the aggregate amount of all A1 Swingline Advances made or deemed to be
made pursuant to this paragraph (b) shall not at any time exceed the A1
Australian Dollar Reserve Amount.


 


5.3                                 Completion of a Utilisation Notice for
Swingline Advances


 


(a)                                  Each Utilisation Notice for a Swingline
Advance is irrevocable and will not be regarded as having been duly completed
unless:


 


(i)                                     it identifies the relevant A1 Borrower, A2
Borrower or C Borrower and such Borrower (or, if such Borrower is a Financeco,
its Related Opco) is organised:


 


(A)                              in the case of any Swingline Advance to
be made in Sterling, the United Kingdom;


 


(B)                                in the case of any Swingline Advance to
be made in Australian Dollars, Australia;


 


(C)                                in the case of any Swingline Advance to
be made in Canadian Dollars, Canada;


 


(D)                               in the case of any Swingline Advance to
be made in Swiss Francs, Switzerland; and


 


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(E)                                 in the case of any Swingline Advance to
be made in Euro, any Core Country other than the United Kingdom, Australia,
Canada and Switzerland;


 


(ii)                                  it specifies that it is for an A1 Swingline
Advance, A2 Swingline Advance or C Swingline Advance;


 


(iii)                               the proposed Utilisation Date is a Specified
Business Day occurring within the Availability Period, which shall, in the case
of a Swingline Advance in respect of which an Asset Report is required to be
delivered pursuant to Clause 5.2(a) (Delivery of a Utilisation
Notice for Swingline Advances), be a Settlement Date;


 


(iv)                              the Swingline Advance is denominated in the
relevant Designated Currency; and


 


(v)                                 the proposed amount of such Swingline Advance
is:


 


(A)                              if less than the Available Facility in
relation to:


 


(x)                                   the A1 Swingline Facility, an amount
equal to at least £1,000,000 (if denominated in Sterling), AUD3,000,000 (if
denominated in Australian Dollars), CAD2,000,000 (if denominated in Canadian
Dollars), CHF500,000 (if denominated in Swiss Francs) and €2,000,000 (if denominated
in Euro) provided that the aggregate of the Euro Amount of all A1 Swingline
Advances on such Utilisation Date shall be equal to at least €2,000,000;


 


(y)                                 the A2 Swingline Facility, an amount
equal to at least £142,500 (if denominated in Sterling), AUD428,500 (if
denominated in Australian Dollars), CAD285,500 (if denominated in Canadian
Dollars), CHF71,000 (if denominated in Swiss Francs) and €285,500 (if
denominated in Euro), provided that the aggregate of the Euro Amount of all A2
Swingline Advances on such Utilisation Date shall be equal to at least
€285,500;


 


(z)                                   the C Swingline Facility, €1,000,000; or


 


(B)                                equal to the amount of such Available
Facility;


 


(vi)                              immediately following the making of such
Swingline Advance:


 


(A)                              in the case of an A1 Swingline Advance:


 


(x)                                   unless such Advance is made pursuant to
the Swingline Available Borrowing Base, such Advance would not exceed the A1
Advance Rate of the purchase price of the New Vehicles to be financed from the
proceeds of such Advance;


 


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(y)                                 the aggregate outstanding Base Currency
Amount of all A1 Advances under each A1 Tranche would not exceed the aggregate
amount of each Bank’s Commitment in relation to such A1 Tranche; and


 


(z)                                   the Euro Amount of the A1 Outstandings in
respect of A1 Swingline Advances would not exceed the  Euro Amount of the Total A1 Swingline
Commitments at such time;


 


(B)                                in the case of an A2 Swingline Advance:


 


(x)                                   unless such Advance is made pursuant to
the Swingline Available Borrowing Base, such Advance would not exceed the A2
Advance Rate of the purchase price of the New Vehicles to be financed from the
proceeds of such Advance;


 


(y)                                 unless such Advance is made pursuant to
the Swingline Available Borrowing Base, the aggregate outstanding Base Currency
Amount of all A2 Advances under each A2 Tranche would not exceed the aggregate
amount of each Bank’s Commitment in relation to such A2 Tranche; and


 


(z)                                   the Euro Amount of the A2 Outstandings in
respect of A2 Swingline Advances would not exceed the  Euro Amount of the Total A2 Swingline
Commitments at such time; and


 


(C)           in the case of a C Swingline Advance:


 


(x)                                   unless such Advance is made pursuant to
the Swingline Available Borrowing Base, such Advance would not exceed the C Advance
Rate of the purchase price of the New Equipment to be financed from the
proceeds of such Advance; and


 


(y)                                 the Euro Amount of the C Outstandings in
respect of C Swingline Advances would not exceed the  Euro Amount of the Total C Swingline
Commitments at such time.


 


(b)                                 Only one Swingline Advance may be requested
in each Utilisation Notice.


 


5.4                                 Swingline Banks’ Participation


 


(a)                                  Save as otherwise provided in paragraphs (d),
(e) and (f) below, if the conditions set out in this Agreement have been met,
each A1, A2 or C Swingline Bank shall participate through its relevant
Facility office in each


 


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Swingline Advance available made pursuant to this Clause 5 in its
respective proportion.


 


(b)                                 The relevant Swingline Banks will only be
obliged to comply with paragraph (a) above if on the date of the relevant
Utilisation Notice and on the relevant proposed Utilisation Date:


 


(i)                                     no Event of Default or Potential Event of
Default is continuing or would result from the proposed utilisation; and


 


(ii)                                  the Repeating Representations are true in all
material respects, provided that the Facility Agent may assume that this
condition has been satisfied unless it has received any notification to the
contrary from the Parent, such Borrower, the Coordinator or any other person
prior to the Utilisation Date,


 


(c)                                  Save as otherwise provided in paragraphs (d),
(e) and (f) below, the amount of each relevant Swingline Bank’s participation
in each Swingline Advance will be equal to its Proportion adjusted to take
account of any limit applying under Clause 5.5 (Relationship with the
Other Facilities).


 


(d)                                 The Canadian Permitted Bank shall make each
Canadian Swingline Advance prior to the issuance of a Notice of Exercise of
Sale Right.


 


(e)                                  Prior to the issuance of a Notice of Exercise
of Sale Right and concurrently with the making and funding of each Canadian
Swingline Advance by the Canadian Permitted Bank, the Canadian Permitted Bank
shall be deemed to have purchased and received from each Non-Canadian Bank and
each Non-Canadian Bank shall be deemed irrevocably, immediately and
unconditionally to have sold to the Canadian Permitted Bank, without recourse
or warranty and for the consideration described in Clause 26 (Canadian Permitted Bank Fees), a right (each a “Canadian Swingline Sale Right”) exercisable
solely at the option of the Canadian Permitted Bank as permitted under
Clause 23.20 (Exercise of Sale Right)
to sell to the Non-Canadian Bank, and to mandatorily and irrevocably require
the Non-Canadian Bank to purchase and assume, the Non-Canadian Bank’s Canadian
Pro-Rata Share of all Canadian Outstandings in respect of such Swingline
Facility adjusted to take account of any limit applying under Clause 5.5 (Relationship with the Other Facilities).  For the avoidance of doubt, no Non-Canadian
Bank shall have any ownership right, title or interest, legal or beneficial, in
any Canadian Outstandings in respect of a Swingline Facility, or shall be
entitled to receive any payments of principal or interest thereon, or any other
amounts in respect thereon, unless and until the Non-Canadian Bank’s purchase
of an ownership interest in such Canadian Outstandings in respect of such
Swingline Facility upon the exercise of a Canadian Swingline Sale Right by the
Canadian Permitted Bank in respect of such Canadian Outstandings in respect of
such Swingline Facility pursuant to Clause 23.20 (Exercise of
Sale Right).


 


(f)                                    If any Canadian Swingline Advance is made
after a Notice of Exercise of Sale Right has been issued each Non-Canadian Bank
with a Commitment under


 


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any A Swingline Facility shall fund its Canadian Swingline Pro-Rata
Share of such Canadian Swingline Advance.


 


5.5                                 Relationship with the Other Facilities


 


(a)                                  This Clause 5.5 applies when a Swingline
Advance is outstanding or is to be borrowed.


 


(b)                                 Each of the A1 Facility, the A2 Facility and
the C Facility may be used by way of Swingline Advances.  The Swingline Facilities are not independent
of the A1 Facility, A2 Facility or the C Facility.


 


(c)                                  Notwithstanding any other term of this
Agreement, a Bank is only obliged to participate in an Advance (including a
Swingline Advance) to the extent that it would not result in the aggregate Euro
Amount of its participation and that of a Bank which is its affiliate in the
Advances exceeding its Overall Commitment in relation to the A1 Facility, the
A2 Facility or the C Facility (as the case may be).


 


(d)                                 Where, but for the operation of
paragraph (c) above, the Euro Amount of a Bank’s participation and that of
a Bank which is its affiliate in the relevant Advance (including a Swingline
Advance) would have exceeded its Overall Commitment in relation to the A1
Facility, the A2 Facility or the C Facility (as the case may be), the excess
will be apportioned among the other Banks participating in the relevant Advance
pro rata according to their relevant Commitments in relation to such
Facility.  This calculation will be
applied as often as necessary until the relevant Advance is apportioned among
the relevant Banks in a manner consistent with paragraph (c) above.


 


(e)                                  For the purposes of paragraphs (c) and (d)
above, a participation in an Advance will include a Bank’s Canadian Pro-Rata
Share of any Canadian Advance.


 


6.                                      SWINGLINE ADVANCES


 


6.1                                 Swingline


 


Upon the terms and
subject to the conditions of this Agreement:


 


(a)                                  the A1 Swingline Banks make available to the
A1 Borrowers a multicurrency swingline loan facility in an aggregate amount
equal to the Total A1 Swingline Commitments;


 


(b)                                 the A2 Swingline Banks make available to the
A2 Borrowers a second ranking multicurrency swingline loan facility in an
aggregate amount equal to the Total A2 Swingline Commitments; and


 


(c)                                  the C Swingline Banks make available to the C
Borrowers a swingline loan facility in an aggregate amount equal to the Total C
Swingline Commitments in Euro.


 


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6.2                                 Purpose


 


(a)                                  Each A1 Borrower or A2 Borrower shall apply
all amounts borrowed by it under any A Swingline Facility towards the purpose
set out in Clause 2.2(b) (Purpose and Application of
each A Facility) provided that, subject to Clause 5.2(b) (Delivery of a Utilisation Notice for Swingline Advances),
the proceeds of any A1 Swingline Advance made pursuant to Clause 5.2(b) (Delivery of a Utilisation Notice for Swingline Advances),
shall be applied towards payment of any stamp duty assessed by the Commissioner
of State Revenue in Queensland in respect of any of the Initial Security
Documents relating to any Advances made in Australian Dollars in relation to
the A1 Swingline Facility.


 


(b)                                 Each C Borrower shall apply all amounts
borrowed by it under the C Swingline Facility towards the purpose set out
in Clause 2.3(b) (Purpose and Application of
C Facility).


 


6.3                                 Swingline Agent


 


(a)                                  The Facility Agent may perform its duties in
respect of the Swingline Facilities through an affiliate acting as its agent.


 


(b)                                 Notwithstanding any other term of this
Agreement and without limiting the liability of any Obligor under the Finance
Documents, each Bank shall (according to its Proportion of the Euro Amount of
the Total A1 Commitments, Total A2 Commitments or the Total C Commitments,
as appropriate or, if the Total A1 Commitments, Total A2 Commitments or the
Total C Commitments, as appropriate, are then zero, to its Proportion of the
Euro Amount of the Total A1 Commitments, Total A2 Commitments or the Total C
Commitments immediately prior to their reduction to zero) pay to or indemnify
the Facility Agent, within three Business Days of demand, for or against any
cost, loss or liability incurred by the Facility Agent or its affiliate (other
than by reason of the Facility Agent’s or its affiliate’s gross negligence or
wilful misconduct) in acting as Facility Agent for the Swingline Facilities
under the Finance Documents (unless the Facility Agent or its affiliate has
been reimbursed by an Obligor pursuant to a Finance Document).


 


6.4                                 Conditions of assignment or transfer


 


Notwithstanding
any other term of this Agreement, each Bank shall ensure that at all times its
Overall Commitment in relation to the A1 Facility, the A2 Facility or the
C Facility (as the case may be) is not less than:


 


(a)                                  its Swingline Commitment in relation to such
Facility; or


 


(b)                                 if it does not have a Swingline Commitment in
relation to such Facility, the Swingline Commitment in relation to such
Facility of a Bank which is its affiliate.


 


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7.                                      LETTER OF CREDIT
COMMISSION, L/C ISSUER FEE AND COSTS AND EXPENSES


 


7.1                                 Letter of Credit Commission


 


The relevant C
Borrower shall, in respect of each Letter of Credit requested by it, pay to the
Facility Agent for the account of each Bank (for distribution in proportion to
each Bank’s L/C Proportion of such Letter of Credit) a letter of credit
commission at the L/C Commission Rate on the Face Amount of the relevant Letter
of Credit.  Such letter of credit
commission shall be paid in arrear in respect of each successive period of
three months (or such shorter period as shall end on the relevant Expiry Date)
which begins during the Term of the relevant Letter of Credit, such payments to
be made on the last day of each such period.


 


7.2                                 L/C Issuer Fee


 


The relevant C
Borrower shall, in respect of each Letter of Credit, pay to the relevant L/C
Issuer (for its own account) a fee in Euro in the amounts and at the times
agreed between such L/C Issuer and the relevant C Borrower.


 


7.3                                 Costs and Expenses


 


In addition to
Clauses 7.1 (Letter of Credit Commission) and
7.2 (L/C Issuer Fee), each C Borrower agrees
to pay or reimburse any L/C Issuer for such normal and customary costs and
expenses as are incurred or charged by such L/C Issuer in issuing, effecting
payment under, amending or otherwise administering any Letter of Credit issued
by such L/C Issuer.


 


8.                                      PAYMENT AND CALCULATION
OF INTEREST


 


8.1                                 Payment of Interest


 


On the Repayment
Date relating to each Advance, the relevant Borrower shall pay accrued interest
on that Advance.


 


8.2                                 Calculation of Interest


 


The rate of
interest applicable to an Advance from time to time during its Term shall be
the rate per annum which is the sum of:


 


(a)                                  the Applicable Margin;


 


(b)                                 the Mandatory Cost Rate; and


 


(c)                                  in relation to:


 


(i)                                     any Advance (other than a Swingline Advance)
which is denominated in:


 


(A)                              Euro, EURIBOR;


 


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(B)                                Canadian Dollars, the BA Rate or, subject
to paragraphs (b) and (c) of the definition of “BA Rate”,
an interpolation of the BA Rate and CORRA;


 


(C)                                Australian Dollars, BBSY; or


 


(D)                               any other currency, LIBOR;


 


(ii)                                  any Swingline Advance (other than a Canadian
Swingline Advance), the relevant Swingline Rate; and


 


(iii)                               any Canadian Swingline Advance, the Canadian
Swingline Rate.


 


8.3                                 Effective Global Rate (Taux Effectif Global)


 


For the purposes
of articles L. 313-1 et seq. of the French Code de la Consommation,
the parties acknowledge that by virtue of certain characteristics of the
Facilities (and in particular the variable interest rate applicable to the
Advances, the effective global rate (taux effectif global)
of the Facilities made available to the French Borrowers cannot be calculated
at the date of this Agreement.  However,
the French Borrowers on the date of this Agreement acknowledge or on the date
of their accession to this Agreement will acknowledge, that they have each
received from the Facility Agent a duly completed letter (a “TEG Letter”) in the form set out in Schedule 12 (Form of TEG Letter) containing an indicative calculation of
the effective global rate (taux effectif global)
of the Facilities, based on figured examples calculated on assumptions set out
in that TEG Letter.  The parties
acknowledge that each such TEG Letter forms an integral part of this Agreement.


 


8.4                                 Italian Law Interest Cap


 


Notwithstanding
any other term of this Agreement, if at any time the annual effective global
rate (tasso annuo effectivo globale – TAEG) pursuant to Article 2 of Law
no. 108 of 17 March 1996 and the relevant implementing legislation) of a
Facility payable by an Obligor incorporated under the laws of Italy under this
Agreement would result in a breach of Italian usury law, then any such payment
shall be capped, for the shortest period possible (if applicable), at the
maximum amount permitted to be payable by such Obligor under Italian usury law.


 


9.                                      MARKET DISRUPTION AND
ALTERNATIVE INTEREST RATES


 


9.1                                 Market Disruption


 


(a)                                  If, in relation to any Advance (other than a
BA Rate Loan or a Swingline Advance) or Unpaid Sum:


 


(i)                                     at or about the time specified in this
Agreement on the Quotation Date (or other relevant date of determination as
specified in this Agreement), the appropriate Screen Rate is not displayed and
none or only one of the relevant Reference Banks supplies a rate for the purpose
of determining the relevant interbank rate for the relevant Interest Period or
Term; or


 


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(ii)                                  before 5.00 p.m. in Paris on the Quotation
Date for such Advance or Unpaid Sum the Facility Agent has been notified by a
Bank or each of a group of Banks to whom in aggregate fifty per cent. or more
of such Advance or Unpaid Sum is owed (or, in the case of an undrawn Advance,
if made, would be owed) that the relevant interbank rate does not accurately
reflect the cost of funding its participation in such Advance or Unpaid Sum,


 


then,
the Facility Agent shall promptly notify the Parent and the Banks (by telefax
or by telephone) of such event and, notwithstanding anything to the contrary in
this Agreement, Clause 9.2 (Substitute Interest Period
and Interest Rate) shall apply to such Advance (if it is a Rollover
Advance) or Unpaid Sum.  If paragraph (a)
or (b) of this Clause 9.1 applies to a proposed Advance (being an Advance
which is not (i) a Rollover Advance or (ii) an Advance to fund payment of a
Letter of Credit under Clause 12.6 (Advances to meet Demands
in respect of Letters of Credit) (an “Incremental
Advance”)), such Incremental Advance shall not be made.


 


(b)                                 If, by reason of circumstances affecting the Canadian
money market generally, as determined by the Facility Agent (acting
reasonably), there is no market for Canadian Dollar bankers’ acceptances, the
right of a Canadian Borrower to request a BA Rate Loan shall be suspended until
the circumstances causing the suspension no longer exist, and until such time,
any Utilisation Notice which is outstanding for BA Rate Loans shall be
cancelled and the Canadian Borrower may only obtain Canadian Swingline
Advances.


 


9.2                                 Substitute Interest Period and Interest Rate


 


If
Clause 9.1(a)(i) (Market Disruption)
or Clause 9.1(a)(ii) (Market Disruption)
applies to an Advance or Unpaid Sum, the rate of interest applicable to each
Bank’s portion of such Advance or Unpaid Sum during the relevant Interest
Period or Term shall (subject to any agreement reached pursuant to
Clause 9.3 (Alternative Rate)) be the rate
per annum which is the sum of:


 


(a)                                  the Applicable Margin; and


 


(b)                                 the rate per annum notified to the Facility
Agent by such Bank (which the Facility Agent shall promptly notify to the
Parent) before the last day of such Interest Period or Term to be that which
expresses as a percentage rate per annum the cost to such Bank of funding from
whatever sources are available to it its portion of such Advance or Unpaid Sum during
such Interest Period or Term.  Such
notification shall include a reasonably detailed explanation of the calculation
of such rate.


 


9.3                                 Alternative Rate


 


If (a) either of
those events mentioned in Clauses 9.1(a)(i) and Clause 9.1(a)(ii) (Market Disruption) occurs in relation to an Advance or
Unpaid Sum or (b) by reason of circumstances affecting the relevant interbank
market during any period of three consecutive Business Days the relevant
interbank rate is not available for the relevant currency to prime banks in the
relevant interbank market, then if the Facility Agent or


 


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the Parent so
requires, the Facility Agent and the Parent shall enter into negotiations in
good faith and using commercially reasonable efforts to minimise the interest
cost to the Parent with a view to agreeing a substitute basis (i) for
determining the rates of interest from time to time applicable to the Advances
and Unpaid Sums and/or (ii) upon which the Advances and Unpaid Sums may be
maintained (whether in Euro or some other currency) thereafter and any such
substitute basis that is agreed shall take effect in accordance with its terms
and be binding on each party hereto, provided that the Facility Agent may not
agree any such substitute basis without the prior consent of an Instructing
Group in respect of the relevant Facility.


 


10.                               NOTIFICATION


 


10.1                           Advances and Letters of Credit


 


No later than (a)
the case of any Advance other than a Swingline Advance, the applicable time specified
in the Timetable on the relevant Information Date and (b) in the case of any
Swingline Advance or Letter of Credit, the applicable time specified in the
Timetable on the relevant Notification Date, the Facility Agent shall, in
respect of any Advance made or to be made or Letter of Credit issued or to be
issued under the Facility, deliver a Notification, together with a copy of any
Asset Report required to be delivered in relation to such Advance, Swingline
Advance or Letter of Credit.


 


10.2                           Interest Rate Determination


 


(a)                                  The Facility Agent shall promptly notify each
Borrower and the Banks participating in the relevant Facility (other than a
Swingline Facility) of each determination of the relevant interbank rate, the
Applicable Margin and the Mandatory Cost Rate. 
The Facility Agent shall, at the request of the relevant Borrower,
deliver to such Borrower a statement showing in reasonable detail how the
relevant interbank rate in relation to any Term or Interest Period in any
Advance (other than a Swingline Advance) was determined.


 


(b)                                 No later than the applicable date and time
specified in the Timetable, each Bank participating in the relevant Swingline
Advance shall notify Facility Agent of the quotation offered by such Bank for
deposits in such currency for such Term and the Facility Agent shall, no later
than the applicable date and time specified in the Timetable, promptly notify
each Borrower participating in such Swingline Advance and the Coordinator of
the Swingline Rate. The Facility Agent shall, at the request of the relevant
Borrower, deliver to such Borrower a statement showing in reasonable detail how
the relevant Swingline Rate in relation to any Term or Interest Period was
determined.


 


(c)                                  No later than the applicable date and time
specified in the Timetable, each Canadian Permitted Bank participating in the
relevant Canadian Swingline Advance shall notify the Facility Agent of the
quotation offered by such Bank for deposits in such currency for such Term and
the Facility Agent shall, no later than the applicable date and time specified
in the Timetable, promptly notify each Borrower participating in such Canadian
Swingline Advance and the Coordinator of the Canadian Swingline Rate. The
Facility Agent shall, at the request of the relevant Borrower, deliver to such
Borrower a statement


 


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showing in reasonable detail how the relevant Canadian Swingline Rate
in relation to any Term or Interest Period was determined.


 


10.3                           Demands under Letters of Credit


 


If a demand is
made under a Letter of Credit or an L/C Issuer incurs in connection with a
Letter of Credit any other liability, cost, claim, loss or expense which is to
be reimbursed pursuant to this Agreement, the relevant L/C Issuer shall promptly
notify the Facility Agent of the amount of such demand or such liability, cost,
claim, loss or expense and the Letter of Credit to which it relates and the
Facility Agent shall promptly make demand upon the relevant C Borrower in
accordance with this Agreement and notify the Banks.


 


10.4                           Changes to Interest Rates


 


The Facility Agent
shall promptly notify the relevant Borrower and the Banks participating in the
relevant Facility (or, in the case of any A Facility, the relevant Tranche) of
any change to any interest rate occasioned by the operation of Clause 9 (Market Disruption and Alternative Interest Rates).


 


10.5                           Netting of Advances


 


On any Utilisation
Date, the Facility Agent shall apply the proceeds of any Advance to be made on
that date (a “New Advance”) in satisfaction of
any amounts of principal payable by the Borrower to whom that New Advance is to
be made on that Utilisation Date which are in the same currency and relate to
the same Facility or Tranche as that New Advance.


 


11.                               REPAYMENT OF ADVANCES


 


(a)                                  Subject to Clause 10.5 (Netting of
Advances), each Borrower shall repay each Advance (including any
Swingline Advance) made to it in full prior to the close of business (in the
relevant country relating to the Designated Currency) on the Repayment Date
relating thereto.


 


(b)                                 All amounts outstanding under each Facility
shall be repaid on the Final Maturity Date.


 


(c)                                  Notwithstanding paragraph (a) above, but
subject to paragraph (b) above, each Australian Borrower shall repay each
Advance (including any Swingline Advance) made to it on the Repayment Date but
only to the extent that the Minimum Principal Loan Note Amount is maintained as
a result of such repayment and where a Rollover Advance is used to refinance
the Advance, the Loan Notes relating to such Advance shall not be so redeemed
and shall relate in all respects (including principal, interest and maturity)
to the Rollover Advance and to each Bank’s share thereof.


 


(d)                                 Notwithstanding paragraph (a) above, each
Italian Borrower shall firstly repay any outstanding amount of the Italian
Non-Guaranteed Tranches, if any, then any amount drawn by it under the A1 Euro
Tranche and/or the A2 Euro Tranche, as the case may be, it being understood
that any payment made by an


 


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Italian Borrower shall be applied firstly to the repayment of interest
and then of principal.


 


12.                               C BORROWER’S LIABILITIES IN RELATION TO LETTERS OF
CREDIT


 


12.1                           C Borrower’s Indemnity to L/C Issuers


 


The C Borrower on
whose behalf a Letter of Credit has been issued shall irrevocably and
unconditionally as a primary obligation indemnify (within three Business Days
of demand of the Facility Agent) the L/C Issuer which issued such Letter of
Credit against:


 


(a)                                  any sum paid or due and payable by such L/C
Issuer under such Letter of Credit in accordance with the terms of such Letter
of Credit; and


 


(b)                                 all liabilities, costs, claims, losses and
expenses which such L/C Issuer may at any time properly incur or sustain in
connection with or arising out of any such Letter of Credit other than those
arising out of the relevant L/C Issuer’s gross negligence or wilful misconduct.


 


12.2                           C Borrower’s Indemnity to Banks


 


The C Borrower on
whose behalf a Letter of Credit has been issued shall irrevocably and
unconditionally as a primary obligation indemnify (within three Business Days
of demand of the Facility Agent) each Bank against:


 


(a)                                  any sum paid or due and payable by such Bank
(whether under Clause 35.1 (Banks’ Indemnity)
or otherwise) in connection with such Letter of Credit; and


 


(b)                                 all liabilities, costs, claims, losses and
expenses which such Bank may at any time properly incur or sustain in
connection with any Letter of Credit other than those arising out of the
relevant L/C Issuer’s gross negligence or wilful misconduct.


 


12.3                           Preservation of Rights


 


Neither the
obligations of any C Borrower set out in this Clause 12 nor the rights,
powers and remedies conferred on any L/C Issuer or any Bank by this Agreement
or by law shall be discharged, impaired or otherwise affected by:


 


(a)                                  the winding-up, dissolution, administration
or re-organisation of the relevant L/C Issuer, any Bank or any other person or
any change in its status, function, control or ownership;


 


(b)                                 any of the obligations of the relevant L/C
Issuer, any Bank or any other person hereunder or under any Letter of Credit or
under any other security taken in respect of any C Borrower’s obligations
hereunder or otherwise in connection with a Letter of Credit being or becoming
illegal, invalid, unenforceable or ineffective in any respect;


 


(c)                                  any time or other indulgence being granted or
agreed to be granted to the relevant L/C Issuer, any Bank or any other person
in respect of its obligations


 


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hereunder or under or in connection with a Letter of Credit or under
any such other security;


 


(d)           any amendment to, or any variation, waiver or
release of, any obligation of such L/C Issuer, any Bank or any other person
under a Letter of Credit or this Agreement;


 


(e)           any other act, event or omission (other than
gross negligence or wilful misconduct) which, but for this Clause 12,
might operate to discharge, impair or otherwise affect any of the obligations
of a C Borrower set out in this Clause 12 or any of the rights, powers or
remedies conferred upon such L/C Issuer or any Bank by this Agreement or
by law.


 


The obligations of each C
Borrower set out in this Clause 12 shall be in addition to and independent
of every other security which any L/C Issuer or such Bank may at any time hold
in respect of such C Borrower’s obligations hereunder.


 


12.4         Settlement Conditional


 


Any settlement or
discharge between a C Borrower and an L/C Issuer or a Bank shall be conditional
upon no security or payment to such L/C Issuer or such Bank by such C Borrower,
or any other person on behalf of such C Borrower, being avoided or reduced by
virtue of any laws relating to bankruptcy, insolvency, liquidation or similar
laws of general application and, if any such security or payment is so avoided
or reduced, such L/C Issuer or such Bank shall be entitled to recover the value
or amount of such security or payment from such C Borrower subsequently as if
such settlement or discharge had not occurred.


 


12.5         Right to make Payments under Letters of
Credit


 


The relevant L/C Issuer
shall be entitled to make any payment in accordance with the terms of the
relevant Letter of Credit without any reference to or further authority from
the relevant C Borrower or any other investigation or enquiry.  Each C Borrower irrevocably authorises each
L/C Issuer to comply with any demand under a Letter of Credit which is valid on
its face.


 


12.6         Advances to meet Demands in respect of
Letters of Credit


 


If a demand for payment
is made under a Letter of Credit the relevant C Borrower shall, unless it has
given at least three Business Days’ notice to the contrary to the Facility
Agent, be deemed to have issued a Utilisation Notice (to the extent that such C
Borrower would otherwise be permitted to request a Rollover Advance under this
Agreement) for a Rollover Advance maturing at the next Settlement Date and in
an amount equal to that to be paid by such C Borrower to the L/C Issuer
pursuant to Clause 12.1(a) (C Borrower’s Indemnity to
L/C Issuers) and save as otherwise provided herein, each Bank will
participate through its Facility Office in each such Rollover Advance made
pursuant to this Clause 12.6 (Advances to meet Demands
in respect of Letters of Credit) in the proportion borne by its
Available Commitment to the Available Facility in relation to the C Facility
immediately prior to the making of that Rollover Advance and the Facility Agent
shall pay the proceeds of each Rollover Advance to the relevant L/C Issuer.


 


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13.          CANCELLATION AND
PREPAYMENT


 


13.1         Voluntary Cancellation


 


(a)           The Parent may, by giving to the Facility
Agent prior notice on a Reporting Date to that effect, cancel the whole or any
part (being in a minimum amount of €5,000,000 (or the Designated Currency
Equivalent thereof) and an integral multiple of €1,000,000 (or the Designated
Currency Equivalent thereof)) on the Settlement Date relating to such Reporting
Date) of any Available Facility.  Any such
cancellation shall reduce permanently the Commitment of each Bank in relation
to such Facility or Tranche (as the case may be) rateably save that prior to
the date that is 12 months after the Closing Date the maximum aggregate amount
of the Available Facility in relation to:


 


(i)            the A1 Facility that may be so cancelled
shall be limited to an aggregate Euro Amount of €200,000,000; and


 


(ii)           the A2 Facility that may be so cancelled
shall be limited to an aggregate Euro Amount of €30,000,000,


 


and provided always that
no amount of the A2 Facility may be cancelled until the A1 Facility has
been fully repaid and all the A1 Commitments of the relevant Banks reduced to
zero.


 


(b)           Notwithstanding paragraph (a) above and in
respect of Italian Borrowers only, no amount of the A1 Euro Tranche and/or of
the A2 Euro Tranche may be cancelled until the Italian Non-Guaranteed Tranches
have been fully repaid.


 


13.2         Automatic Cancellation


 


(a)           If a Mandatory Cancellation Event occurs, the
Commitments shall be immediately cancelled and reduced to zero.


 


(b)           At the end of the Availability Period any
undrawn Commitment under each Facility shall be cancelled and no further amount
shall be capable of being drawn under any Facility.


 


13.3         Mandatory Reduction of the Facilities


 


The Parent shall (and
shall procure that each relevant Borrower shall) apply an amount equal to:


 


(a)           one hundred per cent. (100 per cent.) of any
Net Cash Proceeds less any Reinvested Amount in respect of any disposal, lease
or transfer of any asset of any Borrower (or in the case of a Borrower that is
a Financeco, its Related Opco) which constitutes a Permitted Disposal of the
nature described in paragraph (e) of the definition of “Permitted Disposals” (excluding, for the
avoidance of doubt, any Net Cash Proceeds from the sale of the shares or other
stock of an Excluded Canadian Company or of the assets of any Excluded Canadian
Company);


 


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(b)           one hundred per cent. (100 per cent.) of the
Net Cash Proceeds (provided that such Net Cash Proceeds are in any financial
year in aggregate in excess of €10,000,000 received as a result of making a
claim under an insurance policy for damage to or destruction of any property or
asset of any Borrower (or in the case of a Borrower that is a Financeco, its Related
Opco) or in respect of any condemnation or casualty event (other than in
relation to any third party liability), save (i) if such Net Cash Proceeds
relate to a claim in respect of assets that are part of the relevant Borrower’s
A1 Borrowing Base, A2 Borrowing Base or C Borrowing Base (as the case may
be), and (ii) to the extent of any amount that has been or will be applied to
repair or to purchase or lease a replacement for such asset or property or
otherwise to remedy the cause of such claim, or which is otherwise reinvested
in the business of the relevant Borrower or its Related Opco (if applicable),
within 12 months (or, if longer, the period required by the Parent or the
relevant Borrower or its Related Opco (if applicable) to so apply such proceeds
provided that such longer period has been approved by the Facility Agent
(acting reasonably)) of receipt of such proceeds; and


 


(c)           one hundred per cent. (100 per cent.) of the
Net Cash Proceeds of any Take-Out Financing,


 


immediately upon receipt
by the relevant Borrower or its Related Opco (if applicable) of the proceeds of
any Take-Out Financing and as soon as reasonably practicable and in any case
within one month of receipt by the relevant Borrower or its Related Opco (if
applicable) in the case of all other amounts to which this Clause 13.3
applies, in repayment of the Facilities (and, in relation to any mandatory
prepayment as a result of the operation of paragraph (c) above, in the
reduction and pro tanto cancellation of the Facilities) in each case in
accordance with Clause 13.7 (Application of Amounts
Prepaid) and Clause 13.8 (Prepayment Accounts).


 


13.4         Change of Control, Sale and Change of
Ownership


 


(a)           If a Change of Control or Sale occurs:


 


(i)            all of the Banks’ Commitments will
immediately be cancelled and reduced to zero; and


 


(ii)           each Borrower will immediately prepay all
Advances drawn by it and all sums advanced to it hereunder in accordance with
Clause 13.7 (Application of Amounts Prepaid).


 


(b)           If any Obligor (other than an Orphan Financeco,
an Orphan SPV, a partially financed Financeco or a partially owned SPV) ceases
to be a wholly-owned direct or indirect subsidiary of the Parent (save for de
minimis nominal shareholdings by the Target) or any Obligor that is an Orphan
Financeco or an Orphan SPV ceases to be an Orphan Financeco or an Orphan SPV,
such Obligor (together with its Related Opco, related Financeco and related
SPV) shall immediately prepay all Advances drawn by it and all sums advanced to
it hereunder and in the reduction and pro tanto cancellation of the Facilities,
in each case in accordance with Clause 13.7 (Application
of Amounts Prepaid).


 


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13.5         Mandatory Prepayment on breach of Borrowing
Base


 


If in relation to a
particular Borrower and a particular Facility on any Calculation Date, the A1
Outstandings, the A2 Outstandings or the C Outstandings of such Borrower
exceeds such Borrower’s A1 Borrowing Base, A2 Borrowing Base or
C Borrowing Base (as the case may be), the Parent shall procure that no
later than the immediately succeeding Settlement Date, (a) an amount equal to
the amount of such excess is applied by the relevant Borrower in prepayment of
the relevant Outstandings in the relevant Designated Currency and (b) in the
case of the C Facility and any outstanding Letters of Credit, Cash Collateral
is provided in an amount equal to the amount of the relevant L/C Issuer’s
maximum actual and contingent liabilities under such Letter of Credit .


 


13.6         Limitations on Obligations


 


(a)           The mandatory prepayments pursuant to
paragraphs (a), (b) and (c) of Clause 13.3 (Mandatory
Reduction of the Facilities), Clause 13.5 (Mandatory
Prepayment on breach of Borrowing Base) and paragraph (e) of this
Clause 13.6 shall be limited to the sum of:


 


(i)            cash and Cash Equivalents held by the
relevant entity (which, in the case of paragraphs (a), (b) and (c) of Clause
13.3 (Mandatory Reduction of the Facilities)
shall be the entity that received the relevant Net Cash Proceeds) (the “Relevant Obligor”);


 


(ii)           distributable profits net of taxes for the
current financial year of the subsidiaries of such Relevant Obligor which are
distributable (taking into account the Relevant Obligor’s shareholding in such
subsidiaries and provided, in relation to any Relevant Obligor, that in the
circumstances where the Relevant Obligor does not have, directly or indirectly,
the power or ability to decide to pay any dividend or make any distribution of
profit of such subsidiaries without the prior approval of the other
shareholders, members or partners, as the case may be, in such subsidiaries,
such Relevant Obligor has used all reasonable endeavours to procure such prior
approval);


 


(iii)          distributable reserves in respect of a
subsidiary of a Relevant Obligor domiciled in France (en franchis
de prélévement exceptionnel sur les distributions de bénéfices
(article 95 of the Loi de Finances
for 2004)) or, in respect of a subsidiary domiciled other than in France, to
the extent that distributable reserves of such subsidiary domiciled other than
in France can be distributed without any material tax cost for non-French
subsidiaries of the Relevant Obligor which are distributable (taking into
account the Relevant Obligor’s shareholding in such subsidiaries and provided, in
relation to any Relevant Obligor, that in the circumstances where the Relevant
Obligor does not have, directly or indirectly, the power or ability to decide
to pay any dividend or make any distribution of reserves of such subsidiaries
without the prior approval of the other shareholders, members or partners, as
the case may be, in such subsidiaries, such Relevant Obligor has used all
reasonable endeavours to procure such prior approval);


 


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(iv)          any intercompany loan which can be lawfully
granted by any member of the Group or other Obligor to the Relevant Obligor(s)
provided that such member of the Group or other Obligor holds cash and/or Cash
Equivalents in order to make such intercompany loans; and


 


(v)           any other debt owed by any member of the
Group or other Obligor to the Relevant Obligor(s) (either due and payable or,
if not, provided that such member of the Group or other Obligor holds cash
and/or Cash Equivalents sufficient to repay such debt), including, if any, any
tax payment due and payable by any member of the Group or other Obligor to the
Relevant Obligor(s) in connection with the tax consolidation of the Group (net
of provisions for taxes),


 


in each case to be
determined upon the date upon which the relevant prepayment obligation arose
(or, if relevant, the date upon which the proceeds are received by the Relevant
Obligor) and in each case net of taxes imposed in connection with such
prepayment.


 


(b)           For the avoidance of doubt, the Banks’ right
to a prepayment pursuant to paragraphs (a), (b) and (c) of Clause 13.3 (Mandatory Reduction of the Facilities) in relation to Net
Cash Proceeds received by subsidiaries not fully owned by the Relevant Obligor,
shall be limited to the percentage of the share capital of such subsidiaries or
percentage of the relevant interest, as the case may be, held in any
partnership or other entity directly or indirectly held by the Relevant
Obligor.


 


(c)           Further, such prepayments shall be limited to
the extent that such Net Cash Proceeds cannot be obtained from the Relevant
Obligor without such Relevant Obligor or any of its subsidiaries (whether
direct or indirect) being in breach of any law (including any law relating to
the timing of distributions), regulation or binding ruling from a competent
authority or without the directors of such Relevant Obligor incurring personal
liability or breaching their fiduciary duties to such Relevant Obligor or
without the Relevant Obligor being placed into a position where it has insufficient
funds available to it to be able to continue to trade for the purposes of any
relevant insolvency law (taking into account funds available to such Relevant
Obligor from any other member of the Group or other Obligor); provided that in each such case the Parent shall deliver to
the Banks a certificate in form and substance reasonably satisfactory to the
Facility Agent setting forth the circumstances of such breach of law,
regulation, binding ruling or fiduciary duty or such risk of personal liability
or insolvency circumstance.


 


(d)           Where any such prohibition or risk of
personal liability or breach of fiduciary duty exists, the Relevant Obligor
shall procure that each of its subsidiaries shall use all reasonable endeavours
lawfully to overcome the prohibition or risk.


 


(e)           To the extent that any Relevant Obligor’s
obligation to make a mandatory prepayment under Clause 13.3 (Mandatory Reduction of the Facilities) is limited by the
provisions of this Clause 13.6 (Limitations on Obligations),
the balance of such Relevant Obligor’s pro rata portion of such mandatory


 


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prepayment shall be paid by other Obligors to the extent permitted
hereunder to be applied in accordance with Clause 13.7 (Application of Amounts Prepaid) and to the extent permitted
by applicable law and this Clause 13.6. 
Any prepayment obligation by any Relevant Obligor which is limited by
the provisions of this Clause 13.6 (Limitations on Obligations),
and which cannot be allocated to prepayment by other Obligors as previously
provided, shall be on-going and shall be reinstated at the time and to the
extent that the events or circumstances giving rise to such limitation shall
cease to exist.


 


13.7         Application of Amounts Prepaid


 


(a)           Any amount to be applied in reduction of the
Facilities pursuant to Clause 13.3 (Mandatory Reduction of the
Facilities) shall be applied in repayment of the Facility (or, in
the case of any A Facility, the relevant Tranche) in relation to which the
relevant Borrower (or the relevant Related Opco, as the case may be) is a
Borrower and if such Borrower has borrowed under more than one Facility or
Tranche (as the case may be), pro rata against each such Facility or Tranche
(as the case may be) provided that no such amount shall be applied in the
reduction and cancellation of the A2 Facility unless all of that Borrower’s A1
Outstandings have been fully repaid.


 


(b)           Upon any prepayment of any Facility (or, in
the case of any A Facility, any Tranche) pursuant to paragraph (a) above as a
result of a receipt of Net Cash Proceeds of any Take-Out Financing or pursuant
to Clause 13.4(b) (Change of Control, Sale
and Change of Ownership), (i) the aggregate Commitments of the Banks
under such Facility or Tranche (as the case may be) shall be cancelled in an
aggregate amount equal to the amount in the relevant Designated Currency of
such prepayment, (ii) the Commitments of each Bank under such Facility or
Tranche (as the case may be) shall be cancelled in an amount in the relevant Base
Currency equal to its Proportion of such prepayment and (iii) to the extent
that any Take-Out Financing (or related series of Take-Out Financings) shall
relate to more than one Borrower, the Facility Agent shall apply the
aforementioned prepayments against such Borrowers’ (and their respective
Related Opco’s) Outstandings in such proportion and in such manner (as among
such Borrowers (and their respective Related Opco’s) and as between each such
Borrower’s (and its respective Related Opco’s) A1 Outstandings, A2
Outstandings and, to the extent applicable, C Outstandings) as the
Facility Agent shall determine (acting reasonably) taking into account the
limitations referred to in Clause 13.6 (Limitations on Obligations).


 


13.8         Prepayment Accounts


 


(a)           If the provisions of Clause 13.3 (Mandatory Reduction of the Facilities) would require a
Borrower to prepay any amount of an Advance otherwise than on the last day of
its Term, such Borrower may elect (by written notice to the Facility Agent) to
credit the amount to be repaid to a Prepayment Account on the date on which the
prepayment obligation would, but for this Clause 13.8 (Prepayment Accounts), arise.


 


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(b)           If such Borrower elects to make any payments
into a Prepayment Account then such amounts shall, as appropriate and to the
extent required by Clause 13.3 (Mandatory Reduction of the
Facilities) be applied in prepayment of the applicable Outstandings,
upon maturity of the next maturing Advance(s).


 


(c)           Each Borrower hereby authorises the Facility
Agent to withdraw monies from the Prepayment Account and apply such monies
against prepayments and other amounts which are due under this Clause 12
or, upon the occurrence of an Event of Default that is continuing and has been
notified to the Facility Agent by the Parent or a Borrower, against any amount
due and payable under the Finance Documents.


 


13.9         Cancellation of Letters of Credit


 


Each C Borrower may give
the Facility Agent not less than one Business Day’s prior notice of its
intention to procure that any L/C Issuer’s liability under any Letter of Credit
is reduced to zero (whereupon it shall do so) provided such C Borrower has
provided evidence in form and substance reasonably satisfactory to the L/C
Issuer that the beneficiary under such Letter of Credit has consented to the
cancellation of such Letter of Credit.


 


13.10       Notice of Cancellation or Prepayment


 


Any notice of
cancellation and/or prepayment given by a Borrower pursuant to this
Clause 13 shall be irrevocable, shall specify the date upon which such
cancellation or prepayment is to be made and the amount of such cancellation or
prepayment.


 


13.11       Notice of Removal of a Bank or L/C Issuer


 


If:


 


(a)           any sum payable to any Bank or L/C Issuer by
an Obligor is required to be increased pursuant to Clause 14.1 (Tax Gross-up); or


 


(b)           any Bank or L/C Issuer claims indemnification
from a Borrower under Clause 14.2 (Tax Indemnity)
or Clause 16.1 (Increased Costs),


 


the Parent may, whilst
such circumstance continues, give the Facility Agent at least ten Business Days
notice (which notice shall be irrevocable) of its intention (a) if such
circumstance relates to a Bank to cancel, repay and/or provide Cash Collateral
in respect of the Commitment of such Bank or (b) if such circumstance relates
to an L/C Issuer, to procure the cancellation of or provide Cash
Collateral in respect of such L/C Issuer’s outstanding Letters of Credit.


 


13.12       Removal of a Bank or L/C Issuer


 


On the day the notice
referred to in Clause 13.11 (Notice of Removal of a
Bank or L/C Issuer) expires:


 


(a)           (if such circumstance relates to a Bank) the
relevant C Borrower shall repay such Bank’s portion of each relevant Advance
and the relevant C Borrower


 


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shall procure either that such Bank’s L/C Proportion of each relevant
Letter of Credit be reduced to zero (by reduction of the amount of such Letter
of Credit in an amount equal to such Bank’s L/C Proportion) or that Cash
Collateral be provided in an amount equal to such Bank’s L/C Proportion of such
Letter of Credit; and


 


(b)           (if such circumstance relates to an L/C
Issuer) the relevant C Borrower shall procure that the relevant L/C Issuer’s
liability under any Letter of Credit issued by it shall be either reduced to
zero or otherwise secured by the relevant C Borrower providing Cash Collateral
in an amount equal to the amount of such L/C Issuer’s maximum actual and
contingent liabilities under such Letter of Credit.


 


13.13       No Further Availability


 


A Bank for whose account
a repayment is to be made under Clause 13.12 (Removal of a
Bank or L/C Issuer) shall not be obliged to participate in the
making of Advances or any Letter of Credit on or after the date upon which the
Facility Agent receives the relevant C Borrower’s notice of its intention to
procure the repayment of such Bank’s share of the Outstandings, and such Bank’s
Commitment shall be reduced to zero.


 


13.14       No Other Repayments or Cancellation


 


The Borrowers shall not
repay or cancel all or any part of the Outstandings except at the times and in
the manner expressly provided for in this Agreement.


 


13.15       Replacement of L/C Issuer


 


The Parent may, on giving
not less than ten (10) Business Days notice to the Facility Agent, request the
appointment of another Bank to act as L/C Issuer on the terms and conditions
set out herein.


 


13.16       Prepayment of Advances by Australian Borrower


 


The provisions of
paragraph (a) of Clause 11 (Repayment of Advances)
apply with all changes necessary to effect, and resulting from, prepayments
under the relevant Facility by an Australian Borrower under this
Clause 12.


 


14.          TAXES


 


14.1         Tax Gross-up


 


(a)           Save to the extent required under any
applicable law, all payments to be made by an Obligor to any Finance Party
hereunder or under the Finance Documents shall be made free and clear of and
without deduction or withholding for or on account of tax.  Except as provided by Clause 14.6 (US Filings), if any Obligor is required to deduct or
withhold any Relevant Tax, or an amount for or on account of any Relevant Tax
from any payment made hereunder or under the Finance Documents to any Finance
Party the sum payable by such Obligor (in respect of which such deduction or
withholding is required to be made) shall be increased to the extent necessary
to ensure that such Finance Party receives a sum net of any deduction or
withholding (including


 


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deductions or withholdings applicable to any additional amounts paid
under this Clause 14.1) equal to the sum which it would have received had
no such deduction or withholding been made or required to be made provided that
this Clause 14.1 (Tax Gross-up)
shall not apply to the extent (i) that such deduction or withholding would
not have arisen if the relevant Finance Party had complied with its obligations
under, or (ii) as otherwise set out in, in each case, Clause 14.3 (Banks’ Tax Status) or Clause 14.5 (Double
Taxation Relief) as the case may be.


 


(b)           This Clause 14.1 shall not apply to any
amounts that the Australian Borrower or any Australian Obligor is obliged to
deduct as a result or by reason of a Bank’s or Finance Party’s failure to
comply with its obligations in Subdivision 12-E of Schedule 1 to the
Australian Taxation Administration Act of 1953.


 


14.2         Tax Indemnity


 


Without prejudice to
Clause 14.1
(Tax Gross-ups) and except as provided by
Clause 14.6
(US Filings), if, by reason of any change
after the date hereof in law or in its interpretation or administration
(including, without limitation, the introduction of legislation, any change in
judicial interpretation, any change in an applicable Double Taxation Treaty or
any change in the published practice of a relevant tax authority), any Finance
Party is required to make any payment of or on account of a Relevant Tax on or
in relation to any sum received or receivable hereunder or under the Finance
Documents or if any liability in respect of any such payment is asserted,
imposed, levied or assessed against any Finance Party, the Parent shall, upon
demand of the Facility Agent, promptly indemnify or cause to be indemnified the
Finance Party which suffers a loss or liability as a result against such
payment or liability, together with any interest, penalties, costs and expenses
payable or incurred in connection therewith provided that:


 


(a)           this Clause 14.2 (Tax
Indemnity) shall not apply in respect of any Relevant Tax, interest,
penalties, costs or expenses of a Finance Party which would not have arisen or
been incurred but for the reasonably avoidable delay or the default of such
Finance Party;


 


(b)           this Clause 14.2 (Tax
Indemnity) shall not apply to the extent that such Relevant Tax,
interest, penalties, costs or expenses:


 


(i)            would not have arisen if the relevant Finance
Party was and continued to be a Qualifying Bank and had complied with its
obligations under Clause 14.3 (Banks’ Tax Status)
save, in each case, where such Relevant Tax, interest, penalties, costs or
expenses arise as a result of any change after the date hereof in law or in its
interpretation or administration (including, without limitation, the
introduction of legislation, any change in judicial interpretation, any change
in an applicable Double Taxation Treaty or any change in the published practice
of a relevant tax authority);


 


(ii)           would not have arisen if the relevant Finance
Party had complied with its obligations under Clause 14.5 (Double Taxation Relief); or


 


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(iii)          is compensated for by an increased payment
under Clause 14.1 (Tax Gross-up),
or it would have been had the provisions of Clause 14.3 (Banks’ Tax Status) not applied.


 


14.3         Banks’ Tax Status


 


(a)           Each Bank and each Fee Recipient certifies to
the Facility Agent and the Parent (on the date hereof or, in the case of a Bank
or Fee Recipient which becomes a party hereto pursuant to a transfer or
assignment, on the date on which the relevant transfer or assignment becomes
effective) that it is a Qualifying Bank and each Bank and each Fee Recipient
shall promptly notify the Facility Agent if there is any change in its position
from that set out above.  Upon receipt of
any such notification from a Bank or Fee Recipient the Facility Agent shall
promptly notify the Parent thereof.


 


(b)           Subject to Clause 14.3(e) (Banks’ Tax Status), if any Bank or Fee Recipient is not or
ceases to be a Qualifying Bank or does not comply with or perform the
formalities required to be a Qualifying Bank (including without limitation
completing and submitting any form or other document required for the purpose
of ensuring the application of a Double Taxation Treaty or applicable tax laws
or regulations) (except, in each case, by reason of any change after the date
the Bank or Fee Recipient becomes a party to this Agreement in law or in its
interpretation or administration including, without limitation, the
introduction of legislation, any change in judicial interpretation, any change
in an applicable double tax treaty or any change in the published practice of a
relevant tax authority) the Obligor shall not be liable pursuant to this
Clause 14 to pay with respect to the Bank or Fee Recipient any amount
greater than the amount which the Obligor would have been liable to pay
pursuant to this Clause 14 with respect to that Bank or Fee Recipient if
that Bank or Fee Recipient had been, or had not ceased to be on that date, a
Qualifying Bank and had complied with or had performed the formalities required
to be a Qualifying Bank (including without limitation completing and submitting
any form or other document required for the purpose of ensuring the application
of a Double Taxation Treaty or applicable tax laws or regulations).


 


(c)           If at the date a Guarantor makes a payment
hereunder or under the Finance Documents on behalf of a Borrower any deduction
or withholding for or on account of tax imposed in respect of such payment
would have been excluded from the gross-up at Clause 14.1 (Tax Gross-up) or the indemnity at Clause 14.2 (Tax Indemnity) under this Agreement if such payment were
made by such Borrower, then, to that extent, the applicable gross-up under
Clause 14.1 (Tax Gross-up) or the indemnity at
Clause 14.2 (Tax Indemnity) in respect of such
payment by such Guarantor shall exclude so much of the amount (or, if
applicable, the currency equivalent amount) of deduction or withholding for or
on account of tax that would have been excluded had the payment been made by
such Borrower.


 


(d)           A Swiss Obligor shall not be required to make
any increased payments under Clause 14.1 (Tax Gross-up)
for a tax deduction, and the Parent shall not be obliged to make any payments
or cause any payments to be made under Clause 14.2 (Tax
Indemnity), in each case, which is due to the fact that there


 


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are more than ten Banks which are not Qualifying Banks in relation to
such Swiss Obligor under this Agreement. For the avoidance of doubt, it is the
Banks’ sole responsibility to make sure that there are not more than ten Banks
(including any sub-participants) at any time which are not Qualifying Banks in
relation to any Swiss Obligor under this Agreement.


 


(e)           No Swiss Obligor shall be indebted at any
time to more than 20 lenders (including the Banks under this Agreement), which
are not Qualifying Banks.


 


14.4         Claims by Banks


 


A Bank intending to make
a claim pursuant to Clause 14.2 (Tax Indemnity)
shall notify the Facility Agent of the event giving rise to the claim,
whereupon the Facility Agent shall notify the Parent thereof.


 


14.5         Double Taxation Relief


 


If, and to the extent
that, the effect of Clause 14.1 (Tax Gross-up)
or Clause 14.2 (Tax Indemnity)
can be mitigated by virtue of the provisions of any applicable Double Taxation
Treaty or any applicable tax law (whether by a claim to repayment of any taxes
referred to in Clause 14.1 (Tax Gross-up)
or Clause 14.2 (Tax Indemnity)
or otherwise) the relevant Finance Party agrees, provided that, and for so long
as, no Event of Default has occurred and is continuing, to co-operate with the
Parent with a view to completing and submitting any forms required for the
purpose of ensuring the application of such Double Taxation Treaty or
applicable tax law so far as relevant, provided that no Finance Party shall be
required pursuant to this Clause 14.5 to complete or co-operate in
completing any form unless the Parent or the relevant Borrower reasonably
requests it to do so.


 


14.6         US Filings


 


(a)           Each Finance Party that is a United States
person (as such term is defined in Section 7701(a)(30) of the Internal Revenue
Code) shall, on or prior to the date of the execution and delivery of this
Agreement in the case of an original Finance Party and on the date of the
relevant Transfer Certificate pursuant to which it becomes a Finance Party in
the case of any other Finance Party, and from time to time thereafter as
reasonably requested in writing by the Facility Agent (but only so long as such
Finance Party remains lawfully able to do so), provide the Facility Agent with
two properly completed and duly executed Internal Revenue Service Forms W-9 or
any successor or other form prescribed by the Internal Revenue Service,
certifying that such Finance Party is not subject to United States backup
withholding tax on payments made pursuant to this Agreement or any other
Finance Document by a US Obligor.


 


(b)           Each Finance Party that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Internal
Revenue Code) shall, on or prior to the date of the execution and delivery of
this Agreement in the case of an original Finance Party and on the date of the
relevant Transfer Certificate pursuant to which it becomes a Finance Party in
the case of any other Finance Party, and from time to time thereafter as
reasonably requested in writing by the Facility Agent (but only so long as such
Finance Party remains lawfully able to do so):


 


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(i)            provide the Facility Agent with two properly
completed and duly executed Internal Revenue Service Forms W-8BEN or W-8ECI, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Finance Party is exempt from or entitled to a
reduced rate of United States federal withholding tax on payments made pursuant
to this Agreement or any other Finance Document by a US Obligor under an
applicable double taxation agreement, together with such other form or forms,
or any documentation or certification as may be necessary from time to time
after the date hereof to establish the exemption or reduced rate; or


 


(ii)           in the case of a Finance Party claiming the
benefits of the exemption from United States federal withholding tax for
portfolio interest under Section 881(c) of the Internal Revenue Code, provide
(x) a certificate to the Facility Agent to the effect that and pursuant to
which the Finance Party represents that such Finance Party is not (i) a bank
(as such term is used in Section 881(c)(3)(A) of the Internal Revenue Code),
(ii) a 10-percent shareholder of the relevant Obligor (within the meaning of
Section 881(c)(3)(B) of the Internal Revenue Code), or (iii) a controlled
foreign corporation related to the relevant Obligor (as such term is described
in Section 881(c)(3)(C) of the Internal Revenue Code), and (y) two properly
completed and duly executed Internal Revenue Service Forms W-8BEN or any
successor or other forms prescribed by the Internal Revenue Service certifying
the non-United States person status of such Finance Party and such Finance
Party’s legal entitlement at the date of such certification to an exemption
from United States federal withholding tax with respect to payments made
pursuant to this Agreement or under any other Finance Document by a US Obligor,
together with such other form or forms, documentation or certifications as may
be necessary from time to time to establish this exemption; or


 


(iii)          in the case of any Finance Party that is a
foreign intermediary or foreign flow-through entity for United States federal
income tax purposes, provide the Facility Agent with respect to such Finance
Party, two properly completed and duly executed Internal Revenue Service Forms
W-8IMY or any successor or other forms prescribed by the Internal Revenue
Service and the statement, certificate or other documentary evidence required
to be provided by such Finance Party and, in the case of a nonqualified
intermediary that is a Finance Party or a non-withholding Finance Party that is
a foreign flow-through entity, with respect to each beneficiary or member of
such Finance Party, two forms and/or certificates described in paragraph (i) or
(ii) of this Clause 14.6(a), as applicable, together with such other form
or forms, documentation, statements, certificates or certifications as may be
necessary from time to time to establish the exemption from or, in the case of
paragraph (i) only, the reduced rate of, withholding.


 


(c)           If a Finance Party fails to provide the
Facility Agent with the appropriate Internal Revenue Service form or, if
applicable, the certificate or certification,


 


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each as described above and each being properly completed and duly
executed (other than if such failure is due to a change in law, or in the
interpretation or application thereof, occurring after the date on which a form
or certificate originally was required to be provided or if such form,
certificate or other document otherwise is not required under
Clauses 14.6(a) or (b))(US Filings),
United States federal withholding tax and United States backup withholding tax,
in each case imposed on any amount paid by the relevant Obligor under this
Agreement or any other Finance Document, shall be considered excluded from the
gross-up at Clause 14.1 (Tax Gross-up)
or the indemnity at Clause 14.2 (Tax Indemnity)
under this Agreement by reason of such failure unless and until the Finance
Party provides the appropriate Internal Revenue Service form or certificate
that is properly completed and duly executed and establishing a complete
exemption from United States backup withholding tax or a complete exemption
from, or a reduction of, United States federal withholding tax on any amount
paid by the US Obligor under this Agreement or the other Finance Document,
whereupon United States federal withholding tax at such reduced rate only (to
the extent a complete exemption is not available to such Finance Party) shall
be considered excluded from such gross-up or indemnity for periods governed by
such form and certificate.  If any
Internal Revenue Service form provided by a Finance Party pursuant to this Clause 14.6
(US Filings) at the time such Finance
Party first becomes a Finance Party hereunder or when it first provides such
form indicates a United States federal withholding tax rate in excess of zero
in respect of any amount paid by the US Obligor under this Agreement or the
other Finance Documents, United States federal withholding tax at such rate
shall be considered excluded from the gross-up at Clause 14.1 (Tax Gross-up) or the indemnity at Clause 14.2 (Tax Indemnity) under this Agreement or the other Finance
Documents unless and until the Finance Party provides the appropriate form
certifying that a lesser rate applies, whereupon federal withholding tax at the
lesser rate only shall be considered excluded from the gross-up or indemnity
for periods governed by such form; provided, however, that if at the date a
Finance Party transferee under a Transfer Certificate becomes a party to this
Agreement, the Finance Party transferor was entitled to payments under Clauses
14.1 (Tax Gross-up) or 14.2 (Tax Indemnity) in respect of United States federal
withholding tax in connection with any amount paid at such date, then, to that
extent, the applicable gross-up under Clause 14.1 (Tax Gross-up)
or indemnity under Clause 14.2 (Tax Indemnity)
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise included therein) an amount of United States
federal withholding tax equal to that applicable with respect to the Finance
Party transferor on such date.  If any
form, certificate or document referred to in this Clause 14.6 (US Filings) requires the disclosure of information, other
than information necessary to compute the Relevant Tax payable and such
information as is required on the date hereof by the Internal Revenue Service
Forms W-9, W-8BEN, W-8ECI or W-8IMY (as applicable) or the related certificate
described above, or other information relating to a Finance Party’s
nationality, identity or residence, that a Finance Party reasonably considers
to be confidential, the Finance Party shall not be obligated to include in such
form, certificate or document such confidential information.


 


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14.7         VAT


 


(a)           Except where otherwise expressly provided,
and without duplication, all amounts set out in, or expressed to be payable
under, a Finance Document by any person to a Finance Party which (in whole or
in part) constitute the consideration for VAT purposes shall be deemed to be
exclusive of any VAT which is chargeable on such supply, and accordingly, if
VAT is chargeable on any supply made by any Finance Party to any person under a
Finance Document, that person shall pay to the Finance Party (in addition to
and at the same time as paying the consideration) an amount equal to the amount
of the VAT (and such Finance Party shall promptly provide an appropriate VAT
invoice to such person).


 


(b)           If VAT is chargeable on any supply made by
any Finance Party (the “Supplier”)
to any other Finance Party (the “Recipient”)
under a Finance Document, and any person (the “Relevant Party”) is required by the terms of any Finance
Document to pay an amount equal to the consideration for such supply to the
Supplier (rather than being required to reimburse the Recipient in respect of
that consideration), such person shall also pay to the Supplier (in addition to
and at the same time as paying such amount) an amount equal to the amount of
such VAT.  The Recipient shall promptly
pay to the Relevant Party an amount equal to any credit or repayment from the
relevant Tax authority which it reasonably determines relates to the VAT
chargeable on that supply.


 


(c)           If any party is required under any Finance
Document to reimburse costs and expenses incurred by any other party, such
reimbursement shall, to the extent that it relates to any amount in respect of
VAT incurred by such other party, be made only in respect of the portion of
such amount that is not recoverable by way of set-off against or repayment by
the relevant Governmental Authority to which such VAT has been paid.


 


14.8         Tax Forms


 


For the avoidance of
doubt, the Facility Agent shall following a request by the Parent promptly
deliver to the Parent all forms, documentation, statements, certificates or
certifications received by it from any Finance Party pursuant to any Finance
Document in respect of any Relevant Tax.


 


15.          TAX RECEIPTS


 


15.1         Notification of Requirement to Deduct Tax


 


If, at any time, an
Obligor is required by law to make any deduction or withholding from any sum
payable by it hereunder or under the Finance Documents (or if thereafter there
is any change in the rates at which or the manner in which such deductions or
withholdings are calculated), such Obligor shall promptly notify the Facility
Agent.


 


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15.2         Evidence of Payment of Tax


 


(a)           If an Obligor makes any payment hereunder or
under the Finance Documents in respect of which it is required to make any
deduction or withholding, it shall pay the full amount required to be deducted
or withheld to the relevant taxation or other authority within the time allowed
for such payment under applicable law and shall, as promptly as possible
thereafter, deliver to the Facility Agent on behalf of the Bank or Banks to
which such payment was made a certified copy of the original official receipt
received by such Obligor (of if such receipt is not available such other
evidence of payment as is reasonably satisfactory to the Facility Agent)
evidencing the payment to such authority of the amounts so required to be
deducted or withheld in respect of that payment or that Bank’s share of such
payment.


 


(b)           If an Obligor fails to pay any Relevant Taxes
or any amount for or on account of any Relevant Taxes when due to the
appropriate taxing authority or fails to remit to the Facility Agent the
required receipts or other required documentary evidence, such Obligor shall
indemnify the Facility Agent and the Finance Parties for any incremental taxes,
interest or penalties that may become payable by the Facility Agent or any
Finance Party as a result of any such failure.


 


15.3         Tax Credit Payment


 


(a)           If an additional payment is made under
Clause 14 (Taxes) or Clause 15.2 (Evidence of Payment of Tax) by an Obligor for the benefit of
any Finance Party and such Finance Party, in its sole discretion exercised in
good faith, determines that it has obtained, utilised and retained a credit
against, a relief or remission for, or repayment of, any tax, then, if and to
the extent that such Finance Party, in its sole opinion acting in good faith,
determines that:


 


(i)            such credit, relief, remission or repayment
is in respect of or calculated with reference to the additional payment made
pursuant to Clause 14 (Taxes) or
Clause 15.2 (Evidence of Payment of Tax); and


 


(ii)           (except in relation to repayment of any tax
in respect of which additional amounts have been paid pursuant to
Clause 14.1 (Tax Gross-up)) its tax affairs
for its tax year in respect of which such credit, relief, remission or
repayment was obtained have been finally settled,


 


such Finance Party shall,
to the extent that it can do so without prejudice to the retention of the
amount of such credit, relief, remission or repayment, promptly pay to such
Obligor such amount as such Finance Party shall, in its sole opinion acting in
good faith, determine to be the amount which will leave such Finance Party
(after such payment) in no worse after-tax position than it would have been in
had the additional payment in question not been required to be made by such
Obligor.  For the purposes of this
Clause 15.3, each Finance Party agrees to use reasonable endeavours to
obtain any repayment, credit, relief or remission to which it is or may be
entitled.


 


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(b)           An Obligor may, upon written request, require
the Finance Party promptly to produce reasonable evidence (having regard to
Clause 15.4 (Tax and
Other Affairs) below) as to
whether or not the criteria set out in paragraphs (i) and (ii) above are
satisfied.


 


15.4         Tax and Other Affairs


 


No provision of
Clauses 14 (Taxes), 15 (Tax Receipts)
or 18 (Mitigation and other Provisions relating to Taxes
and Increased Costs) shall interfere with the right of any Finance
Party to arrange its tax or any other affairs in whatever manner it thinks fit,
oblige any Finance Party to claim any credit, relief, remission or repayment in
respect of any payment under Clause 14.1 (Tax Gross-up)
in priority to any other credit, relief, remission or repayment available to it
or oblige any Finance Party to disclose any information relating to its tax or
other affairs or any computations in respect thereof.


 


16.          INCREASED COSTS


 


16.1         Increased Costs


 


If, by reason of (a) any
change in law or in its interpretation, administration or application and/or
(b) compliance with any request or requirement relating to the maintenance of
capital or any other request from or requirement of any central bank or other
fiscal, monetary or other authority, in either case, made after the date of
this Agreement or (if later) the date on which the relevant person becomes
party hereto:


 


(a)           a Bank, L/C Issuer or any holding company of
such Bank or L/C Issuer is unable to obtain the rate of return on its capital
which it would have been able to obtain but for such Bank’s or L/C Issuer’s entering
into or assuming or maintaining a commitment or performing its obligations
under the Finance Documents or any Letter of Credit;


 


(b)           a Bank, L/C Issuer or any holding company of
such Bank or L/C Issuer incurs a cost as a result of such Bank’s or L/C
Issuer’s entering into or assuming or maintaining a commitment, issuing or
performing its obligations under the Finance Documents or any Letter of Credit;
or


 


(c)           there is any increase in the cost to a Bank,
L/C Issuer or any holding company of such Bank or the L/C Issuer of funding or
maintaining such Bank’s or L/C Issuer’s share of the Advances, any Unpaid
Sum or any Letter of Credit,


 


then the Parent shall,
from time to time on demand of the Facility Agent, promptly pay to the Facility
Agent for the account of that Bank or L/C Issuer amounts sufficient to
compensate that Bank or L/C Issuer or to enable that Bank or L/C Issuer to
compensate its holding company from and against, as the case may be, (i) such
reduction in the rate of return of capital, (ii) such cost or (iii) such
increased cost, provided that no Bank or L/C Issuer shall claim any amount from
the Parent hereunder unless such Bank or L/C Issuer deems the relevant amount
to be material.


 


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16.2         Increased Costs Claims


 


A Bank or L/C Issuer
intending to make a claim pursuant to Clause 16.1 (Increased
Costs) shall promptly notify the Parent through the Facility Agent,
and such notice shall certify that (a) one of the events described in this
Clause 16 has occurred and describe in reasonable detail the nature of
such event, (b) the amount of the reduction, cost or increased cost
resulting from such event, and (c) the amount of the compensation payment
it is demanding from the Parent together with a reasonably detailed calculation
thereof.


 


16.3         Exclusions


 


Notwithstanding the
foregoing provisions of this Clause 16, no Bank or L/C Issuer shall be
entitled to make any claim under this Clause 16 in respect of:


 


(a)           any tax (and, for the avoidance of doubt,
Clauses 14 (Taxes) and 15 (Tax Receipts) alone shall apply to tax);


 


(b)           any cost, increased cost or liability which
is directly attributable to such Bank or L/C Issuer entering into a commitment
to lend to a third party after the date of this Agreement which is, at the date
such commitment is entered into, in breach of any request or requirement of any
central bank or other fiscal, monetary or banking authority relating to that
Bank or L/C Issuer; or


 


(c)           any cost, increased cost or liability
resulting from the implementation by the applicable authorities having
jurisdiction over such Bank or L/C Issuer or its relevant Facility Office of
specific capital adequacy requirements officially announced prior to the date
of this Agreement to the extent clearly ascertainable from the announcement,
but not more stringent requirements on or after the date of this Agreement; or


 


(d)           any cost, increased cost or liability arising
solely by reason of such Bank’s or L/C Issuer’s unreasonable delay in notifying
the Facility Agent of its right to make a demand under the Clause 16.1 (Increased Costs) after it has become aware of and is able to
ascertain the amount of its claim.


 


17.          ILLEGALITY


 


If the adoption of or any
change in any requirement of law or in the interpretation or application
thereof which occurs after the date of this Agreement shall make it unlawful,
for a Bank or L/C Issuer to make, fund, issue, participate in or allow to
remain outstanding all or part of its share of the Advances or Letters of
Credit, then that Bank or L/C Issuer shall, promptly after becoming aware of
the same, deliver to the Parent through the Facility Agent a notice to that
effect (which notice shall be withdrawn upon such circumstances ceasing to
exist) and:


 


(a)           such Bank or L/C Issuer shall not thereafter
be obliged to participate in any Advance or Letter of Credit until such time as
it shall no longer be unlawful for such Bank or L/C Issuer to do so and the
amount of its Total Commitments shall be immediately be cancelled and reduced
to zero; and


 


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(b)           if the Facility Agent on behalf of such Bank
or L/C Issuer so requires, the Parent shall procure that each C Borrower shall:


 


(i)            repay, as soon as practicable and, in any
case, within five days, such Bank’s share of any outstanding Advances together
with accrued interest thereon and all other amounts owing to such Bank
hereunder; and


 


(ii)           ensure that, as soon as practicable and, in
any case, within 5 days, the liabilities of such Bank or L/C Issuer under or in
respect of each Letter of Credit are reduced to zero or otherwise secured by
providing Cash Collateral in an amount equal to such Bank’s L/C Proportion of
such Letters of Credit or such L/C Issuer’s maximum actual and contingent liabilities
under such Letter Credit,


 


provided that, in
relation to the repayment of any outstanding Advances, if it is lawful for a
Bank to allow to remain outstanding all or part of its share of the Advances
until the last day of the then current Term applicable thereto, then the Parent
shall not be obliged to procure the repayment of such Advances until the last
day of such Term


 


18.          MITIGATION AND OTHER
PROVISIONS RELATING TO TAXES AND INCREASED COSTS


 


18.1         Mitigation


 


If, in respect of any
Finance Party, circumstances exist which would or would upon the giving of
notice result in:


 


(a)           a restriction upon its ability to participate
in or have any right or obligation under this Agreement in respect of a Letter
of Credit;


 


(b)           any amount being payable to it or for its
account pursuant to Clause 14.1 (Tax Gross-up);


 


(c)           a claim for indemnification pursuant to
Clause 14.2 (Tax Indemnity) or
Clause 16.1 (Increased Costs); or


 


(d)           the reduction of its Available Commitment to
zero or any repayment to be made pursuant to Clause 17 (Illegality),


 


then, without in any way
limiting, reducing or otherwise qualifying the rights of such Finance Party or
the obligations of the Obligors under any of the Clauses referred to in the
paragraphs above, such Finance Party (if it is not the Facility Agent) shall
(a) promptly upon becoming aware of such circumstances (save to the extent
existing on the date of this Agreement) notify the Facility Agent thereof and
(b) in consultation with the Facility Agent and the Parent and to the extent
that it can do so lawfully and without prejudice to its own position, take such
steps as may reasonably be available to it and acceptable to the Parent
(including, in the case of a Bank or the Facility Agent, a transfer of its
rights and obligations under the Finance Documents to another affiliate or a
relevant Facility Office or (in the event that the relevant circumstances arise
after the date such Finance Party becomes party to this


 


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Agreement) the transfer
of its rights, benefits and obligations hereunder to another financial
institution acceptable to the Parent and willing to participate in the
Facilities) to mitigate the effects of such circumstances, provided that such
Finance Party shall be under no obligation to take any such action if, in the
opinion of such Finance Party acting in good faith, to do so might reasonably
be expected to have any adverse effect upon its business, operations or
financial condition (other than any minor costs and expenses of an
administrative nature) or be contrary to any relevant credit or other
approvals, including internal approvals, required by any relevant affiliate or
branch of such Finance Party.


 


18.2         Removal of Affected Bank


 


If, in the circumstances described
in Clause 18.1 (Mitigation), a
Bank has failed to take mitigating action in accordance with that Clause, the
Parent shall have the right, for so long as such circumstances exist, (i) to
seek one or more substitute Bank(s) reasonably satisfactory to the Parent to
take a transfer of such Bank’s participation in the Facilities in accordance
with Clause 36 (Assignments and Transfers),
or (ii) upon at least four Business Days, irrevocable notice to the Facility
Agent, to prepay such Bank’s portion of the relevant Outstandings.  In the case of a prepayment of an affected
Advance, 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 Bank and of the prepayment of an affected Advance, the
Parent shall first pay the affected Bank any additional amounts owing to such
Bank prior to such substitution or prepayment.


 


18.3         Change in Facility Office


 


If (other than pursuant
to Clause 18.1 (Mitigation)) a
Finance Party changes its Facility Office and the effect of the change, as of
the date of the change, would be to cause any Obligor to become obliged to pay
any additional amount under Clause 14 (Taxes) or 16 (Increased Costs), such Obligor shall not be obliged to pay
such additional amount.


 


19.          REPRESENTATIONS


 


Subject to the terms of
Clause 19.30 (Time of making
representations), each Obligor (or, where otherwise stated, the
specified Obligors) makes the representations and warranties set out in this
Clause 19 (Representations) in respect of
itself and, where expressly referred to, its subsidiaries at the times and in
accordance with Clauses 19.30 (Time of making
representations) and 19.31 (Repetition of Representations).  Each of the Obligors acknowledges that the
Finance Parties have entered into this Agreement in reliance on those
representations and warranties.


 


19.1         Status


 


(a)           It and each of its subsidiaries is a
corporation, company or other person duly incorporated (or, as the case may be,
organised) and, if applicable, in good standing, under the laws of its
jurisdiction of organisation.


 


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(b)           It and each of its subsidiaries has the power
to own its assets and carry on its business substantially as it is being
conducted, save where the lack of such power is not reasonably likely to have a
Material Adverse Effect.


 


(c)           1677932 Ontario Limited has no liabilities
and, other than the common shares it holds in Hertz Canada Limited, no assets.


 


19.2         Governing Law and Judgments


 


In any proceedings taken
in its jurisdiction of organisation in relation to the Finance Documents to
which it is a party, the choice of English law (or in the case of any Security
Documents governed by a different jurisdiction’s law, the law of that
jurisdiction) as the governing law of the Finance Documents, and any judgment
obtained in England (or such other relevant jurisdiction) in relation to the
Finance Documents, will be recognised and enforced subject to applicable
insolvency, bankruptcy, liquidation, administration, moratorium, reorganisation
and similar laws affecting the rights of creditors generally, general
principles of equity and any other reservations made in the Legal Opinions.


 


19.3         Binding Obligations


 


The obligations expressed
to be assumed by it in the Finance Documents to which it is a party are legal
and valid obligations binding on it and enforceable against it in accordance
with the terms thereof and each Security Document to which it is a party
constitutes valid Security ranking, subject to the reservations made in the
Legal Opinions, in accordance with terms thereof, in each case subject to
applicable insolvency, bankruptcy, liquidation, administration, moratorium, reorganisation
and similar laws affecting the rights of creditors generally, general
principles of equity and any other reservations made in the Legal Opinions.


 


19.4         Execution of the Finance Documents


 


(a)           Its execution of the Finance Documents to
which it is a party and its exercise of its rights and performance of its
obligations thereunder (taken as a whole) do not and will not:


 


(i)            conflict in any material respect with any
agreement, mortgage, bond or other instrument or treaty to which it is a party
or which is binding upon it or any of its assets in such manner or to such
extent as to have or be reasonably likely to have a Material Adverse Effect;


 


(ii)           conflict (save to the extent, if any,
described in the Legal Opinions) in any material respect with its constitutive
documents; or


 


(iii)          conflict in any material respect with any
applicable law or court judgment, in each case which would be materially
prejudicial to the interests of the Banks.


 


(b)           It has (or will, prior to execution, have)
the power to enter into the Finance Documents to which it is a party and all
corporate and other action required to authorise the execution of the Finance
Documents to which it is a party and


 


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the performance of its obligations thereunder has been (or will, prior
to execution, have been) duly taken.


 


19.5         No Material Proceedings


 


No action or litigation,
administration, regulatory or arbitration proceeding of or before any court or
agency which would be reasonably likely to be adversely determined and, if so
adversely determined, would reasonably be expected to have a Material Adverse
Effect has been started or, to the best of its knowledge and belief, threatened
against it or any of its subsidiaries.


 


19.6         Financial Statements


 


(a)           The Parent represents that, subject to the
ongoing audit in Canada which may result in the restatement thereof and subject
to usual year end adjustments, its Original Financial Statements:


 


(i)            were prepared in accordance with the Applicable
Accounting Principles save as disclosed therein;


 


(ii)           disclose all liabilities required to be
disclosed in accordance with the Applicable Accounting Principles; and


 


(iii)          save as disclosed therein and save as may be
changed as a result of the audit by the revenue authorities in Canada and as a
result of usual year end adjustments, in the case of audited accounts, give a
true and fair view of the financial position of the Group and, in the case of
unaudited accounts, fairly present the financial position of the Group.


 


(b)           In relation to the Parent, its most recent
financial statements delivered pursuant to Clause 20 (Financial
Information):


 


(i)            have been prepared in accordance with the
Applicable Accounting Principles;


 


(ii)           disclose all liabilities required to be
disclosed in accordance with the Applicable Accounting Principles; and


 


(iii)          in the case of audited accounts, give a true
and fair view of the financial position of the Group, and, in the case of
unaudited accounts, fairly represent the financial position of the Group.


 


19.7         No Material Adverse Change


 


The Parent on its own
behalf and on behalf of each Obligor represents that, since the date of its
Original Financial Statements, other than 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 and the
entry into of the Finance Documents and the B Bridge Finance Documents, there
has been no change in the Group which has had or could reasonably be expected
to have a Material Adverse Effect.


 


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19.8         Validity and Admissibility in Evidence


 


All acts, conditions and
things required to be done, fulfilled and performed (save for any such acts,
conditions or things referred to in the qualifications to the Legal Opinions
and subject to applicable bankruptcy or insolvency laws or other similar laws
affecting creditors’ rights or remedies generally and general principles of
equity) in order (a) to enable it lawfully to enter into, exercise its rights
under and perform and comply with the obligations (taken as a whole) expressed
to be assumed by such Obligor in the Finance Documents, (b) to ensure that the
obligations expressed to be assumed by such Obligor in the Finance Documents
(taken as a whole) are legal, valid, binding and enforceable and (c) to make
the Finance Documents admissible in evidence in its jurisdiction of
organisation have been done, fulfilled and performed, save in each case for any
such act, conditions or thing which the failure to do, fulfil or perform would
not reasonably be expected to have a Material Adverse Effect.


 


19.9         Claims pari passu


 


Under the laws of its
jurisdiction of incorporation in force at the date hereof or, in the case of an
Obligor acceding after the date of this Agreement, as at the date of the
Accession Memorandum pursuant to which such Obligor accedes, the claims of the Finance
Parties against it under the Finance Documents will rank at least pari passu with the claims of all its unsecured and
unsubordinated creditors save those whose claims are preferred solely by any
bankruptcy, insolvency, liquidation or other similar laws or other provisions
of general application.


 


19.10       Compliance with Laws


 


(a)           It is in compliance with all laws and
regulations to which it may be subject except where failure to do so would not
reasonably be expected to have a Material Adverse Effect.


 


(b)           Each Borrower represents that the proceeds of
any Advance made to it under this Agreement:


 


(i)            have been and will be applied in accordance
with Clause 2.2 (Purpose and Application of
each A Facility) or Clause 2.3 (Purpose and
Application of C Facility) as the case may be; and


 


(ii)           have not been and will not be applied in any
other manner or for any other purpose, and, in particular, in any other manner
or for any other purpose that did not or will not comply in all respects with,
(x) in the case of any Borrower incorporated in the United Kingdom, Sections
151 to 158 of the United Kingdom Companies Act 1985 or, (y) in the case of any
other Borrower, any equivalent legislation in the jurisdiction of incorporation
of such other Borrower save to the extent where to do so would not reasonably
be expected to have a Material Adverse Effect.


 


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19.11       No Winding-up


 


Except as permitted
pursuant to Clause 22.10 (Mergers), such
Obligor has not taken any corporate action nor has any other steps been taken
or legal proceedings been started or (to the best of its knowledge and belief)
threatened against it for its winding-up, dissolution, administration,
re-organisation, bankruptcy, moratorium of payments, division or statutory
merger (whether by voluntary arrangement, scheme of arrangement or otherwise)
or for the appointment of a receiver, administrator, administrative receiver,
conservator, custodian, trustee or similar officer of it or of any or all of
its assets or revenues.


 


19.12       No Material Defaults


 


Neither such Obligor nor
any of its subsidiaries is in breach of or in default under any agreement to
which it is a party or which is binding on it or any of its subsidiaries or any
of its assets to an extent or in a manner which would reasonably be expected to
have a Material Adverse Effect.


 


19.13       No Misleading Information


 


(a)           To the best of the Parent’s knowledge and
belief, the factual information with respect to the Group and any Obligor that
is an Orphan Financeco or Orphan SPV contained in the Information Memorandum
(taken as a whole) is in all material respects true and accurate and, to the
best of the Parent’s knowledge and belief, is not misleading in any material
respect and no factual information has been omitted that renders such
information contained in the Information Memorandum taken as a whole untrue or
misleading in any material respect in the context of the Facilities.


 


(b)           All opinions, predictions or intentions
expressed in the Information Memorandum on the part of the Parent are honestly
held or made after careful consideration and, to the best of the Parent’s
knowledge and belief, no factual information with respect to the Group or any
Obligor that is an Orphan Financeco or an Orphan SPV has been omitted that
would render such opinions, predictions or intentions misleading in any
material respect.


 


(c)           All other written information (including any
Asset Report) provided by any member of the Group (including its advisers) or
any Obligor that is an Orphan Financeco or Orphan SPV to a Finance Party in
connection with the negotiation of the Finance Documents or included therein or
delivered pursuant thereto was, to the best of that Obligor’s knowledge and
belief, true, complete and accurate in all material respects as at the date it
was provided and, to the best of that Obligor’s knowledge and belief, is not
misleading in any respect as of such date.


 


(d)           Notwithstanding the foregoing, it is
understood that (a) no representation or warranty is made concerning (i) any
forecasts, estimates, pro forma information, projections and statements as to
anticipated future performance or conditions, and (ii) the assumptions on which
they were based, contained in the Information Memorandum, except that as of the
date such forecasts, estimates, pro forma information, projections and
statements were generated,


 


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(x) such forecasts, estimates, pro forma information, projections and
statements were based on the good faith assumptions of the management of the
Parent and (y) such assumptions were believed by such management to be
reasonable and (b) such forecasts, estimates, pro forma information,
projections and statements and the assumptions on which they were based may or
may not prove to be correct.


 


19.14       Environmental Compliance


 


The Parent represents
that, to the best of its knowledge and belief, each Obligor and each of its
subsidiaries has duly performed and observed in all material respects all
Environmental Law, Environmental Permits and all other material covenants,
conditions, restrictions or agreements directly or indirectly concerned with
any contamination, pollution or waste or the release or discharge of any toxic
or hazardous substance in connection with any real property which is or was at
any time owned, leased or occupied by such Obligor or subsidiary or on which
such Obligor or subsidiary has conducted any activity except where failure to
do so would not reasonably be expected to have a Material Adverse Effect.


 


19.15       Environmental Claims


 


The Parent represents
that to the best of its knowledge and belief, no Environmental Claim has been
commenced or threatened against it or any Obligor or any of its subsidiaries
where such claim would be reasonably likely to be adversely determined against
any Obligor or any of its subsidiaries and if so adversely determined, would
reasonably be expected to have a Material Adverse Effect.


 


19.16       Encumbrances and Indebtedness


 


(a)           Save for Permitted Encumbrances, no Encumbrance
exists over all or any of the present or future revenues or assets of such
Obligor or any of its subsidiaries.


 


(b)           No Obligor nor any of its subsidiaries has
any Financial Indebtedness other than Permitted Indebtedness.


 


(c)           No Obligor nor any of its subsidiaries has
issued any guarantee or indemnity save as permitted under Clause 22.2 (Loans and Guarantees).


 


19.17       Ranking


 


The Parent represents
that the Security has or will have the ranking (subject to the reservations
made in the Legal Opinions) in priority which it is expressed to have in the
Security Documents.


 


19.18       Ownership of the Obligors


 


The Parent represents
that each of the other Obligors (other than any Obligor that is an Orphan
Financeco, an Orphan SPV or a partially owned Financeco or a partially owned
SPV) is a direct or indirect wholly-owned subsidiary of the Parent.


 


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19.19       Ownership of Parent


 


The Parent represents
that the CD&R Investors, the Merrill Lynch Investors and the Carlyle
Investors directly or indirectly through subsidiaries collectively hold or will
hold a majority of the equity share capital of the Parent.


 


19.20       No Event of Default


 


The Parent represents
that no Event of Default or Potential Event of Default has occurred which has
not been either remedied to the satisfaction of the Facility Agent (acting
reasonably) or expressly waived in writing.


 


19.21       Consents and Approvals


 


All necessary consents
and approvals to the transactions contemplated by the Finance Documents have
been or, when required, will be obtained and all consents, licences and other
approvals and authorisations reasonably necessary and material for the conduct
of business by the Group, any Orphan Financeco or Orphan SPV (as the case may
be) have been, or when required will be obtained, their terms and conditions
have been complied with in all material respects and they have not been and, so
far as it is aware, will not be revoked or otherwise terminated except where
such failure to obtain, non-compliance, revocation or termination would not
reasonably (after having taken into account any indemnity or claim against any
other person with respect to the issues in question) be expected to have a
Material Adverse Effect.


 


19.22       Insurance


 


It and each of its
subsidiaries has obtained insurances on and in relation to its business and
assets with reputable underwriters or insurance companies against such risks
and to such extent as is usual for companies carrying on a business such as
that carried on by such member of the Group, Orphan Financeco or Orphan SPV (as
the case may be).


 


19.23       Taxation


 


(a)           No claims are being asserted against it or
any of its subsidiaries with respect to taxes which are reasonably likely to be
determined adversely to it or such subsidiaries and which, if so adversely
determined or after taking into account any indemnity of claim against any
other party with respect to such claim, would reasonably be expected to have a
Material Adverse Effect.


 


(b)           It and each of its subsidiaries has duly and
punctually paid and discharged all material taxes, assessments and governmental
charges imposed upon it or its assets within the time period allowed therefor
without imposing tax penalties or creating any Encumbrance (other than
Encumbrances of the nature described in paragraph (f) of the definition of
“Permitted Encumbrances”) other
than (i) such taxes, assessments and government charges with respect to which
the failure to pay would not reasonably be expected to have a Material Adverse
Effect and (ii) such taxes, assessments and government charges that are being
contested in good faith and with respect to which adequate reserves


 


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are maintained on the books of the applicable Obligor in accordance
with the Applicable Accounting Principles.


 


19.24       Good Title to Assets


 


To the best of its
knowledge and belief, it and each of its subsidiaries has good title to, or
valid leases of, or other appropriate licence, authorisation or consent to use,
those material assets necessary to conduct its business.


 


19.25       US Government Regulations


 


(a)           The Parent represents that it is not an
“investment company” which is registered or required to be registered under the
United States Investment Company Act of 1940.


 


(b)           The Parent represents that it is not and none
of its subsidiaries and no Obligor that is an Orphan Financeco or an Orphan SPV
is engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System of the United States of America) as in
effect from time to time, and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock.


 


(c)           The Parent represents that it is not and none
of its subsidiaries nor any other Obligor that is an Orphan Financeco or an
Orphan SPV is a “holding company” or a “subsidiary company” of a “holding
company” or an “affiliate” of a “holding company” or of a “subsidiary company”
of a “holding company” within the meaning of the United States Public Utility
Holding Company Act of 1935.


 


19.26       Pensions


 


The pension schemes of
each Obligor and each of its subsidiaries are funded to the extent required by
law or otherwise comply with the requirements of any material law applicable in
the jurisdiction in which the relevant pension scheme is maintained, in each
case, where failure to do so would reasonably be expected to have a Material
Adverse Effect.


 


19.27       The Acquisition


 


The Parent represents
that as of the Closing Date, the representations and warranties, to the
knowledge of the Parent, of Holdco and 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 the U.S. ABL Credit Agreement and the
terms of this Agreement), to the extent a breach of such representation or
warranty would result in Holdco 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 Facility Agent in writing prior
to the Closing Date.


 


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19.28       Centre of Main Interests


 


In respect of any Obligor
which is incorporated in the European Union, for the purposes of The Council of
the European Union Regulation No. 1346/2000 on Insolvency Proceedings, its
Centre of Main Interest is situated in its jurisdiction of incorporation or
organisation.


 


19.29       Professional Market Party


 


Each Dutch Borrower is in
compliance with the Dutch Banking Act and any regulations issued pursuant thereto
(including, but not limited to, the Policy Guidelines and the Exemption
Regulation) save to the extent that any failure would not reasonably be likely
to have a Material Adverse Effect.


 


19.30       Time of making representations


 


The representations set
out in Clause 19.1 (Status) to
Clause 19.29 (Professional Market Party)
shall be made as follows:


 


(a)           as at the date of this Agreement, each
Obligor shall make the representations set out in Clause 19.1 (Status) to Clause 19.12 (No Material Defaults)
(inclusive other than Clause 19.6 (Financial Statements)
and Clause 19.7 (No Material Adverse Change)),
Clause 19.16 (Encumbrances and
Indebtedness), Clause 19.21 (Consents and
Approvals) to Clause 19.24 (Good Title to Assets),
Clause 19.26 (Pensions), Clause 19.28 (Centre of Main Interests) if it is incorporated in the
European Union and Clause 19.29 (Professional Market Party)
if it is incorporated in The Netherlands;


 


(b)           as at the date of the execution of an
Accession Memorandum, each Additional Obligor and the Parent shall make the
representations set out in paragraph (a) (as applicable); and


 


(c)           the Parent shall, in addition to those stated
in paragraph (a) above, also make the representations:


 


(i)            set out in Clauses 19.6 (Financial Statements) and Clause 19.7 (No Material
Adverse Change), Clause 19.14 (Environmental Compliance),
19.15 (Environmental Claims),Clause 19.17 (Ranking), Clause 19.18 (Ownership of the Obligors),
Clause 19.19 (Ownership of Parent), Clause
19.20 (No Event of Default) and Clause 19.25 (US Governmental Regulations) (inclusive) as at the date of
this Agreement;


 


(ii)           set out in Clause 19.13 (No Misleading Information) as at the date on which the
Information Memorandum was approved by the Parent; and


 


(iii)          set out in Clause 19.27 (The Acquisition) at the time set out therein.


 


19.31       Repetition of Representations


 


The Repeated
Representations shall be deemed to be repeated by each Obligor by reference to
the facts and circumstances then existing on the first day of each Term,


 


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each date on which an
advance (other than a Rollover Advance) is or is to be made, each date on which
a Letter of Credit is or is to be issued or its Term extended and each date on
which a person becomes (or it is proposed that a person becomes) an Additional
Obligor (provided that, in respect of any Advance made during the Certain Funds
Period, only the Certain Funds Repeated Representations will be deemed to be
repeated by the relevant Obligor on the date on which such Advance is made.


 


20.          FINANCIAL INFORMATION


 


20.1         Annual Statements


 


(a)           The Parent shall, as soon as the same become
available, but in any event within 120 days after the end of each of its
financial years ending after the Closing Date (other than in the case of the
first such financial year ending after the Closing Date for which the delivery
period shall be 180 days), deliver to the Facility Agent in sufficient copies
for the Banks the consolidated financial statements of the Group for such financial
year, audited by the Auditors.  Each set
of consolidated financial statements delivered by the Parent pursuant to this
Clause 20.1(a) shall be accompanied by (i) a statement comparing the
actual performance of the Group during the financial year to which such
statements relate to (x) the performance projected for such financial year in
the Annual Budget for such financial year and (y) in relation to the financial
year ending 31 December 2006 and each subsequent financial year, to the actual
performance of the Group in the previous financial year, and (ii) a Specified
ECF Amount Certificate for such financial year.


 


(b)           For the purposes of paragraph (a) above only,
the Group shall be determined without reference to any Obligor that is (i) not
an affiliate of any member of the Group and (ii) not required to be
consolidated with the Group for the purposes of the consolidated financial
statements of the Group in accordance with Applicable Accounting Principles.


 


(c)           Each Borrower shall, as soon as the same are
filed, deliver to the Facility Agent in sufficient copies for the Banks such
statutory financial statements of such Borrower for such financial year as are
filed in such Borrower’s jurisdiction of organisation.


 


20.2         Quarterly Statements


 


(a)           The Parent shall as soon as the same become
available, but in any event within 60 days after the end of the Financial
Quarter ending after 1 January 2006 of the Parent of each of its financial
years (other than in the case of the fiscal quarter ending on 31 March
2006 for which the delivery period shall be 90 days), deliver to the
Facility Agent, in sufficient copies for the Banks, consolidated financial
statements of the Group for such Financial Quarter, together with the Required
Quarterly Information relating to such Financial Quarter.


 


(b)           For the purposes of paragraph (a) above only,
the Group shall be determined without reference to any Obligor that is (i) not
an affiliate of any member of the Group and (ii) not required to be
consolidated with the Group for the


 


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purposes of the consolidated financial statements of the Group in
accordance with Applicable Accounting Principles.


 


20.3         Reports


 


(a)           Subject to paragraph (b) below, the
Coordinator shall on each Reporting Date provide to the Facility Agent (with a
copy to the Security Agent) the relevant Asset Report specifying the position
as at the immediately preceding Calculation Date, accompanied with, if and to
the extent necessary, an original copy of such relevant document(s) required
(if any) by the Receivables Charges or the Designated Obligor Re-Charges and a
copy of the Designated Obligor Charges (in each case, if existing and not
already provided), as applicable, in respect of the Eligible Receivables of such
Borrower, it being agreed that in accordance with applicable laws and the terms
of the relevant Receivables Charge or Designated Obligor Charge and related
Designated Obligor Re-Charge, as applicable, any required identification or
specification of the receivables and Eligible Receivables which are the subject
of the Receivables Charge or Designated Obligor Charge and related Designated
Obligor Re-Charge, as the case may be, (as well as any ancillary documents
pertaining thereto) may be made by way of any appropriate computerised data
processing or storage systems as described in the Receivables Charge or
Designated Obligor Charge, and if such delivery is made no Borrower shall be
required to draw up any paper-based list of those receivables in connection with
the delivery of any Asset Report under any Facility.


 


(b)           Unless a C Borrower requires a C Advance to
be made on the Settlement Date relating to any First Calculation Date occurring
after the Closing Date, the Coordinator shall not be required to deliver the
relevant Asset Report on the Reporting Date relating to such First Calculation
Date.


 


20.4         Annual Budget


 


(a)           The Parent shall within 120 days after the
commencement of each of its calendar years (other than in the case of the first
such calendar year commencing after the Closing Date for which the delivery
period shall be 180 days) deliver to the Facility Agent in sufficient copies
for the Banks an Annual Budget for the Group for such calendar year.


 


(b)           For the purposes of paragraph (a) above only,
the Group shall be determined without reference to any Obligor that is (i) not
an affiliate of any member of the Group and (ii) not required to be
consolidated with the Group for the purposes of the consolidated financial
statements of the Group in accordance with Applicable Accounting Principles.


 


20.5         Other Financial Information


 


(a)           The Parent and each Obligor shall from time
to time deliver to the Facility Agent or any Arranger, such other information
relating to its financial condition, operation or taxation arrangements, or
those of its subsidiaries and details of Security Interests granted by it or
any other Obligor, as the Facility


 


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Agent (or any other Bank or the Security Agent through the Facility
Agent) or any Arranger may from time to time reasonably request.


 


(b)           The Parent shall, once in each calendar year,
and at the request of the Facility Agent, make its senior management available
for a meeting with the Banks at such time and at such location as the Parent
and the Facility Agent, acting reasonably, may agree.


 


20.6         Accounting Policies


 


The Parent shall ensure
that either each set of financial statements delivered pursuant to this
Clause 20 is prepared using accounting policies, practices and procedures,
consistent in all material respects with the Applicable Accounting Principles
or that it delivers to the Facility Agent with each quarterly or annual set of
financial statements that are not so consistent a reconciliation statement
signed by the finance director setting out in reasonable detail such
information as shall be required to reconcile such financial statements to the
Applicable Accounting Principles to be calculated.


 


20.7         “Know your customer” checks


 


(a)           If:


 


(i)            the introduction of or any change in (or in
the interpretation, administration or application of) any law or regulation
made after the date of this Agreement;


 


(ii)           any change in the status of an Obligor after
the date of this Agreement; or


 


(iii)          a proposed assignment or transfer by a Bank
of any of its rights and obligations under this Agreement to a party that is
not a Bank prior to such assignment or transfer,


 


obliges the Facility
Agent or any Bank (or, in the case of paragraph (iii) above, any
prospective New Bank) to comply with “know your customer”
or similar identification procedures in circumstances where the necessary
information is not already available to it, each Obligor shall promptly upon
the request of the Facility Agent or the relevant Bank supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by
the Facility Agent (for itself or on behalf of any Bank) or any Bank (for
itself or, in the case of the event described in paragraph (iii) above, on
behalf of any prospective new Bank) in order for the Facility Agent, such Bank
or, in the case of the event described in paragraph (iii) above, any
prospective New Bank to carry out and be satisfied (acting reasonably) it has
complied with all necessary “know your customer”
or other similar checks under all applicable laws and regulations pursuant to
the transactions contemplated in the Finance Documents.


 


(b)           Each Bank shall promptly upon the request of
the Facility Agent supply, or procure the supply of, such documentation and
other evidence as is reasonably requested by the Facility Agent (for itself) in
order for the Facility Agent to


 


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carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks
under all applicable laws and regulations pursuant to the transactions
contemplated in the Finance Documents.


 


(c)           The Parent shall, by not less than
ten Business Days’ prior written notice to the Facility Agent, notify the
Facility Agent (which shall promptly notify the Banks) of its intention to
request that an Eligible Borrower becomes an Additional Borrower or any person
becomes Additional Guarantor pursuant to Clause 38 (Additional
Borrowers) or Clause 39 (Additional Guarantors,
Resignation of Guarantors and Designated Obligors; Change of Coordinator),
respectively.


 


(d)           Following the giving of any notice pursuant
to Clause 20.7(c) above, if the accession of such Additional Borrower or
Additional Guarantor obliges the Facility Agent or any Bank to comply with “know your customer” or similar
identification procedures in circumstances where the necessary information is
not already available to it, the Parent shall with reasonable promptness upon
the request of the Facility Agent or any Bank supply, or procure the supply of,
such documentation and other evidence as is reasonably requested by the
Facility Agent (for itself or on behalf of any Bank) or any Bank (for itself or
on behalf of any prospective New Bank) in order for the Facility Agent or such
Bank or any prospective New Bank to carry out and be satisfied it has complied
with the results of all necessary “know your
customer” or other similar checks under all applicable laws and
regulations pursuant to the accession of such person to this Agreement as an
Additional Borrower or Additional Guarantor.


 


21.          POSITIVE COVENANTS


 


21.1         Maintenance of Legal Status and Validity


 


(a)           Each Obligor shall maintain in full force and
effect all material authorisations, approvals, licences and consents required
in or by the laws of its jurisdiction of incorporation to enable it lawfully to
enter into and perform its obligations under the Finance Documents to which it
is a party and to ensure, subject to applicable bankruptcy or insolvency laws
or other similar laws affecting creditors rights or remedies generally, general
principles of equity and any other reservations made in the Legal Opinions, the
legality, validity, enforceability or admissibility in evidence in its
jurisdiction of incorporation of the Finance Documents to which it is a party.


 


(b)           Each Obligor shall (and shall procure that
each of its subsidiaries will) maintain its corporate form (or partnership, as
the case may be) and existence provided that each Obligor that is a Financeco
or an SPV shall use its reasonable best efforts to ensure that it satisfies the
bankruptcy remote criteria of each Rating Agency at all times and each Obligor
that is an Orphan Financeco or an Orphan SPV shall ensure that it maintains its
status as an Orphan Financeco or an Orphan SPV at all times.


 


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21.2         Insurance


 


Each Obligor shall, and
shall procure that each subsidiary of such Obligor shall, maintain insurances
on and in relation to its business and assets with reputable underwriters or
insurance companies in accordance with Hertz customary practices.  Each Obligor shall (if so requested) supply
the Security Agent with copies of all such insurance policies or certificates
of insurance in respect thereof and shall, in any event, notify the Security
Agent of any material changes to its insurance cover.


 


21.3         Environmental Compliance


 


The Parent shall ensure
that each member of the Group and each other Obligor shall comply in all
material respects with all Environmental Laws and obtain and maintain any
Environmental Permits breach of which (or failure to obtain or maintain) would
reasonably be expected to have a Material Adverse Effect.


 


21.4         Environmental Claims


 


The Parent shall inform
the Facility Agent in writing as soon as reasonably practicable upon becoming
aware of the same if any Environmental Claim has been commenced or (to the best
of the Parent’s knowledge and belief) is threatened against it, any of its
subsidiaries or any other Obligor in any case where such claim is reasonably
likely to be adversely determined against the Parent, any of its subsidiaries
or any other Obligor and, if so adversely determined, would reasonably be
expected to have a Material Adverse Effect or of any facts or circumstances
which will or are reasonably likely to result in any Environmental Claim being
commenced or threatened against any member of the Group or any other Obligor in
any case where such claim would be reasonably likely to have a Material Adverse
Effect.


 


21.5         Notification of Defaults


 


Each Obligor shall, upon
it becoming aware of the same (unless it is aware that such notice has already
been given to the Facility Agent and the Security Agent by another person),
promptly inform the Facility Agent and the Security Agent of the occurrence of
any Event of Default or Potential Event of Default and the steps (if any) being
taken to remedy the same and, upon receipt of a written request to that effect
from the Facility Agent or the Security Agent, confirm to the Facility Agent
and the Security Agent that, save as previously notified to the Facility Agent
and the Security Agent or as notified in such confirmation, no Event of Default
or Potential Event of Default has occurred and is continuing.


 


21.6         Claims Pari Passu


 


Each Obligor shall ensure
that at all times the claims of the Finance Parties against it under the
Finance Documents rank at least pari passu with
the claims of all its unsecured and unsubordinated creditors save those whose
claims are preferred by any bankruptcy, insolvency, liquidation or other
similar laws or other applicable laws of general application.


 


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21.7         Consents and Approvals


 


Each Obligor shall comply
with all applicable laws (including, without limitation, all such laws relating
to financial assistance), rules, regulations and orders and obtain and maintain
all governmental and regulatory consents, filings and approvals the failure to
obtain, maintain or comply with which would reasonably be expected to have a
Material Adverse Effect.


 


21.8         Conduct of Business


 


Each Obligor shall, and
shall procure that each of its subsidiaries shall, ensure that it has the right
and is duly qualified to conduct its business as it is conducted from time to
time in all applicable jurisdictions and does all things reasonably necessary
to obtain, preserve and keep in full force and effect all material rights
including, without limitation, all franchises, contracts, licences, consents
and other rights which are necessary and material for the conduct of its
business save, in relation to each member of the Group other than the Parent,
to the extent that failure to so qualify, obtain or preserve would not
reasonably be expected to have a Material Adverse Effect.


 


21.9         Tax


 


Each Obligor shall and
shall procure that each of its subsidiaries shall duly and punctually pay and
discharge (a) all material taxes, assessments and governmental charges imposed
upon it or its assets within the time period allowed therefor without imposing
penalties and without resulting in an Encumbrance (other than a Permitted
Encumbrance) with priority to any Finance Party or any security purported to be
granted by or created pursuant to the Security Documents and (b) all material
and lawful claims for taxes which, if unpaid, would by law become Encumbrances
(other than Permitted Encumbrances) upon its assets, in each case other than
(i) such taxes, assessments and government charges with respect to which the
failure to pay would not reasonably be expected to have a Material Adverse
Effect) or (ii) such taxes, assessments and government charges that are being
contested in good faith and with respect to which adequate reserves are
maintained on the books of the applicable Obligor in accordance with the Applicable
Accounting Principles.


 


21.10       Preservation of Assets


 


Each Obligor shall and
shall procure that each of its subsidiaries shall maintain and preserve (save
to the extent disposed of pursuant to a Permitted Disposal) all of its assets
that are (a) used in determining any Borrower’s Borrower Asset Value and
(b) necessary and material in the conduct of its business as conducted on
the Closing Date in good working order and condition, ordinary wear and tear
excepted except those which the failure to maintain or preserve would not
reasonably be expected to have a Material Adverse Effect.


 


21.11       Security Preservation


 


Each Obligor shall at its
own expense, take all such action as the Security Agent (or, in respect of any
security to be granted under the Australian Finance Documents, the Australian
Orphan SPV) may reasonably require for the purpose of perfecting, rendering
opposable or protecting the Security Agent’s (or, in respect of Australia


 


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only, the Australian
Orphan SPV’s) rights under and preserving the Security intended to be created
by any of the Finance Documents in respect of such Obligor’s (or if such
Obligor is a Financeco, its Related Opco’s) assets and, following the making of
any declaration pursuant to Clause 23.16 (Acceleration
and Cancellation) or Clause 23.19 (Advances Due
on Demand), for facilitating the realisation of any such security or
any part thereof.


 


21.12       Litigation


 


The Parent shall promptly
notify the Facility Agent of the details of each litigation, regulatory or
arbitration proceeding of or before any court, agency or arbitrator which is
reasonably likely to be adversely determined and, if so determined, is
reasonably likely to have a Material Adverse Effect which has been commenced or
to the knowledge of the Parent threatened against it, any of its subsidiaries
or any other Obligor.


 


21.13       Labour Disputes


 


The Parent shall promptly
advise the Facility Agent forthwith of the details of each labour dispute
affecting any Group member or other Obligor which would be reasonably expected
to be adversely determined, and if so determined, would reasonably be expected
to have a Material Adverse Effect.


 


21.14       Access


 


Each Obligor shall, and
shall ensure its subsidiaries shall, while an Event of Default is continuing
and is not remedied or waived, and subject to any restrictions to such access
prescribed by law or by any confidentiality agreement by which that Obligor is
bound, ensure that any one or more representatives of the Facility Agent and
advisers of the Facility Agent and/or any of the Banks will be allowed to have
access to (a) its premises, assets, books and records and to inspect the same
during normal business hours upon reasonable advance notice to such Obligor and
subject to restrictions on viewing or receiving confidential information that
is the subject of then-existing bona fide confidentiality arrangements with non
affiliated third parties, applicable law and the Group’s policy with respect to
data protection and fiduciary duties of officers of such Obligors and (b) meet
and discuss with the senior management of the Parent.


 


21.15       Intellectual Property


 


The Parent shall (and
shall procure that each member of the Group and each other Obligor shall) do
all acts as are reasonably practicable to maintain, protect and safeguard the
Material Intellectual Property and not terminate or discontinue the use of any
Material Intellectual Property (and, in particular, shall not permit any
registration thereof to terminate, be abandoned, cancelled, lapse or be liable
to any claim of abandonment) or change adversely in a material respect any
Material Intellectual Property, any contracts relating to Material Intellectual
Property or take any action which could foreseeably imperil the existence or
right of the Group to use any Material Intellectual Property except (aa) in the
ordinary course of business or (bb) with the prior written consent of an
Instructing Group or (cc) pursuant to a Permitted Disposal or Permitted
Encumbrance.


 


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21.16       Group Acceding Guarantors


 


(a)           The Parent shall ensure that:


 


(i)            each member of the Group, Orphan SPV or
Orphan Financeco identified in Schedule 13 (Additional
Guarantors and Security) shall become an Additional Guarantor (or,
with the approval of the Facility Agent, a Designated Obligor rather than an
Additional Guarantor) as soon as reasonably practicable after the Closing Date
and in any event no later than the earlier of the date on which such person
accedes to this Agreement as an Additional Borrower and 90 days after the
Closing Date; and


 


(ii)           any other member of the Group, Orphan SPV or
Orphan Financeco which becomes an Additional Borrower shall become an
Additional Guarantor;


 


provided that no person
shall be required to accede to this Agreement as an Additional Guarantor or
become a Designated Obligor to the extent that such accession or entering into
of the relevant Designated Obligor Intercompany Loan Agreement would produce
(a) any violation of applicable law, (b) liability of any of the officers,
directors, shareholders of such member or any of its holding companies or
subsidiaries, (c) violation of the provisions of any joint venture governing or
binding on such person or its subsidiaries or holding companies, (d) material
adverse effects on the tax position (including, without limitation, the
imposition of any material withholding tax or the loss of any material tax
deduction) of the Group or, with respect to the Group, structuring considerations
identified in reasonable detail to the Facility Agent or (e) costs (including,
without limitation, any taxes, fees, charges, duties or expenses) which the
Parent has demonstrated to the Security Agent in reasonable detail would be
likely to be incurred or (f) any material risk of any of the foregoing.


 


(b)           The Parent shall procure that on the date on
which any Additional Borrower or Additional Guarantor accedes or any person
becomes a Designated Obligor, as applicable, it will provide such security as the
Facility Agent may require including:


 


(i)            in the case of a US Obligor, over (x) all
capital stock and other equity interests of any of its directly owned Material
Subsidiaries that are organised under the laws of the USA or any state thereof
and not more than 65 per cent. of the total outstanding capital stock and other
equity interests of any of its direct Material Subsidiaries that are organised
under the laws of any other jurisdiction (it being understood that a foreign
subsidiary of such US Obligor that is organised in the USA or any state thereof
and that has no material assets other than securities of one or more non-US
subsidiaries and indebtedness issued by such non-US subsidiaries, and other
assets relating to an ownership interest in any such securities, indebtedness
or subsidiaries will be deemed not to be organised in the USA or a state
thereof for the purposes of this provision) in each case excluding any
subsidiary that is a Permitted


 


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Joint Venture and (y) substantially all its other tangible and
intangible assets (including, without limitation, receivables, contract rights,
securities, US patents, US trademarks, other US intellectual property,
inventory, equipment and real estate interests), in each case except to the
extent that such assets are the subject of a Permitted Securitisation or a
Permitted Encumbrance referred to in paragraphs (b), (m) or (n) of the
definition thereof but subject to Clause 21.16(c) (Group
Acceding Guarantors);


 


(ii)           in the case of a non-US Obligor, over (x) all
issued share capital of its direct Material Subsidiaries (other than any
Permitted Joint Venture) and (y) fixed and (if available) floating charges (or
equivalent security interests) over substantially all its other assets, in each
case except to the extent that such assets are the subject of a Permitted Securitisation or a Permitted
Encumbrance referred to in paragraphs (b),(m) or (n) of the definition thereof,
but subject to Clause 21.16(c) (Group Acceding Guarantors);
and


 


(iii)          in the case of the Canadian Guarantor, (x)
all issued share capital of its direct material subsidiaries other than any
Excluded Canadian Company and (y) fixed and (if available) floating charges (or
equivalent security interests) over substantially all of its other assets,


 


unless legal counsel to
the Facility Agent has confirmed that there is a legal impediment to such
Additional Borrower or Additional Guarantor providing such security and
provided that (i) no security shall be required (or be required to be
registered or otherwise perfected) or the form of such security (as
appropriate) shall be modified, to the extent required to avoid (a) any
violation of applicable law, (b) liability of any of the officers, directors or
shareholders of such person, any of its holding companies or subsidiaries, (c)
violation of the provisions of any joint venture arrangement governing or
binding on such subsidiary or its holding companies or subsidiaries, (d)
material adverse effects on the tax position of the Group (including without
limitation the imposition of any material withholding tax or the loss of any
material tax deduction) of the Group or, with respect to the Group, structuring
considerations identified in reasonable detail to the Facility Agent or, (e)
material costs (including, without limitation, any taxes, fees, charges, duties
or expenses)  which the Parent has
demonstrated to the Security Agent in reasonable detail would be excessive in
relation to the benefits that would be conferred by the granting of such
security and are likely to be incurred or (f) any material risk of the
foregoing and provided, further, that any such security from a Designated
Obligor shall be provided in support of such Designated Obligor’s obligations
under the applicable Designated Obligor Intercompany Loan Agreement, (ii) the
Security Documents shall be on terms consistent with the Security Principles
(except to the extent that local law is contrary thereto) and (iii) subject to
Clause 21.16(c) the Parent shall be deemed to have complied with this
Clause 21.16(b) in respect of an Additional Borrower or Additional
Guarantor listed in Schedule 13 (Additional Guarantors and
Security) and the assets of such
Additional Borrower or Additional Guarantor on the date hereof if such
Additional Borrower or Additional Guarantor has


 


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entered into the Security
Documents listed next to its name in Schedule 13 (Additional
Guarantors and Security) in the agreed form or other documents in
form and substance satisfactory to the Security Agent (acting reasonably).


 


(c)           If any assets of an Additional Guarantor or
Designated Obligor are the subject of a Permitted Securitisation or a Permitted
Encumbrance referred to in paragraphs (b) or (m) of the definition thereof,
such Additional Guarantor or Designated Obligor, as applicable, shall grant in
favour of the Finance Parties, in form and substance satisfactory to the
Security Agent (acting reasonably):


 


(i)            first ranking security over such assets to
the extent that such assets cease at any time to be the subject of any
Permitted Securitisation or any such Permitted Encumbrance (including, in the
case of any such Permitted Encumbrance, any Encumbrance securing a refinancing
of the relevant obligation provided such Encumbrance is itself a Permitted
Encumbrance referred to in paragraph (b) or (m) of the definition thereof); and


 


(ii)           without limitation of the foregoing
sub-paragraph (a), in the case of a Permitted Encumbrance referred to in
paragraphs (b) or (m) of the definition thereof, second ranking security over
such assets to the extent permitted by the terms thereof and applicable local
law,


 


provided that the proviso
to Clause 21.16(b) shall also apply to this Clause 21.16(c).


 


21.17       Syndication


 


The Parent shall provide
reasonable assistance to the Arrangers in the primary syndication of the Facilities
(including, without limitation, by making management available for the purpose
of making presentations to, or meeting, potential lending institutions) and
will comply with all reasonable requests from the Arrangers for information.


 


21.18       Share Security


 


Each Obligor which has
executed a share pledge as security for its obligations under the Finance
Documents (the “Relevant Share Pledge”) shall
inform the Security Agent (or, in respect of any security to be granted under
the Australian Finance Documents, the Australian Orphan SPV) without undue
delay of all matters concerning the company whose shares are pledged pursuant
to such Relevant Share Pledge of which such Obligor is aware, which could
reasonably be expected materially and adversely to affect the validity or
binding nature or enforceability of the security interest of the Finance
Parties (other than as specified in the Legal Opinions).  In particular, such Obligor shall notify the
Security Agent (or, in respect of any security to be granted under the
Australian Finance Documents, the Australian Orphan SPV) forthwith of any
shareholders’ meeting at which a shareholders’ resolution is intended to be
adopted which could reasonably be expected to have a material adverse effect
upon the validity or binding nature or enforceability of the Relevant Share
Pledge.


 


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21.19       Existing Indebtedness


 


The Parent shall procure
that any Existing Indebtedness except for that expressly identified in the Disclosure
Letter or as otherwise permitted under the definition of “Permitted
Indebtedness” is refinanced from the proceeds of Advances under the
Facilities to be used for that purpose as described in Clause 2.2(a)(i)(B)
(Purpose and Application of each A Facility)
and Clause 2.3(a)(i)(B) (Purpose and Application of
C Facility), the proceeds of the High Yield Financing and the
proceeds of the financing under the U.S. ABL Credit Agreement and the U.S. LBO
Credit Agreement.


 


21.20       New Vehicle and Equipment Acquisitions


 


(a)           Subject to Clause 21.21 (Purchase
Price), a Borrower’s (or if such Borrower is a Financeco, its
Related Opco’s) purchase of any New Vehicles or New Equipment Assets (as the
case may be) shall be financed:


 


(i)            with the proceeds of any relevant Advance;
and


 


(ii)           with (A) available cash or Cash Equivalents,
(B) the proceeds of any intercompany loans, Qualified Subordinated Shareholder
Loans, Qualified Canadian Indebtedness and other Permitted Indebtedness
permitted under this Agreement and/or (C) in the case of any A1 Borrower
located in Spain or France, the proceeds of any C Advance made to a C
Borrower and, in the case of any C Borrower, the proceeds of any A1 Advance or
A2 Advance made to any A1 Borrower or A2 Borrower (as the case may be) located
in Spain or France.


 


(b)           Subject to Clause 21.21 (Purchase
Price), if, at any time, the proceeds of any Swingline Advance are
used by any Borrower (or if such Borrower is a Financeco, its Related Opco) to
purchase any New Vehicle or any New Equipment Assets (as the case may be), and
on the immediately preceding Calculation Date after taking account of the
application of the proceeds of any Advances made on the Settlement Date
relating to such Calculation Date and the application of the proceeds of such
Swingline Advance as if the same had been made on such Calculation Date, the
relevant Borrower’s A1 Borrowing Base, A2 Borrowing Base or C Borrowing Base
(as the case may be) would not equal or exceed the aggregate outstanding amount
of all Advances of such Borrower on such Calculation Date, such Borrower or its
Related Opco (as the case may be) shall not pay more than:


 


(i)            in the case of any A1 Swingline Advance, the
A1 Advance Rate of the purchase price of such New Vehicle;


 


(ii)           in the case of any A2 Swingline Advance, the
A2 Advance Rate of the purchase price of such New Vehicle; and


 


(iii)          in the case of any C Swingline Advance, the C
Equipment Advance Rate of the purchase price of such New Equipment Assets
(including registration and other standard fees and expenses incurred in
connection with such purchase).


 


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21.21       Purchase Price


 


To the extent the
purchase price of any New Vehicles or New Equipment Assets (as the case may be)
acquired by any Borrower (or if such Borrower is a Financeco, its Related Opco)
remains outstanding after any financing pursuant to Clause 21.20 (New Vehicle and Equipment Acquisitions), the Borrower shall
promptly cause (and the Parent shall ensure that the Borrower promptly causes)
the remainder of such purchase price to be paid.


 


21.22       Securitisation and Take-Out Financing


 


(a)           Each Borrower (other than the UK Borrower)
shall (and the Parent shall procure that each Borrower (other than the UK
Borrower) will) use its best efforts, save to the extent the same would produce
(A) any violation of applicable law, (B) liability of any of the officers,
directors, shareholders of such member or any of its holding companies or
subsidiaries, (C) violation of the provisions of any joint venture governing or
binding on such person or its subsidiaries or holding companies or (D) material
adverse effects on the tax position (including, without limitation, the
imposition of any material withholding tax or the loss of any material tax
deduction) of the Group or, with respect to the Group, structuring
considerations identified in reasonable detail to the Facility Agent, to:


 


(i)            establish or cause to be established an SPV
and/or a Financeco promptly on or after the Closing Date, including satisfying
any relevant “bankruptcy remote” criteria of each Rating Agency;


 


(ii)           other than in respect of an SPV or a
Financeco whose Related Opco is organised in Canada, during the period prior to
a Take-Out Financing of the A1 Canadian Dollar Tranche and the A2 Canadian
Dollar Tranche, ensure that such SPV and/or Financeco becomes an Eligible
Borrower as soon as reasonably practicable after the Closing Date;


 


(iii)          other than in respect of an SPV or a
Financeco whose Related Opco is organised in Canada, during the period prior to
a Take-Out Financing of the A1 Canadian Dollar Tranche and the A2 Canadian
Dollar Tranche, take all necessary measures to ensure that (x) in the case of
an SPV that is an A1 Borrower or A2 Borrower, such SPV or its Related Opco benefits
directly from all (A) Vehicle Dealer Buy-Back Agreements, Vehicle Manufacturer
Buy-Back Agreements, Vehicle Dealer Buy-Back Guarantees and/or insurance
policies relating to such Vehicle Dealer Buy-Back Agreements and Vehicle
Manufacturer Buy-Back Agreements and (B) Vehicle Manufacturer Receivables,
Vehicle Dealer Receivables, Insurance Receivables, Rebate Receivables and
Vehicle Manufacturer Guarantees, in each case, with respect to the Core Country
Fleet of such Borrower and to the extent available on commercially reasonable
terms and (y) in the case of an SPV that is a C Borrower, such SPV
benefits directly from all (A) Equipment Manufacturer Buy Back Agreements
and/or insurance policies relating to such Equipment Manufacturer Buy-Back
Agreements and (B) Equipment Manufacturer Receivables, in each


 


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case, with respect to the Equipment of such Borrower, such measures (in
relation to paragraphs (x) and (y)) to include, without limitation,
renegotiating, amending or otherwise obtaining all necessary consents under
such Vehicle Dealer Buy-Back Agreements, Vehicle Manufacturer Buy-Back
Agreements, Vehicle Dealer Buy-Back Guarantees, Equipment Manufacturer Buy-Back
Agreements, insurance policies and other agreements and/or declaring a trust
over such agreements and/or rights derived therefrom, as the Arrangers may
reasonably require in connection with the Take-Out Financing;


 


(iv)          ensure, where such vehicle has been pledged
and where such security interest can be registered without material cost and to
the extent available in the applicable jurisdiction, that (i) in the case of an
A1 Borrower or A2 Borrower (other than a Canadian Borrower, a French
Borrower, Italian Borrower or a Dutch Borrower), the title registration (or
equivalent local registration documents) to each vehicle in the Core Country
Fleet of such Borrower shall note the security interest of the Security Agent
upon the original acquisition of title to such vehicle by such SPV and (ii) in
the case of a C Borrower, the title registration (or equivalent local
registration documents) for each Equipment of such Borrower shall note the
security interest of the Security Agent upon the original acquisition of title
by such Equipment to such SPV; and


 


(v)           assist the Mandated Lead Arrangers in order
to achieve a reasonably satisfactory segregation of the assets comprising such
Borrower’s Borrower Asset Value.


 


(b)           Each Borrower shall (and the Parent shall
procure that each Borrower will) use its best efforts to undertake and complete
the Take-Out Financing for the purpose of refinancing each Facility to the
extent required by and in accordance with the provisions of the Engagement
Letter (including, without limitation, the timing set out therein).


 


(c)           The Parent shall procure that the Coordinator
undertakes and complies with the obligations and duties of the “Hertz
Coordinator” as set out in the Engagement Letter.


 


(d)           The provisions of this Clause 21.22 will only
apply to Australian Orphan SPV if it does not itself satisfy the requirements
of paragraph (a) above or if it is not a Take-Out Borrower.


 


21.23       Pension Schemes


 


Each Obligor shall, and
shall procure that each subsidiary of such Obligor shall, ensure that all
pension schemes for the time being operated by members of the Group are fully
funded to the extent required by law, in each case, to the extent failure to do
so would reasonably be expected to have a Material Adverse Effect.


 


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21.24       On-Lending


 


To the extent any Advance
is made to a Borrower that is a Financeco, such Borrower shall promptly on-lend
the proceeds of such Advance (other than an amount equal to the incidental
operating expenses incurred or to be incurred by it) to its Related Opco provided:


 


(a)           such Related Opco (unless it is a Guarantor)
has been accepted as a Designated Obligor for the purposes of this Agreement in
accordance with Clause 39.4 (Request for Designated
Obligor) and Clause 39.5 (Designated Obligor
Conditions Precedent) and has not ceased to be regarded as a
Designated Obligor under Clause 39.6 (Cessation of a Designated
Obligor);


 


(b)           the applicable Designated Obligor
Intercompany Loan Agreement, the Designated Obligor Charge and the Designated
Obligor Re-Charge have been executed and delivered to the Facility Agent;


 


(c)           such Borrower procures that such Related Opco
uses the proceeds of such Advance or Equity Financing (as the case may be) in
accordance with Clause 2.2 (Purpose and Application of
each A Facility), Clause 2.3 (Purpose and Application of
C Facility), Clause 21.20 (New Vehicle and Equipment
Acquisitions) or Clause 21.21 (Purchase
Price) (as the case may be) and otherwise in accordance with the
terms of this Agreement; and


 


(d)           in respect of an Australian Borrower only,
such Australian Borrower uses the proceeds of such Advance to acquire notes
under and in accordance with the Australian Subscription Deed.


 


21.25       Hedging Transactions


 


The Parent shall promptly
notify the Facility Agent of any Permitted Hedging Transaction entered into
with a Secured Hedge Counterparty, providing details of the material terms
thereof.


 


21.26       Further Assurances


 


(a)           Each Obligor shall (and the Parent shall
procure that each member of the Group will) promptly do all such acts or execute
all such documents (including assignments, transfers, mortgages, charges,
notices and instructions) as the Security Agent (or in the case of any Security
created in favour of the Australian Orphan SPV under the laws of Australia, the
Australian Orphan SPV) may reasonably specify (and in such form as the Security
Agent (or, the Australian Orphan SPV, as the case may be) may reasonably
require in favour of the Security Agent (or, the Australian Orphan SPV, as the
case may be) or its nominee(s)):


 


(i)            to perfect the Security created or intended
to be created under or evidenced by the Security Documents (which may include
the execution of a mortgage, charge, assignment or other Security over all or
any of the assets which are, or are intended to be, the subject of the
Security) or for the exercise of any rights, powers and remedies of the


 


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Security Agent or the Finance Parties provided by or pursuant to the
Finance Documents or by law;


 


(ii)           in the case of a Borrower, to confer on the
Security Agent or the Finance Parties a first perfected Security over all
freely available cash and Cash Equivalents of such Borrower (or if such
Borrower is a Financeco, its Related Opco);


 


(iii)          to confer on the Security Agent or the
Finance Parties Security over any property and assets of that Obligor located
in any jurisdiction equivalent or similar to the Security intended to be
conferred by or pursuant to the Security Documents; and/or


 


(iv)          to facilitate the realisation of the assets
which are, or are intended to be, the subject of the Security.


 


(b)           Each Obligor shall (and the Parent shall
procure that each member of the Group shall) take all such action as is
available to it (including making all filings and registrations) as may be
reasonably necessary for the purpose of the creation, perfection, protection or
maintenance of any Security conferred or intended to be conferred on the
Security Agent or the Finance Parties by or pursuant to the Finance Documents.


 


21.27       Canadian Guarantor


 


The Parent shall procure
that promptly upon satisfaction in full of all Euro MTN Obligations, Hertz
Canada Limited will accede as an Additional Guarantor pursuant to Clause 39.1 (Request for an Additional Guarantor) .


 


22.          NEGATIVE COVENANTS


 


22.1         Negative Pledge


 


No Obligor shall and each
Obligor shall procure that none of its subsidiaries shall create or permit to
subsist any Encumbrance over all or any of its present or future revenues or
assets other than a Permitted Encumbrance.


 


22.2         Loans and Guarantees


 


No Obligor shall and each
Obligor shall procure that none of its subsidiaries shall make any loans, grant
any credit (save in the ordinary course of business) or give any Guarantee
other than Permitted Investments and Permitted Loans and Guarantees.


 


22.3         Indebtedness


 


No Obligor shall and each
Obligor shall procure that none of its subsidiaries shall incur or allow to
remain outstanding any Financial Indebtedness other than Permitted
Indebtedness.


 


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22.4         Hedging Transactions


 


No Obligor shall and each
Obligor shall procure that none if its subsidiaries shall enter into any
Hedging Transaction which is not a Permitted Hedging Transaction.


 


22.5         Subordinated Debt


 


So long as an Event of
Default has occurred and is continuing and at any time in relation to
Shareholder Subordinated Loans entered into prior to the Closing Date, no
Obligor shall and each Obligor shall procure that none of its subsidiaries
shall pay, prepay, exchange (other than an exchange for share capital or other
equity interests or another Shareholder Subordinated Loan) or repay or
repurchase any amount under the Shareholder Subordinated Loan Agreements,
provided that for the avoidance of doubt that any Shareholder Subordinated Loan
or part thereof (i) can be declared at any time due and repayable by the
relevant lender for the purpose of the conversion of such Shareholder
Subordinated Loan or part thereof into share capital of the Parent, and (ii)
can accordingly be converted into share capital of the Parent at any such time.


 


22.6         Disposals


 


No Obligor shall and each
Obligor shall procure that none of its subsidiaries shall sell, lease, transfer
or otherwise dispose of, by one or more transactions or series of transactions
(whether related or not), the whole or any part of its revenues or its assets
save for Permitted Disposals.


 


22.7         Acquisitions


 


Other than the
Acquisition, any Permitted Investment, any Permitted Acquisition or any
transaction contemplated by Clause 21.22 (Securitisation and
Take-out Financing), no Obligor shall and each Obligor shall procure
that none if its subsidiaries shall (a) purchase, subscribe for or
otherwise acquire any shares (or other securities or any interest therein) in,
or incorporate, any other company or agree to do any of the foregoing or (b)
purchase or otherwise acquire any business or undertaking or any interest
therein or agree to do so or (c) form, or enter into, any partnership,
consortium, joint venture or other like arrangement.


 


22.8         Distributions


 


Other than Permitted
Distributions, the Parent shall not pay or make or declare any dividend, return
on capital, repayment of capital contributions or other distribution on or the
making of any distribution of assets or other payment whatsoever in respect to
its share capital whether directly or indirectly.


 


22.9         Change of Business


 


The Parent shall procure
that no member of the Group and no other Obligor shall enter into any business,
either directly or through any of its subsidiaries, except for those businesses
of the same general type as those in which any member of the Group or the
Target Group is engaged in on the date of this Agreement or which are related
thereto.


 


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22.10       Mergers


 


(a)           No Obligor shall and each Obligor shall
procure that none of its subsidiaries shall merge or consolidate with any other
person, enter into any demerger transaction, or participate in any other
similar type of corporate reconstruction or change in legal status (other than
a merger, or a solvent reorganisation, consolidation or winding-up by an
Obligor (other than the Parent) with or into another Obligor or by any
subsidiary of the Parent into any wholly owned subsidiary of the Parent
(provided that the wholly owned subsidiary shall be the surviving entity)),
unless the Facility Agent is reasonably satisfied (having taken appropriate
advice from counsel in the relevant jurisdiction) that such transaction will
not materially adversely affect the interests of the Banks and provided that
(x) all obligations of the merging entity under the Finance Documents shall be
assumed by the surviving entity, (y) the shares and assets of the surviving
entity including any shares and assets transferred to it in connection with
such merger (to the extent subject to security under the Security Documents
prior to the date of the merger) shall remain or become (as the case may be)
subject to security under the Security Documents, and (z) the Facility Agent
shall have received a legal opinion in form and substance satisfactory to it
(acting reasonably) in relation to such merger.


 


(b)           For the avoidance of doubt, the Parent shall
cause the amalgamation of Hertz Canada Limited and 1677932 Ontario Limited to
occur within one Business Day of the Closing Date, and at the time of such
amalgamation, the Parent covenants that 1677932 Ontario Limited shall have no
liabilities and assets, other than the assets and liabilities it assumes from
Hertz Canada Limited.


 


22.11       Acquisition Agreement and Other Documents


 


The Parent shall procure
that, without the consent of the Facility Agent, no person shall amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) the terms
and conditions of:


 


(a)           any Tax Sharing Agreement in any manner that
would materially increase the amounts payable thereunder, other than amendments
reasonably reflecting changes in law or regulations after the date hereof; or


 


(b)           the Hertz Intercompany Loan in any way which
would reasonably be expected to be materially adverse to the interests of the
Banks under the Finance Documents.


 


22.12       Centre of Main Interests


 


No Obligor which is
incorporated in the European Union shall change its Centre of Main Interests.


 


22.13       Arm’s Length Transactions


 


No Obligor shall (and the
Parent shall ensure no member of the Group or any of their respective
subsidiaries will) enter into any transaction, including any purchase, sale,
lease or exchange of property or the rendering of any service, with any Parent


 


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Company, any Equity
Investor or affiliate (other than the Parent and its subsidiaries and Orphan
SPVs and Orphan Financecos) (“Excluded Intra-Group
Members”)) unless such transaction is (a) otherwise permitted under
this Agreement, and (b) upon terms no less favourable to such Obligor or member
of the Group, as the case may be, than it would obtain in a comparable arm’s
length transaction with a person which is not a Parent Company, Equity Investor
or affiliate (other than an Excluded Intra-Group Member); provided that nothing
contained in this Clause 22.13 shall be deemed to prohibit:


 


(a)           any Obligor or any member of the Group from
entering into or performing any consulting, management or employment agreements
or other compensation arrangements with a director, officer or employee of any
Parent Company or any Equity Investor that provides for annual aggregate base
compensation not in excess of €1,000,000 for each such director, officer or
employee;


 


(b)           any Obligor or any member of the Group from
entering into or performing an agreement with any Equity Investor for the
rendering of management consulting or financial advisory services for
compensation not to exceed in the aggregate an amount equal to the Group’s
proportional share (as determined by reference to the Parent Companies and
their subsidiaries, taken as a whole) of USD7,500,000 (or its equivalent) per
year plus reasonable out-of-pocket expenses;


 


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


 


(d)           any Obligor or any member of the Group from
entering into, making payments pursuant to and otherwise performing an indemnification
and contribution agreement in favour of any Permitted Holder and each person
who is or becomes a director, officer, agent or employee of any Obligor or any
member of the Group, in respect of liabilities (A) arising under any 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 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 any Obligor or any member of the Group, predecessors
or successors, (C) arising out of the performance by any Parent Company or
Equity Investor of management consulting or financial advisory services
provided to any Obligor or any member of the Group, (D) arising out of the fact
that any indemnitee was or is a director, officer, agent or employee of any
Obligor or any member of the Group, 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 applicable law, arising out of any breach or
alleged breach by such indemnitee of his or her fiduciary duty as a director or
officer of any Obligor or member of the Group;


 


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(e)           any Obligor or any member of the Group from
performing any agreements or commitments with or to any Parent Company or any
Equity Investor existing on the Closing Date and expressly described as such in
the Disclosure Letter;


 


(f)            any transaction permitted under clauses (b),
(d) and (h) of the definition of “Permitted
Loans and Guarantees”, Clause 22.5 (Subordinated
Debt), Clause 22.10 (Mergers), any
Permitted Distribution, any Permitted Investment described in paragraphs (d),
(f), (k), (l), (m) or (p) of that definition;


 


(g)           any Obligor or any member of the Group from
performing its obligations under a Tax Sharing Agreement;


 


(h)           any Obligor or any member of the Group from
entering into or performing any transaction described in paragraphs (a)(ii)(D)
and (a)(v) of the definition of “Permitted
Distributions”;


 


(i)            the Parent from paying to any Equity Investor
or any of their respective Affiliates fees of up to USD75,000,000 (or its
equivalent) in the aggregate, plus out-of-pocket expenses, in connection with
the Transactions; or


 


(j)            the Transactions and all transactions
relating thereto.


 


For purposes of this
Clause 22.13, (A) any transaction with any Parent Company, Equity Investor or
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 Company, the Parent or such Obligor or member of the Group, 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 Company, the Parent
or such Obligor or member of the Group, such transaction shall be approved by
an internationally recognized expert with expertise in appraising the terms and
conditions of the type of transaction for which approval is required, and (B)
“Disinterested Director” shall mean, with respect to any person and
transaction, a member of the board of directors (or equivalent governing body)
of such person who does not have any material direct or indirect financial
interest in or with respect to such transaction.


 


22.14       A2 Anti-Layering


 


No A2 Borrower shall (and
each A2 Borrower will procure that none of its subsidiaries or Related Opcos
shall) directly or indirectly, incur or suffer to exist any Indebtedness for
Borrowed Money that is or purports to be by its terms (or by the terms of any
agreement governing such Indebtedness for Borrowed Money) senior in right of
payment to the A2 Facility and/or any Advances made pursuant thereto and
subordinated in right of payment to any other Indebtedness for Borrowed Money
of such Borrower or any of its subsidiaries or Related Opcos, as the case may
be.  For the purposes of the foregoing,
no Indebtedness for Borrowed Money will be deemed to be subordinated in right
of payment to any other Indebtedness for Borrowed Money of any A2 Borrower or
any subsidiary of any such Borrower or Related Opco solely by virtue of being
unsecured or secured by a junior priority Encumbrance or by virtue of the fact
that the holders of such Indebtedness for Borrowed Money have entered


 


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into intercreditor
agreements or other arrangements giving one or more of such holders priority
over the other holders in the collateral held by them.


 


22.15       Maximum number of Lenders


 


No Swiss Obligor shall be
indebted at any time to more than 20 lenders (including the Banks under this
Agreement), which are not Qualifying Banks.


 


23.          EVENTS OF DEFAULT


 


Each of Clause 23.1
(Failure to Pay) to Clause 23.15 (Auditor’s Qualification) describes circumstances which
constitute an Event of Default for the purposes of this Agreement.


 


23.1         Failure to Pay


 


Any sum due from an
Obligor or the Obligors under this Agreement (including, for the avoidance of
doubt, any Accession Memorandum) is not paid at the time, in the currency and
in the manner specified herein or therein unless such failure to pay relates to
an interest payment, fee payment or any other payment hereunder (not being a
repayment of principal) and payment is made within 5 days of the due date.


 


23.2         Misrepresentation


 


Any representation or
statement made or deemed to be made by an Obligor in the Finance Documents or
in any certificate delivered by it pursuant thereto or in connection therewith
is or proves to have been incorrect or misleading in any material respect when
made or deemed to be made and the circumstances giving rise to such
misrepresentation, if capable of alteration, are not altered so as to make such
representation or statement correct or not misleading by the date falling 30
days after the earlier of the date upon which such Obligor becomes aware of
such misrepresentation and the date on which such Obligor receives notice of
such misrepresentation from the Facility Agent.


 


23.3         Obligations


 


An Obligor fails duly to
perform or comply with:


 


(a)           its obligation under Clause 22.3 (Indebtedness) such that any indebtedness permitted under
paragraph (o) of the definition of “Permitted
Indebtedness” is not reduced to €60,000,000 or less on any
Settlement Date or within 3 Business Days thereafter;


 


(b)           Clause 20 (Financial
Information), Clause 21.5 (Notification of Defaults),
Clause 21.8 (Conduct of Business),
Clause 21.21 (Purchase Price),
Clause 22.1 (Negative Pledge),
Clause 22.2 (Loans and Guarantees),
Clause 22.3 (Indebtedness), Clause 22.4 (Hedging Transactions) or Clause 22.14 (A2 Anti-Layering) and such failure, if capable of remedy is
not remedied within 15 days after the earlier of the date on which the relevant
Obligor becomes aware of such breach and the date on which the relevant Obligor
receives written notice from the Facility Agent to remedy such breach;


 


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(c)           Clause 21.11 (Security Preservation)
or Clause 22.7 (Acquisitions)
and, if such failure is capable of remedy, the relevant Obligor has not within
seven days of the earlier of the date on which it became aware of such breach
and the date on which it receives written notice from the Facility Agent to
remedy such breach, taken all steps reasonably necessary to remedy such failure
or such failure is not, within 21 days, thereafter duly remedied; or


 


(d)           any other obligation expressed to be assumed
by it in the Finance Documents (other than any obligation referred to in
Clause 23.1 (Failure to Pay) or 23.2 (Misrepresentation) and such failure, if capable of remedy,
is not remedied within 30 days after the earlier of the date on which such
Obligor becomes aware of such failure and the date on which such Obligor
receives written notice from the Facility Agent to remedy such failure.


 


23.4         Cross Default


 


(a)           Any Financial Indebtedness (other than
Financial Indebtedness under the Brazilian B Bridge Facilities and Financial
Indebtedness of the Italian Borrower under the Italian Non-Guaranteed Tranches)
of any member of the Group or any other Obligor is not paid when due or within
any originally applicable grace period, any Financial Indebtedness (other than
Financial Indebtedness under the Brazilian B Bridge Facilities and Financial
Indebtedness of the Italian Borrower under the Italian Non-Guaranteed
Tranches)) of any member of the Group or any other Obligor is by reason of an
event of default (howsoever described) declared to be or otherwise becomes due
and payable prior to its specified maturity, or any creditor of any member of
the Group or any other Obligor becomes entitled (having given any relevant
notice and any relevant grace period having elapsed) by reason of a default or
an event of default (howsoever described) to declare any Financial Indebtedness
(other than Financial Indebtedness under the Brazilian B Bridge Facilities and
Financial Indebtedness of the Italian Borrower under the Italian Non-Guaranteed
Tranches) of any member of the Group or any other Obligor due and payable prior
to its specified maturity, provided that it shall not constitute an Event of
Default if the aggregate amount of all such Financial Indebtedness at any one
time outstanding is less than €15,000,000 (or its equivalent) and provided
further that any such Financial Indebtedness in relation to the relevant member
of the Group or other Obligor as the case may be, is contesting its liability
in good faith by appropriate proceedings shall be excluded for the purposes of
this Clause 23.4 (Cross Default).


 


(b)           Any Financial Indebtedness of the Target or
any of its subsidiaries under the U.S. ABL Credit Agreement or the U.S. LBO
Credit Agreement (“US Financial Indebtedness”)
is not paid when due or within any originally applicable grace period, any US
Financial Indebtedness of the Target or any of its subsidiaries is by reason of
any event of default (howsoever described) declared to be or otherwise becomes
due and payable prior to its specified maturity, or any creditor of the Target
or any of its subsidiaries becomes entitled (having given any relevant notice
and any relevant grace period having elapsed) by reason of a default of an
event of default (howsoever described) to declare any US Financial Indebtedness
of the Target or any of its subsidiaries due and payable prior to its specified
maturity, provided that it


 


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shall not constitute an Event of Default if the aggregate amount of all
such US Financial Indebtedness at any one time outstanding is less than
USD60,000,000 (or its equivalent) and provided further that any such Financial
Indebtedness in relation to which the Target or the relevant subsidiary as the
case may be, is contesting its liability in good faith by appropriate
proceedings shall be excluded for the purposes of this Clause 23.4 (Cross-Default).


 


23.5         Insolvency and Rescheduling


 


Subject as provided in
Clause 23.17 (Non-Material Subsidiaries), any
Obligor or Material Subsidiary, is insolvent or unable to pay its debts as they
fall due (or in respect of any French Obligor, is in a state of “cessation des
paiements” and in respect of any Spanish Obligor, is in a state of “concurso”,
as referred to under the Spanish Insolvency Act), commences negotiations with
any one or more of its creditors with a view to the general readjustment or
rescheduling of its indebtedness or any similar concept in any relevant
jurisdiction (including, in respect of any French Obligor, any proceeding
referred to under “LIVRE VI” of the French Commercial Code) or makes a general
assignment for the benefit of or a composition with its creditors (whether by
way of a voluntary arrangement, scheme of arrangement or otherwise) or any
similar concept in any relevant jurisdiction or, if in respect of any Spanish
Obligor, it cannot (or foresees that it will not be able to) fulfil on a
regular and timely basis its obligations as they become enforceable.


 


23.6         Winding-up


 


Subject as provided in
Clause 23.17 (Non-Material Subsidiaries), any
Obligor or Material Subsidiary takes any corporate action or other steps are
taken or legal proceedings are started to adjudicate it a bankrupt or insolvent
or for its liquidation, winding-up, dissolution, administration (including, in
respect of any French Obligor, any proceeding referred to under “LIVRE VI” of
the French Commercial Code), re-organisation, bankruptcy, relief or composition
of its debts, moratorium of payments, division or statutory merger (whether by
way of voluntary arrangement or compromise, scheme of arrangement or otherwise)
or for the appointment of a liquidator, receiver, receiver and manager,
administrator, administrative receiver, conservator, custodian, trustee or
similar officer of it (including any administrateur judiciaire, administrateur
provisoire, mandataire ad hoc, conciliateur or mandataire liquidateur and any
“administradores concursales” appointed pursuant to a “declaración de
concurso”, as referred to under the Spanish Insolvency Act) or of any material
part or all of its revenues and assets, unless any such legal proceeding or
appointment is frivolous or vexatious and is dismissed, stayed or discharged
within 21 days of its commencement (other than any transaction permitted
by Clause 22.10 (Mergers)) or
any event occurs which under the laws of any jurisdiction has a similar or
analogous effect (including, without limitation, any member of the Group or,
any other Obligor commences a voluntary case concerning itself under Title 11
of the United States Code entitled “Bankruptcy,” as now or hereafter in effect,
or any successor thereto (the “Bankruptcy Code”),
an involuntary case is commenced against any member of the Group or any other
Obligor and the petition is not controverted within 30 days after service of
summons, or is not dismissed within 60 days, after commencement of the
case or a custodian (as defined in the Bankruptcy


 


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Code) is appointed for,
or takes charge of, all or substantially all of the property of any member of
the Group, any Obligor or Holdco).


 


23.7         Execution or Distress


 


Any execution,
attachment, sequestration or distress is levied against, or an encumbrancer
takes possession of, the whole or any part (the value of which exceeds
€15,000,000 (or its equivalent)) of, the property, undertaking or assets, of
any member of the Group or any Obligor or any event occurs which under the laws
of any jurisdiction has a similar or analogous effect, and is not discharged
within 21 days.


 


23.8         Failure to Comply with Final Judgment


 


Any member of the Group
or any Obligor fails to comply with or pay any sum due from it under any final
judgment or any final order made or given by any court of competent
jurisdiction involving an amount (net of any insurance or indemnity payment in
relation thereto) in excess of €15,000,000 (or its equivalent) and such order
shall not have been discharged, stayed or appealed against within 30 days of
the making of such order.


 


23.9         Governmental Intervention


 


Subject as provided in
Clause 23.17 (Non-material Subsidiaries),
by or under the authority of any government, all or a majority of the issued
shares of any Obligor or the whole or any part (the book value of which is
twenty per cent. or more of the book value of the whole) of the revenues or
assets of any Obligor is seized, nationalised, expropriated or compulsorily
acquired.


 


23.10       Repudiation and Rescission


 


An Obligor rescinds or
purports to rescind or repudiates or purports to repudiate a Finance Document
or any of the Security or evidences an intention to rescind or repudiate a
Finance Document or any Security, in each case in writing.


 


23.11       Unlawfulness and Invalidity


 


Subject as provided in
Clause 23.17 (Non-material Subsidiaries), at
any time or, in the case of the Acquisition Agreement, at any time prior to the
last date of the Certain Funds Period, it is or becomes unlawful for an Obligor
or, in the case of the Intercreditor Deed, a member of the Group to perform or
comply with any or all of its material obligations under the Finance Documents
or the Acquisition Agreement or any of the material obligations of an Obligor
or such member thereunder are not or cease to be legal, valid, binding and
enforceable in accordance with the terms thereof or any Security created or
expressed to be created or evidenced by the Security Documents ceases to be
effective (except as otherwise permitted by the Finance Documents) or any
subordination created under the Intercreditor Deed is or becomes unlawful,
subject in each case to applicable bankruptcy or insolvency laws or other
similar laws affecting creditors’ rights generally and general equitable
principles and any other reservations made in the Legal Opinions.


 


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23.12       Intercreditor Deed


 


(a)           Any party to the Intercreditor Deed (other
than a Finance Party and a Finance Party (as defined in each B Bridge Facility
Agreement)) fails to comply with the provisions of, or does not perform its
obligations under, the Intercreditor Deed; or


 


(b)           a representation or warranty given by that
party in the Intercreditor Deed is incorrect in any material respect,


 


and, if the
non-compliance or circumstances giving rise to the misrepresentation are
capable of remedy, it is not remedied within 10 Business Days of the earlier of
the Facility Agent giving notice to that party or that party becoming aware of
the non-compliance or misrepresentation.


 


23.13       The Group’s Business


 


Any Obligor ceases to
carry on business (save pursuant to a Permitted Disposal or a transaction permitted
by Clause 22.10 (Mergers)).


 


23.14       Material Adverse Change


 


Any event or circumstance
occurs which would reasonably be expected to have a Material Adverse Effect.


 


23.15       Auditor’s Qualification


 


The Auditors of the
Parent qualify their annual audit report to the consolidated accounts of the
Group in a manner which could reasonably be expected to be materially adverse
to the interests of the Banks in the context of the Facilities.


 


23.16       Acceleration and Cancellation


 


Upon the occurrence of an
Event of Default and at any time thereafter whilst the Event of Default is
subsisting, the Facility Agent may (and, if so instructed by an Instructing
Group, shall) by notice to the Parent:


 


(a)           declare all or any part of the Advances to be
immediately due and payable (whereupon the same shall become so payable
together with accrued interest thereon and any other sums then owed by the
Borrowers hereunder); and/or


 


(b)           declare all or any part of the Advances to be
due and payable on demand of the Facility Agent; and/or


 


(c)           require the C Borrowers to procure that the
liabilities of each of the Banks and the L/C Issuers under each Letter of
Credit are promptly reduced to zero and/or provide Cash Collateral for each
Letter of Credit in an amount specified by the Facility Agent (whereupon the
Borrowers shall do so); and/or


 


(d)           declare that any unutilised portion of the
Facilities shall be cancelled, whereupon the same shall be cancelled and the
Available Commitment of each Bank shall be reduced to zero.


 


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23.17       Non-material Subsidiaries


 


In the event that any of
the circumstances described in any of Clause 23.5 (Insolvency
and Rescheduling), Clause 23.6 (Winding-up),
Clause 23.9 (Governmental Intervention) or
Clause 23.11 (Unlawfulness and Invalidity)
occurs in relation to any subsidiary of the Parent which is not an Obligor such
circumstances shall not constitute an Event of Default unless such
circumstances shall have arisen in relation to one or more such subsidiaries
which in aggregate have more than 5 per cent. of EBITDA or net assets or
turnover of the Group, calculated on a consolidated basis.  Compliance with this condition shall be
determined by reference to the latest audited financial statements of the relevant
subsidiaries (consolidated in the case of an Obligor which itself has
subsidiaries) if audited accounts are prepared for such subsidiaries (or
unaudited accounts if they are not) and the latest audited consolidated
financial statements of the Group.


 


23.18       Certain Funds Period


 


To ensure that Holdco or
any relevant affiliate has sufficient resources available to fulfil its
obligations under the Acquisition Agreement, during the Certain Funds Period
(notwithstanding any provision in this Agreement to the contrary) unless a
Certain Funds Event of Default has occurred and is continuing, none of the
Finance Parties shall be entitled to:


 


(a)           cancel any of its Commitments under the
Facility;


 


(b)           rescind, terminate or cancel this Agreement
or the Facility;


 


(c)           require repayment of any Advance under
Facility;


 


(d)           refuse to participate in the making of any
Advance under the Facility; or


 


(e)           exercise any right of set-off or counterclaim
in respect of any Advance under the Facility;


 


provided that,
immediately upon the expiry of the Certain Funds Period, all such rights,
remedies and entitlements shall be available to the Finance Parties
notwithstanding that they may not have been used or been available for use
during the Certain Funds Period.


 


23.19       Advances Due on Demand


 


If, pursuant to
Clause 23.16 (Acceleration and
Cancellation), the Facility Agent declares all or any part of the
Advances to be due and payable on demand of the Facility Agent, then, and at
any time thereafter, the Facility Agent may (and, if so instructed by an
Instructing Group, shall) by notice to the Parent:


 


(a)           require repayment of all or such part of the
Advances or any other payment due hereunder on such date as it may specify in
such notice (whereupon the same shall become due and payable on the date
specified together with accrued interest thereon and any other sums then owed
by the Borrowers hereunder) or withdraw its declaration with effect from such
date as it may specify; and/or


 


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(b)           select as the duration of any Interest Period
or Term of an Advance which begins whilst such declaration remains in effect a
period of six months or less.


 


23.20       Exercise of Sale
Right


 


(a)           If any Event of Default shall occur and be
continuing, the Canadian Permitted Bank may, in its sole and absolute
discretion, exercise the Canadian Sale Right in relation to any Facility by
delivering a notice (a “Notice of Exercise of
Sale Right”) to the relevant Non-Canadian Banks; provided, that upon
the occurrence any Event of Default under Clauses 23.5 (Insolvency
and Rescheduling) or 23.6 (Winding-up),
such Notice of Exercise of Sale Right shall be deemed given in relation to each
Facility under which a Canadian Advance has been made.  Upon issuance of such notice, the Canadian
Permitted Bank shall promptly give notice of the contents thereof to the
relevant Canadian Borrowers.  Each Notice
of Exercise of Sale Right shall automatically, without any further action on
the part of the Canadian Permitted Bank, the Non-Canadian Banks or any other
person, require the relevant Non-Canadian Banks to immediately and forthwith
purchase and assume from the Canadian Permitted Bank an undivided ownership
interest in the Canadian Outstandings and Commitments under the A1 Canadian
Dollar Tranche, the A2 Canadian Dollar Tranche and any A Swingline Facility in
an amount equal to the Non-Canadian Bank’s Canadian Pro-Rata Share of such
Canadian Outstandings, and Commitments. 
The purchase price to be paid by such Non-Canadian Bank for such
undivided ownership interest shall be an amount equal to the Non-Canadian
Bank’s Canadian Pro-Rata Share of the Canadian Outstandings held by the
Canadian Permitted Bank.  Each such
Non-Canadian Bank shall promptly transfer to the Canadian Permitted Bank, in
immediately available funds, the amount of such purchase price.


 


(b)           Each Non-Canadian Bank’s obligation to
purchase and assume the Canadian Outstandings and Commitments referred to in
this Clause 23.20 in respect of which a Canadian Sale Right has been exercised
shall be absolute and unconditional and shall not be affected by any
circumstances, including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Non-Canadian Bank or any Borrower
may have against the Canadian Permitted Bank or any Non-Canadian Bank or any
other person for any reason whatsoever, (ii) the occurrence or continuance of a
Potential Event of Default or an Event of Default, (iii) any adverse change in
the condition (financial or otherwise) of any Borrower, (iv) any breach of this
Agreement or any other Finance Document by an Obligor, any subsidiary of the
Parent or the Canadian Permitted Bank or any Non-Canadian Bank or (v) any other
circumstances, happening or event whatsoever, whether or not similar to any of
the foregoing.


 


(c)           The relevant Non-Canadian Banks’ pro rata
share of all payments of interest and principal, and any other amounts required
to be paid with respect to any Canadian Advances in relation to any Facility
accruing and received after the purchase of such Outstandings pursuant to this
Clause 23.20 shall be paid to such Non-Canadian Banks.


 


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23.21       U.S. Bankruptcy


 


Notwithstanding
Clause 23.16 (Acceleration and Cancellation)
upon the actual or deemed entry of an order for relief under the U.S.
Bankruptcy Code with respect to any US Obligor, the Facilities shall cease to
be available to such US Obligor and all Advances outstanding to such US Obligor
shall become immediately due and payable.


 


23.22       Clean-Up Period


 


For the period from the
Closing Date until the Clean-Up Date, if any event occurs which would, but for
this Clause 23.22 have constituted an Event of Default under any of
Clause 23.2 (Misrepresentation), Clause 23.3
(Obligations), Clause 23.4 (Cross Default), Clause 23.7 (Execution or
Distress) and Clause 23.8 (Failure to comply with
Final Judgement) will not constitute an Event of Default if such
event relates exclusively to the Target Group if and for so long as the
circumstances giving rise to the relevant Event of Default:


 


(a)           do not have a Material Adverse Effect; and


 


(b)           have not been procured by or approved by the
Parent,


 


and provided that if the
relevant circumstances are continuing after the Clean-Up Date there shall be an
Event of Default.


 


24.          GUARANTEE AND INDEMNITY


 


24.1         Guarantee and Indemnity


 


(a)           Subject to Clause 24.9 (French
Guarantors) to Clause 24.19 (Other Guarantors)
inclusive, each Guarantor irrevocably and unconditionally and jointly and severally:


 


(i)          guarantees to each Finance Party the due and
punctual observance and performance of the terms, conditions and covenants
under this Agreement on the part of each Borrower or any Designated Obligor
(other than an Excluded Obligor) of the Guaranteed Liabilities, including the
payment of the Guaranteed Liabilities, and agrees to pay from time to time on
demand of the Facility Agent any and every sum or sums of money which is at any
time payable to any Finance Party in respect of the Guaranteed Liabilities; and


 


(ii)         agrees as a primary obligation to indemnify
each Finance Party from time to time on demand of the Facility Agent from and
against any loss incurred by any Finance Party as a result of any of the
obligations of any Borrower or any Designated Obligor (other than an Excluded
Obligor) under or pursuant to the Finance Documents being or becoming void,
voidable, unenforceable or ineffective as against such Borrower or Designated
Obligor for any reason whatsoever, whether or not known to any Finance Party or
any other person, the amount of such loss being the amount which the person or
persons suffering it


 


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would otherwise have been entitled to recover from such Borrower or
Designated Obligor,


 


provided that (i) no
Guarantor shall incur any liability under this Clause 24, in respect of the
obligations of any company of which it is a subsidiary or any loss incurred by
any Finance Party as a result of any such obligation being or becoming void,
voidable, unenforceable or ineffective as aforesaid (ii) no Guarantor shall
incur any liability under this Clause 24, in respect of any obligations of any
Italian Borrower under any Italian Non-Guaranteed Tranche, and (iii) no
Guarantor (other than a Swiss Guarantor) shall incur any liability under this
Clause 24.1 in relation to any interest payment or any repayment of principal
payable by a Swiss Borrower under this Agreement in excess of the maximum
amounts of principal and interest permitted to be paid to related parties of a
Swiss Borrower pursuant to the Swiss Circulars.


 


(b)           For the purposes of this Clause 24 (Guarantee and Indemnity):


 


(i)          “Guaranteed
Liabilities” means any and every sum or sums of money which any
Borrower or Designated Obligor other than an Excluded Obligor is at any time
liable to pay to any Finance Party under or pursuant to the Finance Documents
other than under the Italian Non-Guaranteed Tranches or any of them and which
has become due and payable but has not been paid at the time the demand of
payment thereof is made.


 


(ii)         “Original
Excluded Obligors” means:


 


(a)           Hertz
UK Limited;


 


(b)           Hertz
de Espana S.A.;


 


(c)           Hertz
Alquiler de Maquinaria S.A.;


 


(d)           Stuurgroep
Holland BV; and


 


(e)           Hertz
Australia Pty. Limited.


 


(iii)        “Excluded
Obligors” means the Original Excluded Obligors and any other
Designated Obligor or Additional Borrower which the Facility Agent and the
Parent agree in writing to designate as such upon such person becoming an
Designated Obligor or an Additional Borrower as the case may be and “Excluded
Obligor” means any one of them.


 


(iv)       “Swiss
Circulars” means (a) Circular Letter Nr. 6 dated 6 June 1997, (b)
Circular Letter dated 26 January 2005 with respect to the relevant interest
rates applicable to loans granted in Swiss francs, and (c) Circular Letter
dated 14 February 2005 with respect to the relevant interest rates applicable
to loans granted in foreign currencies each issued by the Swiss Federal Tax
Administration and each as amended from time to time.


 


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24.2         Additional Security


 


The obligations of each
Guarantor herein contained shall be in addition to and independent of every
other security which any Finance Party may at any time hold in respect of any
Obligor’s obligations under the Finance Documents.


 


24.3         Continuing Obligations


 


The obligations of each
Guarantor herein contained shall constitute and be continuing obligations
notwithstanding any settlement of account or other matter or thing whatsoever
and shall not be considered satisfied by any intermediate payment or
satisfaction of all or any of the obligations of the Borrowers under the
Finance Documents and shall continue in full force and effect until final
payment in full of all amounts owing by the Borrowers thereunder and total
satisfaction of all the Obligors’ actual and contingent obligations under the
Finance Documents.


 


24.4         Obligations not Discharged


 


Neither the obligations
of each Guarantor herein contained nor the rights, powers and remedies conferred
in respect of each Guarantor upon any Finance Party by the Finance Documents or
by law shall be discharged, impaired or otherwise affected by:


 


(a)           the winding-up, dissolution, administration
or re-organisation or any analogous event in any Borrower’s jurisdiction of
incorporation of any Borrower or any other person or any change in its status,
function, control or ownership;


 


(b)           any of the obligations of the Borrowers or
any other person under the Finance Documents being or becoming illegal, invalid,
unenforceable or ineffective in any respect;


 


(c)           time or other indulgence being granted or
agreed to be granted to the Borrowers or any other Obligor in respect of its
obligations under the Finance Documents;


 


(d)           any amendment to, or any variation, waiver or
release of, any obligation of the Borrowers or any other Obligor under the
Finance Documents;


 


(e)           any failure to take, or fully to take, any
security contemplated hereby or otherwise agreed to be taken in respect of the
obligations of the Borrowers or any other Obligor under the Finance Documents;


 


(f)            any failure to realise or fully to realise
the value of, or any release, discharge, exchange or substitution of, any
Security taken in respect of the obligations of the Borrowers or any other Obligor
under the Finance Documents; or


 


(g)           any other act, event or omission which, but
for this Clause 24.4 (Obligations not Discharged),
might operate to discharge, impair or otherwise affect any of the obligations
of each Guarantor herein contained or any of the rights, powers or remedies
conferred upon any of the Finance Parties by the Finance Documents or by law.


 


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24.5         Settlement Conditional


 


Any settlement or
discharge between an Obligor and any of the Finance Parties shall be
conditional upon no Security or payment to any Finance Party by an Obligor or
any other person on behalf of an Obligor being avoided or reduced by virtue of
any laws relating to bankruptcy, insolvency, liquidation or similar laws of
general application and, if any such Security or payment is so avoided or
reduced, each Finance Party shall be entitled to recover the value or amount of
such Security or payment from such Obligor subsequently as if such settlement
or discharge had not occurred.


 


24.6         Exercise of Rights


 


No Finance Party shall be
obliged before exercising any of the rights, powers or remedies conferred upon
it in respect of any Guarantor by the Finance Documents or by law to:


 


(a)           make any demand of any Obligor;


 


(b)           take any action or obtain judgment in any
court against any Obligor;


 


(c)           make or file any claim or proof in a winding-up
or dissolution of any Obligor; or


 


(d)           enforce or seek to enforce any other Security
taken in respect of any of the obligations of any Obligor under the Finance
Documents.


 


24.7         Deferral of Guarantor’s Rights


 


Each of the Guarantors
agrees that, so long as any amounts are or may be owed by the Borrowers under
the Finance Documents or the Borrowers are under any actual or contingent
obligations under the Finance Documents, such Guarantor shall not exercise any
rights which it may at any time have by reason of performance by it of its
obligations under the Finance Documents to:


 


(a)           be indemnified by any Borrower; and/or


 


(b)           claim any contribution from any other
guarantor of the obligations of any Borrower under the Finance Documents;
and/or


 


(c)           take the benefit (in whole or in part and
whether by way of subrogation or otherwise) of any rights of the Finance
Parties under the Finance Documents.


 


24.8         Suspense Accounts


 


All moneys received,
recovered or realised by a Finance Party by virtue of Clause 24 (Guarantee and Indemnity) may, in that Finance Party’s
reasonable discretion, be credited to a suspense or impersonal account and may
be held in such account for so long as such Finance Party thinks fit pending
the application from time to time (as such Finance Party may think fit) of such
moneys in or towards the payment and discharge of any amounts owing by the
Borrowers to such Finance Party under the Finance Documents.


 


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24.9         French Guarantors


 


(a)           The obligations of each Guarantor
incorporated in France (a “French Guarantor”)
under this Clause 24 (Guarantee and Indemnity)
shall not extend to cover any amounts the guaranteeing of which would (i)
breach the prohibition of financial assistance as defined in article L.225-216
of the French Commercial Code for the financing or refinancing of the
acquisition of the shares of such French Guarantor, or (ii) constitute a misuse
of corporate assets (abus de biens sociaux)
of such French Guarantor as defined in article L.242-3 and in article L.242-6
of the French Commercial Code, in the case of either paragraph (i) or
(ii), or any other regulation to the same effect as interpreted from time to
time by French courts.


 


(b)           In order for the condition set out in
Clause 24.9(a)(ii) to be considered as satisfied based on current French
case law, the obligations of any French Guarantor under this Clause 24 (Guarantee and Indemnity) shall be limited to an amount not
exceeding the lesser of:


 


(i)            an amount equal to the amount borrowed by
such French Guarantor as Borrower under this Agreement; or


 


(ii)           85% of the Net Asset Value of that French
Guarantor calculated and certified by the statutory auditors on the basis of
the last audited financial statements available at the date upon which such
French Guarantor accedes to this Agreement as a Guarantor or at the date demand
is made under this Clause 24 (Guarantee and Indemnity)
(whichever is the higher).


 


For the purposes of this
Clause 24 (Guarantee and Indemnity), “Net Asset Value” means the capitaux
propres (as defined in article 22 of the French Decree no. 83-1020
of 29 November 1983).


 


For the avoidance of
doubt, it is acknowledged that any French Guarantors or Guarantors are not
acting jointly and severally and are not between themselves, co-débiteurs solidaires as to their obligations pursuant to
the guarantees and indemnities given pursuant to this Clause 24 (Guarantee and Indemnity).


 


24.10       German Guarantors


 


(a)           (i)            Each Finance Party agrees that its right to
enforce any guarantee or indemnity granted by a Guarantor incorporated or
established in Germany which is constituted in the form of a GmbH or a GmbH
& Co. KG (a “Relevant German Obligor”)
shall, if and to the extent that such guarantee or indemnity secures
liabilities of any shareholder of such Relevant German Obligor or any such
shareholder’s affiliated company (verbundenes Unternehmen)
within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (other than such Relevant German Obligor’s
subsidiaries), at all times be limited to an amount equal to the Relevant
German Obligor’s, and, in the case of a GmbH & Co. KG, such Relevant German
Obligor’s general partner’s, net assets (as defined in paragraph (ii) below).


 


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(ii)           For
the purposes of this Clause 24.10, net assets shall be calculated by taking
into account the captions reflected in section 266 (2) A, B and C of the German
Commercial Code (Handelsgesetzbuch) less the sum
of:


 


(A)          the
Relevant German Obligor’s, or, in the case of a GmbH & Co. KG, such
Relevant German Obligor’s general partner’s, liabilities (the calculation of
which shall take into account the captions reflected in section 266 (3) B, C
and D of the German Commercial Code);


 


(B)           the
registered share capital (Stammkapital)
of the Relevant German Obligor or, in the case of a GmbH & Co. KG, such
Relevant German Obligor’s general partner’s registered share capital; and


 


(C)           the
amount of any intercompany loan or loans granted by the Relevant German Obligor
to its parent or sister companies.


 


(iii)          For
the purpose of the calculation of the enforceable amount, the Relevant German
Obligor, or in the case of a GmbH & Co. KG, such Relevant German Obligor’s
general partner will, within 30 (thirty) Business Days after the Facility Agent
has made a demand for payment under the guarantee or indemnity pursuant to
Clause 24 (Guarantee and Indemnity), deliver to the
Facility Agent an unaudited up-to-date balance sheet of the Relevant German
Obligor, and, in the case of a GmbH & Co. KG, such Relevant German
Obligor’s general partner, drawn up by its auditors, which shows the value of
the net assets.  The balance sheet and
determination of net assets shall be prepared in accordance with accounting
principles pursuant to the German Commercial Code (Handelsgesetzbuch)
and be based on the same principles that were applied when establishing the
immediately preceding year’s balance sheet.


 


(iv)          If
the Relevant German Obligor fails to deliver a copy of its balance sheet or, in
the case of a GmbH & Co. KG, such Relevant German Obligor’s general
partner’s balance sheet, in accordance with paragraph (iii), the Facility Agent
shall be entitled to enforce the guarantee or indemnity without
limitation.  Following such enforcement,
the Facility Agent agrees to release proceeds from the enforcement of the
guarantee or indemnity if and to the extent that it is a guarantee or indemnity
which secures liabilities of any shareholder of such Relevant German Obligor or
any such shareholder’s affiliated company (verbundenes Unternehmen)
within the meaning of section 15 of the German Stock Corporation Act
(other than such Relevant German Obligor’s subsidiaries) and that such
enforcement or the application of proceeds from such enforcement towards the
secured obligations would otherwise lead to the situation that the Relevant
German Obligor, or, in the case of a GmbH & Co. KG, such Relevant German
Obligor’s general partner, would not have sufficient net assets, as determined
in accordance with a balance sheet drawn up as foreseen


 


190

















 


under the paragraph (iii)
above, to maintain its registered share capital (Stammkapital).


 


(v)           For
the purposes of the calculation of the enforceable amount specified in
paragraph (ii) above and the amount to be released specified in paragraph (ii)
above, the following balance sheet items shall be adjusted as follows:


 


(A)          the
amount of any increase of registered share capital out of retained earnings (Kapitalerhöhung aus Gesellschaftsmitteln) and, in the case
of a GmbH & Co. KG, the registered share capital of the general partner
after the date hereof that has been effected without the prior written consent
of the Facility Agent shall be deducted from the registered share capital and,
in the case of GmbH & Co. KG, the deduction shall take place from the
registered share capital of the general partner; and


 


(B)           loans
and other contractual obligations incurred in violation of the provisions of
the Finance Documents to which the Relevant German Obligor is a party, shall be
disregarded.


 


(vi)          Furthermore,
if and to the extent legally permissible each such Relevant German Obligor, or,
in the case of a GmbH & Co. KG, such Relevant German Obligor’s general
partner, shall, in a situation where it does not have sufficient net assets to
maintain its registered share capital and where a Finance Party would (but for
this Clause 24.10) be entitled and is seeking to enforce the guarantee or
indemnity pursuant to Clause 24 (Guarantee and Indemnity),
realise any and all of its assets that are shown in the balance sheet with a
book value (Buchwert) which is significantly lower
than the realisable market value of such assets and to the extent such assets
are not necessary for the Relevant German Obligor’s, or, in the case of a GmbH
& Co. KG, such Relevant German Obligor’s general partner’s, business or
operations (nicht betriebsnotwendig).


 


(vii)         The
limitations set out in this Clause 24.10 shall not apply to a guarantee or
indemnity granted by a Relevant German Obligor in relation to any amounts
borrowed under this Agreement to the extent the proceeds of such borrowing are
on-lent to it or any of its subsidiaries from time to time and have not been
repaid at the time of the enforcement of the guarantee or indemnity.


 


(b)           Any guarantee or indemnity shall further not
be enforced to the extent that the Relevant German Obligor or, in the case of a
GmbH & Co. KG, such Relevant German Obligor’s general partner, demonstrates
in reasonable detail that such enforcement would lead to a breach of the duty
of care owing by the relevant shareholders vis-à-vis the respective company (Gebot der Rücksichtnahme auf die Eigenbelange der Gesellschaft)
and of the prohibition of insolvency-causing intervention (Verbot des
existenzvernichtenden Eingriffs), as developed by the recent
jurisdiction (in particular BGH II ZR 178/99 Bremer “Vulkan”, BGH ZR 196/00 and
BGH II ZR 300/00 “KBV”), of the


 


191





















 


Federal Supreme Court (Bundesgerichtshof),
caused for example, as far as this would be within the scope of the cited court
rulings, if the entering into the guarantee or indemnity and its enforcement
results in the illiquidity (Zahlungsunfähigkeit)
of the Relevant German Obligor or, in the case of a GmbH & Co. KG, such
Relevant German Obligor’s general partner. 
The Facility Agent shall be obliged to retransfer proceeds from such
enforcement to the extent that the Relevant German Obligor demonstrates in
reasonable detail that the enforcement of this Agreement violated the rules of
the cited Federal Supreme Court rulings. 
Any claim for damages (excluding, for the avoidance of doubt, any claim
relating to unjust enrichment) by the relevant German Obligor or the Borrowers
against the Banks, the Facility Agent, the Global Coordinator and/or the
Arrangers and Joint Bookrunners in connection with a potential existence
threatening intrusion shall be excluded.


 


(c)           The Facility Agent shall be obliged to
retransfer proceeds from such enforcement if any of the guarantee or indemnity
has been enforced even though the enforcement was excluded in accordance with this
paragraph (c).


 


24.11       Belgian Guarantors


 


Notwithstanding any other
provision of this Agreement, the amount payable or enforceable under or
pursuant to Clause 24 (Guarantee and Indemnity)
by or against any Guarantor incorporated in Belgium (a “Belgian Guarantor”)
shall not include any liability which would constitute unlawful financial
assistance (as determined in Article 629 of the Belgian Company Code). Further,
the maximum amount payable or enforceable under or pursuant to Clause 24 (Guarantee and Indemnity) by or against any Belgian Guarantor
shall in all circumstances be limited to an amount equal to the greater of the
following amounts:


 


(a)           any amounts (principal plus accrued interest
thereon, commissions, costs and fees) directly or indirectly made available to
the Belgian Guarantor under this Agreement and which have not yet been repaid
by the Belgian Guarantor at the time of the enforcement of the guarantee under
Clause 24 (Guarantee and Indemnity) or of the
relevant Security Document; or


 


(b)           90 per cent. of the Net Assets (as defined
below) of the Belgian Guarantor calculated and certified by the statutory
auditors of the Belgian Guarantor on the basis of the Latest Accounts available
at the time of the enforcement of the guarantee under Clause 24 (Guarantee and Indemnity) or of the relevant Security
Document.


 


(c)           For the purposes of this Clause 24.11 “Net Assets” of the Belgian Guarantor shall
have the meaning defined in Article 617 of the Belgian Company Code,


 


it being understood that,
for the purpose of this Clause 24.11, in the event that a Belgian Guarantor
makes a repayment in its capacity as Borrower under the Finance Documents, the
guarantee of such Belgian Guarantor under Clause 24 will be reduced pro rata,
without however being lower than 90% of its Net Assets.


 


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24.12       UK Guarantors


 


The guarantee granted by
any Guarantor incorporated under the laws of England and Wales under or
pursuant to Clause 24.1 (Guarantee and Indemnity)
shall not apply to any liability to the extent that it would result in the
relevant guarantee constituting unlawful financial assistance within the
meaning of Section 151 of the Companies Act 1985.


 


24.13       Australian Guarantors


 


The guarantee granted by
any Guarantor incorporated under the laws of the Commonwealth of Australia
under or pursuant to Clause 24 (Guarantee and Indemnity)
shall not apply to any liability to the extent that it would result in the
relevant guarantee constituting financial assistance which was not exempted or
approved under sections 260A, 260B and 260C of the Australian Corporations Act
2001 (Cth).


 


24.14       Italian Guarantors


 


(a)           Notwithstanding the foregoing and anything to
the contrary in the Finance Documents, the obligations under the guarantee and
the indemnity granted under Clause 24.1 (Guarantee and Indemnity)
by any Guarantor incorporated under the laws of Italy (an “Italian Guarantor”) shall not extend to:


 


(i)            cover any amounts the guaranteeing or
indemnification of which would breach the prohibition of financial assistance
as defined in Article 2358 of the Italian Civil Code for the financing or
refinancing of the acquisition of the shares of such Italian Guarantor;


 


(ii)           cover any amounts the guaranteeing or
indemnification of which would constitute an unfaithful behaviour of the
directors or general managers of the Italian Guarantor under Article 2634 of
the Italian Civil Code (infedeltà
patrimoniale) or expose the directors of the Italian Guarantor to
liability under article 2392 of the Italian Civil Code (responsabilità verso la società); and


 


(iii)          guarantee and indemnify any obligations of
any person which are incurred for the purpose of the Acquisition or for the
acquisition of Target and of its Group.


 


(b)           Notwithstanding the foregoing and anything to
the contrary in the Finance Documents, but subject to paragraph (a) above,
Italian Opco shall guarantee and indemnify only (A) the obligation of Italian
Fleetco as borrower under the Finance Documents (except for any obligation under
the Italian Non-Guaranteed Tranches) and (B) the obligations of any Borrower
(other than Italian Fleetco) under the Finance Documents as borrower, provided
that the obligations of Italian Opco under this Clause 24.1 (Guarantee and Indemnity) shall not exceed an amount in EUR
equal to the net worth (patrimonio netto)
of Italian Fleetco at the time of
enforcement by the Finance Parties of the guarantee and indemnity under this
Clause 24.1 (Guarantee and Indemnity) and, in
any event, shall not exceed an amount equal to EUR 200.000.000.


 


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(c)           Subject to paragraph (a) above, other Italian
Guarantors, if any, will be liable towards the Finance Parties exclusively up
to the aggregate amount of EUR indicated in the relevant Accession Memorandum,
also taking into account any relevant corporate benefit of such Italian
Guarantor.


 


24.15       Spanish Guarantors


 


Any guarantee, indemnity,
obligation and liability granted or assumed pursuant to Clause 24 (Guarantee and Indemnity) and any Security constituted by or
arising under any Security Document granted in accordance with the terms set
out in Schedule 18 (Security Principles)
by any Guarantor incorporated in Spain shall not extend to any obligation:


 


(a)           to the extent that such guarantee, indemnity,
obligation, liability or Security would constitute unlawful financial
assistance within the meaning of Article 81 of Royal Legislative Decree
1564/1989 dated 22 December on Open Limited Liability Companies (Real Decreto Legislativo 1564/1989, de 22 de diciembre, por el que se
aprueba el Texto Refundido de la Ley de Sociedades Anónimas) or
Article 40.5 of Spanish Law 2/1995 dated 23 March on Closed Limited Liability
Companies (Lev 2/1995, de 23 de marzo, de Sociedades de Responsabilidad
Limitada);


 


(b)           in the case of a Guarantor incorporated in
Spain as a Closed Limited Liability Company, in respect of any issuance of
notes, bonds or any other negotiable securities within the meaning of Article 9
of Spanish Law 2/1995 dated 23 March on Closed Limited Liability Companies
(Ley 2/1995, de 23 de marzo, de Sociedades de
Responsabilidad Limitada); or


 


(c)           to the extent that such guarantee, indemnity,
obligation, liability or Security would not be in the corporate benefit (either
direct or indirect) of the Guarantor.


 


24.16       Swiss Guarantors


 


(a)           If and to the extent that the obligations of
each Guarantor incorporated under the laws of Switzerland (the “Swiss Guarantor”) under this Clause 24
(Guarantee and Indemnity) are for
the exclusive benefit of any of such Swiss Guarantor’s affiliates (other than
such Swiss Guarantor’s direct or indirect subsidiaries):


 


(i)            the aggregate obligations of any Swiss
Guarantor under the Swiss Guarantee shall be limited to the Swiss Available
Amount at the time any Swiss Guarantor makes a payment under this Clause 24 (Guarantee and Indemnity) (provided such limitation is still
a legal requirement under Swiss law at that time). If and to the extent a Swiss
Guarantor, when requested to make any payment under the Swiss Guarantee, has
one or more outstanding inter-company loans (except for inter-company loans
extended to its own direct or indirect subsidiaries), such inter-company
loan(s), including any accrued interest thereon, shall be deducted from the
Swiss Available Amount, provided that the Facility Agent has approved such
inter company loan


 


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when entered into, it being understood that the Facility Agent herewith
approves the inter-company loan to Hertz Finance Centre plc which the Swiss
Borrower shall grant on the Closing Date;


 


(ii)           immediately after having been requested to
make a Swiss Guarantee Payment, each Swiss Guarantor shall (i) provide the
Facility Agent, within 30 Business Days from being requested to make the Swiss
Guarantee Payment, with (1) an interim audited balance sheet prepared by the
statutory auditors of the applicable Swiss Guarantor, (2) the determination of
the Swiss Available Amount based on such interim audited balance sheet as computed
by the statutory auditors and (3) a confirmation from the statutory auditors
that the Swiss Available Amount is the maximum amount which can be paid by the
Swiss Guarantor under the Swiss Guarantee without breaching the provisions of
Swiss corporate law, which are aimed at protecting the share capital and legal
reserves, and (ii) upon receipt of the confirmation referred to in the
preceding sentence under (3) and after having taken all actions required
pursuant to paragraph (d) below, pay, subject to paragraph (c) below, the
lesser of (A) such Swiss Guarantee Payment in full (which shall include any
gross-up or other indemnification payment to the extent provided in paragraph (c) below) and (B) the Swiss Available Amount (less, to the
extent required, any withholding tax under the Swiss Federal Act on Withholding
Tax of October 13, 1965 (the “Swiss
Withholding Tax”));


 


(iii)          if so required under Swiss law (including
double tax treaties to which Switzerland is a party) at the time it is required
to make a payment under the Swiss Guarantee, the applicable Swiss Guarantor (1)
may deduct, in its sole discretion, the Swiss Withholding Tax at the rate of 35
per cent. (or such other rate as may be in force at such time) from any payment
under the Swiss Guarantee, (2) may pay the Swiss Withholding Tax to the Swiss
Federal Tax Administration and (3) shall notify and provide evidence to the
Facility Agent that the Swiss Withholding Tax has been paid to the Swiss
Federal Tax Administration.  To the
extent the Swiss Guarantee Payment due is less than the Swiss Available Amount,
the applicable Swiss Guarantor shall be required to gross-up, indemnify or
otherwise hold harmless the Finance Parties for the deduction of the Swiss
Withholding Tax, it being understood that at no time shall the Swiss Guarantee
Payment (including any gross-up or indemnification payment pursuant to this
paragraph (c) and including any Swiss Withholding Tax levied thereon) exceed
the Swiss Available Amount.  To the
extent the Swiss Guarantee Payment exceeds the Swiss Available Amount,
Clause 14.1 (Tax Gross-up) shall not be
applicable.  The applicable Swiss
Guarantor shall use its best efforts to ensure that any person which is, as a
result of a payment under the Swiss Guarantee, entitled to a full or partial
refund of the Swiss Withholding Tax, shall as soon as possible after the
deduction of the Swiss Withholding Tax (i) request a refund of the Swiss
Withholding Tax under any applicable law (including double tax treaties) and
(ii) pay to the Finance Parties upon receipt any


 


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amount so refunded.  The
obligations under the Finance Documents will only be considered as discharged
to the extent of the effective payment received by the Finance Parties under
the Swiss Guarantee.  This subsection (c)
is without prejudice to the gross-up or indemnification obligations of any
Guarantor other that the Swiss Guarantors; and


 


(iv)          each Swiss Guarantor shall use reasonable
efforts to take and cause to be taken all and any other action, including the
passing of any shareholders’ resolutions to approve any Swiss Guarantee Payment
under the Swiss Guarantee, which may be required as a matter of Swiss mandatory
law or standard business practice as existing at the time it is required to
make a Swiss Guarantee Payment under the Swiss Guarantee in order to allow for
a prompt payment of the Swiss Guarantee Payment or Swiss Available Amount, as
applicable, it being understood that in the event where the Swiss Guarantor demonstrates
in reasonable detail that such payment would result in the Swiss Guarantor
being unable to meet all of its other current obligations as they come due
(technical insolvency), the Security Agent will differ the enforcement of the
Swiss Guarantee Payment or Swiss Available Amount until such time when the
Swiss Guarantor is in a position to pay such amount without becoming
technically insolvent. The decision of the Security Agent to defer the
enforcement of the Swiss Guarantee Payment or the Swiss Available Amount, as
applicable, is without prejudice to the Swiss Guarantor’s obligation to take
all necessary action to promptly render such payment possible without
simultaneously bringing the Swiss Guarantor in a state of technical insolvency.


 


(b)           For the purposes of this Clause 24.16:


 


(i)            “Swiss
Guarantee” means any guarantee given by a Swiss Guarantor under
Clause 24.16 (Guarantee and Indemnity).


 


(ii)           “Swiss
Guarantee Payment” means a payment which a Swiss Guarantor has been
requested to make under the Swiss Guarantee.


 


(iii)          Swiss Available Amount” means the maximum amount of a Swiss
Guarantor’s profits and reserves available for distribution, in each case in
accordance with, without limitation, articles 671 para. 1 to 3 and 675 para. 2
of the Swiss Code of Obligations.


 


24.17       Dutch Guarantors


 


The obligations of any
Guarantor incorporated under the laws of The Netherlands under or pursuant to
Clause 24 (Guarantee and Indemnity) shall exclude
and shall not be or be construed as any guarantee, indemnity or security, to
the extent that this would:


 


(a)           constitute unlawful financial assistance
within the meaning of Article 2:98c or 2:207c of The Netherlands Civil Code, as
relevant; or


 


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(b)           be deemed “ultra vires”
within the meaning of Article 2:7 of The Netherlands Civil Code.


 


24.18       German Confirmation


 


(a)           For the purposes of providing evidence to the
German tax authorities of the absence of any detrimental recourse situation in
connection with the tax circulars issued by the German Federal Ministry of
Finance (Bundesfinanzministerium) on 15 July 2004
(IV A2 — S2742a — 20/04) and on 22 July 2005 (IV B7 — S2742a — 31/05) in
relation to section 8a of the German Corporation Tax Act, the Security Agent
agrees (for itself and on behalf of the Banks) to deliver to the Parent (for
itself and on behalf of the other Borrowers) no later than 30 Business Days
after the Closing Date, in each case, without prior request by the Borrowers,
no later than 30 Business Days after this underlying Agreement or the security
granted under or in connection therewith have been altered or amended, and, in
any event, on each anniversary of the Closing Date (or, if such anniversary
date is not a Business Day, on the next succeeding Business Day), a Bank
Certificate.


 


(b)           The delivery of a Bank Certificate shall not
prejudice the rights of the Security Agent or the Banks under this Agreement or
any other Finance Document.


 


(c)           Any Bank Certificate delivered under this
Agreement: (i) is given for the purpose of delivery to the competent tax
authorities of the Borrowers to assist the Borrowers in the administration of
their tax affairs and not for any other purpose, (ii) does not guarantee the
achievement of a specific result or conclusion for German tax purposes, (iii)
is addressed to and is solely for the benefit of the Borrowers in relation to
this Agreement and (iv) does not create third party rights of any kind.


 


(d)           Neither the Security Agent nor any Bank shall
be liable as a result of the delivery of a Bank Certificate.  No error or omission in a Bank Certificate
shall constitute a release of any Security Interest.


 


(e)           The Security Agent and the Banks agree (at
the cost of Parent) to provide any additional information in relation to the
security granted under or in connection with this Agreement (available to the
Security Agent or such Bank) reasonably requested by a Borrower for the
purposes of the completion by that Borrower of its submissions to any tax
authority asserting jurisdiction over it as soon as reasonably practicable
following such request.


 


(f)            If, after the Closing Date, the German tax
administration requires submission of a standard form of the purpose of
providing evidence to the German tax authorities of the absence of any
detrimental recourse situation or the Parent determines on the basis of a
specific request of a German tax inspector or a published decree of the German
tax administration with respect to section 8a German Corporation Tax Act that
the German tax authorities require an amended bank certificate, then the
Security Agent and each Bank agree to use such form instead of the Bank
Certificate as set out in Schedule 19 (Form of Bank Certificate)
provided, however, that the acceptance of such standard form shall be subject
to the approval of the Security Agent and the relevant


 


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bank (as the case may be) (such consent not to be unreasonably withheld
or delayed), if such standard form differs substantially from the form of Bank
Certificate set out in Schedule 19 (Form of Bank Certificate).


 


For the avoidance of
doubt:


 


(i)            None of the Security Agent nor any Bank shall
be obliged to disclose to any other person any confidential information
regarding its business or any other information relating to its tax affairs or
tax computations (including, without limitation, its tax returns or its
calculations) as a result of the operation of this Clause 24.18.


 


(ii)           None of the Security Agent nor any Bank shall
be obliged to deliver any information pursuant to a request under this
Clause 24.18 if, by doing so, it would contravene the terms of any
applicable law or any notice, direction or requirement or any governmental or
regulatory authority (whether or not having the force of law).  The Borrowers may disclose the existence and
content of a Bank Certificate to its professional advisers, its respective
affiliates, as required by applicable law or regulate and to any tax,
regulatory or other governmental authority asserting jurisdiction over it.


 


(g)           For the purposes of this Clause 24.18, a “Bank Certificate” means a duly completed
bank certificate in the form set out in Part 1 of Schedule 19 (Form of Bank Certificate).


 


24.19       Other Guarantors


 


(a)           In relation to any member of the Group or
other person which becomes a Guarantor after the date of this Agreement, the
obligations of such Additional Guarantor under this Clause 24 (Guarantee and Indemnity) are subject to any limitation set
out in the Guarantor Accession Memorandum applicable to that Guarantor.


 


(b)           If, after the date hereof, there is a change
in US tax law, regulation or administrative practice the result of which is
that the obligations of the Parent under Clause 24.1 (Guarantee
and Indemnity) create a material risk that the earnings and profits
of any or all of the non-US subsidiaries of the Parent must be included in
income by the Parent or the US federal consolidated tax group which includes
the Parent or the Target as a member pursuant to Section 956 of the Internal
Revenue Code and the regulations thereunder, the Parent shall use its
commercially reasonable efforts to mitigate such risk, provided that, if such
risk cannot be so mitigated, the Facility Agent shall consent to modify or
extinguish the obligations of the Parent under Clause 24.1 (Guarantee and Indemnity) to the extent necessary (and only
to such extent) to give effect to such changes thereto as may be necessary to
eliminate such risk or make it immaterial.


 


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25.          COMMITMENT COMMISSION AND
FEES


 


25.1         Commitment Commission


 


(a)           The Parent shall pay or procure payment (to
the extent not already paid) to the Facility Agent for account of each Bank of
a commitment commission on the amount of such Bank’s Available Commitment in
relation to each Facility from day-to-day commencing on the Closing Date and
ending on the last day of the Availability Period in relation thereto, such
commitment commission to be calculated at the rate of:


 


(i)            0.35 per cent. per annum in relation to the
A1 Facility;


 


(ii)           0.40 per cent. per annum in relation to the
A2 Facility; and


 


(iii)          0.50 per cent. per annum, in relation to the
C Facility,


 


provided that if, by and
with effect from the date that is 15 months after the Closing Date:


 


(x)            the
A1 Outstandings have not been repaid in full and the Commitments of the Banks
in relation to the A1 Facility cancelled in full, the commitment commission
payable in respect of the A1 Facility shall be automatically increased to 0.50
per cent. per annum; and


 


(y)           if
the A2 Outstandings have not been repaid in full and the Commitments of the
Banks in relation to the A2 Facility cancelled in full, the commitment
commission payable in respect of the A2 Facility shall be automatically
increased to 0.55 per cent. per annum,


 


(b)           Commitment commission payable hereunder shall
be payable in arrear in the relevant Designated Currency on (i) in the case of
any Facility, each Settlement Date and (ii) on the Final Maturity Date.


 


25.2         Fees


 


The Parent shall pay or
cause to be paid (to the extent not already paid) to the Facility Agent for its
own account each of the fees specified in the Fee Letters at the times, and in
the amounts, specified in such letter.


 


26.          CANADIAN PERMITTED BANK
FEES


 


(a)           In consideration for the purchase by the
Canadian Permitted Bank from each Non-Canadian Bank of a Canadian Sale Right in
respect of a Facility, the Canadian Permitted Bank agrees to pay each
Non-Canadian Bank, as and when the Canadian Permitted Bank receives payment of
interest on its Canadian Advances, a Standby Fee on the Non-Canadian Bank’s
Canadian Pro-Rata Share of such Canadian Advances made by the Canadian
Permitted Bank.  The Standby Fee in
respect of any Non-Canadian Bank’s Pro-Rata Share in the Canadian Advance shall
be payable to the Non-Canadian Bank


 


199





















 


when interest on such Canadian Advance is received by the Canadian
Permitted Bank.  If the Canadian
Permitted Bank does not receive payment in full of such interest, the Standby
Fee in respect of the Non-Canadian Bank’s Pro-Rata Share in such Canadian
Advance shall be reduced proportionately. 
If a Canadian Borrower pays less than all of the interest then due and
owing by it for any period, that portion of the interest equating to the
Standby Fee shall be deemed to be the last portion of interest paid or to be
paid.


 


(b)           The Canadian Borrower agrees that any
payments made by the Canadian Permitted Bank to a Non-Canadian Bank pursuant to
this Clause 26 will be subject to deduction or withholding for or on account of
Relevant Tax and that the Canadian Borrower shall pay and reimburse the
Canadian Permitted Bank (and, upon receipt thereof, Canadian Permitted Bank
shall pay to the Non-Canadian Bank as an additional Standby Fee) an amount
equal to such additional amount or amounts that the Canadian Permitted Bank
would have to pay to each Non-Canadian Bank to ensure that each such
Non-Canadian Bank receives an amount net of any deduction or withholding for
any Relevant Tax (including deductions or withholdings applicable to any
additional amounts paid under this Clause 26) equal to the sum which the
Non-Canadian Bank would have received had no such deduction or withholding been
made or required to be made.  If the Canadian
Permitted Bank or a Non-Canadian Bank is required to make any payment of or on
account of any Relevant Tax on or in relation to any amount received or
receivable under this Clause 26 or if any liability in respect of any such
payment is asserted, imposed, levied or assessed against the Canadian Permitted
Bank or any Non-Canadian Bank with respect to any amounts paid by Canadian
Permitted Bank to a Non-Canadian Bank as contemplated hereunder, the Canadian
Permitted Bank or Non-Canadian Bank, as applicable, may pay such Relevant Taxes
and the Canadian Borrower shall, upon demand of the Facility Agent, promptly
indemnify and pay such additional amount or amounts (including any penalty,
interest, cost or expense payable or incurred in connection therewith) as is
necessary to ensure that such Canadian Permitted Bank or Non-Canadian Bank, as
applicable, receives an amount net of any such Relevant Taxes (including
Relevant Taxes applicable to any such additional amounts) equal to the sum
which the Canadian Permitted Bank or Non-Canadian Bank, as applicable, would
have received had no such deduction or withholding for any such Relevant Taxes
been made or required to have been made. 
Notwithstanding any of the foregoing, a Non-Canadian Bank shall not be
entitled to receive any amount under this Section: to the extent it is not
eligible for the benefit of a Double Taxation Treaty otherwise than by reason
of any change after the date hereof in law or in its interpretation or
administration (including, without limitation, the introduction of legislation,
any change in judicial interpretation, any change in an applicable Double
Taxation Treaty or any change in the published practice of a relevant tax
authority) in respect of the amount of any Standby Fee; to the extent that it
does not comply with any formalities required for eligibility under such Double
Taxation Treaty (including without limitation completing and submitting any
form or other document required for the purpose of ensuring the application of
a Double Taxation Treaty or applicable tax laws or regulations); to the extent
it provides any advances to the Canadian Permitted Bank prior to the Notice of
Exercise


 


200





















 


of Sale Right which are connected to the Facility; to the extent that
any Relevant Tax, interest, penalties, costs or expenses of a Finance Party
which would not have arisen or been incurred but for the reasonably avoidable
delay or the default of such Finance Party; or to the extent it is compensated for
by an increased payment under Clause 14.1 (Tax Gross-up),
or Clause 14.2 (Tax Indemnity).


 


A Bank intending to make
a claim pursuant to this Clause 26 (Canadian Permitted Bank
Fees) shall provide a certificate to the Facility Agent regarding
the applicable Double Taxation Treaty whereupon the Facility Agent shall notify
the Parent thereof.


 


If, and to the extent
that, the effect of Clause 26 (Canadian Permitted Bank
Fees) can be mitigated by virtue of the provisions of any applicable
Double Taxation Treaty or any applicable tax law (whether by a claim to
repayment of any taxes referred to in Clause 26 (Canadian
Permitted Bank Fees) or otherwise) the relevant Finance Party
agrees, provided that, and for so long as, no Event of Default has occurred and
is continuing, to co-operate with the Parent with a view to completing and
submitting any forms required for the purpose of ensuring the application of
such Double Taxation Treaty or applicable tax law so far as relevant, provided
that no Finance Party shall be required pursuant to this Clause 26 (Canadian Permitted Bank Fees) to complete or co-operate in
completing any form unless the Parent or the relevant Borrower reasonably
requests it to do so.


 


Notwithstanding any other
provision hereof, in respect of Advances to a Canadian Borrower (i) in the
case of Non-Canadian Banks, following a Notice of Exercise of Sale Right, and
(ii) in the case of the Canadian Permitted Bank if any Event of Default
shall occur and be continuing, such Finance Party in respect of any such
Advance shall be entitled to the benefit of and be subject to sections 14.1,
14.2, 14.3, 14.4 and 14.5 provided that any reference therein to “Qualifying Bank” shall be read as including such Finance
Party in such circumstances.


 


(c)           For the purposes of this Clause 26, “Standby Fee” means a fee at a rate per
annum equal to the Applicable Margin on BA Rate Loans or the Canadian Swingline
Advances, as the case may be, minus 18 basis points for a period of twelve
months commencing on the Closing Date and thereafter minus 25.5 basis
points.


 


27.          COSTS AND EXPENSES


 


27.1         Transaction Expenses


 


The Parent shall, from
time to time on demand of the Facility Agent, reimburse (or cause to be paid
to) the Facility Agent, the Security Agent and each of the Arrangers for all
reasonable and invoiced out-of-pocket costs and expenses (including the fees of
any appraiser appointed for the purposes of determining the Borrower Equipment
Market Value and the reasonable and invoiced legal fees and expenses of White
& Case LLP and Gide Loyrette Nouel as legal counsel to the Arrangers and
Linklaters and a single counsel in each other relevant jurisdiction) together
with any VAT


 


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thereon (subject to
Clause 14.7(c) (VAT)) incurred
by them in connection with the negotiation, preparation and execution of the
Finance Documents, the completion of the transactions therein contemplated and
the primary syndication of the Facilities provided that the Parent shall not be
obliged to reimburse the Facility Agent, the Security Agent or the Arrangers
for any fees of any lawyers, accountants, surveyors, appraisers or other
experts or advisors engaged by the Facility Agent, the Security Agent or the
Arrangers without the prior approval of the Parent.


 


27.2         Preservation and Enforcement of Rights


 


The Parent shall, from
time to time on demand of the Facility Agent, reimburse (or cause to be
reimbursed) the Finance Parties for all costs and expenses (including
reasonable legal fees of a single counsel in each relevant jurisdiction (except
that where correspondence lawyers will be required in any applicable political
or regional subdivision thereof, reasonable fees incurred by such
correspondence lawyers shall also be reimbursed)) on a full indemnity basis
together with any VAT thereon (subject to Clause 14.7(c) (VAT)) incurred in or in connection with the preservation
and/or enforcement of any of the rights of the Finance Parties under the
Finance Documents (including, without limitation, any reasonable out-of-pocket
costs and expenses relating to any investigation as to whether or not an Event
of Default has occurred or is likely to occur or any steps necessary or
desirable in connection with any proposal for remedying or otherwise resolving
an Event of Default or Potential Event of Default), it being understood that no
Obligor shall be held liable to pay for any taxes, duties, notary or mortgage
keeper fees and similar expenses following the assignment, transfer or novation
by a Finance Party to another party of any of its rights under a business
pledge agreement dated as at the date hereof between Hertz Belgium NV as
pledgor and BNP Paribas as pledgee.


 


27.3         Stamp Taxes


 


The Parent shall pay (or
cause to be paid) all stamp, registration and other similar taxes to which the
execution and delivery of the Finance Documents or any judgment given in
connection therewith is or at any time may be subject and shall, from time to
time on demand of the Facility Agent, indemnify the Finance Parties against any
liabilities, costs, claims and expenses resulting from any failure to pay or
any delay in paying any such tax.


 


27.4         Amendment Costs


 


If an Obligor requests
any amendment, waiver or consent then the Parent shall, within five Business
Days of demand by the Facility Agent, reimburse (or cause to be reimbursed) the
Finance Parties for all reasonable out-of-pocket costs and expenses (including
reasonable legal fees of a single counsel in each relevant jurisdiction)
together with any VAT thereon (subject to Clause 14.7(c) (VAT)) directly incurred by such person in responding to or
complying with such request.


 


27.5         Banks’ Liabilities for Costs


 


If the Parent fails to
perform any of its obligations under this Clause 27 (Costs and
Expenses), each Bank shall, in its Proportion, indemnify each of the
Facility Agent,


 


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the Security Agent and
the Arrangers against any loss incurred by any of them as a result of such
failure.


 


27.6         No Other Tax


 


Notwithstanding the foregoing,
except as provided in Clause 27.1 (Transaction Expenses),
Clause 27.2 (Preservation and Enforcement of Rights)
and Clause 27.3 (Stamp Taxes),
the Parent shall have no obligation under this Clause 27 (Costs and Expenses) to any Finance Party with respect to any
tax, levy, impost, duty, charge, fee, deduction or withholding imposed, levied,
collected, withheld or assessed by any governmental authority.


 


28.          DEFAULT INTEREST AND
BREAK COSTS


 


28.1         Default Interest Periods


 


If any sum due and
payable by an Obligor hereunder is not paid on the due date therefor in
accordance with Clause 31 (Payments) or if
any sum due and payable by an Obligor under any judgment of any court in
connection herewith is not paid on the date of such judgment, the period
beginning on such due date or, as the case may be, the date of such judgment
and ending on the date upon which the obligation of such Obligor to pay such
sum is discharged shall be divided into successive periods, each of which (other
than the first) shall start on the last day of the preceding such period and
the duration of each of which shall (except as otherwise provided in this
Clause 28 (Default Interest and Break Costs))
be selected by the Facility Agent acting reasonably.


 


28.2         Default Interest


 


An Unpaid Sum shall bear
interest during each Interest Period in respect thereof at the rate per annum
equal to the lesser of (x) two per cent. per annum and (y) the maximum rate
permitted by applicable law above the percentage rate which would apply to an
Advance in the amount and currency of such Unpaid Sum and for the same Interest
Period, provided that if such Unpaid Sum relates to an Advance which became due
and payable on a day other than the last day of the Term relating thereto:


 


(a)           the first Interest Period applicable to such
Unpaid Sum shall be of a duration equal to the unexpired portion of the current
Term relating to that Advance; and


 


(b)           the percentage rate of interest applicable
thereto from time to time during such period shall be that which exceeds by two
per cent. the rate which would have been applicable to it had it not so fallen
due.


 


28.3         Payment of Default Interest


 


Any interest which shall
have accrued under Clause 28.2 (Default Interest)
in respect of an Unpaid Sum shall be due and payable and shall be paid by the
Obligor owing such Unpaid Sum on the last day of each Interest Period in
respect thereof or on such other dates as the Facility Agent may specify by
notice to such Obligor.


 


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28.4         Break Costs


 


If any Bank or L/C
Issuer or the Facility Agent receives or recovers all or any part of an Advance
or Unpaid Sum otherwise than on the last day of the Term relating thereto, the
relevant Borrower shall pay to the Facility Agent on demand for account of such
Bank or L/C Issuer an amount equal to the amount (if any) by which (a) the
additional interest which would have been payable on the amount so received or
recovered had it been received or recovered on the last day of that Term exceeds
(b) the amount of interest which as determined by the Facility Agent
(acting reasonably) would have been payable to the Facility Agent on the last
day of that Term in respect of a deposit in the currency of the amount so
received or recovered placed by it with a prime bank in London for a period
starting one Business Day following the date of such receipt or recovery and
ending on the last day of that Term.


 


29.          INDEMNITIES


 


29.1         Indemnity


 


The Parent
undertakes to indemnify:


 


(a)           each Finance Party against any cost, claim,
loss, expense (including reasonable legal fees of a single counsel in each
relevant jurisdiction) or liability together with any VAT thereon (subject to
Clause 14.7(c) (VAT)), whether
or not reasonably foreseeable, which it may sustain or incur other than through
its gross negligence or wilful misconduct as a consequence of the occurrence of
any Event of Default or any default by any Obligor in the performance of any of
the obligations expressed to be assumed by it in the Finance Documents;


 


(b)           each Bank against any cost or loss it may
suffer other than through its gross negligence or wilful misconduct under
Clause 27.5 (Banks’ Liabilities for Costs) or
Clause 34.6 (Indemnification); and


 


(c)           each Bank and each L/C Issuer against any
loss it may suffer or incur other than through its gross negligence or wilful
misconduct as a result of:


 


(i)            its funding or making arrangements to fund
its portion of an Advance requested by any Borrower but not made by reason of
the operation of any one or more of the provisions hereof; or


 


(ii)           its issuing or making arrangements to issue a
Letter of Credit but not issued by reason of the operation of any one or more
of the provisions hereof.


 


29.2         Currency Indemnity


 


If any sum (a “Sum”) due from an Obligor under the Finance Documents or any
order, judgment given or made in relation thereto has to be converted other
than pursuant to Clause 37 (Change of Currency)
from the currency (the “First Currency”)
in which such Sum is payable into another currency (the “Second
Currency”) for the purpose of:


 


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(a)           making or filing a claim or proof against
such Obligor;


 


(b)           obtaining an order, judgment in any court or
other tribunal; or


 


(c)           enforcing any order, judgment given or made
in relation thereto,


 


the Parent shall
indemnify each person to whom such Sum is due from and against any loss
suffered or incurred as a result of any discrepancy between (a) the rate of
exchange used for such purpose to convert such Sum from the First Currency into
the Second Currency and (b) the rate or rates of exchange available to such
person at the time of receipt of such Sum.


 


29.3         Acquisition Indemnity


 


(a)           The Parent shall indemnify each Finance Party
from time to time within five Business Days of demand of such Finance Party,
against any cost, claim, loss, expense (including legal fees) or liability
together with VAT thereon (subject to Clause 14.7(c) (VAT)),
whether or not reasonably foreseeable, which the relevant Finance Party may
sustain or incur (except to the extent that the same result from the gross
negligence or wilful misconduct of that Finance Party or any breach by that
Finance Party of the provisions of the Finance Documents) arising out of a
claim or action of any person relating to the Acquisition (whether or not
consummated) or any use of the proceeds of any Advance.  It is agreed that:


 


(i)            each Finance Party shall promptly notify the
Parent in reasonable detail of any potential claim by it under this
Clause 29.3 promptly upon it becoming aware of that potential claim; and


 


(ii)           if the Parent acting reasonably wishes any
Finance Party to enter into any negotiations with a view to settlement of any
dispute with any third party likely to give rise to any cost, claim, loss,
expense or liability for which a claim may be made under this Agreement, it
shall notify that Finance Party accordingly, which Finance Party will then (to
the extent the same would not be prejudicial to its interests or contrary to
any internal policy or advice of its advisers) enter into negotiations in good
faith on a without prejudice basis.


 


(b)           Each Finance Party shall promptly give to the
Parent such details and copies of correspondence and process served concerning
(or concerning the circumstances giving rise to) any cost, claim, loss, expense
or liability which may form the basis of any claim by it on the Parent.


 


(c)           At the request of the Parent acting
reasonably, from time to time, each Finance Party will discuss with the Parent
and will give careful consideration in good faith to the views of the Parent
concerning the appointment of professional advisers in connection with any
cost, claim, loss, expense or liability (and in connection with the
circumstances giving rise thereto and any proceedings, current, pending or
threatened relating thereto) and the conduct of any proceedings, and will use
reasonable endeavours to procure that (once appointed) all professional
advisers acting for it in relation thereto shall do


 


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likewise and that where such Finance Party does not reasonably consider
that it is against such Finance Party’s best interests, one firm of
professional advisers only is appointed to represent all of the Finance
Parties.


 


(d)           To induce the Canadian Permitted Bank, and,
if applicable, the Non-Canadian Banks, to provide BA Rate Loans on the terms
provided herein, if:


 


(i)            any BA Rate Loan is repaid in whole or in
part prior to the last day of its Term (whether that repayment is made pursuant
to any provision of this Agreement of any other Finance Document or occurs as a
result of acceleration, by operation of law or otherwise);


 


(ii)           a Canadian Borrower shall default in payment
when due of the principal amount of or interest of any BA Rate Loan;


 


(iii)          a Canadian Borrower shall refuse to accept
any borrowing of, or shall request a termination of any borrowing of,
conversion into or continuation of any BA Rate Loans after a Canadian Borrower
has given notice requesting the same in accordance herewith; or


 


(iv)          a Canadian Borrower shall fail to make any
prepayment of any BA Rate Loan after it has given a notice thereof in
accordance herewith,


 


then
the Parent shall indemnify and hold harmless the Canadian Permitted Bank and
the Non-Canadian Banks from and against all losses, costs and expenses
resulting from or arising from any of the foregoing.  Such indemnification shall include any loss
(including loss of margin) or expense arising from the reemployment of funds
obtained by it or from fees payable to terminate deposits from which such funds
were obtained.  For the purpose of
calculating amounts payable to the Canadian Permitted Bank and the Non-Canadian
Banks under this paragraph (d), the Canadian Permitted Bank and after the
Notice of Exercise of Sale Right, the Non-Canadian Banks shall be deemed to
have actually funded its relevant BA Rate Loan through the purchase of a
deposit bearing interest at the BA Rate in an amount equal to the amount of
that BA Rate Loan and having a maturity comparable to the relevant Term,
provided that the Canadian Permitted Bank and the Non-Canadian Banks may fund
each of its BA Rate Loans in any manner it sees fit, and the foregoing
assumption shall be utilized only for the calculation of amounts payable under
this subsection.  This covenant shall
survive the termination of this Agreement and payment of all amounts payable
hereunder.  As promptly as practicable
under the circumstances, the Canadian Permitted Bank and the Non-Canadian Banks
shall provide the Parent with its written calculation of all amounts payable
pursuant to this Clause 29.3(d), and such calculation shall be binding on
the parties hereto unless the Parent shall object in writing within ten (10)
Business Days of receipt thereof, specifying the basis for such objection in
detail.


 


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30.          CURRENCY OF ACCOUNT AND
PAYMENT


 


Euro is the
currency of account and payment for each and every sum at any time due from an
Obligor hereunder, provided that:


 


(a)           each payment in respect of costs and expenses
shall be made in the currency in which the same were incurred;


 


(b)           each payment pursuant to Clause 14.2 (Tax Indemnity) or Clause 16 (Increased
Costs) shall be made in the currency specified by the party claiming
thereunder;


 


(c)           each payment of commitment fees pursuant to
Clause 25.1 (Commitment Commission) shall be
made in the Designated Currency in which the Available Facility in relation to
a Facility or Tranche (as the case may be) is denominated;


 


(d)           each payment of interest shall be made in the
Designated Currency of the Advance or Unpaid Sum on which such interest
accrued; and


 


(e)           each payment of principal shall be made in
the Designated Currency in which the relevant Advance or Unpaid Sum is denominated;
and


 


(f)            each payment pursuant to Clause 12 (C Borrower’s Liabilities in relation to Letters of Credit)
in relation to a Letter of Credit shall be made in the currency in which such
Letter of Credit is denominated.


 


31.          PAYMENTS


 


31.1         Payments to the Facility Agent


 


(a)           On each date on which this Agreement requires
an amount (other than a Swingline Advance and the first Advance) to be paid by
an Obligor, such Obligor shall make the same available to the Facility Agent
for value on the due date at such time and in such funds as the Facility Agent
shall specify from time to time as follows:


 


(i)            in the case of an amount denominated in
Euros:


 


	
  BNP Paribas S.A., Paris

  	
   

  	
   

  
	
  SWIFT Code:

  	
  [SWIFT Number]

  
	
  IBAN:

  	
  [IBAN Number]

  
	
  Reference:

  	
  [Reference]

  
				



 


(ii)           in the case of an amount denominated in
Australian Dollars:


 


	
  BNP
  Paribas, Sydney

  	
   

  	
   

  
	
  BSB:

  	
  [BSB
  Number]

  
	
  Account:

  	
  [Account
  Number]

  
	
  SWIFT Code:

  	
  [SWIFT
  Number]

  
				



 


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(iii)          in the case of an amount denominated in Canadian
Dollars:


 


	
  SWIFT
  Code:

  	
  [SWIFT
  Number]

  



 


(iv)          in the case of an amount denominated in GBP:


 


	
  SWIFT
  Code:

  	
  [SWIFT
  Number]

  
	
  in
  favour of:

  	
  [Bank]

  
	
  SWIFT
  Code:

  	
  [SWIFT
  Number]

  
	
  for
  the account of:

  	
  [Account
  Number]

  
	
  for
  credit to IBAN:

  	
  [IBAN
  Number]

  
	
  Reference:

  	
  [Reference]

  



 


(v)           in the case of an amount denominated in CHF:


 


	
  SWIFT
  Code:

  	
  [SWIFT
  Number]

  
	
  in
  favour of:

  	
  [Bank]

  
	
  SWIFT
  Code:

  	
  [SWIFT
  Number]

  
	
  for
  the account of:

  	
  [Account
  Number]

  
	
  for
  credit to IBAN:

  	
  [IBAN
  Number]

  
	
  Reference:

  	
  [Reference]

  



 


or to
such other account with such bank as the Facility Agent shall specify from time
to time.


 


(b)           On each date on which this Agreement requires
a Swingline Advance to be paid by an Obligor, such Obligor shall make the same
available directly to the Borrower for value on the due date at such time and
in such funds and to such account with such bank as the Facility Agent shall
specify from time to time.


 


(c)           On each date on which this Agreement requires
an amount to be paid by a Bank, such Bank shall make the same available to the
Facility Agent for value on the due date at such time and in such funds and to
such account with such bank as the Facility Agent shall specify from time to
time.


 


31.2         Payments by the Facility Agent


 


Save as otherwise
provided herein, each payment received by the Facility Agent pursuant to
Clause 31.1 (Payments to the Facility Agent)
shall:


 


(a)           in the case of a payment received for the
account of a Borrower, be made available by the Facility Agent to such Borrower
by application:


 


(i)            first, as soon as reasonably practicable in
or towards payment of any amount then due from such Borrower hereunder to the
person from whom the amount was so received; and


 


(ii)           second, as soon as reasonably practicable in
or towards payment to the account of such Borrower with such bank as such
Borrower shall have previously notified to the Facility Agent for this purpose;
and


 


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(b)           in the case of any other payment, be made
available by the Facility Agent to the person entitled to receive such payment
in accordance with this Agreement (in the case of a Bank, for the account of
its relevant Facility Office) for value the same day by transfer to such
account of such person with such bank in the principal financial centre of the
currency of such payment as such person shall have previously notified to the
Facility Agent.


 


31.3         No Set-off


 


All payments
required to be made by an Obligor hereunder shall be calculated without
reference to any set-off or counterclaim and shall be made free and clear of
and without any deduction for or on account of any set-off or counterclaim.


 


31.4         Clawback


 


Where a sum is to
be paid hereunder to the Facility Agent for account of another person, the
Facility Agent shall not be obliged to make the same available to that other
person until it has been able to establish to its satisfaction that it has
actually received such sum, but if it does so and it proves to be the case that
it had not actually received such sum, then the person to whom such sum was so
made available shall on request refund the same to the Facility Agent together
with an amount sufficient to indemnify the Facility Agent against any cost or
loss it may have suffered or incurred by reason of its having paid out such sum
prior to its having received such sum.


 


31.5         Partial Payments


 


If and whenever a
payment is made by a Borrower hereunder and the Facility Agent receives an
amount less than the due amount of such payment the Facility Agent may apply
the amount received towards the obligations of such Borrower under this
Agreement in the following order:


 


(a)           first, in or towards payment pro rata of any unpaid fees (other than any fronting bank
fee or commitment commission fee), costs and expenses of each of the Facility
Agent, the Security Agent and the Arrangers;


 


(b)           second, in or towards payment of any demand
made by an L/C Issuer in respect of a payment made or to be made by it under a
Letter of Credit due but unpaid;


 


(c)           third, in or towards payment pro rata of any
accrued interest, letter of credit commission or fronting bank fee payable to
any Bank or L/C Issuer hereunder due but unpaid;


 


(d)           fourth, in or towards payment pro rata of any
Outstandings due but unpaid; and


 


(e)           fifth, in or towards payment pro rata of any
other sum due but unpaid.


 


31.6         Variation of Partial Payments


 


The order of
partial payments set out in Clause 31.5 (Partial
Payments) shall override any appropriation made by the Borrower to
which the partial payment relates but the


 


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order set out in
Clauses 31.5(d) and 31.5(e) (Partial Payments)
may be varied if agreed by all the Banks.


 


31.7         Business Days


 


(a)           Any payment which is due to be made on a day
that is not a Business Day shall be made on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day (if there is
not).


 


(b)           During any extension of the due date for
payment of any principal or an Unpaid Sum under this Agreement in accordance
with Clause 31.7(a) (Business Days)
interest is payable on the principal at the rate payable on the original due
date.


 


32.          SET-OFF


 


32.1         Contractual Set-off


 


Each Obligor
authorises each Bank and each L/C Issuer to apply any credit balance to which
such Obligor is entitled on any account of such Obligor with such Bank in
satisfaction of any sum due and payable from such Obligor to such Bank or L/C
Issuer, as the case may be, hereunder but unpaid.  For this purpose, each Bank and L/C Issuer is
authorised to purchase with the moneys standing to the credit of any such
account such other currencies as may be necessary to effect such application.


 


32.2         Set-off not Mandatory


 


No Bank or L/C
Issuer shall be obliged to exercise any right given to it by Clause 32.1 (Contractual Set-off).


 


33.          SHARING


 


33.1         Payments to Banks


 


If a Bank (a “Recovering  Bank”) applies
any receipt or recovery from an Obligor to a payment due under this Agreement
and such amount is received or recovered other than in accordance with
Clause 31 (Payments), then such Recovering
Bank shall:


 


(a)           within three Business Days, notify the
Facility Agent of such receipt or recovery;


 


(b)           at the request of the Facility Agent,
promptly pay to the Facility Agent an amount (the “Sharing  Payment”)
equal to such receipt or recovery less any amount which the Facility Agent
determines may be retained by such Recovering Bank as its share of any payment
to be made in accordance with Clause 31.5 (Partial
Payments).


 


33.2         Redistribution of Payments


 


The Facility Agent
shall treat the Sharing Payment as if it had been paid by the relevant Obligor
and distribute it between the Finance Parties (other than the Recovering Bank)
in accordance with Clause 31.5 (Partial Payments).


 


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33.3         Recovering Bank’s Rights


 


The Recovering
Bank will be subrogated into the rights of the parties which have shared in a
redistribution pursuant to Clause 33.2 (Redistribution
of Payments) in respect of the Sharing Payment (and the relevant
Obligor shall be liable to the Recovering Bank in an amount equal to the
Sharing Payment).


 


33.4         Repayable Recoveries


 


If any part of the
Sharing Payment received or recovered by a Recovering Bank becomes repayable
and is repaid by such Recovering Bank, then:


 


(a)           each party which has received a share of such
Sharing Payment pursuant to Clause 33.2 (Redistribution
of Payments) shall, upon request of the Facility Agent, pay to the
Facility Agent for account of such Recovering Bank an amount equal to its share
of such Sharing Payment; and


 


(b)           such Recovering Bank’s rights of subrogation
in respect of any reimbursement shall be cancelled and the relevant Obligor
will be liable to the reimbursing party for the amount so reimbursed.


 


33.5         Exception


 


(a)           This Clause 33 (Sharing)
shall not apply if the Recovering Bank would not, after making any payment
pursuant hereto, have a valid and enforceable claim against the relevant
Obligor.


 


(b)           A Recovering Bank is not obliged to share
with any other Finance Party any amount which the Recovering Bank has received
or recovered as a result of taking legal or arbitration proceedings if:


 


(i)            it notified the other Finance Party of its
intention to take such legal or arbitration proceedings; and


 


(ii)           the other Finance Party had an opportunity to
participate in those legal or arbitration proceedings but did not do so.


 


34.          THE FACILITY AGENT, THE
SECURITY AGENT, THE GLOBAL COORDINATOR AND THE FINANCE PARTIES


 


34.1         Appointment of the Facility Agent and the
Global Coordinator


 


(a)           Each of the Arrangers, the Banks and the L/C
Issuers hereby appoints the Facility Agent to act as its Facility Agent in
connection with the Finance Documents and authorises the Facility Agent to
exercise such rights, powers, authorities and discretions as are specifically
delegated to the Facility Agent by the terms of the Finance Documents, together
with any such incidental rights, powers, authorities and discretions.


 


(b)           Each of the Arrangers, the Banks and the L/C
Issuers hereby appoints the Global Coordinator to act as its Global Coordinator
in connection with the Finance Documents and authorises the Global Coordinator
to exercise such


 


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rights, powers, authorities and discretions as are specifically
delegated to the Global Coordinator by the terms of the Finance Documents,
together with any such incidental rights, powers, authorities and discretions.


 


(c)           Each Finance Party (other than, in each case,
the appointee) authorises the Facility Agent to:


 


(i)            execute each Finance Document to which it is
expressed to be a party in its name and on its behalf and to enter into any
agreements or other documents or certificates incidental or ancillary thereto;
and


 


(ii)           appear before any public notaries,
registrars, public officers, courts and governmental authorities to file any
necessary documents and to take such action as may be required to give full
effect to this Clause 34.1(c).


 


34.2         Security Agent’s, Facility Agent’s and Global
Coordinator’s Discretions


 


(a)           It is expressly declared that each of the
Security Agent, the Facility Agent and the Global Coordinator may:


 


(i)            perform any of its duties, obligations and
responsibilities under this Agreement or any of the other Finance Documents by
or through its affiliates, personnel or agents on the basis that it may extend
the benefits of any indemnity received by it hereunder to its affiliates,
personnel or agents and provided that in the absence of gross negligence or
wilful default on its part, it shall not be in any way responsible for any loss
incurred by reason of any misconduct or default on the part of any such
affiliates, personnel or agents;


 


(ii)           engage and pay for the advice or services of
any lawyers, accountants, surveyors or other experts approved by the Parent
(such approval not to be unreasonably withheld or delayed) whose advice or
services may to it seem necessary, expedient or desirable and rely upon any
advice so obtained;


 


(iii)          rely as to any matters of fact which might
reasonably be expected to be within the knowledge of any of the Obligors upon a
certificate signed by or on behalf of such Obligor;


 


(iv)          rely upon any communication or document
believed by it to be genuine;


 


(v)           refrain from acting in accordance with any
instructions of any Instructing Group to begin any legal action or proceeding
arising out of or in connection with any of the Finance Documents until it
shall have received such security as it may reasonably require (whether by way
of payment in advance or otherwise) for all costs, claims, losses, expenses
(including legal fees) and liabilities together with any VAT thereon (subject
to Clause 14.7(c) (VAT)) which it
will or may expend or incur in complying with such instructions;


 


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(vi)          refrain from acting in accordance with any
instructions of any Instructing Group (or, if appropriate, the Banks) until it
has received such Security as it may reasonably require for any cost, loss or
liability (together with any associated VAT (subject to Clause 14.7(c) (VAT))), which it may incur in complying with such
instructions; and


 


(vii)         notwithstanding anything else herein
contained, refrain from doing anything which would in its reasonable opinion be
contrary to any relevant law of any jurisdiction or any relevant directive or
regulation of any agency of any state or which would otherwise render it liable
to any person and may do anything which is, in its reasonable opinion,
necessary to comply with any such law, directive or regulations.


 


(b)           It is expressly declared that each of the
Security Agent and the Global Coordinator may refrain from exercising any
right, power or discretion vested in it as agent hereunder unless and until
instructed by the relevant Instructing Group as to whether or not such right,
power or discretion is to be exercised and, if it is to be exercised, as to the
manner in which it should be exercised.


 


34.3         Security Agent’s, Facility Agent’s and Global
Coordinator’s Assumptions


 


Each of the
Security Agent, the Facility Agent and the Global Coordinator may:


 


(a)           assume that unless it has, in its capacity as
agent or trustee hereunder, received notice to the contrary from any other
party hereto, that (a) any representation made or deemed to be made by an
Obligor in connection with the Finance Documents is true, (b) any notice or
document is genuine, correct and appropriately authorised, (c) no Event of
Default or Potential Event of Default has occurred, (d) no Obligor is in breach
of or default under its obligations under the Finance Documents and (e) any
right, power, authority or discretion vested therein upon an Instructing Group,
the Banks or a L/C Issuer or any other person or group of persons has not been
exercised, in each case without any obligations on the Security Agent, the
Facility Agent or the Global Coordinator to carry out any specific or
independent investigation unless otherwise provided under this Agreement; and


 


(b)           assume that the relevant Facility Office or
Facility Offices of each Bank is or are notified to it by such Bank in writing
prior to the date hereof (or, in the case of a Transferee, at the end of the
Transfer Certificate to which it is a party as Transferee) until it has
received from such Bank a notice designating some other office of such Bank to
replace such Facility Office or as an additional Facility Office and act upon
any such notice until the same is superseded by a further such notice.


 


34.4         Facility Agent’s Obligations


 


(a)           The Facility Agent shall:


 


(i)            promptly inform each Bank, and where
appropriate, each L/C Issuer of the contents of any written notice or document
received by it in its


 


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capacity Facility Agent from any of the Obligors under any Finance
Document;


 


(ii)           promptly notify each Bank, and where appropriate,
each L/C Issuer of the occurrence of any Event of Default or Potential Event of
Default or any default by any of the Obligors in the due performance of or
compliance with its obligations under any Finance Document of which the
Facility Agent has written notice from any other party hereto;


 


(iii)          save as otherwise provided herein, act as
Facility Agent under the Finance Documents in accordance with any instructions
given to it by the relevant Instructing Group, which instructions shall be
binding on the Finance Parties; and


 


(iv)          not exercise any right, power or discretion
vested in it as agent hereunder unless and until instructed by the relevant
Instructing Group as to whether or not such right, power or discretion is to be
exercised and, if it is to be exercised, as to the manner in which it should be
exercised.


 


(b)           The Facility Agent shall:


 


(i)            review any Asset Report delivered by a
Borrower prior to the date and time specified in the Timetable for a
Notification to be delivered by the Facility Agent to the relevant Banks;


 


(ii)           determine the Borrowing Base Calculations as
at each Calculation Date or any other relevant date; and


 


(iii)          perform such other tasks as may be reasonably
required by the Banks.


 


34.5         Excluded Obligations of Facility Agent,
Security Agent, Global Coordinator and Arrangers


 


Notwithstanding
anything to the contrary expressed or implied herein, the Facility Agent, the
Security Agent, the Global Coordinator or the Arrangers shall:


 


(a)           not be bound to enquire as to (a) whether or
not any representation made or deemed to be made by an Obligor in connection
with the Finance Documents is true, (b) the occurrence or otherwise of any
Event of Default or Potential Event of Default, (c) the performance by an
Obligor of its obligations under the Finance Documents or (d) any breach of or
default by an Obligor of or under its obligations under the Finance Documents;


 


(b)           not be bound to account to any Bank for any
sum or the profit element of any sum received by it for its own account;


 


(c)           not be bound to disclose to any other person
any information relating to any member of the Group or other Obligor if (a)
such person, on providing such information, expressly stated to the Facility
Agent, the Security Agent, the Global Coordinator or any of the Arrangers, that
such information was


 


214





















 


confidential or (b) such disclosure would or might in its opinion
constitute a breach of any law or be otherwise actionable at the suit of any
person;


 


(d)           not be under any obligations other than those
for which express provision is made herein;


 


(e)           not be or be deemed to be a fiduciary for any
other party hereto except to the extent expressly provided for in the Finance
Documents;


 


(f)            not be responsible or liable for anything
done or not done by it under or in connection with the Finance Documents save
to the extent that any such liability is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from its gross negligence
or wilful misconduct, as the case may be;


 


(g)           not be bound to examine or enquire into or be
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any agreement, assignment or other
document relating thereto or its ability to exercise the rights, powers,
authorities and discretions thereby conferred, and so that none of the Facility
Agent, the Security Agent, the Global Coordinator or any of the Arrangers shall
be responsible for its inability to exercise any of the same or for any loss or
damage thereby occasioned;


 


(h)           not be bound to check or enquire on behalf of
any Finance Party into the adequacy, accuracy or completeness of any
communication delivered to it under any of the Finance Documents, any legal or
other opinions, reports, valuations, certificates, appraisals or other
documents delivered or made or required to be delivered or made at any time in
connection with any of the Finance Documents, any security to be constituted
thereby or any other report or other document, statement or information
circulated, delivered or made, whether orally or otherwise and whether before,
on or after the date of this Agreement;


 


(i)            not be bound to take any steps or perform any
obligation or exercise any right or fulfil any request if to do so would in its
reasonable opinion breach or conflict with or contradict or be contrary to any
rule, regulation, law, regulatory requirement, court order or judgment in any
relevant jurisdiction or expose the Facility Agent or the Security Agent or the
Global Coordinator or the Arrangers to liabilities in any jurisdiction;


 


(j)            not be liable for any delay (or any related
consequences) in crediting an account with an amount required under the Finance
Documents to be paid by it if it has taken all necessary steps as soon as
reasonably practicable to comply with the regulations or operating procedures
of any recognised clearing or settlement system used by it for that purpose;
and


 


(k)           not be obliged to carry out any “know your
customer” or other checks in relation to any person on behalf of any Bank and
each Bank confirms to each of the Facility Agent, Security Agent and the Global
Coordinator that it is solely responsible for any such checks it is required to
carryout and that it may


 


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not rely on any statement in relation to such checks made by the
Facility Agent, Security Agent or the Global Coordinator.


 


34.6         Indemnification


 


(a)           Each Bank shall, in its Proportion, from time
to time and within three Business Days of a demand by the Facility Agent,
indemnify the Facility Agent against any and all liabilities, costs, claims,
fees, charges, losses, expenses (including legal fees) and liabilities together
with, in each case, any VAT (subject to Clause 14.7(c) (VAT)) or similar tax charged or chargeable in respect
thereof thereon which the Facility Agent may incur, otherwise than by reason of
its own gross negligence or wilful misconduct, in acting in its capacity as
Facility Agent hereunder (other than any which have been reimbursed by the
Parent pursuant to Clause 29.1 (Indemnity)).


 


(b)           Each Bank shall, in its Proportion, from time
to time and within three Business Days of a demand by the Security Agent
indemnify the Security Agent against any and all liabilities, costs, claims,
fees, charges, losses, expenses (including legal fees) and liabilities together
with, in each case, any VAT (subject to Clause 14.7(c) (VAT)) or similar tax charged or chargeable in respect
thereof thereon which the Security Agent may incur, otherwise than by reason of
its own gross negligence or wilful misconduct, in acting in its capacity as
Security Agent hereunder (other than any which have been reimbursed by the
Parent pursuant to Clause 29.1 (Indemnity)).


 


(c)           Each Bank shall, in its Proportion, from time
to time and within three Business Days of a demand by the Global Coordinator
indemnify the Global Coordinator against any and all liabilities, costs,
claims, fees, charges, losses, expenses (including legal fees) and liabilities
together with, in each case, any VAT (subject to Clause 14.7(c) (VAT)) or similar tax charged or chargeable in respect
thereof thereon which the Global Coordinator may incur, otherwise than by
reason of its own gross negligence or wilful misconduct, in acting in its
capacity as Global Coordinator hereunder (other than any which have been
reimbursed by the Parent pursuant to Clause 29.1 (Indemnity)).


 


34.7         Exclusion of Liabilities


 


Each party to this
Agreement acknowledges and agrees that:


 


(a)           the obligations of the Facility Agent, the
Security Agent and the Global Coordinator under the Finance Documents are
several and not joint;


 


(b)           none of the Facility Agent, the Security
Agent and the Global Coordinator is responsible to the other or to any other
party to this Agreement for the exercise by any other person of, or the failure
by any other person to exercise, any judgment, discretion or power given to
such person by or in connection with the Finance Documents or any other
agreement, arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the Finance Documents;


 


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(c)           none of the Facility Agent, the Security
Agent and the Global Coordinator is responsible to the other or to any other
party to this Agreement for the performance or non-performance of any
obligations owed by the other or such other’s officers, employees or agents
under any Finance Document; and


 


(d)           none of the Facility Agent, Security Agent
and the Global Coordinator is responsible for the adequacy, accuracy and/or
completeness of the Information Memorandum or any other information supplied by
the Facility Agent or the Security Agent or the Global Coordinator or the
Arrangers, by an Obligor or by any other person in connection with the Finance
Documents or any other agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with the Finance
Documents.


 


34.8         No Actions


 


Each Finance Party
agrees that it will not assert or seek to assert or take any proceedings
against any director, officer or employee of the Facility Agent, the Security
Agent, the Global Coordinator or any of the Arrangers any claim it might have
against any of them in respect of the matters referred to in Clause 34.7 (Exclusion of Liabilities).


 


34.9         Business with Group


 


The Facility
Agent, the Security Agent, the Global Coordinator and the Arrangers or any of
them may accept deposits from, lend money to and generally engage in any kind
of banking or other business with any member of the Group or any other Obligor.


 


34.10       Resignation


 


Each of the
Facility Agent and the Global Coordinator may (after consultation among the
Facility Agent and the Global Coordinator) resign its appointment hereunder at
any time without assigning any reason therefor by giving not less than 30 days’
prior written notice to that effect to each of the other parties hereto,
provided that no such resignation shall be effective until a successor for the
Facility Agent or Global Coordinator, as the case may be, is appointed in
accordance with the succeeding provisions of this Clause 34 (The Facility Agent, the Security Agent, the Global Coordinator and the
Finance Parties).


 


34.11       Removal of Facility Agent or Global
Coordinator


 


An Instructing
Group may remove the Facility Agent or the Global Coordinator from its role as
Facility Agent or the Global Coordinator, as the case may be, hereunder by
reason of wilful misconduct by giving notice to that effect to each of the
other parties hereto.  Such removal shall
take effect only when a successor to the Facility Agent or the Global
Coordinator is appointed in accordance with the terms hereof.


 


34.12       Successor Facility Agent or Global
Coordinator


 


If the Facility
Agent or the Global Coordinator gives notice of its resignation pursuant to
Clause 34.10 (Resignation) or
it is removed pursuant to Clause 34.11 (Removal of


 


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Facility Agent
or Global Coordinator), then any reputable and experienced bank or other financial
institution acceptable to the Parent (acting reasonably) and without delay may
be appointed as a successor to the Facility Agent or the Global Coordinator by
an Instructing Group during the period of such notice but, if no such successor
is so appointed, the Facility Agent or the Global Coordinator may appoint such
a successor itself provided that such appointment is acceptable to the Parent
(acting reasonably).


 


34.13       Rights and Obligations


 


If a successor to
the Facility Agent or the Global Coordinator is appointed under the provisions
of Clause 34.12 (Successor Facility Agent
or Global Coordinator), then (a) the retiring Facility Agent or
the Global Coordinator shall be discharged from any further obligation
hereunder but shall remain entitled to the benefit of the provisions of this
Clause 34 (The Facility Agent, the Security Agent, the
Global Coordinator  and the Finance Parties)
and (b) its successor and each of the other parties hereto shall have the same
rights and obligations amongst themselves as they would have had if such
successor had been a party hereto.


 


34.14       Own Responsibility


 


It is understood
and agreed by each Finance Party that at all times it has itself been, and will
continue to be, solely responsible for making its own independent appraisal of
and investigation into all risks arising under or in connection with this
Agreement including, but not limited to:


 


(a)           the financial condition, creditworthiness,
condition, affairs, status and nature of each member of the Group and each
other Obligor;


 


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


 


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


 


(d)           the adequacy, accuracy and/or completeness of
the Information Memorandum and any other information provided by the Facility
Agent, the Security Agent, the Global Coordinator and the Arrangers or by any
other person in connection with the Finance Documents the transactions
contemplated therein or any other agreement, arrangement or document entered
into, made or executed in anticipation of, pursuant to or in connection with
the Finance Documents.


 


Accordingly, each
Finance Party acknowledges to the Facility Agent, the Security Agent, the
Global Coordinator and the Arrangers that it has not relied on and will not


 


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hereafter rely on
the Facility Agent, the Security Agent, the Global Coordinator, the Arrangers
or any of them in respect of any of these matters.


 


34.15       Agency Division Separate


 


In acting as
Facility Agent, Security Agent or the Global Coordinator hereunder for any of
the Finance Parties, the agency division of the relevant person shall be
treated as a separate entity from any other of its divisions or departments
and, notwithstanding the foregoing provisions of this Clause 34 (The Facility Agent, the Security Agent, the Global Coordinator and the
Finance Parties), any information received by some other division or
department of the Facility Agent, Security Agent or the Global Coordinator may
be treated as confidential and shall not be regarded as having been given to
such person’s agency division.  Any
information or notice given to or received by the Security Agent, the Facility
Agent or the Global Coordinator in its capacity as a Finance Party shall not be
deemed to have been received by the Security Agent, the Facility Agent or the
Global Coordinator in its capacity as Security Agent, Facility Agent, or the
Global Coordinator respectively.


 


34.16       Security Agent, Facility Agent or the Global
Coordinator as Finance Parties


 


Each of the
Security Agent, the Facility Agent and the Global Coordinator is, at the date
of this Agreement, a Finance Party and shall be entitled, notwithstanding that
it is acting as agent or trustee, to take, or refrain from taking, any action
which it would be entitled so to take in its capacity as a Finance Party if it
were not acting as agent or trustee and shall not be precluded by virtue of its
position as Finance Party from exercising any of its discretions, power and
duties as agent or trustee.


 


34.17       Dealings with the Facility Agent


 


Each of the
Security Agent and the Global Coordinator shall be entitled to, and shall,
carry out all dealings with the other Finance Parties through the Facility
Agent and shall be entitled to rely on the Facility Agent’s certificate as to
the entitlement of all or any of the Finance Parties.


 


34.18       Information


 


The Finance
Parties shall furnish to the Facility Agent, for transmission to the Security
Agent, such information as the Security Agent may reasonably specify (through
the Facility Agent) as being necessary or desirable for the purpose of enabling
the Security Agent to perform its functions as trustee and as security agent.


 


34.19       Copies of Notices


 


In each case in
which an Obligor is required by this Agreement to provide a copy or copies to
one or more agents of any notice or instruction that is delivered to another
agent, failure to provide such copy or copies shall not invalidate such notice
or instruction.


 


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35.          THE BANKS AND THE L/C
ISSUER


 


35.1         Banks’ Indemnity


 


If any C Borrower
fails to comply with its obligations under Clause 12.1 (C Borrower’s Indemnity to L/C Issuers) with respect to a
Letter of Credit the Facility Agent shall make demand on each Bank for its
share of such L/C Amount and, subject to Clause 35.2 (Direct
Participation), each Bank shall indemnify the L/C Issuer for such
Bank’s L/C Proportion of each L/C Amount.


 


35.2         Direct Participation


 


If any Bank is not
permitted (by its constitutional documents or any applicable law) to comply
with Clause 35.1 (Banks’ Indemnity)
then such Bank will not be obliged to comply with Clause 35.1 (Banks’ Indemnity) and shall instead be deemed to have taken,
on the date such Letter of Credit, as the case may be, is issued (or if later,
on the date such L/C Proportion is transferred or assigned to such Bank in
accordance with the terms of this Agreement), an undivided interest and
participation in such Letter of Credit or in an amount equal to such Bank’s L/C
Proportion of such Letter of Credit.  On
receipt of a demand made by the Facility Agent in accordance with
Clause 35.1 (Banks’ Indemnity), each such Bank
shall pay to the Facility Agent (for the account of the L/C Issuer) its L/C
Proportion of any L/C Amount.


 


35.3         Obligations not Discharged


 


Neither the
obligations of each Bank in this Clause 35 nor the rights, powers and
remedies conferred upon the L/C Issuer by this Agreement or by law shall be
discharged, impaired or otherwise affected by:


 


(a)           the winding-up, dissolution, administration
or re-organisation of the relevant L/C Issuer, a C Borrower or any other person
or any change in its status, function, control or ownership;


 


(b)           any of the obligations of the relevant L/C
Issuer, a C Borrower or any other person hereunder, under a Letter of Credit or
under any other security taken in respect of its obligations hereunder or under
a Letter of Credit being or becoming illegal, invalid, unenforceable or
ineffective in any respect;


 


(c)           time or other indulgence being granted or
agreed to be granted to the relevant L/C Issuer, a C Borrower or any other
person in respect of its obligations hereunder, under a Letter of Credit or
under any such other security;


 


(d)           any amendment to, or any variation, waiver or
release of, any obligation of an L/C Issuer, a C Borrower or any other person
hereunder, under a Letter of Credit or under any such other security; and


 


(e)           any other act, event or omission (other than
the gross negligence or wilful misconduct of an L/C Issuer) which, but for this
Clause 35.3, might operate to discharge, impair or otherwise affect any of
the obligations of each Bank herein contained or any of the rights, powers or
remedies conferred upon any L/C Issuer by this Agreement or by law.


 


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The obligations of
each Bank herein contained shall be in addition to and independent of every
other security which any L/C Issuer may at any time hold in respect of any
Letter of Credit.


 


35.4         Settlement Conditional


 


Any settlement or
discharge between a Bank and an L/C Issuer shall be conditional upon no
security or payment to any L/C Issuer by a Bank or any other person on behalf
of a Bank being avoided or reduced by virtue of any laws relating to
bankruptcy, insolvency, liquidation or similar laws of general application and,
if any such security or payment is so avoided or reduced, such L/C Issuer shall
be entitled to recover the value or amount of such security or payment from
such Bank subsequently as if such settlement or discharge had not occurred.


 


35.5         Exercise of Rights


 


No L/C Issuer
shall be obliged before exercising any of the rights, powers or remedies
conferred upon them in respect of any Bank by this Agreement or by law:


 


(a)           to take any action or obtain judgment in any
court against a C Borrower;


 


(b)           to make or file any claim or proof in a
winding-up or dissolution of a C Borrower; or


 


(c)           to enforce or seek to enforce any other
security taken in respect of any of the obligations of a C Borrower hereunder.


 


36.          ASSIGNMENTS AND TRANSFERS


 


36.1         Binding Agreement


 


The Finance
Documents shall be binding upon and ensure to the benefit of each party hereto
and its or any subsequent successors and permitted assignees and transferees.


 


36.2         Assignments and Transfers by Obligors


 


No Obligor shall
be entitled to assign or transfer all or any of its rights, benefits and
obligations under the Finance Documents.


 


36.3         Assignments and Transfers by Banks


 


Subject to
Clause 36.4 (Original Banks) and obtaining the
prior written consent of the Coordinator (such consent not to be unreasonably
withheld or delayed (taking into account the nature and identity of any
proposed assignee or transferee together with such information as is provided
in respect thereof by the transferring or assigning Banks to the Coordinator or
is readily publicly available in relation thereto)), any Bank may, at any time,
assign all or any of its rights and benefits under the Finance Documents or
transfer in accordance with this Clause 36.3 (Assignments
and Transfers by Banks) all or any of its rights, benefits and
obligations under the Finance Documents to a bank or financial institution a (“New Bank”) (including, for the avoidance of doubt, any
entity regularly engaged in or established for the purpose of


 


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making, purchasing
or investing in loans, securities or other financial assets) provided that:


 


(a)           in respect of a Letter of Credit no such
assignment or transfer may be made without the prior written consent of the
relevant L/C Issuer;


 


(b)           the Coordinator’s consent is not required if
such assignment or transfer is:


 


(i)            to any subsidiary or affiliate or holding
company, or to any subsidiary or affiliate of any holding company, of such
Bank;


 


(ii)           to any other Bank;


 


(iii)          to any bank, financial institution or other
entity previously agreed by the Parent and the Arrangers; or


 


(iv)          whilst an Event of Default is continuing
pursuant to any of Clauses 23.1 (Failure to Pay),
23.5 (Insolvency and Rescheduling) or 23.6 (Winding-up)


 


provided
that, in any case specified in paragraph (b), the proposed assignee or
Transferee shall not, as of the date of any assignment to it pursuant to this
Clause 35, be entitled to receive any greater payment (before deduction
for or on account of any tax) under Clause 14 (Taxes)
or Clause 16 (Increased Costs)
than the assigning or transferring Bank would have been entitled to receive as
of such date under such Clauses with respect to the rights assigned (except to
the extent that by reason of a change in law, or the interpretation or
application thereof, after the date the transferring Bank became a party to
this Agreement the amount of such payments with respect to the assignee or
transferee would exceed the amount that would have been payable with respect to
the transferring Bank), and provided further that in any case specified in
paragraph (b), no assignment or transfer of all or part of any rights under the
Finance Documents with respect of any Advance made to a Dutch Borrower that is
an Orphan Financeco shall be made by any Bank unless the assignee or
Transferee, as the case may be, is described in paragraph (f) of the definition
of “Qualifying Bank”.


 


(c)           an assignment or transfer shall only be
permitted if it (i) is in respect of Commitments of a minimum amount equal to
at least £500,000 (in the case of the A1 Sterling Tranche), AUD500,000 (in the
case of the A1 Australian Dollar Tranche), CAD500,000 (in the case of the A1
Canadian Dollar Tranche), CHF200,000 (in the case of the A1 Swiss Franc
Tranche), €5,000,000 (in the case of the A1 Euro Tranche),  €200,000 (in the case of the A1 Italian Non-Guaranteed
Tranche) £100,000 (in the case of the A2 Sterling Tranche), AUD100,000 (in the
case of the A2 Australian Dollar Tranche), CAD100,000 (in the case of the A2
Canadian Dollar Tranche), CHF50,000 (in the case of the A2 Swiss Franc
Tranche), €1,000,000 (in the case of the A2 Euro Tranche) and €50,000 (in the
case of the A2 Italian Non-Guaranteed Tranche) or €2,000,000 (in the case of
the C Facility), provided the aggregate Euro Amount of Commitments assigned or
transferred is equal to at least €5,000,000 or (ii) relates to all of a Bank’s
C Commitment;


 


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(d)           the consent of the Coordinator may be
withheld if the proposed assignee or transferee would, as of the date of any
assignment to it pursuant to this Clause 36 (Assignments
and Transfers) be entitled to receive any greater payment (before
deduction for or on account of any tax) under Clause 14 (Taxes) or Clause 16 (Increased
Costs) than the assigning or transferring Bank would have been
entitled to receive as of such date under such Clauses with respect to the
rights assigned (except to the extent that by reason of a change in law, or the
interpretation or application thereof, after the date the transferring Bank
became a party to this Agreement the amount of such payments to the assignee or
transferee would exceed the amount that would have been payable to the
transferring Bank);


 


(e)           in relation to any Swiss Borrower, the
Facility Agent and the Banks will ensure that assignments or transfers may not
be effected if after giving effect to such assignments or transfers there would
be more than 10 Banks (including participants and subparticipants) that are not
Qualifying Banks as defined in relation to any Swiss Borrower;


 


(f)            any such Bank wishing to assign or transfer
all or any of its rights and obligations under this Agreement shall give to
each Dutch Borrower not less than five Business Days’ prior written notice to
that effect;


 


(g)           at any time whilst it is a requirement of
Dutch law that each Bank is a PMP, any Dutch Borrower may, within five Business
Days of receipt of the relevant notice from the Bank under (e) above, object to
such assignment or transfer by notice in writing to such Bank wishing to effect
such assignment or transfer if the relevant assignee or transferee is not a
PMP; and


 


(h)           if no such objection is received from each
Dutch Borrower within such five Business Day period the relevant Bank shall be
entitled to proceed with such assignment or transfer.


 


36.4         Original Banks


 


Any assignment or
transfer made by a Bank party to this Agreement on the date hereof (an “Original Bank”) prior to the end of the Carve Out Period
shall only be permitted if the Original Banks (and each other bank or financial
institution approved for this purpose by the Original Equity Investors (such
approval not to be unreasonably withheld)) with Commitments as at the date
hereof in relation to the A Facilities or the C Facility respectively shall
hold, in aggregate, not less than 51 per cent. of the Total A1 Commitments and
the Total A2 Commitments collectively or of the Total C Commitments, as
the case may be, and provided that:


 


(a)           each of the Arrangers shall not reduce their
respective Commitments in (i) the A Facility taken as a whole or (ii) the C
Facility individually to less than 17.75 per cent. in the case of each
Mandated Lead Arranger, or 15.5 per cent. in the case of the Co-Arranger of (x)
the aggregate of the Total A1 Commitments and the Total A2 Commitments or
(y) the Total C Commitments except with the prior consent of the other
Arrangers (such consent not to be unreasonably withheld, delayed or
conditioned); and


 


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(b)           if any of the Facility Agent, the Security
Agent or any of the Arrangers wishes to assign or transfer any part of its
Commitment, it must first offer each of the others a pro rata share of such
transfer or assignment (providing reasonable details of the same), which offer
shall be deemed to have been declined if not accepted in writing within three
Business Days.


 


36.5         Assignments by Banks


 


Save as otherwise
provided in an Australian Finance Document, if any Bank assigns all or any of
its rights and benefits under the Finance Documents in accordance with
Clause 36.3 (Assignments and Transfers by Banks),
then, unless and until the assignee has delivered a notice to the Facility
Agent confirming in favour of the Facility Agent, the Security Agent, the
Arrangers and the other Banks and any relevant L/C Issuer that it shall be
under the same obligations towards each of them as it would have been under if
it had been an original party hereto as a Bank (whereupon such assignee shall
become a party hereto as a “Bank”), the
Facility Agent, the Security Agent, the Arrangers or the other Banks and any
relevant L/C Issuer shall not be obliged to recognise such assignee as having
the rights against each of them which it would have had if it had been such a
party hereto.  Any assignment shall be
notified by bailiff (huissier) to the relevant French Borrowers in accordance
with article 1690 of the French Civil Code at the initiative and at the cost of
the assignee.


 


36.6         Transfers by Banks


 


Save as otherwise
provided in an Australian Finance Document, if any Bank wishes to transfer all
or any of its rights, benefits and/or obligations under the Finance Documents
as contemplated in Clause 36.3 (Assignments and Transfers
by Banks), then such transfer may be effected by the delivery to the
Facility Agent of a duly completed Transfer Certificate in or in the form
provided for in Schedule 3 (Form of Transfer
Certificate) executed by such Bank and the relevant Transferee in
which event, on the later of the Transfer Date specified in such Transfer
Certificate and the fifth Business Day after (or such earlier Business Day
endorsed by the Facility Agent on such Transfer Certificate falling on or
after) the date of delivery of such Transfer Certificate to the Facility Agent:


 


(a)           to the extent that in such Transfer
Certificate the Bank party thereto seeks to transfer by novation its rights,
benefits and obligations under the Finance Documents, each of the Obligors and
such Bank shall be released from further obligations towards one another under
the Finance Documents and their respective rights against one another shall be
cancelled (such rights and obligations being referred to in this
Clause 36.6 as “discharged rights and
obligations”);


 


(b)           each of the Obligors and the Transferee party
thereto shall assume obligations towards one another and/or acquire rights
against one another which differ from such discharged rights and obligations
only insofar as such Obligor and such Transferee have assumed and/or acquired
the same in place of such Obligor and such Bank;


 


(c)           the Facility Agent, the Security Agent, the
Arrangers, such Transferee, the other Banks and any relevant L/C Issuer shall
acquire the same rights and


 


224





















 


benefits and assume the same obligations between themselves as they
would have acquired and assumed had such Transferee been an original party
hereto as a Bank with the rights, benefits and/or obligations acquired or
assumed by it as a result of such transfer and to that extent the Facility
Agent, the Arrangers, the relevant Bank and any relevant L/C Issuer shall each
be released from further obligations to each other under the Finance Documents;
and


 


(d)           such Transferee shall become a party hereto
as a “Bank”.


 


Any transfer by a
Bank of all or any of its rights, benefits and/or obligations under the Finance
Documents in accordance with this Clause 36.6 (Transfers by
Banks) shall be notified by bailiff (huissier) to the relevant
French Borrowers in accordance with article 1690 of the French Civil Code at
the initiative and at the cost of the assignee.


 


For the purposes
of article 1278 of the French Civil Code and article 1278 of the Belgian Civil
Code, it is expressly agreed that the security interests created pursuant to
the Security Documents shall be preserved for the benefit of the Transferee and
all other Finance Parties.


 


36.7         Assignment and Transfer Fees


 


On the date upon
which an assignment takes effect pursuant to Clause 36.5 (Assignments by Banks) or a transfer takes effect pursuant to
Clause 36.6 (Transfers by Banks) the relevant
assignee or Transferee shall pay to the Facility Agent for its own account a
fee of €2,000, provided that no such fee shall be payable in connection with
any such assignment or transfer pursuant to the primary syndication of the
Facilities or any such assignment or transfer by a Bank to its affiliate.


 


36.8         Disclosure of Information


 


Any Finance Party
may disclose to:


 


(a)           any person to (or through) whom such Finance
Party assigns or transfers (or may potentially assign or transfer) all or any
of its rights, benefits and obligations under the Finance Documents in
accordance with the terms of the Finance Documents and who agrees to comply
with the provisions of this Clause 35;


 


(b)           any person with (or through) whom such
Finance Party enters into (or may potentially enter into) any sub-participation
in relation to, or any other transaction under which payments are to be made by
reference to, this Agreement in accordance with the terms of the Finance
Documents and who agrees to comply with the provisions of this Clause 35;


 


(c)           its respective accountants, attorneys and
other advisors (provided such persons are made aware of the confidential nature
of the information disclosed); or


 


(d)           any person to whom information may be
required to be disclosed in compliance with any request or requirement of any
central bank, fiscal, monetary or other relevant authority or as may be,
compelled in any judicial or administrative proceeding or as otherwise required
by law provided that such


 


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Finance Party, acting reasonably, notifies the Parent of any disclosure
pursuant to this paragraph (d) as far in advance as is reasonably practicable
under such circumstances (save where such notification is prohibited by
applicable law or where such disclosure is made as part of a Finance Party’s
reporting obligations to a central bank, fiscal, monetary or other relevant
authority); or


 


(e)           any Rating Agency in connection with any
Permitted Securitisation if, if to do so is consistent with such Rating
Agency’s practice, it agrees to be bound by the provisions of this
Clause 36.8.


 


such information
about any Obligor or the Group and the Finance Documents as such Finance Party,
acting reasonably, shall consider appropriate, but shall otherwise keep
confidential any written or oral information provided to it by or on behalf of
any member of the Group, any other Obligor or any Original Equity Investor
pursuant to or in connection with the Finance Documents, notwithstanding
Clause 36.6 (Transfers by Banks) or any other term
of any other Finance Document which purports to release Finance Parties from
their obligations under this Clause 36.8.


 


36.9         The Register


 


(a)           The Facility Agent, acting for this purpose
as the agent of the Obligors, shall maintain at its address referred to in
Clause 42 (Notices):


 


(i)            a copy of each notice referred to in
Clause 36.5 (Assignments by Banks) and each
Transfer Certificate referred to in Clause 36.6 (Transfers by
Banks) delivered to and accepted by it; and


 


(ii)           with respect to each Facility, a register for
the recording of the names and addresses of the Banks and the Commitment in the
relevant Designated Currency of, and principal amount owing in the relevant
Designated Currency to, each Bank from time to time (the “Register”) under such Facility.


 


The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Obligors, the Facility Agent and the Banks shall
treat each person whose name is recorded in the Register as a Bank hereunder
for all purposes of this Agreement.  The
Register shall be available for inspection by any Obligor or any Bank at any
reasonable time and from time to time upon reasonable prior notice.


 


(b)           Each party to this Agreement irrevocably
authorises the Facility Agent to make the relevant entry in the Register on its
behalf for the purposes of this Clause 36.9 without any further consent
of, or consultation with, such party.


 


36.10       Affiliates/Branches


 


(a)           Each Bank may discharge its obligations in
respect of an Advance or Letter of Credit under this Agreement by nominating a
branch or affiliate of such Bank to participate in that Advance or Letter of
Credit.


 


226





















 


(b)           A Bank may nominate a branch or affiliate to
participate in one or more Advances or Letters of Credit:


 


(i)            in this Agreement; or


 


(ii)           in the Transfer Certificate pursuant to which
such Bank becomes party to this Agreement; or


 


(iii)          in the case of a branch by subsequent notice
to the Facility Agent.


 


(c)           Any branch or affiliate nominated by a Bank
to participate in an Advance or Letter of Credit shall:


 


(i)            participate in compliance with the terms of
this Agreement; and


 


(ii)           be entitled, to the extent of its
participation, to all the rights and benefits of a Bank under the Finance
Documents.


 


(d)           If (other than pursuant to Clause 18.1 (Mitigation)) a Bank nominates a branch or affiliate and the
effect of such nomination, as of the date of nomination, would be to cause any
Obligor to become obliged to pay any additional amount under Clause 14 (Taxes) or Clause 16 (Increased
Costs) which it would not have been obliged to pay if such Bank had
not nominated such branch or affiliate such Obligor shall not be obliged to pay
such amount.


 


(e)           If a Bank nominates an affiliate, that Bank
and that affiliate:


 


(i)            will be treated as having a single Commitment
but, subject as provided in (ii) below, shall for all other purposes be treated
as separate Banks; and


 


(ii)           will be regarded as a single Bank for the
purpose of voting in relation to any matter in connection with the Finance
Documents.


 


(f)            A Bank may only nominate a branch or an
affiliate under this Clause 36.10 to participate in an Advance that is
made to a Dutch Borrower, if such branch or affiliate is a PMP.


 


36.11       Assignments and Transfers of Loan Notes


 


(a)           Whenever a Bank, in relation to an Advance
made to an Australian Borrower assigns or transfers its rights and benefits, or
its rights, benefits and obligations, under this Agreement in accordance with
this Clause 36 (Assignments and Transfers)
and under the provisions of the relevant Australian Finance Document, it shall
simultaneously transfer to the assignee or transferee the Loan Notes issued by
the Australian Borrower that correspond to such Advance in a corresponding
principal amount to the principal amount of such Advance assigned or
transferred in accordance with the Loan Note Deed Poll.


 


227





















 


(b)           A Bank may only transfer its rights and
benefits under a Loan Note if it simultaneously assigns or transfers to the
assignee or transferee its corresponding rights and benefits under this
Agreement.


 


(c)           The Facility Agent shall make appropriate
entries in the Loan Note Register in respect of any assignment or transfer
referred to in this Clause 36.11 at the time it receives the notice from
the assignee referred to in Clause 36.5 (Assignments
by Banks) or on the date on which such transfer takes effect in
accordance with Clause 36.6 (Transfers by Banks).


 


(d)           A Bank transferring a Loan Note is taken to
remain the holder of such Loan Note until the name of the transferee is entered
in the Loan Note Register in respect of such Loan Note.


 


36.12       Application to Canadian Sale Right


 


Clauses 36.2 (Assignments and Transfers by Obligors) to 36.7 (Assignment and Transfer Fees) inclusive shall not apply in
the event the Canadian Permitted Bank exercises its rights under Clause 23.20 (Exercise of Sale Right).


 


37.          CHANGE OF CURRENCY


 


(a)           Unless otherwise prohibited by law, if more than
one currency or currency unit are at the same time recognised by the central
bank of any country as the lawful currency of that country, then:


 


(i)            any reference in the Finance Documents to,
and any obligations arising under the Finance Documents in, the currency of
that country shall be translated into, or paid in, the currency or currency
unit of that country designated by the Facility Agent acting reasonably (after
consultation with the Parent); and


 


(ii)           any translation from one currency or currency
unit to another shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency unit into the
other, rounded up or down by the Facility Agent (acting reasonably).


 


(b)           If a change in any currency of a country
occurs, this Agreement will, to the extent the Facility Agent (acting
reasonably and after consultation with the Parent) specifies to be necessary,
be amended to comply with any generally accepted conventions and market
practice in the relevant interbank market and otherwise to reflect the change
in currency.


 


38.          ADDITIONAL BORROWERS


 


38.1         Request for Additional Borrower


 


The Parent may
request that, on or following the Closing Date:


 


(a)           any A1 Eligible Borrower becomes an
Additional Borrower under the A1 Facility;


 


228





















 


(b)           any A2 Eligible Borrower becomes an
Additional Borrower under the A2 Facility; or


 


(c)           any C Eligible Borrower becomes an Additional
Borrower under the C Facility,


 


in each case by
delivering to the Facility Agent a Borrower Accession Memorandum and, subject
to the terms of the proviso to Clause 21.16(a) (Group
Acceding Guarantors), if such Additional Borrower is not an
Additional Guarantor, a Guarantor Accession Memorandum duly executed by the
Parent and such Additional Borrower, together with the documents and other
evidence listed in Part 1 of Schedule 8 (Additional
Conditions Precedent) in relation to such Additional Borrower.


 


38.2         Borrower Conditions Precedent


 


Any Eligible
Borrower in respect of which the Parent has delivered a Borrower Accession
Memorandum to the Facility Agent pursuant to Clause 38.1 (Request for
Additional Borrower), shall become an Additional Borrower and assume
all the rights, benefits and obligations of a Borrower as if it had been an
Original Borrower on the date on which the Facility Agent notifies the Parent
that the Facility Agent has received, in form and substance reasonably
satisfactory to it, all documents and other evidence listed in Part 1 of
Schedule 8 (Additional Conditions Precedent)
in relation to such Eligible Borrower, unless on such date an Event of Default
or Potential Event of Default is continuing or would occur as a result of such
Eligible Borrower becoming an Additional Borrower.


 


38.3         Restrictions on Lending to Certain Borrowers


 


If at any time any
Bank is prohibited either by law or pursuant to any requirement of any central
bank or other fiscal, monetary or other authority from making Advances to an
Eligible Borrower organised under the laws of a particular jurisdiction or from
having any rights or obligation under this Agreement in respect of Advances to
such an Eligible Borrower, such Bank shall, subject to Clause 18 (Mitigation and Other Provisions Relating to Taxes and Increased Costs),
notify the Facility Agent and the Parent prior to the date on which such
Eligible Borrower accedes to this Agreement, and such Bank:


 


(a)           will not be obliged to make Advances to such
Eligible Borrower;


 


(b)           will be entitled to enter into a funded
participation agreement with another Bank or the Facility Agent using the Loan
Market Association Terms and Conditions For Funded Participations (Par) or
otherwise on terms agreed with such other Bank or the Facility Agent or as
applicable, as lender of record with respect to such Borrower (such person, the
“Participation  Grantor”) to make such Advances on its
behalf; and


 


(c)           shall, in the event that a funded
participation agreement is entered into in accordance with Clause 38.3(b),
fund its participation in each such Advance by making funds available to the
Participation Grantor subject to and on the terms of such agreement.


 


229





















 


38.4         Resignation of a Borrower


 


If at any time a
Borrower is under no actual obligation as a Borrower under or pursuant to any
Finance Document, the Parent may request that such Borrower shall cease to be a
Borrower by delivering to the Facility Agent a Resignation Notice.  Such Resignation Notice shall be accepted by
the Facility Agent on the date on which it notifies the Parent that it is
satisfied (acting reasonably) that such Borrower is under no such actual
obligation as a Borrower under or pursuant to any Finance Document and such
Borrower shall immediately cease to be a Borrower and shall have no further
rights, benefits or obligations as a Borrower under the Finance Documents
provided that if such Borrower is also a Guarantor at such time, its
obligations in its capacity as Guarantor shall continue to be legal, valid,
binding and enforceable and in full force and effect and the amount guaranteed
by it as a Guarantor shall not be decreased upon its resignation as a Borrower.


 


38.5         Termination of a Borrower’s rights


 


(a)           Upon a Financeco or an SPV other than EFS
meeting the criteria to be an Eligible Borrower in respect of any Facility, if
at such time its Related Opco is a Borrower under such Facility, such Related
Opco shall, notwithstanding any other provision to the contrary in this
Agreement:


 


(i)            immediately cease to have any rights to
request Advances under this Agreement (other than Rollover Advances during the
repayment period permitted in paragraph (ii) below); and


 


(ii)           repay all outstanding Advances made to it
within 12 months or (aa) in the case of A1 Advances or A2 Advances the proceeds
of which were used to finance or re-finance the purchase price of Risk Vehicles
or trucks and/or vans owned by any Opco organised in Europe, 18 months,
(bb) in the case of A1 Advances or A2 Advances made to a Canadian Opco or an
Australian Opco the proceeds of which were used to finance or re-finance Risk
Vehicles, 24 months, or (cc) in the case of A1 Advances or A2 Advances
made to a German Borrower the proceeds of which were used to finance or
re-finance the purchase price of heavy trucks, 36 months, in each case from the
date on which the relevant Financeco or an SPV becomes an Operational Financeco
or an Operational SPV (as the case may be).


 


(b)           If any Eligible Borrower, after becoming an
Additional Borrower, ceases to satisfy the Eligibility Criteria (in this
paragraph (b), a “Failure”), such
Borrower will thereupon cease to have any rights to request Advances under this
Agreement until such time as it again satisfies the Eligibility Criteria
provided that if such Failure continues for a period of more than 30 days, such
Borrower shall immediately repay all Advances made to it.


 


(c)           Any Take-Out Borrower which is the subject of
a Take-Out Financing in respect of all its assets that would otherwise have
formed part of its Borrower Asset Value shall, upon the consummation of such
Take-Out Financing, cease to be entitled to request Advances under this
Agreement.


 


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39.          ADDITIONAL GUARANTORS,
RESIGNATION OF GUARANTORS AND DESIGNATED OBLIGORS; CHANGE OF COORDINATOR


 


39.1         Request for Additional Guarantor


 


The Parent may
request that any of its subsidiaries an Orphan SPV or an Orphan Financeco
becomes an Additional Guarantor by delivering to the Facility Agent a Guarantor
Accession Memorandum duly executed by the Parent and such subsidiary, Orphan
SPV or Orphan Financeco as the case may be, together with the documents and
other evidence listed in Part 1 of Schedule 8 (Additional
Conditions Precedent) in relation to such subsidiary, Orphan SPV or
Orphan Financeco as the case may be.


 


39.2         Guarantor Conditions Precedent


 


A subsidiary of
the Parent, an Orphan SPV or an Orphan Financeco, in respect of which the
Parent has delivered a Guarantor Accession Memorandum to the Facility Agent,
shall, subject to the terms of such Guarantor Accession Memorandum, became an
Additional Guarantor and assume all the rights, benefits and obligations of a
Guarantor as if it had been an original party hereto as a Guarantor on the date
on which the Facility Agent notifies the Parent that it has received, in form
and substance reasonably satisfactory to it, all the documents and other
evidence listed in Part 1 of Schedule 8 (Additional
Conditions Precedent) in relation to such subsidiary, or Orphan SPV
or on Orphan Financeco.


 


39.3         Resignation of a Guarantor


 


The Parent may
request that a Guarantor (other than the Parent) which is not also a Borrower
or is a Borrower in respect of which Clause 38.4 (Resignation
of a Borrower) applies ceases to be a Guarantor by delivering to the
Facility Agent a Resignation Notice.  The
Facility Agent shall accept such Resignation Notice and notify the Parent of
its acceptance (whereupon such Guarantor shall immediately cease to be a
Guarantor and shall have no further rights, benefits or obligations hereunder
save for those which arose prior to such date) unless on such date an Event of
Default or Potential Event of Default is continuing.


 


39.4         Request for Designated Obligor


 


The Parent may
request that any of its subsidiaries (other than any Borrower or Guarantor)
become a Designated Obligor by delivering to the Facility Agent the documents
and other evidence listed in Part 2 of Schedule 8 (Additional Conditions Precedent) in relation to such
subsidiary.


 


39.5         Designated Obligor Conditions Precedent


 


A subsidiary of
the Parent shall become a Designated Obligor for the purposes of this Agreement
on the date on which the Facility Agent notifies the Parent that (a) it
has accepted the Parent’s request to nominate such subsidiary as a Designated
Obligor, and (b) it has received, in form and substance reasonably
satisfactory to it, all the documents and other evidence listed in Part 2
of Schedule 8 (Additional Conditions
Precedent) in relation to such subsidiary.


 


231

















 


39.6         Cessation of a Designated Obligor


 


The Parent may
request that a Designated Obligor ceases to be a Designated Obligor by
delivering to the Facility Agent a Resignation Notice.  The Facility Agent shall accept such
Resignation Notice and notify the Parent of its acceptance (whereupon such
Designated Obligor shall immediately cease to be a Designated Obligor for the
purposes of this Agreement) if it has no outstanding obligations or rights
under a Designated Obligor Intercompany Loan Agreement, unless on such date an
Event of Default or Potential Event of Default is continuing.


 


39.7         Change of Coordinator


 


(a)           The Parent may request that any of its
subsidiaries acceptable to the Facility Agent (acting reasonably) becomes the
Coordinator in place of the existing Coordinator and such change shall become
effective upon that subsidiary delivering to the Facility Agent a Guarantor
Accession Memorandum duly executed by the Parent and such subsidiary together
with such other supporting documents as the Facility Agent may reasonably
require and the Facility Agent confirming that such supporting documents are
acceptable to it.


 


(b)           Upon satisfaction of the matters set out in
paragraph (a) of this Clause 39.7, the existing Coordinator shall be released
from all future obligations as Coordinator under the Finance Documents and
shall have no further rights as Coordinator.


 


40.          CALCULATIONS AND EVIDENCE
OF DEBT


 


40.1         Basis of Accrual


 


(a)           Interest, letter of credit commission and
commitment commission shall accrue from day to day and shall be calculated on
the basis of a year of 360 days (or, in the case of (i) any Advance denominated
in sterling, 365 days or (ii) any Advance denominated in Australian Dollars or
Canadian Dollars and with respect to any other fees payable under any Finance
Document, 365 days (or if the applicable year is a leap year, 366 days) or in
any case where market practice differs, in accordance with market practice) and
the actual number of days elapsed.


 


(b)           For the purposes of the Interest Act (Canada)
and with respect to a Canadian Borrower, (i) whenever any interest or fee
payable in relation to a Canadian Advance or a Canadian Tranche is calculated
using a rate based on a year of 365 or 366 days, as the case may be, the rate
determined pursuant to such calculation, when expressed as an annual rate, is
equivalent to (x) the applicable rate based on a year of 365 or 366 days, as
the case may be, (y) multiplied by the actual number of days in the
calendar year in which the period for which such interest or fee is payable (or
compounded) ends, and (z) divided by 365 or 366, as the case may be, (ii)
the principle of deemed reinvestment of interest does not apply to any interest
calculation under this Agreement, and (iii) the rates of interest stipulated in
this Agreement are intended to be nominal rates and not effective rates or
yields.


 


232





















 


(c)           If any provision of this Agreement would
oblige a Canadian Borrower to make any payment of interest or other amount
payable to any Bank in an amount or calculated at a rate that would be
prohibited by applicable law or would result in a receipt by that Bank of
“interest” at a “criminal rate” (as such terms are construed under the Criminal
Code (Canada)), then, notwithstanding such provision, 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
applicable law or so result in a receipt by that Bank of “interest” at a
“criminal rate”, such adjustment to be effected, to the extent necessary (but
only to the extent necessary), as follows:


 


(i)            first, by reducing the amount or rate of
interest required to be paid to the affected Finance Party hereunder; and


 


(ii)           thereafter, by reducing any fees,
commissions, costs, expenses, premiums and other amounts required to be paid to
the affected Finance Party which would constitute interest for purposes of
section 347 of the Criminal Code (Canada).


 


(d)           When entering into this Agreement, the
parties hereto have assumed that payment of interest by the Swiss Borrower
payable hereunder is not and will not become subject to Swiss Withholding
Tax.  Therefore, and without prejudice to
the procedures and obligations of Clause 14.1 (Tax Gross-up),
the Swiss Borrower and each of the Guarantor acknowledge and agree that the
interest rates set out in this Agreement shall constitute minimum interests
rate, which, if Swiss Withholding Tax should apply, shall be adjusted as
follows:


 


(i)            the Swiss Borrower or, as the case may be,
the Swiss Guarantors will pay such additional amounts as shall be necessary in
order for the net amounts received by the Banks after the withholding of Swiss
Withholding Tax to be equal to the respective amounts of interest which would
otherwise have been receivable in respect of the Facilities, as the case may
be, in the absence of the withholding of Swiss Withholding Tax and


 


(ii)           for this purpose, the Swiss Withholding Tax shall
be calculated on the full grossed-up interest amount at a rate of 35 per cent.
(as of the date of this Agreement), unless a tax ruling obtained from the Swiss
Federal Tax Administration confirms that such rate is, pursuant to any
double-taxation treaty, a specified lower rate in relation to specified Banks
in which case such lower rate shall be applied in relation to the relevant
Bank.


 


As
stated in Clause 14.3(d) (Bank’s Tax Status),
a Swiss Borrower is not obliged to make any additional interest payments of any
kind if Swiss Withholding Tax applies due to the fact that there are more than
ten Banks which are not Qualifying Banks in relation to such Swiss Borrower
under this Agreement. This paragraph (d) is therefore not applicable with
regard to any Swiss Obligor in any situation covered by Clause 14.3 (Bank’s Tax Status), unless such Swiss Obligor has violated
this paragraph (d).


 


233

















 


40.2         Quotations


 


Subject to Clause
9 (Market Disruption and Alternative Interest Rates),
if on any occasion a relevant Reference Bank or Bank fails to supply the
Facility Agent with a quotation required of it under the foregoing provisions
of this Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Facility Agent.


 


40.3         Evidence of Debt


 


Each Bank shall
maintain in accordance with its usual practice accounts evidencing the amounts
from time to time lent by and owing to it hereunder.


 


40.4         Control Accounts


 


The Facility Agent
shall maintain on its books a control account or accounts in which shall be
recorded (a) the amount of any Advance or Unpaid Sum and the face amount of any
Letter of Credit issued and each Bank’s share therein, (b) the amount of all
principal, interest and other sums due or to become due from an Obligor and
each Bank’s share therein and (c) the amount of any sum received or recovered
by the Facility Agent hereunder and each Bank’s share therein.


 


40.5         Prima Facie Evidence


 


In any legal
action or proceeding arising out of or in connection with this Agreement, the
entries made in the accounts maintained pursuant to Clause 40.3 (Evidence of Debt) and Clause 40.4 (Control
Accounts) shall, in the absence of manifest error, be prima facie evidence
of the existence and amounts of the specified obligations of the Obligors.


 


40.6         Certificates of Banks


 


A certificate of a
Bank as to (a) the amount by which a sum payable to it hereunder is to be
increased under Clause 14.1 (Tax Gross-up),
(b) the amount for the time being required to indemnify it against any such
cost, payment or liability as is mentioned in Clause 14.2 (Tax Indemnity) or Clause 16 (Increased
Costs) or (c) the amount of any credit, relief, remission or
repayment as is mentioned in Clause 15.3 (Tax Credit
Payment) or Clause 15.4 (Tax and Other Affairs)
shall, in the absence of manifest error, be prima facie evidence of the
existence and amounts of the specified obligations of the Obligors.


 


40.7         Facility Agent’s Certificates


 


A certificate of
the Facility Agent as to the amount at any time due from the Borrowers or the
Parent hereunder or the amount which, but for any of the obligations of such
Borrower or the Parent hereunder being or becoming void, voidable,
unenforceable or ineffective, at any time would have been due from the
Borrowers hereunder shall, in the absence of manifest error, be prima facie
evidence for the purposes of Clause 24 (Guarantee
and Indemnity).


 


234

















 


40.8         Letters of Credit


 


A certificate of
an L/C Issuer as to the amount paid out by such L/C Issuer in respect of any
Letter of Credit shall, save for manifest error, be prima facie evidence of the
payment of such amounts in any legal action or proceedings arising in connection
therewith.


 


41.          REMEDIES AND WAIVERS,
PARTIAL INVALIDITY


 


41.1         Remedies and Waivers


 


No failure to
exercise, nor any delay in exercising, on the part of any Finance Party, any
right or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy prevent any further or other
exercise thereof or the exercise of any other right or remedy.  The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law.


 


41.2         Partial Invalidity


 


If, at any time,
any provision of the Finance Documents is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions thereof nor
the legality, validity or enforceability of such provision under the law of any
other jurisdiction shall in any way be affected or impaired thereby.


 


42.          NOTICES


 


42.1         Communications in Writing


 


Each communication
to be made under the Finance Documents shall be made in writing and, unless
otherwise stated, shall be made by fax or letter.


 


42.2         Addresses


 


(a)           Except as otherwise provided in paragraph (b)
below, any communication or document to be made or delivered pursuant to the
Finance Documents shall (unless the recipient of such communication or document
has, by 15 days’ written notice to the Facility Agent specified another address
or fax number) be made or delivered to the address or fax number:


 


(i)            in the case of the Facility Agent and the
Global Coordinator identified with their respective name below;


 


(ii)           in the case of the Original Obligors,
notified in writing to the Coordinator:


 


(A)          Attention of: Nuns Moodliar, Vice
President, Legal & Corporate Affairs Secretary


 


	
  Address:

  	
   

  	
  Hertz Europe Limited

  
	
   

  	
   

  	
  Hertz House

  
	
   

  	
   

  	
  11 Vine Street

  
	
   

  	
   

  	
  Uxbridge, Middlesex TW5 9SW

  
	
   

  	
   

  	
  England UB8 1QE

  
	
   

  	
   

  	
   

  
	
  Fax number:

  	
   

  	
  +44 (0) 208 750 3728

  
	
  Email:

  	
   

  	
  nmoodliar@hertz.com

  



 


235

















 


(iii)          in the case of each Bank or L/C Issuer,
notified in writing to the Facility Agent prior to the date hereof (or, in the
case of a Transferee, at the end of the Transfer Certificate to which it is a
party as Transferee); and


 


(iv)          in the case of each Additional Obligor, in the
relevant Accession Memorandum,


 


provided
that not more than one address may be specified by each party pursuant to this
paragraph (a) at any time.


 


(b)           Any Asset Report or Notification to be
delivered pursuant to the terms of this Agreement (unless the recipient of such
Asset Report or Notification has, by 15 days’ written notice to the Facility
Agent specified another address or fax number) be made or delivered to the
address or fax number:


 


(i)            in the case of the Facility Agent to:


 


(A)          Attention of: Jérôme Eschbach / Violaine
Delaunay


 


	
  Fax number::

  	
   

  	
  +33 (0)1 42 98 69 19 / +33 (0)1 42 98 69 19

  
	
   

  	
   

  	
   

  
	
  Phone number:

  	
   

  	
  +33 (0)1 42 98 19 40 / +33 (0)1 43 16 97 25

  
	
   

  	
   

  	
   

  
	
  E-mail:

  	
   

  	
  jerome.eschbach@bnpparibas.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  violaine.delaunay@bnpparibas.com

  



 


(B)           Securitisation Management Team


 


	
  Fax number::

  	
   

  	
  +33 (0)1 42 98 69 19

  
	
   

  	
   

  	
   

  
	
  Phone number:

  	
   

  	
  +33 (0)1 43 16 97 25

  
	
   

  	
   

  	
   

  
	
  E-mail:

  	
   

  	
  paris_bfi_sec_hz@bnpparibas.com;

  



 


(ii)           in the case of The Royal Bank of Scotland plc
to:


 


(A)          Attention of: RBS Asset Securitisation
Paul Shah / John Gulvin


 


	
  Fax number::

  	
   

  	
  + 44 20 7085 5395

  
	
   

  	
   

  	
   

  
	
  Phone number:

  	
   

  	
  + 44 20 7085 8132 / +44 20 7085 3854

  
	
   

  	
   

  	
   

  
	
  E-mail:

  	
   

  	
  securitisation.support@rbos.com

  



 


236














 


(B)           Attention of: Massimo De Matteis and Sara
Brugora


 


Fax number:           +39 02 6597 923


 


Phone number:


 


E- mail:                   Massimo.De.Matteis@rbos.com


 


Sara.Brugora@rbos.com A


 


(C)           Attention of: LAU Structured Finance Team


 


Fax number:           +44 207 615 0135


 


Phone number:     TBC


 


E-mail:                    Carly.Fitzgerald@rbs.co.uk


 


Lucille.bayjou@rbs.co.uk


 


(D)          Attention of: Georgett Ellias/ Damien Selakovic


 


Fax number:           +612 9004 2147


 


Phone number:     +612
9004 2130 / 612 9004 2131


 


E-mail:                    fmsydassetsecmgt@rbos.com


 


(E)                                 Attention of: RBS Structured Finance/ Risk &
Portfolio Management, Moya Kitchen


 


Fax Number:          +44 (0)124 222 4867


 


Phone Number:     +44
(0)124 224 0402


 


E-mail:                    moya.kitchen@rbs.co.uk;


 


(iii)                               in the case of CALYON, to:


 


(A)          Attention
of Securitisation Team / Edith Lusson / Laurent Haik


 


Fax number:           +
33 (0) 1 57 87 17 54


 


Phone number:     +
33 (0) 1 57 87 17 75 / + 33 (0) 1 41 89 68 08


 


E-mail:                    Edith.Lusson@calyon.com


 


Laurent.Haik@calyon.com


 


(B)                                Attention
of Securitisation Management Team / Edouard Legrand


 


Fax number:           +
33 (0) 1 57 87 17 58


 


237

















 


Phone number: + 33 (0) 1 57 87 17 70


 


E-mail:                    Edouard.Legrand@calyon.com


 


(C)           Attention
of Brigitte Boddaert


 


Fax number:           + 33 (0) 1 41 89 47 90


 


Phone number :    +
33 (0) 1 41 89 37 70


 


E-mail:                    brigitte.boddaert@calyon.com


 


(D)                               Attention
of Virginie Holton


 


Fax number :          + 33 (0) 1 41 89 47 90


 


Phone number:     +
33 (0) 1 41 89 14 55


 


E-mail:                    virginie.holton@calyon.com


 


(E)                                 Attention
of Raffaella Restelli


 


Fax number:           +39 02 72303 317


 


Phone number:     +39
02 72303 507


 


E-mail:                    raffaella.restelli@it.calyon.com


 


(F)                                 Attention
of Massimo Perversi.


 


Fax number:           +39 02 72303 317


 


Phone number:     +39
02 72303 267


 


E-mail:                    massimo.perversi@it.calyon.com


 


(G)                                Attention of Steve Hatch / Clem McHugh / Don
Finkel


 


Fax number:           +44 207 214 6761 / 6816


 


Phone number:     +44
207 214 6720 / +44 207 214 6724 / +44 207 214 6654 (respectively)


 


(iv)                              in the case of any other Bank, in
accordance with the provisions of Clause 42 (Notices).


 


42.3                           Delivery


 


Any communication
or document to be made or delivered by one person to another pursuant to the
Finance Documents shall:


 


(a)                                  if by way of fax, be deemed to have been
received when transmission has been completed; and


 


238

















 


(b)                                 if by way of letter, be deemed to have been
delivered when left at the relevant address or, as the case may be, ten days
after being deposited in the post postage prepaid in an envelope addressed to
it at such address,


 


provided that any
communication or document to be made or delivered to the Facility Agent or
Security Agent shall be effective only when received by its agency division and
then only if the same is expressly marked for the attention of the department
or officer identified with the Facility Agent’s or Security Agent’s signature
below (or such other department or officer as the Facility Agent or Security
Agent, as the case may be, shall from time to time specify for this purpose).


 


42.4                           Electronic communication


 


(a)                                  Any communication to be made between the
Facility Agent and a Bank under or in connection with the Finance Documents may
be made by electronic mail or other electronic means, if the Facility Agent and
the relevant Bank:


 


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


 


(ii)                                  notify each other in writing of
their electronic mail address and/or any other information required to enable
the sending and receipt of information by that means; and


 


(iii)                               notify each other of any change to
their address or any other such information supplied by them.


 


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


 


42.5                           English Language


 


Each communication
and document made or delivered by one party to another pursuant to the Finance
Documents shall be in the English language or accompanied by a translation
thereof into English certified (by an officer of the person making or
delivering the same) as being a true and accurate translation thereof.


 


42.6                           Notification of Changes


 


Promptly upon receipt
of notification of a change of address or fax number pursuant to Clause 42.2
(Addresses) or changing its own address
or fax number the Facility Agent shall notify the other parties hereto of such
change.


 


42.7                           Deemed Receipt by the Obligors


 


Any communication
or document made or delivered to the Parent in accordance with Clause 42.3
(Delivery) shall be deemed to have been
made or delivered to each of the Obligors.


 


239

















 


43.                               COUNTERPARTS


 


This Agreement may
be executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument.


 


44.                               AMENDMENTS


 


44.1                           Amendments


 


The Facility Agent,
if it has the prior consent of an Instructing Group in respect of each
Facility, and the Parent (acting on behalf of each of the Obligors) may from
time to time agree in writing to amend the Finance Documents or to waive,
prospectively or retrospectively, any of the requirements of the Finance
Documents and any amendments or waivers so agreed shall be binding on all the
Finance Parties, subject to Clause 44.2 (Amendments
Requiring Different Consent Levels).


 


44.2                           Amendments Requiring Different Consent Levels


 


No amendment of any
of the Finance Documents or waiver of any of the requirements of the Finance
Documents shall:


 


(a)                                  amend or waive any of the provisions of
Clause 33 (Sharing) or this Clause 44
without the consent of all the Banks;


 


(b)                                 reduce the amount or extend the scheduled date
of maturity of any Advance or any scheduled instalment of principal thereof, or
change the currency (other than as contemplated hereby) in which such Advance
is expressed to be payable, without the consent of all of the Banks;


 


(c)                                  decrease the Applicable Margin or L/C
Commission Rate or reduce the amount of any scheduled payment of interest or of
any fee payable to any Finance Party, or extend the scheduled date of payment
of such interest or fee, or change the currency (other than as contemplated
hereby) in which such interest or fee is expressed to be payable, without the
consent of each Finance Party directly affected thereby;


 


(d)                                 increase the amount of any Bank’s Commitment
without the consent of such Bank; or


 


(e)                                  amend or waive any of the requirements of any
provision of any Finance Document that expressly requires the consent or
approval of all the Banks or a certain percentage of the Banks, without the
consent of all the Banks or that specified percentage,


 


provided that:


 


if a Bank refuses
to consent inter alia to any waiver, amendment or
other consent requested under the terms of the Finance Documents where
unanimity is required but an Instructing Group has consented to such waiver,
amendment or consent, the Parent shall have the right to (x) require that Bank
to transfer all (but not part of) its Commitments to another person identified
by the Parent which is willing to accept such transfer provided further that
such transfer is


 


240

















 


made for cash, at
par and together with all amounts on account of accrued interest, breakage
costs and other sums owing to such Bank in respect of its Commitment so
transferred.  Any such transfer shall be
carried out in accordance with Clause 36 (Assignments and Transfers) or (y) with the consent of an
Instructing Group in respect of each Facility terminate the Commitment of such
Bank subject only to repayment in full of all amounts owing to such Bank under
this Agreement.


 


44.3                           Exceptions


 


Notwithstanding any
other provisions hereof, neither the Facility Agent, the Security Agent nor any
L/C Issuer shall be obliged to agree to any such amendment or waiver if the
same would:


 


(a)                                  (in respect of the Facility Agent the Security
Agent only) amend or waive this Clause 44 (Amendments),
Clause 27 (Costs and Expenses) or Clause 34
(The Facility Agent, the Security Agent, the Global
Coordinator and the Finance Parties) or Clause 35 (The Bank and the L/C Issuer); or


 


(b)                                 otherwise amend or waive any of the Facility
Agent’s, the Security Agent or such L/C Issuer’s rights hereunder or subject
the Facility Agent, the Security Agent, the Mandated Lead Arrangers or such L/C
Issuer to any additional obligations hereunder.


 


45.                               LOAN NOTES TO BE
ISSUED BY AUSTRALIAN BORROWERS


 


45.1                           Loan Note Deed Poll


 


(a)                                  Before the Utilisation Date for the first
Advance by a Bank not being a Qualifying Bank (within paragraphs (c)(i) to
(iii) of the definition thereof) in relation to Australian Borrowers, to
any Australian Borrower, such Australian Borrower will execute a Loan Note Deed
Poll and deliver it to the Facility Agent in escrow.  On receipt of the proceeds of the first
Advance to such Australian Borrower, the Facility Agent will date such Loan
Note Deed Poll and such Australian Borrower will be taken to have delivered
unconditionally such Loan Note Deed Poll.


 


(b)                                 The provisions of this Clause 45 will only
apply where an Advance denominated in Australian Dollars is made by a Bank not
being a Qualifying Bank (within paragraphs (c)(i) to (iii) of the
definition thereof) in relation to Australian Borrowers.


 


45.2                           Issue of Loan Notes


 


On the payment by
each Bank not being a Qualifying Bank (within paragraphs (c)(i) to (iii) of
the definition thereof) in relation to Australian Borrowers of the first
Advance to an Australian Borrower such Australian Borrower will issue Loan
Notes for such Facility (or, in the case of any Facility, the relevant Tranche)
to any such Bank with:


 


241

















 


(a)                                  a maximum principal amount equal to the Bank’s
Commitment under such Facility or Tranche (as the case may be) and denominated
in the relevant Designated Currency in which the Commitments for such Facility
or Tranche (as the case may be) are denominated; and


 


(b)                                 a principal amount outstanding equal to the
Bank’s Proportion of the principal outstanding under such Facility or Tranche
(as the case may be) from time to time as recorded in the Register maintained
in accordance with Clause 36.9 (The Register)
and Clause 45.6 (Maintenance of Loan Note
Register).


 


45.3                           Redemption of Loan Notes


 


Other than on the
Final Maturity Date redemption of a Loan Note is permitted only to the extent
that at all times the Minimum Principal Loan Note Amount is maintained with
respect to such Loan Note.


 


45.4                           Application of funds and update Loan Note Register


 


On receipt of funds
for subsequent Advances under any Facility, the Facility Agent shall update the
principal amount outstanding under the Loan Notes in the Loan Note Register.


 


45.5                           Establishment of Loan Note Register


 


The Facility Agent
shall establish and maintain a Loan Note Register in the same place in which it
maintains the Register under Clause 36.9 (The Register).


 


45.6                           Maintenance of Loan Note Register


 


(a)                                  If any Loan Notes are issued under this Clause 45,
the Facility Agent shall inscribe the following information in the Loan Note
Register in respect of each Australian Borrower and the Loan Notes:


 


(i)                                     the maximum principal amount and outstanding
principal amount of the Loan Notes;


 


(ii)                                  the name and address of the initial
Bank and each subsequent Bank entitled to the Loan Notes;


 


(iii)                               the account or address of the Bank
to which payments are to be made in respect of the Loan Notes and the related
Advance; and


 


(iv)                              details of all transfers or
assignments, advances, repayments, prepayments and redemption of all or part of
the Loan Notes and any reduction of the maximum principal amount of the Loan
Notes; and


 


(v)                                 any other information which the Facility Agent
determines should be included in the Loan Note Register in respect of the Loan
Notes.


 


(b)                                 The Facility Agent shall promptly update the
Loan Note Register to record changes.


 


242

















 


45.7                           Loan Note Register is paramount


 


(a)                                  Each Australian Borrower, the Facility Agent
and the Security Agent shall recognise the Bank whose name appears in the Loan
Note Register as the absolute owner of Loan Notes inscribed in its name on the
Loan Note Register without regard to any other record or instrument.


 


(b)                                 No notice of any trust or other interest in any
Loan Note will be entered on the Loan Note Register.  Neither the Australian Borrower, the Facility
Agent nor the Security Agent need take notice of any other interest in, or
claim to, a Loan Note, except as ordered by a court of competent jurisdiction or
required by law.


 


45.8                           Offers of Loan Notes


 


The Australian
Borrower must ensure that it or any agent or other party acting on its behalf
offers each Loan Note in a manner which does not require disclosure under Part 6D.2
of the Australian Corporations Act 2001 (Cth).


 


45.9                           Qualifying Bank Representation


 


Each Bank
represents that it is a Qualifying Bank (within paragraph (c) of the
definition thereof).


 


46.                               GOVERNING LAW


 


Save as provided in
Clause 1.12 (New York Law), this Agreement and
all matters arising from or connected with it are governed by English law.


 


47.                               JURISDICTION


 


47.1                           English Courts


 


The courts of
England have exclusive jurisdiction to settle any dispute (a “Dispute”) arising out of or in connection with this
Agreement (including a dispute regarding the existence, validity or termination
of this Agreement or the consequences of its nullity).


 


47.2                           Convenient Forum


 


The parties agree
that the courts of England are the most appropriate and convenient courts to
settle Disputes between them and, accordingly, that they will not argue to the
contrary.


 


47.3                           Non-Exclusive Jurisdiction


 


This Clause 47
is for the benefit of the Finance Parties only. 
As a result and notwithstanding Clause 47.1 (English
Courts), it does not prevent any Finance Party from taking
proceedings relating to a Dispute (“Proceedings”)
in any other courts with jurisdiction. 
To the extent allowed by law, the Finance Parties may take concurrent
Proceedings in any number of jurisdictions.


 


243

















 


47.4                           Service of Process


 


(a)                                  Each Obligor incorporated outside England and
Wales agrees that the documents which start any Proceedings and any other
documents required to be served in relation to those Proceedings may be served
on it at Hertz Europe Limited, Hertz House, 11 Vine Street, Uxbridge, Middlesex
UB8 1QE, addressed to the attention of Vice President, Legal &
Corporate Affairs or, if different, its registered office in England and Wales,
who will be the service of process agent.


 


(b)                                 If the appointment of the person mentioned in
this Clause 47.4 ceases to be effective, the relevant Obligor shall
immediately appoint another person in England to accept service of process on
its behalf in England or Wales.  If an
Obligor fails to do so (and such failure continues for a period of not less
than 14 days), the Facility Agent shall be entitled to appoint such a person by
notice to such Obligor.  Nothing
contained herein shall restrict the right to serve process in any other manner
allowed by law.  This Clause 47.4
applies to Proceedings in England and to Proceedings elsewhere.


 


48.                               PLEDGES ON BANK
ACCOUNTS UNDER GENERAL TERMS AND CONDITIONS


 


(a)                                  Security created by any general terms and
conditions of business of a Finance Party over LTIBR owing to an Obligor shall
not secure directly or indirectly any advances made to any Borrower
incorporated in the Federal Republic of Germany (other than the relevant
Obligor itself) under the Finance Documents, but will nonetheless be valid as
security for all other obligations secured under such general terms and
conditions of business.


 


(b)                                 Notwithstanding anything to the contrary herein
or in the Finance Documents, (i) no German real estate shall secure any
borrowings of a German Obligor and (ii) no LTIBR of a person that is
affiliated with any German Obligor shall, directly or indirectly, secure any
borrowings of a German Obligor either by way of pledge, assignment for security
purposes or any other type of encumbrance. 
In case of a violation of either (i) or (ii) of the preceding
sentence and only with respect to borrowings of a German Obligor, no rights may
be claimed under such security and the parties shall be obligated to treat each
other as though such security had never been given and shall further be
obligated to immediately release any such security but only to the extent that
it relates to borrowings by a German Obligor.


 


(c)                                  Notwithstanding anything to the contrary herein
or in the Finance Documents, no German VAT refund claims owing to an Irish person
by the German tax authorities, which person is affiliated with any German
Obligor (including, but not limited to, an Irish SPV to be formed at a later
point for the purpose of leasing vehicles to a German Opco) shall secure any
borrowings under this Agreement either by way of pledge, assignment for
security purposes or any other type of encumbrance.


 


AS WITNESS the hands of the duly authorised
representatives of the parties hereto the day and year first before written.


 


244

















 


SCHEDULE 1


 


THE BANKS AND THEIR COMMITMENTS


 


PART 1


	
  Bank

  	
   

  	
  A1 Commitment

  	
   

  	
  A2 Commitment

  	
   

  	
  C Commitment

  	
   

  
	
   

  	
   

  	
  A1 Sterling

  Tranche

  (£)

  	
   

  	
  A1 Australian

  Dollar Tranche

  (AUD)

  	
   

  	
  A1 Canadian

  Dollar Tranche

  (CAD)

  	
   

  	
  A1 Swiss Franc

  Tranche

  (CHF)

  	
   

  	
  A1 Euro Tranche

  (€)

  	
   

  	
  A2 Sterling Tranche

  (£)

  	
   

  	
  A2 Australian

  Dollar Tranche

  (AUD)

  	
   

  	
  A2 Canadian

  Dollar Tranche

  (CAD)

  	
   

  	
  A2 Swiss Franc

  Tranche

  (CHF)

  	
   

  	
  A2 Euro Tranche

  (€)

  	
   

  	
  (€)

  	
   

  
	
  BNP Paribas

  	
   

  	
  51,030,000

  	
   

  	
  74,445,000

  	
   

  	
  —

  	
   

  	
  20,615,000

  	
   

  	
  486,569,825

  	
   

  	
  7,280,000

  	
   

  	
  10,640,000

  	
   

  	
  —

  	
   

  	
  2,940,000

  	
   

  	
  69,509,825

  	
   

  	
  43,750,000

  	
   

  
	
  BNP Paribas (Canada)

  	
   

  	
  312,300,000

  	
   

  	
  44,600,000

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Royal Bank of Scotland plc

  	
   

  	
  51,030,000

  	
   

  	
  74,445,000

  	
   

  	
  —

  	
   

  	
  20,615,000

  	
   

  	
  486,569,825

  	
   

  	
  7,280,000

  	
   

  	
  10,640,000

  	
   

  	
  —

  	
   

  	
  2,940,000

  	
   

  	
  69,509,825

  	
   

  	
  43,750,000

  	
   

  
	
  CALYON

  	
   

  	
  43,740,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  17,670,000

  	
   

  	
  417,059,850

  	
   

  	
  6,240,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  2,520,000

  	
   

  	
  59,579,850

  	
   

  	
  37,500,000

  	
   

  
	
  Indosuez Finance (UK) Limited

  	
   

  	
  —

  	
   

  	
  63,810,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  9,120,000

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  	
  —

  	
   

  
	
  TOTAL

  	
   

  	
  145,800,000

  	
   

  	
  212,700,000

  	
   

  	
  312,300,000

  	
   

  	
  58,900,000

  	
   

  	
  1,390,199,500

  	
   

  	
  20,800,000

  	
   

  	
  30,400,000

  	
   

  	
  44,600,000

  	
   

  	
  8,400,000

  	
   

  	
  198,599,500

  	
   

  	
  125,000,000

  	
   

  



 


245

















 


PART 2


 


	
  Bank

  	
   

  	
  A1 Swingline

  Commitment (€)

  	
   

  	
  A2 Swingline

  Commitment (€)

  	
   

  	
  C Swingline

  Commitment (€)

  	
   

  
	
  BNP Paribas

  	
   

  	
  30,625,000

  	
   

  	
  4,375,000

  	
   

  	
  5,250,000

  	
   

  
	
  The Royal Bank of Scotland plc

  	
   

  	
  30,625,000

  	
   

  	
  4,375,000

  	
   

  	
  5,250,000

  	
   

  
	
  CALYON

  	
   

  	
  26,250,000

  	
   

  	
  3,750,000

  	
   

  	
  4,500,000

  	
   

  
	
  TOTAL

  	
   

  	
  87,500,000

  	
   

  	
  12,500,000

  	
   

  	
  15,000,000

  	
   

  



 


246

















 


SCHEDULE 2



THE BORROWERS AND THE GUARANTORS


 


Part 1

The Original Borrowers


 


A1


 


Australia


 


HA Funding Pty Limited (ACN
117 549 498)


 


Belgium


 


Hertz Belgium N.V.


 


Canada


 


Hertz Canada Limited


 


France


 


Hertz France SAS


 


Equipole Finance Services SAS


 


Germany


 


Hertz Autovermietung GmbH


 


Italy


 


Hertz
Italiana S.p.A.


 


The Netherlands


 


BNS Automobile Funding B.V.


 


247

















 


Spain


 


BNS Automobile Funding B.V.


 


Switzerland


 


Hertz AG


 


United Kingdom


 


Hertz (U.K.) Limited


 


A2


 


Australia


 


HA Funding Pty Limited (ACN
117 549 498)


 


Belgium


 


Hertz Belgium N.V.


 


Canada


 


Hertz Canada Limited


 


France


 


Hertz France SAS


 


Equipole Finance Services SAS


 


Germany


 


Hertz Autovermietung GmbH


 


248

















 


Italy


 


Hertz Italiana S.p.A.


 


The Netherlands


 


BNS Automobile Funding B.V.


 


Spain


 


BNS Automobile Funding B.V.


 


Switzerland


 


Hertz AG


 


United Kingdom


 


Hertz (U.K.) Limited


 


C


 


France


 


Hertz Equipement France SAS


 


Equipole Finance Services SAS


 


Spain


 


BNS Automobile Funding B.V.


 


249

















 


Part 2

The Original Guarantors


 


Parent


 


Hertz International, Ltd.


 


Australia


 


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


 


Belgium


 


Hertz Belgium N.V.


 


France


 


Hertz France SAS


 


Hertz Equipement France SAS


 


Equipole Finance Services SAS


 


Germany


 


Hertz Autovermietung GmbH


 


Italy


 


Hertz
Italiana S.p.A.


 


The Netherlands


 


BNS Automobile Funding B.V.


 


Stuurgroep Holland BV


 


250

















 


Spain


 


Hertz de Espana S.A.


 


Hertz
Alquiler de Maquinaria S.L.


 


Switzerland


 


Hertz AG


 


United Kingdom


 


Hertz (U.K.) Limited


 


251

















 


SCHEDULE 3



FORM OF TRANSFER CERTIFICATE


 


Form of
Transfer Certificate


 


To:          [•], as Facility Agent


 


TRANSFER
CERTIFICATE


 


relating to the agreement (as
from time to time amended, varied, novated or supplemented, the “Facilities Agreement”) dated 21 December 2005 whereby
certain facilities were made available to the borrowers referred to therein by
a group of banks on whose behalf [•] acts as Facility Agent in
connection therewith.


 


1.                                       Terms defined in the Facilities
Agreement shall, subject to any contrary indication, have the same meanings
herein.  The terms Bank, Transferee and
Portion Transferred are defined in Schedule A hereto.


 


2.                                       The Bank (a) confirms that the
details in the schedule hereto under the heading “Bank’s
Participation in the Facility” or “Advances”,
accurately summarises its participation in the Facility Agreement and the Term
of any existing Advances and (b) requests the Transferee to accept and
procure the transfer by novation to the Transferee of the Portion Transferred
(specified in the schedule hereto) of its Commitment and/or its
participation in such Advance(s) by counter-signing and delivering this
Transfer Certificate to the Facility Agent at its address for the service of
notices specified in the Facility Agreement.


 


3.                                       The Transferee hereby requests the
Facility Agent to accept this Transfer Certificate as being delivered to the
Facility Agent pursuant to and for the purposes of Clause 36.6 (Transfers by Banks) of the Facility Agreement so as to take
effect in accordance with the terms thereof on the Transfer Date or on such
later date as may be determined in accordance with the terms thereof.  The Bank and the Transferee acknowledge and
agree that all payments by the Facility Agent in respect of the rights and
obligations transferred under this Transfer Certificate shall be made to the
Transferee with effect from the Transfer Date or such later date.


 


4.                                       The Transferee confirms that it has
received a copy of the Facilities Agreement together with such other
information as it has required in connection with this transaction and that it
has not relied and will not hereafter rely on the Bank to check or enquire on
its behalf into the legality, validity, effectiveness, adequacy, accuracy or
completeness of any such information and further agrees that it has not relied
and will not rely on the Bank to assess or keep under review on its behalf the
financial condition, creditworthiness, condition, affairs, status or nature of
the Obligors.


 


5.                                       The Transferee hereby undertakes
with the Bank and each of the other parties to the Facilities Agreement that it
will perform in accordance with their terms all those obligations which by the
terms of the Finance Documents will be assumed by it after delivery of this
Transfer Certificate to the Facility Agent and satisfaction of the conditions
(if any) subject to which this Transfer Certificate is expressed to take
effect.


 


252

















 


6.


 


6.1                                 The Transferee hereby expressly consents to the
declarations of the Security Agent made on behalf of and in the name of the
Transferee as future pledgee, mortgagee or chargee in the Security Documents
and the Transferee confirms that it is aware of the contents of such Security
Documents.  For purposes of any accessory
encumbrance created under German law (an “Accessory Encumbrance”),
the Transferee acknowledges that it will, from the Transfer Date and pro rata
to its participation in the amounts secured by such Accessory Encumbrance,
become a direct beneficiary of the relevant Accessory Encumbrance.


 


6.2                                 [Each of the agents acting for and on behalf of
the Transferee under or in connection with the Finance Documents shall be
released from the restrictions of Section 181 German Civil Code (BGB).]


 


7.                                       [Subject to paragraph [10] below,]
the Bank makes no representation or warranty and assumes no responsibility with
respect to the legality, validity, effectiveness, adequacy or enforceability of
the Finance Documents or any document relating thereto and assumes no
responsibility for the financial condition of the Obligors or for the
performance and observance by the Obligors of any of its obligations under the
Finance Documents or any document relating thereto and any and all such
conditions and warranties, whether express or implied by law or otherwise, are
hereby excluded.


 


8.                                       The Bank hereby gives notice that
nothing herein or in the Finance Documents (or any document relating thereto)
shall oblige the Bank to (a) accept a re-transfer from the Transferee of
the whole or any part of its rights, benefits and/or obligations under the
Finance Documents transferred pursuant hereto or (b) support any losses
directly or indirectly sustained or incurred by the Transferee for any reason
whatsoever including the non-performance by an Obligor or any other party to
the Finance Documents (or any document relating thereto) of its obligations
under any such document.  The Transferee
hereby acknowledges the absence of any such obligation as is referred to in (a) or
(b) above.


 


9.                                       For the purposes of article 1278
of the French Civil Code and article 1278 of the Belgian Civil Code, it is
expressly agreed that the security interests created pursuant to the Security
Documents and the guarantees provided under Clause 24 (Guarantee and Indemnity) of the Facility Agreement shall be
preserved for the benefit of the Transferee and all other Finance Parties.  A copy of this certificate shall be notified
to the relevant French Borrowers by bailiff (huissier)
in accordance with article 1690 of the French Civil Code.


 


10.                                 [The New Bank hereby explicitly declares and
represents and warrants to each Dutch Borrower that (i) it is a PMP, (ii) it
is aware that it therefore does not benefit from the (creditor) protection
offered by the Dutch Banking Act when lending monies to persons or entities
which are subject to the prohibition of Section 82 of the Dutch Banking
Act and (iii) it has made its own credit appraisal of the Dutch
Borrower.  The Transferee acknowledges
that each Dutch Borrower has relied upon such representation and warranty, it
being understood and acknowledged that the Facility


 


253

















 


Agent has made no
enquiries with respect to the status of the Transferee as a PMP and that the
Facility Agent shall have no obligation or liability in that respect.](1)


 


11.                                 The Transferee hereby agrees for the benefit of
the Borrowers to execute a confirmation substantially as set out in Schedule B
hereto (a “Confirmation”).  Any Confirmation delivered pursuant to this
Transfer Certificate: (i) is given for the purpose of delivery to the
competent tax authorities of the Borrowers to assist the Borrowers in the
administration of their tax affairs and not for any other purpose, (ii) does
not guarantee the achievement of a specific result or conclusion for German tax
purposes, (iii) is addressed to and is solely for the benefit of the
Borrowers in relation to the Finance Documents, and (iv) does not create
third party rights of any kind.  The
Transferee shall not be liable as a result of the delivery of a
Confirmation.  Each of the Borrowers may
disclose the existence and content of a Confirmation to its professional
advisers, its respective affiliates, as required by applicable law or
regulation and to any tax, regulatory or other governmental authority asserting
jurisdiction over it.  This undertaking
shall not limit the undertaking of the Banks under Clause 24.18 (German Confirmation) of the Facilities Agreement.


 


12.                                 This Transfer Certificate and the rights,
benefits and obligations of the parties hereunder shall be governed by and
construed in accordance with English law.


 






(1)                                  To
be added if Dutch Borrower is a party to the Facilities Agreement at the time
the transfer takes place.


 


 


254

















 


SCHEDULE A


 


	
  1.

  	
  Bank:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Transferee:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Transfer Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Bank’s Participation in the
  [A1 Sterling Tranche] [A1 Australian Dollar Tranche] [A1 Canadian Dollar
  Tranche] [A1 Swiss Franc Tranche] [A1 Euro Tranche] [A1 Italian Non-Guaranteed
  Tranche] [A2 Sterling Tranche] [A2 Australian Dollar Tranche] [A2 Canadian
  Dollar Tranche] [A2 Swiss Franc Tranche] [A2 Euro Tranche] [A2 Italian Non-Guaranteed
  Tranche] [C Facility]:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Bank’s Commitment

  	
   

  	
  Portion Transferred

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Advance(s):

  	
   

  	
  Portion Transferred

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Amount of Bank’s
  Participation

  	
  Term and Repayment Date

  	
  Portion Transferred

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Letter(s) of Credit Bank’s
  L/C Participation

  	
  Term and Expiry Date

  	
  Portion Transferred

  



 


	
  [Transferor
  Bank]

  	
  [Transferee
  Bank]

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
   

  
	
  Date:

  	
  Date:

  



 


 


Administrative
Details of Transferee


 


Address:


 


Contact Name:


 


Account for Payments:


 


Telex:


 


[Fax:]


 


Telephone:


 


255

















 


SCHEDULE B



Confirmation with regard to section 8a German Corporation Tax Act


 


We hereby confirm that our
willingness to enter into the Facilities Agreement has not been based on us
having received, and is not conditional on us receiving, any back to back
deposits of any member of the Group or any of the Parent’s direct or indirect
shareholders to fund our Commitment under the Facilities Agreement.


 


256

















 


SCHEDULE 4



CONDITIONS PRECEDENT


 


Part 1

Initial Conditions Precedent


 


1.             In relation to each Original Obligor:


 


(a)                                  a copy, certified as a true and up-to-date copy
by an Authorised Signatory of such Original Obligor, of the constitutional
documents of such Original Obligor;


 


(b)                                 a copy, certified as a true and up-to-date copy
by an Authorised Signatory of such Original Obligor, of a board resolution (or
in the case of Hertz France S.A.S. and Equipole Financial Services S.A.S., a
sole shareholder resolution) (and, if required, shareholder resolution) of such
Original Obligor approving the execution, delivery and performance of the
Finance Documents and the terms and conditions thereof and authorising a named
person or persons to sign the Finance Documents and any documents to be
delivered by such Original Obligor pursuant thereto;


 


(c)                                  a certificate of an Authorised Signatory of
such Original Obligor confirming that entry into the Finance Documents and
drawing of all amounts capable of being drawn by such Original Obligor under
the Finance Documents taking into account any other Financial Indebtedness of
the Obligor does not or will not cause to be exceeded any limit or restriction
on any of the powers of such Original Obligor or the right or ability of the
directors of such Original Obligor to exercise such powers;


 


(d)                                 a certificate of an Authorised Signatory of
such Original Obligor setting out the names and signatures of the persons
authorised to sign, on behalf of such Original Obligor, the Finance Documents
and any documents to be delivered by such Original Obligor pursuant thereto;
and


 


(e)                                  copies, certified as true and up-to-date copies
by an Authorised Signatory of such Original Obligor of any documentation
necessary in order for such Original Obligor to comply with any applicable laws
relating to financial assistance.


 


2.                                       A certified copy of the Acquisition
Agreement executed by the parties thereto and a certificate of an authorised
signatory of the Parent or such other person acceptable to the Facility Agent
(acting reasonably) confirming that:


 


(a)                                  no amendments, supplements, waivers or consents
with respect to any provision of the Acquisition Agreement have been made or
given that would be materially adverse to the interests of the Banks other than
those with respect to which the consent of the Facility Agent (such consent not
to be unreasonably withheld or delayed) has been obtained, together with a
certified copy of any related documentation;


 


257

















 


(b)                                 all material conditions required pursuant to
the Acquisition Agreement (together with any related documentation) have been
satisfied and/or (subject to (a) above) waived with the prior consent of
the Banks (such consent not to be unreasonably withheld); and


 


(c)                                  the Acquisition has or will substantially
contemporaneously with the Initial Borrowing being made, be completed and,
following completion of the Acquisition, the Parent, its subsidiaries and any
other Obligors shall have no outstanding Indebtedness for Borrowed Money other
than Permitted Indebtedness.


 


3.                                       Evidence that all governmental and
regulatory approvals and consents as set out in the Commitment Letter have been
obtained and are effective and that no additional requests for information
and/or documentation have been received in respect of the Antitrust Regulatory
Clearances obtained for the Acquisition or, if any such requests have been
received, that they have been satisfied.


 


4.                                       Certified copies of the Shareholder
Subordinated Loan Agreements where The Hertz Corporation is the lender.


 


5.                                       Certified copies of (a) the
Original Financial Statements and (b) audited financial statements of the
Parent for its two financial years ending 31 December 2003 and 31 December 2002
each certified by the Parent’s independent registered public accountants.


 


6.                                       Evidence that the cash equity
contributions envisaged by the Funds Flow Memorandum to be made directly or
indirectly by the Equity Investors on or before the Closing Date have been
made.


 


7.                                       An executed copy of this Agreement.


 


8.                                       A certified executed copy of each of
the B Bridge Facilities Agreements (together with such evidence as the Facility
Agent (acting reasonably) may require that all of the conditions precedent to
the drawings thereunder have been met.


 


9.                                       Executed copies of each of the
Initial Security Documents together with all documents required to be provided
on or prior to the date of this Agreement pursuant to the terms thereof.


 


10.                                 Where customary, certificates of good standing
from the jurisdiction of creation of each Obligor.


 


11.           An executed copy of each Intercreditor Deed.


 


12.                                 (i) A capacity opinion of Debevoise &
Plimpton LLP, London counsel to the Equity Investors and (ii) an
enforceability opinion of Gide Loyrette Nouel, London and White &
Case, London counsel to the Arrangers as to matters of English law in the
agreed form.


 


13.                                 (i) A capacity opinion of Debevoise &
Plimpton LLP, Paris counsel to the Equity Investors and (ii) an
enforceability opinion of Gide Loyrette Nouel, Paris counsel to the Arrangers
as to matters of French law in the agreed form.


 


258

















 


14.                                 A capacity and enforceability opinion of Torys
LLP counsel to the Equity Investors, together with opinions of local provincial
counsel regarding the registration of the Initial Security Documents, as to
matters of Canadian law and addressed to the Finance Parties, in the agreed
form.


 


15.                                 (i) A capacity opinion of Debevoise &
Plimpton LLP, Frankfurt counsel to the Equity Investors and (ii) an
enforceability opinion of Noerr Stiefenhofer Lutz, Frankfurt counsel to the
Arrangers as to matters of German law, in the agreed form.


 


16.                                 A capacity opinion of Richards, Layton &
Finger, P.A., counsel to the Equity Investors, in the agreed form.


 


17.                                 (i) A capacity opinion of Minter Ellison
counsel to the Equity Investors and (ii) an enforceability opinion of
Freehills counsel to the Arrangers as to matters of Australian law, in the
agreed form.


 


18.                                 (i) A capacity opinion of Bonelli Erede
Pappalardo counsel to the Equity Investors and (ii) an enforceability
opinion of Studio Legale Ughi e Nunziante counsel to the Arrangers as to
matters of Italian law, in the agreed form.


 


19.                                 (i) A capacity opinion of Loyens &
Loeff N.V. counsel to the Equity Investors and (ii) an enforceability
opinion of Nauta Dutilh N.V., Amsterdam, counsel to the Arrangers as to matters
of Netherlands law, in the agreed form.


 


20.                                 (i) A capacity opinion of Schellenberg
Wittmer counsel to the Equity Investors and (ii) an enforceability opinion
of Lenz & Staehelin counsel to the Arrangers as to matters of
Switzerland law, in the agreed form.


 


21.                                 (i) A capacity opinion of Cuatrecasas
counsel to the Equity Investors and (ii) an enforceability opinion of Uria
Menendez, Madrid counsel to the Arrangers as to matters of Spanish law, in the
agreed form.


 


22.                                 (i) A capacity opinion of Loyens &
Loeff N.V. counsel to the Equity Investors and (ii) an enforceability
opinion of Nauta Dutilh SPRL Brussels, counsel to the Arrangers as to matters
of Belgian law, in the agreed form.


 


23.                                 A capacity opinion of Tozzini Freire Teixeira e
Silva Advogados counsel to the Equity Investors as to matters of Brazilian law,
in the agreed form.


 


24.                                 A capacity opinion of Bell Gully counsel to the
Equity Investors as to matters of New Zealand law, in the agreed form.


 


25.                                 An opinion as to matters of (i) due
authorisation, execution and delivery and no conflict of in-house counsel to
The Hertz Corporation and (ii) enforceability of Debevoise &
Plimpton LLP, New York counsel to The Hertz Corporation in relation to the
Intercreditor Deed and the Brazilian Guarantee, in the agreed form.


 


26.                                 Satisfaction of each Bank’s ‘Know Your Customer’
requirements.


 


259

















 


27.                                 A solvency certificate in the agreed form in
respect of:


 


(a)                                  The Hertz Corporation duly authorized and
executed by the chief financial officer of The Hertz Corporation;


 


(b)                                 the Parent, duly authorised and executed by the
chief financial officer of the Parent;


 


(c)                                  Hertz (UK) Ltd, duly authorised and executed by
the chief financial office of Hertz (UK) Ltd; and


 


(d)                                 Hertz Holdings II UK Limited, duly authorised
and executed by the chief financial officer of Hertz Holdings II UK Limited.


 


28.                                 A certificate of the Parent confirming that:


 


(a)                                  no Certain Funds Event of Default has occurred
and is continuing or will occur as a result of the Acquisition or the Initial
Borrowing; and


 


(b)                                 no event of default or potential event of default
has occurred and is continuing in respect of the Financing Documentation (as
defined in the Commitment Letter) unless any such event of default or potential
event of default has been waived by the Committed Lenders (as defined in the
Commitment Letter).


 


29.                                 A certificate of the Parent confirming that no
Material Adverse Effect (as defined in the Commitment Letter) has occurred
during the period since 30 June 2005 and that there will be no Material
Adverse Effect at the time of the Initial Borrowing.


 


30.                                 Evidence that Holdco, Target and/or one or more
of their respective subsidiaries shall have:


 


(a)                                  effected the Indenture Amendments in connection
with the Tender Offer; and


 


(b)                                 assumed or continued to be obligated in respect
of Rollover Indebtedness consisting of Tender Indebtedness,


 


(all capitalised
terms in this paragraph 30 bear the meanings set out in the Commitment Letter).


 


31.                                 Evidence that all conditions precedents to the
Debt Financing (as set out an defined in the Commitment Letter) have been
satisfied or waived by the Committed Lenders (as defined in the Commitment
Letter).


 


32.                                 A verification certificate given by 2 directors
of each Australian Obligor that it and each of its subsidiaries before entering
into any Finance Document to which it is a party has, in connection with the
execution, delivery and performance of each such Finance Document fully
complied with Chapter 2J.3 of the Australian Corporations Act 2001 (Cth).


 


260

















 


33.           Evidence that all fees and expenses due and
payable:


 


(a)                                  under any of the Finance Documents as at the
date of the Initial Borrowing have been paid or will be paid by deducting the
aggregate amount of such fees from the Initial Borrowing; and


 


(b)                                 under the B Bridge Finance Documents as at the
date of the first utilisation thereunder have been paid or will be paid by
deducting the aggregate amount of such fees from the proceeds of such first
utilisation.


 


34.                                 Share certificates representing the entire
issued share capital of:


 


(a)                                  Hertz (U.K.) Ltd (registered in the name of
Hertz Holdings II UK Limited);


 


(b)                                 Hertz Holdings III UK Limited (registered in
the name of Hertz International Ltd);


 


(c)                                  Hertz Canada Limited (registered in the name of
1677932 Ontario Limited); and


 


(d)                                 1677932 Ontario Limited (registered in the name
of CMGC Canada Acquisition ULC).


 


35.                                 Completed stock transfer forms executed in
blank by:


 


(a)                                  Hertz International Ltd, in respect of the
entire issued share capital of Hertz Holdings III UK Limited;


 


(b)                                 Hertz Holdings II UK Limited, in respect of the
entire issued share capital of Hertz (U.K.) Ltd;


 


(c)                                  1677932 Ontario Limited, in respect of the
entire issued share capital of Hertz Capital Limited; and


 


(d)                                 CMGC Canada Acquisition ULC in respect of the
entire issued capital of 1677932 Ontario Limited.


 


36.                                 Receipt of satisfactory payout letters from
current lenders to Hertz Canada Limited.


 


261

















 


Part 2

Additional Conditions Precedent


 


1.                                       A duly executed borrower certificate
in the agreed form.


 


2.                                       Engagement of one or more financial
institutions to publicly offer or privately place the Take-Out Financings.


 


262

















 


SCHEDULE 5



UTILISATION NOTICES


 


Part 1

(Facilities other than Swingline Facilities)




From:                  [Relevant Borrower/Coordinator]


 


To:                              BNP Paribas, as Facility Agent


 


Dated:             [•]


 


Dear Sirs,


 


1.                                       We refer to the agreement (the “Facility Agreement”) dated 21 December 2005 and made
between, among others, Hertz International, Ltd. as Parent, the companies named
therein as Original Borrowers and Original Guarantors, Hertz Europe Limited as
Coordinator, BNP Paribas and The Royal Bank of Scotland plc as Mandated Lead
Arrangers, CALYON as Co-Arranger, BNP Paribas, The Royal Bank of Scotland plc
and CALYON as Joint Bookrunners, BNP Paribas as Facility Agent, Security Agent
and as Global Coordinator and the financial institutions named therein as
Banks.  Terms defined in the Facility
Agreement shall have the same meaning in this notice.


 


2.                                       This notice is irrevocable.


 


3.                                       We hereby give you notice that,
pursuant to the Facility Agreement, we wish [the Banks]/[name of Bank as L/C Issuer] to [make an
Advance]/[issue a Letter of Credit]
as follows:


 


	
  (a)

  	
   

  	
  [principal]/[face] amount:

  	
   

  	
  [•]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Currency:

  	
   

  	
  [•]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  Facility:

  	
   

  	
  [•]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [(d)

  	
   

  	
  Tranche:

  	
   

  	
  [•](2)]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  Utilisation Date:

  	
   

  	
  [•]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  Repayment Date:

  	
   

  	
  [•](3)

  



 






(2)                                  Specific Tranche to be identified. To be
completed for Swingline Advances under an A Swingline Facility only.


(3)                                  Must be a Settlement Date other than in the
case of any Letter of Credit in respect of which an Asset Report is not
required to be delivered pursuant to Clause
4.3 (Delivery of an Asset Report for Letters of Credit).


 


263

















 


4.                                       We confirm that:


 


(a)                                  the Borrower is [Name];


 


(b)                                 [the Borrower is organised in [•]] [the Borrower is [a/an  Financeco/Orphan
Financeco/SPV/Orphan SPV] organised in [•] and its Related Opco is organised
in [•]]; and


 


[(c)                              all Repeated Representations will be true and
correct on the proposed Utilisation Date.]*


 


5.                                       [The proceeds of this
Advance should be credited to [[insert account details]]/the Borrower’s Security Agent Account maintained with [•]]/[The Letter of Credit should be issued in favour of [name of recipient]
in the form attached and delivered to the recipient at [address of
recipient].  The purpose of its issue is
[•].]


 


6.                                       The Asset Report for the Borrower is
attached.


 


Yours faithfully


 


 


	
   

  
	
  Authorised Signatory

  
	
  for and on behalf of

  
	
  [Relevant
  Borrower/Coordinator]

  



 


 






*                                         Not necessary for Rollover Advances.


 


264

















 


Part 2

(Swingline Facilities)


 


From:                  [Relevant Borrower/Coordinator]


 


To:                              BNP Paribas, as Facility Agent


 


Dated:             [•]


 


Dear Sirs,


 


1.                                       We refer to the agreement (the “Facility Agreement”) dated 21 December 2005 and made
between, among others, Hertz International, Ltd. as Parent, the companies named
therein as Original Borrowers and Original Guarantors, Hertz Europe Limited as
Coordinator, BNP Paribas and The Royal Bank of Scotland plc as Mandated Lead
Arrangers, CALYON as Co-Arranger, BNP Paribas, The Royal Bank of Scotland plc
and CALYON as Joint Bookrunners, BNP Paribas as Facility Agent, Security Agent
and as Global Coordinator and the financial institutions named therein as
Banks.  Terms defined in the Facility
Agreement shall have the same meaning in this notice.


 


2.             This notice is irrevocable.


 


3.                                       We hereby give you notice that,
pursuant to the Facility Agreement, we wish the Banks to make a Swingline
Advance on the following terms:


 


	
  (a)

  	
   

  	
  Amount:

  	
   

  	
  [•]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  Currency:

  	
   

  	
  [•]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c)

  	
   

  	
  Swingline Facility:

  	
   

  	
  [•]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [(d)

  	
   

  	
  Tranche:

  	
   

  	
  [•](4)]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (e)

  	
   

  	
  Utilisation Date:

  	
   

  	
  [•]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (f)

  	
   

  	
  Repayment Date:

  	
   

  	
  [•](5)

  



 


4.                                       We confirm that:


 


(a)                                  the Borrower is [Name];
and


 






(4)                                  Specific Tranche to be identified. To be
completed for Swingline Advances under an A Swingline Facility only.


(5)                                  Must be a Settlement Date other than in the
case of any Swingline Advance in respect of which an Asset Report is not
required to be delivered pursuant to Clause
5.2(a) (Delivery of a Utilisation Notice for Swingline
Advances).


 


265

















 


(b)                                 [the Borrower is organised in [-]] [the
Borrower is [a/an  Financeco/Orphan
Financeco/SPV/Orphan SPV] organised in [-] and its Related Opco is
organised in [-]].


 


5.                                       The proceeds of this Swingline
Advance should be credited to [account].


 


[6.                                   The Asset Report (in the form for Swingline
Advances) for the Borrower is attached.]*


 


Yours faithfully


 


	
   

  
	
  Authorised Signatory

  
	
  for and on behalf of

  
	
  [Relevant
  Borrower/Coordinator]

  



 






*                                       Disapply where not required to be
delivered.


 


266

















 


SCHEDULE 6



FORM OF BORROWER ACCESSION MEMORANDUM


 


To:                              BNP Paribas as Facility Agent


 


From:                  [•]


 


and


 


[•]


 


Dated:             [•]


 


Dear Sirs,


 


1.                                       We refer to:


 


(a)                                  an agreement (the “Facility
Agreement”) dated 21 December 2005 and made between Hertz
International, Ltd. (the “Parent”), BNP
Paribas as Facility Agent.  We refer to
the agreement (the “Facility Agreement”)
dated 21 December 2005 and made between, among others, Hertz
International, Ltd. as Parent, the companies named therein as Original
Borrowers and Original Guarantors, Hertz Europe Limited as Coordinator, BNP
Paribas and The Royal Bank of Scotland plc as Mandated Lead Arrangers, CALYON
as Co-Arranger, BNP Paribas, The Royal Bank of Scotland plc and CALYON as Joint
Bookrunners, BNP Paribas as Facility Agent, Security Agent and as Global
Coordinator and the financial institutions named therein as Banks.  Terms defined in the Facility Agreement shall
have the same meaning in this notice; and


 


(b)                                 an intercreditor deed (the “Intercreditor Deed”) dated 21 December 2005 and made
between, amongst others, Hertz International, Ltd. as Parent, Hertz Europe
Limited as Coordinator, the companies named therein as Original Obligors, BNP
Paribas as A/C Facility Agent, NZ Facility Agent and as Security Agent,
Banco BNP Paribas Brazil S.A. as Brazilian Administrative Agent, BNP Paribas as
Australian Security Trustee, the Finance Institutions defined therein as the
Original A1 Banks, the original A2 Banks, the Original Brazilian Banks, the
Original NZ Banks and the Original C Banks, the Original Intra-group
creditors, the original intra-group debtors and the Original Equity Finance
Providers.


 


Terms defined in the Facility Agreement shall bear the same meaning
herein.


 


3.                                       The Parent requests that [•] become an Additional Borrower pursuant
to Clause 38.1 (Request for
Additional Borrower) of the Facility Agreement.


 


4.                                       [•] is a company duly organised under
the laws of [name of relevant jurisdiction].


 


5.                                       [•] confirms that it has received from
the Parent a true and up-to-date copy of the Facility Agreement and the
Intercreditor Deed.


 


267

















 


6.                                       [•] undertakes, upon its becoming a
Borrower, to perform all the obligations expressed to be undertaken under the
Facility Agreement by a Borrower under the Facilities in respect of which it is
a Borrower and to perform all its corresponding obligations under the
Intercreditor Deed and agrees that it shall be bound by the Facility Agreement
and the Intercreditor Deed in all respects as if it had been an original party
thereto as an original Borrower.


 


7.                                       The Parent confirms that, when [•] is accepted as an Additional
Borrower, its guarantee obligations pursuant to Clause 24 (Guarantee and Indemnity) of the Facility Agreement will
apply to all the obligations of [•] under the Finance Documents in all
respects in accordance with the terms of the Facility Agreement.


 


8.                                       The Parent:


 


(a)                                  repeats the Repeated Representations; and


 


(b)                                 confirms that no Event of Default or Potential
Event of Default is continuing or would occur as a result of [•] becoming an Additional Borrower.


 


9.                                       [•] makes each of the representations
and warranties described in further detail in Clause 19.30(b) (Time of making representations).


 


10.                                 [•] hereby irrevocably appoints the
Coordinator to act as its agent for the purposes of the Finance Documents
including, without limitation, the delivery of Utilisation Notices and the
execution of any amendments or waivers contemplated under the terms of
Clause 44 (Amendments).


 


11.                                 [•] administrative details are as
follows:


 


Address:


 


Fax No.:


 


12.                                 [Process Agent


 


[•] agrees that the documents
which start any Proceedings (as defined in Clause 47.3 (Non-Exclusive
Jurisdiction) of the Facility Agreement) and any other documents required to be
served in relation to those Proceedings may be served on it at [address of •’s place of
business in England] or at any address in England and Wales at which process
may be served on it in accordance with Part XXIII of the Companies Act
1985]/[on name of process agent in England and Wales at address of process
agent or, if different, its registered office. 
If [[•] ceases to have a place of business in England and
Wales]/[the appointment of the person mentioned above ceases to be effective],
[•]
shall immediately appoint another person in England and Wales to accept service
of process on its behalf in England and Wales. 
If it fails to do so (and such failure continues for a period of not
less than 14 days), the Facility Agent shall be entitled to appoint such a person
by notice.  Nothing contained herein
shall restrict the right to serve process in any other manner allowed by
law.  This applies to Proceedings in
England and to Proceedings elsewhere.]


 


13.                                 This Memorandum may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument.


 


268

















 


14.                                 This Memorandum shall be governed by English
law.


 


	
  [•]

  	
  [•]

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
						



 


269

















 


SCHEDULE 7



FORM OF GUARANTOR / COORDINATOR ACCESSION MEMORANDUM


 


To:                              BNP Paribas as Facility Agent


 


From:                  [•]


 


and


 


[•]


 


Dated:             [•]


 


Dear Sirs


 


1.                                       We refer to:


 


(a)                                  We refer to the agreement (the “Facility Agreement”) dated 21 December 2005 and made
between, among others, Hertz International, Ltd. as Parent, the companies named
therein as Original Borrowers and Original Guarantors, Hertz Europe Limited as
Coordinator, BNP Paribas and The Royal Bank of Scotland plc as Mandated Lead
Arrangers, CALYON as Co-Arranger, BNP Paribas, The Royal Bank of Scotland plc
and CALYON as Joint Bookrunners, BNP Paribas as Facility Agent, Security Agent
and as Global Coordinator and the financial institutions named therein as
Banks.  Terms defined in the Facility Agreement
shall have the same meaning in this notice; and


 


(b)                                 an intercreditor deed (the “Intercreditor Deed”) dated 21 December 2005 and made
between, amongst others, Hertz International, Ltd. as Parent, Hertz Europe
Limited as Coordinator, the companies named therein as Original Obligors, BNP
Paribas as A/C Facility Agent, NZ Facility Agent and as Security Agent, Banco
BNP Paribas Brazil S.A. as Brazilian Administrative Agent, BNP Paribas as
Australian Security Trustee, the Finance Institutions defined therein as the
Original A1 Banks, the original A2 Banks, the Original Brazilian Banks, the
Original NZ Banks and the Original C Banks, the Original Intra-group creditors,
the original intra-group debtors and the Original Equity Finance Providers.


 


2.                                       Terms defined in the Facility
Agreement shall bear the same meaning herein.


 


3.                                       The Parent requests that [•] become [an Additional Guarantor
pursuant to Clause 39.1 (Request for Additional
Guarantor) / the Coordinator pursuant to Clause 39.7 (Change of Coordinator)] of the Facility Agreement.


 


4.                                       [•] is a company duly organised under
the laws of [name of relevant jurisdiction].


 


5.                                       [•] confirms that it has received from
the Parent a true and up-to-date copy of the Facility Agreement and the
Intercreditor Deed.


 


270

















 


6.                                       [•] undertakes, upon its becoming a
[Guarantor / the Coordinator], to perform all the obligations expressed to be
undertaken under the Facility Agreement and the Intercreditor Deed by [a
Guarantor / the Coordinator] and agrees that it shall be bound by the Facility
Agreement and the Intercreditor Deed in all respects as if it had been an
original party thereto as [a Guarantor / the Coordinator], [provided that:


 


(a)                                  the obligations of the Guarantor shall be
limited to exclude any obligation hereunder or under the Facility Agreement to
the extent that such obligation would constitute illegal financial assistance
or otherwise be unlawful under any applicable law; and


 


(b)                                 [INSERT ANY ADDITIONAL
APPROPRIATE LIMITATIONS IN ACCORDANCE WITH CLAUSE 21.16 (GROUP ACCEDING
GUARANTORS) AND CLAUSE 24.19 (OTHER GUARANTORS)].]*


 


7.                                       The Parent:


 


(a)                                  repeats the Repeated Representations; and


 


(b)                                 confirms that no Event of Default or Potential
Event of Default is continuing or would occur as a result of [•] becoming [an Additional Guarantor
/ the Coordinator].


 


8.                                       [•] makes each of the representations
set out in further detail in Clause 19.30(b) (Time of
making representations).


 


9.                                       [[•] hereby irrevocably appoints the
Coordinator to act as its agent for the purposes of the Finance Documents
including, without limitation, the delivery of Utilisation Notices and the
execution of any amendments or waivers contemplated under the terms of
Clause 44 (Amendments).]*


 


10.                                 [•’s] administrative details are as
follows:


 


Address:


 


Fax No.:


 


11.                                 [Process Agent


 


[•] agrees that the documents
which start any Proceedings (as defined in Clause 47.3 (Non-Exclusive
Jurisdiction) under the Facility Agreement and any other documents required to
be served in relation to those Proceedings may be served on it at [address of [•]’s place of business in
England] or at any address in England and Wales at which process may be served
on it in accordance with Part XXIII of the Companies Act 1985]/[on name of
process agent in England and Wales at address of process agent or, if
different, its registered office.  If [[•] ceases to have a place of
business in England and Wales]/[the appointment of the person mentioned above
ceases to be effective], [•] shall immediately appoint
another person in England and Wales to


 






*                                       Not necessary in relation to
Coordinators.


 


271

















 


accept
service of process on its behalf in England and Wales.  If it fails to do so (and such failure
continues for a period of not less than 14 days), the Facility Agent shall be
entitled to appoint such a person by notice. 
Nothing contained herein shall restrict the right to serve process in
any other manner allowed by law.  This
applies to Proceedings in England and to Proceedings elsewhere.]


 


12.                                 This Memorandum may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument.


 


13.                                 This Memorandum shall be governed by English
law.


 


	
  [•]

  	
  [•]

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  [New
  Guarantor / Coordinator]

  	
   

  	
   

  	
  The Parent

  	
   

  



 


272

















 


SCHEDULE 8



ADDITIONAL CONDITIONS PRECEDENT


 


Part 1

Accession of Borrowers and Guarantors


 


1.                                       A copy, certified as at the date of
the relevant Accession Memorandum a true and up-to-date copy by an Authorised
Signatory of the proposed Additional Obligor, of the constitutional documents
of such proposed Additional Obligor.


 


2.                                       A copy, certified as at the date of
the relevant Accession Memorandum a true and up-to-date copy by an Authorised
Signatory of the proposed Additional Obligor, of a board resolution (and, if
required, shareholders resolution) or other appropriate evidence of authority
of such proposed Additional Obligor approving the execution and delivery of an
Accession Memorandum, the accession of such proposed Additional Obligor to this
Agreement and the performance of its obligations under the Finance Documents
and authorising a named person or persons to sign such Accession Memorandum, any
other Finance Document and any other documents to be delivered by such proposed
Additional Obligor pursuant thereto.


 


3.                                       A certificate of an Authorised
Signatory of the proposed Additional Obligor setting out the names and
signatures of the person or persons authorised to sign, on behalf of such
proposed Additional Obligor, the Accession Memorandum, any other Finance
Documents and any other documents to be delivered by such proposed Additional
Obligor pursuant thereto.


 


4.                                       A copy, certified a true copy by an
Authorised Signatory of the proposed Additional Obligor, of its latest audited
annual financial statements (if any).


 


5.                                       Where customary, certificates of
good standing from the jurisdiction of incorporation of such Additional
Obligor.


 


6.                                       If the proposed Additional Obligor
is incorporated in a jurisdiction other than England and Wales, or executing a
Finance Document which is governed by a law other than English law, a capacity
legal opinion of the legal advisers to the Equity Investors for the benefit of
the Finance Parties (at the date thereof) in the jurisdiction of incorporation
of that Additional Obligor (and, if applicable, in such other jurisdictions
perfection of the security interests) or of the governing law of that Finance
Document and an enforceability opinion of the legal advisers to the Arrangers
(or, if the relevant jurisdiction is Canada or other jurisdiction where it is
market practice for borrower’s counsel to give such opinion, an enforceability
opinion of the legal advisors to the Equity Investors) shall be delivered to
the Facility Agent in a form satisfactory to the Facility Agent (acting
reasonably).


 


7.                                       If the proposed Additional Obligor
is incorporated in a jurisdiction other than England and Wales, evidence that
the process agent specified in the relevant Accession Memorandum has agreed to
act as its agent for the service of process in England.


 


273

















 


8.                                       Duly executed Security Documents (in
form and substance satisfactory to the Facility Agent (acting reasonably)) for
such Additional Obligor if and to the extent required by the Facility Agent in
accordance with Clause 21.16(b) (Group Acceding Guarantors).


 


9.                                       Any notices or documents required to
be given or executed under the Security Documents referred to in paragraph 10
above including those required to perfect the security interests under such
Security Documents.


 


10.                                 Satisfaction of each Bank’s ‘Know Your Customer’
requirements.


 


274














 


Part 2

Designated Obligors


 


1.             A copy, certified at a date not
older than five business days before the executing of the Designated Obligor
Intercompany Loan Agreement and the Designated Obligor Security Documents (if
relevant) of a true and up-to-date copy of the constitutional documents of such
proposed Designated Obligor, including without limitation:


 


(a)           a certified copy of the shareholder’s,
or similar, agreement (Gesellschaftsvertrag);
and


 


(b)           a certified excerpt of the
commercial register,


 


if applicable to such Designated Obligor.


 


2.             A true and up-to-date copy of the
shareholders’, or similar, resolution of each Designated Obligor approving the
execution and delivery of the applicable Designated Obligor Intercompany Loan
Agreement and the Designated Obligor Security Documents (if relevant) and the
performance of its obligations thereto.


 


3.             A true and up-to-date copy of a
resolution of the managing directors of each Designated Obligor (i) approving
the execution and delivery of the applicable Designated Obligor Intercompany
Loan Agreement and the Designated Obligor Security Documents (if relevant) and
the performance of its obligations thereto and authorising a named person or
persons to sign such Designated Obligor Intercompany Loan Agreement and any
other documents to be delivered by such proposed Designated Obligor pursuant
thereto, (ii) setting out the names and signatures of the person or
persons authorised to sign on behalf of such proposed Designated Obligor, the
applicable Designated Obligor Intercompany Loan Agreement and the Designated
Obligor Security Documents (if relevant) and any other documents to be
delivered by such party pursuant thereto, and (iii) confirming that the
utilisation of the facilities under the Designated Obligor Intercompany Loan
Agreement would not breach any restriction of its borrowing or guarantee powers
(if any) contained in its shareholder’s agreement (Gesellschaftsvertrag).


 


4.             A copy, certified as at the date on
which it is delivered, of a true and up-to-date copy by an Authorised Signatory
of any Borrower that is to lend funds to such Designated Obligor under a
Designated Obligor Intercompany Loan Agreement, of a board resolution (and, if
required, shareholders resolution) or other appropriate evidence of authority
of such Borrower approving the execution and delivery of the applicable
Designated Obligor Intercompany Loan Agreement and the Security Documents in
respect thereof referred to in paragraph 9 below and the performance of its
obligations under such documents and authorising a named person or persons to
sign such documents and any other documents to be delivered by such Borrower
pursuant thereto.


 


5.             Where customary, certificates of
good standing from the jurisdiction of creation of such Designated Obligor.


 


6.             A copy of the latest audited annual
financial statements (if any) of the proposed Designated Obligor.


 


275

















 


7.             A certificate signed by an
Authorised Signatory certifying that the attached copies of the shareholders
resolution (paragraph 2 above), of the resolution of the managing directors
(paragraph 3 above) as well as of the Designated Obligor’s latest financial
statements (if any) (paragraph 6 above) are true and up to date copies.


 


8.             (a) A capacity legal opinion of
the legal advisers to the Equity Investors in the jurisdiction of incorporation
of that Designated Obligor (and, if applicable, in such other jurisdictions
regarding perfection of the security interests) or of the governing law of the
applicable Designated Obligor Intercompany Loan Agreement and the Designated
Obligor Security Documents (if relevant) and an enforceability opinion of the
legal counsel to the Arrangers (or, if the relevant jurisdiction is Canada or
other jurisdiction where it is market practice for borrower’s counsel to give
such opinion, an enforceability opinion of the legal advisors to the Equity
Investors) in respect thereof referred to at paragraph 9 below and (b) a
capacity opinion of the legal advisers to the Facility Agent, in each case, in
the form distributed to the Facility Agent prior to the acceptance of such
Designated Obligor.


 


9.             If the applicable Designated Obligor
Intercompany Loan Agreement and Designated Obligor Security Documents (if
relevant) in respect thereof referred to at paragraph 10 below is/are governed
by English law, evidence that the process agent specified in the relevant
document has agreed to act as agent for the service of process in England.


 


10.           Duly executed Security Documents (in
form and substance satisfactory to the Facility Agent (acting reasonably))
required by the Facility Agent:


 


(a)           granting a pledge over shares,
receivables and bank accounts of such Designated Obligor as security for the
applicable Designated Obligor Intercompany Loans in respect of which such
Designated Obligor is obligated; and


 


(b)           which provide for the grant of the
respective pledge in favour of the Security Agent over all of the rights of the
relevant Borrower as lender and guaranteed and secured party under the
applicable Designated Obligor Intercompany Loans and security interests
referred to in paragraph (a) above.


 


11.           Any notices or documents required to
be given or executed under the applicable Designated Obligor Intercompany Loans
and the Security Documents referred to in paragraph 10 above including those
required to perfect the security interests under such Security Documents.


 


276

















 


SCHEDULE 9



FORM OF RESIGNATION NOTICE


 


To:          BNP Paribas as Facility Agent


 


From:      [•]


 


Dated:    [•]


 


Dear Sirs


 


1.             We refer to an agreement (the “Facility Agreement”) dated 21 December 2005 and made
between [•], BNP Paribas as Facility Agent, the financial institutions defined
therein as Banks and others.


 


2.             Terms defined in the Facility
Agreement shall bear the same meaning herein.


 


3.             Pursuant to [Clause 39.3 (Resignation of a Guarantor) and/or Clause 38.4 (Resignation of a Borrower) [or Clause 39.6 (Cessation of a Designated Obligor)]] we hereby request that
[name of Guarantor and/or Borrower [or Designated Obligor]] shall cease to be a [Guarantor and/or Borrower [Designated
Obligor]] under the Facility Agreement.


 


Yours faithfully


 


 


[•]


 


277

















 


SCHEDULE 10


 


MANDATORY COST FORMULAE


 


1.             The Mandatory Cost Rate is an
addition to the interest rate to compensate Banks for the cost of compliance
with (a) the requirements of the Bank of England and/or the Financial
Services Authority (or, in either case, any other authority which replaces all
or any of its functions) or (b) the requirements of the European Central
Bank.


 


2.             On the first day of each Interest
Period or Term (as the case may be) (or as soon as possible thereafter) the
Facility Agent shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for each Bank, in
accordance with the paragraphs set out below. 
The Mandatory Cost Rate will be calculated by the Facility Agent as a
weighted average of the Banks’ Additional Cost Rates (weighted in proportion to
the percentage participation of each Bank in the relevant Advance) and will be
expressed as a percentage rate per annum.


 


3.             The Additional Cost Rate for any
Bank lending from a Facility Office in a Participating Member State will be the
percentage notified by that Bank to the Facility Agent.  This percentage will be certified by that
Bank in its notice to the Facility Agent to be its reasonable determination of
the cost (expressed as a percentage of that Bank’s participation in all
Advances made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from that
Facility Office.


 


4.             The Additional Cost Rate for any
Bank lending from a Facility Office in the United Kingdom will be calculated by
the Facility Agent as follows:


 


(a)           in relation to a sterling Advance:


 


	
  AB+C(B-D)+Ex 0.01

  	
  per
  cent. per annum

  
	
  100-(A+C)

  



 


(b)           in relation to a Advance in any currency other
than sterling:


 


	
  Ex 0.01

  	
  per
  cent. per annum.

  
	
  300

  



 


Where:


 


A             is the percentage of Eligible
Liabilities (assuming these to be in excess of any stated minimum) which that
Bank is from time to time required to maintain as an interest free cash ratio
deposit with the Bank of England to comply with cash ratio requirements.


 


B             is the percentage rate of interest
(excluding the Margin and the Mandatory Cost Rate and, if the Advance is an
Unpaid Sum, the additional rate of interest specified in Clause 28.2(a) (Default interest)) payable for the relevant Term on the
Advance.


 


278

















 


C             is the percentage (if any) of
Eligible Liabilities which that Bank is required from time to time to maintain
as interest bearing Special Deposits with the Bank of England.


 


D             is the percentage rate per annum
payable by the Bank of England to the Facility Agent on interest bearing
Special Deposits.


 


E              is designed to compensate Banks for
amounts payable under the Fees Rules and is calculated by the Facility
Agent as being the average of the most recent rates of charge supplied by the
relevant Reference Banks to the Facility Agent pursuant to paragraph 7
below and expressed in pounds per £1,000,000.


 


5.             For the purposes of this Schedule:


 


(a)           “Eligible
Liabilities” and “Special Deposits”
have the meanings given to them from time to time under or pursuant to the Bank
of England Act 1998 or (as may be appropriate) by the Bank of England;


 


(b)           “Fees
Rules” means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force from time
to time in respect of the payment of fees for the acceptance of deposits;


 


(c)           “Fee
Tariffs” means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero
rated fee required pursuant to the Fees Rules but taking into account any
applicable discount rate); and


 


(d)           “Tariff
Base” has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.


 


6.             In application of the above
formulae, A, B, C and D will be included in the formulae as percentages (i.e. 5
per cent. will be included in the formula as 5 and not as 0.05).  A negative result obtained by subtracting D
from B shall be taken as zero.  The
resulting figures shall be rounded to four decimal places.


 


7.             If requested by the Facility Agent,
each relevant Reference Bank shall, as soon as practicable after publication by
the Financial Services Authority, supply to the Facility Agent, the rate of
charge payable by that Reference Bank to the Financial Services Authority
pursuant to the Fees Rules in respect of the relevant financial year of
the Financial Services Authority (calculated for this purpose by that Reference
Bank as being the average of the Fee Tariffs applicable to that Reference Bank
for that financial year) and expressed in pounds per £1,000,000 of the Tariff
Base of that Reference Bank.


 


8.             Each Bank shall supply any
information required by the Facility Agent for the purpose of calculating its
Additional Cost Rate.  In particular, but
without limitation, each Bank shall supply the following information on or
prior to the date on which it becomes a Bank:


 


(a)           the jurisdiction of each Facility
Office; and


 


279

















 


(b)           any other information that the Facility
Agent may reasonably require for such purpose.


 


Each Bank shall
promptly notify the Facility Agent of any change to the information provided by
it pursuant to this paragraph.


 


9.             The percentages of each Bank for the
purpose of A and C above and the rates of charge of each relevant Reference
Bank for the purpose of E above shall be determined by the Facility Agent based
upon the information supplied to it pursuant to paragraphs 7 and 8 above
and on the assumption that, unless a Bank notifies the Facility Agent to the
contrary, each Bank’s obligations in relation to cash ratio deposits and
Special Deposits are the same as those of a typical bank from its jurisdiction
of incorporation with a Facility Office in the same jurisdiction as the
relevant Facility Office.


 


10.           The Facility Agent shall have no
liability to any person if such determination results in an Additional Cost
Rate which over or under compensates any Bank and shall be entitled to assume
that the information provided by any Bank or relevant Reference Bank pursuant
to paragraphs 3, 7 and 8 above is true and correct in all respects.


 


11.           The Facility Agent shall distribute
the additional amounts received as a result of the Mandatory Cost Rate to the
Banks on the basis of the Additional Cost Rate for each Bank based on the
information provided by each Bank and each relevant Reference Bank pursuant to
paragraphs 3, 7 and 8 above.


 


12.           Any determination by the Facility
Agent pursuant to this Schedule in relation to a formula, the Mandatory
Cost Rate, an Additional Cost Rate or any amount payable to a Bank shall, in
the absence of manifest error, be conclusive and binding on all parties.


 


13.           The Facility Agent may from time to
time, after consultation with the Parent and the Banks, determine and notify to
all parties any amendments which are required to be made to this Schedule in
order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority
or the European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall, in the
absence of manifest error, be conclusive and binding on all parties.


 


280

















 


SCHEDULE 11


 


FORM OF LETTER OF CREDIT


 


To:          [Beneficiary]


 


Date:


 


Dear Sirs


 


Irrevocable Standby Letter of
Credit No. [•]


 


This Letter of Credit is
issued by [•], (the “Issuer”) at the
request of [•] (the “Company”) in
your favour on the following terms:


 


1.             The Issuer shall not be obliged to
make payments hereunder exceeding in aggregate the maximum amount of [•].  Any payment hereunder shall be made in [•]
and shall reduce the Issuer’s liability to make payment hereunder accordingly.


 


2.             This Letter of Credit shall expire
at [•] a.m./p.m., London time on [•] 20[•] (the “Expiry Date”).  The Issuer will have no liability in respect
of any demand delivered after such time [and a demand not accompanied by the
information mentioned in paragraph 3(b) below shall not be validly
delivered].


 


3.             Subject to paragraph 2 above, within
three business days of receiving (a) your demand on the Issuer [in the form set out in the Appendix hereto] specifying the
amount claimed under this Letter of Credit and bearing an endorsement of the
above Letter of Credit number and (b) [details of any other
documents required from the Beneficiary to be inserted (including a certificate
verified as having been signed by two authorised officers of the Beneficiary
authorising delivery of the demand)], at [details of
Fronting Bank’s office to be inserted] the Issuer hereby agrees to
pay to you in [•], subject to the maximum amount referred to in paragraph 1
above.


 


4.             Your rights under this Letter of Credit may not
be assigned or transferred.


 


5.             This Letter of Credit is subject to
Uniform Customs and Practice for Documentary Credit (1993 Revision) ,
International Chamber of Commerce Publication No. 500.


 


6.             This Letter of Credit is governed by
English law and, for the benefit of the Issuer only, the courts of England
shall have exclusive jurisdiction.


 


Yours faithfully


 


	
   

  	
   

  
	
   

  
	
  for and on behalf of [•]

  



 


281

















 


[Appendix to Letter of Credit]


 


Form of Draft


 


To:          [•]


 


From:      [The Beneficiary]


 


[Date]


 


Dear Sirs


 


Irrevocable Standby Letter of
Credit No. [•] (the “Letter of Credit”)


 


We refer to the Letter of
Credit.  Terms defined in the Letter of
Credit and not otherwise defined herein bear the same meaning herein.


 


We are writing to inform you
that we are entitled to make demand on you under the Letter of Credit in the
amount of [•], being the amount which has become due and payable by the Company
under an agreement [relevant details to be
inserted] but which has not been paid and we hereby demand payment of
such amount.


 


Yours faithfully


 


	
   

  	
   

  
	
   

  
	
  for and on behalf of [Beneficiary]

  



 


282

















 


SCHEDULE 12


 


FORM OF TEG LETTER


 


From:      [•], as Facility Agent


 


To:          [French Borrower]


 


Dated:    [•]


 


Re:          Senior Bridge Facilities
Agreement dated 21 December 2005 (the “Agreement”)


 


1.             We refer to the Agreement.  Terms defined in the Agreement shall bear the
same meaning in this letter unless otherwise defined in this letter.  References to Clauses in this letter are
references to Clauses in the Agreement.


 


2.             This is the letter referred to in
Clause 8.3 (Effective Global Rate (Taux Effectif Global))
of the Agreement.


 


3.             For the purposes of articles L. 313-1
et seq. of the French Code de la Consommation,
the parties acknowledge that by virtue of certain characteristics of the
Facilities (and in particular the variable interest rate applicable to the
Advances the effective global rate (taux effectif global)
of the Facilities cannot be calculated at the date hereof.


 


4.             However, as an example, the
applicable effective global rate (taux effectif global)
for the Facilities, calculated on the basis of a 365-day year, would be as
follows:


 


(a)           for the A1 Facility, [•] per cent.
per annum (three-month period rate of [•] per cent.);


 


(b)           for the A2 Facility, [•] per cent.
per annum (three-month period rate of [•] per cent.); and


 


(c)           for the C Facility, [•] per cent.
per annum (three-month period rate of [•] per cent.).


 


The above rates
shall not be binding on the Finance Parties or any Obligor and are given on an
indicative basis and on the basis of the following assumptions and information
available on the date hereof:


 


(i)            the Facilities are fully drawn on
the last day of the relevant Availability Period for each Facility, shall
remain fully drawn for the entire duration of the Facilities and that amounts
due under the Facilities will be repaid on the normal date for payment thereof
in accordance with the Agreement;


 


(ii)           Terms will be of a one month
duration;


 


(iii)          one-month’s EURIBOR will be [•] per
cent. per annum and three-month’s EURIBOR will be [•] per cent. per annum;


 


(iv)          each Applicable Margin is the
maximum applicable;


 


283

















 


(v)           the commissions and various fees
payable by the Obligors are those indicated in the fee letters referred to in
Clause 25 (Commitment Commission and Fees)
of the Agreement.


 


5.             The parties acknowledge that this
TEG Letter forms an integral part of this Agreement and is designated as a
Finance Document.


 


We should be grateful if you
would confirm your acceptance of the terms of this letter by signing and
returning to us the enclosed copy.


 


	
   

  	
   

  
	
  [name of
  Facility Agent]

  	
   

  
	
   

  	
   

  
	
  By:

  	
  [•]

  
	
   

  	
   

  
	
   

  	
   

  
	
  We agree to the above

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  [name of
  French Borrower]

  	
   

  
	
   

  	
   

  
	
  By:

  	
  [•]

  	
   

  



 


284

















 


SCHEDULE 13


 


ELIGIBLE CUSTOMER RECEIVABLES CRITERIA


 


1.1         Eligible Receivables


 


Receivables from
customers that comply with the criteria set out below.


 


(a)           the receivable is existing;


 


(b)           the receivable is materialised by an
invoice which sets out the nominal amount of such receivable;


 


(c)           the receivable is held over an
Eligible Debtor;


 


(d)           the receivable arises from an
Eligible Contract entered into between, as applicable, the Borrower or its
Related Opco and the debtor of this receivable;


 


(e)           the Eligible Contract and, with the
exception of the credit insurance policies, all instruments relating to any
security interest attached thereto and all other rights of, as applicable, the
relevant Borrower or its Related Opco in connection therewith from which the
receivable arises:


 


(i)            are governed by the laws of the
jurisdiction of incorporation of, as applicable, the Borrower or its Related
Opco; and


 


(ii)           are legal, valid, binding and
enforceable upon the parties thereof subject to applicable insolvency,
bankruptcy, liquidation, administration or similar laws or laws affecting
creditors generally or general equitable principles;


 


(f)            the receivable is fully and directly
payable to the relevant Borrower or its Related Opco, in the jurisdiction of
incorporation of such Borrower or its Related Opco or a European Union member
country, in its own name and for its own account;


 


(g)           the receivable may not be paid in
kind, and in particular by the delivery of goods to, as applicable, the
relevant Obligor or the provisions of services in favour of such relevant
Obligor;


 


(h)           full and unrestricted right and
title to the receivable has been kept by the relevant Obligor since its
origination,


 


(i)            the invoice issued in relation to
the receivable has been validly issued by the relevant the Borrower or its
Related Opco in accordance with its customary servicing procedures;


 


(j)            the relevant Borrower or its Related
Opco has fulfilled all of its obligations under the Eligible Contract which
gives rise to the receivable and no dispute has arisen with respect to, as
applicable, the Borrower or its Related Opco performance under the Eligible
Contract;


 


285

















 


(k)           the receivable can be identified and
individualised by the relevant Obligor for ownership purposes at any time;


 


(l)            the receivable does not correspond
to any contractual, civil, judicial or late-payment penalties;


 


(m)          the receivable is a non-interest
bearing receivable (save for late interest);


 


(n)           the receivable is not a Defaulted
Receivable;


 


(o)           the payment of the receivable is not
subject to any condition not provided for in the relevant Eligible Contract;


 


(p)           the provisions of any law or
regulation that apply to both:


 


(i)            the receivable, any security
interest attached thereto and any right of, as applicable, the relevant
Borrower or its Related Opco in connection therewith (including, without
limitation, the right of the relevant Borrower or its Related Opco under any applicable
credit insurance policies), and


 


(ii)           the Eligible Contract which gave
rise to that receivable, these security interest(s) and these rights,


 


have been complied
with in a full and timely manner;


 


(q)           the receivable is capable of being
transferred (whether by way of transfer, assignment, negotiation, by way of
guarantee or otherwise) and is not subject to legal or contractual restrictions
on transferability or Encumbrance, including but not limited to, the need for
consent to transfer and assignment from any third party, except if:


 


(i)            this restriction has been waived, or


 


(ii)           the transfer of or Encumbrance over
the receivable remains legal, valid, binding and enforceable upon the relevant
Borrower or its Related Opco under the laws and regulations governing such
transfer of or Encumbrance over the receivable;


 


(r)            the receivable is not subject to a dispute,
challenged, written off or cancelled;


 


(s)           the receivable is not subject, in
whole or in part, to any prohibition on payment, protest, cancellation right,
suspension, withholding, set-off, counter claim or judgment;


 


(t)            the receivable is not wholly or
partly the subject of:


 


(i)            any assignment, delegation,
subrogation, attachment or seizure whatsoever, or


 


(ii)           any security interest, liens, rights
in rem or personal right in favour of a third party or Encumbrance whatsoever;


 


286

















 


(u)           the receivable is payable in EUR,
GBP, CHF, AUD or CAD;


 


(v)           the receivable does not arise from
the performance of any services which have been sub-contracted in whole or in
part to any third party;


 


(w)          no negotiable instrument, issued in
connection with such receivable, has been or is discounted, endorsed,
transferred or delivered by the relevant Obligor;


 


For the purposes of
the above definition of “Eligible Customer
Receivable”, “Eligible Debtor”
shall mean a Debtor which complies with the following eligibility criteria:


 


(x)            it is a legal person (whether a
private law or a public law entity) or a natural person;


 


(y)           it is neither an Obligor, nor a
company which is controlled by Holdco;


 


(z)            it is not insolvent nor subject to
any insolvency or the like proceedings;


 


(aa)         it has no contractual relationship
(including a current account relationship) with the relevant Obligor, on the
basis of which it is or would be entitled to raise any defence of set-off
(including on the basis of the fact that any such receivable is connected or
related to any debt owed to it by said Obligor, or pursuant to a contractual
set-off clause) which may result in reducing or cancelling the debt of such
debtor under the receivable owed by it;


 


(bb)         it is incorporated or established or
resident in the jurisdiction of incorporation of, as applicable, the relevant
Obligor or its Related Opco or in any other jurisdiction provided that the
Facility Agent has received legal opinions to its reasonable satisfaction
confirming that such receivables are, subject to customary qualifications,
enforceable in the courts of the jurisdiction of incorporation, establishment
or residency of the relevant owner of such receivables; and


 


(cc)         it is not a supplier of goods or
services of any entity controlled by Holdco.


 


For the purposes of
the above definition of “Eligible Customer
Receivable”, “Eligible Contract”
shall mean in relation to any receivable, any contract, instrument or other
document providing for the terms and conditions of the sales of goods or
provisions of services from which any such receivable arises, including without
limitation and as appropriate, any relevant general or particular terms and
conditions, invoice, order form, delivery bill, statement and, as the case may
be, the negotiable instruments issued in respect thereof.


 


287

















 


SCHEDULE 14


 


EXISTING INDEBTEDNESS


 


Indebtedness identified in the
Funds Flow Memorandum as being repaid by members of the Group on the Closing
Date.


 


288

















 


SCHEDULE 15


 


TIMETABLE


 


This
Schedule 15 (Timetable) sets forth time periods
/ notice required under the relevant Clauses of this Agreement or other actions
set forth below in the case of any Borrower. 
All references to times in this Schedule 15 (Timetable)
are to Paris time unless otherwise specified. 
“BD” means Business Day and “SBD” means Specified Business Day, in each case, as defined
in this Agreement.


 


	
  Action

  	
   

  	
  Euro

  	
   

  	
  Sterling

  	
   

  	
  CHF

  	
   

  	
  AUD

  	
   

  	
  CAD

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery of a duly completed Asset Report in
  relation to an Advance other than a Swingline Advance (Clause 4.1 (Utilisation Conditions))

  	
   

  	
  Reporting
  Date 11.00 a.m.

  	
   

  	
  Reporting
  Date 11.00 a.m.

  	
   

  	
  Reporting
  Date 11.00 a.m.

  	
   

  	
  Reporting
  Date 11.00 a.m.

  	
   

  	
  Reporting
  Date 11.00 a.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery of a duly completed Utilisation
  Notice in relation to an Advance other than a Swingline Advance (Clause 4.1 (Utilisation Conditions))

  	
   

  	
  Information
  Date – 1SBD 5.00 p.m.

  	
   

  	
  Information
  Date – 1SBD 5.00 p.m.

  	
   

  	
  Information
  Date – 1SBD 5.00 p.m.

  	
   

  	
  Information
  Date – 1SBD 5.00 p.m.

  	
   

  	
  Information
  Date – 1SBD 5.00 p.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery of a duly completed Utilisation
  Notice and Asset Report (if required) in relation to a Swingline Advance
  (Clause 5.2 (Delivery of a Utilisation Notice for
  Swingline Advances))

  	
   

  	
  Notification
  Date 10.00 a.m.

  	
   

  	
  Notification
  Date 10.00 a.m.

  	
   

  	
  Notification
  Date 10.00 a.m.

  	
   

  	
  Notification
  Date 10.00 a.m.

  	
   

  	
  Notification
  Date 10.00 a.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery of a duly completed Utilisation
  Notice and Asset Report (if required) in relation to a Letter of Credit,
  including any renewal thereof (Clause 4.1 (Utilisation
  Conditions))

  	
   

  	
  Notification
  Date 10.00 a.m.

  	
   

  	
  Notification
  Date 10.00 a.m.

  	
   

  	
  Notification
  Date 10.00 a.m.

  	
   

  	
  Notification
  Date 10.00 a.m.

  	
   

  	
  Notification
  Date 10.00 a.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery by Facility Agent to each Bank of a
  Notification in relation to an Advance other than a Swingline Advance (Clause
  10.1 (Advances
  and Letters of Credit))

  	
   

  	
  Information
  Date 2.00 p.m.

  	
   

  	
  Information
  Date 2.00 p.m.

  	
   

  	
  Information
  Date 2.00 p.m.

  	
   

  	
  Information
  Date 2.00 p.m.

  	
   

  	
  Information
  Date 2.00 p.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery by Facility Agent to each Bank of a
  Notification in relation to a Swingline Advance (Clause 10.1 (Advances and Letters of Credit))

  	
   

  	
  Notification
  Date 3.00 p.m.

  	
   

  	
  Notification
  Date 3.00 p.m.

  	
   

  	
  Notification
  Date 3.00 p.m.

  	
   

  	
  Notification
  Date 3.00 p.m.

  	
   

  	
  Notification
  Date 3.00 p.m.

  



 


289

















 


	
  Action

  	
   

  	
  Euro

  	
   

  	
  Sterling

  	
   

  	
  CHF

  	
   

  	
  AUD

  	
   

  	
  CAD

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery by Facility Agent to each Bank of a
  Notification in relation to a Letter of Credit (Clause 10.1 (Advances
  and Letters of Credit))

  	
   

  	
  Notification
  Date + 4SBD 3.00 p.m.

  	
   

  	
  Notification
  Date + 4SBD 3.00 p.m.

  	
   

  	
  Notification
  Date + 4SBD 3.00 p.m.

  	
   

  	
  Notification
  Date + 4SBD 3.00 p.m.

  	
   

  	
  Notification
  Date + 4SBD 3.00 p.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery by each Bank to the Facility Agent
  of the Swingline Rate or the Canadian Swingline Rate (Clause 10.2(b) or 10.2(c)
  (Interest Rate Determination))

  	
   

  	
  Utilisation
  Date +1BD 11.00 a.m.

  	
   

  	
  Utilisation
  Date +1BD 11.00 a.m.

  	
   

  	
  Utilisation
  Date +1BD 11.00 a.m.

  	
   

  	
  Utilisation
  Date +1BD 11.00 a.m.

  	
   

  	
  Utilisation
  Date +1BD 11.00 a.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery by the Facility Agent of the
  Swingline Rate or the Canadian Swingline Rate to the relevant Borrowers and
  the Coordinator

  	
   

  	
  Utilisation
  Date +1BD 6.00 p.m.

  	
   

  	
  Utilisation
  Date +1BD 6.00 p.m.

  	
   

  	
  Utilisation
  Date +1BD 6.00 p.m.

  	
   

  	
  Utilisation
  Date +1BD 6.00 p.m.

  	
   

  	
  Utilisation
  Date +1BD 6.00 p.m.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR, EURIBOR, BA Rate (and CORRA, as
  applicable) or BBSY Quotation Date

  	
   

  	
  Utilisation
  Date –2BD as of 11.00 a.m. (Brussels time)

  	
   

  	
  Utilisation
  Date  as of
  11.00 a.m. (London time)

  	
   

  	
  Utilisation
  Date –2BD  as of
  11.00 a.m. (London time)

  	
   

  	
  Utilisation
  Date  as of
  10.00 a.m. (Sydney time)

  	
   

  	
  Utilisation
  Date  as of
  10.15 a.m. (Toronto time)

  



 


290

















 


SCHEDULE 16


 


FORM OF LOAN NOTE DEED POLL


 


DATED [•]


 


Made by [AUSTRALIAN
BORROWER] (“Australian Borrower”) for the benefit of each person who
from time to time is a Bank (as defined in, and under the terms of, the
Facility Agreement defined below).


 


THE AUSTRALIAN BORROWER
HEREBY AGREES TO BE BOUND AS FOLLOWS:


 


1.             DEFINITIONS AND
INTERPRETATION


 


1.1          Definitions


 


Unless defined
below the definitions in the Facility Agreement (as defined below) apply in
this Deed and the following definitions apply in this Deed, in each case unless
the context requires otherwise.


 


“Bank” means:


 


(a)           any entity named in Schedule 1
(The Banks and their Commitments) to the Facility Agreement; or


 


(b)           any entity which has become a party
to the Facility Agreement in accordance with Clause 36.5 (Assignments by Banks) or Clause 36.6 (Transfers by
Banks) of the Facility Agreement,


 


and which has not
ceased to be a party to the Facility Agreement in accordance with the terms
thereof, or which is subsequently inscribed in the Loan Note Register as the
holder of a Loan Note.


 


“Facility Agreement” means the facility agreement dated 21 December 2005
and made between, among others, Hertz International, Ltd. as Parent, the
companies named therein as Original Borrowers and Original Guarantors, Hertz
Europe Limited as Coordinator, BNP Paribas and The Royal Bank of Scotland plc
as Mandated Lead Arrangers, CALYON as Co-Arranger, BNP Paribas, The Royal Bank
of Scotland plc and CALYON as Joint Bookrunners, BNP Paribas as Facility Agent,
Security Agent and as Global Coordinator and the financial institutions named
therein as Banks.  Terms defined in the
Facility Agreement shall have the same meaning in this notice.


 


“Loan Note” means a loan note issued under this Deed and
constituted by the rights under this Deed of the Bank entitled to such loan
note, title to which is recorded in and evidenced by an inscription in the Loan
Note Register.


 


“Loan Note Register” means the register maintained by the
Facility Agent for the purpose of Loan Notes in accordance with Clause 45.5
(Establishment of Loan Note Register) of
the Facility Agreement.


 


291

















 


1.2          Interpretation


 


Clause 1 (Definitions and
Interpretation) of the Facility Agreement applies in this Deed as if
references to “this Agreement” were to this Deed.


 


2.             BANKS’ RIGHTS


 


This Deed is a deed
poll.  The Loan Notes are issued on the
condition that each Bank has the benefit of this Deed and the Loan Notes and is
entitled to enforce this Deed and the Loan Notes issued to it even though it is
not a party to this Deed or only becomes a Bank after the date of this
Deed.  Without limitation of the
foregoing, the Security Agent may, as agent of any Bank, enforce the rights of
such Bank under this Deed or any Loan Notes issued to such Bank.  Subject to the Finance Documents, the
Security Agent and each Bank may enforce its rights under this Deed
independently from the Security Agent and each other Bank.


 


3.             CREATION OF LOAN NOTES


 


The Australian
Borrower creates and issues Loan Notes in favour of each Bank by inscription in
the Loan Note Register and with an outstanding principal amount from time to
time equal to that Bank’s Proportion of all outstanding Advances under the [A1]
[A2] [Facility] [Facilities] from time to time as recorded in the Loan Note
Register and a maximum principal amount equal to that Bank’s Commitment under
the Facility.


 


4.             UNDERTAKING AND
ACKNOWLEDGEMENT OF DEBT


 


(a)           The Australian Borrower acknowledges
that it is indebted to each Bank for the outstanding principal amount of the
Loan Notes from time to time as recorded in the Loan Note Register as
outstanding to that Bank.


 


(b)           The Australian Borrower agrees to
pay principal and interest in respect of each Loan Note issued to a Bank in
accordance with the Facility Agreement, the Loan Note and this Deed.


 


(c)           The obligations of the Australian
Borrower under paragraph (b) above are discharged to the extent that
interest is paid on a Loan Note, or a Loan Note is redeemed, in accordance with
the Facility Agreement.


 


5.             CONSTITUTION OF LOAN NOTES


 


5.1          Constitution


 


The Loan Notes are
constituted by this Deed and inscription in the Loan Note Register.  Title to the Loan Notes is conclusively
evidenced for all purposes by inscription in the Loan Note Register subject to
rectification in the event of fraud or manifest error.  No certificate or other evidence of title to
a Loan Note will be issued by or on behalf of the Australian Borrower unless it
is required by the Facility Agent or it is required by law.


 


292

















 


5.2          Issue of Loan Notes by
entry in Loan Note Register


 


A Loan Note is:


 


(a)           issued when details of the Loan Note
are first entered in the Loan Note Register; and


 


(b)           transferred when the details of the
transfer are entered in the Loan Note Register.


 


5.3          Status


 


(a)           The Loan Notes constitute direct,
unconditional and unsubordinated obligations of the Australian Borrower and
rank equally among themselves and at least equally with all unsecured and
unsubordinated obligations of the Australian Borrower (except liabilities
mandatorily preferred by law and subject to the Finance Documents).


 


(b)           Each Loan Note constitutes a
separate debt of the Australian Borrower to the Bank in whose name it is
recorded in the Loan Note Register, and each Bank is entitled to enforce these
obligations without having to join any other Bank or predecessor in title of a
Bank.


 


5.4          Transfer


 


The Loan Notes are
transferable only in accordance with the Facility Agreement and in relation to
any offer to transfer or resell a Loan Note, such offer must be made in a
manner which does not require disclosure for the purposes of Part 6D.2 of
the Corporations Act 2001 (Cth).


 


6.             INTEREST


 


(a)           The Australian Borrower agrees to
pay interest in respect of Loan Notes at the rates and on the dates in accordance
with and on the terms of the Facility Agreement relating to the Advance in
respect of which the Loan Notes were issued. 
Interest will accrue from day to day on the outstanding principal amount
of each Loan Note corresponding to the outstanding principal amount of the
Advance in respect of which the Loan Notes were issued.


 


(b)           Interest payable on a Loan Note
shall be satisfied by the payment of the corresponding amount of interest
payable in respect of the Advance in respect of which the Loan Note was issued,
and vice versa.


 


7.             REPAYMENT


 


(a)           The Australian Borrower agrees to
redeem the Loan Notes in the amounts and currencies and on the dates on which
the Advance in respect of which the Loan Notes were issued are repayable or
prepayable in accordance with and on the terms of the Facility Agreement.


 


(b)           Without limiting paragraph (a), if
the Advances in respect of which the Loan Notes were issued become repayable or
prepayable, the Australian Borrower


 


293

















 


shall repay or
prepay such Loan Notes at the time such Advances are repayable or repayable in
accordance with, and on the terms of, the Facility Agreement.


 


(c)           Any repayment or prepayment under
paragraph 7 above may be made only to the extent that the Minimum Principal
Loan Note Amount remains outstanding.


 


8.             PAYMENTS


 


The Australian
Borrower agrees to make all payments under a Loan Note in accordance with
Clause 31 (Payments) of the Facility Agreement.


 


9.             NOTICES


 


Clause 42 (Notices) of the Facility Agreement applies to this Deed.


 


10.          GOVERNING LAW


 


This Deed and the
Loan Notes are governed by English law. 
Clause 47 (Jurisdiction)
of the Facility Agreement applies to this Deed and the Loan Notes as though set
forth herein as if references to “Obligor” were to the Australian Borrower and
references to “this Agreement” were to this Deed.


 


	
  EXECUTED AS A DEED POLL

  	
   

  
	
  [AUSTRALIAN
  BORROWER]

  	
   

  
	
   

  	
   

  
	
  By:

  	
  [•]

  	
   

  
			



 


294

















 


SCHEDULE 17


 


CANADIAN PRO-RATA SHARE


 


	
  Bank

  	
   

  	
  A1 Canadian Dollar

  Tranche (CAD)

  	
   

  	
  A2 Canadian Dollar

  Tranche (CAD)

  	
   

  
	
  The Royal Bank of Scotland plc

  	
   

  	
  35

  	
  %(6)

  	
  35

  	
  %(7)

  
	
  CALYON

  	
   

  	
  30

  	
  %(8)

  	
  30

  	
  %(9)

  



 






(6)           109,305,000
/ 312,300,000


(7)           15,610,000
/ 44,600,000


(8)           93,690,000
/ 312,300,000


(9)           13,380,000
/ 44,600,000


 


295

















 


SCHEDULE 18


 


SECURITY PRINCIPLES


 


The Security Documents (and
the security created or evidenced thereby) shall reflect the principles set out
herein.  Clause 21.16 (Group Acceding Guarantors) sets out the circumstances in
which Additional Guarantors are required to accede to the Agreement or
Designated Obligors are required to become Designated Obligors.  If the Additional Guarantors or Designated
Obligors are required to provide security under this Agreement, the Security
Documents entered into by such Additional Guarantors or Designated Obligors
shall also reflect the principles set out herein.


 


1.             DEFINED TERMS


 


1.1           General: 
Defined terms in the Security Documents shall mirror, to the extent
possible, those in this Agreement.


 


1.2           Obligations to be secured: 
The obligations to be secured under the Security Documents are the
Secured Liabilities (as defined below). 
The security is to be granted in favour of the Security Agent on behalf
of the Finance Parties under and as defined in this Agreement (to the extent
local law requirements permit).  For ease
of reference, the following definition shall be incorporated into each Security
Document:


 


“Secured Liabilities” means all present and future obligations
and liabilities (whether actual or contingent and whether owed jointly or
severally or in any other capacity whatsoever) of [each Obligor / the relevant
Obligor(s)] to the Finance Parties (or any of them) under the Finance Documents
(or any of them).


 


2.             UNDERTAKINGS /
REPRESENTATIONS AND WARRANTIES


 


This Agreement
contains general representations, warranties and undertakings and,
consequently, any Security Document shall not seek, to the extent possible and
having regard to local law, to duplicate these and shall be limited to those
specifically relating to the assets over which security is taken and/or to the
extent not already addressed by provisions in this Agreement.  If it is necessary to include undertakings
that are covered by this Agreement because the Security Document will be a
registered public document constituting notice to third parties, the
undertakings shall mirror the relevant undertakings in this Agreement or
cross-refer to them.


 


3.             CONSENTS AND APPROVALS


 


Each Obligor shall
use its reasonable commercial endeavours (including, without limitation,
conducting a “whitewash” (where appropriate)) to overcome any obstacles
relating to the granting of any Security or Guarantees to be provided pursuant
to this Agreement (other than any such obstacles that arise as a result of the
terms of any Vehicle Rental Concession), including any obstacles which may:


 


(a)           result in a breach of corporate
benefit, financial assistance, fraudulent preference, thin capitalisation or
capital maintenance rules, laws or regulations (or analogous restrictions
including any obligation not to endanger the


 


296

















 


existence of any
Obligor or Guarantor) (in each case having binding effect on the relevant
Obligor) of any applicable jurisdiction; or


 


(b)           conflict with the fiduciary duties
of the directors or contravention with any legal prohibition or result in a
risk of personal or criminal liability on the part of the officer.


 


4.             ENFORCEABILITY


 


The security shall
be enforceable on the occurrence of an Event of Default which is continuing and
has not been waived under this Agreement and which has resulted in the Facility
Agent serving a notice under Clause 23.16(a) (Acceleration
and Cancellation) of this Agreement provided that no such notice
shall be required to be served with respect to the enforcement of certain
security including, amongst others, the conversion of a floating charge into a
fixed charge created pursuant to any Security Document governed by the laws of
Australia.


 


5.             APPLICATION OF PROCEEDS


 


The proceeds of
enforcement of the Security Documents shall be stated to be applied in
accordance with the provisions of the Intercreditor Deed.


 


6.             SECURITY OVER SHARES


 


6.1           Where possible under local law,
equitable mortgages (or the equivalent in local jurisdictions) over shares will
be granted to the Security Agent and will be perfected pursuant to local law
requirements.


 


6.2           Share certificates shall be
delivered to the Security Agent in respect of certificated stock together
(where customary and available) with pre-stamped share transfer forms executed
in blank or in all other cases, where customary, shares certificates endorsed
(in blank).


 


6.3           The share security shall contain
provisions to ensure that (a) the security has become enforceable pursuant
to paragraph 4 above, the grantor of the security is entitled to receive
dividends and exercise voting rights provided that the grantor of the security
shall not exercise such voting rights in any manner, or otherwise permit or
agree to any (x) variation of the rights attaching to or conferred by any of
the shares or (y) increase in the issued share capital of any company whose
shares are charged pursuant to the share pledge, which, in either case and in
the reasonable opinion of the Security Agent, would prejudice the ability of
the Security Agent or the Finance Parties to realise the security created by
the share pledge or (z) cause an Event of Default to occur, and (b) after
the security has been enforced, the voting and dividend receipt rights may be
exercised by the Security Agent.


 


6.4           Unless the restriction is required
by law or regulation, the constitutional documents of the company whose shares
have been charged will be amended to remove any restriction on the transfer or
the registration of the transfer of the shares on enforcement of the security
granted over them.


 


297

















 


7.             SECURITY OVER RECEIVABLES


 


7.1           The Group companies shall be
entitled (without the further consent of the Finance Parties) to use the
proceeds of the receivables until the security has been enforced.


 


7.2           No Group company shall be required
to notify any third party debtors which are not members of the Group to any
contracts that have been assigned and/or charged under a Security Document if
such notification would, in the reasonable opinion of the Parent, materially
impede or prejudice the normal operations of the business of the relevant Group
company.  Once the security has been
enforced, notifications will be made as required by the Security Agent.


 


8.             MATERIAL CONTRACTS


 


The Group shall be
able to deal with contracts as permitted under this Agreement and prior to the
Security becoming enforceable pursuant to paragraph 4 above.  No member of the Group or other Obligor shall
be required to notify counterparties which are not members of the Group or
other Obligors to any contracts that have been charged/assigned under a
Security Document that such contract has been so charged/assigned (prior to the
security being enforced) if the Parent notifies the Security Agent in writing
that, in the reasonable opinion of the Parent, such notification is likely to
materially prejudice the relationship the Group companies have with such
counterparty.  Following the security
being enforced, notifications will be made as reasonably required by the
Security Agent.


 


9.             INSURANCE


 


9.1           Each Obligor shall use its
reasonable efforts to procure that the Security Agent is named as an additional
insured and loss payee with respect to each insurance maintained by it and by
each of its subsidiaries.


 


9.2           Following the security being
enforced, notifications to any insurer party to any insurance policy that has
been assigned and/or charged under a Security Document will be made as reasonably
required by the Security Agent.


 


10.          RELEASE OF SECURITY


 


Each security
document shall contain a release clause requiring the Security Agent to release
the security constituted thereby if any of the following events occur:


 


10.1         Upon (a) the Secured Liabilities
being discharged in full and none of the secured parties being under any
further actual or contingent obligation to make advances or provide other
financial accommodation to the security providers or any other person under any
of the Finance Documents, or (b) the security provider ceasing to be both
a Borrower and a Guarantor subject to, and in accordance with, this Agreement,
the Security Agent shall, at the request and cost of the Parent, release and
cancel the Security of such security provider and procure the reassignment to
the security provider of the property and assets assigned to the Security Agent
pursuant to the relevant Security Documents.


 


298

















 


10.2         In connection with (a) any
Permitted Disposal of any property that is subject to a Security, (b) any
sale or other disposition of any property otherwise permitted by this Agreement
that is subject to a Security, (c) any sale or other disposition of any
property that is subject to a Security where the Facility Agent or the Security
Agent has consented to the disposal pursuant to this Agreement, (d) any
sale or any other disposition of any property pursuant to a merger,
consolidation, reorganisation, winding-up, securitisation, Take-Out Financing
or sale and leaseback permitted by this Agreement to the extent necessary to
ensure such merger, consolidation, reorganisation, winding-up, securitisation,
Take-Out Financing or sale and leaseback take place or (e) the creation of
any Encumbrance permitted by paragraph (x) of the definition of “Permitted Encumbrances” other than the creation of such
Encumbrance over any asset subject to any Security governed by Australian law,
the Security Agent shall, at the request and cost of the Parent, release and cancel
the security of such security provider and procure the reassignment to the
security provider of the property and assets assigned to the Security Agent
pursuant to the relevant Security Document, provided that (i), to the extent
that the disposal of such property is a Permitted Disposal or a sale or
disposition otherwise permitted by this Agreement, the property shall be
declared to be automatically released from the Security with effect from the
day of such disposal and the Security Agent and the Facility Agent shall each
do all such acts which are reasonably requested by the Parent in order to
release such property and (ii) in the case of clause (e) above, such
release and cancellation of security shall not extend to any property or assets
which form part of the A1 Borrowing Base, the A2 Borrowing Base or the C
Borrowing Base.


 


10.3         In connection with security over
Shareholder Subordinated Loans, in the event that such a Shareholder
Subordinated Loan is converted into share capital or other equity interests of
the Parent as permitted under this Agreement, such Shareholder Subordinated
Loan shall be declared to be automatically released from the Security with
effect from the day of such conversion and the Security Agent and the Facility
Agent shall each do all such acts which are reasonably requested by the Parent
in order to release such Shareholder Subordinated Loan, provided that such
release shall be contemporaneous with the granting of new security interest
over such share capital or other equity interests of the Parent in favour of
the Security Agent (and the Finance Parties to the extent required by
applicable local law) on substantially the same terms as the share pledge by
the Parent on or before the Closing Date and on the basis set forth in 6 above.


 


299

















 


SCHEDULE 19


 


FORM OF BANK CERTIFICATE


 


 


	
  Musterbank/–sparkasse Ort

  	
   

  	
  Bank/Savings Bank Location

  
	
   

  	
   

  	
   

  
	
  [EINHEIT]

  	
   

  	
  [Department]

  
	
   

  	
   

  	
   

  
	
  [NAME] Telefon: – [TELEFON]

  	
   

  	
  [name] Phone: – [phone number] Fax: –

  
	
   

  	
   

  	
  [fax number]

  
	
   

  	
   

  	
   

  
	
  Telefax: – [FAX]

  	
   

  	
  Address: Bank/Savings Bank Location

  
	
   

  	
   

  	
   

  
	
  Postadresse: Musterbank/–sparkasse Ort

  	
   

  	
  Location, date

  
	
   

  	
   

  	
   

  
	
  Ort, [Datum]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  – Entwurf –

  	
   

  	
  – Draft –

  
	
   

  	
   

  	
   

  
	
  Bescheinigung zur Vorlage beim Finanzamt für
  Zwecke des § 8a KStG

  	
   

  	
  Confirmation letter to the attention of the tax
  authorities with respect to sec. 8a German Corporate Income Tax Act (CITA)

  
	
   

  	
   

  	
   

  
	
  Sie
  hatten die ........ („Bank/Sparkasse”) gebeten, zur Vorlage beim Finanzamt
  für Zwecke des § 8a KStG eine Bescheinigung auszustellen(i). Hierzu
  erklären wir, dass uns bezüglich des Mischlimits / des Darlehens / der
  Betriebsmittellinie ...... (Vertragsnummer; Kreditnummer; Kontonummer) vom
  ..... (Datum des Vertragsabschlusses) in Höhe von EUR..... („Finanzierung”)
  an die [XY] („Kreditnehmer”)

  	
   

  	
  You
  have requested ....... (“Bank/Savings Bank”) to issue a confirmation letter to be
  presented to the tax authorities with respect to sec. 8a German Corporate
  Income Tax Act (CITA)(i). We herewith confirm, that in connection with the
  loan .....(number of the contract; number of the loan; account number) dated ....
  (date of signing the loan contract) in the amount of EUR .... (“Financing”) to
  [XY] (“Borrower”)

  
	
  •      keine Sicherheiten an Kapitalforderungen
  von anderen Personen als dem Kreditnehmer gewährt wurden(ii).

   

  •      Die nachfolgend aufgeführten Sicherheiten
  von anderen Personen als dem Kreditnehmer gewährt wurden:

  	
   

  	
  •      no securities over cash receivables have
  been granted by persons other than the Borrower(ii).

   

  •      The following securities have been granted
  by persons other than the Borrower:

  



 


300

















 


	
  1.
  Dingliche Sicherheiten

  	
   

  	
  1.
  Property collateral

  
	
   

  	
   

  	
   

  
	
  •      Pfandrechte (z.B. an Einlagen)

  	
   

  	
  •      Pledge (eg. of deposits)

  
	
   

  	
   

  	
   

  
	
  •      Sicherungsabtretungen (z.B. Einzel-abtretung
  von Forderungen)

  	
   

  	
  •      Assignment for security (eg. assignment of
  receivables)

  
	
   

  	
   

  	
   

  
	
  2.
  Personalsicherheiten
  (z.B. Bürgschaft, Garantie, Schuldmitübernahme)

  	
   

  	
  2.
  Individual securities
  (eg. guarantee, assumption of liability on a joint basis)

  
	
   

  	
   

  	
   

  
	
  verbunden
  mit folgenden/r:

  	
   

  	
  in
  connection with 

  
	
  •      dinglichen Sicherheit (z.B. an Einlagen)

  	
   

  	
  •      “in rem” security right (eg. on a deposits)

  
	
   

  	
   

  	
   

  
	
  •      Sicherungsabtretungen (z.B.
  Einzel-abtretung von Forderungen; Global–/Mantelabtretung von Forderungen)

  	
   

  	
  •      assignment for security (eg. single
  assignment of receivables, universal assignment of receivables)

  
	
   

  	
   

  	
   

  
	
  •      Unterwerfung der sofortigen
  Zwangs-vollstreckung mit dem gesamten Vermögen oder hinsichtlich einzelner
  Vermögensgegenstände



  	
   

  	
  •      possibility of immediate execution with
  respect to all assets or specified assets



  
	
  •      vereinbarten Verfügungsbeschränkungen



  	
   

  	
  •      agreed restraint on disposal of assets

  
	
  •      sonstigen Vereinbarungen (z.B.: Pfandrechte
  nach den Allgemeinen Geschäftsbedingungen)(iii)

  	
   

  	
  •      other agreements (eg. pledge acc. to the
  general terms and conditions)(iii)

  
	
   

  	
   

  	
   

  
	
  3.
  Sicherheiten der o.g. Art, auf die während des bestehenden
  Darlehens-verhältnisses verzichtet wurde

  	
   

  	
  3.
  Securities as mentioned above, which has been waived for the term of the loan

  



 


301

















 


	
  Sonstige
  Anmerkungen(iv)

  	
   

  	
  Further
  comments(iv)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Die
  Bescheinigung enthält nur solche Angaben, die dem bei der Bank/Sparkasse mit
  der vorgenannten Finanzierung vertrauten Personenkreis bekannt sind.



  	
   

  	
  This
  confirmation letter contains only such information, which is known to the
  person working on the aforementioned financing at the Bank/Savings Bank.

  
	
  Die
  Bank/Sparkasse übernimmt mit dieser Erklärung – bereits aus rechtlichen
  Gründen – keine Beratung in steuerlichen Angelegenheiten. Insbesondere steht
  die Bank/Sparkasse nicht für einen steuerlichen Erfolg ein, der mit dieser
  Bescheinigung angestrebt wird.



  	
   

  	
  In
  accordance with the law the Bank/ Savings Bank is not providing any tax
  services with this confirmation. Furthermore does the Bank/Savings Bank not
  guarantee any success of the action which is pursued with this confirmation
  letter.

  
	
  Die
  deutsche Version dieser Bescheinigung ist bindend.



  	
   

  	
  The
  German version of this confirmation letter shall prevail. 

  
	
  Mit
  freundlichen Grüßen,



  	
   

  	
  Kind
  regards,

  
	
  Bank/Sparkasse

  	
   

  	
  Bank/Savings
  Bank

  
	
   

  	
   

  	
   

  
	
  Erläuterungen

  	
   

  	
  Explanations

   

   

  
	
  (i)
  Die Erklärung ist grundsätzlich nur auf Anforderung des Kreditnehmers
  anlässlich des Abschlusses einer der genannten Rechtsgeschäfte (Darlehen
  etc.) durch den Kreditgeber abzugeben; sie ist vom Aussteller der
  ursprünglichen Bescheinigung ferner anlässlich jeder Vertragsänderung oder
  Änderung der gewährten Sicherheiten ohne weitere Anforderungen des
  Kreditnehmers abzugeben.

  	
   

  	
  (i)
  In general, the confirmation letter is to be issued by the Lender only on the
  demand of the Borrower upon signing of an agreement as mentioned above (eg.
  loan agreement etc.). It has to be renewed by the issuer of the first
  confirmation letter without prior request by the Borrower as soon as the
  underlying agreement or the given securities have been altered.

  



 


302

















 


	
  (ii)  Die Aufzählung der von Dritten gewährten
  Sicherheiten und die namentliche Auflistung der Sicherheitengeber erfolgt
  unabhängig davon, ob es sich dabei um nicht nur kurzfristige Einlagen oder
  nicht nur kurzfristige sonstige Kapitalforderungen i.S.d. Rdnr. 20 des
  BMF-Schreibens vom 15. Juli 2004 zu § 8a KStG (BStBl. I 2004 S. 593)
  handelt. Sie erfolgt ferner unabhängig davon, ob die Sicherheit vom Eintritt
  einer Bedingung (z.B. dem Sicherungsfall oder der Fälligkeit der gesicherten
  Schuld) oder dem Ablauf einer Frist abhängig ist.



  	
   

  	
  (ii)  The listing of the securities provided by
  third parties and the naming of the obligor should be made regardless of
  whether the deposit or cash receivable is not only short term in the sense of
  para. 20 of the letter memorandum of the German tax authorities dated 15 July 2004
  with respect to sec. 8a CITA (published in BStBl. I 2004 page 593).
  Moreover the listing should be made regardless of whether the securities are
  given conditionally (eg. to the event of default or to maturity of the
  secured liability) or subject to a due date.

  
	
  (iii)  Einzufügen sind ferner sämtliche für das Darlehen/den
  Kredit bestellten Sicherheiten und Treuhandverhältnisse (z.B. Grundschuld,
  Hypothek, Patronatserklärung, Sicherungsüber-eignung).

  	
   

  	
  (iii)          All securities and trusteeship have to be
  listed which have been granted for the underlying loan/facility (eg. land
  charge, mortgage, letter of comfort, transfer by way of security.

   

   

  
	
  (iv)  Hier sind Angaben anzubringen, sofern und
  soweit von (weiteren) Personen, die nicht Kreditnehmer sind, Sicherheiten
  gewährt wurden, diese Personen das Kreditinstitut jedoch nicht von einem
  bestehenden Bankgeheimnis hinsichtlich dieser Bescheinigung entbunden haben.

  	
   

  	
  (iv)  Please provide information here (having
  regard to confidentiality restrictions) in respect of security given by
  persons other than the Borrower who have not released the Bank/Savings Bank
  from their obligation of confidentiality with respect to this letter.

  



 


303

















 


SCHEDULE 20


 


SECURITY DOCUMENTS


 


Initial Security Documents


 


1.             Australia


 


Hertz Australia Pty. Limited
(the Australian Opco)


 


1.1           Australian Purchaser Charge (Project
H) – Unlimited between Hertz Australia Pty. Limited and HA Funding Pty Limited.


 


1.2           Australian Purchaser Charge (Project
H) – South Australia between Hertz Australia Pty. Limited And HA Funding Pty
Limited.


 


1.3           Australian Purchaser Charge (Project
H) – Queensland between Hertz Australia Pty. Limited and HA Funding Pty
Limited.


 


Hertz Investment (Holdings)
Pty. Limited


 


1.4           Australian Share Mortgage over
Purchaser Shares (Project H) between Hertz Investment (Holdings) Pty. Limited
and HA Funding Pty Limited.


 


Hertz Note Issuer Pty
Limited


 


1.5           Australian Issuer Charge (Project H)
between Hertz Note Issuer Pty Limited and HA Funding Pty Limited.


 


HA Funding Pty Limited


 


1.6           Australian Borrower Charge (Project
H) between HA Funding Pty Limited and the Security Agent.


 


Internal funding documents


 


1.7           Australian Subscription Deed
(Project H) between HA Funding Pty Limited, Hertz Note Issuer Pty Limited and
Perpetual Trustee Company Limited.


 


1.8           Australian Purchase Deed (Project H)
between Hertz Australia Pty. Limited, HA Funding Pty Limited and Perpetual
Trustee Company Limited.


 


1.9           Australian Registry Services
Agreement (Project H) between Hertz Note Issuer Pty Limited, HA Funding Pty
Limited and Perpetual Trustee Company Limited.


 


1.10         Australian Loan Note Deed Poll
(Project H) given by Hertz Note Issuer Pty Limited.


 


1.11         Australian Security Trust Deed
(Project H) between HA Funding Pty Limited and the Security Agent.


 


304

















 


2.             Belgium


 


2.1           Pledge of shares in Hertz Belgium
N.V. (the Belgian Opco) to be entered into between Hertz Holdings Netherlands
B.V. and BNP Paribas S.A.


 


2.2           General pledge over the business
(equivalent of floating charge) of the Belgian Opco to be entered into between
Hertz Belgium NV and BNP Paribas S.A.


 


2.3           Pledge of receivables and bank
account over (a) any receivables under the relevant dealer and buy-back
agreements (b) benefit of bank guarantees of buy-back obligations (c) insurance
policies (d) net balance of bank accounts, (e) VAT credit and to be
entered into between Hertz Belgium NV and BNP Paribas S.A.


 


3.             Canada


 


Hertz Canada Limited (Opco)


 


3.1           General Security and Pledge
Agreement.


 


3.2           Hypothec in form suitable for registration in
Quebec.


 


3.3           Bond in support of Hypothec.


 


3.4           Bond Pledge in support of Bond.


 


1677932 Ontario Limited


 


3.5           General Security and Pledge Agreement
(including a pledge of shares of Hertz      Canada
Limited).


 


CMGC Canada Acquisition ULC


 


3.6           General Security and Pledge
Agreement (including pledge of shares of 1677932 Ontario Limited).


 


4.             France


 


Hertz France SAS (Opco)


 


4.1           Floating Charge (Nantissements de fonds de commerce) over Hertz France SAS
business to be entered into between Hertz France SAS, BNP Paribas as Security
Agent on its own behalf and on behalf of the beneficiaries.


 


4.2           Pledge over net balance of all bank
accounts (acte de nantissement de soldes de comptes bancaires)
of Hertz France SAS and to be entered into between Hertz France SAS, BNP
Paribas as Security Agent on its own behalf and on behalf of the beneficiaries.


 


4.3           Pledge (Nantissement
de compte d’instruments financiers) by Hertz France SAS over Hertz
Equipement France SAS shares to be entered into between Hertz France SAS, BNP
Paribas as Security Agent on its own behalf and on behalf of the beneficiaries
and the relevant bank account holder.


 


305

















 


Hertz Equipement France SAS
(E. Opco)


 


4.4           Floating Charge (Nantissement de fonds de commerce) over Hertz Equipement
France SAS business to be entered into between Hertz Equipement France SAS, BNP
Paribas as Security Agent on its own behalf and on behalf of the beneficiaries.


 


4.5           Assignment of receivables by way of
security (cession de créances professionnelles à titre de
garantie) to be entered into between Hertz Equipement France SAS,
BNP Paribas as Security Agent on its own behalf and on behalf of the assignees.


 


4.6           Pledge over net balance of certain
bank accounts (acte de nantissement de soldes de comptes
bancaires) of Hertz Equipement France SAS and to be entered into
between Hertz Equipement France SAS, BNP Paribas as Security Agent on its own
behalf and on behalf of the beneficiaries.


 


Equipole Finance Services
SAS


 


4.7           Floating Charge (Nantissements de fonds de commerce) over
Equipole Finance Services SAS business to be entered into between Equipole
Finance Services SAS, BNP Paribas as Security Agent on its own behalf and on
behalf of the beneficiaries.


 


4.8           Assignment of receivables by way of
security (cession de créances professionnelles à titre de
garantie) to be entered into between Equipole Finance Services SAS,
BNP Paribas as Security Agent on its own behalf and on behalf of the assignees.


 


4.9           Pledge over net balance of certain
bank accounts (acte de nantissement de soldes de comptes)
to be entered into between Equipole Finance Services SAS, BNP Paribas as
Security Agent on its own behalf and on behalf of the beneficiaries.


 


Equipole, S.A.


 


4.10         Pledge (nantissement
de compte d’instruments financiers) over Equipole Finance Services
SAS shares to be entered into between Equipole Finance Services SAS, BNP
Paribas as Security Agent on its own behalf and on behalf of the beneficiaries
and the relevant bank account holder.


 


4.11         Pledge (nantissement
de compte d’instruments financiers) over Hertz France
SAS shares to be entered into between Equipole, S.A., Hertz France SAS, BNP Paribas as Security Agent on its own
behalf and on behalf of the beneficiaries and the relevant bank account holder.


 


4.12         Pledge (nantissement
de compte d’instruments financiers) over Hertz Equipment France SAS shares to be entered into between Equipole,
S.A., Hertz Equipment France SAS,
BNP Paribas as Security Agent on its own behalf and on behalf of the
beneficiaries and the relevant bank account holder.


 


306

















 


5.             Germany


 


Hertz Autovermietung GmbH
(Opco)


 


5.1           Security assignment of moveable
assets (Sicherungsübereignungsvertrag) including
in relation to the existing cars in Germany by the Opco, between Hertz
Autovemietung GmbH as assignor and BNP Paribas S.A. as assignee.


 


5.2           Global assignment of receivables (Globalabtretung von Fro derungen) to be entered into between
Hertz Autovermietung GmbH as assignor and BNP Paribas S.A. as assignee.


 


5.3           Pledges over bank accounts of Opco (Kontoverpfandung) to be entered into between Hertz
Autovermietung GmbH and BNP Paribas S.A. as Security Agent.


 


5.4           Share pledge (German OpCo share)
(German law) of Equipole, S.A. in Hertz Autovermietung GmbH to be entered into
between Equipole, S.A and BNP Paribas S.A.


 


6.             Italy


 


Hertz Italiana S.p.A. (Opco)


 


6.1           Assignment by way of security of
certain buy-back and other receivables from car manufacturers between Hertz
Italiana S.p.A and BNP Paribas S.A.


 


6.2           Pledge over balance of certain bank
accounts between Hertz Italiana S.p.A and BNP Paribas S.A.


 


Hertz Holding South Europe
S.r.l


 


6.3           Pledge over Italian Opco’s shares
between Hertz Holding South Europe S.r.l and BNP Paribas S.A.


 


7.             Netherlands


 


BNS Automobile Funding B.V.


 


7.1           Deed of Disclosed Pledge of
Receivables between BNS Automobile Funding B.V. as Pledgor and BNP Paribas as
Security Agent as Pledgee.


 


Stuurgroep Holland B.V.


 


7.2           Deed of Disclosed Pledge of Registered
Shares between Stuurgroep Holland B.V. as Pledgor, BNS Automobile Funding B.V.
and BNP Paribas as the Pledgees and Hertz Automobielen Netherlands B.V. as
Company.


 


7.3           Deed of Non-Possessory Pledge of
Movables between Stuurgroep Holland B.V. as Pledgor and BNS Automobile Funding
B.V. and BNP Paribas as the Pledgees.


 


7.4           Deed of Disclosed Pledge of
Receivables between Stuurgroep Holland B.V. as Pledgor and BNS Automobile
Funding B.V. and BNP Paribas as the Pledgees.


 


307

















 


7.5           Deed of Undisclosed Pledge of
Receivables between Stuurgroep Holland B.V. as Pledgor and BNS Automobile
Funding B.V. and BNP Paribas as the Pledgees.


 


Hertz Holdings Netherlands
B.V.


 


7.6           Deed of Disclosed Pledge of
Registered Shares between Hertz Holdings Netherlands B.V. as Pledgor, BNS
Automobile Funding B.V. as Pledgee and Stuurgroep Holland B.V. as Company.


 


8.             Spain


 


Shareholders of Hertz de
Espana, S.A. (OpCo)


 


8.1           Pledge over shares in OpCo between
Hertz International, Ltd., Hertz Equipment Rental International, Ltd., BNP
Paribas S.A. as Security Agent on its behalf and on behalf of the beneficiaries
and Hertz de España, S.A.


 


Hertz de Espana, S.A. (OpCo)


 


8.2           Pledge over shares in Equipment OpCo
between Hertz de España, S.A FundingCo, BNP Paribas S.A. as Security Agent on
its behalf and on behalf of the beneficiaries and Hertz Alquiler de Maquinaria,
S.L.


 


8.3           Pledge over receivables from
buy-back agreements of OpCo between Hertz de España, S.A, FundingCo and BNP
Paribas S.A. as Security Agent on its behalf and on behalf of the
beneficiaries.


 


8.4           Pledge over insurance policies of
OpCo between Hertz de España, FundingCo and BNP Paribas as Security Agent on
its behalf and on behalf of the beneficiaries.


 


8.5           Pledge over bank accounts of OpCo
between Hertz de España, FundingCo and BNP Paribas as Security Agent on its
behalf and on behalf of the beneficiaries.


 


8.6           Pledge over VAT credits of OpCo
between Hertz de España, FundingCo and BNP Paribas as Security Agent on its
behalf and on behalf of the beneficiaries.


 


Hertz Alquiller de
Maquinaria S.L. (Equipment OpCo)


 


8.7           Pledge over receivables from
buy-back agreements of Equipment OpCo between Hertz Alquiler de Maquinaria,
S.L., FundingCo and BNP Paribas S.A. as Security Agent on its behalf and on
behalf of the beneficiaries.


 


8.8           Pledge over bank accounts of
Equipment OpCo between Hertz Alquiler de Maquinaria, S.L., FundingCo and BNP
Paribas S.A. as Security Agent on its behalf and on behalf of the
beneficiaries.


 


8.9           Pledge over insurance policies of
Equipment OpCo between Hertz Alquiler de Maquinaria, S.L., FundingCo and BNP
Paribas S.A. as Security Agent on its behalf and on behalf of the
beneficiaries.


 


308

















 


8.10         Pledge over VAT credits of Equipment
OpCo between Hertz Alquiler de Maquinaria, S.L., FundingCo and BNP Paribas S.A.
as Security Agent on its behalf and on behalf of the beneficiaries.


 


Dutch orphan (FundingCo)


 


8.11         Pledge over receivables arising from
loans to Hertz de España, S.A and Hertz Alquiler de Maquinaria, S.L. between
FundingCo and BNP Paribas S.A. as Security Agent on its behalf and on behalf of
the beneficiaries.


 


8.12         Pledge over proceeds arising from
enforcement of pledges granted by Hertz de España, S.A and Hertz Alquiler de
Maquinaria, S.L. between FundingCo and BNP Paribas S.A. as Security Agent on
its behalf and on behalf of the beneficiaries.


 


9.             Switzerland


 


Hertz AG (the Swiss Opco)


 


9.1           Pledge Agreement on the entire share
capital of Hertz AG to be entered into between Hertz Holding South Europe S.r.l
and BNP Paribas S.A. as Security Agent.


 


9.2           Pledge Agreement on the entire share
capital of Züri-Leu Garage AG and Société Immobilière Fair Play to be entered
into between Hertz AG and BNP Paribas S.A. as Security Agent.


 


9.3           Assignment Agreement relating to
Trade Receivables, Insurance Claims, Inter-company Receivables and Bank
Accounts of the Swiss Opco to be entered into between Hertz AG and BNP Paribas
S.A. as Security Agent.


 


10.          England and Wales


 


10.1         Deed of Charge to be entered into
between Hertz (U.K.) Limited and Security Agent.


 


10.2         Deed of Charge over Shares in Hertz
(U.K.)  Limited to be entered into
between Hertz Holdings II UK Limited and Security Agent.


 


10.3         Deed of Charge over Shares in Hertz
Holdings III to be entered into between Hertz International Ltd. and Security
Agent.


 


309

















 


SCHEDULE 21


 


FORMS OF ASSET REPORTS


 


Part 1

All Advances other than Swingline Advances


 


Part A – Asset Report
for A Advances


 


As attached.


 


Part B – Asset Report
for C Advances


 


As attached.


 


310














 


Part 2

Form of Swingline Asset Report


 


Part A
– Asset Report for A Swingline Advances


 


As attached.


 


Part B
– Asset Report for C Swingline Advances


 


As attached.


 


311

















 


Part 3

Form of Letter of Credit Asset Report


 


Asset
Report for Letters of Credit


 


As attached.


 


312

















 


SCHEDULE 22


 


NOTIFICATION


 


Part 1

(Advances other than Swingline Advances)


 


From:      BNP Paribas


 


To:          [CALYON/RBS/ BNPP as appropriate]


 


Dated:    [•]


 


Dear Sirs,


 


1.             We refer to the agreement (the “Facility Agreement”)
dated 21 December 2005 and made between, among others, Hertz International
Ltd., BNP Paribas as Facility Agent and the financial institutions named
therein as Banks.  Terms defined in the
Facility Agreement shall have the same meaning in this notice.


 


2.             This notice is irrevocable.


 


3.             We hereby give you notice that, pursuant to Clause 10.1 (Advances and Letters of Credit) of the Facility Agreement,
the Banks need to make the A1 and A2 Advances as follows:


 


	
  Borrower

  	
   

  	
  Tranche

  A1

  Amount

  	
   

  	
  Tranche

  A2

  Amount

  	
   

  	
  Total Amount

  	
   

  	
  Utilisation

  Date

  	
   

  	
  Repayment

  Date

  
	
  Amount

  to be

  repaid

  (main

  facility)

  	
   

  	
  Amount to

  be repaid

  (swingline)

  	
   

  	
  New

  Drawing

  (A1 +

  A2)

  	
   

  	
  Net

  Drawing

  Amount

  	
   

  	
  Cash

  Flow

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  This should list each Borrower that we are lending

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


4.             We hereby give you notice that, pursuant to Clause 10.1 (Advances and Letters of Credit) of the Facility Agreement,
the Banks need to make the C Advance as follows:


 


	
  Borrower

  	
   

  	
  Tranche C Amount

  	
   

  	
  Utilisation

  Date

  	
   

  	
  Repayment Date

  
	
  Amount to

  be repaid

  (main

  facility)

  	
   

  	
  Amount to

  be repaid

  (swingline)

  	
   

  	
  New

  Drawing

  	
   

  	
  Net Drawing

  Amount

  	
   

  	
  Cash Flow

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


313

















 


5.             The proceeds of [Please insert as
appropriate]


 


the Euro Advances should be credited to [insert
account details].


 


the CHF Advances should be credited to [insert
account details].


 


the GBP Advances should be credited to [insert
account details].


 


the AUD Advances should be credited to [insert
account details].


 


The CAD Advances should be credited to [insert
account details].


 


6.             The Asset Report for the Borrower is attached.


 


Yours faithfully


 


	
   

  
	
   

  
	
  Authorised
  Signatory

  
	
  for and on behalf
  of

  
	
  BNP Paribas as
  Facility Agent

  



 


314

















 


Part 2

(Swingline Facilities)


 


From:      BNP Paribas


 


To:          [CALYON/RBS/ BNPP as appropriate]


 


Dated:    [•]


 


Dear Sirs,


 


1.             We refer to the agreement (the “Facility Agreement”)
dated 21 December 2005 and made between, among others, Hertz International
Ltd., BNP Paribas as Facility Agent and the financial institutions named
therein as Banks.  Terms defined in the
Facility Agreement shall have the same meaning in this notice.


 


2.             This notice is irrevocable.


 


3.             We hereby give you notice that, pursuant to Clause 10.1 (Advances and Letters of Credit) of the Facility Agreement,
the Banks need to make the A1 and A2 Swingline Advances as follows:


 


	
  Borrower

  	
   

  	
  Swingline

  A1

  Amount

  	
   

  	
  Swingline

  A2

  Amount

  	
   

  	
  Total Amount

  	
   

  	
  Utilisation

  Date

  	
   

  	
  Repayment

  Date

  	
   

  	
  Settlement

  Instructions

  
	
   

  	
   

  	
   

  	
  Amount to

  be repaid

  (main

  facility)

  	
   

  	
  Amount to be

  repaid

  (swingline)

  	
   

  	
  New

  Drawing

  (A1 + A2

  Swingline)

  	
   

  	
  Net

  Drawing

  Amount

  	
   

  	
  Cash Flow

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  This should list each Borrower that we are lending

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
																																							



 


4.             We hereby give you notice that, pursuant to Clause 10.1 (Advances and Letters of Credit) of the Facility Agreement,
the Banks need to make the C Swingline Advance as follows:


 


	
  Borrower

  	
   

  	
  Tranche C Swingline Amount

  	
   

  	
  Utilisation

  Date

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Amount to

  be repaid

  (main

  facility)

  	
   

  	
  Amount to

  be repaid

  (swingline)

  	
   

  	
  New

  Drawing

  	
   

  	
  Net Drawing

  Amount

  	
   

  	
  Cash Flow

  	
   

  	
   

  	
  Repayment

  Date

  	
   

  	
  Settlement

  Instructions

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


315

















 


5.             The Asset Report for the Borrower is attached.


 


Yours faithfully


 


 


	
   

  
	
  Authorised Signatory

  
	
  for and on behalf
  of

  
	
  BNP Paribas as
  Facility Agent

  



 


316

















 


Part 3

(Letters of Credit)


 


From:      BNP Paribas


 


To:          [CALYON/RBS/ BNPP as appropriate]


 


Dated:    [•]


 


Dear Sirs,


 


1.             We refer to the agreement (the “Facility Agreement”)
dated 21 December 2005 and made between, among others, Hertz International
Ltd., BNP Paribas as Facility Agent and the financial institutions named
therein as Banks.  Terms defined in the
Facility Agreement shall have the same meaning in this notice.


 


2.             This notice is irrevocable.


 


3.             We hereby give you notice that, pursuant to Clause 10.1 (Advances and Letters of Credit) of the Facility Agreement, [•], the L/C Issuer, needs to issue
Letters of Credit as follows:


 


	
  Borrower

  	
   

  	
  Maximum Amount

  under Letter of Credit

  	
   

  	
  Issue Date

  	
   

  	
  Expiry Date

  	
   

  	
  Beneficiary

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


4.             The Asset Report for the Borrower is attached.


 


Yours faithfully


 


 


	
   

  
	
  Authorised
  Signatory

  
	
  for and on behalf
  of

  
	
  BNP Paribas as
  Facility Agent

  



 


317

















 


SCHEDULE 23


 


FORM OF SPECIFIED ECF AMOUNT CERTIFICATE


 


This Officer’s Certificate (this “Certificate”)
is delivered to you on behalf of the Company (as hereinafter defined) pursuant
to Clause 20.1(a) (Annual Statements)
of the Senior Bridge Facilities Agreement, dated 21 December 2005 (as
amended, supplemented, restated or modified from time to time, the “Senior Bridge Facilities Agreement”), among Hertz
International Ltd., a Delaware corporation (the “Company”),
the Original Borrowers, the Original Guarantors, Hertz Europe Limited, as
Coordinator, BNP Paribas and The Royal Bank of Scotland plc as Mandated Lead
Arrangers, CALYON as Co-Arranger, BNP Paribas as Facility Agent and the
financial institution party thereto from time to time.  Terms defined in the Senior Bridge Facilities
Agreement and not otherwise defined herein are used herein as therein defined.


 


1.           I am the duly elected, qualified and
acting Chief Financial Officer of the Company.


 


2.           I have reviewed and am familiar with the contents of this
Certificate.  I am providing this
Certificate solely in my capacity as an officer of the Company.  The matters set forth herein are true to the
best of my knowledge after diligent and thorough inquiry.


 


3.           I have reviewed the terms of the Senior Bridge Facilities Agreement and
the other Finance Documents and have made or caused to be made under my
supervision, a review in reasonable detail of the transactions and financial
condition of the Company and its subsidiaries (including, without limitation,
the Obligors) during the Relevant Period.


 


4.           Attached hereto as Annex 1 are the computations showing (in reasonable
detail) each of the Specified ECF Amount, the Relevant Maximum Amount and the
Excess Cash Flow.  All such computations
are true and correct.


 


318

















 


IN WITNESS WHEREOF,
I have executed this Certificate on behalf of the Company this           
day of           .


 


	
   

  	
  HERTZ
  INTERNATIONAL, LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title: Chief
  Financial Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


319

















 


ANNEX 1


 


COMPLIANCE WORKSHEET


 


The calculations described herein is as of           
     ,           
(the “Computation Date”) and pertains to the
period from                
     ,           
to                
     ,           
(the “Relevant Period”).


 


Part A.  Specified ECF Amount


 


	
  1.             Do
  Take-Out Financings that have been completed aggregate to an amount equal to
  50% or more of the Initial Maximum Amount (determined on the last day of the
  last ended Relevant Period)?

  	
   

  	
  YES/NO

  
	
   

  	
   

  	
   

  
	
  2.             If
  NO, Specified ECF Amount :

  	
   

  	
  0

  
	
   

  	
   

  	
   

  
	
  3.             If
  YES, then:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  4.             Aggregate
  Euro Amount of the Take-Out Financing completed on such date with respect to
  the A1 Facility, A2 Facility and the C Facility.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.             Relevant
  Maximum Amount (as computed in Part B below).

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.             Item 4
  divided by Item 5.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.             Excess
  Cash Flow (as computed in Part C below).

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.             Specified
  ECF Amount (Item 6 multiplied by Item 7) :

  	
   

  	
  $

  	
   

  



 


Part B.  Relevant Maximum
Amount


 


	
  1.             The
  Euro Amount of the Total A1 Commitments (determined on the last day of the
  last ended Relevant Period).

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.             The
  Euro Amount of the Total A2 Commitments (determined on the last day of the
  last ended Relevant Period).

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.             The
  Total C Commitments (determined on the last day of the last ended Relevant
  Period)

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.             Relevant
  Maximum Amount (the sum of Item 1, Item 2 and Item 3) :

  	
   

  	
  $

  	
   

  



 


320

















 


Part C
Excess Cash Flow


 


	
  1.             EBITDA
  for the Relevant Period.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.             Any
  Capital Expenditure made in cash during the Relevant Period (except to the
  extent financed with (x) net increase in indebtedness incurred under
  paragraphs (m), (p) (to the extent relating to indebtedness incurred under
  the Dutch Capital Lease Indebtedness and UK Capital Lease Indebtedness (or
  any refinancings thereof which are made pursuant to said paragraph (p)) or
  (w) of the definition of “Permitted Indebtedness” during the Relevant Period
  or (y) Equity Financing made during the Relevant Period by any Parent Company
  to any member of the Group.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.             Item
  1 minus Item 2.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.             Any
  principal payments resulting in a permanent reduction of any Financial
  Indebtedness of the Parent or any of its subsidiaries made during the
  Relevant Period.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.             Item
  3 minus Item 4.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.             Interest
  Expense for the Relevant Period.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.             Item
  5 minus Item 6.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.             Any
  taxes paid or payable in cash during the Relevant Period (net of any refunds
  or rebates).

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.             Item
  7 minus Item 8.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.           Without
  duplication of Item 2 of this Part C, any Investment described in the
  definition of “Permitted Investments” (other than with respect to Cash
  Equivalents and transactions between members of the Group) which was paid in
  cash during the Relevant Period (except to the extent financed with (x) net
  increase in indebtedness incurred under paragraphs (m), (p) (to the extent
  relating to indebtedness incurred under the Dutch Capital Lease Indebtedness
  and UK Capital Lease Indebtedness (or any refinancings thereof which are made
  pursuant to said paragraph (p)) or (w) of the definition of “Permitted
  Indebtedness” during the Relevant Period or (y) Equity Financing made during
  the Relevant Period by any Parent Company to any member of the Group), net of
  any amounts received in cash in respect of Permitted Investments.

  	
   

  	
  $

  	
   

  



 


321

















 


	
  11.           Item
  9 minus Item 10

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12.           Any
  Consideration paid in cash during the Relevant Period in respect of Permitted
  Acquisitions (other than Permitted Acquisitions to the extent financed with
  (x) net increase in indebtedness incurred under paragraphs (m), (p) (to the
  extent relating to indebtedness incurred under the Dutch Capital Lease
  Indebtedness and UK Capital Lease Indebtedness (or any refinancings thereof
  which are made pursuant to said paragraph (p)) or (w) of the definition of
  “Permitted Indebtedness” during the Relevant Period or (y) Equity Financing
  made during the Relevant Period by any Parent Company to any member of the
  Group).

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13.           Item
  11 minus Item 12.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  14.           To
  the extent not included in EBITDA, pension cash costs as advised by the
  Parent’s pensions actuarial adviser including any cash cost of funding any
  portion of any deficit of any retirement, redundancy, statutory or voluntary
  profit sharing plan or statutory severance plan or arrangement covering
  individuals who are employed by any Obligor, the Parent or any affiliate of
  any of them and as to which any of the same has any direct or indirect
  obligation or liability for unfunded benefits thereunder.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  15.           Item
  13 minus Item 14

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  16.           The
  Change in Consolidated Working Capital for the Relevant Period.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  17.           Item
  15 plus Item 16.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  18.           Hertz
  Variable Debt Amount for the Relevant Period.

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  19.           Excess
  Cash Flow (Item 17 plus Item 18) :

  	
   

  	
  $

  	
   

  



 


322

















 


SIGNATORIES TO THE SENIOR BRIDGE FACILITIES
AGREEMENT


 


PARENT


 


	
  EXECUTED by HERTZ INTERNATIONAL, LTD.

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE COORDINATOR


 


	
  Executed by HERTZ EUROPE LIMITED

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE ORIGINAL BORROWERS


 


AUSTRALIA


 


	
  Signed for HA FUNDING PTY LIMITED

  	
   

  	
  )

  
	
  /s/ MICHEL TARIDE

  	
  /s/ NUNS
  MOODLIAR

  	
   

  	
  )

  
	
  by its attorney/s

  	
   

  	
  )

  
	
  under power of attorney dated

  	
  December 2005

  	
   

  	
   

  
					



 

















 


THE ORIGINAL BORROWERS


BELGIUM


 


	
  Executed by HERTZ BELGIUM N.V.

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE ORIGINAL BORROWERS


 


CANADA


 


	
  Executed by HERTZ CANADA LIMITED

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE ORIGINAL BORROWERS


 


FRANCE


 


	
  Executed by HERTZ FRANCE SAS

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ ERIC POKROVSKY

  	
   

  	
  )

  
	
  and

  	
  /s/ ALAIN GIRARD

  	
   

  	
   

  



 


 


	
  Executed by EQUIPOLE FINANCE SERVICES SAS

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ ERIC POKROVSKY

  	
   

  	
  )

  
	
  and

  	
  /s/ ALAIN GIRARD

  	
   

  	
   

  



 


 


	
  Executed by HERTZ EQUIPEMENT FRANCE SAS

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ JACQUES MIGNON

  	
   

  	
  )

  
	
  and

  	
  /s/ CHARLES MORELLO

  	
   

  	
   

  



 

















 


THE ORIGINAL BORROWERS


 


GERMANY


 


	
  Executed by HERTZ AUTOVERMIETUNG GmbH

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE ORIGINAL BORROWERS


 


ITALY


 


	
  Executed by HERTZ ITALIANA S.p.A.

  	
   

  	
  )

  
	
  /s/ RICCARDO SALLUTIO

  	
   

  	
  )

  
	
  acting by

  	
   

  	
   

  	
  )

  
	
  pursuant to power of attorney dated

  	
  December 2005.

  	
   

  	
   

  



 

















 


THE ORIGINAL BORROWERS


 


THE NETHERLANDS


 


	
  Executed by BNS AUTOMOBILE FUNDING B.V.

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE ORIGINAL BORROWERS


 


SWITZERLAND


 


	
  Executed by HERTZ AG

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE ORIGINAL BORROWERS


 


UNITED KINGDOM


 


	
  Executed by HERTZ (U.K.) LIMITED

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE ORIGINAL GUARANTORS


 


PARENT


 


	
  Executed by HERTZ INTERNATIONAL, LTD.

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE ORIGINAL GUARANTORS


 


AUSTRALIA


 


	
  Signed for HERTZ AUSTRALIA PTY. LIMITED

  	
   

  	
  )

  
	
  /s/ MICHEL TARIDE

  	
  /s/ NUNS MOODLIAR

  	
   

  	
  )

  
	
  by its attorney/s

  	
   

  	
  )

  
	
  under power of attorney dated

  	
  December 2005

  	
   

  	
   

  
					



 

















 


THE
ORIGINAL GUARANTORS


BELGIUM


 


	
  Executed by HERTZ
  BELGIUM N.V.

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
ORIGINAL GUARANTORS


 


FRANCE


 


	
  Executed by HERTZ
  FRANCE SAS

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ ERIC POKROVSKY

  	
   

  	
  )

  
	
  and

  	
  /s/ ALAIN GIRARD

  	
   

  	
   

  



 


 


	
  Executed by HERTZ
  EQUIPEMENT FRANCE SAS

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ ERIC POKROVSKY

  	
   

  	
  )

  
	
  and

  	
  /s/ ALAIN GIRARD

  	
   

  	
   

  



 


 


	
  Executed by EQUIPOLE
  FINANCE SERVICES SAS

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ JACQUES MIGNON

  	
   

  	
  )

  
	
  and

  	
  /s/ CHARLES MORELLO

  	
   

  	
   

  



 

















 


THE
ORIGINAL GUARANTORS


 


GERMANY


 


	
  Executed by HERTZ
  AUTOVERMIETUNG GmbH

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
ORIGINAL GUARANTORS


 


ITALY


 


	
  Executed by HERTZ
  ITALIANA S.p.A.

  	
   

  	
  )

  
	
  /s/ RICCARDO SALLUTIO

  	
   

  	
  )

  
	
  acting by

  	
   

  	
  )

  
	
  pursuant to power of
  attorney dated

  	
  December 2005.

  	
   

  	
   

  
				



 

















 


THE
ORIGINAL GUARANTORS


 


SPAIN


 


	
  Executed by HERTZ DE
  ESPAÑA S.A.

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 


 


	
  Executed by HERTZ ALQUILER
  DE MAQUINARIA S.L.

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
ORIGINAL GUARANTORS


 


SWITZERLAND


 


	
  Executed by HERTZ AG

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
ORIGINAL GUARANTORS


 


THE NETHERLANDS


 


	
  Executed by BNS
  AUTOMOBILE FUNDING B.V.

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 


 


	
  Executed by STUURGROEP
  HOLLAND B.V.

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
ORIGINAL GUARANTORS


 


UNITED KINGDOM


 


	
  Executed by HERTZ
  (U.K.) LIMITED

  	
   

  	
  )

  
	
   

  	
   

  	
  )

  
	
  acting by

  	
  /s/ MICHEL TARIDE

  	
   

  	
  )

  
	
  and

  	
  /s/ NUNS MOODLIAR

  	
   

  	
   

  



 

















 


THE
MANDATED LEAD ARRANGERS


 


BNP PARIBAS


 


	
  By:

  	
  /s/ IYADH LAALAI

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Iyadh Laalai

  	
   

  	
   

  



 


 


	
  THE ROYAL BANK OF
  SCOTLAND PLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ ALAN PARRY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Alan Parry

  	
   

  	
   

  



 

















 


CO-ARRANGER


 


	
  CALYON

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ VINCENT FLEURY

  	
   

  	
  /s/ LAURENT HAIK

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Vincent Fleury

  	
   

  	
  Laurent Haik

  



 

















 


THE JOINT
BOOKRUNNERS


 


	
  BNP PARIBAS

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ IYADH LAALAI

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Iyadh Laalai

  	
   

  	
   

  	
   

  	
   

  



 


 


	
  THE ROYAL BANK OF
  SCOTLAND PLC

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ ALAN PARRY

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Alan Parry

  	
   

  	
   

  	
   

  	
   

  



 


 


	
  CALYON

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ VINCENT FLEURY

  	
   

  	
  /s/ LAURENT HAIK

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Vincent Fleury

  	
   

  	
  Laurent Haik

  	
   

  	
   

  



 

















 


THE
FACILITY AGENT


 


	
  BNP PARIBAS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ IYADH LAALAI

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Iyadh Laalai

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  3 rue d’Antin

  	
   

  	
   

  
	
   

  	
  75078 Paris Cedex 02

  	
   

  	
   

  
	
   

  	
  France

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Attention:

  	
  Jérôme Eschbach

  	
   

  	
   

  
	
  Phone:

  	
  +33 1 42 98 19 40

  	
   

  	
   

  
	
  Fax:

  	
  +33 1 42 98 60 02

  	
   

  	
   

  
	
  Email:

  	
  jerome.eschbach@bnpparibas.com

  	
   

  	
   

  



 

















 


THE
SECURITY AGENT


 


	
  BNP PARIBAS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ IYADH LAALAI

  	
   

  	
   

  
				



 

















 


THE
GLOBAL COORDINATOR


 


	
  BNP PARIBAS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ IYADH LAALAI

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
  3 rue d’Antin

  	
   

  	
   

  
	
   

  	
  75078 Paris Cedex 02

  	
   

  	
   

  
	
   

  	
  France

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Attention:

  	
  Jérôme Eschbach

  	
   

  	
   

  
	
  Phone:

  	
  +33 1 42 98 19 40

  	
   

  	
   

  
	
  Fax:

  	
  +33 1 42 98 60 02

  	
   

  	
   

  
	
  Email:

  	
  jerome.eschbach@bnpparibas.com

  	
   

  	
   

  



 

















 


THE
CANADIAN PERMITTED BANK


 


	
  BNP PARIBAS (CANADA)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ CAROLINE BECAVIN

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
  Caroline Becavin

  	
   

  	
   

  



 

















 


THE BANKS


 


	
  BNP PARIBAS

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ IYADH LALLAI

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Iyadh Laalai

  	
   

  	
   

  	
   

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BNP PARIBAS (CANADA)

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ CAROLINE BECAVIN

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Caroline Becavin

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  THE ROYAL BANK OF
  SCOTLAND PLC

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ ALAN PARRY

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Alan Parry

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  CALYON

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ VINCENT FLEURY

  	
   

  	
  /s/ LAURENT HAIK

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Vincent Fleury

  	
   

  	
  Laurent Haik

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


	
  INDOSUEZ FINANCE (UK)
  LIMITED

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ VINCENT FLEURY

  	
   

  	
  /s/ LAURENT HAIK

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Vincent Fleury

  	
   

  	
  Laurent Haik