Exhibit 4.9.27


 


EXECUTION
VERSION


 


CONSENT AND WAIVER AGREEMENT


 


CONSENT
AND WAIVER AGREEMENT, dated as of May 19, 2009 (this “Waiver Agreement”),
among MBIA INSURANCE CORPORATION, a New York corporation (“MBIA”), HERTZ
VEHICLE FINANCING LLC, a special purpose limited liability company established
under the laws of Delaware (“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 referred
to below, the “Trustee”).


 


RECITALS


 


WHEREAS,
HVF and the Trustee have entered into the Second Amended and Restated Base
Indenture, dated as of August 1, 2006 (as amended, modified, restated or
supplemented from time to time, exclusive of any Series Supplements, the “Base
Indenture”);


 


WHEREAS,
HVF and the Trustee have entered into the Second Amended and Restated Series 2004-1
Supplement, dated as of August 1, 2006, supplementing the Base Indenture
(as amended, modified, restated or supplemented from time to time, the “Series 2004-1
Supplement”);


 


WHEREAS,
HVF and the Trustee have entered into the Amended and Restated Series 2005-2
Supplement, dated as of August 1, 2006, supplementing the Base Indenture
(as amended, modified, restated or supplemented from time to time, the “Series 2005-2
Supplement”);


 


WHEREAS,
HVF and the Trustee have entered into the Amended and Restated Series 2005-4
Supplement, dated as of August 1, 2006, supplementing the Base Indenture
(as amended, modified, restated or supplemented from time to time, the “Series 2005-4
Supplement”);


 


WHEREAS,
HVF and the Trustee have entered into the Series 2008-1
Supplement, dated as of September 12, 2008, supplementing the Base
Indenture (as amended, modified, restated or supplemented from time to
time, the “Series 2008-1 Supplement”);


 


WHEREAS,
pursuant to Section 6.06 of the Series 2004-1 Supplement MBIA is
deemed to be holder of 100% of the Class A Notes for the purpose of giving
consent to a waiver pursuant to the Base Indenture or the Series 2004-1
Supplement and for the purpose of giving direction to the Trustee pursuant to
the Base Indenture;


 


WHEREAS,
pursuant to Section 6.6 of the Series 2005-1 Supplement MBIA is
deemed to be holder of 100% of the Class A Notes for the purpose of giving
consent to a waiver pursuant to the Base Indenture or the Series 2005-1
Supplement and for the purpose of giving direction to the Trustee pursuant to
the Base Indenture;


 

















 


WHEREAS,
pursuant to Section 7.7 of the Series 2005-4 Supplement MBIA is
deemed to be holder of 100% of the Class A Notes for the purpose of giving
consent to a waiver pursuant to the Base Indenture or the Series 2005-4
Supplement and for the purpose of giving direction to the Trustee pursuant to
the Base Indenture;


 


WHEREAS,
Section 12.2 of the Base Indenture permits the provisions of the Base
Indenture and any Series Supplement to be waived, and MBIA, HVF and the
Trustee wish to waive (a) the requirement that the Series 2004-1
Rating Agency Condition, the Series 2005-1 Rating Agency Condition and the
Series 2005-4 Rating Agency Condition be satisfied, in each case with
respect to S&P, in connection with the execution of (i) Amendment No. 2,
dated as of the date hereof, between HVF and the Trustee, to the Series 2005-2
Supplement (the “Series 2005-2 Amendment”) and (ii) Amendment No. 2,
dated as of the date hereof, between HVF and the Trustee, to the Series 2005-1
Supplement (the “Series 2005-1 Amendment” and, together with the Series 2005-2
Amendment, the “Amendments” or, individually, an “Amendment”) and
(b) the existence of any Non-Eligible Manufacturer Amount with respect to
any of Ford, GM or Chrysler (as more fully described below);


 


WHEREAS,
HVF has delivered an Officer’s Certificate (substantially in the form set forth
as Exhibit A hereto) to the effect that this Waiver Agreement does
not affect the Noteholders of any Series of Notes other than the Series 2004-1
Noteholders, the Series 2005-1 Noteholders and the Series 2005-4
Noteholders; and


 


WHEREAS,
Section 2.03 of the Insurance Agreement requires HVF to obtain the consent
of MBIA in connection with any waiver of any provision of the Series 2005-1
Supplement;


 


NOW
THEREFORE, in consideration of the premises and mutual covenants contained
herein, the adequacy and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:


 


AGREEMENTS


 


SECTION 1.        Defined
Terms.  Capitalized terms used but
not defined herein shall have the respective meanings assigned to them in the Series 2005-1
Amendment.


 


SECTION 2.        Waiver.


 


(I)            Each
of the parties hereby expressly waives the requirement that the Series 2004-1
Rating Agency Condition be satisfied with respect to S&P in connection with
the execution and delivery of (i) the Series 2005-1 Amendment and (ii) the
Series 2005-2 Amendment.


 


(II)           Each
of the parties hereby expressly waives the requirement that the Series 2005-1
Rating Agency Condition be satisfied with respect to S&P in connection with
the execution and delivery of (i) the Series 2005-1 Amendment and (ii) the
Series 2005-2 Amendment.


 


2

















 


(III)         Each
of the parties hereby expressly waives the requirement that the Series 2005-4
Rating Agency Condition be satisfied with respect to S&P in connection with
the execution and delivery of (i) the Series 2005-1 Amendment and (ii) the
Series 2005-2 Amendment.


 


(IV)         Each
of the parties hereto agrees to be bound by this Waiver Agreement for all
purposes.


 


(V)           Except for the express terms of the
waiver set forth in Sections  2(I), 2(II) and 2(III) above
(a) this Waiver Agreement shall in no way function to limit any of the
rights, remedies, actions or the like of any party to this Waiver Agreement
under the Related Documents and (b) no failure or delay on the part of any
party to this Waiver Agreement in exercising any such right, power, remedy or
action under the Related Documents shall operate as a waiver thereof.


 


SECTION 3.        Trustee
Direction.  By entering into this
Waiver Agreement, 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) hereby directs the Trustee to
enter into this Waiver Agreement.


 


SECTION 4.        Governing
Law.  THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE
THIS WAIVER AGREEMENT, AND ALL
MATTERS ARISING OUT OF OR IN ANY MANNER RELATING TO THIS WAIVER AGREEMENT.


 


SECTION 5.        Entire
Agreement.  This Waiver Agreement
constitutes the entire agreement of the parties relating to the subject matter
hereof and supersedes any prior agreements, whether written or oral with
respect to the subject matter hereof. 
This Waiver Agreement cannot be amended, supplemented or otherwise
modified without the written agreement of each party hereto.


 


SECTION 6.        Effectiveness.  This Waiver Agreement shall be effective upon its
execution and delivery by all the parties hereto.


 


SECTION 7.        Counterparts.  This Waiver Agreement 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.


 


SECTION 8.        Third-Party
Beneficiaries.   The Hertz
Corporation shall be an express third-party beneficiary under this Waiver
Agreement.


 


[REMAINDER OF PAGE LEFT
BLANK INTENTIONALLY]


 


3

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Waiver Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.


 


 


	
   

  	
  MBIA INSURANCE
  CORPORATION,

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian J. Cooney

  
	
   

  	
  Name:

  	
  Brian J. Cooney

  
	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HERTZ VEHICLE FINANCING
  LLC, as

  Issuer.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ R. Scott Massengill
                               [SEAL]

  
	
   

  	
  Name:

  	
  R. Scott Massengill

  
	
   

  	
  Title:

  	
  VP & Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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

  



 


4

















 


Exhibit A


 


5

















 


HERTZ VEHICLE FINANCING
LLC


 


OFFICER’S CERTIFICATE


 


I, Scott Massengill, Vice President and Treasurer of
HERTZ VEHICLE FINANCING LLC (“HVF”), a Delaware limited liability
company, hereby certify as of the date hereof that the Consent and Waiver
Agreement, dated as of May 19, 2009, among MBIA INSURANCE CORPORATION, HVF and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (as successor to BNY MIDWEST
TRUST COMPANY) (the “Waiver Agreement”) does not affect the Holders of
any Series of Notes other than Holders of the Series 2004-1 Notes, the Series
2005-1 Notes and the Series 2005-4 Notes.


 


Capitalized terms used herein but not defined shall
have the meanings set forth in the Waiver Agreement.


 

















 


IN WITNESS WHEREOF, I have signed this certificate as
of the 19th day of May, 2009.


 


 


	
   

  	
  HERTZ VEHICLE FINANCING
  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  R. Scott Massengill

  
	
   

  	
    Name:

  	
  R.
  Scott Massengill

  
	
   

  	
    Title:

  	
  VP
  & Treasurer

  
				



 


[SEAL]           


 


2