Exhibit 4.8




 





 


 


INTERCREDITOR AGREEMENT


 


by and between


 


DEUTSCHE BANK AG, NEW YORK BRANCH,


 


as ABL Agent,


 


and


 


DEUTSCHE BANK AG, NEW YORK BRANCH,


 


as Term Agent


 


Dated as of December 21, 2005


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page No.

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1 DEFINITIONS

  	
  2

  
	
  Section 1.1

  	
  UCC Definitions

  	
  2

  
	
  Section 1.2

  	
  Other Definitions

  	
  2

  
	
  Section 1.3

  	
  Rules of Construction

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 LIEN PRIORITY

  	
  15

  
	
  Section 2.1

  	
  Agreement to Subordinate.

  	
  15

  
	
  Section 2.2

  	
  Waiver of Right to Contest Liens.

  	
  17

  
	
  Section 2.3

  	
  Remedies Standstill.

  	
  18

  
	
  Section 2.4

  	
  Exercise of Rights.

  	
  18

  
	
  Section 2.5

  	
  No New Liens

  	
  21

  
	
  Section 2.6

  	
  Waiver of Marshalling

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 ACTIONS OF THE PARTIES

  	
  22

  
	
  Section 3.1

  	
  Certain Actions Permitted

  	
  22

  
	
  Section 3.2

  	
  Agent for Perfection

  	
  22

  
	
  Section 3.3

  	
  Sharing of Information and Access

  	
  23

  
	
  Section 3.4

  	
  Insurance

  	
  23

  
	
  Section 3.5

  	
  No Additional Rights For the Credit Parties Hereunder

  	
  23

  
	
  Section 3.6

  	
  Actions Upon Breach

  	
  23

  
	
  Section 3.7

  	
  Inspection Rights and Insurance

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 APPLICATION OF PROCEEDS

  	
  25

  
	
  Section 4.1

  	
  Application of Proceeds.

  	
  25

  
	
  Section 4.2

  	
  Specific Performance

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 INTERCREDITOR ACKNOWLEDGEMENTS AND WAIVERS

  	
  27

  
	
  Section 5.1

  	
  Notice of Acceptance and Other Waivers.

  	
  27

  
	
  Section 5.2

  	
  Modifications to ABL Documents and Term Documents.

  	
  28

  
	
  Section 5.3

  	
  Reinstatement and Continuation of Agreement.

  	
  30

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 INSOLVENCY PROCEEDINGS

  	
  31

  
	
  Section 6.1

  	
  DIP Financing.

  	
  31

  
	
  Section 6.2

  	
  Relief From Stay

  	
  31

  
	
  Section 6.3

  	
  No Contest

  	
  32

  
	
  Section 6.4

  	
  Asset Sales

  	
  32

  
	
  Section 6.5

  	
  Separate Grants of Security and Separate Classification

  	
  32

  
	
  Section 6.6

  	
  Enforceability

  	
  33

  
	
  Section 6.7

  	
  ABL Obligations Unconditional

  	
  33

  
	
  Section 6.8

  	
  Term Obligations Unconditional

  	
  33

  
	
  Section 6.9

  	
  Adequate Protection

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 MISCELLANEOUS

  	
  34

  
	
  Section 7.1

  	
  Rights of Subrogation

  	
  34

  



 


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  Section 7.2

  	
  Further Assurances

  	
  35

  
	
  Section 7.3

  	
  Representations

  	
  35

  
	
  Section 7.4

  	
  Amendments

  	
  35

  
	
  Section 7.5

  	
  Addresses for Notices

  	
  35

  
	
  Section 7.6

  	
  No Waiver, Remedies

  	
  36

  
	
  Section 7.7

  	
  Continuing Agreement, Transfer of Secured Obligations

  	
  36

  
	
  Section 7.8

  	
  Governing Law: Entire Agreement

  	
  36

  
	
  Section 7.9

  	
  Counterparts

  	
  37

  
	
  Section 7.10

  	
  No Third Party Beneficiaries

  	
  37

  
	
  Section 7.11

  	
  Headings

  	
  37

  
	
  Section 7.12

  	
  Severability

  	
  37

  
	
  Section 7.13

  	
  Attorneys Fees

  	
  37

  
	
  Section 7.14

  	
  VENUE; JURY TRIAL WAIVER.

  	
  37

  
	
  Section 7.15

  	
  Intercreditor Agreement

  	
  38

  
	
  Section 7.16

  	
  No Warranties or Liability

  	
  38

  
	
  Section 7.17

  	
  Conflicts

  	
  38

  
	
  Section 7.18

  	
  Information Concerning Financial Condition of the Credit Parties

  	
  38

  



 


ii

















 


INTERCREDITOR AGREEMENT


 


THIS
INTERCREDITOR AGREEMENT (as amended or otherwise modified pursuant to the terms
hereof, this “Agreement”)
is entered into as of December 21, 2005 between DEUTSCHE BANK AG NEW YORK BRANCH (“DBNY”), in
its capacities as administrative agent and collateral agent (together with its
successors and assigns in such capacities, the “ABL Agent”) for the
financial institutions party from time to time to the Original ABL Credit
Agreement referred to below (such financial institutions, together with their
successors, assigns and transferees, the “ABL Credit Agreement Lenders” and,
together with affiliates thereof in their capacity as ABL Bank Products
Affiliates or ABL Hedging Affiliates (in each case, as hereinafter defined),
the “ABL
Lenders”) and DBNY, in its capacities as administrative agent
and collateral agent (together with its successors and assigns in such
capacities, the “Term Agent”) for the financial institutions party
from time to time to the Term Credit Agreement referred to below (such
financial institutions, together with their successors, assigns and
transferees, the “Term Credit Agreement Lenders” and,
together with (i) affiliates thereof and certain other specified hedging
parties, in their capacity as Term Bank Products Affiliates or Term Hedging
Affiliates and (ii) the Brazil Debt Secured Parties (in each case, as
hereinafter defined), the “Term Lenders”).


 


RECITALS


 


A.            Pursuant to that certain Credit
Agreement dated as of the date hereof by and among Hertz Equipment Rental
Corporation, (“HERC”), The
Hertz Corporation (“Hertz”) and
certain subsidiaries of Hertz, as additional borrowers (the “Subsidiary Borrowers” and, together with HERC and Hertz, the “ABL Borrowers”, the ABL Credit
Agreement Lenders and the ABL Agent (as such agreement may be amended,
supplemented, restated or otherwise modified from time to time, the “Original ABL
Credit Agreement”), the ABL Credit Agreement Lenders have agreed
to make certain loans and other financial accommodations to or for the benefit
of the ABL Borrowers (as hereinafter defined).


 


B.            Pursuant to certain guaranty
agreements and security agreements dated as of the date hereof (the “ABL Guaranties”)
by the ABL Guarantors in favor of the ABL Agent, the ABL Guarantors have agreed
to guarantee the payment and performance of the ABL Borrowers’ obligations
under the ABL Documents.


 


C.            As a condition to the effectiveness
of the Original ABL Credit Agreement and to secure the obligations of the ABL
Borrowers and the ABL Guarantors (the ABL Borrowers, the ABL Guarantors and
each other direct or indirect subsidiary or parent of Hertz or any of its
affiliates that is now or hereafter becomes a party to any ABL Document,
collectively, the “ABL Credit Parties”) under and in connection with the
ABL Documents, the ABL Credit Parties have granted to the ABL Agent (for the
benefit of (x) the ABL Lenders, including the ABL Bank Products Affiliates and
ABL Hedging Affiliates and (y) the Euro MTN Secured Parties) Liens on the Collateral.


 


D.            Pursuant to that certain Credit
Agreement dated as of the date hereof by and among Hertz (the “Term Borrower”), the Term Credit
Agreement Lenders and the Term Agent (as such agreement may be amended,
supplemented, restated or otherwise modified from time to


 

















 


time, the “Original Term Credit Agreement”), the Term Credit
Agreement Lenders have agreed to make certain loans and other financial
accommodations to or for the benefit of the Term Borrower.


 


E.             Pursuant to certain guaranty
agreements and security agreements dated as of the date hereof (the “Term Guaranties”)
by the Term Guarantors in favor of the Term Agent, the Term Guarantors have
agreed to guarantee the payment and performance of the Term Borrower’s
obligations under the Term Documents (as hereinafter defined).


 


F.             As a condition to the effectiveness
of the Original Term Credit Agreement and to secure the obligations of the Term
Borrower and the Term Guarantors (the Term Borrower, the Term Guarantors and
each other subsidiary or parent of Hertz or any of its affiliates that is now
or hereafter becomes a party to any Term Document, collectively, the “Term Credit
Parties”) under and in connection with the Term Documents, the
Term Credit Parties have granted to the Term Agent (for the benefit of (x) the
Term Lenders including the Term Bank Products Affiliates and Term Hedging
Affiliates and (y) the Euro MTN Secured Parties) Liens on the Collateral.


 


G.            Each of the ABL Agent (on behalf of
the ABL Lenders) and the Term Agent (on behalf of the Term Lenders) and, by
their acknowledgment hereof, the ABL Credit Parties and the Term Credit
Parties, desire to agree to the relative priority of Liens on the Collateral
and certain other rights, priorities and interests as provided herein.


 


NOW
THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, receipt of which is hereby acknowledged,
the parties hereto agree as follows:


 


ARTICLE 1

DEFINITIONS


 


Section 1.1            UCC
Definitions. 
The following terms which are defined in the Uniform Commercial Code are
used herein as so defined:  Accounts,
Chattel Paper, Deposit Accounts, Documents, Electronic Chattel Paper,
Equipment, Financial Assets, Instruments, Inventory, Investment Property,
Letter-of-Credit Rights, Money, Payment Intangibles, Promissory Notes, Records,
Security, Securities Accounts, Security Entitlements, Supporting Obligations,
and Tangible Chattel Paper.


 


Section 1.2            Other
Definitions. 
As used in this Agreement, the following terms shall have the meanings
set forth below:


 


“ABL Agent”
shall have the meaning assigned to that term in the introduction to this
Agreement and shall include any successor thereto as well as any Person
designated as the “Agent” or “Administrative Agent” under any ABL Credit
Agreement.


 


“ABL Bank Products Affiliate” shall
mean any ABL Credit Agreement Lender or any Affiliate of any ABL Credit
Agreement Lender (in each case that is not also a Term Credit Agreement Lender)
that has entered into a Bank Products Agreement with an ABL Credit Party with
the obligations of such ABL Credit Party thereunder being secured by one or
more ABL Collateral Documents.


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“ABL Borrowers” shall have the
meaning assigned to that term in the introduction to this Agreement.


 


“ABL Canadian
Collateral” shall mean Collateral owned by any Canadian
subsidiary of Hertz and pledged to any ABL Secured Party under any ABL Credit
Document.


 


“ABL Collateral
Documents” shall mean all “Security Documents” as defined in the
Original ABL Credit Agreement, and all other security agreements, mortgages,
deeds of trust and other collateral documents executed and delivered in
connection with any ABL Credit Agreement, in each case as the same may be
amended, modified or supplemented from time to time.


 


“ABL Credit
Agreement” shall mean the Original ABL Credit Agreement and any
other agreement extending the maturity of, consolidating, restructuring,
refunding, replacing or refinancing all or any portion of the ABL Obligations,
whether by the same or any other agent, lender or group of lenders and whether
or not increasing the amount of any Indebtedness that may be incurred
thereunder.


 


“ABL Credit Agreement Lenders” shall have the meaning assigned
to that term in the introduction to this Agreement.


 


“ABL
Credit Parties” shall have the meaning assigned to that term in
the recitals to this Agreement.


 


“ABL Documents”
shall mean the ABL Credit Agreement, the ABL Guaranties, the ABL Collateral
Documents, any Bank Product Agreements between any ABL Credit Party and any ABL
Bank Products Affiliate, any Hedging Agreements between any ABL Credit Party
and any ABL Lender, those other ancillary agreements as to which the ABL Agent
or any ABL Lender is a party or a beneficiary and all other agreements,
instruments, documents and certificates, now or hereafter executed by or on
behalf of any ABL Credit Party or any of its respective Subsidiaries or
Affiliates, and delivered to the ABL Agent, in connection with any of the
foregoing or any ABL Credit Agreement, in each case as the same may be amended,
modified or supplemented from time to time.


 


“ABL
Guaranties” shall have the meaning assigned to that term in the
recitals to this Agreement.


 


“ABL Guarantors”
shall mean the collective reference to CCMGC, the U.S. Borrowers (solely with
respect to the obligations of the Canadian Borrowers under each Loan Document)
and each Subsidiary of the Parent Borrower (other than (a) any Foreign
Subsidiary (excluding any Canadian Subsidiary Guarantor), (b) any Subsidiary of
a Foreign Subsidiary (excluding any Canadian Subsidiary Guarantor), (c) any
Special Purpose Subsidiary, (d) Navigations Solutions and (e) Hertz Vehicle
Sales Corporation) and any other Person who becomes a guarantor under any of
the ABL Guaranties.


 


“ABL Hedging Affiliate” shall mean
any ABL Credit Agreement Lender or any Affiliate of any ABL Credit Agreement
Lender (in each case that is not also a Term Credit Agreement Lender) that has
entered into a Hedging Agreement with an ABL Credit Party with the


 


3

















 


obligations of such ABL Credit Party thereunder being secured by one or
more ABL Collateral Documents by an ABL Credit Party.


 


“ABL Lenders”
shall have the meaning assigned to that term in the introduction to this
Agreement and shall include all ABL Bank Product Affiliates and ABL Hedging
Affiliates and all successors, assigns, transferees and replacements thereof,
as well as any Person designated as a “Lender” under any ABL Credit Agreement.


 


“ABL Obligations”
shall mean all obligations of every nature of each ABL Credit Party from time
to time owed to the ABL Agent, the ABL Credit Agreement Lenders or any of them,
any ABL Bank Products Affiliates or ABL Hedging Affiliates, under any ABL
Document, whether for principal, interest (including interest which, but for
the filing of a petition in bankruptcy with respect to such ABL Credit Party,
would have accrued on any ABL Obligation, whether or not a claim is allowed
against such ABL Credit Party for such interest in the related bankruptcy
proceeding), reimbursement of amounts drawn under letters of credit, payments
for early termination of Hedging Agreements, fees, expenses, indemnification or
otherwise, and all other amounts owing or due under the terms of the ABL
Documents, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time.


 


“ABL Priority
Collateral” shall mean all Collateral
consisting of the following:


 


(1)           all Accounts;


 


(2)           all Chattel Paper (including Tangible
Chattel Paper and Electronic Chattel Paper);


 


(3)           (x) all Deposit Accounts and Money
and all cash, checks, other negotiable instruments, funds and other evidences
of payments held therein and (y) all Securities, Security Entitlements, and
Securities Accounts, in each case, to the extent constituting cash or Cash
Equivalents or representing a claim to Cash Equivalents, other than the Asset
Sales Proceeds Account and all cash, checks and other property held therein or
credited thereto, but in any event and regardless of the foregoing clauses, but
excluding the Asset Sales Proceeds Account;


 


(4)           all Rental Equipment and other
Inventory;


 


(5)           to the extent involving or governing
any of the items referred to in the preceding clauses (1) through (4), all
Documents, General Intangibles (other than any Intellectual Property),
Instruments (including, without limitation, Promissory Notes), and Letter of
Credit Rights, provided that to the extent any of the foregoing also relates to
Term Priority Collateral, only that portion related to the items referred to in
the preceding clauses (1) through (4) shall be included in the ABL Priority
Collateral.  In addition, each Grantor
and Term Collateral Agent hereby consent to the non-exclusive royalty free use
by the ABL Agent of any Intellectual Property included in the Collateral for
the purposes of disposing of any ABL Priority Collateral;


 


(6)           to the extent evidencing or governing
any of the items referred to in the preceding clauses (1) through (5), all Supporting
Obligations; provided that to the extent any of the foregoing also
relates to Term Priority Collateral only that portion related to the items
referred to in the preceding clauses (1) through (5) shall be included in the
ABL Priority Collateral;


 


4

















 


(7)           all books and Records relating to the
foregoing (including without limitation all books, databases, customer lists,
engineer drawings, and Records, whether tangible or electronic, which contain
any information relating to any of the foregoing);


 


(8)           all collateral security and
guarantees with respect to any of the foregoing and all cash, Money,
instruments, securities, financial assets and deposit accounts directly
received as proceeds of any ABL Priority Collateral (such proceeds, “ABL
Priority Proceeds”); provided, however, that no proceeds of
ABL Priority Proceeds will constitute ABL Priority Collateral unless such
proceeds of ABL Priority Proceeds would otherwise constitute ABL Priority
Collateral.


 


For the avoidance of doubt, under no circumstances shall Excluded
Assets be ABL Priority Collateral.


 


“ABL Recovery” shall have the
meaning set forth in Section 5.3.


 


“ABL
Secured Parties” shall mean the ABL Agent and the ABL Lenders.


 


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


 


“Agreement”
shall mean this Intercreditor Agreement.


 


“Asset Sales Proceeds Account” shall
mean one or more Deposit Accounts or Securities Accounts holding only the
proceeds of any sale or disposition of any Term Priority Collateral and the
proceeds or investment thereof.


 


“Bank Products
Agreement” shall mean any agreement pursuant to which a bank or
other financial institution agrees to provide treasury or cash management
services (including, without limitation, controlled disbursement, automated
clearinghouse transactions, return items, netting, overdrafts and interstate
depository network services).


 


“Bankruptcy
Code” shall mean title 11 of the United States Code.


 


“Borrower” shall mean any of
the ABL Borrowers and the Term Borrower.


 


“Brazil Debt Agent” shall mean Banco
BNP Paribas Brasil S.A., as administrative agent for the lenders under the
Agreement for Offering a Revolving Credit Facility, dated as of December 21,
2005, among Car Rental Systems do Brasil Locacao de Veiculos Ltda., the lenders
from time to time party thereto, and the Brazil Debt Agent, together with its
successors and assigns.


 


“Brazil Debt Obligations” shall
mean all obligations under the Brazil Guaranty.


 


5

















 


“Brazil Debt Secured Parties” shall
mean the holders of the Brazil Debt Obligations from time to time, including
any agent or representative thereof.


 


“Brazil Guaranty” means the Secured
Guaranty, dated as of December 21, 2005 (as such agreement may be amended,
supplemented, restated or modified from time to time) by Hertz in favor of the
Brazil Debt Agent; provided that the aggregate principal amount of
indebtedness secured under such Secured Guaranty shall not exceed the
limitation specified in subsection 8.3(t)(iii) of the Original Term Credit
Agreement as in effect on the date hereof.


 


“Capital Stock”
shall mean 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.


 


“Cash Collateral”
shall mean any Collateral consisting of Money or Cash Equivalents, any Security
Entitlement and any Financial Assets.


 


“Cash
Equivalents” shall mean (a) securities issued or
fully guaranteed or insured by the United States government or Canadian
government or any agency or instrumentality thereof, (b) time deposits,
certificates of deposit or bankers’ acceptances of (i) any ABL Lender or Term
Lender or any affiliate thereof or (ii) any commercial bank having capital and
surplus in excess of $500,000,000 and the commercial paper of the holding
company of which is rated at least A-2 or the equivalent thereof by Standard
& Poor’s Ratings Group (a division of The McGraw Hill Companies Inc.) or
any successor rating agency (“S&P”) or at
least P-2 or the equivalent thereof by Moody’s Investors Service, Inc. or any
successor rating agency (“Moody’s”) (or
if at such time neither is issuing ratings, then a comparable rating of such
other nationally recognized rating agency as shall be approved by the ABL Agent
or the Term Agent, in each case, in its reasonable judgment), (c) commercial
paper rated at least A-2 or the equivalent thereof by S&P or at least P-2
or the equivalent thereof by Moody’s (or if at such time neither is issuing
ratings, then a comparable rating of such other nationally recognized rating
agency as shall be approved by the ABL Agent or Term Agent, in each case, in
its reasonable judgment), (d) investments in money market funds complying
with the risk limiting conditions of Rule 2a-7 or any successor rule of the
Securities and Exchange Commission under the Investment Company Act of 1940,
and (e) investments similar to any of the foregoing denominated in foreign
currencies approved by the board of directors of Hertz, in each case provided
in clauses (a), (b), (c) and (e) above only, maturing within twelve months
after the date of acquisition.


 


“CCMGC” shall mean CCMG
Corporation, a Delaware corporation (together with its successors and assigns).


 


“Collateral”
shall mean all Property now owned or hereafter acquired by any Borrower or any
Guarantor in or upon which a Lien is granted or purported to be granted to the
ABL Agent or the Term Agent under any of the ABL Collateral Documents or the
Term Collateral Documents, together with all rents, issues, profits, products,
and Proceeds thereof.


 


6

















 


“Common
Mortgaged Collateral” shall mean any Collateral consisting of
real estate in which a security interest is created pursuant to a mortgage in
favor of the Term Agent for the benefit of the Term Secured Parties and the ABL
Secured Parties.


 


“Control
Collateral” shall mean any Collateral consisting of any Certificated
Security, Investment Property, Deposit Account, Instruments and any other
Collateral as to which a Lien may be perfected through possession or control by
the secured party, or any agent therefor.


 


“Copyright
Licenses”
shall mean with respect to any Credit Party, all written license agreements of
such Credit Party providing for the grant by or to such Credit Party of any
right to use any Copyright of such Credit Party, other than agreements with any
Person who is an Affiliate or a Subsidiary of such Credit Party, subject, in
each case, to the terms of such license agreements, and the right to prepare
for sale, sell and advertise for sale, all Inventory now or hereafter covered
by such licenses.


 


“Copyrights”
shall mean with respect to any Credit Party, all of such Credit Party’s right,
title and interest in and to all United States and foreign copyrights, whether
or not the underlying works of authorship have been published or registered,
United States and foreign copyright registrations and copyright applications,
and (i) all renewals thereof, (ii) all income, royalties, damages and payments
now and hereafter due and/or payable with respect thereto, including, without
limitation, payments under all licenses entered into in connection therewith,
and damages and payments for past or future infringements thereof and (iii) the
right to sue or otherwise recover for past, present and future infringements
and misappropriations thereof.


 


“Credit
Documents” shall mean the ABL Documents and the Term Documents.


 


“Credit
Parties” shall mean the ABL Credit Parties and the Term Credit
Parties.


 


“Debtor Relief
Laws” shall mean the Bankruptcy Code, the Bankruptcy and
Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) and
all other liquidation, conservatorship, bankruptcy, assignment for benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws of the United States or Canada or other
applicable jurisdictions from time to time in effect affecting the rights of
creditors generally.


 


“Differential Swaps” shall mean each
ISDA Master Agreement and Schedules thereto and Confirmations thereunder
entered into as of December 16, 2005 by Hertz with the Differential Swap
Counterparties.  For the avoidance of
doubt, the Differential Swaps shall constitute Hedging Agreements hereunder.


 


“Differential Swap Counterparties”
shall mean each of Merrill Lynch Capital Services, Inc. and Calyon New York
Branch, and each of their respective successors and assigns, in their
respective capacity as counterparties under the Differential Swaps


 


“DIP
Financing” shall have the meaning set forth in Section 6.1.


 


“Discharge of
ABL Obligations” shall mean (a) the payment in full of the ABL
Obligations that are outstanding and unpaid at the time all indebtedness
thereunder is paid in full


 


7

















 


including, with respect to amounts available to be drawn under
outstanding letters of credit issued thereunder (or indemnities or other
undertakings issued pursuant thereto in respect of outstanding letters of
credit) delivery or provision of Money or backstop letters of credit in respect
thereof in compliance with the terms of any ABL Credit Agreement (which shall
not exceed an amount equal to 101.5% of the aggregate undrawn amount of such
letters of credit) and (b) the termination of all commitments to extend credit
under the ABL Documents.


 


“Discharge of
Term Obligations” shall mean (a) the payment in full of the Term
Obligations that are outstanding and unpaid at the time all indebtedness
thereunder is paid in full including, with respect to amounts available to be
drawn under outstanding letters of credit issued thereunder (or indemnities or
other undertakings issued pursuant thereto in respect of outstanding letters of
credit) delivery or provision of Money or backstop letters of credit in respect
thereof in compliance with the terms of any Term Credit Agreement (which shall
not exceed an amount equal to 101.5% of the aggregate undrawn amount of such
letters of credit) and (b) the termination of all commitments to extend credit
under the Term Documents.


 


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


 


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


 


“Euro MTN Secured Parties” shall
have the meaning provided in the Original ABL Credit Agreement and the Original
Term Credit Agreement as in effect on the date hereof.


 


“Euro MTN Obligations” shall mean
all obligations, if any, of each Credit Party under the Euro MTNs and the Euro
MTN Fiscal Agency Agreement, and any obligations of such Credit Party under the
ABL Collateral Documents or Term Collateral Documents for the benefit of the
Euro MTN Holders, whether for principal, interest (including interest, which
but for the filing of a petition in bankruptcy with respect to such Credit
Party, would have accrued on any Euro MTN Obligation, whether or not a claim is
allowed against such Credit Party for such interest in the related bankruptcy proceeding),
fees, expenses, indemnification or otherwise.


 


“Excluded Assets” shall have the
meaning set forth in (i) the applicable ABL Collateral Documents, in the case
of the ABL Priority Collateral, and (ii) in the applicable Term Collateral
Documents, in the case of the Term Priority Collateral.


 


“Event
of Default” shall mean an Event of Default under any ABL Credit
Agreement or any Term Credit Agreement.


 


“Exercise
Any Secured Creditor Remedies” or “Exercise of
Secured Creditor Remedies” shall mean:


 


(a)           the taking of any action to enforce
or realize upon any Lien, including the institution of any foreclosure
proceedings or the noticing of any public or private sale pursuant to Article 9
of the Uniform Commercial Code;


 


8

















 


(b)           the exercise of any right or remedy
provided to a secured creditor on account of a Lien under any of the Credit
Documents, under applicable law, in an Insolvency Proceeding or otherwise,
including the election to retain any of the Collateral in satisfaction of a
Lien;


 


(c)           the taking of any action or the
exercise of any right or remedy in respect of the collection on, set off
against, marshaling of, injunction respecting or foreclosure on the Collateral
or the Proceeds thereof;


 


(d)           the appointment of a receiver,
receiver and manager or interim receiver of all or part of the Collateral;


 


(e)           the sale, lease, license, or other
disposition of all or any portion of the Collateral by private or public sale
or any other means permissible under applicable law;


 


(f)            the exercise of any other right of a
secured creditor under Part 6 of Article 9 of the Uniform Commercial Code;


 


(g)           the exercise of any voting rights
relating to any Capital Stock included in the Collateral; and


 


(h)           the delivery of any notice, claim or
demand relating to the Collateral to any Person (including any securities
intermediary, depository bank or landlord) in possession or control of any
Collateral.


 


For the avoidance of doubt, filing a proof of claim in bankruptcy court
or seeking adequate protection shall not be deemed to be an Exercise of Secured
Creditor Remedies.


 


                “Excluded Assets”
shall have the meaning set forth in (i) the applicable ABL Collateral
Documents, in the case of the ABL Priority Collateral, and (ii) in the
applicable Term Collateral Documents, in the case of the Term Priority
Collateral.


 


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


 


“Foreign Subsidiary” shall have the
meaning provided in the Original ABL Credit Agreement and the Original Term
Credit Agreement as in effect on the date hereof.


 


“General
Intangibles” shall mean all “general intangibles” as such term
is defined in the Uniform Commercial Code including, without limitation, with
respect to any Credit Party, all contracts, agreements, instruments and
indentures in any form, and portions thereof, to which such Credit Party is a
party or under which such Credit Party has any right, title or interest or to
which such Credit Party or any property of such Credit Party is subject, as the
same may from time to time be amended, supplemented or otherwise modified.


 


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


 


9

















 


“Guarantor”
shall mean any of the ABL Guarantors or Term Guarantors.


 


“Hedging
Agreement” shall mean any interest rate, foreign currency,
commodity or equity swap, collar, cap, floor or forward rate agreement, or other
agreement or arrangement designed to protect against fluctuations in interest
rates or currency, commodity or equity values (including, without limitation,
any option with respect to any of the foregoing and any combination of the
foregoing agreements or arrangements), and any confirmation executed in
connection with any such agreement or arrangement.


 


“Insolvency
Proceeding” shall mean (a) any case, action or proceeding before
any court or other governmental authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors or other similar arrangement
in respect of its creditors generally or any substantial portion of its
creditors; in each case covered by clauses (a) and (b) undertaken under United
States Federal, State or foreign law, including the Bankruptcy Code, the
Bankruptcy and Insolvency Act (Canada) and the Companies’ Creditors Arrangement
Act (Canada).


 


“Intellectual
Property” shall mean, with respect to any Grantor, the
collective reference to such Grantor’s Copyrights, Copyright Licenses, Patents,
Patent Licenses, Trade Secrets, Trademarks and Trademark Licenses.


 


“Inventory” shall have the
meaning assigned in the Uniform Commercial Code as of the date hereof.


 


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


 


“Lien Priority”
shall mean with respect to any Lien of the ABL Agent, the ABL Lenders, the Term
Agent or the Term Lenders in the Collateral, the order of priority of such Lien
as specified in Section 2.1.


 


“New York
Mortgaged Property” shall mean any real property located in the
State of New York in which a security interest has been pledged to the Term
Agent for the benefit of the Term Secured Parties under the Term Documents.


 


“Original ABL Credit Agreement”
shall have the meaning assigned to that term in the introduction to this
Agreement.


 


“Original Term Credit Agreement”
shall have the meaning assigned to that term in the introduction to this
Agreement.


 


“Party”
shall mean the ABL Agent or the Term Agent, and “Parties” shall mean both
the ABL Agent and the Term Agent.


 


10

















 


“Patent License”
shall mean with respect to any Credit Party, all written license agreements of
such Credit Party with any other Person that is not an Affiliate or a
Subsidiary of such Credit Party, in connection with any of the Patents of such
Credit Party or such other Person’s patents, whether such Credit Party is a
licensor or a licensee under any such agreement, subject, in each case, to the
terms of such license agreements, and the right to prepare for sale, sell and
advertise for sale, all Inventory now or hereafter covered by such licenses.


 


“Patents”
shall mean with respect to any Credit Party, all of such Credit Party’s right,
title and interest in and to all United States and foreign patents, patent
applications and patentable inventions and all reissues and extensions thereof,
including, without limitation, (i) all inventions and improvements described
and claimed therein, (ii) the right to sue or otherwise recover for any and all
past, present and future infringements and misappropriations thereof, (iii) all
income, royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments under all
licenses entered into in connection therewith, and damages and payments for
past, present or future infringements thereof), and (iv) all other rights
corresponding thereto in the United States and all reissues, divisions,
continuations, continuations-in-part, substitutes, renewals, and extensions
thereof, all improvements thereon, and all other rights of any kind whatsoever
of such Credit Party accruing thereunder or pertaining thereto.


 


“Payment
Collateral” shall mean all Accounts, Instruments, Chattel Paper,
Letter-Of-Credit Rights, Deposit Accounts (other than the Asset Sales Proceeds
Account), Securities Accounts, and Payment Intangibles, together with all
Supporting Obligations, in each case composing a portion of the Collateral.


 


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


 


“Priority Collateral”
shall mean the ABL Priority Collateral or the Term Priority Collateral.


 


“Proceeds”
shall mean (a) all “proceeds,” as defined in Article 9 of the Uniform
Commercial Code, with respect to the Collateral, and (b) whatever is recoverable
or recovered when any Collateral is sold, exchanged, collected, or disposed of,
whether voluntarily or involuntarily.


 


“Property”
shall mean any interest in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible.


 


“Real Property”
shall mean any right, title or interest in and to real property, including any
fee interest, leasehold interest, easement, or license and any other right to
use or occupy real property.


 


“Receivable”
shall mean any right to payment for goods sold, leased, licensed, assigned or
otherwise disposed of, or for services rendered, whether or not such right is
evidenced by an Instrument or Chattel Paper and whether or not it has been
earned by performance (including, without limitation, any Account).


 


11

















 


“Rental Equipment” shall have
the meaning provided in the Original ABL Credit Agreement as in effect on the
date hereof.


 


“Secured
Parties” shall mean the ABL Secured Parties and
the Term Secured Parties.


 


“Securitizations” shall have the
meaning provided in the Original ABL Credit Agreement and the Original Term
Credit Agreement as in effect on the date hereof.


 


“Special Purpose Subsidiary” shall
have the meaning provided in the Original ABL Credit Agreement and the Original
Term Credit Agreement as in effect on the date hereof.


 


“Subsidiary”
of any Person shall mean a corporation, limited liability company, partnership
or other entity of which a majority of the outstanding shares of stock of each
class having ordinary voting power or other equity interests is owned by such
Person, by one or more Subsidiaries of such Person, or by such Person and one
or more of its Subsidiaries.


 


“Term Agent”
shall have the meaning assigned to that term in the introduction to this
Agreement and shall include any successor thereto as well as any Person
designated as the “Agent” or “Administrative Agent” under any Term Credit
Agreement.


 


“Term Bank Products Affiliate” shall
mean any Term Credit Agreement Lender or any Affiliate of any Term Credit
Agreement Lender that has entered into a Bank Products Agreement with a Term
Credit Party with the obligations of such Term Credit Party thereunder being
secured by one or more Term Collateral Documents.


 


“Term
Borrower” shall have the meaning assigned to that term in the
introduction to this Agreement.


 


“Term Collateral
Documents” shall mean all “Security Documents” as defined in the
Original Term Credit Agreement, and all other security agreements, mortgages,
deeds of trust and other collateral documents executed and delivered in
connection with any Term Credit Agreement, in each case as the same may be
amended, modified or supplemented from time to time.


 


“Term Credit
Agreement” shall mean the Original Term Credit Agreement and any
other agreement extending the maturity of, consolidating, restructuring,
refunding, replacing or refinancing all or any portion of the Term Obligations,
whether by the same or any other agent, lender or group of lenders and whether
or not increasing the amount of any Indebtedness that may be incurred
thereunder.


 


“Term Credit Agreement Lenders” shall have the meaning assigned
to that term in the introduction to this Agreement.


 


“Term
Credit Parties” shall have the meaning assigned to that term in
the recitals to this Agreement.


 


“Term Documents”
shall mean the Term Credit Agreement, the Term Guaranties, the Term Collateral
Documents, any Bank Product Agreements between any Term Credit Party


 


12

















 


and any Term Lender, any Hedging Agreements between any Term Credit
Party and any Term Lender, the Brazil Guaranty, those other ancillary
agreements as to which the Term Agent or any Term Lender is a party or a
beneficiary and all other agreements, instruments, documents and certificates,
now or hereafter executed by or on behalf of any Term Credit Party or any of
its respective Subsidiaries or Affiliates, and delivered to the Term Agent, in
connection with any of the foregoing or any Term Credit Agreement, in each case
as the same may be amended, modified or supplemented from time to time.


 


“Term
Guaranties” shall have the meaning assigned to that term in the
recitals to this Agreement.


 


“Term Guarantors”
shall mean each of Hertz’s U.S. subsidiaries (other than (i) any Securitization
Subsidiary; (ii) any Foreign Subsidiary, (iii) any Subsidiary of a Foreign
Subsidiary, (iv) Navigations Solutions LLC and (v) Hertz Vehicle Sales
Corporation) and any other Person who becomes a guarantor under any of the Term
Guaranties.


 


“Term Hedging Affiliate” shall mean
(i) any Term Credit Agreement Lender or any Affiliate of any Term Credit
Agreement Lender that has entered into a Hedging Agreement with a Term Credit
Party and (ii) the Differential Swap Counterparties, with the obligations of
such Term Credit Party thereunder being secured by one or more Term Collateral
Documents.


 


“Term Lenders”
shall have the meaning assigned to that term in the introduction to this
Agreement and shall include all Term Bank Product Affiliates and Term Hedging
Affiliates and all successors, assigns, transferees and replacements thereof,
as well as any Person designated as a “Lender” under any Term Credit Agreement.


 


“Term
Obligations” shall mean all obligations of every nature of each
Term Credit Party from time to time owed to the Term Agent, the Term Credit
Agreement Lenders or any of them, any Term Bank Products Affiliates, any Term
Hedging Affiliates or any Brazil Debt Secured Party, under any Term Document,
whether for principal, interest (including interest which, but for the filing
of a petition in bankruptcy with respect to such Term Credit Party, would have
accrued on any Term Obligation, whether or not a claim is allowed against such
Term Credit Party for such interest in the related bankruptcy proceeding),
reimbursement of amounts drawn under letters of credit, payments for early
termination of Hedging Agreements, fees, expenses, indemnification or
otherwise, and all other amounts owing or due under the terms of the Term
Documents, as amended, restated, modified, renewed, refunded, replaced or
refinanced in whole or in part from time to time.


 


“Term Priority
Collateral” shall mean all Collateral, other than the ABL
Priority Collateral and all collateral security and guarantees with respect to
any Term Priority Collateral and all cash, Money, instruments, securities,
financial assets and deposit accounts directly received as proceeds of any Term
Priority Collateral; provided, however, no proceeds of proceeds will constitute
Term Priority Collateral unless such proceeds of proceeds would otherwise
constitute Term Priority Collateral or are credited to the Asset Sales Proceeds
Account.  For the avoidance of doubt, (x)
ABL Canadian Collateral shall not, in any way, constitute Collateral with
respect to the Term Obligations, and the Term Secured Parties shall have no


 


13

















 


security interest therein and (y) under no circumstance shall Excluded
Assets be Term Priority Collateral.


 


“Term Recovery” shall have the
meaning set forth in Section 5.3.


 


“Term
Secured Parties” shall mean the Term Agent and the Term Lenders.


 


“Trade Secret
Licenses” shall mean any and all agreements, whether written or
oral, providing for the grant by or to any Credit Party of any right in or to
Trade Secrets, to the extent that a grant of a security interest in such Trade
Secret License is not prohibited by applicable law or the applicable Trade
Secret License.


 


“Trade Secrets”
shall mean with respect to any Credit Party, all of such Credit Party’s right,
title and interest in and to all United States and foreign trade secrets,
including, without limitation, know how, processes, formulae, compositions,
designs, and confidential business and technical information, and all rights of
any kind whatsoever accruing thereunder or pertaining thereto, including,
without limitation, (i) all income, royalties, damages and payments now and
hereafter due and/or payable with respect thereto, including, without
limitation, payments under all licenses, non disclosure agreements and
memoranda of understanding entered into in connection therewith, and damages
and payments for past or future misappropriations thereof, and (ii) the right
to sue or otherwise recover for past, present or future misappropriations thereof.


 


“Trademark
License” shall mean with respect to any Credit Party, all
written license agreements of such Credit Party with any other Person who is
not an Affiliate or a Subsidiary of Hertz or such Credit Party in connection
with any of the Trademarks of such Credit Party or such other Person’s names or
trademarks, whether such Credit Party is a licensor or a licensee under any
such agreement, subject, in each case, to the terms of such license agreements,
and the right to prepare for sale, sell and advertise for sale, all Inventory
now or hereafter covered by such licenses.


 


“Trademarks”
shall mean with respect to any Credit Party, all of such Credit Party’s right,
title and interest in and to all United States and foreign trademarks, service
marks, trade names, trade dress or other indicia of trade origin or business
identifiers, trademark and service mark registrations, and applications for
trademark or service mark registrations (except for “intent to use”
applications for trademark or service mark registrations filed pursuant to
Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, unless and until an Amendment
to Allege Use or a Statement of Use under Sections 1(c) and 1(d) of said Act
has been filed, it being understood and agreed that the carve out in this
parenthetical shall be applicable only if and for so long as a grant of a
security interest in such intent to use application would invalidate or
otherwise jeopardize grantor’s rights therein), and any renewals thereof,
including, without limitation, (i) the right to sue or otherwise recover for
any and all past, present and future infringements or dilutions thereof, (ii)
all income, royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments under all
licenses entered into in connection therewith, and damages and payments for
past or future infringements thereof), and (iii) all other rights corresponding
thereto and all other rights of any kind whatsoever of such Credit Party accruing
thereunder or pertaining thereto in the United States, together in each case
with the goodwill of the business connected with the use of, and symbolized by,
each such


 


14

















 


trademark, service mark, trade name, trade dress or other indicia of
trade origin or business identifiers.


 


“Uniform
Commercial Code” shall mean the Uniform Commercial Code as the
same may, from time to time, be in effect in the State of New York; provided
that to the extent that the Uniform Commercial Code is used to define any term
in any security document and such term is defined differently in differing
Articles of the Uniform Commercial Code, the definition of such term contained
in Article 9 shall govern; provided, further, that in the event that, by reason
of mandatory provisions of law, any or all of the attachment, perfection,
publication or priority of, or remedies with respect to, Liens of any Party is
governed by the Uniform Commercial Code or foreign personal property security
laws as enacted and in effect in a jurisdiction other than the State of New
York, the term “Uniform Commercial Code” will mean the Uniform Commercial Code
or such foreign personal property security laws as enacted and in effect in
such other jurisdiction solely for purposes of the provisions thereof relating
to such attachment, perfection, priority or remedies and for purposes of
definitions related to such provisions.


 


Section 1.3            Rules of
Construction. 
Unless the context of this Agreement clearly requires otherwise,
references to the plural include the singular, references to the singular
include the plural, the term “including” is not limiting, and the term “or”
has, except where otherwise indicated, the inclusive meaning represented by the
phrase “and/or.”  The words “hereof,” “herein,”
“hereby,” “hereunder,” and similar terms in this Agreement refer to this
Agreement as a whole and not to any particular provision of this
Agreement.  Article, section, subsection,
clause, schedule, and exhibit references herein are to this Agreement unless
otherwise specified.  Any reference in
this Agreement to any agreement, instrument, or document shall include all
alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements thereto and thereof, as
applicable (subject to any restrictions on such alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions,
joinders, and supplements set forth herein). 
Any reference herein to any Person shall be construed to include such
Person’s successors and assigns.  Any
reference herein to the repayment in full of an obligation shall mean the
payment in full in cash of such obligation, or in such other manner as may be
approved in writing by the requisite holders or representatives in respect of
such obligation, or in such other manner as may be approved by the requisite
holders or representatives in respect of such obligation.


 


ARTICLE 2

LIEN PRIORITY


 


Section 2.1            Agreement
to Subordinate.


 


(a)           Notwithstanding (i) the date, time,
method, manner, or order of grant, attachment, or perfection (including any
defect or deficiency or alleged defect or deficiency in any of the foregoing)
of any Liens granted to the ABL Agent or the ABL Lenders in respect of all or
any portion of the Collateral or of any Liens granted to the Term Agent or the
Term Lenders in respect of all or any portion of the Collateral and regardless
of how any such Lien was acquired (whether by grant, statute, operation of law,
subrogation or otherwise), (ii) the order or time of filing or recordation of
any document or instrument for perfecting the Liens in favor of the ABL Agent
or the Term Agent (or ABL Lenders or Term Lenders) in any Collateral,


 


15

















 


(iii) any provision
of the Uniform Commercial Code, the Bankruptcy Code or any other applicable
law, or of the ABL Documents or the Term Documents, (iv) whether the ABL Agent
or the Term Agent, in each case, either directly or through agents, holds
possession of, or has control over, all or any part of the Collateral, (v) the
fact that any such Liens in favor of the ABL Agent or the ABL Lenders or the
Term Agent or the Term Lenders securing any of the ABL Obligations or Term
Obligations, respectively, are (x) subordinated to any Lien securing any
obligation of any Credit Party other than the Term Obligations or the ABL
Obligations, respectively, or (y) otherwise subordinated, voided, avoided,
invalidated or lapsed or (vi) any other circumstance of any kind or nature
whatsoever, the ABL Agent, on behalf of itself and the ABL Lenders, and the
Term Agent, on behalf of itself and the Term Lenders, hereby agree that:


 


(1)           any Lien in respect of all or any
portion of the ABL Priority Collateral now or hereafter held by or on behalf of
the Term Agent or any Term Lender that secures all or any portion of the Term
Obligations shall in all respects be junior and subordinate to all Liens
granted to the ABL Agent and the ABL Lenders in the ABL Priority Collateral to
secure all or any portion of the ABL Obligations;


 


(2)           any Lien in respect of all or any
portion of the ABL Priority Collateral now or hereafter held by or on behalf of
the ABL Agent or any ABL Lender that secures all or any portion of the ABL
Obligations shall in all respects be senior and prior to all Liens granted to
the Term Agent or any Term Lender in the ABL Priority Collateral to secure all
or any portion of the Term Obligations;


 


(3)           any Lien in respect of all or any portion
of the Term Priority Collateral now or hereafter held by or on behalf of the
ABL Agent or any ABL Lender that secures all or any portion of the ABL
Obligations shall in all respects be junior and subordinate to all Liens
granted to the Term Agent and the Term Lenders in the Term Priority Collateral
to secure all or any portion of the Term Obligations; and


 


(4)           any Lien in respect of all or any
portion of the Term Priority Collateral now or hereafter held by or on behalf
of the Term Agent or any Term Lender that secures all or any portion of the
Term Obligations shall in all respects be senior and prior to all Liens granted
to the ABL Agent or any ABL Lender in the Term Priority Collateral to secure
all or any portion of the ABL Obligations.


 


(b)           Notwithstanding any failure by any
ABL Secured Party or Term Secured Party to perfect its security interests in
the Collateral or any avoidance, invalidation, priming or subordination by any
third party or court of competent jurisdiction of the security interests in the
Collateral granted to the ABL Secured Parties or the Term Secured Parties, the
priority and rights as between the ABL Secured Parties and the Term Secured
Parties with respect to the Collateral shall be as set forth herein.


 


(c)           The Term Agent, for and on behalf of
itself and the Term Lenders, acknowledges and agrees that, concurrently
herewith, the ABL Agent, for the benefit of itself


 


16

















 


and the ABL Lenders,
has been granted Liens upon all of the Collateral in which the Term Agent has
been granted Liens and the Term Agent hereby consents thereto.  The ABL Agent, for and on behalf of itself
and the ABL Lenders, acknowledges and agrees that, concurrently herewith, the
Term Agent, for the benefit of itself and the Term Lenders, has been granted
Liens upon all of the Collateral in which the ABL Agent has been granted Liens
(other than the ABL Canadian Collateral) and the ABL Agent hereby consents
thereto.  The subordination of Liens by
the Term Agent and the ABL Agent in favor of one another as set forth herein
shall not be deemed to subordinate the Term Agent’s Liens or the ABL Agent’s
Liens to the Liens of any other Person, except to the Euro MTN Secured Parties
to the extent provided in the ABL Collateral Documents and the Term Collateral
Documents.


 


(d)           For the avoidance of doubt, and
notwithstanding anything to the contrary herein, any and all Liens held by or
for the benefit of the Euro MTN Secured Parties shall not be made subordinate
or junior to any other Lien on the Collateral by this Section 2.1 or any other
provision of this Agreement.


 


Section 2.2            Waiver
of Right to Contest Liens.


 


(a)           The Term Agent, for and on behalf of
itself and the Term Lenders, agrees that it and they shall not (and hereby
waives any right to) take any action to contest or challenge (or assist or
support any other Person in contesting or challenging), directly or indirectly,
whether or not in any proceeding (including in any Insolvency Proceeding), the
validity, priority, enforceability, or perfection of the Liens of the ABL Agent
and the ABL Lenders in respect of the Collateral (including the ABL Canadian
Collateral) or the provisions of this Agreement.  Except to the extent expressly set forth in
this Agreement, the Term Agent, for itself and on behalf of the Term Lenders,
agrees that none of the Term Agent or the Term Lenders will take any action
that would interfere with any Exercise of Secured Creditor Remedies undertaken
by the ABL Agent or any ABL Lender under the ABL Documents with respect to the
ABL Priority Collateral (including the ABL Canadian Collateral).  Except to the extent expressly set forth in
this Agreement, the Term Agent, for itself and on behalf of the Term Lenders,
hereby waives any and all rights it or the Term Lenders may have as a junior
lien creditor or otherwise to contest, protest, object to, or interfere with
the manner in which the ABL Agent or any ABL Lender seeks to enforce its Liens
in any ABL Priority Collateral (including the ABL Canadian Collateral).


 


(b)           The ABL Agent, for and on behalf of
itself and the ABL Lenders, agrees that it and they shall not (and hereby
waives any right to) take any action to contest or challenge (or assist or
support any other Person in contesting or challenging), directly or indirectly,
whether or not in any proceeding (including in any Insolvency Proceeding), the
validity, priority, enforceability, or perfection of the Liens of the Term
Agent or the Term Lenders in respect of the Collateral or the provisions of this
Agreement.  Except to the extent
expressly set forth in this Agreement, the ABL Agent, for itself and on behalf
of the ABL Lenders, agrees that none of the ABL Agent or the ABL Lenders will
take any action that would interfere with any Exercise of Secured Creditor
Remedies undertaken by the Term Agent or any Term Lender under the Term
Documents with respect to the Term Priority Collateral.  Except to the extent expressly set forth in
this Agreement, the ABL Agent, for itself and on behalf of the ABL Lenders,
hereby waives any and all rights it or the ABL Lenders may have as a junior
lien creditor or otherwise to contest,


 


17

















 


protest, object to,
or interfere with the manner in which the Term Agent or any Term Lender seeks
to enforce its Liens in any Term Priority Collateral.


 


Section 2.3            Remedies
Standstill.


 


(a)           The Term Agent, on behalf of itself
and the Term Lenders, agrees that, until the date upon which the Discharge of
ABL Obligations shall have occurred, neither the Term Agent nor any Term Lender
will Exercise Any Secured Creditor Remedies with respect to any of the ABL
Priority Collateral without the written consent of the ABL Agent, and will not
take, receive or accept any Proceeds of ABL Priority Collateral, it being
understood and agreed that the temporary deposit of Proceeds of ABL Priority
Collateral in a Deposit Account controlled by the Term Agent shall not
constitute a breach of this Agreement so long as such Proceeds are promptly
remitted to the ABL Agent.  From and
after the date upon which the Discharge of ABL Obligations shall have occurred
(or prior thereto upon obtaining the written consent of the ABL Agent), the
Term Agent or any Term Lender may Exercise Any Secured Creditor Remedies under
the Term Documents or applicable law as to any ABL Priority Collateral; provided,
however, that any Exercise of Secured Creditor Remedies with respect to
any Collateral by the Term Agent is at all times subject to the provisions of
this Agreement, including Section 4.1 hereof.


 


(b)           The ABL Agent, on behalf of itself
and the ABL Lenders, agrees that, until the date upon which the Discharge of
Term Obligations shall have occurred, neither the ABL Agent nor any ABL Lender
will Exercise Any Secured Creditor Remedies with respect to the Term Priority
Collateral without the written consent of the Term Agent, and will not take,
receive or accept any Proceeds of the Term Priority Collateral, it being
understood and agreed that the temporary deposit of Proceeds of Term Priority
Collateral in a Deposit Account controlled by the ABL Agent shall not
constitute a breach of this Agreement so long as such Proceeds are promptly
remitted to the Term Agent.  From and
after the date upon which the Discharge of Term Obligations shall have occurred
(or prior thereto upon obtaining the written consent of the Term Agent), the
ABL Agent or any ABL Lender may Exercise Any Secured Creditor Remedies under
the ABL Documents or applicable law as to any Term Priority Collateral; provided,
however, that any Exercise of Secured Creditor Remedies with respect to
any Collateral by the ABL Agent is at all times subject to the provisions of
this Agreement, including Section 4.1 hereof.


 


(c)          Notwithstanding any other provision of
this agreement, nothing contained herein shall be construed to prevent (i) the
ABL Agent or any ABL Lender from objecting to any proposed retention of
collateral by the Term Agent or any Term Lender in full or partial satisfaction
of any Term Obligations of (ii) the Term Agent or any Term Lender from
objecting to any proposed retention of collateral by the ABL Agent or any ABL
Lender in full or partial satisfaction of any ABL Obligations.


 


Section 2.4            Exercise
of Rights.


 


(a)           Notice of ABL Agent’s Lien.  Without limiting Section 2.3 hereof, the Term
Agent, for and on behalf of itself and the Term Lenders, hereby agrees that,
until the date upon which the Discharge of ABL Obligations shall have occurred,
in connection with any


 


18

















 


Exercise of Secured
Creditor Remedies by the Term Agent or any Term Lender with respect to any ABL
Priority Collateral, the Term Agent or such Term Lender, as applicable, shall
advise any purchaser or transferee of any ABL Priority Collateral in writing
that the sale (whether public, private, by foreclosure, or otherwise) or other
transfer is subject to the Liens of the ABL Agent and the ABL Lenders.  In addition, the Term Agent agrees, for and
on behalf of itself and the Term Lenders, that, until the date upon which the
Discharge of ABL Obligations shall have occurred, any notice of any proposed
foreclosure or sale of any ABL Priority Collateral and any other notice in
connection with the Exercise of Secured Creditor Remedies with respect thereto
shall state prominently and clearly that the sale is subject to the ABL Agent’s
and the ABL Lenders’ prior Liens and that such Liens shall continue as against
the ABL Priority Collateral to be sold.


 


(b)           Notice of Term Agent’s Lien.  Without limiting Section 2.3 hereof, the ABL
Agent, for and on behalf of itself and the ABL Lenders, hereby agrees that,
until the date upon which the Discharge of Term Obligations shall have
occurred, in connection with any Exercise of Secured Creditor Remedies by the
ABL Agent or any ABL Lender with respect to the Term Priority Collateral, the
ABL Agent or such ABL Lender, as applicable, shall advise any purchaser or
transferee of any Term Priority Collateral in writing that the sale (whether
public, private, by foreclosure, or otherwise) or other transfer is subject to
the Liens of the Term Agent and the Term Lenders.  In addition, the ABL Agent agrees, for and on
behalf of itself and the ABL Lenders, that, until the date upon which the Discharge
of Term Obligations shall have occurred, any notice of any proposed foreclosure
or sale of any Term Priority Collateral and any other notice in connection with
the Exercise of Secured Creditor Remedies with respect thereto shall state
prominently and clearly that the sale is subject to the Term Agent’s and the
Term Lenders’ prior Liens and that such Liens shall continue as against the
Term Priority Collateral to be sold.


 


(c)           No Other Restrictions.  Except as expressly set forth in this
Agreement, each of the Term Agent, each Term Lender, the ABL Agent, and each
ABL Lender shall have any and all rights and remedies it may have as a creditor
under applicable law, including the right to the Exercise of Secured Creditor
Remedies; provided, however, that the Exercise of Secured
Creditor Remedies with respect to the Collateral shall be subject to the Lien
Priority and to the provisions of this Agreement, including Section 4.1
hereof.  The ABL Agent may enforce the
provisions of the ABL Documents, the Term Agent may enforce the provisions of
the Term Documents and each may Exercise Any Secured Creditor Remedies, all in
such order and in such manner as each may determine in the exercise of its sole
discretion, consistent with the terms of this Agreement and mandatory
provisions of applicable law; provided, however, that each of the
ABL Agent and the Term Agent agrees to provide to the other copies of any
notices that it is required under applicable law to deliver to any Borrower or
any Guarantor; provided  further, however, that the ABL Agent’s
failure to provide any such copies to the Term Agent shall not impair any of
the ABL Agent’s rights hereunder or under any of the ABL Documents and the Term
Agent’s failure to provide any such copies to the ABL Agent shall not impair
any of the Term Agent’s rights hereunder or under any of the Term
Documents.  Each of the Term Agent, each
Term Lender, the ABL Agent and each ABL Lender agrees that it will not
institute any suit or other proceeding or assert in any suit, Insolvency
Proceeding or other proceeding any claim, in the case of the Term Agent and
each Term Lender, against either the ABL Agent or any other ABL Secured Party,
and in the case of the ABL Agent and each other ABL Secured Party,


 


19

















 


against either the
Term Agent or any other Term Secured Party, seeking damages from or other
relief by way of specific performance, instructions or otherwise, with respect
to, any action taken or omitted to be taken by such Person with respect to the
Collateral which is consistent with the terms of this Agreement, and none of
such Parties shall be liable for any such action taken or omitted to be taken.


 


(d)           Release of Liens.


 


(i)        In the event of (A) any private or
public sale of all or any portion of the ABL Priority Collateral in connection
with any Exercise of Secured Creditor Remedies by or with the consent of the
ABL Agent, (B) any sale, transfer or other disposition of all or any portion of
the ABL Priority Collateral, so long as such sale, transfer or other disposition
is then permitted by the ABL Documents or (C) the release of the ABL Secured
Parties’ Lien on all or any portion of the ABL Priority Collateral, so long as
such release shall have been approved by the requisite ABL Lenders, in the case
of clauses (B) and (C) only to the extent prior to the date upon which the
Discharge of ABL Obligations shall have occurred and not in connection with a
Discharge of ABL Obligations (and irrespective of whether an Event of Default
has occurred), the Term Agent agrees, on behalf of itself and the Term Lenders,
that so long as the net cash proceeds of any such sale, if any, described in
clause (A) above are applied as provided in Section 4.1 hereof, such sale will
be free and clear of the Liens on such ABL Priority Collateral securing the
Term Obligations, and the Term Agent’s and the Term Secured Parties’ Liens with
respect to the ABL Priority Collateral so sold, transferred, disposed or
released shall terminate and be automatically released without further
action.  In furtherance of, and subject
to, the foregoing, the Term Agent agrees that it will execute any and all Lien
releases or other documents reasonably requested by the ABL Agent in connection
therewith, so long as the net cash proceeds, if any, from such sale or other
disposition of such ABL Priority Collateral described in clause (A) above are
applied in accordance with the terms of this Agreement.  The Term Agent hereby appoints the ABL Agent
and any officer or duly authorized person of the ABL Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power of attorney in the place and stead of the Term Agent and in the name of
the Term Agent or in the ABL Agent’s own name, from time to time, in the ABL
Agent’s sole discretion, for the purposes of carrying out the terms of this
paragraph, to take any and all appropriate action and to execute and deliver
any and all documents and instruments as may be necessary or desirable to
accomplish the purposes of this paragraph, including, without limitation, any
financing statements, endorsements, assignments, releases or other documents or
instruments of transfer (which appointment, being coupled with an interest, is
irrevocable).


 


(ii)       In the event of (A) any private or public
sale of all or any portion of the Term Priority Collateral in connection with
any Exercise of Secured Creditor Remedies by or with the consent of the Term
Agent, (B) any sale, transfer or other disposition of all or any portion of the
Term Priority Collateral, so long as such sale, transfer or other disposition
is then permitted by the Term Documents or (C) the release of the Term Secured
Parties’ Lien on all or any portion of the Term Priority Collateral, so long as
such release shall have been approved by the requisite Term Lenders, in the
case


 


20

















 


of clauses (B) and
(C) only to the extent prior to the date upon which the Discharge of Term
Obligations shall have occurred and not in connection with a Discharge of ABL
Obligations (and irrespective of whether an Event of Default has occurred), the
ABL Agent agrees, on behalf of itself and the ABL Lenders, that so long as the
net cash proceeds of any such sale, if any, described in clause (A) above are
applied as provided in Section 4.1 hereof, such sale will be free and clear of
the Liens on such Term Priority Collateral securing the ABL Obligations and the
ABL Agent’s and the ABL Secured Parties’ Liens with respect to the ABL Priority
Collateral so sold, transferred, disposed or released shall terminate and be
automatically released without further action. 
In furtherance of, and subject to, the foregoing, the ABL Agent agrees
that it will execute any and all Lien releases or other documents reasonably
requested by the Term Agent in connection therewith, so long as the net cash
proceeds, if any, from such sale or other disposition described in clause (A)
above of such Term Priority Collateral are applied in accordance with the terms
of this Agreement.  The ABL Agent hereby
appoints the Term Agent and any officer or duly authorized person of the Term
Agent, with full power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power of attorney in the place and stead of the ABL Agent
and in the name of the ABL Agent or in the Term Agent’s own name, from time to
time, in the Term Agent’s sole discretion, for the purposes of carrying out the
terms of this paragraph, to take any and all appropriate action and to execute
and deliver any and all documents and instruments as may be necessary or
desirable to accomplish the purposes of this paragraph, including, without
limitation, any financing statements, endorsements, assignments, releases or
other documents or instruments of transfer (which appointment, being coupled
with an interest, is irrevocable).


 


Section 2.5            No New
Liens.


 


(a)  Until the date upon which the Discharge of
ABL Obligations shall have occurred, the parties hereto agree that no Term
Secured Party shall acquire or hold any Lien on any assets (other than any New
York Mortgaged Property) of any Credit Party securing any Term Obligation which
assets are not also subject to the Lien of the ABL Agent under the ABL
Documents, subject to the Lien Priority set forth herein.  If any Term Secured Party shall (nonetheless
and in breach hereof) acquire or hold any Lien on any assets (other than any
New York Mortgaged Property) of any Credit Party securing any Term Obligation
which assets are not also subject to the Lien of the ABL Agent under the ABL Documents,
subject to the Lien Priority set forth herein, then the Term Agent (or the
relevant Term Secured Party) shall, without the need for any further consent of
any other Term Secured Party and notwithstanding anything to the contrary in
any other Term Document, be deemed to also hold and have held such lien for the
benefit of the ABL Agent as security for the ABL Obligations (subject to the
Lien Priority and other terms hereof) and shall promptly notify the ABL Agent
in writing of the existence of such Lien.


 


(b)           Until the date upon which the
Discharge of Term Obligations shall have occurred, the parties hereto agree
that no ABL Secured Party shall acquire or hold any Lien on any assets of any
Credit Party (other than the ABL Canadian Collateral) securing any ABL
Obligation which assets are not also subject to the Lien of the Term Agent
under the Term Documents, subject to the Lien Priority set forth herein.  If any ABL Secured Party shall (nonetheless
and in breach hereof) acquire or hold any Lien on any assets of any Credit
Party securing any ABL Obligation (other than the ABL Canadian Collateral)
which assets are not also


 


21

















 


subject to the Lien
of the Term Agent under the Term Documents, subject to the Lien Priority set
forth herein, then the ABL Agent (or the relevant ABL Secured Party) shall,
without the need for any further consent of any other ABL Secured Party and
notwithstanding anything to the contrary in any other ABL Document be deemed to
also hold and have held such lien for the benefit of the Term Agent as security
for the Term Obligations (subject to the Lien Priority and other terms hereof)
and shall promptly notify the Term Agent in writing of the existence of such
Lien.


 


Section 2.6            Waiver of
Marshalling. 
Until the Discharge of the ABL Obligations, the Term Agent, on behalf of
itself and the Term Secured Parties, agrees not to assert and hereby waives, to
the fullest extent permitted by law, any right to demand, request, plead or
otherwise assert or otherwise claim the benefit of, any marshalling, appraisal,
valuation or other similar right that may otherwise be available under
applicable law with respect to the Collateral or any other similar rights a
junior secured creditor may have under applicable law.


 


ARTICLE 3

ACTIONS OF THE PARTIES


 


Section 3.1            Certain
Actions Permitted. 
The Term Agent and the ABL Agent may make such demands or file such
claims in respect of the Term Obligations or the ABL Obligations, as
applicable, as are necessary to prevent the waiver or bar of such claims under
applicable statutes of limitations or other statutes, court orders, or rules of
procedure at any time.


 


Section 3.2            Agent
for Perfection. 
The ABL Agent, for and on behalf of itself and each ABL Lender, and the
Term Agent, for and on behalf of itself and each Term Lender, as applicable,
each agree to hold all Control Collateral, Cash Collateral and Common Mortgaged
Collateral that is part of the Collateral (other than, in the case of the ABL
Agent, the ABL Canadian Collateral) in their respective possession, custody, or
control (or in the possession, custody, or control of agents or bailees for
either) as agent for the other solely for the purpose of perfecting the
security interest granted to each in such Control Collateral, Cash Collateral
or Common Mortgaged Collateral, subject to the terms and conditions of this
Section 3.2.  None of the ABL Agent, the
ABL Lenders, the Term Agent, or the Term Lenders, as applicable, shall have any
obligation whatsoever to the others to assure that the Control Collateral or
the Common Mortgaged Collateral is genuine or owned by any Borrower, any
Guarantor, or any other Person or to preserve rights or benefits of any
Person.  The duties or responsibilities
of the ABL Agent and the Term Agent under this Section 3.2 are and shall be
limited solely to holding or maintaining control of the Control Collateral, the
Cash Collateral and the Common Mortgaged Collateral as agent for the other
Party for purposes of perfecting the Lien held by the Term Agent or the ABL
Agent, as applicable.  The ABL Agent is
not and shall not be deemed to be a fiduciary of any kind for the Term Agent,
the Term Lenders, or any other Person. 
The Term Agent is not and shall not be deemed to be a fiduciary of any
kind for the ABL Agent, the ABL Lenders, or any other Person.  In the event that (a) the Term Agent or any
Term Lender receives any Collateral or Proceeds of the Collateral in violation
of the terms of this Agreement, or (b) the ABL Agent or any ABL Lender receives
any Collateral or Proceeds of the Collateral in violation of the terms of this
Agreement, then the Term Agent, such Term Lender, the ABL Agent, or such ABL
Lender, as applicable, shall promptly pay over such Proceeds or Collateral to
(i) in the case


 


22

















 


 of clause (a), the ABL Agent, or
(ii) in the case of clause (b), the Term Agent, in each case, in the same form
as received with any necessary endorsements, for application in accordance with
the provisions of Section 4.1 of this Agreement.


 


Section 3.3            Sharing
of Information and Access.  In
the event that the ABL Agent shall, in the exercise of its rights under the ABL
Collateral Documents or otherwise, receive possession or control of any books
and Records of any Term Credit Party which contain information identifying or
pertaining to the Term Priority Collateral, the ABL Agent shall, upon request
from the Term Agent and as promptly as practicable thereafter, either make
available to the Term Agent such books and Records for inspection and
duplication or provide to the Term Agent copies thereof.  In the event that the Term Agent shall, in
the exercise of its rights under the Term Collateral Documents or otherwise,
receive possession or control of any books and records of any ABL Credit Party
which contain information identifying or pertaining to any of the ABL Priority
Collateral, the Term Agent shall, upon request from the ABL Agent and as
promptly as practicable thereafter, either make available to the ABL Agent such
books and records for inspection and duplication or provide the ABL Agent
copies thereof.  In the event that the
Term Agent shall, in the exercise of its rights under the Term Collateral Documents
or otherwise, obtain title to any Intellectual Property previously owned by any
of the ABL Credit Parties, the Term Agent hereby irrevocably grants the ABL
Agent a non-exclusive license or other right to use, without charge, such
Intellectual Property as it pertains to the ABL Priority Collateral in
advertising for sale and selling any ABL Priority Collateral.


 


Section 3.4            Insurance.  Proceeds of
Collateral include insurance proceeds and, therefore, the Lien Priority shall
govern the ultimate disposition of casualty insurance proceeds.  The ABL Agent shall be named as additional
insured or loss payee, as applicable, with respect to all insurance policies
relating to ABL Priority Collateral and the Term Agent shall be named as
additional insured or loss payee, as applicable, with respect to all insurance
policies relating to Term Priority Collateral. 
The ABL Agent shall have the sole and exclusive right, as against the
Term Agent, to adjust settlement of insurance claims in the event of any
covered loss, theft or destruction of ABL Priority Collateral.  The Term Agent shall have the sole and
exclusive right, as against the ABL Agent, to adjust settlement of insurance
claims in the event of any covered loss, theft or destruction of Term Priority
Collateral.  All proceeds of such
insurance shall be remitted to the ABL Agent or the Term Agent, as the case may
be, and each of the Term Agent and ABL Agent shall cooperate (if necessary) in
a reasonable manner in effecting the payment of insurance proceeds (other than
insurance proceeds relating to ABL Canadian Collateral) in accordance with
Section 4.1 hereof.


 


Section 3.5            No
Additional Rights For the Credit Parties Hereunder.  Except as provided in Section 3.6, if any ABL
Secured Party or Term Secured Party shall enforce its rights or remedies in violation
of the terms of this Agreement, the Credit Parties shall not be entitled to use
such violation as a defense to any action by any ABL Secured Party or Term
Secured Party, nor to assert such violation as a counterclaim or basis for set
off or recoupment against any ABL Secured Party or Term Secured Party.


 


Section 3.6           Actions
Upon Breach.  If
any Term Secured Party or any ABL Secured Party, contrary to this Agreement,
commences or participates in any action or proceeding against the Credit
Parties or the Collateral, the Credit Parties, with the prior written


 


23

















 


consent of the ABL Agent or the
Term Agent, as applicable, may interpose as a defense or dilatory plea the
making of this Agreement, and any ABL Secured Party or Term Secured Party, as
applicable, may intervene and interpose such defense or plea in its or their
name or in the name of the Credit Parties.


 


Section 3.7            Inspection Rights and Insurance.  (a) 
Without limiting any rights the ABL Agent or any other ABL Secured Party
may otherwise have under applicable law or by agreement, the ABL Agent and the
ABL Secured Parties may, at any time and whether or not the Term Agent or any
other Term Secured Party has commenced and is continuing to Exercise Any
Secured Creditor Remedies (the “ABL Permitted Access Right”),
during normal business hours on any business day, access ABL Priority
Collateral that (A) is stored or located in or on, (B) has become an accession
with respect to (within the meaning of Section 9-335 of the Uniform Commercial
Code), or (C) has been commingled with (within the meaning of Section 9-336 of
the Uniform Commercial Code), Term Priority Collateral (collectively, the “ABL Commingled Collateral”), for the limited
purposes of assembling, inspecting, copying or downloading information stored
on, taking actions to perfect its Lien on, completing a production run of
inventory involving, taking possession of, moving, selling, storing or
otherwise dealing with, or to Exercise Any Secured Creditor Remedies with
respect to, the ABL Commingled Collateral (collectively, “ABL Permitted
Access Purposes”), in each case without notice to, the
involvement of or interference by any Term Secured Party or liability to any
Term Secured Party.  In addition, subject
to the terms hereof, the ABL Agent may advertise and conduct public auctions or
private sales of the ABL Priority Collateral without notice to, the involvement
of or interference by any Term Secured Party or liability to any Term Secured
Party.  In the event that any ABL Secured
Party has commenced and is continuing to Exercise Any Secured Creditor Remedies
with respect to any ABL Commingled Collateral, the Term Agent may not sell,
assign or otherwise transfer the related Term Priority Collateral prior to the
expiration of the 180-day period commencing on the date such Secured Party
begins to Exercise Any Secured Creditor Remedies, unless the purchaser,
assignee or transferee thereof agrees to be bound by the provisions of this
Section 3.7.  If any stay or other order
that prohibits the ABL Agent and other ABL Secured Parties from commencing and
continuing to Exercise Any Secured Creditor Remedies with respect to ABL
Commingled Collateral has been entered by a court of competent jurisdiction,
such 180-day period shall be tolled during the pendency of any such stay or
other order.


 


(b)           The Term Agent and the other Term
Secured Parties shall use commercially reasonable efforts to not hinder or
obstruct the ABL Agent and the other ABL Secured Parties from exercising the
ABL Permitted Access Right.


 


(c)           Subject to the terms hereof, the Term
Agent may advertise and conduct public auctions or private sales of the Term
Priority Collateral without notice to, the involvement of or interference by
any ABL Secured Party or liability to any ABL Secured Party.


 


24

















 


ARTICLE 4

APPLICATION OF PROCEEDS


 


Section 4.1            Application
of Proceeds.


 


(a)           Revolving Nature of ABL
Obligations.  The Term Agent, for and
on behalf of itself and the Term Lenders, expressly acknowledges and agrees
that (i) any ABL Credit Agreement includes a revolving commitment, that in the
ordinary course of business the ABL Agent and the ABL Lenders will apply
payments and make advances thereunder, and that no application of any Payment
Collateral or Cash Collateral or the release of any Lien by the ABL Agent upon
any portion of the Collateral in connection with a permitted disposition under
any ABL Credit Agreement shall constitute the Exercise of Secured Creditor
Remedies under this Agreement; (ii) the amount of the ABL Obligations that may
be outstanding at any time or from time to time may be increased or reduced and
subsequently reborrowed, and that the terms of the ABL Obligations may be
modified, extended or amended from time to time, and that the aggregate amount
of the ABL Obligations may be increased, replaced or refinanced, in each event,
without notice to or consent by the Term Secured Parties and without affecting
the provisions hereof; and (iii) all Payment Collateral or Cash Collateral
received by the ABL Agent may be applied, reversed, reapplied, credited, or
reborrowed, in whole or in part, to the ABL Obligations at any time; provided,
however, that from and after the date on which the ABL Agent (or any ABL
Lender) commences the Exercise of Any Secured Creditor Remedies (other than,
prior to the acceleration of any of the Term Obligations, the exercise of its
rights in accordance with Section 4.16 of the Original ABL Credit Agreement or
any similar provision of any other ABL Credit Agreement), all amounts received
by the ABL Agent or any ABL Lender (other than amounts received in respect of
any ABL Canadian Collateral) shall be applied as specified in this Section 4.1.  The Lien Priority shall not be altered or
otherwise affected by any such amendment, modification, supplement, extension,
repayment, reborrowing, increase, replacement, renewal, restatement or
refinancing of either the ABL Obligations or the Term Obligations, or any
portion thereof.


 


(b)           Application of Proceeds of ABL
Priority Collateral.  The ABL Agent
and the Term Agent hereby agree that all ABL Priority Collateral (other than
ABL Canadian Collateral), and all Proceeds thereof, received by either of them
in connection with any Exercise of Secured Creditor Remedies shall be applied,
following the application thereof in accordance with the ABL Collateral
Documents to pay any unsatisfied Euro MTN Obligations,


 


first,
to the payment of costs and expenses of the ABL Agent or the Term Agent, as
applicable, in connection with such Exercise of Secured Creditor Remedies,


 


second,
to the payment of the ABL Obligations in accordance with the ABL Documents
until the Discharge of ABL Obligations shall have occurred,


 


third,
to the payment, on a pro rata basis, of the Term Obligations, and


 


fourth,
the balance, if any, to the Credit Parties or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may
direct.


 


(c)           Application of Proceeds of Term
Priority Collateral.  The ABL Agent
and the Term Agent hereby agree that all Term Priority Collateral, and all
Proceeds thereof, received by either of them in connection with any Exercise of
Secured Creditor Remedies shall be applied, following the application thereof
in accordance with the Term Collateral Documents to pay any unsatisfied Euro
MTN Obligations,


 


25

















 


first,
to the payment of costs and expenses of the ABL Agent or the Term Agent, as
applicable, in connection with such Exercise of Secured Creditor Remedies,


 


second,
to the payment, on a pro rata basis, of the Term Obligations in accordance with
the Term Documents until the Discharge of Term Obligations shall have occurred,


 


third,
to the payment of the ABL Obligations; and


 


fourth,
the balance, if any, to the Credit Parties or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may
direct.


 


(d)           Limited Obligation or Liability.  In exercising remedies, whether as a secured
creditor or otherwise, the ABL Agent shall have no obligation or liability to
the Term Agent or to any Term Lender, and the Term Agent shall have no
obligation or liability to the ABL Agent or any ABL Lender, regarding the
adequacy of any Proceeds or for any action or omission, save and except solely
for an action or omission that breaches the express obligations undertaken by
each Party under the terms of this Agreement.


 


(e)           Turnover of Cash Collateral After
Discharge.  Upon the Discharge of ABL
Obligations, the ABL Agent shall deliver to the Term Agent or shall execute
such documents as the Term Agent may reasonably request to enable the Term
Agent to have control over any Cash Collateral or Control Collateral (other
than such Collateral relating to the ABL Canadian Collateral) still in the ABL
Agent’s possession, custody, or control in the same form as received with any
necessary endorsements, or as a court of competent jurisdiction may otherwise
direct.  Upon the Discharge of Term
Obligations, the Term Agent shall deliver to the ABL Agent or shall execute
such documents as the ABL Agent may reasonably request to enable the ABL Agent
to have control over any Cash Collateral or Control Collateral still in the
Term Agent’s possession, custody or control in the same form as received with
any necessary endorsements, or as a court of competent jurisdiction may
otherwise direct.


 


(f)            Notwithstanding anything to the
contrary herein, in the event of any sale or transfer of all or substantially
all of the Collateral owned by Hertz, or any release thereof, in connection
with which (i) there is no application of Collateral or Proceeds pursuant to
this Section but there is a mandatory repayment pursuant to the Term Credit
Agreement, then the Brazil Debt Agent shall receive a pro rata share of such
Collateral or Proceeds (based upon the then outstanding amount of the Brazil
Debt Obligations), or (ii) there is no application of Collateral or Proceeds
pursuant to this Section and there is no mandatory repayment pursuant to the
Term Credit Agreement, then Hertz shall cause the Brazil Debt Obligations to be
repaid in full upon the consummation of any such sale, transfer or release.


 


Section 4.2            Specific
Performance.  Each
of the ABL Agent and the Term Agent is hereby authorized to demand specific
performance of this Agreement, whether or not any Borrower or any Guarantor
shall have complied with any of the provisions of any of the Credit Documents,
at any time when the other Party shall have failed to comply with any of the
provisions of this Agreement applicable to it. 
Each of the ABL Agent, for and on behalf of itself and the ABL Lenders, and
the Term Agent, for and on behalf of itself and the Term Lenders,


 


26

















 


hereby irrevocably waives any
defense based on the adequacy of a remedy at law that might be asserted as a
bar to such remedy of specific performance.


 


ARTICLE 5

INTERCREDITOR ACKNOWLEDGEMENTS AND WAIVERS


 


Section 5.1            Notice
of Acceptance and Other Waivers.


 


(a)           All ABL Obligations at any time made
or incurred by any Borrower or any Guarantor shall be deemed to have been made
or incurred in reliance upon this Agreement, and the Term Agent, on behalf of
itself and the Term Lenders, hereby waives notice of acceptance, or proof of
reliance by the ABL Agent or any ABL Lender of this Agreement, and notice of
the existence, increase, renewal, extension, accrual, creation, or non-payment
of all or any part of the ABL Obligations. 
All Term Obligations at any time made or incurred by any Borrower or any
Guarantor shall be deemed to have been made or incurred in reliance upon this
Agreement, and the ABL Agent, on behalf of itself and the ABL Lenders, hereby
waives notice of acceptance, or proof of reliance, by the Term Agent or any
Term Lender of this Agreement, and notice of the existence, increase, renewal,
extension, accrual, creation, or non-payment of all or any part of the Term
Obligations.


 


(b)           None of the ABL Agent, any ABL
Lender, or any of their respective Affiliates, directors, officers, employees,
or agents shall be liable for failure to demand, collect, or realize upon any
of the Collateral or any Proceeds, or for any delay in doing so, or shall be
under any obligation to sell or otherwise dispose of any Collateral or Proceeds
thereof or to take any other action whatsoever with regard to the Collateral or
any part or Proceeds thereof, except as specifically provided in this
Agreement.  If the ABL Agent or any ABL
Lender honors (or fails to honor) a request by any Borrower for an extension of
credit pursuant to any ABL Credit Agreement or any of the other ABL Documents,
whether the ABL Agent or any ABL Lender has knowledge that the honoring of (or
failure to honor) any such request would constitute a default under the terms
of any Term Credit Agreement or any other Term Document (but not a default
under this Agreement) or an act, condition, or event that, with the giving of
notice or the passage of time, or both, would constitute such a default, or if
the ABL Agent or any ABL Lender otherwise should exercise any of its
contractual rights or remedies under any ABL Documents (subject to the express
terms and conditions hereof), neither the ABL Agent nor any ABL Lender shall
have any liability whatsoever to the Term Agent or any Term Lender as a result
of such action, omission, or exercise (so long as any such exercise does not
breach the express terms and provisions of this Agreement).  The ABL Agent and the ABL Lenders shall be
entitled to manage and supervise their loans and extensions of credit under any
ABL Credit Agreement and any of the other ABL Documents as they may, in their
sole discretion, deem appropriate, and may manage their loans and extensions of
credit without regard to any rights or interests that the Term Agent or any of
the Term Lenders have in the Collateral, except as otherwise expressly set
forth in this Agreement.  The Term Agent,
on behalf of itself and the Term Lenders, agrees that neither the ABL Agent nor
any ABL Lender shall incur any liability as a result of a sale, lease, license,
application, or other disposition of all or any portion of the Collateral or
Proceeds thereof, pursuant to the ABL Documents, so long as such disposition is
conducted in accordance with mandatory provisions of applicable law and does
not breach the provisions of this Agreement.


 


27

















 


(c)           None of the Term Agent, any Term
Lender or any of their respective Affiliates, directors, officers, employees,
or agents shall be liable for failure to demand, collect, or realize upon any
of the Collateral or any Proceeds, or for any delay in doing so, or shall be
under any obligation to sell or otherwise dispose of any Collateral or Proceeds
thereof or to take any other action whatsoever with regard to the Collateral or
any part or Proceeds thereof, except as specifically provided in this
Agreement.  If the Term Agent or any Term
Lender honors (or fails to honor) a request by any Borrower for an extension of
credit pursuant to any Term Credit Agreement or any of the other Term
Documents, whether the Term Agent or any Term Lender has knowledge that the
honoring of (or failure to honor) any such request would constitute a default
under the terms of any ABL Credit Agreement or any other ABL Document (but not
a default under this Agreement) or an act, condition, or event that, with the
giving of notice or the passage of time, or both, would constitute such a
default, or if the Term Agent or any Term Lender otherwise should exercise any
of its contractual rights or remedies under the Term Documents (subject to the
express terms and conditions hereof), neither the Term Agent nor any Term
Lender shall have any liability whatsoever to the ABL Agent or any ABL Lender
as a result of such action, omission, or exercise (so long as any such exercise
does not breach the express terms and provisions of this Agreement).  The Term Agent and the Term Lenders shall be
entitled to manage and supervise their loans and extensions of credit under the
Term Documents as they may, in their sole discretion, deem appropriate, and may
manage their loans and extensions of credit without regard to any rights or
interests that the ABL Agent or any ABL Lender has in the Collateral, except as
otherwise expressly set forth in this Agreement.  The ABL Agent, on behalf of itself and the
ABL Lenders, agrees that none of the Term Agent or the Term Lenders shall incur
any liability as a result of a sale, lease, license, application, or other
disposition of the Collateral or any part or Proceeds thereof, pursuant to the
Term Documents, so long as such disposition is conducted in accordance with
mandatory provisions of applicable law and does not breach the provisions of
this Agreement.


 


Section 5.2            Modifications
to ABL Documents and Term Documents.


 


(a)           The Term Agent, on behalf of itself
and the Term Lenders, hereby agrees that, without affecting the obligations of
the Term Agent and the Term Lenders hereunder, the ABL Agent and the ABL
Lenders may, at any time and from time to time, in their sole discretion
without the consent of or notice to the Term Agent or any Term Lender (except
to the extent such notice or consent is required pursuant to the express
provisions of this Agreement), and without incurring any liability to the Term
Agent or any Term Lender or impairing or releasing the subordination provided
for herein, amend, restate, supplement, replace, refinance, extend,
consolidate, restructure, or otherwise modify any of the ABL Documents in any
manner whatsoever, including, to:


 


(i)        change the manner, place, time, or terms
of payment or renew, alter or increase, all or any of the ABL Obligations or
otherwise amend, restate, supplement, or otherwise modify in any manner, or
grant any waiver or release with respect to, all or any part of the ABL
Obligations or any of the ABL Documents;


 


(ii)       retain or obtain a Lien on any Property
of any Person to secure any of the ABL Obligations, and in connection therewith
to enter into any additional ABL Documents;


 


28

















 


(iii)      amend, or grant any waiver, compromise, or
release with respect to, or consent to any departure from, any guaranty or
other obligations of any Person obligated in any manner under or in respect of
the ABL Obligations;


 


(iv)      release its Lien on any Collateral or
other Property;


 


(v)       exercise or refrain from exercising any
rights against any Borrower, any Guarantor, or any other Person;


 


(vi)      retain or obtain the primary or secondary
obligation of any other Person with respect to any of the ABL Obligations; and


 


(vii)     otherwise manage and supervise the ABL
Obligations as the ABL Agent shall deem appropriate.


 


(b)           The ABL Agent, on behalf of itself
and the ABL Lenders, hereby agrees that, without affecting the obligations of
the ABL Agent and the ABL Lenders hereunder, the Term Agent and the Term
Lenders may, at any time and from time to time, in their sole discretion
without the consent of or notice to the ABL Agent or any ABL Lender (except to
the extent such notice or consent is required pursuant to the express
provisions of this Agreement), and without incurring any liability to the ABL
Agent or any ABL Lender or impairing or releasing the subordination provided
for herein, amend, restate, supplement, replace, refinance, extend,
consolidate, restructure, or otherwise modify any of the Term Documents in any
manner whatsoever, including, to:


 


(i)    change the manner, place, time, or terms of
payment or renew, alter or increase, all or any of the Term Obligations or
otherwise amend, restate, supplement, or otherwise modify in any manner, or
grant any waiver or release with respect to, all or any part of the Term
Obligations or any of the Term Documents;


 


(ii)       retain or obtain a Lien on any Property
of any Person to secure any of the Term Obligations, and in connection
therewith to enter into any additional Term Documents;


 


(iii)      amend, or grant any waiver, compromise, or
release with respect to, or consent to any departure from, any guaranty or
other obligations of any Person obligated in any manner under or in respect of
the Term Obligations;


 


(iv)      release its Lien on any Collateral or
other Property;


 


(v)       exercise or refrain from exercising any
rights against any Borrower, any Guarantor, or any other Person;


 


(vi)      retain or obtain the primary or secondary
obligation of any other Person with respect to any of the Term Obligations; and


 


(vii)     otherwise manage and supervise the Term
Obligations as the Term Agent shall deem appropriate.


 


29

















 


(c)           The ABL Obligations and the Term
Obligations may be refinanced, in whole or in part, in each case, without
notice to, or the consent (except to the extent a consent is required to permit
the refinancing transaction under any ABL Document or any Term Document) of the
ABL Agent, the ABL Lenders, the Term Agent or the Term Lenders, as the case may
be, all without affecting the Lien Priorities provided for herein or the other
provisions hereof, provided, however, that the holders of such refinancing
indebtedness (or an authorized agent or trustee on their behalf) bind
themselves in writing to the terms of this Agreement pursuant to such documents
or agreements (including amendments or supplements to this Agreement) as the
ABL Agent or the Term Agent, as the case may be, shall reasonably request and
in form and substance reasonably acceptable to the ABL Agent or the Term Agent,
as the case may be, and any such refinancing transaction shall be in accordance
with any applicable provisions of both the ABL Documents and the Term
Documents.


 


Section 5.3            Reinstatement
and Continuation of Agreement.


 


(a)           If the ABL Agent or any ABL Lender is
required in any Insolvency Proceeding or otherwise to turn over or otherwise
pay to the estate of any Borrower, any Guarantor, or any other Person any
payment made in satisfaction of all or any portion of the ABL Obligations (an “ABL Recovery”), then the ABL
Obligations shall be reinstated to the extent of such ABL Recovery.  If this Agreement shall have been terminated
prior to such ABL Recovery, this Agreement shall be reinstated in full force
and effect in the event of such ABL Recovery, and such prior termination shall
not diminish, release, discharge, impair, or otherwise affect the obligations
of the Parties from such date of reinstatement. 
All rights, interests, agreements, and obligations of the ABL Agent, the
Term Agent, the ABL Lenders, and the Term Lenders under this Agreement shall
remain in full force and effect and shall continue irrespective of the
commencement of, or any discharge, confirmation, conversion, or dismissal of,
any Insolvency Proceeding by or against any Borrower or any Guarantor or any
other circumstance which otherwise might constitute a defense available to, or
a discharge of any Borrower or any Guarantor in respect of the ABL Obligations
or the Term Obligations.  No priority or
right of the ABL Agent or any ABL Lender shall at any time be prejudiced or
impaired in any way by any act or failure to act on the part of any Borrower or
any Guarantor or by the noncompliance by any Person with the terms, provisions,
or covenants of any of the ABL Documents, regardless of any knowledge thereof
which the ABL Agent or any ABL Lender may have.


 


(b)           If the Term Agent or any Term Lender
is required in any Insolvency Proceeding or otherwise to turn over or otherwise
pay to the estate of any Borrower, any Guarantor, or any other Person any
payment made in satisfaction of all or any portion of the Term Obligations (a “Term Recovery”), then the Term
Obligations shall be reinstated to the extent of such Term Recovery.  If this Agreement shall have been terminated
prior to such Term Recovery, this Agreement shall be reinstated in full force
and effect in the event of such Term Recovery, and such prior termination shall
not diminish, release, discharge, impair, or otherwise affect the obligations
of the Parties from such date of reinstatement. 
All rights, interests, agreements, and obligations of the ABL Agent, the
Term Agent, the ABL Lenders, and the Term Lenders under this Agreement shall
remain in full force and effect and shall continue irrespective of the
commencement of, or any discharge, confirmation, conversion, or dismissal of,
any Insolvency Proceeding by or against any Borrower or any Guarantor or any
other circumstance which otherwise might constitute a defense available to, or
a discharge of any Borrower or any


 


30

















 


Guarantor in respect
of the ABL Obligations or the Term Obligations. 
No priority or right of the Term Agent or any Term Lender shall at any
time be prejudiced or impaired in any way by any act or failure to act on the
part of any Borrower or any Guarantor or by the noncompliance by any Person
with the terms, provisions, or covenants of any of the Term Documents,
regardless of any knowledge thereof which the Term Agent or any Term Lender may
have.


 


ARTICLE 6

INSOLVENCY PROCEEDINGS


 


Section 6.1            DIP
Financing.


 


(a)           If any Borrower or any Guarantor
shall be subject to any Insolvency Proceeding in the United States at any time
prior to the Discharge of ABL Obligations, and the ABL Agent or the ABL Lenders
shall seek to provide any Borrower or any Guarantor with, or consent to a third
party providing, any financing under Section 364 of the Bankruptcy Code or consent
to any order for the use of cash collateral under Section 363 of the Bankruptcy
Code (“DIP
Financing”), with such DIP Financing to be secured by all or any
portion of the Collateral (including assets that, but for the application of
Section 552 of the Bankruptcy Code would be Collateral), then the Term Agent,
on behalf of itself and the Term Lenders, agrees that it will raise no
objection and will not support any objection to such DIP Financing or to the
Liens securing the same on the grounds of a failure to provide “adequate
protection” for the Liens of the Term Agent securing the Term Obligations or on
any other grounds (and will not request any adequate protection solely as a
result of such DIP Financing), so long as (i) the Term Agent retains its Lien
on the Collateral to secure the Term Obligations (in each case, including
Proceeds thereof arising after the commencement of the case under the
Bankruptcy Code) and, as to the Term Priority Collateral only, such Lien has
the same priority as existed prior to the commencement of the case under the
Bankruptcy Code and any Lien securing such DIP Financing is junior and
subordinate to the Lien of the Term Agent on the Term Priority Collateral, (ii)
all Liens on ABL Priority Collateral securing any such DIP Financing shall be
senior to or on a parity with the Liens of the ABL Agent and the ABL Lenders
securing the ABL Obligations on ABL Priority Collateral and (iii) if the ABL
Agent receives an adequate protection Lien on post-petition assets of the
debtor to secure the ABL Obligations, the Term Agent also receives an adequate
protection Lien on such post-petition assets of the debtor to secure the Term
Obligations, provided that (x) such Liens in favor of the ABL Agent and
the Term Agent shall be subject to the provisions of Section 6.1(b) hereof
and (y) the foregoing provisions of this Section 6.1(a) shall not prevent the
Term Agent and the Term Lenders from objecting to any provision in any DIP
Financing relating to any provision or content of a plan of reorganization.


 


(b)           All Liens granted to the ABL Agent or
the Term Agent in any Insolvency Proceeding, whether as adequate protection or
otherwise, are intended by the Parties to be and shall be deemed to be subject
to the Lien Priority and the other terms and conditions of this Agreement.


 


Section 6.2            Relief
From Stay.  Until
the Discharge of ABL Obligations has occurred, the Term Agent, on behalf of
itself and the Term Lenders, agrees not to seek relief from the automatic stay
or any other stay in any Insolvency Proceeding in respect of any portion of the


 


31

















 


ABL Priority Collateral without
the ABL Agent’s express written consent. 
Until the Discharge of Term Obligations has occurred, the ABL Agent, on
behalf of itself and the ABL Lenders, agrees not to seek relief from the
automatic stay or any other stay in any Insolvency Proceeding in respect of any
portion of the Term Priority Collateral without the Term Agent’s express
written consent.  In addition, neither the
Term Agent nor the ABL Agent shall seek any relief from the automatic stay with
respect to any Collateral without providing 30 days’ prior written notice to
the other, unless such period is agreed by both the ABL Agent and the Term
Agent to be modified.


 


Section 6.3            No
Contest.  The
Term Agent, on behalf of itself and the Term Lenders, agrees that, prior to the
Discharge of ABL Obligations, none of them shall contest (or support any other
Person contesting) (a) any request by the ABL Agent or any ABL Lender for
adequate protection of its interest in the Collateral, or (b) any objection by
the ABL Agent or any ABL Lender to any motion, relief, action, or proceeding
based on a claim by the ABL Agent or any ABL Lender that its interests in the
Collateral are not adequately protected (or any other similar request under any
law applicable to an Insolvency Proceeding), so long as any Liens granted to
the ABL Agent as adequate protection of its interests are subject to this
Agreement.  The ABL Agent, on behalf of
itself and the ABL Lenders, agrees that, prior to the Discharge of Term
Obligations, none of them shall contest (or support any other Person
contesting) (i) any request by the Term Agent or any Term Lender for adequate
protection of its interest in the Collateral (unless in contravention of
Section 6.1(a) above), or (ii) any objection by the Term Agent or any Term
Lender to any motion, relief, action or proceeding based on a claim by the Term
Agent or any Term Lender that its interests in the Collateral (unless in
contravention of Section 6.1(a) above) are not adequately protected (or any
other similar request under any law applicable to an Insolvency Proceeding), so
long as any Liens granted to the Term Agent as adequate protection of its
interests are subject to this Agreement.


 


Section 6.4            Asset
Sales.  The
Term Agent agrees, on behalf of itself and the Term Lenders, that it will not
oppose any sale consented to by the ABL Agent of any ABL Priority Collateral
(including the ABL Canadian Collateral) pursuant to Section 363(f) of the
Bankruptcy Code (or any similar provision under the law applicable to any
Insolvency Proceeding) so long as the proceeds of such sale (other than any
sale of ABL Canadian Collateral) are applied in accordance with this Agreement.  The ABL Agent agrees, on behalf of itself and
the ABL Lenders, that it will not oppose any sale consented to by the Term
Agent of any Term Priority Collateral pursuant to Section 363(f) of the
Bankruptcy Code (or any similar provision under the law applicable to any
Insolvency Proceeding) so long as the proceeds of such sale are applied in
accordance with this Agreement.  If such
sale of Collateral includes both ABL Priority Collateral and Term Priority
Collateral and the Parties are unable to agree on the allocation of the
purchase price between the ABL Priority Collateral and Term Priority
Collateral, either Party may apply to the court in such Insolvency Proceeding
to make a determination of such allocation, and the court’s determination shall
be binding upon the Parties.


 


Section 6.5            Separate
Grants of Security and Separate Classification.  Each Term Lender, the Term Agent, each ABL
Lender and the ABL Agent acknowledges and agrees that (i) the grants of Liens
pursuant to the ABL Security Documents and the Term Security Documents
constitute two separate and distinct grants of Liens and (ii) because of, among
other things, their differing rights in the Collateral, the Term Obligations
are fundamentally different from the ABL


 


32

















 


Obligations and must be
separately classified in any plan of reorganization proposed or adopted in an
Insolvency Proceeding.  To further
effectuate the intent of the parties as provided in the immediately preceding sentence,
if it is held that the claims of the ABL Secured Parties and the Term Secured
Parties in respect of the Collateral constitute only one secured claim (rather
than separate classes of senior and junior secured claims), then the ABL
Secured Parties and the Term Secured Parties hereby acknowledge and agree that
all distributions shall be made as if there were separate classes of ABL
Obligation claims and Term Obligation claims against the Credit Parties (with
the effect being that, to the extent that the aggregate value of the ABL
Priority Collateral or Term Priority Collateral is sufficient (for this purpose
ignoring all claims held by the other Secured Parties), the ABL Secured Parties
or the Term Secured Parties, respectively, shall be entitled to receive, in
addition to amounts distributed to them in respect of principal, pre-petition
interest and other claims, all amounts owing in respect of post-petition
interest that is available from each pool of Priority Collateral for each of
the ABL Secured Parties and the Term Secured Parties, respectively, before any
distribution is made in respect of the claims held by the other Secured
Parties, with the other Secured Parties hereby acknowledging and agreeing to
turn over to the respective other Secured Parties amounts otherwise received or
receivable by them to the extent necessary to effectuate the intent of this
sentence, even if such turnover has the effect of reducing the aggregate
recoveries.


 


Section 6.6          Enforceability.  The provisions of this Agreement are intended
to be and shall be enforceable under Section 510(a) of the Bankruptcy Code.


 


Section 6.7            ABL
Obligations Unconditional.  All rights of the ABL Agent hereunder, and
all agreements and obligations of the Term Agent and the Credit Parties (to the
extent applicable) hereunder, shall remain in full force and effect
irrespective of:


 


(i)    any lack of validity or enforceability of
any ABL Document;


 


(ii)   any change in the time, place or manner of
payment of, or in any other term of, all or any portion of the ABL Obligations,
or any amendment, waiver or other modification, whether by course of conduct or
otherwise, or any refinancing, replacement, refunding or restatement of any ABL
Document;


 


(iii)  any exchange, release, voiding, avoidance or
non perfection of any security interest in any Collateral or any other
collateral, or any release, amendment, waiver or other modification, whether by
course of conduct or otherwise, or any refinancing, replacement, refunding,
restatement or increase of all or any portion of the ABL Obligations or any
guarantee or guaranty thereof; or


 


(iv)  any other circumstances that otherwise might
constitute a defense available to, or a discharge of, any Credit Party in
respect of the ABL Obligations, or of any of the Term Agent or any Credit Party,
to the extent applicable, in respect of this Agreement.


 


Section 6.8            Term
Obligations Unconditional.  All rights of the Term Agent hereunder, all
agreements and obligations of the ABL Agent and the Credit Parties (to the
extent applicable) hereunder, shall remain in full force and effect
irrespective of:


 


33

















 


(i)    any lack of validity or enforceability of
any Term Document;


 


(ii)   any change in the time, place or manner of
payment of, or in any other term of, all or any portion of the Term
Obligations, or any amendment, waiver or other modification, whether by course
of conduct or otherwise, or any refinancing, replacement, refunding or
restatement of any Term Document;


 


(iii)  any exchange, release, voiding, avoidance or
non perfection of any security interest in any Collateral, or any other
collateral, or any release, amendment, waiver or other modification, whether by
course of conduct or otherwise, or any refinancing, replacement, refunding,
restatement or increase of all or any portion of the Term Obligations or any
guarantee or guaranty thereof; or


 


(iv)  any other circumstances that otherwise might
constitute a defense available to, or a discharge of, any Credit Party in
respect of the Term Obligations, or of any of the ABL Agent or any Credit
Party, to the extent applicable, in respect of this Agreement.


 


Section 6.9            Adequate
Protection. 
Except to the extent expressly provided in Section 6.1, nothing in this
Agreement shall limit the rights of the ABL Agent and the ABL Lenders, on the
one hand, and the Term Agent and the Term Lenders, on the other hand, from
seeking or requesting adequate protection with respect to their interests in
the applicable Collateral in any Insolvency Proceeding, including adequate
protection in the form of a cash payment, periodic cash payments, cash payments
of interest, additional collateral or otherwise; provided that (a) in the event
that the ABL Agent, on behalf of itself or any of the ABL Lenders, seeks or
requests adequate protection in respect of the ABL Obligations and such
adequate protection is granted in the form of additional collateral comprising
assets of the type of assets that constitute Term Priority Collateral, then the
ABL Agent, on behalf of itself and each of the ABL Lenders, agrees that the
Term Agent shall also be granted a senior Lien on such collateral as security
for the Term Obligations and that any Lien on such collateral securing the ABL
Obligations shall be subordinate to the Lien on such collateral securing the
Term Obligations and (b) in the event that the Term Agent, on behalf of itself
or any of the Term Lenders, seeks or requests adequate protection in respect of
the Term Obligations and such adequate protection is granted in the form of
additional collateral comprising assets of the type of assets that constitute
ABL Priority Collateral, then the Term Agent, on behalf of itself and each of
the Term Lenders, agrees that the ABL Agent shall also be granted a senior Lien
on such collateral as security for the ABL Obligations and that any Lien on
such collateral securing the Term Obligations shall be subordinate to the Lien
on such collateral securing the ABL Obligations.


 


ARTICLE 7

MISCELLANEOUS


 


Section 7.1            Rights
of Subrogation. 
The Term Agent, for and on behalf of itself and the Term Lenders, agrees
that no payment to the ABL Agent or any ABL Lender pursuant to the provisions
of this Agreement shall entitle the Term Agent or any Term Lender to exercise
any rights of subrogation in respect thereof until the Discharge of ABL
Obligations shall have occurred. 
Following the Discharge of ABL Obligations, the ABL Agent agrees to execute


 


34

















 


such documents, agreements, and
instruments as the Term Agent or any Term Lender may reasonably request to
evidence the transfer by subrogation to any such Person of an interest in the
ABL Obligations resulting from payments to the ABL Agent by such Person, so
long as all costs and expenses (including all reasonable legal fees and
disbursements) incurred in connection therewith by the ABL Agent are paid by
such Person upon request for payment thereof. 
The ABL Agent, for and on behalf of itself and the ABL Lenders, agrees
that no payment to the Term Agent or any Term Lender pursuant to the provisions
of this Agreement shall entitle the ABL Agent or any ABL Lender to exercise any
rights of subrogation in respect thereof until the Discharge of Term
Obligations shall have occurred.  Following
the Discharge of Term Obligations, the Term Agent agrees to execute such
documents, agreements, and instruments as the ABL Agent or any ABL Lender may
reasonably request to evidence the transfer by subrogation to any such Person
of an interest in the Term Obligations resulting from payments to the Term
Agent by such Person, so long as all costs and expenses (including all
reasonable legal fees and disbursements) incurred in connection therewith by
the Term Agent are paid by such Person upon request for payment thereof.


 


Section 7.2            Further
Assurances. 
The Parties will, at their own expense and at any time and from time to
time, promptly execute and deliver all further instruments and documents, and
take all further action, that may be necessary or desirable, or that either
Party may reasonably request, in order to protect any right or interest granted
or purported to be granted hereby or to enable the ABL Agent or the Term Agent
to exercise and enforce its rights and remedies hereunder; provided, however,
that no Party shall be required to pay over any payment or distribution,
execute any instruments or documents, or take any other action referred to in
this Section 7.2, to the extent that such action would contravene any law,
order or other legal requirement or any of the terms or provisions of this
Agreement, and in the event of a controversy or dispute, such Party may
interplead any payment or distribution in any court of competent jurisdiction,
without further responsibility in respect of such payment or distribution under
this Section 7.2.


 


Section 7.3            Representations.  The Term Agent represents and warrants to the
ABL Agent that it has the requisite power and authority under the Term
Documents to enter into, execute, deliver, and carry out the terms of this
Agreement on behalf of itself and the Term Lenders.  The ABL Agent represents and warrants to the
Term Agent that it has the requisite power and authority under the ABL
Documents to enter into, execute, deliver, and carry out the terms of this Agreement
on behalf of itself and the ABL Lenders.


 


Section 7.4            Amendments.  No amendment or waiver of any provision of
this Agreement nor consent to any departure by any Party hereto shall be
effective unless it is in a written agreement executed by the Term Agent and
the ABL Agent and, solely in the case of any such amendment, waiver or consent
that would be materially adverse to the interests of the Brazil Debt Secured
Parties, the Brazil Debt Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.  Notwithstanding anything to the
contrary in the foregoing, the provisions of Sections 4.1(b), (c) and (d) shall
not be amended or departed from without the consent of the Brazil Debt Agent.


 


Section 7.5            Addresses
for Notices. 
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in


 


35

















 


writing and may be personally
served, telecopied, or sent by overnight express courier service or United
States mail and shall be deemed to have been given when delivered in person or
by courier service, upon receipt of a telecopy or five (5) days after deposit
in the United States mail (certified, with postage prepaid and properly
addressed).  For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this Section) shall be as set forth below or, as to each party,
at such other address as may be designated by such party in a written notice to
all of the other parties.


 


	
  ABL Agent:

  	
   

  	
  Deutsche
  Bank AG, New York Branch

  
	
   

  	
   

  	
  6- Wall
  Street

  
	
   

  	
   

  	
  New York,
  New York 10005

  
	
   

  	
   

  	
   

  
	
  Term Agent:

  	
   

  	
  Deutsche
  Bank AG, New York Branch

  
	
   

  	
   

  	
  60 Wall
  Street

  
	
   

  	
   

  	
  New York,
  New York 10005

  



 


Section 7.6            No
Waiver, Remedies. 
No failure on the part of any Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right.  The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.


 


Section 7.7            Continuing
Agreement, Transfer of Secured Obligations.  This Agreement is a continuing agreement and
shall (a) remain in full force and effect until the Discharge of ABL
Obligations and the Discharge of Term Obligations shall have occurred, (b) be
binding upon the Parties and their successors and assigns, and (c) inure to the
benefit of and be enforceable by the Parties and their respective successors,
transferees and assigns.  Nothing herein
is intended, or shall be construed to give, any other Person any right, remedy
or claim under, to or in respect of this Agreement or any Collateral.  All references to any Credit Party shall
include any Credit Party as debtor-in-possession and any receiver or trustee
for such Credit Party in any Insolvency Proceeding.  Without limiting the generality of the
foregoing clause (c), the ABL Agent, any ABL Lender, the Term Agent, or any
Term Lender may assign or otherwise transfer all or any portion of the ABL
Obligations or the Term Obligations, as applicable, to any other Person (other
than any Borrower, any Guarantor or any Affiliate of any Borrower or any Guarantor
and any Subsidiary of any Borrower or any Guarantor), and such other Person
shall thereupon become vested with all the rights and obligations in respect
thereof granted to the ABL Agent, the Term Agent, any ABL Lender, or any Term
Lender, as the case may be, herein or otherwise.  The ABL Secured Parties and the Term Secured
Parties may continue, at any time and without notice to the other parties
hereto, to extend credit and other financial accommodations, lend monies and
provide indebtedness to, or for the benefit of, any Credit Party on the faith
hereof.


 


Section 7.8            Governing
Law: Entire Agreement.  The validity, performance, and enforcement of
this Agreement shall be governed by, and construed in accordance with, the laws
of the State of New York.  This Agreement
constitutes the entire agreement and understanding among the Parties with
respect to the subject matter hereof and supersedes any prior agreements,
written or oral, with respect thereto.


 


36

















 


Section 7.9            Counterparts.  This Agreement may be executed in any number
of counterparts, and it is not necessary that the signatures of all Parties be
contained on any one counterpart hereof, each counterpart will be deemed to be
an original, and all together shall constitute one and the same document.


 


Section 7.10        No Third
Party Beneficiaries.  This Agreement is solely for the benefit of
the ABL Agent, ABL Lenders, Term Agent and Term Lenders.  No other Person (including any Borrower, any
Guarantor or any Affiliate of any Borrower or any Guarantor, or any Subsidiary
of any Borrower or any Guarantor) shall be deemed to be a third party
beneficiary of this Agreement.


 


Section 7.11         Headings.  The headings of the articles and sections of
this Agreement are inserted for purposes of convenience only and shall not be
construed to affect the meaning or construction of any of the provisions
hereof.


 


Section 7.12         Severability.  If any of the provisions in this Agreement
shall, for any reason, be held invalid, illegal or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provision of this Agreement and shall not invalidate the Lien Priority or
the application of Proceeds and other priorities set forth in this Agreement.


 


Section 7.13         Attorneys
Fees.  The
Parties agree that if any dispute, arbitration, litigation, or other proceeding
is brought with respect to the enforcement of this Agreement or any provision
hereof, the prevailing party in such dispute, arbitration, litigation, or other
proceeding shall be entitled to recover its reasonable attorneys’ fees and all
other costs and expenses incurred in the enforcement of this Agreement,
irrespective of whether suit is brought.


 


Section 7.14         VENUE;
JURY TRIAL WAIVER.


 


(a)           EACH PARTY HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK
COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW
YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN
SUCH FEDERAL COURT.  EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. 
NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY ABL SECURED PARTY
OR ANY TERM SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY ABL DOCUMENTS AGAINST ANY CREDIT PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


37

















 


(b)           EACH PARTY HERETO HEREBY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS.  EACH
PARTY HERETO REPRESENTS THAT IT HAS REVIEWED THIS WAIVER AND IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL.  IN THE EVENT OF LITIGATION, A
COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.


 


(c)           EACH PARTY TO THIS AGREEMENT
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES
IN SECTION 7.5.  NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW.


 


Section 7.15         Intercreditor
Agreement. 
This Agreement is the Intercreditor Agreement referred to in the
Original ABL Credit Agreement and the Original Term Credit Agreement.  Nothing in this Agreement shall be deemed to
subordinate the right of any ABL Secured Party to receive payment to the right
of any Term Secured Party to receive payment or of any Term Secured Party to
receive payment to the right of any ABL Secured Party to receive payment
(whether before or after the occurrence of an Insolvency Proceeding), it being
the intent of the Parties that this Agreement shall effectuate a subordination
of Liens but not a subordination of Indebtedness.


 


Section 7.16         No
Warranties or Liability.  The Term Agent and the ABL Agent acknowledge
and agree that neither has made any representation or warranty with respect to
the execution, validity, legality, completeness, collectability or
enforceability of any other ABL Document or any Term Document.  Except as otherwise provided in this
Agreement, the Term Agent and the ABL Agent will be entitled to manage and
supervise their respective extensions of credit to any Credit Party in
accordance with law and their usual practices, modified from time to time as
they deem appropriate.


 


Section 7.17         Conflicts.  In the event of any conflict between the
provisions of this Agreement and the provisions of any ABL Document or any Term
Document, the provisions of this Agreement shall govern.


 


Section 7.18         Information
Concerning Financial Condition of the Credit Parties.  Each of the Term Agent and the ABL Agent
hereby assume responsibility for keeping itself informed of the financial
condition of the Credit Parties and all other circumstances bearing upon the
risk of nonpayment of the ABL Obligations or the Term Obligations.  The Term Agent and the ABL Agent hereby agree
that no party shall have any duty to advise any other party of information
known to it regarding such condition or any such circumstances.  In the event the Term Agent or the ABL Agent,
in its sole discretion, undertakes at any time or from time to time to provide
any information to any other party to this Agreement, it shall be under no
obligation (A) to provide any such information to such other party or any other
party on any subsequent


 


38

















 


occasion, (B) to undertake any
investigation not a part of its regular business routine, or (C) to disclose
any other information.


 


[Signature
pages follow]


 


39

















 


ACKNOWLEDGMENT


 


Each Borrower
and each Guarantor hereby acknowledges that it has received a copy of this
Agreement and consents thereto, agrees to recognize all rights granted thereby
to the ABL Agent, the ABL Lenders, the Term Agent, and the Term Lenders and
will not do any act or perform any obligation which is not in accordance with
the agreements set forth in this Agreement. Each Borrower and each Guarantor
further acknowledges and agrees that it is not an intended beneficiary or third
party beneficiary under this Agreement.


 


BORROWERS:


 


 


	
   

  	
  HERTZ
  EQUIPMENT RENTAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Harold E. Rolfe

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Vice President & Secretary

  
					



 


 


	
   

  	
  THE HERTZ
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Harold E. Rolfe

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
  General Counsel & Secretary

  	
   

  
						



 


 


	
   

  	
  MATTHEWS
  EQUIPMENT LIMITED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Harold E. Rolfe

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Secretary

  
					



 


 


	
   

  	
  WESTERN
  SHUT-DOWN (1995) LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Harold E. Rolfe

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
					



 

















 


GUARANTORS:


 


 


	
   

  	
  CCMG
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 
  Theresa A. Gore

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Theresa A. Gore

  	
   

  
	
   

  	
  Title:

  	
  Vice President and Assistant Secretary

  	
   

  
						



 


 


	
   

  	
  BRAE HOLDING
  CORP.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 
  Harold E. Rolfe

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Vice President & Secretary

  	
   

  
						



 


 


	
   

  	
  HERTZ CLAIM
  MANAGEMENT CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 
  Harold E. Rolfe

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Assistant Secretary

  	
   

  
						



 


 


	
   

  	
  HCM
  MARKETING CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 
  Harold E. Rolfe

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Assistant Secretary

  	
   

  
						



 

















 


	
   

  	
  HERTZ LOCAL
  EDITION CORP.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 
  Harold E. Rolfe

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Secretary

  	
   

  
						



 


 


	
   

  	
  HERTZ LOCAL
  EDITION TRANSPORTING, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 
  Harold E. Rolfe

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Secretary

  	
   

  
						



 


 


	
   

  	
  HERTZ GLOBAL
  SERVICES CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 
  Harold E. Rolfe

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Vice President & Secretary

  	
   

  
						



 


 


	
   

  	
  HERTZ
  SYSTEM, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 
  Harold E. Rolfe

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Vice President & Secretary

  	
   

  
						



 


 


	
   

  	
  HERTZ
  TECHNOLOGIES, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 
  Harold E. Rolfe

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Secretary

  	
   

  
						



 

















 


	
   

  	
  HERTZ
  TRANSPORTING, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 
  Harold E. Rolfe

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Vice President & Secretary

  	
   

  
						



 


 


	
   

  	
  SMARTZ
  VEHICLE RENTAL CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 
  Harold E. Rolfe

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Harold E. Rolfe

  	
   

  
	
   

  	
  Title:

  	
  Vice President & Secretary

  	
   

  
						



 

















 


IN WITNESS
WHEREOF, the ABL Agent, for and on behalf of itself and the ABL Lenders, and
the Term Agent, for and on behalf of itself and the Term Lenders, have caused
this Agreement to be duly executed and delivered as of the date first above
written.


 


	
   

  	
  DEUTSCHE BANK AG, NEW YORK

  BRANCH, in its capacity as the ABL Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 
  Marguerite Sutton

  	
   

  
	
   

  	
  Name:

  	
  Marguerite Sutton

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


 


	
   

  	
  By:

  	
  /s/ 
  Evelyn Thierry

  	
   

  
	
   

  	
  Name:

  	
  Evelyn Thierry

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


 


	
   

  	
  DEUTSCHE BANK AG, NEW YORK

  BRANCH, in its capacity as the Term Agent

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 
  Marguerite Sutton

  	
   

  
	
   

  	
  Name:

  	
  Marguerite Sutton

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


 


	
   

  	
  By:

  	
  /s/ 
  Evelyn Thierry

  	
   

  
	
   

  	
  Name:

  	
  Evelyn Thierry

  	
   

  
	
   

  	
  Title:

  	
  Vice President