Exhibit 4.5.39


 


 


DEED OF
UNDISCLOSED PLEDGE


 


 


OF


 


 


RECEIVABLES


 


 


between


 


 


Stuurgroep Holland B.V.


as Pledgor


 


and


 


BNS
Automobile Funding B.V.


 


and


 


BNP Paribas
as Security Agent


 


as Pledgees


 


 






 





 


Strawinskylaan 1999


1077 XV Amsterdam


 






 


21 December 2005


 

















 


TABLE OF CONTENTS


 


	
  1.

  	
   

  	
  DEFINITIONS AND INTERPRETATION

  	
   

  	
  3

  
	
  2.

  	
   

  	
  PARALLEL DEBT

  	
   

  	
  7

  
	
  3.

  	
   

  	
  CREATION AND REGISTRATION OF PLEDGE ON RECEIVABLES

  	
   

  	
  8

  
	
  4.

  	
   

  	
  COVENANT TO PLEDGE FUTURE RECEIVABLES

  	
   

  	
  8

  
	
  5.

  	
   

  	
  INFORMATION UNDERTAKING

  	
   

  	
  9

  
	
  6.

  	
   

  	
  FURTHER ASSURANCES AND NOTICE TO THIRD PARTIES

  	
   

  	
  10

  
	
  7.

  	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  10

  
	
  8.

  	
   

  	
  GENERAL UNDERTAKINGS

  	
   

  	
  11

  
	
  9.

  	
   

  	
  AUTHORITY TO COLLECT

  	
   

  	
  11

  
	
  10.

  	
   

  	
  IMMEDIATE FORECLOSURE

  	
   

  	
  13

  
	
  11.

  	
   

  	
  APPLICATION OF PROCEEDS

  	
   

  	
  14

  
	
  12.

  	
   

  	
  CONTINUING SECURITY AND OTHER MATTERS

  	
   

  	
  14

  
	
  13.

  	
   

  	
  CONFLICT

  	
   

  	
  14

  
	
  14.

  	
   

  	
  TERMINATION AND RELEASE OF PLEDGE

  	
   

  	
  14

  
	
  15.

  	
   

  	
  LIABILITY

  	
   

  	
  15

  
	
  16.

  	
   

  	
  COST AND INDEMNIFICATION

  	
   

  	
  16

  
	
  17.

  	
   

  	
  POWER OF ATTORNEY

  	
   

  	
  16

  
	
  18.

  	
   

  	
  GENERAL

  	
   

  	
  17

  
	
  19.

  	
   

  	
  GOVERNING LAW AND JURISDICTION

  	
   

  	
  19

  



 


2

















 


THE UNDERSIGNED


 


1.                                     Stuurgroep Holland
B.V. a private
company with limited liability, organised under the laws of the Netherlands,
having its registered office at Amsterdam (the “Pledgor”);


 


2.                                     BNS Automobile
Funding B.V., a private company with limited liability organised
under the laws of the Netherlands, having its registered office at Amsterdam,
hereinafter referred to as: “BNS”;
and


 


3.                                     BNP Paribas, a
company organised under the laws of France acting in its capacity of Security
Agent, hereinafter referred to as: “BNP”, and jointly with BNS hereinafter
referred to as: the “Pledgees”;


 


WHEREAS


 


A.                                   the Pledgor has or will have payment
obligations towards BNS under or pursuant to the loan agreement entered into by
BNS, as lender, and Pledgor, as borrower, dated on or about 21 December 2005,
(the “Loan Agreement”);


 


B.                                   the Pledgor has or will have payment
obligations towards BNP under or pursuant to the Bridge Facilities Agreement
(as hereinafter defined);


 


C.                                   the Pledgor has agreed to enter into
this Deed as security for the payment when due of the payment obligations
referred to under A and B;


 


D.                                   The Pledgor and the Pledgees
acknowledge that BNS shall pledge its claims referred to under A to BNP Paribas
as security for the Bridge Facilities Agreement, including, without limitation,
all accessory rights (afhankelijke rechten)
and all ancillary rights (nevenrechten)
which include (its share in) the rights of pledge contemplated in this Deed.


 


HAVE AGREED AS FOLLOWS


 


1.            DEFINITIONS AND INTERPRETATION


 


1.1                                  Definitions


 


In this Deed:


 


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  “Article”

  	
   

  	
  means an article of this Deed.

  
	
   

  	
   

  	
   

  
	
  “Bridge Facilities Agreement”

  	
   

  	
  means the senior bridge facilities agreement dated the 21st day of
  December two thousand and five between, among others, Hertz International,
  Ltd., the Borrowers (as defined therein), the Guarantors (as defined
  therein), BNP Paribas and The Royal Bank of Scotland Plc. as Mandated Lead
  Arrangers, CALYON as Co-Arranger and BNP Paribas as Facility Agent and the
  other financial institutions named therein.

  
	
   

  	
   

  	
   

  
	
  “Business Day”

  	
   

  	
  has the meaning given to that term in the Loan Agreement.

  
	
   

  	
   

  	
   

  
	
  “Buy Back

  Receivables”

  	
   

  	
  means any of the Pledgor’s receivables (vorderingen) and any other rights against the Buy Back
  Agreement Debtor which exist or may arise from or in connection with the Buy
  Back Agreement.

  
	
   

  	
   

  	
   

  
	
  “Debtor”

  	
   

  	
  means any debtor of the Pledgor.

  
	
   

  	
   

  	
   

  
	
  “Deed”

  	
   

  	
  means this deed of undisclosed pledges of receivables.

  
	
   

  	
   

  	
   

  
	
  “Enforcement Event”

  	
   

  	
  a default (verzuim) of
  the Pledgor with respect to the Secured Liabilities, within the meaning of
  article 3:248 NCC, provided that an Event of Default has occurred which is
  continuing and has not been waived under the Bridge Facilities Agreement and
  has resulted in the Facility Agent serving a notice under Clause 23.16 (Acceleration and Cancellation) of the
  Bridge Facilities Agreement.

  
	
   

  	
   

  	
   

  
	
  “Event of Default”

  	
   

  	
  has the meaning given to that term in the Bridge Facilities Agreement.

  
	
   

  	
   

  	
   

  
	
  “NCC”

  	
   

  	
  means the Netherlands Civil Code.

  



 


4

















 


	
  “Parallel Debt”

  	
   

  	
  means the Parallel Debt as defined in Article 2.

  
	
   

  	
   

  	
   

  
	
  “Party”

  	
   

  	
  means a party to this Deed.

  
	
   

  	
   

  	
   

  
	
  “Principal Obligations”

  	
   

  	
  means all present and future monetary payment obligations (vorderingen tot voldoening van een geldsom)
  (whether actual or contingent and whether owed jointly or severally or in any
  other capacity whatsoever) of the Pledgor to the Finance Parties or any one
  or more of them under or pursuant to the Finance Documents (as defined in the
  Bridge Facilities Agreement).

  
	
   

  	
   

  	
   

  
	
  “Receivables”

  	
   

  	
  means, with respect to the
  Pledgor, all debts and other obligations (or parts thereof) that any natural
  person, legal person (including the Pledgees itself) or other entity owes or
  at any time hereafter will owe to the Pledgor, whether or not due and payable
  and whether or not conditional, including but not limited to the Buy Back
  Receivables.

  
	
   

  	
   

  	
   

  
	
  “Secured Liabilities”

  	
   

  	
  means (i) in respect of BNS all present and future monetary payment
  obligations (vorderingen tot voldoening
  van een geldsom) (whether actual or contingent and whether owed
  jointly or severally or in any other capacity whatsoever) of the Pledgor to
  BNS under or pursuant to the Loan Agreement and (ii) in respect of BNP the
  Parallel Debt.

  
	
   

  	
   

  	
   

  
	
  “Security”

  	
   

  	
  means a mortgage, charge, pledge, lien or other security interest
  securing any obligation of any person or any other agreement or arrangement
  having a similar effect.

  
	
   

  	
   

  	
   

  
	
  “Supplemental Pledge

  Deed”

  	
   

  	
  means a deed of pledge substantially in the form set out in Schedule A
  or any other form the Pledgees may deem appropriate.

  



 


1.2                           Interpretation


 


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a.                                       Unless the context otherwise
requires or unless otherwise defined in this Deed, words and expressions
defined in the Bridge Facilities Agreement have the same meanings when used in
this Deed.


 


b.                                      Words denoting the singular include
the plural and vice versa. Words denoting one gender include the other gender.


 


c.                                       The words “include”, “included” or
“including” are used to indicate that the matters listed are not a complete
enumeration of all matters covered.


 


d.                                      No provision of this Deed is to be
interpreted adversely against a Party solely because that Party was responsible
for drafting that particular provision.


 


e.                                       English language words used in this
Deed intend to describe Netherlands legal concepts only and the consequences of
the use of those words in English law or any other foreign law are to be
disregarded.


 


f.                                         The headings in this Deed are for
construction purposes as well as for reference.


 


g.                                      References in this Deed to the
Finance Documents and the Loan Agreement will be deemed to include references
to these agreements as they may be varied, amended, modified, novated or
restated from time to time (including by way of increase of the facilities made
available under them or accession or retirement or the parties to these
agreements). Similarly, references in this Deed to Secured Liabilities will be
deemed to include any obligations which the Pledgor may have to the respective
Pledgees under or in connection with the Loan Agreement or the Finance
Documents as they may be so varied, amended, modified, novated or restated from
time to time.


 


h.                                      This Deed intends to create separate
and individual rights of pledge provided by the Pledgor as security for the
payment when due of the Secured Liabilities of the Pledgor.


 


6

















 


1.3                               Schedules


                                               Any Schedule forms an integral and
inseparable part of this Deed.


 


2.            PARALLEL DEBT


 


2.1                            The Pledgor hereby irrevocably and
unconditionally undertakes to pay to the BNP an amount equal to the aggregate
amount payable by the Pledgor in respect of its Principal Obligations as they
may exist from time to time. The payment undertaking of the Pledgor to BNP
under this Article 2 is hereinafter to be referred to as the “Parallel Debt”.


 


2.2                           The Parallel Debt of the Pledgor
will become due and payable (opeisbaar)
as and when one or more of the Principal Obligations of the Pledgor become due
and payable.


 


2.3         Each of the Parties hereby
acknowledges that:


i.                                         the Parallel Debt constitutes an
undertaking, obligation and liability of the Pledgor to BNP which is separate
and independent from, and without prejudice to, the Principal Obligations; and


ii.                                      the Parallel Debt represents BNP’s
own separate and independent claim (eigen en
zelfstandige vordering) to receive payment of the Parallel Debt from
the Pledgor it being understood, in each case, that pursuant to subsection a.
of this Article the amount which may become payable by the Pledgor as its
Parallel Debt shall never exceed the total of the amounts which are payable
under the Principal Obligations of the Pledgor.


 


2.4                         For the avoidance of doubt, the
Parties confirm that in accordance with subsections 2.1 and 2.3 of this Article
the claim of BNP against the Pledgor in respect of the Parallel Debt and the
claims of anyone or more of the Finance Parties against the Pledgor in respect
of the Principal Obligations payable by the Pledgor to such Finance Party do
not constitute common property (gemeenschap)
within the meaning of article 3:166 of the NCC and that the provisions relating
to common property shall not apply. If, however, it shall be held that such
claim of the BNP and such claims of anyone or more of the Finance Parties do
constitute common property and the provisions relating to common property do
apply, the Parties agree that the Intercreditor Deed shall constitute the
administration agreement (beheersregeling)
within the meaning of article 3:168 NCC.


 


7

















 


2.5                         To the extent BNP irrevocably (onaantastbaar) receives any amount in
payment of the Parallel Debt of the Pledgor, BNP shall distribute that amount
among the Finance Parties that are creditors of the Principal Obligations of
the Pledgor in accordance with the applicable provisions of the Intercreditor
Deed. Upon irrevocable receipt by BNP of any amount so distributed to it (a “Received Amount”), the Principal
Obligations of the Pledgor to the relevant Finance Party or Finance Parties
shall be reduced by amounts totalling an amount (a “Deductible Amount”) equal to the Received Amount in the manner
as if the Deductible Amount were received as a payment of the Principal
Obligations on the date of receipt by that Finance Party of the Received
Amount.


 


3.            CREATION AND REGISTRATION OF PLEDGE ON RECEIVABLES


 


3.1          Creation of pledge on Receivables


As security for the payment when due of its Secured
Liabilities, the Pledgor agrees to create and hereby creates, as the case may
be in advance (bij voorbaat) in
favour of the Pledgees an undisclosed right of pledge (stil pandrecht) on its Receivables and all
rights attached thereto, including dependent rights (afhankelijke rechten) and ancillary rights (nevenrechten). The Pledgees accept each of
these rights of pledge, where appropriate in advance.


 


3.2          Ranking


If the right of pledge purported to be created
pursuant to Article 3.1 cannot be first ranking as a result of Security created
prior to the date of this Deed on any of the Receivables, such right of pledge
shall nonetheless have been created pursuant to Article 3.1 with the highest
possible rank.


 


3.3          Registration of Deed


Immediately following the signing of this Deed and in
any event no later than 10 Business Days after the date of this Deed, the
Pledgor agrees to register this Deed with the relevant tax authorities in the
Netherlands and to provide a copy of the registered Deed to the Pledgees
without delay.


 


4.            COVENANT TO PLEDGE FUTURE RECEIVABLES


 


4.1          Supplemental Pledge Deed


The Pledgor undertakes to grant to the Pledgees a first-ranking


 


8

















 


undisclosed pledge on its future Receivables by executing a Supplemental
Pledge Deed (i) at least on the last Business Day of each month, (ii) on each
day upon the occurrence of a Event of Default and (iii) whenever the Pledgees,
acting reasonably, may deem appropriate. The Pledgees accept each of these
rights of pledge, where appropriate in advance. Article 4.2 applies mutatis mutandis.


 


4.2          Registration of Deed


The Pledgor shall forthwith register any Supplemental
Pledge Deed executed pursuant to this Article 4 with the relevant tax
authorities in the Netherlands and provide the Pledgees without delay with a
copy of the Supplemental Pledge Deed so registered.


 


5.            INFORMATION UNDERTAKING


 


5.1          Information


The Pledgor shall attach to this Deed a schedule
specifying its Receivables. In addition, the Pledgor shall together with each
Supplemental Pledge Deed, but in any case (i) at least on the last Business Day
of each month, (ii) on each day upon the occurrence of a Event of Default and
(iii) whenever the Pledgees may deem appropriate, provide the Pledgees with a
schedule specifying its Receivables. Such a schedule shall in each case (on its
face or in a document attached to it) specify with respect to the Pledgor:


 


a.                                       a reference to a computer-generated
spreadsheet (setting out its date, reference number and number of pages);


 


b.                                      the name and amount owed by both the
first Debtor listed on that list and the last Debtor listed on that list;


 


c.                                       the aggregate amount of all of its
Receivables; and


 


d.                                      any other information the Pledgees
may reasonably request.


 


Non compliance with this Article 5.1 will not prejudice any rights of
pledge created pursuant to this Deed and any Supplemental Pledge Deed.


 


5.2          Additional
information


At the Pledgees’ first reasonable request, the Pledgor must provide all
information, evidence (including invoices) and documents relating to its


 


9

















 


Receivables (including the information referred to in Article 5.1) which
the Pledgees may deem necessary to exercise their rights under this Deed
(including the enforcement of their rights of pledge) and the perfection or
protection of their security on the Receivables of the Pledgor. The Pledgor
will allow the Pledgees to inspect its premises and to inspect its books
relating to its Receivables during office hours.


5.3          Attachments
and Disputes of Receivables


The Pledgor agrees to notify the Pledgees without delay of any
attachment (beslag) levied on any
of its Receivables or any dispute, if the attachment or dispute would have a
material adverse effect on the right of pledge created under this Deed or the
value of any of its Receivables.


 


6.            FURTHER ASSURANCES AND NOTICE TO THIRD PARTIES


 


6.1          Further assurances


At the Pledgees’ first request, the Pledgor
agrees to execute any further encumbrances and assurances in favour of, or for
the benefit of the Pledgees, and do all acts and things as the Pledgees may
reasonably deem necessary to exercise their rights under this Deed (including
the enforcement of their right of pledge) and the perfection or protection of
their security on the Receivables of the Pledgor.


 


6.2          Notice
to third parties


The Pledgees may give notice of the right of pledge created by this Deed
to any third party seeking recourse on any of the Receivables, if that recourse
would have a material adverse effect on the right of pledge created under this
Deed or the value of any of the Receivables.


 


7.            REPRESENTATIONS AND WARRANTIES


 


The Pledgor represents and warrants to each of
the Pledgees that on the date of this Deed, with respect to the Receivables
existing on the date of this Deed, and with respect to any future Receivables
on each date such future Receivable comes into existence:


 


a.                                       it is the proprietor (rechthebbende) and has full power to
dispose (beschikkingsbevoegd) of
its Receivables;


 


b.                                      its Receivables are not subject to
any Security and no offer has been made or agreement entered into to create
Security on its Receivables and no attachment has been levied on its
Receivables


 


10

















 


except as permitted under the Bridge Facilities
Agreement; and


 


c.                                       subject to any security interest
permitted under the Bridge Facilities Agreement and subject to Article 2.3,
this Deed creates a valid first-ranking undisclosed right of pledge (stil pandrecht eerste in rang) on its
Receivables.


 


8.            GENERAL UNDERTAKINGS


 


8.1          Disposal
and negative pledge


The Pledgor shall not, without the prior
written consent of the Pledgees, except as permitted under the Bridge
Facilities Agreement:


 


a.                             sell, transfer or otherwise dispose
of any of its Receivables;


 


b.                                      create or permit to subsist any
Security on any of its Receivables;


 


c.                                       enter into compromises, settlements
and other agreements or to grant discharge in respect of any of its
Receivables; or


 


d.                                     vary the terms of or extend,
release, determine, rescind or grant time for payment in respect of any of its
Receivables if the variation, release, determination, rescission or granting of
time for payment in respect of any of its Receivables would have a material
adverse effect on the right of pledge created under this Deed.


 


9.            AUTHORITY TO COLLECT


 


9.1                              Notification to Buy
Back Agreement Debtor


As soon as commercially practicable after signing of this Deed the
Pledgor shall send by registered mail a notice substantially in the form of
Schedule C to the Buy Back Agreement Debtors and provide copies of these
notification letters to the Pledgees without delay, provided, in any individual
case, such notification would, in the reasonable opinion of Hertz International
Ltd., not materially impede or prejudice the normal operations of the Pledgor.


 


9.2          Collection
by Pledgees in respect of Buy Back Agreements


After notification of the pledge on the Buy Back Receivables to the Buy
Back Agreement Debtors the Pledgees are authorised to collect any of the


 


11

















 


Buy Back Receivables and to enter into compromises, settlements and
other agreements with any Buy Back Agreement Debtor, to grant discharge in
respect of the Buy Back Receivables and to exercise all other rights of the
Pledgor in connection with the Buy Back Receivables (including calling in (opzeggen) the Receivables). The Pledgor
waives its rights under article 3:246(4) NCC.


 


9.3          Collection
by Pledgor in respect of Buy Back Agreements


After notification of the pledge on the Buy Back Receivables to the Buy
Back Agreement Debtors the Pledgees hereby authorises the Pledgor (in advance)
to collect its Buy Back Receivables in accordance with article 3:246(4) NCC in
a bank account approved by the Pledgees. This authorisation automatically
terminates upon the occurrence of an Enforcement Event. After the occurrence of
an Enforcement Event the Pledgor can not derive any further rights from article
3:246(4) NCC. Any moneys received by the Pledgor after an authorisation in this
Article 9.2 to collect the Buy Back Receivables has terminated are received by
it on behalf of the Pledgees. The Pledgor must keep these moneys separated from
its other property and forthwith transfer them to the Pledgees, notwithstanding
any rights the Pledgees may have against any Buy Back Agreement Debtor. The
Pledgees may upon the occurrence of an Enforcement Event inform the Buy Back
Agreement Debtors of the Pledgor of the termination of the Pledgor’s
authorisation to collect the Buy Back Receivables and that further payments by
those Buy Back Agreement Debtors must be made into a bank account designated by
the Pledgees


 


9.4          Notification
of Debtors in other cases


The Pledgees may, if an Enforcement Event occurs or if the Pledgees have
reason to believe that an Enforcement Event will occur (acting reasonably),
notify, with respect to the Pledgor, the respective Debtors (other than Buy
Back Agreement Debtors) stating that the Pledgor is no longer entitled to
collect its Receivables (other than the Buy Back Receivables) and that further
payments must be made into a bank account designated by the Pledgees.


 


9.5          Collection
by Pledgor in other cases


Until the notice referred to in Article 9.4 has been given, the Pledgor
is entitled to collect its Receivables (other than the Buy Back Receivables) in
a bank account acceptable to the Pledgees.


 


12

















 


9.6          Collection
by Pledgees in other cases


After the notice referred to in Article 9.4 has been given, the Pledgees
are authorised to collect any of the Receivables (other than the Buy Back
Receivables) of the Pledgor and to enter into compromises, settlements and
other agreements with any Debtor (other than a Buy Back Agreement Debtor), to
grant discharge in respect of any of such Receivables of the Pledgor and to
exercise all other rights of the Pledgor in connection with its Receivables
(including calling in (opzeggen)
such Receivables). The Pledgor waives its rights under article 3:246(4) NCC.
Any moneys received by the Pledgor, after the notice referred to in Article 9.4
has been given with respect to the Pledgor, are received by it on behalf of the
Pledgees. The Pledgor must keep these moneys separated from its other property
and forthwith transfer them to the Pledgees, notwithstanding any rights the Pledgees
may have against any Debtor (other than a Buy Back Agreement Debtor).


 


10.          IMMEDIATE FORECLOSURE


 


a.             After
the occurrence of an Enforcement Event the Pledgees may:


 


i.                                         sell or cause the respective
Receivables to be sold in accordance with articles 3:248 NCC et seq. The Pledgor waives its rights
under Article 3:251 NCC; and


 


ii.                                      have recourse against the proceeds
of the respective Receivables collected by it in accordance with article 3:255
NCC (provided that the notice referred to in Article 9.1 has been given).


 


b.             The
Pledgees are not obliged to:


 


i.                                         first foreclose on other security
rights created under or in connection with the Bridge Facilities Agreements or
otherwise. The Pledgor waives its rights under article 3:234 NCC; or


 


ii.                                      notify the Pledgor or any other
person referred to in article 3:252 NCC of its intention to exercise, or of the
exercise of, its rights under Article 10(a). The Pledgor waives its rights
under articles 3:249 and 3:252 NCC.


 


13

















 


11.          APPLICATION OF PROCEEDS


 


The Pledgees shall apply the proceeds from the
sale or the collection of the Receivables in accordance with the provisions of
the Intercreditor Deed, subject to mandatory provisions of Netherlands law.


 


12.          CONTINUING SECURITY AND OTHER MATTERS


 


12.1        Continuing
security


This Deed extends to the ultimate balance from
time to time of any of the Secured Liabilities and is a continuing security,
notwithstanding any intermediate payment, partial settlement or other matter.


 


12.2        No
prejudice


Subject to Article 14, this Deed does not
intend to prejudice, limit or affect any right of BNP under the Bridge
Facilities Agreement or BNS under the Loan Agreement (or applicable banking
conditions) and the Bridge Facilities Agreement and Loan Agreement do not
intend to prejudice, limit or affect any right of the Pledgees under this Deed.


 


11.3        Waiver


Without prejudice to the other provisions of
this Deed, the Pledgor waives its rights under articles 3:233 and 6:139 NCC.


 


13.          CONFLICT


 


If there is a conflict between this Deed and the
Bridge Facilities Agreement then (to the extent permitted by law) the
provisions of Bridge Facilities Agreement will take priority over the
provisions of this Deed.


 


14.          TERMINATION AND RELEASE OF PLEDGE


 


14.1                       The Pledgees shall at the request
and cost of the Parent release the right of pledge constituted by this Deed if
any of the following events occur:


 


a.                                      upon (i) the Secured Liabilities being
discharged in full and none of the Secured Parties being under any further
actual or contingent obligation to make advances or provide other financial
accommodation to the Pledgor or any other person under any of the Finance
Documents, or (ii) the Pledgor ceasing to be both a


 


14

















 


Borrower and a Guarantor subject to, and in accordance
with, the Bridge Facilities Agreement.


b.                                     (i) any Permitted Disposal of any Receivable
that is subject to the right of pledge constituted by this Deed, (ii) any sale
or other disposition of any Receivable otherwise permitted by the Bridge
Facilities Agreement that is subject to the right of pledge constituted by this
Deed, (iii) any sale or other disposition of any Receivable that is subject to
the right of pledge constituted by this Deed where the Facility Agent or the
Security Agent has consented to the disposal pursuant to the Bridge Facilities
Agreement, or (iv) any sale or any other disposition of any Receivable pursuant
to a merger, consolidation, reorganisation, winding-up, securitisation, Take-Out
Financing, or sale and leaseback permitted by the Bridge Facilities Agreement
to the extent necessary to ensure such merger, consolidation, reorganisation,
winding-up, securitisation, Take-Out Financing or sale and leaseback take
place, or (v) the creation of any Encumbrance permitted by paragraph (x) of the
definition of “Permitted Encumbrances”, provided that, to the extent that the
disposal of a Receivable is a Permitted Disposal or a sale or disposition
otherwise permitted by the Bridge Facilities Agreement, the Receivable shall be
declared to be automatically released from the pledge created by this Deed with
effect from the day of such disposal and the Security Agent and the Facility
Agent shall each do all such acts which are reasonably requested by the Parent
in order to release such property.


 


14.2                       The right of
pledge on the Receivables and all the related rights thereto may be cancelled (opgezegd) in whole or in part by the
Pledgees in accordance with article 3:81 NCC.


 


15.          LIABILITY


 


None of the Pledgees not liable to the Pledgor for any
loss or damage arising from:


 


a.             any
sale or collection of Receivables (or failure to collect the Receivables) by a
Pledgee; or


 


b.             any
exercise of, or failure to exercise, its rights under this Deed,


 


15

















 


except for gross negligence or wilful misconduct (opzet of grove schuld)             of the Pledgees towards the Pledgor.


 


16.          COST AND INDEMNIFICATION


 


16.1        Costs


The Pledgor shall pay all costs, of whatever nature (including legal
fees), incurred by the Pledgees in connection with the preparation, negotiation
and signing of this Deed or otherwise in connection with this Deed, including
costs in connection with Article 5 (Further assurances and notice to third
parties) of this Deed, or the enforcement of their rights there under and/or
any amendment of, supplement to or waiver in respect thereof.


 


16.2        Indemnification


The Pledgor undertakes to indemnify each of the Pledgees in respect of
all incurred costs, losses, actions, claims, expenses, demands and liabilities
which may be incurred by such Pledgee (or by or against any person for whose
act or omission it may be answerable) at any time relating to or arising out of
this Deed or as a consequence of anything done or omitted in the exercise or
purported exercise of the powers contained in this Deed or occasioned by any
breach by the Pledgor of any of its undertakings or other obligations under
this Deed, except in the case of gross negligence or willful misconduct on the part
of such Pledgee.


 


17.          POWER OF ATTORNEY


 


17.1                       For the benefit of the Pledgees, the
Pledgor hereby authorises the Pledgees, whether or not represented by their
authorised signatories, to pledge any of the Pledgor’s Receivables to
themselves on behalf of the Pledgor at any time and from time to time and to do
everything necessary in this regard, including but not limited to registration
of this Deed and signing and/or registration of any Supplemental Pledge Deed.
The Pledgees shall be free in their choice of the method by which the pledge is
created, including but not limited to the execution of a notarial deed. This
authorisation is unconditional and irrevocable, and does not in any way limit
or qualify the enforceability of the Pledgor’s obligation to pledge its
Receivables itself.


 


17.2                       For the benefit of the Pledgees, the
Pledgor hereby irrevocably appoints


 


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the Pledgees to be its true and lawful attorney (with full power of
substitution and delegation) for and on behalf of the Pledgor to sign, execute,
seal, deliver, acknowledge, file, register and perfect any and all such
assurances, documents, instruments, agreements, certificates and consents and
to do any and all such acts and things as the Pledgor itself could do in
relation to its Receivables in relation to any matters dealt with in this Deed
and which the Pledgees may reasonably deem to be necessary in order to give
full effect to the purposes of this Deed. Upon request of the Pledgees the Pledgor
will ratify and confirm whatever the Pledgees shall do or cause to be done in
pursuance of the powers conferred to them hereunder.


 


17.3                     In connection with the power of
attorney contained in this Article, Parties agree that each of the Pledgees may
act as counter party of the Pledgor and the Pledgor waives its rights pursuant
to article 3:68 NCC (Selbsteintritt),
which waiver the Pledgees hereby accepts.


 


18.          GENERAL


 


18.1        No
Rescission


To the extent permitted by law, the Pledgor hereby
waives its rights under articles 6:265 to 6:272 NCC inclusive to rescind (ontbinden), or demand in legal proceedings
the rescission (ontbinding) of,
this Deed, which waiver the Pledgees hereby accepts.


 


18.2        Assignment


Subject to the terms of the Bridge Facilities Agreement,
each of the Pledgees may transfer
its legal relationship under this Deed (contracts­overneming)
or assign its rights under this Deed (cessie).
The Pledgor irrevocably agrees in advance to cooperate with these assignments.


 


18.3        Notice


Any notice or other communication under or in
connection with this Deed must be made in accordance with the Loan Agreement
and the Bridge Facilities Agreement.


 


18.4        Partial
Invalidity


In the event that a provision of this Deed is invalid, illegal, non
binding, or unenforceable (either in whole or in part) under the law of any
jurisdiction, the remainder of this Deed continues to be effective to the
extent that, in view of the Deed’s substance and purpose, the remainder is


 


17

















 


not inextricably related to and therefore inseverable from the invalid,
illegal, non binding or unenforceable provision. The Parties will make every
effort to reach agreement on a new clause which differs as little as possible
from the invalid, illegal, non binding or unenforceable provision, taking into
account the substance and purpose of this Deed.


 


18.5        Amendment


This Deed may only be amended by a written agreement.


 


18.6        No
Implied Waiver, no “Rechtsverwerking”


a.                                       Any waiver under this Deed must be given
by notice to that effect.


 


b.                                      Where a Party does not exercise any
right under this Deed (which includes the granting by a Party to the other
Party of an extension of time in which to perform its obligations under any of
these provisions), this is not deemed to constitute a forfeiture of that
Party’s right under this Deed (rechtsverwerking).


 


18.7        Benefit
of security


The Pledgor and each of the Pledgees explicitly agree
and declare that upon transfer, assignment or pledge of the respective Secured
Liabilities, or a part thereof, the transferee or pledgee will become entitled
to the right of pledge purported to be created hereunder, or to a corresponding
part thereof, as the case may be.


 


If and to the extent as a result of such transfer,
such assignment or a pledge the right of pledge purported to be created
hereunder will constitute common property, and an intercreditor agreement is
agreed upon in relation to such transfer, such assignment or a pledge, then the
Pledgor will be bound to the provisions of such intercreditor agreement.


 


18.8        Intercreditor
agreement


                                         As
between the Pledgees only and subject to the Intercreditor Deed BNS will not
exercise any right under this Deed unless with the written consent of BNP and
BNP shall be entitled to instruct BNS to exercise its rights hereunder and to
do all such things as BNP may deem necessary in connection with this deed.


 


For this purpose BNS hereby irrevocably appoints BNP
to be its true and lawful attorney (with full power of substitution and
delegation) for and on


 


18

















 


behalf of BNS to sign, execute, seal, deliver,
acknowledge, file, register and perfect any and all such assurances, documents,
instruments, agreements, certificates and consents and to do any and all such
acts and things in relation to any matters dealt with in this Deed and which
BNP may reasonably deem to be necessary. Upon request of BNP BNS will ratify
and confirm whatever BNP shall do or cause to be done in pursuance of the
powers conferred to it hereunder.


 


19.          GOVERNING LAW AND JURISDICTION


 


19.1        Governing
Law


This Deed is to be governed by and construed in
accordance with the laws of the Netherlands.


 


19.2        Jurisdiction


Any dispute arising out of or in connection with this
Deed is to be submitted to the exclusive jurisdiction of the competent court in
Amsterdam, the Netherlands. Nothing in this Article 19.2 limits the Pledgees’
right to submit to the jurisdiction of any other competent court.


 


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This Deed of Undisclosed
Pledge of Receivables has been signed in three counterparts, each of equal
tenor and validity, on 21 December 2005.


 


 


SIGNATURES


 


 


	
  Stuurgroep
  Holland B.V.

  
	
   

  
	
   

  
	
   /s/ Michel
  Taride

  	
   

  
	
  by: Michel
  Taride

  
	
  title: President

  
	
   

  
	
  BNS Automobile
  Funding B.V.

  
	
   

  
	
   

  
	
   /s/ Michel
  Taride

  	
   

  
	
  by: Michel Taride

  
	
  title: Authorized
  Signatory

  
	
   

  
	
  BNP Paribas
  as Security Agent

  
	
   

  
	
   

  
	
   /s/ Iyadh
  Laalai

  	
   

  
	
  by: Iyadh Laalai

  
	
  title: Senior
  Structurer

  



 


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