Exhibit 4.9.28


 


The Hertz Corporation

225 Brae Boulevard

Park Ridge, NJ 07656


 


May 19,
2009


 


MBIA Insurance Corporation

113 King Street

Armonk, New York 10504 

Attention:  Insured Portfolio Management —
Structured Finance (IPM-SF) (Hertz Vehicle Financing LLC Series 2004-1
Rental Car Asset Backed Notes, Series 2005-1 Rental Car Asset Backed Notes
and Series 2005-4 Rental Car Asset Backed Notes)


 


RE:  AMENDMENT NO. 2


 


Ladies
and Gentlemen:


 


Reference is made to (i) that certain Amendment
No. 2 (“Amendment”) dated as of May 19, 2009, to the Amended
and Restated Series 2005-1 Supplement dated as of August 1, 2006 (as
amended, modified, restated or supplemented from time to time, the “Series 2005-1
Supplement”), between Hertz Vehicle Financing LLC (“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
(the “Trustee”), and as securities intermediary, to the Second Amended
and Restated Base Indenture, dated as of August 1, 2006, between HVF and
the Trustee (as amended, modified, restated or supplemented from time to time,
exclusive of Series Supplements, the “Base Indenture”) and (ii) that
certain Consent and Waiver Agreement (“Waiver Agreement”), dated as of May 19,
2009, among MBIA Insurance Corporation (“MBIA” or “you”), HVF and
the Trustee.


 


Capitalized terms used in this letter
agreement (the “Letter Agreement”) but not defined herein shall have the
meanings assigned thereto in the Amendment or, if not defined therein, in the Waiver
Agreement.


 


For so long as an Event of
Bankruptcy or a Manufacturer Event of Default with respect to either of GM or
Ford has occurred and is continuing, HVF hereby covenants that until such time
as (x) (1) the Series 2008-1 Supplement has been terminated (or
the related Notes are no longer outstanding and, pursuant to the terms of the Series 2008-1
Supplement, no additional Notes may be authorized to be issued thereunder) or (2) the
Series 2008-1 Supplement has been amended so that (or any Series Supplement
relating to Refinanced Notes (as defined below) provides that) an Event of
Bankruptcy or a Manufacturer Event of Default with respect to either of GM or
Ford has a substantially identical impact on the calculation of the “Non-Eligible
Manufacturer Amount” in each of the Series 2008-1 Supplement (or
Refinancing Supplement (as defined below)) and the 


 

















 


Series 2005-1
Supplement (after giving effect to the Amendment); provided, that, in
the event that the Series 2008-1 Notes are refinanced into a new Series of
variable funding notes (such Notes, the “Refinanced Notes” and the
related Series Supplement the “Refinancing Supplement”) or the Series 2008-1
Supplement is otherwise amended (the resulting Series Supplement after
giving effect to such amendment, the “Amended 2008-1 Supplement” and the
related Notes, the “Amended Notes”), in either case in order to satisfy
clause (2) above, solely for purposes of this clause (x), the conditions
set forth in this clause (2) shall be deemed not to have been satisfied by
such refinancing or amendment unless (i) the controlled amortization
period with respect to such Refinanced Notes or such Amended Notes, as
applicable, is expected to commence on or after August 1, 2011 or, if
there is no controlled amortization period with respect to such Refinanced
Notes or Amended Notes, the expected final maturity date of such Refinanced
Notes or Amended Notes occurs on or after August 1, 2011 or (ii) HVF
causes the Series 2005-1 Supplement to be amended such that (A) in
the event that any increased Enhancement is provided in connection with such
refinancing or amendment, as applicable, the Series 2005-1 Notes receive increased
Enhancement proportional to any increase of Enhancement provided to the related
Refinanced Notes or Amended Notes (in either case as compared to the Series 2008-1
Notes immediately prior to the effectiveness of such amendment or refinancing except
that, solely for purposes of such comparison, the Series 2008-1 Supplement
shall be deemed amended such that the calculation of “Non-Eligible Manufacturer
Amount” in the Series 2008-1 Supplement satisfies clause (2) above)
in connection with such refinancing or amendment and (B) in the event that
any Amortization Events based upon financial covenants of Hertz that (immediately
prior to the effectiveness of such amendment or refinancing) did not exist in
the Series 2008-1 Supplement are added to the Refinancing Supplement or
the Amended 2008-1 Supplement, as applicable, substantially similar
Amortization Events are added to the Series 2005-1 Supplement, (y) (i) the
definition of Eligible Manufacturer in the Base Indenture has been amended to
provide that a Manufacturer ceasing to be an Eligible Program Manufacturer on
its own will not result in such Manufacturer ceasing to be an Eligible
Manufacturer or (ii) each of GM and Ford is otherwise included as an
Eligible Manufacturer or (z) the Series 2005-1 Supplement has been
terminated (or the related Notes are no longer outstanding and all Insurer Fees
and all other Insurer Reimbursement Amounts relating to the Series 2005-1
Supplement due to MBIA under the Insurance Agreement have been paid in full) or
the Amendment ceases to be in full force and effect (the earliest of (x), (y) and
(z), the “Covenant Termination Date”), HVF (a) will not request any
Advance under and as defined in the Series 2008-1 Supplement and (b) will
repay any Advances (as defined in the Series 2008-1 Supplement) that were
outstanding at the time of such a Manufacturer Event of Default within five
Business Days of the occurrence of such Manufacturer Event of Default, in each
case unless MBIA has provided its prior written consent (such covenant, the “Advance
Covenant”).  Each of MBIA, HVF and
Hertz hereby agrees that the sole effect of a breach of the Advance Covenant
shall be the termination of the effectiveness of the Amendment (pursuant to the
terms thereof), and that no other remedy under any Related Document, at law or
in equity shall be available to any party hereto as a result of such breach.


 


This Letter Agreement may not be amended or
any provision hereof waived or modified except by an instrument in writing
signed by the parties hereto.  Your
agreement under 


 

















 


this Letter Agreement shall be legally
binding upon and enforceable against you and your successors and assigns, may
be enforced by us and our successors and assigns, and shall be enforceable
without regard to any act, event or circumstance except as expressly set forth
herein.


 


This Letter Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.


 


MBIA hereby covenants and
agrees that, prior to the date which is one year and one day after the payment
in full of the latest maturing Note (as such term is defined in the Base
Indenture), it will not institute against, or join with any other person in
instituting, against HVF, Hertz Vehicles LLC, HGI or the QI any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings, under any Federal or state bankruptcy or similar law.  In the event that MBIA takes action in
violation of this paragraph, HVF, Hertz Vehicles LLC, HGI or the QI, as the
case may be, shall file or cause to be filed an answer with the bankruptcy
court or otherwise properly contesting the filing of such a petition by MBIA
against HVF, Hertz Vehicles LLC, HGI  or
the QI, as the case may be, or the commencement of such action and raising the
defense that MBIA has agreed in writing not to take such action and should be
estopped and precluded therefrom and such other defenses, if any, as its
counsel advises that it may assert.  The
provisions of this paragraph shall survive the termination of this Letter Agreement.  Nothing contained herein shall preclude
participation by MBIA in the assertion or defense of its claims in any such
proceeding involving HVF, Hertz Vehicles LLC, HGI or the QI.


 


This Letter Agreement may be
executed in any number of counterparts and any party hereto may execute any such
counterpart, each of which when executed and delivered will be deemed to be an
original and all of which counterparts when taken together will constitute but
one and the same instrument.  The
execution of this Letter Agreement by any party hereto will not become
effective until counterparts hereof have been executed and delivered by each
other party hereto.  It will not be
necessary in making proof of this Letter Agreement or any counterpart hereof to
produce or account for any other counterparts.


 


This Letter Agreement shall
be construed in accordance with and be governed by the laws of the state of New
York, and the obligations, rights and remedies of the parties hereunder shall
be determined in accordance with such laws.


 

















 


Please evidence your acceptance of the terms
of this Letter Agreement by signing the enclosed copy of this Letter Agreement
and returning it to the undersigned.


 


	
   

  	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Hertz Corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ R. Scott
  Massengill                             
  [SEAL]

  
	
   

  	
   

  	
  Name:

  	
  R. Scott
  Massengill

  
	
   

  	
   

  	
  Title:

  	
  VP &
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ACCEPTED this 19th day

  	
   

  	
   

  
	
  of May, 2009

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MBIA Insurance Corporation

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Brian J. Cooney

  	
   

  	
   

  
	
  Name:

  	
  Brian J. Cooney

  	
   

  	
   

  
	
  Title:

  	
  Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Hertz Vehicle Financing LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ R. Scott
  Massengill

  	
   

  	
   

  
	
  Name:

  	
  R. Scott
  Massengill

  	
   

  	
   

  
	
  Title:

  	
  VP &
  Treasurer