Exhibit 4.5.35


 




 





 


SECURITY AGENT PLEDGE OVER
THE BALANCE


 


OF BANK ACCOUNT




 





 


 


21 December 2005


 


 


BETWEEN


 


 


HERTZ ITALIANA S.P.A.


as the Company


 


 


And


 


 


BNP PARIBAS S.A.


as Pledgee and Security Agent


 


 






 


UGHI E
NUNZIANTE


VIA XX
SETTEMBRE 1


00187 ROMA


 






 

















 


EXECUTION COPY


 


CONTENTS


 


	
  1.

  	
  DEFINITIONS

  	
  pag. 4

  
	
   

  	
   

  	
   

  
	
  2.

  	
  INTERPRETATION

  	
  pag. 6

  
	
   

  	
   

  	
   

  
	
  3.

  	
  SECURITY INTEREST

  	
  pag. 6

  
	
   

  	
   

  	
   

  
	
  4.

  	
  USE OF THE BANK ACCOUNT BY THE COMPANY

  	
  pag. 7

  
	
   

  	
   

  	
   

  
	
  5.

  	
  ENFORCEMENT OF THE PLEDGE

  	
  pag. 7

  
	
   

  	
   

  	
   

  
	
  6.

  	
  REPRESENTATIONS AND WARRANTIES

  	
  pag. 7

  
	
   

  	
   

  	
   

  
	
  7.

  	
  UNDERTAKINGS OF THE COMPANY

  	
  pag. 8

  
	
   

  	
   

  	
   

  
	
  8.

  	
  TERMINATION AND RELEASE

  	
  pag. 9

  
	
   

  	
   

  	
   

  
	
  9.

  	
  NOTICES

  	
  pag. 10

  
	
   

  	
   

  	
   

  
	
  10.

  	
  CONTINUATION OF THE PLEDGE

  	
  pag. 11

  
	
   

  	
   

  	
   

  
	
  11.

  	
  MISCELLANEOUS PROVISIONS

  	
  pag. 12

  
	
   

  	
   

  	
   

  
	
  12.

  	
  GOVERNING LAW AND JURISDICTION

  	
  pag. 13

  



 


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THIS PLEDGE
AGREEMENT OVER THE BALANCE OF BANK ACCOUNT (the “Agreement”)  is made in
London on this 21 December, 2005


 


BETWEEN:


 


(1)           HERTZ ITALIANA S.p.A, a company incorporated
under Italian law, with its registered office in Rome, Viale Leonardo da Vinci
n. 421, having a corporate capital of € 1.635.000 enrolled in the Register of
Commerce and Companies of Rome under number 00433120581, REA 225428 represented by Mr.                                                                                    ,
duly empowered to execute the present agreement by virtue of special power of
attorney issued on 19 December 2005 (hereinafter, the “Company” or the “Pledgor”);


 


AND


 


(2) BNP PARIBAS S.A., a bank incorporated under
French law, with its registered office in 16, boulevard des Italiens, 75009
Paris, having a corporate capital of € 1 757 231 208, enrolled in the Register
of Commerce and Companies of Paris, under SIREN number 662 042 449, acting as Facility Agent and
as Security Agent in the name and on behalf of the Banks, as defined below,
pursuant to the Intercreditor Deed represented by                                                                                     ,
duly empowered as attorney to execute the present agreement; (hereinafter, the “Security Agent” or the “Pledgee”)


 


The Pledgor
and the Pledgee are hereinafter each referred to as a “Party” and collectively referred to as the “Parties”.


 


WHEREAS


 


(A)          Pursuant to a senior bridge facilities agreement dated
21 December 2005made, inter alia,
among Hertz International Ltd, the Original Borrowers (as defined in the
Facility Agreement), BNP Paribas, The Royal Bank of Scotland plc and Calyon
(the “Facility Agreement”), the
Banks will make available the facilities to the Assignor (each a “Facility”);


 


(B)           The Company has opened the bank account No. [Account Number] with BNP Paribas, Milan branch (the Bank Account); and


 


(C)           As a condition precedent to the availability of the
Facility, the Company has, inter alia,
agreed to pledge in favour of the Pledgee the Balance, securing its own
obligations under the Facility Agreement.


 


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IN LIGHT OF THE FOREGOING
THE PARTIES AGREE AS FOLLOWS:


 


1.             DEFINITIONS


 


For the purposes of this Agreement and without prejudice to cases where
the context allows for a different interpretation, the terms and expressions
hereinafter shall be interpreted as follows:


 


Account
Bank means
BNP Paribas, Milan branch, as defined in Recital B.


 


Balance means the cash corresponding to the
balance of the Bank Account available at any time.


 


Bank
Account
has the meaning given to it in Recital B.


 


Bank has the meaning given to that term in the
Facility Agreement.


 


Borrower has the meaning given to that term in the
Facility Agreement.


 


Business
Day means
a day (other than a Saturday or a Sunday) on which banks are open for general
business in Paris, Rome, London and Milan which is also a TARGET Day.


 


Civil
Code
means the Italian civil code approved by the Italian Royal Decree No. 262
of 16th March, 1942, as from time to time amended and supplemented.


 


Encumbrance has the meaning given to that term in the
Facility Agreement.


 


Enforcement
Event
means the occurrence of an Event of Default which is continuing and has not
been waived under the Facility Agreement and which has resulted in the Security
Agent serving notice under clause 23.17(a) (Acceleration and Cancellation)
of the Facility Agreement in connection with the Secured Liabilities or any of
them.


 


Event
of Default has the meaning given to that term in the Facility Agreement.


 


Facility has the meaning given to that
term in Recital A.


 


Facility
Agreement
has the meaning given to that term in Recital A.


 


Finance
Documents has the meaning given to that term in the Facility Agreement.


 


Finance
Parties has the meaning given to that term in the Facility Agreement.


 


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Guarantor has the meaning given to that term in the
Facility Agreement.


 


Insolvency
Law
means the Italian Royal Decree No. 267 of 16th March, 1942, as from time
to time amended and supplemented.


 


Intercreditor
Deed has the meaning given to that term in the Facility
Agreement.


 


Legal
Opinions has
the meaning given to that term in the Facility Agreement.


 


Parent means Hertz International Ltd, a
corporation incorporated under the laws of the State of Delaware, having (as of
the date hereof) its registered office at 225 Brae Boulevard Park Ridge, New
Jersey, 07657.


 


Pledge means the pledge of the
Balance granted by the Company to the Pledgee pursuant to Clause 3 (Security
Interest).


 


Pledgee
means BNP Paribas in its capacity as Security Agent
acting on behalf of the Banks pursuant to the Intercreditor Deed.


 


Secured
Claims means
the claims (diritti di credito) of the Secured
Creditors in respect of the Secured Liabilities.


 


Secured
Creditors means any of the Banks.


 


Secured Liabilities means


 


(a)           all present and future obligations and
liabilities (whether actual or contingent and whether owed jointly or severally
or in any other capacity whatsoever) of the Company to the Finance Parties (or
any of them) under the Finance Documents (or any of them),


 


(b)           all present and future contingent
obligations and liabilites of the Company in case of claw-back (revocatoria) or ineffectiveness (inefficacia),
pursuant to article 65 or article 67 of the Insolvency Law (or any
other provision of Italian law or any other applicable law), of any payment
made by the Company or any other person to discharge any of the obligations
referred to above, which are excluded from the contingent liabilities under
letter (a) above.


 


Security Period means the period beginning on the date hereof
and ending on the first anniversary of the full and unconditional discharge of
the Secured Liabilities described under paragraph (a) of the definition of
Secured Liabilities; provided that if in the meantime the Company or any third
party who has made payments discharging the Secured Liabilities described under
paragraph (a)  of the definition of Secured Liabilities, on behalf of the
Company is adjudicated bankrupt or submitted to any insolvency proceedings 


 


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which
may trigger the applicability of article 65 or article 67 of the
Insolvency Law (or any similar provision under any applicable law), such term
shall be extended until no revocatory action can be exercised.


 


Term has the meaning given to the
term in the Facility Agreement


 


Transfer
Certificate has the meaning given to that term in the Facility Agreement.


 


2.             INTERPRETATION


 


2.1          The
recitals and the schedules to this Agreement are an essential part thereof.


 


2.2          Terms not otherwise defined herein shall have the same meaning ascribed to them
in the Facility Agreement.


 


2.3          The words
and expressions beginning with a capital letter, used either in the singular or
in the plural form, shall have, for the purposes of this Agreement, the meaning
which they have been attributed under the Facility Agreement, unless otherwise
defined in this Agreement.


 


2.4          References
to a document shall mean such document, as modified, replaced by novation or
complemented.


 


2.5          If an amount paid
by the Company or any person on behalf of the Company or otherwise to discharge
any of the Secured Liabilities has been avoided or otherwise set aside on the
liquidation or administration of the Company or any such person or otherwise,
then that amount shall not be considered to have been irrevocably paid for the
purposes of the Pledge.


 


3.             SECURITY
INTEREST


 


3.1          The Company hereby irrevocably
grants in favour of the Secured Creditors the Pledge pursuant to article 2784
of the Civil Code, as a security for the Secured Liabilities.


 


3.2          If one or more of the Secured Liabilities is declared invalid or
unenforceable for whatever reason, or if the Pledge cannot or can no longer
secure, for whatever reason, one or more of such liabilities, this shall not
prejudice the validity and the enforceability of the Pledge, which shall
continue to secure the full, unconditional and irrevocable performance of all
other such liabilities.


 


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4.             USE
OF THE BANK ACCOUNT BY THE COMPANY


 


(a)           Notwithstanding the Pledge,
the Company is entitled to fully operate the Bank Account and perform all the
related transactions until an Enforcement Event has occurred.


 


(b)           Upon
the occurrence of an Enforcement Event, the
Company may not withdraw any amount from or make any other transaction debiting
the Bank Account without the prior written consent of the Security Agent.


 


5.             ENFORCEMENT
OF THE PLEDGE


 


5.1          Without prejudice to Clause 4
(Use of the Bank Account by the Company), upon occurrence of an Enforcement
Event and at any time thereafter, the Balance shall be applied in discharge of
the then outstanding Secured Liabilities, pursuant to article 4 of
Legislative Decree no. 170 of 2004.


 


5.2          The Security Agent will
receive the relevant proceeds and distribute them in accordance with the
provisions of the Intercreditor Deed.


 


6.             REPRESENTATIONS
AND WARRANTIES


 


(a)           The Company hereby represents
and warrants to the Pledgee that as of the date of execution of this Agreement:


 


(i)            with the exception of any
rights available to the Account Bank under article 5 of the Norme Bancarie Uniformi - Norme per i conti correnti
di corrispondenza e servizi connessi, the Company has and shall have
full and unencumbered legal title to the Balance, free and clear from any
Encumbrance or other right of third person other than any Permitted
Encumbrance;


 


(ii)           the Company has full corporate
power and authority to pledge the Balance in favour of the Secured Creditors,
the Pledge falls within the corporate purpose of the Company and all the
authorisations necessary or advisable in connection with the Pledge have been
obtained, subject to any reservations made in the Legal Opinions;


 


(iii)          no claims or proceedings are
pending or, to the knowledge of the Company, threatened before any court or
arbitration panel, in Italy or abroad, which may materially adversely affect
the Receivables;


 


(iv)          the Pledge and the provisions
contained in this Agreement are not in conflict with any other agreement or
undertaking to which the 


 


7

















 


Company is a party or any provision of law,
regulation or corporate documents binding on the Company.


 


(b)           All representations and warranties of the Pledgor of
this Clause shall be deemed to be repeated by the Pledgor on the first day of
each Term, each date on which an advance is or is to be made to the Company.


 


7.             UNDERTAKINGS
OF THE COMPANY


 


Until the
release of the Pledge pursuant to Clause 8 (Termination and release), the
Company shall:


 


(a)           save for what is provided for under Clause
4 of this Agreement, not take any action which may prejudice, directly or
indirectly, the validity, the effectiveness or the enforceability of the Pledge
or the agreements governing the Bank Account or the rights of the Secured
Creditors under or in connection with this Agreement;


 


(b)           take all actions which the Security Agent
may reasonably request which are necessary and appropriate to protect the
validity, the effectiveness and the enforceability of the Pledge or the rights
of the Secured Creditors under this Agreement, also against claims made by
third parties, it being understood that the relevant expenses shall be borne in
accordance with the Facility Agreement;


 


(c)           promptly execute and deliver all documents
and take all actions which the Security Agent may reasonably request which are
necessary and appropriate in order to:


 


(i)            perfect the Pledge; or


 


(ii)           enable the Pledgee to exercise the rights
and the remedies to which it is entitled pursuant to this Agreement, including,
without limitation, all rights and remedies exercisable upon the occurrence of
an Enforcement Event;


 


it being
understood that the relevant expenses shall be borne in accordance with the
Facility Agreement;


 


(d)           not create or permit the creation of any
Encumbrance over the Balance other than any Permitted Encumbrance; and


 


(e)            to maintain a positive Balance equal to at least to
Euro 1,000.00 (one thousand) on the Bank Account for the entire duration of
this Agreement.


 


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8.             TERMINATION
AND RELEASE


 


8.1          The Pledge shall terminate
automatically on or forthwith after the end of the Security Period.


 


8.2          The Secured Creditors, acting
through the Security Agent, upon request and at the cost and expense of the
Company, shall, immediately after the end of the Security Period give notice to
the Account Bank of the release of the Pledge.


 


8.3          Notwithstanding anything to
the contrary contained in the Finance Documents, the Security Agent shall, at
the request and cost of the Parent, release and cancel the Pledge upon
occurrence of any of the following events:


 


(a)           the Secured Liabilities being discharged in full and
none of the Secured Creditors being under any further actual or contingent obligation
to make advances or provide other financial accommodation to the Company or any
other person under any of the Finance Documents; or


 


(b)           the Company ceasing to be both a Borrower and a
Guarantor subject to, and in accordance with, the Facility Agreement; or


 


(c)           in compliance with point 10.2 of Schedule 20 of
the Facility Agreement, in connection with (a) any Permitted Disposal (as
defined in the Facility Agreement) of the Balance, (b) any sale or other
disposition of the Balance otherwise permitted by the Facility Agreement or the
Intercreditor Deed, (c) any sale or other disposition of the Balance where
the Security Agent has consented to the disposal pursuant to the Facility
Agreement or the Intercreditor Deed, Take-Out Financing (as defined in the
Facility Agreement) (d) any sale or any other disposition of the Balance
pursuant to a merger, consolidation, reorganisation, winding-up,
securitisation, Take-Out Financing or sale and leaseback permitted by the
Facility Agreement to the extent necessary to ensure such merger,
consolidation, reorganisation, winding-up, securitisation, Take-Out Financing
or sale and leaseback take place or (e) the creation of any Encumbrance
permitted by paragraph (x) of the definition of Permitted Encumbrance in the
Facility Agreement, and the Security Agent shall procure the reassignment to
the Company of the assets assigned to the Security Agent pursuant to the
Facility Agreement or the Intercreditor Deed, provided that, to the extent that
the disposal of the Balance is a Permitted Disposal or a sale or disposition
otherwise permitted by the Facility Agreement or the Intercreditor Deed, the
Balance shall be declared to be automatically released from the Pledge, with
effect from the day of such disposal and the Security Agent shall each do all
such acts which are reasonably requested by the Parent in order to release the
Balance.


 


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8.4.         Notwithstanding anything to
the contrary contained in the Finance Documents, in the event the Secured
Liabilities described under paragraph (a) of the definition of Secured
Liabilities are fully discharged, the Security Agent shall as soon as possible,
at the request and cost of the Parent, release and cancel the Pledge, upon
delivery to the Security Agent by the Company of the following documents:


 


(i)            copies of the last annual accounts duly approved by
the Company, which evidence the integrity of the corporate capital and the
absence of any losses in the relevant financial year;


 


(ii)           certificate from the Companies Registry concerning the
Company issued from less than two weeks prior to the date on with the
conditions under this clause 8.4 are met, evidencing that the Company is not
subject to any insolvency procedure (procedura
concorsuale); and


 


(iii)          certificate issued by the Tribunal of the place in
which the Company has its registered office, evidencing that no attachment
procedure for an aggregate amount higher than Euro 1,000,000 (one million) is
pending against any of the properties of the Company;


 


unless the
Security Agent provides the Parent with documentary evidence that
the Company is insolvent within 15 (fifteen) Business Days from the Parent’s
request of release. Upon request of the Security Agent, the Company shall
promptly deliver to the Security Agent all reasonable documents concerning its
financial situation and pending litigations.


 


9.             NOTICES


 


For the
purposes of this Clause 9, the contact details of the Company and the Secured
Creditors are as follows:


 


As to the Company:


Hertz Italiana S.p.A.


Viale Leonardo da Vinci 421


00145 Rome


Attn. The Board of Directors


Tel. +39 06 542941


Fax. +39 06 5415226


 


With copy to:


Bonelli Erede Pappalardo LLP


St. Olave’s House


9a Ironmonger Lane


EC2V 8EY London


 


10

















 


Attn. Avv. R. Sallustio


Tel +44 2077763488


Fax. +44 2077763468


 


As to the Pledgees (acting through the Security Agent) :


 


	
  Address
  :

  	
   

  	
  BNP Paribas

  
	
   

  	
   

  	
  3 Rue d’Antin

  
	
  Fax number:

  	
   

  	
  00 33 1 42 98 69 19

  
	
  Attention:

  	
   

  	
  Violaine Delaunay

  



 


10.          CONTINUATION
OF THE PLEDGE


 


(a)           Pursuant to article 1232
of the Civil Code, the Parties hereby expressly agree that the Pledge shall
remain in full force and effect in the case of novazione
oggettiva of one or more Secured Liabilities.


 


(b)           Pursuant to article 1275
of the Civil Code, the Company hereby expressly and irrevocably consents to the
continuation of the Pledge in the event of novazione soggettiva
of one or more Secured Liabilities.


 


(c)           The Parties expressly agree
and acknowledge that, for the purposes of the Pledge, any transfer, in whole or
in part, of the Facility Agreement (including without limitation any transfer
by way of English law novation and any transfer carried out by a Transfer
Certificate), and any assignment, in whole or in part, of one or more Secured
Claims, including without limitation any assignment carried out under clause 36
(Assignments and transfers) of the Facility Agreement, are and shall be
considered as being, respectively, cases of “cessione del
contratto” and “cessione del credito”,
and therefore they shall never entail a “novazione oggettiva”
of, or have an “effetto novativo” on, the Secured
Liabilities or the Pledge.


 


(d)           Without prejudice to the
provisions of paragraphs (a), (b) and (c) above, in any case of:


 


(i)            “novazione
oggettiva” of one or more Secured Liabilities;


 


(ii)           “novazione
soggettiva” of one or more Secured Liabilities;


 


(iii)          transfer, in whole or in part,
of the Facility Agreement, including without limitation any transfer by way of
English law novation and any transfer carried out by means of a Transfer
Certificate;


 


(iv)          any assignment, in whole or in
part, of one or more Secured Claims, including without limitation any
assignment carried out under clause 33 (Assignments and transfers) of the
Facility Agreement; or


 


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(v)           one or more changes, of
whatever nature and for whatever reason, in one or more terms of any of the
Facility Agreement or in one or more terms of any of the Secured Liabilities,


 


at the reasonable
request of the Security Agent and in the manner and at the time specified by
the latter, the Company, , shall execute any deed, agreement, document, act or
certificate and take all the steps which are necessary or appropriate, at the
Security Agent’s discretion, to maintain the Pledge; it being understood that
should the request of the Security Agent arise from circumstances not
attributable to the Company no expenses shall be borne by the Company or by the
Parent.


 


(e)           To the extent explicitly permitted
by the Facility Agreement and pursuant to article 1407, first paragraph,
of the Civil Code, each of the Parties hereby provides its explicit and
irrevocable consent to the transfer (cessione), in
whole or in part, by any Secured Creditor, as the case may be, of its
contractual position as a secured creditor (creditore garantito)
under this Agreement in favour of any person executing a Transfer Certificate
with any other Secured Creditor, as the case may be.


 


11.          MISCELLANEOUS
PROVISIONS


 


11.1        Waivers


 


(a)           The rights of the Pledgee
under this Agreement may be:


 


(i)            exercised as often as
necessary; and


 


(ii)           waived only in writing and
specifically.


 


(b)           Delay in exercising or
non-exercise of any of the rights of the Pledgee under this Agreement is not a
waiver of that right.


 


11.2        Remedies cumulative


 


All rights,
actions and remedies of the Pledgee under this Agreement are in addition to and
do not exclude any other right, action or remedy to which the Secured Creditors
are entitled as a matter of contract (including, without limitation, under the
Facility Agreement or any other Finance Document) or of law.


 


11.3        Additional Security


 


The security
constituted by this Agreement is in addition to and is not prejudiced by any
other security now or subsequently held by the Secured Creditors for any
Secured Liabilities.


 


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11.4        Amendments


 


No amendment
to the provisions of this Agreement shall be effective unless made by the
Company and the Pledgee in writing.


 


11.5        Liability of the Pledgee


 


The Pledgee
shall not be liable, except for gross negligence or wilful misconduct, for
damages caused to the Company when exercising or failing to exercise the
rights, actions or remedies to which it is entitled under this Agreement.


 


11.6        Taxes and expenses


 


Taxes,
expenses and costs relating to this Agreement shall be borne by the Parent
according to the relevant provisions of the Facility Agreement.


 


11.7        Severability


 


In the event
that any one of the provisions of this Agreement should be contrary to law or
invalid or ineffective or should become so, such provision shall in no way
affect the validity or efficacy of all other provisions of this Agreement,
which shall remain valid and effective.


 


11.8        Successors
and assignees


 


The Pledgee
shall not be liable towards the Company or its successors or assignees for any
delay or failure in exercising its rights under this Agreement.


 


12.          GOVERNING
LAW AND JURISDICTION


 


12.1        Governing law


 


This Agreement
and any document to be issued pursuant to this Agreement is governed by Italian
law.


 


12.2        Jurisdiction


 


(a)           The courts of Milan have
exclusive jurisdiction to settle any dispute in connection with this Agreement.


 


(b)           This Clause is for the benefit
of the Secured Creditors. To the extent allowed by law the Secured Creditors
may take proceedings against the Company in any other competent Italian courts.


 


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  The Company 

  Hertz Italiana S.p.A.

  in
  its capacity as Assignor 

  Represented
  by 

  	
  The Pledgee 

  BNP
  Paribas 

  in
  its capacity as Pledgee and Security Agent 

  Represented
  by

  
	
  Riccardo
  Sallustio

  	
   

  	
  Cyrille
  Javaux 

  	
   

  
	
  in
  his capacity as attorney in fact 

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/
  Riccardo Sallustio

  	
   

  	
  /s/
  Cyrille Javaux

  	
   

  



 


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