Exhibit 4.9.1


 


 


HERTZ VEHICLE
FINANCING LLC, 

as Issuer


 


 


and


 


 


BNY MIDWEST
TRUST COMPANY,

as Trustee


 


 






 


 


AMENDED AND
RESTATED BASE INDENTURE


 


 


Dated as of December 21, 2005


 


 






 


 


Rental Car
Asset Backed Notes

(Issuable in Series)


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE

  	
  1

  
	
   

  	
   

  
	
  Section 1.1.
  Definitions

  	
  1

  
	
  Section 1.2.
  Cross-References

  	
  1

  
	
  Section 1.3.
  Accounting and Financial Determinations; No Duplication

  	
  2

  
	
  Section 1.4.
  Rules of Construction

  	
  2

  
	
   

  	
   

  
	
  ARTICLE 2. THE NOTES

  	
  2

  
	
   

  	
   

  
	
  Section 2.1.
  Designation and Terms of Notes

  	
  2

  
	
  Section 2.2.
  Notes Issuable in Series

  	
  3

  
	
  Section 2.3.
  Series Supplement for Each Series

  	
  5

  
	
  Section 2.4.
  Execution and Authentication

  	
  6

  
	
  Section 2.5.
  Registrar and Paying Agent

  	
  7

  
	
  Section 2.6.
  Paying Agent to Hold Money in Trust

  	
  7

  
	
  Section 2.7.
  Noteholder List

  	
  8

  
	
  Section 2.8.
  Transfer and Exchange

  	
  9

  
	
  Section 2.9.
  Persons Deemed Owners

  	
  10

  
	
  Section 2.10.
  Replacement Notes

  	
  10

  
	
  Section 2.11.
  Treasury Notes

  	
  11

  
	
  Section 2.12.
  Book-Entry Notes

  	
  11

  
	
  Section 2.13.
  Definitive Notes

  	
  12

  
	
  Section 2.14.
  Cancellation

  	
  13

  
	
  Section 2.15.
  Principal and Interest

  	
  13

  
	
  Section 2.16.
  Tax Treatment

  	
  14

  
	
   

  	
   

  
	
  ARTICLE 3. SECURITY

  	
  14

  
	
   

  	
   

  
	
  Section 3.1.
  Grant of Security Interest

  	
  14

  
	
  Section 3.2.
  Certain Rights and Obligations of HVF Unaffected

  	
  15

  
	
  Section 3.3.
  Performance of Collateral Agreements

  	
  16

  
	
  Section 3.4.
  Release of Indenture Collateral

  	
  17

  
	
  Section 3.5.
  Opinions of Counsel

  	
  17

  



 

















 


	
  Section 3.6.
  Stamp, Other Similar Taxes and Filing Fees

  	
  18

  
	
   

  	
   

  
	
  ARTICLE 4. REPORTS

  	
  18

  
	
   

  	
   

  
	
  Section 4.1.
  Reports and Instructions to Trustee

  	
  18

  
	
  Section 4.2.
  Reports to Noteholders

  	
  19

  
	
  Section 4.3.
  Rule 144A Information

  	
  20

  
	
  Section 4.4.
  Administrator

  	
  20

  
	
   

  	
   

  
	
  ARTICLE 5. ALLOCATION AND APPLICATION OF COLLECTIONS

  	
  20

  
	
   

  	
   

  
	
  Section 5.1.
  Collection Account

  	
  20

  
	
  Section 5.2.
  Collections and Allocations

  	
  21

  
	
  Section 5.3.
  Determination of Monthly Interest

  	
  24

  
	
  Section 5.4.
  Determination of Monthly Principal

  	
  24

  
	
   

  	
   

  
	
  ARTICLE 6. DISTRIBUTIONS

  	
  24

  
	
   

  	
   

  
	
  Section 6.1.
  Distributions in General

  	
  24

  
	
   

  	
   

  
	
  ARTICLE 7. REPRESENTATIONS AND WARRANTIES

  	
  25

  
	
   

  	
   

  
	
  Section 7.1.
  Existence and Power

  	
  25

  
	
  Section 7.2.
  Limited Liability Company and Governmental Authorization

  	
  25

  
	
  Section 7.3.
  No Consent

  	
  25

  
	
  Section 7.4.
  Binding Effect

  	
  26

  
	
  Section 7.5.
  Litigation

  	
  26

  
	
  Section 7.6.
  No ERISA Plan

  	
  26

  
	
  Section 7.7.
  Tax Filings and Expenses

  	
  26

  
	
  Section 7.8.
  Disclosure

  	
  26

  
	
  Section 7.9.
  Investment Company Act

  	
  27

  
	
  Section 7.10.
  Regulations T, U and X

  	
  27

  
	
  Section 7.11.
  Solvency

  	
  27

  
	
  Section 7.12.
  Ownership of Limited Liability Company Interests; Subsidiary

  	
  27

  
	
  Section 7.13.
  Security Interests

  	
  27

  
	
  Section 7.14.
  Related Documents

  	
  29

  
	
  Section 7.15.
  No Manufacturer Events of Default

  	
  29

  
	
  Section 7.16.
  Non-Existence of Other Agreements

  	
  29

  



 

















 


	
  Section 7.17.
  Compliance with Contractual Obligations and Laws

  	
  29

  
	
  Section 7.18.
  Other Representations

  	
  30

  
	
   

  	
   

  
	
  ARTICLE 8. COVENANTS

  	
  30

  
	
   

  	
   

  
	
  Section 8.1.
  Payment of Notes

  	
  30

  
	
  Section 8.2.
  Maintenance of Office or Agency

  	
  30

  
	
  Section 8.3.
  Payment of Obligations

  	
  30

  
	
  Section 8.4.
  Conduct of Business and Maintenance of Existence

  	
  30

  
	
  Section 8.5.
  Compliance with Laws

  	
  31

  
	
  Section 8.6.
  Inspection of Property, Books and Records

  	
  31

  
	
  Section 8.7.
  Actions under the Collateral Agreements

  	
  31

  
	
  Section 8.8.
  Notice of Defaults

  	
  32

  
	
  Section 8.9.
  Notice of Material Proceedings

  	
  32

  
	
  Section 8.10.
  Further Requests

  	
  32

  
	
  Section 8.11.
  Further Assurances

  	
  32

  
	
  Section 8.12.
  Liens

  	
  33

  
	
  Section 8.13.
  Other Indebtedness

  	
  34

  
	
  Section 8.14.
  No ERISA Plan

  	
  34

  
	
  Section 8.15.
  Mergers

  	
  34

  
	
  Section 8.16.
  Sales of Assets

  	
  34

  
	
  Section 8.17.
  Acquisition of Assets

  	
  34

  
	
  Section 8.18.
  Dividends, Officers’ Compensation, etc

  	
  34

  
	
  Section 8.19.
  Legal Name; Location Under Section 9-301

  	
  35

  
	
  Section 8.20.
  HVF LLC Agreement

  	
  35

  
	
  Section 8.21.
  Investments

  	
  35

  
	
  Section 8.22.
  No Other Agreements

  	
  35

  
	
  Section 8.23.
  Other Business

  	
  35

  
	
  Section 8.24.
  Maintenance of Separate Existence

  	
  35

  
	
  Section 8.25.
  Manufacturer Programs

  	
  36

  
	
  Section 8.26.
  Disposition of HVF Vehicles

  	
  37

  
	
  Section 8.27.
  Insurance

  	
  38

  
	
   

  	
   

  
	
  ARTICLE 9. AMORTIZATION EVENTS AND REMEDIES

  	
  38

  



 

















 


	
   

  	
   

  
	
  Section 9.1.
  Amortization Events

  	
  38

  
	
  Section 9.2.
  Rights of the Trustee upon Amortization Event or Certain Other Events of
  Default

  	
  39

  
	
  Section 9.3.
  Other Remedies

  	
  43

  
	
  Section 9.4.
  Waiver of Past Events

  	
  43

  
	
  Section 9.5.
  Control by Requisite Investors

  	
  43

  
	
  Section 9.6.
  Limitation on Suits

  	
  44

  
	
  Section 9.7.
  Unconditional Rights of Holders to Receive Payment

  	
  44

  
	
  Section 9.8.
  Collection Suit by the Trustee

  	
  44

  
	
  Section 9.9.
  The Trustee May File Proofs of Claim

  	
  45

  
	
  Section 9.10.
  Priorities

  	
  45

  
	
  Section 9.11.
  Undertaking for Costs

  	
  45

  
	
  Section 9.12.
  Rights and Remedies Cumulative

  	
  45

  
	
  Section 9.13.
  Delay or Omission Not Waiver

  	
  46

  
	
  Section 9.14.
  Reassignment of Surplus

  	
  46

  
	
   

  	
   

  
	
  ARTICLE 10. THE TRUSTEE

  	
  46

  
	
   

  	
   

  
	
  Section 10.1.
  Duties of the Trustee

  	
  46

  
	
  Section 10.2.
  Rights of the Trustee

  	
  48

  
	
  Section 10.3.
  Individual Rights of the Trustee

  	
  50

  
	
  Section 10.4.
  Notice of Amortization Events and Potential Amortization Events

  	
  50

  
	
  Section 10.5.
  Compensation

  	
  50

  
	
  Section 10.6.
  Replacement of the Trustee

  	
  50

  
	
  Section 10.7.
  Successor Trustee by Merger, etc

  	
  51

  
	
  Section 10.8.
  Eligibility Disqualification

  	
  52

  
	
  Section 10.9.
  Appointment of Co-Trustee or Separate Trustee

  	
  52

  
	
  Section 10.10.
  Representations and Warranties of Trustee

  	
  53

  
	
  Section 10.11.
  HVF Indemnification of the Trustee

  	
  53

  
	
   

  	
   

  
	
  ARTICLE 11. DISCHARGE OF INDENTURE

  	
  54

  
	
   

  	
   

  
	
  Section 11.1.
  Termination of HVF’s Obligations

  	
  54

  
	
  Section 11.2.
  Application of Trust Money

  	
  55

  
	
  Section 11.3.
  Repayment to HVF

  	
  55

  



 

















 


	
  ARTICLE 12. AMENDMENTS

  	
  56

  
	
   

  	
   

  
	
  Section 12.1.
  Without Consent of the Noteholders

  	
  56

  
	
  Section 12.2.
  With Consent of the Noteholders

  	
  57

  
	
  Section 12.3.
  Supplements

  	
  58

  
	
  Section 12.4.
  Revocation and Effect of Consents

  	
  58

  
	
  Section 12.5.
  Notation on or Exchange of Notes

  	
  58

  
	
  Section 12.6.
  The Trustee to Sign Amendments, etc

  	
  59

  
	
   

  	
   

  
	
  ARTICLE 13. MISCELLANEOUS

  	
  59

  
	
   

  	
   

  
	
  Section 13.1.
  Notices

  	
  59

  
	
  Section 13.2.
  Communication by Noteholders With Other Noteholders

  	
  61

  
	
  Section 13.3.
  Certificate and Opinion as to Conditions Precedent

  	
  61

  
	
  Section 13.4.
  Statements Required in Certificate

  	
  61

  
	
  Section 13.5.
  Rules by the Trustee

  	
  61

  
	
  Section 13.6.
  Duplicate Originals

  	
  61

  
	
  Section 13.7.
  Benefits of Indenture

  	
  61

  
	
  Section 13.8.
  Payment on Business Day

  	
  62

  
	
  Section 13.9.
  Governing Law

  	
  62

  
	
  Section 13.10.
  Successors

  	
  62

  
	
  Section 13.11.
  Severability

  	
  62

  
	
  Section 13.12.
  Counterpart Originals

  	
  62

  
	
  Section 13.13.
  Table of Contents, Headings, etc

  	
  62

  
	
  Section 13.14.
  Termination; Indenture Collateral

  	
  62

  
	
  Section 13.15.
  No Bankruptcy Petition Against HVF

  	
  63

  
	
  Section 13.16.
  No Recourse

  	
  63

  
	
  Section 13.17.
  Waiver of Jury Trial

  	
  64

  



 

















 


AMENDED AND
RESTATED BASE INDENTURE, dated as of December 21, 2005, between HERTZ
VEHICLE FINANCING LLC, a special purpose limited liability company established
under the laws of Delaware, as issuer (“HVF”), and BNY MIDWEST TRUST
COMPANY, an Illinois trust company, as trustee (in such capacity, the “Trustee”).


 


W I T  N  E  S  S
E  T  H:


 


WHEREAS, HVF
and the Trustee entered into a Base Indenture dated as of September 18,
2002, as amended pursuant to the First Supplemental Indenture dated as of March 31,
2004 (the “Prior Indenture”);


 


WHEREAS, HVF
and the Trustee desire to amend and restate the Prior Indenture in its entirety
as herein set forth;


 


WHEREAS, HVF
has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of one or more series of Rental Car Asset
Backed Notes (the “Notes”), issuable as provided in this Indenture; and


 


WHEREAS, all
things necessary to make this Indenture a legal, valid and binding agreement of
HVF, in accordance with its terms, have been done, and HVF proposes to do all
the things necessary to make the Notes, when executed by HVF and authenticated
and delivered by the Trustee hereunder and duly issued by HVF, the legal, valid
and binding obligations of HVF as hereinafter provided;


 


NOW,
THEREFORE, for and in consideration of the premises and the receipt of the
Notes by the Noteholders, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Noteholders, as follows:


 


ARTICLE I   DEFINITIONS AND INCORPORATION BY
REFERENCE


 


Section 1.1.
Definitions.


 


Certain
capitalized terms used herein (including the preamble and the recitals hereto)
shall have the meanings assigned to such terms in the Definitions List attached
hereto as Schedule I (the “Definitions List”), as such
Definitions List may be amended or modified from time to time in
accordance with the provisions hereof.


 


Section 1.2.
Cross-References.


 


Unless
otherwise specified, references in this Indenture and in each other Related
Document to any Article or Section are references to such Article or
Section of this Indenture or such other Related Document, as the case may be
and, unless otherwise specified, references in any Article, Section or
definition to any clause are references to such clause of such Article, Section or
definition.


 

















 


Section 1.3.
Accounting and Financial Determinations; No Duplication.


 


Where the
character or amount of any asset or liability or item of income or expense is
required to be determined, or any accounting computation is required to be
made, for the purpose of this Indenture, such determination or calculation
shall be made, to the extent applicable and except as otherwise specified in
this Indenture, in accordance with GAAP. When used herein, the term “financial
statement” shall include the notes and schedules thereto. All accounting determinations
and computations hereunder or under any other Related Documents shall be made
without duplication.


 


Section 1.4.
Rules of Construction.


 


In this
Indenture, unless the context otherwise requires:


 


(a)          the
singular includes the plural and vice versa;


 


(b)         reference
to any Person includes such Person’s successors and assigns but, if applicable,
only if such successors and assigns are permitted by this Indenture, and
reference to any Person in a particular capacity only refers to such Person in
such capacity;


 


(c)          reference
to any gender includes the other gender;


 


(d)         reference
to any Requirement of Law means such Requirement of Law as amended, modified,
codified or reenacted, in whole or in part, and in effect from time to time;


 


(e)          “including”
(and with correlative meaning “include”) means including without limiting the
generality of any description preceding such term; and


 


(f)            with
respect to the determination of any period of time, “from” means “from and
including” and “to” means “to but excluding”.


 


ARTICLE II   THE NOTES


 


Section 2.1.
Designation and Terms of Notes.


 


Each Series of
Notes shall be substantially in the form specified in the applicable Series Supplement
and shall bear, upon its face, the designation for such Series to which it
belongs as selected by HVF, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted hereby or by
the applicable Series Supplement and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may, consistently herewith, be determined to be appropriate by the
Authorized Officer executing such Notes, as evidenced by his execution of the
Notes. All Notes of any Series shall, except as specified in the applicable
Series Supplement, be equally and ratably entitled as provided herein to
the benefits hereof without preference, priority or distinction on account of
the actual time or times of authentication and delivery, all in accordance with
the terms and provisions of this Indenture and the applicable Series Supplement.
The aggregate


 


2

















 


principal amount of Notes which may be authenticated and delivered
under this Indenture is unlimited. The Notes of each Series shall be
issued in the denominations set forth in the applicable Series Supplement.


 


Section 2.2.
Notes Issuable in Series.


 


(a) The
Notes may be issued in one or more Series. Each Series of Notes shall
be created by a Series Supplement.


 


(b) Notes
of a new Series may from time to time be executed by HVF and
delivered to the Trustee for authentication and thereupon the same shall be
authenticated and delivered by the Trustee upon the receipt by the Trustee of a
Company Request at least two (2) Business Days (or such shorter time as is
acceptable to the Trustee) in advance of the related Series Closing Date
and upon delivery by HVF to the Trustee, and receipt by the Trustee, of the
following:


 


(i)                                     a Company Order
authorizing and directing the authentication and delivery of the Notes of such
new Series by the Trustee and specifying the designation of such new
Series, the Initial Principal Amount (or the method for calculating the Initial
Principal Amount) of such new Series to be authenticated and the Note Rate
with respect to such new Series;


 


(ii)                                  a Series Supplement
satisfying the criteria set forth in Section 2.3 executed by HVF
and the Trustee and specifying the Principal Terms of such new Series;


 


(iii)                               the related Enhancement
Agreement, if any, executed by each of the parties thereto, other than the
Trustee;


 


(iv)                              written confirmation from
each Rating Agency that the Rating Agency Condition with respect to each Series of
Notes Outstanding shall have been satisfied with respect to such issuance;


 


(v)                                 an Officer’s
Certificate of HVF dated as of the applicable Series Closing Date to the
effect that (A) no Amortization Event, Limited Liquidation Event of
Default, Potential Amortization Event or Enhancement Deficiency with respect to
any Series of Notes Outstanding is continuing or will occur as a result of
the issuance of the new Series of Notes, (B) no Liquidation Event of
Default, Aggregate Asset Amount Deficiency, Manufacturer Event of Default,
Operating Lease Event of Default, Potential Operating Lease Event of Default or
Potential Manufacturer Event of Default is continuing or will occur as a result
of the issuance of the new Series of Notes and (C) all conditions
precedent provided in this Base Indenture and the related Series Supplement
with respect to the authentication and delivery of the new Series of Notes
have been satisfied;


 


(vi)                              a Tax Opinion;


 


(vii)                           evidence that each of the
parties to the Related Documents with respect to the new Series of Notes
has covenanted and agreed in the Related Documents


 


3

















 


that, prior to the date which is one year and one day after the payment
in full of the latest maturing Note, it will not institute against, or join
with any other Person in instituting, against Hertz Vehicles LLC, HGI, HVF or
the Intermediary any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings, under any Federal or state
bankruptcy or similar law;


 


(viii)                        unless otherwise specified in
the related Series Supplement, an Opinion of Counsel, subject to the
assumptions and qualifications stated therein, and in a form substantially
acceptable to the Trustee, dated the applicable Closing Date, substantially to
the effect that:


 


(A)                              all instruments furnished
to the Trustee conform to the requirements of this Base Indenture and the
related Series Supplement and constitute all the documents required to be
delivered hereunder and thereunder for the Trustee to authenticate and deliver
the new Series of Notes, and all conditions precedent provided for in this
Base Indenture and the related Series Supplement with respect to the
authentication and delivery of the new Series of Notes have been complied
with;


 


(B)                                the related Series Supplement
has been duly authorized, executed and delivered by HVF;


 


(C)                                the new Series of
Notes has been duly authorized and executed and, when authenticated and
delivered in accordance with the provisions of this Base Indenture and the
related Series Supplement, will constitute valid, binding and enforceable
obligations of HVF entitled to the benefits of this Base Indenture and the
related Series Supplement, subject, in the case of enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors’ rights generally and to general principles of equity; and


 


(D)                               the related Series Supplement
is a legal, valid and binding agreement of HVF, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors’ rights generally and to general
principles of equity; and


 


(ix)                                such other documents,
instruments, certifications, agreements or other items as the Trustee may reasonably
require.


 


Upon
satisfaction of such conditions, the Trustee shall authenticate and deliver, as
provided above, such Series of Notes upon execution thereof by HVF.


 


4

















 


Section 2.3.
Series Supplement for Each Series.


 


In conjunction
with the issuance of a new Series, the parties hereto shall execute a Series Supplement,
which shall specify the relevant terms with respect to such new Series of
Notes, which may include without limitation:


 


(a) its
name or designation;


 


(b) the
Initial Principal Amount or the method of calculating the Initial Principal
Amount with respect to such Series;


 


(c) the
Note Rate with respect to such Series;


 


(d) the Series Closing
Date;


 


(e) each
Rating Agency rating such Series;


 


(f) the
name of the Clearing Agency, if any;


 


(g) the
interest payment date or dates and the date or dates from which interest shall
accrue;


 


(h) the
method of allocating Collections allocated to such Series;


 


(i) whether
the Notes of such Series will be issued in multiple Classes and, if so,
the method of allocating Collections allocated to such Series among such
Classes and the rights and priorities of each such Class;


 


(j) the method
by which the principal amount of the Notes of such Series shall amortize
or accrete;


 


(k) the names
of any Series Accounts to be used by such Series and the terms
governing the operation of any such account and the use of moneys therein;


 


(l) any
deposit of funds to be made in any Series Account on the Series Closing
Date;


 


(m) the terms
of any related Enhancement and the Enhancement Provider thereof, if any;


 


(n) whether
the Notes of such Series may be issued in bearer form and any
limitations imposed thereon;


 


(o) the Series Termination
Date of such Series; and


 


(p) any other
relevant terms of such Series of Notes (including whether or not such Series will
be pledged as collateral for an issuance by an Affiliate Issuer) that do not
change the terms of any Series of Notes Outstanding and that do not prevent
the satisfaction of the


 


5

















 


Rating Agency Condition with
respect to each Series of Notes Outstanding with respect to the issuance
of such new Series (all such terms, the “Principal Terms” of such
Series).


 


Section 2.4.
Execution and Authentication.


 


(a) The
Notes shall, upon issue pursuant to Section 2.2, be executed on
behalf of HVF by an Authorized Officer and delivered by HVF to the Trustee for
authentication and redelivery as provided herein. If an Authorized Officer
whose signature is on a Note no longer holds that office at the time the Note
is authenticated, the Note shall nevertheless be valid.


 


(b) At
any time and from time to time after the execution and delivery of this
Indenture, HVF may deliver Notes of any particular Series executed by
HVF to the Trustee for authentication, together with one or more Company Orders
for the authentication and delivery of such Notes, and the Trustee, in
accordance with such Company Order and this Indenture, shall authenticate and
deliver such Notes.


 


(c) No
Note shall be entitled to any benefit under this Indenture or be valid for any
purpose unless there appears on such Note a certificate of authentication
substantially in the form provided for herein, duly executed by the
Trustee by the manual signature of a Trust Officer (and the Luxembourg agent
(the “Luxembourg Agent”), if the Notes of the Series to which such
Note belongs are listed on the Luxembourg Stock Exchange). Such signatures on
such certificate shall be conclusive evidence, and the only evidence, that the
Note has been duly authenticated under this Indenture. The Trustee may appoint
an authenticating agent acceptable to HVF to authenticate Notes. Unless limited
by the term of such appointment, an authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. The
Trustee’s certificate of authentication shall be in substantially the following
form:


 


This is one of
the Notes of a Series issued under the within mentioned Indenture.


 


	
   

  	
  BNY MIDWEST TRUST COMPANY, as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  	
   

  



 


(d) Each
Note shall be dated and issued as of the date of its authentication by the
Trustee.


 


(e) Notwithstanding
the foregoing, if any Note shall have been authenticated and delivered
hereunder but never issued and sold by HVF, and HVF shall deliver such Note to
the Trustee for cancellation as provided in Section 2.14 together
with a written statement (which need not comply with Section 13.3
and need not be accompanied by an Opinion of Counsel) stating that such Note
has never been issued and sold by HVF, for all purposes of this Indenture such
Note shall be deemed never to have been authenticated and delivered hereunder
and shall not be entitled to the benefits of this Indenture.


 


6

















 


The Trustee
shall have the right to decline to authenticate and deliver any Notes under
this Section 2.4 if the Trustee, based on the written advice of
counsel, determines that such action may not lawfully be taken.


 


Section 2.5.
Registrar and Paying Agent.


 


(a) HVF
shall (i) maintain an office or agency where Notes may be presented
for registration of transfer or for exchange (the “Registrar”) and (ii) appoint
a paying agent (which shall satisfy the eligibility criteria set forth in Section 10.8(a))
(“Paying Agent”) at whose office or agency Notes may be presented
for payment. The Registrar shall keep a register of the Notes and of their
transfer and exchange (the “Note Register”). HVF may appoint one or
more co-registrars and one or more additional paying agents. The term “Paying
Agent” includes any additional paying agent and the term “Registrar” includes
any co-registrars. HVF may change any Paying Agent or Registrar without
prior notice to any Noteholder. HVF shall notify the Trustee in writing of the
name and address of any Agent not a party to this Indenture. The Trustee is
hereby initially appointed as the Registrar, Paying Agent and agent for service
of notices and demands in connection with the Notes.


 


(b) HVF
shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture. Such agency agreement shall implement the provisions of this
Indenture that relate to such Agent. If HVF fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such, and shall be entitled to
appropriate compensation in accordance with this Indenture until HVF shall
appoint a replacement Registrar or Paying Agent, as applicable.


 


Section 2.6.
Paying Agent to Hold Money in Trust.


 


(a) HVF
will cause each Paying Agent other than the Trustee to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the
Trustee (and if the Trustee acts as Paying Agent, it hereby so agrees), subject
to the provisions of this Section, that such Paying Agent will:


 


(i)                                     hold all sums held
by it for the payment of amounts due with respect to the Notes in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;


 


(ii)                                  give the Trustee
notice of any default by HVF of which it has actual knowledge in the making of
any payment required to be made with respect to the Notes;


 


(iii)                               at any time during the
continuance of any such default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent;


 


(iv)                              immediately resign as a
Paying Agent and forthwith pay to the Trustee all sums held by it in trust for
the payment of Notes if at any time it ceases to meet the standards required to
be met by a Trustee hereunder at the time of its appointment; and


 


7

















 


(v)                                 comply with all
requirements of the Code with respect to the withholding from any payments made
by it on any Notes of any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection therewith.


 


(b) HVF may at
any time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, by Company Order direct any Paying Agent to
pay to the Trustee all sums held in trust by such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon which the sums were held
by such Paying Agent; and upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.


 


(c) Subject
to applicable laws with respect to escheat of funds, any money held by the
Trustee or any Paying Agent in trust for the payment of any amount due with
respect to any Note and remaining unclaimed for two years after such amount has
become due and payable shall be discharged from such trust and be paid to HVF
on Company Request; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to HVF for payment thereof (but only to
the extent of the amounts so paid to HVF), and all liability of the Trustee or
such Paying Agent with respect to such trust money shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to
make any such repayment, may, at the expense of HVF, cause to be published
once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in New York City, and in a
newspaper customarily published on each Business Day and of general circulation
in London and Luxembourg (if the related Series of Notes has been listed
on the Luxembourg Stock Exchange), if applicable, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to HVF. The Trustee may also
adopt and employ, at the expense of HVF, any other reasonable means of
notification of such repayment.


 


Section 2.7.
Noteholder List.


 


The Trustee
will furnish or cause to be furnished by the Registrar to HVF or the Paying
Agent, within five Business Days after receipt by the Trustee of a request
therefor from HVF or the Paying Agent, respectively, in writing, a list in such
form as HVF or the Paying Agent may reasonably require, of the names
and addresses of the Noteholders of each Series as of the most recent
Record Date for payments to such Noteholders. Unless otherwise provided in the
applicable Series Supplement, holders of Notes of any Series having
an aggregate Principal Amount of not less than 10% of the aggregate Principal
Amount of such Series (the “Applicants”) may apply in writing
to the Trustee, and if such application states that the Applicants desire to
communicate with other Noteholders of any Series with respect to their
rights under this Indenture or under the Notes and is accompanied by a copy of
the communication which such Applicants propose to transmit, then the Trustee,
after having been adequately indemnified by such Applicants for its costs and
expenses, shall afford or shall cause the Registrar to afford such Applicants
access during normal business hours to the most recent list of Noteholders held
by the Trustee and shall give HVF notice that such request has been made,
within five Business Days after the receipt of such application. Such list
shall be as of a


 


8

















 


date no more than 45 days prior to the date of receipt of such
Applicants’ request. Every Noteholder, by receiving and holding a Note, agrees
with the Trustee that neither the Trustee, the Registrar, nor any of their
respective agents shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Noteholders hereunder,
regardless of the source from which such information was obtained.


 


The Trustee
shall preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of Noteholders of each Series of
Notes. If the Trustee is not the Registrar, HVF shall furnish to the Trustee at
least seven Business Days before each Payment Date and at such other time as
the Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses
of Noteholders of each Series of Notes.


 


Section 2.8.
Transfer and Exchange.


 


(a) Upon
surrender for registration of transfer of any Note at the office or agency of
the Registrar, if the requirements of Section 2.8(f) and Section 8-401(a) of
the UCC are met, HVF shall execute and after HVF has executed, the Trustee
shall authenticate and deliver to the Noteholder, in the name of the designated
transferee or transferees, one or more new Notes, in any authorized
denominations, of the same Class and a like Initial Principal Amount. At
the option of any Noteholder, Notes may be exchanged for other Notes of
the same Series and Class in authorized denominations of like Initial
Principal Amount, upon surrender of the Notes to be exchanged at any office or
agency of the Registrar maintained for such purpose. Whenever Notes of any Series are
so surrendered for exchange, if the requirements of Section 8-401(a) of
the UCC are met, HVF shall execute and after HVF has executed, the Trustee
shall authenticate and deliver to the Noteholder, the Notes which the
Noteholder making the exchange is entitled to receive.


 


(b) Every
Note presented or surrendered for registration of transfer or exchange shall be
(i) duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Trustee duly executed by, the Holder
thereof or such Holder’s attorney duly authorized in writing, with a medallion
signature guarantee, and (ii) accompanied by such other documents as the
Trustee may require. HVF shall execute and deliver to the Trustee or the
Registrar, as applicable, Notes in such amounts and at such times as are
necessary to enable the Trustee to fulfill its responsibilities under this
Indenture and the Notes.


 


(c) All
Notes issued upon any registration of transfer or exchange of the Notes shall
be the valid obligations of HVF, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Notes surrendered upon such
registration of transfer or exchange.


 


(d) The
preceding provisions of this Section 2.8 notwithstanding, the
Trustee or the Registrar, as the case may be, shall not be required to
register the transfer or exchange of any Note of any Series for a period
of 15 days preceding the due date for payment in full of the Notes of such
Series.


 


(e) Unless
otherwise provided in the applicable Series Supplement, no service charge
shall be payable for any registration of transfer or exchange of Notes, but HVF
or the


 


9

















 


Registrar may require
payment by the Noteholder of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer or exchange of
Notes.


 


(f) Unless
otherwise provided in the applicable Series Supplement, registration of
transfer of Notes containing a legend relating to the restrictions on transfer
of such Notes (which legend shall be set forth in the applicable Series Supplement)
shall be effected only if the conditions set forth in such applicable Series Supplement
are satisfied. Notwithstanding any other provision of this Section 2.8
and except as otherwise provided in Section 2.13, the typewritten
Note or Notes representing Book-Entry Notes for any Series may be
transferred, in whole but not in part, only to another nominee of the Clearing
Agency for such Series, or to a successor Clearing Agency for such Series selected
or approved by HVF or to a nominee of such successor Clearing Agency, only if
in accordance with this Section 2.8 and Section 2.12.


 


(g) If
the Notes are listed on the Luxembourg Stock Exchange, the Trustee or the
Luxembourg Agent, as the case may be, shall send to HVF upon any transfer
or exchange of any Note information reflected in the copy of the register for
the Notes maintained by the Registrar or the Luxembourg Agent, as the case may be.


 


Section 2.9.
Persons Deemed Owners.


 


Prior to due
presentment for registration of transfer of any Note, the Trustee, any Agent
and HVF may deem and treat the Person in whose name any Note is registered
(as of the day of determination) as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Note and for
all other purposes whatsoever, whether or not such Note is overdue, and neither
the Trustee, any Agent nor HVF shall be affected by notice to the contrary.


 


Section 2.10.
Replacement Notes.


 


(a) If (i) any
mutilated Note is surrendered to the Trustee, or the Trustee receives evidence
to its satisfaction of the destruction, loss or theft of any Note, and (ii) there
is delivered to the Trustee such security or indemnity as may be required
by it to hold HVF and the Trustee harmless then, provided that the requirements
of Section 8-405 of the UCC are met, HVF shall execute and upon its
request the Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Note, a replacement Note; provided,
however, that if any such destroyed, lost or stolen Note, but not a
mutilated Note, shall have become or within seven days shall be due and
payable, instead of issuing a replacement Note, HVF may pay such
destroyed, lost or stolen Note when so due or payable without surrender thereof.
If, after the delivery of such replacement Note or payment of a destroyed, lost
or stolen Note pursuant to the proviso to the preceding sentence, a protected
purchaser (within the meaning of Section 8-303 of the UCC) of the original
Note in lieu of which such replacement Note was issued presents for payment
such original Note, HVF and the Trustee shall be entitled to recover such
replacement Note (or such payment) from the Person to whom it was delivered or
any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by HVF or the Trustee in connection therewith.


 


10

















 


(b) Upon
the issuance of any replacement Note under this Section 2.10, HVF may require
the payment by the Holder of such Note of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of the Trustee)
connected therewith.


 


(c) Every
replacement Note issued pursuant to this Section 2.10 in
replacement of any mutilated, destroyed, lost or stolen Note shall be entitled
to all the benefits of this Indenture equally and proportionately with any and
all other Notes duly issued hereunder.


 


(d) The
provisions of this Section 2.10 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.


 


Section 2.11.
Treasury Notes.


 


In determining
whether the Noteholders of the required Principal Amount of Notes have
concurred in any direction, waiver or consent, Notes owned by HVF or any
Affiliate of HVF (other than an Affiliate Issuer) shall be considered as though
they are not Outstanding, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Notes of which a Trust Officer has received written notice of
such ownership shall be so disregarded. Absent written notice to the Trustee of
such ownership, the Trustee shall not be deemed to have knowledge of the
identity of the individual owners of the Notes.


 


Section 2.12.
Book-Entry Notes.


 


(a) Unless
otherwise provided in any applicable Series Supplement, the Notes of each
Series, upon original issuance, shall be issued in the form of typewritten
Notes representing the Book-Entry Notes, to be delivered to the depository
specified in such Series Supplement (the “Depository”) which shall
be the Clearing Agency on behalf of such Series. The Notes of each Series shall,
unless otherwise provided in the applicable Series Supplement, initially
be registered on the Note Register in the name of the Clearing Agency or the
nominee of the Clearing Agency. No Note Owner will receive a definitive note
representing such Note Owner’s interest in the related Series of Notes,
except as provided in Section 2.13. Unless and until definitive,
fully registered Notes of any Series (“Definitive Notes”) have been
issued to Note Owners pursuant to Section 2.13:


 


(i)                                     the provisions of
this Section 2.12 shall be in full force and effect with respect to
each such Series;


 


(ii)                                  HVF, the Paying
Agent, the Registrar and the Trustee may deal with the Clearing Agency and
the applicable Clearing Agency Participants for all purposes (including the
payment of principal of and interest on the Notes and the giving of
instructions or directions hereunder) as the sole Holder of the Notes, and shall
have no obligation to the Note Owners;


 


11

















 


(iii)                               to the extent that the
provisions of this Section 2.12 conflict with any other provisions
of this Indenture, the provisions of this Section 2.12 shall control
with respect to each such Series;


 


(iv)                              the rights of Note Owners
of each such Series shall be exercised only through the Clearing Agency
and the applicable Clearing Agency Participants and shall be limited to those
established by law and agreements between such Note Owners and the Clearing
Agency and/or the Clearing Agency Participants, and all references in this
Indenture to actions by the Noteholders shall refer to actions taken by the
Clearing Agency upon instructions from the Clearing Agency Participants, and
all references in this Indenture to distributions, notices, reports and
statements to the Noteholders shall refer to distributions, notices, reports
and statements to the Clearing Agency, as registered holder of the Notes of
such Series for distribution to the Note Owners in accordance with the
procedures of the Clearing Agency; and


 


(v)                                 whenever this
Indenture requires or permits actions to be taken based upon instructions or
directions of Noteholders evidencing a specified percentage of the principal
amount of the Outstanding Notes, the applicable Clearing Agency shall be deemed
to represent such percentage only to the extent that it has received
instructions to such effect from Note Owners and/or their related Clearing
Agency Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Outstanding Notes and has
delivered such instructions to the Trustee.


 


Pursuant to
the Depository Agreement applicable to a Series, unless and until Definitive Notes
of such Series are issued pursuant to Section 2.13, the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of principal and
interest on the Notes to such Clearing Agency Participants.


 


(b) Whenever
notice or other communication to the Noteholders is required under this
Indenture, unless and until Definitive Notes shall have been issued to Note
Owners pursuant to Section 2.13, the Trustee and HVF shall give all
such notices and communications specified herein to be given to Noteholders to
the applicable Clearing Agency for distribution to the Note Owners.


 


Section 2.13.
Definitive Notes.


 


(a)                                  The
Notes of any Series, to the extent provided in the related Series Supplement,
upon original issuance, may be issued in the form of Definitive Notes.
The applicable Series Supplement shall set forth the legend relating to
the restrictions on transfer of such Definitive Notes and such other
restrictions as may be applicable.


 


(b)                                 With
respect to the Notes of any Series issued in the form of typewritten
Notes representing the Book-Entry Notes, if (i) (A) HVF advises the
Trustee in writing that the Clearing Agency with respect to any Series of
Notes is no longer willing or able to discharge properly its responsibilities
under the applicable Depository Agreement and (B) the Trustee or HVF is
unable to locate a qualified successor, (ii) HVF, at its option, advises
the Trustee in writing that it elects to terminate the book-entry system through
the Clearing Agency with


 


12

















 


respect to any Series of Notes Outstanding or (iii) after the
occurrence of an Amortization Event with respect to any Series of Notes
Outstanding, Note Owners holding a beneficial interest in excess of 50% of the
aggregate Principal Amount of such Series of Notes advise the Trustee and
the applicable Clearing Agency through the applicable Clearing Agency
Participants in writing that the continuation of a book-entry system through
the applicable Clearing Agency is no longer in the best interests of such Note
Owners, the Trustee shall notify all Note Owners of such Series, through the
applicable Clearing Agency Participants, of the occurrence of any such event
and of the availability of Definitive Notes to Note Owners of such Series. Upon
surrender to the Trustee of the Notes of such Series by the applicable
Clearing Agency, accompanied by registration instructions from the applicable
Clearing Agency for registration, HVF shall execute and the Trustee shall
authenticate, upon receipt of a Company Order, and deliver the Definitive Notes
in accordance with the instructions of the Clearing Agency. Neither HVF nor the
Trustee shall be liable for any delay in delivery of such instructions and may each
conclusively rely on, and shall be protected in relying on, such instructions. Upon
the issuance of Definitive Notes of such Series of Notes all references
herein to obligations imposed upon or to be performed by the applicable
Clearing Agency shall be deemed to be imposed upon and performed by the
Trustee, to the extent applicable with respect to such Definitive Notes, and
the Trustee shall recognize the Holders of the Definitive Notes of such Series as
Noteholders of such Series hereunder.


 


Section 2.14.
Cancellation.


 


HVF may at
any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which HVF may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by
the Trustee. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation. HVF may not issue new
Notes to replace Notes that it has redeemed or paid or that have been delivered
to the Trustee for cancellation. All cancelled Notes held by the Trustee shall
be disposed of in accordance with the Trustee’s standard disposition procedures
unless HVF shall direct that cancelled Notes be returned to it pursuant to a
Company Order.


 


Section 2.15.
Principal and Interest.


 


(a) The
principal of each Series of Notes shall be payable at the times and in the
amount set forth in the applicable Series Supplement and in accordance
with Section 6.1.


 


(b) Each Series of
Notes shall accrue interest as provided in the applicable Series Supplement
and such interest shall be payable on each Payment Date for such Series in
accordance with Section 6.1 and the applicable Series Supplement.


 


(c) Except
as provided in the following sentence, the Person in whose name any Note is
registered at the close of business on any Record Date with respect to a
Payment Date for such Note shall be entitled to receive the principal and
interest payable on such Payment Date notwithstanding the cancellation of such
Note upon any registration of transfer, exchange or substitution of such Note
subsequent to such Record Date. Any interest payable at maturity shall be paid
to the Person to whom the principal of such Note is payable.


 


13

















 


(d) If
HVF defaults in the payment of interest on the Notes of any Series, such
interest, to the extent paid on any date that is more than five (5) Business
Days after the applicable due date, shall, at the option of HVF, cease to be
payable to the Persons who were Noteholders of such Series on the
applicable Record Date and HVF shall pay the defaulted interest in any lawful
manner, plus, to the extent lawful, interest payable on the defaulted interest,
to the Persons who are Noteholders of such Series on a subsequent special
record date which date shall be at least five (5) Business Days prior to
the payment date, at the rate provided in this Indenture and in the Notes of
such Series. HVF shall fix or cause to be fixed each such special record date
and payment date, and at least 15 days before the special record date, HVF (or
the Trustee, in the name of and at the expense of HVF) shall mail to
Noteholders of such Series a notice that states the special record date,
the related payment date and the amount of such interest to be paid.


 


Section 2.16.
Tax Treatment.


 


HVF has
structured this Indenture and the Notes have been (or will be) issued with the
intention that the Notes will qualify under applicable tax law as indebtedness
and any entity acquiring any direct or indirect interest in any Note by
acceptance of its Notes (or, in the case of a Note Owner, by virtue of such Note
Owner’s acquisition of a beneficial interest therein) agrees to treat the Notes
(or beneficial interests therein) for purposes of Federal, state and local and
income or franchise taxes and any other tax imposed on or measured by income,
as indebtedness.


 


ARTICLE III   SECURITY


 


Section 3.1.
Grant of Security Interest.


 


(a) To
secure the Note Obligations, HVF hereby pledges, assigns, conveys, delivers,
transfers and sets over to the Trustee, for the benefit of the Noteholders, and
hereby grants to the Trustee, for the benefit of the Noteholders, a security
interest in, all of the following property now owned or at any time hereafter
acquired by HVF or in which HVF now has or at any time in the future may acquire
any right, title or interest (collectively, the “Indenture Collateral”):


 


(i)                                     the Collateral
Agreements, including, without limitation, all monies due and to become due to
HVF under or in connection with the Collateral Agreements, whether payable as
Rent, fees, expenses, costs, indemnities, insurance recoveries, damages for the
breach of any of the Collateral Agreements or otherwise, all security for
amounts payable thereunder and all rights, remedies, powers, privileges and
claims of HVF against any other party under or with respect to the Collateral Agreements
(whether arising pursuant to the terms of such Collateral Agreements or
otherwise available to HVF at law or in equity), the right to enforce any of
the Collateral Agreements and to give or withhold any and all consents,
requests, notices, directions, approvals, extensions or waivers under or with
respect to the Collateral Agreements or the obligations of any party
thereunder;


 


14

















 


(ii)                                  the Collection
Account and each HVF Exchange Account, all monies on deposit from time to time
in the Collection Account and each HVF Exchange Account and all proceeds
thereof; provided, however, that in the case of any funds held in the accounts
maintained pursuant to the Escrow Agreement that constitute Relinquished Property
Proceeds, such funds shall not constitute HVF Vehicle Collateral unless such
funds are or become Additional Subsidies;


 


(iii)                               each Series Account,
all monies on deposit from time to time in such Series Account and all
proceeds thereof;


 


(iv)                              all Investment Property;


 


(v)                                 all additional
property that may from time to time hereafter (pursuant to the terms of
any Series Supplement or otherwise) be subjected to the grant and pledge
hereof by HVF or by anyone on its behalf; and


 


(vi)                              to the extent not otherwise
included, all Proceeds and products of any and all of the foregoing and all
collateral security and guarantees given by any Person with respect to any of
the foregoing.


 


(b) To
secure the Note Obligations, HVF hereby confirms the grant, pledge, hypothecation,
assignment, conveyance, delivery and transfer to the Collateral Agent under the
Collateral Agency Agreement for the benefit of the Trustee, on behalf of the
Noteholders, of a continuing first priority perfected Lien on all right, title
and interest of HVF in, to and under the HVF Vehicle Collateral.


 


(c) The
foregoing grant is made in trust to secure the Note Obligations and to secure
compliance with the provisions of this Indenture and any Series Supplement,
all as provided in this Indenture. The Trustee, as trustee on behalf of the
Noteholders, acknowledges such grant, accepts the trusts under this Indenture
in accordance with the provisions of this Indenture and subject to Section 10.1
and 10.2, agrees to perform its duties required in this Indenture. The
Collateral shall secure the Notes equally and ratably without prejudice,
priority or distinction (except, with respect to any Series of Notes, as
otherwise stated in the applicable Series Supplement).


 


Section 3.2.
Certain Rights and Obligations of HVF Unaffected.


 


(a) Notwithstanding
the assignment and security interest so granted to the Trustee on behalf of the
Noteholders, HVF shall nevertheless be permitted, subject to the Trustee’s
right to revoke such permission in the event of an Amortization Event with
respect to any Series of Notes Outstanding and subject to the provisions
of Section 3.3, to give all consents, requests, notices,
directions, approvals, extensions or waivers, if any, which are required to be
given in the normal course of business (which does not include waivers of
default under any of the Collateral Agreements or any of the Manufacturer
Programs).


 


(b) The
assignment of the Collateral to the Trustee on behalf of the Noteholders shall
not (i) relieve HVF from the performance of any term, covenant, condition
or agreement on HVF’s part to be performed or observed under or in
connection with any of the Collateral


 


15

















 


Agreements or any of the
Manufacturer Programs or (ii) impose any obligation on the Trustee or any
of the Noteholders to perform or observe any such term, covenant,
condition or agreement on HVF’s part to be so performed or observed or
impose any liability on the Trustee or any of the Noteholders for any act or
omission on the part of HVF or from any breach of any representation or
warranty on the part of HVF.


 


(c) HVF
hereby agrees to indemnify and hold harmless the Trustee (including its
directors, officers, employees and agents) from and against any and all losses,
liabilities (including liabilities for penalties), claims, demands, actions,
suits, judgments, reasonable out-of-pocket costs and expenses arising out of or
resulting from the assignment granted hereby or by the Collateral Agency
Agreement or any Assignment Agreement, whether arising by virtue of any act or
omission on the part of HVF or otherwise, including, without limitation,
the reasonable out-of-pocket costs, expenses, and disbursements (including
reasonable attorneys’ fees and expenses) incurred by the Trustee in enforcing
this Indenture or preserving any of its rights to, or realizing upon, any of
the Collateral; provided, however, the foregoing indemnification
shall not extend to any action by the Trustee which constitutes gross
negligence or willful misconduct by the Trustee or any other indemnified person
hereunder. The indemnification provided for in this Section 3.2
shall survive the removal of, or a resignation by, such Person as Trustee as
well as the termination of this Indenture, any Series Supplement, the
Collateral Agency Agreement or any Assignment Agreement.


 


Section 3.3.
Performance of Collateral Agreements..


 


Upon the
occurrence of a default or breach by any Person party to a Collateral Agreement
or a Manufacturer Program, promptly following a request from the Trustee or the
Collateral Agent to do so and at HVF’s expense, HVF agrees to take all such
lawful action as permitted under this Indenture as the Trustee or the
Collateral Agent may request to compel or secure the performance and observance
by:  (i) the Hertz Nominee, the HFC
Nominee, Hertz Vehicles LLC, HGI, the Administrator, the Servicer, the Lessee,
the Intermediary or the Escrow Agent or any other party to any of the
Collateral Agreements of its obligations to HVF and (ii) a Manufacturer
under a Manufacturer Program of its obligations to HVF, including, without
limitation, any obligations of such Manufacturer to HGI or Hertz, as
applicable, that have been assigned to HVF, in each case in accordance with the
applicable terms thereof, and to exercise any and all rights, remedies, powers
and privileges lawfully available to HVF to the extent and in the manner
directed by the Trustee or the Collateral Agent, as applicable, including,
without limitation, the transmission of notices of default and the institution
of legal or administrative actions or proceedings to compel or secure
performance by the Hertz Nominee, the HFC Nominee, Hertz Vehicles LLC, HGI, the
Administrator, the Servicer, the Lessee, the Intermediary or the Escrow Agent (or
such other party to any of the Collateral Agreements) or by a Manufacturer
under a Manufacturer Program, of their respective obligations thereunder. If (i) HVF
shall have failed, within 30 days of receiving the direction of the Trustee or
the Collateral Agent, as applicable, to take commercially reasonable action to
accomplish such directions of the Trustee or the Collateral Agent, as
applicable, (ii) HVF refuses to take any such action or (iii) the
Trustee or the Collateral Agent, as applicable, reasonably determines that such
action must be taken immediately, in any such case the Trustee or the
Collateral Agent, as applicable, may, but shall not be obligated to, take, at
the expense of HVF, such previously directed action and any related action
permitted under this Indenture which the Trustee or the Collateral Agent, as


 


16

















 


applicable, thereafter determines is appropriate (without the need
under this provision or any other provision under this Indenture to direct HVF
to take such action), on behalf of HVF and the Noteholders.


 


Section 3.4.
Release of Indenture Collateral.


 


(a) The
Trustee shall, when required by the provisions of this Indenture, execute
instruments to release property from the lien of this Indenture, or convey the
Trustee’s interest in the same, in a manner and under circumstances that are
not inconsistent with the provisions of this Indenture. No party relying upon
an instrument executed by the Trustee as provided in this Section 3.4
shall be bound to ascertain the Trustee’s authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.


 


(b) In
accordance with the Collateral Agency Agreement, from and after the earliest of
(i) in the case of a Program Vehicle subject to a Repurchase Program, the
Turnback Date for such Program Vehicle, (ii) in the case of a Program
Vehicle subject to a Guaranteed Depreciation Program, the date of sale of such
Program Vehicle by an auction dealer to a third party, (iii) in the case
of a Non-Program Vehicle, the date of the deposit of the Disposition Proceeds
of such Non-Program Vehicle by or on behalf of HVF into the Collection Account
or an HVF Exchange Account, (iv) in the case of a Transferred HVF Vehicle,
the date the related Transfer Payment is deposited into the Collection Account
or an HVF Exchange Account, (v) in the case of a Casualty, the date the
related Casualty Payment is deposited into the Collection Account and (vi) in
the case of a Rejected Vehicle, the date the related Rejected Vehicle Payment
is deposited into the Collection Account, such HVF Vehicle and the related
Certificate of Title shall automatically be released from the lien of the
Collateral Agency Agreement. Any Lien of the Trustee on the HVF Vehicles shall
automatically be deemed to be released concurrently with any release of the
Lien of the Collateral Agent as provided in the Collateral Agency Agreement.


 


(c) The
Trustee shall, at such time as there is no Note Outstanding, release any remaining
portion of the Indenture Collateral from the lien of this Indenture and release
to HVF any funds then on deposit in the Collection Account and any Series Accounts.
The Trustee shall release property from the lien of this Indenture pursuant to
this Section 3.4(c) only upon receipt of a Company Order
accompanied by an Officer’s Certificate and an Opinion of Counsel meeting the
applicable requirements of Section 13.3.


 


Section 3.5.
Opinions of Counsel.


 


The Trustee
shall receive at least seven days’ notice when requested by HVF to take any
action pursuant to Section 3.4(a), accompanied by copies of any
instruments involved, and the Trustee may also require as a condition of
such action, an Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee, stating the legal effect of any such action,
outlining the steps required to complete the same, and concluding that all such
action will not materially and adversely impair the security for the Notes or
the rights of the Noteholders; provided, however that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Indenture Collateral. Counsel rendering any such opinion may rely,


 


17

















 


without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Trustee in connection with any
such action.


 


Section 3.6.
Stamp, Other Similar Taxes and Filing Fees.


 


HVF shall
indemnify and hold harmless the Trustee, the Collateral Agent and each
Noteholder from any present or future claim for liability for any stamp or
other similar tax and any penalties or interest with respect thereto, that may be
assessed, levied or collected by any jurisdiction in connection with this
Indenture or any Collateral. HVF shall pay any and all amounts in respect of,
all search, filing, recording and registration fees, taxes, excise taxes and
other similar imposts that may be payable or determined to be payable in
respect of the execution, delivery, performance and/or enforcement of this
Indenture.


 


ARTICLE IV   REPORTS


 


Section 4.1.
Reports and Instructions to Trustee.


 


(a) Daily
Collection Reports. On each Business Day commencing on the Initial Closing
Date, HVF shall prepare and maintain, or cause to be prepared and maintained, a
record (each, a “Daily Collection Report”) setting forth the aggregate
of the amounts deposited in the Collection Account or an HVF Exchange Account
on the immediately preceding Business Day, which shall consist of:  (A) the aggregate amount of payments
received from Manufacturers and/or auction dealers under Manufacturer Programs
related to Program Vehicles and in each case deposited in the Collection
Account or an HVF Exchange Account, plus (B) the aggregate amount of
proceeds received from third parties (other than Manufacturers and auction
dealers) with respect to the sale of HVF Vehicles and in each case deposited in
the Collection Account or an HVF Exchange Account, plus (C) the aggregate
amount of other Collections deposited in the Collection Account or an HVF
Exchange Account. HVF shall deliver a copy of the Daily Collection Report for
each Business Day to the Trustee.


 


(b) Reports
and Certificates. Promptly following delivery to HVF, HVF shall forward to
the Trustee copies of all reports, certificates, information or other materials
delivered to HVF pursuant to the HVF Lease.


 


(c) Monthly
Servicing Certificate. On or before the fourth Business Day prior to each
Payment Date (unless otherwise agreed by the Trustee), HVF shall furnish to the
Trustee and the Paying Agent a certificate substantially in the form of Exhibit A
(each a “Monthly Servicing Certificate”).


 


(d) Monthly
Noteholders’ Statement. On or before the fourth Business Day prior to each
Payment Date (unless otherwise agreed by the Trustee), HVF shall furnish to the
Trustee a Monthly Noteholders’ Statement with respect to each Series of
Notes substantially in the form provided in the applicable Series Supplement.


 


(e) Monthly
Collateral Certificate. On or before each Payment Date, HVF shall furnish
to the Trustee and the Collateral Agent an Officer’s Certificate of HVF to the
effect that, except as stated therein, (i) the HVF Vehicles and all other
Collateral is free and clear of all Liens, other than Permitted Liens, and (ii) the
aggregate amount of all vicarious liability claims


 


18

















 


outstanding against HVF as of
the immediately preceding Determination Date is less than $5 million. If the
aggregate amount of vicarious liability claims outstanding against HVF exceeds
$5 million, the Officer’s Certificate delivered pursuant to this Section 4.1(e) shall
also contain a schedule describing all of the vicarious liability claims
then outstanding against HVF.


 


(f) Quarterly
Compliance Certificates. On the Payment Date in each of March, June, September and
December, commencing in December 2002, HVF shall deliver to the Trustee an
Officer’s Certificate of HVF to the effect that, except as provided in a notice
delivered pursuant to Section 8.8, no Amortization Event or
Potential Amortization Event with respect to any Series of Notes
Outstanding has occurred or is continuing and no Operating Lease Event of
Default or Potential Operating Lease Event of Default has occurred or is
continuing.


 


(g) Non-Program
Vehicle Report. On the Payment Date in May of each year, commencing in
May 2003, HVF shall cause a nationally recognized firm of independent
certified public accountants to furnish a report to the Trustee and the Rating
Agencies to the effect that they have performed certain agreed upon procedures
with respect to the calculations of (i) the Disposition Proceeds received
by HVF from the sale or other disposition of all Non-Program Vehicles (other
than Casualties) sold or otherwise disposed of during the Related Month, (ii) the
respective Net Book Values of such Non-Program Vehicles and (iii) the
Market Values of such Non-Program Vehicles on the date of such sale or other
disposition.


 


(h) Verification
of Title. On or prior to May 30 of each year, commencing May 30,
2003, HVF shall cause a nationally recognized firm of independent certified
public accountants to furnish a report to the Trustee and the Rating Agencies
to the effect that they have performed certain agreed upon procedures on a
statistical sample of the Certificates of Title of the HVF Vehicles designed to
provide a ninety-five percent (95%) confidence level confirming that the HVF
Vehicles are titled in the name of Hertz Vehicles LLC and the Certificates of Title
show a first lien in the name of the Collateral Agent, except for such
exceptions as shall be set forth in such report (which exceptions may include
the existence of the Initial Hertz Vehicles and the Service Vehicles).


 


(i) Additional
Information. From time to time such additional information regarding the
financial position, results of operations or business of Hertz, Hertz Vehicles
LLC, HGI or HVF as the Trustee may reasonably request to the extent that
such information is available to HVF pursuant to the Related Documents.


 


(j) Instructions
as to Withdrawals and Payments. HVF will furnish, or cause to be furnished,
to the Trustee or the Paying Agent, as applicable, written instructions to make
withdrawals and payments from the Collection Account, any HVF Exchange Account
and any other accounts specified in a Series Supplement and to make
drawings under any Enhancement, as contemplated herein and in any Series Supplement.
The Trustee and the Paying Agent shall promptly follow any such written
instructions.


 


Section 4.2.
Reports to Noteholders.


 


(a) On
each Payment Date, the Paying Agent shall forward to each Noteholder of record
as of the immediately preceding Record Date of each Series of Notes
Outstanding the


 


19

















 


Monthly Noteholders’ Statement
with respect to such Series, with a copy to the Rating Agencies and any
Enhancement Provider with respect to such Series.


 


(b) Annual
Noteholders’ Tax Statement. Unless otherwise specified in the applicable Series Supplement,
on or before January 31 of each calendar year, beginning with calendar
year 2003, the Paying Agent shall furnish to each Person who at any time during
the preceding calendar year was a Noteholder a statement prepared by HVF
containing the information which is required to be contained in the Monthly
Noteholders’ Statements with respect to each Series of Notes aggregated
for such calendar year or the applicable portion thereof during which such
Person was a Noteholder, together with such other customary information
(consistent with the treatment of the Notes as debt) as HVF deems necessary or
desirable to enable the Noteholders to prepare their tax returns (each such
statement, an “Annual Noteholders’ Tax Statement”). Such obligations of
HVF to prepare and the Paying Agent to distribute the Annual Noteholders’ Tax
Statement shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Paying Agent
pursuant to any requirements of the Code as from time to time in effect.


 


Section 4.3.
Rule 144A Information.


 


For so long as
any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under
the Securities Act, HVF agrees to provide to any Noteholder or Note Owner and
to any prospective purchaser of Notes designated by such Noteholder or Note
Owner upon the request of such Noteholder or Note Owner or prospective
purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the conditions set forth in Rule 144A(d)(4) under
the Securities Act.


 


Section 4.4.
Administrator.


 


Pursuant to
the Administration Agreement, the Administrator has agreed to provide certain
reports, instructions and other services on behalf of HVF. The Noteholders by
their acceptance of the Notes consent to the provision of such reports by the
Administrator in lieu of HVF.


 


ARTICLE V   ALLOCATION AND APPLICATION OF
COLLECTIONS


 


Section 5.1.
Collection Account.


 


(a) Establishment
of Collection Account. On or prior to the Initial Closing Date, HVF, the
Collection Account Securities Intermediary and the Trustee shall have entered
into the Collection Account Control Agreement pursuant to which the Collection
Account shall be established and maintained for the benefit of the Noteholders.
If at any time a Trust Officer obtains knowledge that the Collection Account is
no longer an Eligible Deposit Account, the Trustee shall, within ten (10) Business
Days of obtaining such knowledge, cause the Collection Account to be moved to a
Qualified Institution or a Qualified Trust Institution and cause the depositary
maintaining the new Collection Account to assume the obligations of the
existing Collection Account Securities Intermediary under the Collection
Account Control Agreement.


 


20

















 


(b) Administration
of the Collection Account. All amounts held in the Collection Account shall
be invested in Permitted Investments in accordance with the Collection Account
Control Agreement at the written direction of HVF. Investments of funds on
deposit in administrative sub-accounts of the Collection Account established in
respect of a particular Series of Notes shall be required to mature on or
before the dates specified in the applicable Series Supplement. In the
absence of written investment instructions hereunder, funds on deposit in the
Collection Account shall remain uninvested. HVF shall not direct the disposal
of any Permitted Investments prior to the maturity thereof to the extent such
disposal would result in a loss of the initial purchase price of such Permitted
Investment.


 


(c) Earnings
from Collection Account. All interest and earnings (net of losses and
investment expenses) paid on funds on deposit in the Collection Account shall
be deemed to be available and on deposit for distribution.


 


(d) Establishment
of Series Accounts. To the extent specified in the Series Supplement
with respect to any Series of Notes, the Trustee may establish and
maintain one or more Series Accounts and/or administrative sub-accounts of
the Collection Account to facilitate the proper allocation of Collections in
accordance with the terms of such Series Supplement.


 


Section 5.2.
Collections and Allocations.


 


(a) Collections
in General. Until this Indenture is terminated pursuant to Section 11.1,
HVF shall, and the Trustee is authorized (upon written instructions) to, cause
all Collections due and to become due to HVF or the Trustee, as the case may be,
to be deposited in the following manner:


 


(i)                                     all amounts due
under or in connection with the HVF Vehicle Collateral, including, without
limitation, amounts due from Manufacturers and their related auctions dealers
under their Manufacturer Programs with respect to the HVF Vehicles, other than
Excluded Payments and Permitted Check Payments, shall be deposited directly
into a Collateral Account by the Manufacturers and the related auction dealers
and shall be withdrawn from such Collateral Account and deposited either into
the Collection Account or, in the case of Relinquished Property Proceeds, an
HVF Exchange Account for application in accordance with Section 4.2 of the
Master Exchange Agreement within seven Business Days of the deposit thereof
into such Collateral Account;


 


(ii)                                  all amounts
representing the proceeds from sales of HVF Vehicles to third parties, other
than the Manufacturers or their auction dealers, and all amounts received by
the Servicer in the form of Permitted Check Payments shall be deposited
into a Collateral Account within two Business Days of receipt by the Servicer
and shall be withdrawn from a Collateral Account and either deposited into the
Collection Account or, in the case of Relinquished Property Proceeds, an HFV
Exchange Account for application in accordance with Section 4.2 of the
Master Exchange Agreement within seven Business Days of the deposit thereof
into a Collateral Account;


 


21

















 


(iii)                               all insurance proceeds
and warranty payments in respect of the HVF Vehicles, other than Excluded
Payments, shall be deposited into a Collateral Account within two Business Days
of receipt by the Servicer and shall be withdrawn from a Collateral Account and
deposited into the Collection Account within seven Business Days of the deposit
thereof into a Collateral Account;


 


(iv)                              all amounts payable to
HVF pursuant to the HVF Lease shall be paid directly to the Trustee for deposit
into the Collection Account;


 


(v)                                 all payments of
Transfer Price by HGI in respect of Transferred HVF Vehicles and Manufacturer
Receivables, all Rejected Vehicle Payments by HGI or the Servicer and all other
amounts payable by HGI to HVF pursuant to the Purchase Agreement shall be paid
directly to the Trustee for deposit into the Collection Account;


 


(vi)                              all amounts payable by
the Nominee pursuant to Section 11(b) of the Nominee Agreement shall
be deposited directly into a Collateral Account by the Nominee and shall be
withdrawn from a Collateral Account and deposited into the Collection Account
within seven Business Days of the deposit thereof into a Collateral Account;


 


(vii)                           all amounts payable by the
Hertz Nominee pursuant to Section 10 of the Hertz Nominee Agreement shall
be deposited directly into a Collateral Account by the Hertz Nominee and shall
be withdrawn from a Collateral Account and deposited into the Collection
Account within seven Business Days of the deposit thereof into a Collateral
Account;


 


(viii)                        all amounts payable by the HFC
Nominee pursuant to Section 10 of the HFC Nominee Agreement shall be
deposited directly into a Collateral Account by the HFC Nominee and shall be
withdrawn from a Collateral Account and deposited into the Collection Account
within seven Business Days of the deposit thereof into a Collateral Account;
and


 


(ix)                                all Collections from
any other source shall be either paid directly into the Collection Account at
such times as such amounts are due or deposited by the Servicer into the
Collection Account within seven Business Days after deposit thereof into a
Collateral Account.


 


Notwithstanding
the foregoing, (x) unless an Amortization Event with respect to any Series of
Notes Outstanding has occurred and is continuing, insurance proceeds and
warranty payments with respect to the HVF Vehicles shall not be required to be
deposited in a Collateral Account or the Collection Account, and may be
held by HVF or paid to Hertz and (y) unless there has been a failure by HGI to
make a payment to HVF on account of an Invoice Adjustment when due in
accordance with Section 1.05(d) of the Purchase Agreement and such
failure is continuing, payments by Manufacturers on account of Invoice
Adjustments shall not be required to be deposited in a Collateral Account or
the Collection Account and may be held by HGI. HVF agrees that if any
Collections shall be received by HVF in an account other than a Collateral
Account, an HVF Exchange Account or the Collection Account or in any other
manner, such


 


22

















 


monies,
instruments, cash and other proceeds will not be commingled by HVF with any of
its other funds or property, if any, but will be held separate and apart therefrom
and shall be held in trust by HVF for, and immediately paid over to the Trustee
or the Collateral Agent, as applicable, with any necessary endorsement. All
Collections deposited into a Collateral Account shall be allocated and
distributed to the Trustee as provided in the Collateral Agency Agreement. All
monies, instruments, cash and other proceeds received by the Trustee pursuant
to this Indenture (including amounts received from the Collateral Agent) shall
be immediately deposited in the Collection Account or an HVF Exchange Account
and shall be applied as provided in this Article 5 or Article 5A.


 


(b) Allocations
for Noteholders. On each day on which Collections are deposited into the
Collection Account, HVF shall allocate Collections deposited into the
Collection Account in accordance with this Article 5 and shall
instruct the Trustee in writing to withdraw the required amounts from the
Collection Account and make the required deposits in any Series Account in
accordance with this Article 5, as modified by any Series Supplement.
HVF shall make such deposits or payments on the date indicated therein in
immediately available funds or as otherwise provided in the applicable Series Supplement.
If, on any date
on which Collections are deposited into the Collection Account or Collections
are otherwise on deposit in the Collection Account, there are unpaid Ford
Reimbursement Obligations, HVF shall apply any such Collections not allocable
to any Series pursuant to a Series Supplement to pay such unpaid Ford
Reimbursement Obligations by instructing the Trustee in writing to withdraw
from the Collection Account and pay to Ford an amount equal to the lesser of
such unpaid Ford Reimbursement Obligations and the amount of Collections
deposited into or on deposit in the Collection Account on such date that are
not allocable to any Series pursuant to any Series Supplement.


 


(c) Sharing
Collections. In the manner described in the applicable Series Supplement,
to the extent that Principal Collections that are allocated to any Series on
a Payment Date are not needed to make payments to Noteholders of such Series or
required to be deposited in a Series Account for such Series on such
Payment Date, such Principal Collections may, at the direction of HVF, be
applied to cover principal payments due to or for the benefit of Noteholders of
another Series. Any such reallocation will not result in a reduction in the
Principal Amount of the Series to which such Principal Collections were
initially allocated.


 


(d) Unallocated
Principal Collections. If, after giving effect to Section 5.2(c),
Principal Collections allocated to any Series on any Payment Date are in
excess of the amount required to be paid in respect of such Series on such
Payment Date, then any such excess Principal Collections shall be allocated to
HVF or such other party as may be entitled thereto as set forth in any Series Supplement.
If, on any date
on which Principal Collections are allocated to HVF pursuant to this Section 5.2(d),
there are unpaid Ford Reimbursement Obligations, HVF shall apply any such
Principal Collections to pay such unpaid Ford Reimbursement Obligations by
instructing the Trustee in writing to withdraw from the applicable Series Account
and pay to Ford an amount equal to the lesser of such unpaid Ford Reimbursement
Obligations and the amount of such Principal Collections allocated to HVF
pursuant to this Section 5.2(d).


 


23

















 


Section 5.3.
Determination of Monthly Interest.


 


Monthly
payments of interest on each Series of Notes shall be determined,
allocated and distributed in accordance with the procedures set forth in the
applicable Series Supplement.


 


Section 5.4.
Determination of Monthly Principal.


 


Monthly
payments of principal of each Series of Notes shall be determined,
allocated and distributed in accordance with the procedures set forth in the
applicable Series Supplement. However, all principal of or interest on any
Series of Notes shall be due and payable no later than the Series Termination
Date with respect to such Series.


 


[THE REMAINDER
OF ARTICLE 5 IS RESERVED AND MAY BE SPECIFIED IN ANY SUPPLEMENT WITH
RESPECT TO ANY SERIES.]


 


ARTICLE 5A.
HVF EXCHANGE ACCOUNT


 


Section 5A.1.
HVF Exchange Account. On or prior to the Restatement Effective Date, the
Trustee shall establish and maintain for the benefit of the Noteholders one or
more HVF Exchange Accounts, each in the name of the Trustee or, prior to the
date of termination of the Master Exchange Agreement pursuant to Section 7.01(b) thereof,
the joint name of the Trustee and the Intermediary, that shall be administered
and operated as provided in the Master Exchange Agreement. Each HVF Exchange
Account shall be maintained (i) with a Qualified Institution or (ii) as
a segregated trust account with a Qualified Trust Institution. If any HVF
Exchange Account is not maintained in accordance with the previous sentence,
then within ten (10) Business Days of obtaining knowledge of such fact,
the Trustee and the Intermediary shall establish a new HVF Exchange Account
which complies with such sentence and transfer into the new HVF Exchange
Account all funds from the non-qualifying HVF Exchange Account. Initially, each
HVF Exchange Account will be established with the Trustee.


 


ARTICLE VI   DISTRIBUTIONS


 


Section 6.1.
Distributions in General.


 


(a) Unless
otherwise specified in the applicable Series Supplement, on each Payment
Date, the Paying Agent shall pay to the Noteholders of each Series of
record on the preceding Record Date the amounts payable thereto hereunder by
check mailed first-class postage prepaid to such Noteholder at the address
for such Noteholder appearing in the Note Register except that with respect to
Notes registered in the name of a Clearing Agency or its nominee, such amounts
shall be payable by wire transfer of immediately available funds released by
the Paying Agent from the applicable Series Account no later than Noon
(New York City time) on the Payment Date for credit to the account designated
by such Clearing Agency or its nominee, as applicable; provided, however,
that, the final principal payment due on a Note shall only be paid to the
Noteholder of a Definitive Note on due presentment of such Definitive Note for
cancellation in accordance with the provisions of the Note.


 


24

















 


(b) Unless
otherwise specified in the applicable Series Supplement (i) all
distributions to Noteholders of all Classes within a Series of Notes will
have the same priority and (ii) in the event that on any date of
determination the amount available to make payments to the Noteholders of a Series is
not sufficient to pay all sums required to be paid to such Noteholders on such
date, then each Class of Noteholders will receive its ratable share (based
upon the aggregate amount due to such Class of Noteholders) of the
aggregate amount available to be distributed in respect of the Notes of such
Series.


 


ARTICLE VII   REPRESENTATIONS AND WARRANTIES


 


HVF hereby
represents and warrants, for the benefit of the Trustee and the Noteholders, as
follows as of the Restatement Effective Date and each Series Closing Date:


 


Section 7.1.
Existence and Power.


 


HVF (a) is
a limited liability company duly formed, validly existing and in good standing
under the laws of the State of Delaware, (b) is duly qualified to do
business as a foreign limited liability company and in good standing under the
laws of each jurisdiction where the character of its property, the nature of
its business or the performance of its obligations under the Related Documents
make such qualification necessary, except to the extent that the failure to so
qualify is not reasonably likely to result in a Material Adverse Effect, and (c) has
all limited liability company powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted and for purposes of the transactions contemplated by this Indenture
and the other Related Documents.


 


Section 7.2.
Limited Liability Company and Governmental Authorization.


 


The execution,
delivery and performance by HVF of this Indenture, the applicable Series Supplement
and the other Related Documents to which it is a party (a) is within HVF’s
limited liability company powers and has been duly authorized by all necessary
limited liability company action, (b) requires no action by or in respect
of, or filing with, any Governmental Authority which has not been obtained and (c) does
not contravene, or constitute a default under, any Requirements of Law with
respect to HVF or any Contractual Obligation with respect to HVF or result in
the creation or imposition of any Lien on any property of HVF, except for Liens
created by this Indenture or the other Related Documents. This Indenture and
each of the other Related Documents to which HVF is a party has been executed
and delivered by a duly authorized officer of HVF.


 


Section 7.3.
No Consent.


 


No consent,
action by or in respect of, approval or other authorization of, or
registration, declaration or filing with, any Governmental Authority or other
Person is required for the valid execution and delivery by HVF of this Base
Indenture, any Series Supplement or any Related Document or for the
performance of any of HVF’s obligations hereunder or thereunder other than such
consents, approvals, authorizations, registrations, declarations or filings as
shall have been obtained by HVF prior to the Restatement Effective Date or as
contemplated in Section 7.13.


 


25

















 


Section 7.4.
Binding Effect.


 


This Indenture
and each other Related Document is a legal, valid and binding obligation of HVF
enforceable against HVF in accordance with its terms (except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors’ rights generally or by general equitable principles, whether
considered in a proceeding at law or in equity and by an implied covenant of
good faith and fair dealing).


 


Section 7.5.
Litigation.


 


There is no
action, suit or proceeding pending against or, to the knowledge of HVF,
threatened against or affecting HVF before any court or arbitrator or any
Governmental Authority with respect to which there is a reasonable possibility
of an adverse decision that would materially adversely affect the financial
condition, business, assets or operations of HVF or which in any manner draws
into question the validity or enforceability of this Indenture, any Series Supplement
or any other Related Document or the ability of HVF to perform its
obligations hereunder or thereunder.


 


Section 7.6.
No ERISA Plan.


 


HVF has not
established and does not maintain or contribute to any Plan that is covered by
Title IV of ERISA.


 


Section 7.7.
Tax Filings and Expenses.


 


HVF has filed
all federal, state and local tax returns and all other tax returns which, to
the knowledge of HVF, are required to be filed (whether informational returns
or not), and has paid all taxes due, if any, pursuant to said returns or
pursuant to any assessment received by HVF, except such taxes, if any, as are
being contested in good faith and for which adequate reserves have been set
aside on its books. HVF has paid all fees and expenses required to be paid by
it in connection with the conduct of its business, the maintenance of its
existence and its qualification as a foreign limited liability company
authorized to do business in each State in which it is required to so qualify,
except to the extent that the failure to pay such fees and expenses is not
reasonably likely to result in a Material Adverse Effect.


 


Section 7.8.
Disclosure.


 


All
certificates, reports, statements, documents and other information furnished to
the Trustee by or on behalf of HVF pursuant to any provision of this Indenture
or any Related Document, or in connection with or pursuant to any amendment or
modification of, or waiver under, this Indenture or any Related Document,
shall, at the time the same are so furnished, be complete and correct to the
extent necessary to give the Trustee true and accurate knowledge of the subject
matter thereof in all material respects, and the furnishing of the same to the
Trustee shall constitute a representation and warranty by HVF made on the date
the same are furnished to the Trustee to the effect specified herein.


 


26

















 


Section 7.9.
Investment Company Act.


 


HVF is not,
and is not controlled by, an “investment company” within the meaning of, and is
not required to register as an “investment company” under, the Investment
Company Act.


 


Section 7.10.
Regulations T, U and X.


 


The proceeds
of the Notes will not be used to purchase or carry any “margin stock” (as
defined or used in the regulations of the Board of Governors of the Federal
Reserve System, including Regulations T, U and X thereof). HVF is not engaged
in the business of extending credit for the purpose of purchasing or carrying
any margin stock.


 


Section 7.11.
Solvency.


 


Both before and
after giving effect to the transactions contemplated by this Indenture and the
other Related Documents, HVF is solvent within the meaning of the Bankruptcy
Code and HVF is not the subject of any voluntary or involuntary case or
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy or insolvency law and no Event of
Bankruptcy has occurred with respect to HVF.


 


Section 7.12.
Ownership of Limited Liability Company Interests; Subsidiary.


 


All of the
issued and outstanding limited liability company interests of HVF are owned by
Hertz, all of which limited liability company interests have been validly
issued, are fully paid and non-assessable and are owned of record by Hertz,
free and clear of all Liens other than Permitted Liens; provided, however,
that such limited liability company interests may be pledged to the ABL
Collateral Agent pursuant to the ABL Guarantee and Collateral Agreement for the
benefit of the secured parties thereunder. HVF has no subsidiaries and owns no
capital stock of, or other equity interest in, any other Person, other than
Hertz Vehicles LLC.


 


Section 7.13.
Security Interests.


 


(a) HVF
owns and has good and marketable title to the Collateral, free and clear of all
Liens other than Permitted Liens. The Manufacturer Receivables and HVF’s rights
under the Collateral Agreements constitute general intangibles under the
applicable UCC. This Indenture constitutes a valid and continuing Lien on the
Indenture Collateral in favor of the Trustee on behalf of the Noteholders,
which Lien on the Indenture Collateral has been perfected and is prior to all
other Liens (other than Permitted Liens), and the Collateral Agency Agreement
constitutes a valid and continuing Lien on the HVF Vehicle Collateral in favor
of the Collateral Agent, which Lien on the HVF Vehicle Collateral has been
perfected and is prior to all other Liens (other than Permitted Liens) and, in
each case, is enforceable as such as against creditors of and purchasers from HVF
in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors’ rights generally or by general
equitable principles, whether considered in a proceeding at law or in equity
and by an implied covenant of good faith and fair


 


27

















 


dealing. HVF has received all
consents and approvals required by the terms of the Collateral to the pledge of
the Collateral to the Trustee or the Collateral Agent, as the case may be.


 


(b) Other
than the security interest granted to the Trustee hereunder and the Collateral
Agent under the Collateral Agency Agreement, HVF has not pledged, assigned,
sold or granted a security interest in the Collateral, the Account Collateral,
the Investment Property or the General Intangibles Collateral. All action
necessary (including the filing of UCC-1 financing statements, the assignment
of rights under the Manufacturer Programs to the Collateral Agent under the
Assignment Agreements and the notation on the Certificates of Title for all HVF
Vehicles (other than the Initial Hertz Vehicles and the Service Vehicles) of
the Collateral Agent’s Lien for the benefit of the Noteholders) to protect and
perfect the Trustee’s security interest in the Indenture Collateral and the
Collateral Agent’s security interests in the HVF Vehicle Collateral has been
duly and effectively taken. No security agreement, financing statement,
equivalent security or lien instrument or continuation statement listing HVF as
debtor covering all or any part of the Collateral is on file or of record
in any jurisdiction, except such as may have been filed, recorded or made
by HVF in favor of the Trustee on behalf of the Noteholders in connection with
this Indenture or the Collateral Agent in connection with the Collateral Agency
Agreement, and HVF has not authorized any such filing.


 


(c) HVF’s
legal name is Hertz Vehicle Financing LLC and its location within the meaning
of Section 9-307 of the applicable UCC is the State of Delaware.


 


(d) Except for a change made pursuant to Section 8.19,
(i) HVF’s sole place of business and chief executive office shall be at,
and the place where its records concerning the Collateral are kept is at: 225
Brae Boulevard, Park Ridge, New Jersey 07656 and (ii) HVF’s jurisdiction of organization is Delaware. HVF does
not transact, and has not transacted, business under any other name.


 


(e) All authorizations in this Indenture for the
Trustee to endorse checks, instruments and securities and to execute financing
statements, continuation statements, security agreements and other instruments
with respect to the Indenture Collateral and to take such other actions with
respect to the Indenture Collateral authorized by this Indenture are powers
coupled with an interest and are irrevocable.


 


(f) This
Base Indenture creates a valid and continuing Lien (as defined in the New York
UCC) in the Account Collateral, the Investment Property and the General
Intangibles Collateral in favor of the Trustee on behalf of the Trustee for the
benefit of the Noteholders, which Lien is prior to all other Liens (other than
Permitted Liens) and is enforceable as such as against creditors of and
purchasers from HVF in accordance with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors’ rights generally or by general equitable principles,
whether considered in a proceeding at law or in equity and by an implied
covenant of good faith and fair dealing. All action necessary to perfect such
first-priority security interest has been duly taken.


 


(g) The General Intangibles Collateral constitutes “general
intangibles” within the meaning of the New York UCC.


 


28

















 


(h) HVF
owns and has good and marketable title to the Account Collateral, the
Investment Property and the General Intangibles Collateral free and clear of
any Liens (other than Permitted Liens), claim or encumbrance of any Person.


 


(i) HVF
has caused or will have caused, within ten days, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest in
the General Intangibles Collateral and the Investment Property granted to the
Trustee in favor of the Secured Parties hereunder.


 


(j) HVF has
not authorized the filing of and is not aware of any financing statements
against HVF that include a description of collateral covering the Account
Collateral, the Investment Property or the General Intangibles Collateral other
than any financing statement relating to the security interest granted to the
Trustee in favor of the Trustee for the benefit of the Noteholders hereunder or
that has been terminated. HVF is not aware of any judgment or tax lien filings
against HVF.


 


(k) HVF is a
Registered Organization.


 


Section 7.14.
Related Documents.


 


The Collateral
Agreements are in full force and effect. There are no outstanding Servicer
Defaults or Operating Lease Events of Default nor have events occurred which,
with the giving of notice, the passage of time or both, would constitute a
Servicer Default or Operating Lease Event of Default.


 


Section 7.15.
No Manufacturer Events of Default.


 


There are no
outstanding Manufacturer Events of Default with respect to any Manufacturer of
an Eligible Program Vehicle, nor have any events occurred which, with the
giving of notice, the passage of time or both, would constitute such a
Manufacturer Event of Default.


 


Section 7.16.
Non-Existence of Other Agreements.


 


Other than as
permitted by Section 8.22, (i) HVF is not a party to any
contract or agreement of any kind or nature and (ii) HVF is not subject to
any material obligations or liabilities of any kind or nature in favor of any
third party, including, without limitation, Contingent Obligations. HVF has not
engaged in any activities since its formation (other than those incidental to
its formation, the authorization and the issue of the initial Series of
Notes, the execution of the Related Documents to which it is a party and the
performance of the activities referred to in or contemplated by such
agreements).


 


Section 7.17.
Compliance with Contractual Obligations and Laws.


 


HVF is not (i) in
violation of the HVF LLC Agreement, (ii) in violation of any Requirement
of Law with respect to HVF or (iii) in violation of any Contractual
Obligation with respect to HVF.


 


29
















 


Section 7.18.  Other
Representations.


 


All
representations and warranties of HVF made in each Related Document to which it
is a party are true and correct and are repeated herein as though fully set
forth herein.


 


ARTICLE VIII   COVENANTS


 


Section 8.1.
Payment of Notes.


 


HVF shall pay
the principal of (and premium, if any) and interest on the Notes when due
pursuant to the provisions of this Indenture and any applicable Series Supplement.
Principal and interest shall be considered paid on the date due if the Paying
Agent holds on that date money designated for and sufficient to pay all
principal and interest then due.


 


Section 8.2.
Maintenance of Office or Agency.


 


HVF will
maintain an office or agency (which may be an office of the Trustee, the
Registrar or co-registrar) where Notes may be surrendered for registration
of transfer or exchange, where notices and demands to or upon HVF in respect of
the Notes and this Indenture may be served, and where, at any time when
HVF is obligated to make a payment of principal of, and premium, if any, upon,
the Notes, the Notes may be surrendered for payment. HVF will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time HVF shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office.


 


HVF may also
from time to time designate one or more other offices or agencies where the
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations. HVF will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


HVF hereby
designates the Corporate Trust Office as one such office or agency of HVF.


 


Section 8.3.
Payment of Obligations.


 


HVF will pay
and discharge, at or before maturity, all of its respective material
obligations and liabilities, including, without limitation, tax liabilities and
other governmental claims, except where the same may be contested in good
faith by appropriate proceedings, and will maintain, in accordance with GAAP,
reserves as appropriate for the accrual of any of the same.


 


Section 8.4.
Conduct of Business and Maintenance of Existence.


 


HVF will
maintain its existence as a limited liability company validly existing, and in
good standing under the laws of the State of Delaware and duly qualified as a
foreign


 


30

















 


limited liability company licensed under the laws of each state in
which the failure to so qualify would be reasonably likely to result in a
Material Adverse Effect.


 


Section 8.5.
Compliance with Laws.


 


HVF will
comply in all respects with all Requirements of Law with respect to HVF and all
applicable laws, ordinances, rules, regulations, and requirements of
Governmental Authorities except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings and where such noncompliance
would not materially and adversely affect the business, financial condition,
operations or properties of HVF or the ability of HVF to perform its
obligations under this Indenture or under any other Related Document to which
it is a party; provided, however, such noncompliance will not
result in a Lien (other than a Permitted Lien) on any of the Collateral.


 


Section 8.6.
Inspection of Property, Books and Records.


 


HVF will keep
proper books of record and account in which full, true and correct entries
shall be made of all dealings and transactions, business and activities in
accordance with GAAP. HVF will permit the Trustee or any Person appointed by it
to act as its agent to visit and inspect any of its properties, to examine and
make abstracts from any of its books and records and to discuss its affairs,
finances and accounts with its officers, directors, employees and independent
certified public accountants, all at such reasonable times upon reasonable
notice and as often as may reasonably be requested.


 


Section 8.7.
Actions under the Collateral Agreements.


 


(a) HVF
will comply in all material respects with all of its obligations under the
Manufacturer Programs. HVF will not take any action which would permit Hertz,
the Hertz Nominee, the HFC Nominee, Hertz Vehicles LLC, HGI, the Intermediary,
the Escrow Agent or any other Person to have the right to refuse to perform any
of its respective obligations under any of the Collateral Agreements, the
Manufacturer Programs or any other instrument or agreement included in the
Collateral or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any
Collateral Agreement, Manufacturer Program or any such instrument or agreement.


 


(b) Except
as otherwise provided in Section 3.2(a), HVF agrees that it will
not, without the prior written consent of the Trustee acting at the direction
of the Requisite Investors, exercise any right, remedy, power or privilege
available to it with respect to any obligor under a Collateral Agreement or
under any instrument or agreement included in the Collateral, take any action
to compel or secure performance or observance by any such obligor of its
obligations to HVF or give any consent, request, notice, direction, approval,
extension or waiver with respect to any such obligor. HVF agrees that it will
not, without the prior written consent of the Trustee, acting at the direction
of the Requisite Investors, amend, modify, waive, supplement, terminate or
surrender, or agree to any amendment, modification, supplement, termination,
waiver or surrender of, the terms of any of the Related Documents or consent to
the assignment of any of the Related Documents by any other party thereto. Upon
the occurrence of a Servicer Default, HVF will not, without the prior written
consent of the Trustee acting at the direction of the


 


31

















 


Requisite Investors, terminate
the Servicer and appoint a successor Servicer in accordance with the HVF Lease
and will terminate the Servicer and appoint a successor Servicer in accordance
with the HVF Lease if and when so directed by the Trustee acting at the
direction of the Requisite Investors. Notwithstanding the foregoing, HVF may terminate
the Master Exchange Agreement and the Escrow Agreement pursuant to their
respective terms at any time.


 


Section 8.8.
Notice of Defaults.


 


Promptly (and
in any event within five (5) Business Days) upon becoming aware of (i) any
Potential Amortization Event or Amortization Event with respect to any Series of
Notes Outstanding, any Potential Operating Lease Event of Default, any
Operating Lease Event of Default or any Servicer Default or (ii) any
default under any other Collateral Agreement, any Related Document or under any
Manufacturer Program, HVF shall give the Trustee and the Rating Agencies with
respect to each Series of Notes Outstanding notice thereof, together with
an Officer’s Certificate of HVF setting forth the details thereof and any
action with respect thereto taken or contemplated to be taken by HVF.


 


Section 8.9.
Notice of Material Proceedings.


 


Promptly (and
in any event within five (5) Business Days) upon becoming aware thereof,
HVF shall give the Trustee and the Rating Agencies written notice of the
commencement or existence of any proceeding by or before any Governmental
Authority against or affecting HVF which is reasonably likely to have a
material adverse effect on the financial condition, business, assets or
operations of HVF or the ability of HVF to perform its obligations under
this Indenture or under any other Related Document to which it is a party.


 


Section 8.10.
Further Requests.


 


HVF will promptly
furnish to the Trustee such other information as, and in such form as, the
Trustee may reasonably request in connection with the transactions
contemplated hereby or by any Series Supplement.


 


Section 8.11.
Further Assurances.


 


(a) HVF
shall do such further acts and things, and execute and deliver to the Trustee
such additional assignments, agreements, powers and instruments, as are
necessary or desirable to maintain the security interest of the Trustee in the
Indenture Collateral on behalf of the Noteholders and of the Collateral Agent
in the HVF Vehicle Collateral as a perfected security interest subject to no
prior Liens (other than Permitted Liens), to carry into effect the purposes of
this Indenture or the other Related Documents or to better assure and confirm
unto the Trustee or the Noteholders their rights, powers and remedies hereunder
including, without limitation, the filing of any financing or continuation
statements under the UCC in effect in any jurisdiction with respect to the
liens and security interests granted hereby or pursuant to the Collateral
Agency Agreement. Without limiting the generality of the foregoing provisions
of this Section 8.11(a), HVF shall take all actions that are
required to maintain the security interest of the Trustee in the Indenture
Collateral and of the Collateral Agent in the HVF Vehicle Collateral as a
perfected security interest subject to no prior Liens (other than Permitted
Liens), including, without limitation (i) filing all UCC financing
statements, continuation statements and


 


32

















 


amendments thereto necessary to
achieve the foregoing, (ii) causing the Lien of the Collateral Agent to be
noted on all Certificates of Title and (iii) causing the Servicer, as
agent for the Collateral Agent, to maintain possession of the applicable
Certificates of Title for the benefit of the Collateral Agent pursuant to Section 2.6(a) of
the Collateral Agency Agreement. If HVF fails to perform any of its
agreements or obligations under this Section 8.11(a), the Trustee
shall, at the direction of the Required Noteholders of any Series of
Notes, itself perform such agreement or obligation, and the expenses of
the Trustee incurred in connection therewith shall be payable by HVF upon the Trustee’s
demand therefor. The Trustee is hereby authorized to execute and file any
financing statements, continuation statements or other instruments necessary or
appropriate to perfect or maintain the perfection of the Trustee’s security
interest in the Indenture Collateral.


 


(b) If
any amount payable under or in connection with any of the Indenture Collateral
shall be or become evidenced by any promissory note, chattel paper or other
instrument, such note, chattel paper or instrument shall be deemed to be held
in trust and immediately pledged and physically delivered to the Trustee
hereunder, and shall, subject to the rights of any Person in whose favor a
prior Lien has been perfected, be duly endorsed in a manner satisfactory to the
Trustee and delivered to the Trustee promptly.


 


(c) HVF
will warrant and defend the Trustee’s right, title and interest in and to the
Indenture Collateral and the income, distributions and proceeds thereof, for
the benefit of the Trustee on behalf of the Noteholders, against the claims and
demands of all Persons whomsoever.


 


(d) On or
before March 31 of each calendar year, commencing with March 31,
2003, HVF shall furnish to the Trustee an Opinion of Counsel either stating
that, in the opinion of such counsel, such action has been taken with respect
to the recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents and with
respect to the execution and filing of any financing statements and
continuation statements as are necessary to maintain the perfection of the lien
and security interest created by this Indenture or the Collateral Agency
Agreement in the Collateral and reciting the details of such action or stating
that in the opinion of such counsel no such action is necessary to maintain the
perfection of such lien and security interest. Such Opinion of Counsel shall
also describe the recording, filing, re-recording and refiling of this
Indenture, any indentures supplemental hereto and any other requisite documents
and the execution and filing of any financing statements and continuation
statements that will, in the opinion of such counsel, be required to maintain
the perfection of the lien and security interest of this Indenture in the
Collateral until March 31 in the following calendar year.


 


Section 8.12.
Liens.


 


HVF will not
create, incur, assume or permit to exist any Lien upon any of its property
(including the Collateral), other than (i) Liens in favor of the Trustee
for the benefit of the Noteholders and (ii) other Permitted Liens.


 


33

















 


Section 8.13.
Other Indebtedness.


 


(a) HVF
will not create, assume, incur, suffer to exist or otherwise become or remain
liable in respect of any Indebtedness other than (i) Indebtedness
hereunder or under any other Related Document and (ii) Indebtedness under
the HVF Credit Facility, the form of which is attached as Exhibit B
hereto.


 


(b) HVF
will not enter into the HVF Credit Facility unless, as a condition to the effectiveness
of the HVF Credit Facility, the Trustee shall have received one or more
Opinions of Counsel, subject to the assumptions and qualifications stated
therein, and in a form reasonably acceptable to the Trustee, substantially
to the effect that (i) the HVF Credit Facility has been duly authorized,
executed and delivered by the parties thereto, and (ii) the HVF Credit
Facility is a legal, valid and binding agreement of the parties thereto,
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors’ rights
generally and to general principals of equity.


 


Section 8.14.
No ERISA Plan.


 


HVF shall not
establish or maintain or contribute to any Plan that is covered by Title IV of
ERISA.


 


Section 8.15.
Mergers.


 


HVF will not
merge or consolidate with or into any other Person.


 


Section 8.16.
Sales of Assets.


 


HVF will not
sell, lease, transfer, liquidate or otherwise dispose of any of its property
except as contemplated by the Related Documents.


 


Section 8.17.
Acquisition of Assets.


 


HVF will not
acquire, by long-term or operating lease or otherwise, any property except in
accordance with the terms of the Related Documents.


 


Section 8.18.
Dividends, Officers’ Compensation, etc.


 


HVF will not
declare or pay any distributions on any of its limited liability company
interests; provided, however, that so long as no Amortization
Event or Potential Amortization Event has occurred and is continuing with
respect to any Series of Notes Outstanding or would result therefrom, HVF may declare
and pay distributions to the extent permitted under Section 18-607 of the
Delaware Limited Liability Company Act. HVF will not pay any wages or salaries
or other compensation to its officers, directors, employees or others except
out of earnings computed in accordance with GAAP.


 


34

















 


Section 8.19.
Legal Name; Location Under Section 9-301.


 


HVF will
neither change its location (within the meaning of Section 9-301 of the
applicable UCC) or its legal name without at least 30 days’ prior written
notice to the Trustee and the Collateral Agent. In the event that HVF desires
to so change its location or change its legal name, HVF will make any required
filings and prior to actually changing its location or its legal name HVF will
deliver to the Trustee and the Collateral Agent (i) an Officer’s
Certificate of HVF and an Opinion of Counsel confirming that all required
filings have been made to continue the perfected interest of the Trustee on
behalf of the Noteholders in the Indenture Collateral and the perfected
interest of the Collateral Agent in the HVF Vehicle Collateral in respect of
the new location or new legal name of HVF and (ii) copies of all such
required filings with the filing information duly noted thereon by the office
in which such filings were made.


 


Section 8.20.
HVF LLC Agreement.


 


HVF will not
amend the HVF LLC Agreement or its certificate of formation unless, prior to
such amendment, the Rating Agency Condition with respect to each Series of
Notes Outstanding shall have been satisfied with respect to such amendment.


 


Section 8.21.
Investments.


 


HVF will not
make, incur, or suffer to exist any loan, advance, extension of credit or other
investment in any Person other than in accordance with the Related Documents
and, in addition, without limiting the generality of the foregoing, HVF will
not direct the investment of funds in the Collection Account or any HVF
Exchange Account in a manner that would have the effect of causing HVF to be an
“investment company” within the meaning of the Investment Company Act.


 


Section 8.22.
No Other Agreements.


 


HVF will not
enter into or be a party to any agreement or instrument other than any Related
Document, as the same may be amended, modified or supplemented from time
to time, any documents related to any Enhancement or any documents and
agreements incidental thereto.


 


Section 8.23.
Other Business.


 


HVF will not
engage in any business or enterprise or enter into any transaction other than
the acquisition, financing, leasing and disposition of the HVF Vehicles
pursuant to the Related Documents, the related exercise of its rights
thereunder, the borrowing of funds under the HVF Credit Facility, the
incurrence and payment of ordinary course operating expenses, the issuing and
selling of the Notes and other activities related to or incidental to any of
the foregoing.


 


Section 8.24.
Maintenance of Separate Existence.


 


HVF will:


 


35

















 


(a) maintain
its own deposit account or accounts, separate from those of any Affiliate, with
commercial banking institutions and ensure that the funds of HVF will not be
diverted to any other Person or for other than the use of HVF, nor will such
funds be commingled with the funds of Hertz or any other Subsidiary or
Affiliate of Hertz other than as provided in the Related Documents;


 


(b) ensure
that all transactions between HVF and any of its Affiliates, whether currently
existing or hereafter entered into, shall be only on an arm’s length basis, it
being understood and agreed that the transactions contemplated in the Related
Documents meet the requirements of this clause (b);


 


(c) to
the extent that it requires an office to conduct its business, conduct its
business from an office at a separate address from that of Hertz and its
Affiliates (other than Hertz Vehicles LLC or any other affiliated special
purpose company (other than HGI)); provided, that segregated offices in
the same building shall constitute separate addresses for purposes of this clause
(c). To the extent that HVF and any of its members or Affiliates have
offices in the same location, there shall be a fair and appropriate allocation
of overhead costs among them, and each such entity shall bear its fair share of
such expenses;


 


(d) issue
separate financial statements prepared at least annually and prepared in
accordance with GAAP;


 


(e) conduct its affairs in
its own name and in accordance with the HVF LLC Agreement and observe all
necessary, appropriate and customary limited liability company formalities,
including, but not limited to, holding all regular and special meetings
appropriate to authorize all actions of HVF, keeping separate and accurate
minutes of its meetings, passing all resolutions or consents necessary to
authorize actions taken or to be taken, and maintaining accurate and separate
books, records and accounts, including, but not limited to, payroll and
intercompany transaction accounts;


 


(f) not
assume or guarantee any of the liabilities of Hertz or any Affiliate thereof;


 


(g) take,
or refrain from taking, as the case may be, all other actions that are
necessary to be taken or not to be taken in order to (x) ensure that the
assumptions and factual recitations set forth in the Specified Bankruptcy
Opinion Provisions remain true and correct in all material respects with
respect to HVF and (y) comply in all material respects with those procedures
described in such provisions which are applicable to HVF; and


 


(h) maintain
at least one Independent Director on its Board of Directors.


 


Section 8.25.
Manufacturer Programs.


 


(a) Prior
to the leasing of any Program Vehicles under the HVF Lease for any model year
after the 2002 model year, HVF will (i) cause the Lessee to deliver to the
Trustee, the Lessor and the Rating Agencies an Officer’s Certificate of the
Lessee substantially in the form of Exhibit C and (ii) have
satisfied the Rating Agency Condition with respect to each Series of Notes
Outstanding with respect to the leasing of Program Vehicles subject to such
Manufacturer Program under the HVF Lease.


 


36

















 


(b) No
later than six months following the leasing of any Program Vehicles under the
HVF Lease for any model year after the 2002 model year, HVF will (x) deliver to
the Trustee and the Rating Agencies an executed copy of the Manufacturer
Program for such model year and (y) have received an executed Assignment
Agreement with respect to such Manufacturer Program for such model year.


 


(c) Prior
to the leasing of any Program Vehicles under the HVF Lease subject to a
Manufacturer Program of a new Manufacturer, HVF will (i) have received an
executed Assignment Agreement with respect to such Manufacturer Program and (ii) have
satisfied the Rating Agency Condition with respect to each Series of Notes
Outstanding with respect to the leasing of Program Vehicles subject to such
Manufacturer Program under the HVF Lease.


 


(d) HVF
shall deliver to the Trustee, the Lessor and the Rating Agencies promptly
following the introduction of any prospective material change in any existing
Manufacturer Program or the introduction of any new Manufacturer Program by an
existing Manufacturer (other than a Manufacturer Program for a new model year
by an existing Manufacturer) notice of the same describing the principal terms
thereof. If there is a material change to a Manufacturer Program during a model
year, HVF will satisfy the Rating Agency Condition with respect to each Series of
Notes Outstanding with respect to the leasing of Program Vehicles subject to
such Manufacturer Program, as so changed, pursuant to the HVF Lease.


 


(e) HVF
shall deliver to the Trustee a copy of any rating confirmations required to be
obtained pursuant to this Section 8.25.


 


(f) In no
event shall HVF agree, to the extent any consent of HVF is solicited or
required by the Manufacturer or any assignor of such Manufacturer Program, to
any change in any Manufacturer Program that is reasonably likely to materially
adversely affect its rights or the rights of the Noteholders with respect to
any Program Vehicle previously purchased or financed under such Manufacturer
Program.


 


Section 8.26.
Disposition of HVF Vehicles.


 


(a) HVF
will turn in, or cause to be turned in, each Program Vehicle (subject to the
right to redesignate a Program Vehicle as a Non-Program Vehicle pursuant to Section 2.6
of the HVF Lease) to the relevant Manufacturer within the Repurchase Period
therefor in accordance with the applicable Manufacturer Program unless, prior
to the end of such Repurchase Period, HVF sells such Program Vehicle and
receives sales proceeds thereof in cash plus, if the related Manufacturer is an
Eligible Program Manufacturer, non-return incentives payable by such
Manufacturer to HVF, in an amount at least equal to the Repurchase Price that
HVF would have received with respect to such Program Vehicle if it had turned
such Program Vehicle back to the Manufacturer.


 


(b) If a
Non-Program Vehicle is returned to HVF pursuant to Section 2.5(c) of
the HVF Lease, HVF will use commercially reasonable efforts to arrange for the
prompt sale of such Non-Program Vehicle and to maximize the sale price thereof.


 


37

















 


Section 8.27.
Insurance.


 


HVF will
obtain and maintain, or cause to be obtained and maintained, with respect to
the HVF Vehicles (i) comprehensive public liability and property damage
protection in respect of the possession, condition, maintenance, operation and
use of the HVF Vehicles, in the amount required to meet the minimum financial
responsibility requirements mandated by applicable state law for each
occurrence and (ii) catastrophic physical damage insurance, in an amount
not less than $50,000,000; provided, however that HVF may rely on the
Indemnification Agreement in lieu of obtaining and maintaining the insurance
required by clauses (i) and (ii) hereof for so long as
the Lessee is permitted to self-insure by applicable law. All insurance
policies obtained pursuant to this Section 8.27 shall name the
Collateral Agent as a loss payee as its interest may appear. HVF shall
provide that the Trustee and the Collateral Agent will receive at least 30 days’
prior written notice of any change or cancellation of such insurance policies
or arrangements. Any insurance, as opposed to self-insurance, obtained by HVF
shall be obtained from a Qualified Insurer only.


 


ARTICLE IX   AMORTIZATION EVENTS AND REMEDIES


 


Section 9.1.
Amortization Events.


 


If any one of
the following events shall occur during the Revolving Period, the Accumulation
Period or the Controlled Amortization Period with respect to any Series of
Notes (each, an “Amortization Event”):


 


(a) the
occurrence of an Event of Bankruptcy with respect to Hertz Vehicles LLC, HGI,
HVF or Hertz;


 


(b) the
Securities and Exchange Commission or other regulatory body having jurisdiction
reaches a final determination that Hertz Vehicles LLC, HGI or HVF is an “investment
company” or is under the “control” of an “investment company” under the
Investment Company Act;


 


(c) the
HVF Lease is terminated for any reason;


 


(d) any
Lease Payment Default shall have occurred;


 


(e) any
Aggregate Asset Amount Deficiency exists and continues for a period of three
Business Days;


 


(f) any
Operating Lease Event of Default (other than a Lease Payment Default) shall
have occurred and be continuing;


 


(g) there
shall have been filed against Hertz, Hertz Vehicles LLC, HGI or HVF (i) a
notice of a federal tax lien from the Internal Revenue Service, (ii) a
notice of a Lien from the Pension Benefit Guaranty Corporation under Section 412(n)
of the Code or Section 302(f) of ERISA for a failure to make a
required installment or other payment to a Plan to which either of such
sections applies or (iii) a notice of any other Lien (other than a
Permitted Lien) that could reasonably be expected to attach to the assets of
Hertz Vehicles LLC, HVF or any HVF


 


38

















 


Exchange Account and 30 days
shall have elapsed without such notice having been effectively withdrawn or
such Lien having been released or discharged;


 


(h) subject
to Section 8.7(b) herein, any of the Related Documents or any
material portion thereof shall cease, for any reason, to be in full force and
effect, enforceable in accordance with its terms or Hertz, the Hertz Nominee,
the HFC Nominee, Hertz Vehicles LLC, HGI or HVF shall so assert in writing;


 


(i) any
Servicer Default or any Administrator Default shall have occurred; or


 


(j) any other
event shall occur which may be specified in any Series Supplement as
an “Amortization Event”;


 


then (i) in
the case of any event described in clause (f), (g), (h), (i) or
(j) above (with respect to clause (j) above, only to the extent
such Amortization Event is subject to waiver as set forth in the applicable Series Supplement),
either the Trustee, by written notice to HVF, or the Required Noteholders of
the applicable Series of Notes, by written notice to HVF and the Trustee, may declare
that an Amortization Event has occurred with respect to such Series as of
the date of the notice or (ii) in the case of any event described in clause
(a), (b), (c), (d) or (e) above, an
Amortization Event with respect to all Series of Notes then outstanding
shall immediately occur without any notice or other action on the part of
the Trustee or any Noteholder or (iii) in the case of any event described
in clause (j) above (only to the extent such Amortization Event is not
subject to waiver as set forth in the applicable Series Supplement), an
Amortization Event with respect to the related Series of Notes shall
immediately occur without any notice or other action on the part of the
Trustee or any Noteholder.


 


Section 9.2.
Rights of the Trustee upon Amortization Event or Certain Other Events of
Default.


 


(a) General.
If and whenever an Amortization Event with respect to any Series of Notes
Outstanding shall have occurred and be continuing, the Trustee may and, at
the written direction of the Requisite Investors shall, exercise (or direct the
Collateral Agent to exercise) from time to time any rights and remedies
available to it under applicable law or any Related Document; provided, however,
that if such Amortization Event is with respect to less than all Series of
Notes Outstanding, then the Trustee’s rights and remedies pursuant to the
provisions of this Section 9.2 shall, to the extent not detrimental
to the rights of the holders of the Series of Notes Outstanding with
respect to which no Amortization Event shall have occurred, be limited to
rights and remedies pertaining only to those Series of Notes with respect
to which such Amortization Event has occurred and the Trustee shall exercise
such rights and remedies at the written direction of Noteholders holding in
excess of 50% of the aggregate Principal Amount of all such Series of
Notes with respect to which such Amortization Event has occurred. Any amounts
obtained by the Trustee (or by the Collateral Agent at the direction of the
Trustee) on account of or as a result of the exercise by the Trustee of any
right shall be held by the Trustee as additional collateral for the repayment
of Note Obligations and shall be applied as provided in Article 5. If
so specified in the applicable Series Supplement, the Trustee may agree
not to exercise any rights or remedies available to it as a result of the occurrence
of an Amortization Event with respect to a Series of Notes to the extent
set forth therein.


 


39

















 


(b) Liquidation
Event of Default; Limited Liquidation Event of Default. If a Liquidation
Event of Default or a Limited Liquidation Event of Default shall have occurred
and be continuing, the Trustee, at the written direction of the Requisite
Investors (in the case of a Liquidation Event of Default) or the Required
Noteholders of the applicable Series of Notes (in the case of a Limited
Liquidation Event of Default), shall direct HVF and the Collateral Agent to
exercise (and HVF agrees to exercise) all rights, remedies, powers, privileges
and claims of HVF against any party to any Related Document arising as a result
of the occurrence of such Liquidation Event of Default or Limited Liquidation
Event of Default, as the case may be, or otherwise, including the right or
power to take any action to compel performance or observance by any such party
of its obligations to HVF and the right to terminate all or a portion of the
HVF Lease and take possession of HVF Vehicles and to give any consent, request,
notice, direction, approval, extension or waiver in respect of such HVF Lease,
and any right of HVF to take such action independent of such direction shall be
suspended. If and whenever a Liquidation Event of Default or a Limited
Liquidation Event of Default with respect to any Series of Notes
Outstanding shall have occurred and be continuing, the Trustee may and, at
the written direction of the Requisite Investors (in the case of a Liquidation
Event of Default) or the Required Noteholders of the applicable Series of
Notes (in the case of a Limited Liquidation Event of Default), shall direct HVF
to terminate (a) the Nominee Power of Attorney granted to Hertz and direct
the Nominee to grant a Nominee Power of Attorney to HVF, the Collateral Agent
or the Trustee, as specified by the Trustee, pursuant to Section 2(c) of
the Nominee Agreement, (b) the Power of Attorney granted to Hertz pursuant
to Section 2.6(b) of the Collateral Agency Agreement, (c) the
Hertz Nominee Power of Attorney granted to Hertz and direct the Hertz Nominee
to grant a Hertz Nominee Power of Attorney to the Trustee or the Collateral
Agent and/or (d) the HFC Nominee Power of Attorney granted to HFC and
direct the HFC Nominee to grant a HFC Nominee Power of Attorney to the Trustee
or the Collateral Agent.


 


(c) Manufacturer
Programs and HVF Vehicles. (i)  Upon the occurrence of a
Liquidation Event of Default, the Trustee, at the written direction of the
Requisite Investors, shall promptly (and in any event within any reasonably
practicable period specified in such written direction) instruct the Collateral
Agent to return or cause HVF to return the Program Vehicles to the related
Manufacturers (after the minimum holding period specified in the Manufacturer’s
Manufacturer Program and so long as a Manufacturer Event of Default has not
occurred with respect to the related Manufacturer) and then, to the extent any
Manufacturer fails to accept any such Program Vehicles under the terms of the
applicable Manufacturer Program (or if a Manufacturer Event of Default has
occurred with respect to any Manufacturer), to direct the Collateral Agent to
liquidate or cause HVF to liquidate the Program Vehicles in accordance with the
rights of HVF under the Related Documents and to otherwise sell or cause to be
sold to third parties all Non-Program Vehicles. Upon the occurrence of a
Limited Liquidation Event of Default with respect to any Series of Notes,
the Trustee, acting at the written direction of the Required Noteholders of the
applicable Series of Notes, shall promptly (and in any event within any
reasonably practicable period specified in such written direction) instruct the
Collateral Agent to return or cause HVF to return Program Vehicles to the
related Manufacturers (after the minimum holding period specified in the
Manufacturer’s Manufacturer Program and so long as a Manufacturer Event of
Default has not occurred with respect to the related Manufacturer) and then, to
the extent any Manufacturer fails to accept any such Program Vehicles under the
terms of the applicable Manufacturer Program (or if a Manufacturer Event of
Default has occurred with


 


40

















 


respect to any Manufacturer),
to direct the Collateral Agent to liquidate or cause HVF to liquidate Program
Vehicles in accordance with the rights of HVF under the Related Documents and
to sell Non-Program Vehicles or cause Non-Program Vehicles to be sold to third
parties in an amount sufficient to pay all interest and principal on such Series of
Notes; provided, however, that the Collateral Agent, the Trustee
and HVF shall select the Program Vehicles to be returned to the related
Manufacturers and the Non-Program Vehicles to be sold to third parties in a
manner that does not adversely affect in any material respect the interests of
the Noteholders of any Series of Notes Outstanding or any Enhancement
Provider.


 


(i)                                     In addition to,
and not in limitation of, the remedies and duties of the Trustee set forth in subsection (i) above
or (iii) below, if a Liquidation Event of Default or a Limited
Liquidation Event of Default shall have occurred and be continuing, the Trustee
may, and at the written direction of the Requisite Investors (in the case of a
Liquidation Event of Default) or at the direction of the Required Noteholders
of the applicable Series of Notes (in the case of a Limited Liquidation
Event of Default) shall direct the Collateral Agent to exercise, or cause HVF
to exercise, to the extent necessary, all rights, remedies, powers, privileges
and claims of HVF or the Collateral Agent against the Manufacturers under or in
connection with the Manufacturer Programs.


 


(ii)                                  In the event that
either (A) an Event of Bankruptcy with respect to any Manufacturer of
Program Vehicles shall have occurred and such Manufacturer shall fail to
repurchase any Program Vehicles in accordance with the terms of the related
Manufacturer Program and a Trust Officer has actual knowledge thereof or (B) if
there has occurred any other Manufacturer Event of Default and a Trust Officer
has knowledge thereof, the Trustee shall direct the Collateral Agent to sell or
cause HVF to sell any and all Program Vehicles covered by the related
Manufacturer Program of such Manufacturer for the highest purchase price
offered and, promptly upon receipt, to deposit the proceeds of such sale into
the Collection Account for allocation hereunder; provided, however,
that if any event described in clause (A) or (B) above
occurs, HVF shall have three Business Days from such occurrence to redesignate
such Program Vehicles as Non-Program Vehicles in accordance with, and subject
to the terms and conditions of, Section 2.6 of the HVF Lease before the
Trustee may direct the Collateral Agent to sell any such Program Vehicles.


 


(d) Failure
of HVF or the Collateral Agent to Take Action. If (i) HVF or the
Collateral Agent shall have failed, within 10 Business Days of receiving the
direction of the Trustee, to take commercially reasonable action to accomplish
directions of the Trustee given pursuant to clauses (b) or (c) above,
(ii) HVF or the Collateral Agent refuses to take such action or (iii) the
Trustee reasonably determines that such action must be taken immediately, the
Trustee may (and at the written direction of the Required Noteholders of
the affected Series of Notes (with respect to any Limited Liquidation
Event of Default) or the Requisite Investors (with respect to any Liquidation
Event of Default) shall), take such previously directed action (and any related
action as permitted under this Indenture thereafter determined by the Trustee
to be appropriate without the need under this provision or any other provision
under this Indenture to direct HVF or the Collateral Agent to take such action).
The Trustee may direct the Collateral Agent to institute legal proceedings
for the appointment of a receiver or receivers to take possession of the HVF
Vehicles pending the sale thereof pursuant either to the powers of sale


 


41

















 


granted by this Indenture, the
Collateral Agency Agreement and the other Related Documents or to a judgment,
order or decree made in any judicial proceeding for the foreclosure or
involving the enforcement of this Indenture.


 


(e) Sale
of Collateral. Upon any sale of any of the Collateral directly by the
Trustee, or by the Collateral Agent at the direction of the Trustee, whether
made under the power of sale given under this Section 9.2 or under
judgment, order or decree in any judicial proceeding for the foreclosure or
involving the enforcement of this Indenture:


 


(i)                                     the Trustee, any
Noteholder and/or any Enhancement Provider may bid for and purchase the
property being sold, and upon compliance with the terms of sale may hold,
retain and possess and dispose of such property in its own absolute right
without further accountability;


 


(ii)                                  the Trustee, or the
Collateral Agent at the direction of the Trustee, may make and deliver to
the purchaser or purchasers a good and sufficient deed, bill of sale and
instrument of assignment and transfer of the property sold;


 


(iii)                               all right, title,
interest, claim and demand whatsoever, either at law or in equity or otherwise,
of HVF of, in and to the property so sold shall be divested; and such sale
shall be a perpetual bar both at law and in equity against HVF, its successors
and assigns, and against any and all Persons claiming or who may claim the
property sold or any part thereof from, through or under HVF or its
successors or assigns;


 


(iv)                              the receipt of the
Trustee or of the officer thereof making such sale shall be a sufficient
discharge to the purchaser or purchasers at such sale for his or their purchase
money, and such purchaser or purchasers, and his or their assigns or personal
representatives, shall not, after paying such purchase money and receiving such
receipt of the Trustee or of such officer therefor, be obliged to see to the
application of such purchase money or be in any way answerable for any loss,
misapplication or nonapplication thereof; and


 


(v)                                 to the extent that it may lawfully
do so, HVF agrees that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any appraisal,
valuation, stay, extension or redemption laws, or any law permitting it to
direct the order in which the HVF Vehicles shall be sold, now or at any time
hereafter in force, which may delay, prevent or otherwise affect the
performance or enforcement of this Indenture.


 


(f) Additional
Remedies. In addition to any rights and remedies now or hereafter granted
hereunder or under applicable law with respect to the Collateral, the Trustee
shall (subject to the foregoing provisions in respect of the HVF Vehicles) have
all of the rights and remedies of a secured party under the UCC as enacted in
any applicable jurisdiction.


 


(g) Amortization
Event. Upon the occurrence of an Amortization Event with respect to one or
more, but not all, Series of Notes Outstanding, the Trustee shall exercise
all remedies hereunder to the extent necessary to pay all interest and
principal on the related Series of Notes, provided that any such
actions shall not adversely affect in any material respect the


 


42

















 


interests of the Noteholders of
any Series of Notes Outstanding with respect to which no Amortization
Event shall have occurred.


 


Section 9.3.
Other Remedies.


 


Subject to the
terms and conditions of this Indenture, if an Amortization Event occurs and is
continuing, the Trustee may pursue any remedy available under applicable
law or in equity to collect the payment of principal or interest on the Notes
(or the applicable Series of Notes, in the case of an Amortization Event
that affects less than all Series of Notes) or to enforce the performance
of any provision of the Notes, this Indenture or any Series Supplement
with respect such Series of Notes. In addition, the Trustee may, or shall
at the written direction of the Requisite Investors (or the Required
Noteholders of one or more Series of Notes, in the case of an Amortization
Event that affects only such Series of Notes), direct the Collateral Agent
or HVF to exercise any rights or remedies available under any Related Document
or under applicable law or in equity with respect to that Series of Notes,
provided that any such actions shall not adversely affect in any
material respect the interests of the Noteholders of any Series of Notes
Outstanding with respect to which no Amortization Event shall have occurred.


 


The Trustee may maintain
a proceeding even if it does not possess any of the Notes or does not produce
any of them in the proceeding, and any such proceeding instituted by the
Trustee shall be in its own name as trustee. All remedies are cumulative to the
extent permitted by law.


 


Section 9.4.
Waiver of Past Events.


 


Subject to Section 12.2,
the Noteholders of any Series owning an aggregate Principal Amount of
Notes in excess of 66 2/3% of the aggregate Principal Amount of the Outstanding
Notes of such Series, by notice to the Trustee, may waive any existing
Potential Amortization Event or Amortization Event described in clause (f),
(g), (h), (i) or (j) of Section 9.1
(with respect to clause (j), only to the extent subject to waiver as
provided in the applicable Series Supplement) which relate to such Series and
its consequences. Upon any such waiver, such Potential Amortization Event shall
cease to exist with respect to such Series, and any Amortization Event with
respect to such Series arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other Potential Amortization Event or impair any right
consequent thereon. A Potential Amortization Event or an Amortization Event
described in clause (a), (b), (c), (d), (e) or
(j) of Section 9.1 (with respect to clause (j),
only to the extent not subject to waiver as set forth in the applicable Series Supplement)
shall not be subject to waiver. The Trustee shall provide notice to each Rating Agency of any waiver by
the Noteholders of any Series pursuant to Section 9.4.


 


Section 9.5.
Control by Requisite Investors.


 


The Requisite
Investors (or, to the extent such remedy relates only to a particular Series of
Notes, the Required Noteholders of such Series) may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee. However,
subject to Section 10.1, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee
determines may be


 


43

















 


unduly prejudicial to the rights of other Noteholders, or that may involve
the Trustee in personal liability.


 


Section 9.6.
Limitation on Suits.


 


Any other
provision of this Indenture to the contrary notwithstanding, a Holder of Notes
of any Series may pursue a remedy with respect to this Indenture or
the Notes of such Series only if:


 


(a) the
Noteholder gives to the Trustee written notice of a continuing Amortization
Event with respect to such Series;


 


(b) the
Noteholders of at least 25% of the aggregate Principal Amount of all then
Outstanding Notes of such Series make a written request to the Trustee to
pursue the remedy;


 


(c) such
Noteholder or Noteholders offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;


 


(d) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of indemnity; and


 


(e) during
such 60-day period the Required Noteholders of such Series of Notes do not
give the Trustee a direction inconsistent with the request.


 


A Noteholder may not
use this Indenture to prejudice the rights of another Noteholder or to obtain a
preference or priority over another Noteholder.


 


Section 9.7.
Unconditional Rights of Holders to Receive Payment.


 


Notwithstanding
any other provision of this Indenture, the right of any Noteholder of a Note to
receive payment of principal and interest on the Note, on or after the
respective due dates expressed in the Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of
the Noteholder.


 


Section 9.8.
Collection Suit by the Trustee.


 


If any
Amortization Event arising from the failure to make a payment in respect of a Series of
Notes occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against HVF for the whole
amount of principal and interest remaining unpaid on the Notes of such Series and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.


 


44

















 


Section 9.9.
The Trustee May File Proofs of Claim.


 


The Trustee is
authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and the Noteholders allowed in any
judicial proceedings relative to HVF (or any other obligor upon the Notes), its
creditors or its property, and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on
any such claim and any custodian in any such judicial proceeding is hereby
authorized by each Noteholder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Noteholders, to pay the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 10.5.
To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 10.5 out of the estate
in any such proceeding, shall be denied for any reason, payment of the same
shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money and other properties which the Noteholders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Noteholder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Noteholder in any such proceeding.


 


Section 9.10.
Priorities.


 


If the Trustee
collects any money pursuant to this Article, the Trustee shall pay out the
money in accordance with the provisions of Article 5.


 


Section 9.11.
Undertaking for Costs.


 


In any suit
for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court
in its discretion may require the filing by any party litigant in the suit
of any undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This Section does
not apply to a suit by the Trustee, a suit by a Noteholder pursuant to Section 9.7,
or a suit by Noteholders of more than 10% of the aggregate Principal Amount of
all then Outstanding Notes.


 


Section 9.12.
Rights and Remedies Cumulative.


 


No right or
remedy herein conferred upon or reserved to the Trustee or to the holders of
Notes is intended to be exclusive of any other right or remedy, and every right
or remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given under this Indenture or now or hereafter
existing at law or in equity or


 


45

















 


otherwise. The assertion or employment of any right or remedy under
this Indenture, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.


 


Section 9.13.
Delay or Omission Not Waiver.


 


No delay or
omission of the Trustee or of any holder of any Note to exercise any right or
remedy accruing upon any Amortization Event shall impair any such right or
remedy or constitute a waiver of any such Amortization Event or an acquiescence
therein. Every right and remedy given by this Article 9 or by law
to the Trustee or to the holders of Notes may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the
holders of Notes, as the case may be.


 


Section 9.14.
Reassignment of Surplus.


 


After
termination of this Indenture and the payment in full of the Note Obligations,
any proceeds of the Collateral received or held by the Trustee shall be turned
over to HVF and the Indenture Collateral shall be reassigned to HVF by the
Trustee without recourse to the Trustee and without any representations,
warranties or agreements of any kind.


 


ARTICLE X   THE TRUSTEE


 


Section 10.1.
Duties of the Trustee.


 


(a) If an
Amortization Event has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs; provided,
however, that the Trustee shall have no liability in connection with any
action or inaction taken, or not taken, by it upon the deemed occurrence of an
Amortization Event of which a Trust Officer has not received written notice. The
preceding sentence shall not have the effect of insulating the Trustee from
liability arising out of the Trustee’s negligence or willful misconduct.


 


(b) Except
during the occurrence and continuance of an Amortization Event:


 


(i)                                     The Trustee
undertakes to perform only those duties that are specifically set forth in
this Indenture and no others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and


 


(ii)                                  In the absence of bad
faith on its part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; however, in the case of any such certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine such
certificates or opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein). Except as
otherwise provided, the delivery of reports, information and


 


46

















 


documents to the Trustee is for informational purposes only and the
Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including HVF’s compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officer’s Certificates).


 


(c) The
Trustee may not be relieved from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:


 


(i)                                     This clause does
not limit the effect of clause (b) of this Section 10.1.


 


(ii)                                  The Trustee shall not
be liable for any error of judgment made in good faith by a Trust Officer,
unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts.


 


(iii)                               The Trustee shall not be
liable with respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 9.3.


 


(iv)                              The Trustee shall not be
charged with knowledge of any default by any Person in the performance of its
obligations under any Related Document, unless a Trust Officer receives written
notice of such failure from HVF, Hertz or any Noteholder or otherwise has
actual knowledge thereof.


 


(d) Notwithstanding
anything to the contrary contained in this Indenture or any of the Related
Documents, no provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability (financial or otherwise) if there
are reasonable grounds (as determined by the Trustee in its sole discretion)
for believing that the repayment of such funds is not reasonably assured to it
by the security afforded to it by the terms of this Indenture. The Trustee may refuse
to perform any duty or exercise any right or power unless it receives
indemnity satisfactory to it against any risk, loss, liability or expense.


 


(e) In
the event that the Paying Agent or the Registrar shall fail to perform any
obligation, duty or agreement in the manner or on the day required to be
performed by the Paying Agent or the Registrar, as the case may be, under
this Indenture, the Trustee shall be obligated as soon as practicable upon
actual knowledge of a Trust Officer thereof and receipt of appropriate records
and information, if any, to perform such obligation, duty or agreement in
the manner so required.


 


(f) Subject
to Section 10.3, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the
extent required by law or the Related Documents.


 


(g) Whether
or not therein expressly so provided, every provision of this Indenture
relating to the conduct of, affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section 10.1.


 


47

















 


(h) Beyond
the exercise of reasonable care in the custody thereof, the Trustee shall have
no duty as to any Collateral in its possession or control or in the possession
or control of any agent or bailee or any income thereon or as to the
preservation of rights against prior parties or any other rights pertaining
thereto and, unless directed by the Required Noteholders of any Series of
Notes Outstanding, the Trustee shall not be responsible for filing any
financing or continuation statements or recording any documents or instruments
in any public office at any time or times or otherwise perfecting or
maintaining the perfection of any securities interest in the Collateral. The
Trustee shall be deemed to have exercised reasonable care in the custody of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which it accords its own property and shall not be
liable or responsible for any loss or diminution in the value of any of the
Collateral, by reason of the act or omission or any carrier, forwarding agency
or other agent or bailee selected by the Trustee with due care in good faith.


 


(i) The
Trustee shall not be responsible for the existence, genuineness or value of any
of the Collateral or for the validity, perfection, priority or enforceability
of the Liens in any of the Collateral, whether impaired by operation of law or
by reason of any action or omission to act on its part hereunder, except
to the extent such action or omission constitutes negligence, bad faith or
willful misconduct on the part of the Trustee, for the validity or
sufficiency of the Collateral or any agreement or assignment contained therein,
for the validity of the title of HVF to the Collateral, for insuring the
Collateral or for the payment of taxes, charges, assessments or Liens upon the
Collateral or otherwise as to the maintenance of the Collateral. Except as
otherwise provided herein, the Trustee shall have no duty to inquire as to the
performance or observance of any of the terms of this Indenture or the Related
Documents by HVF or the Collateral Agent.


 


Section 10.2.
Rights of the Trustee.


 


Except as
otherwise provided by Section 10.1:


 


(a) The
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting based upon any document believed by it to be genuine and
to have been signed by or presented by the proper person.


 


(b) The
Trustee may consult with counsel of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.


 


(c) The
Trustee may act through agents, custodians and nominees and shall not be
liable for any misconduct or negligence on the part of, or for the
supervision of, any such agent, custodian or nominee so long as such agent,
custodian or nominee is appointed with due care. The appointment of agents
(other than legal counsel) pursuant to this subsection (c) shall
be subject to the prior consent of HVF, which consent shall not be unreasonably
withheld.


 


(d) The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers
conferred upon it by this Indenture.


 


48

















 


(e) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture or any Series Supplement, or to institute,
conduct or defend any litigation hereunder or in relation hereto, at the
request, order or direction of any of the Noteholders, pursuant to the
provisions of this Indenture or any Series Supplement, unless such
Noteholders shall have offered to the Trustee reasonable security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities which may be
incurred therein or thereby; nothing contained herein shall, however, relieve
the Trustee of the obligations, upon the occurrence of a default by the Lessee,
the Servicer, the Hertz Nominee, the HFC Nominee, Hertz Vehicles LLC, HGI or
HVF (which has not been cured), to exercise such of the rights and powers
vested in it by this Indenture or any Series Supplement, and to use the
same degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.


 


(f) The
Trustee shall not be bound to make any investigation into the facts of matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by the Required Noteholders of any Series of
Notes. If the Trustee is so requested by the Required Noteholders or determines
in its own discretion to make such further inquiry or investigation into such
facts or matters as it sees fit, the Trustee shall be entitled to examine the
books, records and premises of HVF, personally or by agent or attorney, at the
sole cost of HVF and the Trustee shall incur no liability by reason of such
inquiry or investigation.


 


(g) The
Trustee shall not be liable for any losses or liquidation penalties in
connection with Permitted Investments, unless such losses or liquidation
penalties were incurred through the Trustee’s own willful misconduct,
negligence or bad faith.


 


(h) The
Trustee shall not be liable for the acts or omissions of any successor to the
Trustee so long as such acts or omissions were not the result of the
negligence, bad faith or willful misconduct of the predecessor Trustee.


 


(i) The
Trustee shall not be required to take any action pursuant to any request or
direction of HVF unless such request or direction is sufficiently evidenced by
a Company Request or Company Order.


 


(j) Whenever
in the administration of this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, conclusively rely
upon an Officer’s Certificate.


 


(k) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and each agent, custodian and other person employed to act hereunder.


 


(l) The
Trustee may request that HVF deliver an incumbency certificate setting
forth the names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this Indenture, which incumbency
certificate may be signed by any person


 


49

















 


authorized to sign an Officer’s
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.


 


Section 10.3.
Individual Rights of the Trustee.


 


The Trustee in
its individual or any other capacity may become the owner or pledgee of
Notes and may otherwise deal with HVF or an Affiliate of HVF with the same
rights it would have if it were not Trustee. Any Agent may do the same
with like rights.


 


Section 10.4.
Notice of Amortization Events and Potential Amortization Events.


 


If an
Amortization Event or a Potential Amortization Event with respect to any Series of
Notes Outstanding occurs and is continuing of which a Trust Officer shall have
received written notice, the Trustee shall promptly (and in any event within
five (5) Business Days) provide the Noteholders, HVF and each Rating
Agency with notice of such Amortization Event or Potential Amortization Event,
to the extent that the Notes of such Series are Book-Entry Notes, by
telephone and facsimile and otherwise by first class mail.


 


Section 10.5.
Compensation.


 


(a) HVF
shall promptly pay to the Trustee from time to time compensation for its
acceptance of this Indenture and services hereunder as the Trustee and HVF
shall from time to time agree in writing. The Trustee’s compensation shall not
be limited by any law on compensation of a trustee of an express trust. HVF
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include (i) the
reasonable compensation, disbursements and expenses of the Trustee’s agents and
counsel and (ii) the reasonable expenses of the Trustee’s agents.


 


(b) HVF
shall not be required to reimburse any expense or indemnify the Trustee against
any loss, liability, or expense incurred by the Trustee through the Trustee’s
own willful misconduct or negligence.


 


(c) When
the Trustee incurs expenses or renders services after an Amortization Event
occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under the Bankruptcy Code.


 


(d) The
provisions of this Section 10.5 shall survive the termination of
this Indenture and the resignation and removal of the Trustee.


 


Section 10.6.
Replacement of the Trustee.


 


(a) A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 10.6.


 


50

















 


(b) The
Trustee may, after giving forty-five (45) days prior written notice to HVF,
each Noteholder and each Rating Agency, resign at any time and be discharged
from the trust hereby created; provided, however, that no such
resignation of the Trustee shall be effective until a successor trustee has
assumed the obligations of the Trustee hereunder. The Requisite Investors may remove
the Trustee at any time by so notifying the Trustee and HVF. So long as no
Amortization Event has occurred and is continuing with respect to any Series of
Outstanding Notes, HVF may remove the Trustee at any time. HVF shall
remove the Trustee if:


 


(i)                                     the Trustee fails
to comply with Section 10.8;


 


(ii)                                  the Trustee is
adjudged a bankrupt or an insolvent or an order for relief is entered with
respect to the Trustee under the Bankruptcy Code;


 


(iii)                               a custodian or public
officer takes charge of the Trustee or its property; or


 


(iv)                              the Trustee becomes
incapable of acting.


 


If the Trustee
resigns or is removed or if a vacancy exists in the office of the Trustee for
any reason, HVF shall promptly appoint a successor Trustee. Within one year
after the successor Trustee takes office, the Requisite Investors may appoint
a successor Trustee to replace the successor Trustee appointed by HVF.


 


(c) If a
successor Trustee does not take office within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, at the expense of HVF, HVF
or any Noteholder may petition any court of competent jurisdiction for the
appointment of a successor Trustee.


 


(d) If
the Trustee after written request by any Noteholder fails to comply with Section 10.8,
such Noteholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.


 


(e) A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee or removed Trustee and to HVF. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture and any Series Supplement. The successor Trustee shall mail a
notice of its succession to Noteholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee; provided,
however, that all sums owing to the retiring Trustee hereunder have been
paid. Notwithstanding replacement of the Trustee pursuant to this Section 10.6,
HVF’s obligations under Section 10.5 shall continue for the benefit
of the retiring Trustee.


 


Section 10.7.
Successor Trustee by Merger, etc.


 


Subject to Section 10.8,
if the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.


 


51

















 


Section 10.8.
Eligibility Disqualification.


 


(a) There
shall at all times be a Trustee hereunder which shall (i) be a corporation
organized and doing business under the laws of the United States of America or
of any state thereof authorized under such laws to exercise corporate trustee
power and (ii) be subject to supervision or examination by Federal or
state authority and shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.


 


(b) At
any time the Trustee shall cease to satisfy the eligibility requirements of Section 10.8(a) above,
the Trustee shall resign immediately in the manner and with the effect
specified in Section 10.6.


 


Section 10.9.
Appointment of Co-Trustee or Separate Trustee.


 


(a) Notwithstanding
any other provisions of this Indenture or any Series Supplement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Indenture Collateral may at the time be
located, the Trustee shall have the power and may execute and deliver all
instruments to appoint one or more persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of
the Indenture Collateral, and to vest in such Person or Persons, in such
capacity and for the benefit of the Noteholders, such title to the Indenture
Collateral, or any part thereof, and, subject to the other provisions of
this Section 10.9, such powers, duties, obligations, rights and
trusts as the Trustee may consider necessary or desirable. No co-trustee
or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 10.8 and no notice
to Noteholders of the appointment of any co-trustee or separate trustee shall
be required under Section 10.6. No co-trustee shall be appointed
without the consent of HVF unless such appointment is required as a matter of
state law or to enable the Trustee to perform its functions hereunder.


 


(b) Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and conditions:


 


(i)                                     The Notes of each Series shall
be authenticated and delivered solely by the Trustee or an authenticating agent
appointed by the Trustee;


 


(ii)                                  All rights, powers,
duties and obligations conferred or imposed upon the Trustee shall be conferred
or imposed upon and exercised or performed by the Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate trustee
or co-trustee is not authorized to act separately without the Trustee joining
in such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the Trustee shall be
incompetent or unqualified to perform, such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Indenture Collateral or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;


 


52

















 


(iii)                               No trustee hereunder
shall be personally liable by reason of any act or omission of any other
trustee hereunder; and


 


(iv)                              The Trustee may at
any time accept the resignation of or remove any separate trustee or
co-trustee.


 


(c) Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Indenture and the conditions
of this Article 10. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture and any Series Supplement, specifically
including every provision of this Indenture or any Series Supplement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to HVF.


 


(d) Any
separate trustee or co-trustee may at any time constitute the Trustee, its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect to this Indenture
or any Series Supplement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.


 


Section 10.10.
Representations and Warranties of Trustee.


 


The Trustee
represents and warrants to HVF and the Noteholders that:


 


(i)                                     The Trustee is an
Illinois trust company, organized, existing and in good standing under the laws
of the State of Illinois;


 


(ii)                                  The Trustee has full
power, authority and right to execute, deliver and perform this Indenture
and any Series Supplement issued concurrently with this Indenture and to
authenticate the Notes, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Indenture and any Series Supplement
issued concurrently with this Indenture and to authenticate the Notes;


 


(iii)                               This Indenture has been
duly executed and delivered by the Trustee; and


 


(iv)                              The Trustee meets the
requirements of eligibility as a trustee hereunder set forth in Section 10.8.


 


Section 10.11.
HVF Indemnification of the Trustee.


 


HVF shall
indemnify and hold harmless the Trustee or any predecessor Trustee and their
respective directors, officers, agents and employees from and against any loss,
liability,


 


53

















 


claim, expense (including taxes, other than taxes based upon, measured
by or determined by the income of the Trustee or such predecessor Trustee),
damage or injury suffered or sustained by reason of any acts, omissions or
alleged acts or omissions arising out of or in connection with the activities
of the Trustee or such predecessor Trustee pursuant to this Indenture or any Series Supplement,
including but not limited to any judgment, award, settlement, reasonable
attorneys’ fees and other costs or expenses reasonably incurred in connection
with the defense of any actual or threatened action, proceeding, claim (whether
asserted by HVF or any Noteholder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder, or
in connection with enforcing the provisions of this Section 10.11; provided,
however, that HVF shall not indemnify the Trustee, any predecessor
Trustee or their respective directors, officers, employees or agents if such
acts, omissions or alleged acts or omissions constitute bad faith or negligence
by the Trustee or such predecessor Trustee, as the case may be. The
indemnity provided herein shall survive the termination of this Indenture and
the resignation and removal of the Trustee.


 


ARTICLE XI   DISCHARGE OF INDENTURE


 


Section 11.1.
Termination of HVF’s Obligations.


 


(a) This
Indenture shall cease to be of further effect (except that (i) HVF’s
obligations under Section 10.5 and Section 10.11, (ii) the
Trustee’s and Paying Agent’s obligations under Section 11.3 and (iii) the
Noteholders’ and the Trustee’s obligations under Section 13.15 shall
survive) when all Outstanding Notes theretofore authenticated and issued (other
than destroyed, lost or stolen Notes which have been replaced or paid) have
been delivered to the Trustee for cancellation and HVF has paid all sums
payable hereunder.


 


(b) In
addition, except as may be provided to the contrary in any Series Supplement,
HVF may terminate all of its obligations under this Indenture if:


 


(i)                                     HVF irrevocably
deposits in trust with the Trustee or at the option of the Trustee, with a
trustee reasonably satisfactory to the Trustee and HVF under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
Trustee, money or U.S. Government Obligations in an amount sufficient, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay, when due, principal and interest on the Notes to maturity or
redemption, as the case may be, and to pay all other sums payable by it
hereunder; provided, however, that (1) the trustee of the
irrevocable trust shall have been irrevocably instructed to pay such money or
the proceeds of such U.S. Government Obligations to the Trustee and (2) the
Trustee shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment of said principal
and interest with respect to the Notes;


 


(ii)                                  HVF delivers to the
Trustee an Officer’s Certificate of HVF stating that all conditions precedent
to satisfaction and discharge of this Indenture have been complied with, and an
Opinion of Counsel to the same effect;


 


54

















 


(iii)                               HVF delivers to the
Trustee an Officer’s Certificate of HVF stating that no Potential Amortization
Event or Amortization Event shall have occurred and be continuing on the date
of such deposit; and


 


(iv)                              the Rating Agency
Condition with respect to each Series of Notes Outstanding shall have been
satisfied with respect to such deposit and termination of obligations pursuant
to this Section 11.1.


 


Then, this
Indenture shall cease to be of further effect (except as provided in this Section 11.1),
and the Trustee, on demand of HVF, shall execute proper instruments
acknowledging confirmation of and discharge under this Indenture.


 


(c) After
such irrevocable deposit made pursuant to Section 11.1(b) and
satisfaction of the other conditions set forth herein, the Trustee upon request
shall acknowledge in writing the discharge of HVF’s obligations under this
Indenture except for those surviving obligations specified above.


 


In order to
have money available on a payment date to pay principal or interest on the
Notes, the U.S. Government Obligations shall be payable as to principal or
interest at least one Business Day before such payment date in such amounts as
will provide the necessary money. U.S. Government Obligations shall not be
callable at the issuer’s option.


 


(d) The
representations and warranties set forth in Article 7 of this
Indenture shall survive for so long as any Series of Notes are
Outstanding, and may not be waived with respect to any Series of
Notes Outstanding.


 


Section 11.2.
Application of Trust Money.


 


The Trustee or
a trustee satisfactory to the Trustee and HVF shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 11.1. The
Trustee shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent in accordance with this Indenture to the
payment of principal and interest on the Notes. The provisions of this Section 11.2
shall survive the expiration or earlier termination of this Indenture.


 


Section 11.3.
Repayment to HVF.


 


The Trustee
and the Paying Agent shall promptly pay to HVF upon written request any excess
money or, pursuant to Sections 2.10 and 2.14, return any Notes
held by them at any time.


 


Subject to Section 2.6(c),
the Trustee and the Paying Agent shall pay to HVF upon written request any
money held by them for the payment of principal or interest that remains
unclaimed for two years after the date upon which such payment shall have
become due.


 


The provisions
of this Section 11.3 shall survive the expiration or earlier
termination of this Indenture.


 


55

















 


ARTICLE XII   AMENDMENTS


 


Section 12.1.
Without Consent of the Noteholders.


 


(a) Without
the consent of any Noteholder, HVF and the Trustee, at any time and from time
to time, may enter into one or more Supplements hereto, in form satisfactory
to the Trustee, for any of the following purposes:


 


(i)                                     to create a new Series of
Notes;


 


(ii)                                  to add to the
covenants of HVF for the benefit of any Noteholders (and if such covenants are
to be for the benefit of less than all Series of Notes, stating that such
covenants are expressly being included solely for the benefit of such Series)
or to surrender any right or power herein conferred upon HVF (provided, however,
that HVF will not pursuant to this subsection 12.1(a)(ii) surrender
any right or power it has under the Related Documents);


 


(iii)                               to mortgage, pledge,
convey, assign and transfer to the Trustee any property or assets as security
for the Notes and to specify the terms and conditions upon which such property
or assets are to be held and dealt with by the Trustee and to set forth such
other provisions in respect thereof as may be required by the Indenture or
as may, consistent with the provisions of the Indenture, be deemed appropriate
by HVF and the Trustee, or to correct or amplify the description of any such
property or assets at any time so mortgaged, pledged, conveyed and transferred
to the Trustee;


 


(iv)                              to cure any ambiguity,
defect, or inconsistency or to correct or supplement any provision contained
herein or in any Series Supplement or in any Notes issued hereunder;


 


(v)                                 to provide for
uncertificated Notes in addition to certificated Notes;


 


(vi)                              to add to or change any
of the provisions of the Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Notes in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;


 


(vii)                           to evidence and provide for
the acceptance of appointment hereunder by a successor Trustee with respect to
the Notes of one or more Series and to add to or change any of the
provisions of the Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee; or


 


(viii)                        to correct or supplement any
provision herein or in any Series Supplement which may be
inconsistent with any other provision herein or therein or to make any other
provisions with respect to matters or questions arising under this Indenture or
in any Series Supplement;


 


provided,
however, that, as evidenced by an Officer’s Certificate of HVF, such
action shall not adversely affect in any material respect the interests of any
Noteholder or Enhancement Provider.


 


56

















 


(b) Upon
the request of HVF and receipt by the Trustee of the documents described in Section 2.2,
the Trustee shall join with HVF in the execution of any Series Supplement
authorized or permitted by the terms of this Indenture and shall make any
further appropriate agreements and stipulations which may be therein
contained, but the Trustee shall not be obligated to enter into such Series Supplement
which affects its own rights, duties or immunities under this Indenture or
otherwise.


 


Section 12.2.
With Consent of the Noteholders.


 


Except as
provided in Section 12.1, the provisions of this Indenture and any Series Supplement
(unless otherwise provided in such Series Supplement) may from time
to time be amended, modified or waived, if such amendment, modification or
waiver is in writing and consented to in writing by HVF, the Trustee and the
Requisite Investors (or the Required Noteholders of a Series of Notes, in
respect of any amendment to the Series Supplement with respect to such Series of
Notes or any amendment to the Indenture which affects only the Noteholders of
such Series of Notes and does not affect the Noteholders of any other Series of
Notes, as substantiated by a Officer’s Certificate of HVF to such effect); provided,
however that this Indenture, any Series Supplement and any Related
Document may be amended without the consent of any Noteholder, but subject
to any consents specified in a Series Supplement, in order to permit HVF
to provide financing in the form of one or more rated and/or unrated asset
backed securities and/or one or more credit facilities to PR Borrower for the
purpose of acquiring vehicles for its car rental fleet in Puerto Rico or to
make payments in reduction of the principal amount of other indebtedness of PR
Borrower or for any other purpose which is permitted in the consents, if any,
obtained pursuant to the Series Supplements; provided that the
Rating Agency Condition with respect to each Series of Notes Outstanding
shall have been satisfied with respect to such amendment; provided, further
that this Indenture may be amended by HVF without the consent of any
Noteholder for the purpose of amending the definition of the term “Ineligible
Non-Investment Grade Manufacturer Receivable Amount”; provided that the
Rating Agency Condition with respect to each Series of Notes Outstanding
shall have been satisfied with respect to such amendment. Notwithstanding the
foregoing (but subject to the proviso in the immediately preceding sentence):


 


(i)                                     any modification
of this Section 12.2, any requirement hereunder that any particular
action be taken by Noteholders holding the relevant percentage in Principal
Amount of the Notes or any change in the definition of the terms “Aggregate
Asset Amount”, “Aggregate Asset Amount Deficiency”, “Eligible Manufacturer
Program”, “Eligible Manufacturer”, “Eligible Program Manufacturer”, “Ineligible
Asset Amount”, “Limited Liquidation Event of Default”, “Liquidation Event of
Default” or “Manufacturer Program” or the applicable amount of Enhancement
shall require the consent of each affected Noteholder;


 


(ii)                                  any amendment, waiver
or other modification that would (A) extend the due date for, or reduce
the amount of any scheduled repayment or prepayment of principal of or interest
on any Note (or reduce the principal amount of or rate of interest on any Note)
shall require the consent of each affected Noteholder; (B) affect
adversely the interests, rights or obligations of any Noteholder individually
in comparison to any other Noteholder shall require the consent of such
Noteholder; or (C) amend or


 


57

















 


otherwise modify any Amortization Event shall require the consent of each
affected Noteholder; and


 


(iii)                               any amendment, waiver or
other modification that would (A) approve the assignment or transfer by
HVF of any of its rights or obligations hereunder or under any other Related
Document to which it is a party, except pursuant to the express terms hereof or
thereof; (B) release any obligor under any Related Document to which it is
a party, except pursuant to the express terms of such Related Document; or (C) amend
or otherwise modify any Servicer Default, shall require in each case the
consent of Noteholders holding not less than 662/3% of
the Aggregate Principal Amount (or Noteholders holding not less than 662/3%
of the aggregate Principal Amount Outstanding of any Series of Notes, in
respect of any amendment to a Series Supplement with respect to such Series of
Notes or any amendment to the Indenture which affects only the Noteholders of
such Series of Notes and does not affect the Noteholders of any other Series of
Notes, as substantiated by an Officer’s Certificate of HVF to such effect).


 


No failure or
delay on the part of any Noteholder or the Trustee in exercising any power
or right under this Indenture or any other Related Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power or
right preclude any other or further exercise thereof or the exercise of any
other power or right.


 


Section 12.3.
Supplements.


 


Each amendment
or other modification to this Indenture or the Notes shall be set forth in a
Supplement. The initial effectiveness of each Supplement shall be subject to
the satisfaction of the Rating Agency Condition with respect to each Series of
Notes Outstanding and the delivery to the Trustee of an Opinion of Counsel that
such Supplement is authorized by this Indenture and the conditions precedent
set forth herein and in such Series Supplement with respect thereto have
been satisfied. In addition to the manner provided in Sections 12.1
and 12.2, each Series Supplement may be amended as provided in
such Series Supplement.


 


Section 12.4.
Revocation and Effect of Consents.


 


Until an
amendment or waiver becomes effective, a consent to it by a Noteholder of a
Note is a continuing consent by the Noteholder and every subsequent Noteholder
of a Note or portion of a Note that evidences the same debt as the consenting
Noteholder’s Note, even if notation of the consent is not made on any Note. However,
any such Noteholder or subsequent Noteholder may revoke the consent as to
his Note or portion of a Note if the Trustee receives written notice of
revocation before the date the amendment or waiver becomes effective. An
amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Noteholder. HVF may fix a record date for
determining which Noteholders must consent to such amendment or waiver.


 


Section 12.5.
Notation on or Exchange of Notes.


 


The Trustee may place
an appropriate notation about an amendment or waiver on any Note thereafter
authenticated. HVF, in exchange for all Notes, may issue and the Trustee
shall authenticate new Notes that reflect the amendment or waiver. Failure to
make the


 


58

















 


appropriate notation or issue a new Note shall not affect the validity
and effect of such amendment or waiver.


 


Section 12.6.
The Trustee to Sign Amendments, etc.


 


The Trustee
shall sign any Supplement authorized pursuant to this Article 12 if
the Supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In
signing such Supplement, the Trustee shall be entitled to receive, if
requested, an indemnity reasonably satisfactory to it and to receive and,
subject to Section 10.1, shall be fully protected in relying upon,
an Officer’s Certificate of HVF and an Opinion of Counsel as conclusive
evidence that such Supplement is authorized or permitted by this Indenture and
that all conditions precedent have been satisfied, and that it will be valid
and binding upon HVF in accordance with its terms.


 


ARTICLE XIII   MISCELLANEOUS


 


Section 13.1.
Notices.


 


(a) Any
notice or communication by HVF or the Trustee to the other shall be in writing
and delivered in person or mailed by first-class mail (registered or
certified, return receipt requested), telex, telecopier or overnight air
courier guaranteeing next day delivery, to the other’s address:


 


If to HVF:


 


Hertz Vehicle
Financing LLC


c/o                               The
Hertz Corporation


225 Brae Boulevard


Park Ridge, NJ 07656


 


Attn:                    Treasury
Department


Phone:                     (201)
307-2000


Fax:                      (201)
307-2746


 


with a copy to
the Administrator:


 


The Hertz
Corporation


225 Brae
Boulevard


Park Ridge, NJ
07656


 


Attn:                    Treasury
Department


Phone:                     (201)
307-2000


Fax:                      (201)
307-2746


 


59

















 


If to the Trustee:


 


BNY Midwest
Trust Company


2 North
LaSalle


Chicago, IL
60602


 


Attn:                    Corporate
Trust Administration – Structured Finance


Phone:                     (312)
827-8569


Fax:                      (312)
827-8562


 


If to an
Enhancement Provider, at the address provided in the applicable Enhancement Agreement.


 


HVF or the
Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications; provided, however,
HVF may not at any time designate more than a total of three (3) addresses
to which notices must be sent in order to be effective.


 


Any notice (i) given
in person shall be deemed delivered on the date of delivery of such notice, (ii) given
by first class mail shall be deemed given five (5) days after the
date that such notice is mailed, (iii) delivered by telex or telecopier
shall be deemed given on the date of delivery of such notice, and (iv) delivered
by overnight air courier shall be deemed delivered one Business Day after the
date that such notice is delivered to such overnight courier.


 


Notwithstanding
any provisions of this Indenture to the contrary, the Trustee shall have no
liability based upon or arising from the failure to receive any notice required
by or relating to this Indenture or the Notes.


 


If HVF mails a
notice or communication to Noteholders, it shall mail a copy to the Trustee at
the same time.


 


(b) Where
the Indenture provides for notice to Noteholders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if
sent in writing and mailed, first-class postage prepaid, to each
Noteholder affected by such event, at its address as it appears in the Note
Register, not later than the latest date, and not earlier than the earliest
date, prescribed (if any) for the giving of such notice. In any case where
notice to a Noteholder is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Noteholder
shall affect the sufficiency of such notice with respect to other Noteholders,
and any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by any
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Noteholders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.


 


In the case by
reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be


 


60

















 


made that is satisfactory to the Trustee shall constitute a sufficient
notification for every purpose hereunder.


 


Section 13.2.
Communication by Noteholders With Other Noteholders.


 


Noteholders may communicate
with other Noteholders with respect to their rights under this Indenture or the
Notes.


 


Section 13.3.
Certificate and Opinion as to Conditions Precedent.


 


Upon any
request or application by HVF to the Trustee to take any action under this
Indenture, HVF shall furnish to the Trustee an Officer’s Certificate of HVF in form and
substance reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 13.4) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any, provided for in
this Indenture relating to the proposed action have been complied with.


 


Section 13.4.
Statements Required in Certificate.


 


Each
certificate with respect to compliance with a condition or covenant provided
for in this Indenture shall include:


 


(a) a
statement that the Person giving such certificate has read such covenant or
condition;


 


(b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements contained in such certificate are based;


 


(c) a
statement that, in the opinion of such Person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and


 


(d) a
statement as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with.


 


Section 13.5.
Rules by the Trustee.


 


The Trustee may make
reasonable rules for action by or at a meeting of Noteholders.


 


Section 13.6.
Duplicate Originals.


 


The parties may sign
any number of copies of this Indenture. One signed copy is enough to prove this
Indenture.


 


Section 13.7.
Benefits of Indenture.


 


Except as set
forth in a Series Supplement, nothing in this Indenture or in the Notes,
expressed or implied, shall give to any Person, other than the parties hereto
and their


 


61

















 


successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under the Indenture.


 


Section 13.8.
Payment on Business Day.


 


In any case
where any Payment Date, redemption date or maturity date of any Note shall not
be a Business Day, then (notwithstanding any other provision of this Indenture)
payment of interest or principal (and premium, if any), as the case may be,
need not be made on such date but may be made on the next succeeding
Business Day with the same force and effect as if made on the Payment Date,
redemption date, or maturity date; provided, however. that no
interest shall accrue for the period from and after such Payment Date, redemption
date, or maturity date, as the case may be.


 


Section 13.9.
Governing Law.


 


THIS INDENTURE, AND ALL MATTERS ARISING FROM OR IN ANY MANNER RELATING
TO THIS INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


Section 13.10.
Successors.


 


All agreements
of HVF in this Indenture and the Notes shall bind its successor; provided,
however, HVF may not assign its obligations or rights under this
Indenture or any Related Document. All agreements of the Trustee in this
Indenture shall bind its successor.


 


Section 13.11.
Severability.


 


In case any
provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.


 


Section 13.12.
Counterpart Originals.


 


The parties may sign
any number of copies of this Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.


 


Section 13.13.
Table of Contents, Headings, etc.


 


The Table of
Contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part hereof,
and shall in no way modify or restrict any of the terms or provisions hereof.


 


Section 13.14.
Termination; Indenture Collateral.


 


This
Indenture, and any grants, pledges and assignments hereunder, shall become
effective concurrently with the issuance of the first Series of Notes and
shall terminate when (a) all Note Obligations shall have been fully paid
and satisfied, (b) the obligations of each


 


62

















 


Enhancement Provider under any Enhancement and related documents have
terminated, and (c) any Enhancement shall have terminated, at which time
the Trustee, at the request of HVF and upon receipt of an Officer’s Certificate
of HVF to the effect that the conditions in clauses (a), (b) and
(c) above have been complied with and upon receipt of a certificate
from the Trustee and each Enhancement Provider to the effect that the
conditions in clauses (a), (b) and (c) above
have been complied with, shall reassign (without recourse upon, or any warranty
whatsoever by, the Trustee) and deliver all Indenture Collateral and documents
then in the custody or possession of the Trustee promptly to HVF.


 


HVF and the
Noteholders hereby agree that, if any funds remain on deposit in the Collection
Account after the termination of this Indenture, such amounts shall be released
by the Trustee and paid to HVF.


 


Section 13.15.
No Bankruptcy Petition Against HVF.


 


Each of the
Noteholders and the Trustee hereby covenants and agrees that, prior to the date
which is one year and one day after the payment in full of the latest maturing
Note, it will not institute against, or join with any other Person in
instituting, against HVF, Hertz Vehicles LLC, HGI or the Intermediary any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings, under any Federal or state bankruptcy or similar law; provided,
however, that nothing in this Section 13.15 shall constitute
a waiver of any right to indemnification, reimbursement or other payment from
HVF pursuant to this Indenture. In the event that any such Noteholder or the
Trustee takes action in violation of this Section 13.15, HVF, Hertz
Vehicles LLC, HGI or the Intermediary, as the case may be, shall file or
cause to be filed an answer with the bankruptcy court or otherwise properly
contesting the filing of such a petition by any such Noteholder or the Trustee
against HVF, Hertz Vehicles LLC, HGI or the Intermediary, as the case may be,
or the commencement of such action and raising the defense that such Noteholder
or the Trustee has agreed in writing not to take such action and should be
estopped and precluded therefrom and such other defenses, if any, as its
counsel advises that it may assert. The provisions of this Section 13.15
shall survive the termination of this Indenture, and the resignation or removal
of the Trustee. Nothing contained herein shall preclude participation by any
Noteholder or the Trustee in the assertion or defense of its claims in any such
proceeding involving HVF, Hertz Vehicles LLC, HGI or the Intermediary.


 


Section 13.16.
No Recourse.


 


The
obligations of HVF under this Indenture are solely the obligations of HVF. No
recourse shall be had for the payment of any amount owing in respect of any fee
hereunder or any other obligation or claim arising out of or based upon this Indenture
against any member, employee, officer or director of HVF. Fees, expenses or
costs payable by HVF hereunder shall be payable by HVF to the extent and only
to the extent that HVF is reimbursed therefor pursuant to any of the Related
Documents, or funds are then available or thereafter become available for such
purpose pursuant to Article 5. In the event that HVF is not
reimbursed for such fees, expenses or costs or that sufficient funds are not
available for their payment pursuant to Article 5, the excess
unpaid amount of such fees, expenses or costs shall in no event constitute a
claim (as defined in Section 101 of the Bankruptcy Code) against, or
corporate obligation of, HVF.


 


63

















 


Nothing in this Section 13.16 shall be construed to limit
the Trustee from exercising its rights hereunder with respect to the
Collateral.


 


Section 13.17.
Waiver of Jury Trial.


 


EACH OF HVF AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


 


64

















 


IN WITNESS
WHEREOF, the Trustee and HVF have caused this Indenture to be duly executed by
their respective duly authorized officers as of the day and year first written
above.


 


	
   

  	
  HERTZ VEHICLE FINANCING LLC,

  
	
   

  	
  as Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/    Robert H.
  Rillings

  	
   

  
	
   

  	
  Name:

  	
  Robert H. Rillings

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BNY MIDWEST TRUST COMPANY,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/   Eric A. Lindahl

  	
   

  
	
   

  	
  Name:

  	
  Eric A. Lindahl

  
	
   

  	
  Title:

  	
  Vice President

  



 


65
















 


SCHEDULE 1


TO THE


AMENDED AND RESTATED


BASE INDENTURE


 


DEFINITIONS
LIST


 


“ABL
Collateral Agent” means Deutsche Bank AG, New York Branch, in its capacity
as Collateral Agent under the ABL Guarantee and Collateral Agreement.


 


“ABL
Guarantee and Collateral Agreement” means that certain Guarantee and
Collateral Agreement, dated as of the Restatement Effective Date, by and among,
Hertz, certain of its subsidiaries, CCMG Corporation, and Deutsche Bank AG, New
York Branch, as collateral agent.


 


“Account
Collateral” means HVF’s right, title and interest in, to and under all of
the assets, property and interests in property, whether now owned or hereafter
acquired or created, in Section 3.1(a)(ii) and (iii) of
this Base Indenture.


 


“Accrued
Amounts” means, with respect to any Series of Notes (or any class of
such Series of Notes), the amount, if any, specified in the applicable Series Supplement.


 


“Accumulation
Period” means, with respect to any Series of Notes, the period, if
any, specified in the applicable Supplement.


 


“Acquisition
Date” the date on which CCMG Acquisition, Corporation, a company formed by Clayton
Dubilier & Rice, Inc., The Carlyle Group, and Merrill Lynch
Global Partners, Inc. or an affiliate thereof consummates the acquisition
of Hertz, directly or through one or more subsidiaries.


 


“Additional
Subsidies” has the meaning specified in Section 1.1 of the Master
Exchange Agreement.


 


“Adjusted
Aggregate Asset Amount” with respect to any Series of Notes, has the
meaning specified in the applicable Series Supplement.


 


“Administration
Agreement” means the Amended and Restated Administration Agreement, dated
as of the Restatement Effective Date, by and among the Administrator, HVF and
the Trustee, as amended, modified or supplemented from time to time in accordance
with its terms.


 


“Administrator”
means Hertz, in its capacity as the administrator under the Administration
Agreement, or any successor Administrator thereunder.


 


“Administrator
Default” means any of the events described in Section 8(d) of
the Administration Agreement.


 

















 


“Affiliate”
means, with respect to any specified Person, another Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by or
is under common control with the Person specified. For purposes of this
definition, “control” means the power to direct the management and policies of
a Person, directly or indirectly, whether through ownership of voting
securities, by contract or otherwise; and “controlled” and “controlling” have
meanings correlative to the foregoing.


 


“Affiliate
Issuer” means any special purpose entity that is an Affiliate of Hertz that
has entered into financing arrangements secured by one or more Series of
Notes.


 


“Agent”
means any Registrar or Paying Agent.


 


“Aggregate
Asset Amount” means, as of any date, the amount equal to the sum, rounded
to the nearest $100,000, of (i) the Net Book Value of all Program Vehicles
that are Eligible Vehicles as of such date and not turned in to and accepted by
the Manufacturer thereof pursuant to its Manufacturer Program, not delivered
and accepted for Auction pursuant to a Manufacturer Program or not otherwise
sold or deemed to be sold under the Related Documents, plus (ii) the Net
Book Value of all Non-Program Vehicles that are Eligible Vehicles as of such
date not sold or deemed to be sold under the Related Documents, plus (iii) the
aggregate amount of Manufacturer Receivables (other than Excluded Payments)
payable to HVF or to the Intermediary pursuant to the Master Exchange
Agreement, in each case, as of such date by Manufacturers with respect to
Vehicles that are Eligible Vehicles and Eligible Program Vehicles when turned
in to and accepted by such Manufacturers or delivered and accepted for Auction,
plus (iv) the aggregate amount of Manufacturer Receivables (other than
Excluded Payments) payable to HVF or to the Intermediary pursuant to the Master
Exchange Agreement, in each case, as of such date by Manufacturers with respect
to Vehicles that were Eligible Vehicles but not Eligible Program Vehicles when
turned in to and accepted by such Manufacturers or delivered and accepted for
Auction, plus (v) with respect to Eligible Vehicles that have been
delivered and accepted for Auction pursuant to a Manufacturer Program, all
amounts receivable (other than amounts specified in clauses (iii) and (iv) above)
from any Person in connection with the Auction of such Eligible Vehicles as of
such date, plus (vi) with respect to Eligible Vehicles that have been
turned in to and accepted by the Manufacturer, delivered and accepted for
Auction or otherwise sold, any accrued and unpaid Casualty Payments or
Termination Payments with respect to such Eligible Vehicles as of such date
under the HVF Lease, plus (vii) with respect to Eligible Vehicles that
have been turned in to and accepted by the Manufacturer, delivered and accepted
for Auction or otherwise sold, any accrued and unpaid Monthly Base Rent with
respect to such Eligible Vehicles under the HVF Lease (net of amounts set forth
in clauses (iii), (iv), (v) and (vi) above), plus (viii) with
respect to Rejected Vehicles, the amount due and payable as of such date by HGI
to HVF pursuant to Section 1.05(b) of the Purchase Agreement, plus (ix) with
respect to Eligible Vehicles that were Program Vehicles sold by HVF to a third
party pursuant to Section 2.5(a) of the HVF Lease, any non-return
incentives payable to HVF under a Manufacturer Program by an Eligible Program
Manufacturer in respect of the sale of such Vehicles outside of the related
Manufacturer Program as of such date, plus (x) if such date is during the
period from and including a Determination Date to but excluding the next
Payment Date, accrued and unpaid Monthly Base Rent payable on the next Payment
Date with respect to all Eligible Vehicles as of such date that have not been
turned in to and accepted by the Manufacturer thereof pursuant to its
Manufacturer Program, not been delivered and accepted


 


2

















 


for Auction
pursuant to a Manufacturer Program and not otherwise been sold or deemed to be
sold under the Related Documents, plus (xi) the amount of cash and Permitted
Investments on deposit in the Collection Account and the HVF Exchange Accounts,
minus (xii) any Ineligible Asset Amount on such date.


 


“Aggregate
Asset Amount Deficiency” means, with respect to any date of determination,
the amount, if any, by which the Aggregate Required Asset Amount on such date
exceeds the Aggregate Asset Amount on such date.


 


“Aggregate
Principal Amount” means the sum of the Principal Amounts with respect to
all Series of Notes then Outstanding.


 


“Aggregate
Required Asset Amount” means, on any date of determination, the sum of the
Required Asset Amount with respect to each Series of Notes Outstanding on
such date.


 


“Amortization
Commencement Date” means, with respect to a Series of Notes, the date
on which an Amortization Event for such Series is deemed to have occurred
pursuant to Section 9.1 of the Base Indenture.


 


“Amortization
Event” with respect to each Series of Notes, has the meaning specified
in Section 9.1 of the Base Indenture.


 


“Amortization
Period” means, with respect to any Series of Notes, the period
following the Revolving Period which shall be the Accumulation Period, the
Controlled Amortization Period or the Rapid Amortization Period, each as
defined in the applicable Series Supplement.


 


“Annual
Noteholders’ Tax Statement” has the meaning specified in Section 4.2(b) of
the Base Indenture.


 


“Applicants”
has the meaning specified in Section 2.7 of the Base Indenture.


 


“Assignment
Agreement” means the agreement with respect to each Manufacturer and its
Manufacturer Program, entered into or to be entered into among Hertz, HGI, HVF
and the Collateral Agent and acknowledged by such Manufacturer, (a) (x) (i) assigning
to HGI certain of Hertz’s rights, title and interest in and to such
Manufacturer’s Manufacturer Program as such rights, title and interest relate
to passenger automobiles and light-duty trucks purchased and to be purchased by
HGI from such Manufacturer under such Manufacturer Program and (ii) assigning
from HGI to HVF those rights, title and interest as they relate to passenger
automobiles and light-duty trucks purchased by HVF from HGI pursuant to the
Purchase Agreement, (y) in the case of the Initial Hertz Vehicles, assigning to
HVF certain of Hertz’s rights, title and interest in and to such Manufacturer’s
Manufacturer Program as such rights, title and interest relate to passenger
automobiles and light-duty trucks purchased by Hertz from such Manufacturer under
such Manufacturer Program and contributed by Hertz to HVF and (z) in the case
of the Service Vehicles, assigning to HVF certain of HFC’s rights, title and
interest in and to such Manufacturer’s Manufacturer Program as such rights,
title and interest relate to passenger automobiles and light-duty trucks
purchased by HFC from such Manufacturer under such


 


3

















 


Manufacturer
Program and purchased by HVF from HFC, (b) assigning to the Collateral
Agent on behalf of the Trustee HVF’s rights, title and interest therein and (c) assigning
to the Collateral Agent on behalf of Hertz HGI’s rights, title and interest
therein.


 


“Auction”
means the set of procedures specified in a Guaranteed Depreciation Program for
sale or disposition of Program Vehicles through auctions and at auction sites
designated by such Program Vehicles’ Manufacturer pursuant to such Guaranteed
Depreciation Program.


 


“Audi” means Audi of America, Inc., a division of
Volkswagen.


 


“Authorized
Officer” means (a) as to HGI, any of the President, any Vice
President, the Treasurer or any Assistant Treasurer of HGI, (b) as to HVF,
any of the President, any Vice President, the Treasurer or any Assistant
Treasurer of HVF and (c) as to the Servicer, the Administrator or the
Lessee, any of the President, any Vice President, the Treasurer or any
Assistant Treasurer of Hertz.


 


“Bankruptcy
Code” means The Bankruptcy Reform Act of 1978, as amended from time to
time, and as codified as 11 U.S.C. Section 101 et  seq.


 


“Base
Indenture” means the Amended and Restated Base Indenture, dated as of the
Restatement Effective Date, between HVF and the Trustee, as amended, modified
or supplemented from time to time, exclusive of Series Supplements.


 


“BMW”
means Bayerische Motoren Werke Aktiengesellschaft, a German corporation, and
its successors.


 


“Board of
Directors” means the Board of Directors of the Lessee or the Board of
Directors of HVF, as applicable, or, in each case, any authorized committee of
the Board of Directors.


 


“Book-Entry
Notes” means beneficial interests in the Notes, ownership and transfers of
which shall be evidenced or made through book entries by a Clearing Agency as
described in Section 2.12 of the Base Indenture; provided
that after the occurrence of a condition whereupon book-entry registration and
transfer are no longer permitted and Definitive Notes are issued to the Note
Owners, such Definitive Notes shall replace Book-Entry Notes.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which
banks are authorized or required by law to be closed in New York City, New
York.


 


“Capitalized
Cost” means, with respect to each Vehicle, the sum of (a) the price
paid for such Vehicle by HGI or the Intermediary (or, in the case of the
Initial Hertz Vehicles, Hertz, or, in the case of the Service Vehicles, HFC) to
the Manufacturer, dealer or other Person selling such Vehicle, as established
by the invoice delivered in connection with the purchase of such Vehicle and
reflecting any adjustments made pursuant to Section 1.05(d) of
the Purchase Agreement (or, with respect to the Initial Hertz Vehicles or the
Service Vehicles, any adjustments made by the related Manufacturer to such
invoice price), plus, (b) if not otherwise included therein, with respect
to any Program Vehicle, dealer profit to the extent included in the


 


4

















 


capitalized
cost of such Program Vehicle under the terms of the applicable Manufacturer
Program, or, with respect to any Non-Program Vehicle, dealer profit to the
extent included in the capitalized cost of Program Vehicles of the same make,
model and model year under the terms of the applicable Manufacturer Program,
plus (c) delivery charges for such Vehicle minus, in the case of any Non-Program
Vehicle, the amount of any upfront incentive fees paid or payable to HGI or the
Intermediary (or, in the case of the Initial Hertz Vehicles, Hertz, or, in the
case of the Service Vehicles, HFC) by the Manufacturer of such Vehicle in
respect of the purchase of such Vehicle.


 


“Carrying
Charges” means for any Payment Date, without duplication, the sum of (a) all
fees, expenses and other amounts payable by HVF to the Trustee under the
Indenture or to a Qualified Intermediary under the Master Exchange Agreement, (b) the
Monthly Servicing Fee payable by HVF to the Servicer on such Payment Date, (c) $1,500,
(d) the sum of (i) all reasonable out-of-pocket costs and expenses of
HVF incurred in connection with the issuance of each Series of Notes,
including any fees payable to the Rating Agencies in connection with their
rating of such Series of Notes and any fees or commissions payable in
connection with the sale of such Series of Notes, and (ii) all
reasonable out-of-pocket costs and expenses of HVF incurred in connection with
the execution, delivery and performance (including the enforcement, waiver or
amendment) of the Related Documents, and (e) any amounts owing to a
counterparty under a Swap Agreement or a Series-Specific Swap Agreement, less
(f) any amounts due from a counterparty under a Swap Agreement or a
Series-Specific Swap Agreement. Before issuance of any Series of Notes,
HVF will review the estimated out-of-pocket costs and expenses to be incurred
in connection with the issuance thereof with the Lessee. If Lessee objects to
such estimated costs and expenses, it shall notify HVF prior to the issuance of
such Series of Notes, and HVF shall not issue any additional Series of
Notes.


 


“Casualty”
means, with respect to any HVF Vehicle, that (a) such HVF Vehicle is
destroyed, seized or otherwise rendered permanently unfit or unavailable for
use, (b) such HVF Vehicle is lost or stolen and is not recovered for 180
days following the occurrence thereof or (c) in the case of a Program
Vehicle not redesignated under Section 2.6 of the HVF Lease, the
return of such HVF Vehicle cannot, prior to the end of the applicable
Repurchase Period, be effected for any reason or the Manufacturer thereof did
not accept such HVF Vehicle for repurchase under the terms of the applicable
Manufacturer Program, in either case, for any reason other than the
Manufacturer’s willful refusal or inability to comply with its obligations
under its Manufacturer Program.


 


“Casualty
Payment” has the meaning specified in Section 6.2 of the HVF Lease.


 


“Cede”
means Cede & Co., a nominee of DTC.


 


“Certificated
Security” means a “certificated security” within the meaning of Section 8-102
of the applicable UCC.


 


“Certificate
of Title” means, with respect to each Vehicle, the certificate of title applicable
to such Vehicle duly issued in accordance with the certificate of title act or
statute of the jurisdiction applicable to such Vehicle.


 


5

















 


“Chrysler”
means DaimlerChrysler Motors Corporation, a Delaware corporation, and its
successors.


 


“Class”
means, with respect to any Series of Notes, any one of the classes of
Notes of that Series as specified in the applicable Series Supplement.


 


“Clearing
Agency” means an organization registered as a “clearing agency” pursuant to
Section 17A of the Exchange Act or any successor provision thereto or
Euroclear or Clearstream.


 


“Clearing
Agency Participant” means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.


 


“Clearstream”
means Clearstream Banking, societe anonyme.


 


“Closing
Date” means the Restatement Effective Date or any Series Closing Date.


 


“Code”
means the Internal Revenue Code of 1986, as amended, reformed or otherwise
modified from time to time, and any successor statute of similar import, in
each case as in effect from time to time. References to sections of the Code
also refer to any successor sections.


 


“Collateral”
means the collective reference to the Indenture Collateral and the HVF Vehicle
Collateral.


 


“Collateral
Account” is defined in Section 2.5(a) of the Collateral
Agency Agreement.


 


“Collateral
Agency Agreement” means the Amended and Restated Collateral Agency
Agreement, dated as of the Restatement Effective Date, among HVF, as grantor,
HGI, as grantor, Hertz as servicer, the Collateral Agent, the Trustee, as
secured party, and Hertz, as secured party, as amended, restated, modified or
supplemented from time to time in accordance with its terms.


 


“Collateral
Agent” means BNY Midwest Trust Company, in its capacity as collateral agent
under the Collateral Agency Agreement and any successor thereto or permitted
assign in such capacity thereunder.


 


“Collateral
Agreements” means the HVF Lease, the Supplemental Documents, the Assignment
Agreements, the Purchase Agreement, the Hertz Contribution Agreement, the
Administration Agreement, the Nominee Agreement, the Hertz Nominee Agreement,
the HFC Nominee, the Indemnification Agreement, the LLC Agreement, the HVF
Credit Facility, any Swap Agreement, any Series-Specific Swap Agreement, any
Enhancement Agreement, the Master Exchange Agreement and the Escrow Agreement.


 


“Collection
Account” means securities account no. [account number] entitled “BNY
Midwest Trust Company, as Trustee, Securities Account of Hertz Vehicle
Financing LLC”


 


6

















 


maintained by
the Collection Account Securities Intermediary pursuant to the Collection
Account Control Agreement or any successor securities account maintained
pursuant to the Collection Account Control Agreement.


 


“Collection
Account Control Agreement” means the agreement among HVF, BNY Midwest Trust
Company, as securities intermediary, and the Trustee, dated as of September 18,
2002, relating to the Collection Account, as the same may be amended and
supplemented from time to time.


 


“Collection
Account Securities Intermediary” means BNY Midwest Trust Company or any
other securities intermediary that maintains the Collection Account pursuant to
the Collection Account Control Agreement.


 


“Collections”
means, without duplication, (a) all payments on the Collateral, including,
without limitation, (i) all payments by or on behalf of the Lessee under
the HVF Lease, (ii) all payments by Hertz to HVF under the Indemnification
Agreement, (iii) all proceeds of the HVF Vehicles, including (A) all
payments made by or on behalf of any Manufacturer or auction dealer, under the
related Manufacturer Program with respect to HVF Vehicles, but excluding
Excluded Payments, (B) all payments by or on behalf of any other Person as
proceeds from the sale of HVF Vehicles and (C) all insurance proceeds and
warranty payments in respect of the HVF Vehicles, but excluding Excluded
Payments, whether such payments are in the form of cash, checks, wire
transfers or other forms of payment and whether in respect of principal,
interest, repurchase price, fees, expenses or otherwise, (iv) all payments
by HGI to HVF under the Purchase Agreement, including, without limitation (A) all
payments of the Transfer Price by HGI in respect of Transferred HVF Vehicles
and Manufacturer Receivables pursuant to Section 1.06 of the
Purchase Agreement and (B) all payments of the Rejected Vehicle Payment by
HGI or the Servicer pursuant to Section 1.05(b) of the
Purchase Agreement, (v) all Swap Payments (vi) all payments made from
a Collateral Account (including the Joint Collection Account (as defined in the
Master Exchange Agreement)) or an HVF Exchange Account to the Collection
Account and (vii) all amounts earned on Permitted Investments of funds in
the Collection Account and, to the extent so specified in a Series Supplement,
in a Series Account.


 


“Committed
Purchaser” means a special purpose company that has committed to purchase a
Series of Notes from HVF from time to time and that finances such
purchases with, among other things, the proceeds of commercial paper notes
issued by such special purpose company.


 


“Company
Order” and “Company Request” means a written order or request signed
in the name of HVF by any one of its Authorized Officers and delivered to the
Trustee.


 


“Condition
Report” means a condition report with respect to a Program Vehicle, signed
and dated by the Servicer and a Manufacturer or its agent in accordance with
the applicable Manufacturer Program.


 


“Consolidated
Subsidiary” means, at any time, any Subsidiary or other entity the accounts
of which are consolidated with those of Hertz in its consolidated financial
statements as of such time.


 


7

















 


“Contingent
Obligation” means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of that Person (a) with respect to any
indebtedness, lease, dividend, letter of credit or other obligation of another
if the primary purpose or intent thereof by the Person incurring the Contingent
Obligation is to provide assurance to the obligee of such obligation of another
that such obligation of another will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
obligation will be protected (in whole or in part) against loss in respect
thereof or (b) under any letter of credit issued for the account of that Person
or for which that Person is otherwise liable for reimbursement thereof. Contingent
Obligation shall include (a) the direct or indirect guarantee, endorsement
(otherwise than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of
the obligation of another and (b) any liability of such Person for the
obligations of another through any agreement (contingent or otherwise) (i) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital
contributions or otherwise), (ii) to maintain the solvency of any balance
sheet item, level of income or financial condition of another or (iii) to
make take-or-pay or similar payments if required regardless of non-performance
by any other party or parties to an agreement, if in the case of any agreement
described under subclause (i) or (ii) of this sentence
the primary purpose or intent thereof is as described in the preceding
sentence. The amount of any Contingent Obligation shall be equal to the amount
of the obligation so guaranteed or otherwise supported.


 


“Contractual
Obligation” means, with respect to any Person, any provision of any
security issued by that Person or of any indenture, mortgage, deed of trust,
contract, undertaking, agreement or other instrument to which that Person is a
party or by which it or any of its properties is bound or to which it or any of
its properties is subject.


 


“Controlled
Amortization Period” means, with respect to any Series of Notes, the
period specified in the applicable Series Supplement.


 


“Controlled
Distribution Amount” means, with respect to any Class of Notes, the
amount (or amounts) specified in any applicable Series Supplement.


 


“Controlled
Group” means, with respect to any Person, such Person, whether or not
incorporated, and any corporation, trade or business that is, along with such
Person, a member of a controlled group of corporations or a controlled group of
trades or businesses as described in Sections 414(b) and (c),
respectively, of the Code.


 


“Corporate
Trust Office” shall mean the principal office of the Trustee at which at
any particular time its corporate trust business shall be administered which
office at the date of the execution of the Base Indenture is located at 2 North
LaSalle, Chicago, Illinois 60602, Attention: Corporate Trust
Administration—Structured Finance, or at any other time at such other address
as the Trustee may designate from time to time by notice to the
Noteholders and HVF.


 


“Daily
Collection Report” has the meaning specified in Section 4.1(a) of
the Base Indenture.


 


8

















 


“Defaulting
Manufacturer” has the meaning specified in Section 18(a) of
the HVF Lease.


 


“Definitions
List” means this Definitions List, as amended or modified from time to
time.


 


“Definitive
Notes” has the meaning specified in Section 2.12(a) of the
Base Indenture.


 


“Depository”
has the meaning specified in Section 2.12(a) of the Base
Indenture.


 


“Depository
Agreement” means, with respect to a Series having Book-Entry Notes,
the agreement among HVF, the Trustee and the Clearing Agency, or as otherwise
provided in the applicable Series Supplement.


 


“Depreciation
Charge” means, with respect to (a) any Program Vehicle, the applicable
depreciation charge set forth in the related Manufacturer Program for such
Program Vehicle calculated on a daily basis and (b) any Non-Program
Vehicle, the scheduled daily depreciation charge for such Non-Program Vehicle
set forth by HVF in the Depreciation Schedule for such Non-Program Vehicle.
If such charge is expressed as a percentage, the daily Depreciation Charge for such
Vehicle shall be such percentage multiplied by the Capitalized Cost for such
Vehicle calculated on a daily basis. For Vehicles not held for a full month in
the month of acquisition, the Depreciation Charges shall be prorated by
multiplying the applicable depreciation amount by a fraction, the numerator of
which is the number of days from the In-Service Date with respect to such
Vehicle to the first day of the next month and the denominator of which is the
number of days in such month. For the month in which a Program Vehicle is
turned back to the applicable Manufacturer pursuant to a Manufacturer Program,
the Depreciation Charge shall be prorated by multiplying the applicable
depreciation amount by a fraction, the numerator of which is the number of days
from the first day of such month to the Turnback Date for such Vehicle and the
denominator of which is the number of days in such month. In the event a
Vehicle is sold other than pursuant to the Manufacturer Program or suffers a
Casualty, the Depreciation Charge shall be prorated by multiplying the
applicable depreciation amount by a fraction, the numerator of which is the
number of days from the first day of such month to the date of the sale of such
Vehicle or the date such Vehicle suffers a Casualty, as the case may be,
and the denominator of which is the number of days in such month.


 


“Depreciation
Schedule” means the initial schedule of estimated daily depreciation
prepared by HVF with respect to each type of Non-Program Vehicle, as revised
from time to time by HVF, subject to Section 24 of the HVF Lease.


 


“Determination
Date” means the date five Business Days prior to each Payment Date.


 


“Disposition
Date” means with respect to any HVF Vehicle, (i) if such HVF Vehicle
was sold at Auction pursuant to a Guaranteed Depreciation Program or returned
to a Manufacturer for repurchase pursuant to a Repurchase Program, the Turnback
Date, (ii) if such HVF Vehicle is sold to HGI in accordance with Section 1.06
of the Purchase Agreement, the date on which the Transfer Price with respect to
such Transferred HVF Vehicle is deposited into


 


9

















 


the Collection
Account or an HVF Exchange Account, (iii) if such HVF Vehicle was sold to
any Person (other than to a Manufacturer pursuant to such Manufacturer’s
Repurchase Program, to a third party through an Auction conducted by or through
or arranged by the Manufacturer pursuant to its Guaranteed Depreciation Program
or to HGI pursuant to the Purchase Agreement) the date on which the proceeds of
such sale are deposited in the Collection Account or an HVF Exchange Account, (iv) if
such HVF Vehicle becomes a Casualty or an Ineligible Vehicle (except as a
result of a sale thereof), the date on which the Casualty Payment is paid by
the Lessee to the Trustee or (v) if such HVF Vehicle becomes a Rejected
Vehicle pursuant to Section 1.05(b) of the Purchase Agreement,
the date on which the Rejected Vehicle Payment is paid by HGI to the Trustee.


 


“Disposition
Proceeds” means the net proceeds (other than the portion of the Repurchase
Price payable (i) by the Manufacturer pursuant to a Manufacturer Program
or (ii) with respect to Non-Program Vehicles, by the Lessee pursuant to
the HVF Lease) from the sale or disposition of an HVF Vehicle to any Person,
whether at an Auction or otherwise.


 


“Distribution
Account” means, with respect to any Series of Notes, an account
established as such pursuant to the applicable Series Supplement.


 


“Dollar”
and the symbol “$” mean the lawful currency of the United States.


 


“DTC”
means The Depository Trust Company.


 


“Due Date”
means, with respect to any payment due from a Manufacturer or auction dealer in
respect of a Program Vehicle turned back for repurchase or sale pursuant to the
terms of the related Manufacturer Program, the thirtieth (30th) day after the
Disposition Date for such Vehicle.


 


“Early
Termination Payment” has the meaning specified in Section 13.4
of the HVF Lease.


 


“Eligible
Deposit Account” means (a) a segregated identifiable trust account
established in the trust department of a Qualified Trust Institution or (b) a
separately identifiable deposit account established in the deposit taking
department of a Qualified Institution.


 


“Eligible
Manufacturer” means (a) each Eligible Program Manufacturer, Mitsubishi
and Subaru and (b) any other Manufacturer with respect to which the Rating
Agency Condition with respect to each Series of Notes Outstanding shall
have been satisfied; unless, in each case, (i) a Manufacturer Event of
Default of the type described in clause (i) of the definition
thereof has occurred with respect to such Manufacturer and such Manufacturer is
not generally paying its debts as they are due or (ii) such Manufacturer
has experienced an Event of Bankruptcy.


 


“Eligible
Manufacturer Program” means at any time a Manufacturer Program that is in
full force and effect with an Eligible Program Manufacturer; provided
that (a) with respect to any new Manufacturer Program (including a new
model year Manufacturer Program of an Eligible Program Manufacturer and a
Manufacturer Program of a new Eligible Program Manufacturer) that is proposed
for consideration after the Initial Closing Date as an Eligible


 


10

















 


Manufacturer
Program, prior to such new Manufacturer Program constituting an “Eligible
Manufacturer Program” hereunder, the Rating Agency Condition with respect to
each Series of Notes Outstanding shall have been satisfied with respect to
such Manufacturer Program, and (b) with respect to any material change
(other than as specified in clause (a) above) in the terms of any
existing Eligible Manufacturer Program, prior to such Manufacturer Program, as
changed, constituting an “Eligible Manufacturer Program” hereunder, the Rating
Agency Condition with respect to each Series of Notes Outstanding shall
have been satisfied with respect to such change.


 


“Eligible
Program Manufacturer” means (a) Ford, GM, Chrysler, Toyota, Honda,
Mazda, Nissan, Volvo, Jaguar, Audi, Volkswagen, Land Rover, Hyundai, Kia,
Lexus, Mercedes and BMW or (b) a Manufacturer (i) who, at the time
that such Manufacturer is proposed for consideration as an Eligible Program
Manufacturer, has a long term unsecured debt rating of at least “BBB-” from
S&P, at least “Baa3” from Moody’s and, unless otherwise agreed to by Fitch,
at least “BBB-” from Fitch, provided, that if a Manufacturer proposed
for consideration under the preceding clause (b) does not have a rating
from S&P or Moody’s, then the rating of the entity specified by the Rating
Agencies shall apply, or (ii) with respect to which the Rating Agency
Condition with respect to each Series of Notes Outstanding shall have been
satisfied; provided, however, that upon the occurrence of a
Manufacturer Event of Default with respect to any such Manufacturer, such
Manufacturer shall no longer qualify as an Eligible Program Manufacturer.


 


“Eligible
Program Vehicle” means a Program Vehicle that is subject to an Eligible
Manufacturer Program on the Vehicle Operating Lease Commencement Date for such
Program Vehicle, unless it is redesignated as a Non-Program Vehicle pursuant to
Section 2.6 of the HVF Lease.


 


“Eligible
Vehicle” means an HVF Vehicle (i) that is not older than forty-eight
(48) months from the date of the original manufacturer invoice therefore, (ii) the
Certificate of Title for which is in the name of the Hertz Vehicles LLC, as
nominee titleholder for HVF and notes the Collateral Agent as the first
lienholder (other than (x) with respect to an Initial Hertz Vehicle, for which
the Certificate of Title shall be in the name of Hertz, (y) with respect to a
Service Vehicle, for which the Certificate of Title shall be in the name of HFC
and (z) in the case of clauses (x) and (y) above, each Certificate of Title
described therein shall not note any lien thereon, including, without
limitation, the lien of the Collateral Agent) (or, the Certificate of Title has
been submitted to the appropriate state authorities for such retitling and
notation), (iii) that is owned by HVF free and clear of all Liens other
than Permitted Liens and (iv) that is designated as an HVF Vehicle in
accordance with the Collateral Agency Agreement.


 


“Enhancement”
means, with respect to any Series of Notes, the rights and benefits
provided to the Noteholders of such Series of Notes pursuant to any letter
of credit, surety bond, cash collateral account, overcollateralization,
issuance of subordinated Notes, spread account, guaranteed rate agreement,
maturity guaranty facility, tax protection agreement, interest rate swap or any
other similar arrangement.


 


“Enhancement
Agreement” means any contract, agreement, instrument or document governing
the terms of any Enhancement or pursuant to which any Enhancement is issued or
outstanding.


 


11

















 


“Enhancement
Amount” has the meaning specified, with respect to any Series of
Notes, in the applicable Series Supplement.


 


“Enhancement
Deficiency” has the meaning specified, with respect to any Series of
Notes, in the applicable Series Supplement.


 


“Enhancement
Provider” means the Person providing any Enhancement as designated in the
applicable Series Supplement, other than any Noteholders the Notes of
which are subordinated to any Class of the Notes of the same Series.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute of similar import, in each case as in effect from time to
time. References to sections of ERISA also refer to any successor sections.


 


“Escrow
Agent” has the meaning specified in Section 1.1 of the Escrow
Agreement.


 


“Escrow
Agreement” means the Escrow Agreement, dated as of the Restatement
Effective Date, among the Escrow Agent, the Intermediary, Hertz, HVF and HGI,
as amended, modified or supplemented from time to time in accordance with its
terms, or any replacement escrow agreement entered into pursuant to Section 5.01(e) of
such escrow agreement (or the comparable provision of a replacement escrow
agreement), as amended, modified or supplemented from time to time in
accordance with its terms.


 


“Euroclear”
means Euroclear Bank, S.A./N.V., as operator of the Euroclear System.


 


“Event of
Bankruptcy” shall be deemed to have occurred with respect to a Person if:


 


(a)  a case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking the liquidation,
reorganization, debt arrangement, dissolution, winding up, or composition or
readjustment of debts of such Person, the appointment of a trustee, receiver,
custodian, liquidator, assignee, sequestrator or the like for such Person or
all or any substantial part of its assets, or any similar action with
respect to such Person under any law relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts, and such case
or proceeding shall continue undismissed, or unstayed and in effect, for a
period of 60 consecutive days; or an order for relief in respect
of such Person shall be entered in an involuntary case under the federal
bankruptcy laws or other similar laws now or hereafter in effect; or


 


(b) 
such Person shall commence a voluntary case or other proceeding under any
applicable bankruptcy, insolvency, reorganization, debt arrangement,
dissolution or other similar law now or hereafter in effect, or shall consent
to the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) for such Person or
for any


 


12

















 


substantial
part of its property, or shall make any general assignment for the benefit
of creditors; or


 


(c)  the board of directors of such Person (if such Person is a
corporation or similar entity) shall vote to implement any of the actions set
forth in clause (b) above.


 


“Excess
Damage Charges” means, with respect to any Program Vehicle, the amount
charged or deducted from the Repurchase Price by the Manufacturer of such
Vehicle due to (a) damage over a prescribed limit, (b), if applicable,
damage not subject to a prescribed limit and (c) missing equipment, in
each case with respect to such Vehicle at the time that such Vehicle is turned
in to such Manufacturer or its agent for repurchase or Auction pursuant to the
applicable Manufacturer Program.


 


“Excess
Mileage Charges” means, with respect to any Program Vehicle, the amount
charged or deducted from the Repurchase Price, by the Manufacturer of such
Vehicle due to the fact that such Vehicle has mileage over a prescribed limit
at the time that such Vehicle is turned in to such Manufacturer or its agent
for repurchase or Auction pursuant to the applicable Manufacturer Program.


 


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


 


“Excluded
Payments” means (a) all incentive payments payable by a Manufacturer
to purchase Vehicles (but not any amounts payable by a Manufacturer as an
incentive for selling Program Vehicles outside of the related Manufacturer
Program), (b) all amounts payable by a Manufacturer as compensation for
the preparation of newly delivered vehicles, (c) all amounts payable by a
Manufacturer as compensation for interest payable after the purchase price for
a Vehicle is paid and (d) all amounts payable by a Manufacturer in
reimbursement for warranty work performed by or on behalf of HVF on the
Vehicles.


 


“Expected
Final Payment Date” means, with respect to any Series of Notes, the
date stated in the applicable Series Supplement as the date on which such Series of
Notes is expected to be paid in full.


 


“FDIC”
means the Federal Deposit Insurance Corporation.


 


“Finance
Guide” means the Black Book Official Finance/Lease Guide.


 


“Financial
Officer” means, with respect to any Person, the chief financial officer,
vice president-finance, principal accounting officer, controller or treasurer
of such Person.


 


“Fitch”
means Fitch Ratings.


 


“Ford”
means Ford Motor Company, a Delaware corporation, and its successors.


 


“Ford Letter of Credit” means an irrevocable letter of credit
issued for the account of Ford or an affiliate thereof in favor of the Trustee
for the benefit of a Series of Notes or a class of a Series of
Notes.


 


13

















 


“Ford Reimbursement Obligations” means any and all obligations
of HVF in respect of a Ford Letter of Credit set forth in any Series Supplement;
provided, however that no Ford Reimbursement Obligation in
respect of a disbursement made under a Ford Letter of Credit shall arise until
such time as Ford has reimbursed the provider of such Ford Letter of Credit for
such disbursement.


 


“GAAP”
means the generally accepted accounting principles promulgated or adopted by
the Financial Accounting Standards Board and its predecessors and successors
from time to time.


 


“General Intangibles” means “general
intangible” within the meaning of Section 9-102(a)(42) of Revised Article 9.


 


“General
Intangibles Collateral” means HVF’s right, title and interest in, to and
under all of the assets, property and interests in property, whether now owned
or hereafter acquired or created, as described in Section 3.1(a)(i) and
(v) of this Base Indenture.


 


“GM”
means General Motors Corporation, a Delaware corporation, and its successors.


 


“Governmental
Authority” means any Federal, state, local or foreign court or governmental
department, commission, board, bureau, agency, authority, instrumentality or
regulatory body.


 


“Guaranteed
Depreciation Program” means a guaranteed depreciation program pursuant to
which a Manufacturer has agreed to (a) cause Vehicles manufactured by it
or one of its Affiliates that are turned back during the specified Repurchase
Period to be sold by an auction dealer, (b) cause the proceeds of any such
sale to be deposited in a Collateral Account by such auction dealer promptly
following such sale and (c) pay to HVF or the Intermediary the excess, if
any, of the guaranteed payment amount with respect to any such Vehicle
calculated as of the Turnback Date in accordance with the provisions of such
guaranteed depreciation program over the amount deposited in a Collateral
Account by an auction dealer pursuant to clause (b) above.


 


“Hertz”
means The Hertz Corporation, a Delaware corporation, and its successors.


 


“Hertz
Contribution Agreement” means the Contribution Agreement, dated as of the
Restatement Effective Date, between Hertz and HVF, as the same may be
amended, restated, modified or supplemented from time to time in accordance
with its terms.


 


“Hertz
Nominee” means Hertz, as nominee titleholder for HVF pursuant to the Hertz
Nominee Agreement.


 


“Hertz
Nominee Agreement” means the Vehicle Title Nominee Agreement, dated as of
the Restatement Effective Date, among Hertz, HVF and the Collateral Agent, as
the same may be amended, restated, modified or supplemented from time to
time in accordance with its terms.


 


14

















 


“Hertz
Nominee Power of Attorney” means a power of attorney in the form of Exhibit A-2
to the Hertz Nominee Agreement.


 


“Hertz
Vehicles LLC” means Hertz Vehicles LLC, a Delaware limited liability
company, and its successors.


 


“HFC”
means Hertz Funding Corp., a Delaware corporation, and its successors.


 


“HFC
Nominee” means HFC, as nominee titleholder for HVF pursuant to the HFC
Nominee Agreement.


 


“HFC
Nominee Agreement” means the Vehicle Title Nominee Agreement, dated as of
the Restatement Effective Date, among HFC, HVF, Hertz and the Collateral Agent,
as the same may be amended, restated, modified or supplemented from time
to time in accordance with its terms.


 


“HFC
Nominee Power of Attorney” means a power of attorney in the form of Exhibit A-2
to the HFC Nominee Agreement.


 


“HFC
Purchase Agreement” means the Purchase Agreement, dated as of the
Restatement Effective Date, between HFC and HVF, as the same may be
amended, restated, modified or supplemented from time to time in accordance
with its terms.


 


“HGI”
means Hertz General Interest LLC, a Delaware limited liability company, and its
successors.


 


“HGI
Account” means concentration account no. [account number] held at
JPMorgan Chase Bank in the name of Hertz General Interest LLC.


 


“HGI Credit
Facility” means the Credit and Security Agreement dated as of September 18,
2002, between HGI and Hertz, as amended, modified or supplemented from time to
time in accordance with its terms.


 


“HGI
Eligible Vehicle” means a HGI Vehicle (i) that is not older than
forty-eight (48) months from the date of the original manufacturer invoice
therefore, (ii) the Certificate of Title for which is in the name of the
Hertz Vehicles LLC, as nominee titleholder for HGI and notes the Collateral
Agent as the first lienholder (or the Certificate of Title has been submitted
to the appropriate state authorities for such notation), (iii) that is
owned by HGI free and clear of all Liens other than Permitted Liens and (iv) that
is designated as a HGI Vehicle in accordance with the Collateral Agency Agreement.


 


“HGI
Exchange Account” has the meaning specified in Section 1.1 of the
Master Exchange Agreement.


 


“HGI Lease”
means the Amended and Restated Master Motor Vehicle Operating Lease and
Servicing Agreement, dated as of the Restatement Effective Date, between HGI,
as lessor thereunder, and Hertz, as lessee and as servicer, as the same may be
amended, restated, modified or supplemented from time to time in accordance
with its terms.


 


15

















 


“HGI LLC
Agreement” means the Amended and Restated Limited Liability Company
Agreement of HGI, dated as of Restatement Effective Date, as amended, modified
or supplemented from time to time in accordance with its terms.


 


“HGI
Management Agreement” means each of the Management Agreements with one or
more of the members of the Board of Directors of HGI, as amended, modified or
supplemented from time to time in accordance with its terms.


 


“HGI
Vehicle” means a passenger automobile or light-duty truck which is owned by
HGI and leased by HGI to the Lessee pursuant to the HGI Lease.


 


“HGI
Vehicle Collateral” has the meaning specified in Section 2.1(b) of
the Collateral Agency Agreement.


 


“Honda” means American Honda Motor Co., Inc., a California
corporation, and its successors.


 


“HVF”
means Hertz Vehicle Financing LLC, a Delaware limited liability company, and
its successors.


 


“HVF Credit
Facility” means the Credit Agreement, in the form attached as Exhibit B
to the Base Indenture, to be entered into between HVF and Hertz, as amended,
modified or supplemented from time to time in accordance with its terms.


 


“HVF
Exchange Account” has the meaning specified in Section 1.1 of the
Master Exchange Agreement.


 


“HVF Lease”
means the Master Motor Vehicle Operating Lease and Servicing Agreement, dated
as of the Restatement Effective Date, between HVF, as lessor thereunder, and
Hertz, as lessee and as servicer, as the same may be amended, restated,
modified or supplemented from time to time in accordance with its terms.


 


“HVF LLC
Agreement” means the Amended and Restated Limited Liability Company
Agreement of HVF, dated as of the Restatement Effective Date, as amended,
modified or supplemented from time to time in accordance with its terms.


 


“HVF
Management Agreement” means each of the Management Agreements with one or
more of the members of the Board of Directors of HVF, as amended, modified or
supplemented from time to time in accordance with its terms.


 


“HVF
Vehicle” means a passenger automobile or light-duty truck (including any
Initial Hertz Vehicle or Service Vehicle) which is owned by HVF and leased by
HVF to the Lessee pursuant to the HVF Lease (including any such Vehicle that
constitutes Replacement Property under, and as defined in, the Master Exchange
Agreement).


 


“HVF
Vehicle Collateral” has the meaning specified in Section 2.1(a) of
the Collateral Agency Agreement.


 


16

















 


“Hyundai”
means Hyundai Motor America Corporation, a California corporation, and its
successors.


 


“IHV
Transfer Value”
means with respect to each Initial Hertz Vehicle, the net book value of such
Initial Hertz Vehicle, as recorded on the books and records of Hertz (with
appropriate adjustments for depreciation) at the time of the contribution of
each Initial Hertz Vehicle to HVF pursuant to Section 1.01 of the
Hertz Contribution Agreement.


 


“Indebtedness”,
as applied to any Person, means, without duplication, (a) all indebtedness
for borrowed money, (b) that portion of obligations with respect to any
lease of any property (whether real, personal or mixed) that is properly
classified as a liability on a balance sheet in conformity with GAAP, (c) notes
payable and drafts accepted representing extensions of credit whether or not
representing obligations for borrowed money, (d) any obligation owed for
all or any part of the deferred purchase price for property or services,
which purchase price is (i) due more than six months from the date of the
incurrence of the obligation in respect thereof or (ii) evidenced by a
note or similar written instrument, (e) all indebtedness secured by any
Lien on any property or asset owned by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person, and (f) all Contingent
Obligations of such Person in respect of any of the foregoing.


 


“Indemnified
Person” has the meaning specified in Section 2 of the
Indemnification Agreement.


 


“Indemnification
Agreement” means the Amended and Restated Indemnification Agreement, dated
as of the Restatement Effective Date, among Hertz, Hertz Vehicles LLC, HGI and
HVF, as amended, modified or supplemented from time to time in accordance with
its terms.


 


“Indenture”
means the Base Indenture, together with all Series Supplements, as
amended, modified or supplemented from time to time by Supplements thereto in
accordance with its terms.


 


“Indenture
Collateral” has the meaning specified in Section 3.1 of the
Base Indenture.


 


“Independent
Director” has the meaning specified in Schedule A to each of
the LLC Agreement, the HVF LLC Agreement and the HGI LLC Agreement.


 


“Ineligible
Asset Amount” means, as of any date of determination, an amount equal to
the sum (without duplication) of the following amounts to the extent that such
amounts are included in clauses (i) through (x) of the
definition of Aggregate Asset Amount for such date: (a) the aggregate
amount of all Manufacturer Receivables (other than Excluded Payments) as of
such date payable to HVF or to the Intermediary pursuant to the Master Exchange
Agreement, in each case, by a Manufacturer with respect to which a Manufacturer
Event of Default specified in clause (i) or (ii) of the
definition thereof has occurred with respect to HVF Vehicles that were Eligible
Vehicles when turned in to and accepted by such Manufacturer or delivered and
accepted for Auction, plus (b) the aggregate amount of all Manufacturer
Receivables (other than Excluded Payments) as of such date payable to HVF or to
the Intermediary pursuant to the Master Exchange Agreement, in each case, by a
Manufacturer which is an Eligible Program


 


17

















 


Manufacturer
with respect to HVF Vehicles that were Eligible Vehicles when turned in to and
accepted by such Manufacturer or delivered and accepted for Auction which
amounts are unpaid more than one hundred (100) days past the applicable Due
Date, plus (c) the aggregate of all amounts specified in clause (iv) of
the definition of “Aggregate Asset Amount” which are unpaid more than
forty-five (45) days past the applicable Disposition Date, plus (d) the
aggregate of all amounts specified in clause (v) of the definition
of “Aggregate Asset Amount” which are unpaid sixty (60) days or more past the
applicable Disposition Date, plus (e) the aggregate of all amounts
specified in clauses (vi),  (vii) and (x) of the
definition of “Aggregate Asset Amount” which are past due as of such date and
in respect of which any grace period provided for in the HVF Lease for the
making of such payments has expired, plus (f) the aggregate of all amounts
specified in clause (viii) of the definition of “Aggregate Asset
Amount” which are unpaid more than five Business Days past the date on which
the related Rejected Vehicle was rejected by the Lessee pursuant to Section 1.05(b) of
the Purchase Agreement, plus (g) the aggregate of all amounts specified in
clause (ix) of the definition of “Aggregate Asset Amount” which are
payable to HVF or to the Intermediary pursuant to the Master Exchange
Agreement, in each case, by a Manufacturer which was an Eligible Program
Manufacturer with respect to which a Manufacturer Event of Default specified in
clause (i) or (ii) of the definition thereof has
occurred or which are unpaid more than sixty (60) days past the due date thereof,
plus (h) the amount by which (x) the aggregate of all amounts specified in
clause (v) of the definition of “Aggregate Asset Amount” which are
unpaid more than fifteen (15) days but less than sixty (60) days past the
applicable Disposition Date exceeds (y) 1% of the Aggregate Asset Amount on
such date plus (i) the amount by which (x) the aggregate of all amounts
specified in clauses (i) and (ii) of the definition of “Aggregate
Asset Amount” attributable to Initial Hertz Vehicles exceeds (y) the Maximum
Initial Hertz Vehicle Amount plus (j) the amount by which (x) the aggregate of
all amounts specified in clauses (i) and (ii) of the
definition of “Aggregate Asset Amount” attributable to Service Vehicles exceeds
(y) the Maximum Service Vehicle Amount plus (k) the Ineligible Non-Investment
Grade Manufacturer Receivable Amount.


 


“Ineligible
Non-Investment Grade Manufacturer Receivable Amount” means, as of any date
of determination, with respect to each Non-Investment Grade Manufacturer, an
amount equal to the sum (without duplication) of the following amounts to the
extent that such amounts are included in clauses (i) through (x)
of the definition of Aggregate Asset Amount for such date:  (a) the aggregate amount of Manufacturer
Receivables (other than Excluded Payments) payable to HVF or to the
Intermediary pursuant to the Master Exchange Agreement, in each case, as of
such date by such Non-Investment Grade Manufacturer with respect to Vehicles
that are Eligible Vehicles and Eligible Program Vehicles when turned in to and
accepted by such Non-Investment Grade Manufacturer or delivered and accepted
for Auction, plus (b) the aggregate amount of Manufacturer Receivables
(other than Excluded Payments) payable to HVF or to the Intermediary pursuant
to the Master Exchange Agreement, in each case, as of such date by such
Non-Investment Grade Manufacturers with respect to Vehicles that were Eligible
Vehicles but not Eligible Program Vehicles when turned in to and accepted by
such Non-Investment Grade Manufacturer or delivered and accepted for Auction; provided,
that the definition of “Ineligible Non-Investment Grade Manufacturer Receivable
Amount” may be amended by HVF, subject to satisfaction of the Rating
Agency Condition with respect to such amendment; provided further that
any Non-Investment Grade Manufacturer may be excluded from this definition
by HVF, subject to satisfaction of the Rating Agency Condition with respect to
such exclusion.


 


18

















 


“Ineligible
Vehicle” means an HVF Vehicle that is not an Eligible Vehicle.


 


“Initial
Closing Date” means the date on which the initial Series of Notes is
issued pursuant to the Indenture.


 


“Initial
Determination Date” means, with respect to any Vehicle, the Determination
Date with respect to the Related Month in which a Vehicle Operating Lease
Commencement Date for such Vehicle occurs.


 


“Initial
Hertz Vehicles” means, solely during the period commencing on the
Acquisition Date and ending 180 days from the Acquisition Date, a passenger
automobile or light-duty truck which is contributed by Hertz to HVF on or prior
to the Acquisition Date pursuant to the Hertz Contribution Agreement and leased
by HVF to the Lessee pursuant to the HVF Lease (including any such Vehicle that
constitutes Replacement Property under and as defined in the Master Exchange
Agreement) and (i) that is not older than forty-eight (48) months from the
date of the original manufacturer invoice therefore, (ii) the Certificate
of Title for which is in the name of Hertz and shall not note any lien thereon,
including, without limitation, the lien of the Collateral Agent (or the
Certificate of Title has been submitted to the appropriate state authorities
for retitling and notation of the lien of the Collateral Agent as the first
lienholder), (iii) that has been made subject to the Hertz Nominee
Agreement, (iv) that is owned by HVF free and clear of all Liens other
than Permitted Liens and (v) that is designated as an HVF Vehicle in
accordance with the Collateral Agency Agreement. For the avoidance of doubt,
with respect to any passenger automobile or light-duty truck, from and after
receipt by the Servicer or a Servicer’s Agent, as agent of, and custodian for,
the Collateral Agent, or its designated agents, of a Certificate of Title with
respect to such passenger automobile or light-duty truck which is in the name
of Hertz Vehicles LLC, as nominee titleholder for HVF, and which notes the
Collateral Agent as the first lienholder, such passenger automobile or
light-duty truck shall not constitute an Initial Hertz Vehicle. In addition,
for the avoidance of doubt, from and after the expiration of the period ending
180 days from the Acquisition Date, no passenger automobile or light-duty truck
shall constitute an Initial Hertz Vehicle.


 


“Initial
Principal Amount” means, with respect to any Series of Notes, the
aggregate initial principal amount specified in the applicable Series Supplement.


 


“In-Service
Date” means, with respect to (i) any Vehicle subject to a Manufacturer
Program, the date on which depreciation related to such Vehicle begins to
accrue under such Manufacturer Program and (ii) any Vehicle not subject to
a Manufacturer Program, the date designated by the Servicer in respect of such
Non-Program Vehicle in the Monthly Servicing Certificate for the Related Month
in which the Vehicle Operating Lease Commencement Date for such Non-Program
Vehicle occurs.


 


“Interest
Collections” means on any date of determination all Collections which
represent payments of Monthly Variable Rent under the HVF Lease plus any
amounts earned on Permitted Investments in the Collection Account which are
available for distribution on such date.


 


19

















 


“Interest
Period” means, with respect to any Series of Notes, the period
specified in the applicable Series Supplement.


 


“Intermediary”
means the Person acting in the capacity of Qualified Intermediary pursuant to
the Master Exchange Agreement.


 


“Invested
Percentage” means, with respect to any Series of Notes, the percentage
specified in the applicable Series Supplement.


 


“Investment
Company Act” means the Investment Company Act of 1940, as amended.


 


“Investment
Property” has the meaning specified in Section 9-102(a)(49) of the
applicable UCC.


 


“Invoice
Adjustment” has the meaning specified in Section 1.05(d) of
the Purchase Agreement.


 


“Jaguar”
means Jaguar Cars, a division of Ford Motor Company, and its successors.


 


“Kia”
means Kia Motors America, Inc., a California corporation, and its
successors.


 


“Land Rover”
means Land Rover North America, Inc., a Delaware corporation, and its
successors.


 


“Lease”
means either the HVF Lease or the HGI Lease.


 


“Lease
Payment Default” means the occurrence of any event described in Section 17.1.1
of the HVF Lease.


 


“Lease Payment
Deficit” means, for any Related Month, an amount equal to the excess, if
any, of (a) the aggregate amount of payments required to be made under the
HVF Lease with respect to the Related Month over (b) the aggregate amount
of payments actually received by HVF under the HVF Lease with respect to the
Related Month.


 


“Lessee”
means Hertz, in its capacity as the lessee under the HVF Lease and the HGI
Lease.


 


“Lessor”
means HVF, in its capacity as the lessor under the HVF Lease.


 


“Lexus”
means Lexus, a division of Toyota, and its successors.


 


“Lien”
means, when used with respect to any Person, any interest in any real or
personal property, asset or other right held, owned or being purchased or
acquired by such Person which secures payment or performance of any obligation,
and shall include any mortgage, lien, pledge, encumbrance, charge, retained
security title of a conditional vendor or


 


20

















 


lessor, or
other security interest of any kind, whether arising under a security
agreement, mortgage, lease, deed of trust, chattel mortgage, assignment,
pledge, retention or security title, financing or similar statement, or notice
or arising as a matter of law, judicial process or otherwise.


 


“Limited
Liquidation Event of Default” means, with respect to any Series of
Notes, any event specified as such in the applicable Series Supplement.


 


“Liquidation
Event of Default” means, so long as such event or condition continues, any
of the following: (a) any Lease Payment Default, (b) an Event of Bankruptcy
with respect to Hertz, Hertz Vehicles LLC, HGI or HVF or (c) an Operating Lease Event of Default in respect of a breach
by the Lessee of its agreements set forth in Section 18(a) of the HVF
Lease.


 


“LLC
Agreement” means the Amended and Restated Limited Liability Company
Agreement of Hertz Vehicles LLC, dated as of September 18, 2002, as
amended, modified or supplemented from time to time in accordance with its
terms.


 


“Luxembourg
Agent” has the meaning specified in Section 2.4(c) of the
Base Indenture.


 


“Management
Agreement” means each of the Management Agreements with one or more of the
members of the Board of Directors of Hertz Vehicles LLC, as amended, modified
or supplemented from time to time in accordance with its terms.


 


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


 


“Manufacturer
Event of Default” means with respect to any Manufacturer, (i) there
shall be Past Due Amounts owing to Hertz, HGI, HVF or the Intermediary with
respect to such Manufacturer in an amount equal to or in excess of the lesser
of (x) $25 million and (y) the then outstanding aggregate amount of repurchase
obligations of such Manufacturer under its Manufacturer Program in respect of
all Vehicles, in each case, net of Past Due Amounts aggregating no more than
$50 million, (A) that are the subject of a good faith dispute as evidenced
in a writing by Hertz, HGI, HVF or the Manufacturer questioning the accuracy of
amounts paid or payable in respect of certain Vehicles tendered for repurchase
under a Manufacturer Program (as distinguished from any dispute relating to the
repudiation by such Manufacturer generally of its obligations under such
Manufacturer Program or the assertion by such Manufacturer of the invalidity or
unenforceability as against it of such Manufacturer Program) and (B) with
respect to which Hertz, HGI or HVF, as the case may be, has provided
adequate reserves as reasonably determined by such Person, (ii) the
occurrence of an Event of Bankruptcy with respect to such Manufacturer and such
Manufacturer has not assumed its Manufacturer Program in accordance with the
Bankruptcy Code or (iii) the termination of such Manufacturer’s
Manufacturer Program or the failure of such Manufacturer’s Repurchase Program
or Guaranteed Depreciation Program to qualify as a Manufacturer Program.


 


“Manufacturer
Program” means at any time any Repurchase Program or Guaranteed
Depreciation Program that is in full force and effect with a Manufacturer (i) pursuant
to which the repurchase price or guaranteed auction sale price is at least
equal to the Capitalized


 


21

















 


Cost of each
Vehicle, minus all Depreciation Charges accrued with respect to such Vehicle
prior to the date that the Vehicle is submitted for repurchase, minus Excess
Mileage Charges, minus Excess Damage Charges, (ii) that cannot be amended
or terminated with respect to any Vehicle after the purchase of that Vehicle,
and (iii) the assignment of the benefits of which to HVF and the
Collateral Agent has been acknowledged in writing by the related Manufacturer
in the form of an Assignment Agreement.


 


“Manufacturer
Receivable” means an amount due from a Manufacturer or an auction dealer
under a Manufacturer Program in respect of or in connection with a Program
Vehicle disposed of in accordance with such Manufacturer Program.


 


“Market
Value” means, with respect to any Vehicle as of any date of determination,
the wholesale market value of such Vehicle as specified in the Related Month’s
published NADA Guide for the model class and model year of such Vehicle
based on the average equipment and the average mileage of each vehicle of such
model class and model year; provided, that if the NADA Guide is not
being published or the NADA Guide is being published but such Vehicle is not
included therein, the Finance Guide at the beginning of the model year shall be
used to estimate the wholesale market value of the Vehicle, based on the
Vehicle’s model class and model year or the closest model class and
model year thereto and a vehicle condition of “average” (as defined in the
Finance Guide); provided, further, that if the Finance Guide is not
being published or the Finance Guide is being published but such Vehicle or a
reasonably similar model class and model year is not included therein, the
wholesale market value of such Vehicle shall be based on an independent
third-party data source, and determined in accordance with a methodology, with
respect to which the Rating Agency Condition with respect to each Series of
Notes Outstanding shall have been satisfied; provided, further, that if
no such third-party data source or methodology shall have been so approved or
any such third-party source or methodology is not available, the wholesale
market value of such Vehicle shall be equal to a reasonable estimate of the
wholesale market value of such Vehicle as determined by the Servicer, based on
the Net Book Value of such Vehicle and any other factors deemed relevant by the
Servicer.


 


“Master
Exchange Agreement” means the Master Exchange Agreement, dated as of the
Restatement Effective Date, among Hertz, HVF, HGI, the Intermediary and
J.P. Morgan Property Holdings LLC, as amended, modified or supplemented
from time to time in accordance with its terms.


 


“Material
Adverse Effect” means, with respect to any occurrence, event or condition:


 


1.               a material adverse
change in the financial condition, business, assets or operations of Hertz and
its Consolidated Subsidiaries;


 


2.               a material adverse
effect on the ability of Hertz, the Hertz Nominee, the HFC Nominee, Hertz
Vehicles LLC, HGI, HVF or the Qualified Intermediary to perform its
obligations under any of the Related Documents;


 


22

















 


3.               a material adverse
effect on HVF’s interest in the HVF Vehicles or the Manufacturer Receivables;
or


 


4.               an adverse effect
on (i) the validity or enforceability of any Related Document or (ii) on
the validity, status, perfection or priority of the Lien of the Trustee in the
Indenture Collateral or of the Collateral Agent in the HVF Vehicle Collateral; provided
that with respect to the Initial Hertz Vehicles and the Service Vehicles, the
lack of the notation of the lien of the Collateral Agent on the Certificates of
Title related to such Vehicles to the extent provided under the Related
Documents, shall not constitute a Material Adverse Effect.


 


“Maximum
Initial Hertz Vehicle Amount” means during the period (i) from and
including the Restatement Effective Date to but excluding the 90th day
following the Restatement Effective Date, $480,000,000 of the Adjusted
Aggregate Asset Amount, (ii) from and including the 90th day following the
Restatement Effective Date to but excluding the 180th day following the
Restatement Effective Date, $270,000,000
of the Adjusted Aggregate Asset Amount and (iii) thereafter, $0.


 


“Maximum
Lease Termination Date” means, with respect to any Vehicle, the earlier of
(x) the last Business Day of the month that is 36 months after the month in
which the Vehicle Operating Lease Commencement Date occurs with respect to such
Vehicle and (y) the last Business Day of the month that is 47 months after the
date of original invoice for such Vehicle.


 


“Maximum
Manufacturer Amount” means, as of any date of determination, with respect
to a particular Manufacturer or group of Manufacturers, the lowest Maximum
Manufacturer Amount with respect to such Manufacturer or group of Manufacturers
specified with respect to such Manufacturer or group of Manufacturers in any Series Supplement
under which Notes are Outstanding as of such date.


 


“Maximum
Non-Eligible Manufacturer Amount” means, as of any date of determination,
the lowest Maximum Non-Eligible Manufacturer Amount specified in any Series Supplement
under which Notes are Outstanding as of such date.


 


“Maximum
Non-Eligible Vehicle Amount” means, as of any date of determination, the
lowest Maximum Non-Eligible Vehicle Amount specified in any Series Supplement
under which Notes are Outstanding as of such date.


 


“Maximum
Service Vehicle Amount” means, $35,000,000.


 


“Maximum
Term” has the meaning specified in Section 3.1 of the HVF
Lease.


 


“Mazda”
means Mazda Motor of America, Inc., a California corporation, d/b/a Mazda
North American Operations, and its successors, provided, that for
determination of ratings by the Rating Agencies, “Mazda” means Mazda Motor
Corporation and its successors.


 


“Measurement
Month” on any date, means each calendar month, or the smallest number of
consecutive calendar months, preceding such date in which at least the lesser
of the


 


23

















 


following (a) and
(b) were sold to third parties, at auction or otherwise (excluding salvage
sales): (a) the greater of (x) one-twelfth of the number of Non-Program
Vehicles as of the last day of such calendar month or consecutive calendar
months and (y) 2,000 and (b) 4,500 Non-Program Vehicles; provided, however,
that no calendar month included in a single Measurement Month shall be included
in any other Measurement Month.


 


“Mercedes”
means, Mercedes Benz USA, a wholly owned subsidiary of Chrysler, and its
successors.


 


“Minimum
Term” has the meaning specified in Section 3.1 of the HVF
Lease.


 


“Mitsubishi”
means Mitsubishi Motor Sales of America, Inc., a California corporation,
and its successors.


 


“Monthly
Administration Fee” has the meaning specified in the Administration
Agreement.


 


“Monthly
Base Rent” has the meaning specified in Section 4.1 of the HVF
Lease.


 


“Monthly
Servicing Certificate” has the meaning specified in Section 4.1(c) of
the Base Indenture.


 


“Monthly
Servicing Fee” has the meaning specified in Section 23 of the
HVF Lease.


 


“Monthly
Noteholders’ Statement” means, with respect to any Series of Notes, a
statement substantially in the form of an Exhibit to the applicable Series Supplement.


 


“Monthly
Variable Rent” has the meaning specified in Section 4.2 of the
HVF Lease.


 


“Moody’s”
means Moody’s Investors Service.


 


“NADA Guide”
means the National Automobile Dealers Association, Official Used Car Guide,
Eastern Edition.


 


“Net Book
Value” means, (a) with respect to each New Vehicle subject to either
Lease, (i) as of any date of determination during the period from the
Vehicle Operating Lease Commencement Date for such New Vehicle under such Lease
to but excluding the Initial Determination Date for such New Vehicle, the
Capitalized Cost of such New Vehicle, (ii) as of the Initial Determination
Date for such New Vehicle, (A) the Capitalized Cost for such New Vehicle
minus (B) the aggregate Depreciation Charges accrued with respect to such
New Vehicle under such Lease through the last day of the Related Month in which
the Vehicle Operating Lease Commencement Date for such New Vehicle under such
Lease occurred and (iii) as of any Determination Date after the Initial Determination
Date for such New Vehicle, (A) the Net Book Value of such New Vehicle as
calculated on the immediately preceding Determination Date minus (B) the
aggregate Depreciation Charges accrued with respect to such New Vehicle under
such Lease during the Related Month (through the last day thereof), (b) with
respect to


 


24

















 


each
Transferred Vehicle subject to either Lease, (i) as of any date of
determination during the period from the Vehicle Operating Lease Commencement
Date for such Transferred Vehicle under such Lease to but excluding the Initial
Determination Date for such Transferred Vehicle, the Transfer Price of such
Transferred Vehicle paid by the Purchaser of such Transferred Vehicle pursuant
to Section 1.07 of the Purchase Agreement, (ii) as of the
Initial Determination Date for such Transferred HGI Vehicle, (A) the
Transfer Price of such Transferred Vehicle paid by the Purchaser of such
Transferred Vehicle pursuant to Section 1.07 of the Purchase Agreement
minus (B) the aggregate Depreciation Charges accrued with respect to such
Transferred Vehicle under such Lease through the last day of the Related Month
in which the Vehicle Operating Lease Commencement Date for such Transferred
Vehicle under such Lease occurred and (iii) as of any Determination Date
after the Initial Determination Date for such Transferred Vehicle, (A) the
Net Book Value of such Transferred Vehicle as calculated on the immediately
preceding Determination Date minus (B) the aggregate Depreciation Charges
accrued with respect to such Transferred Vehicle under such Lease during the
Related Month (through the last day thereof), (c) with respect to each
Initial Hertz Vehicle subject to the HVF Lease, (i) as of any date of
determination during the period from the Vehicle Operating Lease Commencement
Date for such Initial Hertz Vehicle under such Lease to but excluding the
Initial Determination Date for such Initial Hertz Vehicle, the IHV Transfer Value of such Initial Hertz Vehicle, (ii) as
of the Initial Determination Date for such Initial Hertz Vehicle, (A) the
IHV Transfer Value of such Initial Hertz Vehicle minus (B) the aggregate
Depreciation Charges accrued with respect to such Initial Hertz Vehicle under
such Lease through the last day of the Related Month in which the Vehicle
Operating Lease Commencement Date for such Initial Hertz Vehicle under such
Lease occurred and (iii) as of any Determination Date after the Initial
Determination Date for such Initial Hertz Vehicle, (A) the Net Book Value
of such Initial Hertz Vehicle as calculated on the immediately preceding
Determination Date minus (B) the aggregate Depreciation Charges accrued
with respect to such Initial Hertz Vehicle under such Lease during the Related
Month (through the last day thereof) and (d) with respect to each Service
Vehicle subject to the HVF Lease, (i) as of any date of determination
during the period from the Vehicle Operating Lease Commencement Date for such
Service Vehicle under such Lease to but excluding the Initial Determination
Date for such Service Vehicle, the SV Transfer Price of such Service Vehicle
paid by HVF pursuant to Section 1.02 of the HFC Purchase Agreement,
(ii) as of the Initial Determination Date for such Service Vehicle, (A) the
SV Transfer Price of such Service Vehicle paid by HVF pursuant to Section 1.02
of the HFC Purchase Agreement minus (B) the aggregate Depreciation Charges
accrued with respect to such Service Vehicle under such Lease through the last
day of the Related Month in which the Vehicle Operating Lease Commencement Date
for such Service Vehicle under such Lease occurred and (iii) as of any
Determination Date after the Initial Determination Date for such Service
Vehicle, (A) the Net Book Value of such Service Vehicle as calculated on
the immediately preceding Determination Date minus (B) the aggregate
Depreciation Charges accrued with respect to such Service Vehicle under such
Lease during the Related Month (through the last day thereof). After the
Initial Determination Date for a Vehicle, on any day which is not a
Determination Date, the Net Book Value of such Vehicle shall be the Net Book
Value calculated for such Vehicle on the most recent Determination Date. In
connection with a redesignation of an Eligible Vehicle as either a Program
Vehicle or a Non-Program Vehicle in accordance with Section 2.6 of
the HVF Lease, the Net Book Value of such Vehicle shall be recalculated on the
next Determination Date following such redesignation as if such Vehicle had
been designated as a Non-Program Vehicle (in the case of a redesignated


 


25

















 


Program
Vehicle) or a Program Vehicle (in the case of a redesignated Non-Program
Vehicle) on the Vehicle Operating Lease Commencement Date for such Vehicle.


 


“New HVF
Vehicle” means a Vehicle that is purchased from HGI pursuant to Section 1.05
of the Purchase Agreement.


 


“New
Vehicle” has the meaning specified in Section 1.04 of the
Purchase Agreement.


 


“New
Vehicle Schedule” has the meaning specified in Section 1.04 of
the Purchase Agreement.


 


“Nissan”
means Nissan North America, Inc., a California corporation, and its
successors.


 


“Nominee”
means Hertz Vehicles LLC, as nominee titleholder for each of HGI and HVF
pursuant to the Nominee Agreement.


 


“Nominee Agreement”
means the Amended and Restated Vehicle Title Nominee Agreement dated as of September 18,
2002 among Hertz Vehicles LLC, HVF, HGI, and the Collateral Agent, as amended,
modified or supplemented from time to time in accordance with its terms.


 


“Nominee
Power of Attorney” means a power of attorney in the form of Exhibit A
to the Nominee Agreement.


 


“Non-Eligible
Program Vehicle” means a Program Vehicle that is not an Eligible Program
Vehicle on the Vehicle Operating Lease Commencement Date for such Program
Vehicle.


 


“Non-Investment
Grade Manufacturer” has the meaning specified, with respect to any Series,
in the applicable Series Supplement.


 


“Non-Program
Vehicle” means an HVF Vehicle that is not subject to a Manufacturer Program
on the Vehicle Operating Lease Commencement Date for such HVF Vehicle or which
is redesignated as a Non-Program Vehicle pursuant to Section 2.6 of
the HVF Lease.


 


“Non-Program
Vehicle Special Default Payments” has the meaning specified in Section 13.3
of the HVF Lease.


 


“Noteholder”
and “Holder” means the Person in whose name a Note is registered in the
Note Register.


 


“Note
Obligations” means all principal and interest, at any time and from time to
time, owing by HVF on the Notes and all costs, fees and expenses payable by, or
obligations of, HVF under the Indenture and/or the Related Documents.


 


26

















 


“Note Owner”
means, with respect to a Book-Entry Note, the Person who is the beneficial
owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such Clearing
Agency (directly or as an indirect participant, in accordance with the rules of
such Clearing Agency).


 


“Note Rate”
means, with respect to any Series of Notes, the annual rate at which
interest accrues on the Notes of such Series of Notes (or formula on the
basis of which such rate shall be determined) as stated in the applicable Series Supplement.


 


“Note
Register” means the register maintained pursuant to Section 2.5(a) of
the Base Indenture, providing for the registration of the Notes and transfers
and exchanges thereof.


 


“Notes”
has the meaning specified in the recitals to the Base Indenture.


 


“Officer’s
Certificate” means a certificate signed by an Authorized Officer of Hertz,
HGI, Hertz Vehicles LLC or HVF, as the case may be.


 


“Operating
Lease Commencement Date” has the meaning specified in Section 3.2
of the HVF Lease.


 


“Operating
Lease Event of Default” has the meaning specified in Section 17.1
of the HVF Lease.


 


“Operating
Lease Expiration Date” has the meaning specified in Section 3.2
of the HVF Lease.


 


“Opinion of
Counsel” means a written opinion from legal counsel who is acceptable to
the Trustee. The counsel may be an employee of or counsel to Hertz, HGI,
Hertz Vehicles LLC or HVF, as the case may be.


 


“Outstanding”
has the meaning specified, with respect to any Series, in the applicable Series Supplement.


 


“Past Due
Amounts” means, with respect to any Manufacturer, the amount that such
Manufacturer (or if such Manufacturer’s Manufacturer Program is a Guaranteed
Depreciation Program, such Manufacturer or any related auction dealers) shall
have failed to pay when due under such Manufacturer’s Manufacturer Program with
respect to a Vehicle turned in to such Manufacturer with respect to which such
failure shall have continued for more than one hundred (100) days following the
Due Date.


 


“Paying
Agent” has the meaning specified in Section 2.5(a) of the
Base Indenture.


 


“Payment
Date” means, unless otherwise specified in any Series Supplement for
the related Series of Notes, the 25th day of each calendar month, or if
such date is not a Business Day, the next succeeding Business Day, commencing
on October 25, 2002.


 


“Permitted
Check Payments” means (i) payments of sales proceeds of HVF Vehicles
made by check by auction dealers under the Manufacturer Program with Chrysler
and


 


27

















 


(ii) payments
made by check by GM, Hyundai and Subaru under their respective Manufacturer
Programs.


 


“Permitted
Investments” means negotiable instruments or securities, payable in
Dollars, issued by an entity organized under the laws of the United States of
America and represented by instruments in bearer or registered or in book-entry
form which evidence (excluding any security with the “r” symbol attached
to its rating):


 


(i) 
obligations the full and timely payment of which are to be made by or is fully
guaranteed by the United States of America other than financial contracts whose
value depends on the values or indices of asset values;


 


(ii) 
demand deposits of, time deposits in, or certificates of deposit issued by, any
depositary institution or trust company incorporated under the laws of the
United States of America or any state thereof whose short-term debt is rated “P-1”
by Moody’s, “A-1+” by S&P (or as otherwise agreed to by S&P) and, if
rated by Fitch, “F1+” by Fitch (or as otherwise agreed to by Fitch) and subject
to supervision and examination by Federal or state banking or depositary
institution authorities; provided, however, that at the earlier
of (x) the time of the investment and (y) the time of the contractual
commitment to invest therein, the certificates of deposit or short-term
deposits, if any, or long-term unsecured debt obligations (other than such
obligation whose rating is based on collateral or on the credit of a Person
other than such institution or trust company) of such depositary institution or
trust company shall have a credit rating from S&P of “A-1+” (or as
otherwise agreed to by S&P), a credit rating from Moody’s of “P-1” and, if
rated by Fitch, a credit rating from Fitch of “F-1+” (or as otherwise agreed to
by Fitch) in the case of certificates of deposit or short-term deposits, or a
rating from S&P not lower than “AA,” a rating from Moody’s not lower than “Aa2”
and, if rated by Fitch, a rating from Fitch not lower than “AA” in the case of
long-term unsecured debt obligations;


 


(iii) 
commercial paper having, at the earlier of (x) the time of the investment and
(y) the time of the contractual commitment to invest therein, a rating from
S&P of “A-1+” (or as otherwise agreed to by S&P), a rating from Moody’s
of “P-1” and, if rated by Fitch, a rating from Fitch of “F-1+” (or as otherwise
agreed to by Fitch);


 


(iv) 
bankers’ acceptances issued by any depositary institution or trust company
described in clause (ii) above;


 


(v) 
investments in money market funds rated “AAAm” by S&P, “Aaa” by Moody’s
and, if rated by Fitch, “AAA” by Fitch, or otherwise approved in writing by
S&P, Moody’s and Fitch;


 


(vi) 
Eurodollar time deposits having a credit rating from S&P of “A-1+” (or as
otherwise agreed to by S&P), a credit rating from Moody’s of “P-1” and, if
rated by Fitch, a credit rating from Fitch of “F-1+” (or as otherwise agreed to
by Fitch);


 


(vii) 
repurchase agreements involving any of the Permitted Investments described in clauses
(i) and (vi) above and the certificates of deposit
described in clause (ii) above which are entered into with a
depository institution or trust company, having a


 


28

















 


commercial paper or short-term certificate of
deposit rating of “A-1+” by S&P (or as otherwise agreed to by S&P), “P-1”
by Moody’s and, if rated by Fitch, “F-1+” by Fitch (or as otherwise agreed to
by Fitch) or which otherwise is approved as to collateralization by the Rating
Agencies; and


 


(viii) 
any other instruments or securities, if the Rating Agencies confirm in writing
that the investment in such instruments or securities will not adversely affect
any ratings with respect to any Series of Notes.


 


“Permitted
Liens” means (i) Liens for current taxes not delinquent or for taxes
being contested in good faith and by appropriate proceedings, and with respect
to which adequate reserves have been established, and are being maintained, in
accordance with GAAP, (ii) mechanics’, materialmen’s, landlords’,
warehousemen’s and carriers’ Liens, and other Liens imposed by law, securing
obligations arising in the ordinary course of business that are not more than
thirty days past due or are being contested in good faith and by appropriate
proceedings and with respect to which adequate reserves have been established,
and are being maintained, in accordance with GAAP, (iii) Liens in favor of
the Trustee pursuant to the Indenture and Liens in favor of the Collateral
Agent pursuant to the Collateral Agency Agreement, and (iv) Liens in favor
of an Enhancement Provider, provided, however, that such Liens
referred to in this clause (iv) are subordinate to the Liens in
favor of the Trustee and the Collateral Agent and have been consented to by
each of the Trustee and the Collateral Agent.


 


“Person”
means any natural person, corporation, business trust, joint venture,
association, company, partnership, limited liability company, joint stock
company, corporation, trust, unincorporated organization or Governmental
Authority.


 


“Physical
Property” means banker’s acceptances, commercial paper, negotiable
certificates of deposits and other obligations that constitute “instruments”
within the meaning of Section 9-102(a)(47) of the applicable UCC and are
susceptible to physical delivery and Certificated Securities.


 


“Plan”
means any “employee pension benefit plan”, as such term is defined in ERISA,
which is subject to Title IV of ERISA (other than a “multiemployer plan”, as
defined in Section 4001 of ERISA) and to which any company in the
Controlled Group has liability, including any liability by reason of having
been a substantial employer within the meaning of Section 4063 of ERISA
for any time within the preceding five years or by reason of being deemed to be
a contributing sponsor under Section 4069 of ERISA.


 


“Pool
Factor” means, unless a Series of Notes is issued in more than one Class as
stated in the applicable Series Supplement, a number carried out to seven
decimals representing the ratio of the Principal Amount of such Series as
of such Record Date (determined after taking into account any reduction in the
Principal Amount which will occur on the following Payment Date) to the Initial
Principal Amount of such Series, and with respect to a Series of Notes
having more than one Class, as specified in the applicable Series Supplement.


 


“Potential
Amortization Event” means any occurrence or event which, with the giving of
notice, the passage of time or both, would constitute an Amortization Event.


 


29

















 


“Potential
Manufacturer Event of Default” means an event which, with the giving of
notice, the passage of time or both, would constitute a Manufacturer Event of
Default.


 


“Potential
Operating Lease Event of Default” means any occurrence or event which, with
the giving of notice, the passage of time or both, would constitute an
Operating Lease Event of Default.


 


“Power of
Attorney” means a power of attorney in the form of Exhibit B
to the Collateral Agency Agreement.


 


“Principal
Amount” means, with respect to each Series of Notes, the amount
specified in the applicable Series Supplement.


 


“Principal
Collections” means any Collections other than Interest Collections.


 


“Principal
Distribution Period” means, with respect to any Series of Notes, the
period specified in the applicable Series Supplement.


 


“Principal
Payment Amount” means, with respect to any Class of Notes, the amount
(or amounts) specified in any applicable Series Supplement.


 


“Principal
Terms” has the meaning specified in Section 2.3 of the Base
Indenture.


 


“Proceeds”
has the meaning specified in Section 9-102(a)(64) of the applicable UCC.


 


“Program
Vehicle” means an HVF Vehicle eligible under, and subject to, a
Manufacturer Program.


 


“Program
Vehicle Special Default Payments” has the meaning specified in Section 13.3
of the HVF Lease.


 


“PR
Borrower” means Puerto Ricancars Fleet, LLC, a Puerto Rican special purpose
limited liability company established under the laws of the Commonwealth of
Puerto Rico.


 


“Purchase
Agreement” means the Amended and Restated Participation, Purchase and Sale
Agreement dated as of the Restatement Effective Date by and among HGI, HVF, the
Servicer and the Lessee, as amended, modified or supplemented from time to time
in accordance with its terms.


 


“Purchaser”
has the meaning specified in the recitals to the Purchase Agreement.


 


“Qualified
Institution” means a depository institution organized under the laws of the
United States of America or any State thereof or incorporated under the laws of
a foreign jurisdiction with a branch or agency located in the United States of
America or any State thereof and subject to supervision and examination by
federal or state banking authorities which at all


 


30

















 


times has the
Required Rating and, in the case of any such institution organized under the
laws of the United States of America, whose deposits are insured by the FDIC.


 


“Qualified
Insurer” means a financially sound and responsible insurance company duly
authorized and licensed where required by law to transact business and having a
general policy rating of “A” or better by A.M. Best Company, Inc.


 


“Qualified
Intermediary” means a Person satisfying the requirements for a “qualified
intermediary” within the meaning of Section 1031 of the Code and the
regulations thereunder.


 


“Qualified
Trust Institution” means an institution organized under the laws of the
United States of America or any State thereof or incorporated under the laws of
a foreign jurisdiction with a branch or agency located in the United States of
America or any State thereof and subject to supervision and examination by
federal or state banking authorities which at all times (i) is authorized
under such laws to act as a trustee or in any other fiduciary capacity, (ii) has
capital, surplus and undivided profits of not less than $50,000,000 as set
forth in its most recent published annual report of condition, and (iii) has
a long term deposits rating of not less than “BBB-” by S&P, “Baa3” by Moody’s
and, unless otherwise agreed to by Fitch, “BBB-” by Fitch.


 


“Rapid
Amortization Period” means, with respect to any Series of Notes, the
period specified in the applicable Series Supplement.


 


“Rating
Agency” with respect to any Series of Notes, has the meaning specified
in the applicable Series Supplement.


 


“Rating
Agency Condition” with respect to any Series of Notes, has the meaning
specified in the applicable Series Supplement.


 


“Reasonably
Equivalent Value” has the meaning specified in Section 1.07 of
the Purchase Agreement.


 


“Record
Date” means, with respect to any Series of Notes and any Payment Date,
the date specified in the applicable Series Supplement.


 


“Registered Organization” means “registered
organization” within the meaning of Section 9-102(a)(70) of Revised Article 9.


 


“Registrar”
has the meaning specified in Section 2.5(a) of the Base
Indenture.


 


“Rejected
Vehicle” has the meaning specified in Section 1.05(b) of
the Purchase Agreement.


 


“Rejected
Vehicle Payment” has the meaning specified in Section 1.05(b) of
the Purchase Agreement.


 


31

















 


“Rejected
Vehicle Schedule” has the meaning specified in Section 1.05(b) of
the Purchase Agreement.


 


“Related
Documents” means, collectively, the Indenture, the Notes, the Purchase
Agreement, the Hertz Contribution Agreement, the HFC Purchase Agreement, the
Nominee Agreement, the Hertz Nominee Agreement, the HFC Nominee Agreement, the
Collateral Agency Agreement, the Indemnification Agreement, the LLC Agreement,
the HVF Credit Facility, any Enhancement Agreement, the Assignment Agreements,
the Administration Agreement, the Depository Agreements, any agreements
relating to the issuance or the purchase of any Series of Notes, the HVF
Lease, the Supplemental Documents relating to the HVF Lease, the Master
Exchange Agreement and the Escrow Agreement.


 


“Related
Month” means, (i) with respect to any Payment Date or Determination
Date, the most recently ended calendar month, (ii) with respect to any
other date, the calendar month in which such date occurs and (iii) with
respect to an Interest Period, the month in which such Interest Period
commences; provided, however, that with respect to the above clause
(i), the initial Related Month shall be the period from and including the
Initial Closing Date to and including the last day of the calendar month in
which the Initial Closing Date occurs.


 


“Related
Vehicle Collateral” has the meaning specified in Section 5.1(a) of
the Collateral Agreement.


 


“Relinquished
Property Proceeds” has the meaning specified in Section 1.1 of the
Master Exchange Agreement.


 


“Rent”
has the meaning specified in Section 4.3 of the HVF Lease.


 


“Reportable
Event” has the meaning specified in Title IV of ERISA.


 


“Repurchase
Period” means, with respect to any Program Vehicle, the period during which
such Vehicle may be turned in to the Manufacturer thereof for repurchase
or sale at Auction pursuant to the applicable Manufacturer Program.


 


“Repurchase
Price” with respect to any Program Vehicle (i) subject to a Repurchase
Program means the price paid or payable by the Manufacturer thereof to
repurchase such Program Vehicle pursuant to its Manufacturer Program and (ii) subject
to a Guaranteed Depreciation Program means the amount which the Manufacturer
thereof guarantees will be paid to the seller of such Program Vehicle by such
Manufacturer and/or the related auction dealers upon the disposition of such
Program Vehicle pursuant to its Manufacturer Program.


 


“Repurchase
Program” means a program pursuant to which a Manufacturer has agreed to
repurchase Vehicles manufactured by such Manufacturer or one of its Affiliates
during the specified Repurchase Period.


 


“Required
Asset Amount” means, with respect to any Series of Notes, the amount
specified in the applicable Series Supplement.


 


32

















 


“Required
Enhancement Amount” means, with respect to any Series of Notes, the
amount specified in the applicable Series Supplement.


 


“Required
Noteholders” has the meaning specified, with respect to any Series of
Notes, in the applicable Series Supplement.


 


“Required
Rating” means (i) a short-term certificate of deposit rating from
Moody’s of “P-1,” from S&P of at least “A-1+” and, if rated by Fitch, from
Fitch of at least “F-1+” and (ii) a long-term unsecured debt rating of not
less than “Aa3” by Moody’s, not less than “AA-” by S&P and, unless
otherwise agreed to by Fitch, not less than “AA-” by Fitch.


 


“Requirements
of Law” means, with respect to any Person or any of its property, the
certificate of incorporation or articles of association and by-laws, limited
liability company agreement, partnership agreement or other organizational or
governing documents of such Person or any of its property, and any law, treaty,
rule or regulation, or determination of any arbitrator or 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, whether
Federal, state or local (including, without limitation, usury laws, the Federal
Truth in Lending Act and retail installment sales acts).


 


“Requisite
Investors” means Noteholders holding in excess of 50% of the sum of (a) the
Aggregate Principal Amount and (b) the sum of the unutilized purchase
commitments of the Committed Purchasers (excluding, for the purposes of making
the foregoing calculation, any Notes held by any Affiliate of Hertz (other than
a Committed Purchaser or an Affiliate Issuer)); provided, however
that, upon the occurrence and during the continuance of an Amortization Event
with respect to any Series of Notes held by a Committed Purchaser, the
purchase commitment of such Committed Purchaser shall be deemed to be zero.


 


“Responsible
Officer” means, with respect to the Collateral Agent, any officer within
the corporate trust department of the Collateral Agent, including any Vice
President, Assistant Vice President or Assistant Treasurer of the Corporate
Trust Office, or any trust officer, or any officer customarily performing
functions similar to those performed by the person who at the time shall be
such officers, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with a particular subject, or any successor
thereto responsible for the administration of the Collateral Agency Agreement.


 


“Restatement
Effective Date” means December 21, 2005.


 


“Revised Article 8” means Article 8
of the New York UCC.


 


“Revised Article 9” means Article 9 of the New York
UCC.


 


“Revolving
Period” means, with respect to any Series of Notes, the period
specified in the applicable Series Supplement.


 


“S&P”
or “Standard & Poor’s” means Standard & Poor’s Ratings
Services, a division of The McGraw-Hill Companies, Inc.


 


33

















 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Seller”
has the meaning specified in the recitals to the Purchase Agreement.


 


“Series Account”
means any account or accounts established pursuant to a Series Supplement
for the benefit of a Series of Notes.


 


“Series Closing
Date” means, with respect to any Series of Notes, the date of issuance
of such Series of Notes, as specified in the applicable Series Supplement.


 


“Series of
Notes” or “Series” means each Series of Notes issued and
authenticated pursuant to the Base Indenture and the applicable Series Supplement.


 


“Series-Specific
Swap Agreement” means one or more interest rate swap contracts, interest
rate cap agreements or similar contracts entered into by HVF in connection with
the issuance of a Series of Notes, as specified, and designated as a “Series-Specific
Swap Agreement” in the applicable Series Supplement, providing limited
protection against interest rate risks solely with respect to such Series of
Notes.


 


“Series Supplement”
means a supplement to the Base Indenture complying (to the extent applicable)
with the terms of Section 2.3 of the Base Indenture.


 


“Series Termination
Date” means, with respect to any Series of Notes, the date stated in
the applicable Series Supplement as the termination date.


 


“Servicer”
means Hertz, in its capacity as servicer under the HVF Lease, the Purchase
Agreement and the Collateral Agency Agreement.


 


“Servicer
Default” has the meaning specified in Section 17.7 of the HVF
Lease.


 


“Service
Vehicles” means, solely during the period commencing on the Acquisition
Date and ending 180 days from the Acquisition Date, a passenger automobile or
light-duty truck which is sold by HFC to HVF on or prior to the Acquisition
Date pursuant to the HFC Purchase Agreement and leased by HVF to the Lessee
pursuant to the HVF Lease (including any such Vehicle that constitutes
Replacement Property under and as defined in the Master Exchange Agreement) and
(i) that is not older than forty-eight (48) months from the date of the
original manufacturer invoice therefore, (ii) the Certificate of Title for
which is in the name of HFC and shall not note any lien thereon, including, without
limitation, the lien of the Collateral Agent (or the Certificate of Title has
been submitted to the appropriate state authorities for retitling and notation
of the lien of the Collateral Agent as the first lienholder), (iii) that
has been made subject to the HFC Nominee Agreement, (iv) that is owned by
HVF free and clear of all Liens other than Permitted Liens and (v) that is
designated as an HVF Vehicle in accordance with the Collateral Agency Agreement.
For the avoidance of doubt, with respect to any passenger automobile or
light-duty truck, from and after receipt by the Servicer or a Servicer’s Agent,
as agent of, and custodian for, the Collateral Agent, or its designated agents,
of a Certificate of Title with respect to such passenger automobile or
light-duty truck which is in the name of Hertz Vehicles LLC, as nominee
titleholder for HVF and which notes the Collateral Agent as the first
lienholder, such passenger automobile or light-duty truck shall not constitute
a


 


34

















 


Service
Vehicle. In addition, for the avoidance of doubt, from and after the expiration
of the period ending 180 days from the Acquisition Date, no passenger
automobile or light-duty truck shall constitute a Service Vehicle.


 


“Special
Default Payments” has the meaning specified in Section 13.3 of
the HVF Lease.


 


“Special
Term” has the meaning specified in Section 3.1 of the HVF
Lease.


 


“Specified
Bankruptcy Opinion Provisions” means the provisions contained in the legal
opinions delivered in connection with the issuance of each Series of Notes
or, if applicable, amendments to the Related Documents relating to the
non-substantive consolidation of Hertz and its Affiliates (other than HGI and
Hertz Vehicles LLC) and HVF.


 


“Subaru”
means Subaru of America, Inc., a New Jersey corporation, and its
successors.


 


“Subsidiary”
means, with respect to any Person (herein referred to as the “parent”), any
corporation, partnership, association or other business entity (a) of
which securities or other ownership interests representing more than 50% of the
equity or more than 50% of the ordinary voting power or more than 50% of the
general partnership interests are, at the time any determination is being made,
owned, controlled or held by the parent or (b) that is, at the time any
determination is being made, otherwise controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.


 


“Supplement”
means a supplement to the Base Indenture complying (to the extent applicable)
with the terms of Article 12 of the Base Indenture.


 


“Supplemental
Documents” has the meaning specified in Section 2.1 of the HVF
Lease.


 


“SV
Transfer Price” has the meaning specified in Section 1.02 of
the HFC Purchase Agreement.


 


“Swap
Agreement” means one or more interest rate swap contracts, interest rate
cap agreements or similar contracts (other than a Series-Specific Swap
Agreement) entered into by HVF in connection with the issuance of a Series of
Notes, as specified, and designated, as a “Swap Agreement”, in the applicable Series Supplement,
providing limited protection against interest rate risks.


 


“Swap
Payments” means amounts payable to or receivable by HVF pursuant to any
Swap Agreement.


 


“Tax
Opinion” means an Opinion of Counsel to be delivered in connection with the
issuance of a new Series of Notes to the effect that, for United States
federal income tax purposes, (i) the issuance of such new Series of
Notes will not affect adversely the United States federal income tax
characterization of any Series of Notes Outstanding or Class thereof
that was (based upon an Opinion of Counsel) characterized as debt at the time
of their issuance and (ii)


 


35

















 


HVF will not
be classified as an association or as a publicly traded partnership taxable as
a corporation for United States federal income tax purposes.


 


“10-K
Report” has the meaning specified in Section 25.5 of the HVF
Lease.


 


“Term”
has the meaning specified in Section 3.2 of the HVF Lease.


 


“Termination
Payment” means the collective reference to Excess Damage Charges, Excess
Mileage Charges, early turnback surcharges and any other similar charges and
penalties charged under the Manufacturer Programs.


 


“Termination
Value” means, with respect to (a) any Vehicle other than a Transferred
Vehicle, as of any date, an amount equal to (i) the Capitalized Cost of
such Vehicle, minus (ii) all Depreciation Charges for such Vehicle accrued
prior to such date under the applicable Lease, (b) any Transferred Vehicle,
as of any date, an amount equal to (i) the Transfer Price previously paid
by or on behalf of HGI or HVF, as the case may be, for such Vehicle
pursuant to Section 1.07 of the Purchase Agreement minus (ii) all
Depreciation Charges for such Transferred Vehicle accrued under the applicable
Lease from the date such Vehicle was transferred pursuant to Section 1.06
of the Purchase Agreement to such date, (c) any Initial Hertz Vehicle, as
of any date, an amount equal to (i) the IHV Transfer Value of such Initial
Hertz Vehicle minus (ii) all Depreciation Charges for such Initial Hertz
Vehicle accrued under the applicable Lease from the date such Initial Hertz
Vehicle was transferred pursuant to Section 1.01 of the Hertz
Contribution Agreement to such date and (d) any Service Vehicle, as of any
date, an amount equal to (i) the SV Transfer Price previously paid by or
on behalf of HVF for such Vehicle pursuant to Section 1.02 of the
HFC Purchase Agreement minus (ii) all Depreciation Charges for such
Service Vehicle accrued under the applicable Lease from the date such Service
Vehicle was transferred pursuant to Section 1.01 of the HFC
Purchase Agreement to such date.


 


“Toyota”
means Toyota Motor Sales, U.S.A., Inc., a California corporation, and its
successors, provided, that for determination of ratings by the Rating
Agencies, “Toyota” means Toyota Motor Corporation and its successors.


 


“Transfer
Price” has the meaning specified in Section 1.07 of the
Purchase Agreement.


 


“Transferred
HGI Vehicle” means, as of any date of determination, a HGI Vehicle which
has been sold to HVF pursuant to Section 1.06 of the Purchase
Agreement prior to such date.


 


“Transferred
HVF Vehicle” means, as of any date of determination, an HVF Vehicle which
has been sold to HGI pursuant to Section 1.06 of the Purchase
Agreement prior to such date.


 


“Transferred
Vehicle” means either a Transferred HGI Vehicle or a Transferred HVF
Vehicle.


 


36

















 


“Transferred
Vehicle Schedule” has the meaning specified in Section 1.06 of
the Purchase Agreement.


 


“Trustee”
means the party named as such in the Indenture until a successor replaces it in
accordance with the applicable provisions of the Indenture and thereafter means
the successor serving thereunder.


 


“Trust
Officer” means any officer within the corporate trust department of the
Trustee, including any Vice President, Assistant Vice President or Assistant
Treasurer of the Corporate Trust Office, or any trust officer, or any officer
customarily performing functions similar to those performed by the person who
at the time shall be such officers, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with a particular subject,
or any successor thereto responsible for the administration of the Base
Indenture.


 


“Turnback
Date” means, with respect to any Program Vehicle, the date on which such
Vehicle is accepted for return by a Manufacturer or its agent pursuant to its
Manufacturer Program and the Depreciation Charges cease to accrue pursuant to
its Manufacturer Program.


 


“UCC”
means the Uniform Commercial Code as in effect from time to time in the
specified jurisdiction.


 


“United
States” or “U.S.” means the United States of America, its fifty
States and the District of Columbia.


 


“U.S.
Government Obligations” means direct obligations of the United States of
America, or any agency or instrumentality thereof for the payment of which the
full faith and credit of the United States of America is pledged as to full and
timely payment of such obligations.


 


“Vehicle”
means either a HGI Vehicle or an HVF Vehicle.


 


“Vehicle
Collateral” means the collective reference to the HGI Vehicle Collateral
and the HVF Vehicle Collateral.


 


“Vehicle
Funding Date” has the meaning specified in Section 3.1 of the
HVF Lease.


 


“Vehicle
Operating Lease Commencement Date” has the meaning specified in Section 3.1
of each of the Leases.


 


“Vehicle
Operating Lease Expiration Date” has the meaning specified in Section 3.1
of each of the Leases.


 


“Vehicle
Purchase Price” has the meaning specified in Section 2.4 of the
HVF Lease.


 


“Vehicle
Return Default” has the meaning specified in Section 17.6 of
the HVF Lease.


 


37

















 


“Vehicle
Term” has the meaning specified in Section 3.1 of the HVF
Lease.


 


“Vehicle
Turn-In Condition” has the meaning specified in Section 13.1 of
the HVF Lease.


 


“Volkswagen”
means Volkswagen of America, Inc., a New Jersey corporation, and its
successors.


 


“Volvo”
means Volvo Cars of North America, LLC, a Delaware limited liability company,
and its successors.


 


“VIN”
means vehicle identification number.


 


“written”
or “in writing” means any form of written communication, including,
without limitation, by means of telex, telecopier device, telegraph or cable.


 


38


 

















 


 


 


EXHIBIT A


TO BASE INDENTURE


 


FORM OF MONTHLY SERVICING CERTIFICATE


 


HERTZ VEHICLE FINANCING LLC


 


Pursuant to Section 4.1(c)
of the Amended and Restated Base Indenture dated as of December 21, 2005 for
Rental Car Asset Backed Notes (Issuable in Series) by and between Hertz Vehicle
Financing LLC, as Issuer, and BNY Midwest Trust Company, as Trustee (the “Base
Indenture”), the undersigned                      ,
                       
of Hertz Vehicle Financing LLC, does hereby certify to the best of his
knowledge after due investigation that:


 


1.             Attached hereto is a true and correct copy of
the monthly Noteholders’ Statement hereby delivered on or before the fourth
Business Day prior to the upcoming Payment Date pursuant to Section 4.1(d) of
the Base Indenture.


 


The undersigned has read the
provisions of the Indenture relating to the foregoing, has made due
investigation into the matters discussed herein, which investigation has enabled
him to express an informed opinion on the foregoing and, in the opinion of the
undersigned, those conditions or covenants contained in the Indenture which
relate to the above matters have been complied with.


 


Capitalized terms used
herein shall have the meanings set forth in the Indenture and Schedule I
(Definitions List) thereto.


 


IN WITNESS WHEREOF, the
undersigned has executed and delivered this Officer’s Certificate this
     day of                 ,
     .


 


 


	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


EXHIBIT B

TO BASE INDENTURE


 


FORM OF HVF CREDIT FACILITY


 

















 


This
CREDIT AGREEMENT (this “Agreement”) is to be effective as of
[                ],
[      ], and is between THE HERTZ CORPORATION, a
Delaware corporation (“Lender”), or its successors or assignees, and HERTZ
VEHICLE FINANCING LLC, a Delaware limited liability company (“Borrower”).


 


BACKGROUND


 


A.            Lender is willing to make a loan in the
aggregate principal amount of up to
[               ]
($[               ])
available to Borrower on the terms and conditions contained in this Agreement.


 


B.            Borrower desires to use the proceeds received
pursuant to this Agreement for general corporate purposes.


 


AGREEMENT


 


In consideration of the
mutual promises set forth in this Agreement, Borrower and Lender agree as follows:


 


ARTICLE
I


 


Definitions


 


SECTION
1.01.               Defined Terms.  For
purposes of this Agreement, the following terms shall have the following
definitions:


 


“Amortization Event” with respect to each Series of Notes has
the meaning specified in the Indenture.


 


“Business Day” shall mean any day (excluding each Saturday,
Sunday and legal holiday) on which
[                ],
a [          ] banking
corporation, is open to transact business.


 


“Default Rate” shall mean the applicable Loan Rate plus (2)
percentage points per annum.


 


“Event of Default” shall mean each event identified in
Article 13 of this Agreement.


 


“Governmental Authority” shall mean any federal, state, local
or foreign court or governmental department, commission, board, bureau, agency,
authority, instrumentality or regulatory body.


 

















 


“Indenture” shall mean the Amended and Restated Base
Indenture, dated as of December 21, 2005, between the Borrower and BNY Midwest
Trust Company, as trustee, as the same may be amended and supplemented from
time to time, including by any Series Supplement.


 


“Interest Payment Date” shall mean, the 25th day of each
month, or if such date is not a Business Day, the next succeeding Business Day,
commencing on
[                ],
[        ], unless otherwise specified
in any Series Supplement for the related Series of Notes.


 


“Interest Period” shall have the meaning set forth in Section
2.03.


 


“Loan” shall have the meaning set forth in Section 2.01(a).


 


“Loan Documents” shall mean this Agreement, the Loan Note and
all other agreements, instruments and documents now or hereinafter executed by
or on the behalf of Borrower and delivered to Lender which evidence or relate
to this Agreement or the transactions contemplated hereby.


 


“Loan Note” shall mean that certain Loan Note dated the date
hereof made by Borrower and held by Lender in the aggregate principal amount of
up to
[             ]
($[                 ]),
a copy of which is attached hereto and made a part hereof as Exhibit A.


 


“Loan Rate” shall mean, unless provided to the contrary
elsewhere in this Agreement, [                 ]
percent ([             ]%)
per annum.


 


“Maturity Date” shall mean
[                ],
[     ], unless accelerated upon an Event of Default
or otherwise restricted pursuant to Section 2.05 hereof; provided, however,
that the Maturity Date shall be extended automatically by one year on each
December 31 occurring after the date hereof unless written notice of nonrenewal
is received by the Borrower from the Lender no fewer than 180 days prior to
such date.


 


“Notes” shall mean notes issued by the Borrower pursuant to
the Indenture.


 


“Obligations” shall mean the Loan and each other loan,
advance, indebtedness, liability, obligation, covenant or duty (including
post-petition interest on the foregoing, to the extent lawful) owing, arising,
due or payable from Borrower to Lender of any kind or nature, present or
future, arising under the Loan Documents, whether direct or indirect (including
those acquired by assignment), as the same may be modified, extended or renewed
from time to time.  Such term includes,
without limitation, all interest, charges, expenses, fees, attorneys’ fees and
each other sum chargeable to Borrower by Lender under the Loan Documents.


 


“Outstanding” shall have the meaning specified, with respect
to any Series, in the applicable Series Supplement.


 

















 


“Person” shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership, limited liability
company, joint stock company, corporation, trust, unincorporated organization
or Government Authority.


 


“Series” shall mean any series of Notes issued by the
Borrower.


 


“Series Supplement” shall mean a supplement to the Indenture
that authorizes a particular Series of Notes.


 


“Taxes” shall mean each present or future stamp or
documentary tax or other excise or property tax, charge or similar levy of the
United States or any state or political subdivision thereof or any applicable
foreign jurisdiction that may arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement.


 


ARTICLE
II


 


Revolving
Credit Facility


 


SECTION
2.01.               Revolving Loan. 
(a)  Lender hereby establishes,
subject to the terms and conditions of this Agreement and in reliance upon the
representations and warranties made herein by Borrower, a loan (the “Loan”) in
favor of Borrower in an aggregate principal amount not to exceed [                   ]
($[                  ])
and, subject to Section 2.01(d), agrees to make and remake advances to
Borrower, upon the terms and conditions set forth in this Agreement, on any
Business Day while this Agreement is in effect; provided, however,
that Borrower shall give Lender notice on or before 12:00 noon on such Business
Day of the amount of each desired advance and the date funds are to be received
by Borrower.


 


(b)           Borrower shall request an advance under this
Agreement in writing by any officer of Borrower.


 


(c)           Borrower shall not be required to pay any
commitment fee, either initially or annually, with respect to this Agreement.


 


(d)           Notwithstanding anything to the contrary in
this Agreement, Lender shall not be obligated to advance funds under this
Agreement to Borrower.


 


SECTION
2.02.               Term.  This Agreement shall continue
in effect until the later of the Maturity Date or the date on which all of the
Obligations have been paid in full.


 


SECTION
2.03.               Interest.  Except as otherwise provided
in Section 3.01, Borrower agrees to pay to Lender interest on the weighted
average principal amount of the Loan outstanding during each Interest Period at
the Loan Rate on the Interest Payment Date for the period from and including
the prior Interest Payment Date, or in the case of the first Interest Payment
Date, the date of this Agreement, to but excluding such


 

















 


Interest
Payment Date (each an “Interest Period”). 
Interest on the loan shall be calculated based on the actual number of
days elapsed in each Interest Period and a year consisting of 360 days.


 


SECTION
2.04.               Prepayment Privilege. 
Borrower may prepay without penalty any portion of, or the entire,
outstanding balance due under this Agreement; provided, however,
that Borrower may not make prepayments until funds are released to Borrower
under any Series Supplement(s).


 


SECTION
2.05.               Available Funds. 
Notwithstanding any provision to the contrary in this Agreement, the
Loan Notes(s) or any other Loan Document, the parties agree that all amounts
payable by Borrower under this Agreement, any Loan Note or any other Loan
Document on each Interest Payment Date are hereby expressly made subordinate
and subject in right of payment to the prior payment in full in cash of all
obligations, whether direct or indirect, absolute or contingent due under the
Series Supplement(s) as of such Interest Payment Date, in each case whether on
account of principal, interest, fees, indemnities, costs, expenses or
otherwise.  This subordination is for the
benefit of and enforceable by the holders of Notes.  All amounts payable by Borrower to Lender
under this Agreement, any Loan Note or any other Loan Document are due and
payable to Lender only to the extent funds are released to Borrower under any
Series Supplement(s).


 


SECTION
2.06.               Loan Note.  Contemporaneously with the
execution of this Agreement, Borrower shall execute and deliver the Loan Note
to Lender.  The principal amount owing to
Lender under the Loan Note at any given time shall be the aggregate amount of
all advances made under the Loan, less all payments of principal theretofore
paid by or on behalf of Borrower.  The
Loan Note shall (i) be payable to the order of the Lender, (ii) be dated the
date hereof, and (iii) mature on the Maturity Date.


 


ARTICLE
III


 


Default


 


SECTION
3.01.               Default Interest Rate. 
Notwithstanding any provision to the contrary in this Agreement, during
the existence of any Event of Default the aggregate outstanding principal
amount of the Loan shall accrue interest at the Default Rate.


 


SECTION
3.02.               Interest Payable.  To
the fullest extent permitted under applicable law, interest shall continue to
accrue on the Loan after the filing by or against Borrower of a petition
seeking relief in bankruptcy or under any act or law pertaining to insolvency
or debtor relief, whether state, federal or foreign.


 

















 


ARTICLE
IV


 


Payment


 


SECTION
4.01.               Timing.  All payments (including
prepayments) by Borrower on account of principal, interest, costs and expenses
under the Loan shall be made to Lender in immediately available funds not later
than 3:00 p.m., New York City time on the date such payment is due, subject to
Section 2.05 hereof.  Any payment
received after 3:00 p.m. shall be deemed to have been received by Lender the
next Business Day.  If any payment of
principal or interest falls due on a day that is not a Business Day, then such
due date shall be extended to the next succeeding Business Day, and interest
shall continue to accrue on the outstanding principal for such period of
extension, but interest for the period of extension shall not be due or payable
until the next payment date.


 


SECTION
4.02.               Application of Payments.  Each
payment made by Borrower shall be applied (i) first, to the payment of accrued
and unpaid fees and interest on the Loan Note, and (ii) second, to the payment
of unpaid principal on the Loan Note; provided, however, that,
during the existence of an Event of Default, Lender may apply all such payments
in any amounts and in any fashion or priority as Lender in its sole discretion
may determine.


 


ARTICLE
V


 


Use
of Proceeds


 


Borrower covenants to use
the proceeds received pursuant to this Agreement exclusively for general
corporate purposes, including, without limitation, paying off debt (now
existing or hereafter incurred) and as working capital.


 


ARTICLE
VI


 


Disbursement
of Proceeds


 


Borrower hereby authorizes
Lender to disburse, for and on behalf of Borrower, the proceeds of each advance
under this Agreement, in the form of a wire transfer to such bank account of
Borrower as Borrower from time to time instructs Lender in accordance with the
terms set forth in Section 2.01 of this Agreement.


 


ARTICLE
VII


 


Taxes


 


SECTION
7.01.               Liability.  Borrower agrees to pay all
Taxes incurred by Borrower with respect to proceeds disbursed under this
Agreement.


 

















 


SECTION
7.02.               Indemnification. 
Borrower agrees to indemnify Lender for the full amount of Taxes paid by
Lender in connection with the Loan Documents and any transactions contemplated
thereby and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto.  Borrower
further agrees that such indemnification shall be made within thirty (30) days
from the date Lender makes written demand therefor, subject to Section 2.05
hereof.


 


ARTICLE
VIII


 


Register


 


Lender may maintain a
register on which it records advances made by it to Borrower from time to time,
and each payment in respect thereof.  If
Lender maintains such a register, such recordation shall be conclusive, absent
error therein.  Failure to maintain any
such register, or any error in such register, shall not affect Borrower’s
obligations under this Agreement.


 


ARTICLE
IX


 


Waiver
of Rights


 


Borrower expressly
waives:  (i) notice of extension of
credit to Borrower by Lender, (ii) presentment and demand for payment of any of
the Obligations, (iii) protest and notice of dishonor of or default to Borrower
or to any other party with respect to the Obligations, (iv) each other notice
to which Borrower might otherwise be entitled, (v) any right to assert against
Lender, as a defense, counterclaim, set-off or cross-claim, any defense (legal
or equitable), setoff, counterclaim or claim which Borrower may now or
hereafter have against Lender, but such waiver shall not prevent Borrower from
asserting against Lender in a separate action, any claim, action, cause of
action or demand that Borrower might have, whether or not arising out of this
Agreement.


 


ARTICLE
X


 


Representations
and Warranties of Borrower


 


SECTION
10.01.             Borrower is a duly organized and validly
existing limited liability company under the laws of the State of Delaware.


 


SECTION
10.02.             Borrower (i) is in good standing in each
state in which it does business which is material to its operations, and (ii)
has no material federal, state or local tax liabilities, which are past due,
except such tax liabilities, if any, as are being contested in good faith and
for which adequate reserves have been set aside on its books.


 

















 


SECTION
10.03.             To the best of the knowledge of the
undersigned officer of Borrower, there is no legal action or proceeding pending
against Borrower which would prevent Borrower from validly entering into this
Agreement.


 


SECTION
10.04.             Borrower has the legal power to enter into
this Agreement and the undersigned officer executing this Agreement on behalf
of Borrower has been duly authorized to do so.


 


SECTION
10.05.             Neither the execution nor the performance of
the obligations contained in this Agreement constitutes a material violation,
breach or default under any other agreement by which Borrower is bound.


 


ARTICLE
XI


 


Affirmative
Covenants


 


Until the Obligations are
paid in full, Borrower covenants and agrees that, unless Lender otherwise
consents in writing:


 


SECTION
11.01.             Borrower will promptly repay the Obligations
when due, subject to Section 2.05 hereof, including, without limitation, the
amounts due under the Loan Note (and each other applicable Loan Document),
according to the terms and conditions contained herein and therein.


 


SECTION
11.02.             Borrower shall perform all obligations
required to be performed by it under the terms of this Agreement, the Loan Note
and each other applicable Loan Document.


 


SECTION
11.03.             Borrower agrees to notify Lender promptly,
but in no event later than five (5) Business Days after Borrower obtains
knowledge of any:  (i) Event of Default,
or (ii) matter, including litigation or any investigation, government
regulation or enforcement, that has resulted in, or might reasonably be
expected to result in, a materially adverse change in the financial condition,
operations or business affairs of Borrower.


 


SECTION
11.04.             Borrower shall pay all taxes, assessments and
government charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which penalties
attach thereto, and all lawful claims which, if unpaid, might become a lien or
charge upon any asset or property of Borrower; provided, however,
that Borrower may, in good faith and with due diligence in appropriate
proceedings contest any such tax, assessment, charge, levy or claim.


 


SECTION
11.05.             Borrower agrees to comply in all material
respects with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by,


 

















 


all
governmental bodies, the noncompliance with which would be materially adverse
to the conduct of Borrower’s business.


 


ARTICLE
XII


 


Negative
Covenants


 


Until the Obligations are
paid in full, Borrower covenants and agrees that, unless Lender otherwise
consents in writing, Borrower shall not wind-up, liquidate, dissolve or, except
with respect to a merger, consolidation or reorganization in which Borrower is
the surviving corporation, enter into a consolidation, merger, syndication or
other combination, or sell, lease, transfer or otherwise dispose of, in a
single transaction or a series of related transactions, substantially all of
its business or assets.


 


ARTICLE
XIII


 


Events
of Default


 


Each of the following shall
constitute an “Event of Default:”  (a)
Borrower fails to make any payment required by this Agreement when due and the
same is not cured within ten (10) Business Days; (b) Borrower breaches any
covenant that Borrower has made to Lender in any Loan Document such breach and
is not cured within thirty (30) Business Days; (c) any representation or
statement made to Lender by Borrower or on Borrower’s behalf is false or
misleading in any material respect; (d) Borrower becomes insolvent, or a
receiver is appointed for any part of Borrower’s property; (e) Borrower makes
any material assignment for the benefit of creditors; (f) any proceeding is
commenced either by Borrower or against Borrower under any bankruptcy or
insolvency law and such proceeding is not cured within sixty (60) days; or (g)
an Amortization Event occurs with respect to all Series of Notes Outstanding.


 


ARTICLE
XIV


 


Rights
and Remedies After Event of Default


 


SECTION
14.01.             During the existence of an Event of Default,
Lender may:  (i) declare that this
Agreement is terminated, whereupon the Lender will cease to advance funds
hereunder, (ii) subject to Section 2.05 hereof, declare the Obligations to be,
and the same shall thereupon be, immediately due and payable without
presentation, demand, or protest or other requirements of any kind (including,
without limitation, valuation and appraisement, diligence, presentment, notice
of intent to demand or accelerate and notice of acceleration), all of which are
hereby expressly waived by Borrower, and (iii) exercise all of its rights under
this Agreement in order to satisfy the Obligations.


 

















 


SECTION
14.02.             The enumeration of Lender’s rights in Section
14.01 is not intended to be exhaustive and the exercise by Lender of any right
or remedy shall not preclude the exercise of any other right or remedy, all of
which shall be cumulative, and shall be in addition to any other right or
remedy given hereunder.  No delay or
failure to take action on the part of Lender in exercising any right shall be
construed to be a waiver of any Event of Default.  No course of dealing with Borrower by Lender,
its agents or employees shall effect a change, modification or amendment to
this Agreement nor shall it constitute a waiver of any Event of Default.


 


ARTICLE
XV


 


Notices


 


Each notice required to be
given under this Agreement shall be in writing addressed to the appropriate
recipient at the following address (or fax number) listed in this Article 15,
or such other address (or fax number) as the addressee may specify from time to
time.  Any notice may be delivered by (i)
hand, (ii) United States mail, postage prepaid, (iii) Federal Express (or any
other nationally recognized overnight courier), delivery charge prepaid, or
(iv) fax (or any other similar facsimile device).  Such notice shall be effective (i) when
received if hand delivered, mailed or couriered, and (ii) when dispatched if
given by fax.


 


TO LENDER:


 


The Hertz Corporation

225 Brae Boulevard

Park Ridge, NJ 07656

Attn:  Treasury Department


 


TO BORROWER:


 


Hertz Vehicle Financing LLC 

225 Brae Boulevard

Park Ridge, NJ 07656

Attn:  Treasury Department


 


ARTICLE
XVI


 


No
Petition


 


Lender agrees that it shall
not institute against, or join any other Person in instituting against,
Borrower any bankruptcy, reorganization, arrangement, insolvency or


 

















 


liquidation
proceeding, or any other proceeding under any federal or state bankruptcy or
similar law, for one year and a day after the Loan is repaid in full.


 


ARTICLE
XVII


 


Waiver
of Jury Trial


 


BORROWER IRREVOCABLY WAIVES
ANY AND ALL RIGHTS BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY LOAN DOCUMENT
OR ANY TRANSACTION CONTEMPLATED IN ANY SUCH LOAN DOCUMENT.  BORROWER ACKNOWLEDGES THAT THE FOREGOING
WAIVER IS KNOWING AND VOLUNTARY.


 


ARTICLE
XVIII


 


Miscellaneous


 


SECTION
18.01.             The parties hereto agree to cooperate with
each other to the fullest extent reasonably possible by executing all documents
that may from time to time be required to perfect the interest of either party
hereto arising hereunder and the rights and obligations hereunder.


 


SECTION
18.02.             This Agreement may not be amended or modified
without the written consent of all parties hereto.


 


SECTION
18.03.             THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK.


 


SECTION
18.04.             If any provision of this Agreement shall be
held by a court of competent jurisdiction to be invalid or unenforceable, such
invalidity or unenforceability shall not affect the remainder of this Agreement
which may be given effect without the invalid or unenforceable provision, and
to this end the provisions of this Agreement shall be severable.


 


SECTION
18.05.             This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior understandings and agreements.


 


SECTION
18.06.             All section and article headings in this
Agreement are for convenience of reference only and do not form part of this
Agreement and shall not affect in any way the meaning or interpretation of this
Agreement.


 

















 


SECTION
18.07.             Each party agrees to pay its respective
expenses incurred with the preparation of this Agreement, the carrying out of
its terms and the consummation of the transactions contemplated thereby.


 


SECTION
18.08.             This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.


 


ARTICLE
XIX


 


Non-Petition


 


Lender hereby covenants and
agrees that, prior to the date which is one year and one day after the payment
in full of all of the Notes, it will not institute against, or join any other
Person in instituting against Borrower, and bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States.  In the event that Lender takes action in
violation of this Article XIX, Borrower agrees, for the benefit of the holders
of Notes, that it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such a petition by Lender against it or the
commencement of such action and raise the defense that Lender has agreed in
writing not to take such action and should be estopped and precluded
therefrom.  The provisions of this
Article XIX shall survive the termination of this Agreement.


 


ARTICLE
XX


 


Limited
Recourse


 


The obligations of Borrower
under this Agreement are solely the obligations of Borrower.  No recourse shall be had for the payment of
any amount owing in respect of any fee hereunder or another obligation or claim
arising out of or based upon this Agreement against any member, employee,
officer or director of Borrower. 
Amounts, fees, expenses or costs payable by Borrower hereunder shall be
payable by Borrower to the extent and only to the extent that Borrower is reimbursed
therefore pursuant to any of the Related Documents, or funds are then available
or thereafter become available for such purpose pursuant to the Indenture, and
the amount of any fees, expenses or costs exceeding such funds shall in no
event constitute a claim (as defined in Section 101 of the Bankruptcy Code)
against, or corporate obligation of, Borrower.


 

















 


IN WITNESS WHEREOF, the
undersigned have duly executed this Agreement as of the
     th day of                 ,
     .


 


 


	
   

  	
  THE HERTZ CORPORATION,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HERTZ VEHICLE FINANCING
  LLC,

  
	
   

  	
   

  
	
   

  	
  by

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


___________, ____


 


LOAN NOTE


 


§1.          Promise to Pay.


Hertz Vehicle
Financing LLC, a Delaware limited liability company (“Borrower”), hereby
promises to pay to The Hertz Corporation, a Delaware corporation with
headquarters located at 225 Brae Boulevard, Park Ridge, New Jersey 07656
(“Lender”), or its successors or assigns, in lawful money of the United States
of America, the aggregate principal amount outstanding under this Loan Note of
up to
[                 ]
Dollars
($[            ]),
together with all accrued interest.  Each
capitalized term used herein, and not defined herein, shall be given the same
meaning as such term is given in that certain Credit Agreement between Lender
and Borrower to be effective on the date hereof (“Credit Agreement”).


§2.          Interest.


Until the
Obligations have been paid in full, interest shall accrue on the outstanding
principal balance hereof at the Loan Rate. 
Borrower shall not pay to Lender any commitment fee with respect to this
Loan Note.  During the existence of an
Event of Default, Borrower agrees to pay interest at the Default Rate; provided,
that interest shall accrue but will not be payable until and only to the extent
funds are released to Borrower under any Series Supplement(s).


§3.          Payments.


Borrower shall
make payments of all accrued and unpaid interest on the weighted average
principal amount of the Loan outstanding during each Interest Period at the
Loan Rate on the Interest Payment Date. 
Interest on the Loan shall be calculated based on the actual number of
days elapsed in each Interest Period and a year consisting of 360 days.  Borrower shall pay Lender each payment
required hereunder at Lender’s address shown above or, if requested in writing
by any officer of Lender, by wire transfer to another address as is designated
by Lender.  Except as provided in the
Credit Agreement or required by applicable law, payments will be applied first
to accrued and unpaid interest, then to principal.


§4.          Prepayments.


Borrower may
prepay without penalty all or a portion of the amount owed under this Loan
Note; provided, however, that Borrower may only make prepayments
with funds released to Borrower under any Series Supplement(s).  Prepayments will not, unless agreed by Lender
in writing, relieve Borrower of Borrower’s obligation to continue to make
interest payments as provided in §3 above. 
Rather, each prepayment shall be applied to reduce the principal balance
then outstanding.


 

















 


§5.          Default.


Each of the
following shall constitute an “Event of Default”:  (a) Borrower fails to make any payment
required by the Credit Agreement when due and the same is not cured within ten
(10) Business Days; (b) Borrower breaches any covenant that Borrower has made
to Lender in any Loan Document and such breach is not cured within thirty (30)
Business Days; (c) any representation or statement made to Lender by Borrower
or on Borrower’s behalf is false or misleading in any material respect; (d) Borrower
becomes insolvent, or a receiver is appointed for any part of Borrower’s
property; (e) Borrower makes any material assignment for the benefit of
creditors; (f) any proceeding is commenced either by Borrower or against
Borrower under any bankruptcy or insolvency law and such proceeding is not
cured within sixty (60) days; or (g) an Amortization Event occurs with respect
to all Series of Notes Outstanding.


§6.          Lender’s Rights.


During the
existence of an Event of Default, Lender may: 
(i) declare that the Credit Agreement is terminated, and cease to make
continued credit available to Borrower under this Loan Note and the Credit
Agreement, (ii) declare all or any part of the Obligations immediately due and
payable, subject to §9 of this Loan Note below, and (iii) exercise all of its
rights under this Note and the Credit Agreement in order to satisfy the
Obligations.


§7.          Revolving Line of Credit.


This Note
evidences a revolving line of credit. 
Once the total principal amount of this Loan Note has been advanced,
Borrower is only entitled to further loan advances upon repayment of a
corresponding amount of principal.  Each
advance under this Loan Note may only be requested as set forth in the Credit
Agreement. Borrower agrees to be liable for all sums advanced in accordance
with the terms of this §7.  The
unpaid  principal balance owing on this
Loan Note at any time will be recorded on the schedule attached hereto and made
a part hereof (the “Schedule”).  Lender
is authorized to make notations of the advances made by Lender to Borrower
under this Loan Note, and of all payments by Borrower to Lender of outstanding
principal amounts and accrued interest on the Loan, on the Schedule.  Such notations, if made, will be presumed correct
unless the contrary is established.


§8.          General Provisions.


Lender may
delay or forgo enforcing any of its rights or remedies under this Loan Note
without waiver of those rights. 
Borrower, to the extent allowed by applicable law, waives presentment,
demand for payment, protest and notice of dishonor.  Upon any change in the terms of this Loan
Note, and unless otherwise expressly stated in writing, no party who signs this
Loan Note shall be released 


 

















from
liability.  Neither Lender nor Borrower
may renew, extend, amend or modify this Loan Note without the written consent
of the other.


§9.          Available Funds.


Notwithstanding
any provision to the contrary in this Loan Note, the Credit Agreement or any
other Loan Document, all amounts payable to Lender by Borrower under this Loan
Note, the Credit Agreement or any other Loan Document are hereby expressly made
subordinate and subject in right of payment to the prior payment in full in
cash of all obligations, whether direct or indirect, absolute or contingent due
under the Series Supplement(s), in each case whether on account of principal,
interest, fees, indemnities, costs, expenses or otherwise.  This subordination is for the benefit of and
enforceable by the holders of Notes.  All
amounts payable by Borrower to Lender under this Loan Note, the Credit
Agreement or any other Loan Document are due and payable to Lender only to the
extent funds are released to Borrower under any Series Supplement(s).


§10.        Separate Counterparts


This Loan Note
may be executed by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.


§11.        Governing Law.


THIS LOAN NOTE
WILL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE
STATE OF NEW YORK.


§12.        Waiver of Jury Trial.


BORROWER
IRREVOCABLY WAIVES ANY AND ALL RIGHTS BORROWER MAY HAVE TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS LOAN NOTE, ANY
LOAN DOCUMENT OR ANY TRANSACTION CONTEMPLATED IN ANY SUCH LOAN DOCUMENT.  BORROWER ACKNOWLEDGES THAT THE FOREGOING
WAIVER IS KNOWING AND VOLUNTARY.


§13.        Non-petition.


Lender hereby
covenants and agrees that, prior to the date which is one year and one day
after the payment in full of all of the Notes, it will not institute against,
or join any other Person in instituting against Borrower, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States.  In the event that the
Lender takes action in violation of this §13, Borrower agrees, for the benefit
of the holders of Notes, that it shall file an answer with the 


 

















bankruptcy
court or otherwise properly contest the filing of such a petition by Lender,
against it or the commencement of such action and raise the defense that Lender
has agreed in writing not to take such action and should be estopped and
precluded therefrom.  The provisions of
this §13 shall survive the termination of this Loan Note.


§14.        Limited Recourse.


The
obligations of Borrower under this Loan Note are solely the obligations of
Borrower.  No recourse shall be had for
the payment of any amount owing in respect of any fee hereunder or another
obligation or claim arising out of or based upon this Loan Note against any
member, employee, officer or director of Borrower.  Amounts, fees, expenses or costs payable by
Borrower hereunder shall be payable by Borrower to the extent and only to the
extent that Borrower is reimbursed therefor pursuant to any of the Related
Documents, or funds are then available or thereafter become available for such
purpose pursuant to the Indenture, and the amount of any fees, expenses or
costs exceeding such funds shall in no event constitute a claim (as defined in
Section 101 of the Bankruptcy Code) against, or corporate obligation of,
Borrower.


[THE BALANCE OF THIS PAGE LEFT INTENTIONALLY BLANK]


 

















IN WITNESS WHEREOF, Borrower has executed this Loan
Note as of the ___th day of _____________, ____.


	
  HERTZ
  VEHICLE FINANCING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Received and
  acknowledged by

  
	
  THE HERTZ
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  Date:

  	
   

  	
   

  



 


 

















 


EXHIBIT C

TO BASE INDENTURE


 


FORM OF OFFICER’S CERTIFICATE


 


The undersigned,
[                              ], a [                        ] of Hertz Vehicle
Financing LLC, a Delaware limited liability company (the “Company”), pursuant
to Section 8.25(a) of the Amended and Restated Base Indenture dated as of
December 21, 2005 (the “Base Indenture”), between the Company and BNY Midwest
Trust Company, an Illinois trust company, as trustee (the “Trustee”), hereby
certifies that (i) the Company is in receipt of the preliminary Manufacturer
Program (as defined in Schedule 1 to the Base Indenture) for [name of
manufacturer] for the [   ] model year, (ii) upon review of such
Manufacturer Program, there are no changes to the terms and conditions of the
Manufacturer Program as compared to the Manufacturer Program for the previous
model year that are likely to have a material adverse effect on HVF and (iii)
the undersigned has no reason to believe that there will be any changes to the
terms and conditions of the final Manufacturer Program for the [    ] model year as compared to the
Manufacturer Program for the previous model year that would be likely to have a
material adverse effect on HVF.


 


IN WITNESS WHEREOF, the
undersigned has executed this certificate this
       day of               ,
20   .


 


 


	
   

  	
   

  	
   

  
	
   

  	
  [Name]

  
	
   

  	
  [Title]