Exhibit 10.18


 


AMENDED
AND RESTATED INDEMNIFICATION AGREEMENT


 


This Amended and Restated Indemnification
Agreement (the “Agreement”), dated as of December 21, 2005, among HERTZ
GENERAL INTEREST LLC, a Delaware limited liability company (“HGI”), HERTZ VEHICLE
FINANCING LLC, a Delaware limited liability company (“HVF”), HERTZ VEHICLES
LLC, a Delaware limited liability company, HERTZ FUNDING CORP., a Delaware
corporation (“HFC”), and THE HERTZ CORPORATION, a Delaware corporation (“Hertz”
and in its capacity as nominee under the Hertz Nominee Agreement (as defined
herein), the “Hertz Nominee”).


 


W I T N E S S E T H:


 


WHEREAS, to
assist Hertz in obtaining the most favorable financing terms for its daily
rental fleet of vehicles, Hertz desires to utilize its indirect wholly-owned
subsidiaries HGI, HVF, HFC and Hertz Vehicles LLC to own and finance its
vehicles;


 


WHEREAS, HGI
will purchase automobiles and light-duty trucks (the “HGI Vehicles”) from
vehicle manufacturers from time to time, and HVF will purchase HGI Vehicles
from HGI from time to time, in each case pursuant to an amended and restated
participation, purchase and sale agreement (the “Purchase Agreement”);


 


WHEREAS, HVF
will receive as a capital contribution from Hertz certain automobiles and
light-duty trucks (the “Initial Hertz Vehicles”) pursuant to a contribution
agreement (the “Hertz Contribution Agreement”) dated the date hereof;


 


WHEREAS, HVF
will purchase certain automobiles and light-duty trucks (the “Service Vehicles”
and, together with the HGI Vehicles and the Initial Hertz Vehicles, the “Vehicles”)
from HFC pursuant to a purchase and sale agreement (the “HFC Purchase Agreement”)
dated the date hereof;


 


WHEREAS, the
HGI Vehicles, the Initial Hertz Vehicles and the Service Vehicles will
initially be titled in the name of Hertz Vehicles LLC as nominee titleholder for
HGI and HVF, HFC, as nominee titleholder for HVF, and the Hertz Nominee, as
nominee titleholder for HVF, respectively, in each case pursuant to a nominee
titleholder agreement (collectively, the “Nominee Agreements”);


 

















 


WHEREAS, HGI
and HVF will lease the Vehicles to Hertz for use in the daily rental car
business of Hertz pursuant to separate lease agreements (the “Leases”);


 


WHEREAS, HVF
will grant a security interest in all of its Vehicles to the trustee (the “Trustee”)
under an indenture (the “Indenture”) for the notes (the “Notes”) that will be
issued by HVF pursuant to its financing program;


 


WHEREAS, HGI,
HVF and Hertz Vehicles LLC will not engage in any business activities other than
those related to owning, leasing to Hertz and financing the Vehicles;


 


WHEREAS, under
the Leases and the Related Documents (as defined herein), Hertz is required to
enter into this Agreement with HGI, HVF, HFC, the Hertz Nominee and Hertz
Vehicles LLC;


 


WHEREAS, in
connection with certain amendments to the Leases and the Indenture and certain
other Related Documents, the parties hereto wish to amend and restate in its
entirety the Indemnification Agreement dated as of January 10, 2002, in
the form of this Agreement;


 


NOW,
THEREFORE, in consideration of the foregoing premises, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:


 


1. Definitions.


 


“Indemnified
Persons” is defined in Section 2 of this Agreement.


 


“Lessors”
means HGI and HVF, in their capacity as the lessors under the Leases.


 


“Manufacturer”
means a manufacturer of passenger automobiles and/or light duty trucks.


 


“Manufacturer
Program” means an agreement pursuant to which a Manufacturer agrees to
repurchase the Vehicles or guarantee the auction sale price of the Vehicles.


 


“Operating
Lease Commencement Date” means the date on which the first Vehicle is leased
under the Leases.


 


“Related
Documents” means agreements that are entered into in accordance with or in
connection with the Leases, including without limitation the Nominee
Agreements, the Purchase Agreement, the Hertz Contribution Agreement and the
HFC Purchase Agreement.


 


“Servicer”
means Hertz, in its capacity as the servicer under the Leases and the Related
Documents.


 


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“Vehicle
Operating Lease Expiration Date” will be defined in the Leases.


 


2. Indemnity
by Hertz. (a) Hertz agrees to indemnify and hold harmless HGI, HVF,
HFC, the Hertz Nominee, Hertz Vehicles LLC and the Trustee, and their
respective directors, officers, stockholders, agents and employees
(collectively, the “Indemnified Persons”) against any and all claims, demands,
losses, damages and liabilities of whatsoever nature and all costs and expenses
relating to or in any way arising out of, including reasonable costs of
investigation and attorney’s fees and expenses (collectively, “Losses”):


 


(i)  the ordering, delivery, acquisition, title on
acquisition, rejection, installation, possession, titling, retitling,
registration, re-registration, custody by the Servicer of title and
registration documents, use, non-use, misuse, operation, deficiency, defect,
transportation, repair, maintenance, control or disposition of any Vehicle
leased under the Leases. The foregoing shall include, without limitation, any
liability (or any alleged liability) of any Lessor or any other Indemnified
Person to any third party arising out of any of the foregoing, including,
without limitation, all reasonable legal fees, costs and disbursements arising
out of such liability (or alleged liability);


 


(ii)  all federal, state, county, municipal,
foreign or other fees, taxes and assessments of whatsoever nature, including
but not limited to (A) license, qualification, registration, franchise, sales,
use, gross receipts, ad valorem, business, property (real or personal), excise,
motor vehicle, and occupation fees and taxes, and penalties and interest
thereon, whether assessed, levied against or payable by any Lessor, any other
Indemnified Party or otherwise, with respect to any Vehicle or the acquisition,
purchase, sale, lease, rental, use, operation, control, ownership or
disposition of any Vehicle or measured in any way by the value thereof or by
the business of, investment in, or ownership by any Lessor or any other
Indemnified Party with respect thereto, (B) documentary, stamp, filing,
recording, mortgage or other taxes, if any, which may be payable by any Lessor
or any other Indemnified Person in connection with the execution, delivery,
recording or filing of the Leases or the other Related Documents or the leasing
of any Vehicles under the Leases and any penalties or interest with respect
thereto and (C) federal, state, local and foreign income taxes and penalties
and interest thereon, whether assessed, levied against or payable by any Lessor
or otherwise as a result of its being a member of any group of corporations
including Hertz that files any tax returns on a consolidated or combined basis,
excluding, however, any franchise tax or tax on, based on, with respect, or
measured by, the net income of such Lessor (including federal alternative
minimum tax) other than any taxes or other charges which may be imposed on such
Lessor as a result of any determination by a taxing authority that such Lessor
is not the owner for tax purposes of the Vehicles leased under the Lease to
which it is a party or that such Lease is not a “true lease” for tax purposes


 


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or that depreciation deductions that would be
available to the owner of such Vehicles are disallowed, or that such Lessor is
not entitled to include the full purchase price for any Vehicle in basis;


 


(iii)  any violation by Hertz of the Leases, of this
Agreement or of any Related Documents to which Hertz is a party or by which it
is bound or any laws, rules, regulations, orders, writs, injunctions, decrees,
consents, approvals, exemptions, authorizations, licenses and withholdings of
objections of any governmental or public body or authority and all other
requirements having the force of law applicable at any time to any Vehicle or
any action or transaction by Hertz with respect thereto or pursuant to the
Leases; and


 


(iv)   the Vehicles, whether due to Hertz Vehicles
LLC’s, HFC’s or the Hertz Nominee’s, as applicable, holding legal title to any
such Vehicle, Hertz Vehicles LLC’s, HFC’s or the Hertz Nominee’s, as
applicable, appointment as nominee titleholder of the Vehicles pursuant to the
applicable Nominee Agreement or Hertz Vehicles LLC’s, HFC’s or the Hertz
Nominee’s, as applicable, performance under the applicable Nominee Agreement,
including, without limitation, Losses arising out of or related to Hertz
Vehicles LLC’s, HFC’s or the Hertz Nominee’s, as applicable, grant of a power
of attorney to HVF or Hertz pursuant to the applicable Nominee Agreement.


 


(b)  Hertz agrees to pay all out of pocket costs
of the Lessors (including reasonable fees and out of pocket expenses of counsel
for the Lessors) in connection with the execution, delivery and performance of
the Leases, this Agreement and the other Related Documents;


 


(c)  Hertz agrees to pay all out of pocket costs
and expenses (including reasonable attorneys’ fees and legal expenses) incurred
by the Lessors or the Trustee in connection with the administration,
enforcement, waiver or amendment of the Leases, this Agreement and any other
Related Documents and all indemnification obligations of the Lessors under the
Related Documents;


 


(d)  Hertz agrees to pay all costs, fees,
expenses, damages and liabilities (including, without limitation, reasonable
fees and out of pocket expenses of counsel) in connection with, or arising out
of, any claim made by any third party against the Lessors for any reason
(including, without limitation, in connection with any audit or investigation
conducted by a Manufacturer under its Manufacturer Program).


 


3. Reimbursement
Obligation by Hertz. Hertz shall forthwith upon demand reimburse each Lessor
or the relevant Indemnified Person for any sum or sums expended with respect to
any of the foregoing; provided, however, that, if so requested by
Hertz, such Lessor or Indemnified Party shall submit to Hertz a statement
documenting any such demand for reimbursement or prepayment. To the extent that
Hertz in fact 


 


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indemnifies an Indemnified
Party under the indemnity provisions of this Agreement, Hertz shall be
subrogated to such Indemnified Party’s rights in the affected transaction and
shall have a right to determine the settlement of claims therein. The foregoing
indemnity as contained in this Agreement shall survive the expiration or
earlier termination of the Leases or any lease of any Vehicle thereunder.


 


4. Defense
of Claims. Each Indemnified Party agrees to notify Hertz of any claim made
against it for which Hertz may be liable pursuant to this Agreement and, if
Hertz requests, to contest or allow Hertz to contest such claim. If any
Operating Lease Event of Default shall have occurred and be continuing, no
contest shall be required, and any contest which has begun shall not be
required to be continued to be pursued, unless arrangements to secure the
payment of Hertz’s obligations pursuant to the Leases and to this Agreement
have been made and such arrangements are reasonably satisfactory to the
Indemnified Parties. Hertz may settle any such claim with the related
Indemnified Party’s consent, which consent shall not be unreasonably withheld. Hertz
will inform the Indemnified Person of any such claim and of the defense thereof
and will provide copies of material documents relating to any such claim or
defense to such Indemnified Person upon request. Such Indemnified Person may
participate in any such defense at its own expense provided such participation
does not interfere with Hertz’s assertion of such claim or defense. Hertz
agrees that no Indemnified Person will be liable to Hertz for any claim caused
directly or indirectly by the inadequacy of any Vehicle leased by Hertz for any
purpose or any deficiency or defect therein or the use or maintenance thereof
or any repairs, servicing or adjustments thereto or any delay in providing or
failure to provide such repairs, servicing or adjustments or any interruption
or loss of service or use thereof or any loss of business, all of which shall
be the risk and responsibility of Hertz. The rights and indemnities of each
Indemnified Person hereunder are expressly made for the benefit of, and will be
enforceable by, each Indemnified Person notwithstanding the fact that such
Indemnified Person is either no longer a party to (or entitled to receive the
benefits of) this Agreement, or was not a party to (or entitled to receive the
benefits of) this Agreement at its outset. Except as otherwise set forth
herein, nothing herein shall be deemed to require Hertz to indemnify either
Lessor for any of such Lessor’s acts or omissions which constitute gross
negligence or willful misconduct. This general indemnity shall not affect any
claims of the type discussed above which Hertz may have against the
Manufacturer.


 


5. Term.
This Agreement will commence on the Operating Lease Commencement Date. The
obligations, rights and liabilities of Hertz and each Indemnified Party
hereunder shall continue in full force and effect for as long as HGI or HVF
owns a Vehicle.


 


6. Third
Party Beneficiaries. This Agreement will not confer any rights or remedies
upon any Person other than the parties hereto, the Trustee, and their
respective successors and permitted assigns.


 


7. Entire
Agreement. This Agreement and the other agreements specifically referenced
herein constitute the entire agreement among the parties hereto and supersede
any prior understandings, agreements, or representations by or among the


 


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parties hereto, written or
oral, to the extent they related in any way to the subject matter hereof.


 


8. Assignment.
The obligations and liabilities of Hertz and each Indemnified Party arising
under this Agreement are expressly made for the benefit of, and shall be
enforceable by, each Indemnified Party and Hertz and their respective
successors and assigns. Under the Indenture, HVF shall assign its rights under
this Agreement to the Trustee (for the benefit of the holders of the Notes).


 


9. Counterparts.
This Agreement may be executed in separate counterparts, each of which will be
deemed an original but all of which together will constitute one and the same
instrument.


 


10. Headings.
The section headings contained in this Agreement are inserted for convenience
only and will not affect in any way the meaning or interpretation of this
Agreement.


 


11. Notices.
All notices, requests and other communications hereunder shall  be in writing (including facsimile
transmission or similar writing) and shall be given to such party, addressed to
it, at its address or facsimile number set forth below, or at such other
address or facsimile number as such party may hereafter specify for the purpose
by notice to the other parties:


 


If to HGI, HVF, HFC, Hertz Vehicles LLC or
Hertz:


 


225 Brae Boulevard


Park Ridge, New Jersey 07656


Attention: 
Treasury Department


Telephone no. (201) 307-2000


Facsimile no. (201) 307-2746


 


Each such
notice, request or other communication shall be effective when received by the
intended recipient. Copies of all notices must be sent by first class mail
promptly after transmission by facsimile.


 


12. Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.


 


13. Amendments.
Neither this Agreement nor any of the terms hereof may be terminated, amended,
supplemented, waived or modified orally, but only by an instrument in writing
signed by the party against which the enforcement of the termination,
amendment, supplement, waiver or modification is sought.


 


14. Severability.
Any term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction will not affect the validity or


 


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enforceability of the remaining
terms and provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction.


 


 


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IN WITNESS WHEREOF, the parties hereto have
duly executed this Amended and Restated Indemnification Agreement as of the
date first above written.


 


 


	
   

  	
  HERTZ GENERAL INTEREST LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert H. Rillings

  
	
   

  	
  Name:

  	
  Robert H. Rillings

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HERTZ VEHICLE FINANCING LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert H. Rillings

  
	
   

  	
  Name:

  	
  Robert H. Rillings

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HERTZ VEHICLES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert H. Rillings

  
	
   

  	
  Name:

  	
  Robert H. Rillings

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HERTZ FUNDING CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert H. Rillings

  
	
   

  	
  Name:

  	
  Robert H. Rillings

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE HERTZ CORPORATION, in its

  individual capacity and in its capacity as

  Hertz Nominee,

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Robert H. Rillings

  
	
   

  	
  Name:

  	
  Robert H. Rillings

  
	
   

  	
  Title:

  	
  Treasurer