Exhibit 4.9.14




 





 


 


ESCROW
AGREEMENT


 


dated as of December 21,
2005


 


among


 


THE HERTZ
CORPORATION,


 


HERTZ VEHICLE
FINANCING LLC,


 


HERTZ GENERAL
INTEREST LLC,


 


HERTZ CAR
EXCHANGE INC.


 


and


 


J.P. MORGAN
CHASE BANK, N.A.


 




 





 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  
	
   

  	
   

  	
   

  
	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  Definitions

  	
  2

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
   

  	
   

  
	
  General Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  In General

  	
  3

  
	
  SECTION 2.02.

  	
  Provisions Governing the Escrow Accounts

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
   

  	
   

  
	
  Fund Transfers

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  Transfer of Collected Funds from the Exchange Accounts

  	
  4

  
	
  SECTION 3.02.

  	
  Transfer of Disbursed Funds from the Disbursement Accounts.

  	
  5

  
	
  SECTION 3.03.

  	
  Shortfalls in Funding

  	
  6

  
	
  SECTION 3.04.

  	
  Additional Subsidies

  	
  6

  
	
  SECTION 3.05.

  	
  The Escrow Accounts

  	
  6

  
	
  SECTION 3.06.

  	
  Limitation on Rights to Exchange Proceeds.

  	
  6

  
	
  SECTION 3.07.

  	
  Returns

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
   

  	
   

  
	
  Investment Of Funds

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  Investment of the Exchange Funds.

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
   

  	
   

  	
   

  
	
  Distributions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  Distribution of Escrow Funds

  	
  7

  



 


i

















 


	
  ARTICLE VI

  	
   

  
	
   

  	
   

  	
   

  
	
  Miscellaneous Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  Obligations of the Escrow Agent.

  	
  9

  
	
  SECTION 6.02.

  	
  Conflicting Instructions; Adverse Claims

  	
  11

  
	
  SECTION 6.03.

  	
  Notices

  	
  11

  
	
  SECTION 6.04.

  	
  Notice of Claims Relating to the Escrow Accounts

  	
  12

  
	
  SECTION 6.05.

  	
  Limitation of Liabilities; Indemnification

  	
  13

  
	
  SECTION 6.06.

  	
  Entire Agreement; Successors and Assigns

  	
  14

  
	
  SECTION 6.07.

  	
  Counterparts

  	
  14

  
	
  SECTION 6.08.

  	
  No Third Party Beneficiaries

  	
  15

  
	
  SECTION 6.09.

  	
  Authorization

  	
  15

  
	
  SECTION 6.10.

  	
  Termination

  	
  15

  
	
  SECTION 6.11.

  	
  No Discretion

  	
  15

  
	
  SECTION 6.12.

  	
  GOVERNING LAW AND VENUE

  	
  15

  
	
  SECTION 6.13.

  	
  JURY TRIAL WAIVER

  	
  15

  
	
  SECTION 6.14.

  	
  Certain Bankruptcy Events

  	
  16

  
	
  SECTION 6.15.

  	
  Force Majeure

  	
  16

  
	
  SECTION 6.16.

  	
  Treasury Regulations Disclosure Requirements

  	
  16

  
	
  SECTION 6.17.

  	
  Power of Attorney

  	
  16

  
	
  SECTION 6.18.

  	
  No Petitions

  	
  17

  
	
  SECTION 6.19.

  	
  Waiver of Setoff

  	
  17

  
	
  SECTION 6.20.

  	
  Electronic Documentation

  	
  17

  
	
  SECTION 6.21.

  	
  Servicer

  	
  17

  
	
  SECTION 6.22.

  	
  Amendments

  	
  17

  
	
  SECTION 6.23.

  	
  Availability of Funds for Payments

  	
  17

  
	
  SECTION 6.24.

  	
  Effective Time

  	
  18

  



 


ii

















 


This ESCROW
AGREEMENT (this “Escrow Agreement”) is entered into as of December 21,
2005, by and among, HERTZ CAR EXCHANGE INC., a Delaware corporation (the “QI”),
J.P. Morgan Chase Bank, N.A., a national banking association, as the escrow
agent (the “Escrow Agent”), THE HERTZ CORPORATION, a Delaware
corporation (“Hertz”), HERTZ VEHICLE FINANCING LLC, a Delaware limited
liability company (“HVF”) and HERTZ GENERAL INTEREST LLC, a Delaware
limited liability company (“HGI”).


 


W I T N E S S E T H:


 


WHEREAS, HVF and HGI are single member
limited liability companies, solely owned by Hertz, and therefore disregarded
entities for purposes of the Code and the Treasury Regulations;


 


WHEREAS, each action taken by a Legal Entity
in its individual capacity pursuant to this Agreement shall, for purposes of
the Code and the Treasury Regulations, have been taken by Exchangor;


 


WHEREAS, Exchangor desires to exchange
certain Vehicles that are held for productive use in its trade or business and
that constitute Relinquished Property for other vehicles to be held for
productive use in its trade or business that are like-kind to the Relinquished
Property;


 


WHEREAS, the Relinquished Property will be
sold by Exchangor to various buyers from time to time, including Manufacturers
and purchasers at auctions;


 


WHEREAS, the Replacement Property will be
purchased by Exchangor from time to time from various Manufacturers and vehicle
dealers;


 


WHEREAS, Exchangor and the QI desire and
intend that the Exchanges accomplished by Exchangor and the QI under the Master
Exchange Agreement (the “LKE Program”) satisfy the requirements of a “like
kind exchange program” pursuant to Section 3.02 of Revenue
Procedure 2003-39;


 


WHEREAS, Exchangor desires to effectuate each
Exchange in a manner that will qualify as a like-kind exchange within the
meaning of Section 1031 of the Internal Revenue Code of 1986, as amended
(the “Code”) and the treasury regulations (the “Treasury Regulations”)
promulgated thereunder (and any applicable corresponding provisions of state
tax legislation) pursuant to one or more of the “safe harbors” described in Section 1.1031(k)-1(g) of
the Treasury Regulations, and Revenue Procedure 2003-39;


 


WHEREAS, subject to the terms and provisions
of the Master Exchange Agreement dated as of the date hereof (the “Master
Exchange Agreement”), among the QI, Hertz, HVF and HGI, each Legal Entity
has engaged the QI to act as a “qualified intermediary” within the meaning of Section 1031
of the Code and Section 1.1031(k)-1(g)(4) of the Treasury Regulations
(such entity, a “Qualified Intermediary”) in order to facilitate
Exchanges of


 

















 


Relinquished Property for
Replacement Property and has directed the QI to establish, or become a joint holder
of, one or more accounts to hold proceeds from the disposition of Relinquished
Property and any Additional Subsidies and to disburse such proceeds and any
Additional Subsidies consistent with Section 1031 of the Code;


 


WHEREAS, the Escrow Agent may from time
to time hold and disburse, pursuant to the terms of this Escrow Agreement,
certain funds belonging to Exchangor that are not derived from the disposition
of Relinquished Property for purposes other than the acquisition of Replacement
Property;


 


WHEREAS, subject to the terms and provisions
of the Master Exchange Agreement, it is intended that for purposes of the
Treasury Regulations, Exchangor is not determined to be in actual or constructive
receipt of proceeds (including any earnings thereon) from the disposition of
any Relinquished Property;


 


WHEREAS, notwithstanding the immediately
foregoing paragraph, it is the intent of the parties that the funds held in the
Escrow Accounts maintained by the Escrow Agent shall not be part of the QI’s
general assets, nor subject to claims by the QI’s creditors; and


 


WHEREAS, each Legal Entity will continue to
comply with its obligations under the Related Documents to which it is a party;


 


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


 


ARTICLE I


 


Definitions


 


SECTION 1.01.
Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth in Schedule I to the Base
Indenture or in the Master Exchange Agreement. The following terms used in this
Escrow Agreement shall have the following meanings, unless otherwise expressly
provided herein:


 


“Business Day” shall mean any day
except a Saturday, Sunday or legal holiday on which the offices of the Trustee,
any Legal Entity, the QI or, with respect to any matter involving any Account,
the Escrow Agent (or any successor thereto) is not open for business.


 


“Code” shall have the meaning set
forth in the recitals hereto.


 


“Escrow Accounts” shall mean each of
the Exchange Accounts and the Disbursement Accounts, each of which the QI shall
maintain by itself or jointly in the course of administering its obligations
under the Master Exchange Agreement and this Escrow Agreement, and each of
which shall be established (if not already established) and maintained pursuant
to terms of this Escrow Agreement by the Escrow Agent.


 


2

















 


“Escrow Agent” shall mean J.P. Morgan
Chase Bank, N.A., or any successor Escrow Agent appointed pursuant to this
Escrow Agreement.


 


“Escrow Agreement” shall have the
meaning set forth in the preamble hereto.


 


“Escrow Funds” shall mean the funds in
the Escrow Accounts.


 


“Funds Transfer Protocol(s)” shall
have the meaning set forth in Section 2.01(b) hereof.


 


“Hertz” shall have the meaning set
forth in the preamble hereto.


 


“HGI” shall have the meaning set forth
in the preamble hereto.


 


“HVF” shall have the meaning set forth
in the preamble hereto.


 


“IRS” shall mean the Internal Revenue
Service.


 


“LKE Program” shall have the meaning
set forth in the recitals hereto.


 


“Master Exchange Agreement” shall have
the meaning set forth in the recitals hereto.


 


“QI” shall have the meaning set forth
in the recitals hereto.


 


“Qualified Intermediary” shall have
the meaning set forth in the recitals hereto.


 


“Termination Date” shall have the
meaning set forth in Section 6.10 hereof.


 


“Treasury Regulations” shall have the
meaning set forth in the recitals hereto.


 


ARTICLE II


 


General Provisions


 


SECTION 2.01.
In General


 


(a)  Appointment
of Escrow Agent. The Escrow Agent is hereby appointed by each of the Legal
Entities and the QI, and agrees to act, as escrow holder of the Escrow Funds
held in the Escrow Accounts pursuant to this Escrow Agreement in accordance
with the terms hereof.


 


(b)  Fund
Transfers. Provided they are consistent with this Escrow Agreement and the
limitations on each Legal Entity’s rights to receive, pledge, borrow or
otherwise obtain the benefits of any Relinquished Property Proceeds, the
particular mechanisms for accomplishing the movement of Escrow Funds described
in this Escrow Agreement may be set forth and memorialized in one or more
written “Funds Transfer Protocols” attached hereto from time to time as Exhibit A,
which shall either (1) be executed by or on behalf of both a Legal Entity
and the QI or (2) follow the protocol set forth in Section 3.01 or Section 3.02
hereof. A Funds


 


3





















 


Transfer Protocol may also
consist of a compendium of previously executed documents or charts (e.g., flow
charts, corporate resolutions and signature cards) which when taken together
obviate the need for a single written protocol.


 


(c)  Escrow
Accounts. The parties acknowledge and agree that the funds held in any of
the Escrow Accounts, or any other account or sub-account established pursuant
to the terms of this Escrow Agreement, shall only be distributed in accordance
with the terms of this Escrow Agreement, as supplemented by the Master Exchange
Agreement. The Escrow Agent shall have no equitable interest in any amounts
deposited in any of the Escrow Accounts referred to herein.


 


SECTION 2.02.
Provisions Governing the Escrow Accounts. (a)  All Escrow Funds
deposited into an Escrow Account pursuant to this Escrow Agreement shall be in
U.S. dollars and shall be delivered or disbursed either by (i) federal
funds wire transfer, (ii) Electronic Funds Transfer, or (iii) cashier’s
check, or other check, with notification in a form consistent with, or as
described in, Exhibit A hereto.


 


(b)  The
Escrow Agent shall not have any responsibility or liability for any funds
delivered pursuant to this Escrow Agreement until actually received in the
appropriate account, in accordance with the terms hereof.


 


(c)  The
Escrow Accounts shall be maintained (i) with a Qualified Institution or (ii) as
a segregated trust account with a Qualified Trust Institution. If any Escrow
Account is not maintained in accordance with the previous sentence, then the Legal
Entities shall within ten (10) Business Days of obtaining knowledge of
such fact, in conjunction with the QI, establish a new Escrow Account which
complies with such sentence and transfer into the new Escrow Account all funds
from the non-complying Escrow Account. The Escrow Accounts shall be maintained
as “securities accounts” (as defined in Section 8-501 of the New York UCC)
and the investments made with Escrow Funds shall be held in the Escrow
Accounts.


 


ARTICLE III


 


Fund Transfers


 


SECTION 3.01.
Transfer of Collected Funds from the Exchange Accounts. (a)  On any
Business Day, pursuant to standing instructions and procedures established by
each Legal Entity and the QI and in accordance with the Master Exchange
Agreement, each Legal Entity may initiate proposed Electronic Funds
Transfers that are subject to the QI’s approval and shall notify the QI of such
initiated transfers. The instructions with respect to the proposed Electronic
Funds Transfers shall set forth the amounts to be withdrawn from an Exchange
Account and transferred to another Exchange Account or a Disbursement Account
on such day, shall be substantially in the form of Exhibit A
hereto, and shall be either (1) executed by or on behalf of both the
applicable Legal Entity and the QI or (2) executed by or on behalf of the
applicable Legal Entity with the certification contained in Exhibit A
stating that such Legal Entity has provided such instruction simultaneously to
the Escrow Agent and the QI. Such instructions to the Escrow Agent shall also
include instructions regarding adjustments (e.g., calculation errors,
overpayments, etc.), if any, to amounts previously funded from such


 


4





















 


Exchange Account. If the QI does not approve any of the proposed
Electronic Funds Transfer transactions, the QI shall immediately notify the
applicable Legal Entity and the Escrow Agent, and in the case of a transfer of
funds from an HVF Exchange Account, the Trustee, via telephone or fax (any such
notice given by telephone to be confirmed in writing) of the disapproval and
the reasons for such disapproval. If the Escrow Agent receives instructions in
the form of Exhibit A (i) executed by or on behalf of
both the applicable Legal Entity and the QI or (ii) executed by or on
behalf of the applicable Legal Entity with the appropriate certification and
the QI has not disapproved of the instructions (orally or in writing) within
one hour of the Escrow Agent’s receipt of such instructions, then the Escrow
Agent shall promptly execute instructions delivered to the Escrow Agent
(subject to the last sentence of this Section 3.01(a)). The Escrow Agent
shall have no duty or obligation to verify or confirm any of the information
contained in the electronic instructions received by it pursuant to this Section 3.01(a).
Notwithstanding the foregoing, the Escrow Agent shall have no duty to transfer
or distribute any funds from an Exchange Account unless such funds have been
collected and credited to such Exchange Account.


 


(b)  After
the occurrence of a Disbursement Occurrence, each Legal Entity shall direct the
Escrow Agent to wire any funds held in its Escrow Account that are no longer
Relinquished Property Proceeds to, or as directed by, the applicable Legal
Entity; provided that in the case of HVF, such amount shall be paid to the
Collection Account.


 


SECTION 3.02.
Transfer of Disbursed Funds from the Disbursement Accounts.


 


From time to time during the term of this
Escrow Agreement, the Escrow Agent agrees that it shall receive, hold, invest
and disburse, pursuant to the terms and conditions herein set forth, the Escrow
Funds delivered into a Disbursement Account by or on behalf of HGI that are
Relinquished Property Proceeds and/or Additional Subsidies, at HGI’s
discretion, as may be needed to complete the purchase of any particular
Replacement Property and to be delivered to a Manufacturer or dealer for the
purchase of Replacement Property, or to make any Non-LKE Disbursement by or on
behalf of HGI. From time to time on any Business Day, pursuant to standing
instructions and procedures established by HGI and the QI in accordance with
the terms of the Master Exchange Agreement, HGI may initiate proposed
Electronic Funds Transfers that are subject to the QI’s approval and shall
notify the QI of such initiated transfers, in order to transfer funds from a Disbursement
Account to acquire Replacement Property, to pay expenses of the type described
in Section 1.1031(k)-1(g)(7) of the Treasury Regulations not
otherwise paid from funds deposited into the Joint Collection Account and to
make Non-LKE Disbursements. The instructions with respect to such proposed
Electronic Funds Transfers shall set forth the amounts to be withdrawn from the
applicable Disbursement Account on such day, shall be substantially in the form of
Exhibit A, and shall be either (1) executed by or on behalf of
both HGI and the QI or (2) executed by or on behalf of HGI with the
certification contained in Exhibit A stating that HGI has provided
such instruction simultaneously to the Escrow Agent and the QI. If the QI does
not approve any of the proposed Electronic Funds Transfer transactions, the QI
shall immediately notify HGI and the Escrow Agent via telephone or fax (any
such notice by telephone to be confirmed in writing) of the disapproval and the
reasons for such disapproval. If the Escrow Agent receives instructions in the form of
Exhibit A (i) executed by or on behalf of HGI and the QI or (ii) executed
by or on behalf of HGI with the appropriate certification and the QI has not
disapproved of the instructions (orally or in writing) within one


 


5

















 


hour of the Escrow Agent’s
receipt of such instructions, then the Escrow Agent shall promptly execute
instructions delivered to the Escrow Agent (subject to the last sentence of
this Section 3.02). The Escrow Agent shall have no duty or obligation to
verify or confirm any of the information contained in the electronic
instructions received by it pursuant to this Section 3.02. Notwithstanding
the foregoing, the Escrow Agent shall have no duty to transfer or distribute
any funds from a Disbursement Account unless such funds have been collected and
credited to such Disbursement Account.


 


SECTION 3.03.
Shortfalls in Funding. If, for any reason, the sum of the amounts
requested by an Legal Entity to be transferred from an Exchange Account to another
Exchange Account or a Disbursement Account in accordance with the Master
Exchange Agreement on any Business Day pursuant to Section 3.01 hereof
exceeds the total amount of collected funds in such Exchange Account with
respect to such Legal Entity, including any Qualified Earnings from the
investment of funds with respect to such Legal Entity held in the Exchange
Account pursuant to this Escrow Agreement on such day and actually credited to
the Exchange Account, the Escrow Agent shall promptly notify the applicable
Legal Entity of the amount of such shortfall, and the amounts to be transferred
to such other Exchange Account or Disbursement Account on such day shall be
reduced by the amount of such shortfall.


 


SECTION 3.04.
Additional Subsidies. In the event that the Escrow Funds with respect to
HGI are insufficient to pay the Replacement Property Acquisition Cost incurred
by HGI, HGI may transfer Additional Subsidies directly to an HGI Exchange
Account or a Disbursement Account in an amount sufficient for the QI to acquire
the applicable Replacement Property. Any Legal Entity may transfer
Additional Subsidies to one of its Exchange Accounts to fund Non-LKE
Disbursements; and HGI may transfer Additional Subsidies to any
Disbursement Account to fund Non-LKE Disbursements.


 


SECTION 3.05.
The Escrow Accounts. Transfers of funds in and out of the Exchange
Accounts and the Disbursement Accounts shall be governed by the terms of this
Escrow Agreement, as supplemented by terms of the Master Exchange Agreement.


 


SECTION 3.06.
Limitation on Rights to Exchange Proceeds.


 


(a)  All
Escrow Funds shall be held subject to the terms of this Escrow Agreement. In
particular, all Relinquished Property Proceeds, and any Qualified Earnings
thereon, shall be held subject to Sections 1.1031(k)-1(g)(4)(ii) and
1.1031(k)-l(g)(6) of the Treasury Regulations, including the restrictions
on Exchangor’s right to receive, pledge, borrow or otherwise obtain the
benefits of Relinquished Property Proceeds or the earnings thereon. Subject to
the limitation that each Legal Entity shall have no right to receive, pledge,
borrow or otherwise obtain the benefits of the Relinquished Property Proceeds
or the earnings thereon held by either the QI or the Escrow Agent, Relinquished
Property Proceeds may be withdrawn from an Exchange Account or
Disbursement Account upon a Disbursement Occurrence with respect to the related
Relinquished Property or such Relinquished Property Proceeds. This Section 3.06(a) shall
apply notwithstanding any inconsistent instruction given by any Legal Entity
and notwithstanding any decision by any Legal Entity not to pursue a deferred
exchange or to abandon the transactions contemplated by this Escrow Agreement.


 


6





















 


(b)  The
QI shall have only such interest in any of the Escrow Funds as is expressly
provided in the Master Exchange Agreement and shall have the right to use,
withdraw, transfer or otherwise act with respect to any of the Escrow Funds
only as expressly provided in, and for the purposes set forth in, this Escrow
Agreement or the Master Exchange Agreement.


 


SECTION 3.07.
Returns. If at any time, for any reason, funds transferred from an
Escrow Account are returned to such Escrow Account, such funds shall be
transferred by the Escrow Agent upon receipt by the Escrow Agent of electronic
written instructions from the applicable Legal Entity and the QI.


 


ARTICLE IV


 


Investment Of Funds


 


SECTION 4.01.
Investment of the Exchange Funds.


 


(a)  From
time to time during the term of this Escrow Agreement, the Escrow Agent shall
invest and reinvest all (or such lesser portion as may be agreed to
between the parties hereto) the funds held in (i) a HVF Exchange Account
in any Permitted Investments or (ii) any other Exchange Account as
directed by Hertz or HGI; provided, however, that in no event
shall any Legal Entity direct that any such investment, directly or indirectly,
be in any security of a Legal Entity or any of its affiliates. Interest and
other amounts, or any benefits earned in lieu of the payment of interest,
earned on the Escrow Funds shall be treated as Escrow Funds and the parties
hereto agree that absent a change in law, all information returns shall
identify the applicable Legal Entity as the recipient.


 


(b)  If
any Qualified Earnings on Relinquished Property Proceeds are held in an
Exchange Account, such Qualified Earnings shall not be disbursed during the
Exchange Period for the related Relinquished Property. Any Qualified Earnings
as to which the Exchange Period of the Relinquished Property has expired shall
thereafter be deemed Additional Subsidies.


 


ARTICLE V


 


Distributions


 


SECTION 5.01.
Distribution of Escrow Funds. The Escrow Agent shall hold the Escrow
Funds in its possession until instructed hereunder to deliver the Escrow Funds
or any specified portion thereof as follows:


 


(a)  If the Escrow Agent receives a
request pursuant to Section 3.01 or Section 3.02 hereof authorizing
release of the Escrow Funds, or a portion thereof, the Escrow Agent shall,
subject to the terms and conditions described in this Escrow Agreement,
disburse the Escrow Funds, or designated portion thereof, including any
interest or other amounts earned on the Escrow Funds, pursuant to the
instructions set forth in such request; provided, however, that
other than as set forth in Section 3.01 or Section 3.02 hereof, the
Escrow Agent shall have no duty or obligation to verify or confirm any of the
information contained in the request.


 


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(b)  If the Escrow Agent receives
written notice substantially in the form of Exhibit A hereto
authorizing termination of the escrow hereunder as related to funds that are
attributable to designated Relinquished Property and any earnings thereon for
failure to identify the Replacement Property with respect to any Relinquished
Property within the Identification Period with respect to such Relinquished Property,
signed jointly by or on behalf of authorized representatives of the QI and the
applicable Legal Entity, the Escrow Agent shall, (a) if such notice is
received by 11:00 a.m. (New York time) on a Business Day, on the Business
Day such notice is received or (b) otherwise one Business Day after
receipt of such notice, redeem or otherwise liquidate the Escrow Funds or
designated portion thereof and disburse the Escrow Funds (including any
interest or other amounts earned on the Escrow Funds), or designated portion
thereof, to, or as directed by, the applicable Legal Entity pursuant to the
instructions set forth in such notice; provided that in the case of Escrow
Funds of HVF (including any funds that are attributable to Relinquished
Property owned by HVF and any earnings thereon), such amount shall be paid to
the Collection Account.


 


(c)  If the Escrow Agent receives
written notice substantially in the form of Exhibit A hereto
authorizing termination of the escrow hereunder, as related to designated
Relinquished Property Proceeds, and any Qualified Earnings thereon, for failure
to acquire Replacement Property within the Exchange Period, signed jointly by
or on behalf of authorized representatives of the QI and the applicable Legal Entity,
such party shall, (a) if such notice is received by 11:00 a.m. (New
York time) on a Business Day, on the Business Day such notice is received or (b) otherwise
one Business Day after receipt of such notice, redeem or otherwise liquidate
the Escrow Funds or designated portion thereof and disburse the Escrow Funds
(including any interest or other amounts earned on the Escrow Funds), or
designated portion thereof, to, or as directed by, the applicable Legal Entity
pursuant to the instructions set forth in such notice; provided that in the
case of Escrow funds of HVF, such amount shall be paid to the Collection
Account.


 


(d)  If the Escrow Agent receives a
written release notice substantially in the form of Exhibit C
hereto stating that a new escrow holder has been appointed pursuant to a new
escrow agreement and authorizing termination of the escrow hereunder, signed
jointly by or on behalf of authorized representatives of the QI and all Legal
Entities and consented to by the Trustee, such party shall release the Escrow
Funds (or any portion thereof), in the amounts and to the parties referenced in
such notice, and any documentation related to the tax deferred exchange that it
may hold.


 


(e)  If the Legal Entities terminate
this Escrow Agreement pursuant to Section 6.14 hereof, and thereafter the
Escrow Agent receives written notice substantially in the form of Exhibit C-1
hereto stating that a new escrow holder has been appointed pursuant to a new
escrow agreement following the termination of this Escrow Agreement, the Escrow
Agent shall, on the date set forth in such notice, which in no event shall be
less than two (2) Business Days following such party’s receipt of such
notice, redeem or otherwise liquidate the Escrow Funds and disburse the Escrow
Funds (including any income, interest, or other amounts earned on the Escrow
Funds) to such new escrow holder, pursuant to the instructions set forth in
such notice. If (i) the Legal Entities


 


8





















 


terminate this Escrow Agreement pursuant to Section 6.14 hereof or
(ii) the Escrow Agent terminates this Escrow Agreement pursuant to Section 6.10
hereof, and thereafter the Escrow Agent receives written notice substantially
in the form of Exhibit C-2 hereto stating that a new escrow
holder has not been appointed prior to the termination of this Escrow
Agreement, the Escrow Agent shall, on the date set forth in such notice, which
in no event shall be less than two (2) Business Days following such party’s
receipt of such notice, redeem or otherwise liquidate the Escrow Funds and
disburse the Escrow Funds (including any income, interest, or other amounts
earned on the Escrow Funds), pursuant to the instructions set forth in such
notice.


 


(f)  The Escrow Agent will only accept
instructions that have been signed by those persons authorized to do so per an
authorization in the form of Exhibit B (as such exhibit may be
amended and supplemented from time to time). The signatures contained in an
authorization in the form of Exhibit B hereto will be
considered good and valid for all purposes of this Escrow Agreement until
rescinded or modified in writing via a new authorization in the form of Exhibit B
delivered to the Escrow Agent.


 


(g)  Except as otherwise provided
pursuant to Section 3.01, Section 3.02 and Section 3.06(a) hereof
and this Section 5.01, the Escrow Funds may not be disbursed under any
conditions except those set forth above in this Section 5.01, and the
parties agree that neither the QI nor any Legal Entity shall have the authority
to direct (and no such direction shall be effective against) the Escrow Agent
to disburse Escrow Funds. All disbursements made pursuant to this Escrow
Agreement by the Escrow Agent shall be made by wire or other Electronic Funds Transfer
unless such party, in its sole discretion, agrees to another method of
disbursement.


 


ARTICLE VI


 


Miscellaneous Provisions


 


SECTION 6.01.
Obligations of the Escrow Agent.


 


(a)  The Escrow
Agent shall invoice each Legal Entity quarterly for authorized fees and
expenses payable by such Legal Entity. Payments of reasonable fees and expenses
pursuant to an invoice shall be due thirty (30) days from the date of each
Legal Entity’s receipt of such invoice plus any required supporting
documentation.


 


(b)  The
Escrow Agent shall not have any obligation to, nor shall it incur any liability
for failing to, advance, use or risk, in any manner or for any purpose, its own
funds or otherwise incur financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers hereunder. The
provisions of this Section 6.01(b) shall survive the termination of
this Escrow Agreement.


 


(c)  Except
as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell,
transfer or otherwise dispose of in any manner all or any portion of the Escrow
Funds, except pursuant to an order of a court of competent jurisdiction.


 


9





















 


(d)  The
duties, responsibilities and obligations of the Escrow Agent under this Escrow
Agreement shall be limited to those expressly set forth herein, and no duties,
responsibilities or obligations shall be inferred or implied. Other than as
contemplated herein, the Escrow Agent shall not be subject to, or required to
comply with, any other agreement between the Legal Entities and the QI or to
which a Legal Entity or the QI is a party, or to comply with any direction or
instruction (other than those contained herein or delivered in accordance with
this Escrow Agreement) from a Legal Entity or the QI or an entity or entities
acting on their behalf.


 


(e)  If
at any time the Escrow Agent is served with any judicial or administrative
order, judgment, decree, writ or other form of judicial or administrative
process that in any way affects the Escrow Funds, the Escrow Agent shall, in
the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence,
and, in any case, be authorized to comply therewith in any manner that it or
legal counsel of its own choosing reasonably deems appropriate; and if the
Escrow Agent complies with any such judicial or administrative order, judgment,
decree, writ or other form of judicial or administrative process, it shall
not be liable to any of the parties hereto or to any other person or entity
even though such order, judgment, decree, writ or process may be
subsequently modified or vacated or otherwise determined to have been without
legal force or effect.


 


(f)  The
Escrow Agent shall not be under any duty to give the Escrow Funds held by it
hereunder any greater degree of care than it gives its own similar property and
shall not be required to invest any Escrow Funds held hereunder except as
provided for in this Escrow Agreement. Uninvested funds held hereunder shall
not earn or accrue interest.


 


(g)  At
any time the Escrow Agent may request an instruction in writing from any
of the Legal Entities and the QI and may, at its own option, include in such
request the course of action it proposes to take and the date on which it
proposes to act, regarding any matter arising in connection with its duties and
obligations hereunder. The Escrow Agent shall not be liable for acting in
accordance with such a proposal on or after the date specified therein, provided
that the specified date shall be at least three (3) Business Days after
the applicable Legal Entity, the Trustee and the QI receive such party’s
request for instructions and its proposed course of action, and provided
further that, prior to so acting, the Escrow Agent has not received the
written instructions requested, including a refusal to the proposed course of
action.


 


(h)  In
the event of any ambiguity or uncertainty hereunder or in any notice, instruction
or other communication received hereunder by the Escrow Agent, the Escrow Agent
may, in its sole discretion, only after notifying the applicable Legal Entity,
the Trustee and the QI in writing, refrain from taking any action other than
retaining possession of the Escrow Funds unless the Escrow Agent receives
written instructions, signed by such Legal Entity and the QI, which eliminates
such ambiguity or uncertainty.


 


(i)  Each
Legal Entity shall pay or reimburse the Escrow Agent upon request, for any
taxes relating to the Escrow Funds with respect to such Legal Entity incurred
in connection herewith and shall indemnify and hold the Escrow Agent harmless
from any amounts it is obligated to pay in the way of such taxes. In addition,
all interest or other income earned under this Escrow Agreement shall be
allocated to Exchangor for federal income tax purposes, and


 


10





















 


paid only as directed by the
applicable Legal Entity and the QI pursuant to the terms and conditions of this
Escrow Agreement, as supplemented by the terms of the Master Exchange
Agreement, and reported by Exchangor to the IRS or any other taxing authority. Notwithstanding
any written directions, the Escrow Agent shall report, and as required
withhold, any taxes it determines may be required by any law or regulation
in effect at the time of distribution. If any earnings remain undistributed at
the end of any calendar year, the Escrow Agent shall report to the IRS or such
other authority such earnings as it deems appropriate or as required by any
applicable law or regulation. This Section 6.01(i) shall survive the
termination of this Escrow Agreement or the resignation or removal of the
Escrow Agent.


 


(j)  The Escrow Agent shall be entitled to rely
upon any order, judgment, certification, demand, notice, instrument or other
writing delivered to it by a Legal Entity or otherwise hereunder without being
required to determine the authenticity or the correctness of any fact stated
therein or the propriety or validity or the service thereof. Subject to Section 5.01(f) hereto,
the Escrow Agent may act in reliance upon, and shall be fully protected in
relying upon, any instrument or signature reasonably believed by it to be
genuine and may assume that any person purporting to give receipt or
advice to make any statement or execute any document in connection with the
provisions hereof has been duly authorized to do so. All written notices when
received as provided pursuant to Section 6.03 hereof shall be valid and
accepted whether signed in counterparts or one document.


 


SECTION 6.02.
Conflicting Instructions; Adverse Claims. In the event of any
disagreement between any Legal Entity and the QI resulting in conflicting
instructions to (including the disapproval by the QI of a proposed Electronic
Funds Transfer pursuant to Section 3.01 or Section 3.02 hereof), or
adverse claims or demands by any Legal Entity and the QI upon, the Escrow Agent
with respect to the release of the Escrow Funds or any part thereof, then
the Escrow Agent shall immediately deliver a true copy thereof to the
applicable Legal Entity, the QI and, in the case of a disagreement involving
HVF, the Trustee, along with such party’s written notice in refusing to comply
with the adverse claims or demands referred to above, or as an alternative,
wait for clarification from both such Legal Entity and the QI before complying.
If the Escrow Agent gives written notice to the applicable Legal Entity, the QI
and, if required, the Trustee as referred to above, then the Escrow Agent shall
be entitled to and be fully protected in refusing to comply with any claims or
demands on it and shall continue to hold the Escrow Funds until it receives
either (i) a written notice signed by both the QI and the applicable Legal
Entity directing the delivery of the Escrow Funds or (ii) a final order of
a court of competent jurisdiction, entered in a proceeding in which the QI and
the applicable Legal Entity are named as parties, directing the delivery of the
Escrow Funds in accordance with the terms of this Escrow Agreement, in either of
which events the Escrow Agent shall then deliver the Escrow Funds in accordance
with said direction. The Escrow Agent shall not be or become liable in any way
or to any person for its refusal to comply with any such claims or demands
until and unless it has received a direction of the nature described in clause (i) or
(ii) above. Upon the taking by the Escrow Agent of any action in accordance
with clause (i) or (ii) above the Escrow Agent
shall be released of and from all liability hereunder with respect to the
Escrow Funds.


 


SECTION 6.03.
Notices. All notices, requests, demands, waivers, consents, approvals or
other communications required or permitted hereunder will be in writing, will
be deemed given when actually received and will be given by personal delivery,
by facsimile


 


11





















 


transmission with receipt
acknowledged, by means of electronic mail, by same day or overnight courier
services or by registered or certified mail, postage prepaid, return receipt
requested, to the following addresses:


 


The Escrow Agent at:


 


 


 


 


Fax:                   


 


The QI at:


 


J.P. Morgan Property Exchange Inc.

1001 Hingham Street, Suite 300

Rockland, MA 02370

Attention:  William P. Lopriore, Jr.

Fax:  (781) 982-9558


 


Hertz, HVF or HGI, as applicable, at:


 


c/o The Hertz Corporation

225 Brae Boulevard

Park Ridge, NJ 07656

Attention:  Treasurer

Fax:  (201) 307-2746


 


with a copy to the Administrator at:


 


The Hertz Corporation

225 Brae Boulevard

Park Ridge, NJ 07656

Attention:  Treasurer

Fax:  (201) 307-2746


 


OR


 


The Trustee:


 


BNY Midwest Trust Company

2 North LaSalle

Chicago, IL 60602

Attn:  Corporate Trust
Administrator-Structured Finance

Phone:  (312) 827-8569

Fax:  (312) 827-8562


 


SECTION 6.04.
Notice of Claims Relating to the Escrow Accounts. If the Escrow Agent
receives a written notice signed by or on behalf of either the QI or a Legal
Entity


 


12





















 


advising the Escrow Agent that
there is a pending litigation between the QI and such Legal Entity or any other
entity claiming entitlement to the Escrow Funds, (i) the Escrow Agent may,
on notice to the QI, such Legal Entity, and in the case of litigation involving
HVF, the Trustee, deposit the Escrow Funds with the clerk of the court in which
said litigation is pending; or (ii) take such affirmative steps as it
elects in order to terminate its duties as escrow holder hereunder, including,
without limitation, the deposit of the Escrow Funds with a court of competent
jurisdiction and, if no action to which the QI and such Legal Entity are
parties is then pending with respect to the Escrow Funds, the commencement of
an action for interpleader, the costs thereof to be borne jointly and severally
by the QI and the applicable Legal Entity.


 


SECTION 6.05.
Limitation of Liabilities; Indemnification. (a)  The parties hereto
hereby acknowledge and agree that the duties of the Escrow Agent hereunder are
purely ministerial, at the request of the QI and each Legal Entity and for
their convenience. The Escrow Agent shall not be or be deemed to be the agent
or trustee for the QI or any Legal Entity, and neither the QI nor any Legal
Entity shall be or be deemed to be the agent or trustee of the Escrow Agent. The
QI and each Legal Entity agree that, notwithstanding any provision hereof to
the contrary, the Escrow Agent shall not incur any liability whatsoever for any
action taken, suffered or omitted or for any loss or injury resulting from its
actions or the performance or lack of performance of its duties hereunder in
the absence of gross negligence or willful misconduct on its part, and do
hereby release and waive any claim they may have against the Escrow Agent,
which may result from its performance of its obligations under this Escrow
Agreement other than as a result of gross negligence or willful misconduct. Subject
to the foregoing, the Escrow Agent shall not be responsible or liable in any
manner whatsoever for (a) acting in accordance with or relying upon any
instruction, notice, demand, certificate or document from any Legal Entity or
the QI or any entity acting on behalf of any Legal Entity or the QI provided
for herein, (b) the acts or omissions in compliance and accordance with
this Escrow Agreement of its nominees, correspondents, designees, agents,
subagents or subcustodians, so long as such nominees, correspondents,
designees, agents, subagents or subcustodians are selected with due care, (c) the
investment or reinvestment of any Escrow Funds held by it hereunder in good
faith in accordance with the terms hereof, (d) the sufficiency,
correctness, genuineness, validity or enforceability of any document or
instrument delivered to it, (e) the form of execution of any such
document or instrument, (f) the apparent identity, authority, or rights of
any person executing or delivering any such document or instrument, (g) the
terms and conditions of any document or instrument pursuant to which the
parties may act, (h) the validity or effectiveness of any of the
transactions, or the treatment for tax purposes of any of the transactions
contemplated herein, (i) the sale of the Relinquished Property or the
selection or terms of acquisition of any Replacement Property or other
property, or the state of title, condition, quality or value of any
Relinquished Property, Replacement Property or other property, (j) compliance
with or monitoring the requirements of Section 1031 of the Code and/or
Revenue Procedure 2003-39, or (k) the treatment for tax purposes of
any Escrow Funds delivered or held hereunder or the income, interest or other
amounts which may be earned or accrue relative to the Escrow Funds. Subject
to Section 5.01(f), the Escrow Agent shall be entitled to rely upon the
authenticity of any signature purporting to be by the QI or any Legal Entity
received by it relating to this Escrow Agreement.


 


(b)  Hertz
shall, and hereby does, indemnify, protect, save, defend and hold harmless the
Escrow Agent and its respective officers, directors, employees, agents and attorneys


 


13





















 


from and against all claims, loss,
damage and costs, including reasonable attorney’s fees, incurred in connection
with the performance of the Escrow Agent’s duties hereunder, except with
respect to acts involving gross negligence or willful misconduct on the part of
the Escrow Agent. The provisions of this Section 6.05(b) shall
survive the termination of this Escrow Agreement.


 


(c)  The
Escrow Agent shall not be required to give any bond or other security hereunder.
The QI and each Legal Entity hereby acknowledge that the Escrow Agent shall not
have any liability for any loss, cost or damage that the QI or any Legal Entity
or any other person or entity may sustain by reason of the failure to pay,
default, insolvency or bankruptcy of any entity or investment in which the
Escrow Funds may have been invested or deposited which prevents or delays
payment of the Escrow Funds or any interest, income or other amount earned or
accrued thereon as herein provided.


 


SECTION 6.06.
Entire Agreement; Successors and Assigns. This Escrow Agreement, the Master
Exchange Agreement and the other agreements referenced herein contain the
entire agreement between the parties relative to the subject matter hereof and
there are no verbal or collateral understandings, agreements, representations
or warranties not expressly set forth herein. Except as expressly otherwise
allowed herein, no party may assign or otherwise transfer any of its
rights or delegate any of its duties or obligations under this Escrow Agreement
without the prior written consent of each other party, which consent shall not
be unreasonably withheld; provided, however, that no assignment
shall be effective without satisfaction of the Rating Agency Condition; provided
further, however, that (1) each Legal Entity may pledge
all of its right, title and interest in this Agreement to the extent not
otherwise prohibited by the Related Documents or by Treasury Regulation Section 1.1031(k)-1(g)(6) and
(2) any party hereto may assign (subject to the Rating Agency
Condition) this Agreement, without such written consent, other than the written
consent of HVF in the case of an assignment by the Escrow Agent, to a successor
or surviving entity resulting from a merger or acquisition involving
substantially all of a party’s stock or assets. To secure the payment of the
Note Obligations from time to time owing by HVF under the Indenture, HVF has
pledged and assigned to the Collateral Agent for the benefit of the HVF Secured
Parties a security interest in all of its right, title and interest in, to and
under this Escrow Agreement (but not the Escrow Accounts), and the Escrow Agent,
Hertz and HGI hereby consent to such assignment. To secure HGI’s obligations
under the HGI Credit Facility and all other liabilities of HGI from time to
time owing by HGI to Hertz thereunder, HGI has pledged and assigned, to the
Collateral Agent, for the benefit of the HGI Secured Parties, a security
interest in all right, title and interest in, to and under this Escrow
Agreement (but not the Escrow Accounts) and the Escrow Agent, Hertz and HVF
hereby consent to such assignment.


 


SECTION 6.07.
Counterparts. This Escrow Agreement may be executed in any number
of counterparts and any party hereto may execute any such counterpart,
each of which when executed and delivered will be deemed to be an original and
all of which counterparts when taken together will constitute but one and the
same instrument. The execution of this Agreement by any party hereto will not
become effective until counterparts hereof have been executed and delivered by
each other party hereto. It will not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any other
counterparts.


 


14





















 


SECTION 6.08.
No Third Party Beneficiaries. Nothing contained in this Escrow Agreement
is intended, or will be construed, to confer upon or give to any Person, other
than the parties hereto and their respective successors and permitted assigns,
any rights or remedies under or by reason of this Escrow Agreement.


 


SECTION 6.09.
Authorization. Each Person signing this Escrow Agreement and any
accompanying exhibits each represent and warrant that such Person has all necessary
power and authority to execute and deliver this Escrow Agreement and any
accompanying exhibits on behalf of the party for whom they are so executing and
delivering the same.


 


SECTION 6.10.
Termination. (a)  Upon delivery of all of the Escrow Funds and all
interest earned thereon as required or permitted hereunder and following
written notice to each of the Escrow Agent and the Trustee of termination of
this Escrow Agreement, the Escrow Agent shall be relieved and discharged from
all obligations and liabilities hereunder with respect thereto and this Escrow
Agreement shall thereupon be deemed terminated.


 


Notwithstanding any provision herein to the
contrary, the Escrow Agent shall have the right to terminate this Escrow
Agreement, as it relates to such party, at any time (the “Termination Date”)
prior to complete disbursement of all of the Escrow Funds upon not less than
ninety (90) Business Days’ notice to the QI, each Legal Entity and the
Trustee, provided, however, that if a notice to disburse the Escrow
Funds pursuant to Section 5.01 hereof is received by the Escrow Agent and
such disbursement is to occur prior to the Termination Date, then the Escrow
Agent will comply with the terms of this Escrow Agreement and make such
disbursement pursuant hereto. If the Escrow Agent gives notice setting a
Termination Date, the Legal Entities and the QI may, at their option and
provided that the Rating Agency Condition with respect to each Series of Notes
Outstanding is satisfied with respect thereto, appoint one or more new escrow
agents pursuant to an escrow agreement substantially in the form of this
Escrow Agreement and, provided, the Escrow Agent shall receive an instruction
substantially in the form of Exhibit C-1 hereto not less than
two (2) Business Days prior to the Termination Date, the Escrow Agent shall
deliver the Escrow Funds in accordance with such instruction.


 


SECTION 6.11.
No Discretion. The Escrow Agent may act through agents or attorneys-in-fact,
by and under a power of attorney duly executed by the Escrow Agent in carrying
out any of the powers and duties pursuant to this Escrow Agreement, subject to clause (b) of
Section 6.05(a) hereof. The Escrow Agent shall not be required to
exercise any discretion hereunder.


 


SECTION 6.12.
GOVERNING LAW AND VENUE. THIS
ESCROW AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. VENUE SHALL
BE IN ANY STATE OR FEDERAL COURT WITHIN THE STATE OF NEW YORK.


 


SECTION 6.13.
JURY TRIAL WAIVER. EACH LEGAL
ENTITY, THE QI AND THE ESCROW AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY LEGAL


 


15





















 


ACTION
OR PROCEEDING ARISING FROM THE SUBJECT MATTER OF THIS ESCROW AGREEMENT,
INCLUDING ANY COUNTERCLAIM THERETO.


 


SECTION 6.14.
Certain Bankruptcy Events. If the Escrow Agent:


 


(a)  suffers the entry against it of a
judgment, decree or order for relief by a court of competent jurisdiction or
any regulatory agency in an involuntary proceeding commenced under any
applicable insolvency, receivership or other similar law of any jurisdiction
now or hereafter in effect, or has any such proceeding commenced against it
which remains undismissed for a period of thirty (30) days, or


 


(b)  commences a voluntary case under
any applicable bankruptcy, insolvency, receivership or similar law now or
hereafter in effect; or applies for or consents to the entry of an order for
relief in an involuntary case under any such law; or makes a general assignment
for the benefit of creditors; or fails generally to pay (or admits in writing
its inability to pay) its debts as such debts become due; or takes corporate or
other action to authorize any of the foregoing,


 


(c)  then the Legal Entities may,
immediately upon notice to the QI, the Trustee and the Escrow Agent (together
with a copy of the replacement escrow agreement referred to below), and subject
to satisfication of the Rating Agency Condition with respect to each
Outstanding Series of Notes, terminate this Escrow Agreement, appoint, or
cause the QI to appoint, a successor escrow agent and enter into a replacement escrow
agreement with such successor.


 


SECTION 6.15.
Force Majeure. No party to this Escrow Agreement is liable to any other
party for losses due to, or if it is unable to perform its obligations
under the terms of this Escrow Agreement if such inability to perform is
caused by, circumstances reasonably beyond a party’s control, such as natural
disasters, fire, floods, third party strikes, failure of public utilities or
telecommunications infrastructure or any other causes reasonably beyond its
control.


 


SECTION 6.16.
Treasury Regulations Disclosure Requirements. Each Legal Entity represents
that it does not intend to treat any transaction contemplated by this Escrow
Agreement as a reportable transaction within the meaning of Section 1.6011-4
of the Treasury Regulations, and without limiting the foregoing, will fully
comply with the filing and reporting requirements applicable to like-kind
exchanges, including any requirement in applicable regulations and forms. In
the event that any Legal Entity determines to take any action inconsistent with
such intention, such Legal Entity will promptly notify the QI, and each Legal
Entity acknowledges that in this event, any other party to this Escrow
Agreement may treat the transaction as subject to Section 301.6112-1
of the Treasury Regulations, and maintain the investor list and other records
required by such Treasury Regulation.


 


SECTION 6.17.
Power of Attorney. Each of HVF and HGI shall execute on the date hereof
a power of attorney substantially in the form of Exhibit D
hereto, pursuant to which Hertz may exercise any of HVF’s or HGI’s rights
under this Escrow Agreement, including the


 


16





















 


right to execute any and all
documents pertaining to the transfer or release of Escrow Funds and to
terminate the Escrow Agreement.


 


SECTION 6.18.
No Petitions. The Escrow Agent 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 HVF or the QI, 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
Escrow Agent takes action in violation of this Section 6.18, each of the
QI and HVF agrees, for the benefit of the HVF Secured Parties, that it shall
file an answer with the bankruptcy court or otherwise properly contest the
filing of such a petition by the Escrow Agent against the QI or HVF or the
commencement of such action and raise the defense that the Escrow Agent 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 6.18 shall survive the termination of this Agreement.


 


SECTION 6.19.
Waiver of Setoff. The Escrow Agent agrees that all monies, checks,
instruments and other items of payment deposited into the Escrow Accounts shall
not be subject to deduction, setoff, banker’s lien, or any other right in favor
of any Person, except that such party may setoff (i) any checks
credited to the Escrow Accounts and thereafter returned unpaid because of
uncollected or insufficient funds and (ii) items, including, without
limitation any Automated Clearing House transactions, which are returned for
any reason or any adjustments.


 


SECTION 6.20.
Electronic Documentation. Each of the parties hereto agrees that any
instruction required to be delivered in the form of Exhibit A may be
provided in an electronic form so long as the form of electronic
documentation used is sufficient to constitute a legal and binding instruction.


 


SECTION 6.21.
Servicer. The parties to this Escrow Agreement acknowledge and agree that
Hertz acts as Servicer of HVF and HGI pursuant to this Escrow Agreement, and,
in such capacity, as the agent of HVF and HGI, for purposes of performing
certain duties of HVF and HGI under this Escrow Agreement. The parties to this
Escrow Agreement acknowledge and agree that Hertz, as Servicer, may take
any action to be taken by HVF or HGI under this Escrow Agreement.


 


SECTION 6.22.
Amendments. This Escrow Agreement may be amended and supplemented
only by a written instrument duly executed by all the parties hereto upon satisfaction
of the Rating Agency Condition with respect to each Series of Notes
Outstanding.


 


SECTION 6.23.
Availability of Funds for Payments. Notwithstanding any provisions
contained in this Escrow Agreement to the contrary, HVF shall not, and shall
not be obligated to, pay any amount pursuant to this Escrow Agreement unless
HVF has funds which are not required to repay any Notes Outstanding when due. Prior
to the commencement of an insolvency proceeding by or against HVF, any amount
which HVF does not pay pursuant to the


 


17





















 


operation of the preceding
sentence shall not constitute a claim (as defined in § 101 of the
Bankruptcy Code) against or obligation of HVF for any such insufficiency unless
and until HVF satisfies the provisions of such preceding sentence.


 


SECTION 6.24.
Effective Time. Notwithstanding anything to the contrary in this
Agreement, all the provisions of this Agreement (other than Sections 6.07,
6.09, 6.12, 6.13, 6.22 and this Section 6.24) shall not become effective
until January 6, 2006. Upon such date, the provisions of this Agreement
shall be in full force and effect and shall be binding upon all parties hereto.


 


(signature page follows)


 


18

















 


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


 


	
   

  	
  THE HERTZ CORPORATION,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
      by

  
	
   

  	
   

  	
  /s/ Robert H. Rillings

  
	
   

  	
   

  	
  Name:

  	
  Robert H. Rillings

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HERTZ VEHICLE FINANCING LLC,

  
	
   

  	
   

  
	
   

  	
      by

  
	
   

  	
   

  	
  /s/ Robert H. Rillings

  
	
   

  	
   

  	
  Name:

  	
  Robert H. Rillings

  
	
   

  	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HERTZ GENERAL INTEREST LLC,

  
	
   

  	
   

  
	
   

  	
      by

  
	
   

  	
   

  	
  /s/ Robert H. Rillings

  
	
   

  	
   

  	
  Name:

  	
  Robert H. Rillings

  
	
   

  	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HERTZ CAR EXCHANGE INC.,

  
	
   

  	
   

  
	
   

  	
      by

  
	
   

  	
   

  	
  /s/ William P. Lopriore

  
	
   

  	
   

  	
  Name:

  	
  William P. Lopriore

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  J.P. MORGAN CHASE BANK, N.A.,

  
	
   

  	
   

  
	
   

  	
      by

  
	
   

  	
   

  	
  /s/ William P. Lopriore

  
	
   

  	
   

  	
  Name:

  	
  William P. Lopriore

  
	
   

  	
   

  	
  Title:

  	
  Vice President