Exhibit 4.9.13.1


 


EXECUTION VERSION


 


AMENDMENT NO. 1 (this “Amendment”) dated as of January 30,
2009, to the AMENDED AND RESTATED MASTER EXCHANGE AGREEMENT dated as of January 26,
2007 (the “Master Exchange Agreement”), among THE HERTZ CORPORATION, a
Delaware corporation (“Hertz”), HERTZ VEHICLE FINANCING LLC, a special
purpose limited liability company established under the laws of Delaware (“HVF”),
HERTZ GENERAL INTEREST LLC, a Delaware limited liability company (“HGI”),
HERTZ CAR EXCHANGE INC., a Delaware corporation (the “QI”) and DB
SERVICES TENNESSEE, INC., a Delaware corporation (“Deutsche Bank”).


 


WITNESSETH:


 


WHEREAS, HVF, HGI, Hertz, the QI and Deutsche Bank
desire to amend the Master Exchange Agreement as herein set forth.


 


WHEREAS, Section 8.03 of
the Master Exchange Agreement permits the Master Exchange Agreement to be
amended by written instrument executed by all parties thereto upon satisfaction
of the Rating Agency Condition with respect to each Series of Notes
Outstanding;


 


WHEREAS, Section 8.7(b) of the Second Amended and
Restated Base Indenture, dated as of August 1, 2006, between HVF and The Bank
of New York Mellon Trust Company, N.A., a national banking association (as
successor to BNY Midwest Trust Company, an Illinois trust company), as trustee
(together with its successors in trust thereunder as provided in the Base
Indenture, the “Trustee”) (as amended, modified or supplemented as of
the date hereof, exclusive of Series Supplements, the “Base Indenture”)
requires that HVF obtain the written consent of the Trustee, acting at the
direction of the Requisite Investors, prior to effecting any amendment to a
Related Document;


 


WHEREAS, pursuant to Section
6.06 of the Second Amended and Restated Series 2004-1 Supplement to the Base
Indenture, dated as of August 1, 2006, between HVF and the Trustee (as amended,
modified or supplemented as of the date hereof the “Series 2004-1 Supplement”),
MBIA Insurance Corporation (“MBIA”) is deemed to be the holder of 100%
of the Series 2004-1 Notes for the purpose of giving direction to the Trustee
pursuant to the Base Indenture;


 


WHEREAS, pursuant to Section 6.6
of the Amended and Restated Series 2005-1 Supplement to the Base Indenture,
dated as of August 1, 2006, between HVF and the Trustee (as amended, modified
or supplemented as of the date hereof, the “Series 2005-1 Supplement”),
MBIA is deemed to be the holder of 100% of the Class A Notes relating to the
Series 2005-1 Supplement for the purpose of giving direction to the Trustee
pursuant to the Base Indenture;


 


WHEREAS, pursuant to Section 6.6
of the Amended and Restated Series 2005-2 Supplement  to the Base Indenture, dated as of August 1,
2006, between HVF and the Trustee (as amended, modified or supplemented as of
the date hereof, the “Series


 

















 


2005-2
Supplement”), Ambac
Assurance Corporation (“Ambac”) is deemed to be the holder of 100% of
the Class A Notes relating to the Series 2005-2 Supplement for the
purpose of giving direction to the Trustee pursuant to the Base Indenture;


 


WHEREAS, pursuant to Section 7.7
of the Amended and Restated Series 2005-3 Supplement to the Base Indenture,
dated as of August 1, 2006, between HVF and the Trustee (as amended, modified
or supplemented as of the date hereof, the “Series 2005-3 Supplement”),
Ambac is deemed to be the holder of 100% of the Class A Notes relating to the
Series 2005-3 Supplement for the purpose of giving direction to the Trustee
pursuant to the Base Indenture;


 


WHEREAS, pursuant to Section 7.7
of the Amended and Restated Series 2005-4 Supplement to the Base Indenture,
dated as of August 1, 2006, between HVF and the Trustee (as amended, modified
or supplemented as of the date hereof, the “Series 2005-4 Supplement”),
MBIA is deemed to be the holder of the 100% of the Class A Notes relating to
the Series 2005-4 Supplement for the purpose of giving direction to the Trustee
pursuant to the Base Indenture;


 


WHEREAS, Section 8.01(b) of the
Series 2008-1 Note Purchase Agreement relating to the Amended and Restated
Series 2008-1 Supplement to the Base Indenture, dated as of September 12, 2008,
between HVF and the Trustee (as amended, modified or supplemented as of the
date hereof, the “Series 2008-1 Supplement” and, together with the
Series 2004-1 Supplement, the Series 2005-1 Supplement, the Series 2005-2 Supplement,
the Series 2005-3 Supplement and the Series 2005-4 Supplement, the “Series
Supplements” or each a “Series Supplement”), provides that HVF and
Hertz will not enter into certain amendments to any Series 2008-1 Related
Document unless such amendment is consented to by Series 2008-1 Noteholders
holding more than 50% of the Series 2008-1 Principal Amount, such amendment is
in writing and made in accordance with the terms of the Base Indenture and the
applicable Series 2008-1 Related Document and the Series 2008-1 Rating
Condition is satisfied in respect of such amendment;


 


WHEREAS, in connection with this
Amendment, the Rating Agency Condition has been satisfied with respect to each Series of
Notes Outstanding;


 


NOW, THEREFORE, based upon the mutual promises and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned,
intending to be legally bound, hereby agree as follows:


 


AGREEMENTS


 


1.  Defined
Terms.  All capitalized terms not
otherwise defined herein shall have the meanings assigned thereto in the Master
Exchange Agreement or, if not defined therein, the Base Indenture or the
applicable Series Supplement.


 

















 


2.  Trustee
Direction.  By agreeing, acknowledging
and consenting to this Amendment  Ambac
(as deemed holder of the Class A Notes relating to the Series 2005-2
Supplement and the Class A Notes relating to the Series 2005-3
Supplement), MBIA (as deemed holder of the Series 2004-1 Notes, the Class A
Notes relating to the Series 2005-1 Supplement and the Class A Notes
relating to the Series 2005-4 Supplement) and the Series 2008-1
Noteholders, together constituting the Requisite Investors, hereby direct the
Trustee to consent in writing to this Amendment.


 


3.  Amendments
to the Master Exchange Agreement.


 


(a) The definition
of “Owner” shall be deleted in its entirety and replaced with the following:


 


(i) ““Owner” shall mean DB Services
Tennessee, Inc., or any other entity that acquires all of the issued and
outstanding shares of the QI pursuant to Section 6.10 hereof.”


 


(b) The definition
of “QI Parent Downgrade Event” shall be deleted in its entirety and replaced
with the following:


 


(i) ““QI Parent Downgrade Event” shall
mean, on any date of determination, either (i) Deutsche Bank AG (or any
entity that becomes the ultimate parent of the QI) shall have a short-term
credit rating of below “A-1” from S&P or below “P-1” from Moody’s or (ii) if
at any time Deutsche Bank AG (or any entity that becomes the ultimate parent of
the QI) does not have a short-term credit rating, Deutsche Bank AG (or any
entity that is a successor to Deutsche Bank AG as the ultimate parent of the
QI) shall have a long-term credit rating of below “AA-” from S&P or below “Aa3”
from Moody’s.”


 


(c) The number “ten
(10)” in Section 2.10 of the Master Exchange Agreement shall be deleted
and replaced with the number “seven (7)”.


 


4.  Effectiveness.  This Amendment shall be effective as of the
date hereof upon delivery of executed signature pages by all parties
hereto; provided, that if the QI fails to amend the definition of
“Independent Director” in each of its certificate of incorporation and its
by-laws within thirty (30) days of the date hereof so that each such definition
refers to the ultimate parent of the QI (as of the date of any such amendment)
in lieu of “JPMorgan Chase Bank, N.A.”, then this Amendment shall cease to be
of any further force and effect on the fifth Business Day after written notice
of such failure is given to each of Hertz and HVF by Ambac, MBIA or Series 2008-1 Noteholders holding more than 50% of the Series 2008-1
Principal Amount.  Each of the parties hereto hereby agrees that
the sole effect of such failure shall be the termination of the effectiveness
of this Amendment (if such notice is provided), and that no other remedy at law
or in equity shall be available to any party hereto as a result of such
failure; provided, that, for the avoidance of doubt, no


 

















 


party
hereto waives any consequence that may arise under the Master Exchange
Agreement or any other Related Document if this amendment is no longer
effective or ceases to be in existence or if the QI fails to amend the
definition of “Independent Director” in its certificate of incorporation and/or
its by-laws.


 


5.  Reference to and Effect on the Master
Exchange Agreement; Ratification.


 


(a) Except as
specifically amended above, the Master Exchange Agreement is and shall continue
to be in full force and effect and is hereby ratified and confirmed in all
respects.


 


(b) The
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of any party hereto under the Master
Exchange Agreement, or constitute a waiver of any provision of any other
agreement.


 


(c) Upon the
effectiveness hereof, each reference in the Master Exchange Agreement to “Master
Exchange Agreement”, “hereto”, “hereunder”, “hereof” or words of like import
referring to the Master Exchange Agreement, and each reference in any other
Related Document to “the Master Exchange Agreement”, “thereto”, “thereof”, “thereunder”
or words of like import referring to the Master Exchange Agreement, shall mean
and be a reference to the Master Exchange Agreement as amended hereby.


 


6.  Counterparts;
Facsimile Signature.  This Amendment
may be executed in any number of counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same instrument.  Any signature page to this Amendment
containing a manual signature may be delivered by facsimile transmission or
other electronic communication device capable of transmitting or creating a
printable written record, and when so delivered shall have the effect of delivery
of an original manually signed signature page.


 


7.  Governing Law.  THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAW.


 


8.  Headings.  The descriptive headings of the various
sections of this Amendment are inserted for convenience of reference only and
shall not be deemed to affect the meaning or construction of any of the
provisions thereof.


 


9.  Severability.  The failure or unenforceability of any
provision hereof shall not affect the other provisions of this Amendment.  Whenever possible each provision of this
Amendment shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Amendment shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Amendment.


 

















 


10.  Interpretation.  Whenever the context and construction so
require, all words used in the singular number herein shall be deemed to have
been used in the plural, and vice versa, and the masculine gender shall include
the feminine and neuter and the neuter shall include the masculine and
feminine.


 

















 


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


 


	
   

  	
  THE HERTZ CORPORATION

  
	
   

  	
   

  
	
   

  	
  by:

  	
  /s/ R. Scott Massengill

  
	
   

  	
   

  	
        Name:

  	
  R. Scott Massengill

  
	
   

  	
   

  	
        Title:

  	
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
  HERTZ VEHICLE FINANCING LLC

  
	
   

  	
   

  
	
   

  	
  by:

  	
  /s/ R. Scott Massengill

  
	
   

  	
   

  	
        Name:

  	
  R. Scott Massengill

  
	
   

  	
   

  	
        Title:

  	
  VP and Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  HERTZ GENERAL INTEREST LLC

  
	
   

  	
   

  
	
   

  	
  by:

  	
  /s/ R. Scott Massengill

  
	
   

  	
   

  	
        Name:

  	
  R. Scott Massengill

  
	
   

  	
   

  	
        Title:

  	
  VP and Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  HERTZ CAR EXCHANGE INC.

  
	
   

  	
   

  
	
   

  	
  by:

  	
  /s/ Daniel Feehan

  
	
   

  	
   

  	
        Name:

  	
  Daniel Feehan

  
	
   

  	
   

  	
        Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by:

  	
  /s/ Vickie Chaplin

  
	
   

  	
   

  	
        Name:

  	
  Vickie Chaplin

  
	
   

  	
   

  	
        Title:

  	
  Associate

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DB SERVICES TENNESSEE, INC.

  
	
   

  	
   

  
	
   

  	
  by:

  	
  /s/ Alec Singh

  
	
   

  	
   

  	
        Name:

  	
  Alec Singh

  
	
   

  	
   

  	
        Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
  by:

  	
  /s/ Joe Kemble

  
	
   

  	
   

  	
        Name:

  	
  Joe Kemble

  
	
   

  	
   

  	
        Title:

  	
  Vice President

  



 

















 


AGREED, ACKNOWLEDGED AND
CONSENTED:


 


 


AMBAC ASSURANCE CORPORATION,


 


 


	
  By:

  	
  /s/ Anthony
  Nocera

  	
   

  
	
  Name:

  	
  Anthony Nocera

  
	
  Title:

  	
  First Vice
  President

  



 

















 


MBIA INSURANCE
CORPORATION


 


 


	
  By:

  	
  /s/ Brian J.
  Cooney

  	
   

  
	
  Name:

  	
  Brian J. Cooney

  
	
  Title:

  	
  Director

  



 

















 


THE BANK OF NEW YORK MELLON


TRUST COMPANY, N.A., as successor


to BNY MIDWEST TRUST COMPANY,


as Trustee


 


	
  By:

  	
  /s/ John D. Ask

  	
   

  
	
  Name:

  	
  John D. Ask

  	
   

  
	
  Title:

  	
  Assistant Treasurer

  	
   

  
				



 

















 


SHEFFIELD RECEIVABLES CORPORATION,


as a Conduit Investor


 


 


By: Barclays Bank PLC, as Attorney-in-Fact


 


 


	
  By:

  	
  /s/ Jason D. Muncy

  	
   

  
	
  Name:

  	
  Jason D. Muncy

  	
   

  
	
  Title:

  	
  Associate Director

  	
   

  
				



 


 


SHEFFIELD RECEIVABLES CORPORATION,


as a Committed Note Purchaser


 


 


By: Barclays Bank PLC, as Attorney-in-Fact


 


 


	
  By:

  	
  /s/ Jason D. Muncy

  	
   

  
	
  Name:

  	
  Jason D. Muncy

  	
   

  
	
  Title:

  	
  Associate Director

  	
   

  
				



 


 


BARCLAYS BANK PLC., as a Funding Agent


 


 


	
  By:

  	
  /s/ Jeffrey Goldberg

  	
   

  
	
  Name:

  	
  Jeffrey Goldberg

  	
   

  
	
  Title:

  	
  Associate Director

  	
   

  
				



 


 


Representing 36.36% of
the Series 2008-1 Notes


 

















 


NANTUCKET FUNDING CORP., LLC,


as a Conduit Investor


 


 


	
  By:

  	
  /s/ Philip A. Martone

  	
   

  
	
  Name:

  	
  Philip A. Martone

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  
				



 


 


DEUTSCHE BANK AG, NEW YORK BRANCH,


as a Committed Note Purchaser


 


 


	
  By:

  	
  /s/ Daniel Gerber

  	
   

  
	
  Name:

  	
  Daniel Gerber

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  
				



 


	
  By:

  	
  /s/ Robert Sheldon

  	
   

  
	
  Name:

  	
  Robert Sheldon

  	
   

  
	
  Title:

  	
  Director

  	
   

  
				



 


 


DEUTSCHE BANK AG, NEW YORK BRANCH,


as a Funding Agent


 


 


	
  By:

  	
  /s/ Daniel Gerber

  	
   

  
	
  Name:

  	
  Daniel Gerber

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  
				



 


	
  By:

  	
  /s/ Robert Sheldon

  	
   

  
	
  Name:

  	
  Robert Sheldon

  	
   

  
	
  Title:

  	
  Director

  	
   

  
				



 


 


Representing 36.36%
of the Series 2008-1 Notes


 

















 


MERRILL LYNCH MORTGAGE CAPITAL INC.,


as a Committed Note Purchaser


 


 


	
  By:

  	
  /s/ Joseph Magnus

  	
   

  
	
  Name:

  	
  Joseph Magnus

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  
				



 


 


MERRILL LYNCH MORTGAGE CAPITAL INC.,


as a Funding Agent


 


 


	
  By:

  	
  /s/ Joseph Magnus

  	
   

  
	
  Name:

  	
  Joseph Magnus

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  
				



 


 


Representing 27.27%
of the Series 2008-1 Notes