Exhibit 4.7.7


 


This Deed of Trust was prepared by

and when recorded should be returned to:


 


Latham & Watkins LLP


885 Third Avenue


Suite 1000


New York, New York 10022-4802


Attention: 
Aaron S. Adler, Esq.


(212) 906-1200


031347-0012


 


DEED OF TRUST, SECURITY AGREEMENT,


AND ASSIGNMENT OF LEASES AND RENTS AND


FIXTURE FILING


 


by


 


THE HERTZ CORPORATION, a Delaware
Corporation,

as Grantor,


 


to


 


DEUTSCHE BANK AG, NEW YORK BRANCH,


as Collateral Agent,

as Beneficiary,


 


Dated as of December 21, 2005


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
  Background

  	
  1

  
	
   

  	
   

  
	
  Granting Clauses

  	
  2

  
	
   

  	
   

  
	
  Terms and Conditions

  	
  5

  
	
   

  	
  1.

  	
  Defined Terms

  	
  5

  
	
   

  	
  2.

  	
  Warranty of Title

  	
  5

  
	
   

  	
  3.

  	
  Payment of Obligations

  	
  5

  
	
   

  	
  4.

  	
  Requirements

  	
  5

  
	
   

  	
  5.

  	
  Payment of Taxes and Other Impositions

  	
  5

  
	
   

  	
  6.

  	
  Insurance

  	
  6

  
	
   

  	
  7.

  	
  Restrictions on Liens and Encumbrances

  	
  6

  
	
   

  	
  8.

  	
  Due on Sale and Other Transfer Restrictions

  	
  6

  
	
   

  	
  9.

  	
  Condemnation/Eminent
  Domain

  	
  6

  
	
   

  	
  10.

  	
  Leases

  	
  6

  
	
   

  	
  11.

  	
  Further Assurances

  	
  7

  
	
   

  	
  12.

  	
  Beneficiary’s Right to Perform

  	
  7

  
	
   

  	
  13.

  	
  Remedies

  	
  7

  
	
   

  	
  14.

  	
  Right of Beneficiary to Credit Sale

  	
  9

  
	
   

  	
  15.

  	
  Appointment of Receiver

  	
  9

  
	
   

  	
  16.

  	
  Extension, Release, etc

  	
  9

  
	
   

  	
  17.

  	
  Security Agreement under Uniform Commercial Code

  	
  10

  
	
   

  	
  18.

  	
  Assignment of Rents

  	
  10

  
	
   

  	
  19.

  	
  Additional Rights

  	
  11

  
	
   

  	
  20.

  	
  Notices

  	
  11

  
	
   

  	
  21.

  	
  No Oral Modification

  	
  11

  
	
   

  	
  22.

  	
  Partial Invalidity

  	
  12

  
	
   

  	
  23.

  	
  Grantor’s Waiver of Rights

  	
  12

  
	
   

  	
  24.

  	
  Remedies Not Exclusive

  	
  12

  
	
   

  	
  25.

  	
  Multiple Security

  	
  13

  
	
   

  	
  26.

  	
  Successors and Assigns

  	
  14

  
	
   

  	
  27.

  	
  No Waivers, etc

  	
  14

  
	
   

  	
  28.

  	
  Governing Law, etc

  	
  14

  
	
   

  	
  29.

  	
  Certain Definitions

  	
  14

  
	
   

  	
  30.

  	
  Last Dollars Secured; Priority

  	
  15

  
	
   

  	
  31.

  	
  Release

  	
  15

  
	
   

  	
  32.

  	
  Conflict With Credit Agreement

  	
  15

  
	
   

  	
  33.

  	
  Change in Tax Law

  	
  15

  
	
   

  	
  34.

  	
  Subrogation

  	
  16

  
	
   

  	
  35.

  	
  Beneficiary as Agent

  	
  16

  
	
   

  	
  36.

  	
  Intercreditor Agreements

  	
  16

  
	
   

  	
  37.

  	
  State Specific Provisions

  	
  17

  
	
   

  	
  38.

  	
  Rights and Responsibilities of Trustee; Other
  Provisions Relating to Trustee

  	
  17

  



 

















 


DEED OF TRUST, SECURITY AGREEMENT,

ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING


 


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


 


Background


 


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


 


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


 


C.                                      Pursuant to the terms and conditions of
the Credit Agreement, the Lenders have severally agreed to make certain Loans
to the Borrower, inter alia, certain Revolving Credit Loans to the Borrower,
which include (i) the Swing Line Lender’s agreement to make certain Swing
Line Loans, and (ii) the Issuing Lender’s agreement to issue, and the
agreement of the Lenders who are L/C Participants to acquire participating
interests in, Letters of Credit for the account of the Borrower.


 

















 


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


 


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


 


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


 


Granting Clauses


 


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


 


2

















 


of counsel to the Administrative Agent, Collateral Agent or any other
Secured Party that are required to be paid by the Grantor pursuant to the terms
of the Credit Agreement or any other Loan Document) (collectively, the “ABL Obligations”)
and (2) the Euro MTN Obligations (as defined in the Intercreditor
Agreement) (the ABL Obligations and the Euro MTN Obligations are referred to
collectively herein as the “Obligations”)


 


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


 


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


 


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


 


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


 


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


 


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


 


(f)                                    all right,
title and interest of Grantor in, to and under all leases, subleases,
underlettings, concession agreements, management agreements, licenses and other
agreements relating to the use or occupancy of the Real Estate or the Equipment
or any part thereof, now


 


3

















 


existing
or subsequently entered into by Grantor and whether written or oral and all
guarantees of any of the foregoing (collectively, as any of the foregoing may
be amended, restated, extended, renewed or modified from time to time, the “Leases”), and all
rights of Grantor in respect of cash and securities deposited thereunder and
the right to receive and collect the revenues, income, rents, issues and
profits thereof, together with all other rents, royalties, issues, profits,
revenue, income and other benefits arising from the use and enjoyment of the
Mortgaged Property (as defined below) (collectively, the “Rents”);


 


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


 


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


 


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


 


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


 


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


 


This
Deed of Trust covers present and future advances and re-advances, in the
aggregate amount of the obligations secured hereby, made by the Secured Parties
for the benefit of Grantor, and the lien of such future advances and
re-advances shall relate back to the date of


 


4

















 


this Deed of Trust. The maximum amount of the obligations secured
hereby will not exceed 1.6 BILLION DOLLARS ($1,600,000,000.00)].


 


Terms and Conditions


 


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


 


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


 


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


 


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


 


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


 


5.                                       Payment of Taxes and Other Impositions. (a)  Promptly when due
or prior to the date on which any fine, penalty, interest or cost may be added
thereto or imposed, Grantor shall pay and discharge all taxes, charges and
assessments of every kind and nature, all charges for any easement or agreement
maintained for the benefit of any of the Real Estate, all general and special
assessments, levies, permits, inspection and license fees, all water and sewer
rents and charges, vault taxes and all other public charges even if unforeseen
or extraordinary,


 


5

















 


imposed upon or assessed against or which may become a lien on any of
the Real Estate, or arising in respect of the occupancy, use or possession
thereof, together with any penalties or interest on any of the foregoing (all
of the foregoing are collectively referred to herein as the “Impositions”), except where (i) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, and (ii) the Grantor has set aside on its books adequate
reserves with respect thereto in accordance with GAAP. Upon request by
Beneficiary, Grantor shall within 30 days after the request of Beneficiary,
deliver to Beneficiary evidence reasonably acceptable to Beneficiary showing
the payment of any such Imposition. If by law any Imposition, at Grantor’s
option, may be paid in installments (whether or not interest shall accrue on
the unpaid balance of such Imposition), Grantor may elect to pay such
Imposition in such installments and shall be responsible for the payment of
such installments with interest, if any.


 


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


 


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


 


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


 


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


 


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


 


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


 


10.                                 Leases. Except as permitted under the Credit Agreement
with respect to any Lease having an annual rental of more than $1,000,000,
Grantor shall not (a) execute an assignment or pledge of any Lease
relating to all or any portion of the Mortgaged Property other than in favor of
Beneficiary, or (b) without the prior written consent of Beneficiary,
which


 


6

















 


consent
shall not be unreasonably withheld or delayed, execute or permit to exist any
Lease of any material portion of the Mortgaged Property, except for Permitted
Exceptions. Beneficiary agrees that, upon the reasonable request of Grantor,
Beneficiary will enter into a subordination, non-disturbance and attornment
agreement with a tenant (other than affiliate of Grantor) that has executed a
lease after the date hereof with respect to all or a portion of the Mortgaged
Property, provided (i) Grantor certifies in writing to Beneficiary that
such lease contains commercially reasonable terms, including being at fair
market rent, (ii) such subordination, non-disturbance and attornment
agreement is in form and substance reasonably acceptable to the Beneficiary and
(iii) all the costs and expenses related thereto (including reasonable
attorneys’ fees) shall be borne by Grantor.


 


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


 


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


 


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


 


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


 


7

















 


thereon as provided in the
Credit Agreement and all reasonable out-of-pocket costs of suit, including
reasonable out-of-pocket attorneys’ fees and disbursements. Interest at the
Default Rate shall be due on any judgment obtained by Beneficiary from the date
of judgment until actual payment is made of the full amount of the judgment.
Grantor agrees that in addition to all other rights of Beneficiary hereunder
and without waiving or modifying any of its rights, Beneficiary may to the
maximum extent permitted by law, foreclose and at its sole option utilize the
provisions of any statute which allows Beneficiary to obtain the Mortgaged
Property by using a shortened redemption period; and


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(c)                                  If Beneficiary
shall have the right to foreclose this Deed of Trust or to direct a power of
sale, Grantor authorizes Beneficiary at its option to foreclose the lien of
this Deed of 


 


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Trust
or direct the sale of the Mortgaged Property, as the case may be, subject to
the rights of any tenants of the Mortgaged Property. The failure to make any
such tenants parties defendant to any such foreclosure proceeding and to
foreclose their rights, or to provide notice to such tenants as required in any
statutory procedure governing a sale of the Mortgaged Property, or to terminate
such tenant’s rights in such sale will not be asserted by Grantor as a defense
to any proceeding instituted by Beneficiary to collect the Obligations or to
foreclose the lien of this Deed of Trust.


 


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


 


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


 


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


 


18.                                 Assignment of Rents. (a)  Grantor hereby
assigns to Beneficiary the Rents as further security for the payment of and
performance of the Obligations, and Grantor grants to Beneficiary the right to
enter the Mortgaged Property for the purpose of collecting the same and to let
the Mortgaged Property or any part thereof, and to apply the Rents on account
of the Obligations. The foregoing assignment and grant is present and absolute
and shall continue in effect until the Obligations are fully paid and
performed, but Beneficiary hereby waives the right to enter the Mortgaged
Property for the purpose of collecting the Rents and Grantor shall be entitled
to collect, receive, use and retain the Rents until the occurrence and during
the continuance of an Event of Default, such right of Grantor to collect,
receive, use and retain the


 


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Rents may be revoked by Beneficiary upon the occurrence and during the
continuance of any Event of Default under this Deed of Trust by giving not less
than 10 days’ written notice of such revocation to Grantor; in the event such
notice is given, Grantor shall pay over to Beneficiary, or to any receiver
appointed to collect the Rents, any lease security deposits, and shall pay
monthly in advance to Beneficiary, or to any such receiver, the fair and
reasonable rental value as determined by Beneficiary for the use and occupancy
of such part of the Mortgaged Property as may be in the possession of Grantor
or any affiliate of Grantor, and upon default in any such payment Grantor and
any such affiliate will vacate and surrender the possession of the Mortgaged
Property to Beneficiary or to such receiver, and in default thereof may be
evicted by summary proceedings or otherwise (subject to the terms of any
documentation governing any Permitted Receivables Transaction). Grantor shall
not accept prepayments of installments of Rent to become due for a period of
more than one month in advance (except for security deposits and estimated
payments of percentage rent, if any).


 


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


 


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


 


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


 


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


 


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


 


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22.                                 Partial Invalidity. In the event any one or more
of the provisions contained in this Deed of Trust shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, but
each shall be construed as if such invalid, illegal or unenforceable provision
had never been included. Notwithstanding to the contrary anything contained in
this Deed of Trust or in any provisions of any Loan Document, the obligations
of Grantor and of any other obligor under any Loan Documents or with respect to
the Euro MTN Obligations shall be subject to the limitation that Beneficiary
shall not charge, take or receive, nor shall Grantor or any other obligor be
obligated to pay to Beneficiary, any amounts constituting interest in excess of
the maximum rate permitted by law to be charged by Beneficiary.


 


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


 


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


 


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in possession,” and Beneficiary shall not in any way be made liable for
any act, either of commission or omission, in connection with the exercise of
such remedies.


 


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


 


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26.                                 Successors and Assigns. All covenants of Grantor contained
in this Deed of Trust are imposed solely and exclusively for the benefit of
Beneficiary, and its successors and assigns, and no other person or entity
shall have standing to require compliance with such covenants or be deemed,
under any circumstances, to be a beneficiary of such covenants, any or all of
which may be freely waived in whole or in part by Beneficiary at any time if in
its sole discretion it deems such a waiver advisable. All such covenants of
Grantor shall run with the land and bind Grantor, the successors and assigns of
Grantor (and each of them) and all subsequent owners, encumbrancers and tenants
of the Mortgaged Property, and shall inure to the benefit of Beneficiary and
its successors and assigns. The word “Grantor” shall be construed as if it read
“Grantors” whenever the sense of this Deed of Trust so requires and if there
shall be more than one Grantor, the obligations of the Grantors shall be joint
and several.


 


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


 


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


 


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


 


14

















 


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


 


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


 


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


 


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


 


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


 


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


 


36.                                 Intercreditor Agreements. The lien of this Deed of
Trust herein granted to Beneficiary pursuant to the ABL Credit Agreement (as
defined in the Intercreditor Agreement) is expressly subject and subordinate to
the liens granted to Term Beneficiary pursuant to the Term Credit Agreement (as
defined in the Intercreditor Agreement) 
and the Term Deed of Trust with respect to (i) all of the Mortgaged
Property, (ii) all of the terms, covenants and conditions of this Deed of
Trust and all extensions, renewals, modifications, consolidations, spreaders or
replacements of this Deed of Trust, (iii) any other action permitted or
contemplated by this Deed


 


16

















 


of Trust and (iv) any assignment of any other property rights
mortgaged or assigned to Beneficiary as additional security for the
Obligations. Notwithstanding anything to the contrary contained herein, the
lien and security interest granted to Beneficiary pursuant to this Deed of
Trust and the exercise of any right or remedy by Beneficiary hereunder are
subject to the provisions of the Intercreditor Agreement. The foregoing provisions
of this paragraph shall remain in full force and effect for so long as the Term
Credit Agreement remains outstanding. In the event of any conflict between the
terms and provisions of the Intercreditor Agreement and the terms and
provisions of this Deed of Trust, the terms and provisions of the Intercreditor
Agreement shall govern and control. As among the beneficiaries and holders of
the ABL Obligations, as defined in the Intercreditor Agreement: (a) all
rights and claims of such beneficiaries shall be subject to the Intercreditor
Agreement; and (b) if the ABL Credit Agreement is modified in a manner
that modifies any definition, the resulting modification in definition (as it
applies in this Deed of Trust) shall bind only any parties that were bound by
such change in the ABL Credit Agreement.


 


37.                                 State Specific Provisions. [To be added]


 


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


 


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


 


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


 


(c)                                  Intentionally
Deleted.


 


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


 


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


 


(f)                                    Confirmation of
Transfer and Succession. Any new Trustee appointed pursuant to any
of the provisions hereof shall, without any further act, deed or conveyance,
become vested with all the estates, properties, rights, powers and trusts of
his predecessor in the rights hereunder with like effect as if originally named
as Trustee herein; but nevertheless, upon the written request of Beneficiary or
of any successor, substitute or replacement Trustee, any former Trustee ceasing
to act shall execute and deliver an instrument transferring to such successor,
substitute or replacement Trustee all of the right, title, estate and interest
in the Mortgaged Property of Trustee so ceasing to act, together with all the
rights, powers, privileges, immunities and duties herein conferred upon
Trustee, and shall duly assign, transfer and deliver all properties and moneys
held by said Trustee hereunder to said successor, substitute or replacement
Trustee.


 


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


 


(h)                                 Endorsement and
Execution of Documents. Upon Beneficiary’s written request, Trustee
shall, without liability or notice to Grantor, execute, consent to, or join in
any instrument or agreement in connection with or necessary to effectuate the
purposes of the Credit Documents (as defined in the Intercreditor Agreement). Grantor
hereby irrevocably designates Trustee as its attorney in fact to execute,
acknowledge and deliver, on Grantor’s behalf and in Grantor’s name, all
instruments or agreements necessary to implement any provision(s) of this 


 


18

















 


Deed
of Trust or to further perfect the lien created by this Deed of Trust on the
Mortgaged Property. This power of attorney shall be deemed to be coupled with
an interest and shall survive any disability of Grantor.


 


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


 


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


 


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


 


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


 


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


 


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


 


[SIGNATURE PAGE FOLLOWS]


 


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


 


 


	
   

  	
   

  	
  THE HERTZ CORPORATION,

  
	
   

  	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Harold E. Rolfe

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Harold E. Rolfe

  
	
   

  	
   

  	
   

  	
  Title: Senior Vice President,

  
	
   

  	
   

  	
   

  	
  General Counsel and Secretary

  



 


20

















 


NOTARY
ACKNOWLEDGMENT


 


	
  STATE OF New York

  	
  }ss

  
	
  COUNTY OF New York

  	
  }

  



 


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


 


WITNESS
my hand and official seal.


 


 


Signature


 


 


	
  /s/ Beverly Bruno

  	
   

  
	
  Beverly Bruno

  	
   

  



Notary
Public, State of New York


No.
31-4959464


Qualified
in New York County


Commission
Expires Feb. 26, 06


 


(This area for official
notarial seal)


 


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