Exhibit 4.9.11


 


AMENDED AND
RESTATED COLLATERAL AGENCY AGREEMENT


 


among


 


HERTZ VEHICLE
FINANCING LLC,

as a grantor,


 


HERTZ GENERAL
INTEREST LLC,

as a grantor,


 


THE HERTZ
CORPORATION,

as Servicer,


 


THE HERTZ
CORPORATION,

as a secured party,


 


BNY MIDWEST
TRUST COMPANY

as a secured party,

not in its individual capacity but solely

as Trustee,


 


and


 


BNY MIDWEST
TRUST COMPANY

not in its individual capacity but solely

as Collateral Agent,


 


Dated as of December 21, 2005


 

















 


Table of Contents


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I CERTAIN
  DEFINITIONS

  	
  3

  
	
   

  	
   

  
	
   

  	
  SECTION
  1.1.   Certain Definitions

  	
  3

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  1.2.   Interpretation and Construction

  	
  3

  
	
   

  	
   

  
	
  ARTICLE II COLLATERAL
  AGENT AS LIENHOLDER FOR THE SECURED PARTIES

  	
  3

  
	
   

  	
   

  
	
   

  	
  SECTION
  2.1.   Security Interest

  	
  3

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  2.2.   Designation of HVF Vehicles and HGI Vehicles

  	
  8

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  2.3.   Redesignation of Vehicles

  	
  8

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  2.4.   Servicer’s Fleet Reports

  	
  9

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  2.5.   Collateral Account

  	
  9

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  2.6.   Certificates of Title

  	
  12

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  2.7.   Release of Collateral

  	
  13

  
	
   

  	
   

  
	
  ARTICLE III THE SERVICER

  	
  14

  
	
   

  	
   

  
	
   

  	
  SECTION
  3.1.   Acceptance of Appointment

  	
  14

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  3.2.   Servicer Functions

  	
  14

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  3.3.   The Servicer Not to Resign

  	
  14

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  3.4.   Servicing Rights of Collateral Agent

  	
  14

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  3.5.   Incumbency Certificate

  	
  15

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  3.6.   Effective Period and Termination.

  	
  15

  
	
   

  	
   

  
	
  ARTICLE IV
  REPRESENTATIONS, WARRANTIES AND COVENANTS

  	
  15

  
	
   

  	
   

  
	
   

  	
  SECTION
  4.1.   Representations and Warranties of the Grantors.

  	
  15

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  4.2.   Representations and Warranties of the Servicer.

  	
  16

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  4.3.   Covenants of Grantors

  	
  17

  
	
   

  	
   

  
	
  ARTICLE V THE COLLATERAL
  AGENT

  	
  18

  



 

















 


	
   

  	
  SECTION
  5.1.   Appointment

  	
  18

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  5.2.   Representations

  	
  18

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  5.3.   Exculpatory Provisions

  	
  19

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  5.4.   Limitations on Duties of the Collateral Agent

  	
  19

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  5.5.   Resignation and Removal of Collateral Agent

  	
  21

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  5.6.   Qualification of Successors to Collateral Agent

  	
  22

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  5.7.   Merger of the Collateral Agent

  	
  23

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  5.8.   Compensation and Expenses

  	
  23

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  5.9.   Stamp, Other Similar Taxes and Filing Fees

  	
  23

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  5.10.   Indemnification

  	
  23

  
	
   

  	
   

  
	
  ARTICLE VI MISCELLANEOUS

  	
  24

  
	
   

  	
   

  
	
   

  	
  SECTION
  6.1.   Amendments, Supplements and Waivers

  	
  24

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.2.   Notices

  	
  25

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.3.   Headings

  	
  25

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.4.   Severability

  	
  25

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.5.   Counterparts

  	
  25

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.6.   Binding Effect

  	
  25

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.7.   Governing Law

  	
  25

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.8.   Effectiveness

  	
  25

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.9.   Termination of this Agreement

  	
  26

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.10.   No Bankruptcy Petition Against the Grantors

  	
  26

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.11.   No Waiver; Cumulative Remedies

  	
  26

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.12.   Submission To Jurisdiction; Waivers.

  	
  26

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION 6.13.  
  Waiver of Jury Trial

  	
  27

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.14.   Insurance Notification

  	
  27

  



 

















 


	
   

  	
  SECTION
  6.15.   Waiver of Set-Off With Respect to the Grantors

  	
  27

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.16.   Confidentiality

  	
  27

  
	
   

  	
   

  	
   

  
	
   

  	
  SECTION
  6.17.   No Recourse

  	
  28

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
  Exhibit A

  	
  Servicer’s Fleet Report

  	
   

  
	
  Exhibit B

  	
  Power of Attorney

  	
   

  
				



 

















 


COLLATERAL
AGENCY AGREEMENT


 


THIS
AMENDED AND RESTATED COLLATERAL AGENCY AGREEMENT, dated as of December 21, 2005 (as the same
may be amended, supplemented, restated or otherwise modified from time to time
in accordance with the terms hereof, this “Agreement”), among HERTZ
VEHICLE FINANCING LLC, a Delaware limited liability company (“HVF”), and
HERTZ GENERAL INTEREST LLC, a Delaware limited liability company (“HGI”),
as grantors (each a “Grantor”), THE HERTZ CORPORATION, a Delaware
corporation (“Hertz”), as Servicer (in such capacity, the “Servicer”),
THE HERTZ CORPORATION, as a secured party (the “HGI Secured Party”), and
BNY MIDWEST TRUST COMPANY, an Illinois trust company (not in its individual
capacity but solely as Trustee on behalf of the Noteholders under the
Indenture), as a secured party (the “HVF Secured Party” and, together
with the HGI Secured Party, the “Secured Parties”) and BNY MIDWEST TRUST
COMPANY, as collateral agent for the Secured Parties (in such capacity, the “Collateral
Agent”).


 


W I T N E S S E T H:


 


WHEREAS,
HVF, HGI, Hertz, the Trustee and the Collateral Agent entered into a Collateral
Agency Agreement dated as of September 18, 2002, as amended pursuant to
Amendment No. 1 to the Collateral Agency Agreement dated as of March 31,
2004 (the “Prior Agreement”);


 


WHEREAS,
HVF, HGI, HERTZ, the Trustee and the Collateral Agent desire to amend and
restate the Prior Agreement in its entirety as herein set forth;


 


WHEREAS,
HVF owns and will from time to time acquire Vehicles and lease the HVF Vehicles
to Hertz for use in Hertz’s daily domestic rental operations and, in certain
circumstances, for use by Hertz’s and Hertz Equipment Rental Corporation’s
employees, in each case pursuant to the HVF Lease;


 


WHEREAS,
HVF will finance certain of the HVF Vehicles by issuing Series of Notes
pursuant to that certain Amended and Restated Base Indenture dated as of December 21, 2005 between HVF
and BNY Midwest Trust Company, as trustee (as such Amended and Restated Base
Indenture may be amended, supplemented, restated or otherwise modified from
time to time in accordance with its terms, the “Base Indenture”);


 


WHEREAS,
HGI owns and will from time to time acquire Vehicles and lease the HGI Vehicles
to Hertz for use in Hertz’s daily domestic rental operations and, in certain
circumstances, for use by Hertz’s and Hertz Equipment Rental Corporation’s
employees, in each case pursuant to the HGI Lease;


 


WHEREAS,
pursuant to the HGI Credit Facility, Hertz has agreed to make extensions of
credit to HGI upon the terms and subject to the conditions set forth therein in
order to finance Vehicles;


 


2

















 


WHEREAS,
BNY Midwest Trust Company has agreed to act as Collateral Agent on behalf of
the Secured Parties, and in its capacity as Collateral Agent to be named as
lienholder on the Certificates of Title for the Vehicles for the benefit of the
Secured Parties;


 


NOW,
THEREFORE, in consideration of the premises and to induce the Trustee to enter
into the Base Indenture and, as a condition precedent to the issuance of any
Series of Notes thereunder, HVF hereby agrees with the Collateral Agent for the
benefit of the HVF Secured Party, and to induce Hertz to extend credit to HGI under
the Hertz Credit Facility, HGI hereby agrees with the Collateral Agent for the
benefit of HGI Secured Party as follows:


 


ARTICLE I



CERTAIN DEFINITIONS


 


SECTION 1.1. Certain
Definitions. Unless otherwise specified herein, capitalized terms used
herein (including the preamble and the recitals hereto) shall have the meanings
assigned to such terms in the Definitions List attached as Schedule I to the
Base Indenture as such Definitions List may be amended or modified from time to
time in accordance with the provisions of the Base Indenture, except that, for
purposes of this Agreement only, the term Related Documents shall be deemed to
include the HGI Lease and the HGI Credit Facility.


 


SECTION 1.2. Interpretation
and Construction. Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, to the singular
include the plural and to the part include the whole. The words “hereof”, “herein”,
“hereunder” and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. Unless otherwise
stated in this Agreement, in the computation of a period of time from a
specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each means “to but excluding”. Sections
and other headings contained in this Agreement are for reference purposes only
and shall not control or affect the construction of this Agreement or the
interpretation hereof in any respect. Section, subsection and exhibit
references are to this Agreement unless otherwise specified. As used in this
Agreement, the masculine, feminine or neuter gender shall each be deemed to
include the others whenever the context so indicates.


 


ARTICLE II



COLLATERAL AGENT AS LIENHOLDER

FOR THE SECURED PARTIES


 


SECTION 2.1. Security
Interest. (a)  Grant by HVF. As
security for the payment of the Note Obligations from time to time owing by HVF
under the Indenture, HVF hereby grants, pledges and assigns to the Collateral
Agent for the benefit of the HVF Secured Party a security interest in all
right, title and interest of HVF in, to and under the following, whether now
existing or hereafter acquired (the “HVF Vehicle Collateral”):


 


(i) all HVF Vehicles and all Certificates of Title with respect
thereto;


 


3

















 


(ii) all Manufacturer Programs as they relate to the HVF Vehicles and
all monies due and to become due in respect of the HVF Vehicles from the
Manufacturers under or in connection with the Manufacturer Programs (other than
Excluded Payments) whether payable as vehicle repurchase prices, auction
prices, auction sales proceeds, guaranteed depreciation payments, incentive
payments in respect of sales of Program Vehicles outside of the related
Manufacturer Programs, fees, expenses, costs, indemnities, insurance
recoveries, damages for breach of the Manufacturer Programs or otherwise and
all rights to compel performance and otherwise exercise remedies thereunder;


 


(iii) the Assignment Agreements as they relate to the HVF Vehicles,
including, without limitation, all rights, remedies, powers, privileges and
claims of HVF against any other party under or with respect to the Assignment
Agreements as they relate to the HVF Vehicles (whether arising pursuant to the
terms of the Assignment Agreements or otherwise available to HVF at law or in
equity), and the right to enforce any of the Assignment Agreements as they
relate to the HVF Vehicles and to give or withhold any and all consents, requests,
notices, directions, approvals, extensions or waivers under or with respect to
the Assignment Agreements or the obligations of any party thereunder;


 


(iv) the Nominee Agreement as it relates to the HVF Vehicles,
including, without limitation, all rights, remedies, powers, privileges and
claims of HVF against any other party under or with respect to the Nominee
Agreement as it relates to the HVF Vehicles (whether arising pursuant to the
terms of the Nominee Agreement or otherwise available to HVF at law or in
equity), and the right to enforce the Nominee Agreement as it relates to the
HVF Vehicles and to give or withhold any and all consents, requests, notices,
directions, approvals, extensions or waivers under or with respect to the
Nominee Agreement or the obligations of any party thereunder;


 


(v) the Hertz Nominee Agreement as it relates to the HVF Vehicles,
including, without limitation, all rights, remedies, powers, privileges and
claims of HVF against any other party under or with respect to the Hertz
Nominee Agreement as it relates to the HVF Vehicles (whether arising pursuant
to the terms of the Hertz Nominee Agreement or otherwise available to HVF at
law or in equity), and the right to enforce the Hertz Nominee Agreement as it
relates to the HVF Vehicles and to give or withhold any and all consents,
requests, notices, directions, approvals, extensions or waivers under or with
respect to the Hertz Nominee Agreement or the obligations of any party
thereunder;


 


(vi) the HFC Nominee Agreement as it relates to the HVF Vehicles,
including, without limitation, all rights, remedies, powers, privileges and
claims of HVF against any other party under or with respect to the Hertz
Nominee Agreement as it relates to the HVF Vehicles (whether arising pursuant
to the terms of the HFC Nominee Agreement or otherwise available to HVF at law
or in equity), and the right to enforce the HFC Nominee Agreement as it relates
to the HVF Vehicles and to give or withhold any and all consents, requests,
notices, 


 


4

















 


directions,
approvals, extensions or waivers under or with respect to the HFC Nominee
Agreement or the obligations of any party thereunder;


 


(vii) all sale or other proceeds from the disposition of HVF Vehicles,
including all monies due in respect of the HVF Vehicles, whether payable as the
purchase price of such Vehicles, or as related fees, expenses, costs,
indemnities, insurance recoveries, or otherwise;


 


(viii) all payments and claims under insurance policies (whether or not
the Collateral Agent or the HVF Secured Party is named as the loss payee
thereof) or any warranty payable by reason of loss or damage to, or otherwise
with respect to, any of the HVF Vehicles;


 


(ix) the Collateral Accounts, all monies on deposit from time to time
in the Collateral Accounts constituting proceeds from the disposition of or
otherwise arising from, related to or in respect of HVF Vehicles, and all
proceeds thereof;


 


(x) the Master Exchange Agreement and the Escrow Agreement as they
relate to HVF and all monies due and to become due to HVF thereunder, whether
payable by the Intermediary to HVF from the accounts maintained pursuant to the
Escrow Agreement or payable as damages for breach of the Master Exchange
Agreement, the Escrow Agreement or otherwise and all rights to compel
performance and otherwise exercise remedies thereunder, including, without
limitation, all rights, remedies, powers, privileges and claims of HVF against
any other party under or with respect to the Master Exchange Agreement and the
Escrow Agreement (whether arising pursuant to the terms of the Master Exchange
Agreement or the Escrow Agreement or otherwise available to HVF at law or in
equity), and the right to enforce the Master Exchange Agreement and the Escrow
Agreement and to give or withhold any and all consents, requests, notices,
directions, approvals, extensions or waivers under or with respect to the
Master Exchange Agreement or the Escrow Agreement or the obligations of  any party thereunder; provided, however, that
in the case of any funds held in the accounts maintained pursuant to the Escrow
Agreement that constitute Relinquished Property Proceeds, such funds shall not
constitute HVF Vehicle Collateral unless such funds are or become Additional Subsidies;
and


 


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


 


(b)  Grant by HGI. As security for the payment
of the unpaid principal of and interest on all loans made to HGI under the HGI
Credit Facility and all other obligations and liabilities of HGI from time to
time owing by HGI to Hertz thereunder, HGI hereby grants, pledges and assigns
to the Collateral Agent for the benefit of HGI Secured Party, a security
interest in all right, title and interest of HGI in, to and under the
following, whether now existing or hereafter acquired (the “HGI Vehicle
Collateral” and together with the HVF Vehicle Collateral, the “Vehicle
Collateral”):


 


5

















 


(i) all HGI Vehicles and all Certificates of Title with respect
thereto;


 


(ii) all Manufacturer Programs as they relate to the HGI Vehicles and
all monies due and to become due in respect of the HGI Vehicles from the
Manufacturers under or in connection with the Manufacturer Programs (other than
Excluded Payments) whether payable as vehicle repurchase prices, auction
prices, auction sales proceeds, guaranteed depreciation payments, incentive
payments in respect of sales of Program Vehicles outside of the related
Manufacturer Programs, fees, expenses, costs, indemnities, insurance
recoveries, damages for breach of the Manufacturer Programs or otherwise and
all rights to compel performance and otherwise exercise remedies thereunder;


 


(iii) the Assignment Agreements as they relate to the HGI Vehicles,
including, without limitation, all rights, remedies, powers, privileges and
claims of HGI against any other party under or with respect to the Assignment
Agreements as they relate to the HGI Vehicles (whether arising pursuant to the
terms of the Assignment Agreements or otherwise available to HGI at law or in
equity), and the right to enforce any of the Assignment Agreements as they relate
to the HGI Vehicles and to give or withhold any and all consents, requests,
notices, directions, approvals, extensions or waivers under or with respect to
the Assignment Agreements or the obligations of any party thereunder;


 


(iv) the Nominee Agreement as it relates to the HGI Vehicles,
including, without limitation, all rights, remedies, powers, privileges and
claims of HGI against any other party under or with respect to the Nominee
Agreement as it relates to the HGI Vehicles (whether arising pursuant to the
terms of the Nominee Agreement or otherwise available to HGI at law or in
equity), and the right to enforce the Nominee Agreement as it relates to the
HGI Vehicles and to give or withhold any and all consents, requests, notices,
directions, approvals, extensions or waivers under or with respect to the
Nominee Agreement or the obligations of any party thereunder;


 


(v) all sale or other proceeds from the disposition of HGI Vehicles,
including all monies due in respect of the HGI Vehicles, whether payable as the
purchase price of such Vehicles, or as related fees, expenses, costs,
indemnities, insurance recoveries, or otherwise;


 


(vi) all payments and claims under insurance policies or any warranty
payable by reason of loss or damage to, or otherwise with respect to, any of
the HGI Vehicles;


 


(vii) the Collateral Accounts, all monies on deposit from time to time
in the Collateral Accounts constituting proceeds from the disposition of or
otherwise arising from, related to or in respect of HGI Vehicles, and all
proceeds thereof;


 


(viii) the Master Exchange Agreement and the Escrow Agreement as they
relate to HGI and all monies due and to become due to HGI thereunder, whether 


 


6

















 


payable by the
Intermediary to HGI from the accounts maintained pursuant to the Escrow
Agreement or payable as damages for breach of the Master Exchange Agreement,
the Escrow Agreement or otherwise and all rights to compel performance and
otherwise exercise remedies thereunder, including, without limitation, all
rights, remedies, powers, privileges and claims of HGI against any other party
under or with respect to the Master Exchange Agreement and the Escrow Agreement
(whether arising pursuant to the terms of the Master Exchange Agreement or the
Escrow Agreement or otherwise available to HGI at law or in equity), and the
right to enforce the Master Exchange Agreement and the Escrow Agreement and to
give or withhold any and all consents, requests, notices, directions,
approvals, extensions or waivers under or with respect to the Master Exchange
Agreement or the Escrow Agreement or the obligations of  any party thereunder; provided, however, that
in the case of any funds held in the accounts maintained pursuant to the Escrow
Agreement that constitute Relinquished Property Proceeds, such funds shall not
constitute HGI Vehicle Collateral unless such funds are or become Additional
Subsidies; and


 


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


 


Each Grantor
and each Secured Party hereby authorizes the Collateral Agent to be named as
the first lienholder on the Certificates of Title for the Vehicles (other than
the Initial Hertz Vehicles and the Service Vehicles), in a representative
capacity, as Collateral Agent for the Secured Parties. The Collateral Agent
agrees that all of its right, title and interest in and to the Vehicle
Collateral shall be solely for the respective benefit of each Secured Party. Each
Secured Party hereby directs the Collateral Agent to execute and deliver as of
the date set forth therein in its capacity as Collateral Agent hereunder each
Assignment Agreement hereafter entered into by the Grantors.


 


(c)  Notwithstanding the assignment and security
interest so granted to the Collateral Agent on behalf of the Secured Parties
pursuant to subsections (a) and (b) above, each Grantor shall
nevertheless be permitted, subject to the Collateral Agent’s right to revoke
such permission with respect to HVF in the event of an Amortization Event with
respect to any Series of Notes Outstanding and to revoke such permission with
respect to HGI in the event of an Event of Default under the HGI Credit
Facility, to give all consents, requests, notices, directions, approvals,
extensions or waivers, if any, which are required to be given in the normal
course of business in connection with the Vehicles or any Collateral Agreement
(which does not include waivers of default under any of the Collateral
Agreements or any of the Manufacturer Programs).


 


(d)  The HVF Secured Party hereby agrees that it
shall be entitled to the benefits of this Agreement only with respect to the
HVF Vehicles and the other HVF Vehicle Collateral. The HVF Secured Party hereby
acknowledges that it shall have no interest in (i) any HGI Vehicle, (ii) any
funds in a Collateral Account that are proceeds of any HGI Vehicle, (iii) any
rights under any Manufacturer Program with respect to any HGI Vehicle or (iv)
any other portion of the HGI Vehicle Collateral, in each case regardless of the
time, order, manner or nature of attachment or perfection of security interests
in the Vehicles (including the giving of or 


 


7

















 


failure to give any purchase money security interest or other notice,
or the order of filing financing statements), or any provision of the UCC, the
Bankruptcy Code, or other applicable law.


 


(e)  The HGI Secured Party hereby agrees that it
shall be entitled to the benefits of this Agreement only with respect to the
HGI Vehicles and the other HGI Vehicle Collateral. The HGI Secured Party hereby
acknowledges that it shall have no interest in (i) any HVF Vehicle, (ii) any
funds in a Collateral Account that are proceeds of any HVF Vehicle, (iii) any
rights under any Manufacturer Program with respect to any HVF Vehicle or (iv)
any other portion of the HVF Vehicle Collateral, in each case regardless of the
time, order, manner or nature of attachment or perfection of security interests
in the Vehicles (including the giving of or failure to give any purchase money
security interest or other notice, or the order of filing financing
statements), or any provision of the UCC, the Bankruptcy Code, or other
applicable law.


 


SECTION 2.2. Designation
of HVF Vehicles and HGI Vehicles. The Servicer shall identify on its
computer system all Vehicles subject to the HVF Lease as HVF Vehicles and all
Vehicles subject to the HGI Lease as HGI Vehicles. The designation of the
Vehicles as HVF Vehicles and HGI Vehicles on the Servicer’s computer system
shall be considered prima facie evidence of the HVF Secured Party’s rights with
respect to the HVF Vehicles and the other HVF Vehicle Collateral and the HGI
Secured Party’s rights with respect to the HGI Vehicles and the other HGI
Vehicle Collateral. If at any time a Secured Party reasonably believes that
such designation by the Servicer is incorrect, it may dispute (the “disputing
Secured Party”) such designation by delivering a written notice to each of
the Servicer and the Collateral Agent setting forth its claim as to the correct
designation of a HVF Vehicle or HGI Vehicle, as the case may be (each a “redesignation”).
The Servicer shall, promptly upon receipt of such notice, distribute a copy
thereof to each Grantor and the other Secured Party (the “non-disputing
Secured Party”). The non-disputing Secured Party shall, within ten (10)
Business Days of receipt of such notice from the Servicer, notify each of the
Servicer and the Collateral Agent in writing as to whether it consents to the
disputing Secured Party’s redesignation. If the Servicer and the Collateral
Agent receive written notice from the non-disputing Secured Party consenting to
the disputing Secured Party’s redesignation within the period set forth above,
the Servicer shall promptly effect such redesignation.


 


SECTION 2.3. Redesignation
of Vehicles. From time to time (i) HGI may sell New HVF Vehicles to HVF
pursuant to Section 1.05 of the Purchase Agreement, (ii) HGI may sell
Transferred HGI Vehicles to HVF pursuant to Section 1.07 of the Purchase
Agreement and (iii) HVF may sell Transferred HVF Vehicles to HGI pursuant to
Section 1.07 of the Purchase Agreement. On the effective date of any such sale,
upon the satisfaction of the conditions to the effectiveness of such sale under
the Purchase Agreement, the Servicer shall redesignate on its computer systems
such New HVF Vehicles as HVF Vehicles, such Transferred HGI Vehicles as HVF
Vehicles or such Transferred HVF Vehicles as HGI Vehicles, as the case may be. The
Servicer shall redesignate each Vehicle on its computer systems at the then
current Net Book Value of such Vehicle. Except as otherwise provided in Section
2.5(d), (i) the HVF Secured Party hereby acknowledges that it shall have no
interest in any Vehicle or other related Vehicle Collateral after such Vehicle
has been redesignated as a HGI Vehicle in accordance with the terms of this
Section 2.3 and that any such redesignation shall automatically constitute a
release 


 


8

















 


by the HVF Secured Party of any interest therein and (ii) the HGI
Secured Party hereby acknowledges that it shall have no interest in any Vehicle
or other related Vehicle Collateral after such Vehicle has been redesignated as
a HVF Vehicle in accordance with the terms of this Section 2.3 and that any
such redesignation shall automatically constitute a release by the HGI Secured
Party of any interest therein.


 


SECTION 2.4. Servicer’s
Fleet Reports. On or prior to each Determination Date, the Servicer shall
furnish or cause to be furnished to the Collateral Agent a report (which may be
on diskette or other electronic medium reasonably acceptable to the Collateral
Agent) substantially in the form of Exhibit A (each such report, a “Fleet
Report”), (i) identifying the HVF Vehicles (and as subsets thereof, each
of the Initial Hertz Vehicles and the Service Vehicles) and the HGI Vehicles
separately, as of the last day of the Related Month, (ii) listing each
Vehicle by the VIN with respect to such Vehicle, (iii) identifying the
date of the original purchase of each such Vehicle, (iv) identifying
whether each such Vehicle is a Program Vehicle or a Non-Program Vehicle, (v) showing,
as of the last day of the Related Month, the Capitalized Cost and the Net Book
Value of each such Vehicle, (vi) identifying the state in which each such
Vehicle is titled, (vii) providing a list of all locations in which the
Certificates of Title for the Vehicles are held by the Servicer or Servicer’s
Agents as of such date, (viii) providing the name and address of all
Servicer’s Agents as of such date and (ix) providing on a confidential basis
(A) the actual mileage of each Vehicle as of its last check-in, (B) the date of
the last check-in of each Vehicle, (C) if the Vehicle is a Program Vehicle, the
total mileage per the related Manufacturer Program, (D) the Minimum Term
specified in each Manufacturer Program and (E) the Maximum Term specified in
each Manufacturer Program.


 


(a)  The Collateral Agent shall make the most
recent Fleet Report available for inspection by any Secured Party at the
Corporate Trust Office, during normal business hours, upon such Secured Party’s
prior written request.


 


(b)  On each Business Day commencing on the
Initial Closing Date, the Servicer shall prepare and maintain a report
identifying the HVF Vehicles and the HGI Vehicles separately by the VIN with
respect to each such Vehicle as of the close of business on the immediately
preceding Business Day, and shall deliver such report to HGI and HVF upon their
request.


 


(c)  For so long as a Liquidation Event of Default
or a Limited Liquidation Event of Default has occurred and is continuing, the
Servicer shall furnish or cause to be furnished to HVF on a weekly basis a
report (which may be on diskette or other electronic medium) that contains the
data set forth in a Fleet Report, but determined on a weekly basis, and HVF
shall furnish or cause to be furnished to each HVF Secured Party such weekly
Fleet Report.


 


SECTION 2.5. Collateral
Accounts. i)The Collateral Agent shall establish and maintain for the
benefit of the Secured Parties one or more accounts (each a “Collateral Account”),
each in the name of the Collateral Agent or, prior to the date of termination
of the Master Exchange Agreement pursuant to Section 7.01(b) thereof, the joint
name of the Collateral Agent and the Intermediary, that shall be administered
and operated as provided in this Agreement and the Master Exchange Agreement,
bearing a designation clearly indicating that the funds deposited therein are
held for the respective benefit of each Secured Party as their 


 


9

















 


interests may appear. Each Collateral Account shall be maintained (i) with
a Qualified Institution or (ii) as a segregated trust account with a
Qualified Trust Institution. If any Collateral Account is not maintained in
accordance with the previous sentence, then within ten (10) Business Days of
obtaining knowledge of such fact, the Collateral Agent and the Intermediary
shall establish a new Collateral Account which complies with such sentence and
transfer into the new Collateral Account all funds from the non-qualifying
Collateral Account. Initially, each Collateral Account will be established with
the Collateral Agent.


 


(a)           The Servicer and each Grantor shall
cause:


 


(i) all amounts due from Manufacturers and their related auctions
dealers under their Manufacturer Programs with respect to the Vehicles, other
than Excluded Payments and Permitted Check Payments, to be deposited directly
into a Collateral Account by the Manufacturers and the related auction dealers;
provided, however, that, unless there has been a failure by HGI to make a
payment to HVF on account of an Invoice Adjustment when due in accordance with
Section 1.05(d) of the Purchase Agreement and such failure is continuing,
payments by Manufacturers on account of Invoice Adjustments shall not be
required to be deposited in a Collateral Account;


 


(ii) all amounts representing the proceeds from sales of Vehicles to
third parties, other than the Manufacturers or their related auction dealers,
and all amounts received by the Servicer in the form of Permitted Check
Payments to be deposited into a Collateral Account within two Business Days of
receipt by the Servicer;


 


(iii) all insurance proceeds and warranty payments in respect of the
Vehicles, other than Excluded Payments, to be deposited into a Collateral
Account within two Business Days of receipt by the Servicer; provided, however,
that unless an Amortization Event with respect to any Series of Notes
Outstanding has occurred and is continuing, insurance proceeds and warranty
payments with respect to the Vehicles shall not be required to be deposited in
a Collateral Account;


 


(iv) all amounts payable by the Nominee pursuant to Section 11(b)
of the Nominee Agreement to be deposited directly into a Collateral Account by
the Nominee;


 


(v) all amounts payable by the Hertz Nominee pursuant to
Section 10 of the Hertz Nominee Agreement to be deposited directly into a
Collateral Account by the Hertz Nominee;


 


(vi) all amounts payable by the HFC Nominee pursuant to Section 10
of the HFC Nominee Agreement to be deposited directly into a Collateral Account
by the HFC Nominee; and


 


(vii) all other Proceeds of the Vehicle Collateral, to be deposited
into a Collateral Account within two Business Days of receipt by the Servicer.


 


10

















 


In addition,
any Grantor receiving any Proceeds of the Vehicle Collateral directly shall
deposit such Proceeds into a Collateral Account within two Business Days of
receipt. Notwithstanding the foregoing, if the Servicer receives any amount
pursuant to clause (ii), (iii) or (vii) of this Section 2.5(b)
and determines that such amount is Proceeds of the HVF Collateral or Proceeds
of the HGI Collateral before it is obligated to deposit such amount into a
Collateral Account in accordance with this Section 2.5(b), the
Servicer shall deposit such amount directly into the Collection Account or an
HVF Exchange Account for application in accordance with Section 4.02 of the
Master Exchange Agreement if it is Proceeds of the HVF Vehicle Collateral or
deposit such amount directly into the HGI Account or an HGI Exchange Account
for application in accordance with Section 4.02 of the Master Exchange
Agreement if it is Proceeds of the HGI Collateral.


 


(b)  The Collateral Agent shall promptly notify
the Servicer when funds are deposited in any Collateral Account. Promptly after
the deposit of any funds into a Collateral Account, but in no event more than
seven Business Days thereafter, the Servicer shall instruct the Collateral
Agent in writing as to (i) the amount thereof which represents Proceeds of
the HVF Vehicle Collateral and (ii) the amount thereof which represents
Proceeds of the HGI Vehicle Collateral. The Collateral Agent shall pursuant to
and promptly after receipt of instructions from the Servicer, withdraw from the
applicable Collateral Account and deposit in either the Collection Account or,
in the case of Relinquished Property Proceeds, an HVF Exchange Account for
application in accordance with Section 4.02 of the Master Exchange
Agreement all amounts representing Proceeds of the HVF Collateral and withdraw
from the applicable Collateral Account and deposit in either the HGI Account or
an HGI Exchange Account for application in accordance with Section 4.02 of
the Master Exchange Agreement all amounts representing Proceeds of the HGI
Collateral. Upon receipt by a Responsible Officer of the Collateral Agent from
a Manufacturer of any information pertaining to payments made by such
Manufacturer or an auction dealer to a Collateral Account in connection with
any Manufacturer Program, the Collateral Agent shall provide such information
to the Servicer.


 


(c)  If at any time the Servicer or any Secured
Party shall receive any funds to which it is not entitled pursuant to the
provisions of this Agreement, the Collateral Agent, the Servicer or such
Secured Party shall so advise the other parties hereto in writing (upon which
written advice the Collateral Agent may conclusively rely) and the Servicer or
such Secured Party, as the case may be, shall forthwith take reasonable steps
to ensure that such funds are remitted to the Person so entitled thereto or as
such Person directs or as otherwise provided in the Related Documents.


 


(d)  The Servicer may instruct in writing the
Collateral Agent to invest funds on deposit in a Collateral Accounts in
Permitted Investments. If the Collateral Agent does not receive instructions
from the Servicer prior to 11:00 a.m., New York City time, on any day
as to the distribution or investment of any funds on deposit in a Collateral
Account then the Collateral Agent shall invest such funds in Permitted
Investments pursuant to an investment letter previously delivered by the
Servicer to the Collateral Agent. All investments of funds on deposit in any
Collateral Account shall be redeemable or mature on the next Business Day. The
Collateral Agent shall not be responsible for any losses incurred on any
investments made pursuant to this Section 2.5(e). All investment
earnings (net of losses and investment expenses) shall be payable to the
Servicer on each Payment Date.


 


11

















 


SECTION 2.6. Certificates
of Title. ii)The Servicer or its designated agents (the “Servicer’s Agents”)
on behalf of the Servicer shall hold all of the Certificates of Title for the
Vehicles in the Servicer’s capacity as agent of, and custodian for, the
Collateral Agent. The Servicer or the Servicer’s Agents on behalf of the
Servicer shall (i) hold all such Certificates of Title, under lock and
key, in a safe fireproof location at one or more of the offices specified in
each Fleet Report delivered by the Servicer pursuant to Section 2.4, and
(ii) not release or surrender any Certificate of Title other than
Certificates of Title as to which the security interest of the Collateral Agent
has been released in accordance with Section 2.7 of this Agreement;
provided, however that the Servicer or the Servicer’s Agents, on behalf of and
at the direction of the Servicer, may deliver the Certificate of Title for any
Vehicle sold or otherwise disposed of in accordance with the Related Documents
to the purchaser thereof, together with any documentation necessary to effect
the removal of the notation of the Lien of this Agreement on such Certificate
of Title. The Servicer shall cause the Certificates of Title with respect to
each Vehicle to show the Nominee (and, with respect to the Initial Hertz
Vehicles, Hertz, and with respect to the Service Vehicles, HFC), as the
registered owner of the Vehicle, and (other than with respect to the Initial
Hertz Vehicles and the Service Vehicles, which shall have no lienholder noted)
the Collateral Agent, as agent, as the first lienholder, at the address of one
of the offices of the Servicer referred to in the preceding sentence. For the
avoidance of doubt, the Servicer shall not be obligated to retitle the Initial
Hertz Vehicles or the Service Vehicles which are not currently titled in the
name of the Nominee or do not reflect the Collateral Agent, as agent, as the
first lienholder. The Servicer shall pay any compensation payable to a Servicer
Agent from its own funds. Notwithstanding any delegation of duties to a
Servicer Agent hereunder, the Servicer shall not be relieved of its liability
and responsibility with respect to such duties. The Servicer shall notify the
Rating Agencies in writing at least thirty (30) days prior to the replacement
of an existing Servicer’s Agent or the designation of any new Servicer’s Agent.


 


(a)  The Collateral Agent hereby grants to the
Servicer a power of attorney to take any and all actions, in the name of the
Collateral Agent, (i) to note the Collateral Agent as the holder of a first
lien on the Certificates of Title for the Vehicles, and/or otherwise ensure
that the first Lien shown on any and all Certificates of Title is in the name
of the Collateral Agent and (ii) to release the Collateral Agent’s Lien on any
Certificate of Title in connection with the release of the related Vehicle from
the Lien of this Agreement in accordance with Section 2.7. Nothing in
this Agreement shall be construed as authorization from the Collateral Agent to
the Servicer to release any Lien on the Certificates of Title except upon
compliance with this Agreement. To further evidence the power of attorney
referred to in this Section 2.6(b), the Collateral Agent agrees that
upon request of the Servicer it will execute a separate power of attorney in
respect of the HVF Vehicles or the HGI Vehicles substantially in the form of Exhibit
B.


 


(b)  After the occurrence and during the
continuance of an Amortization Event with respect to any Series of Notes
Outstanding, the HVF Secured Party may cause the Collateral Agent to terminate
the power of attorney in respect of the HVF Vehicles referred to in Section
2.6(b) (including the related power granted under Section 2.6(b)) by
giving written notice to such effect to the Servicer and the Collateral Agent. The
HGI Secured Party may cause the Collateral Agent to terminate the power of
attorney in respect of the HGI Vehicles referred to in Section 2.6(b)
(including the related power granted under Section 2.6(b)) by giving
written notice to such effect to the Servicer and the Collateral Agent. The
Collateral Agent agrees that upon receipt of any such notice (upon which notice
the Collateral Agent may conclusively rely) 


 


12

















 


it shall promptly terminate such power of attorney by giving written
notice to such effect to the Servicer. After any such termination, the
Collateral Agent will follow the written direction of the Servicer to release
liens on Vehicles unless a contrary written direction is received from a
Secured Party.


 


SECTION 2.7. Release
of Collateral. iii)From and after the earliest of (i) in the case of a
Program Vehicle subject to a Repurchase Program, the Turnback Date for such
Program Vehicle, (ii) in the case of a Program Vehicle subject to a Guaranteed
Depreciation Program, the date of sale of such Program Vehicle by an auction
dealer to a third party, (iii) in the case of a Non-Program Vehicle, the date
of the deposit of the Disposition Proceeds of such Non-Program Vehicle by or on
behalf of HVF into the Collection Account or an HVF Exchange Account, (iv) in
the case of a Transferred HVF Vehicle, the date the related Transfer Payment is
deposited into the Collection Account or an HVF Exchange Account and (v) in the
case of a Casualty, the date the related Casualty Payment is deposited into the
Collection Account, such HVF Vehicle and the related Certificate of Title shall
automatically be released from the Lien of this Agreement.


 


(a)  From and after the earliest of (i) in the
case of a Program Vehicle subject to a Repurchase Program, the Turnback Date
for such Program Vehicle, (ii) in the case of a Program Vehicle subject to a
Guaranteed Depreciation Program, the date of sale of such Program Vehicle by an
auction dealer to a third party, (iii) in the case of a Non-Program Vehicle,
the date of the deposit of the Disposition Proceeds of such Non-Program Vehicle
by or on behalf of HGI into the HGI Account or an HGI Exchange Account, (iv) in
the case of a Transferred HGI Vehicle, the date the related Transfer Payment is
deposited into the HGI Account or an HGI Exchange Account, (v) in the case of a
Casualty, the date the related Casualty Payment is deposited into the HGI
Account or an HGI Exchange Account and (vi) in the case of a Rejected Vehicle,
the date the related Rejected Vehicle Payment is deposited into the Collection
Account or an HGI Exchange Account, such HGI Vehicle and the related
Certificate of Title shall automatically be released from the Lien of this
Agreement; in addition, HGI may release any of the HGI Vehicle Collateral and
any related Certificate of Title from the Lien of this Agreement at any time by
directing, in writing, the Servicer and the Collateral Agent to release such
HGI Vehicle from such Lien.


 


(b)  A third party who buys a Vehicle from HVF or
HGI in the ordinary course of business shall take such Vehicle free of any Lien
created pursuant to this Agreement.


 


(c)  On each Determination Date, the Servicer will
provide the Collateral Agent and each Secured Party with a list of Vehicles as
to which the Lien of the Collateral Agent has been released during the Related
Month.


 


(d)  In connection with any release permitted
under this Section 2.7, the Collateral Agent and each Secured Party
agrees to execute such further documents, if any, as may be reasonably
requested by the Servicer to effect such release.


 


13

















 


ARTICLE III



THE SERVICER


 


SECTION 3.1. Acceptance
of Appointment. The Collateral Agent and each Secured Party hereby appoints
Hertz, and Hertz hereby agrees to act, as the initial Servicer under this
Agreement.


 


SECTION 3.2. Servicer
Functions. The Servicer shall service and administer the Vehicles in
accordance with the terms of this Agreement and the Leases, and without
limitation of the foregoing, the Servicer shall: (i) cause the Collateral Agent
to be shown as the first lienholder on all Certificates of Title in accordance
with Section 2.6, (ii) designate Vehicles subject to the HVF Lease as HVF Vehicles
and Vehicles subject to the HGI Lease as HGI Vehicles on its computer system in
accordance with Sections 2.2 and 2.3, (iii) collect all amounts due and owing
to the Grantors by the Manufacturers under the Manufacturers Programs in
respect of the Vehicles and to commence enforcement proceedings with respect to
such Manufacturer Programs, (iv) collect all other amounts due and owing to the
Grantors in respect of the Vehicles and the other Vehicle Collateral, (v)
direct payments due under the Manufacturer Programs to be deposited directly
into a Collateral Account by the Manufacturers and related auction dealers in
accordance with Section 2.5(b), (vi) to deposit all sale proceeds from sales of
Vehicles to third parties (other than under any related Manufacturer Program)
and insurance proceeds and warranty payments in respect of Vehicles received
directly by the Servicer into a Collateral Account within two Business Days of
receipt by the Servicer in accordance with Section 2.5(b), (vii) turn in the
Vehicles covered by Manufacturer Programs to the relevant Manufacturer within
the applicable Repurchase Period in accordance with the Leases and comply with
all of its obligations under the Manufacturer Programs, (viii) furnish the
Servicer’s Fleet Report as provided in Section 2.4, (ix) instruct the
Collateral Agent in writing to make distributions, withdrawals and payments
from the Collateral Accounts in accordance with Section 2.5,  (x) perform the duties specified in Section 8.20
of the Master Exchange Agreement and Section 6.21 of the Escrow Agreement
and (xi) otherwise administer and service the Vehicles in accordance with
the Related Documents. The Servicer shall have full power and authority, acting
alone or through any party properly designated by it hereunder to do any and
all things in connection with its servicing and administration duties which it
may deem necessary or desirable to accomplish such servicing and administration
duties and which does not materially adversely affect the interests of any Secured
Party unless otherwise prohibited by the Related Documents.


 


SECTION 3.3. The
Servicer Not to Resign. Without the prior written consent of the Collateral
Agent and each of the Secured Parties, the Servicer shall not resign from the
obligations and duties imposed on it hereunder.


 


SECTION 3.4. Servicing
Rights of Collateral Agent. (a)   If the Servicer shall fail to perform any of
its obligations hereunder, which failure adversely affects one or more of the
Secured Parties, the Collateral Agent, at the direction and at the expense of
the Secured Party so adversely affected thereby, shall take such action or
cause such action to be taken, to perform such obligations as shall be so
directed by such Secured Party, whereupon the Collateral Agent shall have full
right and authority to take or cause to be taken such action so directed.


 


14

















 


(b)  In the event that the Collateral Agent is
directed to take any action with respect to the Vehicles or perform any
obligation of the Servicer pursuant to Section 3.4 of this Agreement,
the Servicer shall fully cooperate with the Collateral Agent in any manner
requested by the Collateral Agent or the applicable Secured Party in order to
assist the Collateral Agent in taking any such action or performing any such
duty.


 


SECTION 3.5. Incumbency
Certificate. With the delivery of this Agreement and from time to time
thereafter, each of the Grantors and the Servicer shall furnish to the
Collateral Agent a certificate (each, an “Incumbency Certificate”) certifying
as to the incumbency and specimen signatures of each of their respective
Authorized Officers. Until the Collateral Agent receives a subsequent
Incumbency Certificate, the Collateral Agent shall be entitled to rely on the
last such Incumbency Certificate delivered to it for purposes of determining
the Authorized Officers.


 


SECTION 3.6. Effective
Period and Termination. The Servicer’s appointment hereunder shall become
effective on the date hereof and shall continue in full force and effect until
terminated pursuant to this Section 3.6 or until this Agreement shall be
terminated. If all of the rights and obligations of Hertz as Servicer under the
HVF Lease shall have been terminated under Section 17 of the HVF Lease, the
appointment of Hertz as Servicer in respect of the HVF Vehicles hereunder may
be terminated by the HVF Secured Party in the same manner as the HVF Secured
Party may terminate the rights and obligations of the Servicer under Section 17
of the HVF Lease. As soon as practicable after any termination of such
appointment, the Servicer shall, at its expense, deliver all documents and
records relating to the HVF Vehicle Collateral, including, without limitation,
the most recent Fleet Report, to the HVF Secured Party or the HVF Secured Party’s
agent at such place or places as the HVF Secured Party may reasonably
designate.


 


ARTICLE IV



REPRESENTATIONS, WARRANTIES AND COVENANTS


 


SECTION 4.1. Representations
and Warranties of the Grantors. Each Grantor represents and warrants to the
Collateral Agent and each Secured Party as follows as of the Restatement
Effective Date and each Series Closing Date:


 


(a)  The execution, delivery and performance by
such Grantor of this Agreement (i) is within such Grantor’s limited liability
company powers and has been duly authorized by all necessary limited liability
company action, (ii) requires no action by or in respect of, or filing with,
any Governmental Authority which has not been obtained and (iii) does not
contravene, or constitute a default under, any Requirements of Law with respect
to such Grantor or any Contractual Obligation with respect to such Grantor or
result in the creation or imposition of any Lien on any property of such
Grantor, except for Liens created by this Agreement. This Agreement has been
executed and delivered by a duly authorized officer of such Grantor.


 


(b)  No consent, action by or in respect of,
approval or other authorization of, or registration, declaration or filing
with, any Governmental Authority or other Person is required for the valid
execution and delivery by such Grantor of this Agreement or for the performance
of 


 


15

















 


any of such Grantor’s obligations hereunder other than such consents,
approvals, authorizations, registrations, declarations or filings as shall have
been obtained by HVF prior to the Restatement Effective Date.


 


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


 


(d)  Each Grantor owns and has good and marketable
title to the Vehicle Collateral in which such Grantor has an interest, free and
clear of all Liens other than Permitted Liens. This Agreement constitutes a
valid and continuing Lien on such Vehicle Collateral in favor of the Collateral
Agent on behalf of the related Secured Party, which Lien on such Vehicle
Collateral has been perfected (other than with respect to the Initial Hertz
Vehicles and the Service Vehicles) and is prior to all other Liens (other than
Permitted Liens) and is enforceable as such as against creditors of and
purchasers from such Grantor in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors’ rights
generally or by general equitable principles, whether considered in a
proceeding at law or in equity and by an implied covenant of good faith and
fair dealing.


 


(e)  Other than the security interest granted to
the Collateral Agent hereunder, neither Grantor has pledged, assigned, sold or
granted a security interest in the Vehicle Collateral. All action necessary to
protect and perfect the Collateral Agent’s security interest in the Vehicle
Collateral (other than with respect to the Initial Hertz Vehicles and the
Service Vehicles) in which such Grantor has an interest has been duly and
effectively taken. No security agreement, financing statement, equivalent
security or lien instrument or continuation statement listing such Grantor as
debtor covering all or any part of such Vehicle Collateral is on file or of
record in any jurisdiction, except such as may have been filed, recorded or
made by such Grantor in favor of the Collateral Agent in connection with this
Agreement or the Trustee in connection with the Indenture, and neither Grantor
has authorized any such filing.


 


(f)  Its legal name is on the signature pages
hereto and its location within the meaning of Section 9-307 of the applicable
UCC is the State of Delaware. It will not change its name or the jurisdiction
of its organization without 60 days prior written notice to the Collateral
Agent.


 


SECTION 4.2. Representations
and Warranties of the Servicer. The Servicer represents and warrants to the
Collateral Agent and each Secured Party as follows as of the Restatement
Effective Date and each Series Closing Date:


 


(a)  This Agreement has been duly authorized,
executed and delivered on behalf of the Servicer and, assuming due
authorization, execution and delivery by the other parties hereto, is a valid
and legally binding obligation of the Servicer, enforceable against the
Servicer in accordance with its terms (except as such enforceability may be
limited by bankruptcy, 


 


16

















 


insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors’ rights generally or by general equitable
principles, whether considered in a proceeding at law or in equity and by an
implied covenant of good faith and fair dealing).


 


(b)  The execution, delivery and performance by
the Servicer of this Agreement will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any Lien, charge or encumbrance upon any of the
property or assets of the Servicer pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing agreement
or other similar agreement or instrument under which the Servicer is a debtor
or guarantor (except to the extent that such conflict, breach, creation or
imposition is not reasonably likely to result in a Material Adverse Effect) nor
will such action result in a violation of any provision of applicable law or
regulation (except to the extent that such violation is not reasonably likely
to result in a Material Adverse Effect) or of the provisions of the Certificate
of Incorporation or the By-Laws of the Servicer.


 


(c)  There is no consent, approval, authorization,
order, registration or qualification of or with any Governmental Authority
having jurisdiction over the Servicer which is required for the execution, delivery
and performance of this Agreement (except to the extent that the failure to
obtain such consent, approval, authorization, order, registration or
qualification is not reasonably likely to result in a Material Adverse Effect).


 


SECTION 4.3. Covenants
of Grantors. Each Grantor hereby agrees that:


 


(a)  It shall take all action necessary to
maintain and to perfect the Collateral Agent’s security interest on behalf of
the related Secured Party in the Vehicle Collateral (other than with respect to
the Initial Hertz Vehicles and the Service Vehicles) in which it has an
interest now in existence and hereafter acquired or created, including, without
limitation, the filing of any financing or continuation statements under the
UCC in effect in any jurisdiction with respect to the liens and security
interests granted hereunder.


 


(b)  At any time and from time to time, upon the
written request of the Collateral Agent, and at its sole expense, it will
promptly and duly execute and deliver any and all such further instruments and
documents and take such further action as the Collateral Agent may reasonably
deem desirable in obtaining the full benefits of this Collateral Agreement and
of the rights and powers herein granted, including, without limitation, the
filing of any financing or continuation statements under the UCC in effect in
any jurisdiction with respect to the liens and security interests granted
hereby. It also hereby authorizes the Collateral Agent to file any such
financing or continuation statement, at its expense. If any amount payable
under or in connection with any of the Vehicle Collateral shall be or become
evidenced by any promissory note, chattel paper or other instrument, such note,
chattel paper or instrument shall be deemed to be held in trust and promptly
pledged to the Collateral Agent hereunder, and shall, subject to the rights of
any Person in whose favor a prior Lien has been perfected, be duly endorsed in
a manner satisfactory to the Collateral Agent and delivered to the Collateral
Agent promptly.


 


(c)  It shall warrant and defend the Collateral
Agent’s right, title and interest in and to the Vehicle Collateral in which it
has an interest and the Proceeds thereof, for the benefit of the related
Secured Party against the claims and demands of all Persons whomsoever.


 


17

















 


ARTICLE V



THE COLLATERAL AGENT


 


SECTION 5.1. Appointment.
iv)Each Secured Party, by its execution of this Agreement, appoints the
Collateral Agent as its agent under and for purposes of this Agreement. Each
Secured Party authorizes the Collateral Agent to act on behalf of such Secured
Party under this Agreement and, in the absence of other written instructions
from a Secured Party with respect to the portion of the Vehicle Collateral
securing such Secured Party (its “Related Vehicle Collateral”) as may be
received from time to time by the Collateral Agent (with respect to which the
Collateral Agent agrees that it will comply) to exercise such powers hereunder
as are specifically delegated to or required of the Collateral Agent by the
terms hereof and to exercise such powers as are provided to each Secured Party
with respect to its Related Vehicle Collateral under the Related Documents and
with such powers as may be reasonably incidental thereto. The Collateral Agent
is hereby irrevocably appointed the true and lawful attorney-in-fact of each of
the Secured Parties, in its name and stead, for such purposes as are necessary
or desirable to effectuate the provisions of this Agreement, including, without
limitation, in exercising remedies upon or otherwise dealing with the Vehicle
Collateral. Each such power of attorney is irrevocable and coupled with an
interest.


 


(a)  If either Secured Party represents in writing
to the Collateral Agent that it has the right to act with respect to its
Related Vehicle Collateral pursuant to the Related Documents, the Collateral
Agent may conclusively rely upon such representation and shall exercise any and
all rights, remedies, powers and privileges available to such Secured Party
with respect to its Related Vehicle Collateral to the extent and in the manner
directed by such Secured Party, at the expense of the related Grantor and
subject to the other provisions of this Agreement (including without limitation
Section 5.4(g)), as permitted under the Related Documents, including,
without limitation, the transmission of notices of default, repossession of
Vehicles, and the institution of legal or administrative actions or proceedings.
Each of the Grantors and the Secured Parties agrees that the Collateral Agent
may exercise such rights, remedies, powers and privileges in lieu of a Secured
Party in accordance with the preceding sentence.


 


(b)  At any time after the occurrence and during
the continuance of an Amortization Event with respect to any Series of Notes
Outstanding, if the Collateral Agent shall default in its obligation to
exercise the rights, remedies, powers or privileges of the HVF Secured Party
with respect to the HVF Vehicle Collateral in accordance with the direction of
the HVF Secured Party (including any rights under Section 3.4 or 5.1(b)),
the Collateral Agent shall, upon the written request of the HVF Secured Party,
assign to the HVF Secured Party the Collateral Agent’s security interest in the
HVF Vehicle Collateral and shall, at the Collateral Agent’s expense, execute
those instruments and documents necessary to effectuate such assignment
(including, if necessary, the execution of any documents necessary to effect
the change of the first lienholder on Certificates of Title for the HVF
Vehicles to the HVF Secured Party or its agent or assignee).


 


SECTION 5.2. Representations.
The Collateral Agent hereby represents and warrants that (i) it is an
Illinois trust company, duly organized, validly existing and in good standing
under the laws of the State of Illinois and it has all requisite power and
authority to 


 


18

















 


enter into and perform its obligations under this Agreement and (ii)
the execution, delivery and performance by it of this Agreement have been duly
authorized by all necessary corporate action on its part, and this Agreement is
the legal, valid and binding obligation of the Collateral Agent, enforceable
against it in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, moratorium or similar laws
affecting creditors’ rights generally and by the application of equitable
principles.


 


SECTION 5.3. Exculpatory
Provisions. The Collateral Agent makes no representations as to the value
or condition of the Vehicle Collateral or any part thereof, as to the status or
designation of any Vehicle as a HVF Vehicle or a HGI Vehicle pursuant to
Section 2.2, as to the title of either of the Grantors thereto, as to the
protection afforded by this Agreement, as to any statements, representations or
warranties made by any Person (other than itself) in or in connection with this
Agreement or any Related Document, as to the validity, execution (except its
own execution), enforceability (except enforceability against itself),
priority, perfection, legality or sufficiency of this Agreement or any Related
Document or any documents or instruments referred to therein, or the
sufficiency or effectiveness or perfection or priority of any Lien on any
collateral described in this Agreement, or as to the validity or collectibility
of any obligation contemplated by this Agreement, and the Collateral Agent
shall incur no liability or responsibility in respect of any such matters. The
Collateral Agent shall not be responsible for insuring the Vehicle Collateral
or for the payment of taxes, charges, assessments or Liens upon the Vehicle
Collateral or for filing any financing or continuation statements or recording
any documents or instruments in any public office at any time or otherwise
perfecting or maintaining the perfection of its security interest in the
Vehicle Collateral purported to be granted hereby or otherwise as to the
maintenance of the Vehicle Collateral.


 


SECTION 5.4. Limitations
on Duties of the Collateral Agent. v) The Collateral Agent undertakes to
perform only the duties expressly set forth herein and no implied duties shall
be read into this Agreement. Nothing herein shall be deemed to constitute the
Collateral Agent a trustee or fiduciary for any Secured Party.


 


(a)  The Collateral Agent may exercise the rights
and powers granted to it by this Agreement, together with such powers as are
reasonably incidental thereto, but only pursuant to the terms of this Agreement.


 


(b)  The Collateral Agent’s duty of care shall be
solely to deal with the Vehicle Collateral as it would deal with property of
its own, the Collateral Agent shall not be liable for any error of judgment
made in good faith by an officer thereof, or for any action taken or omitted to
be taken by it in accordance with this Agreement, except to the extent caused
by the gross negligence or willful misconduct of the Collateral Agent.


 


(c)  The Collateral Agent shall have no authority
to grant, convey or assign the Certificates of Title or change the notation of
a security interest thereon or deal with the Certificates of Title in any way
except as expressly provided herein.


 


(d)  The Collateral Agent shall have no liability
or responsibility for (i) any release of Vehicle Collateral by the Servicer
pursuant to Sections 2.7 or (ii) any act of the Servicer taken in its
own name or the name of the Collateral Agent.


 


19

















 


(e)  The Collateral Agent shall have no duty to
calculate, compute or verify, and shall not be held in any manner responsible
for the content of the Servicer’s Fleet Report, except to verify that the
certificate filed therewith conforms to the form of Exhibit A.


 


(f)  Except as required by the specific terms of
this Agreement, the Collateral Agent shall not be required to exercise any
discretion and shall have no duty to exercise or to refrain from exercising any
right, power, remedy or privilege granted to it hereby, or to take any
affirmative action or refrain from taking any affirmative action hereunder,
unless directed to do so by the Secured Party specified herein as being
entitled to direct the Collateral Agent hereunder (and shall be fully protected
in acting or refraining from acting pursuant to or in accordance with such
directions, which shall be binding on each of the Secured Parties). Notwithstanding
anything herein to the contrary, the Collateral Agent shall not be required to
take any action (a) that in its reasonable opinion is or may be contrary to law
or to the terms of this Agreement, any Related Document or any other agreement
or instrument relating to the Vehicle Collateral, or (b) which might or would
in its reasonable opinion subject it or any of its directors, officers,
employees or agents to personal or financial liability unless it is indemnified
hereunder to its satisfaction (and if any indemnity should become, in the
reasonable determination of the Collateral Agent, inadequate, the Collateral
Agent may call for additional indemnity and cease to act until such additional
indemnity is given).


 


(g)  The Collateral Agent may, in its sole
discretion, retain counsel, independent accountants and other experts selected
by it and may act in reliance upon the advice of such counsel, independent
accountants and other experts concerning all matters pertaining to the agencies
hereby created and its duties hereunder, and shall be held harmless and shall
not be liable for any action taken or omitted to be taken by it in good faith
in reliance upon or in accordance with the statements and advice of such
counsel (or counsel to Hertz or either of the Grantors), accountants and other
experts.


 


(h)  In the event that the Collateral Agent
receives conflicting instructions delivered in accordance with this Agreement,
the Collateral Agent shall have the right to seek instructions concerning its
duties and actions under this Agreement from any court of competent
jurisdiction. If the Collateral Agent receives unclear or conflicting
instructions, it shall be entitled to refrain from taking action until clear or
non-conflicting instructions are received, but shall inform the instructing
party or parties promptly of its decision to refrain from taking such action. Without
limiting the foregoing, in the event that the Collateral Agent receives unclear
or conflicting instructions from the Secured Parties hereunder or there is any
other disagreement between the other parties hereto resulting in adverse claims
and demands being made in connection with the Vehicle Collateral, or in the
event that the Collateral Agent in good faith is in doubt as to what action it
should take hereunder, the Collateral Agent shall be entitled to retain the
Vehicle Collateral until the Collateral Agent shall have received (i) a final
order of a court of competent jurisdiction directing delivery of the Vehicle
Collateral or (ii) a written agreement executed by the other parties hereto
directing delivery of the Vehicle Collateral in which event the Collateral
Agent shall disburse the Vehicle Collateral in accordance with such order or
agreement. Upon request of the Collateral Agent, any such court order shall be
accompanied by a legal opinion by counsel for the presenting party satisfactory
to the Collateral Agent to the effect that such order is final.


 


20

















 


(i)  The Collateral Agent shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement, any Related Document or any
other agreements or instruments relating to the Vehicle Collateral on the part
of any party hereto or thereto or to inspect any books and records relating to
the Vehicle Collateral other than as it determines necessary in the fulfillment
of its own obligations hereunder.


 


(j)  The Collateral Agent shall be entitled to
rely on any communication, certificate, instrument, opinion, report, notice,
paper or other document reasonably believed by it to be genuine and correct and
to have been signed, given or sent by the proper Person or Persons. The
Collateral Agent shall be entitled to assume that no Amortization Event,
Limited Liquidation Event of Default or Liquidation Event of Default shall have
occurred and be continuing and that a Collateral Account, and any funds on
deposit in or to the credit of a Collateral Account, are not subject to any
writ, order, judgment, warrant of attachment, execution or similar process
(collectively, a “writ”), unless (i) in the case of any writ, the
Collateral Agent has actual knowledge thereof or (ii) the Collateral Agent has
received written notice from the Servicer, any of the Grantors or a Secured
Party that an Amortization Event, Limited Liquidation Event of Default or
Liquidation Event of Default has occurred or such writ has been issued and, in
each case, continues to be in effect, which notice specifies the nature
thereof.


 


(k)  The Collateral Agent, in its individual
capacity, may accept deposits from, lend money to and generally engage in any
kind of business with the Servicer, either of the Grantors, any Manufacturer
and their respective Affiliates as if it were not the agent of the Secured
Parties.


 


(l)  The Collateral Agent may act through agents,
custodians and nominees and shall not be liable for any negligent act on the
part of, or for the supervision of, any such agent, custodian or nominee so
long as such agent, custodian or nominee is appointed with due care. The
appointment of agents, custodians and nominees (other than legal counsel)
pursuant to this subsection (m) shall be subject to the prior written
consent of each of the Grantors and the Secured Parties, which consent shall
not be unreasonably withheld, and shall be conditioned on the satisfaction of
the Rating Agency Condition with respect to each Series of Notes Outstanding
with respect to such appointment. The possession of the Vehicle Collateral by
such agents, custodians or nominees shall be deemed to be the possession by the
Collateral Agent. No provision of this Agreement shall require the Collateral
Agent to expend or risk its own funds or otherwise incur any financial or other
liability in the performance of any duties hereunder or in the exercise of any
rights and powers hereunder unless the Collateral Agent is provided with an
indemnity from one or more of the Secured Parties or other Persons,
satisfactory to the Collateral Agent in its sole discretion.


 


SECTION 5.5. Resignation
and Removal of Collateral Agent. vi)The Collateral Agent may, at any time
with or without cause by giving forty-five (45) days’ prior written notice to
the Servicer, each of the Grantors and the Secured Parties, resign and be
discharged of its responsibilities hereunder created, such resignation to
become effective upon the appointment by the Secured Parties of a successor
Collateral Agent, and the acceptance of such appointment by such successor
Collateral Agent. The Servicer shall, promptly upon receipt thereof, provide a
copy of the notice from the Collateral Agent referred to in the preceding
sentence to each Rating 


 


21

















 


Agency. The Collateral Agent may be removed by the Servicer at any time
(with or without cause) upon thirty (30) days’ prior written notice by the
Servicer to the Collateral Agent, the Grantors, the Secured Parties and each of
the Rating Agencies, and the appointment by each of the Secured Parties of a
successor Collateral Agent; provided, however, that if the Servicer is in
default (beyond all applicable grace and cure periods) under this Agreement or
an Amortization Event with respect to any Series of Notes Outstanding has
occurred and is continuing, the right of the Servicer to remove the Collateral
Agent shall cease and the HVF Secured Party shall have the right to remove the
Collateral Agent (with or without cause) upon thirty (30) days’ written notice
to the Servicer, the Grantors, the HGI Secured Party, the Collateral Agent and
each of the Rating Agencies; provided, further, that no removal of the
Collateral Agent shall be effective until the appointment of a successor
Collateral Agent and acceptance of such appointment by such Collateral Agent. Any
removed Collateral Agent shall be entitled to its reasonable fees and expenses
to the date the successor Collateral Agent assumes the Collateral Agent’s
duties hereunder. The indemnification of Section 5.10 shall survive the
termination of the other provisions of this Agreement as to the predecessor
Collateral Agent. If no successor Collateral Agent shall be appointed and
approved within thirty (30) days from the date of the giving of the aforesaid
notice of resignation or within thirty (30) days from the date of such notice
of removal, the Collateral Agent or any Secured Party may petition a court of
competent jurisdiction to appoint a successor Collateral Agent to act until
such time, if any, as a successor Collateral Agent shall be appointed as above
provided. Any successor Collateral Agent so appointed by such court shall
immediately upon its acceptance of such appointment without further act supersede
any predecessor Collateral Agent. Upon the appointment of a successor
Collateral Agent hereunder and its acceptance of such appointment, the
predecessor Collateral Agent shall be discharged of and from any and all
further obligations arising in connection with this Agreement.


 


(a)  The appointment, designation and acceptance
referred to in Section 5.5(a) shall, after any required filing, be full
evidence of the right and authority to make the same and of all the facts
therein recited, and this Agreement shall vest in such successor Collateral
Agent, without any further act, deed or conveyance, all of the estate and title
of its predecessors and upon such filing for record the successor Collateral
Agent shall become fully vested with all the estates, properties, rights,
powers, duties, authority and title of its predecessors; but any predecessor
Collateral Agent shall nevertheless, on the written request of any Secured
Party, the Servicer, any Grantor or any successor Collateral Agent empowered to
act as such at the time any such request is made, execute and deliver an
instrument without recourse or representation transferring to such successor
all the estates, properties, rights, powers, duties, authority and title of
such predecessor hereunder and shall deliver all securities and moneys held by
it to such successor Collateral Agent. Upon the appointment of a successor
Collateral Agent hereunder, the predecessor Collateral Agent shall be
discharged of and from any and all further obligations arising in connection
with this Agreement; provided, however, that the predecessor
Collateral Agent will serve as nominee lienholder for the successor Collateral
Agent with respect to those Vehicles on whose Certificate of Title the
predecessor Collateral Agent had been named as lienholder prior to its
resignation or removal pursuant to this Section 5.5.


 


SECTION 5.6. Qualification
of Successors to Collateral Agent. Every successor to the Collateral Agent
appointed pursuant to Section 5.5 (i) shall be a bank or trust company in good
standing and having power so to act and incorporated under the laws of the 


 


22

















 


United States or any State thereof or the District of Columbia, (ii)
shall have capital, surplus and undivided profits of not less than $50,000,000,
and (iii) shall have a long-term deposits rating of not less than “BBB-” by
Standard & Poor’s and “Baa3” by Moody’s and, unless otherwise agreed to by
Fitch, “BBB-”by Fitch, if there be such an institution with such capital,
surplus and undivided profits and ratings willing, qualified and able to accept
the trust upon reasonable or customary terms. The appointment of any successor
Collateral Agent pursuant to Section 5.5 shall be subject to the satisfaction
of the Rating Agency Condition with respect to each Series of Notes
Outstanding.


 


SECTION 5.7. Merger
of the Collateral Agent. Any corporation into which the Collateral Agent
may be merged, or with which it may be converted or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Collateral Agent shall be a party shall be the Collateral Agent under this
Agreement without the execution or filing of any paper or any further act on
the part of the parties hereto. The Collateral Agent shall give the Rating
Agencies, the Servicer, each of the Grantors and the Secured Parties prior
written notice of any such merger, conversion or consolidation.


 


SECTION 5.8. Compensation
and Expenses. The Servicer shall pay to the Collateral Agent, from time to
time (i) compensation for its services hereunder for administering the Vehicle
Collateral as the Collateral Agent and the Servicer shall from time to time
agree in writing, and (ii) all reasonable out-of-pocket costs and expenses of
the Collateral Agent (including reasonable fees and expenses of counsel) (A)
arising in connection with the preparation, execution, delivery, or
modification of this Agreement and/or the enforcement of any of the provisions
hereof or (B) incurred in connection with the administration of the Vehicle
Collateral, the sale or other disposition of the Vehicle Collateral pursuant to
any Related Document and/or the preservation, protection or defense of the
Collateral Agent’s rights under this Agreement and in and to the Vehicle
Collateral.


 


SECTION 5.9. Stamp,
Other Similar Taxes and Filing Fees. The Servicer shall indemnify and hold
harmless the Collateral Agent from any present or future claim for liability
for any stamp or other similar tax and any penalties or interest with respect
thereto, that may be assessed, levied or collected by any jurisdiction in
connection with this Agreement or any Vehicle Collateral. The Servicer shall
pay, or reimburse the Collateral Agent for, any and all amounts in respect of,
all search, filing, recording and registration fees, taxes, excise taxes and
other similar imposts payable in respect of the execution, delivery,
performance and/or enforcement of this Agreement.


 


SECTION 5.10. Indemnification.
Each Grantor shall pay, and indemnify and hold the Collateral Agent and each of
the officers, employees, directors and agents thereof harmless from and
against, any and all liabilities (including liabilities for penalties and
liabilities arising or resulting from actions or suits), obligations, losses,
judgments, demands, damages, claims, costs or expenses of any kind or nature
whatsoever that may at any time be imposed on, incurred by, or asserted
against, the Collateral Agent or any such officers, employees, directors or
agents in any way relating to or arising out of the Related Vehicle Collateral
and the execution, delivery, amendment, enforcement, performance and/or
administration of this Agreement (and any agreements related thereto including,
without limitation, the Assignment Agreements), including reasonable fees and
expenses of counsel and other experts, and each 


 


23

















 


Grantor shall reimburse its related Secured Party for any payments made
by such Secured Party to the Collateral Agent or any such officers, employees,
directors or agents for any of the foregoing provided that such payments were
permitted to be made by such Secured Party under the Related Documents;
provided, however, that no Grantor shall be liable for the payment of any portion
of such liabilities (including liabilities for penalties and liabilities
arising or resulting from actions or suits), obligations, losses, judgments,
demands, damages, claims, costs or expenses of the Collateral Agent or any such
officers, employees, directors or agents which are determined by a court of
competent jurisdiction in a final proceeding to have resulted from the gross
negligence or willful misconduct of the Collateral Agent or any such agent.


 


Each
of the Secured Parties agrees to indemnify and hold the Collateral Agent and
each of its officers, employees, directors and agents harmless to the same
extent as its related Grantor in accordance with the foregoing paragraph but
only to the extent that the Collateral Agent has not been paid by such Grantor
pursuant to such paragraph; provided that the HVF Secured Party’s
obligation to indemnify the Collateral Agent hereunder shall be limited to
funds constituting Monthly Servicing Fees and Monthly Administration Fees under
the Base Indenture and the related Series Supplements.


 


SECTION 5.11. Waiver
of Set-Off by the Collateral Agent. The Collateral Agent hereby expresssly
waives any and all rights of setoff, abatement, diminution or deduction that it
may otherwise at any time have under applicable law with respect to the Vehicle
Collateral, provided, however, that this waiver shall apply only to obligations
owed to the Collateral Agent in its individual capacity and not as an agent for
the Secured Parties, and agrees that all Vehicle Collateral shall at all times
be held and applied in accordance with the provisions hereof.


 


ARTICLE VI



MISCELLANEOUS


 


SECTION 6.1. Amendments,
Supplements and Waivers. This Agreement may be amended, waived, terminated,
supplemented or otherwise modified pursuant to a writing executed by the
Collateral Agent, each Secured Party, each Grantor and the Servicer; provided,
however, that an amendment may be executed without the consent of a Secured
Party if such amendment is effected only to cure any ambiguity, to correct or
supplement any provision herein which may be inconsistent with any other
provision herein or which is otherwise defective, to make any other provisions
with respect to matters or questions arising under this Agreement which shall
not be inconsistent with the provisions of this Agreement or any other
applicable Related Document and which shall not adversely affect the interests
of a Secured Party in any material respect (as evidenced by an Officer’s
Certificate of the Servicer) or to amend, waive, terminate, supplement or
otherwise modify this Agreement in a manner that only affects HGI or the HGI
Vehicle Collateral. The initial effectiveness of any amendment or other
modification to this Agreement shall be subject to the satisfaction of the
Rating Agency Condition with respect to each Series of Notes Outstanding. Notwithstanding
anything to the contrary contained herein, this Agreement may be amended,
supplemented or otherwise modified pursuant to a writing executed by the
Collateral Agent, each Grantor and the Servicer without the consent of any
Secured Party, but subject to any consents specified in a Series Supplement, in



 


24

















 


order to permit HVF to provide financing in the form of one or more
rated and/or unrated asset backed securities and/or one or more credit
facilities to PR Borrower for the purpose of acquiring vehicles for its car
rental fleet in Puerto Rico or to make payments in reduction of the principal
amount of other indebtedness of PR Borrower or for any other purpose which is
permitted in the consents, if any, obtained pursuant to the Series Supplements
but subject to the satisfaction of the Rating Agency Condition with respect to
each Series of Notes Outstanding.


 


SECTION 6.2. Notices.
All notices, amendments, waivers, consents and other communications provided to
any party hereto under this Agreement shall be in writing and addressed,
delivered or transmitted to such party at its address or facsimile number set
forth on the signature pages hereof or at such other address or facsimile
number as may be designated by such party in a notice to the other parties. Any
notice, if mailed by certified or registered mail and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any notice, if transmitted by facsimile,
shall be deemed given when transmitted upon receipt of electronic confirmation
of such, and shall be addressed at the address specified for such party on the
signature pages hereto.


 


SECTION 6.3. Headings.
Section, subsection and other headings used in this Agreement are for
convenience only and shall not affect the construction of this Agreement.


 


SECTION 6.4. Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall not invalidate the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.


 


SECTION 6.5. Counterparts.
This Agreement may be executed in separate counterparts and by the different
parties on different counterparts, each of which shall be an original and all
of which taken together shall constitute one and the same instrument. Delivery
of an executed signature page of this Agreement by facsimile transmission shall
be effective as delivery of a manually executed counterpart hereof.


 


SECTION 6.6. Binding
Effect. This Agreement shall be binding upon and inure to the benefit of
each of the parties hereto and their respective successors and assigns. The
parties hereto may not assign either this Agreement or any of their respective
rights, interests or obligations hereunder. Nothing herein is intended or shall
be construed to give any other Person any right, remedy or claim under, to or
in respect of this Agreement or the Vehicle Collateral.


 


SECTION 6.7. Governing
Law.  THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


SECTION 6.8. Effectiveness.
This Agreement shall become effective on the execution and delivery hereof and
shall remain in effect until no Secured Party shall have any claim on the
Vehicle Collateral.


 


25

















 


SECTION 6.9. Termination
of this Agreement. At any time that no amounts are then owing to the
Secured Parties under the Related Documents and the Related Documents shall
have been terminated, the Servicer may terminate this Agreement upon notice to
the Collateral Agent and the Secured Parties, and the Collateral Agent shall
take all actions reasonably requested by the Servicer, at the Servicer’s
expense, to evidence the termination of this Agreement and the Collateral Agent’s
interest in the Vehicle Collateral, including, without limitation, execute such
documents and instruments as the Servicer may reasonably request in connection
with such reassignment; provided, however, that Sections 5.3, 5.4(a), (c), and
(e) through (k), 5.8, and the indemnification set forth in Sections 5.9 and
5.10 shall survive the termination of this Agreement.


 


SECTION 6.10. No
Bankruptcy Petition Against the Grantors. Each of the Collateral Agent and
the Servicer hereby covenants and agrees that, prior to the date which is one
year and one day after the payment in full of the latest maturing Note, it will
not institute against, or join with any other Person in instituting against,
either Grantor, Hertz Vehicles LLC or the Intermediary, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
similar proceedings under any Federal or state bankruptcy or similar law;
provided, however, that nothing in this Section 6.10 shall constitute a waiver
of any right to indemnification, reimbursement or other payment from any
Grantor or Secured Party pursuant to this Agreement. The provisions of this
Section 6.10 shall survive the termination of this Agreement, and the
resignation or removal of the Collateral Agent.


 


SECTION 6.11. No
Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Collateral Agent or any Secured Party, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.


 


SECTION 6.12. Submission
To Jurisdiction; Waivers. Each Grantor and the Servicer hereby irrevocably
and unconditionally:


 


(a)  submits for itself and its property in any
legal action or proceeding relating to this Agreement or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States for the Southern District of New York, and appellate courts from any
thereof;


 


(b)  consents that any such action or proceeding
may be brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such court
or that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;


 


(c)  agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to
such Grantor or the Servicer, as the case may be, at its address 


 


26

















 


set forth in Section 6.2 or at such other address of which the
Collateral Agent shall have been notified pursuant thereto;


 


(d)  agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction; and


 


(e)  waives, to the maximum extent not prohibited
by law, any right it may have to claim or recover in any legal action or
proceeding referred to in this Section any special, exemplary, punitive or
consequential damages.


 


SECTION 6.13. Waiver
of Jury Trial.  THE COLLATERAL AGENT, EACH
GRANTOR, EACH SECURED PARTY AND THE SERVICER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


SECTION 6.14. Insurance
Notification. The Collateral Agent shall, promptly upon its receipt of
notification of any termination of or proposed cancellation or nonrenewal of
any insurance policies required to be maintained under any of the Related
Documents, notify the related Secured Party of any such termination, proposed
cancellation or nonrenewal.


 


SECTION 6.15. Waiver
of Set-Off With Respect to the Grantors. Each of the Secured Parties hereby
waives and relinquishes any right that it has or may have to set-off or to exercise
any banker’s lien or any right of attachment or garnishment with respect to any
funds at any time and from time to time on deposit in, or otherwise to the
credit of, any account and any claims of the Grantors therein or with respect
to any right to payment from the Grantors, it being understood, however, that
nothing contained in this Section 6.15 shall, or is intended to, derogate from
the assignment and security interest granted to any Secured Party under the
Related Documents or the Collateral Agent under this Agreement or impair any
rights of the Secured Parties or the Collateral Agent hereunder or thereunder.


 


SECTION 6.16. Confidentiality.
Each party hereto (other than Hertz and the Grantors) agrees that it shall not
disclose any Confidential Information to any Person without the prior written
consent of Hertz or the applicable Grantor, as the case may be, other than (a)
to any Secured Party, and then only on a confidential basis, (b) as required by
any law, rule or regulation or any judicial process of which Hertz or the
applicable Grantor, as the case may be, has knowledge; provided that any party
hereto may disclose Confidential Information as required by law, rule or
regulation or any judicial process of which Hertz or the applicable Grantor, as
the case may be, does not have knowledge if such party is prohibited by law
from disclosing such requirement to Hertz or the applicable Grantor, as the
case may be, and (c) in the course of litigation with Hertz, any of the
Grantors, as the case may be, or any Secured Party.


 


“Confidential
Information” means information that Hertz or any of the Grantors, as
applicable, furnishes to a Secured Party on a confidential basis, but does not
include any such information that is or becomes generally available to the
public other than as a result of a disclosure by such Secured Party or other
Person to which such Secured Party delivered such information or that is or
becomes available to such Secured Party from a source other than Hertz 


 


27

















 


or any
of the Grantors, as the case may be, provided that such source is not (1) known
to such Secured Party to be bound by a confidentiality agreement with Hertz or
any of the Grantors, as the case may be, or (2) known to such Secured Party to
be otherwise prohibited from transmitting the information by a contractual,
legal or fiduciary obligation.


 


SECTION 6.17. No
Recourse. The obligations of each Grantor under this Agreement are solely
the obligations of such Grantor. No recourse shall be had for the payment of
any amount owing in respect of any fee hereunder or any other obligation or
claim arising out of or based upon this Agreement against any member, employee,
officer or director of either Grantor. Fees, expenses or costs payable by
either Grantor hereunder shall be payable by such Grantor to the extent and
only to the extent that such Grantor is reimbursed therefor pursuant to any of
the Related Documents. In the event that a Grantor is not reimbursed for such
fees, expenses or costs, the excess unpaid amount of such fees, expenses or
costs shall in no event constitute a claim (as defined in Section 101 of the
Bankruptcy Code) against, or corporate obligation of, such Grantor. Nothing in
this Section 6.17 shall be construed to limit the Collateral Agent from
exercising its rights hereunder with respect to the Collateral.


 


28

















 


IN
WITNESS WHEREOF, each party hereto has executed this Agreement or caused this
Agreement to be duly executed by its officer thereunto duly authorized as of
the day and year first above written.


 


	
   

  	
  HERTZ VEHICLE FINANCING LLC,

  
	
   

  	
   

  	
  as Grantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/     Robert H.
  Rillings

  
	
   

  	
  Name:

  	
  Robert H. Rillings

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  225 Brae Boulevard

  
	
   

  	
   

  	
  Park Ridge, NJ 07656

  
	
   

  	
  Attention:

  	
  Treasury Department

  
	
   

  	
  Telephone:

  	
  (201) 307-2000

  
	
   

  	
  Facsimile:

  	
  (201) 307-2746

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HERTZ GENERAL INTEREST LLC,

  
	
   

  	
   

  	
  as Grantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/     Robert H.
  Rillings

  
	
   

  	
  Name:

  	
  Robert H. Rillings

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  225 Brae Boulevard

  
	
   

  	
   

  	
  Park Ridge, NJ 07656

  
	
   

  	
  Attention:

  	
  Treasury Department

  
	
   

  	
  Telephone:

  	
  (201) 307-2000

  
	
   

  	
  Facsimile:

  	
  (201) 307-2746

  
						



 


29

















 


	
   

  	
  THE HERTZ CORPORATION,

  
	
   

  	
   

  	
  as Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/     Robert H.
  Rillings

  
	
   

  	
  Name:

  	
  Robert H. Rillings

  
	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  225 Brae Boulevard

  
	
   

  	
   

  	
  Park Ridge, NJ 07656

  
	
   

  	
  Attention:

  	
  Treasury Department

  
	
   

  	
  Telephone:

  	
  (201) 307-2000

  
	
   

  	
  Facsimile:

  	
  (201) 307-2746

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE HERTZ CORPORATION,

  
	
   

  	
   

  	
  as Secured Party

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/     Robert H.
  Rillings

  
	
   

  	
  Name:

  	
  Robert H. Rillings

  
	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  225 Brae Boulevard

  
	
   

  	
   

  	
  Park Ridge, NJ 07656

  
	
   

  	
  Attention:

  	
  Treasury Department

  
	
   

  	
  Telephone:

  	
  (201) 307-2000

  
	
   

  	
  Facsimile:

  	
  (201) 307-2746

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BNY MIDWEST TRUST COMPANY,

  
	
   

  	
   

  	
  as Secured Party, not in its individual

  
	
   

  	
   

  	
  capacity but solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/     Eric A.
  Lindahl

  
	
   

  	
  Name:

  	
  Eric A. Lindahl

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  2 North LaSalle Street, Suite 1020

  
	
   

  	
   

  	
  Chicago, IL 60602

  
	
   

  	
  Attention:

  	
  Corporate Trust Administration —

  
	
   

  	
   

  	
  Structured
  Finance

  
	
   

  	
  Telephone:

  	
  (312) 827-8569

  
	
   

  	
  Facsimile:

  	
  (312) 827-8562

  
					



 


30

















 


	
   

  	
  BNY MIDWEST TRUST COMPANY,

  
	
   

  	
   

  	
  not in its individual capacity but

  
	
   

  	
   

  	
  solely as Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/     Eric A.
  Lindahl

  
	
   

  	
  Name:

  	
  Eric A. Lindahl

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  2 North LaSalle Street, Suite 1020

  
	
   

  	
   

  	
  Chicago, IL 60602

  
	
   

  	
  Attention:

  	
  Corporate Trust Administration —

  
	
   

  	
   

  	
  Structured
  Finance

  
	
   

  	
  Telephone:

  	
  (312) 827-8569

  
	
   

  	
  Facsimile:

  	
  (312) 827-8562

  
					



 


31