Exhibit 10.11


 


Execution Copy


 


CREDIT AGREEMENT


 


dated as of June 14, 2006


 


among


 


VANGUARD CAR RENTAL USA HOLDINGS INC., 


as US Borrower,


 


NATIONAL CAR RENTAL (CANADA) INC., 


as Canadian Borrower,


 


VARIOUS LENDERS, 


 


GOLDMAN SACHS CREDIT PARTNERS L.P.,


 


J.P. MORGAN SECURITIES INC. 


 


and


 


LEHMAN BROTHERS INC., 


as Sole Joint Lead Arrangers and Joint Bookrunners,


 


GOLDMAN SACHS CREDIT PARTNERS L.P. 


 


and


 


JPMORGAN CHASE BANK, N.A., 


as Co-Syndication Agents,


 


LEHMAN COMMERCIAL PAPER INC.,


 


BANK OF MONTREAL


 


and


 


WACHOVIA BANK, NATIONAL ASSOCIATION,


as Co-Documentation Agents


 


BANK OF MONTREAL 


as Canadian Agent


 


and


 


GOLDMAN SACHS CREDIT PARTNERS L.P., 


as Administrative Agent


 


$975,000,000 Senior Secured Credit Facilities


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 1. DEFINITIONS

  	
  1

  
	
   

  	
  1.1.

  	
  Defined Terms

  	
  1

  
	
   

  	
  1.2.

  	
  Other Definitional
  Provisions

  	
  30

  
	
   

  	
  1.3.

  	
  Exchange Rates; Currency
  Equivalents

  	
  30

  
	
   

  	
  1.4.

  	
  Accounting Terms

  	
  30

  
	
   

  	
  1.5.

  	
  Interpretation, etc.

  	
  31

  
	
   

  	
   

  	
   

  
	
  Section 2. AMOUNT AND
  TERMS OF COMMITMENTS

  	
  31

  
	
   

  	
  2.1.

  	
  Term Loan Commitments

  	
  31

  
	
   

  	
  2.2.

  	
  Procedure for Term Loan
  Borrowing

  	
  31

  
	
   

  	
  2.3.

  	
  Repayment of Term Loans

  	
  31

  
	
   

  	
  2.4.

  	
  Revolving Credit
  Commitments

  	
  32

  
	
   

  	
  2.5.

  	
  Procedure for Revolving
  Credit Borrowing

  	
  33

  
	
   

  	
  2.6.

  	
  Swing Line Commitment

  	
  37

  
	
   

  	
  2.7.

  	
  Procedure for Swing Line
  Borrowing; Refunding of Swing Line Loans

  	
  37

  
	
   

  	
  2.8.

  	
  Repayment of Loans;
  Evidence of Debt

  	
  39

  
	
   

  	
  2.9.

  	
  Commitment Fees, etc

  	
  40

  
	
   

  	
  2.10.

  	
  Termination or Reduction
  of Revolving Credit Commitments

  	
  40

  
	
   

  	
  2.11.

  	
  Optional Prepayments

  	
  40

  
	
   

  	
  2.12.

  	
  Mandatory Prepayments

  	
  41

  
	
   

  	
  2.13.

  	
  Conversion and
  Continuation Options

  	
  42

  
	
   

  	
  2.14.

  	
  Minimum Amounts and
  Maximum Number of Eurodollar Tranches

  	
  43

  
	
   

  	
  2.15.

  	
  Interest Rates and Payment
  Dates

  	
  44

  
	
   

  	
  2.16.

  	
  Computation of Interest
  and Fees

  	
  45

  
	
   

  	
  2.17.

  	
  Inability to Determine
  Interest Rate

  	
  46

  
	
   

  	
  2.18.

  	
  Pro Rata Treatment and
  Payments

  	
  46

  
	
   

  	
  2.19.

  	
  Requirements of Law

  	
  48

  
	
   

  	
  2.20.

  	
  Taxes

  	
  50

  
	
   

  	
  2.21.

  	
  Indemnity

  	
  52

  
	
   

  	
  2.22.

  	
  Illegality

  	
  52

  
	
   

  	
  2.23.

  	
  Change of Lending Office

  	
  53

  
	
   

  	
  2.24.

  	
  Removal or Replacement of
  a Lender

  	
  53

  
	
   

  	
   

  	
   

  
	
  Section 3. LETTERS OF
  CREDIT

  	
  54

  
	
   

  	
  3.1.

  	
  L/C Commitment

  	
  54

  
	
   

  	
  3.2.

  	
  Procedure for Issuance of
  Letter of Credit

  	
  54

  
	
   

  	
  3.3.

  	
  Fees and Other Charges

  	
  55

  
	
   

  	
  3.4.

  	
  L/C Participations

  	
  56

  
	
   

  	
  3.5.

  	
  Reimbursement Obligation
  of the Borrower

  	
  58

  
	
   

  	
  3.6.

  	
  Obligations Absolute

  	
  59

  
	
   

  	
  3.7.

  	
  Letter of Credit Payments

  	
  59

  
	
   

  	
  3.8.

  	
  Applications

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 4. REPRESENTATIONS
  AND WARRANTIES

  	
  60

  
	
   

  	
  4.1.

  	
  Financial Condition

  	
  60

  
	
   

  	
  4.2.

  	
  No Change

  	
  61

  
	
   

  	
  4.3.

  	
  Corporate Existence;
  Compliance with Law

  	
  61

  



 


i

















 


	
   

  	
  4.4.

  	
  Corporate Power;
  Authorization; Enforceable Obligations

  	
  61

  
	
   

  	
  4.5.

  	
  No Legal Bar

  	
  62

  
	
   

  	
  4.6.

  	
  No Material Litigation

  	
  62

  
	
   

  	
  4.7.

  	
  No Default

  	
  62

  
	
   

  	
  4.8.

  	
  Ownership of Property;
  Liens

  	
  62

  
	
   

  	
  4.9.

  	
  Intellectual Property

  	
  62

  
	
   

  	
  4.10.

  	
  Taxes

  	
  62

  
	
   

  	
  4.11.

  	
  Federal Regulations

  	
  62

  
	
   

  	
  4.12.

  	
  Labor Matters

  	
  63

  
	
   

  	
  4.13.

  	
  Pension and Benefit Plans

  	
  63

  
	
   

  	
  4.14.

  	
  Investment Company Act;
  Other Regulations

  	
  64

  
	
   

  	
  4.15.

  	
  Subsidiaries

  	
  64

  
	
   

  	
  4.16.

  	
  Use of Proceeds

  	
  64

  
	
   

  	
  4.17.

  	
  Environmental Matters

  	
  64

  
	
   

  	
  4.18.

  	
  Accuracy of Information,
  etc

  	
  65

  
	
   

  	
  4.19.

  	
  Security Documents

  	
  66

  
	
   

  	
  4.20.

  	
  Solvency

  	
  67

  
	
   

  	
  4.21.

  	
  Regulation H

  	
  67

  
	
   

  	
  4.22.

  	
  Deposit Accounts

  	
  67

  
	
   

  	
   

  	
   

  
	
  Section 5. CONDITIONS
  PRECEDENT

  	
  67

  
	
   

  	
  5.1.

  	
  Conditions to Initial
  Extension of Credit

  	
  67

  
	
   

  	
  5.2.

  	
  Conditions to Each
  Extension of Credit

  	
  70

  
	
   

  	
   

  	
   

  
	
  Section 6. AFFIRMATIVE
  COVENANTS

  	
  70

  
	
   

  	
  6.1.

  	
  Financial Statements

  	
  70

  
	
   

  	
  6.2.

  	
  Certificates; Other
  Information

  	
  71

  
	
   

  	
  6.3.

  	
  Payment of Obligations

  	
  72

  
	
   

  	
  6.4.

  	
  Conduct of Business and
  Maintenance of Existence; Compliance

  	
  72

  
	
   

  	
  6.5.

  	
  Maintenance of Property;
  Insurance

  	
  72

  
	
   

  	
  6.6.

  	
  Inspection of Property;
  Books and Records; Discussions

  	
  73

  
	
   

  	
  6.7.

  	
  Notices

  	
  73

  
	
   

  	
  6.8.

  	
  Environmental Laws

  	
  74

  
	
   

  	
  6.9.

  	
  Interest Rate Protection

  	
  .74

  
	
   

  	
  6.10.

  	
  Additional Collateral, etc

  	
  74

  
	
   

  	
  6.11.

  	
  Further Assurances

  	
  75

  
	
   

  	
  6.12.

  	
  Ratings

  	
  75

  
	
   

  	
  6.13.

  	
  Cash Management

  	
  75

  
	
   

  	
  6.14.

  	
  Post Closing Matters

  	
  76

  
	
   

  	
   

  	
   

  
	
  Section 7. NEGATIVE
  COVENANTS

  	
  76

  
	
   

  	
  7.1.

  	
  Financial Condition
  Covenants

  	
  76

  
	
   

  	
  7.2.

  	
  Limitation on Indebtedness

  	
  77

  
	
   

  	
  7.3.

  	
  Limitation on Liens

  	
  79

  
	
   

  	
  7.4.

  	
  Limitation on Fundamental
  Changes

  	
  81

  
	
   

  	
  7.5.

  	
  Limitation on Disposition
  of Property

  	
  82

  
	
   

  	
  7.6.

  	
  Limitation on Restricted
  Payments

  	
  83

  
	
   

  	
  7.7.

  	
  Limitation on Capital
  Expenditures

  	
  84

  
	
   

  	
  7.8.

  	
  Limitation on Investments

  	
  84

  
	
   

  	
  7.9.

  	
  Limitation on Transactions
  with Affiliates

  	
  86

  
	
   

  	
  7.10.

  	
  Limitation on Sales and
  Leasebacks

  	
  87

  



 


ii

















 


	
   

  	
  7.11.

  	
  Limitation on Changes in
  Fiscal Periods

  	
  87

  
	
   

  	
  7.12.

  	
  Limitation on Negative
  Pledge Clauses

  	
  87

  
	
   

  	
  7.13.

  	
  Limitation on Restrictions
  on Subsidiary Distributions

  	
  88

  
	
   

  	
  7.14.

  	
  Limitation on Lines of
  Business

  	
  88

  
	
   

  	
  7.15.

  	
  Limitation on Hedge
  Agreements

  	
  88

  
	
   

  	
  7.16.

  	
  Permitted Vehicle
  Indebtedness

  	
  89

  
	
   

  	
   

  	
   

  
	
  Section 8. EVENTS OF
  DEFAULT

  	
  89

  
	
   

  	
   

  	
   

  
	
  Section 9. THE AGENTS

  	
  93

  
	
   

  	
  9.1.

  	
  Appointment

  	
  93

  
	
   

  	
  9.2.

  	
  Delegation of Duties

  	
  93

  
	
   

  	
  9.3.

  	
  Exculpatory Provisions

  	
  93

  
	
   

  	
  9.4.

  	
  Reliance by Agents

  	
  93

  
	
   

  	
  9.5.

  	
  Notice of Default

  	
  94

  
	
   

  	
  9.6.

  	
  Non-Reliance on Agents and
  Other Lenders

  	
  94

  
	
   

  	
  9.7.

  	
  Indemnification

  	
  94

  
	
   

  	
  9.8.

  	
  Agent in Its Individual
  Capacity

  	
  95

  
	
   

  	
  9.9.

  	
  Successor Agents

  	
  95

  
	
   

  	
  9.10.

  	
  Authorization to Release
  Liens and Guarantees

  	
  96

  
	
   

  	
  9.11.

  	
  The Arrangers; the
  Syndication Agents; the Documentation Agent; the Joint Bookrunners

  	
  96

  
	
   

  	
  9.12.

  	
  Withholding Tax

  	
  96

  
	
   

  	
   

  	
   

  
	
  Section 10. MISCELLANEOUS

  	
  97

  
	
   

  	
  10.1.

  	
  Amendments and Waivers

  	
  97

  
	
   

  	
  10.2.

  	
  Notices

  	
  98

  
	
   

  	
  10.3.

  	
  No Waiver; Cumulative
  Remedies

  	
  101

  
	
   

  	
  10.4.

  	
  Survival of
  Representations and Warranties

  	
  101

  
	
   

  	
  10.5.

  	
  Payment of Expenses

  	
  101

  
	
   

  	
  10.6.

  	
  Successors and Assigns;
  Participations and Assignments

  	
  102

  
	
   

  	
  10.7.

  	
  Adjustments; Set-off

  	
  106

  
	
   

  	
  10.8.

  	
  Counterparts

  	
  106

  
	
   

  	
  10.9.

  	
  Severability

  	
  106

  
	
   

  	
  10.10.

  	
  Integration

  	
  107

  
	
   

  	
  10.11.

  	
  GOVERNING LAW

  	
  107

  
	
   

  	
  10.12.

  	
  Submission To
  Jurisdiction; Waivers

  	
  107

  
	
   

  	
  10.13.

  	
  Acknowledgments

  	
  107

  
	
   

  	
  10.14.

  	
  Confidentiality

  	
  108

  
	
   

  	
  10.15.

  	
  Release of Collateral and
  Guarantee Obligations

  	
  108

  
	
   

  	
  10.16.

  	
  Accounting Changes

  	
  109

  
	
   

  	
  10.17.

  	
  Authorization to Enter
  Into Standstill Letter

  	
  109

  
	
   

  	
  10.18.

  	
  WAIVERS OF JURY TRIAL

  	
  109

  
	
   

  	
  10.19.

  	
  Judgment Currency

  	
  110

  



 


iii

















 


	
  ANNEXES:

  	
   

  	
   

  
	
  A

  	
  Pricing Grid

  	
   

  
	
  B-l

  	
  Term Loan Commitments

  	
   

  
	
  B-2

  	
  US Revolving Credit
  Commitments

  	
   

  
	
  B-3

  	
  Canadian Revolving
  Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULES:

  	
   

  
	
   

  	
   

  
	
  1.1A

  	
  Mortgaged Properties

  	
   

  
	
  1.1B

  	
  Real Property

  	
   

  
	
  1.1C

  	
  Finance Companies

  	
   

  
	
  1.1D

  	
  Specified Hedge Agreements

  	
   

  
	
  1.1E

  	
  Existing Letters of Credit

  	
   

  
	
  4.4

  	
  Consents, Authorizations,
  Filings and Notices

  	
   

  
	
  4.9

  	
  Intellectual Property

  	
   

  
	
  4.15

  	
  Subsidiaries

  	
   

  
	
  4.19(a)-l

  	
  UCC Filing Jurisdictions

  	
   

  
	
  4.19(a)-2

  	
  UCC Financing Statements
  to Remain on File

  	
   

  
	
  4.19(a)-3

  	
  Financing Statements Under
  Personal Property Security Legislation

  	
   

  
	
  4.l9(a)-4

  	
  UCC Financing Statements
  to be Terminated

  	
   

  
	
  4.19(c)

  	
  Mortgage Filing
  Jurisdictions

  	
   

  
	
  5.1(d)

  	
  Organizational Structure
  and Capital Structure

  	
   

  
	
  6.14

  	
  Post Closing Matters

  	
   

  
	
  7.2(m)

  	
  Existing Indebtedness

  	
   

  
	
  7.3(e)

  	
  Existing Liens

  	
   

  
	
  7.9(e)

  	
  Affiliate Transactions

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  A-l

  	
  Form of Guarantee and
  Collateral Agreement

  	
   

  
	
  A-2

  	
  Form of Direct Parent
  Pledge Agreement

  	
   

  
	
  A-3

  	
  Form of Canadian
  Collateral Agreement

  	
   

  
	
  B

  	
  Form of Compliance
  Certificate

  	
   

  
	
  C

  	
  Form of Closing
  Certificate

  	
   

  
	
  D

  	
  Form of Mortgage

  	
   

  
	
  E

  	
  Form of Assignment and
  Acceptance

  	
   

  
	
  F-l

  	
  Form of Legal Opinion of
  Schulte Roth & Zabel LLP

  	
   

  
	
  F-2

  	
  Form of Legal Opinion of
  Cassels, Brock & Blackwell LLP

  	
   

  
	
  F-3

  	
  Form of Legal Opinion of
  Tripp Scott, P.A.

  	
   

  
	
  G-1

  	
  Form of Term Note

  	
   

  
	
  G-2

  	
  Form of US Revolving
  Credit Note

  	
   

  
	
  G-3

  	
  Form of Swing Line Note

  	
   

  
	
  G-4

  	
  Form of Canadian Revolving
  Credit Note

  	
   

  
	
  G-5

  	
  Form of Parent Promissory
  Note

  	
   

  
	
  G-6

  	
  Form of Discount Note

  	
   

  
	
  H

  	
  Form of Exemption
  Certificate

  	
   

  
	
  I

  	
  Form of Borrowing Notice

  	
   

  
	
  J

  	
  Form of Lender Addendum

  	
   

  
	
  K

  	
  Form of Standstill Letter

  	
   

  



 


iv

















 


CREDIT AGREEMENT


 


This
CREDIT AGREEMENT, dated as of June 14, 2006, is entered into by and among
VANGUARD CAR RENTAL USA HOLDINGS INC., a Delaware corporation (the “US
Borrower”), NATIONAL CAR RENTAL (CANADA) INC., an Ontario corporation (the “Canadian
Borrower”), the several banks and other financial institutions or entities
from time to time parties to this Agreement (the “Lenders”), GOLDMAN
SACHS CREDIT PARTNERS L.P. (“GSCP”), J.P. MORGAN SECURITIES INC. (“JPMorgan”)
and LEHMAN BROTHERS INC. (“Lehman Brothers”), as Sole Joint Lead
Arrangers and Joint Bookrunners (together in such capacity, the “Arrangers”),
GSCP and JP MORGAN CHASE BANK, N.A. (“JPMCB”), as Co-Syndication Agents
(together in such capacity, the “Syndication Agents”), LEHMAN COMMERCIAL
PAPER INC., BANK OF MONTREAL and WACHOVIA BANK, NATIONAL ASSOCIATION, as
Co-Documentation Agents (together in such capacity, the “Documentation
Agents”), BANK OF MONTREAL, as Canadian Agent, (together with its permitted
successors in such capacity, the “Canadian Agent”) and GSCP, as
Administrative Agent (together with its permitted successors in such capacity,
the “Administrative Agent”).


 


SECTION
1. DEFINITIONS


 


1.1.          Defined Terms. As used in this
Agreement, the terms listed in this Section 1.1 shall have the respective
meanings set forth in this Section 1.1.


 


“Acceptance
Fee”: as defined in Section 2.15(d).


 


“Acquisition”:
any acquisition, whether in a single transaction or series of related
transactions, by the US Borrower or any Subsidiary of (a) all or a substantial
part of the assets, or of a business, unit or divisions, of any Person, whether
through the purchase of assets or securities, by merger or otherwise; (b) any
Person that becomes a Subsidiary after giving effect to such acquisition; or
(c) control (as defined in clause (b) of the definition of “Affiliate”) of a
partnership, joint venture or other Person.


 


“Adjustment
Date”: as defined in the Pricing Grid. 


 


“Administrative
Agent”: as defined in the preamble hereto.


 


“Affiliate”:
as to any Person, any other Person that, 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 10% or more of the securities having ordinary
voting power for the election of directors (or persons performing similar
functions) of such Person (other than securities having such power only upon
the occurrence of a contingency which has not yet occurred) or (b) direct or
cause the direction of the management and policies of such Person, whether by
contract or otherwise.


 


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


 


“Aggregate
Exposure”: with respect to any Lender at any time, an amount equal to (a) until
the Closing Date, the aggregate amount of such Lender’s Commitments at such
time and (b) thereafter, the sum of (i) the aggregate then unpaid principal
amount of such Lender’s Term Loans, (ii) the amount of such Lender’s US Revolving
Credit Commitment then in effect or, if the US Revolving Credit Commitments
have been terminated, the amount of such Lender’s US Revolving Extensions of Credit
then outstanding and (iii) the amount of such Lender’s Canadian Revolving
Credit Commitment


 

















 


then in effect or, if the
Canadian Revolving Credit Commitments have been terminated, the amount of such
Lender’s Canadian Revolving Extensions of Credit then outstanding.


 


“Aggregate
Exposure Percentage”: with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lender’s Aggregate Exposure at such time to
the sum of the Aggregate Exposures of all Lenders at such time.


 


“Agreement”:
this Credit Agreement, dated as of June 14, 2006, as amended, supplemented or
otherwise modified from time to time.


 


“Applicable
Margin”: for each Type of Loan under each Facility, the rate per annum set
forth opposite such Facility under the relevant column heading below:


 


	
   

  	
   

  	
  Base Rate

  Loans

  	
   

  	
  Eurodollar Loans

  	
   

  	
  Canadian

  Prime Rate

  Loans

  	
   

  	
  Acceptance

  Fee

  	
   

  
	
  US Revolving Credit Facility (including Swing Line Loans)

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  	
  N/A

  	
   

  	
  N/A

  	
   

  
	
  Term
  Loan Facility

  	
   

  	
  2.00

  	
  %

  	
  3.00

  	
  %

  	
  N/A

  	
   

  	
  N/A

  	
   

  
	
  Canadian
  Revolving Credit Facility

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  1.50

  	
  %

  	
  2.50

  	
  %

  



 


provided, that, on and after the first Adjustment
Date occurring after the completion of two full fiscal quarters of the US
Borrower after the Closing Date, the Applicable Margins with respect to US
Revolving Credit Loans, Canadian Revolving Credit Loans and Swing Line Loans
will be determined pursuant to the Pricing Grid set forth on Annex A.


 


“Application”:
an application, in such form as the relevant Issuing Lender may specify from
time to time, requesting such Issuing Lender to issue a Letter of Credit.


 


“Arrangers”:
as defined in the preamble hereto.


 


“Asset
Sale”: any Disposition of Property or series of related Dispositions of
Property (excluding any such Disposition permitted by Section 7.5(a), Section
7.5(b), Section 7.5(c), Section 7.5(d), Section 7.5(e), Section 7.5(g), Section


7.5(h), Section 7.5(i), Section 7.5(j), Section 7.5(l), or Section 7.5(m)),
which yields gross proceeds to the US Borrower or any of its Subsidiaries
(valued at the initial principal amount thereof in the case of non-cash
proceeds consisting of notes or other debt securities and valued at fair market
value in the case of other non-cash proceeds) in excess of $2,000,000.


 


“Assignee”:
as defined in Section 10.6(c). 


 


“Assignor”:
as defined in Section 10.6(c).


 


“Available
Canadian Revolving Credit Commitment”: with respect to any Canadian
Revolving Credit Lender at any time, an amount equal to the excess, if any, of
(a) such Lender’s Canadian Revolving Credit Commitment then in effect over
(b) such Lender’s Canadian Revolving Extensions of Credit then outstanding.


 


2

















 


“Available
US Revolving Credit Commitment”: with respect to any US Revolving Credit
Lender at any time, an amount equal to the excess, if any, of (a) such Lender’s
US Revolving Credit Commitment then in effect over (b) such Lender’s US
Revolving Extensions of Credit and Canadian Revolving Extensions of Credit
(converted to Dollars at the Exchange Rate) then outstanding; provided,
that in calculating any Lender’s US Revolving Extensions of Credit for the
purpose of determining such Lender’s Available US Revolving Credit Commitment
pursuant to Section 2.9(a), the aggregate principal amount of Swing Line Loans
then outstanding shall be deemed to be zero.


 


“BA
Equivalent Loan”: a Canadian Revolving Credit Loan made by a Non BA Lender
evidenced by a Discount Note.


 


“Banker’s
Acceptance”: means a bill of exchange, including a depository bill issued
in accordance with the Depository Bills and Notes Act (Canada), denominated in
Canadian Dollars, drawn by the Canadian Borrower and accepted by a Canadian
Revolving Credit Lender and includes a Discount Note.


 


“Base
Rate”: means, for any day, a rate per annum equal to the greater of (i) the
Prime Rate in effect on such day and (ii) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective on the
effective day of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.


 


“Base
Rate Loans”: Loans for which the applicable rate of interest is based upon
the Base Rate.


 


“Benefited
Lender”: as defined in Section 10.7.


 


“Board”:
the Board of Governors of the Federal Reserve System of the United States (or
any successor).


 


“Borrower”:
the US Borrower or the Canadian Borrower.


 


“Borrowing
Date”: any Business Day specified by the US Borrower or Canadian Borrower,
as applicable, as a date on which the US Borrower or the Canadian Borrower, as
applicable, requests the relevant Lenders to make Loans hereunder.


 


“Borrowing
Notice”: with respect to any request for borrowing of Loans hereunder, a
notice from or on behalf of the US Borrower or the Canadian Borrower,
substantially in the form of, and containing the information prescribed by,
Exhibit I, delivered to the Administrative Agent or the Canadian Agent, as
applicable.


 


“Business
Day”: (a) for all purposes other than as covered by clause (b) below, a day
other than a Saturday, Sunday or other day on which commercial banks in New
York City, New York and, in the case of any Canadian Revolving Credit Loans and
Canadian Letters of Credit, Toronto, Canada, are authorized or required by law
to close and (b) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (a) and which is also a day for
trading by and between banks in Dollar deposits and, in the case of any
Canadian Revolving Credit Loans and Canadian Letters of Credit, Canadian Dollar
deposits in the London interbank euro dollar market.


 


“Canadian
Agent”: as defined in the preamble hereto.


 


3

















 


“Canadian
Benefit Plans”: all material employee benefit plans maintained or
contributed to by the Canadian Borrower that are not Canadian Pension Plans
including all profit sharing, savings, supplemental retirement, retiring
allowance, severance, pension, deferred compensation, welfare, bonus, incentive
compensation, phantom stock, supplementary unemployment benefit plans or
arrangements and all material life, health, dental and disability plans and
arrangements in which the employees or former employees of the Canadian
Borrower participate or are eligible to participate, but excluding all stock
option or stock purchase plans.


 


“Canadian
Borrower”: as defined in the preamble hereto.


 


“Canadian
Collateral”: all Property of the Canadian Borrower and any Property of
Alamo Rent-A-Car (Canada) Inc., a Florida corporation, that is located in
Canada, in each case now owned or hereafter acquired, upon which a Lien is
purported to be created by any Canadian Collateral Agreement, but does not
include any interest the Canadian Borrower has in the NT Limited Partnership as
more specifically set out in its Canadian Collateral Agreement.


 


“Canadian
Collateral Agreements”: (i) the General Security Agreement to be executed
and delivered by the Canadian Borrower and the General Security Agreement to be
executed and delivered by the Alamo Rent-A-Car (Canada) Inc., a Florida
corporation, in each case substantially in the form of Exhibit A-3 and (ii) any
additional agreements delivered to establish a security interest in the
Canadian Collateral.


 


“Canadian
Dollars” and “Cdn. $”: lawful currency of Canada.


 


“Canadian
Dollar Equivalent”: at any time, with respect to any amount denominated in
Dollars, the equivalent amount thereof in Canadian Dollars as determined by the
Administrative Agent at such time on the basis of the Exchange Rate (determined
in respect of the most recent Revaluation Date) for the purchase of Canadian
Dollars with Dollars.


 


“Canadian
Funding Office”: the office specified from time to time by the Canadian
Agent as its funding office by notice to the Canadian Borrower, the
Administrative Agent and the Lenders.


 


“Canadian
Issuing Lender”: any Canadian Revolving Credit Lender from time to time
designated by the US Borrower or the Canadian Borrower as a Canadian Issuing
Lender with the consent of such Canadian Revolving Credit Lender and the
Canadian Agent; provided that no Non-Canadian  Lender shall become a Canadian Issuing
Lender.


 


“Canadian
L/C Commitment”: $25,000,000.


 


“Canadian
L/C Obligations”: at any time, an amount equal to the sum of (a) the then
aggregate undrawn and unexpired amount of the then outstanding Canadian Letters
of Credit and (b) the aggregate amount of drawings under the Canadian Letters
of Credit that have not then been reimbursed pursuant to Section 3.5.


 


“Canadian
L/C Participants”: with respect to any Canadian Letter of Credit, the
collective reference to the Canadian Revolving Credit Lenders other than the
Canadian Issuing Lender that issued such Canadian Letter of Credit.


 


“Canadian
Letters of Credit”: as defined in Section 3.1 (b).


 


4

















 


“Canadian
Obligations”: the unpaid principal of and interest on (including interest
accruing after the maturity of the Canadian Revolving Credit Loans and Canadian
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, bankruptcy,
reorganization, arrangement or like proceeding, relating to the Canadian
Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the Canadian Revolving Credit Loans, the Canadian
Reimbursement Obligations and all other obligations and liabilities of the
Canadian Borrower to the Administrative Agent, the Canadian Agent or to any
Canadian Revolving Credit Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with this Agreement, any other Loan
Document, the Canadian Letters of Credit, or any other document made, delivered
or given in connection herewith or therewith by the Canadian Borrower, whether
on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including all fees, charges and disbursements of
counsel to the Canadian Agent or to any Canadian Revolving Credit Lender
required to be paid by the Canadian Borrower pursuant hereto) or otherwise, in
all cases in respect of the Canadian Revolving Credit Facility only.


 


“Canadian
Payment Office”: the office specified from time to time by the Canadian
Agent as its payment office by notice to the Canadian Borrower and the Canadian
Revolving Credit Lenders.


 


“Canadian
Pension Plans”: any plan which is considered to be a pension plan for the
purposes of any applicable pension benefits standards statute and/or regulation
in Canada established, maintained or contributed to by the Canadian Borrower
(for the benefit of Canadian employees), or the Canadian employees or former
Canadian employees.


 


“Canadian
Prime Rate”: on any day, the greater of (a) the annual rate of interest
announced from time to time by the Canadian Agent as being its reference rate
then in effect for determining interest rates on Canadian Dollar denominated
commercial loans made by it in Canada and (b) the CDOR Rate in effect from time
to time plus 75 basis points per annum. Any change in the Canadian Prime Rate
shall be effective as of the opening of business on the date the change becomes
effective generally. The Canadian Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate actually available.


 


“Canadian
Prime Rate Loans”: Canadian Revolving Credit Loans which are denominated in
Canadian Dollars and in respect of which the Canadian Borrower is obligated to
pay interest in accordance with Section 2.15 at the Canadian Prime Rate.


 


“Canadian
Reimbursement Obligations”: the Reimbursement Obligations owing by the
Canadian Borrower.


 


“Canadian
Required Lenders”: at any time, the holders of more than 50% the Total
Canadian Revolving Credit Commitments then in effect or, if the Canadian
Revolving Credit Commitments have been terminated, the Total Canadian Revolving
Extensions of Credit then  outstanding.


 


“Canadian
Revolving Credit Commitment”: as to any Canadian Revolving Credit Lender,
the obligation of such Canadian Revolving Credit Lender, if any, to make
Canadian Revolving Credit Loans and participate in and Canadian Letters of
Credit, in an aggregate principal and/or face amount not to exceed the amount
set forth under the heading “Canadian Revolving Credit Commitment” opposite
such Canadian Revolving Credit Lender’s name on Annex B-3, or, as the case may
be, in the


 


5

















 


Assignment and Acceptance
pursuant to which such Canadian Revolving Credit Lender became a party hereto,
as the same may be changed from time to time pursuant to the terms hereof. The
original aggregate amount of Canadian Revolving Credit Commitments is
$25,000,000.


 


“Canadian
Revolving Credit Commitment Period”: the period from and including the Closing
Date to the Canadian Revolving Credit Termination Date.


 


“Canadian
Revolving Credit Facility”: as defined in the definition of “Facility” in
this Section 1.1.


 


“Canadian
Revolving Credit Lender”: each Lender that has a Canadian Revolving Credit
Commitment or that is the holder of Canadian Revolving Credit Loans, including
the Canadian Issuing Lender and the Canadian Agent; provided that no
Non-Canadian Lender shall be Canadian Revolving Credit Lender.


 


“Canadian
Revolving Credit Loans”: as defined in Section 2.4(d).


 


“Canadian
Revolving Credit Percentage”: as to any Canadian Revolving Credit Lender at
any time, the percentage which such Canadian Revolving Credit Lender’s Canadian
Revolving Credit Commitment then constitutes of the aggregate Canadian Revolving
Credit Commitments (or, at any time after the Canadian Revolving Credit
Commitments shall have expired or terminated, the percentage which the
aggregate amount of such Canadian Revolving Credit Lender’s Canadian Revolving
Extensions of Credit then outstanding constitutes of the amount of the
aggregate Canadian Revolving Extensions of Credit then outstanding).


 


“Canadian
Revolving Credit Termination Date”: the sixth anniversary of the Closing
Date.


 


“Canadian
Revolving Extensions of Credit”: as to any Canadian Revolving Credit Lender
at any time, an amount equal to the sum of (a) the aggregate principal amount
of all Canadian Revolving Credit Loans made by such Canadian Revolving Credit
Lender then outstanding and (b) such Canadian Revolving Credit Lender’s
Canadian Revolving Credit Percentage of the Canadian L/C Obligations then
outstanding.


 


“Canadian
Subsidiaries”: the Canadian Borrower, National Car Rental System (Canada)
Inc. and each other Subsidiary of the Canadian Borrower, to the extent such Subsidiary
is organized under the laws of Canada or any province thereof.


 


“Capital
Expenditures”: for any period, with respect to any Person, the aggregate of
all expenditures by such Person for the acquisition or leasing (pursuant to a
capital lease) of fixed or capital assets or additions to equipment (including
replacements, capitalized repairs and improvements during such period) which
are required to be capitalized under GAAP on a balance sheet of such Person,
excluding, for the avoidance of doubt, the acquisition or leasing in the
ordinary course of business of buses and service vehicles (in an amount not to
exceed $5,000,000 for such period) and motor vehicles held for rental or lease
in the operation of such Person’s business, provided, that “Capital
Expenditures” shall not include any expenditures (i) for replacements and
substitutions for fixed assets, capital assets or equipment to the extent made
with proceeds of insurance received from a Recovery Event, (ii) which
constitute an Acquisition permitted under Section 7.8(j), or (iii) for
replacements and substitutions for fixed assets, capital assets or equipment to
the extent made with a Reinvestment Deferred Amount in accordance with Section
2.12(c).


 


6

















 


“Capital
Lease Obligations”: with respect to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP; and, for the
purposes of this Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.


 


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


 


“Cash
Collateralization Requirements”: any cash or Cash Equivalents provided as
credit enhancement or collateral for Permitted Vehicle Indebtedness based upon
the criteria of rating agencies, the lenders or providers of such Permitted
Vehicle Indebtedness, or any providers of other credit enhancement for such
Permitted Vehicle Indebtedness (including, any issuer of credit insurance or
letters of credit).


 


“Cash
Equivalents”: (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States or the Government of Canada
and backed by the full faith and credit of the United States of America or the
Government of Canada, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, eurodollar time
deposits or overnight bank deposits having maturities of one year or less from
the date of acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States of America or Canada or any state
or province thereof and having combined capital and surplus of not less than
$250,000,000; (c) commercial paper of an issuer rated at least A-2 by S&P
or P-2 by Moody’s, or carrying an equivalent rating by a nationally recognized
rating agency, if both of the named rating agencies cease publishing ratings of
commercial paper issuers generally, and maturing within nine months from the
date of acquisition; (d) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this definition,
having a term of not more than 90 days with respect to securities issued or
fully guaranteed or insured by the United States government or the Government
of Canada; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, province, commonwealth or
territory of the United States, or by any political subdivision or taxing
authority of the United States of America or Canada, the securities of which
state, province, commonwealth, territory, political subdivision or taxing
authority (as the case may be) are rated at least A by S&P or A by Moody’s;
(f) securities with maturities of six months or less from the date of
acquisition backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the requirements of clause (b) of this definition;
and (g) shares of money market mutual or similar funds which invest exclusively
in assets satisfying the requirements of clauses (a) through (f) of this
definition.


 


“Change
of Control”: the occurrence of any of the following events: (a) the Sponsor
shall fail to own beneficially (within the meaning of Rule 13d-5 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)), as in
effect on the Closing Date), directly or indirectly, in the aggregate Capital
Stock representing at least 51% (or, at any time from and after an IPO, at
least 30%) of (i) the aggregate ordinary voting power represented by the issued
and outstanding Capital Stock of the US Borrower and (ii) the common economic
interest represented by the issued and outstanding Capital Stock of the US
Borrower; or (b) any “person” or “group” (within the meaning of Rule 13d-5 of
the Exchange Act as in effect on the Closing Date), other than the Sponsor,
shall own beneficially (as defined above), directly or indirectly, in the
aggregate Capital Stock representing a greater percentage of the aggregate
ordinary voting power represented by the issued and outstanding Capital Stock
of the US Borrower than


 


7

















 


the percentage of such
ordinary voting power owned beneficially (as defined above) at such time by the
Sponsor; or (c) the board of directors of the US Borrower shall cease to
consist of a majority of Continuing Directors; or (d) 100% of each class of
outstanding Capital Stock of the US Borrower ceases to be owned and controlled,
of record and beneficially, directly free and clear of all Liens (except Liens
created by the Direct Parent Pledge Agreement) by the Direct Parent.


 


“CDOR
Rate”: on any day, the annual rate of interest which is the arithmetic
average of the rates for the applicable Interest Period for Canadian Dollar
Banker’s Acceptances issued by Schedule I Lenders identified as such on the
Reuters Screen CDOR Page at approximately 10:00 a.m. (Toronto time) on such day
(as adjusted by the Canadian Agent after 10:00 a.m. to reflect any error in any
posted rate or in the posted average annual rate). If the rate does not appear
on the Reuters Screen CDOR Page as contemplated above, then the CDOR Rate on
any day shall be calculated as the arithmetic average of the discount rates of
Canadian Dollar Banker’s Acceptances having a term equal to such Interest
Period of, and as quoted by, any two of the Schedule I Lenders, chosen by the
Canadian Agent in its discretion, as of 10:00 a.m. on the day, or if the day is
not a Business Day, then on the immediately preceding Business Day. If less than
two Lenders quote the aforementioned rate, the CDOR Rate shall be the rate
quoted by the Canadian Agent.


 


“Closing
Date”: the date on which the conditions precedent set forth in Section 5.1
shall have been satisfied, which is June 14, 2006.


 


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


 


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


 


“Commitment”:
with respect to any Lender, the sum of the Term Loan Commitment and the
Revolving Credit Commitment of such Lender.


 


“Commitment
Fee Rate”: 0.50% per annum; provided, that, on and after the first
Adjustment Date occurring after the completion of two full fiscal quarters of
the US Borrower after the Closing Date, the Commitment Fee Rate will be
determined pursuant to the Pricing Grid set forth on Annex A.


 


“Commonly
Controlled Entity”: any entity, whether or not incorporated, that is under
common control with the US Borrower within the meaning of Section 4001 of ERISA
or is part of a group that includes the US Borrower and that is treated as a
single employer under Section 414 of the  Code.


 


“Compliance
Certificate”: a certificate duly executed by a
Responsible Officer, substantially in the form of Exhibit B.


 


“Concentration
Account”: a deposit account that is, or becomes within 15 Business Days
after the Administrative Agent approves the applicable Deposit Account Control
Agreement, subject to a Deposit Account Control Agreement.


 


“Concentration
Account Depository” means the depositary bank which maintains the  Concentration Account.


 


“Confidential
Information Memorandum”: the Confidential Information Memorandum dated May
2006 and furnished to the initial Lenders in connection with the syndication of
the Facilities.


 


8

















 


“Consolidated
EBITDA After Fleet Costs”: of any Person for any period, Consolidated Net
Income of such Person and its Subsidiaries for such period plus, without
duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) income tax expense, (b)
non-vehicle related interest expense, amortization or write-off of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness, other than Permitted Vehicle
Indebtedness, (c) non-vehicle related depreciation and amortization expense,
(d) amortization of intangibles and organization costs, (e) any extraordinary,
unusual or non-recurring non-vehicle related non-cash expenses or losses
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, losses on sales of
assets outside of the ordinary course of business), (f) any other non-vehicle
related non-cash charges, and (g) any non-cash charges arising from
non-speculative Hedge Agreements relating to Permitted Vehicle Indebtedness,
and minus, without duplication and to the extent included in the
statement of such Consolidated Net Income for such period, the sum of (a)
non-vehicle related interest income (except to the extent already deducted from
non-vehicle related interest expense in determining such Consolidated Net
Income), (b) any extraordinary, unusual or non-recurring non-vehicle related
non-cash income or gains (including, whether or not otherwise includable as a
separate item in the statement of such Consolidated Net Income for such period,
gains on the sales of assets outside of the ordinary course of business), (c)
any other non-vehicle related non-cash income (except to the extent
representing the accrual of income in respect of cash received in a prior
period and not previously recognized in this definition in another period), (d)
any cash payments made during such period in respect of items described in
clauses (e), (f) and (g) above subsequent to the fiscal quarter in which the
relevant non-cash expenses, losses or charges were reflected in the statement
of Consolidated Net Income, and (e) non-cash gains arising from non-speculative
Hedge Agreements relating to Permitted Vehicle Indebtedness, all as determined
on a consolidated basis. Notwithstanding the foregoing, Consolidated EBITDA
After Fleet Costs shall be deemed to be $98,300,000, $26,500,000, and
$26,600,000 for the fiscal quarters of the US Borrower ended September 30,
2005, December 31, 2005 and March 31, 2006, respectively.


 


“Consolidated
Net Income”: of any Person for any period, the consolidated net income (or
loss) of such Person and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP; provided, that in
calculating Consolidated Net Income of the US Borrower and its consolidated
Subsidiaries for any period, there shall be excluded (a) the income (or
deficit) of any Person accrued prior to the date it becomes a Subsidiary of the
US Borrower or is merged into or consolidated with the US Borrower or any of
its Subsidiaries, (b) the income (or deficit) of any Person (other than a Subsidiary
of the US Borrower) in which the US Borrower or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is actually
received in cash by the US Borrower or such Subsidiary in the form of dividends
or similar distributions and (c) the undistributed earnings of any Subsidiary
of the US Borrower to the extent that the declaration or payment of dividends
or similar distributions by such Subsidiary is not at the time permitted by the
terms of any Contractual Obligation (other than under any Loan Document) or
Requirement of Law applicable to such Subsidiary.


 


“Consolidated
Non-Vehicle Interest Coverage Ratio”:  for any period, the ratio of (a) Consolidated
EBITDA After Fleet Costs of the US Borrower and its Subsidiaries for such
period to (b) Consolidated Non-Vehicle Interest Expense of the US Borrower and
its Subsidiaries for such period.


 


“Consolidated
Non-Vehicle Interest Expense”: of any Person for any period, total cash
interest expense (including that attributable to Capital Lease Obligations) of
such Person and its Subsidiaries for such period with respect to all
outstanding Indebtedness of such Person and its Subsidiaries other than
Permitted Vehicle Indebtedness (including, all commissions, discounts and other
fees and charges owed by such Person with respect to letters of credit and
bankers’ acceptance financing and net costs of such Person under Hedge
Agreements in respect of interest rates to the extent such net


 


9

















 


costs are allocable to such
period in accordance with GAAP) minus non-vehicle cash interest income for such
period (to the extent not already deducted from interest expense); provided,
that for the purposes of determining Consolidated Non-Vehicle Interest Expense
for the fiscal quarters of such Person ending September 30, 2006, December 31,
2006 and March 31, 2007, Consolidated Non-Vehicle Interest Expense for the
relevant period shall be deemed to equal Consolidated Non-Vehicle Interest
Expense for such fiscal quarter (and, in the case of the latter two such
determinations, each previous fiscal quarter commencing after the Closing Date)
multiplied by 4, 2 and 4/3, respectively.


 


“Consolidated
Non-Vehicle Leverage Ratio”: as at the last day of any period of four
consecutive fiscal quarters of the US Borrower, the ratio of (a) Consolidated
Total Non-Vehicle Debt on such day to (b) Consolidated EBITDA After Fleet Costs
of the US Borrower and its Subsidiaries for such period; provided, that
for purposes of calculating Consolidated EBITDA After Fleet Costs of the US
Borrower and its Subsidiaries for any period, (i) the Consolidated EBITDA After
Fleet Costs of any Person acquired by the US Borrower or its Subsidiaries
during such period shall be included on a pro forma basis for such period
(assuming the consummation of such acquisition and the incurrence or assumption
of any Indebtedness in connection therewith occurred on the first day of such
period) if the consolidated balance sheet of such acquired Person and its
consolidated Subsidiaries as at the end of the period preceding the acquisition
of such Person and the related consolidated statements of income and
stockholders’ equity and of cash flows for the period in respect of which
Consolidated EBITDA After Fleet Costs is to be calculated (x) have been
previously provided to the Administrative Agent and the Lenders and (y) either
(1) have been reported on without a qualification arising out of the scope of
the audit by independent certified public accountants of nationally recognized
standing or (2) have been found acceptable by the Administrative Agent and (ii)
the Consolidated EBITDA After Fleet Costs of any Person Disposed of by the US
Borrower or its Subsidiaries during such period shall be excluded for such period
(assuming the consummation of such Disposition and the repayment of any
Indebtedness in connection therewith occurred on the first day of such period).
Such pro forma calculations shall include the reduction in net costs and
related adjustments that (i) were directly attributable to a specified
Acquisition or Disposition and calculated on a basis that is consistent with
Regulation S-X under the Securities Act, (ii) were actually implemented by the
business that was the subject of any such Acquisition or by the US Borrower and
its Subsidiaries as a result of such Disposition, in either case within six
months after the date of the Acquisition or Disposition and prior to the date
of such determination, and that are supportable and quantifiable by the underlying
accounting records of such business or of the US Borrower and its Subsidiaries
or (iii) relate to the business that is the subject of such Acquisition or to
the business of the US Borrower and its Subsidiaries after such Disposition,
and that the US Borrower reasonably determines are probable based upon
specifically identifiable actions to be taken within six months of the date of
the Acquisition or Disposition and, in the case of each of (i), (ii) and (iii)
of this sentence, are described in a certificate of a Responsible Officer that
outlines the specific actions taken or to be taken, the net cost savings
achieved or to be achieved from each such action and that, in the case of
clause (iii) above, such savings have been determined to be probable and are
reasonably acceptable to the Administrative Agent.


 


“Consolidated
Total Non-Vehicle Debt”: at any date, the aggregate principal amount of all
Indebtedness of the US Borrower and its Subsidiaries at such date other than
(a) Indebtedness in respect of surety bonds that is not required to be
reflected as a liability on the balance sheet of the US Borrower and (b)
Permitted Vehicle Indebtedness, determined on a consolidated basis in
accordance with GAAP.


 


“Continuing
Directors”: the directors of the US Borrower on the Closing Date, after
giving effect to the transactions contemplated hereby, and each other director
of the US Borrower, if, in each case, such other director’s nomination for
election to the board of directors of the US Borrower is


 


10

















 


recommended by at least 51%
of the then Continuing Directors or such other director receives the vote of
the Sponsor in his or her election by the shareholders of the US Borrower.


 


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


 


“Control
Investment Affiliate”: as to any Person, any other Person that (a) directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person and (b) is organized by such Person primarily for the purpose
of making equity or debt investments in one or more companies. For purposes of
this definition, “control” of a Person means the power, directly or indirectly,
to direct or cause the direction
of the management and policies of such Person, whether by contract or otherwise.


 


“Default”:
any of the events specified in Section 8, whether or not any requirement for
the giving of notice, the lapse of time, or both, has been satisfied.


 


“Defaulting
Lender”: any Lender that defaults in its obligation to fund any Loan or its
portion of any unreimbursed payment under Sections 2.7 and 3.4.


 


“Deposit
Account Control Agreement”: a deposit account control agreement in form and
substance reasonably satisfactory to the Administrative Agent.


 


“Direct
Parent”: VCR USA Holdings II Inc., a Delaware corporation, or any newly
formed entity which acquires 100% of the Capital Stock of the US Borrower and
all other assets subject to the Direct Parent Pledge Agreement and executes and
delivers to the Administrative Agent an assumption agreement (in form and
substance reasonably satisfactory to the Administrative Agent) as to all grants
and obligations incurred by VCR USA Holdings II Inc. under the Direct Parent
Pledge Agreement.


 


“Direct
Parent Pledge Agreement”: the Direct Parent Pledge Agreement to be executed
by the Direct Parent in favor of the Collateral Agent substantially in the form
of Exhibit A-2.


 


“Discount
Note”: a non-interest bearing promissory note denominated in Canadian
Dollars, substantially in the form of Exhibit G-6, issued by the Canadian
Borrower to a Non BA Lender to evidence a BA Equivalent Loan.


 


“Discount
Proceeds”: for any Banker’s Acceptance issued hereunder, an amount
calculated on the applicable Borrowing Date by multiplying (a) the face amount
of the Banker’s Acceptance by (b) the quotient obtained by dividing (i) one by
(ii) the sum of one plus the product of (A) the Discount Rate applicable to the
Banker’s Acceptance and (B) a fraction, the numerator of which is the
applicable Interest Period and the denominator of which is 365, with the
quotient being rounded up or down to the fifth decimal place and .00005 being
rounded up.


 


“Discount
Rate”: (a) in respect of any Banker’s Acceptance accepted by a Lender that
is a Schedule I Lender, the CDOR Rate for the applicable period; and (b) in
respect of any Banker’s Acceptance accepted by a Lender that is a Schedule II
Lender, the CDOR Rate for the applicable period  plus .10%.


 


11

















 


“Disposition”:
with respect to any Property, any sale, lease, license, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof; and the terms “Dispose”
and “Disposed of” shall have correlative meanings.


 


“Documentation
Agents”: as defined in the preamble hereto.


 


“Dollar
Equivalent”: as to any amount denominated in Canadian Dollars at any time,
the equivalent amount in Dollars as determined by the Administrative Agent at
such time on the basis of the Exchange Rate (determined in respect of the most
recent Revaluation Date) for the purchase of Dollars with Canadian Dollars as
of the date of calculation.


 


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


 


“Domestic
Subsidiary”: any Subsidiary of the US Borrower organized under the laws of
any jurisdiction within the United States of America.


 


“ECF
Percentage”: with respect to any fiscal year of the US Borrower, 40%.


 


“Eligible
Assignee”: (i) Lender or any affiliate, Related Fund or Control Investment
Affiliate thereof (any two or more Related Funds being treated as a single
Eligible Assignee for all purposes hereof), and (ii) any commercial bank,
insurance company, investment or mutual fund or other entity that is an “accredited
investor” (as defined in Regulation D under the Securities Act of 1933) and
which extends credit or buys loans; provided, that no Affiliate of the
US Borrower, Parent or Sponsor shall be an Eligible Assignee other than any
Sponsor Affiliated Lender or Sponsor Affiliated Institutional Lender, and provided
further that with respect any assignment of any Canadian Revolving Credit
Commitment the assignee may not be a Non-Canadian Lender (except at any time
when any Event of Default under Sections 8(a), (e) or (f) shall have occurred
and be continuing).


 


“Eligible
Vehicles”: the motor vehicle inventory of the US Borrower and its
Subsidiaries, in each case, whether held for sale, lease or rental purposes.


 


“Environmental
Laws”: any and all laws, rules, orders, regulations, statutes, ordinances,
guidelines, codes, decrees, or other legally enforceable requirements
(including, common law) of any international authority, foreign government, the
United States, Canada or any state, local, municipal or other governmental
authority, regulating, relating to or imposing liability or standards of
conduct concerning protection of the environment or of human health, or
employee health and safety, as has been, is now, or may at any time hereafter
be, in effect.


 


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


 


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


 


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


 


12

















 


of the Board) maintained by
a member bank of the Federal Reserve System or applicable to a commercial bank under
Canadian banking regulations.


 


“Eurodollar
Base Rate”: with respect to each day during each Interest Period, the rate
per annum determined on the basis of the rate for deposits in Dollars, or
Canadian Dollars, as applicable, for a period equal to such Interest Period
commencing on the first day of such Interest Period appearing on Page 3750 of
the Telerate screen as of 11:00 A.M., London time, two Business Days prior to
the beginning of such Interest Period. In the event that such rate does not
appear on Page 3750 of the Telerate screen (or otherwise on such screen), the “Eurodollar
Base Rate” for purposes of this definition shall be determined by reference
to such other comparable publicly available service for displaying eurodollar
rates as may be selected by the Administrative Agent.


 


“Eurodollar
Loans”: Loans for which the applicable rate of interest is based upon the
Eurodollar Rate.


 


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


 




	
  Eurodollar
  Base Rate

  
	
  1.00
  - Eurocurrency Reserve Requirements

  






 


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


 


“Event
of Default”: any of the events specified in Section 8, provided,
that any requirement expressly set forth in Section 8 for the giving of notice,
the lapse of time, or both, has been satisfied.


 


“Excess
Cash Flow”: for any twelve-month period ending December 31 of any year, the
amount, if positive, equal to Consolidated EBITDA After Fleet Costs for such
period minus the sum of (a) Capital Expenditures for such period, except
those funded or financed from the incurrence of Indebtedness or the issuance of
Capital Stock, (b) taxes paid in cash in such period, (c) Consolidated
Non-Vehicle Interest Expense for such period and (d) scheduled principal
payments in respect of Consolidated Total Non-Vehicle Debt during such period.


 


“Excess
Cash Flow Application Date”: as defined in Section 2.l2(d). 


 


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


 


“Exchange
Rate”: on any day, (i) with respect to Canadian Dollars, the spot rate at
which Dollars are offered on such day by the Canadian Agent in Toronto, Canada
(or such other location selected by the Canadian Agent) for Canadian Dollars,
and (ii) with respect to Dollars, the spot rate at which Canadian Dollars are
offered on such day by the Canadian Agent in Toronto, Canada (or such other
location selected by the Canadian Agent) for Dollars.


 


“Excluded
Domestic Subsidiary”: (i) any Domestic Subsidiary that is a Finance Company
and (ii) any Domestic Subsidiary that does not own any assets in excess of
$1,000,000 or generate Consolidated Net Income in excess of $1,000,000.


 


13

















 


“Excluded
Subsidiaries”: the collective reference to the Excluded Domestic
Subsidiaries and the Foreign Subsidiaries.


 


“Existing
Facilities”: each of (a) the Financing Agreement, dated as of October 14, 2003,
among Vanguard Car Rental USA, Inc. and certain of its affiliates, the lenders
from time to time parties thereto and Congress Financial Corporation, as
Administrative Agent and Revolving A Collateral Agent, and Madeleine L.L.C., as
Revolving B Collateral Agent, (b) the 14% Senior Secured Subordinated Term
Notes due March 30, 2008, and the 15% Secured Junior Subordinated Notes due
September 30, 2008 issued by Vanguard Car Rental USA Inc., Alamo Rental (US)
Inc., and National Rental (US) Inc., and (c) the 15% Secured Junior
Subordinated Notes due September 30, 2008 issued by Vanguard Car Rental USA
Holdings Inc., in each case including any related notes, guarantees, collateral
documents, instruments and agreements executed in connection therewith, and in
each case as amended, restated, modified, renewed, refunded, replaced (whether
upon or after termination or otherwise) or refinanced (including by means of
sales of debt securities to institutional investors) in whole or in part from
time to time.


 


“Existing
Letter of Credit” means those letters of credit in existence on the date
hereof issued for the account of the US Borrower and Canadian Borrower, as
applicable, as set forth on Schedule 1.1E.


 


“Facility”:
each of (a) the Term Loan
Commitments and the Term Loans made thereunder (the “Term Loan Facility”),
(b) the Revolving Credit Commitments and the extensions of credit made
thereunder (the “US Revolving Credit Facility”) and (c) the Canadian
Revolving Credit Commitments and the extensions of credit made thereunder (the “Canadian
Revolving Credit Facility”).


 


“Federal
Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.


 


“Finance
Company”: (i) any existing Subsidiary of the US Borrower which is listed on
Schedule 1.1C or (ii) any Subsidiary of the US Borrower formed after the
Closing Date for the purpose of acquiring, holding, financing or disposing of
Permitted Vehicle Collateral.


 


“Foreign
Subsidiary”:  any Subsidiary of the
US Borrower that is not a Domestic  Subsidiary.


 


“Funding
Office”: the office specified from time to time by the Administrative Agent
as its funding office by notice to the US Borrower and the Lenders.


 


“GAAP”:
generally accepted accounting principles in the United States of America as in
effect from time to time.


 


“General
Motors”: General Motors Corporation, a Delaware corporation.


 


“Governmental
Authority”: any nation or government, any state, province or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government and any securities exchange.


 


14

















 


“Guarantee
and Collateral Agreement”: the Guarantee and Collateral Agreement to be
executed and delivered by the US Borrower, and each Guarantor, substantially in
the form of Exhibit A-l, as the same may be amended, supplemented or otherwise
modified from time to time.


 


“Guarantee
Obligation”: as to any Person (the “guaranteeing person”), any
obligation, including a reimbursement, counterindemnity or similar obligation,
of the guaranteeing person that guarantees or in effect guarantees, or which is
given to induce the creation of a separate obligation by another Person
(including any bank under any letter of credit) that guarantees or in effect guarantees
any Indebtedness, leases, dividends or other obligations (the “primary
obligations”) of any other third Person (the “primary obligor”) in
any manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any Property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or payment of
any such primary obligation or (2) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase Property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner of
any such primary obligation against loss in respect thereof; provided, however,
that the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed
to be the lower of (a) an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Guarantee Obligation is made
and (b) the maximum amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such Guarantee Obligation,
unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person’s
maximum reasonably anticipated liability in respect thereof as determined by
the US Borrower in good faith.


 


“Guarantors”:
(i) all Subsidiaries that are not Excluded Subsidiaries and (ii) the US
Borrower (with respect to the Canadian Obligations).


 


“Hedge
Agreements”: all interest rate or currency swaps, caps or collar
agreements, foreign exchange agreements, commodity contracts or similar
arrangements entered into by the US Borrower or its Subsidiaries providing for
protection against fluctuations in interest rates, currency exchange rates,
commodity prices or the exchange of nominal interest obligations, either
generally or under specific contingencies.


 


“Inactive
Subsidiary”: CarTemps Financing, LLC, a Delaware limited liability company
and CarTemps Financing LP, a Delaware Limited Partnership.


 


“Increased-Cost
Lender”: as defined in Section 2.24(a).


 


“Indebtedness”:
of any Person at any date, without duplication, (a) all indebtedness of such
Person for borrowed money (including, Purchase Money Indebtedness), (b) all
obligations of such Person for the deferred purchase price of Property or
services (other than trade payables incurred and currently payable in the
ordinary course of such Person’s business), (c) all obligations of such Person
evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to Property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such Property), (e)
all Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under


 


15

















 


acceptance, letter of
credit, surety bond or similar facilities, (g) all Guarantee Obligations of
such Person in respect of obligations of the kind referred to in clauses (a)
through (f) above, (h) all obligations of the kind referred to in clauses (a) through
(g) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on any
Property owned by such Person, whether or not such Person has assumed or become
liable for the payment of such obligation and (i) for the purposes of Section
8(e) only, all obligations of such Person in respect of Hedge Agreements. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness expressly provide that such Person is not liable
therefor. For purposes of this definition, (A) the amount of any Indebtedness
described in clause (h) above for which recourse is limited to certain property
of such Person shall be the lower of the amount of the obligation and fair
market value of the property securing such obligation and (B) the principal
amount of the Indebtedness under any Hedge Agreement at any time shall be equal
to the amount payable as a result of the termination of such Hedge Agreement at
such time. For purposes of Section 7.2 and Section 7.3, the Dollar equivalent
amount of Indebtedness denominated in any currency other than Dollars shall be
determined as of the date such Indebtedness in incurred or any commitment for
such Indebtedness is issued and the US Borrower and its Subsidiaries shall not
be deemed to exceed any limit set forth in Section 7.2 or Section 7.3 solely as
a result of subsequent fluctuations in the exchange rate of currency.
Notwithstanding the foregoing, in connection with the purchase by the US
Borrower or any of its Subsidiaries of any business, the term “Indebtedness”
will exclude post-closing payment adjustments to which the seller may become
entitled to the extent such payment is determined by a final closing balance
sheet or such payment depends on the performance of such business after the
closing; provided, however, that at the time of closing, the
amount of any such payment is not determinable and, to the extent such payment
thereafter becomes fixed and determined, the amount is paid within 30 days thereafter.


 


“Indemnified
Liabilities”: as defined in Section 10.5. 


 


“Indemnitee”:
as defined in Section 10.5.


 


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


 


“Insolvent”:
pertaining to a condition of Insolvency.


 


“Intellectual
Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United
States, Canada, multinational or foreign laws or otherwise, including works of
authorship and other copyrightable works, copyrights, all registrations and
applications for registrations thereof, and all tangible and intangible
property embodying the foregoing; copyright licenses; inventions (whether or not
patentable), all improvements thereto; patents and patent applications,
together with all continuances, continuations-in-part, divisions, revisions,
extensions, reissuances, and reexaminations thereof; patent licenses;
trademarks, internet domain names, service marks, trade dress, trade names,
business names, designs, logos, slogans (and all translations, adaptations,
derivations and combinations of the foregoing), indicia and other source and/or
business identifiers, all of the goodwill related thereto, and all
registrations and applications for registrations thereof; trademark licenses;
trade secrets, trade secret licenses, technology, know-how, processes, and
other proprietary information; and all rights to sue at law or in equity for
any infringement, dilution, misappropriation, violation, or other impairment
thereof, including the right to receive all proceeds and damages therefrom.


 


16

















 


“Interest
Payment Date”: (a) as to any Base Rate Loan or Canadian Prime Rate Loan,
the last day of each March, June, September and December to occur while such
Loan is outstanding and the final maturity date of such Loan, (b) as to any
Eurodollar Loan having an Interest Period of three months or shorter, the last
day of such Interest Period, (c) as to any Eurodollar Loan having an Interest
Period longer than three months, each day that is three months, or a whole
multiple thereof, after the first day of such Interest Period and the last day
of such Interest Period and (d) as to any Loan (other than any Revolving Credit
Loan that is a Base Rate Loan and any Swing Line Loan), the date of any
repayment or prepayment made in respect thereof.


 


“Interest
Period”: as to any Eurodollar Loan or Banker’s Acceptance, (a) initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan or Banker’s Acceptance and ending one,
two, three or six or (if available to all Lenders under the relevant Facility,
as determined by such Lenders in their sole discretion) nine or twelve months
thereafter, as selected by or on behalf of the US Borrower or the Canadian
Borrower, as applicable, in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Eurodollar Loan or Banker’s Acceptance and ending one, two, three or six
or (if available to all Lenders under the relevant Facility, as determined by
such Lenders in their sole discretion) nine or twelve months thereafter, as
selected by or on behalf of the US Borrower or the Canadian Borrower, as
applicable, by irrevocable notice to the Administrative Agent or the Canadian
Agent in respect of Banker’s Acceptance, not later than 11:00 A.M., New York
City time, on the date that is three Business Days prior to the last day of the
then current Interest Period with respect thereto; provided, that all of
the foregoing provisions relating to Interest Periods are subject to the
following:


 


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


 


(2)           any Interest Period that would
otherwise extend beyond the US Revolving Credit Termination Date, the Canadian
Revolving Termination Date or the date final payment of the Term Loans is due,
as the case may be, shall end on the US Revolving Credit Termination Date, the
Canadian Revolving Termination Date or such due date, as applicable;


 


(3)           no Interest Period in respect of a
Banker’s Acceptance may extend beyond the Canadian Revolving Termination Date;
and


 


(4)           any Interest Period that begins on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the end of
such Interest Period.


 


“Investments”:
as defined in Section 7.8.


 


“IPO”
means a bona fide underwritten initial public offering of voting common Capital
Stock in the US Borrower or a direct or indirect parent of the US Borrower.


 


“Issuing
Lender”: any US Issuing Lender and any Canadian Issuing Lender.


 


“Joint
Bookrunners”: as defined in the preamble hereto.


 


17

















 


“Judgment
Currency”: as defined in Section 10.20.


 


“L/C
Fee Payment Date”: the last day of each March, June, September and December
and the last day of the Revolving Credit Commitment Period.


 


“L/C
Obligations”: the collective reference to the Canadian L/C Obligations and
the US L/C Obligations.


 


“L/C
Participants”: the collective reference to the Canadian L/C Participants
and the US L/C Participants.


 


“Landlord
Waiver”: a landlord waiver relating to the US Borrower’s headquarters in
Tulsa, Oklahoma in form and substance reasonably satisfactory to the
Administrative Agent.


 


“Lender
Addendum”: with respect to any initial Lender, a Lender Addendum,
substantially in the form of Exhibit J (or in such other form acceptable to the
Arrangers), to be executed and delivered by such Lender as provided in Section
10.18.


 


“Lenders”:
as defined in the preamble hereto.


 


“Letters
of Credit”: the collective reference to the Canadian Letters of Credit and
the US Letters of Credit.


 


“Lien”:
any mortgage, pledge, hypothecation, assignment for security, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, any
conditional sale or other title retention agreement and any capital lease
having substantially the same economic effect as any of the foregoing).


 


“Loan”:
any loan made by, and the undiscounted face amount of any outstanding Banker’s
Acceptance accepted by, any Lender pursuant to this Agreement.


 


“Loan
Documents”: this Agreement, the Security Documents and the Notes.


 


“Loan
Parties”: the US Borrower, the Canadian Borrower, the Guarantors, and each
other Subsidiary of the US Borrower that is a party to a Loan Document.


 


“Majority
Canadian Revolving Credit Facility Lenders”: the Majority Facility Lenders
in respect of the Canadian Revolving Credit Facility.


 


“Majority
Facility Lenders”: with respect to any Facility, the holders of more than
50% of the aggregate unpaid principal amount of the Term Loans, the Total US
Revolving Extensions of Credit or the Total Canadian Revolving Extensions of
Credit, as the case may be, outstanding under such Facility (or, in the case of
(x) the US Revolving Credit Facility, prior to any termination of the US
Revolving Credit Commitments, the holders of more than 50% of the Total US
Revolving Credit Commitments or in the case of (y) the Canadian Revolving
Credit Facility, prior to any termination of the Canadian Revolving Credit
Commitments, the holders of more than 50% of the Total Canadian Revolving
Credit Commitments). For purposes of this definition, Voting Power
Determinants, as defined in the definition of “Required Lenders”, shall be
limited and subject to adjustment as therein set forth.


 


18

















 


“Majority
US Revolving Credit Facility Lenders”: the Majority Facility Lenders in
respect of the US Revolving Credit Facility.


 


“Material
Adverse Effect”: a material adverse effect on (a) the business, assets,
property, operations, or financial condition of the US Borrower and its
Subsidiaries taken as a whole, it being agreed that a downgrade of ratings on
the debt of General Motors or the commencement of a Chapter 11 bankruptcy case by
or against General Motors will not, in and of itself, be deemed to have such a
material adverse effect, or (b) the validity or enforceability of this
Agreement or any of the other Loan Documents or the rights or remedies of the
Agents or the Lenders hereunder or thereunder.


 


“Material
Contract”: any contract or other written agreement to which any Loan Party
or any of their Subsidiaries is a party (other than the Loan Documents) for
which breach, nonperformance or cancellation could reasonably be expected to
have a Material Adverse Effect.


 


“Materials
of Environmental Concern”: any gasoline or petroleum (including crude oil
or any fraction thereof) or petroleum products, polychlorinated biphenyls,
urea-formaldehyde insulation, asbestos, pollutants, contaminants,
radioactivity, and any other substances or forces of any kind, whether or not
any such substance or force is defined as hazardous or toxic under any
Environmental Law, that is regulated pursuant to or could give rise to
liability under any Environmental Law.


 


“Moody’s”:
Moody’s Investors Service, Inc.


 


“Mortgaged
Properties”: the real properties listed on Schedule 1.1A and
properties encumbered pursuant to 6.10(b), as to which the Administrative Agent
for the benefit of the Secured Parties shall be granted a Lien pursuant to one
or more Mortgages.


 


“Mortgages”:
each of the mortgages and deeds of trust made by any Loan Party in favor of, or
for the benefit of, the Administrative Agent for the benefit of the Secured
Parties substantially in the form of Exhibit D (with such changes thereto as
shall be reasonably requested by the Administrative Agent in view of the law of
the jurisdiction in which such mortgage or deed of trust is to be recorded), as
the same may be amended, supplemented or otherwise modified from time to time.


 


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


 


“Net
Cash Proceeds”: (a) in connection with any Asset Sale or any Recovery
Event, the proceeds thereof in the form of cash and Cash Equivalents (including
any such proceeds received by way of deferred payment of principal pursuant to
a note or installment receivable or purchase price adjustment receivable or
otherwise, but only as and when received) of such Asset Sale or Recovery Event,
net of (i) purchase price adjustments reasonably expected to be payable in
connection with such Asset Sale to the extent not in excess of 10% of the
purchase price of such Asset Sale, (ii) attorneys’ fees, accountants’ fees,
investment banking fees, amounts required to be applied to the repayment of
Indebtedness secured by a Lien expressly permitted hereunder on any asset which
is the subject of such Asset Sale or Recovery Event (other than any Lien
pursuant to a Security Document) and other customary fees and expenses actually
incurred in connection therewith, (iii) taxes paid or reasonably estimated to
be payable as a result thereof and (iv) a reasonable reserve for any payments
(fixed or contingent) attributable to the seller’s indemnities and representations
and warranties to the purchaser or seller’s retained liabilities in respect of
such Asset Sale undertaken in connection with such Asset Sale including pension
and other post-employment benefit liabilities and liabilities related to
environmental matters and liabilities under indemnification obligations
associated with such Asset Sale or (b) in connection with any issuance or sale
of equity securities or debt securities or instruments or the incurrence of
loans, the cash proceeds received


 


19

















 


from such issuance or
incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees,
underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith.


 


“Non
BA Lender”: a Canadian Revolving Credit Lender that cannot or does not as a
matter of policy issue Banker’s Acceptances.


 


“Non-Canadian
Lender”: means any Lender that is not organized under the laws of Canada or
the laws of any province or territory of Canada (but does not include a branch
of any such Lender that is entitled under the Income
Tax Act (Canada) to advance monies to a Canadian resident borrower
without such Canadian resident borrower being required to withhold all or some
of any payment on account of interest) and which Lender is not otherwise
considered or deemed in respect of any amount payable to such Lender hereunder,
or under any Loan Document, to be a resident for income tax purposes of Canada
by the application of the laws of Canada.


 


“Non-Consenting
Lender”: as defined in Section 2.24(c). 


 


“Non-Excluded
Taxes”: as defined in Section 2.20(a). 


 


“Non-U.S.
Lender”: as defined in Section 2.20(d). 


 


“Note”:
any promissory note evidencing any Loan. 


 


“Obligation
Currency”: as defined in Section 10.20.


 


“Obligations”:
(i) the unpaid principal of and interest on (including interest accruing after
the maturity of the Loans and Reimbursement Obligations and interest accruing
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the US Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans, the Reimbursement Obligations and all other
obligations and liabilities of the US Borrower to any Agent, Lender, Indemnitee
or Qualified Counterparty, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, this Agreement, any other Loan Document,
the Letters of Credit, any Specified Hedge Agreement or any other document
made, delivered or given in connection herewith or therewith, whether on
account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, all fees, charges and disbursements of counsel to
the Administrative Agent or to any Lender that are required to be paid by the
US Borrower pursuant hereto) or otherwise and (ii) the Canadian Obligations.


 


“Oklahoma
Development Financing”: the term loan in the original principal amount of
$2,000,000 and the letter of credit in the original face amount of $2,000,000
provided by Arvest Bank to Vanguard Car Rental USA, Inc.; the term loan in the
original principal amount of $2,000,000 provided by the Owasso Economic
Development Authority to Vanguard Car Rental USA. Inc.; and the other
transactions related thereto in connection with US Borrower’s relocation to
Tulsa, Oklahoma.


 


“Organizational
Documents”: (i) with respect to any corporation, its certificate or
articles of incorporation or organization, as amended, and its by-laws, as
amended, (ii) with respect to any limited partnership, its certificate of
limited partnership, as amended, and its partnership agreement, as amended,
(iii) with respect to any general partnership, its partnership agreement, as
amended, and (iv) with respect to any limited liability company, its articles
of organization, as amended, and its operating agreement, as amended. In the
event any term or condition of this Agreement or any other Loan Document
requires any


 


20

















 


Organizational Document to
be certified by a secretary of state or similar governmental official, the
reference to any such “Organizational Document” shall only be to a document of
a type customarily certified by such governmental official.


 


“Other
Taxes”: any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any
payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement or any other Loan Document.


 


“Parent”:
Worldwide Excellerated Leasing Ltd. or any Person that hereafter is the
ultimate parent holding company of US Borrower.


 


“Parent
Promissory Note”: a promissory note of Parent, evidencing the loan made on
the Closing Date by the US Borrower to Parent, substantially in the form of
Exhibit G-5.


 


“Participant”:
as defined in Section 10.6(b).


 


“Patent
Security Agreement”: a short-form agreement granting a security interest in
any patents of the US Borrower or any Grantor for filing with the United States
Patent and Trademark Office or any similar registry in any foreign country in
form and substance reasonably satisfactory to the Administrative Agent.


 


“Payment
Office”: the office specified from time to time by the Administrative Agent
as its payment office by notice to the US Borrower and the Lenders.


 


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


 


“Permitted
Vehicle Collateral”: at any date, the Property of any Finance Company
securing Permitted Vehicle Indebtedness, including, cash or Cash Equivalents
provided to meet Cash Collateralization Requirements, promissory notes of the
US Borrower or a Subsidiary of the US Borrower payable to a Finance Company or
its order, letters of credit, Hedge Agreements related to Permitted Vehicle
Indebtedness, Eligible Vehicles, assets attributable to, or directly associated
with, Eligible Vehicles, such as manufacturers’ obligations to repurchase such
vehicles, rental payments under leases from a Finance Company to another
Subsidiary of the US Borrower, and receivables arising on the disposition of
Eligible Vehicles, proceeds of insurance covering such Eligible Vehicles, and
any other Property of such Finance Company securing its Permitted Vehicle
Indebtedness.


 


“Permitted
Vehicle Indebtedness”: Indebtedness (including Capital Lease Obligations)
of a Finance Company incurred (without recourse to any Loan Party) to finance
the acquisition or lease of Eligible Vehicles or other Permitted Vehicle
Collateral, or to provide credit support for such financing or to pay fees and
expenses reasonably related thereto or to refinance any such Indebtedness; provided,
however, that any Indebtedness redesignated pursuant to Section
7.16(b)(iii) shall not constitute Permitted Vehicle Indebtedness.


 


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


 


“Personal
Property Security Legislation”: all applicable personal property security
legislation as all such legislation now exists or may from time to time
hereafter be amended, modified,


 


21

















 


recodified, supplemented or
replaced, together with all rules and regulations thereunder or related thereto,
including the UCC and the Personal Property
Security Act in each applicable province in Canada and the
regulations promulgated thereunder in each applicable province in Canada and
the Civil Code (Quebec) and the regulation respecting the register of personal
and moveable real rights promulgated thereunder.


 


“Plan”:
at a particular time, any employee benefit plan that is covered by ERISA and in
respect of which the US Borrower or a Commonly Controlled Entity is (or, if
such plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an “employer” as defined in Section 3(5) of ERISA, but excluding
Canadian Benefit Plans and Canadian Pension Plans.


 


“Prepayment
Fee”: as defined in Section 2.1l(b).


 


“Pricing
Grid”: the pricing grid attached hereto as Annex A.


 


“Prime
Rate” means the rate of interest quoted in The
Wall Street Journal, Money Rates Section as the Prime Rate
(currently defined as the base rate on corporate loans posted by at least 75%
of the nation’s thirty (30) largest banks), as in effect from time to time. The
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer. Agent or any other Lender may make
commercial loans or other loans at rates of interest at, above or below the
Prime Rate.


 


“Pro
Forma Balance Sheet”: as defined in Section 4.1(a). 


 


“Projections”:
as defined in Section 6.2(c).


 


“Property”:
any right or interest in or to property of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible, including, Capital Stock.


 


“Purchase
Money Indebtedness”: Indebtedness of the US Borrower and its Subsidiaries
incurred for the purpose of financing all or any part of the purchase price, or
the cost of installation, construction or improvement, of property or
equipment, provided, that the aggregate principal amount of such
Indebtedness does not exceed the purchase price or cost of such property or
equipment.


 


“Purchase
Price”: with respect to any Acquisition, the sum (without duplication) of (a)
the amount of cash paid by the US Borrower and any Subsidiary in connection
with such Acquisition, (b) the value (as determined for purposes of such
Acquisition in accordance with the applicable acquisition agreement) of all
Capital Stock of the US Borrower or any Subsidiary issued or given as consideration
in connection with such Acquisition or issued to finance such Acquisition, (c)
the principal amount (or, if less, the accreted value) at the time of such
Acquisition of all Indebtedness incurred (other than any such Indebtedness to
the extent incurred specifically to finance all or any portion of the cash purchase
price of such Acquisition), assumed or acquired by the US Borrower and any
Subsidiary in connection with such Acquisition, (d) all additional purchase
price amounts in connection with such Acquisition in the form of earnouts,
deferred purchase price and other contingent obligations that should be
recorded as a liability on the balance sheet of the US Borrower and its Subsidiaries
in accordance with GAAP, but only at the time that such liability should be so
recorded and only to the extent of the amount that should be so recorded, (e)
all amounts paid by the US Borrower and any Subsidiary in respect of covenants
not to compete, consulting agreements and other affiliated contracts in
connection with such Acquisition, and (f) the aggregate fair market value of
all other consideration given by the US Borrower and any Subsidiary in
connection with such Acquisition.


 


22

















 


“Qualified
Counterparty”: with respect to any Specified Hedge Agreement, (i) any
counterparty thereto that, at the time such Specified Hedge Agreement was
entered into, was a Lender or an affiliate of a Lender or (ii) any counterparty
that enters into a Hedge Agreement with the US Borrower prior to the Closing
Date.


 


“Recovery
Event”: any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any non-vehicle
asset of the US Borrower or any of its Subsidiaries.


 


“Refunded
Swing Line Loans”: as defined in Section 2.7(a).


 


“Refunding
Date”: as defined in Section 2.7(b).


 


“Register”:
as defined in Section 10.6(d).


 


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


 


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


 


“Reimbursement
Obligation”: the obligation of the US Borrower or the Canadian Borrower to
reimburse any Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit issued by such Issuing Lender.


 


“Reinvestment
Deferred Amount”: with respect to any Reinvestment Event, the aggregate Net
Cash Proceeds received by the US Borrower or any of its Subsidiaries in
connection therewith that are not applied to prepay the Term Loans pursuant to
Section 2.12(c), in any such case, as a result of the delivery of a
Reinvestment Notice.


 


“Reinvestment
Event”: any Asset Sale or Recovery Event in respect of which the US
Borrower has delivered a Reinvestment Notice.


 


“Reinvestment
Notice”: a written notice executed by a Responsible Officer stating that no
Default or Event of Default has occurred and is continuing and that the US
Borrower (directly or indirectly through a Subsidiary) intends and expects to
use all or a specified portion of the Net Cash Proceeds of an Asset Sale or
Recovery Event to acquire or repair assets useful in its business or to make
Investments permitted under Section 7.8(j).


 


“Reinvestment
Prepayment Amount”: with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to
the relevant Reinvestment Prepayment Date to acquire or repair assets useful in
the US Borrower’s business or to make Investments permitted under Section 7.8(j).


 


“Reinvestment
Prepayment Date”: with respect to any Reinvestment Event, the earlier of
(a) the date occurring one year after such Reinvestment Event and (b) the date
on which the US Borrower shall have determined not to, or shall have otherwise
ceased to, acquire or repair assets useful in the US Borrower’s business or
make Investments permitted under Section 7.8(j).


 


“Related
Fund”: with respect to any Lender, any fund that (x) invests in commercial
loans and (y) is managed or advised by the same investment advisor as such
Lender, by such Lender or an Affiliate of such Lender.


 


23

















 


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


 


“Replacement
Lender”: as defined in Section 2.24(c).


 


“Reportable
Event”: any of the events set forth in Section 4043(c) of ERISA, other than
those events as to which the thirty day notice period is waived under
subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043.


 


“Required
Lenders”: at any time, the holders of more than 50% of (a) until the
Closing Date, the Commitments and (b) thereafter, the sum of (i) the aggregate
unpaid principal amount of the Term Loans then outstanding and (ii) the Total
US Revolving Credit Commitments then in effect or, if the US Revolving Credit
Commitments have been terminated, the sum of the Total US Revolving Extensions
of Credit then outstanding and the Total Canadian Revolving Extensions of
Credit, converted to Dollars at the Exchange Rate, then outstanding. For
purposes of this definition, the amount of the Commitments, Term Loans and
Revolving Extensions of Credit (“Voting Power Determinants”) shall be
determined by excluding all Voting Power Determinants held or beneficially
owned by a Sponsor Affiliated Lender but including all Voting Power
Determinants held or beneficially owned by Sponsor Affiliated Institutional
Lenders so long as the aggregate Voting Power Determinants held or beneficially
owned by all Sponsor Affiliated Institutional Lenders does not exceed 30% of
all Voting Power Determinants. If the aggregate Voting Power Determinants held
or beneficially owned by all Sponsor Affiliated Institutional Lenders exceed
30%, then, for purposes solely of this definition, (x) the Voting Power
Determinants held or beneficially owned by Sponsor Affiliated Institutional
Lenders shall be ratably reduced so as to equal, in the aggregate, 30% of the
aggregate Voting Power Determinants and (y) the Voting Power Determinants held
or beneficially owned by Lenders other than Sponsor Affiliated Institutional
Lenders shall be ratably increased so as to equal, in the aggregate, 70% of the
aggregate Voting Power Determinants.


 


“Required
Prepayment Lenders”: with respect to any Facility, the Majority Facility
Lenders for such Facility.


 


“Requirement
of Law”: as to any Person, the Certificate of Incorporation and By-Laws or
other organizational or governing documents of such Person, and any law,
treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its Property or to which such Person or any of its Property is
subject.


 


“Responsible
Officer”: the chief executive officer, president, chief financial officer,
treasurer or controller of the US Borrower, but in any event, with respect to
financial matters, the chief financial officer of the US Borrower.


 


“Restricted
Payments”: as defined in Section 7.6.


 


“Reuters
Screen CDOR Page”: the display designated as page CDOR on the Reuters
Monitor Money Rates Service or other page as may, from time to time, replace
that page on that service for the purpose of displaying bid quotations for Banker’s
Acceptances accepted by leading Canadian banks.


 


“Revaluation
Date” means with respect to any Loan, each of the following: (i) each date
of a borrowing of a Canadian Revolving Credit Loan, (ii) each date of a
continuation of a Canadian Revolving Credit Loan pursuant to Section 2.13, and
(iii) such additional dates as the Administrative Agent shall determine or the
Required Lenders shall require.


 


24

















 


“Revolving
Credit Commitment”: as to any Canadian Revolving Credit Lender, its
Canadian Revolving Credit Commitment, and as to any US Revolving Credit Lender,
its US Revolving Credit Commitment.


 


“Revolving
Credit Facilities”: collectively, the Canadian Revolving Credit Facility
and the US Revolving Credit Facility.


 


“Revolving
Credit Lender”: each Canadian Revolving Credit Lender and US Revolving
Credit Lender.


 


“Revolving
Credit Loans”: collectively, the Canadian Revolving Credit Loans and the US
Revolving Credit Loans.


 


“Revolving
Credit Percentage”: as to any Canadian Revolving Credit Lender at any time,
such Lender’s Canadian Revolving Credit Percentage and as to any US Revolving
Credit Lender, such Lender’s US Revolving Credit Percentage.


 


“Revolving
Extensions of Credit”: as to any Revolving Credit Lender at any time, an
amount equal to the sum of (a) the aggregate principal amount of all Revolving
Credit Loans made by such Lender then outstanding, (b) such Lender’s Revolving
Credit Percentage of the US L/C Obligations then outstanding, (c) such Lender’s
Revolving Credit Percentage of the Canadian L/C Obligations then outstanding
and (d) such Lender’s Revolving Credit Percentage of the aggregate principal
amount of Swing Line Loans then outstanding.


 


“S&P”:
Standard & Poor’s Ratings Group.


 


“Schedule
I Lender”: any Lender named on Schedule I to the Bank Act (Canada).


 


“Schedule
II Lender”: any Lender named on Schedule II or Schedule III to the Bank Act
(Canada).


 


“SEC”:
the Securities and Exchange Commission of the United States of America (or
successors thereto or an analogous Governmental Authority).


 


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


 


“Security
Documents”: the collective reference to the Guarantee and Collateral
Agreement, the Direct Parent Pledge Agreement, the Canadian Collateral
Agreements, the Trademark Security Agreement, the Patent Security Agreement,
the Deposit Account Control Agreements, the Mortgages and all other security
documents hereafter delivered to the Administrative Agent granting a Lien on
any Property of any Person to secure the obligations and liabilities of any
Loan Party under any Loan Document.


 


“Service
Fleet Perfection Exclusion:” the failure to note the Administrative Agent’s
security interest on certificates of title covering service vehicles owned on
the Closing Date and having an aggregate net book value not exceeding
$5,000,000.


 


“Significant
Subsidiary”: with respect to any Person, any Subsidiary of such Person that
satisfies the criteria for a “significant subsidiary” set forth in Rule l-02(w)
of Regulation S-X under the Exchange Act or a group of individual Subsidiaries
which taken together would constitute a “significant subsidiary” under Rule
l-02(w).


 


25

















 


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


 


“Solvent”:
with respect to any Person, as of any date of determination, (a) the amount of
the “present fair saleable value” of the assets of such Person will, as of such
date, exceed the amount of all “liabilities of such Person, contingent or
otherwise”, as of such date, as such quoted terms are determined in accordance
with applicable federal and state laws governing determinations of the
insolvency of debtors, (b) the present fair saleable value of the assets of
such Person will, as of such date, be greater than the amount that will be
required to pay the liability of such Person on its debts as such debts become
absolute and matured, (c) such Person will not have, as of such date, an
unreasonably small amount of capital with which to conduct its business, and
(d) such Person will be able to pay its debts as they mature. For purposes of
this definition, (i) “debt” means liability on a “claim”, and (ii) “claim”
means any (x) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed,
secured or unsecured.


 


“Specified
Hedge Agreement”: any Hedge Agreement entered into by the US Borrower and
any Qualified Counterparty at any time prior to or after the Closing Date for
the purpose of managing interest rate risks and designated by the Borrower as a
Specified Hedge Agreement (and such designation shall be in all respects
conclusive).


 


“Sponsor”:
Cerberus Capital Management, L.P. and any affiliated investment funds or
managed accounts which are managed by Cerberus Capital Management L.P. or one
of its Affiliates in the ordinary course of business and pursuant to written
agreements.


 


“Sponsor
Affiliated Lender” means investment funds or managed accounts with respect
to which Sponsor or an Affiliate of Sponsor is an advisor or manager in the
ordinary course of business and pursuant to written agreements provided
such Person executes a waiver in form and substance reasonably satisfactory to
Administrative Agent that it shall have no right whatsoever so long as such
Person is an Affiliate of the US Borrower or the Sponsor, (i) to consent to any
amendment, modification, waiver, consent or other such action with respect to
any of the terms of this Agreement or any other Loan Document, (ii) to require
any Agent or other Lender to undertake any action (or refrain from taking any
action) with respect to this Agreement or any other Loan Document, (iii)
otherwise vote on any matter related to this Agreement or any other Loan
Document, (iv) attend any meeting with any Agent or Lender or receive any
information from any Agent or Lender or (v) make or bring any claim, in its
capacity as Lender, against the Agent or any Lender with respect to the duties
and obligations of such Persons under the Loan Documents, but no amendment,
modification or waiver shall deprive any Sponsor Affiliated Lender of its share
of any payments which the Lenders are entitled to share on a pro rata basis
hereunder.


 


“Sponsor
Affiliated Institutional Lender”: a bank, insurance company, investment
bank, commercial finance company or other institutional lender that is an
Affiliate of US Borrower as a result of common direct or indirect ownership by
Sponsor, so long as (i) Sponsor owns directly or indirectly less than all of
the Capital Stock of such Lender, and (ii) Sponsor does not directly appoint
any Person with responsibility for reviewing or approving credit decisions with
respect to the transactions contemplated by the Loan Documents; provided
that such Person shall agree in the applicable Assignment and Acceptance (or in
its Lender Addendum, as applicable) that it will not provide any information
obtained by such Sponsor Affiliated Institutional Lender in its capacity as a
Lender to Sponsor or any Affiliate of Sponsor.


 


26

















 


“Standstill
Letter”: the letter dated as of June 14, 2006 from the Administrative Agent
to MBIA Insurance. Corporation, Ambac Assurance Corporation, Assured Guaranty
Corp., The Bank of New York, as ARG Trustee, The Bank of New York, as Alamo
Trustee, The Bank of New York, as NFLP Trustee, Vanguard Car Rental USA
Holdings Inc., Alamo Financing L.P., Alamo Financing L.L.C., National Car
Rental Financing Limited Partnership, and National Car Rental Financing
Corporation, substantially in the form of Exhibit K.


 


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


 


“Swing
Line Commitment”: the obligation of the Swing Line Lender to make Swing
Line Loans pursuant to Section 2.6 in an aggregate principal amount at any one
time outstanding not to exceed $10,000,000.


 


“Swing
Line Lender”: any US Revolving Credit Lender from time to time designated
by the US Borrower as a Swing Line Lender with the consent of such US Revolving
Credit Lender and the Administrative Agent.


 


“Swing
Line Loans”: as defined in Section 2.6.


 


“Swing
Line Note”: as defined in Section 2.8(e).


 


“Swing
Line Participation Amount”: as defined in Section 2.7(b).


 


“Syndication
Agents”: as defined in the preamble hereto.


 


“Tax
Payments”: as defined in Section 7.6(h).


 


“Term
Loan Commitments”: as to any Lender, the obligation of such Lender, if any,
to make Term Loans, in an aggregate principal amount not to exceed the amount
set forth under the heading “Term Loan Commitments” opposite such Lender’s name
on Schedule 1 to the Lender Addendum delivered by such Lender, or, as
the case may be, in the Assignment and Acceptance pursuant to which such Lender
became a party hereto, as the same may be changed from time to time pursuant to
the terms hereof. The original aggregate amount of the aggregate Term Loan
Commitments is $800,000,000.


 


“Term
Loan Facility”: as defined in the definition of “Facility” in this Section
1.1. 


 


“Term
Loan Maturity Date”: the seventh anniversary of the Closing Date. 


 


“Term
Loan Facility”: as defined in the definition of “Facility” in this Section
1.1.


 


“Term
Loan Lender”: each Lender that has a Term Loan Commitment or that is the
holder of a Term Loan.


 


27

















 


“Term
Loan Percentage”: as to any Term Loan Lender at any time, the percentage
which such Lender’s Term Loan Commitment then constitutes of the aggregate Term
Loan Commitments (or, at any time after the Closing Date, the percentage which
the aggregate principal amount of such Lender’s Term Loans then outstanding
constitutes of the aggregate principal amount of the Term Loans then
outstanding).


 


“Term
Loans”: as defined in Section 2.1. 


 


“Term
Note”: as defined in Section 2.8(e). 


 


“Terminated
Lender”: as defined in Section 2.24(c).


 


“Total
Canadian Revolving Credit Commitments”: at any time, the aggregate amount
of the Canadian Revolving Credit Commitments then in effect.


 


“Total
Canadian Revolving Extensions of Credit”: at any time, the aggregate amount
of the Canadian Revolving Extensions of Credit outstanding at such time.


 


“Total
Revolving Credit Commitments”: at any time, the aggregate amount of the
Revolving Credit Commitments then in effect.


 


“Total
US Revolving Credit Commitments”: at any time, the aggregate amount of the
US Revolving Credit Commitments then in effect.


 


“Total
US Revolving Extensions of Credit”: at any time, the aggregate amount of
the US Revolving Extensions of Credit outstanding at such time.


 


“Trademark
Security Agreement”: a short-form agreement granting a security interest in
any trademarks of the US Borrower or any Grantor for filing with the United
States Patent and Trademark Office or any similar registry in any foreign
country in form and substance reasonably satisfactory to the Administrative
Agent.


 


“Transferee”:
as defined in Section 10.14(b).


 


“Type”:
as to any Loan, its nature as a Base Rate Loan, a Eurodollar Loan, a Canadian
Prime Rate Loan or a BA Equivalent Loan.


 


“Uniform
Commercial Code”: the Uniform Commercial Code as in effect from time to
time in any applicable jurisdiction.


 


“US
Borrower”: as defined in the preamble hereto.


 


“US
Issuing Lender”: any US Revolving Credit Lender from time to time
designated by the US Borrower as a US Issuing Lender with the consent of such
US Revolving Credit Lender and the Administrative Agent.


 


“US
L/C Commitment”: On any day, $100,000,000 minus the then outstanding
Canadian L/C Obligations.


 


28

















 


“US
L/C Obligations”: at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding US Letters
of Credit and (b) the aggregate amount of drawings under US Letters of Credit
that have not then been reimbursed pursuant to Section 3.5


 


“US
L/C Participants”: with respect to any US Letter of Credit, the collective
reference to the US Revolving Credit Lenders other than the US Issuing Lender
that issued such US Letter of Credit.


 


“US.
Letters of Credit”: as defined in Section 3.1(a).


 


“US
Reimbursement Obligations”: the Reimbursement Obligations owing by the US
Borrower.


 


“US
Revolving Credit Commitment”: as to any Lender, the obligation of such
Lender, if any, to make US Revolving Credit Loans and participate in Swing Line
Loans and US Letters of Credit, in an aggregate principal and/or face amount
not to exceed the amount set forth under the heading “US Revolving Credit
Commitment” opposite such Lender’s name on Annex B-2, or, as the case may be,
in the Assignment and Acceptance pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof. The original aggregate amount of the aggregate US Revolving Credit
Commitments is $175,000,000.


 


“US
Revolving Credit Commitment Period”: the period from and including the
Closing Date to the US Revolving Credit Termination Date.


 


“US
Revolving Credit Facility”: as defined in the definition of “Facility” in
this Section 1.1.


 


“US
Revolving Credit Lender”: each Lender that has a US Revolving Credit
Commitment or that is the holder of US Revolving Credit Loans.


 


“US
Revolving Credit Loans”: as defined in Section 2.4. 


 


“US
Revolving Credit Note”: as defined in Section 2.8(e).


 


“US
Revolving Credit Percentage”: as to any US Revolving Credit Lender at any
time, the percentage which such Lender’s US Revolving Credit Commitment then
constitutes of the aggregate US Revolving Credit Commitments (or, at any time
after the US Revolving Credit Commitments shall have expired or terminated, the
percentage which the aggregate amount of such Lender’s US Revolving Extensions
of Credit then outstanding constitutes of the amount of the aggregate US
Revolving Extensions of Credit then outstanding).


 


“US
Revolving Credit Termination Date”: the sixth anniversary of the Closing
Date.


 


“US
Revolving Extensions of Credit”: as to any US Revolving Credit Lender at
any time, an amount equal to the sum of (a) the aggregate principal amount of
all US Revolving Credit Loans made by such Lender then outstanding, (b) such Lender’s
US Revolving Credit Percentage of the US L/C Obligations then outstanding and
(c) such Lender’s US Revolving Credit Percentage of the aggregate principal
amount of Swing Line Loans then outstanding.


 


“Wholly
Owned Guarantor”: any Guarantor that is a Wholly Owned Subsidiary of the US
Borrower.


 


29

















 


“Wholly
Owned Subsidiary”: as to any Person, any other Person all of the Capital
Stock of which (other than directors’ qualifying shares required by law) is owned
by such Person directly and/or through other Wholly Owned Subsidiaries.


 


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


 


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


 


(c)           The words “hereof”, “herein” and “hereunder”
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.


 


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


 


All
calculations of financial ratios set forth in Section 7.1, the calculation of
the Consolidated Non-Vehicle Leverage Ratio for purposes of determining the
Applicable Margin shall be calculated to the same number of decimal places as
the relevant ratios are expressed in and shall be rounded upward if the number
in the decimal place immediately following the last calculated decimal place is
five or greater. For example, if the relevant ratio is to be calculated to the
hundredth decimal place and the calculation of the ratio is 5.126, the ratio
will be rounded up to 5.13.


 


1.3.          Exchange Rates; Currency
Equivalents. (a) The Administrative Agent shall determine the Exchange
Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts
of Canadian Revolving Credit Loans and outstanding amounts denominated in
Canadian Dollars. Such Exchange Rates shall become effective as of such
Revaluation Date and shall be the Exchange Rates employed in converting any
amounts between the applicable currencies until the next Revaluation Date to occur.
Except for purposes of financial statements delivered by Loan Parties hereunder
or calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of Canadian Dollars for purposes of the Loan
Documents shall be such Dollar Equivalent amount as so determined by the
Administrative Agent.


 


(b)           Unless otherwise specified, wherever
in this Agreement in connection with a Commitment, conversion, continuation or
prepayment of a Eurodollar Loan, an amount, such as a required minimum or
multiple amount, is expressed in Dollars, but such Commitment or Eurodollar Loan
is denominated in Canadian Dollars, such amount shall be the relevant Canadian
Dollar Equivalent of such Dollar amount (rounded to the nearest unit of
Canadian Dollars, with 0.5 of a unit being rounded upward), as determined by
the Administrative Agent.


 


1.4.          Accounting Terms. Except as otherwise
expressly provided herein, all accounting terms not otherwise defined herein
shall have the meanings assigned to them in conformity with GAAP. Financial
statements and other information required to be delivered by the US Borrower to
Lenders pursuant to Section 6.1(a) and 6.1(b) shall be prepared in accordance
with GAAP as in effect at the time of such preparation. Subject to the
foregoing, calculations in connection with the definitions,


 


30

















 


covenants and other
provisions hereof shall utilize accounting principles and policies in
conformity with those used to prepare the financial statements delivered
pursuant to Section 5.l(b).


 


1.5.          Interpretation, etc. Any of the
terms defined herein may, unless the context otherwise requires, be used in the
singular or the plural, depending on the reference. References herein to any
Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a
Schedule or an Exhibit, as the case may be, hereof unless otherwise
specifically provided. The use herein of the word “include” or “including”,
when following any general statement, term or matter, shall not be construed to
limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not
non-limiting language (such as “without limitation” or “but not limited to” or
words of similar import) is used with reference thereto, but rather shall be
deemed to refer to all other items or matters that fall within the broadest
possible scope of such general statement, term or matter. The term “license”
shall include “sublicense” and vice versa, including variations thereof.


 


SECTION
2. AMOUNT AND TERMS OF COMMITMENTS


 


2.1.          Term Loan Commitments. Subject
to the terms and conditions hereof, the Term Loan Lenders severally agree to
make term loans (each, a “Term Loan”) to the US Borrower on the Closing
Date in an amount for each Term Loan Lender not to exceed the amount of the
Term Loan Commitment of such Lender. The Term Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the US Borrower and
notified to the Administrative Agent in accordance with Sections 2.2 and 2.13.


 


2.2.          Procedure for Term Loan Borrowing.
The US Borrower shall deliver to the Administrative Agent a Borrowing Notice
(which Borrowing Notice must be received by the Administrative Agent prior to
10:00 A.M., New York City time, one Business Day prior to the anticipated Closing
Date for Base Rate Loans or three Business Days prior to the Closing Date for
Eurodollar Loans) requesting that the applicable Term Loan Lenders make the
applicable Term Loans on the Closing Date. Upon receipt of such Borrowing
Notice the Administrative Agent shall promptly notify each Term Loan Lender
thereof. Not later than 12:00 Noon, New York City time, on the Closing Date
each Term Loan Lender shall make available to the Administrative Agent at the
Funding Office an amount in immediately available funds equal to the Term Loan
or Term Loans to be made by such Lender. The Administrative Agent shall make
available to the US Borrower the aggregate of the amounts made available to the
Administrative Agent by the Term Loan Lenders, in like funds as received by the
Administrative Agent.


 


2.3.          Repayment of Term Loans. The
Term Loans of each Term Loan Lender shall mature in 28 consecutive quarterly
installments, commencing on September 30, 2006, each of which shall be in an
amount equal to such Lender’s Term Loan Percentage multiplied by the percentage
set forth below opposite such installment of the aggregate principal amount of
Term Loans made on the Closing Date:


 




	
  Installment

  	
   

  	
  Percentage

  	
   

  
	
  September 30, 2006

  	
   

  	
  0.25%

  	
   

  
	
  December 31, 2006

  	
   

  	
  0.25%

  	
   

  
	
  March 31, 2007

  	
   

  	
  0.25%

  	
   

  
	
  June 30, 2007

  	
   

  	
  0.25%

  	
   

  
	
  September 30, 2007

  	
   

  	
  0.25%

  	
   

  
	
  December 31, 2007

  	
   

  	
  0.25%

  	
   

  






 


31

















 




	
  Installment

  	
   

  	
  Percentage

  
	
  March 31, 2008

  	
   

  	
  0.25%

  
	
  June 30, 2008

  	
   

  	
  0.25%

  
	
  September 30, 2008

  	
   

  	
  0.25%

  
	
  December 31, 2008

  	
   

  	
  0.25%

  
	
  March 31, 2009

  	
   

  	
  0.25%

  
	
  June 30, 2009

  	
   

  	
  0.25%

  
	
  September 30, 2009

  	
   

  	
  0.25%

  
	
  December 31, 2009

  	
   

  	
  0.25%

  
	
  March 31, 2010

  	
   

  	
  0.25%

  
	
  June 30, 2010

  	
   

  	
  0.25%

  
	
  September 30, 2010

  	
   

  	
  0.25%

  
	
  December 31, 2010

  	
   

  	
  0.25%

  
	
  March 31, 2011

  	
   

  	
  0.25%

  
	
  June 30, 2011

  	
   

  	
  0.25%

  
	
  September 30, 2011

  	
   

  	
  0.25%

  
	
  December 31, 2011

  	
   

  	
  0.25%

  
	
  March 31, 2012

  	
   

  	
  0.25%

  
	
  June 30, 2012

  	
   

  	
  0.25%

  
	
  September 30, 2012

  	
   

  	
  23.5%

  
	
  December 31, 2012

  	
   

  	
  23.5%

  
	
  March 31, 2013

  	
   

  	
  23.5%

  
	
  Term Loan Maturity Date

  	
   

  	
  Remainder

  






 


2.4.          Revolving Credit Commitments.
(a) Subject to the terms and conditions hereof, the US Revolving Credit Lenders
severally agree to make revolving credit loans (“US Revolving Credit Loans”)
in Dollars to the US Borrower from time to time during the US Revolving Credit
Commitment Period in an aggregate principal amount at any one time outstanding
for each US Revolving Credit Lender which, when added to such Lender’s US
Revolving Credit Percentage of the sum of (i) the US L/C Obligations then
outstanding and (ii) the aggregate principal amount of the Swing Line Loans
then outstanding, does not exceed the amount of such Lender’s US Revolving
Credit Commitment. During the US Revolving Credit Commitment Period the US
Borrower may use the US Revolving Credit Commitments by borrowing, prepaying in
whole or in part, and reborrowing the US Revolving Credit Loans, all in
accordance with the terms and conditions hereof. The US Revolving Credit Loans
may from time to time be Eurodollar Loans or Base Rate Loans, as determined by
the US Borrower and notified to the Administrative Agent in accordance with
Sections 2.5 and 2.13, provided, that no US Revolving Credit Loan shall
be made as a Eurodollar Loan after the day that is one month prior to the US
Revolving Credit Termination Date.


 


(b)           The US Borrower from time to time may
request the Administrative Agent to consent to an increase in the aggregate US
Revolving Credit Commitments on the following terms:


 


(i)            The aggregate
amount of all such increases shall not exceed $25,000,000.


 


(ii)           No Lender will be
obligated to provide or commit for any such increase.


 


(iii)          If the
Administrative Agent consents to any such increase and determines that one or
more of the Lenders or other Persons reasonably satisfactory to the
Administrative


 


32

















 


Agent
and US Borrower are willing to commit to provide such increase, such increase
will be effective on the date the Administrative Agent receives an amendment to
this Agreement executed by the US Borrower, the Administrative Agent and such
Lender or other Person, adding, in the case of an existing Lender, such
commitment to Annex B-2 and, in the case of a Person not then already a Lender,
confirming that such Person has become a Lender for all purposes of this
Agreement. Such amendment will not require the consent of any other Lender.


 


(iv)          On the effective
date of such amendment, each Lender or other Person committing to provide such
increase shall fund US Revolving Credit Loans in an amount equal to its US
Revolving Credit Percentage (after giving effect to such amendment) of the
aggregate US Revolving Credit Loans outstanding immediately before giving
effect to such amendment, and the proceeds of such funding shall be applied to
repay on a pro rata basis the US Revolving Credit Loans outstanding before
giving effect to such amendment. Each Lender receiving any such repayment will
be entitled to all amounts payable under Section 2.21 in connection therewith


 


(c)           The US Borrower shall repay all
outstanding US Revolving Credit Loans on the US Revolving Credit Termination
Date.


 


(d)           Subject to the terms and conditions
hereof, the Canadian Revolving Credit Lenders severally agree to make revolving
credit loans (“Canadian Revolving Credit Loans”) in Canadian Dollars to
the Canadian Borrower from time to time during the Canadian Revolving Credit
Commitment Period in an aggregate principal amount at any one time outstanding
for each Canadian Revolving Credit Lender which, when added to such Lender’s
Canadian Revolving Credit Percentage of the Canadian L/C Obligations then
outstanding, does not exceed the amount of such Lender’s Canadian Revolving
Credit Commitment. During the Canadian Revolving Credit Commitment Period the
Canadian Borrower may use the Canadian Revolving Credit Commitments by
borrowing, prepaying in whole or in part, and reborrowing the Canadian
Revolving Credit Loans, all in accordance with the terms and conditions hereof.
The Canadian Revolving Credit Loans may from time to time be by way of Banker’s
Acceptance or Canadian Prime Rate Loans, in Canadian Dollars only, as
determined by the Canadian Borrower and notified to the Canadian Agent in
accordance with Sections 2.5 and 2.13, provided, that no Canadian Revolving
Credit Loan shall be made as a Banker’s Acceptance after the day that is one
month prior to the Canadian Revolving Credit Termination Date.


 


(e)           The Canadian Borrower shall repay all
outstanding Canadian Revolving Credit Loans on the Canadian Revolving Credit
Termination Date. If for any reason the Canadian Borrower is prohibited from
making any required payment in Canadian Dollars, the Canadian Borrower shall
make such payment in Dollars at the Dollar Equivalent of the Canadian Dollar
payment amount.


 


(f)            Notwithstanding any provisions to
the contrary in this Section 2.4 or in Section 3.1 or any other provision of
this Agreement relating to (i) the availability and permitted maximum outstanding
amounts of US Revolving Credit Loans, US L/C Obligations and Swing Line Loans
or (ii) availability and permitted maximum outstanding amounts of Canadian
Revolving Credit Loans and Canadian Letters of Credit, the Borrower will not
cause or permit the aggregate outstanding amount of US Revolving Credit Loans,
US L/C Obligations and Swing Line Loans, when added to the aggregate outstanding
amount of the Canadian Revolving Credit Loans and Canadian L/C Obligations
(converted to Dollars at the Exchange Rate) to exceed the then amount of the
Total US Revolving Credit Commitments.


 


2.5.          Procedure for Revolving Credit
Borrowing. (a) The US Borrower may borrow under the US Revolving Credit
Commitments on any Business Day during the US Revolving Credit Commitment
Period, provided, that the US Borrower shall deliver to the
Administrative Agent a


 


33

















 


Borrowing Notice (which
Borrowing Notice must be received by the Administrative Agent prior to 12:00
Noon, New York City time), (a) three Business Day prior to the requested
Borrowing Date, in the case of Eurodollar Loans, or (b) one Business Day prior
to the requested Borrowing Date, in the case of Base Rate Loans. Any US
Revolving Credit Loans made on the Closing Date shall initially be Base Rate
Loans. Each borrowing of US Revolving Credit Loans under the US Revolving
Credit Commitments shall be in an amount equal to (x) in the case of Base Rate
Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate
Available US Revolving Credit Commitments are less than $1,000,000 such lesser
amount) and (y) in the case of Eurodollar Loans, $1,000,000 or a whole multiple
of $1,000,000 in excess thereof; provided, that the Swing Line Lender
may request, on behalf of the US Borrower, borrowings of Base Rate Loans under
the US Revolving Credit Commitments in other amounts pursuant to Section 2.7.
Upon receipt of any such Borrowing Notice from the US Borrower, the
Administrative Agent shall promptly notify each US Revolving Credit Lender
thereof. Each US Revolving Credit Lender will make its US Revolving Credit
Percentage of the amount of each borrowing of US Revolving Credit Loans
available to the Administrative Agent for the account of the US Borrower at the
Funding Office prior to 12:00 Noon, New York City time on the Borrowing Date
requested by the US Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the US
Borrower by the Administrative Agent in like funds as received by the
Administrative Agent.


 


(b)           The Canadian Borrower may borrow
under the Canadian Revolving Credit Commitments on any Business Day during the
Canadian Revolving Credit Commitment Period, provided, that the Canadian
Borrower shall deliver to the Canadian Agent a Borrowing Notice (which Borrowing
Notice must be received by the Canadian Agent prior to 12:00 Noon, Toronto time
one Business Day prior to the requested Borrowing Date in the case of Canadian
Prime Rate Loans or Banker’s Acceptances). Any Canadian Revolving Credit Loans
made on the Closing Date shall initially be Canadian Prime Rate Loans. Each
borrowing of Canadian Revolving Credit Loans under the Canadian Revolving
Credit Commitments shall be in an amount equal to (x) in the case of Canadian
Prime Rate Loans, Cdn. $500,000 or a whole multiple of Cdn. $100,000 in excess
thereof (or, if the then aggregate Available Canadian Revolving Credit
Commitments are less than Cdn. $100,000 (or, if applicable, the Dollar
Equivalent thereof), such lesser amount) and (y) in the case of Banker’s
Acceptance, Cdn. $500,000 and a whole multiple of Cdn. $100,000 in excess thereof.
Upon receipt of any such Borrowing Notice from the Canadian Borrower, the
Canadian Agent shall promptly notify the Administrative Agent and each Canadian
Revolving Credit Lender thereof. Each Canadian Revolving Credit Lender will
make its Canadian Revolving Credit Percentage of the amount of each borrowing
of Canadian Revolving Credit Loans available to the Canadian Agent for the
account of the Canadian Borrower at the Canadian Funding Office prior to 12:00
Noon, Toronto time, on the Borrowing Date requested by the Canadian Borrower in
funds immediately available to the Canadian Agent. Such borrowing will then be
made available to the Canadian Borrower by the Canadian Agent in like funds as
received by the Canadian Agent.


 


(c)           The Canadian Borrower hereby
designates the US Borrower as its representative and agent on its behalf for
the purposes of issuing Borrowing Notices and notices of conversion or continuation,
giving instructions with respect to the disbursement of the proceeds of the
Canadian Revolving Credit Loans, selecting interest rate options, giving and
receiving all other notices and consents hereunder or under any of the other
Loan Documents and taking all other actions (including in respect of compliance
with covenants) on behalf of the Canadian Borrower under the Loan Documents. The
Administrative Agent, the Canadian Agent and each Lender may regard any notice
or other communication pursuant to any Loan Document from the US Borrower as a
notice or communication from the Canadian Borrower and the US Borrower. Each
warranty, covenant, agreement and undertaking made on behalf of the Canadian
Borrower by the US Borrower shall be deemed for all purposes to have been made
by the Canadian Borrower and shall be binding upon and enforceable against the
Canadian Borrower to the same extent as it if the same had been made directly
by the Canadian Borrower.


 


34

















 


(d)           (i) On each Borrowing Date on which
Banker’s Acceptances are to be accepted, the Canadian Agent shall advise the
Canadian Borrower as to the Canadian Agent’s determination of the applicable
Discount Rate for the Banker’s Acceptances which any of the Canadian Revolving
Credit Lenders have agreed to purchase.


 


(ii)           Each Canadian Revolving Credit Lender
shall purchase a Banker’s Acceptance accepted by it, and the Canadian Borrower
shall sell such Banker’s Acceptance at the applicable Discount Rate. The
relevant Canadian Revolving Credit Lender shall provide to the Canadian Agent
on the Borrowing Date the Discount Proceeds less the Acceptance Fee payable by
the Canadian Borrower with respect to the Banker’s Acceptance. On any date on
which a conversion or continuance of a maturing Banker’s Acceptance shall
occur, the Canadian Agent shall be entitled to net all amounts payable on such
date by that Canadian Agent to Canadian Revolving Credit Lender against all
amounts payable on such date by such Canadian Revolving Credit Lender to the
Canadian Agent. Similarly, on any Borrowing Date on which Banker’s Acceptances
are to be accepted, the Canadian Borrower hereby authorizes each Canadian
Revolving Credit Lender to net all amounts payable on such day by such Canadian
Revolving Credit Lender to the Canadian Agent for the account of the Canadian
Borrower, against all amounts payable on such day by the Canadian Borrower to
such Canadian Revolving Credit Lender in accordance with the Canadian Agent’s
calculations.


 


(iii)          Each Canadian Revolving Credit Lender
may from time to time hold, sell, rediscount or otherwise dispose of any or all
Banker’s Acceptances accepted and purchased by it; provided that it
shall not sell or dispose of any Banker’s Acceptance to a Non-Canadian Lender.


 


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


 


(v)           Drafts drawn by the Canadian Borrower
to be accepted as Banker’s Acceptances shall be signed by a duly authorized
officer or officers of the Canadian Borrower or by its attorneys including
attorneys appointed pursuant to this Section 2.5. Notwithstanding that any
Person whose signature appears on any Banker’s Acceptance may no longer be an
authorized signatory for the Canadian Borrower at the time of issuance of a
Banker’s Acceptance, that signature shall nevertheless be valid and


 


35

















 


sufficient for all purposes
as if the authority had remained in force at the time of issuance and any
Banker’s Acceptance so signed shall be binding on the Canadian Borrower.


 


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


 


(vii)         The Canadian Borrower waives presentment
for payment and any other defense to payment of any amounts due to a Canadian
Revolving Credit Lender in respect of a Banker’s Acceptance accepted and
purchased by it pursuant to this Agreement which might exist solely by reason
of the Banker’s Acceptance being held, at the maturity thereof, by the Canadian
Revolving Credit Lender in its own right and the Canadian Borrower agrees not
to claim any days of grace if the Canadian Revolving Credit Lender as holder
sues the Canadian Borrower on the Banker’s Acceptance for payment of the amount
payable by the Canadian Borrower thereunder.


 


(viii)        Whenever the Canadian Borrower requests
a Canadian Revolving Credit Loan under this Agreement by way of Banker’s
Acceptances, each Non BA Lender shall, in lieu of accepting a Banker’s
Acceptance, make a BA Equivalent Loan in an amount equal to the Non BA Lender’s
Canadian Revolving Credit Percentage of the Canadian Revolving Credit Loan.


 


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


 


(a)       the term of a Discount Note
shall be the same as the Interest Period for Banker’s Acceptances accepted and
purchased on the same Borrowing Date in respect of the same Canadian Revolving
Credit Loan;


 


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


 


(c)       the Discount Rate
applicable to a Discount Note shall be the Discount Rate applicable to Banker’s
Acceptances accepted by the Canadian Agent (as Canadian Revolving Credit
Lender) on the same Borrowing Date, as the case may be, in respect of the same
Canadian Revolving Credit Loan.


 


(x)            At the option of any Canadian
Revolving Credit Lender, Banker’s Acceptances under this Agreement to be accepted
by that Canadian Revolving Credit Lender may be issued in the form of
depository bills for deposit with The Canadian Depository for Securities
Limited pursuant to the


 


36

















 


Depository Bills and Notes Act
(Canada). All depository bills so issued shall be governed by the provisions of
this Section 2.5.


 


(xi)           If at any time any Banker’s
Acceptances are to be paid prior to their maturity, the Canadian Borrower shall
be required to deposit the amount of such prepayment in a cash collateral
account with the Canadian Agent until the date of maturity of those Banker’s
Acceptances and otherwise pursuant to cash collateral arrangements satisfactory
to the Canadian Agent. The cash collateral account shall be under the sole
control of the Canadian Agent. Except as contemplated by this Section 2.5,
neither the Canadian Borrower nor any Person claiming on behalf of the Canadian
Borrower shall have any right to any of the cash in the cash collateral
account. The Canadian Agent shall apply the cash held in the cash collateral
account to the face amount of those Banker’s Acceptances at maturity whereupon
(so long as no Event of Default has occurred and is continuing) any cash
remaining in the cash collateral account shall be released by the Canadian
Agent to the Canadian Borrower.


 


(xii)          The Canadian Borrower hereby
unconditionally agrees to pay the Canadian Agent for the account of each
Canadian Revolving Credit Lender on the maturity date (whether at stated
maturity, by acceleration or otherwise) for each Banker’s Acceptance created by
such Canadian Revolving Credit Lender for the account of the Canadian Borrower,
the aggregate undiscounted face amount of each such then maturing Banker’s
Acceptance. Payment for any such Banker’s Acceptance may be satisfied by a
conversion or continuance pursuant to and in accordance with Section 2.13.


 


2.6.          Swing Line Commitment. (a) Subject
to the terms and conditions hereof, the Swing Line Lender agrees that, during
the US Revolving Credit Commitment Period, it will make available to the US
Borrower in the form of swing line loans funded and repayable solely in Dollars
(“Swing Line Loans”) a portion of the credit otherwise available to the
US Borrower under the US Revolving Credit Commitments; provided, that
(i) the aggregate principal amount of Swing Line Loans outstanding at any time
shall not exceed the Swing Line Commitment then in effect (notwithstanding that
the Swing Line Loans outstanding at any time, when aggregated with the Swing Line
Lender’s other outstanding US Revolving Credit Loans hereunder, may exceed the
Swing Line Commitment then in effect or such Swing Line Lender’s US Revolving
Credit Commitment then in effect) and (ii) the US Borrower shall not request,
and the Swing Line Lender shall not make, any Swing Line Loan if, after giving
effect to the making of such Swing Line Loan, the aggregate amount of the
Available US Revolving Credit Commitments would be less than zero. During the
US Revolving Credit Commitment Period, the US Borrower may use the Swing Line
Commitment by borrowing, repaying and reborrowing, all in accordance with the
terms and conditions hereof. Swing Line Loans shall be Base Rate Loans only;


 


(b)           The US Borrower shall repay all
outstanding Swing Line Loans on the US Revolving Credit Termination Date; and


 


(c)           At any time when any Default or Event
of Default is continuing, the Swing Line Lender may suspend or terminate the
Swing Line Commitment.


 


2.7.          Procedure for Swing Line Borrowing;
Refunding of Swing Line Loans. (a) The US Borrower may borrow under the
Swing Line Commitment on any Business Day during the US Revolving Credit
Commitment Period, provided, the US Borrower shall give the Swing Line
Lender irrevocable telephonic notice confirmed promptly in writing (which
telephonic notice must be received by the Swing Line Lender not later than 1:00
P.M., New York City time, on the proposed Borrowing Date), specifying (i) the
amount to be borrowed and (ii) the requested Borrowing Date. Each borrowing
under the Swing Line Commitment shall be in an amount equal to $500,000 or a
whole multiple of $100,000 in excess thereof. Not later than 3:00 P.M., New
York City time, on the Borrowing Date specified in the


 


37

















 


borrowing notice in respect
of any Swing Line Loan, the Swing Line Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available
funds equal to the amount of such Swing Line Loan. The Administrative Agent shall
make the proceeds of such Swing Line Loan available to the US Borrower on such
Borrowing Date in like funds as received by the Administrative Agent. The Swing
Line Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the US Borrower (which hereby irrevocably directs
the Swing Line Lender to act on its behalf), on one Business Day’s notice given
by the Swing Line Lender no later than 12:00 Noon, New York City time, request
each US Revolving Credit Lender to make, and each US Revolving Credit Lender
hereby agrees to make, a US Revolving Credit Loan (which shall initially be a
Base Rate Loan), in an amount equal to such US Revolving Credit Lender’s US
Revolving Credit Percentage of the aggregate amount of the Swing Line Loans
(the “Refunded Swing Line Loans”) outstanding on the date of such
notice, to repay the Swing Line Lender. Each US Revolving Credit Lender shall
make the amount of such US Revolving Credit Loan available to the
Administrative Agent at the Funding Office in immediately available funds, not
later than 10:00 A.M., New York City time, one Business Day after the date of
such notice. The proceeds of such US Revolving Credit Loans shall be made
immediately available by the Administrative Agent to the Swing Line Lender for
application by the Swing Line Lender to the repayment of the Refunded Swing
Line Loans.


 


(b)           If prior to the time a US Revolving
Credit Loan would have otherwise been made pursuant to Section 2.7(a), one of
the events described in Section 8(f) shall have occurred and be continuing with
respect to the US Borrower, or if for any other reason, as determined by the
Swing Line Lender in its sole discretion, US Revolving Credit Loans may not be
made as contemplated by Section 2.7(a), each US Revolving Credit Lender shall,
on the date such US Revolving Credit Loan was to have been made pursuant to the
notice referred to in Section 2.7(a) (the “Refunding Date”), purchase
for cash an undivided participating interest in the then outstanding Swing Line
Loans by paying to the Swing Line Lender an amount (the “Swing Line
Participation Amount”) equal to (i) such US Revolving Credit Lender’s US
Revolving Credit Percentage times (ii) the sum of the aggregate
principal amount of Swing Line Loans then outstanding which were to have been
repaid with such US Revolving Credit Loans. The Borrower irrevocably authorizes
the Swing Line Lender to charge the Borrower’s accounts with the Administrative
Agent (up to the amount available in each such account) in order to immediately
pay the amount of such Refunded Swing Line Loans to the extent amounts received
from the US Revolving Credit Lenders are not sufficient to repay in full such
Refunded Swing Line Loans.


 


(c)           Whenever, at any time after the Swing
Line Lender has received from any US Revolving Credit Lender such Lender’s
Swing Line Participation Amount, the Swing Line Lender receives any payment on
account of the Swing Line Loans, the Swing Line Lender will distribute to such Lender
its Swing Line Participation Amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s
participating interest was outstanding and funded and, in the case of principal
and interest payments, to reflect such Lender’s pro rata
portion of such payment if such payment is not sufficient to pay the principal
of and interest on all Swing Line Loans then due); provided, however,
that in the event that such payment received by the Swing Line Lender is required
to be returned, such US Revolving Credit Lender will return to the Swing Line
Lender any portion thereof previously distributed to it by the Swing Line
Lender.


 


(d)           Each US Revolving Credit Lender’s
obligation to make the Loans referred to in Section 2.7(a) and to purchase participating
interests pursuant to Section 2.7(b) shall be absolute and unconditional and
shall not be affected by any circumstance, including, (i) any setoff,
counterclaim, recoupment, defense or other right which such US Revolving Credit
Lender or the US Borrower may have against the Swing Line Lender, the other
Borrower or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any
of the


 


38

















 


other conditions specified
in Section 5; (iii) any adverse change in the condition (financial or
otherwise) of the either Borrower; (iv) any breach of this Agreement or any
other Loan Document by the either Borrower, any other Loan Party or any other
US Revolving Credit Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.


 


2.8.          Repayment of Loans: Evidence of
Debt. (a) The US Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the appropriate US Revolving Credit
Lender (i) the then unpaid principal amount of each US Revolving Credit Loan of
such US Revolving Credit Lender on the US Revolving Credit Termination Date (or
on such earlier date on which the US Revolving Credit Loans become due and
payable pursuant to Section 8) and (ii) the then unpaid principal amount of
such Swing Line Loan of such Swing Line Lender on the US Revolving Credit
Termination Date (or on such earlier date on which the US Revolving Credit
Loans become due and payable pursuant to Section 8). The US Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
the appropriate Term Loan Lender the principal amount of each Term Loan of such
Term Loan Lender made to the US Borrower in installments according to the
amortization schedule set forth in Section 2.3 (or on such earlier date on
which the Term Loans become due and payable pursuant to this Agreement), and in
any event will pay all outstanding amounts on the Term Loan Maturity Date. The
Canadian Borrower hereby unconditionally promises to pay to the Canadian Agent
for the account of the appropriate Canadian Revolving Credit Lender the then
unpaid principal amount of each Canadian Revolving Credit Loan of such Canadian
Revolving Credit Lender on the Canadian Revolving Credit Termination Date (or
on such earlier date on which the Canadian Revolving Credit Loans become due
and payable pursuant to Section 8). Each of the US Borrower and the Canadian
Borrower, as applicable, hereby further agree to pay interest and acceptance
fees on the unpaid principal amount of the Loans borrowed by the US Borrower or
Canadian Borrower, as applicable, from time to time outstanding from the
Closing Date until payment in full thereof at the rate per annum and on the
dates, set forth in Section 2.15.


 


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


 


(c)           The Administrative Agent, on behalf
of the Borrowers and the Canadian Agent, shall maintain the Register pursuant
to Section 10.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder and any Note evidencing
such Loan, the Type of such Loan and each Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable, or to become due
and payable from the US Borrower or the Canadian Borrower, as applicable, to
each Lender hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the US Borrower or by Canadian Agent from the Canadian Borrower,
and each Lender’s share thereof. The Canadian Agent will provide the
Administrative Agent with such information relating to the Canadian Revolving
Credit Facility as may be requested by the Administrative Agent to maintain the
Register.


 


(d)           The entries made in the Register and
the accounts of each Lender maintained pursuant to Section 2.8(b) shall, to the
extent permitted by applicable law, be prima  facie evidence of
the existence and amounts of the obligations of the US Borrower or the Canadian
Borrower therein recorded; provided, however, that the failure of
any Lender, the Administrative Agent or the Canadian Agent to maintain the
Register or any such account, or any error therein, shall not in any manner
affect the obligation of the US Borrower or the Canadian Borrower, as
applicable, to repay (with applicable


 


39

















 


interest) the Loans made to
the US Borrower or the Canadian Borrower by such Lender in accordance with the
terms of this Agreement.


 


(e)           Each of the US Borrower and the
Canadian Borrower agrees that, upon the request to the Administrative Agent or
the Canadian Agent by any Lender, the US Borrower or the Canadian Borrower, as
applicable, will promptly execute and deliver to such Lender a promissory note
of the US Borrower, evidencing any Term Loans, US Revolving Credit Loans, Swing
Line Loans, or of the Canadian Borrower of any Canadian Revolving Credit Loans,
as the case may be, of such Lender, substantially in the forms of Exhibit G-l,
G-2, G-3 or G-4 respectively (a “Term Note.” “US Revolving Credit
Note.” “Swing Line Note” or “Canadian Revolving Credit Note,”
respectively), with appropriate insertions as to date and principal amount; provided,
that delivery of Notes shall not be a condition precedent to the occurrence of
the Closing Date or the making of the Loans or issuance of Letters of Credit or
to the enforceability of any Obligation on the Closing Date.


 


2.9.          Commitment Fees, etc. (a) The
US Borrower agrees to pay to the Administrative Agent for the account of each
US Revolving Credit Lender a commitment fee for the period from and including
the Closing Date to the last day of the US Revolving Credit Commitment Period,
computed at the Commitment Fee Rate on the average daily amount of the
Available US Revolving Credit Commitment of such Lender during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December commencing on the first of such dates to
occur after the date hereof and on the US Revolving Credit Termination Date
with respect to US Revolving Credit Loans and the Canadian Revolving Termination
Date with respect to Canadian Revolving Credit Loans.


 


(b)           The US Borrower agrees to pay to the
Agents the fees in the amounts and on the dates previously agreed to in writing
by the US Borrower and the Agents.


 


2.10.        Termination or Reduction of Revolving
Credit Commitments. Each of the US Borrower and the Canadian Borrower, as
applicable, shall have the right, upon not less than three Business Days’
notice to the Administrative Agent with respect to the US Revolving Credit Commitments
and the Canadian Agent with respect to the Canadian Revolving Credit
Commitments, to terminate the US Revolving Credit Commitments or the Canadian
Revolving Credit Commitments, as applicable, or, from time to time, to reduce
the aggregate amount of the US Revolving Credit Commitments or the Canadian
Revolving Credit Commitments, as applicable; provided, that no such termination
or reduction of US Revolving Credit Commitments or the Canadian Revolving
Credit Commitments shall be permitted if, after giving effect thereto and to
any prepayments of the Revolving Credit Loans and Swing Line Loans made on the
effective date thereof, (i) the aggregate amount of US Revolving Extensions of
Credit would exceed the aggregate amount of US Revolving Credit Commitments or
(ii) the aggregate amount of Canadian Revolving Extensions of Credit would
exceed the aggregate amount of Canadian Revolving Credit Commitments. Any such
reduction shall be in an amount equal to $1,000,000 in the case of the US
Revolving Credit Commitments, or Cdn. $100,000, in the case of the Canadian
Revolving Credit Commitments, or a whole multiple thereof, and shall reduce permanently
the applicable US Revolving Credit Commitments or the Canadian Revolving Credit
Commitments, as applicable, then in effect.


 


2.11.        Optional Prepayments. (a) Each of
the Borrowers may at any time and from time to time prepay the Loans, in whole
or in part, without premium or penalty (except as otherwise provided herein),
upon irrevocable notice delivered to the Administrative Agent (and, with
respect to the Canadian Revolving Credit Loans, the Canadian Agent) no later
than three Business Days prior thereto in the case of Eurodollar Loans or
Banker’s Acceptances and no later than one Business Day prior thereto in the
case


 


40

















 


of Base Rate Loans or
Canadian Prime Rate Loans, which notice shall specify the date and amount of
such prepayment, whether such prepayment is of Term Loans, US Revolving Credit
Loans or Canadian Revolving Credit Loans, and whether such prepayment is of
Eurodollar Loans, Banker’s Acceptances, Base Rate Loans or Canadian Prime Rate
Loans; provided, that (i) if a Eurodollar Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, the US Borrower
shall also pay any amounts owing pursuant to Section 2.21, (ii) prepayments of
Banker’s Acceptances shall be made in accordance with Section 2.5(d) and (iii)
no prior notice is required for the prepayment of Swing Line Loans. Upon
receipt of any such notice, the Administrative Agent (or the Canadian Agent, if
applicable) shall promptly notify each relevant Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable
on the date specified therein, together with (except in the case of (1)
Revolving Credit Loans that are Base Rate Loans, (2) Swing Line Loans and (3)
Canadian Prime Rate Loans) accrued interest to such date on the amount prepaid.
Partial prepayments of Term Loans and Revolving Credit Loans shall be in an
aggregate principal amount of $1,000,000 or Cdn. $1,000,000, as applicable, or
a whole multiple thereof. Partial prepayments of Swing Line Loans shall be in
an aggregate principal amount of $100,000 or a whole multiple thereof.


 


(b)           In the event that, prior to the first
anniversary of the Closing Date, any Term Loan Lender receives a Repricing
Prepayment (as defined below), then, at the time thereof, the US Borrower shall
pay to such Lender a prepayment premium equal to 1.00% (the “Prepayment Fee”)
of the amount of such Repricing Prepayment. As used herein, with respect to any
Term Loan Lender, a “Repricing Prepayment” is the amount of principal of
the Term Loans of such Lender that is either (a) prepaid by the US Borrower
pursuant to Section 2.1 l(a) substantially concurrently with the incurrence by
any Parent or any of its Subsidiaries of new term loans that have interest rate
margins lower than, the Applicable Margin then in effect for the Term Loans so
prepaid or (b) received by such Lender as a result of the mandatory assignment
of such Term Loans in the circumstances described in Section 2.24(c) following
the failure of such Lender to consent to an amendment of this Agreement that
would have the effect of reducing the Applicable Margin with respect to such
Term Loans; provided however that such Repricing Prepayment shall not
include any prepayment made in connection with (i) the repayment of all of
principal and interest due on Loans under this Agreement, (ii) the termination
of all of the Revolving Credit Commitments under this Agreement and (iii) the
payment of all other obligations due and owing under the Loan Documents.


 


2.12.        Mandatory Prepayments.


 


(a)           Unless the Required Prepayment
Lenders shall otherwise agree, if any Capital Stock shall be issued and sold in
an IPO, then on the date of such issuance and sale, the Term Loans shall be
prepaid on a pro rata basis (and after the Term Loans are prepaid the
outstanding Revolving Extensions of Credit shall be prepaid or cash
collateralized and the Revolving Credit Commitments shall be permanently
reduced, in each case, on a pro rata basis) by an amount equal to 50% of the
aggregate cash proceeds of such issuance and sale, net of underwriting
discounts and offering costs paid by the issuer, except for any cash proceeds
received as a result of the exercise of an over-allotment option by the
underwriters. The provisions of this Section do not constitute a consent to the
issuance of any equity securities by any entity whose equity securities are
pledged pursuant to the Guarantee and Collateral Agreement.


 


(b)           Unless the Required Prepayment Lenders
shall otherwise agree, if any Indebtedness shall be incurred by the US Borrower
or any of its Subsidiaries (excluding any Indebtedness incurred in accordance
with Section 7.2), then no later than the first Business Day following the date
of such issuance or incurrence, the Term Loans shall be prepaid on a pro rata
basis (and after the Term Loans are prepaid the outstanding Revolving
Extensions of Credit shall be prepaid or cash collateralized


 


41

















 


and
the Revolving Credit Commitments shall be permanently reduced, in each case, on
a pro rata basis) by an amount equal to 100% of the amount of the Net Cash
Proceeds of such issuance or incurrence. The provisions of this Section do not
constitute a consent to the incurrence of any indebtedness by the Borrower or
any of its Subsidiaries not permitted by Section 7.2.


 


(c)           Unless the Required Prepayment
Lenders shall otherwise agree, if on any date the US Borrower or any of its
Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery
Event, then unless a Reinvestment Notice shall be delivered in respect thereof,
the Term Loans shall be prepaid promptly, and in any event not later than seven
days, after the date of receipt by the US Borrower or such Subsidiary of such
Net Cash Proceeds, on a pro rata basis (and after the Term Loans are prepaid
the outstanding Revolving Extensions of Credit shall be prepaid or cash
collateralized and the Revolving Credit Commitments shall be permanently
reduced, in each case, on a pro rata basis) by an amount equal to the amount of
such Net Cash Proceeds; provided, that, notwithstanding the foregoing,
on each Reinvestment Prepayment Date the Term Loans shall be prepaid by an
amount equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event. The provisions of this Section do not constitute a consent
to the consummation of any Disposition not permitted by Section 7.5.


 


(d)           Unless the Required Prepayment
Lenders shall otherwise agree, if, for any fiscal year of the US Borrower
commencing with the fiscal year ending December 31, 2007, there shall be Excess
Cash Flow, then, on the relevant Excess Cash Flow Application Date, the Term
Loans shall be prepaid on a pro rata basis (and after the Term Loans are
prepaid the outstanding Revolving Extensions of Credit shall be prepaid or cash
collateralized and the Revolving Credit Commitments shall be permanently
reduced, in each case, on a pro rata basis) by an amount equal to the ECF
Percentage of such Excess Cash Flow. Each such prepayment shall be made on a
date (an “Excess Cash Flow Application Date”) no later than ten days
after the earlier of (i) the date on which the financial statements of the US
Borrower referred to in Section 6.1 (a), for the fiscal year with respect to
which such prepayment is made, are required to be delivered to the Lenders and
(ii) the date such financial statements are actually delivered.


 


(e)           If at any time, the aggregate amount
of outstanding Canadian Revolving Credit Loans and Canadian L/C Obligations
(converted to Dollars at the Exchange Rate) exceeds the then amount of the
Canadian Revolving Credit Commitment, then the Canadian Borrower will repay
such excess forthwith without notice or demand. If at any time, the aggregate
outstanding amount of US Revolving Credit Loans, Swing Line Loans and US L/C
Obligations plus Canadian Revolving Credit Loans and Canadian L/C Obligations
(converted to Dollars at the Exchange Rate) exceeds the then amount of the
Total US Revolving Credit Commitments, then without notice or demand the US
Borrower and Canadian Borrower will prepay their respective outstanding amounts
in an amount sufficient to eliminate such excess.


 


2.13.        Conversion and Continuation Options.
(a) The US Borrower may elect from time to time to convert Eurodollar Loans to
Base Rate Loans by giving the Administrative Agent, at least one Business Day’s
prior irrevocable notice of such election and the Canadian Borrower may elect
from time to time to convert Banker’s Acceptances upon their maturity to
Canadian Prime Rate Loans by giving the Canadian Agent, at least one Business
Day’s prior irrevocable notice of such election; provided, that any such
conversion of Eurodollar Loans may be made only on the last day of an Interest
Period with respect thereto. The US Borrower may elect from time to time to
convert Base Rate Loans to Eurodollar Loans by giving the Administrative Agent,
at least three Business Days prior irrevocable notice of such election (which
notice shall specify the length of the initial Interest Period therefor) and
the Canadian Borrower may elect from time to time to convert Canadian Prime
Rate Loans to Banker’s


 


42

















 


Acceptances,
provided, that no Base Rate Loan under a particular Facility may be
converted into a Eurodollar Loan and no Canadian Prime Rate Loan may be
converted into a Banker’s Acceptance (i) when any Event of Default has occurred
and is continuing and the Administrative Agent has, or the Majority Facility
Lenders in respect of such Facility have, determined in its or their sole
discretion not to permit such conversions or (ii) after the date that is one month
prior to the final scheduled termination or maturity date of such Facility and provided,
further that in the case of any conversion of Canadian Prime Rate Loans to
Banker’s Acceptances, the Canadian Borrower shall pay to the Canadian Agent for
the account of the Canadian Revolving Credit Lender such additional amounts, if
any, as shall be necessary to effect the payment in full of the respective
Canadian Prime Rate Loans being converted on such date. Upon receipt of any
such notice the Administrative Agent, or the Canadian Agent, as applicable,
shall promptly notify each relevant Lender thereof.


 


(b)           The US Borrower may elect to continue
any Eurodollar Loan as such upon the expiration of the then current Interest
Period with respect thereto and the Canadian Borrower may elect to continue
Banker’s Acceptance as such upon its maturity by giving at least three Business
Day’s prior irrevocable notice to the Administrative Agent, and with respect to
Canadian Revolving Credit Loans, the Canadian Agent, in accordance with the
applicable provisions of the term “Interest Period” set forth in Section 1.1 in
respect of Eurodollar Loans, of the length of the next Interest Period to be
applicable to such Loans, provided, that in the case of any continuation
of any Banker’s Acceptance, the Canadian Borrower shall pay to the Canadian
Agent for the account of the respective Canadian Revolving Credit Lenders such
additional amounts, if any, as shall be necessary to effect the payment in full
of the respective Banker’s Acceptances maturing on such date; provided,
that no Eurodollar Loan or Banker’s Acceptance under a particular Facility may
be continued as such (i) when any Event of Default has occurred and is
continuing and the Administrative Agent has or with respect to the Canadian
Revolving Credit Facility, the Canadian Agent has or the Majority Facility
Lenders in respect of such Facility have, determined in its or their sole
discretion not to permit such continuations or (ii) after the date that is one
month prior to the final scheduled termination or maturity date of such
Facility, and provided, further, that if the US Borrower or
Canadian Borrower, as applicable, shall fail to give any required notice as
described above in this Section 2-13(b) (x) such Eurodollar Loans or Banker’s
Acceptance, as applicable, shall be continued and for the same Interest Period
as the then expiring Interest Period as of the last day of such then expiring
Interest Period, except that if such continuation is not permitted pursuant to
the first proviso in this Section 2.13(b), such Loans shall be repaid or
converted automatically to Base Rate Loans and (y) the face amount of such
Banker’s Acceptance shall be repaid or automatically converted to Canadian
Prime Rate Loans on the last day of such then expiring Interest Period and
interest shall accrue on the amount thereof from such date at the rate then
applicable to Canadian Prime Rate Loans. Upon receipt of any such notice, the
Administrative Agent, or the Canadian Agent, as applicable, shall promptly
notify each relevant Lender thereof.


 


2.14.        Minimum Amounts and Maximum Number of
Eurodollar Tranches. (a) Notwithstanding anything to the contrary in this
Agreement, all borrowings, conversions, continuations and optional prepayments
of Eurodollar Loans and all selections of Interest Periods shall be in such
amounts and be made pursuant to such elections so that, (i) after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $1,000,000 or a whole multiple of
$1,000,000 in excess thereof and (ii) no more than ten Eurodollar Tranches
shall be outstanding at any one time.


 


(b)           Notwithstanding anything to the
contrary in this Agreement, all borrowings, conversions, continuations and
optional prepayments of Banker’s Acceptances and all selections of Interest
Periods shall be in such amounts and be made pursuant to such elections so that
after giving effect


 


43

















 


thereto,
the aggregate principal amount of any Banker’s Acceptance shall be equal to
Cdn. $500,000 or a whole multiple of Cdn. $100,000 in excess thereof.


 


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


 


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


 


(c)           Each Canadian Prime Rate Loan shall
bear interest for each day on which it is outstanding at a rate per annum equal
to the Canadian Prime Rate in effect for such day plus the Applicable Margin in
effect for such day.


 


(d)           Upon acceptance of a Banker’s
Acceptance by a Lender, the Canadian Borrower shall pay to the Canadian Agent
on behalf of such Lender a fee (the “Acceptance Fee”) calculated on the
face amount of the Banker’s Acceptances at a rate per annum equal to the
Applicable Margin in effect for such day on the basis of the number of days in
the Interest Period for the Banker’s Acceptance and a year of 365 days.


 


(e)           (i) If all or a portion of the principal
amount of any Loan or Reimbursement Obligation shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), then such
overdue amount (to the extent legally permitted) shall bear interest at a rate
per annum that is equal to (x) in the case of the Loans (other than Banker’s
Acceptances), the rate that would otherwise be applicable thereto pursuant to
the foregoing provisions of this Section plus 2.00% per annum, (y) (1) in the
case of the US Borrower’s Reimbursement Obligations, the rate applicable to
Base Rate Loans under the US Revolving Credit Facility plus 2.00% per annum or
(2) in the case of the Canadian Borrower’s Reimbursement Obligations and
Banker’s Acceptances, the rate applicable to Canadian Prime Rate Loans under
the Canadian Revolving Credit Facility plus 2.00% per annum and (ii) if all or
a portion of any interest payable on any Loan or Reimbursement Obligation or
any commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear Interest at a rate per annum equal to (i) the rate then
applicable to Base Rate Loans under the relevant Facility plus 2.00% per annum
for interest due in Dollars and (ii) the Canadian Prime Rate plus 2.00% per
annum for interest due in Canadian Dollars (or, in the case of any such other
amounts that do not relate to a particular Facility, the rate then applicable
to Base Rate Loans under the US Revolving Credit Facility plus 2.00% per annum
for amounts due in Dollars and the Canadian Prime Rate plus 2,00% per annum for
amounts due in Canadian Dollars), in each case, with respect to clauses (i) and
(ii) above, from the date of such non-payment until such amount is paid in full
(after as well as before judgment).


 


(f)            Interest shall be payable in arrears
on each Interest Payment Date, provided, that interest accruing pursuant
to Section 2.15(e) shall be payable from time to time on demand.


 


(g)           If any provision of this Agreement or
any of the other Loan Documents would obligate the Canadian Borrower to make
any payment of interest with respect to the Canadian Obligations or other
amount payable to the Canadian Agent or any Lender in an amount or calculated
at a rate which would be prohibited by law or would result in a receipt by the
Canadian Agent or such Lender of interest with respect to the Canadian
Obligations at a criminal rate (as such terms are construed under the Criminal
Code (Canada)) then, notwithstanding such provision, such amount or rates shall
be deemed to


 


44

















 


have
been adjusted with retroactive effect to the maximum amount or rate of
interest, as the case may be, as would not be so prohibited by law or so result
in a receipt by the Canadian Agent or such Lender of interest with respect to
the Canadian Obligations at a criminal rate, such adjustment to be effected, to
the extent necessary, as follows: (1) first, by reducing the amount or rates of
interest required to be paid to the Canadian Agent or the affected Lender under
this Section 2.15(g); and (2) thereafter, by reducing any fees, commissions,
premiums and other amounts required to be paid to the Canadian Agent or the
affected Lender which would constitute interest with respect to the Canadian
Obligations for purposes of Section 347 of the Criminal Code (Canada).
Notwithstanding the foregoing, and after giving effect to all adjustments
contemplated thereby, if the Canadian Agent or any Lender shall have received
an amount in excess of the maximum permitted by that section of the Criminal
Code (Canada), then the Canadian Borrower shall be entitled, by notice in
writing to the Canadian Agent or the affected Lender, to obtain reimbursement
from the Canadian Agent or such Lender in an amount equal to such excess, and
pending such reimbursement, such amount shall be deemed to be an amount payable
by the Canadian Agent or such Lender to the Canadian Borrower. Any amount or
rate of interest under fee Canadian Obligations referred to in this Section
2.15(g) shall be determined in accordance with generally accepted actuarial
practices and principles as an effective annual rate of interest over the term
that any Canadian Revolving Credit Loans remain outstanding on the assumption that
any charges, fees or expenses that fall within the meaning of “interest” (as
defined in the Criminal Code (Canada)) shall, if they relate to a specific
period of time, be pro-rated over that period of time and otherwise be
pro-rated over the period from the Closing Date to the Canadian Revolving
Credit Termination Date and, in the event of a dispute, a certificate of a
Fellow of the Canadian Institute of Actuaries appointed by the Canadian Agent
shall be conclusive for the purposes of such determination.


 


(h)           For purposes of disclosure pursuant
to the Interest Act (Canada), the annual rates of interest or fees to which the
rates of interest or fees provided in this Agreement and the other Loan
Documents (and stated herein or therein, as applicable, to be computed on the
basis of a 360 or 365 day year or any other period of time less than a calendar
year) are equivalent to the rates so determined multiplied by the actual number
of days in the applicable calendar year and divided by 360, 365 or such other period
of time, respectively.


 


2.16.        Computation of Interest and Fees.
(a) Interest, fees, commissions payable pursuant hereto shall be calculated on
the basis of a 360-day year for the actual days elapsed, except that, with
respect to (i) Base Rate Loans on which interest is calculated on the basis of
the Prime Rate and (ii) Canadian Prime Rate Loans on which interest is
calculated on the basis of the Canadian Prime Rate, the interest thereon shall
be calculated on the basis of a 365- (or 366-, as the case may be) day year for
the actual days elapsed. The Administrative Agent shall as soon as practicable
notify the US Borrower and the relevant Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a change
in the Canadian Prime Rate, the Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent, or with respect
to Canadian Revolving Credit Loans, the Canadian Agent, shall as soon as
practicable notify the Borrower and the relevant Lenders of the effective date
and the amount of each such change in interest rate.


 


(b)           Each determination of an interest
rate by the Administrative Agent, or with respect to Canadian Revolving Credit
Loans, the Canadian Agent, pursuant to any provision of this Agreement shall be
conclusive and binding on the US Borrower, the Canadian Borrower and the
Lenders in the absence of manifest error. The Administrative Agent, or the
Canadian Agent, as applicable, shall, at the request of the applicable
Borrower, deliver to such Borrower, a statement showing the quotations used by
the Administrative Agent in determining any interest rate or Acceptance Fee
pursuant to Section 2.15.


 


45

















 


2.17.        Inability to Determine Interest Rate.  If
prior to the first day of any Interest Period:


 


(a)           (i) the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the US
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, or


 


(ii) Administrative
Agent shall have received notice from the Majority Facility Lenders in respect
of the relevant Facility that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,


 


the Administrative Agent
shall give telecopy or telephonic notice thereof to the US Borrower, and the
relevant Lenders as soon as practicable thereafter. If such notice is given (x)
any Eurodollar Loans under the relevant Facility requested to be made on the
first day of such Interest Period shall be made as Base Rate Loans, (y) any
Loans under the relevant Facility that were to have been converted on the first
day of such Interest Period to Eurodollar Loans shall be continued as Base Rate
Loans and (z) any outstanding Eurodollar Loans under the relevant Facility
shall be converted, on the last day of the then current Interest Period with
respect thereto, to Base Rate Loans. Until such notice has been withdrawn by
the Administrative Agent, no further Eurodollar Loans under the relevant
Facility shall be made or continued as such, nor shall the US Borrower have the
right to convert Loans under the relevant Facility to Eurodollar Loans; or


 


(b)           any Canadian Revolving Credit Lender
determines in good faith, which determination shall be final, conclusive and
binding upon the Canadian Borrower, and notifies the Canadian Borrower that, by
reason of circumstances affecting the money market there is no market for
Banker’s Acceptances or the demand for Banker’s Acceptances is insufficient to
allow the sale or trading of the Banker’s Acceptances created hereunder, then:


 


(i)            the right of the Canadian Borrower to request
a Canadian Revolving Credit Loan by means of Banker’s Acceptances shall be
suspended until the Canadian Agent determines that the circumstances causing
such suspension no longer exist and the Canadian Agent so notifies the Canadian
Borrower; and


 


(ii)           any notice for the issuance of a Banker’s Acceptance which is outstanding
shall be cancelled and the request for such issuance shall be deemed to be a
request for a Canadian Prime Rate Loan in the principal amount of the requested
Banker’s Acceptance;


 


and such Canadian Revolving
Credit Lender shall promptly notify the Canadian Borrower of the suspension of
the Canadian Borrower’s right to request a Canadian Revolving Credit Loan by
way of a Banker’s Acceptance and of the termination of any such suspension.


 


2.18.        Pro Rata Treatment and Payments. (a) Each borrowing by the US Borrower
or the Canadian Borrower from the Lenders hereunder, commitment fee or Letter
of Credit fee, and any reduction of the Commitments of the Lenders, shall be
made pro  rata according to the respective Term Loan Percentages,
US Revolving Credit Percentages or Canadian Revolving Credit Percentages, as
the case may be, of the relevant Lenders; provided, that for purposes of
determining the ratable shares of the US Revolving Credit Lenders in any
funding of US Revolving Credit Loans or participations in Swing Line Loans or
US L/C Obligations, the amount of the US Revolving Credit Commitment of any US
Revolving Credit Lender that is also a Canadian Revolving Credit Lender shall
be reduced by the amount


 


46

















 


of its Canadian Revolving
Extensions of Credit then outstanding, converted to Dollars at the Exchange
Rate. Each payment of interest in respect of the Loans and each payment in
respect of fees payable hereunder shall be applied to the amounts of such
obligations owing to the Lenders pro  rata according to the
respective amounts then due and owing to the Lenders.


 


(b)           Each payment (including each prepayment) by
the US Borrower on account of principal of the Term Loans outstanding under the
Term Loan Facility shall be allocated among the Term Loan Lenders holding such
Term Loans pro  rata based on the principal amount of such Term
Loans held by such Term Loan Lenders, and each prepayment shall, at the US
Borrower’s option, be applied to the installments of such Term Loans either (i) pro
rata based on the remaining outstanding principal amount of such
installments or (ii) first, in direct order, to the next four succeeding
installments of such Term Loans and then pro  rata to the
remaining outstanding principal amount of such installments. Amounts prepaid on
account of the Term Loans may not be reborrowed.


 


(c)           Each payment (including each prepayment) of
the US Revolving Credit Loans shall be allocated among the US Revolving Credit
Lenders pro  rata according to the respective outstanding
principal amounts of the US Revolving Credit Loans then held by such US
Revolving Credit Lenders. Each payment (including each prepayment) of the
Canadian Revolving Credit Loans shall be allocated among the Canadian Revolving
Credit Lenders pro  rata according to the respective outstanding
principal amounts of the Canadian Revolving Credit Loans then held by such
Canadian Revolving Credit Lenders. Each payment in respect of Reimbursement
Obligations in respect of any Letter of Credit shall be made to the Issuing
Lender that issued such Letters of Credit.


 


(d)           The application of any payment of Loans under
any Facility (including optional and mandatory prepayments) shall be made, first,
to Base Rate Loans (and Canadian Prime Rate Loans, in the case of the Canadian
Borrower), under such Facility and, second, to Eurodollar Loans (and
Banker’s Acceptances, in the case of the Canadian Borrower) under such
Facility. Each payment of the Loans (except in the case of Revolving Credit
Loans that are Base Rate Loans or Canadian Prime Rate Loans and Swing Line
Loans) shall be accompanied by accrued interest to the date of such payment on
the amount paid.


 


(e)           All payments (including prepayments) to be made
by the US Borrower and the Canadian Borrower hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without setoff or
counterclaim. All payments (including prepayments) to be made by the US
Borrower hereunder, whether on account of principal, interest, fees or
otherwise shall be made prior to 12:00 Noon, New York City time, on the due
date thereof to the Administrative Agent, for the account of the relevant
Lenders, at the Payment Office, in Dollars and in immediately available funds.
Any payment made by a Borrower after 12:00 Noon, New York City time, on any
Business Day shall be deemed to have been made on the next following Business
Day.  The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. All payments (including prepayments) to be made by the Canadian
Borrower hereunder with respect to the Canadian Revolving Credit Facility,
whether on account of principal, interest, fees or otherwise, shall be made prior
to 12:00 Noon, Toronto time, on the due date thereof to the Canadian Agent, for
the account of the relevant Lenders, at the Canadian Payment Office, in
Canadian Dollars or Dollars (based on the currency applicable to such amount)
and in immediately available funds. Any payment made by the Canadian Borrower
after 12:00 Noon, Toronto time, on any Business Day shall be deemed to have
been made on the next following Business Day. 
The Canadian Agent shall distribute such payments to the Canadian
Revolving Credit Lenders promptly upon receipt in like funds as received. If
any payment hereunder (other than payments on the Eurodollar Loans and Banker’s
Acceptances) becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day. If any payment
on a


 


47

















 


Eurodollar Loan or Banker’s
Acceptance becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day unless
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension.


 


(f)            Unless the Administrative Agent or the
Canadian Agent, as applicable, shall have been notified in writing by any
Lender prior to a borrowing that such Lender will not make the amount that
would constitute its share of such borrowing available to the Administrative
Agent or the Canadian Agent, as applicable, such Agent may assume that such
Lender is making such amount available to such Agent, and such Agent may, in
reliance upon such assumption, make available to the US Borrower or the
Canadian Borrower, as applicable, a corresponding amount. If such amount is not
made available to the Administrative Agent, or the Canadian Agent, as
applicable, by the required time on the Borrowing Date therefor, such Lender
shall pay to the Administrative Agent, or the Canadian Agent, as applicable, on
demand, such amount with interest thereon at a rate equal to the daily average
Federal Funds Effective Rate for amounts in Dollars and the interbank offered
rate quoted by the Canadian Agent for amounts denominated in Canadian Dollars
for the period until such Lender makes such amount immediately available to
such Agent. A certificate of the Administrative Agent or the Canadian Agent, as
applicable, submitted to any Lender with respect to any amounts owing under
this paragraph shall be conclusive in the absence of manifest error. If such
Lender’s share of such borrowing is not made available to the applicable Agent by
such Lender within three Business Days after such Borrowing Date, the
Administrative Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to Base Rate Loans under the
relevant Facility, on demand, from the US Borrower or, the Canadian Agent shall
also be entitled to recover such amount with interest thereon at the rate per
annum applicable to Canadian Prime Rate Loans under the relevant Facility, on
demand, from the Canadian Borrower.


 


(g)           Unless the Administrative Agent, or the
Canadian Agent, as applicable, shall have been notified in writing by the US
Borrower, or the Canadian Borrower, as applicable, prior to the date of any
payment due to be made by such Borrower hereunder that such Borrower will not
make such payment to the applicable Agent, the applicable Agent may assume that
such Borrower, is making such payment, and the applicable Agent may, but shall
not be required to, in reliance upon such assumption, make available to the
applicable Lenders their respective pro  rata shares of a
corresponding amount.  If such payment is
not made to the applicable Agent by the US Borrower or the Canadian Borrower,
as applicable, within three Business Days after such due date, the applicable
Agent shall be entitled to recover, on demand, from each Lender to which any
amount which was made available pursuant to the preceding sentence, such amount
with interest thereon at the rate per annum equal to the daily average Federal
Funds Effective Rate for amounts in Dollars and the interbank offered rate
quoted by the Canadian Agent for amounts in Canadian Dollars. Nothing herein
shall be deemed to limit the rights of the Administrative Agent, the Canadian
Agent or any Lender against the US Borrower or the Canadian Borrower.


 


2.19.        Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:


 


(i)            shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement, any Letter of Credit, any
Application or any Eurodollar Loan made by it, or


 


48

















 


change
the basis of taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.20 and changes in the rate of tax
on the overall net income of such Lender);


 


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


 


(iii)          shall impose on such Lender any other condition;


 


and the result of any of the
foregoing is to increase the cost to such Lender, by an amount which such
Lender deems to be material, of making, converting into, continuing or
maintaining Eurodollar Loans or issuing or participating in Letters of Credit,
or to reduce any amount receivable hereunder in respect thereof, then, in any
such case, the US Borrower or the Canadian Borrower, as applicable, shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
Section, it shall promptly notify the US Borrower or the Canadian Borrower, as
applicable, with a copy to the Administrative Agent, or the Canadian Agent, as
applicable, of the event by reason of which it has become so entitled.


 


(b)           If any Lender shall have determined that the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender’s or such corporation’s capital as a
consequence of its obligations hereunder or under or in respect of any Letter
of Credit to a level below that which such Lender or such corporation could
have achieved but for such adoption, change or compliance (taking into
consideration such Lender’s or such corporation’s policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time, after submission by such Lender to the US Borrower or the
Canadian Borrower, as applicable, with a copy to the Administrative Agent, or
the Canadian Agent, as applicable, of a written request therefor, the US
Borrower or the Canadian Borrower, as applicable, shall pay to such Lender such
additional amount or amounts as will compensate such Lender or such corporation
for such reduction.


 


(c)           A certificate as to any additional amounts
payable pursuant to this Section submitted by any Lender to the US
Borrower or the Canadian Borrower, as applicable (with a copy to the applicable
Agent) shall be conclusive in the absence of manifest error.  The obligations of the US Borrower and the
Canadian Borrower pursuant to this Section shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder. No Lender shall be entitled to request any payment pursuant to this Section 2.19
unless such Lender is generally demanding payments under comparable provisions
of its agreements with similarly situated borrowers.  In addition, neither the US Borrower nor the
Canadian Borrower shall be required to compensate any Lender for any such
increased costs or reduced return incurred by such Lender more than 6 months
prior to such Lender’s written request to such Borrower as required above for
such compensation unless such increased costs or reduced return incurred by
such Lender is incurred retroactively, in which event such 6 month period shall
be extended by the period of retroactivity.


 


49

















 


2.20.        Taxes. (a) All payments made by or on behalf of the US Borrower and the
Canadian Borrower under this Agreement shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent, the Canadian Agent or any Lender as a result of a present
or former connection between the Administrative Agent, the Canadian Agent or
such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent’s, the
Canadian Agent’s or such Lender’s having executed, delivered or performed its
obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings (“Non-Excluded Taxes”) or any Other Taxes are required to
be withheld from any amounts payable to the Administrative Agent, the Canadian
Agent or any Lender hereunder, the amounts so payable to the Administrative
Agent, the Canadian Agent or such Lender shall be increased to the extent
necessary to yield to the Administrative Agent, the Canadian Agent or such
Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement; provided, however, that neither the
US Borrower nor the Canadian Borrower shall be required to increase any such
amounts payable to any Lender with respect to any Non-Excluded Taxes (i) that
are attributable to such Lender’s failure to comply with the requirements of Section 2.20(d) or
Section 2.20(e), (ii) in the case of any Non-U.S. Lender, that are
United States of America withholding taxes imposed on amounts payable to the
Administrative Agent, the Canadian Agent or such Lender at the time the
Administrative Agent, the Canadian Agent or such Lender becomes a party to this
Agreement, except to the extent that the Administrative Agent’s, the Canadian
Agent’s or such Lender’s assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the applicable Borrower with
respect to such Non-Excluded Taxes pursuant to this Section 2.20(a) or
(iii) in the case of any Canadian Revolving Credit Lender that is a
Non-Canadian Lender, that are Canadian withholding taxes imposed on amounts
payable to the Administrative Agent, the Canadian Agent or such Canadian
Revolving Credit Lender at the time the Administrative Agent, the Canadian
Agent or such Canadian Revolving Credit Lender becomes a party to this
Agreement, except to the extent that the Administrative Agent’s, the Canadian
Agent’s or such Canadian Revolving Credit Lender’s assignor (if any) was
entitled, at the time of assignment, to receive additional amounts from the
applicable Borrower with respect to such Non-Excluded Taxes pursuant to this Section 2.20(a).
The applicable Borrower and any applicable Guarantor shall make any required
withholding and pay the full amount withheld to the relevant tax authority or
other Governmental Authority in accordance with applicable Requirements of Law.


 


(b)           In addition, the US Borrower and the Canadian
Borrower shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.


 


(c)           Whenever any Non-Excluded Taxes or Other
Taxes are payable by the US Borrower and the Canadian Borrower, as promptly as
possible thereafter the relevant Borrower shall send to the Administrative
Agent, or the Canadian Agent, as applicable, for the account of the relevant
Agent or Lender, as the case may be, a certified copy of an original official
receipt received by the US Borrower or the Canadian Borrower showing payment
thereof. If the US Borrower or the Canadian Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority
or fails to remit to the applicable Agent the required receipts or other required
documentary evidence, the US Borrower and the Canadian Borrower shall indemnify
the Administrative Agent, the Canadian Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by any such
Agent


 


50

















 


or any Lender as a result of
any such failure. The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.


 


(d)           Each Lender (or Transferee) making,
participating in, or receiving an assignment with respect to a Loan to the US
Borrower, that is not a citizen or resident of the United States of America, a
corporation, partnership or other entity created or organized in or under the
laws of the United States of America (or any jurisdiction thereof), or any
estate or trust that is subject to federal income taxation regardless of the
source of its income (a “Non-U.S. Lender”) shall deliver to the US
Borrower and the Administrative Agent two copies of either U.S. Internal
Revenue Service Form W-8BEN, Form W-8ECI and/or Form W-8IMY, or,
in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of “portfolio interest” a statement substantially in the
form of Exhibit H to the effect that such Lender is eligible for a
complete exemption from withholding of U.S. taxes under Section 871(h) or
881(c) of the Code and a Form W-8BEN and/or Form W-8IMY, or any
subsequent versions thereof or successors thereto properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption from, or a reduced
rate of, U.S. federal withholding tax on all payments by the Borrower under
this Agreement and the other Loan Documents. Such forms shall be delivered by
each Non-U.S. Lender on or before the date it becomes a party to this Agreement
(or, in the case of a Participant, on or before the date such Participant
purchases the related participation). In addition, each Non-U.S. Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall
promptly notify the US Borrower and the Administrative Agent at any time it determines
that it is no longer in a position to provide any previously delivered
certificate to the US Borrower (or any other form of certification adopted by
the U.S. taxing authorities for such purpose). Notwithstanding any other
provision of this paragraph, a Non-U.S. Lender shall not be required to deliver
any form pursuant to this paragraph that such Non-U.S. Lender is not legally
able to deliver. If any Non-U.S. Lender provides a Form W-8IMY, such
Non-U.S. lender must also attach the additional documentation that must be
transmitted with the Form W-8IMY, including the appropriate forms
described in this Section.


 


(e)           Any Lender that is entitled to an exemption
from or reduction of a non-U.S. withholding tax with respect to payments under
this Agreement shall deliver to the US Borrower, the Canadian Borrower, the
Administrative Agent and the Canadian Agent, as applicable, at the time or
times prescribed by applicable law and reasonably requested in writing by the
relevant Borrower, such properly completed and executed documentation
prescribed by Requirements of Law or as may be required by the applicable Agent
as will permit such payments to be made without withholding or at a reduced
rate; provided that such Lender is legally entitled to complete, execute
and deliver such documentation and in such Lender’s reasonable judgment such
completion, execution or submission would not materially prejudice the legal
position of such Lender.


 


(f)            If a Lender receives a refund in respect of
any Non-Excluded Taxes or Other Taxes as to which it has been indemnified by
the Borrower and/or the Canadian Borrower or with respect to which the US
Borrower or the Canadian Borrower, as applicable, has paid additional amounts
pursuant to this Section 2.20, it shall, within 180 days from the date of
such receipt, pay over the amount of such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by the US Borrower or the
Canadian Borrower under this Section 2.20 with respect to the Non-Excluded
Taxes or Other Taxes giving rise to such refund) to the US Borrower or the
Canadian Borrower, net of all reasonable out-of-pocket expenses of such Lender
(including any taxes imposed with respect to such refund) as determined by such
Lender in good faith and in its sole discretion, and without interest (other
than interest paid by the relevant taxation authority with respect to such
refund); provided, however, that the US Borrower or the Canadian
Borrower, as applicable, upon the request of such Lender, agrees to


 


51

















 


repay as soon as reasonably
practicable the amount paid over to the US Borrower or the Canadian Borrower
(plus applicable interest imposed by the relevant Governmental Authority) to
such Lender in the event such Lender is required to repay such refund to such
Governmental Authority.


 


(g)           Each Lender (other than a Lender that is only
a Canadian Revolving Credit Lender) that is a “United States person” within the
meaning of Section 7701(a)(30) of the Code shall deliver to the US
Borrower and the Administrative Agent, on or before the date such Lender
becomes a party to this Agreement (and promptly from time to time thereafter if
any form previously delivered becomes inaccurate or upon the request of the US Borrower
or Administrative Agent), two copies of Internal Revenue Service Form W-9
or any successor or other form prescribed by the Internal Revenue Service. If
any such Lender fails to deliver Internal Revenue Service Form W-9 (or any
subsequent versions thereof or successors thereto) as required herein, or fails
to notify the US Borrower and the Administrative Agent promptly at any time it
determines that it is no longer in a position to provide any previously
delivered form, then the US Borrower may withhold from any payment to such
Lender the applicable United States federal backup withholding tax imposed by
the Code and remit such amount to the relevant tax authority or other
Governmental Authority in accordance with the applicable Requirements of Law, without
reduction, and such Lender shall not be entitled to any additional amounts
under this Section 2.20 with respect to Non-Excluded Taxes imposed by the
United States by reason of such failure; provided however that a Lender
that may properly be treated as an “exempt recipient” within the meaning of
Treasury regulations section 1.6049-4(c) (without regard to the last
sentence of section 1.6049-4(c)(l)(i)), based on the indicators in such
section, shall not be required to provide such Form W-9.


 


2.21.        Indemnity.  The US Borrower agrees to
indemnify each Lender for, and to hold each Lender harmless from, any loss or
expense that such Lender may sustain or incur as a consequence of (a) default
by the US Borrower in making a borrowing of, conversion into or continuation of
Eurodollar Loans after the US Borrower, has given a notice requesting the same
in accordance with the provisions of this Agreement, (b) default by the
Canadian Borrower in proceeding with the issuance of Banker’s Acceptances (or
the Discount Notes in lieu thereof) after delivery of notice thereof pursuant
to Section 2.5(b), (c) default by the US Borrower or the Canadian
Borrower in making any prepayment after the US Borrower, or the Canadian
Borrower, as applicable, has given a notice thereof in accordance with the
provisions of this Agreement or (d) the making of a prepayment or
conversion of Eurodollar Loans on a day that is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest
(as reasonably determined by such Lender) that would have accrued to such
Lender on such amount by placing such amount on deposit for a comparable period
with leading banks in the interbank Eurodollar market. A certificate as to any
amounts payable pursuant to this Section submitted to the US Borrower by
any Lender shall be conclusive in the absence of manifest error. This covenant
shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.


 


2.22.        Illegality. Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Lender to make or maintain Eurodollar
Loans as contemplated by this Agreement, then such Lender shall be an “Affected
Lender” and such Lender shall on such day give notice (by telefacsimile or by
telephone confirmed in writing) to the Administrative Agent of such
determination (which notice


 


52

















 


Administrative Agent shall
promptly transmit to each other Lender). Thereafter (a) the commitment of
such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert Base Rate Loans to Eurodollar Loans shall forthwith be
suspended until such notice shall be withdrawn by the Affected Lender or (b) to
the extent such determination by the Affected Lender relates to Eurodollar
Loans requested through a Borrowing Notice or notice of conversion, such Lender
shall make such Loan as a Base Rate Loan on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs
on a day which is not the last day of the then current Interest Period with
respect thereto, the US Borrower shall pay to such Lender such amounts, if any,
as may be required pursuant to Section 2.21.


 


2.23.        Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.19, 2.20(a) or
2.22 with respect to such Lender, it will, if requested by the US Borrower or
the Canadian Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any
Loans affected by such event or take such other measures as such Lender may
deem reasonable, if as a result thereof the circumstances which would cause
such Lender to be an Affected Lender would cease to exist or the additional
amounts which would otherwise be required to be paid to such Lender pursuant to
Section 2.19, 2.20(a) or 2.21 would be reduced; provided, that
such designation is made on terms that, in the sole judgment of such Lender,
cause such Lender and its lending office(s) to suffer no material economic,
legal or regulatory disadvantage and provided, that nothing in this Section shall
affect or postpone any of the obligations of the US Borrower or the Canadian
Borrower or the rights of any Lender pursuant to Section 2.19, 2.20(a) or
2.22.


 


2.24.        Removal or Replacement of a Lender. Anything contained herein to the contrary
notwithstanding, in the event that:  (a) (i) any
Lender (an “Increased-Cost Lender”) shall give notice to the US Borrower
that such Lender is an Affected Lender or that such Lender is entitled to
receive payments under Section 2.19 or 2.20(a), (ii) the
circumstances which have caused such Lender to be an Affected Lender or which
entitle such Lender to receive such payments shall remain in effect, and (iii) such
Lender shall fail to withdraw such notice within five Business Days after the
US Borrower’s request for such withdrawal; or (b) (i) any Lender shall
become a Defaulting Lender, and (ii) such Defaulting Lender shall fail to
cure the default as a result of which it has become a Defaulting Lender within
five Business Days after the US Borrower’s request that it cure such default;
or (c) in connection with any proposed amendment, modification,
termination, waiver or consent with respect to any of the provisions hereof as
contemplated by Section 10.1, the consent of Required Lenders shall have
been obtained but the consent of one or more of such other Lenders (each a “Non-Consenting
Lender”) whose consent is required shall not have been obtained; then, with
respect to each such Increased-Cost Lender, Defaulting Lender or Non-Consenting
Lender (the “Terminated Lender”), the Borrower may, by giving written notice
to Administrative Agent and any Terminated Lender of its election to do so,
elect to cause such Terminated Lender (and such Terminated Lender hereby
irrevocably agrees) to assign its outstanding Loans and its Revolving Credit
Commitments, if any, in full to one or more eligible assignees under Section 10.6
(each a “Replacement Lender”) in accordance with the provisions of Section 10.6
and Terminated Lender shall pay any fees payable thereunder in connection with
such assignment; provided, that (1) on the date of such assignment,
the Replacement Lender shall pay to Terminated Lender an amount equal to the
sum of (A) an amount equal to the principal of, and all accrued interest
on, all outstanding Loans of the Terminated Lender, together with, in the case
of any assignment pursuant to Section 2.24(c), the Prepayment Fee, (B) an
amount equal to all unreimbursed drawings of Letters of Credit that have been
funded by such Terminated Lender, together with all then unpaid interest with
respect thereto at such time and (C) an amount equal to all accrued, but
theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.9;
(2) on the date of such assignment, the US Borrower and/or the Canadian
Borrower, as applicable, shall pay any amounts payable to such Terminated
Lender


 


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pursuant to Section 2.19,
2.20 or 2.22; and (3) in the event such Terminated Lender is a
Non-Consenting Lender, each Replacement Lender shall consent, at the time of
such assignment, to each matter in respect of which such Terminated Lender was
a Non-Consenting Lender; provided, that the US Borrower may not make
such election with respect to any Terminated Lender that is also an Issuing
Lender unless, prior to or simultaneously with the effectiveness of such
election, the US Borrower shall have caused each outstanding Letter of Credit
issued thereby to be cancelled or to be secured by cash collateral or a
back-to-back-to-back letter of credit in an amount equal to the aggregate undrawn
and unexpired amount of such Letters of Credit issued by the Terminated Lender.
Upon the prepayment of all amounts owing to any Terminated Lender and the
termination of such Terminated Lender’s Commitments, such Terminated Lender
shall no longer constitute a “Lender” for purposes hereof; provided,
that any rights of such Terminated Lender to indemnification hereunder shall
survive as to such Terminated Lender.


 


SECTION 3. LETTERS OF CREDIT


 


3.1.          L/C Commitment. 
(a)  Subject to the terms and
conditions hereof, each US Issuing Lender, in reliance on the agreements of the
other US Revolving Credit Lenders set forth in Section 3.4(a), agrees to
issue letters of credit (the “US Letters of Credit”) for the account of
the US Borrower on any Business Day during the US Revolving Credit Commitment
Period in such form as may be approved from time to time by such US Issuing
Lender; provided, that no US Issuing Lender shall have any obligation to
issue any US Letter of Credit if, after giving effect to such issuance, (i) the
US L/C Obligations would exceed the US L/C Commitment or (ii) the
aggregate amount of the Available US Revolving Credit Commitments would be less
than zero. Each US Letter of Credit shall (i) be denominated in Dollars
and (ii) expire no later than the earlier of (x) the first anniversary of
its date of issuance and (y) the date which is five Business Days prior to the
US Revolving Credit Termination Date; provided, that any US Letter of
Credit with a one-year term may provide for the renewal thereof for additional
one-year periods (which shall in no event extend beyond the date referred to in
clause (y) above).


 


(b)           Subject to the terms and conditions hereof,
each Canadian Issuing Lender, in reliance on the agreements of the other
Canadian Revolving Credit Lenders set forth in Section 3.4(d), agrees to
issue letters of credit (“Canadian Letters of Credit”) for the account
of the Canadian Borrower on any Business Day during the Canadian Revolving
Credit Commitment Period in such form as may be approved from time to time by
such Canadian Issuing Lender; provided, that no Canadian Issuing Lender
shall have any obligation to issue any Canadian Letter of Credit if, after
giving effect to such issuance (i) the Canadian L/C Obligations would
exceed the Canadian L/C Commitment or (ii) the aggregate amount of the
Available Canadian Revolving Credit Commitments would be less than zero.  Each Canadian Letter of Credit shall (i) be
denominated in Canadian Dollars and (ii) expire no later than the earlier
of (x) the first anniversary of its date of issuance and (y) the date which is
five Business Days prior to the Canadian Revolving Credit Termination Date; provided,
that any Canadian Letter of Credit with a one-year term may provide for the
renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above).


 


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


 


3.2.          Procedure for Issuance of Letter of Credit. (a) The US Borrower may from time to
time request that a US Issuing Lender issue a US Letter of Credit by delivering
to such US Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of such US Issuing Lender,
and such other certificates, documents and other papers and information as such


 


54

















 


US Issuing Lender may
reasonably request. Concurrently with the delivery of an Application to a US
Issuing Lender, the US Borrower shall deliver a copy thereof to the
Administrative Agent. Upon receipt of any Application, a US Issuing Lender will
process such Application and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the US Letter of Credit requested
thereby by issuing the original of such US Letter of Credit to the beneficiary
thereof or as otherwise may be agreed to by such US Issuing Lender and the US
Borrower (but in no event shall any US Issuing Lender be required to issue any
US Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other
papers and information relating thereto). Promptly after issuance by a US
Issuing Lender of a US Letter of Credit, such US Issuing Lender shall furnish a
copy of such US Letter of Credit to the US Borrower, as applicable. Each US
Issuing Lender shall promptly give notice to the Administrative Agent of the
issuance of each US Letter of Credit issued by such US Issuing Lender
(including the face amount thereof), and shall provide a copy of such US Letter
of Credit to the Administrative Agent as soon as possible after the date of
issuance.


 


(b)           The Canadian Borrower may from time to time
request that a Canadian Issuing Lender issue a Canadian Letter of Credit by
delivering to such Canadian Issuing Lender, with a copy to the Administrative
Agent and the Canadian Agent, at their addresses for notices specified herein
an Application therefor, completed to the satisfaction of such Canadian Issuing
Lender, and such other certificates, documents and other papers and information
as such Canadian Issuing Lender may reasonably request. Upon receipt of any
such Application, a Canadian Issuing Lender will process such Application and
the certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Canadian Letter of Credit requested thereby by issuing the
original of such Canadian Letter of Credit to the beneficiary thereof or as
otherwise may be agreed to by such Canadian Issuing Lender and the Canadian
Borrower (but in no event shall any Canadian Issuing Lender be required to
issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and
other papers and information relating thereto). Promptly after issuance by a
Canadian Issuing Lender of a Canadian Letter of Credit, such Canadian Issuing
Lender shall furnish a copy of such Letter of Credit to the Canadian Borrower,
the Administrative Agent and the Canadian Agent. Each Canadian Issuing Lender
shall promptly give notice to the Administrative Agent and the Canadian Agent
of the issuance of each Canadian Letter of Credit issued by such Canadian
Issuing Lender (including the amount thereof).


 


3.3.          Fees and Other Charges. (a) (i) The US Borrower will pay
a fee on the aggregate drawable amount of all outstanding US Letters of Credit
opened for its account at a per annum rate equal to the Applicable Margin then
in effect with respect to Eurodollar Loans under the US Revolving Credit
Facility, shared ratably among the US Revolving Credit Lenders in accordance
with their respective US Revolving Credit Percentages and (ii) the
Canadian Borrower will pay a fee on the aggregate drawable amount of all
outstanding Canadian Letters of Credit at a per annum rate equal to the
Applicable Margin then in effect with respect to Banker’s Acceptances under the
Canadian Revolving Credit Facility, shared ratably among the Canadian Revolving
Credit Lenders in accordance with their respective Canadian Revolving Credit
Percentages and each such fee is payable quarterly in arrears on each L/C Fee
Payment Date after the issuance date of such Letter of Credit. Such fees shall
be payable in the same currency as the Letter of Credit to which such fees
relate and in addition, the applicable Borrower shall pay to the relevant
Issuing Lender for its own account a fronting fee on the aggregate drawable
amount of all outstanding Letters of Credit issued by it at a rate to be agreed
by the applicable Borrower and such Issuing Lender, payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date.


 


55

















 


(b)           In addition to the foregoing fees, the US
Borrower shall pay or reimburse each US Issuing Leader and the Canadian
Borrower shall pay or reimburse each Canadian Issuing Lender for such normal
and customary costs and expenses as are incurred or charged by such Issuing
Lender in issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit.


 


3.4.          L/C Participations. (a) Each US Issuing Lender irrevocably
agrees to grant and hereby grants to each US L/C Participant, and, to induce
each US Issuing Lender to issue US Letters of Credit hereunder, each US L/C
Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from each US Issuing Lender, on the terms and conditions hereinafter
stated, for such US L/C Participant’s own account and risk, an undivided
interest equal to such US L/C Participant’s US Revolving Credit Percentage in
each US Issuing Lender’s obligations and rights under each US Letter of Credit
issued by such US Issuing Lender hereunder and the amount of each draft paid by
such US Issuing Lender thereunder. Each US L/C Participant unconditionally and
irrevocably agrees with each US Issuing Lender that, if a draft is paid under
any US Letter of Credit issued by such US Issuing Lender for which such US
Issuing Lender is not reimbursed in full by the US Borrower in accordance with
the terms of this Agreement, such US L/C Participant shall pay to the
Administrative Agent for the account of such US Issuing Lender upon demand at
such US Issuing Lender’s address for notices specified herein (and thereafter
the Administrative Agent shall promptly pay to such US Issuing Lender) an
amount equal to such US L/C Participant’s US Revolving Credit Percentage of the
amount of such draft, or any part thereof, that is not so reimbursed. Each US
L/C Participant’s obligation to pay such amount shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
setoff, counterclaim, recoupment, defense or other right that such US L/C
Participant may have against the US Issuing Lender, the US Borrower or any
other Person for any reason whatsoever, (ii) the occurrence or continuance
of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5, (iii) any adverse change in the
condition (financial or otherwise) of either Borrower, (iv) any breach of
this Agreement or any other Loan Document by either Borrower, any other Loan
Party or any other US L/C Participant or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.


 


(b)           If any amount required to be paid by any US
L/C Participant to an US Issuing Lender pursuant to Section 3.4(a) in
respect of any unreimbursed portion of any payment made by such US Issuing
Lender under any US Letter of Credit is paid to such US Issuing Lender within
three Business Days after the date such payment is due, the US Issuing Lender
shall so notify the Administrative Agent, who shall promptly notify the US L/C
Participants and each such US L/C Participant shall pay to the Administrative
Agent, for the account of the US Issuing Lender on demand (and thereafter the
Administrative Agent shall promptly pay to the US Issuing Lender) an amount
equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available to
such US Issuing Lender, times (iii) a fraction the numerator of which is
the number of days that elapse during such period and the denominator of which
is 360. If any such amount required to be paid by any US L/C Participant
pursuant to Section 3.4(a) is not made available to the
Administrative Agent, for the account of such US Issuing Lender, by such US L/C
Participant within three Business Days after the date such payment is due, the
Administrative Agent, on behalf of such US Issuing Lender shall be entitled to
recover from such US L/C Participant, on demand, such amount with interest
thereon calculated from such due date at the rate per annum applicable to Base
Rate Loans under the US Revolving Credit Facility. A certificate of the
Administrative Agent on behalf of such US Issuing Lender submitted to any US
L/C Participant with respect to any such amounts owing under this Section shall
be conclusive in the absence of manifest error.


 


56

















 


(c)           Whenever, at any time after any US Issuing
Lender has made payment under any US Letter of Credit and has received from the
Administrative Agent any US L/C Participant’s pro  rata share of
such payment in accordance with Section 3.4(a), such US Issuing Lender
receives any payment related to such US Letter of Credit (whether directly from
the US Borrower or otherwise, including proceeds of collateral applied thereto
by such US Issuing Lender), or any payment of interest on account thereof, such
US Issuing Lender will distribute to the Administrative Agent for the account
of such US L/C Participant (and thereafter, the Administrative Agent will
promptly distribute to such US L/C Participant) its pro  rata
share thereof; provided, however, that in the event that any such
payment received by such US Issuing Lender shall be required to be returned by
such US Issuing Lender, such US L/C Participant shall return to the
Administrative Agent for the account of such US Issuing Lender the portion
thereof previously distributed by such US Issuing Lender to it.


 


(d)           Each Canadian Issuing Lender irrevocably
agrees to grant and hereby grants to each Canadian L/C Participant, and, to
induce each Canadian Issuing Lender to issue Canadian Letters of Credit
hereunder, each Canadian L/C Participant irrevocably agrees to accept and
purchase and hereby accepts and purchases from each Canadian Issuing Lender, on
the terms and conditions hereinafter stated, for such Canadian L/C Participant’s
own account and risk, an undivided interest equal to such Canadian L/C
Participant’s Canadian Revolving Credit Percentage in each Canadian Issuing
Lender’s obligations and rights under each Canadian Letter of Credit issued by
such Canadian Issuing Lender hereunder and the amount of each draft paid by
such Canadian Issuing Lender thereunder. Each Canadian L/C Participant
unconditionally and irrevocably agrees with each Canadian Issuing Lender that,
if a draft is paid under any Canadian Letter of Credit issued by such Canadian
Issuing Lender for which such Canadian Issuing Lender is not reimbursed in full
by the Canadian Borrower in accordance with the terms of this Agreement, such
Canadian L/C Participant shall pay to the Canadian Agent for the account of
such Canadian Issuing Lender upon demand at such Canadian Issuing Lender’s
address for notices specified herein (and thereafter the Canadian Agent shall
promptly pay to such Canadian Issuing Lender) an amount equal to such Canadian
L/C Participant’s Canadian Revolving Credit Percentage of the amount of such
draft, or any part thereof, that is not so reimbursed. Each Canadian L/C
Participant’s obligation to pay such amount shall be absolute and unconditional
and shall not be affected by any circumstance, including (i) any setoff,
counterclaim, recoupment, defense or other right that such Canadian L/C
Participant may have against the Canadian Issuing Lender, the Canadian Borrower
or any other Person for any reason whatsoever, (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any
of the other conditions specified in Section 5, (iii) any adverse
change in the condition (financial or otherwise) of either Borrower, (iv) any
breach of this Agreement or any other Loan Document by either Borrower, any
other Loan Party or any other Canadian L/C Participant or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.


 


(e)           If any amount required to be paid by any
Canadian L/C Participant to a Canadian Issuing Lender pursuant to Section 3.4(d) in
respect of any unreimbursed portion of any payment made by such Canadian
Issuing Lender under any Canadian Letter of Credit is paid to such Canadian
Issuing Lender within three Business Days after the date such payment is due,
the Canadian Issuing Lender shall so notify the Administrative Agent and the
Canadian Agent who shall promptly notify the Canadian L/C Participants and each
such Canadian L/C Participant shall pay to the Canadian Agent, for the account
of the Canadian Issuing Lender on demand (and thereafter the Canadian Agent
shall promptly pay to the Canadian Issuing Lender) an amount equal to the
product of (i) such amount, times (ii) the daily average interbank
offered rate quoted by the Canadian Agent during the period from and including
the date such payment is required to the date on which such payment is
immediately available to such Canadian Issuing Lender, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 365 (or 366 as applicable). If any such
amount required to be paid by any Canadian L/C Participant pursuant to Section 3.4(d) is
not made available to the Canadian Agent, for


 


57

















 


the account of such Canadian
Issuing Lender, by such Canadian L/C Participant within three Business Days
after the date such payment is due, the Canadian Agent, on behalf of such
Canadian Issuing Lender shall be entitled to recover from such Canadian L/C
Participant, on demand, such amount with interest thereon calculated from such
due date at the rate per annum applicable to Base Rate Loans under the Canadian
Revolving Credit Facility for amounts due in Dollars and Canadian prime Rate
Loans for amounts due in Canadian Dollars. A certificate of the Canadian Agent
on behalf of such Canadian Issuing Lender submitted to any Canadian L/C
Participant with respect to any such amounts owing under this Section shall
be conclusive in the absence of manifest error.


 


(f)            Whenever, at any time after a Canadian
Issuing Lender has made payment under any Canadian Letter of Credit and has
received from the Canadian Agent any Canadian L/C Participant’s pro  rata
share of such payment in accordance with Section 3.4(d), such Canadian
Issuing Lender receives any payment related to such Canadian Letter of Credit
(whether directly from the Canadian Borrower or otherwise, including proceeds
of collateral applied thereto by such Canadian Issuing Lender), or any payment
of interest on account thereof, such Canadian Issuing Lender will distribute to
the Canadian Agent for the account of such Canadian L/C Participant (and
thereafter, the Canadian Agent will promptly distribute to such Canadian L/C
Participant) its pro  rata share thereof; provided, however,
that in the event that any such payment received by such Canadian Issuing
Lender shall be required to be returned by such Canadian Issuing Lender, such
Canadian L/C Participant shall return to the Canadian Agent for the account of
such Canadian Issuing Lender the portion thereof previously distributed by such
Canadian Issuing Lender to it.


 


3.5.
Reimbursement Obligation of the Borrower. (a) The US Borrower
agrees to reimburse each US Issuing Lender, on the Business Day on which such
US Issuing Lender notifies the US Borrower of the date and amount of a draft
presented under any US Letter of Credit and paid by such US Issuing Lender (if
such notice is received prior to 11:00 A.M. New York City time on such
day, otherwise on the next Business Day after such notice is received), for the
amount of (a) such draft so paid and (b) any taxes, fees, charges or
other costs or expenses incurred by such Issuing Lender in connection with such
payment (the amounts described in the foregoing clauses (a) and (b) in
respect of any drawing, collectively, the “Payment Amount”). The US
Issuing Lender shall provide notice to the US Borrower on each Business Day on
which a draft is presented and paid by the US Issuing Lender indicating the
Payment Amount, provided, that failure to provide such notice shall not
affect the US Borrower’s obligations hereunder. Each such payment shall be made
to such US Issuing Lender at its address for notices specified herein in Lawful
money of the United States of America and in immediately available funds. Interest
shall be payable on each Payment Amount from the date of the applicable drawing
until payment in full at the rate set forth in Section 2.15. Each drawing
under any Letter of Credit shall (unless an event of the type described in Section 8(f)(i) or
Section 8.1(f)(ii) shall have occurred and be continuing with respect
to the US Borrower, in which case the procedures specified in Section 3.4
for funding by US L/C Participants shall apply) constitute a request by the US
Borrower to the Administrative Agent for a borrowing pursuant to Section 2.5
of Base Rate Loans (or, at the option of the Administrative Agent and the Swing
Line Lender in their sole discretion, a borrowing pursuant to Section 2.7
of Swing Line Loans) in the amount of such drawing. The Borrowing Date with
respect to such borrowing shall be the first date on which a borrowing of US
Revolving Credit Loans (or, if applicable, Swing Line Loans) could be made,
pursuant to Section 2.5 (or, if applicable, Section 2.7), if the
Administrative Agent had received a notice of such borrowing at the time the
Administrative Agent receives notice from the relevant US Issuing Lender of
such drawing under such US Letter of Credit. All payments due from the US
Borrower hereunder in respect of US Letters of Credit (and US Reimbursement
Obligations in connection therewith) shall be made in Dollars.


 


58

















 


(b)           The Canadian Borrower agrees to reimburse
each Canadian Issuing Lender, on each date on which such Canadian Issuing
Lender notifies the Canadian Borrower of the date and amount of a draft
presented under any Canadian Letter of Credit and paid by such Canadian Issuing
Lender (if such notice is received prior to 11:00 A.M. Toronto time on
such day, otherwise on the next Business Day after such notice is received),
for the amount of (a) such draft so paid and (b) any taxes, fees,
charges or other costs or expenses incurred by such Canadian Issuing Lender in
connection with such payment (the amounts described in the foregoing clauses (a) and
(b) in respect of any drawing, collectively, the “Canadian Payment
Amount”). The Canadian Issuing Lender shall provide notice to the Canadian
Borrower on each Business Day on which a draft is presented and paid by the
Canadian Issuing Lender indicating the Canadian Payment Amount stated in
Canadian Dollars. Each such payment shall be made to such Canadian Issuing
Lender at its address for notices specified herein in Canadian Dollars and in
immediately available funds. Interest shall be payable on the amount of each
Canadian Payment Amount from the date of the applicable drawing until payment
in full at the rate set forth in (i) until the second Business Day
following the date of the applicable drawing, Section 2.15(e) and (ii) thereafter,
Section 2.15(f). Each drawing under any Canadian Letter of Credit shall
(unless an event of the type described in Section 8(f)(i) or Section 8.1(f)(ii) shall
have occurred and be continuing with respect to any Borrower, in which case the
procedures specified in Section 3.4 for funding by L/C Participants shall
apply) constitute a request by Canadian Borrower to the Canadian Agent for a
borrowing pursuant to Section 2.5(b) of Canadian Prime Rate Loans in
the amount of such drawing. The Borrowing Date with respect to such borrowing
shall be the first date on which a borrowing of Canadian Revolving Credit Loans
could be made, pursuant to Section 2.5(b), if the Canadian Agent had
received a notice of such borrowing at the time the Canadian Agent received notice
from the relevant Canadian Issuing Lender of such drawing under such Canadian
Letter of Credit. All payments due from the Canadian Borrower hereunder in
respect of Canadian Letters of Credit (and Canadian Reimbursement Obligations
in connection therewith) shall be made in Canadian Dollars.


 


3.6.          Obligations Absolute.  The
US Borrower’s and the Canadian Borrower’s obligations under this Section 3
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment that either the
US Borrower or the Canadian Borrower may have or have had against any Issuing
Lender, any beneficiary of a Letter of Credit or any other Person.  The US Borrower and the Canadian Borrower
also each agree with each Issuing Lender that such Issuing Lender shall not be
responsible for, and the US Borrower’s and the Canadian Borrower’s
Reimbursement Obligations under Section 3.5 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the US Borrower
and/or the Canadian Borrower and any beneficiary of any Letter of Credit or any
other party to which such Letter of Credit may be transferred or any claims
whatsoever of the either the US Borrower and/or the Canadian Borrower against
any beneficiary of such Letter of Credit or any such transferee. No Issuing
Lender shall be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a court of competent jurisdiction to have resulted directly
from the gross negligence or willful misconduct of such Issuing Lender. The US
Borrower and the Canadian Borrower each agrees that any action taken or omitted
by an Issuing Lender under or in connection with any Letter of Credit issued by
it or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and, with respect to Letters of Credit, in
accordance with the standards of care specified in the UCC of the State of New
York, shall be binding on the US Borrower and the Canadian Borrower, as
applicable.


 


3.7.          Letter of Credit Payments. If any draft shall be presented for payment
under any Letter of Credit, the relevant Issuing Lender shall promptly notify
the Administrative Agent, if such


 


59

















 


Letter of Credit is a
Canadian Letter of Credit, the Canadian Agent, the US Borrower and, if such
Letter of Credit is a Canadian Letter of Credit, the Canadian Borrower, of the
date and the amount thereof. The responsibility of the relevant Issuing Lender
to the US Borrower or the Canadian Borrower, as applicable, in connection with
any draft presented for payment under any Letter of Credit, in addition to any
payment obligation expressly provided for in such Letter of Credit issued by
such Issuing Lender, shall be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with
such presentment appear on their face to be in conformity with such Letter of
Credit.


 


3.8.          Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.


 


3.9.          Existing Letters of Credit.  On
the Closing Date, (i) each Existing Letter of Credit, to the extent
outstanding, shall automatically and without further action by the parties
thereto be deemed converted to Letters of Credit issued pursuant to Section 3.2
for the account of the US Borrower or the Canadian Borrower, as applicable, and
subject to the provisions hereof, and for this purpose the fees payable with
respect to such Letters of Credit issued hereunder pursuant to Section 3.3
shall be payable (in substitution for any fees set forth in the applicable
letter of credit reimbursement agreements or applications relating to such
letters of credit) as if such Letters of Credit had been issued on the Closing
Date, and (ii) each of the Issuing Lenders listed on Schedule 1.1E
with respect to its respective Existing Letter Credit shall be deemed to be an
Issuing Lender hereunder with respect to its Letters of Credit.


 


SECTION 4. REPRESENTATIONS AND WARRANTIES


 


To
induce the Agents and the Lenders to enter into this Agreement and to make the
Loans and issue or participate in the Letters of Credit, each of the US
Borrower (on behalf of itself and its Subsidiaries) and the Canadian Borrower
(on behalf of itself) hereby represents and warrants to each Agent and each
Lender that:


 


4.1.          Financial Condition. (a) The unaudited pro forma
consolidated balance sheet of the US Borrower and its consolidated Subsidiaries
as of March 31, 2006 (including the notes thereto) (the “Pro Forma
Balance Sheet”), copies of which have heretofore been furnished to each
Lender, has been prepared giving effect (as if such events had occurred on such
date) to (i) the Loans to be made on the Closing Date and the use of
proceeds thereof and (ii) the payment of fees and expenses in connection
with the foregoing. The Pro Forma Balance Sheet has been prepared based on the
best information available to the US Borrower as of the date of delivery
thereof, and presents fairly on a pro forma basis the estimated financial
position of the US Borrower and its consolidated Subsidiaries as of March 31,
2006, assuming that the events specified in the preceding sentence had actually
occurred at such date.


 


(b)           The audited consolidated balance sheets of
the US Borrower and its consolidated Subsidiaries as of December 31, 2003,
December 31, 2004 and December 31, 2005, and the audited consolidated
statements of income and of cash flows of the US Borrower for the fiscal period
or year ended on December 31, 2003, December 31, 2004 and December 31,
2005, respectively, reported on by and accompanied by an unqualified report
from Pricewaterhouse Coopers LLP, copies of which have heretofore been
furnished to each Lender, present fairly the consolidated financial condition
of the US Borrower and its consolidated Subsidiaries or the predecessor of the
US Borrower and its consolidated Subsidiaries, as the case may be, as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal period or years then ended. The unaudited
consolidated balance sheet of the US Borrower and its consolidated Subsidiaries
as of March 31, 2006, and the related unaudited consolidated statements of
income and cash flows for the three-month period ended on such


 


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date, copies of which have
heretofore been furnished to each Lender, present fairly the consolidated
financial condition of the US Borrower and its consolidated Subsidiaries as at
such date, and the consolidated results of its operations and its consolidated
cash flows for the three-month period then ended (subject to normal year-end
audit adjustments). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the
aforementioned firms of accountants and disclosed therein). As of the Closing
Date, the US Borrower and its Subsidiaries on a consolidated basis do not have
any material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including, any interest rate or foreign currency swap or exchange transaction
or other obligation in respect of derivatives, that would be required to be
reflected in its financial statements in accordance with GAAP that are not
reflected in the most recent financial statements referred to in this paragraph
or in the notes therein. During the period from December 31, 2005 to and
including the date hereof there has been no Disposition by the US Borrower or
any of its Subsidiaries of any material part of its business or Property other
than as would have been permitted by Section 7.5.


 


4.2.          No Change.  Since December 31, 2005,
there has been no development or event that has had or could reasonably be expected
to have a Material Adverse Effect.


 


4.3.          Corporate Existence; Compliance with Law.  The
US Borrower and each of its Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority to own and operate
its Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a
foreign corporation or other organization and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of Property or the
conduct of its business requires such qualification and which is necessary for
the conduct of its operations and (d) is in compliance with all Requirements
of Law except to the extent that the failure to comply therewith could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.


 


4.4.          Corporate Power; Authorization; Enforceable
Obligations.  Each Loan Party has the corporate power and
authority, and the legal right, to make, deliver and perform the Loan Documents
to which it is a party and, in the case of the US Borrower and the Canadian
Borrower, to borrow hereunder. Each Loan Party has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party and, in the case of the US Borrower and
the Canadian Borrower, to authorize the borrowings on the terms and conditions
of this Agreement. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person
is required in connection with the borrowings hereunder or the execution,
delivery, performance, validity or enforceability of this Agreement or any of
the other Loan Documents, except (i) consents, authorizations, filings and
notices described in Schedule 4.4, which consents, authorizations,
filings and notices have been obtained or made and are in full force and
effect, (ii) the filings referred to in Section 4.19, or (iii) where
the failure to obtain such approval or consent could not reasonably be expected
to have a Material Adverse Effect. . Each Loan Document has been duly executed
and delivered on behalf of each Loan Party that is a party thereto. This
Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party that is a
party thereto, enforceable against each such Loan Party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).


 


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4.5.          No Legal Bar.  The
execution, delivery and performance of this Agreement and the other Loan
Documents, the issuance of Letters of Credit, the borrowings hereunder and the
use of the proceeds thereof will not violate any Requirement of Law or any
Contractual Obligation of the US Borrower or any of its Subsidiaries except to
the extent the failure to comply therewith could not reasonably be expected to
result in a Material Adverse Effect and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such Contractual Obligation
(other than the Liens created by the Security Documents).


 


4.6.          No Material Litigation.  No
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the US Borrower or
the Canadian Borrower, threatened by or against the US Borrower or any of its
Subsidiaries or against any of their respective properties or revenues (a) with
respect to any of the Loan Documents or any of the transactions contemplated
hereby or thereby, or (b) that could reasonably be expected to have a
Material Adverse Effect.


 


4.7.          No Default.  Neither the US Borrower nor
any of its Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.


 


4.8.          Ownership of Property; Liens.  The
US Borrower and each of its Subsidiaries has title in fee simple to, or a valid
leasehold interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material Property, and none of such
Property is subject to any Lien except as permitted by Section 7.3.


 


4.9.          Intellectual Property.  Except
as otherwise set forth on Schedule 4.9, the US Borrower and each of its Subsidiaries owns,
or is licensed to use, all Intellectual Property necessary for the conduct of
its business as currently conducted. No material claim has been asserted in
writing or is pending by any Person challenging any Intellectual Property owned
or used by the US Borrower or any Subsidiary or the validity, enforceability,
registration or ownership of any Intellectual Property owned by the US Borrower
or any Subsidiary, nor does the US Borrower know of any valid basis for any
such claim. Neither the US Borrower nor any of its Subsidiaries knows that the
use of Intellectual Property by the US Borrower and its Subsidiaries infringes
on the rights of any Person.


 


4.10.        Taxes.  The US Borrower and each of
its Subsidiaries has filed or caused to be filed all Federal, state (United
States or otherwise) and other material tax returns that are required to be
filed and has paid all taxes shown to be due and payable on said returns or on
any assessments made against it or any of its Property and all other taxes,
fees or other charges imposed on it or any of its Property by any Governmental
Authority (other than any the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the US
Borrower or its Subsidiaries, as the case may be); and no tax Lien has been
filed, and, to the knowledge of the US Borrower or the Canadian Borrower, no
claim is being asserted, with respect to any such tax, fee or other charge.


 


4.11.        Federal Regulations.  No
part of the proceeds of any Loans, and no other extensions of credit hereunder,
will be used for “purchasing” or “carrying” any “margin stock” within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect or for any purpose that violates the
provisions of the Regulations of the Board. If requested by any Lender or the
Administrative Agent, the applicable Borrower will furnish to the


 


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Administrative Agent and
each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1 referred to in Regulation
U.


 


4.12.        Labor Matters.  There
are no strikes, other labor disputes or work slowdowns against the US Borrower
or any of its Subsidiaries pending or, to the knowledge of the US Borrower or
the Canadian Borrower, threatened that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. Hours worked by and
payment made to employees of the US Borrower and its Subsidiaries have not been
in violation of the Fair Labor Standards Act or any other applicable
Requirement of Law dealing with such matters to a degree that (individually or
in the aggregate) could reasonably be expected to have a Material Adverse
Effect. All payments due by the US Borrower or any of its Subsidiaries on
account of wages, employee health and welfare insurance, other benefits or
other amounts owing to current or former employees of the US Borrower or any of
its Subsidiaries that (individually or in the aggregate) could reasonably be
expected to have a Material Adverse Effect if not paid have been paid or
accrued as a liability on the books of the US Borrower or the relevant
Subsidiary. The consummation of the transactions contemplated under this
Agreement will not give rise to any right of termination or right to
renegotiate any employment agreement or collective bargaining agreement.


 


4.13.        Pension and Benefit Plans.


 


(a)           ERISA.  Neither a Reportable Event nor
an “accumulated funding deficiency” (within the meaning of Section 412 of
the Code or Section 302 of ERISA) has occurred during the five-year period
prior to the date on which this representation is made or deemed made with
respect to any Plan, and each Plan has complied in all material respects with
the applicable provisions of ERISA and the Code. No termination of a Single
Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen,
during such five-year period. The present value of all accrued benefits under
each Single Employer Plan (based on those assumptions used to fund such Plans)
did not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by a material amount. Neither the
Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan that has resulted or could reasonably be
expected to result in a material liability under ERISA, and neither the
Borrower nor any Commonly Controlled Entity would become subject to any
material liability under ERISA if the Borrower or any such Commonly Controlled
Entity were to withdraw completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made. No such Multiemployer Plan is in Reorganization or
Insolvent.


 


(b)           Canadian Pension Plans and Canadian Benefit
Plans.  The Canadian Borrower and the US Borrower
will cause to be delivered to the Administrative Agent, promptly upon, and in
any event within 5 Business Days of, the Administrative Agent’s request, a copy
of each Canadian Benefit Plan and Canadian Pension Plan (or, where any such
Canadian Benefit Plan or Canadian Pension Plan is not in writing, a complete
description of all material terms thereof) and, if applicable, related trust
agreements or other funding instruments and all amendments thereto, and all
written interpretations thereof and written descriptions thereof that have been
distributed to employees or former employees of Parent and its Subsidiaries.  The Canadian Pension Plans are duly
registered under the Income Tax Act (Canada)
and any other Requirement of Law which to the knowledge the Canadian Borrower
or the US Borrower require registration and no event has occurred which is
reasonably likely to cause the loss of such registered status.  All material obligations, if any, of the
Canadian Borrower or the US Borrower and each of its Subsidiaries (including
fiduciary, funding, investment and administration obligations) required to be
performed pursuant to a Requirement of Law in connection with the Canadian
Pension Plans and the funding agreements therefor have been performed in a
timely fashion and in accordance with all applicable Requirements of Law.  There have been no improper withdrawals or
applications of


 


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the assets of the Canadian
Pension Plans or the Canadian Benefit Plans. Except as could not reasonably be
expected to result in a liability in excess of $20,000,000, (i) there are
no outstanding disputes concerning the assets held under the funding agreements
for the Canadian Pension Plans or the Canadian Benefit Plans and (ii) each
Canadian Pension Plan is fully funded both on going-concern basis and on a
solvency basis (using actuarial methods and assumptions which are consistent
with the valuations last filed with the applicable Governmental Authorities and
which are consistent with generally accepted actuarial principles). No promises
of benefit improvements under the Canadian Pension Plans or the Canadian
Benefit Plans have been made except where such improvement could not reasonably
be expected to result in a liability in excess of $20,000,000. All
contributions or premiums required to be made or paid by Parent and each of its
Subsidiaries, if any, in respect of the Canadian Pension Plans or the Canadian
Benefit Plans have been made or paid in a timely fashion in accordance with the
terms of such plans and all Requirements of Law. All employee contributions in
respect of the Canadian Pension Plans or the Canadian Benefit Plans by way of
authorized payroll deduction or otherwise have been properly withheld or
collected and fully paid into such plans in a timely manner. All material
reports and disclosures relating to the Canadian Pension Plans required by such
plans and any Requirement of Law to be filed or distributed have been filed or
distributed in a timely manner. Parent and each of its Subsidiaries has
withheld all employee withholdings to be withheld and has paid to the
applicable Governmental Authority all such employee withholdings and required
employer contributions pursuant to applicable law on account of Canada Pension
Plans, employment insurance and employee income taxes.


 


4.14.        Investment Company Act; Other Regulations.  No
Loan Party is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.


 


4.15.        Subsidiaries. 
(a)  The Subsidiaries listed on Schedule 4.15
constitute all the Subsidiaries of the US Borrower at the date hereof. Schedule 4.15
sets forth as of the Closing Date the name and jurisdiction of incorporation of
each Subsidiary and, as to each Subsidiary, the percentage of each class of
Capital Stock owned by each Loan Party.


 


(b)           Except as set forth on Schedule 4.15,
on the Closing Date, there are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock options
granted to employees or directors and directors’ qualifying shares) of any
nature relating to any Capital Stock of the US Borrower or any Subsidiary.


 


4.16.        Use of Proceeds.  The
proceeds of the Term Loan Facility shall be used to (i) repay the Existing
Facilities, (ii) repay approximately $400.0 million of Permitted Vehicle
Indebtedness, (iii) fund a loan of up to $123,100,000 to Parent under the
Parent Promissory Note to fund the redemption of Parent’s preferred equity and (iv) pay
the related fees, commissions, premiums and expenses in connection therewith.
Amounts available under the Revolving Credit Facilities shall be used to
provide for the ongoing working capital requirements of the Canadian Borrower,
the US Borrower and its Subsidiaries and for general corporate purposes.


 


4.17.        Environmental Matters. Other than exceptions to any of the
following that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect:


 


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


 


64

















 


and within the period of all
applicable statutes of limitation have been, in compliance with all of their
Environmental Permits; and (iv) reasonably believe that: each of their
Environmental Permits will be timely renewed and complied with, without
material expense; any additional Environmental Permits that may be required of
any of them will be timely obtained and complied with, without material
expense; and compliance with any Environmental Law that is or is expected to
become applicable to any of them will be timely attained and maintained,
without material expense.


 


(b)           Materials of Environmental Concern are not
present at, on, under, or in any real property now or formerly owned, leased or
operated by the US Borrower or any of its Subsidiaries, or at any other
location (including, any location to which Materials of Environmental Concern
have been sent for re-use or recycling or for treatment, storage, or disposal)
which could reasonably be expected to (i) give rise to liability of the US
Borrower or any of its Subsidiaries under any applicable Environmental Law or
otherwise result in costs to the US Borrower or any of its Subsidiaries, or (ii) interfere
with the US Borrower’s or any of its Subsidiaries’ continued operations, or (iii) impair
the fair saleable value of any real property owned or leased by the US Borrower
or any of its Subsidiaries.


 


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


 


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


 


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


 


(f)            Neither the US Borrower nor any of its
Subsidiaries has assumed or retained, by contract or operation of law, any
liabilities of any kind, fixed or contingent, known or unknown, under any
Environmental Law or with respect to any Materials of Environmental Concern.


 


4.18.        Accuracy of Information, etc.  No
statement or information contained in this Agreement, any other Loan Document,
the Confidential Information Memorandum or any other document, certificate or
statement furnished to the Administrative Agent, the Canadian Agent, or the
Lenders or any of them, by or on behalf of any Loan Party for use in connection
with the transactions contemplated by this Agreement or the other Loan
Documents, contained as of the date such statement, information, document or
certificate was so furnished (or, in the case of the Confidential Information
Memorandum, as of the date of this Agreement), any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements contained herein or therein not misleading. The Projections and pro
forma financial information contained in the materials referenced above
are based upon good faith estimates and assumptions believed by management of
the US Borrower to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is not
to be viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected results set
forth therein by a material amount. There is no fact known to any Loan Party
that could reasonably be expected to have a Material Adverse Effect that


 


65

















 


has not been expressly
disclosed herein, in the other Loan Documents, in the Confidential Information
Memorandum or in any other documents, certificates and statements furnished to
the Agents and the Lenders for use in connection with the transactions
contemplated hereby and by the other Loan Documents.


 


4.19.        Security Documents.  (a)  The
Guarantee and Collateral Agreement is effective to create in favor of the
Administrative Agent, for the benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral described therein and
proceeds thereof. The Canadian Collateral Agreements are effective to create in
favor of the Canadian Agent, for the benefit of the holders of Canadian
Obligations, a legal, valid and enforceable security interest in the Collateral
described therein and the proceeds thereof solely to secure the obligations
described therein as secured thereby. In the case of the “Pledged Stock” defined
and described in the Guarantee and Collateral Agreement and the Direct Parent
Pledge Agreement when any stock certificates representing such “Pledged Stock”
are delivered to the Administrative Agent, and in the case of the other
Collateral described in the Guarantee and Collateral Agreement, (i) when
financing statements in appropriate form are filed in the offices specified on Schedule 4.19(a)-1
(which financing statements have been duly completed and delivered to the
Administrative Agent) and each of the Trademark Security Agreement and the
Patent Security Agreement is filed with the United States Patent and Trademark
Office (and the applicable corresponding filings have been made with the
applicable registries in Canada) and such other filings as are specified on Schedule 3
to the Guarantee and Collateral Agreement, have been completed (all of which
filings have been duly completed) and (ii) upon the taking of possession
or control by the Administrative Agent of the other Collateral with respect to
which a security interest may be perfected only by possession or control (which
possession or control shall be given to the Administrative Agent as required by
the Security Documents), (x) the Guarantee and Collateral Agreement shall
constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Collateral and the proceeds
thereof, as security for the “Obligations” (as defined in the Guarantee and
Collateral Agreement), subject to the Service Fleet Perfection Exclusion, and
(y) the Canadian Guarantee and Collateral Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral and the proceeds thereof, as security for the
“Obligations” (as defined in the Canadian Collateral Agreements). Schedule 4.19(a)-2
lists each UCC Financing Statement (other than those filed pursuant to this
Agreement) that (i) names any Loan Party as debtor and (ii) will
remain on file after the Closing Date. Schedule 4.19(a)-3 lists
each financing statement under all applicable Personal Property Security
Legislation other than the UCC that (i) names any Loan Party as debtor and
(ii) will remain on file after the Closing Date. Schedule 4.19(a)-4
lists each UCC Financing Statement or other financing statement under all
applicable Personal Property Security Legislation that (i) names any Loan
Party as debtor and (ii) will be terminated on or prior to the Closing
Date; and on or prior to the Closing Date, the US Borrower will have delivered
to the Administrative Agent, or caused to be filed, duly completed UCC or other
applicable termination or discharge statements under Personal Property Security
Legislation, signed by the relevant secured party, if necessary, in respect of
each UCC Financing Statement or other financing statement under all applicable
Personal Property Security Legislation listed in Schedule 4.19(a)-4.


 


(b)           The Direct Parent Pledge Agreement is
effective to create in favor of the Administrative Agent, for the benefit of
the Secured Parties, a legal, valid and enforceable security interest in the “Pledged
Collateral” defined and described therein and proceeds thereof. In the case of
the “Pledged Stock” defined and described in the Direct Parent Pledge
Agreement, when any stock certificates representing such “Pledged Stock” are
delivered to the Administrative Agent the Direct Parent Pledge Agreement shall
constitute a fully perfected Lien on, and security interest in, all right,
title and interest of Parent in such “Pledged Collateral” and the proceeds
thereof, as security for the Obligations (as defined in the Direct Parent
Pledge Agreement).


 


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(c)           Each of the Mortgages is effective to create
in favor of the Administrative Agent, for the benefit of the Secured Parties a
legal, valid and enforceable Lien on the Mortgaged Properties described therein
and proceeds thereof; and when the Mortgages are filed in the offices specified
on Schedule 4.19(c) (in the case of the Mortgages to be
executed and delivered on the Closing Date) or in the recording office
designated by the US Borrower (in the case of any Mortgage to be executed and
delivered pursuant to Section 6.10(c)), each Mortgage shall constitute a
fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in the Mortgaged Properties described therein and
the proceeds thereof, as security for the Obligations (as defined in the
relevant Mortgage), in each case prior and superior in right to any other
Person (other than Persons holding Liens or other encumbrances or rights
permitted by the relevant Mortgage). Schedule 1.1B lists, as of the
Closing Date, each parcel of owned real property located in the United States
and held by the US Borrower or any of its Subsidiaries that has a value, in the
reasonable opinion of the US Borrower, in excess of $1,000,000.


 


4.20.        Solvency.  The Loan Parties, taken as
whole, are and after giving effect to the incurrence of all Indebtedness and
obligations being incurred in connection herewith and therewith will be and
will continue to be, Solvent.


 


4.21.        Regulation H.  No
Mortgage encumbers improved real property which is located in an area that has
been identified by the Secretary of Housing and Urban Development as an area
having special flood hazards and in which flood insurance has been made
available under the National Flood Insurance Act of 1968 (except any Mortgaged
Properties as to which such flood insurance as required by Regulation H has
been obtained and is in full force and effect as required by this Agreement).


 


4.22.        Deposit Accounts.  Other
than (i) money and checks received in branches or in transit or deposited
to depositary accounts for remittance to the Concentration Account within a
reasonable time after finally collected funds become available, (ii) cash
deposited to a disbursement account when or within a reasonable time before
disbursement therefrom is required, (iii) not more than $5,000,000 in
other cash and cash equivalents, and (iv) cash on deposit in respect of
medical insurance policies, all cash and Cash Equivalents of the US Borrower
and its Subsidiaries (other than Finance Companies and International Automotive
Group Insurance Company, Ltd.) are held in the Concentration Account.


 


SECTION 5. CONDITIONS PRECEDENT


 


5.1.          Conditions to Initial Extension of Credit.  The
agreement of each Lender to make the initial extension of credit requested to
be made by it hereunder is subject to the satisfaction, prior to or
concurrently with the making of such extension of credit on the Closing Date,
of the following conditions precedent:


 


(a)           Loan Documents.  The
Administrative Agent shall have received (i) this Agreement, (ii) the
Notes (if any), (iii) the Guarantee and Collateral Agreement, (iv) the
Direct Parent Pledge Agreement, (v) a Mortgage covering each of the
Mortgaged Properties (other than any Mortgaged Properties set forth on Schedule 6.14),
(vi) a Borrowing Notice, (vii) the Trademark Security Agreement, (viii) the
Patent Security Agreement, (ix) the Canadian Collateral Agreements (other
than the Canadian Collateral Agreements set forth on Schedule 6.14), in
each case, executed and delivered by a duly authorized officer of each party
thereto, and (x) a counterpart signature page to this Agreement or Lender
Addendum (which may be delivered by teletransmission and shall in such event be
enforceable as an original) from each Lender.


 


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(b)           Pro Forma Balance Sheet; Financial Statements.  The
Lenders shall have received (i) the Pro Forma Balance Sheet, (ii) the
financial statements of the US Borrower and its consolidated Subsidiaries and
their predecessors referred to in Section 4.1(b) and (iii) unaudited
interim consolidated financial statements of the US Borrower and its
consolidated Subsidiaries for each fiscal month and quarterly period ended
subsequent to the date of the latest applicable financial statements delivered
pursuant to clause (ii) of this paragraph as to which such financial
statements are available; and such financial statements shall not, in the
reasonable judgment of the Lenders, reflect any material adverse change in the
consolidated financial condition of the US Borrower and its consolidated
Subsidiaries, as reflected in the financial statements contained in the Confidential
Information Memorandum.


 


(c)           Organizational Documents Incumbency.  The
Administrative Agent shall have received (i) sufficient copies of each
Organizational Document executed and delivered by each Loan Party and the
Direct Parent, as applicable, and, to the extent applicable, certified as of a
recent date by the appropriate governmental official, for each Lender, each
dated the Closing Date or a recent date prior thereto; (ii) signature and
incumbency certificates of the Direct Parent and each Loan Party executing the
Loan Documents to which it is a party; (iii) resolutions of the board of
directors or similar governing body of each Loan Party and the Direct Parent
approving and authorizing the execution, delivery and performance of each Loan
Document to which it is a party or by which it or its assets may be bound as of
the Closing Date, certified as of the Closing Date by its secretary or an
assistant secretary as being in full force and effect without modification or
amendment; (iv) a good standing certificate from the applicable
Governmental Authority of each Loan Party’s and Parent’s jurisdiction of
incorporation, organization or formation and in each jurisdiction in which it
is qualified as a foreign corporation or other entity to do business, each
dated a recent date prior to the Closing Date; and (v) such other
documents as Administrative Agent may reasonably request.


 


(d)           Organizational and Capital Structure.  The
organizational structure and capital structure of the US Borrower and its
Subsidiaries, shall be as set forth on Schedule 5.1(d).


 


(e)           Approvals.  All governmental and third
party approvals and consents necessary in connection with the continuing
operations of the US Borrower and its Subsidiaries and the transactions
contemplated hereby shall have been obtained and be in full force and effect,
and all applicable waiting periods shall have expired without any action being
taken or threatened by any competent authority that would restrain, prevent or
otherwise impose adverse conditions on the financing contemplated hereby.


 


(f)            Termination of Existing Facilities.  The
Administrative Agent shall have received evidence satisfactory to the
Administrative Agent that the Existing Facilities shall be simultaneously
terminated, all amounts thereunder shall be simultaneously paid in full and
arrangements satisfactory to the Administrative Agent shall have been made for
the termination of Liens and security interests granted in connection
therewith.


 


(g)           Fees.  The Lenders, and the
Administrative Agent shall have received all fees required to be paid, and all
expenses for which invoices have been presented (including reasonable fees,
disbursements and other charges of counsel to the Agents), on or before the
Closing Date. All such amounts will be paid with proceeds of Loans made on the
Closing Date and will be reflected in the funding instructions given by the US
Borrower to the Administrative Agent on or before the Closing Date.


 


(h)           Business Plan.  The
Administrative Agent shall have received a reasonably satisfactory business
plan for fiscal years 2006-2013 and a reasonably satisfactory written analysis
of the


 


68

















 


business and prospects of
the US Borrower and its Subsidiaries for the period from the Closing Date
through the 2013 fiscal year.


 


(i)            Solvency Certificate.  The
Administrative Agent shall have received a reasonably satisfactory solvency
certificate of the chief financial officer of the US Borrower certifying to the
effect set forth in Section 4.20 with respect to the US Borrower and its
Subsidiaries taken as a whole.


 


(j)            Lien Searches.  The
Administrative Agent shall have received the results of a recent lien search in
each of the jurisdictions (including the United States of America and the
provinces of Canada) or offices in which Uniform Commercial Code financing
statements or financing statements under Personal Property Security Legislation
or other filings or recordations should be made to evidence or perfect security
interests in all assets of the Loan Parties, and such search shall reveal no
liens on any of the assets of the Loan Party, except for Liens permitted by Section 7.3.


 


(k)           Closing Certificates.  The
Administrative Agent shall have received a certificate of each the US Borrower
and the Canadian Borrower, dated the Closing Date, substantially in the form of
Exhibit C, with appropriate insertions and attachments.


 


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


 


(i)            the legal opinion of Schulte Roth &
Zabel LLP, counsel to the US Borrower and its Subsidiaries, substantially in
the form of Exhibit F-l; and


 


(ii)           the legal opinion of Cassels, Brock & Blackwell LLP and Tripp
Scott, P.A. in the form of Exhibit F-2 and Exhibit F-3, respectively
and of such other special and local counsel as may be required by the
Administrative Agent.


 


Each such legal opinion
shall be addressed to the Administrative Agent and the Lenders.


 


(m)          Pledged Stock; Stock Powers; Acknowledgment
and Consent; Pledged Notes.  The Administrative Agent shall have received (i) the
certificates representing the shares of Capital Stock pledged pursuant to the
Guarantee and Collateral Agreement or the Direct Parent Pledge Agreement,
together with an undated stock power and irrevocable proxy for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof and (ii) each promissory note pledged pursuant to the Guarantee
and Collateral Agreement, the Canadian Collateral Agreements or the Direct
Parent Pledge Agreement, endorsed (without recourse) in blank (or accompanied
by an executed transfer form in blank satisfactory to the Administrative Agent)
by the pledgor thereof.


 


(n)           Filings, Registrations and Recordings.  Each
document (including, any Uniform Commercial Code financing statement or
financing statement filed pursuant to other applicable Personal Property
Security Legislation) required by the Security Documents or under law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for the
benefit of the Secured Parties, in the case of the Guarantee and Collateral
Agreement and the Canadian Collateral Agreements, a perfected Lien on the
Collateral described in the Guarantee and Collateral Agreement and the Canadian
Collateral Agreements, respectively, and for the benefit of the prior and
superior in right to any other Person (other than with respect to Liens
expressly permitted by Section 7.3), shall have been filed, registered or
recorded or shall have been delivered to the Administrative Agent be in proper
form for filing, registration or recordation.


 


69

















 


(o)           Environmental Matters.  The
Administrative Agent shall have received reports and other information in form,
scope and substance reasonably satisfactory to the Administrative Agent
concerning any environmental matters relating to the Facilities.


 


(p)           Insurance.  The Administrative Agent shall
have received insurance certificates satisfying the requirements of Section 5.3
of the Guarantee and Collateral Agreement.


 


(q)           PATRIOT Act.  The Lenders shall have
received, sufficiently in advance of the Closing Date, all documentation and
other information requested by them as required by bank regulatory authorities
under applicable “know your customer” and anti-money laundering rules and
regulations, including the United States PATRIOT Act.


 


5.2.          Conditions to Each Extension of Credit.  The
agreement of each Lender to make any extension of credit requested to be made
by it hereunder in accordance with Section 2 and/or Section 3, as
applicable, on any date (including, its initial extension of credit) is subject
to the satisfaction of the following conditions precedent:


 


(a)           Representations and Warranties.  Each
of the representations and warranties made by any Loan Party in or pursuant to
the Loan Documents or by the “Pledgor” in the Direct Parent Pledge Agreement
(as such term is defined therein) shall be true and correct on and as of such
date as if made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date, in which case
such representations and warranties were true and correct on and as of such
earlier date).


 


(b)           No Default.  No Default or Event of Default
shall have occurred and be continuing on such date or after giving effect to
the extensions of credit requested to be made on such date.


 


Each
borrowing by and issuance of a Letter of Credit on behalf of the US Borrower or
the Canadian Borrower hereunder shall constitute a representation and warranty
by the US Borrower or the Canadian Borrower, as applicable, as of the date of
such extension of credit that the conditions contained in this Section 5.2
have been satisfied.


 


SECTION 6. AFFIRMATIVE COVENANTS


 


The
US Borrower hereby agrees that it shall and shall cause each of its
Subsidiaries to, and the Canadian Borrower hereby agrees that it shall, so long
as the Commitments remain in effect, any Letter of Credit remains outstanding
or any Loan or other amount is owing to any Lender or any Agent hereunder:


 


6.1.          Financial Statements.  Furnish
to each Agent and each Lender:


 


(a)           as soon as available, but in any event within
90 days after the end of each fiscal year of the US Borrower, a copy of the
audited consolidated balance sheet of the US Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited consolidated
statements of income and of cash flows for such year, setting forth in each
case in comparative form the figures as of the end of and for the previous
year, reported on without a “going concern” or like qualification or exception,
or qualification arising out of the scope of the audit, by Pricewaterhouse
Coopers LLP or other independent certified public accountants of nationally
recognized standing; and


 


70

















 


(b)           as soon as available, but in any event not
later than 45 days (or such later date as provided below) after the end of each
of the first three quarterly periods of each fiscal year of the US Borrower,
the unaudited consolidated balance sheet of the US Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income and of cash flows for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures as of the end of and for the
corresponding period in the previous year, certified by a Responsible Officer
as being fairly stated in all material respects (subject to normal year-end
audit adjustments); provided, however, that such quarterly financial
statements for the fiscal quarters ending June 30, 2006 and September 30,
2006, shall be furnished not later than 60 days after the end of each such
quarter or such earlier date, if any, on which the US Borrower shall have filed
its Quarterly Report on Form 10-Q for such quarter with the SEC;


 


all such financial
statements to be complete and correct in all material respects and to be
prepared in reasonable detail and in accordance with GAAP applied consistently
throughout the periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and disclosed
therein).


 


6.2.          Certificates; Other Information. Furnish to each Agent and each Lender, or,
in the case of clause (f), to the relevant Lender:


 


(a)           concurrently with the delivery of the
financial statements referred to in Section 6.1(a), a certificate of the
independent certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default under Section 7.1, except as
specified in such certificate (it being understood that such certificate shall
be limited to the items and scope that independent certified public accountants
are permitted to cover in such certificates pursuant to their professional
standards and customs of the profession);


 


(b)           concurrently with the delivery of any
financial statements pursuant to Section 6.1, (i) a certificate of a
Responsible Officer stating that, to the best of such Responsible Officer’s
knowledge, each Loan Party during such period has observed or performed all of
its covenants and other agreements, and satisfied every condition, contained in
this Agreement and the other Loan Documents to which it is a party to be
observed, performed or satisfied by it, and that such Responsible Officer has
obtained no knowledge of any Default or Event of Default except as specified in
such certificate and (ii) in the case of quarterly or annual financial
statements, (x) a Compliance Certificate containing all information and
calculations necessary for determining compliance by the US Borrower and its
Subsidiaries with the provisions of this Agreement referred to therein as of
the last day of the fiscal quarter or fiscal year of the US Borrower, as the
case may be, (y) to the extent not previously disclosed to the Administrative
Agent, a listing of any county, state, province or any other jurisdiction, or
any political subdivision thereof, within the United States of America or
Canada, where any Loan Party keeps material inventory or equipment (other than
Eligible Vehicles and buses and other service vehicles) or of any Intellectual
Property created, acquired, registered or developed by any Loan Party since the
date of the most recent list delivered pursuant to this clause (y) (or, in the
case of the first such list so delivered, since the Closing Date) and (z) any
financing statements under the UCC or applicable Personal Property Security
Legislation or other filings specified in such Compliance Certificate as being
required to be delivered therewith;


 


(c)           as soon as available, and in any event no
later than 45 days after the end of each fiscal year of the US Borrower, a
detailed consolidated budget for the following fiscal year (including a
projected consolidated balance sheet of the US Borrower and its Subsidiaries as
of the end of the


 


71

















 


following fiscal year, and
the related consolidated statements of projected cash flow, projected changes
in financial position and projected income and a description of the underlying
assumptions applicable thereto) and, as soon as available, significant
revisions, if any, to the extent the subject of deliberations by the Board of
Directors of the US Borrower (collectively, the “Projections”), which
Projections shall in each case be accompanied by a certificate of a Responsible
Officer stating that such Projections are based on good faith estimates and
information and assumptions believed by management to be reasonable at the time
made and that such Responsible Officer has no reason to believe that such
Projections are incorrect or misleading in any material respect, it being
recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount;


 


(d)           concurrently with the delivery of financials
pursuant to Section 6.1(b), a narrative discussion and analysis of the
financial condition and results of operations of the US Borrower and its
Subsidiaries for such fiscal quarter and for the period from the beginning of
the then current fiscal year to the end of such fiscal quarter, as compared to
the financial condition and results of operations for the comparable periods of
the previous year;


 


(e)           to the extent not otherwise publicly
available (provided that the US Borrower informs the Administrative Agent of
such public availability), within five days after the same are sent, copies of
all financial statements and reports that the US Borrower, the Canadian
Borrower or Parent sends to the holders of any class of its debt securities or
public equity securities and, within five days after the same are filed, copies
of all financial statements and reports that the US Borrower or Parent may make
to, or file with, the SEC; and


 


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


 


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


 


6.4.          Conduct of Business and Maintenance of
Existence; Compliance.  (a)(i) Preserve, renew and keep in full
force and effect its organizational existence and (ii) take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its business, except, in each case, as otherwise
permitted by Section 7.4 and except, in the case of clause (ii) above,
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (b) comply with all Contractual Obligations
and Requirements of Law, except to the extent that failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.


 


6.5.          Maintenance of Property; Insurance.  (a) Keep
all Property and systems useful and necessary in its business in good working
order and condition, ordinary wear and tear excepted, (b) use commercially
reasonable efforts to prosecute, maintain, and enforce all Intellectual
Property owned or held by the US Borrower or any Subsidiary that is material to
the conduct of its business and, (c) maintain with financially sound and
reputable insurance companies insurance on all its Property in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually insured
against by companies engaged in the same or a similar business.


 


72

















 


6.6.          Inspection of Property; Books and Records; Discussions. (a) Keep proper books of records and
account in which full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation
to its business and activities and (b) permit representatives of any
Lender to visit and inspect any of its properties and examine and make
abstracts from any of its books and records, upon reasonable prior notice,
during normal business hours and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other condition
of the US Borrower and its Subsidiaries with officers and employees of the US
Borrower and its Subsidiaries and with its independent certified public
accountants. Neither the US Borrower nor the Canadian Borrower shall have any
obligation to disclose materials that are protected by attorney-client
privilege and materials the disclosure of which would violate confidentiality
obligations of the US Borrower or the Canadian Borrower.


 


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


 


(a)           the occurrence of any Default or Event of
Default;


 


(b)           any (i) default or event of default
under any Contractual Obligation of the US Borrower or any of its Subsidiaries
or (ii) litigation, investigation or proceeding which may exist at any
time between the US Borrower or any of its Subsidiaries and any Governmental
Authority, that in either case, could reasonably be expected to have a Material
Adverse Effect;


 


(c)           any litigation or proceeding affecting the US
Borrower or any of its Subsidiaries (i) in which the amount involved is
$5,000,000 or more and not covered by third party insurance (other than
bilateral lawsuits filed by individual motorists in respect of accidents
occurring while driving a rental vehicle of the US Borrower or one of its
Subsidiaries) (ii) in which material injunctive relief is sought, or (iii) which
relates to any Loan Document;


 


(d)           the following events, as soon as possible and
in any event within 30 days after a Responsible Officer of the US Borrower
knows or has reason to know thereof: (i) the occurrence of any Reportable
Event with respect to any Plan, a failure to make any required contribution to
a Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan, (ii) the institution of proceedings or the taking of
any other action by the PBGC or the US Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; (iii) the
termination of any Canadian Pension Plan, (iv) the institution of
proceedings or the taking of any other action by any Governmental Authority
with respect to any Canadian Pension Plan, or (v) the underfunding of any
Canadian Pension Plan on a going concern basis or a solvency basis;


 


(e)           as soon as possible and in any event within
30 days of a Responsible Officer of the US Borrower obtaining knowledge
thereof, any notice that any Governmental Authority may deny any application
for a material Environmental Permit sought by, or revoke or refuse to renew any
material Environmental Permit held by, the US Borrower or any of its
Subsidiaries if such denial, revocation or refusal could reasonably be expected
to have a Material Adverse Effect; and


 


(f)            any development or event that has had or
could reasonably be expected to have a Material Adverse Effect.


 


Each notice pursuant to this
Section shall be accompanied by a statement of a Responsible Officer
setting forth details of the occurrence referred to therein and stating what
action the US Borrower or the relevant Subsidiary proposes to take with respect
thereto.


 


73

















 


6.8.          Environmental Laws. Comply in all material respects with, and
use commercially reasonable efforts to ensure compliance in all material
respects by all tenants and subtenants, if any, with, all applicable Environmental
Laws, and obtain and comply in all material respects with and maintain, and use
commercially reasonable efforts to ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Law except to the extent non-compliance could not
reasonably be expected to have a Material Adverse Effect.


 


6.9.          Interest Rate Protection.  (a)  In
the case of the US Borrower, prior to or within 60 days after the Closing Date,
enter into, and thereafter maintain for a period of not less than three years,
Hedge Agreements to the extent necessary to provide that at least 50% of the
aggregate principal amount of the Term Loans is subject to either a fixed
interest rate or interest rate protection, which Hedge Agreements shall have
terms and conditions reasonably satisfactory to the Administrative Agent.


 


(b) The
US Borrower shall, or shall cause its Subsidiaries to, for a period of not less
than three years from the Closing Date, maintain Hedge Agreements entered into
in connection with Permitted Vehicle Indebtedness to provide that at least 50%
of the aggregate principal amount of such Permitted Vehicle Indebtedness is
subject to either a fixed interest rate or interest rate protection, which
Hedge Agreements shall have terms and conditions substantially similar to the
terms and conditions of Hedge Agreement with respect to Permitted Vehicle
Indebtedness existing and in effect as of the Closing Date or otherwise
reasonably satisfactory to the Administrative Agent.


 


6.10.        Additional Collateral, etc.  (a)  With respect to any Property
created, acquired or developed after the Closing Date by the US Borrower or any
of its Subsidiaries (other than (x) any real property or any Property described
in Section 6.10(b), (y) any Property subject to a Lien expressly permitted
by Section 7.3 and (z) Property acquired by an Excluded Subsidiary) as to
which the Administrative Agent, for the benefit of the Secured Parties, does
not have a perfected Lien, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Guarantee and Collateral Agreement
or such other documents as the Administrative Agent deems necessary or
advisable to grant to the Administrative Agent, for the benefit of the Secured
Parties, a security interest in such Property and (ii) take all actions
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Secured Parties, a perfected first priority security interest in such
Property subject to Liens permitted by Sections 7.3(f) and 7.3(p),
including, the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or
by law or as may be requested by the Administrative Agent and the filing of
short-form agreements or other documents with the United States Patent and
Trademark Office or any similar registry in any foreign country as may be
requested by the Administrative Agent.


 


(b)           With respect to any fee interest in any real
property having a value (together with improvements thereof) of at least
$1,000,000 acquired after the Closing Date by the US Borrower or any of its
Subsidiaries (other than any such real property owned by an Excluded Subsidiary
or subject to a Lien expressly permitted by Section 7.3(f)), promptly (i) execute
and deliver a first priority Mortgage in favor of the Administrative Agent, for
the benefit of the Secured Parties, covering such real property and (ii) if
reasonably requested by the Administrative Agent, provide the Secured Parties
with such title insurance, surveys, legal opinions and other documents as
required under paragraphs 4 and 5 of Schedule 6.14.


 


(c)           With respect to any new Subsidiary (other
than a Finance Company or Foreign Subsidiary) created or acquired after the
Closing Date (which, for the purposes of this paragraph, shall include any
existing Subsidiary that ceases to be an Excluded Subsidiary), by the US
Borrower or any of


 


74

















 


its Subsidiaries, promptly (i) execute
and deliver to the Administrative Agent such amendments to the Security
Documents as the Administrative Agent deems necessary or advisable to grant to
the Administrative Agent, for the benefit of the Secured Parties, a perfected
first priority security interest in the Capital Stock of such new Subsidiary
that is owned by the US Borrower or any of its Subsidiaries, (ii) deliver
to the Administrative Agent the certificates representing such Capital Stock,
together with undated stock powers, in blank, executed and delivered by a duly
authorized officer of the US Borrower or such Subsidiary, as the case may be, (iii) cause
such new Subsidiary (A) to become a party to the applicable Security
Documents and (B) to take such actions necessary or advisable to grant to
the Administrative Agent for the benefit of the Secured Parties a perfected
first priority security interest in the Collateral described in the Security
Documents with respect to such new Subsidiary, including, the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required
by the Security Documents or by law or as may be requested by the
Administrative Agent, and (iv) if requested by the Administrative Agent,
deliver to the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.


 


(d)           With respect to any new Foreign Subsidiary
created or acquired after the Closing Date, the Capital Stock of which is
directly owned by the US Borrower or by any Domestic Subsidiary of the US
Borrower, promptly (i) execute and deliver to the Administrative Agent such
amendments to the Security Documents as the Administrative Agent deems
necessary or advisable to grant to the Administrative Agent, for the benefit of
the Secured Parties, a perfected first priority security interest in 65% of
such Capital Stock, (ii) deliver to the Administrative Agent the
certificates representing 65% of such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
the US Borrower or such Subsidiary, as the case may be and (iii) if
requested by the Administrative Agent, deliver to the Administrative Agent
legal opinions relating to the matters described above, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.


 


6.11.        Further Assurances.  From
time to time execute and deliver, or cause to be executed and delivered, such
additional instruments, certificates or documents, and take such actions, as
the Administrative Agent may reasonably request for the purposes of implementing
or effectuating the provisions of this Agreement and the other Loan Documents,
or of more fully perfecting (subject to the Service Fleet Perfection Exclusion)
or renewing the rights of the Administrative Agent and the Lenders with respect
to the Collateral (or with respect to any additions thereto or replacements or
proceeds thereof or with respect to any other property or assets hereafter
acquired by the US Borrower or any Subsidiary which may be deemed to be part of
the Collateral) pursuant hereto or thereto. Upon the exercise by the
Administrative Agent or any Lender of any power, right, privilege or remedy
pursuant to this Agreement or the other Loan Documents which requires any
consent, approval, recording, qualification or authorization of any
Governmental Authority, the US Borrower will execute and deliver, or will cause
the execution and delivery of, all applications, certifications, instruments
and other documents and papers that the Administrative Agent or such Lender may
be required to obtain from the US Borrower or any of its Subsidiaries for such
governmental consent, approval, recording, qualification or authorization.


 


6.12.        Ratings.  Maintain a public rating from
each of Moody’s and S&P.


 


6.13.        Cash Management.  The
US Borrower agrees that it will and will cause each Guarantor to keep its cash
and Cash Equivalents as provided in Section 4.22. The US Borrower may
change the Concentration Account Depository so long as (a) the US Borrower
obtains, prior to such change, the consent of the Administrative Agent (not to
be unreasonably withheld or delayed) and (b) a


 


75

















 


Deposit Account Control
Agreement is concurrently executed and delivered in respect of the new account.


 


6.14.        Post-Closing Matters.  Execute
and deliver the documents and complete the tasks set forth on Schedule 6.14,
in each case within the time limits specified on such schedule.


 


SECTION 7. NEGATIVE COVENANTS


 


The
US Borrower hereby agrees that it shall not and shall not cause any of its
Subsidiaries to, and the Canadian Borrower hereby agrees that it shall not, so
long as the Commitments remain in effect, any Letter of Credit remains
outstanding or any Loan or other amount is owing to any Lender or any Agent
hereunder, directly or indirectly:


 


7.1.          Financial Condition Covenants.


 


(a)           Consolidated Leverage Ratio.  Permit
the Consolidated Non-Vehicle Leverage Ratio as at the last day of any period of
four consecutive fiscal quarters of the US Borrower ending with any fiscal quarter
set forth below to exceed the ratio set forth below opposite such fiscal
quarter:


 




	
  Fiscal Quarter

  	
   

  	
  Consolidated

  Non-Vehicle

  Leverage Ratio

  	
   

  
	
  September 30, 2006

  	
   

  	
  4.75:1.0

  	
   

  
	
  December 31, 2006

  	
   

  	
  4.75:1.0

  	
   

  
	
  March 31, 2007

  	
   

  	
  4.75:1.0

  	
   

  
	
  June 30, 2007

  	
   

  	
  4.75:1.0

  	
   

  
	
  September 30, 2007

  	
   

  	
  4.75:1.0

  	
   

  
	
  December 31, 2007

  	
   

  	
  4.50:1.0

  	
   

  
	
  March 31, 2008

  	
   

  	
  4.50:1.0

  	
   

  
	
  June 30, 2008

  	
   

  	
  4.50:1.0

  	
   

  
	
  September 30, 2008

  	
   

  	
  4.50:1.0

  	
   

  
	
  December 31, 2008

  	
   

  	
  4.00:1.0

  	
   

  
	
  March 31, 2009

  	
   

  	
  4.00:1.0

  	
   

  
	
  June 30, 2009

  	
   

  	
  4.00:1.0

  	
   

  
	
  September 30, 2009

  	
   

  	
  4.00:1.0

  	
   

  
	
  December 31, 2009

  	
   

  	
  3.50:1.0

  	
   

  
	
  March 31, 2010

  	
   

  	
  3.50:1.0

  	
   

  
	
  June 30, 2010

  	
   

  	
  3.50:1.0

  	
   

  
	
  September 30, 2010

  	
   

  	
  3.50:1.0

  	
   

  
	
  December 31, 2010

  	
   

  	
  3.00:1.0

  	
   

  
	
  March 31, 2011

  	
   

  	
  3.00:1.0

  	
   

  
	
  June 30, 2011

  	
   

  	
  3.00:1.0

  	
   

  
	
  September 30, 2011

  	
   

  	
  3.00:1.0

  	
   

  
	
  December 31, 2011

  	
   

  	
  3.00:1.0

  	
   

  
	
  March 31, 2012

  	
   

  	
  3.00:1.0

  	
   

  
	
  June 30, 2012

  	
   

  	
  3.00:1.0

  	
   

  
	
  September 30, 2012

  	
   

  	
  3.00:1.0

  	
   

  
	
  December 31, 2012

  	
   

  	
  3.00:1.0

  	
   

  
	
  March 31, 2012

  	
   

  	
  3.00:1.0

  	
   

  
	
  Thereafter

  	
   

  	
  3.00:1.0

  	
   

  






 


76

















 


(b)           Consolidated Interest Coverage Ratio. Permit the Consolidated Non-Vehicle
Interest Coverage Ratio for any period of four consecutive fiscal quarters of
the US Borrower ending with any fiscal quarter set forth below to be less than
the ratio set forth below opposite such fiscal quarter:


 




	
  Fiscal Quarter

  	
   

  	
  Consolidated Non-Vehicle Interest

  Coverage Ratio

  	
   

  
	
  September 30, 2006

  	
   

  	
  2.75:1.0

  	
   

  
	
  December 31, 2006

  	
   

  	
  2.75:1.0

  	
   

  
	
  March 31, 2007

  	
   

  	
  2.75:1.0

  	
   

  
	
  June 30, 2007

  	
   

  	
  2.75:1.0

  	
   

  
	
  September 30, 2007

  	
   

  	
  2.75:1.0

  	
   

  
	
  December 31, 2007

  	
   

  	
  3.00:1.0

  	
   

  
	
  March 31, 2008

  	
   

  	
  3.00:1.0

  	
   

  
	
  June 30, 2008

  	
   

  	
  3.00:1.0

  	
   

  
	
  September 30, 2008

  	
   

  	
  3.00:1.0

  	
   

  
	
  December 31, 2008

  	
   

  	
  3.00:1.0

  	
   

  
	
  March 31, 2009

  	
   

  	
  3.00:1.0

  	
   

  
	
  June 30, 2009

  	
   

  	
  3.00:1.0

  	
   

  
	
  September 30, 2009

  	
   

  	
  3.00:1.0

  	
   

  
	
  December 31, 2009

  	
   

  	
  3.00:1.0

  	
   

  
	
  March 31, 2010

  	
   

  	
  3.00:1.0

  	
   

  
	
  June 30, 2010

  	
   

  	
  3.00:1.0

  	
   

  
	
  September 30, 2010

  	
   

  	
  3.00:1.0

  	
   

  
	
  December 31, 2010

  	
   

  	
  3.00:1.0

  	
   

  
	
  March 31, 2011

  	
   

  	
  3.00:1.0

  	
   

  
	
  June 30, 2011

  	
   

  	
  3.00:1.0

  	
   

  
	
  September 30, 2011

  	
   

  	
  3.00:1.0

  	
   

  
	
  December 31, 2011

  	
   

  	
  3.00:1.0

  	
   

  
	
  March 31, 2012

  	
   

  	
  3.00:1.0

  	
   

  
	
  June 30, 2012

  	
   

  	
  3.00:1.0

  	
   

  
	
  September 30, 2012

  	
   

  	
  3.00:1.0

  	
   

  
	
  December 31, 2012

  	
   

  	
  3.00:1.0

  	
   

  
	
  March 31, 2012

  	
   

  	
  3.00:1.0

  	
   

  
	
  Thereafter

  	
   

  	
  3.00:1.0

  	
   

  






 


7.2.          Limitation on Indebtedness.  Create,
incur, assume or suffer to exist any Indebtedness, except:


 


(a)           Indebtedness of any Loan Party pursuant to any Loan Document;


 


(b)           Indebtedness of the US Borrower to any Subsidiary of the US Borrower
and of any Subsidiary to the US Borrower or any other Subsidiary of US
Borrower; provided, however, that the


 


77

















 


aggregate
Indebtedness of Subsidiaries (other than Finance Companies) that are not
Guarantors to the Loan Parties shall not exceed $10,000,000 at any one time
outstanding;


 


(c)           Indebtedness (including Purchase Money Indebtedness and Capital Lease
Obligations), other than Permitted Vehicle Indebtedness, in an aggregate
principal amount not to exceed $50,000,000 at any one time outstanding;


 


(d)           Guarantee Obligations made in the ordinary course of business by the US
Borrower or any of its Subsidiaries of obligations (including obligations under
operating leases or leases of or use agreements for Eligible Vehicles or buses
or other service vehicles) of the US Borrower or any Guarantor;


 


(e)           Permitted Vehicle Indebtedness;


 


(f)            Indebtedness in respect of performance and
surety bonds issued to guarantee performance and payment on contracts entered
into by the US Borrower and its Subsidiaries in the ordinary course of business
and consistent with past practice.


 


(g)           Guarantee Obligations in favor of airports, airport authorities and other
Governmental Authorities with respect to airport rental or related facilities
to be used by the US Borrower or any of its Subsidiaries or any of their
franchisees in the ordinary course of business;


 


(h)           Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary course of
business, provided, that such Indebtedness is extinguished within five Business
Days of incurrence;


 


(i)            Indebtedness of the US Borrower or any of its
Subsidiaries incurred in connection with an Acquisition permitted by Section 7.8(j);


 


(j)            Indebtedness incurred by the US Borrower or
any of its Subsidiaries arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations, in each case, incurred or
assumed in connection with Acquisitions permitted by Section 7.8(j) or
permitted Dispositions of any business, assets or Subsidiary of the US Borrower
or any of its Subsidiaries;


 


(k)           Indebtedness of the US Borrower or any of its Subsidiaries in respect
of netting services, overdraft protections and other similar arrangements in
connection with deposit accounts in the ordinary course of business;


 


(1)           unsecured Indebtedness (i) in an amount not to exceed $25,000,000
in the aggregate at any time outstanding consisting of subordinated
indebtedness of the US Borrower or any of its Subsidiaries issued to a seller
in connection with an Acquisition permitted by Section 7.8(j) and which is
subordinated in right of payment to the Obligations and containing such other
terms, including with respect to tenor, covenants, events of default and
remedies reasonably satisfactory to the Administrative Agent and (ii) of
any Person in an amount not to exceed $50,000,000 in the aggregate at any time
outstanding incurred or assumed by the US Borrower or any of its Subsidiaries
as a result of an Acquisition permitted by Section 7.8(j) (other than
Indebtedness incurred or assumed in connection with or in contemplation of, or
to provide all or any portion of the funds or credit support utilized to
consummate the transaction or series of transactions pursuant to which such
Person was acquired by the US Borrower or one of its Subsidiaries);


 


78

















 


(m)          Indebtedness outstanding on the date hereof and listed on Schedule 7.2(m);


 


(n)           Indebtedness owing to insurance companies or their affiliates to finance
the payment of insurance premiums to such insurance companies in the ordinary
course of business;


 


(o)           Guarantee Obligations of any Loan Party with respect to Indebtedness of
another Loan Party permitted under this Section 7.2;


 


(p)           (i) Indebtedness incurred by a Finance Company in connection with
the acquisition of Eligible Vehicles; provided that (x) such vehicles
could not be acquired with the proceeds of Permitted Vehicle Indebtedness and
(y) such Indebtedness does not exceed the net book value of such vehicles and (ii) other
Indebtedness incurred by the US Borrower or any of its Subsidiaries to finance
the acquisition of Eligible Vehicles; provided that (x) such
Indebtedness does not exceed the net book value of such vehicles and (y)
recourse to the Loan Parties in the event of a default with respect to such
Indebtedness does not exceed $50,000,000 plus (if the Indebtedness is incurred
by a Loan Party) the proceeds realized from the sale or disposition of such
Eligible Vehicles;


 


(q)           Oklahoma Development Financing in an amount not to exceed $3,200,000;


 


(r)            Any extensions, renewals, refinancings or
replacements of any Indebtedness described in Section 7.2(i), Section 7.2(l),
Section 7.2(m), Section 7.2(p), Section 7.2(q), Section 7.2(r)
or Section 7.2(t) (subject to any limitations set forth in such
subsections), provided, such Indebtedness permitted under this subsection shall
not (x) include Indebtedness of an obligor that was not an obligor with respect
to the Indebtedness being extended, renewed, refinanced or replaced, (y), no
portion of the principal of such additional Indebtedness shall be scheduled to
be redeemed, repurchased or otherwise repaid or prepaid prior to the earlier of
(1) the date on which the corresponding portion of the refinanced Indebtedness
would be payable and (2) the date that is six months after the Term Loan
Maturity Date, or (z) exceed the principal amount of and any undrawn commitment
for the Indebtedness being renewed, extended, refinanced, or replaced, accrued
cash interest payable thereon, premium (if any) thereon, other than reasonable
amounts necessary to accomplish such extension, renewal, refinancing, or
replacement and reasonable fees and expenses incurred in connection therewith; provided
further thatafter giving
effect to the incurrence of such Indebtedness, (1) the US Borrower and its
Subsidiaries shall be in pro forma compliance with the financial covenants set
forth in Section 7.1 and (2) no Default or Event of Default shall
exist or would result therefrom;


 


(s)           Indebtedness under Hedge Agreements permitted to be entered into by
Section 7.15; and


 


(t)            additional Indebtedness, not otherwise
permitted by this Section 7.2, of the US Borrower or any other Subsidiary
in an aggregate principal amount (for the US Borrower and all such
Subsidiaries) not to exceed $25,000,000 at any one time outstanding.


 


7.3.          Limitation on Liens.  Create,
incur, assume or suffer to exist any Lien upon any of its Property, whether now
owned or hereafter acquired, except for:


 


(a)           Liens for taxes not yet due or that are being contested in good faith
by appropriate proceedings, provided, that adequate reserves with
respect thereto are maintained on the books of the US Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;


 


79

















 


(b)           carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or
other like Liens arising in the ordinary course of business that are not
overdue for a period of more than 30 days or that are being contested in good
faith by appropriate proceedings;


 


(c)           Liens incurred or deposits or cash management or cash collateral
arrangements made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security,
medical insurance, or to secure the performance of tenders, statutory or
regulatory obligations, appeal bonds, surety, insurance and other similar
bonds, bids, leases, government contracts, trade contracts, performance and
return-of-money bonds, and other similar obligations (exclusive of obligations
for the payment of borrowed money);


 


(d)           easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business that, in the aggregate, are not substantial
in amount and that do not in any case materially detract from the value of the
Property subject thereto or materially interfere with the ordinary conduct of
the business of the US Borrower or any of its Subsidiaries;


 


(e)           Liens in existence on the date hereof listed
on Schedule 7.3(e) securing Indebtedness permitted by Section 7.2(m),
provided, that no such Lien is spread to cover any additional Property
after the Closing Date and that the amount of the Indebtedness secured thereby
is not increased;


 


(f)            Liens securing Indebtedness of any Subsidiary
of the US Borrower incurred pursuant to Sections 7.2(c) and Section 7.2(g) to
finance the acquisition or construction of fixed or capital assets (including,
buses and other service vehicles), provided, that (i) such Liens
shall be created within 90 days of the acquisition or construction of such
fixed or capital assets, (ii) such Liens do not at any time encumber any
Property other than the Property financed by such Indebtedness and (iii) such
Indebtedness shall not exceed the cost of the property or assets acquired, and
in the case of Section 7.2(g), in the case where such property or assets
include real property or fixtures, the cost of the construction or repair
thereof and improvements thereto;


 


(g)           Liens created pursuant to the Security Documents;


 


(h)           any interest or title of a lessor under any lease or any rights of a
licensor under any non-exclusive licenses entered into by any Subsidiary of the
US Borrower in the ordinary course of business and consistent with past
practice, except for exclusive licenses permitted in accordance with Section 4.2
of the Guarantee and Collateral Agreement and covering only the assets so
leased or licensed;


 


(i)            Liens on (i) Permitted Vehicle
Collateral securing Indebtedness described in Section 7.2(e) or Section 7.2(s)
and Liens on other Property of Subsidiaries of the US Borrower, securing
Indebtedness described in Section 7.2(e) or Section 7.2(s) of
such Subsidiaries or (ii) Eligible Vehicles and all proceeds and products
thereof owned by a Loan Party securing Indebtedness described under Section 7.2(p)(ii);


 


(j)            Liens in respect of cash collateral
arrangements with insurers of the US Borrower and its Subsidiaries in the
ordinary course of business;


 


(k)           Liens solely on any cash earnest money deposits made by the US Borrower
or any of its Subsidiaries in connection with any letter of intent or purchase
agreement for an Acquisition permitted by Section 7.8(j);


 


80

















 


(1)           purported Liens evidenced by the filing of precautionary UCC financing
statements relating solely to operating leases of personal property entered
into in the ordinary course of business;


 


(m)          Liens on assets in favor of customs and revenue authorities or freight
handlers or forwarders to secure payment of customs duties in connection with
the importation of goods;


 


(n)           Liens in favor of the US Borrower or any of its Subsidiaries;


 


(o)           Liens on Property of a Person existing at the time such Person is
merged with or into or consolidated with the US Borrower or a Subsidiary
thereof or at the time the US Borrower or one of its Subsidiaries acquires such
Property or the Capital Stock of such Person; provided, that such Liens
were in existence prior to and were not incurred in connection with or in
contemplation of, such merger of consolidation or acquisition and do not extend
to any assets other than those of the Person merged into or consolidated with
or acquired by the US Borrower or its Subsidiaries;


 


(p)           Banker’s liens, rights of setoff and similar Liens with respect to Cash
and Cash Equivalents on deposit in one or more bank accounts in the ordinary
course of business;


 


(q)           any attachment or judgment Lien not constituting an Event of Default
under Section 8.01(h);


 


(r)            Liens securing Indebtedness under Section 7.2(r)
which is incurred to extend, renew, refinance, or replace any Indebtedness
which was secured by a Lien permitted under this Section 7.3; provided
that any such Liens do not extend to or cover any property or assets of the US
Borrower or its Subsidiaries not securing the Indebtedness so extended,
renewed, refinanced or replaced;


 


(s)           Liens existing on the date hereof securing Indebtedness under Section 7.2(q);
and


 


(t)            Liens not otherwise permitted by this Section 7.3
so long as the aggregate outstanding principal amount of the obligations
secured thereby do not exceed (as to the US Borrower and all other Subsidiaries
of the US Borrower) $25,000,000 at any one time.


 


7.4.          Limitation on Fundamental Changes.  Enter
into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or Dispose of all
or substantially all of its Property or business, except that:


 


(a)           any Domestic Subsidiary that is a Guarantor may be merged or
consolidated with or into the Borrower (provided, that the Borrower
shall be the continuing or surviving corporation) or with or into any Domestic
Subsidiary that is a Wholly Owned Guarantor (provided, that (i) the
Wholly Owned Guarantor shall be the continuing or surviving corporation or (ii) simultaneously
with such transaction, the continuing or surviving corporation shall become a
Domestic Subsidiary that is a Wholly Owned Guarantor and the Borrower shall
comply with Section 6.10 in connection therewith);


 


(b)           any Foreign Subsidiary (other than the Canadian Borrower) may (i) be
merged or consolidated with or into any other Foreign Subsidiary (provided,
that a Canadian Subsidiary may only merge or be consolidated with or into a
Domestic Subsidiary or another Canadian Subsidiary) and (ii) Dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to any other
Foreign Subsidiary (provided, that a Canadian Subsidiary may only
Dispose of any or all of its assets to a Domestic Subsidiary or another
Canadian Subsidiary);


 


81

















 


(c)           any Subsidiary of the US Borrower may Dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to the US Borrower or any
Guarantor;


 


(d)           any Excluded Domestic Subsidiary may be merged or consolidated with or
into another Excluded Domestic Subsidiary or the US Borrower or any Guarantor,
and any Excluded Domestic Subsidiary may Dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to another Excluded Domestic
Subsidiary, the US Borrower or any Guarantor;


 


(e)           any Finance Company may (i) Dispose of all or substantially all of
its assets consisting of Eligible Vehicles or in the ordinary course of business
and Dispose of its other assets or (ii) wind up or dissolve if the US
Borrower determines that such Finance Company is no longer necessary to finance
Eligible Vehicles; and


 


(f)            the US Borrower may Dispose of any or all of
its assets (upon voluntary liquidation or otherwise) to a holding company of
the US Borrower, so long as such holding company assumes all of the US Borrower’s
obligations under the Loan Documents pursuant to such documents as the
Administrative Agent deems necessary or desirable, including an amendment to
the Guarantee and Collateral Agreement.


 


7.5.          Limitation on Disposition of Property. Dispose of any of its Property (including,
receivables and leasehold interests), whether now owned or hereafter acquired,
or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary’s
Capital Stock to any Person, except:


 


(a)           the Disposition of obsolete or worn out property, buses or other
service vehicles in the ordinary course of business;


 


(b)           the sale of inventory in the ordinary course of business;


 


(c)           Dispositions permitted by Sections 7.4(a) through 7.4(f);


 


(d)           the sale or issuance of (i) any Domestic Subsidiary’s Capital
Stock to the US Borrower or any Domestic Subsidiary that is a Guarantor, (ii) any
Canadian Subsidiary’s Capital Stock to the US Borrower or the Canadian
Borrower, or (iii) any Foreign Subsidiary’s (other than any Canadian
Subsidiary and any Foreign Subsidiary the stock of which is pledged as
Collateral) stock to the US Borrower or any Foreign Subsidiary;


 


(e)           the Disposition of Eligible Vehicles and buses and other service
vehicles in the ordinary course of business;


 


(f)            any Recovery Event, provided, that the
requirements of Section 2.12(c) are complied with in connection
therewith;


 


(g)           Dispositions constituting Investments permitted by Section 7.8;


 


(h)           any Inactive Subsidiary may dissolve, liquidate or wind up its affairs
at any time;


 


(i)            the use or transfer of cash or Cash
Equivalents in a manner that is permitted by the terms of this Agreement or the
other Loan Documents;


 


(j)            to the extent allowable under Section 1031
of the Internal Revenue Code, (i) an exchange in the ordinary course of
business of Eligible Vehicles for other Eligible Vehicles and (ii) an


 


82

















 


exchange
of other like property having a fair market value not to exceed $5,000,000 in
the aggregate for any fiscal year of the US Borrower, in each case for use in a
business of the US Borrower and its Subsidiaries permitted by Section 7.14;


 


(k)           any Disposition by the US Borrower or any of its Subsidiaries to any
franchisee of any licensed territory in connection with any franchise
relationship, if such licensed territory was cash flow negative for the last
twelve months prior to such Disposition or newly established within the last
twelve months prior to such Disposition;


 


(1)           the Disposition by assignment by the US Borrower or any of its
Subsidiaries to any Finance Company of any Hedge Agreements initially entered
into by the US Borrower or any of its Subsidiaries for the benefit of any such
Finance Company, provided, that the assigning party retains no
obligations under such Hedge Agreement after such assignment;


 


(m)          Dispositions of insurance claims for property damage arising in
connection with the rental of Eligible Vehicles in the ordinary course of
business; and


 


(n)           Dispositions of other assets having a fair market value not to exceed
$10,000,000 in the aggregate for any fiscal year of the US Borrower.


 


7.6.          Limitation on Restricted Payments. Declare or pay any dividend on, or make any
payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other acquisition
of, any Capital Stock of the US Borrower or any Subsidiary, whether now or
hereafter outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
the US Borrower or any Subsidiary (collectively, “Restricted Payments”),
except that:


 


(a)           (i) any Domestic Subsidiary may make Restricted Payments to the US
Borrower or any Guarantor that is a Domestic Subsidiary, (ii) any Canadian
Subsidiary may make Restricted Payments to the US Borrower, the Canadian
Borrower or any Guarantor, and (iii) any Foreign Subsidiary (other than
any Canadian Subsidiary) may make Restricted Payments to the US Borrower or any
Guarantor or to any other Foreign Subsidiary;


 


(b)           the US Borrower may make Restricted Payments in the form of common
stock of the US Borrower;


 


(c)           So long as no Default or Event of Default shall have occurred and be
continuing, the US Borrower may, or may make Restricted Payments to Direct
Parent, any intermediate holding company, and Parent to enable Parent to,
repurchase, redeem or otherwise acquire or retire shares of, or options or
warrants to purchase shares of, Capital Stock of the US Borrower or Parent from
current or former employees, officers or directors of the US Borrower or any
Subsidiaries thereof or their respective estates, spouses, former spouses,
family members or other permitted transferees, in an aggregate amount not to
exceed (x) $5,000,000 in any calendar year or (y) $15,000,000 since the Closing
Date; provided, that (i) the US Borrower may carry over and make in
subsequent calendar years, in addition to the amounts permitted for such
calendar year, the amount of such purchases, redemptions or other acquisitions
or retirements for value permitted to have been made but not made in any
preceding calendar year up to a maximum of $5,000,000 in any calendar year and (ii) Restricted
Payments made pursuant to this Section during any calendar year shall be
deemed made, first, in respect of amounts permitted for such year as
provided above and second, in respect of amounts carried of from the
prior year pursuant to clause (i) above; provided, further
that such amount in any calendar year may be increased by an amount not to
exceed (A) the net cash proceeds from the sale of equity or other
beneficial ownership interests of


 


83

















 


the US Borrower or Parent to
employees, officers, directors or consultants of the US Borrower and the
Subsidiaries of the US Borrower that occurs after the date of this Agreement,
so long as, in the case of a sale of interests of Parent, the proceeds thereof
are contributed to the US Borrower, plus (B) the
cash proceeds of key man life insurance policies received by the US Borrower
and its Subsidiaries after the date of this Agreement;


 


(d)           any Restricted Payments made on the Closing Date with proceeds of the
Loans in accordance with Section 4.16;


 


(e)           the repurchase of Capital Stock deemed to occur upon any “cashless”
exercise of stock options, warrants or other convertible securities;


 


(f)            following an IPO, and so long as the
Consolidated Non-Vehicle Leverage Ratio as of the most recently completed four
fiscal quarter period (determined after giving effect to any such dividend) is
equal to or less than 2.75:1.0 (after giving pro forma effect to any prepayment
pursuant to this Agreement), cash dividends on Capital Stock of the US
Borrower, or Restricted Payments directly or indirectly to Parent to enable
Parent to pay cash dividends on its Capital Stock, not to exceed $30,000,000
plus 35% of Excess Cash Flow since the Closing Date;


 


(g)           Restricted Payments for the purchase, redemption, acquisition,
cancellation or other retirement for value of shares of the preferred stock of
the Vanguard Car Rental USA Inc. held by General Motors or one of its
affiliates; provided, that the aggregate cash consideration paid for
such purchase, redemption, acquisition, cancellation or other retirement of
such shares of preferred stock after the Closing Date does not exceed $10,000
in any fiscal year; and


 


(h)           so long as no Default or Event of Default shall have occurred and be
continuing or shall be caused thereby, the US Borrower may make Restricted
Payments to a Parent (i) in an aggregate amount not to exceed $2,500,000
(or after an IPO, $5,000,000) in any fiscal year, to the extent necessary to
permit any Parent to pay general administrative costs and expenses and
out-of-pocket legal, accounting and filing and other general corporate overhead
costs of such Parent and (ii) for so long as the US Borrower is a member
of a group filing a consolidated or combined tax return with any Parent,
payments to such Parent in respect of an allocable portion of the tax
liabilities of such group that is reasonably attributable to the US Borrower
and its Subsidiaries as if the US Borrower and its Subsidiaries were a
stand-alone consolidated group (“Tax Payments”); provided
however, that the Tax Payment must be used by Parent to satisfy such allocable
portion of the tax liability of the consolidated group within 30 days of Parent’s
receipt thereof.


 


7.7.          Limitation on Capital Expenditures.  Make
or commit to make any Capital Expenditure, except Capital Expenditures not
exceeding (a) $60,000,000 for the US Borrower and its Subsidiaries for the
fiscal year ending December 31, 2006 and (b) for each fiscal year of
the US Borrower thereafter, the greater of 2.5% of gross operating revenues of
US Borrower and its Subsidiaries for the immediately preceding fiscal year or
$85,000,000; provided, that 50% of any such amount referred to above, if
not so expended in the fiscal year for which it is permitted, may be carried
over for expenditure in the next succeeding fiscal year.


 


7.8.          Limitation on Investments. Make any advance, loan, extension of credit
(by way of guaranty or otherwise) or capital contribution to, or purchase any
Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting an ongoing business from, or make any other investment in,
any other Person (all of the foregoing, “Investments”), except:


 


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(a)           extensions of credit to customers or advances, deposits and payment to
or with suppliers, lessors or utilities or for workers’ compensation or medical
insurance, in each case, in the ordinary course of business that are recorded
as accounts receivable, prepaid expenses or deposits on the balance sheet of
Parent and its Subsidiaries prepared in accordance with GAAP;


 


(b)           Investments in Cash Equivalents;


 


(c)           Investments arising in connection with the incurrence of Indebtedness
permitted by Section 7.2;


 


(d)           loans and advances to directors, officers and employees of the US
Borrower or any Subsidiary in the ordinary course of business (including, for
travel, entertainment and relocation expenses) in an aggregate amount for the
US Borrower and the Subsidiaries not to exceed $2,500,000 at any one time
outstanding;


 


(e)           Investments in assets useful in the business of the US Borrower or any
of its Subsidiaries made with the proceeds of any Reinvestment Deferred Amount;


 


(f)            intercompany Investments (other than those relating
to the incurrence of Indebtedness permitted by Section 7.8(c)) by the US
Borrower, its Subsidiaries, or any Person that, prior to or as a result of such
Investment, is a Guarantor that is a Domestic Subsidiary;


 


(g)           Investments by Excluded Subsidiaries (other than any Canadian
Subsidiary) in other Excluded Subsidiaries;


 


(h)           Investments by the US Borrower or any Subsidiary of Permitted Vehicle
Collateral in any Finance Company, provided, that such Investments are
used to secure Permitted Vehicle Indebtedness;


 


(i)            Investments by any Loan Party in any
Subsidiary of Parent that is not a Loan Party in an aggregate cumulative amount
after the date of this Agreement, net of any such Investments previously
returned or repaid, not to exceed (i) $10,000,000, plus (ii) any
additional amount funded from a cash contribution to the US Borrower’s common
equity capital;


 


(j)            any Acquisition either through the purchase
of assets (including the goodwill) or the purchase of 100% of the Capital Stock
of any Person or of any franchise, if each of the following conditions is
satisfied: (i) the requirements of Section 6.10 have been satisfied
with respect to such Acquisition and the US Borrower shall be in pro forma
compliance with Section 7.1 both before and after giving effect to such
Acquisition (and in making such pro forma calculation in connection with
determining compliance with Section 7.1, Consolidated EBITDA After Fleet
Costs shall be reduced by a reasonable allowance for future payments to which
the seller may become entitled based on the performance of the business
acquired in such Acquisition if maintained at the levels reflected in such pro
forma adjustments); (ii) no Default or Event of Default has occurred and
is continuing, or would occur after giving effect to such Acquisition; (iii) the
aggregate Purchase Prices of all such Acquisitions during the term of this
Agreement shall not exceed $150,000,000; and (iv) any such Acquisition
shall have been approved by the Board of Directors or such comparable governing
body of the Person or business being acquired;


 


(k)           Investments (i) received in satisfaction or partial satisfaction
of delinquent accounts and disputes with customers or suppliers of such Person
in the ordinary course of business; (ii) acquired as a result of
foreclosure of a Lien securing an Investment or the transfer of the assets
subject to


 


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such Lien in lieu of
foreclosure or (iii) consisting of deposits, prepayments and other credits
to suppliers made in the ordinary course of business consistent with the past
practices of the US Borrower and its Subsidiaries;


 


(1)           Investments constituting non-Cash consideration useful in the operation
of the business received by the US Borrower or any of its Subsidiaries in
connection with permitted Asset Sales and other Dispositions permitted under Section 7.5;


 


(m)          Investments existing on the Closing Date and renewals or extensions of
any such Investment to the extent not involving any additional Investments
other than as the result of the accrual or accretion of interest or original
issue discount or the issuance of pay-in-kind securities, in each case pursuant
to the terms of such Investments as in effect on the date of this Agreement;


 


(n)           Investments by the US Borrower or any of its Subsidiaries during the
term of this Agreement in joint ventures (which joint ventures, for the
avoidance of doubt, shall not include airport facilities) engaged in any
business permitted by Section 7.14 in an aggregate outstanding amount not
to exceed $25,000,000 at any time;


 


(o)           Investments under Hedge Agreements to the
extent permitted under Section 7.15;


 


(p)           Investments resulting from an Acquisition permitted under Section 7.8(j),
which Investments at the time of such Acquisition were held by the acquired
Person and were not acquired in contemplation of the Acquisition of such
Person;


 


(q)           Investments to fund the obligations of International Automotive Group
Insurance Company Ltd. (or any other captive insurance Subsidiary of US
Borrower engaged in substantially the same business);


 


(r)            Investments made on or about the Closing Date
to Parent to fund a loan of up to $123,100,000 to Parent under the Parent
Promissory Note to fund a redemption of Parent’s preferred stock;


 


(s)           Investments consisting of loans to Subsidiaries of Parent (other than
the US Borrower and its Subsidiaries) in an aggregate amount not to exceed
$25,000,000 at any time outstanding; and


 


(t)            in addition to Investments otherwise
expressly permitted by this Section, Investments by the US Borrower or any
Subsidiary during the term of this Agreement in an aggregate outstanding amount
(valued at cost) not to exceed $25,000,000 at any time.


 


7.9.          Limitation on Transactions with Affiliates. Enter into any transaction, including, any
purchase, sale, lease or exchange of Property, the rendering of any service or
the payment of any management, advisory or similar fees, with any Affiliate
(other than the US Borrower or any Guarantor) unless such transaction is (a) otherwise
permitted under this Agreement, and (b) upon fair and reasonable terms no
less favorable to the US Borrower or such Guarantor, as the case may be, than
it would obtain in a comparable arm’s length transaction with a Person that is
not an Affiliate as determined by a majority of the disinterested directors of
the US Borrower; provided that if any such transaction has a value in
excess of $50,000,000 then such determination shall based on a report of an
accounting, appraisal or investment banking firm of national standing. The
foregoing restrictions shall not apply to:


 


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(a)           reasonable fees and compensation paid to and indemnity provided on
behalf of officers, directors or employees of the US Borrower or any of its
Subsidiaries in the ordinary course of business and consistent with past
practice;


 


(b)           Restricted Payments permitted under Section 7.6;


 


(c)           any employment, stock option, stock repurchase, employee benefit compensation,
business expense reimbursement, severance, termination or other
employment-related agreements, arrangements or plans entered into by the US
Borrower or any of its Subsidiaries in the ordinary course of business


 


(d)           transactions relating to any Investment in Parent or any of its
Subsidiaries, including the granting of registration rights with respect
thereto;


 


(e)           any agreement as in effect as of the Closing Date and set forth on Schedule 7.9(e) or
any amendment thereto or any transaction contemplated thereby (including
pursuant to any amendment thereto and any extension of the maturity thereof)
and any replacement agreement thereto so long as any such amendment or
replacement agreement is not materially more disadvantageous to the Agents and
the Lenders, in any material respect than the original agreement as in effect
on the Closing Date;


 


(f)            Investments permitted under Section 7.8;


 


(g)           reservation services, travel and tour related services, collection and
settlement services, and other similar transactions in the ordinary course of
business with Subsidiaries of Parent (other than the US Borrower and its
Subsidiaries); and


 


(h)           servicing agreements and other similar arrangements customary in fleet
financing securitization transactions.


 


7.10.        Limitation on Sales and Leasebacks.  Enter into any arrangement
with any Person providing for the leasing by the US Borrower or any of its
Subsidiaries of real or personal property (other than Eligible Vehicles) which
has been or is to be sold or transferred by the US Borrower or such Subsidiary
to such Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such property or rental obligations
of the US Borrower or such Subsidiary.


 


7.11.        Limitation on Changes in Fiscal Periods.  Permit
the fiscal year of the US Borrower to end on a day other than December 31
or change the US Borrower’s method of determining fiscal quarters.


 


7.12.        Limitation on Negative Pledge Clauses.  Enter into or suffer to exist
or become effective any agreement that prohibits or limits the ability of the
US Borrower or any Subsidiary to create, incur, assume or suffer to exist any
Lien upon any of its Property or revenues, whether now owned or hereafter
acquired, other than (a) this Agreement and the other Loan Documents, (b) any
agreements governing any purchase money Liens, Capital Lease Obligations or
Permitted Vehicle Indebtedness otherwise permitted hereby (in which case, any
prohibition or limitation shall only be effective against the assets financed
thereby or Permitted Vehicle Collateral securing the applicable Permitted
Vehicle Indebtedness), (c) other Indebtedness permitted by Section 7.2
so long as the agreements with respect to such Indebtedness permit the Liens
created under the Loan Documents (and Liens upon the Collateral securing all
extensions, renewals, replacements and refinancings thereof) and the
prohibitions and limitations thereunder are not as a whole more restrictive
than Section 7.3 hereof.


 


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7.13.        Limitation on
Restrictions on Subsidiary Distributions. Enter into or suffer to exist or
become effective any consensual encumbrance or restriction on the ability of
any Subsidiary to (a) make Restricted Payments in respect of any Capital
Stock of such Subsidiary held by, or pay any Indebtedness owed to, the US
Borrower or any other Subsidiary, (b) make Investments in the US Borrower
or any other Subsidiary of the US Borrower or (c) transfer any of its
assets to the US Borrower or any other Subsidiary, except for such encumbrances
or restrictions existing under or by reason of (i) any restrictions
existing under the Loan Documents, (ii) any restrictions imposed on any
Finance Company pursuant to the terms of Permitted Vehicle Indebtedness, (iii) any
agreement or instrument governing Indebtedness assumed in connection with the
acquisition of assets by the US Borrower or any Subsidiary permitted hereunder
or secured by a Lien encumbering assets acquired in connection therewith, which
encumbrance or restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person or the properties or assets of
the Person so acquired, (iv) provisions in agreements or instruments that
prohibit the payment of dividends or the making of other distributions with
respect to any Capital Stock of a Person other than on a pro rata basis, (v) restrictions
on the transfer of assets subject to any Lien permitted by Section 7.3
hereof imposed by the holder of such Lien, (vi) restrictions imposed by
any agreement to sell assets or Capital Stock (but only with respect to such
assets or Capital Stock) permitted under this Agreement to any Person pending
the closing of such sale, (vii) provisions in joint venture agreements and
other similar agreements (in each case relating solely to the respective joint
venture or similar entity or the equity interests therein) entered into in the
ordinary course of business, (viii) restrictions contained in the terms of
the Purchase Money Indebtedness or Capital Lease Obligations not incurred in
violation of this Agreement; provided, that such restrictions relate only to
the property financed with such Indebtedness, (ix) restrictions contained
in the terms of Indebtedness permitted by Section 7.2, provided
that such restrictions taken as a whole are not more restrictive with respect
to such encumbrances and restrictions than those contained in the existing
agreements referenced in clause (i) above, (x) restrictions on cash or
other deposits imposed by customers under contracts or other arrangements
entered into or agreed to in the ordinary course of business; and (xi) any
encumbrance or restriction imposed by any amendments, modifications,
restatements, increases, supplements, refundings, replacements, or refinancings
of the contracts, instruments or obligations referred to in clauses (i) through
(x) above; provided, however, that the provisions relating to such encumbrance
or restriction contained in any such amendment, modification, restatement,
increase, supplement, refunding, replacement, or refinancing are no less
favorable to the US Borrower and its Subsidiaries and the Lenders in any
material respect, as determined by the Board of Directors of the US Borrower in
its reasonable and good faith judgment, than the provisions relating to such
encumbrance or restriction contained in agreements referred to in such clause.


 


7.14.        Limitation on Lines of Business.  (a) Enter into any
business, either directly or through any Subsidiary, except for those
businesses in which the US Borrower and its Subsidiaries are engaged on the
date of this Agreement or that are reasonably related thereto or a reasonable
expansion or extension thereof.


 


(b)           Permit Vanguard Trademark Holdings USA LLC to (i) engage in any
other business other than the ownership and non-exclusive licensing of
Intellectual Property in the ordinary course of business and consistent with
past practice, except for exclusive licenses permitted in accordance with Section 4.2
of the Guarantee and Collateral Agreement or (ii) incur any Indebtedness
other than guarantees of the Obligations.


 


7.15.        Limitation on Hedge Agreements.  Enter into any Hedge Agreement
other than Hedge Agreements entered into prior to or subsequent to the date
hereof in the ordinary course of business or which are initially entered into
by the US Borrower or any of its Subsidiaries as the account


 


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party on behalf of any
Finance Company in relation to Permitted Vehicle Indebtedness and which are
promptly assigned to such Finance Company, in each case not for speculative
purposes.


 


7.16.        Permitted Vehicle
Indebtedness. Permit the aggregate principal amount of outstanding
Permitted Vehicle Indebtedness held by Persons other than the US Borrower and
its Subsidiaries as of the last calendar day of each month (the “Determination
Date”) to exceed the net book value of the Permitted Vehicle Collateral
securing Permitted Vehicle Indebtedness held by Persons other than the US Borrower
and its Subsidiaries on such Determination Date. Notwithstanding the foregoing,
if the US Borrower or the Canadian Borrower is not in compliance with the
preceding sentence on any Determination Date, neither the US Borrower nor the
Canadian Borrower will be in breach thereof so long as (a) within 25 days
from the Determination Date (or if such day is not a Business Day, on the next
succeeding Business Day) the US Borrower or its Subsidiaries repay sufficient
Permitted Vehicle Indebtedness or deposits as collateral additional Permitted
Vehicle Collateral so that the US Borrower and the Canadian Borrower would have
been in compliance as of the Determination Date assuming such repayment or
deposit had been made on such date or (b) the US Borrower and the Canadian
Borrower deliver to the Administrative Agent an officers’ certificate setting
forth the amount of the shortfall within 25 days of such Determination Date (or
if such day is not a Business Day, on the next succeeding Business Day) and
within 50 days from the Determination Date (or if such day is not a Business
Day, on the next succeeding Business Day) the US Borrower causes (i) to be
repaid sufficient Permitted Vehicle Indebtedness, (ii) to be deposited as
collateral additional Permitted Vehicle Collateral, or (iii) to be
redesignated under one of the clauses of Section 7.2 hereof (other than Section 7.2(e))
sufficient Permitted Vehicle Indebtedness that is not secured by an actual Lien
on Permitted Vehicle Collateral to no longer constitute Permitted Vehicle
Indebtedness, in each case so that the US Borrower and the Canadian Borrower
would have been in compliance as of the Determination Date assuming such
repayment, deposit or redesignation had been made on such date.


 


SECTION 8. EVENTS OF DEFAULT


 


If any of the following events shall occur and be continuing:


 


(a)           the US Borrower or the Canadian Borrower shall fail to pay any
principal of any Loan or Reimbursement Obligation when due in accordance with
the terms hereof; or the US Borrower or the Canadian Borrower shall fail to pay
any interest or acceptance fee on any Loan or Reimbursement Obligation, or any
other amount payable hereunder or under any other Loan Document, within five
days after any such interest or other amount becomes due in accordance with the
terms hereof or thereof; or


 


(b)           any representation or warranty made or deemed made by any Loan Party
herein or in any other Loan Document or that is contained in any certificate,
document or financial or other statement furnished by it at any time under or
in connection with this Agreement or any such other Loan Document shall prove
to have been inaccurate in any material respect on or as of the date made or
deemed made or furnished and such breach shall not have been remedied, cured,
reversed or waived within ten (10) days after the earlier of (i) receipt
by the US Borrower of written notice from Administrative Agent or the Required
Lenders of the foregoing or (ii) a Responsible Officer having knowledge of
such failure; provided, that the Loan Parties may not remedy, cure,
reverse or waive such breach if such breach was made intentionally with the
knowledge by any Responsible Officer that such representation or warranty was
false at the time made; or


 


(c)           (i) any Loan Party shall default in the observance
or performance of any agreement contained in Section 6.4(a)(i), Section 6.4(a)(ii),
Section 6.7(a) or Section 7, or in Section 5 of


 


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the Guarantee and Collateral
Agreement, or (ii) an “Event of Default” under and as defined in any
Mortgage shall have occurred and be continuing; or


 


(d)           any Loan Party shall default in the observance or performance of any
other agreement contained in this Agreement or any other Loan Document (other
than as provided in paragraphs (a) through (c) of this Section 8),
and such default shall continue unremedied for a period of 30 days; provided,
however, that such thirty day cure period shall be extended by an
additional 10 days, for a total of 40 days, if (A) such default cannot be
cured by the payment of money and (B) such Loan Party promptly and for the
duration of such initial thirty-day period takes action reasonably designed to
achieve a cure within such period and thereafter diligently and continuously
pursues such cure (it being agreed and understood that during such cure period
any such Default shall not constitute an Event of Default); or


 


(e)           the US Borrower or any of its Subsidiaries shall (i) default in
making any payment of any principal of any Indebtedness (including, any
Guarantee Obligation, but excluding the Loans and Reimbursement Obligations) on
the scheduled or original due date with respect thereto; or (ii) default
in making any payment of any interest on any such Indebtedness beyond the
period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created; or (iii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to permit
the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf
of such holder or beneficiary) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or to become
subject to a mandatory offer to purchase by the obligor thereunder or (in the
case of any such Indebtedness constituting a Guarantee Obligation) to become
payable; provided, that a default, event or condition described in
clause (i), (ii) or (iii) of this paragraph (e) shall not at any
time constitute an Event of Default unless, at such time, one or more defaults,
events or conditions of the type described in clauses (i), (ii) and (iii) of
this paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the aggregate
$15,000,000; or


 


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


 


90

















 


the US Borrower or any of
its Significant Subsidiaries shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due; or


 


(g)           (i) any Person shall engage in any “prohibited transaction” (as
defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any “accumulated funding deficiency” (as defined
in Section 302 of ERISA), whether or not waived, shall exist with respect
to any Plan, or any Lien in favor of the PBGC or a Plan shall arise on the
assets of the US Borrower or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence to
have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of the
Required Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the US Borrower or any Commonly
Controlled Entity shall incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer Plan, (vi) any
other event or condition shall occur or exist with respect to a Plan; (vii) any
going concern, unfunded liability or solvency deficiency shall exist with
respect to any Canadian Pension Plan, (viii) any event shall occur which
could reasonably cause a revocation of the registered status of any Canadian
Pension Plan or which could reasonably cause any regulatory authority to order
the appointment of an administrator of any Canadian Pension Plan, (ix) the
partial or full wind-up of any Canadian Pension Plan, (x) any failure to remit
any contributions when due with respect to any Canadian Pension Plan, or (xi)
any other event or condition shall occur or exist with respect to a Canadian
Pension Plan; and in each case in clauses (i) through (xi) above, such
event or condition, together with all other such events or conditions, if any,
could reasonably be expected to result in a liability of the US Borrower or its
Subsidiaries in excess of $20,000,000; or


 


(h)           one or more judgments or decrees shall be entered against the US
Borrower or any of its Subsidiaries involving for the US Borrower and its
Subsidiaries taken as a whole a liability (not paid or fully covered by
insurance as to which the relevant insurance company has acknowledged coverage)
of $15,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or


 


(i)            any of the Security Documents shall cease,
for any reason, to be in full force and effect in any material respect or any
Loan Party or any Affiliate of any Loan Party shall so assert, or any Lien created
by any of the Security Documents shall cease to be enforceable and of the same
effect and priority purported to be created thereby;


 


(j)            the guarantee contained in Section 2 of
the Guarantee and Collateral Agreement shall cease, for any reason (other than
by reason of the express release thereof pursuant to Section 10.15), to be
in full force and effect or any Loan Party or any Affiliate of any Loan Party
shall so assert; or


 


(k)           any Change of Control shall occur;


 


then, and in any such event,
(A) if such event is an Event of Default specified in clause (i) or (ii) of
paragraph (f) above with respect to the US Borrower or the Canadian
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including the aggregate face
amount of all outstanding Banker’s Acceptances, whether or not the Banker’s
Acceptances have matured, and L/C Obligations, whether or not the beneficiaries
of the then outstanding Letters of Credit have presented the documents required
thereunder), shall immediately become due and payable, and (B) if such
event is any other Event of Default, any or all of the following actions may be
taken: (i) with the


 


91

















 


consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the US Borrower declare
the Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the US Borrower and the Canadian
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement and the other Loan Documents
(including the aggregate face amount of all outstanding Banker’s Acceptances,
whether or not the Banker’s Acceptances have matured, and L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit have
presented the documents required thereunder) to be due and payable forthwith,
whereupon the same shall immediately become due and payable. In the case of all
US Letters of Credit with respect to which presentment for honor shall not have
occurred at the time of an acceleration pursuant to this paragraph, the US
Borrower shall at such time deposit in a cash collateral account opened by the
Administrative Agent an amount in immediately available funds equal to the
aggregate then undrawn and unexpired amount of such US Letters of Credit (and
the Borrowers hereby grant to the Administrative Agent, for the ratable benefit
of the Secured Parties, a continuing security interest in all amounts at any
time on deposit in such cash collateral account to secure the undrawn and
unexpired amount of such US Letters of Credit and all other Obligations of the
Borrowers). In the case of all Canadian Letters of Credit with respect to which
presentment for honor shall not have occurred or Banker’s Acceptances which
have not matured at the time of an acceleration pursuant to this paragraph, the
Canadian Borrower shall at such time deposit in a cash collateral account
opened by the Canadian Agent an amount in immediately available funds equal to
the aggregate then undrawn and unexpired amount of such Canadian Letters of
Credit and the aggregate face amount of unmatured Banker’s Acceptances (and the
Canadian Borrower hereby grants to the Canadian Agent, for the benefit of the
holders of Canadian Obligations, a continuing security interest in all amounts
at any time on deposit in such cash collateral account to secure the undrawn and
unexpired amount of such Canadian Letters of Credit or the unmatured Banker’s
Acceptances and all other Obligations of the Canadian Borrower). If at any time
any funds held in such cash collateral account are subject to any right or
claim of any Person other than the Administrative Agent, the Canadian Agent and
the relevant Secured Parties or that the total amount of such funds is less
than the aggregate undrawn and unexpired amount of outstanding US Letters of
Credit, Canadian Letters of Credit or Banker’s Acceptances, the US Borrower or
the Canadian Borrower, as applicable, shall, forthwith upon demand by the
Administrative Agent or the Canadian Agent, as applicable, pay to the
Administrative Agent or the Canadian Agent, as applicable, as additional funds
to be deposited and held in such cash collateral account, an amount equal to
the excess of (a) such aggregate undrawn and unexpired amount over (b) the
total amount of funds, if any, then held in such cash collateral account that
the Administrative Agent or the Canadian Agent, as applicable, determines to be
free and clear of any such right and claim. Amounts held in such cash
collateral account with respect to US Letters of Credit shall be applied by the
Administrative Agent to the payment of drafts drawn under such US Letters of
Credit, and the unused portion thereof after all such US Letters of Credit
shall have expired or been fully drawn upon, if any, shall be applied to repay
other obligations of the Borrowers hereunder and under the other Loan Documents.
Amounts held in such cash collateral account with respect to Canadian Letters
of Credit and Banker’s Acceptances shall be applied by the Canadian Agent to
the payment of drafts drawn under such Canadian Letters of Credit and the
reimbursement obligations of the Canadian Borrower with respect to matured
Banker’s Acceptances, and the unused portion thereof after all such Canadian
Letters of Credit shall have expired or been fully drawn upon, if any, and all
such Banker’s Acceptances shall have matured, if any, shall be applied to repay
other obligations of the Canadian Borrower hereunder and under the other Loan
Documents. After all such Banker’s Acceptances shall have matured and all such
Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations
of the US Borrower and the Canadian Borrower hereunder and under the other Loan Documents
shall have been


 


92

















 


paid
in full, the balance, if any, in such cash collateral account shall be returned
to the US Borrower or the Canadian Borrower, as applicable (or such other
Person as may be lawfully entitled thereto).


 


SECTION 9. THE AGENTS


 


9.1.          Appointment. Each Lender hereby
irrevocably designates and appoints the Agents as the agents of such Lender
under this Agreement and the other Loan Documents and appoints the Canadian
Agent as sub-agent for the Administrative Agent with respect to all Canadian
Collateral Agreements, and each Lender irrevocably authorizes each Agent, in
such capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to such Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against any Agent.


 


9.2.          Delegation of Duties. Each
Agent may execute any of its duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. No Agent
shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.


 


9.3.          Exculpatory Provisions. Neither
any Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates shall be (i) liable for any action lawfully taken or omitted to
be taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found
by a final and nonappealable decision of a court of competent jurisdiction to
have resulted from its or such Person’s own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan Party or
any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Agents under or in connection with, this Agreement
or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party to perform its obligations hereunder
or thereunder. The Agents shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.


 


9.4.          Reliance by Agents. Each Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, counsel to the Loan Parties),
independent accountants and other experts selected by such Agent. The Agents
may deem and treat the payee of any Note as the owner thereof for all purposes
unless such Note shall have been transferred in accordance with Section 10.6
and all actions required by such Section in connection with such transfer shall
have been taken. Each Agent shall be fully justified in failing or refusing to
take any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders (or, if so
specified by this Agreement, all Lenders or any other instructing group of
Lenders specified by this Agreement) as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense that may be incurred by it by reason of taking or continuing to


 


93

















 


take any such action. Each
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a
request of the Required Lenders (or, if so specified by this Agreement, all
Lenders or any other instructing group of Lenders specified by this Agreement),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Loans.


 


9.5.          Notice of Default. No Agent
shall be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless such Agent shall have received notice from a
Lender, the US Borrower or the Canadian Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
“notice of default.” In the event that the Administrative Agent shall receive
such a notice, the Administrative Agent shall give notice thereof to the
Lenders. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders (or, if so specified by this Agreement, all Lenders or any other
instructing group of Lenders specified by this Agreement); provided,
that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default
or Event of Default as it shall deem advisable in the best interests of the
Lenders.


 


9.6.          Non-Reliance on Agents and Other
Lenders. Each Lender expressly acknowledges that neither any of the Agents
nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates have made any representations or warranties to
it and that no act by any Agent hereafter taken, including any review of the
affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed to
constitute any representation or warranty by any Agent to any Lender. Each
Lender represents to the Agents that it has, independently and without reliance
upon any Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own
decision to make its Loans hereunder and enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon any Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Loan Parties and their
affiliates. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, no Agent
shall have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party or
any affiliate of a Loan Party that may come into the possession of such Agent
or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.


 


9.7.          Indemnification. The Lenders
agree to indemnify each Agent in its capacity as such (to the extent not
reimbursed by the US Borrower or the Canadian Borrower and without limiting the
obligation of the US Borrower or the Canadian Borrower to do so), ratably
according to their respective Aggregate Exposure Percentages in effect on the
date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), for,
and to save each Agent harmless from and against, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time
(including, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against such Agent in any way relating to or arising
out of, the Commitments, this Agreement, any of the other Loan Documents or any
documents


 


94

















 


contemplated by or referred
to herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by such Agent under or in connection with any of the
foregoing; provided, that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that are found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from such Agent’s gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder.


 


9.8.          Agent in Its Individual Capacity.
Each Agent and its affiliates may make loans to, accept deposits from and
generally engage in any kind of business with any Loan Party as though such
Agent were not an Agent. With respect to its Loans made or renewed by it and
with respect to any Letter of Credit issued or participated in by it, each
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms “Lender” and “Lenders” shall include each Agent in its
individual capacity.


 


9.9.          Successor Agents. The
Administrative Agent may resign as Administrative Agent upon 10 days’ notice to
the Lenders and the Borrower. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint from among the Lenders a successor agent for
the Lenders, which successor agent shall (unless an Event of Default under
Section 8(a) or Section 8(f) with respect to the Borrower shall have occurred
and be continuing) be subject to approval by the Borrower (which approval shall
not be unreasonably withheld or delayed), whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative Agent, and the
term “Administrative Agent” shall mean such successor agent effective
upon such appointment and approval, and the former Administrative Agent’s
rights, powers and duties as Administrative Agent shall be terminated, without
any other or further act or deed on the part of such former Administrative
Agent or any of the parties to this Agreement or any holders of the Loans. If
no successor agent has accepted appointment as Administrative Agent by the date
that is 10 days following a retiring Administrative Agent’s notice of
resignation, the retiring Administrative Agent’s resignation shall nevertheless
thereupon become effective, and the Lenders shall assume and perform all of the
duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above. The Canadian
Agent may resign as Canadian Agent upon 10 days notice to the Lenders and the
US Borrower. If the Canadian Agent shall resign as Canadian Agent under this
Agreement and the other Loan Documents, then the Canadian Required Lenders
shall appoint from among the Canadian Revolving Credit Lenders a successor
agent for the Canadian Agent, which successor agent shall (unless an Event of
Default under Section 8(a) or Section 8(f) with respect to the US Borrower
shall have occurred and be continuing) be subject to approval by the US
Borrower (which approval shall not be unreasonably withheld of delayed)
whereupon such successor agent shall succeed to the rights, powers and duties
of the Canadian Agent, and the term “Canadian Agent” shall mean such
successor agent effective upon such appointment and approval, and the former
Canadian Agent’s rights, powers and duties as Canadian Agent shall be
terminated, without any other or further act or deed on the part of such former
Canadian Agent or any of the parties to this Agreement or any holders of the
Loans or issuers of Letters of Credit. If no successor agent has accepted
appointment as Canadian Agent by the date that is 10 days following a retiring
Canadian Agent’s notice of resignation, the retiring Canadian Agent’s
resignation shall nevertheless thereupon become effective, and the Canadian
Revolving Credit Lenders shall assume and perform all of the duties of the
Canadian Agent hereunder until such time, if any, as the such Lenders appoint a
successor agent as provided for above. Any Syndication Agents may, at any time,
by notice to the Lenders and the Administrative Agent, resign as Syndication
Agent hereunder, whereupon the duties, rights, obligations and responsibilities
of such Syndication Agent hereunder shall automatically be assumed by, and
inure to the benefit of, the Administrative Agent, without any further act by
such Syndication Agent, the Administrative Agent or


 


95

















 


any Lender. Any
Documentation Agent may, at any time, by notice to the Lenders and the
Administrative Agent, resign as Documentation Agent hereunder, whereupon the
duties, rights, obligations and responsibilities of such Documentation Agent
hereunder shall automatically be assumed by, and inure to the benefit of, the
Administrative Agent, without any further act by such Documentation Agent, the
Administrative Agent or any Lender. After any retiring Agent’s resignation as
Agent, the provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement and the other Loan Documents.


 


9.10.        Authorization to Release Liens and
Guarantees. The Administrative Agent is hereby irrevocably authorized by
each of the Lenders to effect any release of Liens or guarantee obligations
contemplated by Section 10.15.


 


9.11.        The Arrangers; the Syndication Agents;
the Documentation Agent; the Joint Bookrunners. Neither any Arranger nor
any Syndication Agent nor any Documentation Agent nor any Joint Bookrunner, in
their respective capacities as such, shall have any duties or responsibilities,
nor shall any such Person incur any liability, under this Agreement and the
other Loan Documents.


 


9.12.        Withholding Tax. To the extent
required by any applicable law, the Administrative Agent and the Canadian
Agent, as applicable, may withhold from any payment to any Lender an amount
equivalent to any applicable withholding tax. If the Internal Revenue Service
or any other Governmental Authority asserts a claim that the Administrative
Agent or the Canadian Agent did not properly withhold tax from amounts paid to
or for the account of any Lender because the appropriate form was not delivered
or was not properly executed or because such Lender failed to notify the
Administrative Agent and the Canadian Agent, as applicable, of a change in
circumstance which rendered the exemption from, or reduction of, withholding
tax ineffective or for any other reason, such Lender shall indemnify the
Administrative Agent and the Canadian Agent, as applicable, fully for all
amounts paid, directly or indirectly, by the Administrative Agent and the
Canadian Agent, as applicable, as tax or otherwise, including any penalties or
interest and together with all expenses (including legal expenses, allocated
internal costs and out-of-pocket expenses) incurred.


 


9.13.        Quebec Security. For greater
certainty, and without limiting the powers of the Canadian Agent or any other
Person acting as an agent or mandatary for the Canadian Agent hereunder or
under any of the other Loan Documents, each Lender hereby acknowledges that,
for purposes of holding any security granted by any of the Loan Parties on
property pursuant to the laws of the Province of Quebec to secure obligations
of such Loan Party under any debenture, bond or other title of indebtedness
issued by a Loan Party, the Canadian Agent shall be the holder of an
irrevocable power of attorney (fondé de
pouvoir) (within the meaning of the Civil
Code of Quebec) for all present and future Lenders, and in
particular for all present and future holders of any debenture, bond or other
title of indebtedness issued by a Loan Party. Each Lender hereby irrevocably
constitutes, to the extent necessary, the Canadian Agent as the holder of an
irrevocable power of attorney (fondé de pouvoir)
(within the meaning of Article 2692 of the Civil Code of Quebec) in order to hold
security granted by any Loan Party in the Province of Quebec to secure the
obligations of such Loan Party under any debenture, bond or other title of
indebtedness that may be issued by a Loan Party and pledged in favor of the
Canadian Agent for the benefit of the Lenders. Each assignee of a Lender shall
be deemed to have confirmed and ratified the constitution of the Canadian Agent
as the holder of such irrevocable power of attorney (fondé de pouvoir) by execution of the Assignment and
Acceptance. The execution by the Canadian Agent, acting as fondé de pouvoir and
mandatary, prior to this Agreement, of any deeds of hypothec or other security
documents is hereby ratified and confirmed. Notwithstanding the provisions of
Section 32 of the An Act respecting the
special powers of legal persons (Quebec), the Canadian Agent may
acquire and be the holder of any debenture, bond or other title of indebtedness
issued under any deed of hypothec and issue of bonds executed by any


 


96

















 


Loan Party in favour of the
Canadian Agent as fondé de pouvoir. Each Loan Party
hereby acknowledges that such debenture or bond constitutes a title of
indebtedness, as such term is used in Article 2692 of the Civil Code of Quebec.


 


The
Canadian Agent, acting as holding of an irrevocable power of attorney (fondé de pouvoir), shall have the same
rights, powers, immunities, indemnities and exclusions from liability as are
prescribed in favor of the Canadian Agent in the Agreement, which shall apply mutatis mutandis. Without limitation, the
provisions of Section 9.9 of this Agreement shall apply mutatis mutandis to the resignation and
appointment of a successor Canadian Agent, acting as the holder of an
irrevocable power of attorney (fondé de pouvoir).


 


SECTION 10. MISCELLANEOUS


 


10.1.        Amendments and Waivers. Neither
this Agreement or any other Loan Document, nor any terms hereof or thereof may
be amended, supplemented or modified except in accordance with the provisions
of this Section 10.1. The Required Lenders and each Loan Party party to the
relevant Loan Document may, or (with the written consent of the Required
Lenders) the Administrative Agent and each Loan party to the relevant Loan
Document may, from time to time, (a) enter into written amendments, supplements
or modifications hereto and to the other Loan Documents (including amendments
and restatements hereof or thereof) for the purpose of adding any provisions to
this Agreement or the other Loan Documents or changing in any manner the rights
of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on
such terms and conditions as may be specified in the instrument of waiver, any
of the requirements of this Agreement or the other Loan Documents or any
Default or Event of Default and its consequences; provided, however,
that no such waiver and no such amendment, supplement or modification shall:


 


(i)            forgive the
principal amount or extend the final scheduled date of maturity of any Loan or
Reimbursement Obligation, extend the scheduled date of any amortization payment
in respect of any Term Loan, reduce the stated rate of any interest or fee
payable under this Agreement (except (x) in connection with the waiver of
applicability of any post-default increase in interest rates (which waiver
shall be effective with the consent of the Majority Facility Lenders of each
adversely affected Facility) and (y) that any amendment or modification of
defined terms used in the financial covenants in this Agreement shall not
constitute a reduction in the rate of interest or fees for purposes of this
clause (i)) or extend the scheduled date of any payment thereof, or increase
the amount or extend the expiration date of any Commitment of any Lender, in
each case without the consent of each Lender directly affected thereby;


 


(ii)           amend, modify or
waive any provision of this Section or reduce any percentage specified in the
definition of Required Lenders or Required Prepayment Lenders, consent to the
assignment or transfer by the US Borrower or the Canadian Borrower of any of
its rights and obligations under this Agreement and the other Loan Documents,
release all or substantially all of the Collateral or release all or
substantially all of the Guarantors from their guarantee obligations under the
Guarantee and Collateral Agreement, in each case without the consent of all the
Lenders;


 


(iii)          amend, modify or
waive any condition precedent to any extension of credit under the Revolving
Credit Facility set forth in Section 5.2 (including, the waiver of an


 


97

















 


existing
Default or Event of Default required to be waived in order for such extension
of credit to be made) without the consent of the Majority Revolving Credit
Facility Lenders;


 


(iv)          reduce the
percentage specified in the definition of Majority Facility Lenders with
respect to any Facility without the consent of all of the Lenders under such
Facility;


 


(v)           amend, modify or
waive any provision of Section 9, or any other provision affecting the rights,
duties or obligations of any Agent, without the consent of any Agent directly
affected thereby;


 


(vi)          amend, modify or
waive any provision of Section 2.6 or 2.7 without the consent of the Swing Line
Lender, as applicable;


 


(vii)         amend, modify or
waive any provision of Section 2.18 without the consent of each Lender directly
affected thereby;


 


(viii)        amend, modify or
waive any provision of Section 3 without the consent of each Issuing Lender
affected thereby; or


 


(ix)           impose restrictions
on assignments and participations that are more restrictive than, or additional
to, those set forth in Section 10.6.


 


Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the
Lenders and shall be binding upon the Loan Parties, the Lenders, the Agents and
all future holders of the Loans. In the case of any waiver, the Loan Parties,
the Lenders and the Agents shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon. Any such waiver, amendment, supplement or
modification shall be effected by a written instrument signed by the parties
required to sign pursuant to the foregoing provisions of this Section; provided,
that delivery of an executed signature page of any such instrument by facsimile
transmission shall be effective as delivery of a manually executed counterpart
thereof.


 


10.2.        Notices. All notices, requests
and demands to or upon the respective parties hereto to be effective shall be
in writing (including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered, or
three Business Days after being deposited in the mail, postage prepaid, or, in
the case of telecopy notice, when received, addressed (a) in the case of the US
Borrower, the Canadian Borrower and the Agents, as follows and (b) in the case
of the Lenders, as set forth in an administrative questionnaire delivered to
the Administrative Agent or on Schedule I to the Lender Addendum to which such
Lender is a party or, in the case of a Lender which becomes a party to this
Agreement pursuant to an Assignment and Acceptance, in such Assignment and
Acceptance or (c) in the case of any party, to such other address as such party
may hereafter notify to the other parties hereto:


 


98

















 


	
  The
  Borrower:

  	
  Vanguard Car Rental USA
  Holdings Inc.

  	
   

  
	
   

  	
  6929 Lakewood Avenue

  	
   

  
	
   

  	
  Suite 100

  	
   

  
	
   

  	
  Tulsa, Oklahoma 74117

  	
   

  
	
   

  	
  Attention:
      Thomas C. Kennedy

  	
   

  
	
   

  	
  Chief Financial Officer

  	
   

  
	
   

  	
  Telecopy:    918-401-6040

  	
   

  
	
   

  	
  Telephone:  918-401-4451

  	
   

  
	
   

  	
   

  	
   

  
	
  With
  a copy to:

  	
  Schulte Roth & Zabel
  LLP

  	
   

  
	
   

  	
  919 Third Avenue

  	
   

  
	
   

  	
  New York, NY 10022

  	
   

  
	
   

  	
  Attention: Ronald B.
  Risdon, Esq.

  	
   

  
	
   

  	
  Telecopy: 212-593-5955

  	
   

  
	
   

  	
  Telephone: 212-756-2203

  	
   

  
	
   

  	
   

  	
   

  
	
  The
  Canadian Borrower: 

  	
  National Car Rental
  (Canada) Inc.

  	
   

  
	
   

  	
  280 Attwell Drive

  	
   

  
	
   

  	
  Etobicoke, Ontario

  	
   

  
	
   

  	
  Canada M9W 5B2

  	
   

  
	
   

  	
  Attention: David
  Luinenburg

  	
   

  
	
   

  	
  Vice President Finance

  	
   

  
	
   

  	
  Telecopy:   416-798-8687

  	
   

  
	
   

  	
  Telephone: 416-798-9753

  	
   

  
	
   

  	
   

  
	
  With
  a copy to:

  	
  Vanguard Car Rental USA
  Holdings Inc.

  	
   

  
	
   

  	
  6929 Lakewood Avenue

  	
   

  
	
   

  	
  Suite 100

  	
   

  
	
   

  	
  Tulsa, Oklahoma 74117

  	
   

  
	
   

  	
  Attention: Thomas C.
  Kennedy

  	
   

  
	
   

  	
  Chief Financial Officer

  	
   

  
	
   

  	
  Telecopy:

  	
  918-401-6040

  
	
   

  	
  Telephone:

  	
  918-401-4451

  
	
   

  	
   

  	
   

  
	
   

  	
  and

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Cassels Brock

  	
   

  
	
   

  	
  2100 Scotia Plaza

  	
   

  
	
   

  	
  40 King Street West

  	
   

  
	
   

  	
  Toronto, Ontario

  	
   

  
	
   

  	
  M5H 3C2

  	
   

  
	
   

  	
  Attention:

  	
  Alison Manzer, Esq.

  
	
   

  	
  Telecopy:

  	
  416 869 5300

  
	
   

  	
  Telephone:

  	
  416 360 8877

  
	
   

  	
   

  	
   

  
	
  The
  Administrative Agent:

  	
  Goldman Sachs Credit
  Partners L.P.

  	
   

  
	
   

  	
  85 Broad Street

  	
   

  
	
   

  	
  New York, New York 10004

  	
   

  
	
   

  	
  Attention:

  	
  William Archer

  
	
   

  	
  Telecopy:

  	
  (212) 903-3000

  
	
   

  	
  Telephone: 

  	
  (212) 902-5931

  
				



 


99

















 


	
  With
  a copy to:

  	
  Latham & Watkins LLP

  	
   

  
	
   

  	
  885 Third Avenue

  	
   

  
	
   

  	
  New York, NY 10022

  	
   

  
	
   

  	
  Attention:

  	
  Baxter Wasson

  
	
   

  	
  Telecopy:

  	
  212-751-4864

  
	
   

  	
  Telephone:

  	
  212-906-2970

  
	
   

  	
   

  	
   

  
	
  The
  Canadian Agent:

  	
  Bank of Montreal

  	
   

  
	
   

  	
  115 South LaSalle Street

  	
   

  
	
   

  	
  12thFl

  	
   

  
	
   

  	
  West Chicago, IL 60603

  	
   

  
	
   

  	
  Attention:

  	
  Stephen Maenhout, VP

  
	
   

  	
  Telecopy:

  	
  (312) 845-2199

  
	
   

  	
  Telephone: (312) 750-6043

  	
   

  
	
   

  	
   

  	
   

  
	
  The
  Syndication Agents:

  	
  Goldman Sachs Credit
  Partners L.P.

  	
   

  
	
   

  	
  85 Broad Street

  	
   

  
	
   

  	
  New York, NY 10004

  	
   

  
	
   

  	
  Attention:

  	
  William Archer

  
	
   

  	
  Telecopy:

  	
  (212) 903-3000

  
	
   

  	
  Telephone:

  	
  (212) 902-5931

  
	
   

  	
   

  	
   

  
	
   

  	
  JPMorgan Chase Bank, N.A.

  	
   

  
	
   

  	
  1111 Fannin Tenth Floor

  	
   

  
	
   

  	
  Houston, Texas 77002

  	
   

  
	
   

  	
  Attention:

  	
  Omar E. Jones

  
	
   

  	
  Telecopy:

  	
  (713) 750-7912

  
	
   

  	
  Telephone: (713) 750-2938

  	
   

  
	
   

  	
   

  	
   

  
	
  The
  Documentation Agents:

  	
  Lehman Commercial Paper
  Inc.

  745 Seventh Avenue Fifth Floor

  New York, New York 10019

  	
   

  
	
   

  	
  Attention:

  	
  Joylynn Jarvis

  
	
   

  	
  Telecopy:

  	
  212-520-0450

  
	
   

  	
  Telephone:

  	
  212-526-6560

  
	
   

  	
   

  	
   

  
	
   

  	
  Bank of Montreal

  	
   

  
	
   

  	
  115 South LaSalle Street

  	
   

  
	
   

  	
  12th
  Fl

  	
   

  
	
   

  	
  Chicago, IL 60603

  	
   

  
	
   

  	
  Attention:

  	
  Stephen Maenhout, VP

  
	
   

  	
  Telecopy:

  	
  (312) 845-2199

  
	
   

  	
  Telephone: (312) 750-6043

  	
   

  
				



 


100

















 


	
   

  	
  Wachovia Bank, National
  Association

  	
   

  
	
   

  	
  171 17th
  Street, N.W.; GA4523

  	
   

  
	
   

  	
  Attention:

  	
  Karin E.
  Samuel

  
	
   

  	
  Telecopy:

  	
  (404) 214-3751

  
	
   

  	
  Telephone: (404) 214-1442

  	
   

  
	
   

  	
   

  	
   

  
	
  Issuing
  Lenders:

  	
  As
  notified by such Issuing Lender to the Administrative Agent, the Canadian
  Agent and the Borrowers.

  
				



 


provided, that any notice, request or demand to or
upon the Agent, any Issuing Lender or any Lender shall not be effective until
received.


 


Notices
and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the
Administrative Agent; provided, that the foregoing shall not apply to
notices pursuant to Section 2 unless otherwise agreed by the Administrative
Agent and the applicable Lender. The Administrative Agent, the US Borrower or
the Canadian Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided, that approval of such procedures may be
limited to particular notices or communications.


 


10.3.        No Waiver; Cumulative Remedies. No
failure to exercise and no delay in exercising, on the part of any Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.


 


10.4.        Survival of Representations and
Warranties. All representations and warranties made herein, in the other
Loan Documents and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and delivery of
this Agreement and the making of the Loans and other extensions of credit
hereunder.


 


10.5.        Payment of Expenses. Each of the
US Borrower and the Canadian Borrower agrees (a) to pay or reimburse the Agents
for all their reasonable out-of-pocket costs and expenses incurred in
connection with the syndication of the Facilities (other than fees payable to
syndicate members) and the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, the reasonable fees and disbursements and other charges
of counsel to the Administrative Agent and the charges of Intra links, (b) to
pay or reimburse each Lender and the Agents for all their costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any other documents prepared in
connection herewith or therewith, including, the fees and disbursements of
counsel (including the allocated fees and disbursements and other charges of
in-house counsel) to each Lender and of counsel to the Agents, (c) to pay,
indemnify, or reimburse each Lender and the Agents for, and hold each Lender
and the Agents harmless from, any and all recording and filing fees and any and
all liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be


 


101

















 


payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify or reimburse each Lender, each Agent, their respective
affiliates, and their respective officers, directors, trustees, employees,
advisors, agents and controlling persons (each, an “Indemnitee”) for,
and hold each Indemnitee harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, and costs,
expenses or disbursements of any kind or nature whatsoever incurred by an
Indemnitee or asserted against any Indemnitee by any third party or by the US
Borrower, the Canadian Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto or thereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit
or the use or proposed use of the proceeds thereof (including any refusal by
any Issuing Lender to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Materials of Environmental Concern on or from any property owned,
occupied or operated by the US Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the US Borrower or any of its
Subsidiaries or any of their respective properties, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by any third party or by the US Borrower, the Canadian Borrower or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto
(all the foregoing in this clause (d), collectively, the “Indemnified
Liabilities”), provided, that the US Borrower and the Canadian
Borrower shall have no obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities to the extent such Indemnified Liabilities are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnitee. No
Indemnitee shall be liable for any damages arising from the use by unauthorized
persons of Information or other materials sent through electronic,
telecommunications or other information transmission systems that are intercepted
by such persons or for any special, indirect, consequential or punitive damages
in connection with the Facilities. Without limiting the foregoing, and to the
extent permitted by applicable law, each of the US Borrower and the Canadian
Borrower agrees not to assert and to cause its Subsidiaries not to assert, and
hereby waives and agrees to cause its Subsidiaries so to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws,
that any of them might have by statute or otherwise against any Indemnitee. All
amounts due under this Section shall be payable not later than 30 days after
written demand therefor. Statements payable by the US Borrower or the Canadian
Borrower pursuant to this Section shall be submitted to the address of the US
Borrower set forth in Section 10.2, or to such other Person or address as may
be hereafter designated by the US Borrower or the Canadian Borrower in a notice
to the Administrative Agent. The agreements in this Section shall survive
repayment of the Loans and all other amounts payable hereunder.


 


10.6.        Successors and Assigns;
Participations and Assignments. (a) This Agreement shall be binding upon
and inure to the benefit of the US Borrower, the Canadian Borrower, the
Lenders, the Agents, all future holders of the Loans and their respective
successors and assigns, except that neither the US Borrower nor the Canadian
Borrower may assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the Agents and each Lender (and
any such transfer or assignment by the Borrower shall be void).


 


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(b)           Any Lender may, without the consent
of the US Borrower or the Canadian Borrower, in accordance with applicable law,
at any time sell to one or more banks, financial institutions or other entities
(other than the Sponsor or any of its Subsidiaries or Affiliates) (each, a “Participant”)
participating interests in any Loan owing to such Lender, any Commitment of
such Lender or any other interest of such Lender hereunder and under the other
Loan Documents. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender’s obligations under this Agreement to
the other parties to this Agreement shall remain unchanged, such Lender shall
remain solely responsible for the performance thereof, such Lender shall remain
the holder of any such Loan for all purposes under this Agreement and the other
Loan Documents, and the US Borrower, the Canadian Borrower and the Agents shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement and the other Loan
Documents. In no event shall any Participant under any such participation have
any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party therefrom, except
to the extent that such amendment, waiver or consent would require the consent
of all Lenders pursuant to Section 10.1. Each of the US Borrower and the
Canadian Borrower agrees that if amounts outstanding under this Agreement and
the Loans are due or unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each Participant
shall, to the maximum extent permitted by applicable law, be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement, provided,
that, in purchasing such participating interest, such Participant shall be
deemed to have agreed to share with the Lenders the proceeds thereof as
provided in Section 10.7(a) as fully as if such Participant were a Lender
hereunder. Each of the US Borrower and the Canadian Borrower also agrees that
each Participant shall be entitled to the benefits of Sections 2.19, 2.20 and
2.21 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if such Participant were a Lender; provided,
that, in the case of Section 2.20, such Participant shall have complied with
the requirements of said Section, and provided, further, that no
Participant shall be entitled to receive any greater amount pursuant to any
such Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.


 


(c)           Any Lender (an “Assignor”)
may, in accordance with applicable law and upon written notice to the
Administrative Agent (and the Canadian Agent, in the case of the Canadian
Revolving Credit Loans or Canadian Revolving Credit Commitments), at any time
and from time to time assign to any Person meeting the criteria of clause (i)
of the definition of the term “Eligible Assignee” or, with the consent of the
US Borrower and the Administrative Agent and, (A) in the case of any assignment
of US Revolving Credit Commitments, the written consent of the US Issuing
Lender and the Swing Line Lender which, in each case, shall not be unreasonably
withheld or delayed) and (B) in the case of any assignment of Canadian
Revolving Credit Commitments, the written consent of the Canadian Issuing
Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided,
that, the consent of the US Borrower need not be obtained with respect to any
assignment of Term Loans), to any Person meeting the criteria of clause (ii) of
the definition of the term “Eligible Assignee” (an “Assignee”) all or
any part of its rights and obligations under this Agreement pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit E, executed by
such Assignee and such Assignor (and, where the consent of the US Borrower, the
Administrative Agent, the Canadian Agent, the US Issuing Lender, the Swing Line
Lender or the Canadian Issuing Lender is required pursuant to the foregoing
provisions, by the US Borrower or the Canadian Borrower, as applicable, and
such other Persons) and delivered to the Administrative Agent for its
acceptance and recording in the Register; provided, that no such
assignment to an Assignee (other than any Lender or any affiliate thereof)
shall be in an aggregate principal amount of less than $1,000,000 (with respect
to Term Loans) and $2,500,000 (with respect to the Revolving Credit Facilities)
(other than in the case of an assignment of all of a Lender’s interests under
this


 


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Agreement), unless otherwise
agreed by the US Borrower and the Administrative Agent. Any such assignment
need not be ratable as among the Facilities. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with Commitments and/or Loans as
set forth therein, and (y) the Assignor thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of an
Assignor’s rights and obligations under this Agreement, such Assignor shall
cease to be a party hereto, except as to Sections 2.19, 2.20 and 10.5 in
respect of the period prior to such effective date). Notwithstanding any
provision of this Section, neither the consent of the US Borrower nor the
Canadian Borrower, as applicable, shall be required nor shall the prohibition
on assignments of Canadian Revolving Credit Commitments to Non-Canadian Lenders
apply, for any assignment that occurs at any time when any Event of Default
under Sections 8(a), (e) or (f) shall have occurred and be continuing. For
purposes of the minimum assignment amounts set forth in this paragraph,
multiple assignments by two or more Related Funds shall be aggregated.
Notwithstanding anything to the contrary contained in this Section 10.6, a
Lender may assign any or all of its rights hereunder to an Affiliate of such
Lender or a Related Fund by the execution of an Assignment and Acceptance by
such assigning Lender and its Affiliate or Related Fund but without written
notice of such assignment to the Administrative Agent or delivery of such
executed Assignment and Acceptance to the Administrative Agent; provided,
however, that (x) the Loan Parties and Agents may continue to deal
solely and directly with the assigning Lender until such Assignment and
Acceptance has been delivered to the Administrative Agent, (y) the failure of
such assigning Lender to deliver such notice or to deliver the Assignment and
Acceptance to the Administrative Agent or any other Person shall not affect the
legality, validity, or binding effect of such assignment, and (z) an Assignment
and Acceptance between an assigning Lender and its Affiliate or a Related Fund
shall be effective as of the date specified in such Assignment and Acceptance.
No US Revolving Credit Lender that is also a Canadian Revolving Credit Lender
shall assign its US Revolving Credit Commitments separately from its Canadian
Revolving Credit Commitments.


 


(d)           The Administrative Agent shall, on
behalf of the US Borrower and the Canadian Borrower, maintain at its address
referred to in Section 10.2 a copy of each Assignment and Acceptance delivered
to it and a register (the “Register”) for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time. In the case of an assignment to
an Affiliate or Related Fund pursuant to the last sentence of Section 10.6(c),
in which an Assignment and Assumption is not delivered to the Administrative
Agent, the Assignor, on behalf of the US Borrower and the Canadian Borrower,
shall maintain a register (the “Related Party Register”‘) comparable to
the Register. The entries in the Register or Related Party Register shall be
conclusive, in the absence of manifest error, and the US Borrower, the Canadian
Borrower each Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of the Loans and any Notes evidencing
such Loans recorded therein for all purposes of this Agreement. Any assignment
of any Loan, whether or not evidenced by a Note, shall be effective only upon
appropriate entries with respect thereto being made in the Register (and each
Note shall expressly so provide). Any assignment or transfer of all or part of
a Loan evidenced by a Note shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note evidencing
such Loan, accompanied by a duly executed Assignment and Acceptance; thereupon
one or more new Notes in the same aggregate principal amount shall be issued to
the designated Assignee, and the old Notes shall be returned by the
Administrative Agent to the US Borrower or the Canadian Borrower, as
applicable, marked “canceled.” The Register shall be available for inspection
by the US Borrower, the Canadian Borrower or any Lender (with respect to any
entry relating to such Lender’s Loans) at any reasonable time and from time to
time upon reasonable prior notice.


 


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(e)           Upon its receipt of an Assignment and
Acceptance executed by an Assignor and an Assignee (and, in any case where the
consent of any other Person is required by Section 10.6(c), by each such other
Person) (treating multiple, simultaneous assignments by or to two or more
Related Funds as a single assignment), the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Borrower. On
or prior to such effective date, the Borrower, at its own expense, upon
request, shall execute and deliver to the Administrative Agent (in exchange for
the Revolving Credit Note and/or applicable Term Notes, as the case may be, of
the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes,
as the case may be, to the order of such Assignee in an amount equal to the
applicable Revolving Credit Commitment and/or Term Loans, as the case may be,
assumed or acquired by it pursuant to such Assignment and Acceptance and, if
the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as
the case may be, upon request, a new Revolving Credit Note and/or Term Notes,
as the case may be, to the order of the Assignor in an amount equal to the
applicable Revolving Credit Commitment and/or Term Loans, as the case may be,
retained by it hereunder. Such new Note or Notes shall be dated the Closing
Date and shall otherwise be in the form of the Note or Notes replaced thereby.


 


(f)            For avoidance of doubt, the parties
to this Agreement acknowledge that the provisions of this Section concerning
assignments of Loans and Notes relate only to absolute assignments and that
such provisions do not prohibit assignments creating security interests in Loans
and Notes, including, any pledge or assignment by a Lender of any Loan or Note
to any Federal Reserve Bank in accordance with applicable law.


 


(g)           Notwithstanding anything to the
contrary contained herein, any Lender (a “Granting Lender”) may grant to
a special purpose funding vehicle (an “SPC”), identified as such in
writing from time to time by the Granting Lender to the Administrative Agent or
with respect to the Canadian Revolving Credit Loans and the Canadian Revolving
Credit Commitments, the Canadian Agent, and the US Borrower or the Canadian
Borrower, as applicable, the option to provide to the US Borrower or the
Canadian Borrower, as applicable, all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to the US Borrower or the
Canadian Borrower, as applicable, pursuant to this Agreement; provided,
that (i) nothing herein shall constitute a commitment by any SPC to make any
Loan and (ii) if an SPC elects not to exercise such option or otherwise fails
to provide all or any part of such Loan, the Granting Lender shall be obligated
to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Loan were made by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other indebtedness of any SPC, it will not
institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings. In addition, notwithstanding anything to the contrary in this
Section 10.6(g), any SPC may (A) with notice to, but without the prior written
consent of, the US Borrower or the Canadian Borrower, as applicable, and the
applicable Agent and without paying any processing fee therefor, assign all or
a portion of its interests in any Loans to the Granting Lender, or with the
prior written consent of the US Borrower or the Canadian Borrower, as
applicable, and applicable Agent (which consent shall not be unreasonably
withheld) to any financial institutions providing liquidity and/or credit
support to or for the account of such SPC to support the funding or maintenance
of Loans, and (B) disclose on a confidential basis any non-public information
relating to its Loans to any rating agency, commercial paper dealer or provider
of any surety, guarantee or credit or liquidity enhancement to such SPC; provided,
that non-public information with respect to the US


 


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Borrower or the Canadian
Borrower may be disclosed only with the US Borrower’s or the Canadian Borrower’s
consent, as applicable, which will not be unreasonably withheld. This paragraph
(g) may not be amended without the written consent of any SPC with Loans
outstanding at the time of such proposed amendment.


 


10.7.        Adjustments; Set-off. (a) Except
to the extent that this Agreement provides for payments to be allocated to a
particular Lender or to the Lenders under a particular Facility, if any Lender
(a “Benefited Lender”) shall at any time receive any payment of all or
part of the Obligations owing to it, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events
or proceedings of the nature referred to in Section 8(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of the Obligations owing to such other Lender, such
Benefited Lender shall purchase for cash from the other Lenders a participating
interest in such portion of the Obligations owing to each such other Lender, or
shall provide such other Lenders with the benefits of any such collateral, as
shall be necessary to cause such Benefited Lender to share the excess payment
or benefits of such collateral ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The provisions of this paragraph are intended
to apply to all Lenders and to all payments, Collateral or proceeds of
Collateral received by such Lenders in respect of the Obligations of the US
Borrower or the Canadian Borrower hereunder regardless of whether such payment,
collateral or proceeds from Collateral received by such Benefited Lender were
received by such Lender with respect to the Obligations of the US Borrower or
the Canadian Borrower or and regardless of whether the collateral or proceeds
of Collateral were pledged to secure the Canadian Revolving Credit Facility,
the US Revolving Credit Facility or the Term Loan Facility.


 


(b)           In addition to any rights and
remedies of the Lenders provided by law, each Lender shall have the right,
without prior notice to the US Borrower or the Canadian Borrower, any such
notice being expressly waived by the US Borrower and the Canadian Borrower to
the extent permitted by applicable law, upon any amount becoming due and
payable by the US Borrower and the Canadian Borrower hereunder (whether at the
stated maturity, by acceleration or otherwise), to set off and appropriate and
apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or
the account of the US Borrower or the Canadian Borrower, as the case may be, provided,
that notwithstanding the foregoing, no Lender may set off deposits, claims or
other property of the Canadian Borrower or a Canadian Subsidiary against
amounts owed to such Lender unless such amounts owed are Canadian Obligations.
Each Lender agrees promptly to notify the Borrower, and the Administrative
Agent after any such setoff and application made by such Lender, provided,
that the failure to give such notice shall not affect the validity of such
setoff and application.


 


10.8.        Counterparts. This Agreement may
be executed by one or more of the parties to this Agreement on any number of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. Delivery of an executed
signature page of this Agreement or of a Lender Addendum by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof. A set of the copies of this Agreement signed by all the parties shall
be lodged with the Borrower and the Administrative Agent.


 


10.9.        Severability. Any provision of
this Agreement that is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such


 


106

















 


prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


10.10.      Integration. This Agreement and the
other Loan Documents represent the entire agreement of the US Borrower, the
Canadian Borrower, the Agents, the Arrangers and the Lenders with respect to
the subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Arrangers, any Agent or any Lender
relative to subject matter hereof not expressly set forth or referred to herein
or in the other Loan Documents.


 


10.11.      GOVERNING LAW. THIS AGREEMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.


 


10.12.      Submission To Jurisdiction; Waivers.
Each party hereto hereby irrevocably and unconditionally:


 


(a)           submits for itself and its Property
in any legal action or proceeding relating to this Agreement and the other Loan
Documents to which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York located in New York County, NY, the courts of
the United States of America for the Southern District of New York, and
appellate courts from any thereof;


 


(b)           consents that any such action or proceeding
may be brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such court
or that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;


 


(c)           agrees that service of process in any
such action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of mail),
postage prepaid, to the US Borrower or the Canadian Borrower, as the case may
be, at its address set forth in Section 10.2 or at such other address of which
the Administrative Agent shall have been notified pursuant thereto;


 


(d)           agrees that nothing herein shall
affect the right to effect service of process in any other manner permitted by
law or shall limit the right to sue in any other jurisdiction; and


 


(e)           waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal
action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.


 


10.13.      Acknowledgments. Each of the US
Borrower and the Canadian Borrower hereby acknowledges that:


 


(a)           it has been advised by counsel in the
negotiation, execution and delivery of this Agreement and the other Loan
Documents;


 


(b)           neither any Arranger, any Agent nor
any Lender has any fiduciary relationship with or duty to the US Borrower or
the Canadian Borrower arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between the Arrangers,
the Agents


 


107

















 


and the Lenders, on one
hand, and the US Borrower and the Canadian Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and


 


(c)           no joint venture is created hereby or
by the other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Arrangers, the Agents and the Lenders or among
the US Borrower, the Canadian Borrower and the Lenders.


 


10.14.      Confidentiality. Each of the Agents
and the Lenders agrees to keep confidential all non-public information provided
to it by any Loan Party pursuant to this Agreement that is designated by such
Loan Party as confidential; provided, that nothing herein shall prevent
any Agent or any Lender from disclosing any such information (a) to the
Arrangers, any Agent, any other Lender or any affiliate of any thereof, (b) to
any Participant or Assignee (each, a “Transferee”) or prospective
Transferee that agrees to comply with the provisions of this Section or
substantially equivalent provisions, (c) to any of its employees, directors,
agents, attorneys, accountants and other professional advisors, (d) to any
financial institution that is a direct or indirect contractual counterparty in
swap agreements or such contractual counterparty’s professional advisor (so
long as such contractual counterparty or professional advisor to such
contractual counterparty agrees to be bound by the provisions of this Section),
(e) upon the request or demand of any Governmental Authority having
jurisdiction over it, (f) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any Requirement
of Law, (g) in connection with any litigation or similar proceeding, (h) that
has been publicly disclosed other than in breach of this Section, (i) to the
National Association of Insurance Commissioners or any similar organization or
any nationally recognized rating agency that requires access to information
about a Lender’s investment portfolio in connection with ratings issued with
respect to such Lender or (j) in connection with the exercise of any remedy
hereunder or under any other Loan Document.


 


10.15.      Release of Collateral and Guarantee
Obligations. (a) Notwithstanding anything to the contrary contained herein
or in any other Loan Document, the Administrative Agent is hereby irrevocably
authorized by each Lender (without requirement of notice to or consent of any
Lender except as expressly required by Section 10.1) to take any action
requested by any Loan Party having the effect of releasing any Collateral or
guarantee obligations (i) to the extent necessary to permit consummation of any
transaction not prohibited by any Loan Document or that has been consented to
in accordance with Section 10.1 or (ii) under the circumstances described in
paragraphs (b) or (c) below.


 


(b)           At such time as the Loans, the
Reimbursement Obligations and the other obligations under the Loan Documents
(other than (i) obligations under Sections 2.19, 2.20, 2.21 and 10.5 that are
not then due and payable and demanded and (ii) obligations under or in respect
of Specified Hedge Agreements) shall have been paid in full in cash, the
Commitments have been terminated and no Letters of Credit shall be outstanding,
the Collateral shall be released from the Liens created by the Security
Documents, and the Security Documents and all obligations (other than those
expressly stated to survive such termination) of the Administrative Agent and
each Loan Party under the Security Documents shall terminate, all without
delivery of any instrument or performance of any act by any Person.
Nevertheless, the Administrative Agent shall, if so requested by any Loan Party
at or after such termination, execute, deliver and (if necessary) acknowledge
such termination statements or releases as may be necessary or reasonably
appropriate to confirm, assure or give notice of such termination and take such
actions as may be necessary to redeliver or release all Collateral within its
control, in each case at the expense of such Loan Party.


 


(c)           Upon any Disposition of Collateral
permitted by Section 7.5 made by any Loan Party to any Person that is not a
Loan Party, such Collateral shall be released from the Liens created by


 


108

















 


the Security Documents,
without delivery of any instrument or performance of any act by any Person (it
being agreed that the Disposition of the property of Direct Parent, including
Capital Stock of the US Borrower owned by Direct Parent, will not be in any
respect restricted by this Agreement or any other Loan Document, except only
that any such Disposition made prior to consummation of an IPO (other than a
Disposition by Direct Parent to a Subsidiary of Direct Parent which thereupon
becomes the Direct Parent) shall constitute an Event of Default as set forth in
Section 8(j)). Nevertheless, the Administrative Agent shall, if so requested by
any Loan Party at or after such release, execute, deliver and (if necessary)
acknowledge such termination statements or releases as may be necessary or
reasonably appropriate to confirm, assure or give notice of such release and
take other such actions as may be necessary to redeliver or release all such
Collateral within its control, in each case at the expense of such Loan Party.


 


10.16.      Accounting Changes. In the event
that any “Accounting Change” (as defined below) shall occur and such change
results in a change in the method of calculation of financial covenants,
standards or terms in this Agreement, then the US Borrower and the
Administrative Agent agree to enter into negotiations in order to amend such
provisions of this Agreement so as to equitably reflect such Accounting Change
with the desired result that the criteria for evaluating the US Borrower’s
financial condition shall be the same after such Accounting Change as if such
Accounting Change had not been made. Until such time as such an amendment shall
have been executed and delivered by the US Borrower, the Administrative Agent
and the Required Lenders, all financial covenants, standards and terms in this
Agreement shall continue to be calculated or construed as if such Accounting
Change had not occurred. “Accounting Change” refers to any change in
accounting principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants or successor thereof or, if
applicable, the SEC.


 


10.17.      Authorization to Enter Into Standstill
Letter. Each Lender and Agent (other than the Administrative Agent) hereby
(a) irrevocably authorizes and directs the Administrative Agent to execute,
deliver and perform the obligations of the Administrative Agent under the
Standstill Letter and to take or omit to take any and all actions required
thereby or, in the judgment of the Administrative Agent, appropriate or
incidental thereto and (b) agrees (for the direct and enforceable benefit of
each party entitled under the Standstill Letter to enforce the obligations of
the Administrative Agent thereunder) to be bound by each and all of the
obligations of the Administrative Agent set forth in the Standstill Letter to
the same extent that the Administrative Agent is bound thereby. Each party
hereto (other than the Administrative Agent) hereby acknowledges and agrees
that, in entering into the Standstill Letter and in respect of any performance,
breach, act, omission, event or occurrence arising from or in any manner
related or incidental to the Standstill Letter or any claim or dispute based
thereon, arising therefrom or related or incidental thereto, the Administrative
Agent will be entitled to each and all of the rights, powers, privileges,
protections, immunities and indemnities provided to it under this Agreement,
including its indemnification rights under Sections 2.21, 9.7 and 10.5, and the
other Loan Documents.


 


10.18.      Delivery of Lender Addenda. Each
initial Lender may become a party to this Agreement by delivering to the
Administrative Agent a Lender Addendum duly executed by such Lender, the Borrower
and the Administrative Agent.


 


10.19.      WAIVERS OF JURY TRIAL. THE US BORROWER, THE CANADIAN BORROWER, THE AGENTS AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.


 


109

















 


10.20.      Judgment Currency. (a) If, for the
purpose of obtaining or enforcing judgment against a Loan Party in any court in
any jurisdiction, it becomes necessary to convert into any other currency (such
other currency being hereinafter in this Section 10.20 referred to as the “Judgment
Currency”) an amount due under any Loan Document in any currency (the “Obligation
Currency”) other than the Judgment Currency, the conversion shall be made
at the rate of exchange prevailing on the Business Day immediately preceding
the date of actual payment of the amount due, in the case of any proceeding in
the courts of the State of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date, or the date
on which the judgment is given, in the case of any proceeding in the courts of
any other jurisdiction (the applicable date as of which such conversion is made
pursuant to this Section 10.20 being hereinafter in this Section 10.20 referred
to as the “Judgment Conversion Date”); and (b) if, in the case of any
proceeding in the court of any jurisdiction referred to in Section 10.20(a),
there is a change in the rate of exchange prevailing between the Judgment
Conversion Date and the date of actual receipt of the amount due in immediately
available funds, the Loan Party shall pay such additional amount (if any, but
in any event not a lesser amount) as may be necessary to ensure that the amount
actually received in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount of the
Judgment Currency stipulated in the judgment or judicial order at the rate of
exchange prevailing on the Judgment Conversion Date. Any amount due from the US
Borrower or the Canadian Borrower under this Section 10.20 shall be due as a
separate debt and shall not be affected by judgment being obtained for any
other amounts due under or in respect of any of the Loan Documents. The term
“rate of exchange” in this Section 10.209 means the rate of exchange at which
the Administrative Agent, on the relevant date at or about 12:00 noon (New York
time), would be prepared to sell, in accordance with its normal course foreign
currency exchange practices, the Obligation Currency against the Judgment
Currency.


 


110

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.


 


	
   

  	
  VANGUARD
  CAR RENTAL USA HOLDINGS
  

  INC., as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard J. Kennell

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Gerard
  J. Kennell

  
	
   

  	
   

  	
  Title:
  

  	
  Senior
  Vice President & Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NATIONAL
  CAR RENTAL (CANADA) INC.,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerard J. Kennell

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Gerard
  J. Kennell

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President & Treasurer

  
					



 


Credit Agreement


 

















 


	
   

  	
  GOLDMAN
  SACHS CREDIT PARTNERS L.P.,

  
	
   

  	
  as Administrative Agent,
  Collateral Agent, Co-Syndication Agent, Joint Lead Arranger, Joint
  Bookrunner, and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Authorized
  Signatory:

  	
  /s/
  [ILLEGIBLE]

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A.,

  
	
   

  	
  as Co-Syndication Agent
  and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert P. Kellas

  	
   

  
	
   

  	
   

  	
  Name:  Robert P. Kellas

  
	
   

  	
   

  	
  Title:    Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  J.P.
  MORGAN SECURITIES INC.,

  
	
   

  	
  as Joint Lead Arranger and
  Joint Bookrunner

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel M. Hochstadt

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Daniel M. Hochstadt

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 

















 


	
   

  	
  LEHMAN
  BROTHERS INC.,

  
	
   

  	
  as Joint Lead Arranger and
  Joint Bookrunner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey D. Abt

  
	
   

  	
   

  	
  Name: 

  	
  Jeffrey D. Abt

  
	
   

  	
   

  	
  Title: 

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LEHMAN
  COMMERCIAL PAPER INC.,

  
	
   

  	
  as
  Co-Documentation Agent and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey D. Abt

  
	
   

  	
   

  	
  Name: Jeffrey D. Abt

  
	
   

  	
   

  	
  Title: Authorized
  Signatory

  



 

















 


	
   

  	
  LEHMAN
  BROTHERS INC.,

  
	
   

  	
  as Joint Lead Arranger and
  Joint Bookrunner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LEHMAN
  COMMERCIAL PAPER INC.,

  	
   

  
	
   

  	
  as
  Co-Documentation Agent and as a Lender

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF
  MONTREAL,

  	
   

  
	
   

  	
  as Canadian Agent,
  Co-Documentation Agent and as a 

  
	
   

  	
  Lender

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ben
  Ciallella

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Ben
  Ciallella

  	
   

  
	
   

  	
   

  	
  Title: 

  	
  Vice
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Co-Documentation Agent and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


	
   

  	
  LEHMAN
  COMMERCIAL PAPER INC.,

  
	
   

  	
  as
  Co-Documentation Agent and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF
  MONTREAL,

  	
   

  
	
   

  	
  as
  Co-Documentation Agent and as a Lender

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Co-Documentation Agent and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Karin E.
  Samuel

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Karin E.
  Samuel

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
					



 

















 


	
   

  	
  Goldman
  Sachs Credit Partners L.P.,

  	
   

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William W. Archer

  	
   

  
	
   

  	
   

  	
  Name:

  	
  William W. Archer

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  	
   

  
						



 

















 


	
   

  	
  Lehman Commercial Paper
  Inc,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Laurie B Perper

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Laurie B Perper

  	
   

  
	
   

  	
   

  	
  Title:

  	
  authorized
  signatory

  	
   

  



 

















 


	
   

  	
  JPMORGAN
  CHASE BANK, N.A.,

  	
   

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert P. Kellas

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert
  P. Kellas

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
						



 

















 


	
   

  	
  Bank of
  Montreal

  	
   

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen A. Maenhout

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Stephen A. Maenhout

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  	
   

  



 

















 


	
   

  	
  CREDIT SUISSE, CAYMAN
  ISLANDS

  
	
   

  	
  BRANCH,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark E. Gleason

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Mark E. Gleason

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mikhail Faybusovich

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Mikhail Faybusovich

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Associate

  	
   

  



 

















 


	
   

  	
  Bear Stearns Corporate
  Lending Inc.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Victor F. Bulzacchelli

  	
   

  
	
   

  	
   

  	
  Name: Victor F. Bulzacchelli

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


	
   

  	
   

  	
  Bank of America. N.A.

  	
   

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David L.
  McCauley 

  	
   

  
	
   

  	
   

  	
  Name: David L. McCauley 

  
	
   

  	
   

  	
  Title:
  Principal

  
					



 

















 


	
   

  	
  Citicorp North America,
  Inc.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Stephen Cunningham

  	
   

  
	
   

  	
   

  	
  Name: Stephen Cunningham 

  
	
   

  	
   

  	
  Title: Vice President

  



 

















 


	
   

  	
  IXIS Financial Products
  Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mark P. Trager

  	
   

  
	
   

  	
   

  	
  Name:

  	
  MARK P. TRAGER 

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Christopher Hayden 

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Christopher Hayden 

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  	
   

  



 

















 


	
   

  	
  Bank of Oklahoma, N.A.

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David G. Lamb 

  	
   

  
	
   

  	
   

  	
  Name: David G. Lamb 

  
	
   

  	
   

  	
  Title:   Senior Vice President

  



 

















 


	
   

  	
  BARCLAYS BANK PLC,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alison McGuigan

  	
   

  
	
   

  	
   

  	
  Name: Alison McGuigan

  
	
   

  	
   

  	
  Title: Associate Director

  



 

















 


	
   

  	
  Wachovia
  Capital Finance Corporation (Canada),

  	
   

  
	
   

  	
  as a Canadian Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Enza Agosta 

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Enza Agosta

  
	
   

  	
   

  	
  Title: 

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Enza Agosta

  
	
   

  	
   

  	
   

  	
  Vice President

  Wachovia Capital Finance Corporation 

  (Canada)

  
	
   

  	
   

  
	
   

  	
  Notice Address:

  
	
   

  	
   

  
	
   

  	
   

  	
  141 Adelaide Street West,
  Suite 1500

  Toronto, Ontario, M5H 3L5 

  T: (416) 364-6401

  F: (416) 364-8165