Exhibit 4.6.5


 


This Deed of Trust was prepared by

and when recorded should be returned to:


 


Latham & Watkins LLP


885 Third Avenue


Suite 1000


New York, New York 10022-4802


Attention: 
Aaron S. Adler, Esq.


(212) 906-1200

031347-0012


 


DEED OF TRUST, SECURITY AGREEMENT,


AND ASSIGNMENT OF LEASES AND RENTS AND
FIXTURE FILING


 


by


 


THE HERTZ CORPORATION, a Delaware
Corporation,

as Grantor,


 


to


 


DEUTSCHE BANK AG, NEW YORK BRANCH,


as Collateral Agent,

as Beneficiary,


 


Dated as of December 21, 2005


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  Background

  	
  1

  
	
   

  	
   

  
	
  Granting Clauses

  	
  2

  
	
   

  	
   

  
	
  Terms and Conditions

  	
  4

  
	
  1.

  	
  Defined Terms

  	
  5

  
	
  2.

  	
  Warranty of Title

  	
  5

  
	
  3.

  	
  Payment of Obligations

  	
  5

  
	
  4.

  	
  Requirements

  	
  5

  
	
  5.

  	
  Payment of Taxes and Other Impositions

  	
  5

  
	
  6.

  	
  Insurance

  	
  6

  
	
  7.

  	
  Restrictions on Liens and Encumbrances

  	
  6

  
	
  8.

  	
  Due on Sale and Other Transfer Restrictions

  	
  6

  
	
  9.

  	
  Condemnation/Eminent
  Domain

  	
  6

  
	
  10.

  	
  Leases

  	
  6

  
	
  11.

  	
  Further Assurances

  	
  7

  
	
  12.

  	
  Beneficiary’s Right to Perform

  	
  7

  
	
  13.

  	
  Remedies

  	
  7

  
	
  14.

  	
  Right of Beneficiary to Credit Sale

  	
  9

  
	
  15.

  	
  Appointment of Receiver

  	
  9

  
	
  16.

  	
  Extension, Release, etc

  	
  9

  
	
  17.

  	
  Security Agreement under Uniform Commercial
  Code

  	
  10

  
	
  18.

  	
  Assignment of Rents

  	
  10

  
	
  19.

  	
  Additional Rights

  	
  11

  
	
  20.

  	
  Notices

  	
  11

  
	
  21.

  	
  No Oral Modification

  	
  11

  
	
  22.

  	
  Partial Invalidity

  	
  11

  
	
  23.

  	
  Grantor’s Waiver of Rights

  	
  12

  
	
  24.

  	
  Remedies Not Exclusive

  	
  12

  
	
  25.

  	
  Multiple Security

  	
  12

  
	
  26.

  	
  Successors and Assigns

  	
  13

  
	
  27.

  	
  No Waivers, etc

  	
  14

  
	
  28.

  	
  Governing Law, etc

  	
  14

  
	
  29.

  	
  Certain Definitions

  	
  14

  
	
  30.

  	
  Last Dollars Secured; Priority

  	
  14

  
	
  31.

  	
  Release

  	
  15

  
	
  32.

  	
  Conflict With Credit Agreement

  	
  15

  
	
  33.

  	
  Change in Tax Law

  	
  15

  
	
  34.

  	
  Subrogation

  	
  15

  
	
  35.

  	
  Beneficiary as Agent

  	
  16

  
	
  36.

  	
  Intercreditor Agreements

  	
  16

  
	
  37.

  	
  State Specific Provisions

  	
  16

  
	
  38.

  	
  Rights and Responsibilities of Trustee; Other
  Provisions Relating to Trustee

  	
  16

  



 

















 


DEED OF TRUST, SECURITY AGREEMENT,

ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING


 


THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF
LEASES AND RENTS AND FIXTURE FILING, dated as of December 21, 2005 is made
by THE HERTZ
CORPORATION, a Delaware corporation (“Grantor”),
whose address is 225 Brae Blvd., Park Ridge, New Jersey 07656, to FIRST
AMERICAN TITLE INSURANCE COMPANY, a California corporation, with an address at
1 First American Way, Santa Ana, CA 92707, as trustee (together with its
successors and assigns, in such capacity, “Trustee”), in
favor of DEUTSCHE BANK AG, NEW YORK BRANCH, as Collateral Agent (in such
capacity, “Beneficiary”), whose
address is 60 Wall Street, New York, New York 10005. References to this “Deed of Trust” shall mean this instrument and
any and all renewals, modifications, amendments, supplements, extensions,
consolidations, substitutions, spreaders and replacements of this instrument.


 


Background


 


A.                                    The Hertz Corporation, a Delaware
corporation, has entered into that certain Credit Agreement dated as of the
date hereof (as the same may be amended, supplemented or otherwise
modified from time to time, the “Credit
Agreement”) among The Hertz Corporation (together with any assignee
of, or successor by merger to, The Hertz Corporation’s rights and obligations
thereunder as provided therein, the “Parent
Borrower”), the several banks and other financial institutions from
time to time parties thereto (together with all other parties defined to be “Lenders”
in the Credit Agreement, the “Lenders”),
Beneficiary, as Administrative Agent and Collateral Agent, Lehman Commercial
Paper Inc., as Syndication Agent, and Merrill Lynch Capital Corporation, as
Documentation Agent.


 


B.                                      Grantor (i) is the owner of the fee
simple estate in the parcel(s) of real property, if any, described on Schedule A
attached hereto (the “Owned Land”);
and (ii) owns, leases or otherwise has the right to use all of the
buildings, improvements, structures, and fixtures now or subsequently located
on the Owned Land (the “Improvements”;
the Owned Land and the Improvements being collectively referred to as the “Real Estate”).


 


C.                                      Pursuant to the terms and conditions of
the Credit Agreement, inter alia: (1) the Term Loan Lenders have severally
agreed to make certain Term Loans to the Parent Borrower, and (2) the
Issuing Lender has agreed to issue, and the Lenders who are L/C Participants to
acquire participating interests in, Letters of Credit for the account of the
Parent Borrower.


 


D.                                     It is a condition precedent, among
others, to the effectiveness of the Credit Agreement and the obligations of the
Secured Parties to make the Loans, to issue and participate in Letters of
Credit, and to enter into any Interest Rate Protection Agreement or Permitted
Hedging Arrangement that Grantor secure its obligations under the Credit
Agreement and other Loan Documents by executing and delivering this Deed of
Trust.


 


E. Concurrently with
entering into the Credit Agreement, the Parent Borrower, The Hertz Equipment
Rental Corporation, a Delaware corporation, and the Canadian Borrowers


 

















 


(as defined in the
ABL Facility Documents) entered into that certain ABL Facility, dated as of an
equal date therewith. All obligations of Grantor under the ABL Facility are
secured by, among other things, a certain Deed of Trust, Security Agreement,
Assignment of Leases and Rents and Fixture Filing, executed by Grantor for the
benefit of Beneficiary (in such capacity, “ABL Mortgagee”),
dated as of the date hereof (as the same may be amended, restated,
supplemented, replaced, extended or otherwise modified from time to time, the “ABL Mortgage”).


 


F. In order to induce the
Lenders to consent to the entry into the Credit Agreement by the Parent
Borrower and to induce the Lenders to extend credit and other financial accommodations
and lend monies to or for the benefit of the Parent Borrower, Beneficiary, the
Parent Borrower and certain other parties have agreed to the subordination,
intercreditor and other provisions set forth in that certain Intercreditor
Agreement, dated as of the date of the Credit Agreement (the “Intercreditor Agreement”).


 


Granting Clauses


 


For
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Grantor agrees that to secure all obligations and
liabilities of the Grantor in respect of: (1) the unpaid principal of and
interest on (including interest accruing after the maturity of the Loans and
reimbursement obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to the Grantor, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the Loans,
the reimbursement obligations, and all other obligations and liabilities of the
Grantor to the Secured Parties, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Credit Agreement, the Loans, the
Letters of Credit, the other Loan Documents, any Interest Rate Protection
Agreement, Permitted Hedging Arrangement or Bank Products Agreement (as defined
in the Intercreditor Agreement) entered into with any Person who was at the
time of entry into such agreement a Lender or affiliate of any Lender (provided
notice of such Interest Rate Protection Agreement, Permitted Hedging
Arrangement or Bank Products Agreement (as defined in the Intercreditor
Agreement) was provided to Beneficiary, as Administrative Agent and Collateral
Agent) or otherwise a Term Hedging Affiliate (as defined in the Intercreditor
Agreement), any Guarantee Obligations of CCMG Corporation, a Delaware
corporation (“CCMGC”), or any Domestic
Subsidiary as to which any Secured Party is a beneficiary, the provision of
cash management services by any Lender or an Affiliate thereof to the Parent
Borrower or any subsidiary thereof, the Brazil Guaranty (as defined in the
Intercreditor Agreement) or any other document made, delivered or given in
connection therewith, in each case whether on account of principal, interest,
reimbursement obligations, amounts payable in connection with the provision of
such cash management services or a termination of any transaction entered into
pursuant to any such Interest Rate Protection Agreement, Permitted Hedging
Arrangement or Bank Products Agreement (as defined in the Intercreditor
Agreement), fees, indemnities, costs, expenses or otherwise (including all
reasonable out-of-pocket fees, expenses and disbursements of counsel to the
Administrative Agent, Collateral Agent or any other Secured Party that are
required to be paid by the Grantor pursuant to the terms of the Credit
Agreement or any other Loan Document) (collectively, the “Term Obligations”) and (2) the
Euro MTN Obligations (as defined in the Intercreditor Agreement) (the Term
Obligations and the Euro MTN Obligations are referred to collectively herein as
the “Obligations”)


 


2

















 


GRANTOR HEREBY
GRANTS TO TRUSTEE A LIEN UPON AND A SECURITY INTEREST IN, AND HEREBY MORTGAGES,
GIVES, GRANTS, BARGAINS, SELLS, CONVEYS AND CONFIRMS, ASSIGNS, TRANSFERS AND
SETS OVER, WITH POWER OF SALE, TO TRUSTEE AND TO ITS SUCCESSORS AND ASSIGNS FOR
THE BENEFIT AND SECURITY OF BENEFICIARY FOREVER, SUBJECT ONLY TO THE PERMITTED
EXCEPTIONS:


 


(a)                                  all right,
title and interest of Grantor in, to and under the Owned Land;


 


(b)                                 all right,
title and interest Grantor now has or may hereafter acquire in and to the
Improvements or any part thereof (whether owned in fee by Grantor or held
otherwise);


 


(c)                                  all right,
title and interest of Grantor in, to and under all easements, rights of way,
licenses, operating agreements, abutting strips and gores of land, streets,
ways, alleys, passages, sewer rights, waters, water courses, water and flowage
rights, development rights, air rights, mineral and soil rights, plants,
standing and fallen timber, and all estates, rights, titles, interests,
privileges, licenses, tenements, hereditaments and appurtenances belonging, relating
or appertaining to the Real Estate, and any reversions, remainders, rents,
issues, profits and revenue thereof and all land lying in the bed of any
street, road or avenue, in front of or adjoining the Real Estate to the center
line thereof;


 


(d)                                 all right,
title and interest of Grantor in and to all of the fixtures, chattels, business
machines, machinery, apparatus, equipment, furnishings, fittings, and articles
of personal property of every kind and nature whatsoever, and all appurtenances
and additions thereto and substitutions or replacements thereof (together with,
in each case, attachments, components, parts and accessories) currently owned
or subsequently acquired by Grantor and now or subsequently attached to, the
Real Estate, but excluding any Rental Car Vehicles to the extent such vehicles
are pledged as security for any financing (or refinancing) incurred in
connection with the purchase or acquisition of such vehicles (all of the
foregoing in this paragraph (d) being referred to as the “Equipment”);


 


(e)                                  all right,
title and interest of Grantor in and to all substitutes and replacements of,
and all additions and improvements to, the Real Estate and the Equipment,
subsequently acquired by or released to Grantor or constructed, assembled or
placed by Grantor on the Real Estate, immediately upon such acquisition,
release, construction, assembling or placement, including any and all building
materials whether stored at the Real Estate or offsite, and, in each such case,
without any further deed, conveyance, assignment or other act by Grantor;


 


(f)                                    all right,
title and interest of Grantor in, to and under all leases, subleases,
underlettings, concession agreements, management agreements, licenses and other
agreements relating to the use or occupancy of the Real Estate or the Equipment
or any part thereof, now existing or subsequently entered into by Grantor
and whether written or oral and all guarantees of any of the foregoing
(collectively, as any of the foregoing may be amended, restated, extended,
renewed or modified from time to time, the “Leases”), and all
rights of Grantor in respect of cash and securities deposited thereunder and
the right to receive and collect the revenues, income, rents, issues and
profits thereof, together with all other rents, royalties, issues,


 


3

















 


profits,
revenue, income and other benefits arising from the use and enjoyment of the
Mortgaged Property (as defined below) (collectively, the “Rents”);


 


(g)                                 all right,
title and interest of Grantor, to the extent assignable, in and to all unearned
premiums under insurance policies now or subsequently obtained by Grantor
relating to the Real Estate or Equipment and Grantor’s interest in and to all
proceeds of any such insurance policies (including title insurance policies)
including the right to collect and receive such proceeds, subject to the
provisions relating to insurance generally set forth below; and all awards and
other compensation, including the interest payable thereon and the right to
collect and receive the same, made to the present or any subsequent owner of
the Real Estate or Equipment for the taking by eminent domain, condemnation or
otherwise, of all or any part of the Real Estate or any easement or other
right therein, subject to the provisions relating to condemnation awards
generally set forth below;


 


(h)                                 to the extent
not prohibited under the applicable contract, consent, license or other item
unless the appropriate consent has been obtained, all right, title and interest
of Grantor in and to (i) all contracts from time to time executed by
Grantor or any manager or agent on its behalf relating to the ownership,
construction, maintenance, repair, operation, occupancy, sale or financing of
the Real Estate or Equipment or any part thereof and all agreements and
options relating to the purchase or lease of any portion of the Real Estate or
any property which is adjacent or peripheral to the Real Estate, together with
the right to exercise such options and all leases of Equipment,
(ii) all consents, licenses, building permits, certificates of occupancy
and other governmental approvals relating to construction, completion,
occupancy, use or operation of the Real Estate or any part thereof, and (iii) all
drawings, plans, specifications and similar or related items relating to the
Real Estate; and


 


(i)                                     all proceeds,
both cash and noncash, of the foregoing.


 


(All of the foregoing property and all rights, titles and interests now
owned or held or subsequently acquired by Grantor and described in the
foregoing clauses (a) through (d) are collectively referred to as the
“Premises”, and all rights, titles
and interests now owned or held or subsequently acquired by Grantor and
described in the foregoing clauses (a) through (i) are collectively
referred to as the “Mortgaged Property”).


 


TO
HAVE AND TO HOLD the Mortgaged Property and the rights and privileges hereby
granted to Trustee and/or Beneficiary, their respective successors and assigns
for the uses and purposes set forth, until the Obligations are fully paid and
performed, provided, however, that the condition of this Deed of Trust is such
that if the Term Obligations are fully paid and performed, then the estate
hereby granted shall cease, terminate and become void.


 


This
Deed of Trust covers present and future advances and re-advances, in the
aggregate amount of the obligations secured hereby, made by the Secured Parties
for the benefit of Grantor, and the lien of such future advances and
re-advances shall relate back to the date of this Deed of Trust. The maximum amount of the obligations secured hereby
will not exceed 2.25 BILLION DOLLARS ($2,250,000,000.00).


 


4

















 


Terms and Conditions


 


Grantor
further represents, warrants, covenants and agrees with Beneficiary and the
Secured Parties as follows:


 


1.                                       Defined
Terms. Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement. References in this Deed of
Trust to the “Default Rate” shall
mean the interest rate applicable pursuant to subsection 4.1(c) of
the Credit Agreement. References herein to the “Secured Parties” shall mean the collective reference to (i) the
Administrative Agent, Collateral Agent and each Other Representative, (ii) the
Lenders (including the Issuing Lender and the Swing Line Lender), (iii) with
respect to any Interest Rate Protection Agreement, Permitted Hedging
Arrangement or Bank Products Agreement (as defined in the Intercreditor
Agreement) with CCMGC or any of its subsidiaries, any counterparty thereto
that, at the time such agreement or arrangement was entered into, was a Lender
or Affiliate of any Lender, or otherwise a Term Hedging Affiliate (as defined
in the Intercreditor Agreement), (iv) any Lender or Affiliate thereof
which provides cash management services to the Parent Borrower or any of its
subsidiaries, (v) with respect to any Management Loans (as defined in the
Security Agreement), any lender thereof that, at the time such Indebtedness was
extended (or agreement to extend such Indebtedness was entered into), was a
Lender or an Affiliate of any Lender, (vi) the Euro MTN Secured Parties
(as defined in the Intercreditor Agreement), (vii) the Brazil Debt Secured
Parties (as defined in the Intercreditor Agreement), and (viii) their
respective successors and assigns and their permitted transferees and
endorsees.


 


2.                                       Warranty
of Title. Grantor warrants that it has good title in fee simple to the Real
Estate, and good title to the rest of the Mortgaged Property, subject only to
the matters that are set forth in Schedule B of the title insurance policy
or policies being issued to Beneficiary to insure the lien of this Deed of
Trust and any other Permitted Liens (the “Permitted Exceptions”).
Grantor shall warrant, defend and preserve such title and the lien of this Deed
of Trust against all claims of all persons and entities (not including the
holders of the Permitted Exceptions). Grantor represents and warrants that it
has the right to mortgage the Mortgaged Property.


 


3.                                       Payment
of Obligations. Grantor shall pay and perform the Obligations at the
times and places and in the manner specified in the Loan Documents.


 


4.                                       Requirements.
Grantor shall promptly comply with all covenants, restrictions and conditions
now or later of record which may be applicable to any of the Mortgaged
Property, or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration, repair or reconstruction of any of the Mortgaged
Property, except where a failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


5.                                       Payment
of Taxes and Other Impositions. (a)  Promptly when due or prior to the
date on which any fine, penalty, interest or cost may be added thereto or
imposed, Grantor shall pay and discharge all taxes, charges and assessments of
every kind and nature, all charges for any easement or agreement maintained for
the benefit of any of the Real Estate, all general and special assessments,
levies, permits, inspection and license fees, all water and sewer rents and
charges, vault taxes and all other public charges even if unforeseen or
extraordinary, imposed upon or assessed against or which may become a lien
on any of the Real Estate, or arising in respect of the occupancy, use or
possession thereof, together with any penalties or interest on any of the
foregoing (all of the foregoing are collectively referred to herein as the


 


5

















 


“Impositions”), except where (i) the validity
or amount thereof is being contested in good faith by appropriate proceedings,
and (ii) the Grantor has set aside on its books adequate reserves with
respect thereto in accordance with GAAP. Upon request by
Beneficiary, Grantor shall within 30 days after the request of Beneficiary,
deliver to Beneficiary evidence reasonably acceptable to Beneficiary showing
the payment of any such Imposition. If by law any Imposition, at Grantor’s
option, may be paid in installments (whether or not interest shall accrue
on the unpaid balance of such Imposition), Grantor may elect to pay such
Imposition in such installments and shall be responsible for the payment of
such installments with interest, if any.


 


(b)                                 Nothing herein
shall affect any right or remedy of Beneficiary under this Deed of Trust or
otherwise, without notice or demand to Grantor, to pay any Imposition after the
date such Imposition shall have become due, and add to the Obligations the
amount so paid, together with interest from the time of payment at the Default
Rate. Any sums paid by Beneficiary in discharge of any Impositions shall be (i) a
lien on the Premises secured hereby prior to any right or title to, interest
in, or claim upon the Premises subordinate to the lien of this Deed of Trust,
and (ii) payable on demand by Grantor to Beneficiary together with
interest at the Default Rate as set forth above.


 


(c)                                  Grantor
shall not be entitled to any credit against the Obligations by reason of the
payment of Impositions.


 


6.                                       Insurance.
Grantor shall maintain insurance in accordance with the provisions of the
Credit Agreement.


 


7.                                       Restrictions
on Liens and Encumbrances. Except for the lien of this Deed of Trust and
the Permitted Exceptions and except as otherwise permitted pursuant to the
terms of the Credit Agreement, Grantor shall not further mortgage, nor
otherwise encumber the Mortgaged Property nor create or suffer to exist any
lien, charge or encumbrance on the Mortgaged Property, or any part thereof,
whether superior or subordinate to the lien of this Deed of Trust and whether
recourse or non-recourse.


 


8.                                       Due
on Sale and Other Transfer Restrictions. Except as permitted under subsection 8.6
of the Credit Agreement, Grantor shall not sell, transfer, convey or assign all
or any portion of, or any interest in, the Mortgaged Property.


 


9.                                       Condemnation/Eminent Domain. Promptly upon obtaining knowledge
of the institution of any proceedings for the condemnation of the Mortgaged
Property, or any material portion thereof, Grantor will notify Beneficiary of
the pendency of such proceedings. All awards and proceeds relating to such
condemnation shall be deemed proceeds from a Recovery Event and applied in the
manner specified in the Credit Agreement.


 


10.                                 Leases. Except as permitted under the Credit
Agreement with respect to any Lease having an annual rental of more than
$1,000,000, Grantor shall not (a) execute an assignment or pledge of any
Lease relating to all or any portion of the Mortgaged Property other than in
favor of Beneficiary, or (b) without the prior written consent of
Beneficiary, which consent shall not be unreasonably withheld or delayed,
execute or permit to exist any Lease of any material portion of the Mortgaged
Property, except for Permitted Exceptions. Beneficiary agrees that, upon the
reasonable request of Grantor, Beneficiary will enter into a subordination,


 


6

















 


non-disturbance
and attornment agreement with a tenant (other than affiliate of Grantor) that
has executed a lease after the date hereof with respect to all or a portion of
the Mortgaged Property, provided (i) Grantor certifies in writing to
Beneficiary that such lease contains commercially reasonable terms, including
being at fair market rent, (ii) such subordination, non-disturbance and
attornment agreement is in form and substance reasonably acceptable to the
Beneficiary and (iii) all the costs and expenses related thereto
(including reasonable attorneys’ fees) shall be borne by Grantor.


 


11.                                 Further
Assurances. To further assure Beneficiary’s rights under this Deed of
Trust, Grantor agrees promptly upon demand of Beneficiary to do any act or
execute any additional documents (including security agreements on any
personalty included or to be included in the Mortgaged Property and a separate
assignment of each Lease in recordable form) as may be reasonably required
by Beneficiary to confirm the lien of this Deed of Trust and all other rights
or benefits conferred on Beneficiary by this Deed of Trust.


 


12.                                 Beneficiary’s
Right to Perform. If Grantor fails to perform any of the covenants or
agreements of Grantor under this Deed of Trust, within the applicable grace
period, if any, provided for in the Credit Agreement, Beneficiary, without
waiving or releasing Grantor from any obligation or default under this Deed of
Trust, may, at any time upon 10 days’ written notice to Grantor (but shall be
under no obligation to) pay or perform the same, and the amount or cost
thereof, with interest at the Default Rate, shall immediately be due from
Grantor to Beneficiary and the same shall be secured by this Deed of Trust and
shall be a lien on the Mortgaged Property prior to any right, title to,
interest in, or claim upon the Mortgaged Property attaching subsequent to the
lien of this Deed of Trust. No payment or advance of money by Beneficiary under
this Section shall be deemed or construed to cure Grantor’s default or
waive any right or remedy of Beneficiary.


 


13.                                 Remedies.
(a)  Upon the occurrence and during the continuance of any Event of
Default, Beneficiary may immediately take such action, without notice or
demand, as it deems advisable to protect and enforce its rights against Grantor
and in and to the Mortgaged Property (subject to the terms of any documentation
governing any Permitted Receivables Transaction), including the following
actions, each of which may be pursued concurrently or otherwise, at such
time and in such manner as Beneficiary may determine, in its sole
discretion, without impairing or otherwise affecting the other rights and
remedies of Beneficiary:


 


(i)                                     Beneficiary
may, to the extent permitted by applicable law, (A) institute and maintain
an action of mortgage foreclosure against all or any part of the Mortgaged
Property, (B) institute and maintain an action on the Loans or the Credit
Agreement, the Guarantee and Collateral Agreement or any other Loan Document, (C) sell
all or part of the Mortgaged Property (Grantor expressly granting to
Beneficiary the power of sale), or (D) take such other action at law or in
equity for the enforcement of this Deed of Trust or any of the Loan Documents
as the law may allow. Beneficiary may proceed in any such action to
final judgment and execution thereon for all sums due hereunder, together with
interest thereon as provided in the Credit Agreement and all reasonable
out-of-pocket costs of suit, including reasonable out-of-pocket attorneys’ fees
and disbursements. Interest at the Default Rate shall be due on any judgment
obtained


 


7

















 


by Beneficiary from the date
of judgment until actual payment is made of the full amount of the judgment.
Grantor agrees that in addition to all other rights of Beneficiary hereunder
and without waiving or modifying any of its rights, Beneficiary may to the
maximum extent permitted by law, foreclose and at its sole option utilize the
provisions of any statute which allows Beneficiary to obtain the Mortgaged
Property by using a shortened redemption period; and


 


(ii)                                  Beneficiary may personally,
or by its agents, attorneys and employees and without regard to the adequacy or
inadequacy of the Mortgaged Property or any other collateral as security for
the Obligations enter into and upon the Mortgaged Property and each and every part thereof
and exclude Grantor and its agents and employees therefrom without liability
for trespass, damage or otherwise (Grantor hereby agreeing to surrender
possession of the Mortgaged Property to Beneficiary upon demand at any such
time) and use, operate, manage, maintain and control the Mortgaged Property and
every part thereof (subject to the terms of any documentation governing
any Permitted Receivables Transaction). Following such entry and taking of
possession, Beneficiary shall be entitled, without limitation, (x) to lease all
or any part or parts of the Mortgaged Property for such periods of time
and upon such conditions as Beneficiary may, in its discretion, deem proper,
(y) to enforce, cancel or modify any Lease and (z) generally to execute, do and
perform any other act, deed, matter or thing concerning the Mortgaged
Property as Beneficiary shall deem appropriate as fully as Grantor might do
(subject to the terms of any documentation governing any Permitted Receivables
Transaction).


 


(b)                                 In case of a
foreclosure sale, the Real Estate may be sold, at Beneficiary’s election,
in one parcel or in more than one parcel and Beneficiary is specifically
empowered (without being required to do so, and in its sole and absolute
discretion) to cause successive sales of portions of the Mortgaged Property to
be held.


 


(c)                                  In the event of
any breach of any of the covenants, agreements, terms or conditions contained
in this Deed of Trust, Beneficiary shall be entitled to enjoin such breach and
obtain specific performance of any covenant, agreement, term or condition and
Beneficiary shall have the right to invoke any equitable right or remedy as
though other remedies were not provided for in this Deed of Trust.


 


(d)                                 It is agreed
that if an Event of Default shall occur and be continuing, any and all proceeds
of the Mortgaged Property received by the Beneficiary shall be held by the
Beneficiary for the benefit of the Secured Parties as collateral security for
the Obligations (whether matured or unmatured), and/or then or at any time
thereafter may, in the sole discretion of the Beneficiary, be applied, following
the application thereof to pay any unsatisfied Euro MTN Obligations (as defined
in the Intercreditor Agreement), by the Beneficiary against the Term
Obligations then due and owing in the order of priority set forth in the
Intercreditor Agreement.


 


(e)                                  To the extent
Trustee, under applicable state law, is required to take action on behalf of
the Beneficiary under this Section 13, the Trustee may take any
action or seek any remedy granted to Beneficiary under this Section 13,
upon request of Beneficiary.


 


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14.                                 Right
of Beneficiary to Credit Sale. Upon the occurrence of any sale made under
this Deed of Trust, whether made under the power of sale or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale,
Beneficiary may bid for and acquire the Mortgaged Property or any part thereof.
In lieu of paying cash therefor, Beneficiary may make settlement for the
purchase price by crediting upon the Obligations or other sums secured by this
Deed of Trust, the net sales price after deducting therefrom the expenses of
sale and the reasonable, out-of-pocket cost of the action and any other sums
which Beneficiary is authorized to deduct under this Deed of Trust. In such
event, this Deed of Trust, the Credit Agreement, the Guarantee and Collateral
Agreement and documents evidencing expenditures secured hereby may be
presented to the person or persons conducting the sale in order that the amount
so used or applied may be credited upon the Obligations as having been
paid.


 


15.                                 Appointment
of Receiver. If an Event of Default shall have occurred and be continuing,
Beneficiary, to the extent permitted under applicable law, as a matter of right
and without notice to Grantor, and without regard to the adequacy or inadequacy
of the Mortgaged Property or any other collateral or the interest of Grantor
therein as security for the Obligations, shall have the right to apply to any
court having jurisdiction to appoint a receiver or receivers or other manager
of the Mortgaged Property, and Grantor hereby irrevocably consents to such
appointment and waives notice of any application therefor (except as may be
required by law). Any such receiver or receivers or manager shall have all the
usual powers and duties of receivers in like or similar cases and all the
powers and duties of Beneficiary in case of entry as provided in this Deed of
Trust, including and to the extent permitted by law, the right to enter into
leases of all or any part of the Mortgaged Property, and shall continue as
such and exercise all such powers until the date of confirmation of sale of the
Mortgaged Property unless such receivership is sooner terminated.


 


16.                                 Extension, Release, etc. (a)  Without affecting the
lien or charge of this Deed of Trust upon any portion of the Mortgaged Property
not then or theretofore released as security for the full amount of the
Obligations, Beneficiary may, from time to time and without notice, agree to (i) release
any person liable for the indebtedness borrowed or guaranteed under the Loan
Documents, (ii) extend the maturity or alter any of the terms of the
indebtedness borrowed or guaranteed under the Loan Documents or any other
guaranty thereof, (iii) grant other indulgences, (iv) release or
reconvey, or cause to be released or reconveyed at any time at Beneficiary’s
option any parcel, portion or all of the Mortgaged Property, (v) take or
release any other or additional security for any obligation herein mentioned,
or (vi) make compositions or other arrangements with debtors in relation
thereto.


 


(b)                                 No recovery of
any judgment by Beneficiary and no levy of an execution under any judgment upon
the Mortgaged Property or upon any other property of Grantor shall affect the
lien of this Deed of Trust or any liens, rights, powers or remedies of
Beneficiary hereunder, and such liens, rights, powers and remedies shall
continue unimpaired.


 


(c)                                  If Beneficiary
shall have the right to foreclose this Deed of Trust or to direct a power of
sale, Grantor authorizes Beneficiary at its option to foreclose the lien of
this Deed of Trust or direct the sale of the Mortgaged Property, as the case may be,
subject to the rights of any tenants of the Mortgaged Property. The failure to
make any such tenants parties defendant to any such foreclosure proceeding and
to foreclose their rights, or to provide notice to such tenants as required in
any statutory procedure governing a sale of the Mortgaged Property, or to


 


9

















 


terminate
such tenant’s rights in such sale will not be asserted by Grantor as a defense
to any proceeding instituted by Beneficiary to collect the Obligations or to
foreclose the lien of this Deed of Trust.


 


(d)                                 Unless
expressly provided otherwise, in the event that ownership of this Deed of Trust
and title to the Mortgaged Property or any estate therein shall become vested
in the same person or entity, this Deed of Trust shall not merge in such title
but shall continue as a valid lien on the Mortgaged Property for the amount
secured hereby.


 


17.                                 Security
Agreement under Uniform Commercial Code. (a)  It is the intention
of the parties hereto that this Deed of Trust shall constitute a “security
agreement” within the meaning of the Uniform Commercial Code of the state
of California (the “Code”). If an
Event of Default shall occur and be continuing, then in addition to having any
other right or remedy available at law or in equity, Beneficiary shall have the
option of either (i) proceeding under the Code and exercising such rights
and remedies as may be provided to a secured party by the Code with
respect to all or any portion of the Mortgaged Property which is personal
property (including taking possession of and selling such property) or (ii) treating
such property as real property and proceeding with respect to both the real and
personal property constituting the Mortgaged Property in accordance with
Beneficiary’s rights, powers and remedies with respect to the real property (in
which event the default provisions of the Code shall not apply). If Beneficiary
shall elect to proceed under the Code, then 10 days’ notice of sale of the
personal property shall be deemed reasonable notice and the reasonable expenses
of retaking, holding, preparing for sale, selling and the like incurred by
Beneficiary shall include reasonable, out-of-pocket attorneys’ fees and legal
expenses. At Beneficiary’s request, during the continuance of an Event of
Default, Grantor shall assemble the personal property and make it available to
Beneficiary at a place designated by Beneficiary which is reasonably convenient
to both parties (subject to the terms of any documentation governing any
Permitted Receivables Transaction).


 


(b)                                 Grantor and
Beneficiary agree, to the extent permitted by law, that: (i) all of the
goods described within the definition of the word “Equipment” are or are to
become fixtures on the Real Estate; (ii) this Deed of Trust upon recording
or registration in the real estate records of the proper office shall
constitute a financing statement filed as a “fixture filing” within the meaning
of Division 9 of the Code; (iii) Grantor is the record owner of the Owned
Land; and (iv) the addresses of Grantor and Beneficiary are as set forth
on the first page of this Deed of Trust.


 


18.                                 Assignment
of Rents. (a)  Grantor hereby assigns to Beneficiary the Rents as
further security for the payment of and performance of the Obligations, and
Grantor grants to Beneficiary the right to enter the Mortgaged Property for the
purpose of collecting the same and to let the Mortgaged Property or any part thereof,
and to apply the Rents on account of the Obligations. The foregoing assignment
and grant is present and absolute and shall continue in effect until the
Obligations are fully paid and performed, but Beneficiary hereby waives the
right to enter the Mortgaged Property for the purpose of collecting the Rents
and Grantor shall be entitled to collect, receive, use and retain the Rents
until the occurrence and during the continuance of an Event of Default, such
right of Grantor to collect, receive, use and retain the Rents may be
revoked by Beneficiary upon the occurrence and during the continuance of any
Event of Default under this Deed of Trust by giving not less than 10 days’
written notice of such revocation to Grantor; in the event such notice is
given, Grantor shall pay over to Beneficiary, or to any receiver appointed to
collect the Rents, any lease security deposits, and shall pay monthly


 


10

















 


in advance to Beneficiary,
or to any such receiver, the fair and reasonable rental value as determined by
Beneficiary for the use and occupancy of such part of the Mortgaged
Property as may be in the possession of Grantor or any affiliate of
Grantor, and upon default in any such payment Grantor and any such affiliate
will vacate and surrender the possession of the Mortgaged Property to
Beneficiary or to such receiver, and in default thereof may be evicted by
summary proceedings or otherwise (subject to the terms of any documentation
governing any Permitted Receivables Transaction). Grantor shall not accept
prepayments of installments of Rent to become due for a period of more than one
month in advance (except for security deposits and estimated payments of
percentage rent, if any).


 


(b)                                 Grantor has not
affirmatively done any act which would prevent Beneficiary from, or limit
Beneficiary in, acting under any of the provisions of the foregoing assignment.


 


(c)                                  Except for any
matter disclosed in the Credit Agreement, no action has been brought or, so far
as is known to Grantor, is threatened, which would interfere in any way with
the right of Grantor to execute the foregoing assignment and perform all
of Grantor’s obligations contained in this Section and in the Leases.


 


19.                                 Additional
Rights. The holder of any subordinate lien or subordinate deed of trust on
the Mortgaged Property shall have no right to terminate any Lease whether or
not such Lease is subordinate to this Deed of Trust nor shall Grantor consent
to any holder of any subordinate lien or subordinate deed of trust joining any
tenant under any Lease in any action to foreclose the lien or modify, interfere
with, disturb or terminate the rights of any tenant under any Lease. By
recordation of this Deed of Trust all subordinate lienholders and the
Beneficiaries and beneficiaries under subordinate mortgages are subject to and
notified of this provision, and any action taken by any such lienholder or
beneficiary contrary to this provision shall be null and void. Upon the
occurrence and during the continuance of any Event of Default, Beneficiary may,
in its sole discretion and without regard to the adequacy of its security under
this Deed of Trust, apply all or any part of any amounts on deposit with
Beneficiary under this Deed of Trust against all or any part of the
Obligations. Any such application shall not be construed to cure or waive any
Default or Event of Default or invalidate any act taken by Beneficiary on
account of such Default or Event of Default.


 


20.                                 Notices.
All notices, requests, demands and other communications hereunder shall be
given in accordance with the provisions of subsection 11.2 of the Credit
Agreement to Grantor and to Beneficiary as specified therein.


 


21.                                 No
Oral Modification. This Deed of Trust may not be amended, supplemented
or otherwise modified except in accordance with the provisions of subsection 11.1
of the Credit Agreement. Any agreement made by Grantor and Beneficiary after
the date of this Deed of Trust relating to this Deed of Trust shall be superior
to the rights of the holder of any intervening or subordinate lien or
encumbrance.


 


22.                                 Partial
Invalidity. In the event any one or more of the provisions contained in
this Deed of Trust shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, but each shall be construed as if
such invalid, illegal or unenforceable provision had never been included. Notwithstanding
to the contrary anything contained in this Deed of Trust or in any


 


11

















 


provisions of any Loan
Document, the obligations of Grantor and of any other obligor under any Loan
Documents or with respect to the Euro MTN Obligations shall be subject to the
limitation that Beneficiary shall not charge, take or receive, nor shall
Grantor or any other obligor be obligated to pay to Beneficiary, any amounts
constituting interest in excess of the maximum rate permitted by law to be charged
by Beneficiary.


 


23.                                 Grantor’s
Waiver of Rights. To the fullest extent permitted by law, Grantor waives
the benefit of all laws now existing or that may subsequently be enacted
providing for (a) any appraisement before sale of any portion of the
Mortgaged Property, (b) any extension of the time for the enforcement of
the collection of the Obligations or the creation or extension of a period of
redemption from any sale made in collecting such debt and (c) exemption of
the Mortgaged Property from attachment, levy or sale under execution or
exemption from civil process. To the full extent Grantor may do so,
Grantor agrees that Grantor will not at any time insist upon, plead, claim or
take the benefit or advantage of any law now or hereafter in force providing
for any appraisement, valuation, stay, exemption, extension or redemption, or
requiring foreclosure of this Deed of Trust before exercising any other remedy
granted hereunder and Grantor, for Grantor and its successors and assigns, and
for any and all persons ever claiming any interest in the Mortgaged Property,
to the extent permitted by law, hereby waives and releases all rights of
redemption, valuation, appraisement, stay of execution, notice of election to
mature (except as expressly provided in the Credit Agreement) or declare due
the whole of the secured indebtedness and marshalling in the event of exercise
by Beneficiary of the foreclosure rights, power of sale, or other rights hereby
created.


 


24.                                 Remedies
Not Exclusive. Beneficiary shall be entitled to enforce payment and
performance of the Obligations and to exercise all rights and powers under this
Deed of Trust or under any of the other Loan Documents or other agreement or
any laws now or hereafter in force, notwithstanding some or all of the Obligations
may now or hereafter be otherwise secured, whether by deed of trust,
mortgage, security agreement, pledge, lien, assignment or otherwise. Neither
the acceptance of this Deed of Trust nor its enforcement, shall prejudice or in
any manner affect Beneficiary’s rights to realize upon or enforce any other
security now or hereafter held by Beneficiary, it being agreed that Beneficiary
shall be entitled to enforce this Deed of Trust and any other security now or
hereafter held by Beneficiary in such order and manner as Beneficiary may determine
in its absolute discretion. No remedy herein conferred upon or reserved to
Beneficiary is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given by any of the Loan Documents
to Beneficiary or to which either may otherwise be entitled, may be
exercised, concurrently or independently, from time to time and as often as may be
deemed expedient by Beneficiary, as the case may be. In no event shall
Beneficiary, in the exercise of the remedies provided in this Deed of Trust
(including in connection with the assignment of Rents to Beneficiary, or the
appointment of a receiver and the entry of such receiver on to all or any part of
the Mortgaged Property), be deemed a “Beneficiary in possession,” and
Beneficiary  shall not in any way be made
liable for any act, either of commission or omission, in connection with the
exercise of such remedies.


 


25.                                 Multiple
Security. If (a) the Premises shall consist of one or more parcels,
whether or not contiguous and whether or not located in the same county, or (b) in
addition to this Deed of Trust, Beneficiary shall now or hereafter hold or be
the beneficiary of one or more


 


12

















 


additional mortgages,
liens, deeds of trust or other security (directly or indirectly) for the
Obligations upon other property in the State in which the Premises are located
(whether or not such property is owned by Grantor or by others) or (c) both
the circumstances described in clauses (a) and (b) shall be true,
then to the fullest extent permitted by law, Beneficiary may, at its election,
commence or consolidate in a single foreclosure action all foreclosure
proceedings against all such collateral securing the Obligations (including the
Mortgaged Property), which action may be brought or consolidated in the courts
of, or sale conducted in, any county in which any of such collateral is located.
Grantor acknowledges that the right to maintain a consolidated  foreclosure action is a specific inducement
to Beneficiary to extend the indebtedness borrowed pursuant to or guaranteed by
the Loan Documents, and Grantor expressly and irrevocably waives any objections
to the commencement or consolidation of the foreclosure proceedings in a single
action and any objections to the laying of venue or based on the grounds of forum
non conveniens which it may now or hereafter have. Grantor further agrees
that if Beneficiary shall be prosecuting one or more foreclosure or other
proceedings against a portion of the Mortgaged Property or against any
collateral other than the Mortgaged Property, which collateral directly or
indirectly secures the Obligations, or if Beneficiary shall have obtained a
judgment of foreclosure and sale or similar judgment against such collateral,
then, whether or not such proceedings are being maintained or judgments were
obtained in or outside the State in which the Premises are located, Beneficiary
may commence or continue any 
foreclosure proceedings and exercise its other remedies granted in this
Deed of Trust against all or any part of the Mortgaged Property and
Grantor waives any objections to the commencement or continuation of a
foreclosure of this Deed of Trust or exercise of any other remedies hereunder
based on such other proceedings or judgments, and waives any right to seek to
dismiss, stay, remove, transfer or consolidate either any action under this
Deed of Trust or such other proceedings on such basis. Neither the commencement
nor continuation of proceedings to foreclose this Deed of Trust, nor the
exercise of any other rights hereunder nor the recovery of any judgment by
Beneficiary in any such proceedings or the occurrence of any sale in any such
proceedings shall prejudice, limit or preclude Beneficiary’s right to commence
or continue one or more foreclosure or other proceedings or obtain a judgment
against any other collateral (either in or outside the State in which the
Premises are located) which directly or indirectly secures the Obligations, and
Grantor expressly waives any objections to the commencement of, continuation
of, or entry of a judgment in such other sales or proceedings or exercise of
any remedies in such sales or proceedings based upon any action or judgment
connected to this Deed of Trust, and Grantor also waives any right to seek to
dismiss, stay, remove, transfer or consolidate either such other sales or
proceedings or any sale or action under this Deed of Trust on such basis. It is
expressly understood and agreed that to the fullest extent permitted by law,
Beneficiary may, at its election, cause the sale of all collateral which is the
subject of a single foreclosure action at either a single sale or at multiple
sales conducted simultaneously and take such other measures as are appropriate
in order to effect the agreement of the parties to dispose of and administer
all collateral securing the Obligations (directly or indirectly) in the most
economical and least time-consuming manner.


 


26.                                 Successors
and Assigns. All covenants of Grantor contained in this Deed of Trust are
imposed solely and exclusively for the benefit of Beneficiary, and its
successors and assigns, and no other person or entity shall have standing to
require compliance with such covenants or be deemed, under any circumstances,
to be a beneficiary of such covenants, any or all of which may be freely
waived in whole or in part by Beneficiary at any time if in its sole
discretion it deems such a waiver advisable. All such covenants of Grantor
shall run with the


 


13

















 


land and bind Grantor,
the successors and assigns of Grantor (and each of them) and all subsequent
owners, encumbrancers and tenants of the Mortgaged Property, and shall inure to
the benefit of Beneficiary and its successors and assigns. The word “Grantor”
shall be construed as if it read “Grantors” whenever the sense of this Deed of
Trust so requires and if there shall be more than one Grantor, the obligations
of the Grantors shall be joint and several.


 


27.                                 No Waivers, etc. Any failure by Beneficiary to insist upon
the strict performance by Grantor of any of the terms and provisions of this
Deed of Trust shall not be deemed to be a waiver of any of the terms and
provisions hereof, and Beneficiary, notwithstanding any such failure, shall
have the right thereafter to insist upon the strict performance by Grantor of
any and all of the terms and provisions of this Deed of Trust to be performed
by Grantor. Beneficiary may release, regardless of consideration and
without the necessity for any notice to or consent by the holder of any
subordinate lien on the Mortgaged Property, any part of the security held
for the obligations secured by this Deed of Trust without, as to the remainder
of the security, in any way impairing or affecting the lien of this Deed of
Trust or the priority of such lien over any subordinate lien or deed of trust.


 


28.                                 Governing
Law, etc. This Deed of Trust shall be governed by and construed and
interpreted in accordance with the laws of the State in which the Premises are
located, except that Grantor expressly acknowledges that by their respective
terms the Loan Documents shall be governed and construed in accordance with the
laws of the State of New York, without regard to the conflicts of laws
principles thereof, and for purposes of consistency, Grantor agrees that in any
in personam proceeding related to this Deed of Trust the rights of the parties
to this Deed of Trust shall also be governed by and construed in accordance
with the laws of the State of New York governing contracts made and to be
performed in that State, without regard to the conflicts of laws principles
thereof.


 


29.                                 Certain
Definitions. Unless the context clearly indicates a contrary intent or
unless otherwise specifically provided herein, words used in this Deed of Trust
shall be used interchangeably in singular or plural form and the word “Grantor”
shall mean “each Grantor or any subsequent owner or owners of the Mortgaged
Property or any part thereof or interest therein,” the word “Beneficiary”
shall mean “Beneficiary or any successor Administrative Agent,” the word “person”
shall include any individual, corporation, partnership, limited liability
company, trust, unincorporated association, government, governmental authority,
or other entity, and the words “Mortgaged Property” shall include any portion
of the Mortgaged Property or interest therein. Whenever the context may require,
any pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include
the plural and vice versa. The captions in this Deed of Trust are for
convenience or reference only and in no way limit or amplify the provisions
hereof. The words “include”, “includes” and “including” shall be deemed to be
followed by the phrase without limitation.


 


30.                                 Last
Dollars Secured; Priority. This Deed of Trust secures only a portion of the
indebtedness owing or which may become owing by the Grantor to the Secured
Parties. The parties agree that any payments or repayments of such indebtedness
shall be and be deemed to be applied first to the portion of the indebtedness
that is not secured hereby, it being the parties’ intent that the portion of
the indebtedness last remaining unpaid shall be secured hereby. If at any time
this Deed of Trust shall secure less than all of the principal amount of the
Obligations, it is expressly agreed that any repayments of the principal amount
of the Obligations shall not


 


14

















 


reduce the amount of the
lien of this Deed of Trust until the lien amount shall equal the principal
amount of the Obligations outstanding.


 


31.                                 Release. If any of
the Mortgaged Property shall be sold, transferred or otherwise disposed of by
any Grantor in a transaction permitted by the Credit Agreement, then the
Beneficiary, at the request and sole expense of such Grantor, shall execute and
deliver to such Grantor all releases or other documents reasonably necessary or
desirable for the release of the Liens created hereby on such Mortgaged
Property. The Grantor shall deliver to the Beneficiary, at least 10 Business
Days prior to the date of the proposed release, a written request for release
identifying the sale or other disposition in reasonable detail, including the
price thereof and any expenses in connection therewith, together with a certification
by the Grantor stating that such transaction is in compliance with, and
permitted by, the Credit Agreement and the other Loan Documents.


 


32.                                 Conflict
With Credit Agreement. In the event of any conflict or inconsistency
between the terms and provisions of this Deed of Trust and the terms and
provisions of the Credit Agreement, the terms and provisions of the Credit
Agreement shall govern, other than with respect to the section of this
Deed of Trust captioned “Governing Law, etc.”. By their execution of the Credit
Agreement, each Lender hereby agrees that it shall not have the right to
institute any suit for enforcement of any Note or any other Indebtedness
secured by this Deed of Trust or any other Security Document, if and to the
extent that the institution or prosecution thereof or the entry of judgment
therein would, upon applicable law, result in the surrender, impairment, waiver
or loss of the Lien of this Deed of Trust or any other Security Document or
impede or delay the enforcement of the Lien of this Deed of Trust or any other
Security Document.


 


33.                                 Change
in Tax Law. Upon the
enactment of or change in (including a change in interpretation of) any
applicable law (i) deducting or allowing Grantor to deduct from the value
of the Mortgaged Property for the purpose of taxation any lien or security
interest thereon or (ii) subjecting Beneficiary or any of the Lenders to
any tax or changing the basis of taxation of mortgages, deeds of trust, or
other liens or debts secured thereby, or the manner of collection of such
taxes, in each such case, so as to affect this Deed of Trust, the Obligations
or Beneficiary, and the result is to increase the taxes imposed upon or the
cost to Beneficiary of maintaining the Obligations, or to reduce the amount of
any payments receivable hereunder, then, and in any such event, Grantor shall,
on demand, pay to Beneficiary and the Lenders additional amounts to compensate
for such increased costs or reduced amounts, provided that if any such payment
or reimbursement shall be unlawful, or taxable to Beneficiary, or would
constitute usury or render the Obligations wholly or partially usurious under
applicable law, then Grantor shall pay or reimburse Beneficiary or the Lenders
for payment of the lawful and non-usurious portion thereof.


 


34.                                 Subrogation.
To the extent proceeds of the Loan have been used to extinguish, extend or
renew any indebtedness against the Mortgaged Property, then Beneficiary shall
be subrogated to all of the rights, liens and interests existing against the
Mortgaged Property and held by the holder of such indebtedness and such former
rights, liens and interests, if any, are not waived, but are continued in full
force and effect in favor of Beneficiary.


 


15

















 


35.                                 Beneficiary
as Agent. Beneficiary has been appointed to act as Beneficiary hereunder by
Lenders and, by their acceptance of the benefits hereof, all other Secured
Parties. Beneficiary shall be obligated, and shall have the right hereunder, to
make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action (including the release or
substitution of Mortgaged Property), solely in accordance with this Deed of
Trust and the Credit Agreement; provided, Beneficiary shall exercise, or
refrain from exercising, any remedies provided for herein in accordance with
the instructions of Required Lenders to the extent required pursuant to the
Credit Agreement. In furtherance of the foregoing provisions of this Section,
each Secured Party, by its acceptance of the benefits hereof, agrees that it
shall have no right individually to realize upon any of the Mortgaged Property,
it being understood and agreed by such Secured Party that all rights and
remedies hereunder may be exercised solely by Beneficiary for the benefit
of Lenders and the other Secured Parties in accordance with the terms of this
Section. Beneficiary shall at all times be the same Person that is Collateral
Agent under the Credit Agreement. Written notice of resignation by Collateral
Agent pursuant to terms of the Credit Agreement shall also constitute notice of
resignation as Beneficiary under this Deed of Trust; removal of Collateral
Agent pursuant to the terms of the Credit Agreement shall also constitute
removal as Beneficiary under this Deed of Trust; and appointment of a successor
Collateral Agent pursuant to the terms of the Credit Agreement shall also
constitute appointment of a successor Beneficiary under this Deed of Trust. Upon
the acceptance of any appointment as Collateral Agent under the terms of the
Credit Agreement by a successor Collateral Agent, that successor Collateral
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Beneficiary under this Deed of
Trust, and the retiring or removed Beneficiary under this Deed of Trust shall
promptly (i) transfer to such successor Beneficiary all sums, securities
and other items of Mortgaged Property held hereunder, together with all records
and other documents necessary or appropriate in connection with the performance
of the duties of the successor Beneficiary under this Deed of Trust, and (ii) execute
and deliver to such successor Beneficiary such amendments to financing
statements, and take such other actions, as may be necessary or
appropriate in connection with the assignment to such successor Beneficiary of
the security interests created hereunder, whereupon such retiring or removed
Beneficiary shall be discharged from its duties and obligations under this Deed
of Trust thereafter accruing. After any retiring or removed Collateral Agent’s
resignation or removal hereunder as Beneficiary, the provisions of this Deed of
Trust shall continue to enure to its benefit as to any actions taken or omitted
to be taken by it under this Deed of Trust while it was Beneficiary hereunder.


 


36.                                 Intercreditor
Agreements. Notwithstanding anything to the contrary contained herein, the
lien and security interest granted to Beneficiary pursuant to this Deed of
Trust and the exercise of any right or remedy by Beneficiary hereunder are
subject to the provisions of the Intercreditor Agreement. In the event of any
conflict between the terms and provisions of the Intercreditor Agreement and
the terms and provisions of this Deed of Trust, the terms and provisions of the
Intercreditor Agreement shall govern and control.


 


37.                                 State
Specific Provisions. [To be added]


 


38.                                 Rights
and Responsibilities of Trustee; Other Provisions Relating to Trustee. Notwithstanding
anything to the contrary in this Deed of Trust, Grantor and Beneficiary agree
as follows:


 


16

















 


(a)                                  Exercise of
Remedies by Trustee. To the extent that this Deed of Trust or
applicable law authorizes or empowers Beneficiary to exercise any remedies set
forth in Section 13 hereof or otherwise, or perform any acts in
connection therewith, Trustee (but not to the exclusion of Beneficiary unless
so required under the law of the State) shall have the power to exercise any or
all such remedies, and to perform any acts provided for in this Deed of
Trust in connection therewith, all for the benefit of Beneficiary and on
Beneficiary’s behalf in accordance with applicable law of the State. In
connection therewith, Trustee: (i) shall not exercise, or waive the
exercise of, any Beneficiary’s remedies (other than any rights of Trustee to
any indemnity or reimbursement), except at Beneficiary’s request, and (ii) shall
exercise, or waive the exercise of, any or all of Beneficiary’s remedies at
Beneficiary’s request, and in accordance with Beneficiary’s directions as to
the manner of such exercise or waiver. Trustee may, however, decline to follow
Beneficiary’s request or direction if Trustee shall be advised by counsel that
the action or proceeding, or manner thereof, so directed may not lawfully
be taken or waived.


 


(b)                                 Rights and
Privileges of Trustee. To the extent that this Deed of Trust
requires Grantor to reimburse Beneficiary for any expenditures Beneficiary may incur,
Trustee shall be entitled to the same rights to reimbursement of expenses as
Beneficiary, subject to such limitations and conditions as would apply in the
case of Beneficiary. To the extent that this Deed of Trust negates or limits
Beneficiary’s liability as to any matter, Trustee shall be entitled to the same
negation or limitation of liability. To the extent that Grantor, pursuant to
this Deed of Trust, appoints Beneficiary as Grantor’s attorney in fact for any
purpose, Beneficiary or (when so instructed by Beneficiary) Trustee shall be
entitled to act on Grantor’s behalf without joinder or confirmation by the
other.


 


(c)                                  Intentionally
Deleted.


 


(d)                                 Authority of
Beneficiary. If Beneficiary is a banking corporation, state
banking corporation or a national banking association and the instrument of
appointment of any successor or replacement Trustee is executed on Beneficiary’s
behalf by an officer of such corporation, state banking corporation or national
banking association, then such appointment may be executed by any
authorized officer or agent of Beneficiary and such appointment shall be
conclusively presumed to be executed with authority and shall be valid and
sufficient without proof of any action by the board of directors or any superior
officer of Beneficiary.


 


(e)                                  Effect of
Appointment of Successor Trustee. Upon the appointment and
designation of any successor, substitute or replacement Trustee, Trustee’s
entire estate and title in the Mortgaged Property shall vest in the designated
successor, substitute or replacement Trustee. Such successor, substitute or
replacement Trustee shall thereupon succeed to and shall hold, possess and
execute all the rights, powers, privileges, immunities and duties herein
conferred upon Trustee. All references herein to Trustee shall be deemed to
refer to Trustee (including any successor or substitute appointed and
designated as herein provided) from time to time acting hereunder.


 


(f)                                    Confirmation of
Transfer and Succession. Any new Trustee appointed pursuant to any
of the provisions hereof shall, without any further act, deed or conveyance,
become vested with all the estates, properties, rights, powers and trusts of
his predecessor in the rights hereunder with like effect as if originally named
as Trustee herein; but nevertheless, upon


 


17

















 


the
written request of Beneficiary or of any successor, substitute or replacement
Trustee, any former Trustee ceasing to act shall execute and deliver an
instrument transferring to such successor, substitute or replacement Trustee
all of the right, title, estate and interest in the Mortgaged Property of
Trustee so ceasing to act, together with all the rights, powers, privileges,
immunities and duties herein conferred upon Trustee, and shall duly assign,
transfer and deliver all properties and moneys held by said Trustee hereunder
to said successor, substitute or replacement Trustee.


 


(g)                                 Exculpation. Trustee shall
not be liable for any error of judgment or act done by Trustee in good faith,
or otherwise be responsible or accountable under any circumstances whatsoever,
except for Trustee’s gross negligence, willful misconduct or knowing violation
of law. Trustee shall not be personally liable in case of entry by him, or
anyone entering by virtue of the powers herein granted him, upon the Mortgaged
Property for debts contracted or liability or damages incurred in the
management or operation of the Mortgaged Property. Trustee shall have the right
to rely on any instrument, document or signature authorizing or supporting any
action taken or proposed to be taken by it hereunder, believed by it in good
faith to be genuine. All moneys received by Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated in any manner from any other moneys
(except to the extent required by law). Trustee shall be under no liability for
interest on any moneys received by it hereunder.


 


(h)                                 Endorsement and
Execution of Documents. Upon Beneficiary’s written request, Trustee
shall, without liability or notice to Grantor, execute, consent to, or join in
any instrument or agreement in connection with or necessary to effectuate the
purposes of the Credit Documents (as defined in the Intercreditor Agreement). Grantor
hereby irrevocably designates Trustee as its attorney in fact to execute,
acknowledge and deliver, on Grantor’s behalf and in Grantor’s name, all
instruments or agreements necessary to implement any provision(s) of this Deed
of Trust or to further perfect the lien created by this Deed of Trust on the
Mortgaged Property. This power of attorney shall be deemed to be coupled with
an interest and shall survive any disability of Grantor.


 


(i)                                     Multiple
Trustees. If Beneficiary appoints multiple trustees, then
any Trustee, individually, may exercise all powers granted to Trustee
under this instrument, without the need for action by any other Trustee(s).


 


(j)                                     No Required
Action. Trustee shall not be required to take any action under this Deed of
Trust or to institute, appear in or defend any action, suit or other proceeding
in connection therewith where in his opinion such action will be likely to
involve him in expense or liability, unless requested so to do by a written instrument
signed by Beneficiary and, if Trustee so requests, unless Trustee is tendered
security and indemnity satisfactory to him against any and all costs, expense
and liabilities arising therefrom. Trustee shall not be responsible for the
execution, acknowledgment or validity of the Credit Documents (as defined in
the Intercreditor Agreement), or for the proper authorization thereof, or for
the sufficiency of the lien and security interest purported to be created
hereby, and makes no representation in respect thereof or in respect of the
rights, remedies and recourses of Beneficiary.


 


(k)                                  Terms of
Trustee’s Acceptance. Trustee accepts the trust created by this Deed of
Trust upon the following terms and conditions:


 


18

















 


(i)                                     Delegation. Trustee may exercise
any of its powers through appointment of attorney(s) in fact or agents.


 


(ii)                                  Security. Trustee shall
be under no obligation to take any action upon any Event of Default unless
furnished security or indemnity, in form satisfactory to Trustee, against
costs, expenses, and liabilities that Trustee may incur.


 


(iii)                               Costs and
Expenses. Grantor shall reimburse Trustee, as part of
the Loan Obligations secured hereunder, for all reasonable disbursements and
expenses (including reasonable legal fees and expenses) incurred by reason of
or arising from an Actionable Default and as provided for in this Deed of
Trust, including any of the foregoing incurred in Trustee’s administering and
executing the trust created by this Deed of Trust and performing Trustee’s
duties and exercising Trustee’s powers under this Deed of Trust


 


[SIGNATURE PAGE FOLLOWS]


 


19

















 


This
Deed of Trust has been duly executed by the undersigned and is intended to be
effective as the date first above written.


 


 


	
   

  	
   

  	
  THE HERTZ CORPORATION,

  
	
   

  	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Harold E. Rolfe

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Harold E. Rolfe

  
	
   

  	
   

  	
   

  	
  Title: Senior Vice President,

  General Counsel and Secretary

  



 


20

















 


NOTARY
ACKNOWLEDGMENT


 


STATE
OF New York                }ss


COUNTY
OF New York           }


 


On
12/19/05, before me, Beverly Bruno, a Notary Public in and for said State,
personally appeared Harold E. Rolfe, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which
the person(s) acted, executed the instrument.


 


WITNESS
my hand and official seal.


 


	
  Signature

  
	
   

  
	
  /s/ Beverly Bruno

  	
   

  
	
  Beverly Bruno

  	
   

  



Notary
Public, State of New York


No.
31-4959464


Qualified
in New York County


Commission
Expires Feb 26, 06


(This area for official
notarial seal)


 


i