Exhibit 4.9.26.1
EXECUTION VERSION
HERTZ VEHICLE FINANCING LLC,
as Issuer
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
(formerly known as The Bank of New York Trust Company, N.A.),
as Trustee and Securities Intermediary
SERIES 2008-1 SUPPLEMENT
dated as of September 12, 2008
to
SECOND AMENDED AND RESTATED
BASE INDENTURE
dated as of August 1, 2006
$825,000,000 Series 2008-1 Variable Funding Rental Car Asset
Backed Notes
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
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4
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ARTICLE II INITIAL ISSUANCE AND INCREASES AND DECREASES OF PRINCIPAL
AMOUNT OF SERIES 2008-1 NOTES
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42
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Section 2.1
Initial Issuance; Procedure for Increasing the Series 2008-1 Principal
Amount
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42
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Section 2.2
Procedure for Decreasing the Series 2008-1 Principal Amount
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43
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ARTICLE III SERIES 2008-1
ALLOCATIONS
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45
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Section 3.1
Series 2008-1 Series Accounts
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45
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Section 3.2
Allocations with Respect to the Series 2008-1 Notes
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47
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Section 3.3
Application of Interest Collections
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50
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Section 3.4
Payment of Note Interest
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53
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Section 3.5
Payment of Note Principal
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53
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Section 3.6
Payment by Wire Transfer
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58
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Section 3.7
The Administrator’s Failure to Instruct the Trustee to Make a Deposit or
Payment
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58
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Section 3.8
Series 2008-1 Reserve Account
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59
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Section 3.9
Series 2008-1 Letters of Credit and Series 2008-1 Cash Collateral
Accounts
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60
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Section 3.10
Series 2008-1 Distribution Account
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64
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Section 3.11
Trustee as Securities Intermediary
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66
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Section 3.12
Series 2008-1 Interest Rate Caps
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67
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Section 3.13
Series 2008-1 Demand Note Constitutes Additional Collateral for
Series 2008-1 Notes
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69
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ARTICLE IV AMORTIZATION EVENTS
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70
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ARTICLE V FORM OF SERIES
2008-1 NOTES
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72
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Section 5.1
Issuance of Series 2008-1 Notes
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72
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Section 5.2
Transfer of Series 2008-1 Notes
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73
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ARTICLE VI GENERAL
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75
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Section 6.1
Optional Redemption of Series 2008-1 Notes
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75
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Section 6.2
Information
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75
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Section 6.3
Exhibits
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80
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i
TABLE OF CONTENTS
(continued)
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Page
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Section 6.4
Ratification of Base Indenture
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80
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Section 6.5
Notice to the Rating Agencies
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80
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Section 6.6
Third Party Beneficiary
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80
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Section 6.7
Counterparts
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80
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Section 6.8
Governing Law
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80
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Section 6.9
Amendments
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81
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Section 6.10
Covenant Regarding Affiliate Issuers
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81
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Section 6.11
Termination of Series Supplement
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81
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Section 6.12
Discharge of Indenture
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81
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ii
TABLE OF CONTENTS
(continued)
EXHIBITS
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Exhibit A:
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Form of Series 2008-1 Variable Funding Rental Car Asset
Backed Notes
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Exhibit B:
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Form of Series 2008-1 Letter of Credit
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Exhibit C:
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Form of Lease Payment Deficit Notice
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Exhibit D:
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Form of
Series 2008-1 Letter of Credit Reduction Notice
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Exhibit E:
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Form of Purchaser’s Letter
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Exhibit F-1:
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Form of Monthly Noteholders’ Statement
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Exhibit F-2:
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Form of Weekly Noteholders’ Statement
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Exhibit G-1:
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Form of Demand Notice
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Exhibit G-2:
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Form of Series 2008-1 Demand Note
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Exhibit H:
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Form of Estimated Interest Adjustment Notice
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iii
SERIES 2008-1 SUPPLEMENT dated
as of September 12, 2008 (“
Series Supplement
”) between 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. (formerly known as the Bank of New York Trust Company,
N.A.), a national banking association, as trustee (together with its successors
in trust thereunder as provided in the Base Indenture referred to below, the “
Trustee
”),
and as securities intermediary (in such capacity, the “
Securities
Intermediary
”), to the Second Amended and Restated Base Indenture, dated as
of August 1, 2006, between HVF and the Trustee (as amended, modified or
supplemented from time to time, exclusive of Series Supplements, the “
Base
Indenture
”).
PRELIMINARY STATEMENT
WHEREAS, Sections 2.2 and 12.1
of the Base Indenture provide, among other things, that HVF and the Trustee may
at any time and from time to time enter into a supplement to the Base Indenture
for the purpose of authorizing the issuance of one or more Series of
Notes.
NOW, THEREFORE, the parties
hereto agree as follows:
DESIGNATION
There is hereby created a Series of
Notes to be issued pursuant to the Base Indenture and this Series Supplement
and such Series of Notes shall be designated as Rental Car Asset Backed
Notes, Series 2008-1. On the Series 2008-1
Closing Date, one class of Series 2008-1 Variable Funding Rental Car Asset
Backed Notes shall be issued, and be referred to herein as the “
Series 2008-1
Notes
”.
The net proceeds from the sale
of the Series 2008-1 Notes shall be deposited in the Series 2008-1
Excess Collection Account and used to make payments in reduction of the
Principal Amount of other Series of Notes or paid to HVF and used to
acquire Eligible Vehicles from HGI pursuant to the Purchase Agreement or for
other purposes permitted under the Related Documents.
ARTICLE I
DEFINITIONS
(a) All capitalized terms not otherwise
defined herein shall have the meanings assigned thereto in the Definitions List
attached to the Base Indenture as
Schedule I
thereto, as amended,
modified, restated or supplemented from time to time in accordance with the
terms of the Base Indenture or the Series 2008-1 Note Purchase Agreement;
provided
,
however
, that to the extent any capitalized term used but not defined
herein has a meaning assigned to such term in both the Definitions List
attached to the Base Indenture as
Schedule I
thereto and the Series 2008-1
Note Purchase Agreement, then the meaning given to such term in the Definitions
List attached to the Base Indenture as Schedule I shall apply. All Article, Section or Subsection
references herein shall refer to Articles, Sections or Subsections of the Base
Indenture, except as
otherwise provided herein. Unless otherwise stated herein, as the
context otherwise requires or if such term is otherwise defined in the Base
Indenture, each capitalized term used or defined herein shall relate only to
the Series 2008-1 Notes and not to any other Series of Notes issued
by HVF. All references herein to the “Series 2008-1
Supplement” shall mean the Base Indenture, as supplemented hereby.
(b) The following words and phrases shall
have the following meanings with respect to the Series 2008-1 Notes (whether
such words and phrases are used in this Series Supplement, the Base
Indenture or any other Related Document) and the definitions of such terms are
applicable to the singular as well as the plural form of such terms and to the
masculine as well as the feminine and neuter genders of such terms:
“
Additional Series 2008-1
Notes
” has the meaning specified in
Section 5.1
of this Series Supplement.
“
Adjusted Aggregate Asset
Amount
” means, as of any day, the sum of (a) the Aggregate Asset Amount and
(b) the sum of (1) the amount of cash and Permitted Investments on deposit in
the Series 2008-1 Collection Account and available for reduction of the Series
2008-1 Principal Amount and (2) the amount of cash and Permitted Investments on
deposit in the Series 2008-1 Excess Collection Account, in each case, on such
day.
“
Administrative Agent
”
has the meaning specified in the Series 2008-1 Note Purchase Agreement.
“
Administrator Default
” means any of
the events described in
Section 8(c)
of the Administration
Agreement.
“
Aggregate
BMW/Lexus/Mercedes/Audi Amount
” means, as of any date of determination, the
sum of the BMW Amount, the Lexus Amount, the Mercedes Amount and the Audi
Amount, in each case, as of such date.
“
Aggregate
Kia/Subaru/Hyundai Amount
” means, as of any date of determination, the sum
of the Kia Amount, the Subaru Amount and the Hyundai Amount, in each case, as
of such date.
“
Annualized Financing Cost
”
means, with respect to any Series 2008-1 Interest Period, the amounts
payable pursuant to
Sections 3.3(a)(i)
and
(ii)
of this
Series Supplement with respect to such Series 2008-1 Interest Period,
expressed as an annual percent of the Series 2008-1 Principal Amount.
“
Audi Amount
” means, as
of any date of determination, an amount equal to the sum of the Manufacturer
Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle
Amount, in each case, with respect to Audi as of such date.
“
Bankrupt Manufacturer
”
means, as of any day, each Manufacturer for which an Event of Bankruptcy
(determined without regard to the 60 day period in the case of clause (a) of
the definition of Event of Bankruptcy) has occurred; provided that
2
any such
Manufacturer for which an Event of Bankruptcy has occurred shall cease to
constitute a Bankrupt Manufacturer when it has satisfied the Confirmation
Condition.
“
Bankrupt Manufacturer
Vehicle Amount
” means, as of any date of determination, an amount equal to
the sum of the Manufacturer Eligible Program Vehicle Amounts and the
Manufacturer Non-Eligible Vehicle Amounts for all Bankrupt Manufacturers as of
such date.
“
Bankrupt Manufacturer
Vehicle Percentage
” means, as of any date of determination, the percentage
equivalent of a fraction, the numerator of which is the Bankrupt Manufacturer
Vehicle Amount as of such date and the denominator of which is the excess of (A) the
Aggregate Asset Amount over (B) the amount of cash and Permitted
Investments on deposit in the Collection Account and the HVF Exchange Account,
in each case, as of such date.
“
BMW Amount
” means, as of any date of
determination, an amount equal to the sum of the Manufacturer Non-Eligible
Vehicle Amount and the Manufacturer Eligible Program Vehicle Amount, in each
case, with respect to BMW as of such date.
“
Capital
Stock
” means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests (including, without limitation, membership
interests) in a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
“
Capped Category 2
Manufacturer Eligible Program Vehicle Percentage
” means, as of any date of
determination, the lesser of (i) the Category 2 Manufacturer Eligible
Program Vehicle Percentage as of such date and (ii) 10%.
“
Capped Category 2
Manufacturer Program Vehicle Percentage
” means, as of any date of
determination, the lesser of (i) the Category 2 Manufacturer Program
Vehicle Percentage as of such date and (ii) 10%.
“
Capped Non-Top Two Category
3 Manufacturer Vehicle Percentage
” means, as of any date of determination,
the lesser of (i) the Non-Top Two Category 3 Manufacturer Vehicle
Percentage as of such date and (ii) 30%.
“
Carlyle
”
means TC Group LLC (which operates under the trade name The Carlyle Group).
“
Carlyle
Investors
” means the collective reference to (a) Carlyle Partners IV,
L.P., a Delaware limited partnership, (b) CEP II Participations S.àr.l., a
Luxembourg limited liability company, (c) CP IV Co-investment L.P., a
Delaware limited partnership, (d) CEP II U.S. Investments, L.P., a
Delaware limited partnership, and (e) any Affiliate of any thereof.
3
“
Category 1 Manufacturer
”
means, as of any date of determination, each Eligible Manufacturer who as of
such date (i) is not a Bankrupt Manufacturer and (ii) has a long-term
unsecured debt rating of at least “A2” from Moody’s and at least “A” from
Standard & Poor’s;
provided
, that if an Eligible Manufacturer
does not have a rating from Moody’s or Standard & Poor’s, then the
rating of an affiliated entity specified by the Rating Agencies shall apply for
purposes of this definition;
provided
,
further
, that if (a) the
rating of a Manufacturer by a Rating Agency is withdrawn by such Rating Agency
or a Manufacturer is downgraded by a Rating Agency to a rating that would
require the exclusion of such Manufacturer from this definition and (b) prior
to such withdrawal or downgrade, as the case may be, such Manufacturer was a
Category 1 Manufacturer, then for purposes of this definition and each instance
in which this definition is used in this Supplement, such Manufacturer shall be
deemed to be rated “A2” or “A”, as applicable, by the Rating Agency that withdrew
the rating of such Manufacturer or downgraded the rating of such Manufacturer
for a period of thirty (30) days following the earlier of (i) the date on
which any of the Administrator, HVF or the Servicer obtains actual knowledge of
such withdrawal or downgrade and (ii) the date on which the Trustee or the
Administrative Agent notifies the Servicer of such withdrawal or downgrade.
“
Category 1 Manufacturer
Eligible Program Vehicle Amount
” means, as of any date of determination,
the sum of the Manufacturer Eligible Program Vehicle Amounts for all Category 1
Manufacturers as of such date.
“
Category 1 Manufacturer
Eligible Program Vehicle Percentage
” means, as of any date of
determination, the percentage equivalent of a fraction, the numerator of which
is the Category 1 Manufacturer Eligible Program Vehicle Amount as of such date
and the denominator of which is the excess of (A) the Aggregate Asset
Amount over (B) the amount of cash and Permitted Investments on deposit in
the Collection Account and the HVF Exchange Account, in each case, as of such
date.
“
Category 1 Manufacturer
Non-Eligible Program Vehicle Amount
” means, as of any date of
determination, the sum of the Manufacturer Non-Eligible Program Vehicle Amounts
for all Category 1 Manufacturers as of such date.
“
Category 1 Manufacturer
Non-Eligible Program Vehicle Percentage
” means, as of any date of
determination, the percentage equivalent of a fraction, the numerator of which
is the Category 1 Manufacturer Non-Eligible Program Vehicle Amount as of such
date and the denominator of which is the excess of (A) the Aggregate Asset
Amount over (B) the amount of cash and Permitted Investments on deposit in
the Collection Account and the HVF Exchange Account, in each case, as of such
date.
“
Category 1 Manufacturer
Non-Eligible Vehicle Amount
” means, as of any date of determination, the
sum of the Manufacturer Non-Eligible Vehicle Amounts for all Category 1
Manufacturers as of such date.
“
Category 1 Manufacturer
Non-Eligible Vehicle Percentage
” means, as of any date of determination,
the percentage equivalent of a fraction, the numerator of which is the Category
1 Manufacturer Non-Eligible Vehicle Amount as of such date and the
4
denominator of
which is the excess of (A) the Aggregate Asset Amount over (B) the
amount of cash and Permitted Investments on deposit in the Collection Account
and the HVF Exchange Account, in each case, as of such date.
“
Category 2 Manufacturer
” means, as of
any date of determination, each Eligible Manufacturer who as of such date (i) is
not a Bankrupt Manufacturer and (ii) has a long-term unsecured debt rating
of at least “A3” from Moody’s and at least “A-” from Standard & Poor’s,
but which does not have a long-term unsecured debt rating of at least “A2” from
Moody’s and at least “A” from Standard &Poor’s;
provided
that
if an Eligible Manufacturer does not have a rating from Moody’s or Standard &
Poor’s, then the rating of an affiliated entity specified by the Rating
Agencies shall apply for purposes of this definition;
provided
,
further
,
that if (a) (x) a Manufacturer is downgraded by a Rating Agency to a
rating that would require inclusion of such Manufacturer in this definition and
(y) prior to such downgrade, as the case may be, such Manufacturer was a
Category 1 Manufacturer, then for purposes of this definition and each instance
in which this definition is used in this Supplement, then such Manufacturer
shall be deemed to be rated “A2” or “A”, as applicable, by the Rating Agency
that downgraded such Manufacturer for a period of thirty (30) days following
the earlier of (i) the date on which any of the Administrator, HVF or the
Servicer obtains actual knowledge of such downgrade and (ii) the date on
which the Trustee or the Administrative Agent notifies the Servicer of such
downgrade or (b) (x) the rating of a Manufacturer by a Rating Agency
is withdrawn by such Rating Agency or a Manufacturer is downgraded by a Rating
Agency to a rating that would require the exclusion of such Manufacturer from
this definition and (y) prior to such withdrawal or downgrade, as the case
may be, such Manufacturer was a Category 2 Manufacturer, then such Manufacturer
shall be deemed to be rated “A3” or “A-”, as applicable, by the Rating Agency
that withdrew the rating of such Manufacturer or downgraded the rating of such
Manufacturer for a period of thirty (30) days following the earlier of (i) the
date on which any of the Administrator, HVF or the Servicer obtains actual
knowledge of such withdrawal or downgrade and (ii) the date on which the
Trustee or the Administrative Agent notifies the Servicer of such withdrawal or
downgrade.
“
Category 2 Manufacturer
Eligible Program Vehicle Amount
” means, as of any date of determination,
the sum of the Manufacturer Eligible Program Vehicle Amounts for all Category 2
Manufacturers as of such date.
“
Category 2 Manufacturer
Eligible Program Vehicle Percentage
” means, as of any date of
determination, the percentage equivalent of a fraction, the numerator of which
is the Category 2 Manufacturer Eligible Program Vehicle Amount as of such date
and the denominator of which is the excess of (A) the Aggregate Asset
Amount over (B) the amount of cash and Permitted Investments on deposit in
the Collection Account and the HVF Exchange Account, in each case, as of such
date.
“
Category 2 Manufacturer
Eligible Program Vehicle Percentage Excess
” means, as of any date of
determination, the excess, if any, of the Category 2 Manufacturer Eligible
Program Vehicle Percentage as of such date over 10%.
5
“
Category 2 Manufacturer
Non-Eligible Program Vehicle Amount
” means, as of any date of
determination, the sum of the Manufacturer Non-Eligible Program Vehicle Amounts
for all Category 2 Manufacturers as of such date.
“
Category 2 Manufacturer
Non-Eligible Program Vehicle Percentage
” means, as of any date of
determination, the percentage equivalent of a fraction, the numerator of which
is the Category 2 Manufacturer Non-Eligible Program Vehicle Amount as of such
date and the denominator of which is the excess of (A) the Aggregate Asset
Amount over (B) the amount of cash and Permitted Investments on deposit in
the Collection Account and the HVF Exchange Account, in each case, as of such
date.
“
Category 2 Manufacturer
Non-Eligible Vehicle Amount
” means, as of any date of determination, the
sum of the Manufacturer Non-Eligible Vehicle Amounts for all Category 2
Manufacturers as of such date.
“
Category 2 Manufacturer
Non-Eligible Vehicle Percentage
” means, as of any date of determination,
the percentage equivalent of a fraction, the numerator of which is the Category
2 Manufacturer Non-Eligible Vehicle Amount as of such date and the denominator
of which is the excess of (A) the Aggregate Asset Amount over (B) the
amount of cash and Permitted Investments on deposit in the Collection Account
and the HVF Exchange Account, in each case, as of such date.
“
Category 2 Manufacturer
Program Vehicle Percentage
” means, as of any date of determination, the sum
of (i) the Category 2 Manufacturer Eligible Program Vehicle Percentage as
of such date and (ii) the Category 2 Manufacturer Non-Eligible Program
Vehicle Percentage as of such date.
“
Category 3 Manufacturer
”
means, as of any date of determination, each Eligible Manufacturer that as of
such date (i) is not a Bankrupt Manufacturer and (ii) does not have a
long-term unsecured debt rating of at least “A3” from Moody’s and at least “A-”
from Standard & Poor’s;
provided
that if an Eligible
Manufacturer does not have a rating from Moody’s or Standard & Poor’s,
then the rating of an affiliated entity specified by the Rating Agencies shall
apply for purposes of this definition;
provided
,
further
, that if
(a) the rating of a Manufacturer by a Rating Agency is withdrawn by such
Rating Agency or a Manufacturer is downgraded by a Rating Agency to a rating
that would require inclusion of such Manufacturer in this definition and (b) prior
to such withdrawal or downgrade, as the case may be, such Manufacturer was a
Category 1 Manufacturer or a Category 2 Manufacturer, then for purposes of this
definition and each instance in which this definition is used in this
Supplement, such Manufacturer shall be deemed to be rated “A3” or “A-”, as
applicable, by the Rating Agency that withdrew the rating of such Manufacturer
or downgraded the rating of such Manufacturer for a period of thirty (30) days
following the earlier of (i) the date on which any of the Administrator,
HVF or the Servicer obtains actual knowledge of such withdrawal or downgrade
and (ii) the date on which the Trustee or the Administrative Agent
notifies the Servicer of such withdrawal or downgrade.
6
“
Category 3 Manufacturer
Non-Eligible Vehicle Amount
” means, as of any date of determination, the
sum of the Manufacturer Non-Eligible Vehicle Amounts for all Category 3
Manufacturers as of such date.
“
Category 3 Manufacturer
Non-Eligible Vehicle Percentage
” means, as of any date of determination,
the percentage equivalent of a fraction, the numerator of which is the Category
3 Manufacturer Non-Eligible Vehicle Amount as of such date and the denominator
of which is the excess of (A) the Aggregate Asset Amount over (B) the
amount of cash and Permitted Investments on deposit in the Collection Account
and the HVF Exchange Account, in each case, as of such date.
“
Category 3 Manufacturer
Vehicle Amount
” means, as of any date of determination, the sum of the Manufacturer
Eligible Program Vehicle Amounts and Manufacturer Non-Eligible Vehicle Amounts
for all Category 3 Manufacturers as of such date.
“
Category 3 Manufacturer
Vehicle Percentage
” means, as of any date of determination, the percentage
equivalent of a fraction, the numerator of which is the Category 3 Manufacturer
Vehicle Amount as of such date and the denominator of which is the excess of (A) the
Aggregate Asset Amount over (B) the amount of cash and Permitted
Investments on deposit in the Collection Account and the HVF Exchange Account,
in each case, as of such date.
“
CD&R
”
means Clayton, Dubilier & Rice, Inc.
“
CD&R
Investors
” means the collective reference to (i) Clayton,
Dubilier & Rice Fund VII, L.P., a Cayman Islands exempted limited
partnership, (ii) CD&R CCMG Co-Investor L.P., a Cayman Islands
exempted limited partnership, (iii) CD&R Parallel Fund VII, L.P., a
Cayman Islands exempted limited partnership, and (iv) any Affiliate of any
thereof.
“
Change of
Control
” means the occurrence of any of the following
events: (a) (i) (x) the Permitted Holders shall in
the aggregate be the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act) of (A) so long as Investors is a Subsidiary
of any Parent Entity, shares of Voting Stock having less than 35% of the total
voting power of all outstanding shares of such Parent Entity (other than a
Parent Entity that is a Subsidiary of another Parent Entity) and (B) if
Investors is not a Subsidiary of any Parent Entity, shares of Voting Stock
having less than 35% of the total voting power of all outstanding shares of
Investors and (y) any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than one or more
Permitted Holders, shall be the “beneficial owner” of (A) so long as
Investors is a Subsidiary of any Parent Entity, shares of Voting Stock having
more than 35% of the total voting power of all outstanding shares of such
Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent
Entity) and (B) if Investors is not a Subsidiary of any Parent Entity,
shares of Voting Stock having more than 35% of the total voting power of all
outstanding shares of Investors or (ii) the Continuing Directors shall
cease to constitute a majority of the members of the board of directors of
Investors;
7
(b) Investors shall cease to own,
directly or indirectly, 100% of the Capital Stock of Hertz; (c) Investors
shall cease to own, directly or indirectly, 100% of the Capital Stock of HVF;
or (d) Hertz shall cease to directly own 100% of the Capital Stock of HVF.
“
Committed Purchaser
” means a special
purpose company or any other Person, including each Committed Note Purchaser,
that has committed to purchase a Series of Notes from HVF from time to
time and that may finance such purchases with, among other things, the proceeds
of commercial paper notes.
“
Confirmation Condition
”
means, with respect to a Manufacturer that is the subject of an Event of Bankruptcy
that is a proceeding under Chapter 11 of the Bankruptcy Code to reorganize (the
“
Proceeding
”), a condition that is satisfied upon entry and during the
effectiveness of an order by the bankruptcy court having jurisdiction over the
Proceeding approving (i) (A) assumption under Section 365 of the
Bankruptcy Code by the Manufacturer, or trustee in bankruptcy on its behalf, of
its Manufacturer Program (and all related Assignment Agreements), (B) at
the time of such assumption, payment of all amounts due and payable by the
Manufacturer to HVF or any of its Affiliates under its Manufacturer Program,
and (C) all actions and payments necessary to cure all existing defaults
by the Manufacturer with respect to HVF or any of its Affiliates under the
Manufacturer Program to the date of effectiveness of such order, or (ii) (A) execution,
delivery and performance by the Manufacturer of (x) a new post-petition
Manufacturer Program under which HVF is an eligible fleet purchaser and having
substantially the same terms and covering Vehicles with substantially the same
characteristics as the Manufacturer Program in effect on the date the
Proceeding was commenced and (y) new Assignment Agreements effecting the
assignment of benefits of such new Manufacturer Program from HVF to the
Collateral Agent and acknowledged by the Manufacturer, (B) payment of all
amounts due and payable by such Manufacturer to HVF or any of its Affiliates
under the Manufacturer Program in effect on the date the Proceeding was
commenced at the time of the execution and delivery of the new post-petition
Manufacturer Program, and (C) all actions and payments necessary to cure
all existing defaults by the Manufacturer with respect to HVF or any of its
Affiliates under the Manufacturer Program in effect on the date the Proceeding
was commenced to the date of effectiveness of such order, and in each case in (i) or
(ii) above the actions and payments in clause (C) have been taken or
made.
“
Continuing
Directors
” means the directors of Investors on the Series 2008-1
Closing Date and each other director if, in each case, such other director’s
nomination for election to the board of directors of Investors is recommended
by at least a majority of the then Continuing Directors or the election of such
other director is approved by one or more Permitted Holders.
“
Credit Support Annex
”
has the meaning set forth in
Section 3.12(b)
of this Series Supplement.
“
Decrease
” means a
Mandatory Decrease or a Voluntary Decrease, as applicable.
8
“
Demand Notice
” has the
meaning specified in
Section 3.5(b)(iii)
of this Series Supplement.
“
Eligible Interest Rate Cap
Provider
” means a counterparty to a Series 2008-1 Interest Rate Cap
that is a bank, other financial institution or Person which (i) satisfies
the Moody’s First Trigger Required Ratings and/or the Moody’s Second Trigger
Required Ratings (or whose present and future obligations under its Series 2008-1
Interest Rate Cap are guaranteed pursuant to a guarantee (in form and substance
satisfactory to the Rating Agencies and the Administrative Agent and satisfying
the other requirements set forth in the related Series 2008-1 Interest
Rate Cap) provided by a guarantor which satisfies the Moody’s First Trigger
Required Ratings and/or the Moody’s Second Trigger Required Ratings) and (ii) has
a short-term senior unsecured debt, deposit, claims paying or credit (as the
case may be) rating of at least “A-1” from Standard & Poor’s, or if
such counterparty does not have a short-term senior unsecured debt rating from
Standard & Poor’s, a long-term senior unsecured debt, deposit, claims
paying or credit (as the case may be) rating of at least “A+” from Standard &
Poor’s (or whose present and future obligations under its Series 2008-1
Interest Rate Cap are guaranteed pursuant to a guarantee (in form and substance
satisfactory to the Rating Agencies and the Administrative Agent and satisfying
the other requirements set forth in the related Series 2008-1 Interest
Rate Cap) provided by a guarantor which has the ratings set forth in this
clause (ii));
provided
that each Eligible Interest Rate Cap Provider
shall be approved by the Administrative Agent, such approval not to be
unreasonably withheld or delayed.
“
Eligible Program Manufacturer
” means (a) Ford, GM,
Chrysler, Toyota, Honda, Mazda, Nissan, Volvo, Jaguar, Audi, Volkswagen, Land
Rover, Hyundai, Kia, Lexus, Mercedes and BMW or (b) a Manufacturer (i) who,
at the time that such Manufacturer is proposed for consideration as an Eligible
Program Manufacturer, has a long term unsecured debt rating of at least “A-”
from S&P and at least “A3” from Moody’s (
provided
, that if a
Manufacturer proposed for consideration under this clause (b)(i) does not
have a rating from S&P or Moody’s, then the rating of the entity specified
by the Rating Agencies shall apply), or (ii) with respect to which the
Rating Agency Condition with respect to each Series of Notes Outstanding
shall have been satisfied;
provided
,
however
, that upon the
occurrence of a Manufacturer Event of Default with respect to any Manufacturer
described in clauses (a) or (b) above, such Manufacturer shall no
longer qualify as an Eligible Program Manufacturer.
“
Eligible Program Vehicle
Amount
” means, as of any date of determination, an amount equal to the sum,
rounded to the nearest $100,000, of the following amounts to the extent that
such amounts are included in the definition of “Aggregate Asset Amount” for
such date: (i) the Net Book Value of all Eligible Program Vehicles that
are Eligible Vehicles as of such date and not turned in to and accepted by the
Manufacturer thereof pursuant to its Manufacturer Program, not delivered and
accepted for Auction pursuant to a Manufacturer Program or not otherwise sold
or deemed to be sold under the Related Documents,
plus
(ii) the
aggregate amount of Manufacturer Receivables (other than Excluded Payments)
payable to HVF or to the Intermediary pursuant to the Master Exchange
Agreement, in each case, as of such date
9
by
Manufacturers which are Eligible Program Manufacturers with respect to Vehicles
that were Eligible Vehicles and Eligible Program Vehicles when turned in to and
accepted by such Manufacturers or delivered and accepted for Auction,
plus
(iii) with respect to Eligible Vehicles that were Eligible Program
Vehicles that have been delivered and accepted for Auction pursuant to a
Manufacturer Program with a Manufacturer which is an Eligible Program
Manufacturer, all amounts receivable (other than amounts specified in
clause
(ii)
above) from any person or entity in connection with the Auction
of such Eligible Vehicles as of such date,
plus
(iv) with respect
to Eligible Vehicles that were Eligible Program Vehicles that have been turned
in to and accepted by the Manufacturer thereof, delivered and accepted for
Auction, otherwise sold or become a Casualty, any accrued and unpaid Casualty
Payments or Termination Payments with respect to such Eligible Vehicles under
the HVF Lease
,
plus
(v) with respect to Eligible Vehicles that were Eligible
Program Vehicles that have been turned in to and accepted by the
Manufacturer thereof, delivered for Auction or otherwise sold, any accrued and
unpaid Monthly Base Rent with respect to such Eligible Vehicles under the HVF
Lease (net of amounts set forth in
clauses (ii)
,
(iii)
and
(iv)
above),
plus
(vi) with respect to Eligible Vehicles that were Eligible
Program Vehicles sold by HVF to a third party pursuant to Section 2.5(a) of
the HVF Lease, any non-return incentives payable to HVF under a Manufacturer
Program by an Eligible Program Manufacturer in respect of the sale of such
Vehicles outside of the related Manufacturer Program as of such date,
plus
(vii) if such date is during the period from and including a Determination
Date to but excluding the next Payment Date, accrued and unpaid Monthly Base
Rent payable on the next Payment Date with respect to all Eligible Vehicles
that are Eligible Program Vehicles as of such date and that have not been
turned in to and accepted by the Manufacturer thereof pursuant to its
Manufacturer Program, not been delivered and accepted for Auction pursuant to a
Manufacturer Program and not otherwise been sold or deemed to be sold under the
Related Documents.
“
Equity
Investors
” means the collective reference to (a) the CD&R
Investors, the Carlyle Investors and the Merrill Lynch Investors and (b) any
Person that acquired Voting Stock of Holdings on or prior to December 21,
2005, and any Affiliate of such Person.
“
Estimated Interest
” has
the meaning specified in
Section 3.3(a)
of this Series Supplement.
“
Estimated Interest
Adjustment Amount
” means, with respect to any Determination Date, the
result (whether a positive or negative number) of (i) the actual amount of
Series 2008-1 Monthly Interest that accrued during the Estimated Interest
Period which commenced on the immediately preceding Determination Date minus (ii) the
Estimated Interest with respect to such Estimated Interest Period.
“
Estimated Interest
Adjustment Notice
” has the meaning specified in
Section 3.3(a)
of
this Series Supplement.
“
Estimated Interest Period
”
has the meaning specified in
Section 3.3(a)
of this Series Supplement.
10
“
Excluded
Redesignated Vehicle
” means each Vehicle manufactured by a Manufacturer
with respect to which an Event of Bankruptcy has occurred that becomes a
Redesignated Vehicle prior to the Inclusion Date for such Vehicle, as of and
from the date such Vehicle becomes a Redesignated Vehicle to and until the Inclusion
Date for such Vehicle.
“
Existing Series of
Notes
” means, as of any date of determination, each Series of Notes
issued by HVF prior to the Series 2008-1 Closing Date under an Existing Series Supplement
that remains Outstanding as of such date.
“
Existing Series Supplement
”
means each of 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.
“
Expected Final Payment Date
”
means the Series 2008-1 Commitment Termination Date as defined in the Series 2008-1
Note Purchase Agreement.
“
Financial Assets
” has
the meaning specified in
Section 3.11(b)(i)
of this Series Supplement.
“
First Level Ratings Event
”
means, with respect to the Series 2008-1 Notes, the Series 2008-1
Notes shall not have the Required Ratings for a period in excess of thirty (30)
days so long as no Second Level Ratings Event shall have occurred and be
continuing.
“
Holdings
”
means Hertz Global Holdings, Inc.
“
HVF Service Vehicle Amount
”
means, as of any date of determination, an amount equal to the sum of the
Manufacturer Non-Eligible Vehicle Amount and the Manufacturer Eligible Program
Vehicle Amount, in each case, with respect to HVF Service Vehicles as of such
date.
“
HVF Service Vehicles
”
means, an HVF Vehicle used by Hertz’s employees, or to the extent permitted
under the HVF Lease, employees of Hertz Equipment Rental Corporation.
“
Hyundai Amount
” means,
as of any date of determination, an amount equal to the sum of the Manufacturer
Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle
Amount, in each case, with respect to Hyundai as of such date.
“
Inclusion Date
” means,
with respect to any Vehicle manufactured by a Manufacturer with respect to
which an Event of Bankruptcy has occurred, the date that is 90 days after the
earlier of (i) the date such Vehicle became a Redesignated Vehicle and (ii) the
date upon which such Event of Bankruptcy with respect to the Manufacturer of
such Vehicle first occurred.
11
“
Increase
” has the
meaning specified in
Section 2.1(a)
of this Series Supplement.
“
Indenture Carrying Charges
”
means, as of any day, any fees or other costs, fees and expenses and indemnity
amounts, if any, payable by HVF to the Trustee, the Administrator, the
Intermediary under the Master Exchange Agreement, the Administrative Agent, the
Series 2008-1 Noteholders under the Series 2008-1 Note Purchase
Agreement (other than any Program Fee or any Undrawn Fee) or the Nominee under
the Indenture or the Related Documents plus any other operating expenses of HVF
then payable by HVF.
“
Ineligible Receivable
Manufacturer Receivable Amount
” means, as of any date of determination,
with respect to each Ineligible Receivable Manufacturer, an amount equal to the
sum (without duplication) of the following amounts to the extent that such
amounts are included in
clauses (i)
through
(x)
of the
definition of Aggregate Asset Amount for such date: (a) the aggregate amount of Manufacturer
Receivables (other than Excluded Payments) payable to HVF or to the
Intermediary pursuant to the Master Exchange Agreement, in each case, as of
such date by such Ineligible Receivable Manufacturer with respect to Vehicles
that are Eligible Vehicles and Eligible Program Vehicles when turned in to and
accepted by such Ineligible Receivable Manufacturer or delivered and accepted
for Auction,
plus
(b) the aggregate amount of Manufacturer
Receivables (other than Excluded Payments) payable to HVF or to the Intermediary
pursuant to the Master Exchange Agreement, in each case, as of such date by
such Ineligible Receivable Manufacturers with respect to Vehicles that were
Eligible Vehicles but not Eligible Program Vehicles when turned in to and
accepted by such Ineligible Receivable Manufacturer or delivered and accepted
for Auction;
provided
, that the definition of “Ineligible Receivable
Manufacturer Receivable Amount” may be amended by HVF with the consent of the
Funding Agents, subject to satisfaction of the Rating Agency Condition with
respect to such amendment;
provided
further that any Ineligible
Receivable Manufacturer may be excluded from this definition by HVF with the
consent of the Funding Agents, subject to satisfaction of the Rating Agency
Condition with respect to such exclusion.
“
Ineligible Receivable
Manufacturer
” means a Manufacturer that is either a Category 2
Manufacturer, a Category 3 Manufacturer or a Bankrupt Manufacturer.
“
Insurer Related
Amortization Event
” means, with respect to the applicable Series of
Notes, those certain Amortization Events described in clauses (h) and (i) of
Article III of the Series 2004-1 Supplement, clauses (j) and (k) of
Article III of the Series 2005-1 Supplement, clauses (j) and (k) of
Article III of the Series 2005-2 Supplement, clauses (j) and (k) of
Article IV of the Series 2005-3 Supplement and clauses (j) and (k) of
Article IV of the Series 2005-4 Supplement.
“
Interest Rate Cap Provider
”
means HVF’s counterparty under a Series 2008-1 Interest Rate Cap.
“
Investors
”
means Hertz Investors, Inc.
12
“
Jaguar Amount
” means,
as of any date of determination, an amount equal to the sum of the Manufacturer
Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle
Amount, in each case, with respect to Jaguar as of such date.
“
Kia Amount
” means, as
of any date of determination, an amount equal to the sum of the Manufacturer
Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle
Amount, in each case, with respect to Kia as of such date.
“
Land Rover Amount
”
means, as of any date of determination, an amount equal to the sum of the
Manufacturer Non-Eligible Vehicle Amount and the Manufacturer Eligible Program
Vehicle Amount, in each case, with respect to Land Rover as of such date.
“
Lease Payment Deficit
Notice
” has the meaning specified in
Section 3.3(b)
of
this Series Supplement.
“
Legal Final Payment Date
”
means the one-year anniversary of the Expected Final Payment Date.
“
Lexus Amount
” means, as
of any date of determination, an amount equal to the sum of the Manufacturer
Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle
Amount, in each case, with respect to Lexus as of such date.
“
Limited Liquidation Event
of Default
” means, so long as such event or condition continues, (a) any
event or condition of the type specified in
Section 9.1(c)
of
the Base Indenture or clauses
(a)
,
(b)
,
(c)
,
(d)
,
(f)
,
(g)
,
(h)
,
(i)
,
(j)
,
(m)
,
(n)
and
(o)
of
Article IV
of this Series Supplement that
continues for thirty (30) days (without double counting the cure period, if
any, provided therein), (b) any event or condition of the type specified
in clause
(p)
of
Article IV
of this Series Supplement
if and when the applicable Amortization Event under the related Existing Series Supplement
constitutes a Limited Liquidation Event of Default (as defined in the related
Existing Series Supplement) with respect to such Existing Series of
Notes and Noteholders under such Existing Series of Notes have directed
the Trustee to commence (either through its agents or otherwise) or cause the
commencement of the liquidation or other disposition of any HVF Vehicles as a
result of such Limited Liquidation Event of Default or (c) any event or
condition of the type specified in clause
(e)
of
Article IV
of this Series Supplement.
“
Management
Investors
” means the collective reference to the officers, directors,
employees and other members of the management of Investors, Hertz or any of
their Subsidiaries, or family members or relatives thereof or trusts for the
benefit of any of the foregoing, who at any particular date shall beneficially
own or have the right to acquire, directly or indirectly, common stock of
Investors or any Parent Entity.
“
Mandatory Decrease
” has
the meaning specified in
Section 2.2(a)
of this Series Supplement.
“
Manufacturer Eligible
Program Vehicle Amount
” means, as of any date of determination, with
respect to any Manufacturer, an amount equal to the sum, rounded
13
to the nearest
$100,000, of the following amounts to the extent that such amounts are included
in the definition of “Aggregate Asset Amount” for such date: (i) the Net
Book Value of all Eligible Program Vehicles that are Eligible Vehicles as of
such date that were manufactured by such Manufacturer or an Affiliate thereof
and not turned in to and accepted by such Manufacturer pursuant to its
Manufacturer Program, not delivered and accepted for Auction pursuant to its
Manufacturer Program or not otherwise sold or deemed to be sold under the
Related Documents,
plus
(ii) the aggregate amount of Manufacturer
Receivables (other than Excluded Payments) payable to HVF or to the
Intermediary pursuant to the Master Exchange Agreement, in each case, as of
such date by such Manufacturer with respect to Vehicles that were Eligible
Vehicles and Eligible Program Vehicles when turned in to and accepted by such
Manufacturer or delivered and accepted for Auction,
plus
(iii) with
respect to Eligible Vehicles that were Eligible Program Vehicles that have been
delivered and accepted for Auction pursuant to a Manufacturer Program with such
Manufacturer, all amounts receivable (other than amounts specified in
clause
(ii)
above) from any person or entity in connection with the Auction
of such Eligible Vehicles as of such date,
plus
(iv) with respect
to Eligible Vehicles that were Eligible Program Vehicles manufactured by such
Manufacturer or an Affiliate thereof that have been turned in to and accepted
by such Manufacturer, delivered and accepted for Auction, otherwise sold or
become a Casualty, any accrued and unpaid Casualty Payments or Termination
Payments with respect to such Eligible Vehicles as of such date under the HVF
Lease,
plus
(v) with respect to Eligible Vehicles that were
Eligible Program Vehicles manufactured by such Manufacturer or an Affiliate
thereof that have been turned in to and accepted by such Manufacturer,
delivered and accepted for Auction or otherwise sold, any accrued and unpaid
Monthly Base Rent with respect to such Eligible Vehicles under the HVF Lease
(net of amounts set forth in
clauses (ii)
,
(iii)
, and
(iv)
above)
plus
(vi) with respect to Eligible Vehicles that were Eligible
Program Vehicles sold by HVF to a third party pursuant to Section 2.5(a) of
the HVF Lease, any non-return incentives payable to HVF under a Manufacturer
Program by such Manufacturer in respect of the sale of such Vehicles outside of
the related Manufacturer Program as of such date,
plus
(vii) if
such date is during the period from and including a Determination Date to but
excluding the next Payment Date, accrued and unpaid Monthly Base Rent payable
on the next Payment Date with respect to all Eligible Vehicles that are
Eligible Program Vehicles as of such date that were manufactured by such
Manufacturer or an Affiliate thereof and that have not been turned in to and
accepted by such Manufacturer pursuant to its Manufacturer Program, not been
delivered and accepted for Auction pursuant to its Manufacturer Program and not
otherwise been sold or deemed to be sold under the Related Documents. For the purposes of this definition, an
Affiliate of a Manufacturer shall not include any Person who is included as a
Manufacturer hereunder.
“
Manufacturer Non-Eligible
Program Vehicle Amount
” means, as of any date of determination, with
respect to any Manufacturer, an amount equal to the portion of the Manufacturer
Non-Eligible Vehicle Amount for such Manufacturer as of such date allocable to
or arising from Non-Eligible Program Vehicles.
“
Manufacturer Non-Eligible
Vehicle Amount
” means, as of any date of determination, with respect to any
Manufacturer, an amount equal to the sum, rounded to
14
the nearest
$100,000, of the following amounts to the extent that such amounts are included
in the definition of “Aggregate Asset Amount” for such date: (i) the Net
Book Value of all Non-Eligible Program Vehicles or Non-Program Vehicles that
are Eligible Vehicles as of such date that were manufactured by such
Manufacturer or an Affiliate thereof and not turned in to and accepted by such
Manufacturer thereof pursuant to its Manufacturer Program, not delivered and
accepted for Auction pursuant to its Manufacturer Program or not otherwise sold
or deemed to be sold under the Related Documents,
plus
(ii) the
aggregate amount of Manufacturer Receivables (other than Excluded Payments)
payable to HVF or to the Intermediary pursuant to the Master Exchange
Agreement, in each case, as of such date by such Manufacturer with respect to
Vehicles that were Eligible Vehicles and Non-Eligible Program Vehicles when
turned in to and accepted by such Manufacturer or delivered and accepted for
Auction,
plus
(iii) with respect to Eligible Vehicles that were
Non-Eligible Program Vehicles that have been delivered and accepted for Auction
pursuant to a Manufacturer Program with such Manufacturer, all amounts
receivable (other than amounts specified in
clause (ii)
above) from
any Person in connection with the Auction of such Eligible Vehicles as of such
date,
plus
(iv) with respect to Eligible Vehicles that were
Non-Eligible Program Vehicles or Non-Program Vehicles manufactured by such
Manufacturer or an Affiliate thereof that have been turned in to and accepted
by such Manufacturer, delivered and accepted for Auction, otherwise sold or
become a Casualty, any accrued and unpaid Casualty Payments or Termination
Payments with respect to such Eligible Vehicles as of such date under the HVF
Lease,
plus
(v) with respect to Eligible Vehicles that were
Non-Eligible Program Vehicles or Non-Program Vehicles manufactured by such
Manufacturer or an Affiliate thereof that have been turned in to and accepted
by such Manufacturer, delivered and accepted for Auction or otherwise sold, any
accrued and unpaid Monthly Base Rent with respect to such Eligible Vehicles
under the HVF Lease (net of amounts set forth in
clauses (ii)
,
(iii)
and
(iv)
above),
plus
(vi) if such date is during the
period from and including a Determination Date to but excluding the next
Payment Date, accrued and unpaid Monthly Base Rent payable on the next Payment
Date with respect to all Eligible Vehicles as of such date that are
Non-Eligible Program Vehicles or Non-Program Vehicles manufactured by such
Manufacturer or an Affiliate thereof and that have not been turned in to and
accepted by such Manufacturer thereof pursuant to its Manufacturer Program, not
been delivered and accepted for Auction pursuant to a Manufacturer Program and
not otherwise been sold or deemed to be sold under the Related Documents. For the purposes of this definition, an
Affiliate of a Manufacturer shall not include any Person who is included as a
Manufacturer hereunder.
“
Market Value Average
”
means, as of any day on or after the third Determination Date, the percentage
equivalent (not to exceed 100%) of a fraction, the numerator of which is the
average of the Non-Program Fleet Market Value as of such preceding
Determination Date and the two Determination Dates precedent thereto and the
denominator of which is the average of the aggregate Net Book Value of all
Non-Program Vehicles (excluding any Excluded Redesignated Vehicles) as of the
preceding Determination Date and the two Determination Dates precedent thereto.
“
Maximum Investor Group
Principal Amount
” has the meaning set forth in the Series 2008-1 Note
Purchase Agreement.
15
“
Mazda Amount
” means, as
of any date of determination, an amount equal to the sum of the Manufacturer
Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle
Amount, in each case, with respect to Mazda as of such date.
“
Mercedes Amount
” means,
as of any date of determination, an amount equal to the sum of the Manufacturer
Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle
Amount, in each case, with respect to Mercedes as of such date.
“
Merrill
Lynch Investors
” means the collective reference to (i) ML Global
Private Equity Fund, L.P., a Cayman Islands exempted limited partnership, (ii) Merrill
Lynch Ventures L.P. 2001, a Delaware limited partnership, (iii) CMC-Hertz
Partners, L.P., a Delaware limited partnership, (iv) ML Hertz Co-Investor,
L.P., a Delaware limited partnership, and (v) any Affiliate of any
thereof.
“
Mitsubishi Amount
” means,
as of any date of determination, an amount equal to the sum of the Manufacturer
Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle
Amount, in each case, with respect to Mitsubishi as of such date.
“
MLGP
”
means Merrill Lynch Global Partners, Inc.
“
Moody’s First Trigger
Required Ratings
” means, with respect to any entity, rating requirements
which are satisfied where (i) if such entity has a short-term, unsecured
and unsubordinated debt obligation rating by Moody’s, such rating is “Prime-1”
and its long-term senior unsecured debt, deposit, claims paying or credit (as
the case may be) rating is “A1” or above by Moody’s or (ii) if such entity
does not have a short-term, unsecured and unsubordinated debt obligation rating
by Moody’s, its long-term senior unsecured debt, deposit, claims paying or
credit (as the case may be) rating is “A1” or above by Moody’s.
“
Moody’s Second Trigger
Required Ratings
” means, with respect to any entity, rating requirements
which are satisfied where (i) if such entity has a short-term, unsecured
and unsubordinated debt obligation rating by Moody’s, such rating is “Prime-2”
or above and its long-term senior unsecured debt, deposit, claims paying or
credit (as the case may be) rating is “A3” or above by Moody’s or (ii) if
such entity does not have a short-term, unsecured and unsubordinated debt
obligation rating by Moody’s, its long-term senior unsecured debt, deposit,
claims paying or credit (as the case may be) rating is “A3” or above by Moody’s.
“
Monthly Total Principal Allocation
”
means for any Related Month the sum of all Series 2008-1 Principal
Allocations with respect to such Related Month plus any amounts deposited in
the Series 2008-1 Collection Account pursuant to
Section 3.3(f)(iv)(B)
of
this Series Supplement.
“
New York UCC
” has the
meaning specified in
Section 3.11(b)(i)
of this Series Supplement.
16
“
Nissan Amount
” means,
as of any date of determination, an amount equal to the sum of the Manufacturer
Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle
Amount, in each case, with respect to Nissan as of such date.
“
Non-Eligible Manufacturer
Amount
” means, as of any date of determination, an amount equal to the sum,
rounded to the nearest $100,000, of the following amounts to the extent that
such amounts are included in the definition of “Aggregate Asset Amount” for
such date: (i) the Net Book Value of all HVF Vehicles that are Eligible
Vehicles as of such date that were manufactured by Manufacturers other than
Eligible Manufacturers and not turned in to and accepted by the Manufacturer
thereof pursuant to its Manufacturer Program, not delivered and accepted for
Auction pursuant to its Manufacturer Program or not otherwise sold or deemed to
be sold under the Related Documents,
plus
(ii) the aggregate amount
of Manufacturer Receivables (other than Excluded Payments) payable to HVF or to
the Intermediary pursuant to the Master Exchange Agreement, in each case, as of
such date by Manufacturers other than Eligible Manufacturers with respect to
Vehicles that were Eligible Vehicles when turned in to and accepted by such
Manufacturers or delivered and accepted for Auction,
plus
(iii) with
respect to Eligible Vehicles that have been delivered and accepted for Auction
pursuant to a Manufacturer Program with a Manufacturer other than an Eligible
Manufacturer, all amounts receivable (other than amounts specified in
clause
(ii)
above) from any Person in connection with the Auction of such Eligible
Vehicles as of such date,
plus
(iv) with respect to Eligible
Vehicles that were manufactured by Manufacturers other than Eligible
Manufacturers that have been turned in to and accepted by the Manufacturer
thereof, delivered and accepted for Auction, otherwise sold or become a
Casualty, any accrued and unpaid Casualty Payments or Termination Payments with
respect to such Eligible Vehicles as of such date under the HVF Lease,
plus
(v) with respect to Eligible Vehicles that were manufactured by
Manufacturers other than Eligible Manufacturers that have been turned in to and
accepted by the Manufacturer thereof, delivered and accepted for Auction or
otherwise sold, any accrued and unpaid Monthly Base Rent with respect to such
Eligible Vehicles under the HVF Lease (net of amounts set forth in
clauses
(ii)
,
(iii)
and
(iv)
above),
plus
(vi) if such
date is during the period from and including a Determination Date to but
excluding the next Payment Date, accrued and unpaid Monthly Base Rent payable
on the next Payment Date with respect to all Eligible Vehicles as of such date
that were manufactured by Manufacturers other than Eligible Manufacturers and
that have not been turned in to and accepted by the Manufacturer thereof
pursuant to its Manufacturer Program, not been delivered and accepted for
Auction pursuant to its Manufacturer Program and not otherwise been sold or
deemed to be sold under the Related Documents.
“
Non-Eligible Vehicle Amount
”
means, as of any date of determination, an amount equal to the sum, rounded to
the nearest $100,000, of the following amounts to the extent that such amounts
are included in the definition of “Aggregate Asset Amount” for such date: (i) the
Net Book Value of all Non-Eligible Program Vehicles and Non-Program Vehicles
that are Eligible Vehicles as of such date and not turned in to and accepted by
the Manufacturer thereof pursuant to its Manufacturer Program, not delivered
and accepted for Auction pursuant to its Manufacturer Program or not otherwise
sold or deemed to be sold under the Related Documents,
plus
(ii) the
aggregate
17
amount of
Manufacturer Receivables (other than Excluded Payments) payable to HVF or to
the Intermediary pursuant to the Master Exchange Agreement, in each case, as of
such date by Manufacturers with respect to Vehicles that were Eligible Vehicles
and Non-Eligible Program Vehicles when turned in to and accepted by such
Manufacturers or delivered and accepted for Auction,
plus
(iii) with
respect to Eligible Vehicles that were Non-Eligible Program Vehicles that have
been delivered and accepted for Auction pursuant to a Manufacturer Program with
a Manufacturer, all amounts receivable (other than amounts specified in
clause
(ii)
above) from any Person in connection with the Auction of such Eligible
Vehicles as of such date,
plus
(iv) with respect to Eligible
Vehicles that were Non-Eligible Program Vehicles or Non-Program Vehicles that
have been turned in to and accepted by the Manufacturer thereof, delivered and
accepted for Auction, otherwise sold or become a Casualty, any accrued and
unpaid Casualty Payments or Termination Payments with respect to such Eligible
Vehicles as of such date under the HVF Lease,
plus
(v) with respect
to Eligible Vehicles that were Non-Eligible Program Vehicles or Non-Program
Vehicles that have been turned in to and accepted by the Manufacturer thereof,
delivered and accepted for Auction or otherwise sold, any accrued and unpaid
Monthly Base Rent with respect to such Eligible Vehicles under the HVF Lease
(net of amounts set forth in
clauses (ii)
,
(iii)
and
(iv)
above),
plus
(vi) if such date is during the period from and including a
Determination Date to but excluding the next Payment Date, accrued and unpaid
Monthly Base Rent payable on the next Payment Date with respect to all Eligible
Vehicles as of such date that are Non-Eligible Program Vehicles or Non-Program
Vehicles and that have not been turned in to and accepted by the Manufacturer
thereof pursuant to its Manufacturer Program, not been delivered and accepted
for Auction pursuant to a Manufacturer Program and not otherwise been sold or
deemed to be sold under the Related Documents.
“
Non-Investment
Grade Manufacturer
” means, as of any date of determination, each Eligible
Manufacturer who as of such date does not have a long-term unsecured debt
rating of at least “BBB-” from Standard & Poor’s and at least “Baa3” from
Moody’s; provided that upon the withdrawal of the rating of a Manufacturer by a
Rating Agency or upon the downgrade of a Manufacturer by a Rating Agency to a
rating that would require inclusion of such Manufacturer in this definition,
for purposes of this definition and each instance in which this definition is
used in this Series Supplement, such Manufacturer shall be deemed to be rated
“BBB-” or “Baa3”, as applicable, by the Rating Agency which downgraded such
Manufacturer for a period of 30 days following the earlier of (i) the date on
which any of the Administrator, HVF or the Servicer obtains actual knowledge of
such downgrade and (ii) the date on which the Trustee or the Administrative
Agent notifies the Administrator of such downgrade.
“
Non-Program Fleet Market Value
”
means, with respect to all Non-Program Vehicles (excluding any Excluded
Redesignated Vehicles) as of any date of determination, the sum of the
respective Third-Party Market Values of each such Non-Program Vehicle.
“
Non-Program Vehicle Amount
”
means, as of any date of determination, an amount equal to the portion of the
Non-Eligible Vehicle Amount as of such date allocable to or arising from
Non-Program Vehicles.
18
“
Non-Program Vehicle
Percentage
” means, as of any date of determination, the percentage
equivalent of a fraction, the numerator of which is the Non-Program Vehicle
Amount as of such date and the denominator of which is the excess of (A) the
Aggregate Asset Amount over (B) the amount of cash and Permitted
Investments on deposit in the Collection Account and the HVF Exchange Account,
in each case, as of such date.
“
Non-Program Vehicle
Measurement Month Average
” means, with respect to any Measurement Month,
the lesser of (a) the percentage equivalent of a fraction, the numerator
of which is the aggregate amounts of Disposition Proceeds paid or payable in
respect of all Non-Program Vehicles that are sold to third parties, at auction
or otherwise (excluding salvage sales), during such Measurement Month and the
two Measurement Months preceding such Measurement Month and the denominator of
which is the aggregate Net Book Values of such Non-Program Vehicles on the
dates of their respective sales and (b) 100%.
“
Non-Top Two Category 3
Manufacturer Vehicle Percentage
” means, as of any date of determination,
the excess of the Category 3 Manufacturer Vehicle Percentage as of such date
over the Top Two Category 3 Manufacturer Vehicle Percentage as of such date.
“
Non-Top Two Category 3
Manufacturer Vehicle Percentage Excess
” means, as of any date of
determination, the excess of the Non-Top Two Category 3 Manufacturer Vehicle
Percentage as of such date over the Capped Non-Top Two Category 3 Manufacturer
Vehicle Percentage as of such date.
“
Outstanding
” means with
respect to the Series 2008-1 Notes, all Series 2008-1 Notes
theretofore authenticated and delivered under the Indenture,
except
(a) Series 2008-1
Notes theretofore cancelled or delivered to the Registrar for cancellation, (b) Series 2008-1
Notes which have not been presented for payment but funds for the payment of
which are on deposit in the Series 2008-1 Distribution Account and are
available for payment of such Series 2008-1 Notes, and Series 2008-1
Notes which are considered paid pursuant to Section 8.1 of the Base
Indenture, or (c) Series 2008-1 Notes in exchange for or in lieu of
other Series 2008-1 Notes which have been authenticated and delivered
pursuant to the Indenture unless proof satisfactory to the Trustee is presented
that any such Series 2008-1 Notes are held by a purchaser for value.
“
Parent
Entity
” means any of Holdings and any other Person that is a
Subsidiary of Holdings and of which Investors is a subsidiary.
“
Past Due Rent Payment
”
has the meaning specified in
Section 3.2(c)
of this Series Supplement.
“
Permitted
Holders
” means, (a) any of the Equity Investors, Management
Investors, CD&R, Carlyle, MLGP and any of their respective Affiliates; (b) any
investment fund or vehicle managed, sponsored or advised by CD&R, Carlyle,
MLGP or any Affiliate thereof, and any Affiliate of or successor to any such
investment fund or
19
vehicle; (c) any limited or general
partners of, or other investors in, any CD&R Investor, Carlyle Investor or
Merrill Lynch Investor or any Affiliate thereof, or any such investment fund or
vehicle and (d) any Person acting in the capacity of an underwriter in
connection with a public or private offering of Capital Stock of Investors or
any Parent Entity.
“
Preference Amount
”
means any amount previously paid by Hertz pursuant to the Series 2008-1
Demand Note and distributed to the Series 2008-1 Noteholders in respect of
amounts owing under the Series 2008-1 Notes that is recoverable or that
has been recovered as a voidable preference by the trustee in a bankruptcy
proceeding of Hertz pursuant to the Bankruptcy Code in accordance with a final
nonappealable order of a court having competent jurisdiction.
“
Principal Amount
”
means, with respect to the Series 2008-1 Notes, the Series 2008-1
Principal Amount.
“
Principal Deficit Amount
”
means, on any date of determination, the excess, if any, of (a) the Series 2008-1
Adjusted Principal Amount on such date (after giving effect to the distribution
of the Monthly Total Principal Allocation for the Related Month) over (b) the
Series 2008-1 Asset Amount on such date;
provided
,
however
,
the Principal Deficit Amount on any date that is prior to the Legal Final
Payment Date occurring during the period commencing on and including the date
of the filing by Hertz of a petition for relief under Chapter 11 of the
Bankruptcy Code to but excluding the date on which Hertz shall have resumed
making all payments of Monthly Variable Rent required to be made under the HVF
Lease, shall mean the excess, if any, of (x) the Series 2008-1
Adjusted Principal Amount on such date (after giving effect to the
distribution of the Monthly Total Principal Allocation for the Related Month) over (y) the sum of (1) the Series 2008-1
Asset Amount on such date and (2) the lesser of (a) the Series 2008-1
Liquidity Amount on such date and (b) the Series 2008-1 Required
Liquidity Amount on such date.
“
Pro Rata Share
” means,
with respect to any Series 2008-1 Letter of Credit Provider, as of any
date, the fraction (expressed as a percentage) obtained by dividing (A) the
available amount under such Series 2008-1 Letter of Credit Provider’s Series 2008-1
Letter of Credit as of such date by (B) an amount equal to the aggregate
available amount under all Series 2008-1 Letters of Credit as of such
date;
provided
, that only for purposes of calculating the Pro Rata Share
with respect to any Series 2008-1 Letter of Credit Provider as of any
date, if such Series 2008-1 Letter of Credit Provider has not complied
with its obligation to pay the Trustee the amount of any draw under its Series 2008-1
Letter of Credit made prior to such date, the available amount under such Series 2008-1
Letter of Credit Provider’s Series 2008-1 Letter of Credit as of such date
shall be treated as reduced (for calculation purposes only) by the amount of
such unpaid demand and shall not be reinstated for purposes of such calculation
unless and until the date as of which such Series 2008-1 Letter of Credit
Provider has paid such amount to the Trustee and been reimbursed by the Lessee
for such amount (provided that the foregoing calculation shall not in any
manner reduce a Series 2008-1 Letter of Credit Provider’s
20
actual
liability in respect of any failure to pay any demand under its Series 2008-1
Letter of Credit).
“
Rating
” means the
rating of the Series 2008-1 Notes by Standard & Poor’s or Moody’s,
as applicable.
“
Rating Agencies
” means,
with respect to the Series 2008-1 Notes, Standard & Poor’s and
Moody’s and any other nationally recognized rating agency rating the Series 2008-1
Notes at the request of HVF.
“
Record Date
” means,
with respect to any Payment Date, the last day of the Related Month.
“
Redesignated Vehicle
”
means any Program Vehicle manufactured by a Manufacturer with respect to which
an Event of Bankruptcy has occurred which has been redesignated as a
Non-Program Vehicle pursuant to Section 18(b) of the HVF Lease in
accordance with Section 2.6 thereof.
“
Reference Banks
” means
four major banks in the London interbank market selected by the Calculation
Agent.
“
Required Noteholders
”
means, with respect to the Series 2008-1 Notes, Series 2008-1
Noteholders holding more than
66
2
/
3
% of the Series 2008-1 Principal
Amount (excluding any Series 2008-1 Notes held by HVF or any Affiliate of
HVF (other than Series 2008-1 Notes held by an Affiliate Issuer if such
Affiliate Issuer has assigned all voting, consent and control rights associated
with such Series 2008-1 Notes to Persons that are not Affiliates of HVF)).
“
Required Ratings
”
means, with respect to the Series 2008-1 Notes, explicit public ratings of
at least “A” by S&P and “A2” by Moody’s.
“
Second Level Ratings Event
”
means, with respect to the Series 2008-1 Notes, the Series 2008-1
Notes shall not have explicit public ratings of at least “BBB-” by S&P and “Baa3”
by Moody’s for a period in excess of thirty (30) days.
“
Senior
Credit Facilities
” means the Hertz’s (a) senior secured asset
based revolving loan facility, provided under a credit agreement, dated as of December 21,
2005, among Hertz Equipment Rental Corporation, Hertz together with certain of
the Hertz’s subsidiaries, as borrower, the several banks and financial
institutions from time to time party thereto, as lenders, Deutsche Bank AG, New
York Branch, as administrative agent and collateral agent, Lehman Commercial
Paper Inc., as syndication agent, Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as sole documentation agent, and
the other financial institutions party thereto from time to time (as it may be
amended, amended and restated, supplemented or otherwise modified (including as
amended by that certain Amendment to Credit Agreement, dated as of June 30,
2006, that certain Second Amendment to Credit Agreement, dated as of February 15,
2007, that certain Third Amendment to Credit Agreement, dated as of May 23,
2007 and that certain Fourth Amendment to Credit Agreement, dated as of September 30,
2007)),
21
(b) senior secured term
loan facility, provided under a credit agreement, dated as of December 21,
2005, among Hertz together with certain of the Hertz’s subsidiaries, as
borrower, the several banks and financial institutions from time to time party
thereto, as lenders, Deutsche Bank AG, New York Branch, as administrative agent
and collateral agent, Lehman Commercial Paper Inc., as syndication agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as sole documentation agent, and the other financial institutions
party thereto from time to time (as it may be amended, amended and restated,
supplemented or otherwise modified (including as amended by that certain
Amendment to Credit Agreement, dated as of June 30, 2006, that certain
Second Amendment to Credit Agreement, dated as of February 9, 2007 and
that certain Third Amendment to Credit Agreement, dated as of May 23,
2007)) and (c) any successor or replacement credit facility to the senior
secured asset based revolving loan facility or senior secured term loan
facility described in clauses (a) and (b)).
“
Series 2004-1 Supplement
” means that certain Second Amended and
Restated Series Supplement to the Base Indenture, dated as of August 1, 2006,
as amended by Amendment No. 1 thereto, dated as of October 24, 2007 (as further
amended, modified, restated or supplemented from time to time in accordance
with the terms thereof), by and between HVF and the Trustee, relating to, among
other things, the issuance by HVF of its Series 2004-1 Notes.
“
Series 2005-1 Supplement
” means that certain Amended and
Restated Series Supplement to the Base Indenture, dated as of August 1, 2006,
as amended by Amendment No. 1 thereto, dated as of October 24, 2007 (as further
amended, modified, restated or supplemented from time to time in accordance
with the terms thereof), by and between HVF and the Trustee, relating to, among
other things, the issuance by HVF of its Series 2005-1 Notes.
“
Series 2005-2 Supplement
” means that certain Amended and
Restated Series Supplement to the Base Indenture, dated as of August 1, 2006,
as amended by Amendment No. 1 thereto, dated as of October 24, 2007 (as further
amended, modified, restated or supplemented from time to time in accordance
with the terms thereof), by and between HVF and the Trustee, relating to, among
other things, the issuance by HVF of its Series 2005-2 Notes.
“
Series 2005-3 Supplement
” means that certain Amended and
Restated Series Supplement to the Base Indenture, dated as of August 1, 2006,
as amended by Amendment No. 1 thereto, dated as of October 24, 2007 (as further
amended, modified, restated or supplemented from time to time in accordance
with the terms thereof), by and between HVF and the Trustee, relating to, among
other things, the issuance by HVF of its Series 2005-3 Notes.
“
Series 2005-4 Supplement
” means that certain Amended and
Restated Series Supplement to the Base Indenture, dated as of August 1, 2006,
as amended by Amendment No. 1 thereto, dated as of October 24, 2007 (as further
amended, modified, restated or supplemented from time to time in accordance
with the terms thereof), by and
22
between HVF
and the Trustee, relating to, among other things, the issuance by HVF of its Series 2005-4
Notes.
“
Series 2008-1 Accrued
Amounts
” means, on any date of determination, the sum of (i) accrued
and unpaid interest on the Series 2008-1 Notes as of such date (including,
without limitation, any accrued and unpaid Program Fee and Undrawn Fee), (ii) the
Indenture Carrying Charges due and payable to the Series 2008-1
Noteholders on the next succeeding Payment Date and (iii) the product of (x) the
Series 2008-1 Percentage as of such date of determination and (y) the
Indenture Carrying Charges not included in clause (ii) above.
“
Series 2008-1 Accrued
Interest Account
” has the meaning specified in
Section 3.1(a)
of
this Series Supplement.
“
Series 2008-1 Adjusted Enhancement
Amount
” means, the Series 2008-1 Enhancement Amount, excluding from
the calculation thereof the amount available to be drawn under any Series 2008-1
Letter of Credit if at the time of such calculation (A) such Series 2008-1
Letter of Credit shall not be in full force and effect, (B) an Event of
Bankruptcy shall have occurred with respect to the Series 2008-1 Letter of
Credit Provider of such Series 2008-1 Letter of Credit, (C) such Series 2008-1
Letter of Credit Provider shall have repudiated such Series 2008-1 Letter
of Credit or failed to honor a draw thereon made in accordance with the terms
thereof or (D) a Series 2008-1 Downgrade Event shall have occurred
and be continuing for at least 30 days with respect to the Series 2008-1
Letter of Credit Provider of such Series 2008-1 Letter of Credit.
“
Series 2008-1 Adjusted
Liquidity Amount
” means, the Series 2008-1 Liquidity Amount, excluding
from the calculation thereof the amount available to be drawn under any Series 2008-1
Letter of Credit if at the time of such calculation (A) such Series 2008-1
Letter of Credit shall not be in full force and effect, (B) an Event of
Bankruptcy shall have occurred with respect to the Series 2008-1 Letter of
Credit Provider of such Series 2008-1 Letter of Credit, (C) such Series 2008-1
Letter of Credit Provider shall have repudiated such Series 2008-1 Letter
of Credit or failed to honor a draw thereon made in accordance with the terms
thereof or (D) a Series 2008-1 Downgrade Event shall have occurred
and be continuing for at least 30 days with respect to the Series 2008-1
Letter of Credit Provider of such Series 2008-1 Letter of Credit.
“
Series 2008-1 Adjusted Principal
Amount
” means, as of any date of determination, the excess, if any, of (A) the
Series 2008-1 Principal Amount as of such date over (B) the sum of (1) the
amount of cash and Permitted Investments on deposit in the Series 2008-1
Excess Collection Account and (2) the amount of cash and Permitted
Investments on deposit in the Series 2008-1 Collection Account and
available for reduction of the Series 2008-1 Principal Amount, in each
case, as of such date.
“
Series 2008-1 Asset
Amount
” means, as of any date of determination, the product of (i) the
Series 2008-1 Asset Percentage as of such date and (ii) the Aggregate
Asset Amount as of such date.
23
“
Series 2008-1 Asset
Percentage
” means, as of any date of determination, the percentage
equivalent of a fraction, the numerator of which shall be equal to the Series 2008-1
Required Asset Amount, determined during the Series 2008-1 Revolving
Period as of the last day of the immediately preceding Related Month (or, until
the end of the initial Related Month after the Series 2008-1 Closing Date,
on the Series 2008-1 Closing Date), or, during the Series 2008-1
Rapid Amortization Period, as of the last day of the Series 2008-1
Revolving Period, and the denominator of which shall be the greater of (I) the
Aggregate Asset Amount as of the end of the immediately preceding Related Month
or, until the end of the initial Related Month after the Series 2008-1
Closing Date, as of the Series 2008-1 Closing Date and (II) as of the
same date as in
clause (I)
, the Aggregate Required Asset Amount.
“
Series 2008-1
Available Cash Collateral Account Amount
” means, as of any date of
determination, the amount on deposit in the Series 2008-1 Cash Collateral
Account (after giving effect to any deposits thereto and withdrawals and
releases therefrom on such date).
“
Series 2008-1
Available Reserve Account Amount
” means, as of any date of determination,
the amount on deposit in the Series 2008-1 Reserve Account.
“
Series 2008-1 Base
Rate Tranche
” means that portion of the Series 2008-1 Principal Amount
purchased or maintained with Series 2008-1 Advances which bear interest by
reference to the Series 2008-1 Base Rate.
“
Series 2008-1 Cash
Collateral Account
” has the meaning specified in
Section 3.9(f)
of this Series Supplement.
“
Series 2008-1 Cash
Collateral Account Collateral
” has the meaning specified in Section 3.9(a) of
this Series Supplement.
“
Series 2008-1 Cash
Collateral Account Interest and Earnings
” means with respect to a Series 2008-1
Cash Collateral Account all interest and earnings (net of losses and investment
expenses) paid on funds on deposit in such Series 2008-1 Cash Collateral
Account.
“
Series 2008-1 Cash
Collateral Account Surplus
” means, with respect to any Payment Date, the
lesser of (a) the Series 2008-1 Available Cash Collateral Account Amount and (b)
the lesser of (i) the excess, if any, of the Series 2008-1 Adjusted Enhancement
Amount (after giving effect to any withdrawal from the Series 2008-1 Reserve
Account on such Payment Date) over the Series 2008-1 Required Enhancement
Amount on such Payment Date and (ii) the excess, if any, of the Series 2008-1
Adjusted Liquidity Amount over the Series 2008-1 Required Liquidity Amount
on such Payment Date.
“
Series 2008-1 Cash Collateral
Percentage
” means, as of any date of determination, the percentage
equivalent of a fraction, the numerator of which is the Series 2008-1
Available Cash Collateral Account Amount as of such date and the
24
denominator of
which is the Series 2008-1 Letter of Credit Liquidity Amount as of such
date.
“
Series 2008-1
Certificate of Credit Demand
” means a certificate in the form of Annex A to
a Series 2008-1 Letter of Credit.
“
Series 2008-1
Certificate of Preference Payment Demand
” means a certificate in the form
of Annex C to a Series 2008-1 Letter of Credit.
“
Series 2008-1
Certificate of Termination Demand
” means a certificate in the form of Annex
D to a Series 2008-1 Letter of Credit.
“
Series 2008-1
Certificate of Unpaid Demand Note Demand
” means a certificate in the form
of Annex B to Series 2008-1 Letter of Credit.
“
Series 2008-1 Closing
Date
” means September 12, 2008.
“
Series 2008-1
Collateral
” means the Collateral, the Series 2008-1 Interest Rate
Caps, each Series 2008-1 Letter of Credit, the Series 2008-1 Series Account
Collateral, the Series 2008-1 Cash Collateral Account Collateral, the Series 2008-1
Demand Note, the Series 2008-1 Distribution Account Collateral and the Series 2008-1
Reserve Account Collateral.
“
Series 2008-1
Collection Account
” has the meaning specified in
Section 3.1(a)
of this Series Supplement.
“
Series 2008-1
Commercial Paper
” means the promissory notes of each Series 2008-1
Noteholder issued by such Series 2008-1 Noteholder in the commercial paper
market and allocated to the funding of Series 2008-1 Advances in respect
of the Series 2008-1 Notes.
“
Series 2008-1 CP
Tranche
” means that portion of the Series 2008-1 Principal Amount
purchased or maintained with Series 2008-1 Advances which bear interest by
reference to the CP Rate.
“
Series 2008-1 Daily
Interest Amount
” means, for any day in a Series 2008-1 Interest
Period, an amount equal to the result of (a) the product of (i) the Series 2008-1
Note Rate for such Series 2008-1 Interest Period and (ii) the Series 2008-1
Principal Amount as of the close of business on such date divided by (b) 360.
“
Series 2008-1
Deficiency Amount
” has the meaning specified in
Section 3.3(e)
of
this Series Supplement.
“
Series 2008-1 Demand
Note
” means each demand note made by Hertz, substantially in the form of
Exhibit G-2
to this Series Supplement, as amended, modified or restated from time to
time in accordance with its terms and the terms of this Series Supplement.
25
“
Series 2008-1 Demand
Note Payment Amount
” means, as of any date of determination, the excess, if
any, of (a) the aggregate amount of all proceeds of demands made on the Series 2008-1
Demand Note that were deposited into the Series 2008-1 Distribution Account
and paid to the Series 2008-1 Noteholders during the one year period
ending on such date of determination over (b) the amount of any Preference
Amount relating to such proceeds that has been repaid to HVF (or any payee of
HVF) with the proceeds of any Series 2008-1 LOC Preference Payment
Disbursement (or any withdrawal from any Series 2008-1 Cash Collateral
Account);
provided
,
however
, that if an Event of Bankruptcy (or
the occurrence of an event described in
clause (a)
of the definition
thereof, without the lapse of a period of 60 consecutive days) with respect to
Hertz shall have occurred on or before such date of determination, the Series 2008-1
Demand Note Payment Amount shall equal (i) on any date of determination
until the conclusion or dismissal of the proceedings giving rise to such Event
of Bankruptcy without continuing jurisdiction by the court in such proceedings
(or on any earlier date upon which the statute of limitations in respect of
avoidance actions in such proceedings has run or when such actions otherwise
become unavailable to the bankruptcy estate), the Series 2008-1 Demand
Note Payment Amount as if it were calculated as of the date of the occurrence
of such Event of Bankruptcy and (ii) on any date of determination
thereafter, $0.
“
Series 2008-1 Deposit
Date
” has the meaning specified in
Section 3.2
of this Series Supplement.
“
Series 2008-1
Designated Account
” has the meaning specified in
Section 3.11(a)
of this Series Supplement.
“
Series 2008-1
Disbursement
” shall mean any Series 2008-1 LOC Credit Disbursement,
any Series 2008-1 LOC Preference Payment Disbursement, any Series 2008-1
LOC Termination Disbursement or any Series 2008-1 LOC Unpaid Demand Note
Disbursement under the Series 2008-1 Letters of Credit or any combination
thereof, as the context may require.
“
Series 2008-1
Distribution Account
” has the meaning specified in
Section 3.10(a)
of
this Series Supplement.
“
Series 2008-1
Distribution Account Collateral
” has the meaning specified in
Section 3.10(d)
of this Series Supplement.
“
Series 2008-1
Downgrade Event
” has the meaning specified in
Section 3.9(c)
of
this Series Supplement.
“
Series 2008-1 Eligible
Letter of Credit Provider
” means a Person having, at the time of the
issuance of the related Series 2008-1 Letter of Credit, a long-term senior
unsecured debt rating (or the equivalent thereof in the case of Moody’s or
Standard & Poor’s, as applicable) of at least “A+” from Standard &
Poor’s and at least “A1” from Moody’s and a short-term senior unsecured debt
rating of at least “A-1” from Standard & Poor’s and “P-1” from Moody’s;
provided
that, other than in connection with the initial
26
Series 2008-1
Letter of Credit Provider, each Series 2008-1 Eligible Letter of Credit
Provider shall be approved by the Administrative Agent, such approval not to be
unreasonably withheld or delayed.
“
Series 2008-1
Enhancement Amount
” means, as of any date of determination, the sum of (i) the
Series 2008-1 Overcollateralization Amount as of such date, (ii) the Series 2008-1
Letter of Credit Amount as of such date and (iii) the Series 2008-1
Available Reserve Account Amount as of such date (after giving effect to any
deposits thereto and withdrawals and releases therefrom on such date).
“
Series 2008-1
Enhancement Deficiency
” means, on any day, the amount by which the Series 2008-1
Adjusted Enhancement Amount is less than the Series 2008-1 Required
Enhancement Amount.
“
Series 2008-1
Eurodollar Tranche
” means that portion of the Series 2008-1 Principal
Amount purchased or maintained with Series 2008-1 Advances which bear
interest by reference to the Series 2008-1 Eurodollar Rate.
“
Series 2008-1 Excess
Collection Account
” has the meaning specified in
Section 3.1(a)
of this Series Supplement.
“
Series 2008-1 Excess
Principal Event
” shall be deemed to have occurred if, on any date, the Series 2008-1
Outstanding Principal Amount exceeds the Series 2008-1 Maximum Principal
Amount.
“
Series 2008-1 Initial
Principal Amount
” means the aggregate initial principal amount of the Series 2008-1
Notes, which is $0.
“
Series 2008-1 Interest
Period
” means a period commencing on and including a Payment Date and
ending on and including the day preceding the next succeeding Payment Date;
provided
,
however
, that the initial Series 2008-1 Interest Period shall
commence on and include the Series 2008-1 Closing Date and end on and
include October 24, 2008.
“
Series 2008-1 Interest
Rate Cap
” has the meaning specified in
Section 3.12(a)
of this Series Supplement;
provided
that for the avoidance of doubt each Series 2008-1
Interest Rate Cap shall constitute a “Series-Specific Swap Agreement”, but
shall not constitute a “Swap Agreement” for all purposes under the Base
Indenture or any other Related Document.
“
Series 2008-1 Invested
Percentage
” means on any date of determination:
(a) when used with respect to Principal Collections, the
percentage equivalent (which percentage shall never exceed 100%) of a fraction,
the numerator of which shall be equal to the Series 2008-1 Required
Adjusted Asset Amount, determined during the Series 2008-1 Revolving
Period as of the last day of the immediately preceding Related Month (or, until
the end of the initial Related Month after the Series 2008-1 Closing Date,
on the Series 2008-1 Closing Date), or, the Series 2008-1 Required
27
Adjusted Asset
Amount, determined during the Series 2008-1 Rapid Amortization Period, as
of the last day of the Series 2008-1 Revolving Period, and the denominator
of which shall be the greater of (I) the Aggregate Asset Amount as of the
end of the immediately preceding Related Month or, until the end of the initial
Related Month after the Series 2008-1 Closing Date, as of the Series 2008-1
Closing Date and (II) as of the same date as in
clause (I)
, the
Aggregate Required Asset Amount;
(b) when used with respect to Interest Collections, the
percentage equivalent (which percentage shall never exceed 100%) of a fraction,
the numerator of which shall be the Series 2008-1 Accrued Amounts on such
date of determination, and the denominator of which shall be the aggregate
Accrued Amounts with respect to all Series of Notes on such date of
determination.
“
Series 2008-1 Investor
Group
” has the meaning set forth in the Series 2008-1 Note Purchase
Agreement.
“
Series 2008-1 Investor
Group Principal Amount
” has the meaning set forth in the Series 2008-1
Note Purchase Agreement.
“
Series 2008-1 Lease Interest Payment
Deficit
” means on any Payment Date an amount equal to the excess, if any,
of (a) the aggregate amount of Interest Collections which pursuant to
Section 3.2(a)
,
(b)
or
(c)
of this Series Supplement would have been
deposited into the Series 2008-1 Accrued Interest Account if all payments
of Monthly Variable Rent required to have been made under the HVF Lease from
and excluding the preceding Payment Date to and including such Payment Date
were made in full over (b) the aggregate amount of Interest Collections
which pursuant to
Section 3.2(a)
,
(b)
or
(c)
of this Series Supplement
have been received for deposit into the Series 2008-1 Accrued Interest
Account from and excluding the preceding Payment Date to and including such
Payment Date.
“
Series 2008-1 Lease
Payment Deficit
” means either a Series 2008-1 Lease Interest Payment
Deficit or a Series 2008-1 Lease Principal Payment Deficit.
“
Series 2008-1 Lease
Principal Payment Carryover Deficit
” means (a) for the initial Payment
Date, zero and (b) for any other Payment Date, the excess, if any, of (x) the
Series 2008-1 Lease Principal Payment Deficit, if any, on the preceding
Payment Date
over
(y) the amount deposited in the Series 2008-1
Distribution Account pursuant to
Section 3.5(d)
of this Series Supplement
on such preceding Payment Date on account of such Series 2008-1 Lease
Principal Payment Deficit.
“
Series 2008-1 Lease
Principal Payment Deficit
” means on any Payment Date the sum of (a) the
Series 2008-1 Monthly Lease Principal Payment Deficit for such Payment
Date and (b) the Series 2008-1 Lease Principal Payment Carryover
Deficit for such Payment Date.
“
Series 2008-1 Letter
of Credit
” means an irrevocable letter of credit, substantially in the form
of
Exhibit B
to this Series Supplement and otherwise in form
and substance satisfactory to the Administrative Agent issued by a Series 2008-1
Eligible
28
Letter of Credit Provider in
favor of the Trustee for the benefit of the Series 2008-1 Noteholders;
provided
,
however
, that the Administrative Agent agrees that any Series 2008-1
Letter of Credit that is in the form and substance of the Series 2008-1
Letter of Credit provided to the Trustee on the Series 2008-1 Closing Date
is in form and substance satisfactory to the Administrative Agent;
provided
further
that any Series 2008-1 Letter of Credit issued after the Series 2008-1
Closing Date shall be subject to the satisfaction of the Series 2008-1
Rating Agency Condition.
“
Series 2008-1 Letter of Credit
Agreement
” means the Series 2008-1 Letter of Credit Reimbursement Agreement
and any other agreement pursuant to which a Series 2008-1 Letter of Credit
is issued in favor of the Trustee for the benefit of the Series 2008-1
Noteholders.
“
Series 2008-1 Letter
of Credit Amount
” means, as of any date of determination, the lesser of (a) the
sum of (i) the aggregate amount available to be drawn on such date under
the Series 2008-1 Letters of Credit, as specified therein, and (ii) if
the Series 2008-1 Cash Collateral Account has been established and funded
pursuant to
Section 3.9
of this Series Supplement, the Series 2008-1
Available Cash Collateral Account Amount on such date and (b) the
outstanding principal amount of the Series 2008-1 Demand Note on such
date.
“
Series 2008-1 Letter
of Credit Expiration Date
” means, with respect to any Series 2008-1
Letter of Credit, the expiration date set forth in such Series 2008-1
Letter of Credit, as such date may be extended in accordance with the terms of
such Series 2008-1 Letter of Credit.
“
Series 2008-1 Letter
of Credit Liquidity Amount
” means, as of any date of determination, the sum
of (a) the aggregate amount available to be drawn on such date under each Series 2008-1
Letter of Credit, as specified therein, and (b) if a Series 2008-1
Cash Collateral Account has been established and funded pursuant to
Section 3.9(e)
of this Series Supplement, the Series 2008-1 Available Cash
Collateral Account Amount on such date.
“
Series 2008-1 Letter
of Credit Provider
” means the issuer of a Series 2008-1 Letter of
Credit.
“
Series 2008-1 Letter of Credit
Reimbursement Agreement
” means any and each reimbursement agreement
providing for the reimbursement of a Series 2008-1 Letter of Credit
Provider for draws under its Series 2008-1 Letter of Credit, as the same
may be amended, restated, modified or supplemented from time to time in
accordance with its terms.
“
Series 2008-1
Liquidity Amount
” means, as of any date of determination, the sum of (a) the
Series 2008-1 Letter of Credit Liquidity Amount and (b) the Series 2008-1
Available Reserve Account Amount on such date (after giving effect to any
deposits thereto on such date).
29
“
Series 2008-1
Liquidity Deficiency
” means, as of any date of determination, the amount by
which the Series 2008-1 Adjusted Liquidity Amount is less than the Series 2008-1
Required Liquidity Amount as of such date.
“
Series 2008-1
Liquidity Surplus
” means, with respect to any date of determination, the
excess, if any, of the Series 2008-1 Adjusted Liquidity Amount over the Series 2008-1
Required Liquidity Amount, in each case, as of such date.
“
Series 2008-1 LOC
Credit Disbursement
” means an amount drawn under a Series 2008-1
Letter of Credit pursuant to a Series 2008-1 Certificate of Credit Demand.
“
Series 2008-1 LOC
Preference Payment Disbursement
” means an amount drawn under a Series 2008-1
Letter of Credit pursuant to a Series 2008-1 Certificate of Preference
Payment Demand.
“
Series 2008-1 LOC
Termination Disbursement
” means an amount drawn under a Series 2008-1
Letter of Credit pursuant to a Series 2008-1 Certificate of Termination
Demand.
“
Series 2008-1 LOC
Unpaid Demand Note Disbursement
” means an amount drawn under a Series 2008-1
Letter of Credit pursuant to a Series 2008-1 Certificate of Unpaid Demand
Note Demand.
“
Series 2008-1 Maximum
Aggregate BMW/Lexus/Mercedes/Audi Amount
” means, as of any day, an amount
equal to 9% of the Adjusted Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
Aggregate Kia/Subaru/Hyundai Amount
” means, as of any day, an amount equal
to 30% of the Adjusted Aggregate Asset Amount on such day.
“
Series
2008-1 Maximum Amount
” means any of the Series 2008-1 Maximum Hyundai
Amount, the Series 2008-1 Maximum Jaguar Amount, the Series 2008-1 Maximum Kia
Amount, the Series 2008-1 Maximum Land Rover Amount, the Series 2008-1 Maximum
Mazda Amount, the Series 2008-1 Maximum Mitsubishi Amount, the Series 2008-1
Maximum Subaru Amount, the Series 2008-1 Maximum Volvo Amount, the Series
2008-1 Maximum Manufacturer Non-Eligible Vehicle Amount, the Series 2008-1
Maximum Non-Eligible Manufacturer Amount, the Series 2008-1 Maximum
Non-Eligible Vehicle Amount, the Series 2008-1 Maximum Audi Amount, the Series
2008-1 Maximum BMW Amount, the Series 2008-1 Maximum Lexus Amount, the Series
2008-1 Maximum Mercedes Amount, the Series 2008-1 Maximum Nissan Amount, the
Series 2008-1 Maximum Volkswagen Amount, the Series 2008-1 Maximum Aggregate
BMW/Lexus/Audi Mercedes Amount, the Series 2008-1 Maximum Aggregate
Kia/Subaru/Hyundai Amount and the Series 2008-1 Maximum HVF Service Vehicle
Amount.
“
Series 2008-1 Maximum
Audi Amount
” means, as of any day, an amount equal to 3% of the Adjusted
Aggregate Asset Amount on such day
.
30
“
Series 2008-1 Maximum
BMW Amount
” means, as of any day, an amount equal to 3% of the Adjusted
Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
HVF Service Vehicle Amount
” means, as of any day, an amount equal to 2% of
the Adjusted Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
Hyundai Amount
” means, as of any day, an amount equal to 13% of the
Adjusted Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
Jaguar Amount
” means, as of any day, an amount equal to 5% of the Adjusted
Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
Kia Amount
” means, as of any day, an amount equal to 10% of the Adjusted
Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
Land Rover Amount
” means, as of any day, an amount equal to 5% of the
Adjusted Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
Lexus Amount
” means, as of any day, an amount equal to 3% of the Adjusted
Aggregate Asset Amount on such day
.
“
Series 2008-1 Maximum
Manufacturer Non-Eligible Vehicle Amount
” means, as of any day, with
respect to any Manufacturer, an amount equal to 40% of the Non-Eligible Vehicle
Amount.
“
Series 2008-1 Maximum
Mazda Amount
” means, as of any day, an amount equal to 20% of the Adjusted
Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
Mercedes Amount
” means, as of any day, an amount equal to 3% of the
Adjusted Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
Mitsubishi Amount
” means, as of any day, an amount equal to 10% of the
Adjusted Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
Nissan Amount
” means, as of any day, an amount equal to 10% of the Adjusted
Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
Non-Eligible Manufacturer Amount
” means, as of any day, an amount equal to
3% of the Adjusted Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
Non-Eligible Vehicle Amount
” means, as of any day, an amount equal to 85%
of the Adjusted Aggregate Asset Amount.
“
Series 2008-1 Maximum
Principal Amount
” means, $825,000,000;
provided
that such amount may
be (i) reduced at any time and from time to time by written agreement
among HVF, each Series 2008-1 Noteholder, the Administrative Agent, each
Conduit Investor and each Committed Note Purchaser in accordance with the terms
of the Series 2008-1 Note Purchase Agreement, or (ii) increased at
any time and from
31
time to time
upon an Additional Investor Group becoming party to the Series 2008-1 Note
Purchase Agreement in accordance with the terms thereof.
“
Series 2008-1 Maximum
Subaru Amount
” means, as of any day, an amount equal to 5% of the Adjusted
Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
Volkswagen Amount
” means, as of any day, an amount equal to 10% of the
Adjusted Aggregate Asset Amount on such day.
“
Series 2008-1 Maximum
Volvo Amount
” means, as of any day, an amount equal to 5% of the Adjusted
Aggregate Asset Amount on such day.
“
Series 2008-1 Monthly
Default Interest Amount
” means, with respect to any Payment Date, the sum
of (i) an amount equal to the product of (x) 2.0%, (y) the
result of (a) the sum of the Series 2008-1 Principal Amount as of
each day during the related Series 2008-1 Interest Period (after giving
effect to any increases or decreases to the Series 2008-1 Principal Amount
on such day) during which an Amortization Event with respect to the Series 2008-1
Notes has occurred and is continuing divided by (b) the actual number of
days in the related Series 2008-1 Interest Period during which an
Amortization Event with respect to the Series 2008-1 Notes has occurred
and is continuing, and (z) the result of (a) the actual number of
days in the related Series 2008-1 Interest Period during which an
Amortization Event with respect to the Series 2008-1 Notes has occurred
and is continuing divided by (b) 360 plus (ii) all previously due and
unpaid amounts described in clause (i) with respect to prior Series 2008-1
Interest Periods (together with interest on such unpaid amounts required to be
paid in this clause (ii) at the rate specified in clause (i)).
“
Series 2008-1 Monthly Interest
”
means, with respect to any Payment Date, the sum of (i) the Series 2008-1
Daily Interest Amount for each day in the related Series 2008-1 Interest
Period,
plus
(ii) all previously due and unpaid amounts described
in
clause (i)
with respect to prior Series 2008-1 Interest Periods
(together with interest on such unpaid amounts required to be paid in this
clause
(ii)
at the Series 2008-1 Note Rate),
plus
(iii) the
Undrawn Fee for such Payment Date, calculated in accordance with Section 3.02(b) of
the Series 2008-1 Note Purchase Agreement.
“
Series 2008-1 Monthly
Lease Principal Payment Deficit
” means on any Payment Date an amount equal
to the excess, if any, of (a) the aggregate amount of Principal
Collections which pursuant to
Section 3.2(a)
,
(b)
or
(c)
of this Series Supplement would have been deposited into the Series 2008-1
Collection Account if all payments required to have been made under the HVF
Lease from and excluding the preceding Payment Date to and including such
Payment Date were made in full over (b) the aggregate amount of Principal
Collections which pursuant to
Section 3.2(a)
,
(b)
or
(c)
of this Series Supplement have been received for deposit into the Series 2008-1
Collection Account (without giving effect to any amounts deposited into the Series 2008-1
Accrued Interest Account pursuant to the proviso in
Section 3.2(b)(ii)
of this Series Supplement) from and excluding the preceding Payment Date
to and including such Payment Date.
32
“
Series 2008-1 Moody’s
Highest Enhancement Percentage
” means, with respect to any date of
determination, the sum of (a) 39.50% (or such lower percentage as may be
agreed to by HVF, each Funding Agent
and Moody’s,
subject to satisfaction of the Series 2008-1 Rating Agency Condition with
respect to Moody’s) and (b) an amount equal to 100% minus the lower of (x) the
lowest Non-Program Vehicle Measurement Month Average for any Measurement Month
within the preceding 12 calendar months (or such fewer number of months as have
elapsed since the Series 2008-1 Closing Date) and (y) the lowest
Market Value Average as of any Determination Date within the preceding 12
calendar months (or such fewer number of months as have elapsed since the Series 2008-1
Closing Date).
“
Series 2008-1 Moody’s
Highest Enhancement Vehicle Percentage
” means, as of any date of
determination, the sum of (a) the Non-Program Vehicle Percentage as of
such date
plus
(b) the Bankrupt Manufacturer Vehicle Percentage as
of such date.
“
Series 2008-1 Moody’s Intermediate
Enhancement Percentage
” means, with respect to any date of determination,
the sum of (a) 34.00% (or such lower percentage as may be agreed to by
HVF,
each Funding Agent
and
Moody’s, subject to satisfaction of the Series 2008-1 Rating Agency
Condition with respect to Moody’s) and (b) an amount equal to 100% minus
the lower of (x) the lowest Non-Program Vehicle Measurement Month Average
for any Measurement Month within the preceding 12 calendar months (or such
fewer number of months as have elapsed since the Series 2008-1 Closing
Date) and (y) the lowest Market Value Average as of any Determination Date
within the preceding 12 calendar months (or such fewer number of months as have
elapsed since the Series 2008-1 Closing Date).
“
Series 2008-1 Moody’s
Intermediate Enhancement Vehicle Percentage
” means, as of any date of
determination, the excess of (i) 100% over (ii) the sum of (x) the
Series 2008-1 Moody’s Lowest Enhancement Vehicle Percentage as of such
date
plus
(y) the Series 2008-1 Moody’s Highest Enhancement
Vehicle Percentage as of such date.
“
Series 2008-1 Moody’s
Lowest Enhancement Percentage
” means, with respect to any date of
determination, 16.50% (or such lower percentage as may be agreed to by HVF,
each Funding Agent and Moody’s, subject to satisfaction of
the Series 2008-1 Rating Agency Condition with respect to Moody’s).
“
Series 2008-1 Moody’s
Lowest Enhancement Vehicle Percentage
” means, as of any date of
determination, the sum of (a) the Category 1 Manufacturer Eligible Program
Vehicle Percentage as of such date
plus
(b) the Category 1
Manufacturer Non-Eligible Program Vehicle Percentage as of such date
plus
(c) the Capped Category 2 Manufacturer Program Vehicle Percentage as of
such date.
“
Series 2008-1 Moody’s
Required Enhancement Percentage
” means, as of any date of determination,
the sum of (a) the product of (i) the Series 2008-1 Moody’s
Lowest Enhancement Percentage as of such date
times
(ii) the Series 2008-1
Moody’s Lowest Enhancement Vehicle Percentage as of such date
plus
(b) the
product of (i) the
33
Series 2008-1
Moody’s Intermediate Enhancement Percentage as of such date
times
(ii) Series 2008-1
Moody’s Intermediate Enhancement Vehicle Percentage as of such date
plus
(c) the product of (i) the Series 2008-1 Moody’s Highest
Enhancement Percentage as of such date
times
(ii) the Series 2008-1
Moody’s Highest Enhancement Vehicle Percentage as of such date.
“
Series 2008-1
Noteholder
” means the Person in whose name a Series 2008-1 Note is
registered in the Note Register.
“
Series 2008-1 Note
Purchase Agreement
” means the Note Purchase Agreement, dated as of September 12,
2008, among HVF, the Series 2008-1 Noteholders, the Administrative Agent,
the Administrator, the Series 2008-1 Funding Agents, the Conduit Investors
and the Committed Note Purchasers, pursuant to which the Series 2008-1
Noteholders have agreed to purchase the Series 2008-1 Notes from HVF,
subject to the terms and conditions set forth therein, as amended,
supplemented, restated or otherwise modified from time to time.
“
Series 2008-1 Note
Rate
” means, for any Series 2008-1 Interest Period, the sum of (i) the
weighted average of the CP Rates applicable to the Series 2008-1 CP
Tranche and the weighted average of the Series 2008-1 Eurodollar Rates
(Reserve Adjusted) applicable to the Series 2008-1 Eurodollar Tranche and
the weighted average of the Series 2008-1 Base Rates applicable to the Series 2008-1
Base Rate Tranche, in each case, for the Series 2008-1 Interest Period and
(ii) the Program Fee Rate as defined in the Series 2008-1 Note
Purchase Agreement;
provided
,
however
, that the Series 2008-1
Note Rate will in no event be higher than the maximum rate permitted by
applicable law.
“
Series 2008-1 Notes
”
means any one of the Series 2008-1 Variable Funding Rental Car Asset
Backed Notes, executed by HVF and authenticated by or on behalf of the Trustee,
substantially in the form of
Exhibit A
.
“
Series 2008-1 Notice
of Reduction
” means a notice in the form of Annex E to a Series 2008-1
Letter of Credit.
“
Series 2008-1 Outstanding Principal
Amount
” means, when used with respect to any date, an amount equal to (a) the
sum of (i) Series 2008-1 Initial Principal Amount plus (ii), without
duplication, the sum of the Additional Investor Group Initial Principal Amounts
for each Additional Investor Group as of such date
minus
(b) the
amount of principal payments (whether pursuant to a Decrease, a redemption or
otherwise) made to the Series 2008-1 Noteholders on or prior to such date
plus
(c) any Increases in the Series 2008-1 Principal Amount pursuant to
Section 2.1(a)
of this Series Supplement on or prior to such date;
provided
that
at no time may the Series 2008-1 Outstanding Principal Amount exceed the Series 2008-1
Maximum Principal Amount.
“
Series 2008-1
Overcollateralization Amount
” means as of any date of determination, (i) on
which no Aggregate Asset Amount Deficiency exists, the Series 2008-1
Required Overcollateralization Amount as of such date or (ii) on which an
34
Aggregate
Asset Amount Deficiency exists, the excess, if any, of the Series 2008-1
Asset Amount over the Series 2008-1 Adjusted Principal Amount as of such
date.
“
Series 2008-1 Past Due
Rent Payment
” has the meaning specified in
Section 3.2(c)
of this Series
Supplement.
“
Series 2008-1
Percentage
” means, as of any date of determination, a fraction, expressed
as a percentage, the numerator of which is the Series 2008-1 Principal
Amount as of such date and the denominator of which is the Aggregate Principal
Amount as of such date.
“
Series 2008-1 Principal Amount
”
means when used with respect to any date, an amount equal to the Series 2008-1
Outstanding Principal Amount plus the amount of any principal payments made to Series 2008-1
Noteholders that have been rescinded or otherwise returned by the Series 2008-1
Noteholders for any reason;
provided
that, for the avoidance of doubt,
for purposes of determining whether or not the Requisite Investors have given
any consent, waiver, direction or instruction, the Series 2008-1 Principal
Amount held by each Series 2008-1 Noteholder shall be deemed to include,
without double counting, the undrawn portion of the “Maximum Purchaser Group
Invested Amount” (
i.e
., the unutilized purchase
commitments under the Series 2008-1 Note Purchase Agreement) for such Series 2008-1
Noteholder’s Investor Group.
“
Series 2008-1
Principal Allocation
” has the meaning specified in
Section 3.2 (a)(ii)
of this Series Supplement.
“
Series 2008-1 Rapid Amortization
Period
” means the period beginning on the earlier to occur of (i) the
close of business on the Business Day immediately preceding the Expected Final
Payment Date and (ii) the close of business on the Business Day immediately
preceding the day on which an Amortization Event is deemed to have occurred
with respect to the Series 2008-1 Notes, and ending upon the earlier to
occur of (i) the date on which (A) the Series 2008-1 Notes are
fully paid and (B) the termination of the Indenture.
“
Series 2008-1 Rating
Agency Condition
” means, with respect to the Series 2008-1 Notes and
any action, including the issuance of an additional Series of Notes, that
each Rating Agency shall have notified HVF, the Administrative Agent and the Trustee
in writing that such action will not result in a reduction or withdrawal of the
then-current ratings of the Series 2008-1 Notes.
“
Series 2008-1
Repurchase Amount
” has the meaning specified in
Section 6.1
of
this Series Supplement.
“
Series 2008-1 Required Adjusted Asset
Amount
” means, as of any date of determination, the sum of (i) the
excess, if any, of (A) the Series 2008-1 Principal Amount as of such
date over (B) the sum of (1) the amount of cash and Permitted
Investments on deposit in the Series 2008-1 Excess Collection Account and (2) the
amount of cash and Permitted Investments on deposit in the Series 2008-1
Collection Account that, in the case of each of (i)(B)(1) and (i)(B)(2),
is required to be applied to
35
reduce the Series 2008-1
Principal Amount, as of such date and (ii) the Series 2008-1 Required
Overcollateralization Amount as of such date.
“
Series 2008-1 Required
Asset Amount
” means, as of any date of determination, the sum of (i) the
Series 2008-1 Adjusted Principal Amount as of such date and (ii) the Series 2008-1
Required Overcollateralization Amount as of such date.
“
Series 2008-1 Required
Asset Amount Percentage
” means, as of any date of determination, the
percentage equivalent of a fraction, the numerator of which is the Series 2008-1
Required Asset Amount and the denominator of which is the Aggregate Required
Asset Amount as of such date.
“
Series 2008-1 Required
Enhancement Amount
” means, as of any date of determination, the sum of (i) the
product of (x) the Series 2008-1 Required Enhancement Percentage as
of such date and (y) the Series 2008-1 Adjusted Principal Amount as
of such date and (ii) the Series 2008-1 Required Incremental
Enhancement Amount as of such date;
provided
,
however
, that, as
of any date of determination after the occurrence of a Limited Liquidation
Event of Default, the Series 2008-1 Required Enhancement Amount shall
equal the lesser of (x) the Series 2008-1 Adjusted Principal Amount
as of such date and (y) the sum of (l) the product of the Series 2008-1
Required Enhancement Percentage as of such date of determination and the Series 2008-1
Adjusted Principal Amount as of the date of the occurrence of such Limited
Liquidation Event of Default and (2) the Series 2008-1 Required
Incremental Enhancement Amount as of such date of determination.
“
Series 2008-1 Required
Incremental Enhancement Amount
” means
(i) as of the Series 2008-1 Closing Date, $0; and
(ii) as of any date thereafter on which the Series 2008-1 Adjusted
Principal Amount is greater than zero, the product of (A) the Series 2008-1
Required Asset Amount Percentage as of the immediately preceding Business Day
and (B) the sum of (1) the excess, if any, of the Non-Eligible
Vehicle Amount (excluding from the calculation thereof, to the extent that an
Event of Bankruptcy has occurred with respect to any of Ford, GM, Chrysler,
Toyota and Honda, the Net Book Value of the HVF Vehicles (other than
Non-Program Vehicles manufactured by any such Manufacturer as of the date of
the occurrence of such Event of Bankruptcy) manufactured by each such
Manufacturer for which an Event of Bankruptcy has occurred and any amounts
related to such HVF Vehicles due from such Manufacturer) over the Series 2008-1
Maximum Non-Eligible Vehicle Amount as of such immediately preceding Business
Day, (2) the excess, if any, of the Hyundai Amount over the Series 2008-1
Maximum Hyundai Amount as of such immediately preceding Business Day, (3) the
excess, if any, of the Jaguar Amount over the Series 2008-1 Maximum Jaguar
Amount as of such immediately preceding Business Day, (4) the excess, if
any, of the Kia Amount over the Series 2008-1 Maximum Kia Amount as of
such immediately preceding Business Day, (5) the excess, if any, of the
Land Rover Amount over the Series 2008-1 Maximum Land Rover Amount as of
such immediately preceding Business Day, (6) the excess, if any, of the
Mazda Amount over
36
the Series 2008-1
Maximum Mazda Amount as of such immediately preceding Business Day, (7) the
excess, if any, of the Mitsubishi Amount over the Series 2008-1 Maximum
Mitsubishi Amount as of such immediately preceding Business Day, (8) the
excess, if any, of the Subaru Amount over the Series 2008-1 Maximum Subaru
Amount as of such immediately preceding Business Day, (9) the excess, if
any, of the Volvo Amount over the Series 2008-1 Maximum Volvo Amount as of
such immediately preceding Business Day, (10) the excess, if any, of the
Non-Eligible Manufacturer Amount over the Series 2008-1 Maximum
Non-Eligible Manufacturer Amount as of such immediately preceding Business Day,
(11) the excess, if any, of the Manufacturer Non-Eligible Vehicle Amount with
respect to any Manufacturer (excluding from the calculation thereof, to the
extent that an Event of Bankruptcy has occurred with respect to any of Ford,
GM, Chrysler, Toyota and Honda, the Net Book Value of the HVF Vehicles (other
than Non-Program Vehicles manufactured by any such Manufacturer as of the date
of the occurrence of such Event of Bankruptcy) manufactured by each such
Manufacturer for which an Event of Bankruptcy has occurred and any amounts
related to such HVF Vehicles due from such Manufacturer) over the Series 2008-1
Maximum Manufacturer Non-Eligible Vehicle Amount as of such immediately
preceding Business Day, (12) the excess, if any, of the Audi Amount over the Series 2008-1
Maximum Audi Amount as of such immediately preceding Business Day, (13) the
excess, if any of the BMW Amount over the Series 2008-1 Maximum BMW Amount
as of such immediately preceding Business Day, (14) the excess, if any of the
Lexus Amount over the Series 2008-1 Maximum Lexus Amount as of such
immediately preceding Business Day, (15) the excess, if any of the Mercedes
Amount over the Series 2008-1 Maximum Mercedes Amount as of such
immediately preceding Business Day, (16) the excess, if any of the Nissan
Amount over the Series 2008-1 Maximum Nissan Amount as of such immediately
preceding Business Day, (17) the excess, if any of the Volkswagen Amount over
the Series 2008-1 Maximum Volkswagen Amount as of such immediately
preceding Business Day, (18) the excess, if any of the Aggregate
BMW/Lexus/Mercedes/Audi Amount over the Series 2008-1 Maximum Aggregate
BMW/Lexus/Mercedes/Audi Amount as of such immediately preceding Business Day,
(19) the excess, if any of the Aggregate Kia/Subaru/Hyundai Amount over the Series 2008-1
Maximum Aggregate Kia/Subaru/Hyundai Amount as of such immediately preceding
Business Day, (20) the excess, if any of the HVF Service Vehicle Amount over
the Series 2008-1 Maximum HVF Service Vehicle Amount as of such
immediately preceding Business Day and (21) the excess, if any, of the
Ineligible Receivable Manufacturer Receivable Amount over the Ineligible
Non-Investment Grade Manufacturer Receivable Amount as of such immediately
preceding Business Day. The Manufacturer
Non-Eligible Vehicle Amounts with respect to Ford, Volvo and Mazda shall be
calculated on an aggregate basis so that they will be considered as one
Manufacturer for the purpose of the calculation of the Series 2008-1
Maximum Manufacturer Non-Eligible Vehicle Amount for so long as each of Volvo
and Mazda is an Affiliate of Ford.
“
Series 2008-1 Required
Enhancement Percentage
” means, as of any date of determination, the greater
of (i) the Series 2008-1 S&P Required Enhancement Percentage as
of such date and (ii) the Series 2008-1 Moody’s Required Enhancement
Percentage as of such date.
37
“
Series 2008-1 Required
Liquidity Amount
” means, as of any date of determination, an amount equal
to the product of (i) the Series 2008-1 Required Liquidity Percentage
as of such date times (ii) the Series 2008-1 Adjusted Principal
Amount as of such date.
“
Series 2008-1 Required
Liquidity Percentage
” means, as of any date of determination, 6.75%.
“
Series 2008-1 Required
Overcollateralization Amount
” means, as of any date of determination, the
excess, if any, of (a) the Series 2008-1 Required Enhancement Amount
as of such date over (b) the sum of (i) the Series 2008-1
Available Reserve Account Amount as of such date (after giving effect to any
deposits thereto and withdrawals and releases therefrom on such date) and (ii) the
Series 2008-1 Letter of Credit Amount as of such date.
“
Series 2008-1
Required Reserve Account Amount
” means, with respect to any date of
determination, an amount equal to the greater of (a) the excess, if any,
of the Series 2008-1 Required Liquidity Amount over the Series 2008-1
Letter of Credit Liquidity Amount, in each case, as of such date, excluding
from the calculation thereof the amount available to be drawn under any Series 2008-1
Letter of Credit if at the time of such calculation (A) such Series 2008-1
Letter of Credit shall not be in full force and effect, (B) an Event of
Bankruptcy shall have occurred with respect to the Series 2008-1 Letter of
Credit Provider of such Series 2008-1 Letter of Credit, (C) such Series 2008-1
Letter of Credit Provider shall have repudiated such Series 2008-1 Letter
of Credit or failed to honor a draw thereon made in accordance with the terms
thereof or (D) a Series 2008-1 Downgrade Event shall have occurred
and be continuing for at least 30 days with respect to the Series 2008-1
Letter of Credit Provider of such Series 2008-1 Letter of Credit and (b) the
excess, if any, of the Series 2008-1 Required Enhancement Amount over the Series 2008-1
Adjusted Enhancement Amount (excluding therefrom the Series 2008-1
Available Reserve Account Amount), in each case, as of such date.
“
Series 2008-1
Reserve Account
” has the meaning specified in
Section 3.8(a)
of
this Series Supplement.
“
Series 2008-1
Reserve Account Collateral
” has the meaning specified in
Section 3.8(d)
of this Series Supplement.
“
Series
2008-1 Reserve Account Surplus
” means, with respect to any date of
determination, the excess, if any, of the Series 2008-1 Available Reserve
Account Amount (after giving effect to any deposits thereto and withdrawals and
releases therefrom on such date) over the Series 2008-1 Required Reserve
Account Amount, in each case, as of such date.
“
Series
2008-1 Revolving Period
” means the period from and including the Series
2008-1 Closing Date to the commencement of the Series 2008-1 Rapid Amortization
Period.
38
“
Series 2008-1 S&P Highest
Enhancement Percentage
” means, with respect to any date of determination,
the sum of (a) 40.00% (or such lower percentage as may be agreed to by
HVF, each Funding Agent and S&P, subject to satisfaction of the Series 2008-1
Rating Agency Condition with respect to S&P) and (b) an amount equal
to 100% minus the lower of (x) the lowest Non-Program Vehicle Measurement
Month Average for any Measurement Month within the preceding 12 calendar months
(or such fewer number of months as have elapsed since the Series 2008-1
Closing Date) and (y) the lowest Market Value Average as of any
Determination Date within the preceding 12 calendar months (or such fewer
number of months as have elapsed since the Series 2008-1 Closing Date).
“
Series 2008-1 S&P Highest
Enhancement Vehicle Percentage
” means, as of any date of determination, the
sum of (i) the Top Two Category 3 Manufacturer Vehicle Percentage as of
such date, (ii) Non-Top Two Category 3 Manufacturer Vehicle Percentage
Excess as of such date and (iii) the Bankrupt Manufacturer Vehicle
Percentage as of such date.
“
Series 2008-1 S&P Intermediate
Enhancement Percentage
” means, with respect to any date of determination,
the sum of (a) 34.00% (or such lower percentage as may be agreed to by HVF,
each Funding Agent and S&P, subject to satisfaction of the Series 2008-1
Rating Agency Condition with respect to S&P) and (b) an amount equal
to 100% minus the lower of (x) the lowest Non-Program Vehicle Measurement
Month Average for any Measurement Month within the preceding 12 calendar months
(or such fewer number of months as have elapsed since the Series 2008-1
Closing Date) and (y) the lowest Market Value Average as of any
Determination Date within the preceding 12 calendar months (or such fewer number
of months as have elapsed since the Series 2008-1 Closing Date).
“
Series 2008-1 S&P Intermediate
Enhancement Vehicle Percentage
” means, as of any date of determination,
the excess of (i) 100%
over (ii) the sum of (x) the Series 2008-1 S&P Lowest Enhancement Vehicle
Percentage as of such date
plus
(y) the Series 2008-1 S&P
Highest Enhancement Vehicle Percentage as of such date
.
“
Series 2008-1 S&P Lowest Enhancement Percentage
”
means, with respect to any date of determination, 23.50% (or such lower percentage
as may be agreed to by HVF, each Funding Agent and S&P, subject to
satisfaction of the Series 2008-1 Rating Agency Condition with respect to
S&P).
“
Series 2008-1 S&P Lowest
Enhancement Vehicle Percentage
” means, as of any date of determination, the
sum of (a) the Category 1 Manufacturer Eligible Program Vehicle Percentage
as of such date and (b) the Capped Category 2 Manufacturer Eligible
Program Vehicle Percentage as of such date.
“
Series 2008-1 S&P Required
Enhancement Percentage
” means, as of any date of determination, the sum of (a) the
product of (i) the Series 2008-1 S&P Lowest Enhancement
Percentage as of such date
times
(ii) the Series 2008-1
S&P Lowest Enhancement Vehicle Percentage as of such date
plus
(b) the
product of (i) the Series
39
2008-1 S&P Intermediate
Enhancement Percentage as of such date
times
(ii) the Series 2008-1
S&P Intermediate Enhancement Vehicle Percentage as of such date
plus
(c) the product of (i) the Series 2008-1 S&P Highest
Enhancement Percentage as of such date
times
(ii) the Series 2008-1
S&P Highest Enhancement Vehicle Percentage as of such date.
“
Series 2008-1 Series
Account Collateral
” has the meaning specified in
Section 3.1(d)
of
this Series Supplement.
“
Series 2008-1 Series Accounts
”
has the meaning specified in
Section 3.1(a)
of this Series Supplement.
“
Series Supplement
” has the
meaning set forth in the preamble.
“
Servicer Event of Default
” means the
occurrence of an event that results in amounts due under the Servicer’s Senior
Credit Facilities becoming immediately due and payable and that has not been
waived by the lenders under such facilities.
“
Standard & Poor’s First Trigger
Required Ratings
” means, with respect to any entity, rating requirements which
are satisfied where (i) if such entity has a short-term, unsecured and
unsubordinated debt obligation rating by Standard & Poor’s, such
rating is “A-1” or (ii) if such entity does not have a short-term,
unsecured and unsubordinated debt obligation rating by Standard & Poor’s,
its unsecured and unsubordinated debt rating or counterparty rating is “A+” or
above by Standard & Poor’s.
“
Subaru Amount
” means, as of any date
of determination, an amount equal to the sum of the Manufacturer Non-Eligible
Vehicle Amount and Manufacturer Eligible Program Vehicle Amount, in each case,
with respect to Subaru as of such date.
“
Third-Party Market Value
” means, with
respect to any HVF Vehicle as of any date of determination, the market value of
such HVF Vehicle as specified in the Related Month’s published NADA Guide for
the model class and model year of such HVF Vehicle based on the average
equipment and the average mileage of each HVF Vehicle of such model class and
model year;
provided
, that if the NADA Guide was not published in the
Related Month or the NADA Guide is being published but such HVF Vehicle is not
included therein, the Third-Party Market Value of such HVF Vehicle shall be
based on the market value specified in the Finance Guide for the model class and
model year of such HVF Vehicle based on the average equipment and the average
mileage of each HVF Vehicle of such model class and model year;
provided
,
further, that if the Finance Guide is being published but such HVF Vehicle is
not included therein, the Third-Party Market Value of such HVF Vehicle shall
mean the Net Book Value of such HVF Vehicle;
provided
, further, that if
the Finance Guide was not published in the Related Month, the Third-Party
Market Value of such HVF Vehicle shall be based on an independent third-party
data source selected by the Servicer and approved by each Rating Agency that is
rating the Series 2008-1 Notes and the Administrative Agent (such approval
not to be unreasonably withheld or delayed), at the request of HVF based on the
average equipment and average mileage of each HVF Vehicle of such model class
and
40
model year;
provided
,
further, that if no such third-party data source or methodology shall have been
so approved or any such third-party source or methodology is not available, the
Third-Party Market Value of such HVF Vehicle shall be equal to a reasonable
estimate of the wholesale market value of such Vehicle as determined by the
Servicer, based on the Net Book Value of such Vehicle and any other factors
deemed relevant by the Servicer.
“
Top Two Category 3 Manufacturers
”
means, as of any date of determination, the two Category 3 Manufacturers with
the largest portions of the Aggregate Asset Amount attributable to Vehicles manufactured
by such Category 3 Manufacturers (or one or more Affiliates of such Category 3
Manufacturers) and amounts receivable from such Manufacturers (or one or more
Affiliates of such Category 3 Manufacturers), in each case, as of such date.
“
Top Two Category 3 Manufacturer Vehicle
Amount
” means, as of any date of determination, the sum of the Manufacturer
Eligible Program Vehicle Amounts and Manufacturer Non-Eligible Vehicle Amounts
for the Top Two Category 3 Manufacturers as of such date.
“
Top Two Category 3 Manufacturer Vehicle
Percentage
” means, as of any date of determination, the percentage
equivalent of a fraction, the numerator of which is the Top Two Category 3
Manufacturer Vehicle Amount as of such date and the denominator of which is the
excess of (A) the Aggregate Asset Amount over (B) the amount of cash
and Permitted Investments on deposit in the Collection Account and the HVF
Exchange Account, in each case, as of such date.
“
Volkswagen Amount
” means, as of any
date of determination, an amount equal to the sum of the Manufacturer
Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle
Amount, in each case, with respect to Volkswagen as of such date.
“
Voluntary Decrease
” has the meaning
specified in
Section 2.2(b)
of this Series Supplement.
“
Volvo Amount
” means, as of any date
of determination, an amount equal to the sum of the Manufacturer Non-Eligible
Vehicle Amount and the Manufacturer Eligible Program Vehicle Amount, in each
case, with respect to Volvo as of such date.
“
Voting Stock
” means,
with respect to any Person, shares of Capital Stock entitled to vote generally
in the election of directors.
“
Weekly Noteholders Statement
” means,
with respect to the Series 2008-1 Notes, a statement substantially in the
form of
Exhibit F-2
hereto.
41
ARTICLE II
INITIAL ISSUANCE AND
INCREASES AND DECREASES
OF PRINCIPAL AMOUNT OF SERIES 2008-1 NOTES
Section 2.1.
Initial
Issuance; Procedure for Increasing the Series 2008-1 Principal Amount
.
(a) Subject to satisfaction of the conditions precedent set
forth in
subsection (b)
of this
Section 2.1
(in the case of
subsections
(b)(i)
,
(b)(ii)
,
(b)(iii)
,
(b)(iv)
,
(b)(v)
,
(b)(vi
),
(b)(vii
),
(b)(viii)
and
(b)(x)
of this
Section 2.1
,
as evidenced by an Advance Request delivered to the Trustee as to which the
Trustee may rely) (i) on the Series 2008-1 Closing Date, HVF may
issue Series 2008-1 Notes in the aggregate initial principal amount equal
to the Series 2008-1 Initial Principal Amount, (ii) on any Business
Day during the Series 2008-1 Revolving Period, issue Additional Series 2008-1
Notes in an aggregate initial principal amount equal to the Additional Investor
Group Initial Principal Amount with respect to the related Additional Investor
Group and (iii) on any Business Day during the Series 2008-1
Revolving Period, HVF may, in accordance with the Series 2008-1 Note
Purchase Agreement, increase the Series 2008-1 Principal Amount (such
increase referred to as an “
Increase
”), by issuing, at par, ratable
amounts of additional principal amounts of the Series 2008-1 Notes. Each Increase shall be made in accordance
with the provisions of Sections 2.02 and 2.03 of the Series 2008-1 Note
Purchase Agreement and shall be ratably allocated among the Series 2008-1
Notes, based on their respective portion of the Series 2008-1 Principal
Amount prior to giving effect to such Increase.
Proceeds from the initial issuance of the Series 2008-1 Notes and
from any Increase shall be deposited into the Collection Account and allocated
in accordance with
Article III
hereof. Upon each Increase, the Trustee shall, or
shall cause the Registrar to, indicate in the Note Register such Increase.
(b) The initial Series 2008-1 Notes will be issued on the
Series 2008-1 Closing Date, Additional Series 2008-1 Notes will be
issued on any Business Day during the Series 2008-1 Revolving Period that
an Additional Investor Group becomes a party to the Series 2008-1 Note
Purchase Agreement, and the Series 2008-1 Principal Amount may be
increased on any Business Day during the Series 2008-1 Revolving Period
(subject to the limitations set forth in
Section 2.2(a)
below), in
each case, pursuant to
subsection (a)
above, only upon satisfaction of
each of the following conditions with respect to such initial issuance, such
additional issuance of Additional Series 2008-1 Notes and each proposed
Increase:
(i) other than in the
case of the initial issuance of the Series 2008-1 Notes on the Closing
Date, the amount of such issuance or Increase shall be equal to or greater than
$2,500,000 and integral multiples of
$100,000 in excess thereof;
(ii) after giving effect
to such issuance or Increase, (A) the Investor Group Principal Amount with
respect to each Investor Group shall not exceed the Maximum Investor Group
Principal Amount with respect to such Investor Group
42
and
(B) the Series 2008-1 Principal Amount shall not exceed the Series 2008-1
Maximum Principal Amount;
(iii) after giving effect
to such issuance or Increase and the application of the proceeds thereof, no Series 2008-1
Enhancement Deficiency, Series 2008-1 Liquidity Deficiency or Aggregate
Asset Amount Deficiency shall exist;
(iv) after giving effect
to such issuance or Increase and the application of the proceeds thereof, the
amount on deposit in the Series 2008-1 Reserve Account shall be equal to
or greater than the Series 2008-1 Required Reserve Account Amount;
(v) no Series 2008-1
Amortization Event has occurred and is continuing and such issuance or Increase
and the application of the proceeds thereof will not result in the occurrence
of (1) an Amortization Event with respect to the Series 2008-1 Notes
or a Limited Liquidation Event of Default, or (2) an event or occurrence, which,
with the passing of time or the giving of notice thereof, or both, would become
an Amortization Event with respect to the Series 2008-1 Notes or a Limited
Liquidation Event of Default;
(vi) all representations
and warranties set forth in Article 7 of the Base Indenture shall be true
and correct with the same effect as if made on and as of such date (except to
the extent such representations relate to an earlier date);
(vii) all conditions
precedent to the making of advances under the Series 2008-1 Note Purchase
Agreement shall have been satisfied;
(viii) in the case of the
initial issuance of the Series 2008-1 Notes on the Closing Date, receipt
by HVF of a letter from each Rating Agency confirming that the Series 2008-1
Notes have been rated with the applicable Required Rating by such Rating Agency
and receipt by the Trustee and the Administrative Agent of a true and correct
copy thereof;
(ix) no more than three
Increases shall occur during any calendar week;
(x) each Rating Agency
shall have received prior written notice of each issuance of Additional Series 2008-1
Notes; and
(xi) in the case of any
Increase, the Series 2008-1 Letter of Credit shall have been issued and
remains outstanding and in full force and effect.
Section 2.2.
Procedure for
Decreasing the Series 2008-1 Principal Amount
.
(a)
Mandatory Decrease
.
Whenever (i) a Series 2008-1 Enhancement Deficiency exists,
then, on or before the Payment Date immediately following discovery of such Series 2008-1
Enhancement Deficiency, HVF shall apply funds in the Series 2008-1 Excess
Collection Account in accordance with
Section 3.2(e)
43
of this Series Supplement, to make a pro
rata reduction in the Series 2008-1 Principal Amount (subject to the
limitations specified in
Section 2.2(c)
below) by the lesser
of (x) the amount necessary, so that after giving effect to all Decreases
of the Series 2008-1 Principal Amount on such Payment Date, no such Series 2008-1
Enhancement Deficiency shall exist and (y) the amount that would reduce
the Series 2008-1 Principal Amount to zero, (ii) an Aggregate Asset
Amount Deficiency exists, then, on or before the Payment Date immediately
following discovery of such Aggregate Asset Amount Deficiency, HVF shall allocate
to and deposit in the Series 2008-1 Excess Collection Account to be
applied in accordance with
Section 3.2(e)
of this Series Supplement,
funds to make a pro rata reduction in the Series 2008-1 Principal Amount
(subject to the limitations specified in
Section 2.2(c)
below)
in an amount equal to the lesser of (x) the Series 2008-1 Invested
Percentage (with respect to Principal Collections) of the amount of such
Aggregate Asset Amount Deficiency and (y) the Series 2008-1 Principal
Amount as of the date of application of such funds and (iii) a Series 2008-1 Excess Principal Event shall have occurred, then,
on or before the Payment Date immediately following discovery of such Series 2008-1
Excess Principal Event, HVF shall
allocate to and deposit in the Series 2008-1 Excess Collection Account to
be applied in accordance with
Section 3.2(e)
of this Series Supplement,
funds to make a pro rata reduction in the Series 2008-1 Principal Amount
(subject to the limitations specified in
Section 2.2(c)
below)
by the lesser of (x) the amount necessary, so that after giving effect to
all Decreases of the Series 2008-1 Principal Amount on such Payment Date,
no such Series 2008-1 Excess Principal
Event shall exist and (y) the amount that would reduce the Series 2008-1
Principal Amount to zero (each reduction of the Series 2008-1 Principal
Amount pursuant to this
Section 2.2(a)
, a “
Mandatory Decrease
”);
plus
, with respect to each clause above, any associated breakage costs
(including Series 2008-1 Commercial Paper discounts and interest scheduled
to accrue through the maturity of such Series 2008-1 Commercial Paper)
incurred as a result of such decrease (paid together with such decrease
calculated in accordance with the procedures outlined in
Section 6.1
of this Series Supplement for optional repurchases). Such Mandatory Decrease shall be ratably
allocated among the Series 2008-1 Noteholders, based on their respective
portion of the Series 2008-1 Principal Amount prior to giving effect to
such Mandatory Decrease. Upon discovery
of such a Series 2008-1 Enhancement Deficiency, Aggregate Asset Amount
Deficiency or Series 2008-1 Excess Principal Event, HVF promptly, but in
any event within 5 Business Days, shall deliver written notice (by facsimile
with original to follow by mail) of any such Mandatory Decreases to the
Trustee.
(b)
Voluntary Decrease
.
On any Business Day, upon at least 3 Business Day’s prior notice to each
Series 2008-1 Noteholder, each Committed Note Purchaser and the Trustee,
HVF may decrease the Series 2008-1 Principal Amount (each such reduction
of the Series 2008-1 Principal Amount pursuant to this
Section 2.2(b)
,
a “
Voluntary Decrease
”) by withdrawing from the Series 2008-1
Excess Collection Account or, after the Series 2008-1 Revolving Period,
the Series 2008-1 Collection Account, an amount (subject to the last
sentence of this
Section 2.2(b)
) up to the sum of all Principal
Collections on deposit in such accounts and, in the case of the Series 2008-1
Excess Collection Account, available for distribution to effect a Voluntary
Decrease pursuant to
Section 3.2(e)
of this Series Supplement,
and distributing pro rata to the Series 2008-1 Noteholders in respect of
principal of the Series 2008-1 Notes, the amount
44
of such withdrawal in accordance with
Section 3.5(d)
;
plus
any associated breakage costs
(including Series 2008-1 Commercial Paper discounts and interest scheduled
to accrue through the maturity of such Series 2008-1 Commercial Paper)
incurred as a result of such decrease (paid together with such decrease and
calculated in accordance with the procedures outlined in
Section 6.1
of this Series Supplement for optional repurchases);
provided
that
HVF shall not effect a Voluntary Decrease pursuant to this Section 2.2(b) more
than three times in any calendar week;
provided
further
that
the Trustee shall not be required to monitor the compliance of HVF with the
limitation on the frequency of Voluntary Decreases set forth in the immediately
preceding proviso. Such Voluntary
Decrease shall be ratably allocated among the Series 2008-1 Noteholders,
based on their respective portion of the Series 2008-1 Principal
Amount. Each such Voluntary Decrease
shall be, in the aggregate for all Series 2008-1 Notes, in a minimum principal
amount of $5,000,000 and integral multiples
of $100,000 in excess thereof.
(c) Upon distribution to the Series 2008-1 Noteholders of
principal of the Series 2008-1 Notes in connection with each Decrease, the
Trustee shall, or shall cause the Registrar to indicate in the Note Register
such Decrease. The amount of any
Decrease shall not exceed the amount allocated to the Series 2008-1 Excess
Collection Account or the Series 2008-1 Collection Account and available
for distribution to Series 2008-1 Noteholders in respect of principal of
the Series 2008-1 Notes on the date of such Decrease pursuant to the terms
hereof.
ARTICLE III
SERIES
2008-1 ALLOCATIONS
With respect to the Series 2008-1 Notes
only, the following shall apply:
Section 3.1.
Series 2008-1
Series Accounts
.
(a)
Establishment of Series 2008-1 Series Accounts
. HVF shall establish and maintain in the name
of the Trustee for the benefit of the Series 2008-1 Noteholders three accounts:
the Series 2008-1 Collection Account (such account, the “
Series 2008-1
Collection Account
”), the Series 2008-1 Accrued Interest Account (such
account, the “
Series 2008-1 Accrued Interest Account
”) and the Series 2008-1
Excess Collection Account (such account, the “
Series 2008-1 Excess
Collection Account
” and, together with the Series 2008-1 Collection Account
and the Series 2008-1 Accrued Interest Account, the “
Series 2008-1 Series Accounts
”). Each Series 2008-1 Series Account shall
bear a designation clearly indicating that the funds deposited therein are held
for the benefit of the Series 2008-1 Noteholders. Each Series 2008-1 Series Account shall
be an Eligible Deposit Account. If a Series
2008-1 Series Account is at any time no longer an Eligible Deposit
Account, HVF shall, within 10 Business Days of obtaining knowledge that such Series 2008-1
Series Account is no longer an Eligible Deposit Account, establish a new Series
2008-1 Series Account that is an Eligible Deposit Account. If a new Series 2008-1 Series Account
is established, HVF shall instruct the Trustee in writing to transfer all cash
and investments from the non-qualifying Series 2008-1 Series Account
into the new Series 2008-1 Series Account.
45
Initially, each of the Series 2008-1 Series Accounts
will be established with The Bank of New York.
(b)
Administration of the Series 2008-1 Series Accounts
. HVF may instruct (by standing instructions or
otherwise) the institution maintaining each of the Series 2008-1 Series Accounts
to invest funds on deposit in such Series 2008-1 Series Account from
time to time in Permitted Investments;
provided
,
however
, that (x) any
such investment in the Series 2008-1 Excess Collection Account shall
mature not later than the Business Day following the date on which such funds
were received (including funds received upon a payment in respect of a
Permitted Investment made with funds on deposit in the Series 2008-1
Excess Collection Account) and (y) any such investment in the Series 2008-1
Collection Account or the Series 2008-1 Accrued Interest Account shall
mature not later than the Business Day prior to the first Payment Date
following the date on which such funds were received (including funds received
upon a payment in respect of a Permitted Investment made with funds on deposit
in the Series 2008-1 Collection Account or Series 2008-1 Accrued
Interest Account), unless any such Permitted Investment is held with the
Trustee, then such investment may mature on such Payment Date so long as such
funds shall be available for withdrawal on or prior to such Payment Date. HVF shall not direct the Trustee to dispose
of (or permit the disposal of) any Permitted Investments prior to the maturity
thereof to the extent such disposal would result in a loss of the initial purchase
price of such Permitted Investment. In
the absence of written investment instructions hereunder, funds on deposit in
the Series 2008-1 Series Accounts shall remain uninvested.
(c)
Earnings from Series 2008-1 Series Accounts
. All interest and earnings (net of losses and
investment expenses) paid on funds on deposit in the Series 2008-1 Series Accounts
shall be deemed to be on deposit therein and available for distribution.
(d)
Series 2008-1 Series Accounts Constitute
Additional Collateral for Series 2008-1 Notes
.
In order to secure and provide for
the repayment and payment of the Note Obligations with respect to the Series 2008-1
Notes, HVF hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Trustee, for the benefit of the Series 2008-1
Noteholders, all of HVF’s right, title and interest in and to the following
(whether now or hereafter existing or acquired): (i) the Series 2008-1 Series Accounts,
including any security entitlement thereto; (ii) all funds on deposit
therein from time to time; (iii) all certificates and instruments, if any,
representing or evidencing any or all of the Series 2008-1 Series Accounts
or the funds on deposit therein from time to time; (iv) all investments
made at any time and from time to time with monies in the Series 2008-1 Series Accounts,
whether constituting securities, instruments, general intangibles, investment
property, financial assets or other property; (v) all interest, dividends,
cash, instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for the Series 2008-1 Series Accounts,
the funds on deposit therein from time to time or the investments made with
such funds; and (vi) all proceeds of any and all of the foregoing,
including, without limitation, cash (the items in the foregoing
clauses (i)
through
(vi)
are referred to, collectively, as the “
Series 2008-1 Series Account
Collateral
”).
46
Section 3.2.
Allocations
with Respect to the Series 2008-1 Notes
. The net proceeds from the initial sale of the
Series 2008-1 Notes will be deposited into the Collection Account and
allocated in accordance with clause (a)(ii) of this
Section 3.2
below. All amounts payable to HVF under
the Series 2008-1 Interest Rate Caps will be deposited into the Series 2008-1
Collection Account. On each Business Day
on which the proceeds of the initial sale of the Series 2008-1 Notes, any
Increase or Collections are deposited into the Collection Account (each such
date, a “
Series 2008-1 Deposit Date
”), the Administrator will
direct the Trustee in writing pursuant to the Administration Agreement to apply
from all amounts deposited into the Collection Account in accordance with the
provisions of this
Section 3.2
:
(a)
Allocations of Collections During the Series 2008-1
Revolving Period
. During the Series 2008-1
Revolving Period, the Administrator will direct the Trustee in writing pursuant
to the Administration Agreement, prior to 1:00 p.m. (New York City time)
on each Series 2008-1 Deposit Date, to apply from all amounts deposited
into the Collection Account as set forth below:
(i) allocate to and
deposit in the Series 2008-1 Collection Account an amount equal to the sum
of (A) the Series 2008-1 Invested Percentage (as of such day) of the
aggregate amount of Interest Collections on such day and (B) any amounts
received by the Trustee in respect of the Series 2008-1 Interest Rate
Caps. All such amounts deposited into
the Series 2008-1 Collection Account shall thereafter be deposited into
the Series 2008-1 Accrued Interest Account; and
(ii) allocate to and
deposit in the Series 2008-1 Excess Collection Account (A) an amount
equal to the Series 2008-1 Invested Percentage (as of such day) of the
aggregate amount of Principal Collections on such day, (B) on the Series 2008-1
Closing Date, the net proceeds from the issuance of the Series 2008-1
Notes and (C) on the date of any Increase, the proceeds of such Increase
(for any such day, the “
Series 2008-1 Principal Allocation
”).
(b)
Allocations of Collections During the Series 2008-1
Rapid Amortization Period
. During
the Series 2008-1 Rapid Amortization Period, the Administrator will direct
the Trustee in writing pursuant to the Administration Agreement, prior to 1:00 p.m.
(New York City time) on any Series 2008-1 Deposit Date, to apply from all
amounts deposited into the Collection Account as set forth below:
(i) allocate to and
deposit in the Series 2008-1 Collection Account an amount determined as
set forth in
Section 3.2(a)(i)
above for such day, which
amount shall be thereafter allocated to and deposited in the Series 2008-1
Accrued Interest Account; and
(ii) allocate to and
deposit in the Series 2008-1 Collection Account an amount equal to the Series 2008-1
Principal Allocation for such day, which amount shall be used to make principal
payments on a
pro
rata
basis in respect of the Series 2008-1
Notes until the Series 2008-1 Notes have been paid in full;
provided
that if on any Determination Date (A) the Administrator determines that
47
the
amount anticipated to be available from Interest Collections allocable to the Series 2008-1
Notes, any amounts payable to the Trustee in respect of any Series 2008-1
Interest Rate Caps and other amounts available pursuant to
Section 3.3
of this Series Supplement to pay Series 2008-1 Monthly Interest on
the next succeeding Payment Date will be less than the sum of the Series 2008-1
Monthly Interest for such Payment Date and (B) the Series 2008-1
Enhancement Amount is greater than zero, then the Administrator shall direct
the Trustee in writing to withdraw from the Series 2008-1 Collection
Account a portion of the Principal Collections allocated to the Series 2008-1
Notes during the Related Month equal to the lesser of such insufficiency and
the Series 2008-1 Enhancement Amount and deposit such amount into the Series 2008-1
Accrued Interest Account to be treated as Interest Collections on such Payment Date.
(c)
Past Due Rental Payments
. Notwithstanding the foregoing, if, after the
occurrence of a Series 2008-1 Lease Payment Deficit, the Lessee shall make a
payment of Rent or other amount payable by the Lessee under the HVF Lease on or
prior to the fifth Business Day after the occurrence of such Series 2008-1
Lease Payment Deficit (a “
Past Due Rent Payment
”), the Administrator
shall direct the Trustee in writing pursuant to the Administration Agreement to
allocate to and deposit in the Series 2008-1 Collection Account an amount
equal to the Series 2008-1 Invested Percentage as of the date of the
occurrence of such Series 2008-1 Lease Payment Deficit of the Collections
attributable to such Past Due Rent Payment (the “
Series 2008-1 Past Due
Rent Payment
”). The Administrator
shall instruct the Trustee in writing pursuant to the Administration Agreement
to withdraw from the Series 2008-1 Collection Account and apply the Series 2008-1
Past Due Rent Payment in the following order:
(i) if the occurrence
of the related Series 2008-1 Lease Payment Deficit resulted in one or more
Series 2008-1 LOC Credit Disbursements being made under the Series 2008-1
Letters of Credit, pay to each Series 2008-1 Letter of Credit Provider who made
such a Series 2008-1 LOC Credit Disbursement for application in accordance with
the provisions of the applicable Series 2008-1 Letter of Credit
Reimbursement Agreement an amount equal to the lesser of (x) the
unreimbursed amount of such Series 2008-1 Letter of Credit Provider’s Series 2008-1
LOC Credit Disbursement and (y) such Series 2008-1 Letter of Credit
Provider’s pro rata share, calculated on the basis of the unreimbursed amount
of each such Series 2008-1 Letter of Credit Provider’s Series 2008-1 LOC Credit
Disbursement, of the amount of the Series 2008-1 Past Due Rent Payment;
(ii) if the occurrence
of such Series 2008-1 Lease Payment Deficit resulted in a withdrawal being
made from the Series 2008-1 Cash Collateral Account, deposit in the Series 2008-1
Cash Collateral Account an amount equal to the lesser of (x) the amount of
the Series 2008-1 Past Due Rent Payment remaining after any payments
pursuant to
clauses (i)
above and (y) the amount withdrawn
from the Series 2008-1 Cash Collateral Account on account of such Series 2008-1
Lease Payment Deficit;
48
(iii) if the occurrence
of such Series 2008-1 Lease Payment Deficit resulted in a withdrawal being
made from the Series 2008-1 Reserve Account pursuant to
Section 3.3(d)
of
this Series Supplement, deposit in the Series 2008-1 Reserve Account
an amount equal to the lesser of (x) the amount of the Series 2008-1
Past Due Rent Payment remaining after any payments pursuant to
clauses (i)
and
(ii)
above and (y) the excess, if any, of the Series 2008-1
Required Reserve Account Amount over the Series 2008-1 Available Reserve
Account Amount on such day;
(iv) deposit into the Series 2008-1
Accrued Interest Account the amount, if any, by which the Series 2008-1
Lease Interest Payment Deficit, if any, relating to such Series 2008-1
Lease Payment Deficit exceeds the amount of the Series 2008-1 Past Due
Rent Payment applied pursuant to
clauses (i)
through
(iii)
above;
and
(v) deposit into the Series 2008-1
Excess Collection Account and treat as Principal Collections the remaining
amount of the Series 2008-1 Past Due Rent Payment.
(d)
Amounts Allocated from Other Series
. Amounts allocated to other Series of
Notes that have been reallocated by HVF to the Series 2008-1 Notes (i) during
the Series 2008-1 Revolving Period shall be deposited into the Series 2008-1
Excess Collection Account and applied in accordance with
Section 3.2(e)
of
this Series Supplement and (ii) during the Series 2008-1 Rapid
Amortization Period shall be deposited into the Series 2008-1 Collection
Account and applied in accordance with
Section 3.2(b)
of this Series Supplement
to make principal payments in respect of the Series 2008-1 Notes.
(e)
Series 2008-1 Excess Collection Account
. Amounts deposited into the Series 2008-1
Excess Collection Account on any Series 2008-1 Deposit Date prior to the
commencement of the Series 2008-1 Rapid Amortization Period will be (i)
first
,
withdrawn and deposited in the Series 2008-1 Reserve Account in an amount
up to the excess, if any, of the Series 2008-1 Required Reserve Account
Amount for such date over the Series 2008-1 Available Reserve Account
Amount for such date, (ii)
second
, used to make a Mandatory
Decrease, if applicable, in accordance with
Sections 2.2(a)
and
3.5(e)
of
this Series Supplement, (iii)
third
, used to pay the principal
amount of other Series of Notes that are then required to be paid or, at
the option of HVF, to pay the principal amount of other Series of Notes
that may be paid under the Indenture, (iv)
fourth
, used at the
option of HVF to make a Voluntary Decrease in accordance with
Sections 2.2(b)
and
3.5(e)
of this Series Supplement, and (v)
fifth
,
any remaining funds may be released to HVF, in the case of
clauses (iii)
through
(v)
, only to the extent that no Series 2008-1 Enhancement
Deficiency or other Amortization Event with respect to the Series 2008-1
Notes would result therefrom or exist immediately thereafter. Notwithstanding the foregoing, on the first
day of the Series 2008-1 Rapid Amortization Period, all funds on deposit
in the Series 2008-1 Excess Collection Account will be withdrawn from the Series 2008-1
Excess Collection Account and deposited into the
49
Series 2008-1 Collection Account and
applied in accordance with
Section 3.2(b)(ii)
of this Series Supplement.
Section 3.3.
Application
of Interest Collections
.
On the fourth Business Day prior to each
Payment Date, as provided below, the Administrator shall instruct the Trustee
in writing pursuant to the Administration Agreement to withdraw, and on such
Payment Date the Trustee, acting in accordance with such instructions, shall
withdraw the amounts required to be withdrawn from the Series 2008-1
Accrued Interest Account pursuant to
Section 3.3(a)
below in
respect of all funds available from any Series 2008-1 Interest Rate Caps
and Interest Collections processed since the preceding Payment Date and
allocated to the holders of the Series 2008-1 Notes.
(a)
Note Interest with respect to the Series 2008-1
Notes
. On the fourth Business Day
prior to each Payment Date, the Administrator shall instruct the Trustee in
writing pursuant to the Administration Agreement as to the amount to be
withdrawn from the Series 2008-1 Accrued Interest Account to the extent
funds are anticipated to be available from Interest Collections allocable to
the Series 2008-1 Notes processed from but not including the preceding
Payment Date through the succeeding Payment Date and any amounts payable to HVF
under any Series 2008-1 Interest Rate Cap during that period in respect of
(i)
first
, (I) first an amount equal to the sum of (A) the
Series 2008-1 Monthly Interest (excluding amounts referenced in
clause (ii)
of
the definition thereof to the extent duplicative of Series 2008-1
Deficiency Amounts payable under
clause (ii)
below) for such
Payment Date (the portion of such amount of Series 2008-1 Monthly Interest
that will accrue for the period (each an, “
Estimated Interest Period
”)
from and including the Determination Date immediately preceding such Payment
Date to but excluding such Payment Date (such portion of the Series 2008-1
Monthly Interest with respect to any such Estimated Interest Period, the “
Estimated
Interest
”) shall be estimated by the Administrator on such Determination
Date) plus (B) the Estimated Interest Adjustment Amount with respect to
such Determination Date and (II)
second
, an amount equal to any
Indenture Carrying Charges due to the Series 2008-1 Noteholders and unpaid
as of such Payment Date which are not included in the definition of Series 2008-1
Monthly Interest, (ii)
second
, an amount equal to the unpaid Series 2008-1
Deficiency Amounts, if any, as of the preceding Payment Date (together with any
accrued interest on such Series 2008-1 Deficiency Amounts) and (iii)
third
,
an amount equal to the Series 2008-1 Monthly Default Interest Amount, if
any, for such Payment Date. On or before
10:00 a.m. (New York City time) on the following Payment Date, the Trustee
shall withdraw the amounts described in the first sentence of this
Section 3.3(a)
,
from the Series 2008-1 Accrued Interest Account and deposit such amounts
into the Series 2008-1 Distribution Account.
On or before 4:00 p.m. (New York City
time) on the Business Day immediately preceding each Determination Date, the
Administrator shall notify the Trustee of any Estimated Interest Adjustment
Amount with respect to such Determination Date, such notification to be in the
form of
Exhibit H
to this Series Supplement (each an “
Estimated
Interest Adjustment Notice
”).
50
(b)
Lease Payment Deficit Notice
. On or before 10:00 a.m. (New York City
time) on each Payment Date, the Administrator shall notify the Trustee of the
amount of any Series 2008-1 Lease Payment Deficit, such notification to be
in the form of
Exhibit C
to this Series Supplement (each a “
Lease
Payment Deficit Notice
”).
(c)
Withdrawals from the Series 2008-1 Reserve Account
. If the Administrator determines on any
Payment Date that the amounts available from the Series 2008-1 Accrued
Interest Account are insufficient to pay the sum of the amounts described in
clauses
(i)
and
(ii)
of
Section 3.3(a)
of this Series Supplement
on such Payment Date, the Administrator shall instruct the Trustee in writing
to withdraw from the Series 2008-1 Reserve Account and deposit in the Series 2008-1
Distribution Account on such Payment Date an amount equal to the lesser of the Series 2008-1
Available Reserve Account Amount and such insufficiency. The Trustee shall withdraw such amount from
the Series 2008-1 Reserve Account and deposit such amount in the Series 2008-1
Distribution Account.
(d)
Draws on Series 2008-1 Letters of Credit
. If the Administrator determines on any
Payment Date that there exists a Series 2008-1 Lease Interest Payment
Deficit, the Administrator shall instruct the Trustee in writing to draw on the
Series 2008-1 Letters of Credit, if any, and, upon receipt of such notice
by the Trustee on or prior to 10:30 a.m. (New York City time) on such
Payment Date, the Trustee shall, by 12:00 p.m. (New York City time) on
such Payment Date draw an amount, as set forth in such notice, equal to the
least of (i) such Series 2008-1 Lease Interest Payment Deficit, (ii) the
excess, if any, of the sum of the amounts described in
clauses (i)
and
(ii)
of
Section 3.3(a)
of this Series Supplement
on such Payment Date over the amounts available from the Series 2008-1
Accrued Interest Account plus the amount withdrawn from the Series 2008-1
Reserve Account pursuant to
Section 3.3(c)
of this Series Supplement
on such Payment Date and (iii) the Series 2008-1 Letter of Credit
Liquidity Amount on the Series 2008-1 Letters of Credit by presenting to
each Series 2008-1 Letter of Credit Provider a draft accompanied by a Series 2008-1
Certificate of Credit Demand and shall cause the Series 2008-1 LOC Credit
Disbursements to be deposited in the Series 2008-1 Distribution Account on
such Payment Date;
provided
,
however
, that if the Series 2008-1
Cash Collateral Account has been established and funded, the Trustee shall
withdraw from the Series 2008-1 Cash Collateral Account and deposit in the
Series 2008-1 Distribution Account an amount equal to the lesser of (x) the
Series 2008-1 Cash Collateral Percentage on such Payment Date of the least
of the amounts described in
clauses (i)
,
(ii)
or
(iii)
above
and (y) the Series 2008-1 Available Cash Collateral Account Amount on
such Payment Date and draw an amount equal to the remainder of such amount on
the Series 2008-1 Letters of Credit.
(e)
Deficiency Amounts
.
If the amounts described in
Sections 3.3(a)
,
(b)
,
(c)
and
(d)
of this Series Supplement are insufficient to pay the Series 2008-1
Monthly Interest for any Payment Date, payments of interest to the Series 2008-1
Noteholders will be reduced on a
pro
rata
basis by the
amount of such deficiency. The aggregate
amount, if any, of such deficiency on any Payment Date allocable to the Series 2008-1
Notes shall be referred to as the “
Series 2008-1 Deficiency Amount
”. Interest
51
shall accrue on the Series 2008-1
Deficiency Amount at the applicable Series 2008-1 Note Rate.
(f)
Balance
. On
the fourth Business Day prior to each Payment Date, the Administrator shall
instruct the Trustee in writing pursuant to the Administration Agreement to
pay, on such Payment Date, the balance (after making the payments required in
Section 3.4
of this Series Supplement), if any, of the amounts available from the Series 2008-1
Accrued Interest Account as follows:
(i)
first
, to
the Administrator, in an amount equal to the Series 2008-1 Percentage as
of the beginning of the Series 2008-1 Interest Period ending on the day
preceding such Payment Date of the Monthly Administration Fee for such Series 2008-1
Interest Period;
(ii)
second
, to
the Trustee, in an amount equal to the Series 2008-1 Percentage as of the
beginning of the Series 2008-1 Interest Period ending on the day preceding
such Payment Date of the Trustee’s fees for such Series 2008-1 Interest
Period;
(iii)
third
, on a
pro
rata
basis, to pay any Indenture Carrying Charges to the Persons to whom such
amounts are owed, in an amount equal to the Series 2008-1 Percentage as of
the beginning of the Series 2008-1 Interest Period ending on the day
preceding such Payment Date of such Indenture Carrying Charges (other than
Indenture Carrying Charges provided for above) for such Series 2008-1
Interest Period; and
(iv)
fourth
, the
balance, if any, shall be withdrawn from the Series 2008-1 Accrued
Interest Account by the Trustee and (A) during the Series 2008-1
Revolving Period, deposited into the Series 2008-1 Excess Collection
Account or (B) during the Series 2008-1 Rapid Amortization Period,
deposited into the Series 2008-1 Collection Account and treated as
Principal Collections.
(g)
Trustee Fees
. If, on any Payment Date after the
occurrence and during the continuance of a Liquidation Event of Default or a
Limited Liquidation Event of Default, (x) the funds available to pay the
Trustee fees pursuant to
Section 3.3(f)(ii)
of this Series Supplement
on such Payment Date are less than the amount payable to the Trustee thereunder
on such Payment Date or (y) the funds available to pay the portion of the
Indenture Carrying Charges payable to the Trustee pursuant to
Section 3.3(f)(iii)
of
this Series Supplement on such Payment Date are less than the amount payable
to the Trustee thereunder on such Payment Date, the Administrator shall
instruct the Trustee in writing to withdraw from the Series 2008-1 Reserve
Account and pay to itself on such Payment Date an amount equal to the least of (A) the
Series 2008-1 Available Reserve Account Amount on such Payment Date (after
giving effect to any deposits thereto and withdrawals and releases therefrom on
such date), (B) an amount equal to the excess, if any, of (i) 0.70%
of the Series 2008-1 Required Asset Amount as of the date of the
occurrence of such Liquidation Event of Default or Limited Liquidation Event of
Default over (ii) the aggregate of the amounts previously withdrawn from
the Series 2008-1
52
Reserve Account under this
Section 3.3(g)
in
respect of fees and other amounts due and owing to the Trustee and (C) such
insufficiency. The Trustee shall
withdraw such amounts from the Series 2008-1 Reserve Account and pay or
reimburse itself.
Section 3.4.
Payment of
Note Interest
. On each Payment Date,
the Trustee shall, in accordance with Section 6.1 of the Base Indenture,
pay to the Series 2008-1 Noteholders from the Series 2008-1
Distribution Account the amount deposited in the Series 2008-1
Distribution Account for the payment of all amounts payable to the Series 2008-1
Noteholders pursuant to
Section 3.3
of this Series Supplement.
Section 3.5. Payment of Note
Principal.
(a)
Monthly Payments During Series 2008-1 Rapid
Amortization Period
. Commencing on
the earlier to occur of (i) the Determination Date immediately preceding
the Expected Final Payment Date or (ii) the first Determination Date after
the commencement of the Series 2008-1 Rapid Amortization Period and on
each Determination Date thereafter, the Administrator shall instruct the
Trustee in writing pursuant to the Administration Agreement as to (v) the
amount allocated to the Series 2008-1 Notes during the Related Month
pursuant to
Section 3.2(b)(ii)
of this Series Supplement,
as the case may be, (w) any amounts to be withdrawn from the Series 2008-1
Reserve Account and deposited into the Series 2008-1 Distribution Account,
(x) any amounts to be drawn on the Series 2008-1 Letters of Credit
(and/or withdrawn from the Series 2008-1 Cash Collateral Account) and (y) the
amount of proceeds received in respect of a demand made under the Series 2008-1
Demand Note. On the Payment Date
following each such Determination Date, the Trustee shall withdraw the amount
allocated to the Series 2008-1 Notes of each Class during the Related
Month pursuant to
Section 3.2(b)(ii)
of this Series Supplement,
as the case may be, from the Series 2008-1 Collection Account and deposit
such amount together with the proceeds of any demand made on the Series 2008-1
Demand Note received during the period from and excluding the immediately
preceding Payment Date to and including such Payment Date into the Series 2008-1
Distribution Account, which amount shall be paid to the Series 2008-1
Noteholders.
(b)
Principal Deficit Amount
. If the Principal Deficit Amount is greater
than zero on any date or the Administrator determines that there exists a Series 2008-1
Lease Principal Payment Deficit, the Administrator shall promptly provide
written notice thereof to the Administrative Agent and the Trustee. On each Payment Date on which the Principal
Deficit Amount is greater than zero or a Series 2008-1 Lease Principal
Payment Deficit exists, amounts shall be transferred to the Series 2008-1
Distribution Account as follows:
(i)
Series 2008-1
Reserve Account Withdrawal
. On each
Payment Date on which the Principal Deficit Amount is greater than zero, the
Administrator shall instruct the Trustee in writing prior to 12:00 noon (New
York City time) on such Payment Date, in the case of a Principal Deficit Amount
resulting from a Series 2008-1 Lease Payment Deficit, or prior to 12:00
noon (New York City time) on the second Business Day prior to such Payment
Date, in
53
the
case of any other Principal Deficit Amount, to withdraw from the Series 2008-1
Reserve Account, an amount equal to the lesser of (x) such Principal
Deficit Amount and (y) the Series 2008-1 Available Reserve Account
Amount on such Payment Date (after giving effect to any withdrawals from the Series 2008-1
Reserve Account on such Payment Date pursuant to
Section 3.3(c)
of
this Series Supplement), and deposit such withdrawal in the Series 2008-1
Distribution Account on such Payment Date.
(ii)
Principal Draws
on Series 2008-1 Letters of Credit
.
If the Administrator determines on any Payment Date that there exists a Series 2008-1
Lease Principal Payment Deficit that exceeds the amount, if any, withdrawn from
the Series 2008-1 Reserve Account in accordance with
clause (i)
of
this
Section 3.5(b)
, then the Administrator shall instruct the
Trustee in writing to draw on the Series 2008-1 Letters of Credit, if
any, in an amount equal to the least of (1) the excess of the Series 2008-1
Lease Principal Payment Deficit over the amount, if any, withdrawn from the Series 2008-1
Reserve Account in accordance with
clause (i)
of this
Section 3.5(b)
,
(2) the Series 2008-1 Letter of Credit Liquidity Amount (after giving
effect to any drawings on the Series 2008-1 Letters of Credit on such
Payment Date pursuant to
Section 3.3(d)
of this Series Supplement)
and (3)
on any date that is
prior to the Legal Final Payment Date occurring during the period commencing on
and including the date of the filing by Hertz of a petition for relief under
Chapter 11 of the Bankruptcy Code to but excluding the date on which Hertz
shall have resumed making all payments of Monthly Variable Rent required to be
made under the HVF Lease, the excess, if any, of the Principal Deficit Amount
over the
amount, if any, withdrawn from the Series 2008-1 Reserve Account in
accordance with
clause (i)
of this
Section 3.5(b)
. Upon receipt of a notice by the Trustee from
the Administrator in respect of a Series 2008-1 Lease Principal Payment
Deficit on or prior to 10:30 a.m. (New York City time) on a Payment Date,
the Trustee shall, by 12:00 p.m. (New York City time) on such Payment Date
draw an amount as set forth in such notice equal to the applicable amount set
forth above on the Series 2008-1 Letters of Credit by presenting to each Series 2008-1
Letter of Credit Provider a draft accompanied by a Series 2008-1
Certificate of Credit Demand and shall cause the Series 2008-1 LOC Credit
Disbursements to be deposited in the Series 2008-1 Distribution Account on
such Payment Date;
provided
,
however
, that if the Series 2008-1
Cash Collateral Account has been established and funded, the Trustee shall
withdraw from the Series 2008-1 Cash Collateral Account and deposit in the
Series 2008-1 Distribution Account an amount equal to the lesser of (x) the
Series 2008-1 Cash Collateral Percentage on such Payment Date of the
amount set forth in the notice provided to the Trustee by the Administrator and
(y) the Series 2008-1 Available Cash Collateral Account Amount on
such Payment Date and draw an amount equal to the remainder of such amount on
the Series 2008-1 Letters of Credit.
(iii)
Demand Note Draw
. If on any Determination Date, the
Administrator determines that the Principal Deficit Amount on the next
succeeding Payment Date (after giving effect to the withdrawal from the Series
54
2008-1
Reserve Account on such Payment Date pursuant to
clause (i)
of this
Section 3.5(b)
of this Series Supplement and any drawings on the Series 2008-1
Letters of Credit on such Payment Date pursuant to
clause (ii)
of
this
Section 3.5(b)
) will be greater than zero, then, prior to
10:00 a.m. (New York City time) on the second Business Day prior to such
Payment Date, the Administrator shall instruct the Trustee in writing (and
provide the requisite information to the Trustee) to deliver a demand notice
substantially in the form of Exhibit G-1 (each a “
Demand Notice
”)
on Hertz for payment under the Series 2008-1 Demand Note in an amount
equal to the lesser of (i) the Principal Deficit Amount less the amount to
be deposited in the Series 2008-1 Distribution Account in accordance with
clauses
(i)
and/or
(ii)
of this
Section 3.5(b)
of
this Series Supplement and (ii) the principal amount of the Series 2008-1
Demand Note. The Trustee shall, prior to
12:00 noon (New York City time) on the second Business Day preceding such
Payment Date, deliver such Demand Notice to Hertz;
provided
,
however
,
that if an Event of Bankruptcy (or the occurrence of an event described in
clause
(a)
of the definition thereto, without the lapse of a period of 60
consecutive days) with respect to Hertz shall have occurred and be continuing,
the Trustee shall not be required to deliver such Demand Notice to Hertz. The Trustee shall cause the proceeds of any
demand on the Series 2008-1 Demand Note to be deposited into the Series 2008-1
Distribution Account, and such proceeds shall be treated as Principal
Collections for all purposes hereunder.
(iv)
Letter of Credit
Draw
. If (1) the Trustee shall
have delivered a Demand Notice as provided in
Section 3.5(b)(iii)
of
this Series Supplement and Hertz shall have failed to pay to the Trustee
or deposit into the Series 2008-1 Distribution Account the amount
specified in such Demand Notice in whole or in part by 12:00 noon (New York
City time) on the Business Day following the making of the Demand Notice, (2) due
to the occurrence of an Event of Bankruptcy (or the occurrence of an event
described in
clause (a)
of the definition thereof, without the
lapse of a period of 60 consecutive days) with respect to Hertz, the Trustee
shall not have delivered such Demand Notice to Hertz or (3) there is a
Preference Amount, the Trustee shall draw on the Series 2008-1 Letters of
Credit, if any, by 12:00 p.m. (New York City time) on such Business Day in
an amount equal to the lesser of (A) the amount that Hertz failed to pay
under the Series 2008-1 Demand Note, the amount that the Trustee failed to
demand for payment thereunder or the Preference Amount, as the case may be; and
(B) the Series 2008-1 Letter of Credit Amount on such Business Day,
by presenting to each Series 2008-1 Letter of Credit Provider a draft
accompanied by a Series 2008-1 Certificate of Unpaid Demand Note Demand
or, in the case of a Preference Amount, a Series 2008-1 Certificate of
Preference Payment Demand;
provided
,
however
that if the Series 2008-1
Cash Collateral Account has been established and funded, the Trustee shall
withdraw from the Series 2008-1 Cash Collateral Account and deposit in the
Series 2008-1 Distribution Account an amount equal to the lesser of (x) the
Series 2008-1 Cash Collateral Percentage on such Business Day of the
lesser of the amounts set forth in
clause (A)
and
(B)
above and (y)
the Series 2008-1 Available Cash Collateral Account Amount on such Business
Day and draw an amount equal to the remainder of such amount on
55
the
Series 2008-1 Letters of Credit.
The Trustee shall deposit, or cause the deposit of, the proceeds of any
such draw on the Series 2008-1 Letters of Credit and the proceeds of any
such withdrawal from the Series 2008-1 Cash Collateral Account into the Series 2008-1
Collection Account and such proceeds shall be treated as Principal Collections
for the Related Month.
(c)
Legal Final Payment Dates
. The Series 2008-1 Principal Amount shall
be due and payable on the Legal Final Payment Date. In connection therewith:
(i)
Reserve Account Withdrawal
. If the amount to be deposited in the Series 2008-1
Distribution Account in accordance with
Section 3.5(a)
of this
Series Supplement with respect to the Legal Final Payment Date together
with any amounts to be deposited therein in accordance with
Section 3.5(b)
of
this Series Supplement on the Legal Final Payment Date, in each case, to
pay principal of the Series 2008-1 Notes, is less than the Series 2008-1
Principal Amount on the Legal Final Payment Date, prior to 10:30 a.m. (New
York City time) on the second Business Day prior to the Legal Final Payment
Date, the Administrator shall instruct the Trustee to withdraw from the Series 2008-1
Reserve Account, an amount equal to the lesser of (i) the Series 2008-1
Available Reserve Account Amount (after giving effect to any withdrawals from
the Series 2008-1 Reserve Account pursuant to
Section 3.3(c)
and
Section 3.5(b)(i)
of this Series Supplement), and (ii) such
insufficiency, and deposit such withdrawn amounts in the Series 2008-1
Distribution Account on the Legal Final Payment Date. The Trustee shall withdraw such amounts from
the Series 2008-1 Reserve Account and deposit such amounts in the Series 2008-1
Distribution Account on or prior to the Legal Final Payment Date.
(ii)
Demand Note Draw
. If the amount to be deposited in the Series 2008-1
Distribution Account pursuant to
Section 3.5(a)
of this Series Supplement
together with any amounts to be deposited therein in accordance with
Section 3.5(b)
and
Section 3.5(c)(i)
of this Series Supplement on the Legal
Final Payment Date is less than the Series 2008-1 Principal Amount, then,
prior to 10:00 a.m. (New York City time) on the second Business Day prior
to the Legal Final Payment Date, the Administrator shall instruct the Trustee
in writing (and provide the requisite information to the Trustee) to deliver a
Demand Notice to Hertz for payment under the Series 2008-1 Demand Note in
an amount equal to the lesser of (i) such insufficiency and (ii) the
principal amount of the Series 2008-1 Demand Note. The Trustee shall, prior to 12:00 noon (New
York City time) on the second Business Day preceding the Legal Final Payment
Date, deliver such Demand Notice to Hertz;
provided
,
however
,
that if an Event of Bankruptcy (or the occurrence of an event described in
clause
(a)
of the definition thereof, without the lapse of a period of 60
consecutive days) with respect to Hertz shall have occurred and be continuing,
the Trustee shall not be required to deliver such Demand Notice to Hertz. The Trustee shall cause the proceeds of any
demand on the Series 2008-1 Demand Note to be deposited into the Series 2008-1
Distribution Account, and such proceeds shall be treated as Principal
Collections for all purposes hereunder.
56
(iii)
Letter of Credit Draw
. If (1) the Trustee shall have delivered
a Demand Notice as provided in
Section 3.5(c)(ii)
of this Series Supplement
and Hertz shall have failed to pay to the Trustee or deposit into the Series 2008-1
Distribution Account the amount specified in such Demand Notice referred to in
Section 3.5(c)(ii)
of
this Series Supplement in whole or in part by 12:00 noon (New York City
time) on the Business Day following the making of the Demand Notice, (2) due
to the occurrence of an Event of Bankruptcy (or the occurrence of an event
described in
clause (a)
of the definition thereof, without the
lapse of a period of 60 consecutive days) with respect to Hertz, the Trustee
shall not have delivered such Demand Notice to Hertz or (3) there is a Preference
Amount, the Trustee shall draw on the Series 2008-1 Letters of Credit, if
any, by 12:00 p.m. (New York City time) on such Business Day an amount
equal to the lesser of (A) the amount that Hertz failed to pay under the Series 2008-1
Demand Note (or the amount that the Trustee failed to demand for payment
thereunder) or the Preference Amount, as the case may be; and (B) the Series 2008-1
Letter of Credit Amount on such Business Day, by presenting to each Series 2008-1
Letter of Credit Provider a draft accompanied by a Series 2008-1
Certificate of Unpaid Demand Note Demand or, in the case of a Preference
Amount, a Series 2008-1 Certificate of Preference Demand;
provided
,
however
that if the Series 2008-1 Cash Collateral Account has been
established and funded, the Trustee shall withdraw from the Series 2008-1
Cash Collateral Account and deposit in the Series 2008-1 Distribution
Account an amount equal to the lesser of (x) the Series 2008-1 Cash
Collateral Percentage on such Business Day of the lesser of the amounts set
forth in
clause (A)
and
(B)
above and (y) the Series 2008-1
Available Cash Collateral Account Amount on such Business Day and draw an
amount equal to the remainder of such amount on the Series 2008-1 Letters
of Credit. The Trustee shall deposit, or
cause the deposit of, the proceeds of any such draw on the Series 2008-1
Letters of Credit and the proceeds of any such withdrawal from the Series 2008-1
Cash Collateral Account into the Series 2008-1 Collection Account and such
proceeds shall be treated as Principal Collections for the Related Month.
(d)
Distribution
.
On each Payment Date occurring on or after the date a withdrawal is made
pursuant to
Section 3.5(a)
of this Series Supplement, the
Trustee shall, in accordance with
Section 6.1
of the Base
Indenture, pay to the Series 2008-1 Noteholders the amount deposited in
the Series 2008-1 Distribution Account for the payment of principal of the
Series 2008-1 Notes held by such Series 2008-1 Noteholders pursuant
to
Section 3.5(a)
of this Series Supplement and any
amounts deposited in the Series 2008-1 Distribution Account for the
payment of principal of such Series 2008-1 Notes pursuant to
Section 3.5(b)
of
this Series Supplement and amounts deposited in the Series 2008-1
Distribution Account pursuant to
Section 3.5(c)
of this Series Supplement.
(e)
Decreases
. (i) On
any Business Day on which (a) a Mandatory Decrease pursuant to
Section 2.2(a)
of
this Series Supplement shall be declared, the Trustee shall withdraw from
the Series 2008-1 Excess Collection Account in accordance with the written
instructions of the Administrator an amount equal to the lesser of (x) the
57
funds then allocated to the Series 2008-1
Excess Collection Account (including proceeds from any Increase) pursuant to
Section 3.2(a)(ii)
or
(b)(ii)
of this Series Supplement and any amounts allocated by
HVF to the Series 2008-1 Excess Collection Account pursuant to
Section 3.2(d)
of
this Series Supplement) and, in each case, available for payment of such
Mandatory Decrease pursuant to
Section 3.2(e)
of this Series Supplement
and (y) the amount of such Mandatory Decrease, and distribute on a
pro
rata
basis such amount to the Series 2008-1 Noteholders as a payment of
principal or (b) a Voluntary Decrease pursuant to
Section 2.2(b)
and
3.2(e)
of this Series Supplement shall be declared, the
Trustee shall distribute the amounts withdrawn from the Series 2008-1
Excess Collection Account and/or the Series 2008-1 Collection Account
pursuant to
Section 3.2(b)
of this Series Supplement in
connection with such Voluntary Decrease to the Series 2008-1 Noteholders
as a payment of principal.
(ii) On the Expected Final Payment Date,
the Trustee shall withdraw from the Series 2008-1 Excess Collection
Account in accordance with the written instructions of the Administrator an
amount equal to the lesser of (x) the funds then allocated to the Series 2008-1
Excess Collection Account (including proceeds from any Increase) pursuant to
Section 3.2(a)(ii)
or
(b)(ii)
of this Series Supplement and any amounts allocated by
HVF to the Series 2008-1 Excess Collection Account pursuant to
Section 3.2(d)
of
this Series Supplement) and, in each case, available for payment of
principal of the Series 2008-1 Notes pursuant to
Section 3.2(e)
of
this Series Supplement and (y) the Series 2008-1 Principal
Amount on such date, and distribute such amount to the Series 2008-1
Noteholders on a
pro
rata
basis as payment of principal of
the Series 2008-1 Notes until the Series 2008-1 Noteholders have been
paid the Series 2008-1 Principal Amount in full.
Section 3.6.
Payment by
Wire Transfer
. On each Payment Date,
pursuant to
Section 6.1
of the Base Indenture and
Sections 3.4
and
3.5
hereof, the Trustee shall cause the amounts (to the extent
received by the Trustee) set forth in
Section 3.4
or
3.5
of
this Series Supplement to be paid by wire transfer of immediately
available funds released from the Series 2008-1 Distribution Account no
later than 4:30 p.m. (New York City time) for credit to the account
designated by the Series 2008-1 Noteholders.
Section 3.7.
The
Administrator’s Failure to Instruct the Trustee to Make a Deposit or Payment
. If the Administrator fails to give notice or
instructions to make any payment from or deposit into the Collection Account or
any Series 2008-1 Series Account required to be given by the
Administrator, at the time specified in the Administration Agreement or any
other Related Document (including applicable grace periods), the Trustee shall
make such payment or deposit into or from the Collection Account or such Series 2008-1
Series Account without such notice or instruction from the Administrator,
provided
that the Administrator, upon request of the Trustee, the Administrative Agent
or any Funding Agent, promptly provides the Trustee with all information
necessary to allow the Trustee to make such a payment or deposit. When any payment or deposit hereunder or
under any other Related Document is required to be made by the Trustee at or prior
to a specified time, the Administrator shall deliver any applicable written
instructions with respect thereto reasonably in advance of such specified
time. If the Administrator fails to give
instructions to draw on any Series
58
2008-1 Letters of Credit with respect to a Class of Series 2008-1
Notes required to be given by the Administrator, at the time specified in this Series Supplement,
the Trustee shall draw on such Series 2008-1 Letters of Credit with
respect to such Class of Series 2008-1 Notes without such instruction
from the Administrator,
provided
that the Administrator, upon request of
the Trustee, the Administrative Agent or any Funding Agent, promptly provides
the Trustee with all information necessary to allow the Trustee to draw on each
such Series 2008-1 Letter of Credit.
Section 3.8.
Series 2008-1
Reserve Account
.
(a)
Establishment of Series 2008-1 Reserve Account
. HVF shall establish and maintain in the name
of the Trustee for the benefit of the Series 2008-1 Noteholders an account
(the “
Series 2008-1 Reserve Account
”), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Series 2008-1 Noteholders. The Series 2008-1
Reserve Account shall be an Eligible Deposit Account. If the Series 2008-1 Reserve Account is
at any time no longer an Eligible Deposit Account, HVF shall, within 10
Business Days of obtaining knowledge that the Series 2008-1 Reserve
Account is no longer an Eligible Deposit Account, establish a new Series 2008-1
Reserve Account that is an Eligible Deposit Account. If a new Series 2008-1 Reserve Account
is established, HVF shall instruct the Trustee in writing to transfer all cash
and investments from the non-qualifying Series 2008-1 Reserve Account into
the new Series 2008-1 Reserve Account.
Initially, the Series 2008-1 Reserve Account will be established
with the Trustee.
(b)
Administration of the Series 2008-1 Reserve
Account
. HVF may instruct (by
standing instructions or otherwise) the institution maintaining the Series 2008-1
Reserve Account to invest funds on deposit in the Series 2008-1 Reserve
Account from time to time in Permitted Investments;
provided
,
however
,
that any such investment shall mature not later than the Business Day prior to
the first Payment Date following the date on which such funds were received
(including funds received upon a payment in respect of a Permitted Investment
made with funds on deposit in the Series 2008-1 Reserve Account), unless
any Permitted Investment held in the Series 2008-1 Reserve Account is held
with the Trustee, then such investment may mature on such Payment Date so long
as such funds shall be available for withdrawal on or prior to such Payment
Date. HVF shall not direct the Trustee
to dispose of (or permit the disposal of) any Permitted Investments prior to
the maturity thereof to the extent such disposal would result in a loss of the
initial purchase price of such Permitted Investment. In the absence of written investment
instructions hereunder, funds on deposit in the Series 2008-1 Reserve
Account shall remain uninvested.
(c)
Earnings from Series 2008-1 Reserve Account
. All interest and earnings (net of losses and
investment expenses) paid on funds on deposit in the Series 2008-1 Reserve
Account shall be deemed to be on deposit therein and available for
distribution.
(d)
Series 2008-1 Reserve Account Constitutes
Additional Collateral for Series 2008-1 Notes
.
In order to secure and provide for
the repayment and payment
59
of the Note Obligations with respect to the Series 2008-1
Notes, HVF hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Trustee, for the benefit of the Series 2008-1
Noteholders, all of HVF’s right, title and interest in and to the following
(whether now or hereafter existing or acquired): (i) the Series 2008-1 Reserve
Account, including any security entitlement thereto; (ii) all funds on
deposit therein from time to time; (iii) all certificates and instruments,
if any, representing or evidencing any or all of the Series 2008-1 Reserve
Account or the funds on deposit therein from time to time; (iv) all
investments made at any time and from time to time with monies in the Series 2008-1
Reserve Account, whether constituting securities, instruments, general
intangibles, investment property, financial assets or other property; (v) all
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
the Series 2008-1 Reserve Account, the funds on deposit therein from time
to time or the investments made with such funds; and (vi) all proceeds of
any and all of the foregoing, including, without limitation, cash (the items in
the foregoing
clauses (i)
through
(vi)
are referred to,
collectively, as the “
Series 2008-1 Reserve Account Collateral
”).
(e)
Series 2008-1 Reserve Account Surplus
. In the event that the Series 2008-1
Reserve Account Surplus on any Payment Date is greater than zero, the Trustee,
acting in accordance with the written instructions of the Administrator (with a
copy to the Administrative Agent), shall withdraw from the Series 2008-1
Reserve Account an amount equal to the Series 2008-1 Reserve Account
Surplus and pay such Series 2008-1 Reserve Account Surplus to HVF.
(f)
Termination of Series 2008-1 Reserve Account
. On or after the date on which the Series 2008-1
Notes are fully paid, the Trustee, acting in accordance with the written
instructions of the Administrator, shall withdraw from the Series 2008-1
Reserve Account all remaining amounts on deposit therein for payment to HVF.
Section 3.9.
Series 2008-1
Letters of Credit and Series 2008-1 Cash Collateral Accounts
.
(a)
Series 2008-1 Cash
Collateral Account Constitutes Additional Collateral for Series 2008-1
Notes
. In order to secure and provide
for the repayment and payment of the Note Obligations with respect to the Series 2008-1
Notes, HVF hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Trustee, for the benefit of the Series 2008-1
Noteholders, all of HVF’s right, title and interest in and to the following
(whether now or hereafter existing or acquired): (i) the Series 2008-1 Cash
Collateral Account, including any security entitlement thereto; (ii) all
funds on deposit in the Series 2008-1 Cash Collateral Account from time to
time; (iii) all certificates and instruments, if any, representing or evidencing
any or all of the Series 2008-1 Cash Collateral Account or the funds on
deposit therein from time to time; (iv) all investments made at any time
and from time to time with monies in the Series 2008-1 Cash Collateral
Account, whether constituting securities, instruments, general intangibles,
investment property, financial assets or other property; (v) all interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for the Series 2008-1
Cash Collateral Account,
60
the funds on deposit therein from time to
time or the investments made with such funds; and (vi) all proceeds of any
and all of the foregoing, including, without limitation, cash (the items in the
foregoing
clauses (i)
through
(vi)
are referred to,
collectively, as the “
Series 2008-1 Cash Collateral Account Collateral
”).
(b)
Series 2008-1 Letter of
Credit Expiration Date
. If prior to the date which is sixteen (16)
Business Days prior to the then scheduled Series 2008-1 Letter of Credit
Expiration Date with respect to any Series 2008-1 Letter of Credit,
excluding the amount available to be drawn under such Series 2008-1 Letter
of Credit but taking into account each substitute Series 2008-1 Letter of
Credit which has been obtained from a Series 2008-1 Eligible Letter of
Credit Provider and is in full force and effect on such date, (i) the Series 2008-1
Adjusted Enhancement Amount would be equal to or greater than the Series 2008-1
Required Enhancement Amount, (ii) the Series 2008-1 Adjusted
Liquidity Amount would be equal to or greater than the Series 2008-1
Required Liquidity Amount, or (iii) the Series 2008-1 Letter of
Credit Liquidity Amount would be equal to or greater than the Series 2008-1
Demand Note Payment Amount, then the Administrator shall notify the Trustee and
the Administrative Agent in writing no later than fifteen (15) Business Days
prior to such Series 2008-1 Letter of Credit Expiration Date of such
determination. If prior to the date
which is sixteen (16) Business Days prior to the then scheduled Series 2008-1
Letter of Credit Expiration Date with respect to any Series 2008-1 Letter
of Credit, excluding such Series 2008-1 Letter of Credit but taking into
account any substitute Series 2008-1 Letter of Credit which has been
obtained from a Series 2008-1 Eligible Letter of Credit Provider and is in
full force and effect on such date, (i) the Series 2008-1 Adjusted
Enhancement Amount would be less than the Series 2008-1 Required
Enhancement Amount, (ii) the Series 2008-1 Adjusted Liquidity Amount
would be less than the Series 2008-1 Required Liquidity Amount, or (iii) the
Series 2008-1 Letter of Credit Liquidity Amount would be less than the Series 2008-1
Demand Note Payment Amount, then the Administrator shall notify the Trustee and
the Administrative Agent in writing no later than fifteen (15) Business Days
prior to such Series 2008-1 Letter of Credit Expiration Date of (x) the
greatest of (A) the excess, if any, of the Series 2008-1 Required
Enhancement Amount over the Series 2008-1 Adjusted Enhancement Amount,
excluding such Series 2008-1 Letter of Credit but taking into account any
substitute Series 2008-1 Letter of Credit which has been obtained from a Series 2008-1
Eligible Letter of Credit Provider and is in full force and effect on such
date, (B) the excess, if any, of the Series 2008-1 Required Liquidity
Amount over the Series 2008-1 Adjusted Liquidity Amount, excluding such Series 2008-1
Letter of Credit but taking into account each substitute Series 2008-1
Letter of Credit which has been obtained from a Series 2008-1 Eligible
Letter of Credit Provider and is in full force and effect on such date, and (C) the
excess, if any, of the Series 2008-1 Demand Note Payment Amount over the Series 2008-1
Letter of Credit Liquidity Amount, excluding such Series 2008-1 Letter of
Credit but taking into account each substitute Series 2008-1 Letter of
Credit which has been obtained from a Series 2008-1 Eligible Letter of
Credit Provider and is in full force and effect on such date, and (y) the
amount available to be drawn on such expiring Series 2008-1 Letter of
Credit on such date. Upon receipt of
such notice by the Trustee on or prior to 10:30 a.m. (New York City time)
on any Business Day, the Trustee shall, by 12:00 p.m. (New York City time)
on such Business Day (or, in the case of any notice given to the Trustee after
10:30 a.m. (New York City time), by 12:00 p.m. (New York City time)
61
on the next following Business Day), draw the lesser of the amounts set
forth in
clauses (x)
and
(y)
above on such Series 2008-1 Letter
of Credit by presenting a draft accompanied by a Series 2008-1 Certificate of
Termination Demand and shall cause the Series 2008-1 LOC Termination
Disbursements to be deposited in the Series 2008-1 Cash Collateral
Account. If the Trustee does not receive
the notice from the Administrator described above on or prior to the date that
is fifteen (15) Business Days prior to each Series 2008-1 Letter of Credit
Expiration Date, the Trustee shall, by 12:00 p.m. (New York City time) on such
Business Day draw the full amount of such Series 2008-1 Letter of Credit
by presenting a draft accompanied by a Series 2008-1 Certificate of
Termination Demand and shall cause the Series 2008-1 LOC Termination
Disbursements to be deposited in the applicable Series 2008-1 Cash
Collateral Account.
(c)
Series 2008-1 Letter of Credit Providers
. The Administrator shall notify the Trustee
and the Administrative Agent in writing within one Business Day of becoming
aware that the short-term debt credit rating of any Series 2008-1 Letter
of Credit Provider has fallen below “A-1” as determined by Standard &
Poor’s or “P-1” as determined by Moody’s or the long-term debt credit rating of
any Series 2008-1 Letter of Credit Provider has fallen below “A+” as
determined by Standard & Poor’s or “A1” as determined by Moody’s (with
respect to any Series 2008-1 Letter of Credit Provider, a “
Series 2008-1
Downgrade Event
”). On the thirtieth
(30th) day after the occurrence of a Series 2008-1 Downgrade Event with
respect to any Series 2008-1 Letter of Credit Provider, the Administrator
shall notify the Trustee and the Administrative Agent in writing on such date
of (i) the greatest of (A) the excess, if any, of the Series 2008-1
Required Enhancement Amount over the Series 2008-1 Adjusted Enhancement
Amount, excluding the available amount under the Series 2008-1 Letter of
Credit issued by such Series 2008-1 Letter of Credit Provider, on such
date, (B) the excess, if any, of the Series 2008-1 Required Liquidity
Amount over the Series 2008-1 Adjusted Liquidity Amount, excluding the
available amount under such Series 2008-1 Letter of Credit, on such date,
and (C) the excess, if any, of the Series 2008-1 Demand Note Payment
Amount over the Series 2008-1 Letter of Credit Liquidity Amount, excluding
the available amount under such Series 2008-1 Letter of Credit, on such
date, and (ii) the amount available to be drawn on such Series 2008-1
Letter of Credit on such date. Upon
receipt of such notice by the Trustee on or prior to 10:30 a.m. (New York
City time) on any Business Day, the Trustee shall, by 12:00 p.m. (New York
City time) on such Business Day (or, in the case of any notice given to the
Trustee after 10:30 a.m. (New York City time), by 12:00 p.m. (New
York City time) on the next following Business Day), draw on such Series 2008-1
Letter of Credit in an amount equal to the lesser of the amount in
clause (i)
or
clause (ii)
of the immediately preceding sentence on such Business
Day by presenting a draft accompanied by a Series 2008-1 Certificate of
Termination Demand and shall cause the Series 2008-1 LOC Termination
Disbursement to be deposited in a Series 2008-1 Cash Collateral Account.
(d)
Reductions in Stated Amounts of the Series 2008-1
Letters of Credit.
If the Trustee
receives a written notice from the Lessee, substantially in the form of
Exhibit D
,
requesting a reduction in the stated amount of any Series 2008-1 Letter of
Credit, the Trustee shall within two Business Days of the receipt of such
notice deliver to the Series 2008-1 Letter of Credit Provider who issued
such Series 2008-1
62
Letter of Credit a Series 2008-1 Notice
of Reduction requesting a reduction in the stated amount of such Series 2008-1
Letter of Credit in the amount requested in such notice effective on the date
set forth in such notice,
provided
that on such effective date, after
giving effect to the requested reduction in the stated amount of such Series 2008-1
Letter of Credit, (i) the Series 2008-1 Adjusted Enhancement Amount
will equal or exceed the Series 2008-1 Required Enhancement Amount, (ii) the
Series 2008-1 Adjusted Liquidity Amount will equal or exceed the Series 2008-1
Required Liquidity Amount, and (iii) the Series 2008-1 Letter of
Credit Liquidity Amount will equal or exceed the Series 2008-1 Demand Note
Payment Amount.
(e)
Draws on the Series 2008-1
Letters of Credit.
If there is more
than one Series 2008-1 Letter of Credit on the date of any draw on the Series 2008-1
Letters of Credit pursuant to the terms of this Series Supplement (other
than pursuant to
Sections 3.9(b)
and
(c)
of this Series Supplement),
the Administrator shall instruct the Trustee, in writing, to draw on each Series 2008-1
Letter of Credit in an amount equal to the Pro Rata Share of the Series 2008-1
Letter of Credit Provider issuing such Series 2008-1 Letter of Credit of
the amount of such draw on the Series 2008-1 Letters of Credit.
(f)
Establishment of Series 2008-1
Cash Collateral Account.
On or prior
to the date of any drawing under a Series 2008-1 Letter of Credit pursuant
to
Section 3.9(b)
or
(c)
of this Series Supplement, HVF
shall establish and maintain in the name of the Trustee for the benefit of the Series 2008-1
Noteholders, an account (the “
Series 2008-1 Cash Collateral Account
”),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Series 2008-1 Noteholders. The Series 2008-1 Cash Collateral
Account shall be an Eligible Deposit Account.
If the Series 2008-1 Cash Collateral Account is at any time no
longer an Eligible Deposit Account, HVF shall, within 10 Business Days of
obtaining knowledge that the Series 2008-1 Cash Collateral Account is no
longer an Eligible Deposit Account, establish a new Series 2008-1 Cash
Collateral Account that is an Eligible Deposit Account. If a new Series 2008-1 Cash Collateral
Account is established, HVF shall instruct the Trustee in writing to transfer
all cash and investments from the non-qualifying Series 2008-1 Cash
Collateral Account into the new Series 2008-1 Cash Collateral Account
(g)
Administration of the Series 2008-1
Cash Collateral Account
. HVF may
instruct (by standing instructions or otherwise) the institution maintaining a Series 2008-1
Cash Collateral Account to invest funds on deposit in a Series 2008-1 Cash
Collateral Account from time to time in Permitted Investments. Any investment of funds on deposit in a Series 2008-1
Cash Collateral Account shall mature not later than the Business Day prior to
the first Payment Date following the date on which such funds were received
(including funds received upon a payment in respect of a Permitted Investment
made with funds on deposit in a Series 2008-1 Cash Collateral Account),
unless any Permitted Investment held in such Series 2008-1 Cash Collateral
Account is held with the Trustee, in which case such investment may mature on such
Payment Date so long as such funds shall be available for withdrawal on or
prior to such Payment Date. HVF shall
not direct the Trustee to dispose of (or permit the disposal of) any Permitted
Investments prior to the maturity thereof to the extent such disposal would
result in a loss of the initial purchase price of such Permitted
Investment. In the absence of written
63
investment instructions
hereunder, funds on deposit in a Series 2008-1 Cash Collateral Account
shall remain uninvested.
(h)
Earnings from Series 2008-1
Cash Collateral Account
. All Series 2008-1
Cash Collateral Account Interest and Earnings shall be deemed to be on deposit
therein and available for distribution.
(i)
Series 2008-1 Cash
Collateral Account Surplus
. In the
event that the Series 2008-1 Cash Collateral Account Surplus on any
Payment Date is greater than zero, the Administrator may direct the Trustee to,
and the Trustee, acting in accordance with the written instructions of the
Administrator (with a copy to the Administrative Agent), shall, subject to the
limitations set forth in this
Section 3.9(i)
, withdraw the amount
specified by the Administrator from the Series 2008-1 Cash Collateral
Account specified by the Administrator and apply such amount in accordance with
the terms of this
Section 3.9(i)
.
The amount of any such withdrawal from the Series 2008-1 Cash
Collateral Account shall be limited to the least of (a) the Series 2008-1
Available Cash Collateral Account Amount on such Payment Date, (b) the Series 2008-1
Cash Collateral Account Surplus on such Payment Date and (c) the excess,
if any, of the Series 2008-1 Letter of Credit Liquidity Amount on such
Payment Date over the Series 2008-1 Demand Note Payment Amount on such
Payment Date. Any amounts withdrawn from
the Series 2008-1 Cash Collateral Account pursuant to this
Section 3.9(i)
shall
be paid:
first
, to the Series 2008-1
Letter of Credit Providers, to the extent that there are unreimbursed Series 2008-1
Disbursements due and owing to such Series 2008-1 Letter of Credit
Providers in respect of the Series 2008-1 Letters of Credit, for
application in accordance with the provisions of the respective Series 2008-1
Letter of Credit Reimbursement Agreement, and
second
, to HVF any
remaining amounts.
(j)
Termination of Series 2008-1
Cash Collateral Account
. Upon the
termination of this Series Supplement in accordance with its terms, the
Trustee, acting in accordance with the written instructions of the
Administrator, after the prior payment of all amounts due and owing to the Series 2008-1
Noteholders and payable from the Series 2008-1 Cash Collateral Account as
provided herein, shall withdraw from such Series 2008-1 Cash Collateral
Account all amounts on deposit therein and shall pay such amounts,
first
,
pro
rata
to the Series 2008-1 Letter of Credit
Providers, to the extent that there are unreimbursed Series 2008-1
Disbursements due and owing to such Series 2008-1 Letter of Credit
Providers, for application in accordance with the provisions of the respective Series 2008-1
Letters of Credit, and
second
, to HVF any remaining amounts.
Section 3.10.
Series 2008-1
Distribution Account
.
(a)
Establishment of Series 2008-1
Distribution Account
. The Trustee
shall establish and maintain in the name of the Trustee for the benefit of the Series 2008-1
Noteholders an account (the “
Series 2008-1 Distribution Account
”),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Series 2008-1 Noteholders. The Series 2008-1 Distribution Account
shall be an Eligible Deposit Account. If
the Series 2008-1 Distribution Account is at any time no longer an
Eligible Deposit Account, HVF shall, within 10 Business Days of
64
obtaining knowledge that the Series 2008-1
Distribution Account is no longer an Eligible Deposit Account, establish a new Series 2008-1
Distribution Account that is an Eligible Deposit Account. If a new Series 2008-1 Distribution
Account is established, HVF shall instruct the Trustee in writing to transfer
all cash and investments from the non-qualifying Series 2008-1
Distribution Account into the new Series 2008-1 Distribution Account. Initially, the Series 2008-1 Distribution
Account will be established with the Trustee.
(b)
Administration of the Series 2008-1
Distribution Account
. The
Administrator may instruct the institution maintaining the Series 2008-1
Distribution Account in writing to invest funds on deposit in the Series 2008-1
Distribution Account from time to time in Permitted Investments;
provided
,
however
, that any such investment shall mature not later than the
Business Day prior to the Payment Date following the date on which such funds
were received (including funds received upon a payment in respect of a
Permitted Investment made with funds on deposit in the Series 2008-1
Distribution Account), unless any Permitted Investment held in the Series 2008-1
Distribution Account is held with the Trustee, then such investment may mature
on such Payment Date and such funds shall be available for withdrawal on or
prior to such Payment Date. All such
Permitted Investments will be credited to the Series 2008-1 Distribution
Account. HVF shall not direct the
Trustee to dispose of (or permit the disposal of) any Permitted Investments
prior to the maturity thereof to the extent such disposal would result in a
loss of the initial purchase price of such Permitted Investment. In the absence of written investment
instructions hereunder, funds on deposit in the Series 2008-1 Distribution
Account shall remain uninvested.
(c)
Earnings from Series 2008-1
Distribution Account
. All interest
and earnings (net of losses and investment expenses) paid on funds on deposit
in the Series 2008-1 Distribution Account shall be deemed to be on deposit
and available for distribution.
(d)
Series 2008-1 Distribution
Account Constitutes Additional Collateral for Series 2008-1 Notes
. In order to secure and provide for the
repayment and payment of the Note Obligations with respect to the Series 2008-1
Notes, HVF hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Trustee, for the benefit of the Series 2008-1
Noteholders, all of HVF’s right, title and interest in and to the following
(whether now or hereafter existing or acquired): (i) the Series 2008-1
Distribution Account, including any security entitlement thereto; (ii) all
funds on deposit therein from time to time; (iii) all certificates and
instruments, if any, representing or evidencing any or all of the Series 2008-1
Distribution Account or the funds on deposit therein from time to time; (iv) all
investments made at any time and from time to time with monies in the Series 2008-1
Distribution Account, whether constituting securities, instruments, general
intangibles, investment property, financial assets or other property; (v) all
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
the Series 2008-1 Distribution Account, the funds on deposit therein from
time to time or the investments made with such funds; and (vi) all
proceeds of any and all of the foregoing, including, without limitation, cash
(the items in the foregoing
clauses (i)
65
through
(vi)
are
referred to, collectively, as the “
Series 2008-1 Distribution Account
Collateral
”).
Section 3.11.
Trustee
as Securities Intermediary
.
(a) The Trustee or other Person holding
the Series 2008-1 Collection Account, the Series 2008-1 Excess
Collection Account, the Series 2008-1 Accrued Interest Account, the Series 2008-1
Reserve Account, the Series 2008-1 Cash Collateral Account or the Series 2008-1
Distribution Account (each a “
Series 2008-1 Designated Account
”)
shall be the “securities intermediary” (as defined in Section 8-102 of the
UCC in effect in the State of New York (the “
New York UCC
”), in such
capacity, the “
Securities Intermediary
”). If the Securities Intermediary in respect of
any Series 2008-1 Designated Account is not the Trustee, HVF shall obtain
the express agreement of such Person to the obligations of the Securities
Intermediary set forth in this
Section 3.11
.
(b) The Securities Intermediary agrees
that:
(i) The
Series 2008-1 Designated Accounts are accounts to which “financial assets”
within the meaning of
Section 8-102(a)(9)
(“
Financial
Assets
”) of the New York UCC will be credited;
(ii) All
securities or other property underlying any Financial Assets credited to any Series 2008-1
Designated Account shall be registered in the name of the Securities
Intermediary, indorsed to the Securities Intermediary or in blank or credited
to another securities account maintained in the name of the Securities
Intermediary and in no case will any Financial Asset credited to any Series 2008-1
Designated Account be registered in the name of HVF, payable to the order of
HVF or specially endorsed to HVF;
(iii) All
property delivered to the Securities Intermediary pursuant to this Series Supplement
will be promptly credited to the appropriate Series 2008-1 Designated
Account;
(iv) Each
item of property (whether investment property, security, instrument or cash)
credited to a Series 2008-1 Designated Account shall be treated as a
Financial Asset;
(v) If
at any time the Securities Intermediary shall receive any order from the
Trustee directing transfer or redemption of any Financial Asset relating to the
Series 2008-1 Designated Accounts, the Securities Intermediary shall
comply with such entitlement order without further consent by HVF or the
Administrator;
(vi) The
Series 2008-1 Designated Accounts shall be governed by the laws of the
State of New York, regardless of any provision of any other agreement. For purposes of the UCC, New York shall be
deemed to the Securities Intermediary’s jurisdiction and the Series 2008-1
Designated Accounts (as well as the “securities entitlements” (as defined in
Section 8-102(a)(17)
of the
66
New York UCC) related thereto) shall be governed by the laws of the
State of New York;
(vii) The
Securities Intermediary has not entered into, and until termination of this Series Supplement,
will not enter into, any agreement with any other Person relating to the Series 2008-1
Designated Accounts and/or any Financial Assets credited thereto pursuant to
which it has agreed to comply with entitlement orders (as defined in
Section 8-102(a)(8)
of
the New York UCC) of such other Person and the Securities Intermediary has not
entered into, and until the termination of this Series Supplement will not
enter into, any agreement with HVF purporting to limit or condition the
obligation of the Securities Intermediary to comply with entitlement orders as
set forth in
Section 3.11(b)(v)
of this Series Supplement;
and
(viii) Except
for the claims and interest of the Trustee and HVF in the Series 2008-1
Designated Accounts, the Securities Intermediary knows of no claim to, or
interest, in the Series 2008-1 Designated Accounts or in any Financial
Asset credited thereto. If the
Securities Intermediary has actual knowledge of the assertion by any other
person of any lien, encumbrance, or adverse claim (including any writ,
garnishment, judgment, warrant of attachment, execution or similar process)
against any Series 2008-1 Designated Account or in any Financial Asset
carried therein, the Securities Intermediary will promptly notify the Trustee,
the Administrator and HVF thereof.
(c) The Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the Series 2008-1
Designated Accounts and in all proceeds thereof, and shall be the only person
authorized to originate entitlement orders in respect of the Series 2008-1
Designated Accounts.
Section 3.12.
Series 2008-1
Interest Rate Caps
.
(a) On the Series 2008-1 Closing Date, HVF shall acquire
one or more interest rate caps (each a “
Series 2008-1 Interest Rate Cap
”)
from an Eligible Interest Rate Cap Provider.
At the time of the acquisition of the initial Series 2008-1
Interest Rate Caps, the aggregate notional amount of all Series 2008-1
Interest Rate Caps shall equal the Series 2008-1 Maximum Principal Amount,
and the aggregate notional amount of all Series 2008-1 Interest Rate Caps
may be reduced to the extent that the Series 2008-1 Maximum Principal
Amount is reduced after the acquisition of the initial Series 2008-1
Interest Rate Caps but shall not at any time be less than the Series 2008-1
Maximum Principal Amount at such time.
HVF shall acquire one or more additional Series 2008-1 Interest
Rate Caps in connection with any increase of the Series 2008-1 Maximum
Principal Amount such that the aggregate notional amounts of all Series 2008-1
Interest Rate Caps shall equal the Series 2008-1 Maximum Principal Amount
after giving effect to such increase. The strike rate of each Series 2008-1
Interest Rate Cap shall not be greater than 7.0%. Each Series 2008-1
Interest Rate Cap shall have a term of at least until the Legal Final Payment
Date. HVF shall satisfy the Series 2008-1
Rating Agency Condition and obtain the consent of the Administrative Agent
(such consent not to be
67
unreasonably withheld or delayed) in
connection with its acquisition of any Series 2008-1 Interest Rate Cap or
replacement thereof.
(b) If, at any time, an Interest Rate Cap Provider (and, if
the present and future obligations of an Interest Rate Cap Provider under its Series 2008-1
Interest Rate Cap are guaranteed pursuant to a guarantee (in form and substance
satisfactory to the Rating Agencies and the Administrative Agent and satisfying
the other requirements set forth in the related Series 2008-1 Interest
Rate Cap), the related guarantor) fails to satisfy the Moody’s First Trigger
Required Ratings or the Standard & Poor’s First Trigger Required
Rating, then the Interest Rate Cap Provider will be required, pursuant to the
terms of the Series 2008-1 Interest Rate Cap, at the Interest Rate Cap
Provider’s expense, to post and maintain collateral pursuant to a credit
support annex entered into in connection with the Series 2008-1 Interest
Rate Cap (the “
Credit Support Annex
”).
(c) If, at any time, an Interest Rate Cap Provider is not an
Eligible Interest Rate Cap Provider, then such Interest Rate Cap Provider will
be required, pursuant to the terms of the Series 2008-1 Interest Rate Cap,
at such Interest Rate Cap Provider’s expense, to obtain a replacement interest
rate cap on the same terms as the Series 2008-1 Interest Rate Cap (or with
such modifications as are acceptable to the Rating Agencies and the
Administrative Agent) from an Eligible Interest Rate Cap Provider and,
simultaneously with such replacement, HVF shall terminate the Series 2008-1
Interest Rate Cap being replaced; provided that no termination of the Series 2008-1
Interest Rate Cap shall occur until HVF has entered into a replacement Series 2008-1
Interest Rate Cap. Each Series 2008-1 Interest Rate Cap must provide that
if the Interest Rate Cap Provider is required to obtain a replacement as
described in the preceding sentence and such replacement is not obtained within
the period specified in the Series 2008-1 Interest Rate Cap, then the
Interest Rate Cap Provider must, until such replacement is obtained or such
Interest Rate Cap Provider again becomes an Eligible Interest Rate Cap
Provider, collateralize its obligations under such Series 2008-1 Interest
Rate Cap in an amount determined pursuant to the Credit Support Annex. If HVF is unable to cause such Interest Rate
Cap Provider to take any of the actions described in this Section 3.12(c) after
making commercially reasonable efforts, HVF will obtain a replacement Series 2008-1
Interest Rate Cap at the expense of the replaced Interest Rate Cap Provider or,
if the replaced Interest Rate Cap Provider fails to make such payment, at the
expense of HVF (in which event, such amount will be considered Indenture
Carrying Charges and paid solely from Interest Collections available pursuant
to
Section 3.3(f)
of this Series Supplement).
(d) Each Series 2008-1 Noteholder by its acceptance of a Series 2008-1
Note hereby acknowledges and agrees, and directs the Trustee to acknowledge and
agree, and the Trustee, at such direction, hereby acknowledges and agrees, that
any collateral posted by an Interest Rate Cap Provider pursuant to
clause (b) or
(c)
above (A) is collateral solely for the obligations of such
Interest Rate Cap Provider under its Series 2008-1 Interest Rate Cap, (B) does
not constitute collateral for the Series 2008-1 Notes (provided that in
order to secure and provide for the payment of the Note Obligations with
respect to the Series 2008-1 Notes, HVF has pledged each Series 2008-1
Interest Rate Cap and its security interest in any collateral posted in
connection therewith as
68
collateral for the Series 2008-1 Notes),
and (C) will in no event be available to satisfy any obligations of HVF
hereunder or otherwise unless and until such Interest Rate Cap Provider
defaults in its obligations under its Series 2008-1 Interest Rate Cap and
such collateral is applied in accordance with the terms of such Series 2008-1
Interest Rate Cap to satisfy such defaulted obligations of such Interest Rate
Cap Provider.
(e) HVF shall require all proceeds of each Series 2008-1
Interest Rate Cap (including amounts received in respect of the obligations of
the related Interest Rate Cap Provider from a guarantor or from the application
of collateral posted by such Interest Rate Cap Provider) to be paid to the
Collection Account, and the Trustee shall allocate all such proceeds to the Series 2008-1
Accrued Interest Account in accordance with
Section 3.2
of this Series Supplement.
(f) To secure payment of the Note Obligations with respect to
the Series 2008-1 Notes, HVF hereby grants a security interest in, and
assigns, pledges, grants, transfers and sets over to the Trustee, for the
benefit of the Series 2008-1 Noteholders, all of HVF’s right, title and
interest, whether now or hereafter existing or acquired, in the Series 2008-1
Interest Rate Caps and all proceeds thereof.
Section 3.13.
Series 2008-1
Demand Note Constitutes Additional Collateral for Series 2008-1 Notes
.
(a) In order to secure and provide for
the repayment and payment of the Note Obligations with respect to the Series 2008-1
Notes, HVF hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Trustee, for the benefit of the Series 2008-1
Noteholders, all of HVF’s right, title and interest in and to the following
(whether now or hereafter existing or acquired): (i) the Series 2008-1
Demand Note; (ii) all certificates and instruments, if any, representing
or evidencing the Series 2008-1 Demand Note; and (iii) all proceeds
of any and all of the foregoing, including, without limitation, cash. On the date hereof, HVF shall deliver to the
Trustee, for the benefit of the Series 2008-1 Noteholders, the Series 2008-1
Demand Note, endorsed in blank. The
Trustee, for the benefit of the Series 2008-1 Noteholders, shall be the
only Person authorized to make a demand for payment on the Series 2008-1
Demand Note.
(b) Other than pursuant to a payment made
upon a demand thereon by the Trustee, HVF shall not reduce the amount of the Series 2008-1
Demand Note or forgive amounts payable thereunder so that the outstanding
principal amount of the Series 2008-1 Demand Note after such reduction or
forgiveness is less than the Series 2008-1 Letter of Credit Liquidity
Amount. HVF shall not agree, to any
amendment of the Series 2008-1 Demand Note without first satisfying the Series 2008-1
Rating Agency Condition and obtaining the prior written consent of each Funding
Agent.
(c) Other than pursuant to a demand
thereon pursuant to
Section 3.5(b)
or
(c)
of this Series Supplement,
HVF shall not reduce the amount of the Series 2008-1 Demand Note or
forgive amounts payable thereunder so that the outstanding principal amount of
the Series 2008-1 Demand Note after such forgiveness or reduction is less
than
69
the greater of (i) the Series 2008-1
Letter of Credit Liquidity Amount and (ii) an amount equal to 3.00% of the
Series 2008-1 Principal Amount.
ARTICLE IV
AMORTIZATION
EVENTS
In addition to the Amortization
Events set forth in
Section 9.1
of the Base Indenture, the
following shall be Amortization Events with respect to the Series 2008-1
Notes and shall constitute the Amortization Events set forth in
Section 9.1(j)
of
the Base Indenture with respect to the Series 2008-1 Notes:
(a) HVF defaults in the payment of any
interest on, or other amount payable in respect of, the Series 2008-1
Notes (other than the payments described in clause (b) below) when the
same becomes due and payable and such default continues for a period of three (3) Business
Days;
(b) HVF defaults in the payment of any
principal of the Series 2008-1 Notes when the same becomes due and payable
on the applicable Legal Final Payment Date;
(c) a Series 2008-1 Enhancement
Deficiency shall occur and continue for at least three (3) Business Days;
(d) a Series 2008-1 Liquidity
Deficiency shall occur and continue for at least three (3) Business Days;
(e) all principal of and interest on the Series 2008-1
Notes is not paid in full on or before the Expected Final Payment Date;
(f) the Series 2008-1 Asset Amount
shall be less than the Series 2008-1 Required Asset Amount for at least
three (3) Business Days;
(g) the Principal Deficit Amount shall be
greater than zero;
(h) the Collection Account, any
Collateral Account, any Series 2008-1 Series Account, the Series 2008-1
Distribution Account or any HVF Exchange Account shall be subject to an
injunction, estoppel or other stay or a Lien (other than a Permitted Lien) and
30 days shall have elapsed without such Lien having been released or
discharged;
(i) (A) the Series 2008-1
Reserve Account shall be subject to an injunction, estoppel or other stay or a
Lien (other than a Permitted Lien) for at least three (3) Business Days or
(B) the Trustee shall cease to have a valid and perfected first priority
security interest in the Series 2008-1 Reserve Account Collateral (or any
of the Lessee, HVF or any Affiliate of either so assets in writing) and, in
each case, either (x) a Series 2008-1 Enhancement Deficiency would
result from excluding the Series 2008-1 Available Reserve Account Amount
from the Series 2008-1 Enhancement Amount or (y)
70
the Series 2008-1 Adjusted
Liquidity Amount, excluding therefrom the Series 2008-1 Available Reserve
Account Amount, would be less than the Series 2008-1 Required Liquidity
Amount;
(j) from and after the funding of the Series 2008-1
Cash Collateral Account, (A) the Series 2008-1 Cash Collateral
Account shall be subject to an injunction, estoppel or other stay or a Lien
(other than a Permitted Lien) for at least three (3) Business Days or (B) the
Trustee shall cease to have a valid and perfected first priority security
interest in the Series 2008-1 Cash Collateral Account Collateral (or any
of the Lessee, HVF or any Affiliate of either so assets in writing) and, in
each case, either (x) a Series 2008-1 Enhancement Deficiency would
result from excluding the Series 2008-1 Available Cash Collateral Account
Amount from the Series 2008-1 Enhancement Amount or (y) the Series 2008-1
Adjusted Liquidity Amount, excluding therefrom the Series 2008-1 Available
Cash Collateral Account Amount, would be less than the Series 2008-1
Required Liquidity Amount;
(k) a Change of Control shall have
occurred;
(l) HVF shall fail to acquire or
maintain in force a Series 2008-1 Interest Rate Cap at the times and in
the notional amounts required by the terms of Section 3.12;
(m) the Trustee shall for any reason cease
to have a valid and perfected first priority security interest in the Series 2008-1
Collateral (other than the Series 2008-1 Reserve Account Collateral and
the Series 2008-1 Cash Collateral Account Collateral) or any of the
Lessee, HVF or any Affiliate of either so asserts in writing;
(n) the occurrence of a Servicer Event of
Default;
(o) the occurrence of a Servicer Default
or an Administrator Default;
(p) an Amortization Event with respect to
any Existing Series of Notes shall have occurred (other than an Insurer
Related Amortization Event with respect to any such Existing Series of
Notes);
(q) HVF fails to comply with any of its
other agreements or covenants in, or provisions of, the Series 2008-1
Notes, the Indenture, this Series Supplement or any other Related Document
and the failure to so comply materially and adversely affects the interests of
the Series 2008-1 Noteholders and continues to materially and adversely
affect the interests of the Series 2008-1 Noteholders for a period of
thirty (30) days after the earlier of (i) the date on which HVF obtains
knowledge thereof or (ii) the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to HVF by the
Trustee or to HVF and the Trustee by the Administrative Agent; or
(r) any representation made by HVF in
the Indenture, this Series Supplement or any other Related Document is
false and such false representation materially and adversely affects the
interests of the Series 2008-1 Noteholders and such false representation
is not cured for a period of thirty (30) days after the earlier of (i) the
71
date on which HVF obtains
knowledge thereof or (ii) the date that written notice thereof is given to
HVF by the Trustee or to HVF and the Trustee by the Administrative Agent.
In the case of
(i) any
event described in
clauses (a)
through
(m)
above, an
Amortization Event with respect to the Series 2008-1 Notes will
immediately occur without any notice or other action on the part of the Trustee
or any Series 2008-1 Noteholder or
(ii) any
event described in
clauses (n)
through
(r)
above,
either the Trustee may, by written notice to HVF or the Required Noteholders
with respect to the Series 2008-1 Notes may, by written notice to HVF and
the Trustee declare that an Amortization Event with respect to the Series 2008-1
Notes has occurred as of the date of the notice.
An Amortization Event with
respect to the Series 2008-1 Notes described in
clauses (a)
through
(k)
,
(m)
through
(p)
and
(q)
(with respect
to any agreement, covenant or provision in the Series 2008-1 Notes, the
Indenture, this Series Supplement or any other Related Document the
amendment or modification of which requires the consent of Series 2008-1
Noteholders holding more than 66
2
/
3
% of the Series 2008-1
Principal Amount or which otherwise prohibits HVF from taking any action
without the consent of Series 2008-1 Noteholders holding more than 66
2
/
3
of the Series 2008-1 Principal Amount)
above may be waived solely with the written consent of Series 2008-1
Noteholders holding 100% of the Series 2008-1 Principal Amount. An Amortization Event with respect to the Series 2008-1
Notes described in clauses (l), (q) (other than with respect to any
agreement, covenant or provision in the Series 2008-1 Notes, the
Indenture, this Series Supplement or any other Related Document the
amendment or modification of which requires the consent of Series 2008-1
Noteholders holding more than 66
2
/
3
% of the Series 2008-1 Principal Amount or
which otherwise prohibits HVF from taking any action without the consent of Series 2008-1
Noteholders holding more than 66
2
/
3
% of the Series 2008-1 Principal Amount) and
(r) may be waived in accordance with Section 9.4 of the Base
Indenture. In the event of a waiver of
any Amortization Event described above, the Trustee shall provide notification
thereof to each Rating Agency.
Notwithstanding anything herein
to the contrary, an Amortization Event with respect to the Series 2008-1
Notes described in clause (m) above shall be curable at any time.
ARTICLE V
FORM OF SERIES 2008-1 NOTES
Section 5.1.
Issuance
of Series 2008-1 Notes
. The Series 2008-1
Notes will be issued in the form of definitive notes in fully registered form
without interest coupons, substantially in the form set forth in Exhibit A-1
hereto, and will be sold to the Series 2008-1 Noteholders pursuant to and
in accordance with the Series 2008-1 Note
72
Purchase Agreement and shall be duly executed
by HVF and authenticated by the Trustee in the manner set forth in
Section 2.4
of the Base Indenture. Other than in
accordance with this Series Supplement and the Series 2008-1 Note
Purchase Agreement, the Series 2008-1 Notes will not be permitted to be
transferred, assigned, exchanged or otherwise pledged or conveyed by the Series 2008-1
Noteholders. The initial Series 2008-1
Notes issued on the Series 2008-1 Closing Date shall bear a face amount
equal to up to the Series 2008-1 Maximum Principal Amount as of the Series 2008-1
Closing Date, and shall be initially issued in a principal amount equal to the Series 2008-1
Initial Principal Amount. Additional Series 2008-1
Notes (“
Additional Series 2008-1 Notes
”) may be issued subsequent
to the Series 2008-1 Closing Date in accordance with
Section 2.1
hereof in connection with the addition of an Additional Investor Group pursuant
to Section 9.16 of the Series 2008-1 Note Purchase Agreement. Additional Series 2008-1 Notes shall
bear a face amount equal to up to the Maximum Investor Group Principal Amount
with respect to the related Additional Investor Group and shall initially be
issued in a principal amount equal to the Additional Investor Group Initial
Principal Amount with respect to such Additional Investor Group. Upon the issuance of any Additional Series 2008-1
Notes, the Series 2008-1 Maximum Principal Account shall be increased by
an amount equal to the Maximum Investor Group Principal Amount with respect to
the related Additional Investor Group.
The Trustee shall, or shall cause the Registrar, to record any
Increases, Decreases or additional issuances with respect to the Series 2008-1
Principal Amount such that the principal amount of the Series 2008-1 Notes
that are outstanding accurately reflects all such Increases, Decreases and
additional issuances.
The Series 2008-1 Notes
may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with the rules of
any securities exchange or as may, consistently herewith, be determined by the
officers executing such Series 2008-1 Notes, as evidenced by their
execution of the Series 2008-1 Notes.
The Series 2008-1 Notes may be produced in any manner, all as
determined by the officers executing such Series 2008-1 Notes, as
evidenced by their execution of such Series 2008-1 Notes. The initial sale
of the Series 2008-1 Notes is limited to Persons who have executed the Series 2008-1
Note Purchase Agreement. The sale of
Additional Series 2008-1 Notes shall be limited to Persons who become a
party to the Series 2008-1 Note Purchase Agreement in accordance with Section 9.16
thereof.
Section 5.2.
Transfer
of Series 2008-1 Notes
.
(a) Subject
to the terms of the Indenture and the Series 2008-1 Note Purchase
Agreement, the holder of any Series 2008-1 Note may transfer the same in
whole or in part, in an amount equivalent to an authorized denomination, by
surrendering such Series 2008-1 Note at the office maintained by the
Registrar for such purpose pursuant to
Section 2.5(a)
of the
Base Indenture, with the form of transfer endorsed on it duly completed and
executed by, or accompanied by a written instrument of transfer in form
satisfactory to HVF and the Registrar by, the holder thereof and accompanied by
a certificate substantially in the form of
Exhibit E
hereto;
provided, that if the holder of any Series 2008-1 Note transfers, in whole
or in part, its interest in any Series 2008-1 Note pursuant to (i) an
Assignment and Assumption Agreement substantially in the form of
73
Exhibit B
to the Series 2008-1 Note Purchase Agreement or (ii) an Investor
Group Supplement substantially in the form of Exhibit C to the Series 2008-1
Note Purchase Agreement, then such Series 2008-1 Noteholder will not be
required to submit a certificate substantially in the form of
Exhibit E
hereto upon transfer of its interest in such Series 2008-1 Note. In exchange for any Series 2008-1 Note
properly presented for transfer, HVF shall execute and the Trustee shall
promptly authenticate and deliver or cause to be authenticated and delivered in
compliance with applicable law, to the transferee at such office, or send by
mail (at the risk of the transferee) to such address as the transferee may
request, Series 2008-1 Notes for the same aggregate principal amount as
was transferred. In the case of the
transfer of any Series 2008-1 Note in part, HVF shall execute and the
Trustee shall promptly authenticate and deliver or cause to be authenticated
and delivered to the transferor at such office, or send by mail (at the risk of
the transferor) to such address as the transferor may request, Series 2008-1
Notes for the aggregate principal amount that was not transferred. No transfer of any Series 2008-1 Note
shall be made unless the request for such transfer is made by the Series 2008-1
Noteholder at such office. Neither HVF
nor the Trustee shall be liable for any delay in delivery of transfer
instructions and each may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the
issuance of transferred Series 2008-1 Notes, the Trustee shall recognize
the Holders of such Series 2008-1 Note as Series 2008-1 Noteholders.
(b) Each Series 2008-1 Note shall
bear the following legend:
THIS SERIES 2008-1 NOTE HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR WITH ANY STATE SECURITIES OR “BLUE SKY” LAWS. THE HOLDER HEREOF, BY ITS ACCEPTANCE HEREOF,
AGREES FOR THE BENEFIT OF HVF THAT SUCH SERIES 2008-1 NOTE IS BEING ACQUIRED
FOR ITS OWN ACCOUNT AND NOT WITH A VIEW TO DISTRIBUTION AND TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH NOTE ONLY (A) TO HVF, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF
RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT OR (D) PURSUANT
TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND, IN EACH SUCH CASE, IN COMPLIANCE WITH THE INDENTURE AND ALL APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION,
SUBJECT TO THE RIGHT OF HVF, PRIOR TO ANY TRANSFER PURSUANT TO
CLAUSE (C)
,
TO REQUIRE THE DELIVERY TO IT OF A PURCHASER’S LETTER IN THE FORM OF
EXHIBIT
E
TO THE SERIES 2008-1 SUPPLEMENT CERTIFYING, AMONG OTHER THINGS, THAT SUCH
PURCHASER IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND SUBJECT TO
THE RIGHT OF HVF, PRIOR TO ANY TRANSFER PURSUANT TO
CLAUSE (D)
, TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT.
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The required legends set forth
above shall not be removed from the Series 2008-1 Notes except as provided
herein.
ARTICLE VI
GENERAL
Section 6.1.
Optional
Redemption of Series 2008-1 Notes
.
The Series 2008-1 Notes shall be subject to repurchase (in whole)
by HVF at its option, upon three (3) Business Days’ prior written notice
to the Trustee, in accordance with
Section 6.1
of the Base
Indenture at any time. The repurchase
price for any Series 2008-1 Note (in each case, the “
Series 2008-1
Repurchase Amount
”) shall equal the sum of (a) the aggregate
outstanding principal balance of such Series 2008-1 Notes (determined
after giving effect to any payments of principal and interest on the Payment
Date immediately preceding the date of purchase pursuant to this
Section 6.1
),
plus (b) (i) with respect to the portion of such principal balance
which was funded with Series 2008-1 Commercial Paper issued at a discount,
all accrued and unpaid discount on such Series 2008-1 Commercial Paper
from the issuance date(s) thereof to the date of purchase under this
Section 6.1
and the aggregate discount to accrue on such Series 2008-1 Commercial
Paper from the date of purchase under this
Section 6.1
to the
maturity date of such Series 2008-1 Commercial Paper, or (ii) with
respect to the portion of such principal balance which was funded with Series 2008-1
Commercial Paper that was not issued at a discount, all accrued and unpaid
interest on such Series 2008-1 Commercial Paper from the issuance date(s) thereof
to the date of purchase under this
Section 6.1
(and any breakage
costs associated with the prepayment of such interest-bearing Series 2008-1
Commercial Paper), or (iii) with respect to the portion of such principal
balance which was funded other than with Series 2008-1 Commercial Paper,
all accrued and unpaid interest on such principal balance through the date of
purchase under this
Section 6.1
, plus (c) any other amounts
then due and payable to the holders of such Series 2008-1 Notes pursuant
hereto and pursuant to the Series 2008-1 Note Purchase Agreement.
Section 6.2.
Information
. (a) On or before the fourth Business
Day prior to each Payment Date (unless otherwise agreed to by the Trustee), HVF
shall cause the Administrator to furnish to the Trustee a Monthly Noteholders’
Statement with respect to the Series 2008-1 Notes, substantially in the
form of
Exhibit F-1
, setting forth, inter alia, the following
information:
(i) the
total amount available to be distributed to Series 2008-1 Noteholders on
such Payment Date;
(ii) the
amount of such distribution allocable to the payment of principal of the Series 2008-1
Notes;
(iii) the
amount of such distribution allocable to the payment of interest on the Series 2008-1
Notes;
75
(iv) the
Series 2008-1 Invested Percentage with respect to Interest Collections and
with respect to Principal Collections for the period from and including the
second Determination Date preceding such Payment Date to but excluding the
Determination Date immediately preceding such Payment Date;
(v) the
Series 2008-1 Enhancement Amount, the Series 2008-1 Adjusted
Enhancement Amount, the Series 2008-1 Liquidity Amount, the Series 2008-1
Adjusted Liquidity Amount, in each case, as of the close of business on the
last day of the Related Month;
(vi) whether,
to the knowledge of the Administrator, any Lien exists on any of the Collateral
(other than Permitted Liens);
(vii) whether,
to the knowledge of the Administrator, any Operating Lease Event of Default has
occurred;
(viii) whether,
to the knowledge of the Administrator, any Amortization Event or Potential
Amortization Event with respect to the Series 2008-1 Notes has occurred;
(ix) the
Aggregate Asset Amount and the amount of the Aggregate Asset Amount Deficiency,
if any, as of the close of business on the last day of the Related Month;
(x) the
Bankrupt Manufacturer Vehicle Amount, the Bankrupt Manufacturer Vehicle
Percentage, the Capped Category 2 Manufacturer Eligible Program Vehicle
Percentage, the Capped Category 2 Manufacturer Program Vehicle Percentage, the
Capped Non-Top Two Category 3 Manufacturer Vehicle Percentage, the Category 1
Manufacturer Eligible Program Vehicle Amount, the Category 1 Manufacturer
Eligible Program Vehicle Percentage, the Category 1 Manufacturer Non-Eligible
Program Vehicle Amount, the Category 1 Manufacturer Non-Eligible Program
Vehicle Percentage, the Category 1 Manufacturer Non-Eligible Vehicle Amount,
the Category 1 Manufacturer Non-Eligible Vehicle Percentage, the Category 2
Manufacturer Eligible Program Vehicle Amount, the Category 2 Manufacturer
Eligible Program Vehicle Percentage, the Category 2 Manufacturer Eligible
Program Vehicle Percentage Excess, the Category 2 Manufacturer Non-Eligible
Program Vehicle Amount, the Category 2 Manufacturer Non-Eligible Program
Vehicle Percentage, the Category 2 Manufacturer Non-Eligible Vehicle Amount,
the Category 2 Manufacturer Non-Eligible Vehicle Percentage, the Category 2
Manufacturer Program Vehicle Percentage, the Category 3 Manufacturer
Non-Eligible Vehicle Amount, the Category 3 Manufacturer Non-Eligible Vehicle
Percentage, the Category 3 Manufacturer Vehicle Amount, the Category 3
Manufacturer Vehicle Percentage, the Eligible Program Vehicle Amount, the
Manufacturer Eligible Program Vehicle Amount, the Manufacturer Non-Eligible
Program Vehicle Amount, the Manufacturer Non-Eligible Vehicle Amount, the
Non-Eligible Vehicle Amount, the Non- Program Vehicle Amount, the Non-Program
Vehicle Percentage, the
76
Non-Top Two Category 3 Manufacturer Vehicle Percentage, the Non-Top Two
Category 3 Manufacturer Vehicle Percentage Excess, the Top Two Category 3
Manufacturer Vehicle Amount and the Top Two Category 3 Manufacturer Vehicle
Percentage as of the close of business on the last day of the Related Month;
(xi) the
Non-Eligible Manufacturer Amount as of the close of business on the last day of
the Related Month;
(xii) the
Series 2008-1 Moody’s Highest Enhancement Percentage, the Series 2008-1
Moody’s Intermediate Enhancement Percentage, the Series 2008-1 Moody’s
Lowest Enhancement Percentage, Series 2008-1 Moody’s Intermediate
Enhancement Vehicle Percentage, the Series 2008-1 Moody’s Required
Enhancement Percentage, the Series 2008-1 S&P Highest Enhancement
Percentage, the Series 2008-1 S&P Intermediate Enhancement Percentage,
the Series 2008-1 S&P Lowest Enhancement Percentage, Series 2008-1
S&P Required Enhancement Percentage and the Series 2008-1 Required
Enhancement Percentage as of the close of business on the last day of the
Related Month and the Market Value Average and Non-Program Vehicle Measurement
Month Average, if any, included in the calculation of such calculations;
(xiii) the
Aggregate BMW/Lexus/Mercedes/Audi Amount, the Aggegate Kia/Subaru/Hyundai
Amount, the Audi Amount, the BMW Amount, the Hyundai Amount, the Jaguar Amount,
the Kia Amount, the Land Rover Amount, the Lexus Amount, the Mazda Amount, the
Mercedes Amount, the Mitsubishi Amount, the Nissan Amount, the Subaru Amount,
the Volvo Amount and the Volkswagen Amount as of the close of business on the
last day of the Related Month;
(xiv) the
Series 2008-1 Required Incremental Enhancement Amount, if any, as of the
close of business on the last day of the Related Month;
(xv) the
Series 2008-1 Required Liquidity Amount, if any, as of the close of
business on the last day of the Related Month, and whether a Series 2008-1
Liquidity Deficiency with respect to any Class of Series 2008-1 Notes
existed and the amount thereof, in each case, as of the close of business on
the last day of the Related Month;
(xvi) the
Series 2008-1 Required Enhancement Amount as of the close of business on
the last day of the Related Month, and whether a Series 2008-1 Enhancement
Deficiency with respect to any Class of Series 2008-1 Notes existed
and the amount thereof, in each case, as of the close of business on the last
day of the Related Month;
(xvii) the
Series 2008-1 Required Overcollateralization Amount, the Series 2008-1
Overcollateralization Amount and the Series 2008-1 Required Asset Amount,
in each case, as of the close of business on the last day of the Related Month;
77
(xviii) the
Series 2008-1 Required Reserve Account Amount and the Series 2008-1
Available Reserve Account Amount, in each case, as of the close of business on
the last day of the Related Month;
(xix) the
percentage of all HVF Vehicles, with respect to each Manufacturer, as of the
close of business on the last day of the Related Month which were Eligible
Program Vehicles manufactured by such Manufacturer;
(xx) the
percentage of all HVF Vehicles, with respect to each Manufacturer which is not
an Eligible Program Manufacturer, as of the close of business on the last day
of the Related Month which were Program Vehicles manufactured by such
Manufacturer;
(xxi) the
percentage of all HVF Vehicles, with respect to each Manufacturer, as of the
close of business on the last day of the Related Month that were Non-Program Vehicles
manufactured by such Manufacturer;
(xxii) the
Series 2008-1 Letter of Credit Liquidity Amount, the Series 2008-1
Demand Note Payment Amount and the Series 2008-1 Letter of Credit Amount,
in each case, as of the close of business on the last day of the Related Month;
and
(xxiii) the
Series 2008-1 Principal Amount and the Series 2008-1 Adjusted
Principal Amount, in each case, as of such Payment Date.
The
Trustee shall provide to the Series 2008-1 Noteholders, or their
designated agent, copies of each Monthly Noteholders’ Statement.
(b) After an Insurer
Related Amortization Event has occurred and for so long as such Insurer Related
Amortization Event continues with respect to any Existing Series of Notes, HVF
shall promptly furnish, or cause the Administrator to promptly furnish, to the
Trustee notice thereof. In the event
that any such Insurer Related Amortization Event becomes a Limited Liquidation
Event of Default under the related Existing Series Supplement and Noteholders
under such Existing Series of Notes have directed the Trustee to commence
(either through its agents or otherwise) or cause the commencement of
liquidation of any HVF Vehicles as a result of such Limited Liquidation Event
of Default, then on the third Business Day of each calendar week during which
such Insurer Related Amortization Event continues, HVF shall furnish, or cause
the Administrator to furnish to the Trustee a Weekly Noteholders’ Statement
with respect to the Series 2008-1 Notes, substantially in the form of
Exhibit
F-2
, setting forth, inter alia, the following information:
(xxiv) the
Series 2008-1 Enhancement Amount, the Series 2008-1 Adjusted
Enhancement Amount, the Series 2008-1 Liquidity Amount, the Series 2008-1
Adjusted Liquidity Amount, in each case, as of the close of business on the
last Business Day of the prior calendar week;
78
(xxv) the
Aggregate Asset Amount and the amount of the Aggregate Asset Amount Deficiency,
if any, as of the close of business on the last Business Day of the prior
calendar week;
(xxvi) the
Series 2008-1 Required Enhancement Incremental Amount, if any, as of the close
of business on the last Business Day of the prior calendar week;
(xxvii) the
Series 2008-1 Required Liquidity Amount, if any, as of the close of
business on the last day of the Related Month, and whether a Series 2008-1
Liquidity Deficiency with respect to any Class of Series 2008-1 Notes
existed and the amount thereof, in each case, as of the close of business on
the last Business Day of the prior calendar week;
(xxviii) the
Series 2008-1 Required Enhancement Amount as of the close of business on the
prior Business Day, and whether a Series 2008-1 Enhancement Deficiency with
respect to any Class of Series 2008-1 Notes existed and the amount thereof, in
each case, as of the close of business on the last Business Day of the prior
calendar week;
(xxix) the
Series 2008-1 Required Overcollateralization Amount, the Series 2008-1
Overcollateralization Amount and the Series 2008-1 Required Asset Amount,
in each case, as of the close of business on the last Business Day of the prior
calendar week;
(xxx) the
Series 2008-1 Required Reserve Account Amount and the Series 2008-1
Available Reserve Account Amount, in each case, as of the close of business on
the last Business Day of the prior calendar week;
(xxxi) the
percentage of all HVF Vehicles, with respect to each Manufacturer, as of the
close of business on the last Business Day of the prior calendar week that were
Eligible Program Vehicles manufactured by such Manufacturer;
(xxxii) the
Series 2008-1 Letter of Credit Liquidity Amount, the Series 2008-1
Demand Note Payment Amount and the Series 2008-1 Letter of Credit Amount,
in each case, as of the close of business on the last Business Day of the prior
calendar week; and
(xxxiii) the
Series 2008-1 Principal Amount and the Series 2008-1 Adjusted
Principal Amount, in each case, as of the close of business on the last
Business Day of the prior calendar week.
Promptly
upon its receipt thereof, the Trustee shall provide to the Series 2008-1
Noteholders, or their designated agent, copies of each Weekly Noteholders’
Statement.
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Section 6.3.
Exhibits
. The following exhibits attached hereto
supplement the exhibits included in the Indenture.
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Exhibit A-1:
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Series 2008-1 Variable Funding Rental Car Asset Backed Notes
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Exhibit B:
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Form of Series 2008-1 Letter of Credit
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Exhibit C:
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Form of Lease Payment Deficit Notice
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Exhibit D:
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Form of Series 2008-1 Letter of Credit Reduction Notice
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Exhibit E:
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Form of Purchaser’s Letter
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Exhibit F-1:
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Form of Monthly Noteholders’ Statement
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Exhibit F-2:
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Form of Weekly Noteholders’ Statement
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Exhibit G-1:
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Form of Demand Notice
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Exhibit G-2:
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Form of Series 2008-1 Demand Note
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Exhibit H:
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Form of Estimated Interest Adjustment Notice
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Section 6.4.
Ratification
of Base Indenture
. As supplemented
by this Series Supplement, the Base Indenture is in all respects ratified
and confirmed and the Base Indenture as so supplemented by this Series Supplement
shall be read, taken, and construed as one and the same instrument.
Section 6.5.
Notice
to the Rating Agencies
. The Trustee
shall provide to each Funding Agent and each Rating Agency a copy of each notice
to the Series 2008-1 Noteholders, Opinion of Counsel and Officer’s
Certificate delivered to the Trustee pursuant to this Series Supplement or
any other Related Document. Each such
Opinion of Counsel to be delivered to each Funding Agent shall be addressed to
each Funding Agent, shall be from counsel reasonably acceptable to each Funding
Agent and shall be in form and substance reasonably acceptable to each Funding
Agent. The Trustee shall provide notice
to each Rating Agency of any consent by the Series 2008-1 Noteholders to
the waiver of the occurrence of any Limited Liquidation Event of Default. All such notices, opinions, certificates or
other items to be delivered to the Funding Agents shall be forwarded, simultaneously,
to
the address of each Funding
Agent set forth in the Series 2008-1 Note Purchase Agreement. In the event that the Annualized Financing
Cost, calculated with respect to the amounts payable in any Series 2008-1
Interest Period, exceeds 10%, HVF shall provide Moody’s with notice of such
event.
Section 6.6.
Third
Party Beneficiary
. The
Administrative Agent is an express third party beneficiary of (i) the Base
Indenture and (ii) this Series Supplement.
Section 6.7.
Counterparts
. This Series Supplement may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all of such counterparts shall together constitute but one and
the same instrument.
Section 6.8.
Governing
Law
. This Series Supplement 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.
80
Section 6.9.
Amendments
.
This Series Supplement may be modified or amended from time to time in
accordance with the terms of the Base Indenture and subject to satisfaction of
the Series 2008-1 Rating Agency Condition,
provided
that if,
pursuant to the terms of the Base Indenture or this Series Supplement, the
consent of the Required Noteholders is required for an amendment or
modification of this Series Supplement, such requirement shall be
satisfied if such amendment or modification is consented to by the Required
Noteholders with respect to the Series 2008-1 Notes;
provided
,
further, that, any amendment or other modification to this Series Supplement
or any of the Related Documents that would extend the due date for, or reduce
the amount of, any scheduled repayment or prepayment of principal of or interest
on the Series 2008-1 Notes (or reduce the principal amount of or rate of
interest on the Series 2008-1 Notes), alter any provisions (including,
without limitation, any relevant definitions) relating to the pro rata
treatment of payments to the Series 2008-1 Noteholders, the Conduit
Investors and the Committed Note Purchasers, amend or modify this Section 6.9
or otherwise amend or modify any provision relating to the amendment or
modification of this Series Supplement, or, pursuant to the Related
Documents, would require the consent of 100% of the Series 2008-1
Noteholders or each Series 2008-1 Noteholder affected by such amendment or
modification, shall require the prior written consent of each Conduit Investor
and Committed Note Purchaser or each Conduit Investor and each Committed Note
Purchaser affected thereby, as applicable.
Section 6.10.
Covenant
Regarding Affiliate Issuers
. HVF
shall not issue or sell Notes of any Series of Notes to an Affiliate
Issuer unless, in connection with such issuance or sale, such Affiliate Issuer
has assigned all voting, consent and control rights associated with such Notes
to Persons that are not Affiliates of HVF.
Section 6.11.
Termination
of Series Supplement
. This Series Supplement
shall cease to be of further effect when (i) all Outstanding Series 2008-1
Notes theretofore authenticated and issued have been delivered (other than
destroyed, lost, or stolen Series 2008-1 Notes which have been replaced or
paid) to the Trustee for cancellation, (ii) HVF has paid all sums payable
hereunder and (iii) the Series 2008-1 Demand Note Payment Amount is
equal to zero or the Series 2008-1 Letter of Credit Liquidity Amount is
equal to zero.
Section 6.12.
Discharge
of Indenture
. Notwithstanding
anything to the contrary contained in the Base Indenture, so long as this Series Supplement
shall be in effect in accordance with
Section 6.14
of this Series Supplement,
no discharge of the Indenture pursuant to
Section 11.1(b)
of
the Base Indenture shall be effective as to the Series 2008-1 Notes
without the consent of the Required Noteholders with respect to the Series 2008-1
Notes.
81
IN WITNESS WHEREOF, HVF and the
Trustee have caused this Series Supplement to be duly executed by their
respective officers hereunto duly authorized as of the day and year first above
written.
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HERTZ VEHICLE FINANCING LLC
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By:
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/s/ Scott Massengill
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Name:
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SCOTT MASSENGILL
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Title:
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VP & TREASURER
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THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
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as Trustee,
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By:
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/S/ John D Ask
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Name:
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John D Ask
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Title:
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Assistant Treasurer
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Series Supplement
82
EXHIBIT A
TO
SERIES 2008-1 SUPPLEMENT
FORM OF SERIES 2008-1 VARIABLE
FUNDING
RENTAL CAR ASSET BACKED NOTE
RENTAL CAR ASSET BACKED NOTE
SERIES 2008-1 VARIABLE FUNDING
No. R-[ ]
SEE REVERSE FOR CERTAIN CONDITIONS
THIS SERIES
2008-1 NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR WITH ANY STATE SECURITIES OR “BLUE SKY”
LAWS. THE HOLDER HEREOF, BY ITS ACCEPTANCE HEREOF, AGREES FOR THE BENEFIT OF
HERTZ VEHICLE FINANCING LLC, A SPECIAL PURPOSE LIMITED LIABILITY COMPANY
ESTABLISHED UNDER THE LAWS OF DELAWARE (THE “COMPANY”), THAT SUCH SERIES 2008-1
NOTE IS BEING ACQUIRED FOR ITS OWN ACCOUNT AND NOT WITH A VIEW TO DISTRIBUTION
AND TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE ONLY (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED
INVESTOR WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT OR (D) PURSUANT TO AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH SUCH CASE, IN
COMPLIANCE WITH THE INDENTURE AND ALL APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER JURISDICTION, SUBJECT TO THE RIGHT OF THE
COMPANY, PRIOR TO ANY TRANSFER PURSUANT TO
CLAUSE (C)
, TO REQUIRE THE
DELIVERY TO IT OF A PURCHASER’S LETTER IN THE FORM OF
EXHIBIT E
TO
THE SERIES 2008-1 SUPPLEMENT CERTIFYING, AMONG OTHER THINGS, THAT SUCH
PURCHASER IS AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT AND SUBJECT TO
THE RIGHT OF THE COMPANY, PRIOR TO ANY TRANSFER PURSUANT TO
CLAUSE (D)
,
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT.
HERTZ VEHICLE
FINANCING LLC
SERIES 2008-1
VARIABLE FUNDING RENTAL CAR ASSET BACKED NOTE
Hertz Vehicle
Financing LLC, a special purpose limited liability company established under
the laws of Delaware, (herein referenced as the “
Company
”), for value
received, hereby promises to pay to [ ]
(the “
Series 2008-1 Note Purchaser
”), or its registered assigns,
the aggregate principal sum of [ ]
($[ ])
or, if less, the aggregate unpaid principal amount shown on the schedule
attached hereto (and any continuation thereof), which amount shall be payable
in the amounts and at the times set forth in the Indenture;
provided
,
however
,
that the entire unpaid principal amount of this Series 2008-1 Note shall
be due on the Legal Final Payment Date. The Company will pay interest on this Series 2008-1
Note at the Series 2008-1 Note Rate. Such interest shall be payable on
each Payment Date until the principal of this Series 2008-1 Note is paid
or made available for payment, to the extent funds are available from Interest
Collections allocable to the Series 2008-1 Note processed from but not
including the preceding Payment Date through and including the succeeding
Payment Date. In addition, the Company will pay interest on this Series 2008-1
Note, to the extent funds are available from Interest Collections allocable to
the Series 2008-1 Note, on the dates set forth in
Section 3.3
of the Series 2008-1 Supplement. Pursuant to
Sections 2.1
and
2.2
of the Series 2008-1 Supplement and
Sections 2.02
and
2.03
of the Series 2008-1 Note Purchase Agreement, the principal amount of this
Series 2008-1 Note shall be subject to Increases and Decreases on any
Business Day during the Series 2008-1 Revolving Period, and accordingly,
such principal amount is subject to prepayment at any time. During the Series 2008-1
Revolving Period, this Series 2008-1 Note is subject to mandatory
prepayment, to the extent funds have been allocated to the Series 2008-1
Excess Collection Account and are available therefor, in accordance with
Section 2.2(a)
of
the Series 2008-1 Supplement. Beginning on the first Payment Date
following the occurrence of a Series 2008-1 Amortization Event, subject to
cure in accordance with the Series 2008-1 Supplement, the principal of
this Series 2008-1 Note shall be paid in installments on each subsequent
Payment Date to the extent of funds available for payment therefor pursuant to
the Indenture. Such principal of and interest on this Series 2008-1 Note
shall be paid in the manner specified on the reverse hereof.
The principal
of and interest on this Series 2008-1 Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the
Company with respect to this Series 2008-1 Note shall be applied first to
interest due and payable on this Series 2008-1 Note as provided above and
then to the unpaid principal of this Series 2008-1 Note. This Series 2008-1
Note does not represent an interest in, or an obligation of, The Hertz
Corporation or any affiliate of The Hertz Corporation other than the Company.
Reference is
made to the further provisions of this Series 2008-1 Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Series 2008-1 Note. Although a summary of certain
provisions of the Indenture is set forth below and on the reverse hereof and
made a part hereof, this Series
2
2008-1 Note does not purport to summarize the
Indenture and reference is made to the Indenture for information with respect
to the interests, rights, benefits, obligations, proceeds and duties evidenced
hereby and the rights, duties and obligations of the Company and the Trustee. A
copy of the Indenture may be requested from the Trustee by writing to the
Trustee at: The Bank of New York Mellon Trust Company, N.A., 2 North LaSalle
Street, Suite 1020, Chicago, Illinois 60602, Attention: Corporate Trust
Administration–Structured Finance. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to them in Schedule 1
to the Base Indenture.
Unless the
certificate of authentication hereon has been executed by the Trustee whose
name appears below by manual signature, this Series 2008-1 Note shall not
be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
3
IN WITNESS
WHEREOF, the Company has caused this instrument to be signed, manually or in
facsimile, by its Authorized Officer.
Dated: September , 2008
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HERTZ
VEHICLE FINANCING LLC
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By:
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Name: Scott
Massengill
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Title: Vice
President and Treasurer
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is a Series 2008-1
Note, a series issued under the within-mentioned Indenture.
Dated: September , 2008
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THE BANK OF
NEW YORK MELLON
TRUST COMPANY, N.A.,
as Trustee
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By:
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Authorized
Signatory
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4
REVERSE OF SERIES 2008-1 NOTE
This Series 2008-1
Note is one of a duly authorized issue of Notes of the Company, designated as its
Series 2008-1 Variable Funding Rental Car Asset Backed Notes (herein
called the “
Series 2008-1 Note
”), issued under (i) a Second
Amended and Restated Base Indenture, dated as of August 1, 2006 (such
Second Amended and Restated Base Indenture, as further amended or modified, is
herein referred to as the “
Base Indenture
”), between the Company and The
Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New
York Trust Company, N.A.) as trustee (the “
Trustee
”, which term includes
any successor Trustee under the Base Indenture), and (ii) a Series 2008-1
Supplement, dated as of September 12, 2008 (such Series 2008-1
Supplement, as further amended or modified, is herein referred to as the “
Series 2008-1
Supplement
”), between the Company and the Trustee. The Base Indenture and
the Series 2008-1 Supplement are referred to herein as the “
Indenture
”.
Except as set forth in the Series 2008-1 Supplement, the Series 2008-1
Note is subject to all terms of the Indenture. All terms used in this Series 2008-1
Note that are defined in the Indenture, as amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof, shall have the
meanings assigned to them in or pursuant to the Indenture, as so amended,
supplemented or otherwise modified.
The Series 2008-1
Note is and will be equally and ratably secured by the Collateral pledged as
security therefore as provided in the Base Indenture and the Series 2008-1
Supplement.
“
Payment
Date
” means the 25th day of each calendar month, or, if any such date is
not a Business Day, the next succeeding Business Day, commencing October 25,
2008.
As described
above, the entire unpaid principal amount of this Series 2008-1 Note shall
be due and payable on the Legal Final Payment Date, in accordance with
Section 3.5(c)
of
the Series 2008-1 Supplement. Notwithstanding the foregoing, this Series 2008-1
Note is subject to mandatory prepayment, to the extent funds have been
allocated to the Series 2008-1 Excess Collection Account and are available
therefor, in accordance with the Indenture, and if an Amortization Event with
respect to the Series 2008-1 Notes shall have occurred and be continuing
then, in certain circumstances, principal of the Series 2008-1 Note may be
paid earlier, as described in the Indenture. All principal payments of the Series 2008-1
Note shall be made to the Series 2008-1 Noteholders.
Payments of
interest on this Series 2008-1 Note are due and payable on each Payment
Date or such other date as may be specified in the Series 2008-1
Supplement, together with the installment of principal then due, if any, and
any payments of principal made on any Business Day in respect of any Decreases,
to the extent not in full payment of this Series 2008-1 Note, shall be
made by wire transfer to the Holder of record of this Series 2008-1 Note
(or one or more predecessor Series 2008-1
5
Notes) on the Note Register as of the close
of business on each Record Date. Any reduction in the principal amount of this Series 2008-1
Note (or one or more predecessor Series 2008-1 Notes) effected by any
payments made on any Payment Date shall be binding upon all future Holders of
this Series 2008-1 Note and of any Series 2008-1 Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not noted thereon.
The Company
shall pay interest on overdue installments of interest at the Series 2008-1
Note Rate to the extent lawful.
Subject to the
terms of the Indenture and the Series 2008-1 Note Purchase Agreement, the
holder of any Series 2008-1 Note may transfer the same in whole or in
part, in an amount equivalent to an authorized denomination, by surrendering
such Series 2008-1 Note at the office maintained by the Registrar for such
purpose pursuant to
Section 2.5(a)
of the Base Indenture, with
the form of transfer endorsed on it duly completed and executed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar by, the holder thereof and accompanied by a
certificate substantially in the form of
Exhibit E
to the Series 2008-1
Supplement. In exchange for any Series 2008-1 Note properly presented for
transfer, the Company shall execute and the Trustee shall promptly authenticate
and deliver or cause to be authenticated and delivered in compliance with
applicable law, to the transferee at such office, or send by mail (at the risk
of the transferee) to such address as the transferee may request, Series 2008-1
Notes for the same aggregate principal amount as was transferred. In the case
of the transfer of any Series 2008-1 Note in part, the Company shall
execute and the Trustee shall promptly authenticate and deliver or cause to be
authenticated and delivered to the transferor at such office, or send by mail
(at the risk of the transferor) to such address as the transferor may request, Series 2008-1
Notes for the aggregate principal amount that was not transferred. No transfer
of any Series 2008-1 Note shall be made unless the request for such
transfer is made by each Series 2008-1 Noteholder at such office. Upon the
issuance of transferred Series 2008-1 Notes, the Trustee shall recognize
the Holders of such Series 2008-1 Note as Series 2008-1 Noteholders.
Each Series 2008-1
Noteholder, by acceptance of a Series 2008-1 Note, covenants and agrees
that no recourse may be taken, directly or indirectly, with respect to the
obligations of the Trustee or the Company on the Series 2008-1 Note or
under the Indenture or any certificate or other writing delivered in connection
therewith, against the Trustee in its individual capacity, or against any
stockholder, member, employee, officer, director or incorporator of the
Company;
provided
,
however
, that nothing contained herein shall
be taken to prevent recourse to, and enforcement against, the assets of the
Company for any and all liabilities, obligations and undertakings contained in
the Indenture or in this Series 2008-1 Note.
Each Series 2008-1
Noteholder, by acceptance of a Series 2008-1 Note, covenants and agrees
that by accepting the benefits of the Indenture that such Series 2008-1
Noteholder will not, for a period of one year and one day following payment in
full of the Series 2008-1 Notes and each other Series of Notes issued
under the Base Indenture, institute against the Company, or join with any other
Person in instituting against the Company, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings, under
any United States Federal or state
6
bankruptcy or similar law in connection with
any obligations relating to the Notes, the Indenture or the Related Documents.
Prior to the
due presentment for registration of transfer of this Series 2008-1 Note,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Series 2008-1 Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Series 2008-1
Note be overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
It is the
intent of the Company and each Series 2008-1 Noteholder that, for Federal,
state and local income and franchise tax purposes and any other tax imposed on
or measured by income, the Series 2008-1 Note will evidence indebtedness
secured by the Collateral. Each Series 2008-1 Noteholder, by the
acceptance of this Series 2008-1 Note, agrees to treat this Series 2008-1
Note for purposes of Federal, state and local income or franchise taxes and any
other tax imposed on or measured by income, as indebtedness.
The Indenture
permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of
the Holders of the Series 2008-1 Notes under the Indenture at any time by
the Company with the consent of the Required Noteholders with respect to the Series 2008-1
Notes. The Indenture also contains provisions permitting the Holders of Series 2008-1
Notes representing specified percentages of the aggregate outstanding amount of
the Series 2008-1 Notes, on behalf of the Holders of all the Series 2008-1
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences
with respect to the Series 2008-1 Notes. Any amendment or other
modification to the Series 2008-1 Supplement or any of the Related
Documents that would extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on the Series 2008-1
Notes (or reduce the principal amount of or rate of interest on the Series 2008-1
Notes), alter any provisions (including, without limitation, any relevant
definitions) relating to the pro rata treatment of payments to the Series 2008-1
Noteholders, the Conduit Investors and the Committed Note Purchasers, amend or
modify Section 6.9 of the Series Supplement or otherwise amend or
modify any provision relating to the amendment or modification of the Series Supplement,
or, pursuant to the Related Documents, would require the consent of 100% of the
Series 2008-1 Noteholders or each Series 2008-1 Noteholder affected
by such amendment or modification, shall require the prior written consent of
each Conduit Investor and Committed Note Purchaser or each Conduit Investor and
each Committed Note Purchaser affected thereby, as applicable. Any such consent
or waiver by the Holder of this Series 2008-1 Note (or any one or more
predecessor Series 2008-1 Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Series 2008-1 Note and of any Series 2008-1
Note issued upon the registration of transfer hereof or in exchange hereof or
in lieu hereof whether or not notation of such consent or waiver is made upon
this Series 2008-1 Note. The Indenture also permits the Company and the
Trustee to amend or waive certain terms and conditions set forth in the
Indenture without the consent of Holders of the Series 2008-1 Notes issued
thereunder.
7
The term “Company”
as used in this Series 2008-1 Note includes any successor to the Company
under the Indenture.
The Series 2008-1
Note is issuable only in registered form in denominations as provided in the
Indenture, subject to certain limitations set forth therein.
This Series 2008-1
Note and the Indenture shall be construed in accordance with the law of the
State of New York, and the obligations, rights and remedies of the parties
hereunder and thereunder shall be determined in accordance with such law.
No reference
herein to the Indenture and no provision of this Series 2008-1 Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Series 2008-1
Note at the times, place and rate, and in the coin or currency herein
prescribed, subject to any duty of the Company to deduct or withhold any
amounts as required by law, including any applicable U.S. withholding taxes.
8
INCREASES AND DECREASES
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Date
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Unpaid
Principal
Amount
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Increase
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Decrease
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Total
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Series
2008-1
Note Rate
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Interest Period
(if applicable)
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Notation
Made By
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9
ASSIGNMENT
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Social Security or taxpayer I.D. or other
identifying number of assignee
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FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto
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(name and address of assignee)
the within Series 2008-1 Note and all rights thereunder, and
hereby irrevocably constitutes and appoints
,
attorney, to transfer said Series 2008-1 Note on the books kept for
registration thereof, with full power of substitution in the premises.
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Dated:
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(1)
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Signature
Guaranteed:
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Name:
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Title:
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(1) NOTE: The signature to
this assignment must correspond with the name of the registered owner as it
appears on the face of the within Series 2008-1 Note in every particular,
without alteration, enlargement or any change whatsoever.
10
EXHIBIT B
TO
SERIES 2008-1 SUPPLEMENT
FORM OF SERIES 2008-1 LETTER OF
CREDIT
FORM OF SERIES 2008-1
LETTER OF CREDIT
NO. [ ]
September [ ], 2008
Beneficiary:
The Bank of New York Mellon Trust Company, N.A.
as Trustee
under the Series 2008-1 Supplement
referred to below
2 North LaSalle Street
Chicago, Illinois 60602
Attention:
[Corporate
Trust Administration—Structured Finance]
Dear Sir or Madam:
The
undersigned (“
[
]
”
or the “
Issuing Bank
”) hereby establishes, at the request and for the
account of The Hertz Corporation, a Delaware corporation (“
Hertz
”),
pursuant to that certain senior secured asset based revolving loan facility,
provided under a credit agreement, dated as of December 21, 2005 (as
amended, supplemented, amended and restated or otherwise modified from time to
time in accordance with the terms thereof, the “
Series 2008-1 Letter of
Credit Agreement
”), between Hertz, the Issuing Bank, certain affiliates of
Hertz and the several banks and financial institutions party thereto from time
to time, in Beneficiary’s favor on Beneficiary’s behalf as Trustee under the Series 2008-1
Supplement, dated as of September 12, 2008 (as such agreement may be
amended, supplemented, amended and restated or otherwise modified from time to
time, the “
Series 2008-1 Supplement
”), between Hertz Vehicle Financing
LLC, a Delaware limited liability company (“
HVF
”), as Issuer, and The
Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New
York Trust Company, N.A.), as Trustee, to the Second Amended and Restated Base
Indenture, dated as of August 1, 2006 (as such agreement may be amended,
supplemented, amended and restated or otherwise modified from time to time, the
“
Base Indenture
”) between HVF, as Issuer, and the Trustee, in respect of
Credit Demands (as defined below), Unpaid Demand Note Demands (as defined
below), Preference Payment Demands (as defined below) and Termination Demands
(as defined below) this Irrevocable Letter of Credit No. P- [ ]
in the amount of [ ] ($[ ])
(such amount, as the same may be reduced, increased (to an amount not exceeding
$[ ]) or reinstated as provided
herein, being the “
Series 2008-1 Letter of Credit Amount
”),
effective immediately and expiring at 4:00 p.m. (New York time) at our [ ]
office located at [ ]
(such office or any other office which may be designated by the Issuing Bank by
written notice delivered to Beneficiary, being the “
Issuing Bank’s Office
”)
on [ ] (or, if such date is not
a Business Day (as defined below), the immediately succeeding Business Day)
(the “
Series 2008-1 Letter of Credit
Expiration Date
”).Beneficiary
is referred to herein (and in each Annex hereto) as the Trustee, as such term
is defined in the Base Indenture. Terms used herein and not defined herein
shall have the meaning set forth in (i) the Base Indenture and (ii) the
Series 2008-1 Supplement.
The Issuing
Bank irrevocably authorizes Beneficiary to draw on it, in accordance with the
terms and conditions and subject to the reductions in amount as hereinafter set
forth, (1) in one or more drawings by one or more of the Trustee’s drafts,
each drawn on the Issuing Bank at the Issuing Bank’s Office, payable at sight
on a Business Day (as defined below), and accompanied by the Trustee’s written
and completed certificate signed by the Trustee in substantially the form of
Annex A
attached hereto (any such draft accompanied by such certificate being a “
Credit
Demand
”), an amount equal to the face amount of each such draft but in the
aggregate amount not exceeding the Series 2008-1 Letter of Credit Amount
as in effect on such Business Day, (2) in one or more drawings by one or
more of the Trustee’s drafts, drawn on the Issuing Bank at the Issuing Bank’s
Office, payable at sight on a Business Day, and accompanied by the Trustee’s
written and completed certificate signed by it in substantially the form of
Annex
B
attached hereto (such draft accompanied by such certificate being an “
Unpaid
Demand Note Demand
”), an amount equal to the face amount of such draft but
not exceeding the Series 2008-1 Letter of Credit Amount as in effect on
such Business Day, (3) in one or more drawings by one or more of the
Trustee’s drafts, drawn on the Issuing Bank at the Issuing Bank’s Office,
payable at sight on a Business Day, and accompanied by the Trustee’s written
and completed certificate signed by it in substantially the form of
Annex C
attached hereto (such draft accompanied by such certificate being a “
Preference
Payment Demand
”), an amount equal to the face amount of such draft but not
exceeding the Series 2008-1 Letter of Credit Amount as in effect on such
Business Day and (4) in one or more drawings by one or more of the Trustee’s
drafts, drawn on the Issuing Bank at the Issuing Bank’s Office, payable at
sight on a Business Day, and accompanied by the Trustee’s written and completed
certificate signed by it in substantially the form of
Annex D
attached
hereto (such draft accompanied by such certificate being a “
Termination
Demand
”), an amount equal to the face amount of such draft but not
exceeding the Series 2008-1 Letter of Credit Amount as in effect on such
Business Day. Any Credit Demand, Unpaid Demand Note Demand, Preference Payment
Demand or Termination Demand may be delivered by facsimile transmission. The
Trustee shall deliver the original executed counterpart of such Credit Demand,
Unpaid Demand Note Demand, Preference Payment Demand or Termination Demand, as
the case may be, to the Issuing Bank by means of overnight courier. “
Business
Day
” means any day other than a Saturday, Sunday or other day on which
banks are authorized by law to close in New York City, New York. Upon the
Issuing Bank honoring any Credit Demand, Unpaid Demand Note Demand, Preference
Payment Demand or Termination Demand presented hereunder, the Series 2008-1
Letter of Credit Amount shall automatically be decreased by an amount equal to
the amount of such Credit Demand, Unpaid Demand Note Demand, Preference Payment
Demand or Termination Demand. In addition to the foregoing reduction, (i) upon
the Issuing Bank honoring any Termination Demand in respect of the entire Series 2008-1
Letter of Credit Amount presented to it hereunder, the
2
amount available to be drawn under this Series 2008-1
Letter of Credit Amount shall automatically be reduced to zero and this Series 2008-1
Letter of Credit shall be terminated and (ii) no amount decreased on the
honoring of any Preference Payment Demand or Termination Demand shall be
reinstated.
The Series 2008-1
Letter of Credit Amount shall be automatically reinstated when and to the
extent, but only when and to the extent, that (i) the Issuing Bank is
reimbursed by Hertz (or by HVF under Section 3.2(c)(i) of the Series 2008-1
Supplement) for any amount drawn hereunder as a Credit Demand or an Unpaid
Demand Note Demand and (ii) the Issuing Bank receives written notice from
Hertz in substantially the form of
Annex E
hereto that no Event of
Bankruptcy (as defined in the Base Indenture) with respect to Hertz has
occurred and is continuing;
provided
,
however
, that the Series 2008-1
Letter of Credit Amount shall, in no event, be reinstated to an amount in
excess of the then current Series 2008-1 Letter of Credit Amount (without
giving effect to any reduction to the Series 2008-1 Letter of Credit
Amount that resulted from such Credit Demand or Unpaid Demand Note Demand).
The Series 2008-1
Letter of Credit Amount shall be automatically reduced in accordance with the
terms of a written request from the Trustee to the Issuing Bank in
substantially the form of
Annex G
attached hereto that is acknowledged
and agreed to in writing by the Issuing Bank. The Series 2008-1 Letter of
Credit Amount shall be automatically increased upon receipt by (and written
acknowledgment of such receipt by) the Trustee of written notice from the
Issuing Bank in substantially the form of
Annex H
attached hereto
certifying that the Series 2008-1 Letter of Credit Amount has been
increased and setting forth the amount of such increase, which increase shall
not result in the Series 2008-1 Letter of Credit Amount exceeding an
amount equal to [
]($[ ]).
Each Credit
Demand, Unpaid Demand Note Demand, Preference Payment Demand and Termination
Demand shall be dated the date of its presentation, and shall be presented to
the Issuing Bank at the Issuing Bank’s Office, Attention: [Global Loan
Operations, Standby Letter of Credit Unit]. If the Issuing Bank receives any
Credit Demand, Unpaid Demand Note Demand, Preference Payment Demand or
Termination Demand at such office, all in strict conformity with the terms and
conditions of this Series 2008-1 Letter of Credit, not later than 12:00 p.m.
(New York City time) on a Business Day prior to the termination hereof, the
Issuing Bank will make such funds available by 4:00 p.m. (New York City
time) on the same day in accordance with Beneficiary’s payment instructions. If
the Issuing Bank receives any Credit Demand, Unpaid Demand Note Demand,
Preference Payment Demand or Termination Demand at such office, all in strict
conformity with the terms and conditions of this Series 2008-1 Letter of
Credit, after 12:00 p.m. (New York City time) on a Business Day prior to
the termination hereof, the Issuing Bank will make the funds available by 4:00 p.m.
(New York City time) on the next succeeding Business Day in accordance with
Beneficiary’s payment instructions. If Beneficiary so requests to the Issuing
Bank, payment under this Series 2008-1 Letter of Credit may be made by
wire transfer of Federal Reserve Bank of New York funds to Beneficiary’s
account in a bank on the Federal Reserve wire system or by deposit of same day
funds into a designated account. All payments made by the
3
Issuing Bank under this Series 2008-1
Letter of Credit shall be made with the Issuing Bank’s own funds.
Upon the
earliest of (i) the date on which the Issuing Bank honors a Preference
Payment Demand or Termination Demand presented hereunder to the extent of the Series 2008-1
Letter of Credit Amount as in effect on such date, (ii) the date on which
the Issuing Bank receives written notice from Beneficiary that an alternate
letter of credit or other credit facility has been substituted for this Series 2008-1
Letter of Credit and (iii) the Series 2008-1 Letter of Credit
Expiration Date, this Series 2008-1 Letter of Credit shall automatically
terminate and Beneficiary shall surrender this Series 2008-1 Letter of
Credit to the undersigned Issuing Bank on such day.
This Series 2008-1
Letter of Credit is transferable in its entirety to any transferee(s) who
Beneficiary certifies to the Issuing Bank has succeeded Beneficiary as Trustee
under the Base Indenture and the Series 2008-1 Supplement, and may be
successively transferred. Transfer of this Series 2008-1 Letter of Credit
to such transferee shall be effected by the presentation to the Issuing Bank of
this Series 2008-1 Letter of Credit accompanied by a certificate in
substantially the form of
Annex F
attached hereto. Upon such
presentation the Issuing Bank shall forthwith transfer this Series 2008-1
Letter of Credit to (or to the order of) the transferee or, if so requested by
Beneficiary’s transferee, issue a letter of credit to (or to the order of)
Beneficiary’s transferee with provisions therein consistent with this Series 2008-1
Letter of Credit.
This Series 2008-1
Letter of Credit sets forth in full the undertaking of the Issuing Bank, and
such undertaking shall not in any way be modified, amended, amplified or
limited by reference to any document, instrument or agreement referred to herein,
except only the certificates and the drafts referred to herein; and any such
reference shall not be deemed to incorporate herein by reference any document,
instrument or agreement except for such certificates and such drafts.
This Series 2008-1
Letter of Credit is subject to the Uniform Customs and Practice for Documentary
Credits, 1993 Revision, ICC Publication No. 500 (the “
Uniform Customs
”),
which is incorporated into the text of this Series 2008-1 Letter of Credit
by reference, and shall be governed by the laws of the State of New York,
including, as to matters not covered by the Uniform Customs, the Uniform
Commercial Code as in effect in the State of New York;
provided
that if
an interruption of business (as described in such Article 17) exists at
the Issuing Bank’s Office, the Issuing Bank agrees to (i) promptly notify
the Trustee of an alternative location in which to send any communications with
respect to this Series 2008-1 Letter of Credit or (ii) to effect
payment under this Series 2008-1 Letter of Credit if a drawing which
otherwise conforms to the terms and conditions of this Series 2008-1
Letter is made prior to the earlier of (A) the thirtieth day after the
resumption of business and (B) the Series 2008-1 Letter of Credit
Expiration Date and (ii) Article 41 of the Uniform Customs shall not
apply to this Series 2008-1 Letter of Credit as drawings hereunder shall
not be deemed to be installments for purposes thereof.
4
Communications
with respect to this Series 2008-1 Letter of Credit shall be in writing
and shall be addressed to the Issuing Bank at the Issuing Bank’s Office,
specifically referring to the number of this Series 2008-1 Letter of
Credit.
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Very truly
yours,
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[ ]
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By:
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Name:
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Title:
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5
ANNEX A
CERTIFICATE OF CREDIT DEMAND
[Issuing Bank’s Address]
Attention:
[Global Loan Operations, Standby
Letter
of Credit Unit]
Certificate of
Credit Demand under the Irrevocable Letter of Credit No. [ ]
(the “
Series 2008-1 Letter of Credit
”), dated September [ ], 2008, issued by
[ ],
as the Issuing Bank, in favor of the Trustee. Capitalized terms not otherwise
defined herein shall have the meanings assigned thereto in the Series 2008-1
Letter of Credit or, if not defined therein, the Series 2008-1 Supplement
(as defined in the Series 2008-1 Letter of Credit).
The
undersigned, a duly authorized officer of the Trustee, hereby certifies to the
Issuing Bank as follows:
1.
[The Bank of New York
Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust
Company, N.A.)](1) is the Trustee under the Series 2008-1 Supplement
referred to in the Series 2008-1 Letter of Credit.
2.
[A Series 2008-1
Lease Interest Payment Deficit exists and, pursuant to
Section 3.3(d)
of
the Series 2008-1 Supplement, an amount equal to the Issuing Bank’s Pro
Rata Share of the least of (i) such Series 2008-1 Lease Interest
Payment Deficit, (ii) the excess, if any, of the sum of the amounts
described in
clauses (i)
and
(ii)
of
Section 3.3(a)
of
the Series 2008-1 Supplement over the amounts available from the Series 2008-1
Accrued Interest Account plus the amount withdrawn from the Series 2008-1
Reserve Account pursuant to
Section 3.3(c)
of the Series 2008-1
Supplement and (iii) the Series 2008-1 Letter of Credit Liquidity
Amount as of the date hereof](2)
[A Series 2008-1
Lease Interest Payment Deficit exists and, pursuant to
Section 3.3(d)
of
the Series 2008-1 Supplement, an amount equal to the Issuing Bank’s Pro
Rata Share of the product of (x) 100% minus the Series 2008-1 Cash
Collateral Percentage and (y) the least of (i) such Series 2008-1
Lease Interest Payment Deficit, (ii) the excess, if any, of the sum of the
amounts described in
clauses (i)
and
(ii)
of
Section 3.3(a)
of
the Series 2008-1 Supplement over the amounts available from the Series 2008-1
Accrued Interest Account plus the amount withdrawn from the Series 2008-1
Reserve Account
(1)
If Trustee under the Series 2008-1
Letter of Credit is other than The Bank of New York Mellon Trust Company, N.A.,
the name of such other Trustee is to be inserted.
(2)
Use in case of a Series 2008-1
Lease Interest Payment Deficit and if no Series 2008-1 Cash Collateral
Account has been established and funded.
A-1
pursuant to
Section 3.3(c)
of
the Series 2008-1 Supplement and (iii) the Series 2008-1 Letter
of Credit Liquidity Amount as of the date hereof](3)
[A Series 2008-1
Lease Principal Payment Deficit exists after giving effect to the distribution
of amounts to be deposited in the Series 2008-1 Distribution Account in
accordance with
Section 3.5(b)(i)
of the Series 2008-1
Supplement and, pursuant to
Section 3.5(b)(ii)
of the Series 2008-1
Supplement, an amount equal to the Issuing Bank’s Pro Rata Share of the lesser
of (i) the excess, if any, of the Series 2008-1 Lease Principal
Payment Deficit over the amount, if any, withdrawn from the Series 2008-1
Reserve Account in accordance with
Section 3.5(b)(i)
of the Series 2008-1
Supplement, [and] (ii) the Series 2008-1 Letter of Credit Liquidity
Amount as of the date hereof (after giving effect to any drawings on the Series 2008-1
Letters of Credit pursuant to
Section 3.3(d)
of the Series 2008-1
Supplement) [and (iii) the excess,
if any, of the Principal Deficit Amount over the over the amount, if
any, withdrawn from the Series 2008-1 Reserve Account in accordance with
Section 3.5(b)(i)
of
the Series 2008-1 Supplement](4)](5)
[A Series 2008-1
Lease Principal Payment Deficit exists after giving effect to the distribution
of amounts to be deposited in the Series 2008-1 Distribution Account in
accordance with
Section 3.5(b)(i)
of the Series 2008-1
Supplement and, pursuant to
Section 3.5(b)(ii)
of the Series 2008-1
Supplement, an amount equal to the Issuing Bank’s Pro Rata Share of the product
of (x) 100% minus the Series 2008-1 Cash Collateral Percentage and (y) the
lesser of (i) the excess, if any, of the Series 2008-1 Lease
Principal Payment Deficit over the amount, if any, withdrawn from the Series 2008-1
Reserve Account in accordance with
Section 3.5(b)(i)
of the Series 2008-1
Supplement, [and] (ii) the Series 2008-1 Letter of Credit Liquidity
Amount as of the date hereof (after giving effect to any drawings on the Series 2008-1
Letters of Credit pursuant to
Section 3.3(d)
of the Series 2008-1
Supplement) [and (iii) the excess,
if any, of the Principal Deficit Amount over the over the amount, if
any, withdrawn from the Series
(3)
Use in case of a Series 2008-1 Lease Interest
Payment Deficit and if the Series 2008-1 Cash Collateral Account has been
established and funded.
(4)
Use on any date that is prior to the Legal Final
Payment Date occurring during the period commencing on and including the date
of the filing by Hertz of a petition for relief under Chapter 11 of the
Bankruptcy Code to but excluding the date on which Hertz shall have resumed
making all payments of Monthly Variable Rent required to be made under the HVF
Lease
(5)
Use in case of a Series 2008-1 Lease
Principal Payment Deficit on any Payment Date and if no Series 2008-1 Cash
Collateral Account has been established and funded.
A-2
2008-1 Reserve Account in accordance with
Section 3.5(b)(i)
of
the Series 2008-1 Supplement](6)](7)
has been
allocated to making a drawing under the Series 2008-1 Letter of Credit.
3.
The Trustee is making
a drawing under the Series 2008-1 Letter of Credit as required by
Section[s]
[3.3(d)
and/or
3.5(b)(ii)
](8) of the Series 2008-1
Supplement for an amount equal to
$ ,
which amount is a Series 2008-1 LOC Credit Disbursement (the “
Series 2008-1
LOC Credit Disbursement
”) and is equal to the amount allocated to making a
drawing on the Series 2008-1 Letter of Credit under such
Section [3.3(d)
and/or
3.5(b)(ii)
](9) of the Series 2008-1 Supplement as described
above. The Series 2008-1 LOC Credit Disbursement does not exceed the
amount that is available to be drawn by the Trustee under the Series 2008-1
Letter of Credit on the date of this certificate.
4.
The amount of the
draft shall be delivered pursuant to the following instructions:
[insert
payment instructions (including payment date) for wire to [The Bank of New York
Mellon Trust Company, N.A.](10) as Trustee].
5.
The Trustee
acknowledges that, pursuant to the terms of the Series 2008-1 Letter of
Credit, upon the Issuing Bank honoring the draft accompanying this certificate,
the Series 2008-1 Letter of Credit Amount shall be automatically decreased
by an amount equal to such draft.
(6)
Use on any date that is prior
to the Legal Final Payment Date occurring during the period commencing on and
including the date of the filing by Hertz of a petition for relief under
Chapter 11 of the Bankruptcy Code to but excluding the date on which Hertz
shall have resumed making all payments of Monthly Variable Rent required to be
made under the HVF Lease
(7)
Use in case of a Series 2008-1
Lease Principal Payment Deficit on any Payment Date and the Series 2008-1
Cash Collateral Account has been established and funded.
(8)
Use reference to Section 3.3(d) of
the Series 2008-1 Supplement in case of a Series 2008-1 Lease
Interest Payment Deficit and/or Section 3.5(b)(ii) of the Series 2008-1
Supplement in case of a Series 2008-1 Lease Principal Payment Deficit.
(9)
Use reference to Section 3.3(d) of
the Series 2008-1 Supplement in case of a Series 2008-1 Lease
Interest Payment Deficit and/or Section 3.5(b)(ii) of the Series 2008-1
Supplement in case of a Series 2008-1 Lease Principal Payment Deficit.
(10)
See footnote 1 above.
A-3
IN WITNESS
WHEREOF, the Trustee has executed and delivered this certificate on this
day of
,
.
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[THE BANK OF
NEW YORK MELLON
TRUST COMPANY, N.A.](11),
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as Trustee
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By
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Title:
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(11)
See footnote 1 above.
A-4
ANNEX B
CERTIFICATE OF UNPAID DEMAND NOTE DEMAND
[Issuing Bank’s Address]
Attention:
[Global Loan Operations, Standby Letter of Credit
Unit]
Certificate of
Unpaid Demand Note Demand under the Irrevocable Letter of Credit No. [
] (the “
Series 2008-1 Letter of Credit
”), dated September [ ], 2008, issued by
[ ],
as the Issuing Bank, in favor of the Trustee.
Capitalized terms not otherwise defined herein shall have the meanings
assigned thereto in the Series 2008-1 Letter of Credit or, if not defined
therein, the Series 2008-1 Supplement (as defined in the Series 2008-1
Letter of Credit).
The
undersigned, a duly authorized officer of the Trustee, hereby certifies to the
Issuing Bank as follows:
1.
[The Bank of New York
Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust
Company, N.A.)](1) is the Trustee under the Series 2008-1 Supplement
referred to in the Series 2008-1 Letter of Credit.
2.
As of the date of
this certificate, there exists an amount due and payable by The Hertz
Corporation (“
Hertz
”) under
the Demand Note (the “
Demand Note
”) issued by Hertz to HVF and pledged
to the Trustee under the Series 2008-1 Supplement which amount has not
been paid (or the Trustee has failed to make a demand for payment under the
Demand Note in such amount due to the occurrence of an Event of Bankruptcy as
defined in Schedule 1 to the Base Indenture (or the occurrence of an event
described in clause (a) of the definition thereof, without the lapse of a
period of 60 consecutive days) with respect to Hertz) and, pursuant to
Section 3.5(b)(iv)
of
the Series 2008-1 Supplement, an amount equal to the Issuing Bank’s Pro
Rata Share
[of the lesser
of (i) the amount that Hertz failed to pay under the Series 2008-1
Demand Note (or the amount that the Trustee failed to demand for payment
thereunder); and (ii) the Series 2008-1 Letter of Credit Amount as of
the date hereof;](2)
(1)
If Trustee under the Series 2008-1 Letter of
Credit is other than The Bank of New York Mellon Trust Company, N.A., the name
of such other Trustee is to be inserted.
(2)
Use on any Business Day if no Series 2008-1
Cash Collateral Account has been established and funded as of such date.
B-1
[of the
product of (x) 100% minus the Series 2008-1 Cash Collateral Account
Percentage and (y) the lesser of (i) the amount that Hertz failed to
pay under the Series 2008-1 Demand Note (or the amount that the Trustee
failed to demand for payment thereunder); and (ii) the Series 2008-1
Letter of Credit Amount as of the date hereof;](3)
has been
allocated to making a drawing on the Series 2008-1 Letter of Credit.
3.
Pursuant to
Section[s]
[3.5(b)(iv)] [3.5(c)(iii)](4)
of the Series 2008-1 Supplement, the
Trustee is making a drawing under the Series 2008-1 Letter of Credit in an
amount equal to $ ,
which amount is a Series 2008-1 LOC Unpaid Demand Note Disbursement (the “
Series 2008-1
LOC Unpaid Demand Note Disbursement
”) and is equal to the amount allocated
to making a drawing on the Series 2008-1 Letter of Credit under
Section[s]
[3.5(b)(iv)] [3.5(c)(iii)](5)
of the Series 2008-1 Supplement as
described above. The Series 2008-1
LOC Unpaid Demand Note Disbursement does not exceed the amount that is
available to be drawn by the Trustee under the Series 2008-1 Letter of
Credit on the date of this certificate.
4.
The amount of the
draft shall be delivered pursuant to the following instructions:
[insert
payment instructions (including payment date) for wire to [The Bank of New York
Mellon Trust Company, N.A.](6) as Trustee].
5.
The Trustee
acknowledges that, pursuant to the terms of the Series 2008-1 Letter of
Credit, upon the Issuing Bank honoring the draft accompanying this certificate,
the Series 2008-1 Letter of Credit Amount shall be automatically decreased
by an amount equal to such draft.
(3)
Use on any Business Day if the Series 2008-1
Cash Collateral Account has been established and funded as of such date.
(4)
Use reference to Section 3.5(b)(iv) of
the Series 2008-1 Supplement on any Business Day other than a Business Day
immediately preceding a Legal Final Payment Date and Section 3.5(c)(iii) of
the Series 2008-1 Supplement on the Business Day immediately preceding the
Legal Final Payment Date.
(5)
Use reference to Section 3.5(b)(iv) of
the Series 2008-1 Supplement on any Business Day other than a Business Day
immediately preceding a Legal Final Payment Date and Section 3.5(c)(iii) of
the Series 2008-1 Supplement on the Business Day immediately preceding the
Legal Final Payment Date.
(6)
See footnote 1 above.
B-2
IN WITNESS
WHEREOF, the Trustee has executed and delivered this certificate on this
day of
, .
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[THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.](7),
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as Trustee
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By
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Title:
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(7)
See
footnote 1 above.
B-3
ANNEX C
CERTIFICATE OF PREFERENCE PAYMENT DEMAND
[Issuing Bank’s Address]
Attention:
[Global Loan Operations, Standby Letter of Credit
Unit]
Certificate of
Preference Payment Demand under the Irrevocable Letter of Credit No. [ ]
(the “
Series 2008-1 Letter of Credit
”), dated September [ ], 2008, issued
by[ ],
as the Issuing Bank, in favor of the Trustee.
Capitalized terms not otherwise defined herein shall have the meanings
assigned thereto in the Series 2008-1 Letter of Credit or, if not defined
therein, the Series 2008-1 Supplement (as defined in the Series 2008-1
Letter of Credit).
The
undersigned, a duly authorized officer of the Trustee, hereby certifies to the
Issuing Bank as follows:
1.
[The Bank of New York
Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust
Company, N.A.)](1) is the Trustee under the Series 2008-1 Supplement
referred to in the Series 2008-1 Letter of Credit.
2.
The Trustee has
received a certified copy of the final non-appealable order of the applicable
bankruptcy court requiring the return of a Preference Amount.
4.
Pursuant to
Section [3.5(b)(iv)][3.5(c)(iii)](2)
of the Series 2008-1 Supplement, an amount equal to the Issuing Bank’s Pro
Rata Share of [the lesser of (i) the Preference Amount referred to above
and (ii) the Series 2008-1 Letter of Credit Liquidity Amount as of
the date hereof](3) [the product of (x) 100% minus the Series 2008-1
Cash Collateral Percentage and (y) the lesser of (i) the Preference
Amount referred to
(1)
If Trustee under the Series 2008-1 Letter of
Credit is other than The Bank of New York Mellon Trust Company, N.A., the name
of such other Trustee is to be inserted.
(2)
Use reference to Section 3.5(b)(iv) of
the Series 2008-1 Supplement on any Business Day other than a Business Day
immediately preceding a Legal Final Payment Date and Section 3.5(c)(iii) of
the Series 2008-1 on the Business Day immediately preceding the Legal
Final Payment Date.
(3)
Use if no Series 2008-1 Cash Collateral
Account has been established and funded as of such date.
C-1
above and (ii) the Series 2008-1
Letter of Credit Liquidity Amount as of the date hereof](4) has been allocated
to making a drawing under the Series 2008-1 Letter of Credit.
5.
Pursuant to [
Section 3.5(b)(iv) )][3.5(c)(iii)](5)
of the Series 2008-1 Supplement, the Trustee is making a drawing in the
amount of
$
which amount is a Series 2008-1 LOC Preference Payment Disbursement (the “
Series 2008-1
LOC Preference Payment Disbursement
”) and is equal to the amount allocated
to making a drawing on the Series 2008-1 Letter of Credit under such [
Section 3.5(b)(iv) )][3.5(c)(iii)](6)
of the Series 2008-1 Supplement as described above. The Series 2008-1 LOC Preference Payment
Disbursement does not exceed the amount that is available to be drawn by the
Trustee under the Series 2008-1 Letter of Credit on the date of this
certificate.
6.
The amount of the
draft shall be delivered pursuant to the following instructions:
[insert
payment instructions (including payment date) for wire to [The Bank of New York
Mellon Trust Company, N.A.](7) as Trustee]
7.
The Trustee
acknowledges that, pursuant to the terms of the Series 2008-1 Letter of
Credit, upon the Issuing Bank honoring the draft accompanying this certificate,
the Series 2008-1 Letter of Credit Amount shall be automatically decreased
by an amount equal to such draft.
(4)
Use if the Series 2008-1 Cash Collateral
Account has been established and funded as of such date.
(5)
Use reference to Section 3.5(b)(iv) of
the Series 2008-1 Supplement on any Business Day other than a Business Day
immediately preceding a Legal Final Payment Date and Section 3.5(c)(iii) of
the Series 2008-1 Supplement on the Business Day immediately preceding the
Legal Final Payment Date.
(6)
Use reference to Section 3.5(b)(iv) of
the Series 2008-1 Supplement on any Business Day other than a Business Day
immediately preceding a Legal Final Payment Date and Section 3.5(c)(iii) of
the Series 2008-1 Supplement on the Business Day immediately preceding the
Legal Final Payment Date.
(7)
See footnote 1 above.
C-2
IN WITNESS
WHEREOF, the Trustee has executed and delivered this certificate on this
day of
,
.
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[THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.](8),
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as Trustee
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By
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Title:
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(8)
See
footnote 1 above.
C-3
ANNEX D
CERTIFICATE OF TERMINATION DEMAND
[Issuing Bank’s Address]
Attention:
[Global Loan Operations, Standby Letter of
Credit Unit]
Certificate of
Termination Demand under the Irrevocable Letter of Credit No. [ ]
(the “
Series 2008-1 Letter of Credit
”), dated September [ ],
2008, issued by [ ],
as the Issuing Bank, in favor of the Trustee.
Capitalized terms not otherwise defined herein shall have the meanings
assigned thereto in the Series 2008-1 Letter of Credit Agreement or, if
not defined therein, the Series 2008-1 Supplement (as defined in the Series 2008-1
Letter of Credit).
The
undersigned, a duly authorized officer of the Trustee, hereby certifies to the
Issuing Bank as follows:
1.
[The Bank of New York
Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust
Company, N.A.)](27) is the Trustee under the Series 2008-1 Supplement
referred to in the Series 2008-1 Letter of Credit.
2.
[Pursuant to
Section 3.9(b)
of
the Series 2008-1 Supplement, an amount equal to the Issuing Bank’s Pro
Rata Share of the lesser of (x) the greatest of (A) the excess, if
any, of the Series 2008-1 Required Enhancement Amount over the Series 2008-1
Adjusted Enhancement Amount, excluding the Series 2008-1 Letter of Credit
but taking into account any substitute Series 2008-1 Letter of Credit
which has been obtained from a Series 2008-1 Eligible Letter of Credit
Provider and is in full force and effect on such date, (B) the excess, if
any, of the Series 2008-1 Required Liquidity Amount over the Series 2008-1
Adjusted Liquidity Amount, excluding the Series 2008-1 Letter of Credit
but taking into account each substitute Series 2008-1 Letter of Credit
which has been obtained from a Series 2008-1 Eligible Letter of Credit
Provider and is in full force and effect on such date, and (C) the excess,
if any, of the Series 2008-1 Demand Note Payment Amount over the Series 2008-1
Letter of Credit Liquidity Amount, excluding the Series 2008-1 Letter of
Credit but taking into account each substitute Series 2008-1 Letter of
Credit which has been obtained from a Series 2008-1 Eligible Letter of
Credit Provider, and is in full force and effect on such date, and (y) the
amount available to be
(27)
If Trustee under the Series 2008-1 Letter of
Credit is other than The Bank of New York Mellon Trust Company, N.A., the name
of such other Trustee is to be inserted.
D-1
drawn on the expiring Series 2008-1
Letter of Credit on such date has been allocated to making a drawing under the Series 2008-1
Letter of Credit.](28)
[The Trustee
has not received the notice required from the Administrator pursuant to
Section 3.9(b)
of the Series 2008-1 Supplement on or prior to the date that is fifteen (15) Business Days prior to each Series 2008-1 Letter of Credit
Expiration Date. As such,
pursuant to such
Section 3.9(b)
of the Series 2008-1
Supplement, the Trustee is making a drawing for the full amount of the Series 2008-1
Letter of Credit.](29)
[Pursuant to
Section 3.9(c)
of the Series 2008-1 Supplement, an amount equal to the lesser of (i) the greatest of (A) the
excess, if any, of the Series 2008-1 Required Enhancement Amount over the Series 2008-1
Adjusted Enhancement Amount, excluding the available amount under the Series 2008-1
Letter of Credit, on such date, (B) the excess, if any, of the Series 2008-1
Required Liquidity Amount over the Series 2008-1 Adjusted Liquidity
Amount, excluding the available amount under the Series 2008-1 Letter of
Credit, on such date, and (C) the excess, if any, of the Series 2008-1
Demand Note Payment Amount over the Series 2008-1 Letter of Credit
Liquidity Amount, excluding the available amount under the Series 2008-1
Letter of Credit, on such date, and (ii) the amount available to be drawn
on the Series 2008-1 Letter of Credit on such date has been allocated to
making a drawing under the Series 2008-1 Letter of Credit.](30)
3.
[Pursuant to
Section [3.9(b)
](31)
[
3.9(c)
](32) of the Series 2008-1 Supplement, the Trustee is making
a drawing in the amount of $
which is a Series 2008-1 LOC Termination Disbursement (the “
Series 2008-1
LOC Termination Disbursement
”) and is equal to the amount allocated to
making a drawing on the Series 2008-1 Letter of Credit under such
Section [3.9
(b)
](33)
[3.9(c)
](34) of the Series 2008-1 Supplement as
described above. The Series 2008-1
LOC Termination Disbursement does not exceed the
(28)
Use in case of an expiring Series 2008-1 Letter
of Credit.
(29)
Use if Administrator does not provide the Trustee
with notices required under Section 3.9(b) of the Series 2008-1
Supplement with respect to an expiring Series 2008-1 Letter of Credit.
(30)
Use in case of Issuing Bank being subject to a Series 2008-1
Downgrade Event.
(31)
Use in case of an expiring Series 2008-1 Letter
of Credit.
(32)
Use in case of a Series 2008-1 Letter of Credit
Provider being subject to a Downgrade Event.
(33)
Use in case of an expiring Series 2008-1 Letter
of Credit.
(34)
Use in case of a Series 2008-1 Letter of Credit
Provider being subject to a Downgrade Event.
D-2
amount that is available to be drawn by the
Trustee under the Series 2008-1 Letter of Credit on the date of this
certificate.
4.
The amount of the
draft shall be delivered pursuant to the following instructions:
[insert
payment instructions (including payment date) for wire to [The Bank of New York
Mellon Trust Company, N.A.](35) as Trustee]
(35)
See footnote 1 above.
D-3
5.
The Trustee
acknowledges that, pursuant to the terms of the Series 2008-1 Letter of
Credit, upon the Issuing Bank honoring the draft accompanying this certificate,
the Series 2008-1 Letter of Credit Amount shall be automatically reduced
to zero and the Series 2008-1 Letter of Credit shall terminate and be
immediately returned to the Issuing Bank.
IN WITNESS
WHEREOF, the Trustee has executed and delivered this certificate on this
day of
,
.
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[THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.](36),
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as Trustee
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By
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Title:
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(36)
See footnote 1 above
D-4
ANNEX E
CERTIFICATE OF REINSTATEMENT
OF LETTER OF CREDIT AMOUNT
[Issuing Bank’s Address]
Attention:
[Global Loan Operations, Standby Letter of Credit
Unit]
Certificate of
Reinstatement of Letter of Credit Amount under the Irrevocable Letter of Credit
No. [ ]
(the “
Series 2008-1 Letter of Credit
”), dated September [ ], 2008, issued by
[
], as the Issuing Bank, in favor of [The Bank of New York Mellon Trust Company,
N.A. (formerly known as The Bank of New York Trust Company, N.A.), a New York
banking corporation] (37), as Trustee (in such capacity, the “
Trustee
”)
under the Series 2008-1 Supplement and the Base Indenture. Capitalized terms not otherwise defined
herein shall have the meanings assigned thereto in the Series 2008-1
Letter of Credit.
The
undersigned, a duly authorized officer of The Hertz Corporation (“
Hertz
”),
hereby certifies to the Issuing Bank as follows:
1.
As of the date of
this certificate, the Issuing Bank has been reimbursed by Hertz in the amount
of $[ ]
(the “
Reimbursement Amount
”) in respect of the [Credit Demand] [Unpaid
Demand Note Demand] made on
,
.
2.
The Reimbursement
Amount was paid to the Issuing Bank prior to payment in full of the Series 2008-1
Notes (as defined in the Series 2008-1 Supplement).
3.
Hertz hereby notifies
you that, pursuant to the terms and conditions of the Series 2008-1 Letter
of Credit, the Series 2008-1 Letter of Credit Amount of the Issuing Bank
is hereby reinstated in the amount of $[
]
so that the Series 2008-1 Letter of Credit Amount of the Issuing Bank
after taking into account such reinstatement is in amount equal to $[
].
4.
As of the date of
this certificate, no Event of Bankruptcy with respect to Hertz has occurred and
is continuing. “
Event of Bankruptcy
”
with respect to Hertz means (a) a case or other proceeding shall be
commenced, without the application or consent of Hertz, in any court, seeking
the liquidation, reorganization, debt arrangement, dissolution, winding up, or
composition or readjustment of debts of Hertz, the appointment of a trustee,
receiver, custodian, liquidator, assignee, sequestrator or the like
(37)
If the Trustee
under the Series 2008-1 Letter of Credit is other than The Bank of New
York Mellon Trust Company, N.A., the name of such other Trustee is to be
inserted.
E-1
for Hertz or all or any substantial part of
its assets, or any similar action with respect to Hertz under any law relating
to bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, and any such case or proceeding shall continue
undismissed, or unstayed and in effect, for a period of 60 consecutive days; or
an order for relief in respect of Hertz shall be entered in an involuntary case
under the federal bankruptcy laws or any other similar law now or hereafter in
effect; or (b) Hertz shall commence a voluntary case or other proceeding
under any applicable bankruptcy, insolvency, reorganization, debt arrangement,
dissolution or other similar law now or hereafter in effect, or shall consent
to the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) for Ford or for
any substantial part of its property, or shall make any general assignment for
the benefit of creditors; or (c) Hertz or its board of directors shall
vote to implement any of the actions set forth in the preceding clause (b).
IN WITNESS WHEREOF, Hertz has executed and
delivered this certificate on this
day
of ,
.
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THE HERTZ
CORPORATION
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By
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Title:
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E-2
Acknowledged and Agreed:
The undersigned hereby acknowledges receipt of the Reimbursement Amount
(as defined above) in the amount set forth above and agrees that the
undersigned’s Series 2008-1 Letter of Credit Amount is in an amount equal
to
$
as of this day of
,
200 after taking into account the reinstatement of the Series 2008-1
Letter of Credit Amount by an amount equal to the Reimbursement Amount.
E-3
ANNEX F
INSTRUCTION TO TRANSFER
[Issuing Bank’s Address]
Attention:
Standby
Letter of Credit Department
Re:
Irrevocable Letter of Credit No. [ ]
Ladies and Gentlemen:
For value
received, the undersigned beneficiary hereby irrevocably transfers to:
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[Name of Transferee]
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[Issuing Bank’s Address]
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all rights of the undersigned beneficiary to draw under the
above-captioned Letter of Credit (the “
Series 2008-1 Letter of Credit
”)
issued by the Issuing Bank named therein in favor of the undersigned. The transferee has succeeded the undersigned
as Trustee under the Base Indenture and the Series 2008-1 Supplement (as
defined in the Series 2008-1 Letter of Credit).
By this
transfer, all rights of the undersigned beneficiary in the Series 2008-1
Letter of Credit are transferred to the transferee and the transferee shall
hereafter have the sole rights as beneficiary thereof;
provided
,
however
,
that no rights shall be deemed to have been transferred to the transferee until
such transfer complies with the requirements of the Series 2008-1 Letter
of Credit pertaining to transfers.
F-1
The Series 2008-1
Letter of Credit is returned herewith and in accordance therewith we ask that
this transfer be effective and that the Issuing Bank transfer the Series 2008-1
Letter of Credit to our transferee and that the Issuing Bank endorse the Series 2008-1
Letter of Credit returned herewith in favor of the transferee or, if requested
by the transferee, issue a new irrevocable letter of credit in favor of the
transferee with provisions consistent with the Series 2008-1 Letter of
Credit.
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Very truly
yours,
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[THE BANK OF
NEW YORK MELLON
TRUST COMPANY, N.A.],(38)
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as Trustee
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By
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Name:
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Title:
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By
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Name:
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Title:
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(38)
If the Trustee under the
Series 2008-1 Letter of Credit is other than The Bank of New York Mellon
Trust Company, N.A., the name of such other Trustee is to be inserted.
F-2
ANNEX G
NOTICE OF REDUCTION OF SERIES 2008-1 LETTER OF CREDIT
AMOUNT
[Issuing Bank’s Address]
Attention:
[Global Loan Operations, Standby Letter of
Credit Unit]
Notice of
Reduction of Series 2008-1 Letter of Credit Amount under the Irrevocable
Letter of Credit No. [ ]
(the “
Series 2008-1 Letter of Credit
”), dated September [ ], 2008, issued by
[ ],
as the Issuing Bank, in favor of [The Bank of New York Mellon Trust Company,
N.A. (formerly known as The Bank of New York Trust Company, N.A.)](39), as the
Trustee. Capitalized terms not otherwise
defined herein shall have the meanings assigned thereto in the Series 2008-1
Letter of Credit.
The
undersigned, a duly authorized officer of the Trustee, hereby notifies the
Issuing Bank as follows:
1.
The Trustee has
received a notice pursuant to the Series 2008-1 Letter of Credit Agreement
authorizing it to request a reduction of the Series 2008-1 Letter of
Credit Amount to $ and
is delivering this notice in accordance with the terms of the Series 2008-1
Letter of Credit Agreement.
2.
The Issuing Bank
acknowledges that the aggregate maximum amount of the Series 2008-1 Letter
of Credit is reduced to $ from
$ pursuant
to and in accordance with the terms and provisions of the Series 2008-1
Letter of Credit and that the reference in the first paragraph of the Series 2008-1
Letter of Credit to “ ($ )”
is amended to read “ ($ ).
3.
This request, upon
your acknowledgment set forth below, shall constitute an amendment to the Series 2008-1
Letter of Credit and shall form an integral part thereof and confirms that all
other terms of the Series 2008-1 Letter of Credit remain unchanged.
4.
The Issuing Bank is
requested to execute and deliver its acknowledgment and agreement to this
notice to the Trustee in the manner provided in Section [2.1(a)] of the Series 2008-1
Letter of Credit Agreement.
(39)
If Trustee under the Series 2008-1 Letter of
Credit is other than The Bank of New York Mellon Trust Company, N.A., the name
of such other Trustee is to be inserted.
G-1
IN WITNESS
WHEREOF, the Trustee has executed and delivered this certificate on this
day of
,
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[THE BANK OF
NEW YORK MELLON
TRUST COMPANY, N.A.](40),
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as Trustee
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By:
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Title:
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ACKNOWLEDGED
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THIS DAY
OF ,
200 :
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[
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By:
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Name:
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Title:
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(40)
See footnote 1 above.
G-2
ANNEX H
NOTICE OF INCREASE OF SERIES 2008-1 LETTER OF CREDIT
AMOUNT
[The Bank of New York Mellon Trust Company, N.A.]
(41),
as Trustee under
the
Series 2008-1 Supplement
referred to below
2 North LaSalle Street
Chicago, Illinois 60602
Attention:
Corporate
Trust Administration—Structured Finance
Notice of
Increase of Series 2008-1 Letter of Credit Amount under the Irrevocable
Letter of Credit No. [
] (the “
Series 2008-1 Letter of Credit
”), dated September [ ], 2008, issued
by[ ],
as the Issuing Bank, in favor of [The Bank of New York Mellon Trust Company,
N.A. (formerly known as The Bank of New York Trust Company, N.A.)](42), as the
Trustee. Capitalized terms not otherwise
defined herein shall have the meanings assigned thereto in the Series 2008-1
Letter of Credit.
The undersigned,
duly authorized officers of the Issuing Bank, hereby notify the Trustee as
follows:
1.
The Issuing Bank has
received a request from
[ ]
to increase the Series 2008-1 Letter of Credit Amount by $ ,
which increase shall not result in the Series 2008-1 Letter of Credit
Amount exceeding an amount equal to [ ]
Dollars ($[ ]).
2.
Upon your
acknowledgment set forth below, the aggregate maximum amount of the Series 2008-1
Letter of Credit is increased to $ from
$
pursuant to and in accordance with the terms and provisions of the Series 2008-1
Letter of Credit and that the reference in the first paragraph of the Series 2008-1
Letter of Credit to “
($ )”
is amended to read “ ($ )”.
3.
This notice, upon
your acknowledgment set forth below, shall constitute an amendment to the Series 2008-1
Letter of Credit and shall form an integral part thereof and confirms that all
other terms of the Series 2008-1 Letter of Credit remain unchanged.
(41)
If Trustee
under the Series 2008-1 Letter of Credit is other than The Bank of New
York Mellon Trust Company, N.A., the name of such other Trustee is to be
inserted.
(42)
See footnote 1 above.
4.
The Trustee is
requested to execute and deliver its acknowledgment and acceptance to this
notice to the Issuing Bank, in the manner provided in Section 2.1(a) of
the Series 2008-1 Letter of Credit Agreement.
IN WITNESS WHEREOF, the Issuing Bank has
executed and delivered this certificate on this day
of
,
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[BANK]
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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ACKNOWLEDGED AND AGREED TO
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THIS
DAY OF ,
200 :
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[THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A.]
(43),
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as
Trustee
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By:
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Name:
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Title:
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(43)
See footnote 1 above.
2
EXHIBIT C
TO SERIES
2008-1 SUPPLEMENT
FORM OF LEASE PAYMENT
DEFICIT NOTICE
The Bank of New York Mellon Trust Company, N.A., as Trustee
2 North LaSalle Street
Chicago, Illinois 60602
Attn: Corporate Trust
Administration—Structured Finance
[ ]
,
200
Ladies and Gentlemen:
This Lease Payment Deficit Notice is
delivered to you pursuant to
Section 3.3(b)
of the Series 2008-1
Supplement, dated as of September 12, 2008, to the Second Amended and
Restated Base Indenture, dated as of August 1, 2006, as amended, between
Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust
Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.), as
Trustee and Securities Intermediary, by The Hertz Corporation, as Administrator. Terms used herein have the meanings provided
in the Series 2008-1 Supplement.
Pursuant to Section 3.3(b) of the Series 2008-1
Supplement, The Hertz Corporation, in its capacity as Administrator under the
Related Documents, hereby provides notice of a Series 2008-1 Lease Payment
Deficit in the amount of $
(consisting of a Series 2008-1 Lease Interest Payment Deficit in the
amount of $
and a Series 2008-1 Lease Principal Payment Deficit in the amount of $ ).
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THE HERTZ CORPORATION
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By:
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Name:
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Title:
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EXHIBIT D
TO
SERIES 2008-1 SUPPLEMENT
FORM OF REDUCTION NOTICE REQUEST
SERIES 2008-1 LETTER OF CREDIT
The Bank of New York Mellon Trust Company, N.A.,
as Trustee under the
Series 2008-1 Supplement
referred to below
2 North LaSalle Street
Chicago, Illinois 60602
Attention: Corporate Trust Administration—Structured Finance
Request for
reduction of the stated amount of the Series 2008-1 Letter of Credit under
the Series 2008-1 Letter of Credit Agreement, dated as of [ ],
(as amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof as of the date hereof, the “
Letter of Credit
Agreement
”), between The Hertz Corporation (“
Hertz
”) and [ ],
as the Issuing Bank.
The
undersigned, duly authorized officers of Hertz, hereby certify to The Bank of
New York Mellon Trust Company, N.A. (formerly known as The Bank of New York
Trust Company, N.A.), in its capacity as the Trustee (the “
Trustee
”)
under the Series 2008-1 Supplement referred to in the Letter of Credit
Agreement (the “
Series 2008-1 Supplement
”) as follows:
1. The Series 2008-1 Letter of
Credit Amount and the Series 2008-1 Letter of Credit Liquidity Amount as
of the date of this request prior to giving effect to the reduction of the
stated amount of the Series 2008-1 Letter of Credit requested in paragraph
2 of this request are $
and $ ,
respectively.
2. The Trustee is hereby requested
pursuant to Section 3.9(d) of the Series 2008-1 Series Supplement
to execute and deliver to the Series 2008-1 Letter of Credit Provider a
Notice of Reduction substantially in the form of Annex G to the Series 2008-1
Letter of Credit (the “
Notice of Reduction
”) for a reduction (the “
Reduction
”)
in the stated amount of the Series 2008-1 Letter of Credit by an amount
equal to $ .
The Trustee is requested to execute and deliver the Notice of Reduction
promptly following its receipt of this request, and in no event more than two (2) Business
Days following the date of its receipt of this request (as required pursuant to
Section 3.9(d) of the Series 2008-1 Series Supplement), and
to provide for the reduction pursuant to the Notice of Reduction to be as of ,
. The undersigned understands that the
Trustee will be relying on the contents hereof.
The undersigned further understands that the Trustee shall not be liable
to the undersigned for any failure to transmit (or any
delay in transmitting) the Notice of
Reduction (including any fees and expenses attributable to the stated amount of
the Series 2008-1 Letter of Credit not being reduced in accordance with
this paragraph) to the extent such failure (or delay) does not result from the
gross negligence or willful misconduct of the Trustee.
3. To the best of the knowledge of the
undersigned, the Series 2008-1 Letter of Credit Amount and the Series 2008-1
Letter of Credit Liquidity Amount will be $
and $ ,
respectively, as of the date of the reduction (immediately after giving effect
to such reduction) requested in paragraph 2 of this request.
4. The undersigned acknowledges and
agrees that each of (a) the execution and delivery of this request by the
undersigned, (b) the execution and delivery by the Trustee of a Notice of
Reduction of the stated amount of the Series 2008-1 Letter of Credit,
substantially in the form of Annex G to the Series 2008-1 Letter of
Credit, and (c) the Series 2008-1 Letter of Credit Provider’s
acknowledgment of such notice constitutes a representation and warranty to the Series 2008-1
Letter of Credit Provider and the Trustee (i) by the undersigned that each
of the statements set forth in the Series 2008-1 Letter of Credit
Agreement is true and correct and (ii) by the undersigned, in its capacity
as Administrator under the Series 2008-1 Supplement, that (A) the Series 2008-1
Adjusted Enhancement Amount will equal or exceed the Series 2008-1
Required Enhancement Amount, (B) the Series 2008-1 Adjusted Liquidity
Amount will equal or exceed the Series 2008-1 Required Liquidity Amount
and (C) the Series 2008-1 Letter of Credit Liquidity Amount will
equal or exceed the Series 2008-1 Demand Note Payment Amount.
5. The undersigned agrees that if on
or prior to the date as of which the stated amount of the Series 2008-1
Letter of Credit is reduced by the amount set forth in paragraph 2 of this
request the undersigned obtains knowledge that any of the statements set forth
in this request is not true and correct or will not be true and correct after
giving effect to such reduction, the undersigned shall immediately so notify
the Series 2008-1 Letter of Credit Provider and the Trustee by telephone
and in writing by telefacsimile in the manner provided in the Letter of Credit
Agreement and the request set forth herein to reduce the stated amount of the Series 2008-1
Letter of Credit shall be deemed canceled upon receipt by the Series 2008-1
Letter of Credit Provider of such notice in writing.
6. Capitalized terms used herein and
not defined herein have the meanings set forth in the Series 2008-1
Supplement.
2
IN WITNESS
WHEREOF, The Hertz Corporation has executed and delivered this request on this
day of , .
THE HERTZ CORPORATION
3
EXHIBIT E
TO
SERIES 2008-1 SUPPLEMENT
FORM OF PURCHASER’S LETTER
The Bank of New York Mellon Trust Company, N.A.,
as Registrar
2 North LaSalle Street
Chicago, Illinois 60602
Attention: Corporate Trust Administration—Structured Finance
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Re:
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Hertz Vehicle Financing LLC
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Series 2008-1 Rental Car Asset Backed Notes
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Reference is
made to the Series 2008-1 Supplement, dated as of September 12, 2008
(as from time to time amended, supplemented or otherwise modified in accordance
with the terms thereof, the “
Series 2008-1 Supplement
”), between
Hertz Vehicle Financing LLC, as Issuer (“
HVF
”), and The Bank of New York
Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust
Company, N.A.), as trustee (the “
Trustee
”), to the Second Amended and
Restated Base Indenture, dated as of August 1, 2006 (as from time to time
amended, supplemented or otherwise modified in accordance with the terms
thereof, the “
Base Indenture
”), between HVF and the Trustee. Capitalized terms used herein and not defined
herein shall have the meanings given to them in the Series 2008-1
Supplement.
In connection
with a proposed purchase of certain Series 2008-1 Notes from [ ]
by the undersigned, the undersigned hereby represents and warrants that:
(1) it
has had an opportunity to discuss HVF’s and the Administrator’s business,
management and financial affairs, and the terms and conditions of the proposed
purchase, with HVF and the Administrator and their respective representatives;
(2) it
is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act and has sufficient knowledge
and experience in financial and business matters to be capable of evaluating
the merits and risks of investing in, and is able and prepared to bear the
economic risk of investing in, the Series 2008-1 Notes;
(3) it
is purchasing the Series 2008-1 Notes for its own account, or for the
account of one or more “accredited investors” within the meaning of Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act that meet
the criteria described in
subsection (b)
and for which it is acting
with complete
investment discretion, for investment purposes only and not with a view
to distribution, subject, nevertheless, to the understanding that the
disposition of its property shall at all times be and remain within its
control;
(4) it
understands that the Series 2008-1 Notes have not been and will not be
registered or qualified under the Securities Act or any applicable state
securities laws or the securities laws of any other jurisdiction and is being
offered only in a transaction not involving any public offering within the
meaning of the Securities Act and may not be resold or otherwise transferred
unless so registered or qualified or unless an exemption from registration or
qualification is available, that HVF is not required to register the Series 2008-1
Notes, and that any transfer must comply with provisions of Section 2.8 of
the Base Indenture;
(5) it
understands that the Series 2008-1 Notes will bear the legend set out in
the form of Series 2008-1 Notes attached as Exhibit A to the Series 2008-1
Supplement and be subject to the restrictions on transfer described in such
legend;
(6) it
will comply with all applicable federal and state securities laws in connection
with any subsequent resale of the Series 2008-1 Notes;
(7) it
understands that the Series 2008-1 Notes may be offered, resold, pledged
or otherwise transferred only with HVF’s prior written consent, which consent
shall not be unreasonably withheld, and only (A) to HVF, (B) in a
transaction meeting the requirements of Rule 144A under the Securities
Act, (C) outside the United States to a foreign person in a transaction
meeting the requirements of Regulation S under the Securities Act, or (D) in
a transaction complying with or exempt from the registration requirements of
the Securities Act and in accordance with any applicable securities laws of any
state of the United States or any other jurisdiction; notwithstanding the
foregoing, it is hereby understood and agreed by HVF that (i) in the case
of each Investor Group with respect to which there is a Conduit Investor, the Series 2008-1
Notes will be pledged by each Conduit Investor pursuant to its related
commercial paper program documents, and the Series 2008-1 Notes, or
interests therein, may be sold, transferred or pledged to the related Committed
Note Purchaser or any Program Support Provider or any Affiliate of its related
Committed Note Purchaser or any Program Support Provider or, any commercial
paper conduit administered by its related Committed Note Purchaser or any
Program Support Provider or any affiliate of its related Committed Note
Purchaser or any Program Support Provider and (ii) in the case of each
Investor Group, the Series 2008-1 Notes, or interests therein, may be
sold, transferred or pledged to the related Committed Note Purchaser or any
Program Support Provider or any affiliate of its related Committed Note
Purchaser or any Program Support Provider or, any commercial paper conduit
administered by its related Committed Note Purchaser or any Program Support
Provider or any affiliate of its related Committed Note Purchaser or any
Program Support Provider;
2
(8) if
it desires to offer, sell or otherwise transfer, pledge or hypothecate the Series 2008-1
Notes as described in
clause (B)
or
(D)
of
Section 6.03(g)
of
the Series 2008-1 Note Purchase Agreement
, and such sale, transfer or pledge does not fall within the “notwithstanding
the foregoing” provision of
Section 6.03(g)
of the Series 2008-1
Note Purchase Agreement, the transferee
of the Series 2008-1 Notes will be required to deliver a certificate, as
described in the Series 2008-1 Supplement, that an exemption from the
registration requirements of the Securities Act applies to such offer, sale,
transfer or hypothecation. Upon original
issuance thereof, and until such time as the same may no longer be required
under the applicable requirements of the Securities Act, the certificate
evidencing the Series 2008-1 Notes (and all securities issued in exchange
therefor or substitution thereof) shall bear a legend substantially in the form
set forth in the Series 2008-1 Notes included as an exhibit to the Series 2008-1
Supplement. The undersigned understands
that the registrar and transfer agent for the Series 2008-1 Notes will not
be required to accept for registration of transfer the Series 2008-1 Notes
acquired by it, except upon presentation of an executed letter in the form
required by the Series 2008-1 Supplement; and
(9)
it
will obtain from any purchaser of the Series 2008-1 Notes substantially
the same representations and warranties contained in the foregoing paragraphs.
This
certificate and the statements contained herein are made for your benefit and
for the benefit of HVF.
cc: Hertz Vehicle Financing LLC
3
EXHIBIT F-1
TO
SERIES 2008-1 SUPPLEMENT
FORM OF MONTHLY NOTEHOLDERS’
STATEMENT
HERTZ VEHICLE FINANCING LLC
$[825,000,000] Series 2008-1 Variable
Funding Rental Car Asset Backed Notes
The
undersigned, Authorized Officers of The Hertz Corporation (“
Hertz
”),
pursuant to each of (i) the Second Amended and Restated Master Motor Vehicle
Operating Lease and Servicing Agreement, dated as of August 1, 2006, as amended
(as such agreement may be further amended, supplemented, restated or otherwise
modified from time to time in accordance with its terms, the “
HVF Lease
”)
between Hertz Vehicle Financing LLC (“
HVF
”), as Lessor, and Hertz, as
Lessee and Servicer, (ii) the Amended and Restated Administration Agreement,
dated as of December 21, 2005 (as such agreement may be amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms,
the “
Administration Agreement
”) among HVF, The Bank of New York Mellon
Trust Company, N.A. (formerly known as The Bank of New York Trust Company,
N.A.), and Hertz as Administrator and (iii) the Second Amended and Restated
Base Indenture, dated as of August 1, 2006, as amended, between HVF and The
Bank of New York Mellon Trust Company, N.A., as trustee (the “
Trustee
”)
and securities intermediary, as supplemented by the Series 2008-1 Supplement
thereto, dated as of September 12, 2008 (as such supplement may be further
amended, supplemented, restated or otherwise modified from time to time in
accordance with its terms, the “
Series 2008-1 Supplement
”) (as such
agreement may be amended, supplemented, restated or otherwise modified from
time to time in accordance with its terms, the “
Second Amended and Restated
Base Indenture
”), do hereby certify to the best of their knowledge after
reasonable investigation that:
Unless
otherwise defined herein, capitalized terms used herein have the respective
meanings set forth in the Second Amended and Restated Base Indenture. This
statement is delivered pursuant to
Section 1(a)(J)
of the
Administration Agreement and
Section 6.2
of the Series 2008-1
Supplement.
(a) Hertz is the Servicer under the HVF
Lease and the Administrator under the Administration Agreement.
(b) The undersigned are Authorized
Officers of Hertz.
(c) The date of this statement is a
Determination Date under the Second Amended and Restated Base Indenture. The
first Payment Date after the date of this statement is the “Applicable Payment
Date”.
(d) The attached
Schedule I
(including
Annex A
attached thereto) forms and constitutes an integral
part of this statement.
(e) No event which constitutes an
Operating Lease Event of Default or Potential Operating Lease Event of Default
under the HVF Lease has occurred or is continuing as of the date hereof except
as follows: [set forth in detail the (i) nature of each such Operating
Lease Event of Default or Potential Operating Lease Event of Default, (ii) action
taken by the Lessee, if any, to remedy each such Operating Lease Event of
Default or Potential Operating Lease Event of Default and (iii) current
status of each such Operating Lease Event of Default or Potential Operating
Lease Event of Default]. [If applicable, insert “None”.]
(f) [No Amortization Event or Potential
Amortization Event has occurred with respect to the Series 2008-1 Notes
during the Related Month] [An Amortization Event or Potential Amortization
Event with respect to the Series 2008-1 Notes did occur on ]. [If applicable, set forth in detail the (i) nature
of such Amortization Event or Potential Amortization Event, (ii) action,
if any, taken by HVF to remedy such Amortization Event or Potential
Amortization Event, and (iii) current status of such Amortization Event or
Potential Amortization Event.]
IN WITNESS
WHEREOF, the undersigned have executed and delivered this certificate this
day of , .
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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2
EXHIBIT F-2
TO
SERIES 2008-1 SUPPLEMENT
FORM OF WEEKLY NOTEHOLDERS’
STATEMENT
HERTZ VEHICLE FINANCING LLC
$[825,000,000] Series 2008-1 Variable
Funding Rental Car Asset Backed Notes
The
undersigned, Authorized Officers of [The Hertz Corporation (“
Hertz
”)]*
[HVF]†, pursuant to each of (i) the Second Amended and Restated Master
Motor Vehicle Operating Lease and Servicing Agreement, dated as of August 1,
2006, as amended (as such agreement may be further amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms,
the “
HVF Lease
”) between Hertz Vehicle Financing LLC (“
HVF
”), as
Lessor, and Hertz, as Lessee and Servicer, (ii) the Amended and Restated
Administration Agreement, dated as of December 21, 2005 (as such agreement
may be amended, supplemented, restated or otherwise modified from time to time
in accordance with its terms, the “
Administration Agreement
”) among HVF,
The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of
New York Trust Company, N.A.), and Hertz as Administrator and (iii) the
Second Amended and Restated Base Indenture, dated as of August 1, 2006, as
amended, between HVF and The Bank of New York Mellon Trust Company, N.A., as
trustee (the “
Trustee
”) and securities intermediary, as supplemented by
the Series 2008-1 Supplement thereto, dated as of September 12, 2008
(as such supplement may be further amended, supplemented, restated or otherwise
modified from time to time in accordance with its terms, the “
Series 2008-1
Supplement
”) (as such agreement may be amended, supplemented, restated or
otherwise modified from time to time in accordance with its terms, the “
Second
Amended and Restated Base Indenture
”), do hereby certify to the best of
their knowledge after reasonable investigation that:
Unless
otherwise defined herein, capitalized terms used herein have the respective
meanings set forth in the Second Amended and Restated Base Indenture, or, if
not defined therein, in the Series 2008-1 Supplement. This statement is
delivered
* Use if delivered by the Administrator.
† Use if delivered by HVF
[pursuant to
Section 1(a)(J)
of
the Administration Agreement]* [and]
Section 6.2
of the Series 2008-1
Supplement.
(a) Hertz is the Servicer under the HVF
Lease and the Administrator under the Administration Agreement.
(b) The undersigned are Authorized
Officers of [Hertz]* [HVF]†.
(c) The attached
Schedule I
(including
Annex A
attached thereto) forms and constitutes an integral
part of this statement.
IN WITNESS
WHEREOF, the undersigned have executed and delivered this certificate this
day of ,
.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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* Use if delivered by the Administrator
† Use if delivered by HVF
2
EXHIBIT
G-2
TO
SERIES 2008-1 SUPPLEMENT
FORM OF DEMAND NOTICE
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
AS TRUSTEE
, 20
The Hertz Corporation
225 Brae Boulevard
Park Ridge, NJ 07656
Attn: Treasury Department
This Demand Notice is being delivered to you pursuant
to [
Section 3.5(b)(iii)]
[
Section 3.5(c)(ii)
] of that
certain Series 2008-1 Supplement, dated as of September 12, 2008 (the “
Series 2008-1
Supplement
”), between Hertz Vehicle Financing LLC (“
HVF
”) and The Bank
of New York Mellon Trust Company, N.A. (formerly known as The Bank of New York
Trust Company, N.A.), as Trustee (the “
Trustee
”). Capitalized terms used but not defined in
this Demand Note shall have the respective meanings assigned to them in the Series 2008-1
Supplement.
Demand is hereby made for payment in the amount of
$[ ] in immediately
available funds by wire transfer to the account set forth below:
Account bank: [ ]
Account name: [ ]
ABA routing number: [ ]
Reference: [ ]
EXHIBIT G-2
TO
SERIES 2008-1 SUPPLEMENT
FORM OF SERIES 2008-1 DEMAND NOTE
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$[ ]
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New York, New York
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September 12, 2008
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FOR VALUE
RECEIVED, the undersigned, THE HERTZ CORPORATION, a Delaware corporation (“
Hertz
”),
promises to pay to the order of HERTZ VEHICLE FINANCING LLC, a Delaware limited
liability company (“
HVF
”), on any date of demand (the “
Demand Date
”)
the principal sum of
$[ ].
Definitions
. Capitalized terms used but not defined in
this Demand Note shall have the respective meanings assigned to them in the
Second Amended and Restated Base Indenture, dated as of August 1, 2006, as
amended (as the same may be further amended, supplemented, amended and restated
or otherwise modified from time to time in accordance with the terms thereof,
the “Base Indenture”), between HVF and The Bank of New York Mellon Trust
Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.), a
national banking association (in such capacity, the “Trustee”), and the Series 2008-1
Supplement thereto dated as of September 12, 2008 (as the same may be
amended, supplemented, amended and restated or otherwise modified from time to
time in accordance with the terms thereof, the “Series 2008-1 Supplement”)
between HVF and the Trustee.
Principal
Payment Date
.
Any unpaid principal of this Demand Note shall be paid on each Demand
Date to the extent demand is made therefor.
No portion of the outstanding principal amount of this Demand Note may
be voluntarily prepaid.
Interest
. Interest shall be paid on the weighted
average principal balance outstanding during each Interest Period at the Demand
Note Rate on the Payment Date for the period from and including the prior
Payment Date, or in the case of the first Payment Date, the date of this Demand
Note, to but excluding such Payment Date (each period an “Interest Period”). Interest on the loan shall be calculated
based on the actual number of days elapsed in each Interest Period and a year
consisting of 360 days. The “Demand Note
Rate” means the London Interbank Offered Rate (LIBOR) appearing on Reuters
Screen LIBOR01 (or on any successor or substitute page of such service or
any successor to or substitute for such screen, providing rate quotations
comparable to those currently provided on such page of such screen) at
approximately 11:00 a.m., London time, as the rate for dollar deposits
with a one-month maturity that is effective on the Payment Date. The “Payment Date” means the 25th day of each
month, or if such date is not a Business Day, the next succeeding Business Day,
commencing on October 25, 2008. “Business
Day” means any day other than a Saturday, Sunday or other day on which banks
are authorized or required by law to be closed in New York City, New York. The maker and endorser waives presentment for
payment, protest and notice of dishonor and nonpayment of this Demand Note. The receipt of interest in advance or the
extension of time shall not relinquish or discharge any endorser of this Demand
Note.
No Waiver,
Amendment
. No
failure or delay on the part of HVF in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Demand Note shall in any event be effective unless (a) the same
shall be in writing and signed and delivered by each of Hertz, HVF and the
Trustee and (b) all consents required for such actions under any material
contracts or agreements of either Hertz or HVF shall have been received by the
appropriate Persons.
Payments
. All payments shall be made in lawful money of
the United States of America by wire transfer in immediately available funds
and shall be applied first to fees and costs, including collection costs, if
any, next to interest and then to principal.
Payments shall be made to the account designated in the written demand
for payment.
Collection
Costs
. Hertz
agrees to pay all costs of collection of this Demand Note, including, without
limitation, reasonable attorney’s fees, paralegal’s fees and other legal costs
(including court costs) incurred in connection with consultation, arbitration
and litigation (including trial, appellate, administrative and bankruptcy
proceedings), regardless of whether or not suit is brought, and all other costs
and expenses incurred by HVF or the Trustee in exercising its rights and
remedies hereunder. Such costs of
collection shall bear interest at the Demand Note Rate until paid.
No Negotiation
. This Demand Note is not negotiable other than
to the Trustee for the benefit of the Series 2008-1 Noteholders pursuant
to the Series 2008-1 Supplement.
The parties intend that this Demand Note will be pledged to the Trustee
for the benefit of the secured parties under the Series 2008-1 Supplement
and the other Related Documents and payments hereunder shall be made only to
said Trustee.
Reduction of
Principal
. The
principal amount of this Demand Note may be reduced only in accordance with the
provisions of the Series 2008-1 Supplement.
Governing Law
. THIS DEMAND NOTE HAS BEEN DELIVERED IN NEW
YORK, NEW YORK AND SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Captions
. Paragraph captions used in this Demand Note
are provided solely for convenience of reference only and shall not affect the
meaning or interpretation of any provision this Demand Note.
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THE HERTZ
CORPORATION,
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By:
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Scott
Massengill
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Treasurer
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3
PAYMENT GRID
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Date
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Principal
Amount
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Amount of
Principal
Payment
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Outstanding
Principal
Balance
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Notation Made
By
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4
EXHIBIT H
TO
SERIES 2008-1 SUPPLEMENT
Form of Estimated Interest Adjustment Notice
THE HERTZ CORPORATION,
AS ADMINISTRATOR
, 20
The Bank of New York Mellon Trust Company, N.A., as Trustee
2 North LaSalle Street
Chicago, IL 60602
Attn: Corporate Trust Administration—Structured Finance
ESTIMATED INTEREST ADJUSTMENT NOTICE
This notice is
being delivered to you pursuant to
Section 3.3(a)
of that
certain Series 2008-1 Supplement, dated as of September 12, 2008 (the “
Series 2008-1
Supplement
”), between Hertz Vehicle Financing LLC and The Bank of New York
Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust
Company, N.A.), as Trustee (the “
Trustee
”). The undersigned, being an authorized officer
of The Hertz Corporation (the “
Administrator
”), as Administrator under
the Series 2008-1 Supplement, hereby notifies you that in respect of the [ ]
Payment Date, the amount of
$
represents the amount of the adjustment required to be made to the amount of
the Series 2008-1 Adjusted Monthly Interest for the related Payment Date
as a result of the difference between the amount of Estimated Interest with
respect to the related Estimated Interest Period and the actual amount of Series 2008-1
Adjusted Monthly Interest that accrued during the Estimated Interest Period
which commenced on the immediately preceding Determination Date.
Capitalized terms used herein and not defined herein
shall have the meanings assigned to such terms in the Series 2008-1
Supplement.
IN WITNESS
WHEREOF, the undersigned has executed this Certificate as an officer of the
Servicer as of the day of
,
200 .
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THE HERTZ
CORPORATION
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By:
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Name:
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Title:
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2
Exhibit
4.9.26.2
EXECUTION
VERSION
SERIES 2008-1 NOTE PURCHASE
AGREEMENT
(SERIES
2008-1 VARIABLE FUNDING RENTAL CAR ASSET BACKED NOTES)
dated
as of September 12, 2008,
among
HERTZ
VEHICLE FINANCING LLC,
THE
HERTZ CORPORATION,
as
Administrator,
CERTAIN
CONDUIT INVESTORS,
each
as a Conduit Investor,
CERTAIN
FINANCIAL INSTITUTIONS,
each
as a Committed Note Purchaser,
CERTAIN
FUNDING AGENTS,
and
DEUTSCHE
BANK SECURITIES INC.,
as
Administrative Agent
TABLE
OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
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2
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SECTION 1.01
Definitions
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2
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ARTICLE II PURCHASE AND SALE OF SERIES 2008-1 NOTES
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11
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SECTION 2.01
The Initial Note Purchase
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11
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SECTION 2.02
Advances
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11
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SECTION 2.03
Borrowing Procedures
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12
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SECTION 2.04
The Series 2008-1 Notes
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13
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SECTION 2.05
Commitment Terms
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14
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SECTION 2.06
Selection of Interest Rates
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14
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SECTION 2.07
Reduction in Commitment Amount
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14
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ARTICLE III INTEREST AND FEES
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14
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SECTION 3.01
Interest
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14
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SECTION 3.02
Fees
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15
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SECTION 3.03
Eurodollar Lending Unlawful
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15
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SECTION 3.04
Deposits Unavailable
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16
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SECTION 3.05
Increased or Reduced Costs, etc.
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16
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SECTION 3.06
Funding Losses
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17
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SECTION 3.07
Increased Capital Costs
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18
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SECTION 3.08
Taxes
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18
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SECTION 3.09
Indenture Carrying Charges; Survival
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19
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ARTICLE IV OTHER PAYMENT TERMS
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20
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SECTION 4.01
Time and Method of Payment
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20
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ARTICLE V THE ADMINISTRATIVE AGENT AND THE FUNDING AGENTS
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20
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SECTION 5.01
Authorization and Action of the Administrative Agent
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20
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SECTION 5.02
Delegation of Duties
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20
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SECTION 5.03
Exculpatory Provisions
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21
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SECTION 5.04
Reliance
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21
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SECTION 5.05
Non-Reliance on the Administrative Agent and Other Purchasers
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21
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SECTION 5.06
The Administrative Agent in its Individual Capacity
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22
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SECTION 5.07
Successor Administrative Agent
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SECTION 5.08
Authorization and Action of Funding Agents
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22
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SECTION 5.09
Delegation of Duties
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23
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SECTION 5.10
Exculpatory Provisions
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23
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SECTION 5.11
Reliance
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23
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i
TABLE OF CONTENTS
(continued)
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Page
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SECTION 5.12
Non-Reliance on the Funding Agent and Other Purchasers
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24
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SECTION 5.13
The Funding Agent in its Individual Capacity
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24
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SECTION 5.14
Successor Funding Agent
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24
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ARTICLE VI REPRESENTATIONS AND WARRANTIES
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24
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SECTION 6.01
HVF
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24
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SECTION 6.02
Administrator
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SECTION 6.03
Conduit Investors
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26
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ARTICLE VII CONDITIONS
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27
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SECTION 7.01
Conditions to Issuance
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27
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SECTION 7.02
Conditions to Initial Borrowing
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29
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SECTION 7.03
Conditions to Each Borrowing
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29
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ARTICLE VIII COVENANTS
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30
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SECTION 8.01
Covenants
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30
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ARTICLE IX MISCELLANEOUS PROVISIONS
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SECTION 9.01
Amendments
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32
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SECTION 9.02
No Waiver; Remedies
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33
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SECTION 9.03
Binding on Successors and Assigns
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33
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SECTION 9.04
Survival of Agreement
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34
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SECTION 9.05
Payment of Costs and Expenses; Indemnification
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34
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SECTION 9.06
Characterization as Related Document; Entire Agreement
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37
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SECTION 9.07
Notices
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38
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SECTION 9.08
Severability of Provisions
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38
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SECTION 9.09
Tax Characterization
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38
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SECTION 9.10
No Proceedings; Limited Recourse
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38
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SECTION 9.11
Confidentiality
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SECTION 9.12
Governing Law
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40
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SECTION 9.13
Jurisdiction
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SECTION 9.14
Waiver of Jury Trial
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SECTION 9.15
Counterparts
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41
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SECTION 9.16
Additional Investor Groups
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41
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SECTION 9.17
Assignment
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42
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ii
TABLE OF CONTENTS
(continued)
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Page
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EXHIBITS
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SCHEDULE I
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List
of Conduit Investors and Committed Note Purchasers
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EXHIBIT A
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Form of
Advance Request
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EXHIBIT B
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Form of
Assignment and Assumption Agreement
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EXHIBIT C
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Form of
Investor Group Supplement
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EXHIBIT D
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Form of
Addendum
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iii
SERIES
2008-1 NOTE PURCHASE AGREEMENT
THIS SERIES 2008-1 NOTE PURCHASE AGREEMENT,
dated as of September 12, 2008 (as amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms hereof, this “
Agreement
”),
is made among HERTZ VEHICLE FINANCING LLC, a Delaware limited liability company
(“
HVF
”), THE HERTZ CORPORATION, a Delaware corporation (“
Hertz
”
or the “
Administrator
”), the several commercial paper conduits listed on
Schedule I
and their respective permitted successors and assigns (the “
Conduit
Investors
”; each, individually, a “
Conduit Investor
”), the several
financial institutions that serve as committed note purchasers set forth on
Schedule
I
hereto and the other financial institutions parties hereto pursuant to
Section 9.17
(each a “
Committed Note Purchaser
”), the financial institution set forth
opposite the name of each Conduit Investor, or if there is no Conduit Investor
with respect to any Investor Group, the Committed Note Purchaser with respect
to such Investor Group, on
Schedule I
hereto and its permitted successor
and assign (the “
Funding Agent
” with respect to such Conduit Investor or
Committed Note Purchaser) DEUTSCHE BANK SECURITIES INC., in its capacity as
administrative agent for the Conduit Investors, the Committed Note Purchasers
and the Funding Agents (the “
Administrative Agent
”).
BACKGROUND
1. Contemporaneously with the execution and delivery of
this Agreement, HVF, as issuer, and The Bank of New York Mellon Trust Company,
N.A. (formerly known as The Bank of New York Trust Company, N.A.), an Illinois
trust company, as trustee (together with its successors in trust thereunder as
provided in the Base Indenture referred to below, the “
Trustee
”) and as
Securities Intermediary, entered into the Series 2008-1 Supplement, of even
date therewith (as the same may be further amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms thereof, the “
Series 2008-1
Supplement
”), to the Second Amended and Restated Base Indenture, dated as
of August 1, 2006 (as the same may be amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms thereof, the “
Base
Indenture
” and, together with the Series 2008-1 Supplement, the “
Indenture
”),
between HVF and the Trustee, pursuant to which HVF issued one or more Series 2008-1
Variable Funding Rental Car Asset Backed Notes (the “
Series 2008-1
Notes
”).
2. HVF wishes to issue the Series 2008-1 Notes in
favor of the Conduit Investors, or if there is no Conduit Investor with respect
to any Investor Group, the Committed Note Purchaser with respect to such
Investor Group, and obtain the agreement of the Conduit Investors or the
Committed Note Purchasers, as applicable, to make loans from time to time
(each, an “
Advance
”) for the purchase of Series 2008-1 Principal
Amounts, all of which Advances (including the Initial Advance) will constitute
Increases, and all of which Advances (including the Initial Advance) will be
evidenced by the Series 2008-1 Notes purchased in connection herewith and
will constitute purchases of Series 2008-1 Principal Amounts corresponding
to the amount of such Advances. Subject
to the terms and conditions of this Agreement, each Conduit Investor
may
make Advances from time to time and each Committed Note Purchaser is willing to
commit to make Advances from time to time, to fund purchases of Series 2008-1
Principal Amounts in an aggregate outstanding amount up to the Maximum Investor
Group Principal Amount for the related Investor Group until the commencement of
the Series 2008-1 Rapid Amortization Period. Hertz has joined in this Agreement to confirm
certain representations, warranties and covenants made by it as Administrator
for the benefit of each Conduit Investor and each Committed Note Purchaser.
ARTICLE I
DEFINITIONS
SECTION 1.01
Definitions
. As used in this Agreement and unless the
context requires a different meaning, capitalized terms used but not defined
herein (including the preamble and the recitals hereto) shall have the meanings
assigned to such terms in Article 1 of the Series 2008-1 Supplement
or in the Definitions List attached to the Base Indenture as
Schedule I
,
as applicable. In addition, the
following terms shall have the following meanings and the definitions of such
terms are applicable to the singular as well as the plural form of such terms
and to the masculine as well as the feminine and neuter genders of such terms:
“
Acquiring Committed Note
Purchaser
” has the meaning set forth in
Section 9.17(a)
.
“
Acquiring Investor Group
”
has the meaning set forth in
Section 9.17(c)
.
“
Addendum
” means an Addendum substantially in
the form of
Exhibit D
.
“
Additional Investor Group
” means,
collectively, a Conduit Investor, if any, and the Committed Note Purchaser(s) with
respect to such Conduit Investor or, if there is no Conduit Investor with
respect to any
Investor
Group the Committed Note Purchaser(s) with respect to such Investor Group,
in each case, that becomes party hereto as of any date after the Series 2008-1
Closing Date pursuant to
Section 9.16
in connection with an
increase in the Series 2008-1 Maximum Principal Amount;
provided
that, for the avoidance of doubt, an Investor Group that is both an Additional
Investor Group and an Acquiring Investor Group shall be deemed to be an
Additional Investor Group solely in connection with, and to the extent of, the
commitment of such Investor Group that increases the Series 2008-1 Maximum
Principal Amount when such Additional Investor Group becomes a party hereto and
Additional Series 2008-1 Notes are issued pursuant to Sections 2.1 and 5.1
of the Series 2008-1 Supplement, and references herein to such an Investor
Group as an “Additional Investor Group” shall not include the commitment of
such Investor Group as an Acquiring Investor Group (the Maximum Investor Group
Principal Amount of any such “Additional Investor Group” shall not include any
portion of the Maximum Investor Group Principal Amount of such Investor Group
acquired pursuant to an assignment to such Investor Group as an Acquiring
Investor Group, whereas references to the Maximum Investor Group Principal
Amount of such “Investor Group” shall include the entire Maximum Investor Group
Principal Amount of such Investor Group as both as Additional Investor Group
and an Acquiring Investor Group).
2
“
Additional Investor Group Initial Principal Amount
”
means, with respect to each Additional Investor Group on the date such
Additional Investor Group becomes a party hereto, the initial principal amount
on such date of the Series 2008-1 Notes issued to such Additional Investor
Group, which shall be an amount equal to such Additional Investor Group’s
Commitment Percentage of the principal amount of outstanding Series 2008-1
Notes as of such date (after giving effect to the issuance of such Additional
Investor Group’s Series 2008-1 Notes).
“
Administrative Agent Fee
”
has the meaning set forth in the Administrative Agent Fee Letter.
“
Administrative Agent Fee
Letter
” means
that certain fee letter, dated as of the date hereof,
between the Administrative Agent and HVF setting forth the definition of
Administrative Agent Fee.
“
Advance
” has the
meaning set forth in paragraph 2 of the recitals hereto.
“
Advance Request
” has
the meaning set forth in
Section 7.03(c)
.
“
Affected Person
” has
the meaning set forth in
Section 3.05
.
“
Aggregate Unpaids
”
has the meaning set forth in
Section 5.01
.
“
Assignment and
Assumption Agreement
” means an Assignment and Assumption Agreement
substantially in the form of
Exhibit B
.
“
Borrowing
” has the
meaning set forth in
Section 2.02(c)
.
“
Borrowing Deficit
”
has the meaning set forth in
Section 2.03(b)
.
“
Change in Law
” means
(a) any law, rule or regulation or any change therein or in the
interpretation or application thereof (whether or not having the force of law),
in each case, adopted, issued or occurring after the Series 2008-1 Closing
Date or (b) any request, guideline or directive (whether or not having the
force of law) from any government or political subdivision or agency,
authority, bureau, central bank, commission, department or instrumentality
thereof, or any court, tribunal, grand jury or arbitrator, or any accounting
board or authority (whether or not part of government) which is responsible for
the establishment or interpretation of national or international accounting principles,
in each case, whether foreign or domestic (each an “
Official Body
”)
charged with the administration, interpretation or application thereof, or the
compliance with any request or directive of any Official Body (whether or not
having the force of law) made, issued or occurring after the Series 2008-1
Closing Date.
“
Commitment
” means, the obligation of the
Committed Note Purchasers included in each Investor Group to fund Advances
pursuant to
Section 2.02(a)
in an aggregate stated amount up to the
Maximum Investor Group Principal Amount for such Investor Group.
3
“
Commitment Amount
”
means, as to each Conduit Investor or Committed Note Purchaser, the Maximum
Investor Group Principal Amount with respect to the Investor Group of which
such Conduit Investor or Committed Note Purchaser is a part.
“
Commitment Percentage
”
means, on any date of determination, with respect to any Investor Group, the
ratio, expressed as a percentage, which such Investor Group’s Maximum Investor
Group Principal Amount bears to the Series 2008-1 Maximum Principal Amount
on such date.
“
Committed Note Purchaser
”
has the meaning set forth in the recitals hereto.
“
Committed Note Purchaser Percentage
” means,
with respect to any Committed Note Purchaser, the percentage set forth opposite
the
name of such
Committed Note Purchaser on
Schedule I
.
“
Conduit Assignee
” means, with respect to any
Conduit Investor, any commercial paper conduit, whose commercial paper has
ratings of at least “A-2” from Standard & Poor’s and “P2” from Moody’s,
that is administered by the Funding Agent with respect to such Conduit Investor
or any Affiliate
of
such Funding Agent, in each case, designated by such Funding Agent to accept an
assignment from such Conduit Investor of the Investor Group Principal Amount or
a portion thereof with respect to such Conduit Investor pursuant to
Section 9.17(b)
.
“
Conduit Investors
”
has the meaning set forth in the recitals hereto.
“
Confidential Information
”
for purposes of this Agreement, has the meaning set forth in
Section 9.11
.
“
CP Rate
” means, with
respect to each Conduit Investor (i) for any day during any Series 2008-1
Interest Period funded by a Conduit Investor set forth in
Schedule I
hereto or any other Conduit Investor that elects in its Assignment and
Assumption Agreement to make this
clause (i)
applicable
(collectively, the “
Conduits
”), the per annum rate equivalent to the
weighted average of the per annum rates paid or payable by such Conduits from
time to time as interest on or otherwise (by means of interest rate hedges or
otherwise taking into consideration any incremental carrying costs associated
with short term promissory notes issued by such Conduits maturing on dates
other than those certain dates on which such Conduits are to receive funds) in
respect of the promissory notes issued by such Conduits that are allocated in
whole or in part by their respective Funding Agent (on behalf of such Conduits)
to fund or maintain the Series 2008-1 Principal Amount or that are issued
by such Conduits specifically to fund or maintain the Series 2008-1
Principal Amount, in each case, during such period, as determined by their
respective Funding Agent (on behalf of such Conduits), including (x) the
commissions of placement agents and dealers in respect of such promissory
notes, to the extent such commissions are allocated, in whole or in part, to
such promissory notes by the related Committed Note Purchasers (on behalf of
such Conduits), (y) all reasonable costs and expenses of any issuing and
paying agent or other person
4
responsible
for the administration of such Conduits’ commercial paper programs in
connection with the preparation, completion, issuance, delivery or payment of Series 2008-1
Commercial Paper, and (z) the costs of other borrowings by such Conduits
including, without limitation, borrowings to fund small or odd dollar amounts
that are not easily accommodated in the commercial paper market;
provided
,
however
, that if any component of such rate is a discount rate, in
calculating the CP Rate, the respective Funding Agent for such Conduits shall
for such component use the rate resulting from converting such discount rate to
an interest bearing equivalent rate per annum and (ii) for any Series 2008-1
Interest Period for any portion of the Commitment of the related Investor Group
funded by any other Conduit Investor, the “CP Rate” applicable to such Conduit
Investor as set forth in its Assignment and Assumption Agreement.
“
Domestic Office
”
means, the office of the related Funding Agent designated as such below its
name on the signature page hereof, if any, or such other office of such
Funding Agent as designated from time to time by written notice from such
Funding Agent to HVF, inside the United States, which shall be making or
maintaining Advances other than Eurodollar Advances of the Committed Note
Purchasers in its Investor Group hereunder.
“
Eurodollar Advance
”
means, an Advance which bears interest at all times during the Eurodollar
Interest Period applicable thereto at a fixed rate of interest determined by
reference to the Eurodollar Rate (Reserve Adjusted).
“
Eurodollar Interest
Period
” means, with respect to any Eurodollar Advance, (a) initially,
the period commencing on and including the date of such Eurodollar Advance and
ending on but excluding the next Payment Date and (b) for each period
thereafter, the period commencing on and including the Payment Date on which
the immediately preceeding Eurodollar Interest Period ended and ending on but
excluding the next Payment Date;
provided
,
however
, that
(i)
no Eurodollar Interest Period may end
subsequent to the August 2010 Payment Date; and
(ii)
upon the occurrence and during the
continuation of the Series 2008-1 Rapid Amortization Period, any
Eurodollar Interest Period may be terminated at the election of the related
Funding Agent by notice to HVF and the Administrator, and upon such election
the Eurodollar Advances in respect of which interest was calculated by
reference to such terminated Eurodollar Interest Period shall be converted to Series 2008-1
Base Rate Tranches or included in the Series 2008-1 CP Tranche until
payment in full of the Series 2008-1 Notes.
“
Eurodollar Office
”
means, the office of the related Funding Agent
designated as
such below its name on the signature page hereof, if any, or such other
office of such Funding Agent as designated from time to time by written notice
from such Funding Agent to HVF, whether or not outside the United States, which
shall be making
5
or maintaining Eurodollar
Advances of the Committed Note Purchasers in its Investor Group hereunder.
“
Eurodollar Rate
”
means, the rate per annum determined by the related Funding Agent at
approximately 11:00 a.m. (London time) on the date which is one (1) Business
Day prior to the beginning of the relevant Eurodollar Interest Period by
reference to the British Bankers’ Association Interest Settlement Rates for
deposits in Dollars (as set forth by any service selected by such Funding Agent
which has been nominated by the British Bankers’ Association as an authorized
information vendor for the purpose of displaying such rates) for a period equal
to such Eurodollar Interest Period;
provided
that, to the extent that an
interest rate is not ascertainable pursuant to the foregoing provisions of this
definition, the “Eurodollar Rate” shall be the interest rate per annum
determined by such Funding Agent to be the rate per annum at which deposits in
Dollars are offered by the Reference Lender in London to prime banks in the
London interbank market at or about 11:00 a.m. (London time) one (1) Business
Day before the first day of such Eurodollar Interest Period in an amount
substantially equal to the amount of the Eurodollar Advances to be outstanding
during such Eurodollar Interest Period and for a period equal to such
Eurodollar Interest Period. In respect
of any Eurodollar Interest Period which is not thirty (30) days in duration,
the Eurodollar Rate shall be determined through the use of straight-line
interpolation by reference to two rates calculated in accordance with the
preceding sentence, one of which shall be determined as if the maturity of the
Dollar deposits referred to therein were the period of time for which rates are
available next shorter than the Eurodollar Interest Period and the other of
which shall be determined as if such maturity were the period of time for which
rates are available next longer than the Eurodollar Interest Period;
provided
that, if a Eurodollar Interest Period is less than or equal to seven days, the
Eurodollar Rate shall be determined by reference to a rate calculated in
accordance with the preceding sentence as if the maturity of the Dollar
deposits referred to therein were a period of time equal to seven days.
“
Eurodollar Rate (Reserve
Adjusted)
” means, for any Eurodollar Interest Period, an interest rate per
annum (rounded upward to the nearest 1/100th of 1%) determined pursuant to the
following formula:
|
|
Eurodollar Rate =
|
Eurodollar Rate
|
|
|
|
(Reserve Adjusted)
|
1.00 – Eurodollar
Reserve Percentage
|
|
The
Eurodollar Rate (Reserve Adjusted) for any Eurodollar Interest Period for
Eurodollar Advances will be determined by the related Funding Agent on the
basis of the Eurodollar Reserve Percentage in effect one (1) Business Day
before the first day of such Eurodollar Interest Period.
“
Eurodollar Reserve
Percentage
” means, for any Eurodollar Interest Period, the reserve
percentage (expressed as a decimal) equal to the maximum aggregate reserve
requirements (including all basic, emergency, supplemental, marginal and other reserves
and taking into account any transitional adjustments or other scheduled changes
6
in
reserve requirements) specified under regulations issued from time to time by
the F.R.S. Board and then applicable to assets or liabilities consisting of and
including “Eurocurrency Liabilities,” as currently defined in Regulation D of
the F.R.S. Board, having a term approximately equal or comparable to such
Eurodollar Interest Period.
“
Federal Funds Rate
”
means for any period, a fluctuating interest rate per annum equal for each day
during such period to the weighted average of the overnight federal funds rates
as in Federal Reserve Board Statistical Release H.15(519) or any successor or
substitute publication selected by the Funding Agent for such Investor Group
(or, if such day is not a Business Day, for the next preceding Business Day),
or, if, for any reason, such rate is not available on any day, the rate
determined, in the sole opinion of the Funding Agent for such Investor Group,
to be the rate at which overnight federal funds are being offered in the
national federal funds market at 9:00 a.m. New York City time.
“
Financial Statements
”
has the meaning set forth in
Section 6.02(b)
.
“
Fleet Report
” has
the meaning set forth in Section 2.4 of the Collateral Agency Agreement.
“
Governmental Authority
”
means the United States of America, any state, local or other political
subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory, or administrative functions thereof pertaining thereto.
“
Increase Date
” shall
mean the Business Day on which an Increase in the Series 2008-1 Principal
Amount occurs.
“
Initial Advance
”
means the Advances made under this Agreement as part of the initial Borrowings.
“
Investor Group
” means, (i) collectively,
a Conduit Investor, if any, and the Committed Note Purchaser(s) with
respect to such Conduit Investor or, if there is no Conduit Investor with
respect to any Investor Group, the Committed Note Purchaser(s) with
respect to such Investor Group, in each case, party hereto as of the Series 2008-1
Closing date and (ii) any Additional Investor Group.
“
Investor Group Increase Amount
” means, with
respect to any Investor Group, for any Business Day, such Investor Group’s
Commitment Percentage of the Increase, if any, on such Business Day.
“
Investor Group Principal Amount
” means, (a) with
respect to any Investor Group other than an Additional Investor Group, (i) when
used with respect to the Series 2008-1 Closing Date, such Investor Group’s
Commitment Percentage of the Series 2008-1 Initial Principal Amount and (ii) when
used with respect to any other date, an amount equal to (w) the Investor
Group Principal Amount with respect to such Investor Group on the immediately
preceding Business Day
plus
(x) the Investor Group Increase Amount
with respect to such Investor Group on such date
minus
(y) the
amount of principal payments made to such Investor Group pursuant to Section 3.5
of the Series
7
2008-1 Supplement on such
date
plus
(z) the amount of principal payments recovered from such
Investor Group by a trustee as a preference payment in a bankruptcy proceeding
of the Issuer or otherwise and (b) with respect to any Additional Investor
Group, (i) when used with respect to the date such Additional Investor
Group becomes a party hereto, such Additional Investor Group’s Additional
Investor Group Initial Principal Amount and (ii) when used with respect to
any other date, an amount equal to (w) the Investor Group Principal Amount
with respect to such Additional Investor Group on the immediately preceding
Business Day
plus
(x) the Investor Group Increase Amount with
respect to such Additional Investor Group on such date
minus
(y) the
amount of principal payments made to such Investor Group pursuant to Section 3.5
of the Series 2008-1 Supplement on such date
plus
(z) the
amount of principal payments recovered from such Additional Investor Group by a
trustee as a preference payment in a bankruptcy proceeding of the Issuer or
otherwise.
“
Investor Group
Supplement
” means an Investor Group Supplement substantially in the form of
Exhibit C
.
“
Majority Program Support
Providers
” means with respect to the related Investor Group, Program
Support Providers holding more than 50% of the aggregate commitments of all
Program Support Providers.
“
Margin Stock
” means “margin
stock” as defined in Regulation U of the Board of Governors of the Federal
Reserve System, as amended from time to time.
“
Maximum Investor Group Principal Amount
”
means, with respect to each Investor Group, the amount set forth opposite the
name of the Committed Note Purchaser included in such Investor Group on
Schedule I
,
as such amount may be increased or modified from time to time by written
agreement among the Committed Note Purchasers included in such Investor Group
on
Schedule I
hereto, the Administrator and HVF in accordance with the
terms hereof;
provided
that, on any day after the occurrence and during
the continuance of an Amortization Event with respect to the Series 2008-1
Notes, the Maximum Investor Group Principal Amount with respect to each
Investor Group shall not exceed the Investor Group Principal Amount for such
Investor Group.
“
Prime Rate
” means
the rate announced by the Reference Lender from time to time as its prime rate
in the United States, such rate to change as and when such designated rate
changes. The Prime Rate is not intended
to be the lowest rate of interest charged by the Reference Lender in connection
with extensions of credit to debtors.
“
Program Fee
” has the
meaning set forth in
Section 3.02(a)
.
“
Program Fee Letter
”
means
that certain fee letter, dated as of the date hereof, by and among
each initial Conduit Purchaser, each initial Committed Note Purchaser, the
Administrative Agent and HVF setting forth the definition of Program Fee Rate
and the definition of Undrawn Fee.
“
Program Fee Rate
”
has the meaning set forth in the Program Fee Letter.
8
“
Program Support
Agreement
” means and includes any agreement entered into by any Program
Support Provider in respect of any Series 2008-1 Commercial Paper and/or Series 2008-1
Note providing for the issuance of one or more letters of credit for the
account of a Committed Note Purchaser or a Conduit Investor, the issuance of
one or more insurance policies for which a Committed Note Purchaser or a
Conduit Investor is obligated to reimburse the applicable Program Support
Provider for any drawings thereunder, the sale by a Committed Note Purchaser or
a Conduit Investor to any Program Support Provider of the Series 2008-1
Notes (or portions thereof or interests therein) and/or the making of loans
and/or other extensions of credit to a Committed Note Purchaser or a Conduit
Investor in connection with such Conduit Investor’s securitization program,
together with any letter of credit, insurance policy or other instrument issued
thereunder or guaranty thereof (but excluding any discretionary advance
facility provided by a Committed Note Purchaser).
“
Program Support Provider
”
means and includes any financial institutions and any other or additional Person
now or hereafter extending credit or having a commitment to extend credit to or
for the account of, and/or agreeing to make purchases from, a Committed Note
Purchaser or a Conduit Investor in respect of such Committed Note Purchaser’s
or Conduit Investor’s Series 2008-1 Commercial Paper and/or Series 2008-1
Note, and/or agreeing to issue a letter of credit or insurance policy or other
instrument to support any obligations arising under or in connection with such
Conduit Investor’s securitization program as it relates to any Series 2008-1
Commercial Paper issued by such Conduit Investor, in each case pursuant to a
Program Support Agreement and any guarantor of any such person.
“
Reference Lender
”
means the related Funding Agent or if such Funding Agent does not have a prime
rate, an Affiliate thereof designated by such Funding Agent.
“
Regulation S
”: Regulation S under the Securities Act.
“
Securities Act
”: The U.S. Securities Act of 1933,
as amended.
“
Series 2005-3 Rapid
Amortization Period
” has the meaning set forth in the Series 2005-3
Supplement.
“
Series 2005-4 Rapid
Amortization Period
” has the meaning set forth in the Series 2005-4
Supplement.
“
Series 2008-1 Base
Rate
” means, on any day, a rate per annum equal to the sum of (i) the
greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Rate in effect on such day plus (ii) 0.50%. Any change in the Series 2008-1 Base
Rate due to a change in the Prime Rate or the Federal Funds Rate shall be
effective as of the opening of business on the effective day of such change in
the Prime Rate or the Federal Funds Rate, respectively. Changes in the rate of interest on that
portion of any Advances maintained as Series 2008-1 Base Rate Tranches
will take effect simultaneously with each change in the Series 2008-1 Base
Rate.
9
“
Series 2008-1 Commitment Termination
Date
” means August 15, 2010 or such later date designated in
accordance with
Section 2.05
or such earlier date as the parties
hereto may agree in writing to terminate this Agreement.
“
Series 2008-1
Related Documents
” means the Related Documents relating to the Series 2008-1
Notes (including, without limitation, the Base Indenture, the Series 2008-1
Supplement, the Purchase Agreement, the HVF Lease, the Collateral Agency
Agreement and the Administration Agreement);
provided
that, for the
avoidance of doubt, any Related Document that relates solely to a Series of
Notes other than the Series 2008-1 Notes shall not be a Series 2008-1
Related Document and any Related Document that relates to the Series 2008-1
Notes and other Series of Notes shall be a Series 2008-1 Related
Document.
“
Series
2008-1
Supplement
” means that certain Series Supplement
to the Base Indenture, dated as of the date
hereof (as amended, modified, restated or supplemented from time to time
in accordance with the terms thereof), by and between HVF and The Bank of New
York Mellon Trust Company, N.A. (formerly known as the Bank of New York Trust
Company, N.A.), as Trustee, relating to, among other things, the issuance by
HVF of its Series 2008-1 Notes.
“
Structuring Fee
”
has
the meaning set forth in the Structuring Fee Letter.
“
Structuring Fee Letter
”
means
that certain fee letter, dated as of the date hereof, by and among
each initial Conduit Purchaser, each initial Committed Note Purchaser, the
Administrative Agent and HVF setting forth the definition of Structuring Fee.
“
Syndication Agreement
”
means that certain syndication agreement, dated as of the date hereof,
by
and among each initial Conduit Purchaser, each initial Committed Note Purchaser
and HVF.
“
Syndication Fee Letter
” means that certain
fee letter, dated as of the date
hereof, by and among Barclays Bank PLC, Sheffield Receivables Corporation,
Deutsche Bank Securities, Inc., Deutsche Bank AG, New York Branch,
Nantucket Funding Corp., LLC and HVF setting forth certain defined terms
relating to fees payable for syndication.
“
Taxes
” has the
meaning set forth in
Section 3.08
.
“
Term
” has the
meaning set forth in
Section 2.05
.
“
Undrawn Fee
” has the meaning set forth in the
Program Fee Letter.
“
Weighted Average CP Rate
” means, with respect
to any Series 2008-1 Interest Period, the weighted average of the CP Rates
applicable to each Advance funded or maintained during such Series 2008-1
Interest Period through the issuance of Series 2008-1 Commercial Paper.
10
ARTICLE II
PURCHASE AND SALE OF SERIES 2008-1 NOTES
SECTION 2.01
The Initial Note
Purchase
. On the terms and
conditions set forth in the Indenture and this Agreement, and in reliance on
the covenants, representations and agreements set forth herein and therein, HVF
will cause the Trustee to issue the Series 2008-1 Notes on the Series 2008-1
Closing Date. Such Series 2008-1
Notes for each Investor Group will be dated the Series 2008-1 Closing
Date, registered in the name of the respective Funding Agent or its nominee, as
agent for the related Conduit Investor, if any, and the Committed Note
Purchaser(s), or in such other name as the respective Funding Agent may
request, and will be duly authenticated in accordance with the provisions of
the Indenture.
SECTION 2.02
Advances
. (a) Subject to the terms and conditions
of this Agreement and the Series 2008-1 Supplement, each Conduit Investor,
if any may and, if such Conduit Investor determines that it will not make an
Advance or any portion of an Advance, its related Committed Note Purchaser(s) or,
if there is no Conduit Investor with respect to any Investor Group, the
Committed Note Purchaser(s) with respect to such Investor Group, shall, to
the extent such Conduit Investor does not make such Advance or there is no such
Conduit Investor with respect to an Investor Group, and the Series 2008-1
Commitment Termination Date has not occurred, upon HVF’s request, delivered in
accordance with the provisions of
Section 2.03
, and the
satisfaction of all conditions precedent thereto, make Advances from time to
time during the Series 2008-1 Revolving Period;
provided
, that,
such Advances shall be made ratably by each Conduit Investor, if any, based on
the respective Commitment Percentage of its Investor Group and the portion of
any such Advance made by a Committed Note Purchaser shall be its Committed Note
Purchaser Percentage of the Commitment Percentage with respect to the related
Investor Group;
provided
, that no Advance shall be required or permitted
to be made on any date if, after giving effect to such Advance, (i) such
related Investor Group Principal Amount would exceed the Maximum Investor Group
Principal Amount, (ii) the Series 2008-1 Principal Amount would
exceed the Series 2008-1 Maximum Principal Amount, (iii) a Series 2008-1
Enhancement Deficiency or an Aggregate Asset Amount Deficiency exists or would
exist as a result of such Advance, or (iv) an Amortization Event,
Potential Amortization Event, Liquidation Event of Default or Limited
Liquidation Event of Default, in each case, with respect to the Series 2008-1
Notes exists or would exist as a result of such Advance. If a Conduit Investor
elects not to fund the full amount of its Commitment Percentage of the Series 2008-1
Initial Principal Amount (or, in the case of a Conduit Investor in an
Additional Investor Group, the Additional Investor Group Initial Principal
Amount with respect to such Additional Investor Group) or a requested Increase,
such Conduit Investor shall notify the Administrative Agent and the Funding
Agent with respect to such Conduit Investor, and each Committed Note Purchaser
with respect to such Conduit Investor shall fund its Committed Note Purchaser
Percentage of the portion of the Commitment Percentage with respect to such
Investor Group of the Series 2008-1 Initial Principal Amount (or, in the
case of a Committed Note Purchaser in an Additional Investor Group, the
applicable portion of the Additional Investor Group Initial Principal Amount
with respect to such Additional Investor Group) or such Increase, as the case may be, not funded
by such Conduit Investor.
11
(b) Subject
to
Section 9.10(b)
, each Conduit Investor hereby agrees with
respect to itself that it will use commercially reasonable efforts to fund
Advances made by its Investor Group through the issuance of Series 2008-1
Commercial Paper;
provided
, that (i) no Conduit Investor will have
any obligation to use commercially reasonable efforts to fund Advances made by
its Investor Group through the issuance of Series 2008-1 Commercial Paper
at any time (x) an Amortization Event has occurred and is continuing or (y) the
funding of such Advance through the issuance of Series 2008-1 Commercial
Paper would be prohibited by the program documents governing such Conduit
Investor’s commercial paper program, (ii) nothing herein is (or shall be
construed) as a commitment by any Conduit Investor to fund any Advance through
the issuance of Series 2008-1 Commercial Paper, and (iii) notwithstanding
anything herein or in any other Related Document to the contrary, at no time
will a Conduit Investor that is not also a Committed Note Purchaser be
obligated to make Advances hereunder.
(c) The
proceeds of all Advances on any date shall be allocated according to the
provisions of Article III of the Series 2008-1 Supplement. Each of the Advances to be made on any date
shall be made singly as part of a single borrowing (each such single borrowing
being a “
Borrowing
”). Subject to
the terms of this Agreement and the Series 2008-1 Supplement, the
aggregate principal amount of the Advances represented by the Series 2008-1
Notes may be increased or decreased from time to time.
SECTION 2.03
Borrowing Procedures.
(a) Whenever
HVF wishes the Conduit Investors, or if there is no Conduit Investor with
respect to any Investor Group, the Committed Note Purchaser with respect to
such Investor Group, to make an Advance, HVF shall (or shall cause the
Administrator to) notify the Administrative Agent, each Funding Agent and the
Trustee upon irrevocable written notice delivered to the Administrative Agent
and each Funding Agent (with a copy of such notice delivered to the Committed
Note Purchasers) no later than 11:30 a.m. New York City time on the
Business Day prior to the proposed Borrowing (which Borrowing date shall,
except in the case of the Initial Advance, be an Increase Date);
provided
that no more than three Borrowings shall occur during any calendar week. Each such notice shall be irrevocable and
shall in each case refer to this Agreement and specify the aggregate amount of
the requested Borrowing to be made on such date. HVF shall (or shall cause the Administrator
to) ratably allocate the proposed Borrowing among the Investor Groups’
respective Investor Group Principal Amounts.
Each Funding Agent shall promptly advise its related Conduit Investor,
or if there is no Conduit Investor with respect to any Investor Group, its
related Committed Note Purchaser, of any notice given pursuant to this Section and,
if there is a Conduit Investor with respect to any Investor Group, shall
promptly thereafter (but in no event later than 11:00 a.m. New York City
time on the proposed date of Borrowing), notify HVF and the related Committed
Note Purchaser(s), whether such Conduit Investor has determined to make such
Advance. On the date of each Borrowing
and subject to the other conditions set forth herein and in the Series 2008-1
Supplement, each Conduit Investor or its related Committed Note Purchaser(s),
as the case may be, and each Committed Note Purchaser with respect to any
Investor Group that does not include a Conduit Investor, shall make
12
available to HVF the amount of such Advance by wire transfer in U.S.
dollars of such amount in same day funds to the Series 2008-1 Collection
Account no later than 3:00 p.m. (New York time) on the date of such
Borrowing.
(b) If,
by 2:00 p.m. (New York time) on the date of any Borrowing, one or more
Committed Note Purchasers in an Investor Group (each, a “
Defaulting Committed Note Purchaser
,” and each Committed Note Purchaser
in the related Investor Group other than any Defaulting Committed Note
Purchaser being referred to as a “
Non-Defaulting
Committed Note Purchaser
”) fails to make its ratable portion of any
Borrowing available to HVF pursuant to
Section 2.03(a)
(the aggregate amount
unavailable to HVF as a result of such failure being herein called in either
case the “
Borrowing Deficit
”),
then the Funding Agent for such Investor Group shall, by no later than 2:30 p.m.
(New York City time) on the applicable date of such Borrowing instruct each
Non-Defaulting Committed Note Purchaser in the same Investor Group as the
Defaulting Committed Note Purchaser to pay, by no later than 3:00 p.m.
(New York time), in immediately available funds, to the Series 2008-1
Collection Account, an amount equal to the lesser of (i) such
Non-Defaulting Committed Note Purchaser’s proportionate share (based upon the
relative Committed Note Purchaser Percentage of such Non-Defaulting Committed
Note Purchasers) of the Borrowing Deficit and (ii) such Non-Defaulting
Committed Note Purchaser’s Committed Note Purchaser Percentage
of
the amount by which the Maximum Investor Group Investor Amount for such
Investor Group exceeds the Investor Group Principal Amount for such Investor
Group (determined after giving effect to any Advances already made by such
Investor Group on such date). A
Defaulting Committed Note Purchaser shall forthwith, upon demand, pay to the
applicable Funding Agent for the ratable benefit of the Non-Defaulting
Committed Note Purchasers all amounts paid by each such Non-Defaulting
Committed Note Purchaser on behalf of such Defaulting Committed Note Purchaser,
together with interest thereon, for each day from the date a payment was made
by a Non-Defaulting Committed Note Purchaser until the date such Non-Defaulting
Committed Note Purchaser has been paid such amounts in full, at a rate per annum equal to the sum of the Series 2008-1 Base Rate plus 1% per annum.
SECTION 2.04
The Series 2008-1
Notes
. On each date an Advance is
funded under the Series 2008-1 Notes pursuant to the Series 2008-1
Supplement, and on each date the amount of outstanding Advances thereunder is
reduced, a duly authorized officer, employee or agent of the related Funding
Agent shall make appropriate notations in its books and records of the amount
of such Advance and the amount of such reduction, as applicable. HVF hereby authorizes each duly authorized
officer, employee and agent of such Funding Agent to make such notations on the
books and records as aforesaid and every such notation made in accordance with
the foregoing authority shall be
prima facie
evidence
of the accuracy of the information so recorded and shall be binding on HVF
absent manifest error;
provided
,
however
,
that in the event of a discrepancy between the books and records of such
Funding Agent and the records maintained by the Trustee pursuant to the
Indenture, such discrepancy shall be resolved by such Funding Agent, the
Administrative Agent and the Trustee.
13
SECTION 2.05
Commitment Terms
. The “
Term
” of the Commitment hereunder
shall be for a period commencing on the Series 2008-1 Closing Date and
ending on the Series 2008-1 Commitment Termination Date, or such later
date as each Committed Note Purchaser may agree to in writing.
SECTION 2.06
Selection of Interest
Rates
. Following (i) the
funding of any Advances by a Committed Note Purchaser or (ii) any assignment
by a Conduit Investor to its related liquidity providers pursuant to the
applicable liquidity purchase agreement or liquidity loan agreement with
respect to the Series 2008-1 Notes or to its related Committed Note
Purchaser hereunder, in each case the Advances funded, directly or indirectly,
with amounts received from any such provider or Committed Note Purchaser will
accrue interest at the Series 2008-1 Base Rate;
provided
that HVF
may, prior to the commencement of the Series 2008-1 Rapid Amortization
Period, if HVF gives notice prior to 12:00 p.m. (New York Time) on the
date which is one (1) Business Day prior to the commencement of the
related Eurodollar Interest Period, elect that such Advances be made as
Eurodollar Advances.
SECTION 2.07
Reduction in
Commitment Amount
. HVF may, upon
three Business Days’ notice to the Administrative Agent, each Funding Agent,
each Conduit Investor and each Committed Note Purchaser, effect a permanent
reduction in the Series 2008-1 Maximum Principal Amount and a
corresponding reduction in the Commitment Amount and the Maximum Investor Group
Principal Amount;
provided
that (x) any such reduction (i) will
be limited to the undrawn portion of the Commitment Amounts, although any such
reduction may be combined with a Voluntary Decrease effected pursuant to and in
accordance with Section 2.2(b) of the Series 2008-1 Supplement,
and (ii) must be in a minimum amount of $10,000,000 and (y) after
giving effect to such reduction, the Series 2008-1 Maximum Principal Amount
equals or exceeds $100,000,000, unless reduced to zero. Any reduction made pursuant to this
Section 2.07
shall be made ratably among the Investor Groups on the basis of their
respective Maximum Investor Group Principal Amount.
ARTICLE III
INTEREST AND FEES
SECTION 3.01
Interest
. (a) Each related Advance funded or maintained
by an Investor Group during the related Series 2008-1 Interest Period (i)
through the issuance of Series 2008-1 Commercial Paper shall bear interest at
the CP Rate for such Series 2008-1 Interest Period and (ii) through means other
than the issuance of Series 2008-1 Commercial Paper shall bear interest at (A)
the Series 2008-1 Base Rate for the related Series 2008-1 Interest Period or
(B) if the required notice has been given pursuant to
Section 2.06
, the
Eurodollar Rate (Reserve Adjusted) applicable to such Investor Group for the
related Eurodollar Interest Period, in each case except as otherwise provided
in the definition of Eurodollar Interest Period or in
Section 3.03
or
3.04
. Each Funding Agent shall notify HVF and the
Administrator of the applicable interest rate for the Advances made by its
Investor Group for the related Series 2008-1 Interest Period or Eurodollar
Interest Period, as the case may be (including the applicable CP Rate, Series
2008-1 Base Rate and/or the Eurodollar Rate (Reserve Adjusted), as the case may
be) by
14
11:00 a.m. (New York time) on the second Business Day immediately
preceding each Determination Date and on the Business Day following each
Payment Date.
(b)
Interest (including all amounts described in
Section 3.01(a)
above
and any Series 2008-1 Monthly Default Interest Amount) shall be due and
payable on each Payment Date in accordance with the provisions of the Series 2008-1
Supplement.
(c) All
computations of interest at the CP Rate and the Eurodollar Rate (Reserve
Adjusted) shall be made on the basis of a year of 360 days and the actual
number of days elapsed and all computations of interest at the Series 2008-1
Base Rate shall be made on the basis of a 365 (or 366, as applicable) day year
and actual number of days elapsed.
Whenever any payment of interest or principal in respect of any Advance
shall be due on a day other than a Business Day, such payment shall be made on
the next succeeding Business Day (other than as provided in the definition of
Eurodollar Interest Period) and such extension of time shall be included in the
computation of the amount of interest owed.
SECTION 3.02
Fees.
(a) On
each Payment Date, HVF shall pay to each Funding Agent, for the account of the
related Investor Group, a program fee (the “
Program Fee
”) equal to the
product of (x) the Program Fee Rate, (y) the daily average Investor
Group Principal Amount for the related Investor Group (or, if applicable, the
portion of the Investor Group Principal Amount for the related Conduit Investor
and Committed Note Purchaser in such Investor Group, respectively, if each of
such Conduit Investor and Committed Note Purchaser is funding a portion of such
Investor Group’s Investor Group Principal Amount) for the period from and
including the immediately preceding Payment Date (or in the case of the first
Payment Date, the Series 2008-1 Closing Date) to but excluding such
Payment Date and (z) the number of days in the related Series 2008-1
Interest Period divided by 360 (or in the case of the first Payment Date
occurring following the Series 2008-1 Closing Date, the number of days in
the period from and including the Series 2008-1 Closing Date to but
excluding such first Payment Date).
(b) On
each Payment Date on or prior to the Series 2008-1 Commitment Termination
Date, HVF shall pay to each Funding Agent, for the account of the related
Investor Group, the Undrawn Fee.
(c) On
each Payment Date, HVF shall pay to the Administrative Agent the applicable
Administrative Agent Fee for such Payment Date.
(d) On
the Series 2008-1 Closing Date, HVF shall pay the Structuring Fee to each
Funding Agent, for the account of the related Committed Note Purchaser.
SECTION 3.03
Eurodollar Lending
Unlawful
. If a Conduit Investor, a
Committed Note Purchaser or any Program Support Provider shall reasonably
determine (which determination shall, upon notice thereof to the Administrative
Agent and the related Funding Agent and HVF, be conclusive and binding on HVF
absent manifest error) that the introduction of or any change in or in the
interpretation of any law, rule or
15
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for any such Program Support Provider or
Committed Note Purchaser to make, continue, or maintain any Advance as, or to
convert any Advance into, the Series 2008-1 Eurodollar Tranche of such
Advance, the obligation of such Person to make, continue or maintain or convert
any such Advance as the Series 2008-1 Eurodollar Tranche of such Advance
shall, upon such determination, forthwith be suspended until such Person shall
notify the related Funding Agent and HVF that the circumstances causing such
suspension no longer exist, and such Investor Group shall immediately convert
all Advances of any such Program Support Provider or Committed Note Purchaser,
as applicable, into the Series 2008-1 Base Rate Tranche of such Advance at
the end of the then current Eurodollar Interest Periods with respect thereto or
sooner, if required by such law or assertion.
SECTION 3.04
Deposits Unavailable
. If a Conduit Investor, a Committed Note
Purchaser or any Program Support Provider shall have reasonably determined
that:
(a) Dollar deposits in the relevant
amount and for the relevant Eurodollar Interest Period are not available to all
Reference Lenders in the relevant market; or
(b) by reason of circumstances affecting
all Reference Lenders’ relevant market, adequate means do not exist for
ascertaining the interest rate applicable hereunder to the Series 2008-1
Eurodollar Tranche of any Advance; or
(c) such Conduit Investor, such Committed
Note Purchaser or the related Majority Program Support Providers have notified
the related Funding Agent and HVF that, with respect to any interest rate
otherwise applicable hereunder to the Series 2008-1 Eurodollar Tranche of
any Advance the Eurodollar Interest Period for which has not then commenced,
such interest rate will not adequately reflect the cost to such Conduit
Investor, such Committed Note Purchaser or such Majority Program Support
Providers of making, funding, agreeing to make or fund or maintaining their
respective Series 2008-1 Eurodollar Tranche of such Advance for such
Eurodollar Interest Period,
then, upon notice from such Conduit Investor, such Committed Note
Purchaser or the related Majority Program Support Providers to such Funding
Agent and HVF, the obligations of such Conduit Investor, such Committed Note
Purchaser and all of the relevant Program Support Providers to make or continue
any Advance as, or to convert any Advances into, the Series 2008-1
Eurodollar Tranche of such Advance shall forthwith be suspended until such
Funding Agent shall notify HVF that the circumstances causing such suspension
no longer exist.
SECTION 3.05
Increased or Reduced
Costs, etc
. HVF agrees to reimburse
each Conduit Investor and each Committed Note Purchaser and any Program Support
Provider (each, an “
Affected Person
”) for any increase in the cost of,
or any reduction in the amount of any sum receivable by any such Affected
Person, including
16
reductions in the rate of return on such Affected Person’s capital, in
respect of making, continuing or maintaining (or of its obligation to make,
continue or maintain) any Advances as, or of converting (or of its obligation
to convert) any Advances into, the Series 2008-1 Eurodollar Tranche of
such Advance that arise in connection with any Changes in Law, except for such
Changes in Law with respect to increased capital costs and taxes which are
governed by
Sections 3.07
and
3.08
, respectively. Each such demand shall be provided to the
related Funding Agent and HVF in writing and shall state, in reasonable detail,
the reasons therefor and the additional amount required fully to compensate
such Affected Person for such increased cost or reduced amount or return. Such additional amounts shall be payable by
HVF to such Funding Agent and by such Funding Agent directly to such Affected
Person within five (5) Business Days of HVF’s receipt of such notice, and
such notice shall, in the absence of manifest error, be conclusive and binding
on HVF.
SECTION 3.06
Funding Losses
. In the event any Affected Person shall incur
any loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Affected Person to make, continue or maintain any portion of the principal
amount of any Advance as a Series 2008-1 CP Tranche or Series 2008-1
Eurodollar Tranche, or to convert any portion of the principal amount of any
Advance into, the Series 2008-1 Eurodollar Tranche of such Advance) as a
result of:
(i) any conversion or repayment or
prepayment (for any reason, including, without limitation, as a result of the
acceleration of the maturity of the Series 2008-1 CP Tranche or Series 2008-1
Eurodollar Tranche of such Advance or the assignment thereof in accordance with
the requirements of the applicable Program Support Agreement) of the principal
amount of any portion of the Series 2008-1 CP Tranche or Series 2008-1
Eurodollar Tranche on a date other than the scheduled last day of the Series 2008-1
Interest Period or Eurodollar Interest Period applicable thereto;
(ii) any Advance not being made as an
Advance under the Series 2008-1 CP Tranche or Series 2008-1
Eurodollar Tranche after a request for such an Advance has been made in
accordance with the terms contained herein;
(iii) any Advance not being continued as a Series 2008-1
CP Tranche or Series 2008-1 Eurodollar Tranche, or converted into an
Advance under the Series 2008-1 Eurodollar Tranche after a request for such
an Advance has been made in accordance with the terms contained herein, or
(iv) any failure of HVF to make a Decrease
after giving notice thereof pursuant to Section 2.2(b) of the Series 2008-1
Supplement,
then, upon the
written notice of any Affected Person to the related Funding Agent and HVF, HVF
shall pay to such Funding Agent and such Funding Agent shall, within five (5) Business
Days of its receipt thereof, pay directly to such Affected Person such amount
as will (in the reasonable determination of such Affected Person) reimburse
such
17
Affected
Person for such loss or expense. Such written
notice (which shall include calculations in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding on HVF.
SECTION 3.07
Increased Capital
Costs
. If any Change in Law affects
or would affect the amount of capital required or reasonably expected to be
maintained by any Affected Person or any Person controlling such Affected Person
and such Affected Person reasonably determines (in its sole and absolute
discretion) that the rate of return on its or such controlling Person’s capital
as a consequence of its commitment or the Advances made by such Affected Person
is reduced to a level below that which such Affected Person or such controlling
Person would have achieved but for the occurrence of any such circumstance,
then, in any such case after notice from time to time by such Affected Person
to the related Funding Agent and HVF, HVF shall pay to such Funding Agent and
such Funding Agent shall pay an incremental commitment fee to such Affected
Person sufficient to compensate such Affected Person or such controlling Person
for such reduction in rate of return. A
statement of such Affected Person as to any such additional amount or amounts
(including calculations thereof in reasonable detail), in the absence of
manifest error, shall be conclusive and binding on HVF; and
provided
,
further
,
that the initial payment of such increased commitment fee shall include a
payment for accrued amounts due under this
Section 3.07
prior to
such initial payment. In determining
such additional amount, such Affected Person may use any method of averaging
and attribution that it (in its reasonable discretion) shall deem applicable so
long as it applies such method to other similar transactions.
SECTION 3.08
Taxes
. All payments by HVF of principal of, and
interest on, the Advances and all other amounts payable hereunder (including
fees) shall be made free and clear of and without deduction for any present or
future income, excise, documentary, property, stamp or franchise taxes and
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding in the case of any
Affected Person (x) net income, franchise or similar taxes (including
branch profits taxes or alternative minimum tax) imposed or levied on the
Affected Person as a result of a connection between the Affected Person and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from such Affected Person having executed, delivered
or performed its obligations or received a payment under, or enforced by, this
Agreement) and (y) with respect to any Affected Person organized under the
laws of the jurisdiction other than the United States (“
Foreign Affected
Person
”), any withholding tax that is imposed on amounts payable to the
Foreign Affected Person at the time the Foreign Affected Person becomes a party
to this Agreement (or designates a new lending office), except to the extent
that such Foreign Affected Person (or its assignor, if any) was already
entitled, at the time of the designation of the new lending office (or
assignment), to receive additional amounts from HVF with respect to withholding
tax (such non-excluded items being called “
Taxes
”).
Moreover, if any Taxes are directly asserted against
any Affected Person with respect to any payment received by such Affected
Person or its agent from HVF, such Affected Person or its agent may pay such
Taxes and HVF will promptly upon
18
receipt of prior written
notice stating the amount of such Taxes pay such additional amounts (including
any penalties, interest or expenses) as is necessary in order that the net
amount received by such person after the payment of such Taxes (including any
Taxes on such additional amount) shall equal the amount such person would have
received had not such Taxes been asserted.
If HVF fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Affected Person or its
agent the required receipts or other required documentary evidence, HVF shall
indemnify the Affected Person and their agent for any incremental Taxes,
interest or penalties that may become payable by any such Affected Person or
its agent as a result of any such failure.
For purposes of this
Section 3.08
, a distribution hereunder
by the agent for the relevant Affected Person shall be deemed a payment by HVF.
Upon the request of HVF, each Foreign Affected Person
shall execute and deliver to HVF, prior to the initial due date of any payments
hereunder and to the extent permissible under then current law, and on or about
the first scheduled payment date in each calendar year thereafter, one or more
(as HVF may reasonably request) United States Internal Revenue Service Forms
W-8BEN, Forms W-8ECI or Forms W-9, or successor applicable forms, or such other
forms or documents (or successor forms or documents), appropriately completed,
as may be applicable to establish the extent, if any, to which a payment to
such Affected Person is exempt from withholding or deduction of Taxes. HVF shall not, however, be required to pay
any increased amount under this
Section 3.08
to any Affected Person
that is organized under the laws of a jurisdiction other than the United States
if such Affected Person fails to comply with the requirements set forth in this
paragraph.
If the Affected Person determines, in its sole
discretion, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this
Section 3.08
, it shall pay over such
refund to HVF (but only to the extent of indemnity payments made, or additional
amounts paid under this
Section 3.08
with respect to the Taxes
giving rise to such refund), net of all out-of-pocket expenses of the Affected
Person and without interest (other than any interest paid by the relevant
governmental authority with respect to such refund),
provided
that HVF,
upon the request of the Affected Person, agrees to repay the amount paid over
to HVF (
plus
any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Affected Person in the event the
Affected Person is required to repay such refund to such governmental
authority. This
Section 3.08
shall not be construed to require the
Affected Person to make available its tax returns (or any other information
relating to its taxes which it deems confidential) to HVF or any other Person.
SECTION 3.09
Indenture Carrying
Charges; Survival
. Any amounts
payable by HVF under
Sections 3.05
,
3.06
,
3.07
or
3.08
shall constitute Carrying Charges within the meaning of the Base Indenture and
Indenture Carrying Charges within the meaning of Series 2008-1
Supplement. The agreements in
Sections
3.05
,
3.06
,
3.07
and
3.08
shall survive the
termination of this Series 2008-1 Note Purchase Agreement, the
19
Series 2008-1 Supplement and the Base Indenture and the payment of
all amounts payable hereunder and thereunder.
ARTICLE IV
OTHER PAYMENT TERMS
SECTION 4.01
Time and Method of
Payment
. All amounts payable to any
Funding Agent hereunder or with respect to the Series 2008-1 Notes shall
be made to the applicable Funding Agent or upon the order of the applicable Funding Agent
by wire transfer of immediately available funds in
Dollars not later than 1:00 p.m., New York City time, on the date
due. Any funds received after that time
will be deemed to have been received on the next Business Day. HVF’s
obligations hereunder in respect of any amounts payable to any Conduit Investor
or Committed Note Purchaser shall be discharged to the extent funds are
disbursed by HVF to the related Funding Agent as provided herein whether or not
such funds are properly applied by such Funding Agent.
ARTICLE V
THE ADMINISTRATIVE AGENT AND THE FUNDING AGENTS
SECTION 5.01
Authorization and
Action of the Administrative Agent
.
Each of the Conduit Investors, the Committed Note Purchasers and the
Funding Agents hereby designates and appoints Deutsche Bank Securities Inc. as
the Administrative Agent hereunder, and hereby authorizes the Administrative
Agent to take such actions as agent on their behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms of this Agreement
together with such powers as are reasonably incidental thereto. The Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth herein and in the Series 2008-1
Supplement, or any fiduciary relationship with any Conduit Investor, any
Committed Note Purchaser or any Funding Agent, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities on the part of
the Administrative Agent shall be read into this Agreement or otherwise exist
for the Administrative Agent. In
performing its functions and duties hereunder and under the Series 2008-1
Supplement, the Administrative Agent shall act solely as agent for the Conduit
Investors, the Committed Note Purchasers and the Funding Agent and does not
assume nor shall it be deemed to have assumed any obligation or relationship of
trust or agency with or for HVF or any of its successors or assigns. The Administrative Agent shall not be
required to take any action that exposes the Administrative Agent to personal
liability or that is contrary to this Agreement, the Series 2008-1
Supplement or Applicable Law. The
appointment and authority of the Administrative Agent hereunder shall terminate
upon the indefeasible payment in full of the Series 2008-1 Notes and all
other amounts owed by HVF hereunder to the Investor Groups (the “
Aggregate Unpaids
”).
SECTION 5.02
Delegation of Duties
. The Administrative Agent may execute any of
its duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
20
SECTION 5.03
Exculpatory Provisions
.
Neither the Administrative Agent nor any
of its directors, officers, agents or employees shall be (a) liable for any
action lawfully taken or omitted to be taken by it or them under or in
connection with this Agreement (except for its, their or such Person’s own
gross negligence or willful misconduct), or (b) responsible in any manner to
any Conduit Investor, any Committed Note Purchaser or any Funding Agent for any
recitals, statements, representations or warranties made by HVF contained in
this Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received under or in connection with, this
Agreement for the due execution, legality, value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other document furnished
in connection herewith, or for any failure of HVF to perform its obligations
hereunder, or for the satisfaction of any condition specified in
Article VII
.
The Administrative Agent shall not be under any obligation to any Conduit
Investor, any Committed Note Purchaser or any Funding Agent to ascertain or to
inquire as to the observance or performance of any of the agreements or
covenants contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of HVF. The Administrative Agent shall not be
deemed to have knowledge of any Amortization Event, Potential Amortization
Event, Liquidation Event of Default or Limited Liquidation Event of Default
unless the Administrative Agent has received notice from HVF, any Conduit
Investor, any Committed Note Purchaser or any Funding Agent.
SECTION 5.04
Reliance
. The Administrative Agent shall in all cases
be entitled to rely, and shall be fully protected in relying, upon any document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to HVF),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent shall in all cases be fully justified in failing or
refusing to take any action under this Agreement or any other document
furnished in connection herewith unless it shall first receive such advice or
concurrence of any Conduit Investor, any Committed Note Purchaser or any
Funding Agent as it deems appropriate or it shall first be indemnified to its
satisfaction by any Conduit Investor, any Committed Note Purchaser or any
Funding Agent,
provided
that unless and until the Administrative Agent
shall have received such advice, the Administrative Agent may take or refrain
from taking any action, as the Administrative Agent shall deem advisable and in
the best interests of the Conduit Investors, the Committed Note Purchasers and
the Funding Agents. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, in accordance with a request
of the Required Noteholders and such request and any action taken or failure to
act pursuant thereto shall be binding upon the Conduit Investors, the Committed
Note Purchasers and the Funding Agents.
SECTION 5.05
Non-Reliance on the
Administrative Agent and Other Purchasers
.
Each of the Conduit Investors, the Committed Note Purchasers and the
Funding Agents expressly acknowledge that neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereafter taken, including, without limitation, any
review of the affairs of HVF, shall be deemed to
21
constitute any representation or warranty by the Administrative Agent.
Each of the Conduit Investors, the Committed Note Purchasers and the Funding
Agents represent and warrant to the Administrative Agent that they have and
will, independently and without reliance upon the Administrative Agent and
based on such documents and information as they have deemed appropriate, made
their own appraisal of and investigation into the business, operations,
property, prospects, financial and other conditions and creditworthiness of HVF
and made its own decision to enter into this Agreement.
SECTION 5.06
The Administrative Agent
in its Individual Capacity
. The
Administrative Agent and any of its Affiliates may make loans to, accept
deposits from, and generally engage in any kind of business with HVF or any
Affiliate of HVF as though the Administrative Agent were not the Administrative
Agent hereunder.
SECTION 5.07
Successor Administrative
Agent
. The Administrative Agent may,
upon 30 days notice to HVF and each of the Conduit Investors, the Committed Note
Purchasers and the Funding Agents, and the Administrative Agent will, upon the
direction of Investor Groups holding more than 75% of the Series 2008-1 Maximum
Principal Amount, resign as Administrative Agent. If the Administrative Agent
shall resign, then the Investor Groups, during such 30-day period, shall
appoint an Affiliate of a member of the Investor Groups as a successor agent.
If for any reason no successor Administrative Agent is appointed by the
Investor Groups during such 30-day period, then effective upon the expiration
of such 30-day period, HVF shall make all payments in respect of the Aggregate
Unpaids or under any fee letter delivered in connection herewith directly to
the Funding Agents and for all purposes shall deal directly with the Funding
Agents. After any retiring Administrative Agent’s resignation hereunder as
Administrative Agent, the provisions of
Section 9.05
and this
Article V
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was the Administrative Agent under this Agreement.
SECTION 5.08
Authorization and Action
of Funding Agents
. Each Conduit
Investor and each Committed Note Purchaser is hereby deemed to have designated
and appointed the Funding Agent set forth next to such Conduit Investor’s name,
or if there is no Conduit Investor with respect to any Investor Group, the
Committed Note Purchaser’s name with respect to such Investor Group, on
Schedule
I
hereto as the agent of such Person hereunder, and hereby authorizes such
Funding Agent to take such actions as agent on its behalf and to exercise such
powers as are delegated to such Funding Agent by the terms of this Agreement
together with such powers as are reasonably incidental thereto. Each Funding
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with the related Investor Group,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of such Funding Agent shall be read into this Agreement
or otherwise exist for such Funding Agent. In performing its functions and
duties hereunder, each Funding Agent shall act solely as agent for the related
Investor Group and does not assume nor shall it be deemed to have assumed any
obligation or relationship of trust or agency with or for HVF or any of its
successors or assigns. Each Funding Agent shall not be required to take any
action that exposes such Funding Agent to personal liability or that is
contrary to this Agreement or Applicable Law. The
22
appointment and authority of the Funding Agent hereunder shall
terminate upon the indefeasible payment in full of the Aggregate Unpaids.
SECTION 5.09
Delegation of Duties
. Each Funding Agent may execute any of its
duties under this Agreement by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. Each Funding Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
SECTION 5.10
Exculpatory Provisions
.
Each Funding Agent and any of its
directors, officers, agents or employees shall not be (a) liable for any action
lawfully taken or omitted to be taken by it or them under or in connection with
this Agreement (except for its, their or such Person’s own gross negligence or
willful misconduct), or (b) responsible in any manner to the related Investor
Group for any recitals, statements, representations or warranties made by HVF
contained in this Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received under or in connection
with, this Agreement, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other document furnished
in connection herewith, or for any failure of HVF to perform its obligations
hereunder, or for the satisfaction of any condition specified in
Article VII
.
Each Funding Agent shall not be under any obligation to the related Investor
Group to ascertain or to inquire as to the observance or performance of any of
the agreements or covenants contained in, or conditions of, this Agreement, or
to inspect the properties, books or records of HVF. Each Funding Agent shall
not be deemed to have knowledge of any Amortization Event, Potential
Amortization Event, Liquidation Event of Default or Limited Liquidation Event
of Default unless such Funding Agent has received notice from HVF or the
related Investor Group.
SECTION 5.11
Reliance
. Each Funding Agent shall in all cases be
entitled to rely, and shall be fully protected in relying, upon any document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
the Administrative Agent and legal counsel (including, without limitation,
counsel to HVF), independent accountants and other experts selected by such Funding
Agent. Each Funding Agent shall in all cases be fully justified in failing or
refusing to take any action under this Agreement or any other document
furnished in connection herewith unless it shall first receive such advice or
concurrence of the related Investor Group as it deems appropriate or it shall
first be indemnified to its satisfaction by the related Investor Group,
provided
that unless and until such Funding Agent shall have received such advice, such
Funding Agent may take or refrain from taking any action, as such Funding Agent
shall deem advisable and in the best interests of the related Investor Group.
Each Funding Agent shall in all cases be fully protected in acting, or in
refraining from acting, in accordance with a request of the related Investor
Group and such request and any action taken or failure to act pursuant thereto
shall be binding upon the related Investor Group.
23
SECTION 5.12
Non-Reliance on the
Funding Agent and Other Purchasers
. The related Investor Group expressly
acknowledges that its Funding Agent and any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates has not made any
representations or warranties to it and that no act by such Funding Agent
hereafter taken, including, without limitation, any review of the affairs of
HVF, shall be deemed to constitute any representation or warranty by such
Funding Agent. The related Investor Group represents and warrants to such
Funding Agent that it has and will, independently and without reliance upon
such Funding Agent and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, prospects, financial and other conditions and
creditworthiness of HVF and made its own decision to enter into this Agreement.
SECTION 5.13
The Funding Agent in its
Individual Capacity
. Each Funding
Agent and any of its Affiliates may make loans to, accept deposits from, and generally
engage in any kind of business with HVF or any Affiliate of HVF as though such
Funding Agent were not a Funding Agent hereunder.
SECTION 5.14
Successor Funding Agent
.
Each Funding Agent will, upon the
direction of the related Investor Group, resign as such Funding Agent. If such
Funding Agent shall resign, then the related Investor Group shall appoint an
Affiliate of a member of the related Investor Group as a successor agent. If
for any reason no successor Funding Agent is appointed by the related Investor
Group, then effective upon the resignation of such Funding Agent, HVF shall
make all payments in respect of the Aggregate Unpaids due to such Investor
Group or under any fee letter delivered in connection herewith directly to such
Investor Group and for all purposes shall deal directly with such Investor
Group. After any retiring Funding Agent’s resignation hereunder as Funding
Agent, subject to the limitations set forth herein, the provisions of
Section
9.05
and this
Article V
shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Funding Agent under
this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01
HVF
. HVF represents and warrants to each Conduit
Investor and each Committed Note Purchaser that each of its representations and
warranties in the Base Indenture, and the other Related Documents is true and
correct and further represents and warrants to such parties that:
(a) no
Amortization Event with respect to any Series of Notes, Liquidation Event of
Default or Limited Liquidation Event of Default with respect to any Series of
Notes or event which, with the giving of notice or the passage of time or both
would constitute any of the foregoing, has occurred and is continuing;
(b) assuming
each Conduit Investor or other purchaser of the Series 2008-1 Notes hereunder
is not purchasing with a view toward further distribution
24
and there has been
no general solicitation or general advertising within the meaning of the
Securities Act, and further assuming that the representations and warranties of
each Conduit Investor set forth in
Section 6.03
of this Agreement are
true and correct, the offer and sale of the Series 2008-1 Notes in the manner
contemplated by this Agreement is a transaction exempt from the registration
requirements of the Securities Act, and the Base Indenture is not required to
be qualified under the Trust Indenture Act;
(c) HVF
has furnished to the Administrative Agent true, accurate and complete copies of
all other Related Documents (excluding Series Supplements and other Related
Documents relating solely to a Series of Notes other than the Series 2008-1
Notes) to which it is a party as of the Series 2008-1 Closing Date, all of
which Related Documents are in full force and effect as of the Series 2008-1
Closing Date and no terms of any such agreements or documents have been
amended, modified or otherwise waived as of such date, other than such
amendments, modifications or waivers about which HVF has informed each Funding
Agent; and
(d)
as of the Series 2008-1 Closing Date, no written
information furnished by HVF or any of its Affiliates, agents or
representatives to the Conduit Investors, the Committed Note Purchasers, the
Administrative Agent or the Funding Agents for purposes of or in connection
with this Agreement, including, without limitation, any information relating to
the Collateral, is inaccurate in any material respect, or contains any material
misstatement of fact, or omits to state a material fact or any fact necessary
to make the statements contained therein not misleading, in each case as of the
date such information was stated or certified.
SECTION 6.02
Administrator
. The Administrator represents and warrants to
each Conduit Investor and each Committed Note Purchaser that:
(a) each
representation and warranty made by it in each Related Document (other than a
Related Document relating solely to a Series of Notes other than the Series
2008-1 Notes) to which it is a party (including any representations and
warranties made by it as Administrator) is true and correct in all material
respects as of the date originally made, as of the date hereof and as of the
Series 2008-1 Closing Date (unless stated to relate solely to an earlier date,
in which case such representations and
warranties shall be true and correct as of such earlier date); and
(b) (i)
the audited consolidated balance sheet of The Hertz Corporation and its
Consolidated Subsidiaries as of December 31, 2007 and the related statements of
income, stockholders equity and cash flows for the year ending on such date and
(ii) the unaudited condensed consolidated balance sheet of The Hertz
Corporation and its Consolidated Subsidiaries as of June 30, 2008 and the
related statements of income, stockholders equity and cash flows for the six
months ending on such date (including in each case the schedules and notes
thereto) (the “
Financial Statements
”), have been prepared in accordance
with
25
GAAP and present fairly the financial position of The
Hertz Corporation and its Consolidated Subsidiaries as of the date thereof and
the results of their operations and their cash flows for the periods covered
thereby.
SECTION 6.03
Conduit Investors
. Each of the Conduit Investors and each of the
Committed Note Purchasers represents and warrants to HVF and the Administrator,
as of the date hereof (or as of a subsequent date on which a successor or
assign of a Conduit Investor or a Committed Note Purchaser shall become a party
hereto), that:
(a) it
has had an opportunity to discuss HVF’s and the Administrator’s business,
management and financial affairs, and the terms and conditions of the proposed
purchase, with HVF and the Administrator and their respective representatives;
(b) it
is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act and has sufficient knowledge and
experience in financial and business matters to be capable of evaluating the
merits and risks of investing in, and is able and prepared to bear the economic
risk of investing in, the Series 2008-1 Notes;
(c) it
is purchasing the Series 2008-1 Notes for its own account, or for the account
of one or more “accredited investors” within the meaning of Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act that meet the criteria
described in
subsection (b)
and for which it is acting with complete
investment discretion, for investment purposes only and not with a view to
distribution, subject, nevertheless, to the understanding that the disposition
of its property shall at all times be and remain within its control;
(d) it
understands that the Series 2008-1 Notes have not been and will not be
registered or qualified under the Securities Act or any applicable state
securities laws or the securities laws of any other jurisdiction and is being
offered only in a transaction not involving any public offering within the
meaning of the Securities Act and may not be resold or otherwise transferred
unless so registered or qualified or unless an exemption from registration or
qualification is available, that HVF is not required to register the Series
2008-1 Notes, and that any transfer must comply with provisions of Section 2.8
of the Base Indenture;
(e) it
understands that the Series 2008-1 Notes will bear the legend set out in the
form of Series 2008-1 Notes attached as Exhibit A to the Series 2008-1
Supplement and be subject to the restrictions on transfer described in such
legend;
(f) it
will comply with all applicable federal and state securities laws in connection
with any subsequent resale of the Series 2008-1 Notes;
(g) it
understands that the Series 2008-1 Notes may be offered, resold, pledged or
otherwise transferred only with HVF’s prior written consent, which consent
shall not be unreasonably withheld, and only (A) to HVF, (B) in a
26
transaction
meeting the requirements of Rule 144A under the Securities Act,
(C) outside the United States to a foreign person in a transaction meeting
the requirements of Regulation S under the Securities Act, or (D) in a
transaction complying with or exempt from the registration requirements of the
Securities Act and in accordance with any applicable securities laws of any
state of the United States or any other jurisdiction; notwithstanding the
foregoing, it is hereby understood and agreed by HVF that the Series 2008-1
Notes will be pledged by each Conduit Investor pursuant to its related commercial paper program documents, and the
Series 2008-1 Notes, or interests therein, may be sold, transferred or pledged
to its related Committed Note Purchaser or any Program Support Provider or any
affiliate of its related Committed Note Purchaser or any Program Support
Provider or, any commercial paper conduit administered by its related Committed
Note Purchaser or any Program Support Provider or any affiliate of its related
Committed Note Purchaser or any Program Support Provider;
(h) if
it desires to offer, sell or otherwise transfer, pledge or hypothecate the
Series 2008-1 Notes as described in
clause (B)
or
(D)
of
Section
6.03(g)
, and such sale, transfer or pledge does not fall within the
“notwithstanding the foregoing” provision of
Section 6.03(g)
, the
transferee of the Series 2008-1 Notes will be required to deliver a
certificate, as described in the Series 2008-1 Supplement, that an exemption
from the registration requirements of the Securities Act applies to such offer,
sale, transfer or hypothecation. Upon original issuance thereof, and until such
time as the same may no longer be required under the applicable requirements of
the Securities Act, the certificate evidencing the Series 2008-1 Notes (and all
securities issued in exchange therefor or substitution thereof) shall bear a
legend substantially in the form set forth in the Series 2008-1 Notes included
as an exhibit to the Series 2008-1 Supplement. Each Conduit Investor
understands that the registrar and transfer agent for the Series 2008-1 Notes
will not be required to accept for registration of transfer the Series 2008-1
Notes acquired by it, except upon presentation of an executed letter in the
form required by the Series 2008-1 Supplement; and
(i) it
will obtain from any purchaser of the Series 2008-1 Notes substantially the
same representations and warranties contained in the foregoing paragraphs.
ARTICLE VII
CONDITIONS
SECTION 7.01
Conditions to Issuance
.
Each Conduit Investor has no obligation
to purchase the Series 2008-1 Notes hereunder on the Series 2008-1 Closing Date
unless:
(a) the
Base Indenture and the Series 2008-1 Supplement shall be in full force and
effect;
27
(b)
The Funding Agents shall have received copies of
(i) the Certificate of Incorporation and By-Laws of Hertz and the certificate
of formation and limited liability company agreement of each of HVF and the
Nominee certified by the Secretary of State of the state of incorporation or
organization, as the case may be, (ii) board of directors resolutions of
HVF, Hertz and the Nominee with respect to the transactions contemplated by the
Series 2008-1 Supplement and this Agreement, and (iii) an incumbency
certificate of HVF, Hertz and the Nominee, each certified by the secretary or
equivalent officer of the related entity in form and substance reasonably
satisfactory to the Administrative Agent
;
(c) on
the Series 2008-1 Closing Date, each Conduit Investor, or if there is no Conduit
Investor with respect to any Investor Group, the Committed Note Purchaser with
respect to such Investor Group, shall have received a letter, in form and
substance reasonably satisfactory to it, from each of Moody’s and S&P
stating that an explicit public long term credit rating of “A2” (in the case of
Moody’s) and “A” (in the case of S&P) has been assigned to the Series
2008-1 Notes;
(d)
each Conduit Investor and each Committed Note
Purchaser shall have received opinions of counsel (i) from Weil, Gotshal &
Manges LLP, or other counsel acceptable to the Conduit Investors and the
Committed Note Purchasers, with respect to such matters as any such Conduit
Investor or Committed Note Purchaser shall reasonably request (including,
without limitation, regarding non-consolidation, true lease, true-sale and UCC
security interest matters, tax and no-conflicts), (ii) from counsel to the
Trustee acceptable to the Conduit Investors and the Committed Note Purchasers
with respect to such matters as any such Conduit Investor or Committed Note
Purchaser shall reasonably request and (iii) from counsel to each Series 2008-1
Letter of Credit Provider, if any, with respect to such matters as any such
Conduit Investor or Committed Note Purchaser shall reasonably request;
(e) each
Conduit Investor and each Committed Note Purchaser shall have received copies
of the documents specified in Section 2.2(b) of the Base Indenture relating to
the issuance of the Series 2008-1 Notes;
(f) at
the time of such issuance, all conditions to the issuance of the Series 2008-1
Notes under the Series 2008-1 Supplement and under Section 2.2 of the Base
Indenture shall have been satisfied or waived;
(g)
the Administrative Agent shall
have received evidence satisfactory to them of the completion of all UCC
filings as may be necessary to perfect or evidence the assignment by HVF to the
Trustee or the Collateral Agent on behalf of the Trustee of its interests in
the Collateral, the proceeds thereof and the security interests granted
pursuant to the Base Indenture and the Collateral Agency Agreement
;
28
(h) the
Administrative Agent shall have received a written search report listing all
effective financing statements that name HVF, HGI, Hertz or the Nominee as
debtor or assignor and that are filed in the State of Delaware and in any other
jurisdiction that the Administrative Agent determines is necessary or
appropriate, together with copies of such financing statements, and tax and
judgment lien searches showing no such liens that are not permitted by the Base
Indenture, the Series 2008-1 Supplement, this Agreement or the other Related
Documents; and
(i) the
Administrative Agent, each Committed Note Purchaser, each Conduit Lender and
each Funding Agent, as applicable, shall have received payment of the
Structuring Fee and all fees due and payable pursuant to the Syndication
Agreement and the Syndication Fee Letter, if any, in each case, as of the
Series 2008-1 Closing Date.
SECTION 7.02
Conditions to Initial
Borrowing
. The obligation of the
Conduit Investors, or if there is no Conduit Investor with respect to any
Investor Group, the Committed Note Purchaser with respect to such Investor
Group, to fund the initial Borrowing hereunder shall be subject to the
satisfaction of the conditions precedent that each Funding Agent shall have
received a duly executed and authenticated Series 2008-1 Note registered in its
name or in such other name as shall have been directed by the applicable
Committed Note Purchaser and stating that the principal amount thereof shall
not exceed the Maximum Investor Group Principal Amount of such Funding Agent’s
Investor Group and HVF shall have paid all fees required to be paid by it on
the Series 2008-1 Closing Date, including all fees required hereunder.
SECTION 7.03
Conditions to Each
Borrowing
. The election of each
Conduit Investor to fund, and the obligation of each Committed Note Purchaser
to fund, any Borrowing on any day (including the initial Borrowing) shall be
subject to the conditions precedent that on the date of the Borrowing, before
and after giving effect thereto and to the application of any proceeds
therefrom, the following statements shall be true:
(a) (i) the
representations and warranties of HVF set out in this Agreement (with the
exception of
Sections 6.01(a)
(to the extent such representations and
warranties relate to any Series of Notes other than the Series 2008-1 Notes),
6.01(b)
and
6.01(d)
, which shall have been true and accurate in all respects on
the Series 2008-1 Closing Date), (ii) the representations and warranties
of the Administrator set out in this Agreement (with the exception of
Section
6.02(a)
, which shall have been true and accurate on the dates specified
therein), and (iii) the representations and warranties of HVF, the Nominee
and the Administrator set out in the Base Indenture and the other Related
Documents (other than Series Supplements and Related Documents relating solely
to a Series of Notes other than the Series 2008-1 Notes) to which each is a
party, in each such case, shall be true and accurate as of the date of the
Borrowing with the same effect as though made on that date (unless stated to relate
solely to an earlier date,
29
in which case such
representations and warranties shall be true and correct as of such earlier
date);
(b) the
Series 2008-1 Rapid Amortization Period has not commenced;
(c) the
related Funding Agent shall have received the Monthly Noteholders’ Statement
for the Series 2008-1 Notes for the Related Month immediately preceding the
date of such Borrowing and an executed advance request in the form of
Exhibit
A
hereto (each such request, an “
Advance Request
”) certifying as to
the current Aggregate Asset Amount and the Series 2008-1 Enhancement Amount;
(d) all
conditions to such Borrowing specified in
Section 2.02(a)
of this
Agreement shall have been satisfied;
(e)
subject to Section 8.7(b) of the Base Indenture,
the Series 2008-1 Related Documents shall be in full force and effect
; and
(f) the
Series 2008-1 Letter of Credit has been issued and remains outstanding and in
full force and effect.
The giving of any notice
pursuant to
Section 2.03
shall constitute a representation and warranty
by HVF and the Administrator that all conditions precedent to such Borrowing
have been satisfied.
ARTICLE VIII
COVENANTS
SECTION 8.01
Covenants
. HVF and the Administrator each severally
covenants and agrees that, until the Series 2008-1 Notes have been paid in full
and the Term has expired, it will:
(a) duly
and timely perform all of its covenants (both affirmative and negative) and
obligations under each Related Document to which it is a party;
(b) not,
except as contemplated by Section 3.2(a) of the Base Indenture or clauses (iii)
through (viii) of Section 12.1(a) of the Base Indenture, amend, modify, waive
or give any approval, consent or permission under, any provision of the Base
Indenture or any other Series 2008-1 Related Document to which it is a party or
agree to terminate any Series 2008-1 Related Document to which it is a party
unless (i) any such amendment, modification, waiver, termination or other
action is in writing and made in accordance with the terms of the Base
Indenture or such other Series 2008-1 Related Document, as applicable; (ii)
Series 2008-1 Noteholders holding more than 50% of the Series 2008-1 Principal
Amount have consented thereto and (iii) such amendment shall have satisfied the
Series 2008-1 Rating Agency Condition;
provided
, that in any such case,
if the Base Indenture, the Series 2008-1 Supplement or any other Series 2008-1
Related Document requires the consent of each affected Noteholder or a
30
higher percentage
of Noteholders, such unanimous consent or the consent of such higher percentage
of Noteholders shall be obtained prior to such amendment, modification, waiver,
approval, consent or permission;
provided
further
that in
addition to the rights granted to Noteholders with respect to amendments or
modifications described in Section 12.2(i) and 12.2(ii) of the Base Indenture,
HVF and the Administrator agree that any amendment or modification described in
Section 12.2(iii) of the Base Indenture shall require the consent of Series
2008-1 Noteholders holding 100% of the Series 2008-1 Principal Amount.
(c) (i)
at the same time any report, notice, certificate, opinion
(other
than any bankruptcy timing memorandum) or other document is provided to the
Rating Agencies and/or the Trustee, or caused to be provided, by HVF or the
Administrator under the Base Indenture (including, without limitation, under
Sections 8.8
,
8.9
and/or
8.12
thereof), or under the Series 2008-1 Supplement or this Agreement, provide the
Administrative Agent (who shall provide a copy thereof to the Committed Note
Purchasers and the Conduit Investors) with a copy of such report, notice,
certificate, opinion (other than any bankruptcy timing memorandum) or other
document;
provided
,
however
, that neither the Administrator nor
HVF shall have any obligation under this
Section 8.01(c)
to deliver to
the Administrative Agent copies of any Monthly Noteholders’ Statements which
relate solely to a Series of Notes other than the Series 2008-1 Notes and (ii)
provide the Administrative Agent and each Funding Agent such other information
(including financial information), documents, records or reports respecting the
Collateral, HVF or the Administrator as the Administrative Agent or any Funding
Agent may from time to time reasonably request;
(d) at
any time and from time to time, following reasonable prior notice from the
Administrative Agent or any Funding Agent, and during regular business hours,
permit the Administrative Agent or any Funding Agent, or their respective
agents or representatives (including any independent public accounting firm or
other third party auditors) or permitted assigns, access to the offices of, the
Administrator, Hertz, HVF, the Intermediary and the Nominee, as applicable,
(i) to examine and make copies of and abstracts from all documentation
relating to the Series 2008-1 Collateral on the same terms as are provided to
the Trustee under Section 8.6 of the Base Indenture, and (ii) to
visit the offices and properties of, the Administrator, Hertz, HVF, the
Intermediary and the Nominee for the purpose of examining such materials
described in
clause (i)
above, and to discuss matters relating to
the Series 2008-1 Collateral, or the administration and performance of the Base
Indenture, the Series 2008-1 Supplement and the other Related Documents with
any of the officers or employees of, the Administrator, Hertz, HVF, the Intermediary
and/or the Nominee, as applicable, having knowledge of such matters;
provided
that such visits shall be at HVF’s sole cost and expense (i) prior to the
occurrence of an Amortization Event or Potential Amortization Event, in each
case, with respect to the Series 2008-1 Notes, for no more than one such visit
in the aggregate per annum for the Administrative Agent and each Funding Agent
collectively and (ii) after the occurrence and during the continuance of an
Amortization Event or Potential Amortization Event, in each
31
case, with respect
to the Series 2008-1 Notes, for each such visit. Each party making a request
pursuant to this
Section 8.01(d)
shall simultaneously send a copy of
such request to each of the Administrative Agent and each Funding Agent, as
applicable, so as to allow such other parties to participate in the requested
visit.
(e) not
permit any part of the proceeds of any Advance to be (x) used to purchase or
carry any Margin Stock or (y) loaned to others for the purpose of purchasing or
carrying any Margin Stock;
(f) not
permit any amounts owed with respect to the Series 2008-1 Notes to be secured,
directly or indirectly, by any Margin Stock;
(g) promptly
provide such additional financial and other information with respect to the
Related Documents (other than Series Supplements and Related Documents relating
solely to a Series of Notes other than the Series 2008-1 Notes), HVF, Hertz,
the Intermediary or the Manufacturer Programs as the Administrative Agent or
any Funding Agent may from time to time reasonably request;
(h)
on and after the
Expected Final Payment Date, use all amounts allocated to and available for
distribution from each excess collection account in respect of each Series of
Notes (other than in respect of the Series 2005-3 Notes and the Series 2005-4
Notes during the Series 2005-3 Rapid Amortization Period or the Series 2005-4
Rapid Amortization Period) to decrease the Series 2008-1 Principal Amount;
(i) deliver
to each Funding Agent within 120 days after the end of each fiscal year of HVF,
the financial statements prepared pursuant to Section 8.24(d) of the Base
Indenture;
(j) in
the case of the Administrator, for so long as a Liquidation Event of Default or
Limited Liquidation Event of Default for any Series of Notes is continuing,
furnish or cause the Servicer to furnish to the Administrative Agent and each
Series 2008-1 Noteholder, the Fleet Report, prepared in accordance with Section
2.4(d) of the Collateral Agency Agreement (which may be on a diskette or other
electronic medium); and
(k) HVF
and the Administrator agree to take any and all acts and to execute any and all
further instruments necessary or reasonably requested by the Administrative
Agent to more fully effect the purposes of this Agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01
Amendments
. No amendment to or waiver of any provision of
this Agreement, nor consent to any departure by the Administrator or HVF, shall
in any event be effective unless the same shall be in writing and signed by the
32
Administrator, HVF, the Administrative Agent, each Conduit Investor and
each Committed Note Purchaser, and in the case of any material amendments, receipt
of written confirmation from each rating agency then rating the Series 2008-1
Notes and the Series 2008-1 Commercial Paper that such amendment will not
result in the reduction or withdrawal of the then current ratings in respect of
the Series 2008-1 Notes or the Series 2008-1 Commercial Paper, as applicable;
provided
,
however
, that, subject to any provision of the Base Indenture or the
Series 2008-1 Supplement requiring the consent of each affected Noteholder or
of a higher percentage of Noteholders, any amendment hereto that does not
adversely affect in any material respect the interests of the Conduit Investors
or the Committed Note Purchasers (as evidenced by an Opinion of Counsel (which
may be based on an Officer’s Certificate) issued by a law firm of nationally
recognized standing to the Trustee and each Funding Agent) shall only require
(i) the consent of the Conduit Investors and Committed Note Purchasers holding
more than 66
2
/
3
% of the Series 2008-1 Notes and the
Commitment, respectively, and (ii) satisfaction of the Series 2008-1 Rating
Agency Condition.
SECTION 9.02
No Waiver; Remedies
. Any waiver, consent or approval given by any
party hereto shall be effective only in the specific instance and for the
specific purpose for which given, and no waiver by a party of any breach or
default under this Agreement shall be deemed a waiver of any other breach or
default. No failure on the part of any party hereto to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder, or any abandonment or
discontinuation of steps to enforce the right, power or privilege, preclude any
other or further exercise thereof or the exercise of any other right. No notice
to or demand on any party hereto in any case shall entitle such party to any
other or further notice or demand in the same, similar or other circumstances.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 9.03
Binding on Successors and
Assigns
. This Agreement shall be
binding upon, and inure to the benefit of, HVF, the Administrator, the
Committed Note Purchasers, the Conduit Investors, the Administrative Agent and
their respective successors and assigns;
provided
,
however
, that
neither HVF nor the Administrator may assign or transfer its rights or
obligations hereunder or in connection herewith or any interest herein
(voluntarily, by operation of law or otherwise) without the prior written
consent of each Committed Note Purchaser and each Conduit Investor;
provided,
that nothing herein shall prevent HVF from assigning its rights to the Trustee
under the Base Indenture and the Series 2008-1 Supplement;
provided
,
further
,
that none of the Conduit Investors or the Committed Note Purchasers may
transfer, pledge, assign, sell participations in or otherwise encumber its
rights or obligations hereunder or in connection herewith or any interest
herein except as permitted under
Section 6.03(g)
,
Section 9.17
and
this
Section 9.03
. Nothing expressed herein is intended or shall be
construed to give any Person other than the Persons referred to in the
preceding sentence any legal or equitable right, remedy or claim under or in
respect of this Agreement.
(a) Notwithstanding any other provision
set forth in this Agreement, each Conduit Investor, or if there is no Conduit
Investor with respect to any Investor
33
Group, the Committed Note Purchaser
with respect to such Investor Group, may at any time grant to one or more
Program Support Providers a participating interest in or lien on such Conduit
Investor’s, or if there is no Conduit Investor with respect to any Investor
Group, the related Committed Note Purchaser’s, interests in the Advances made
hereunder and such Program Support Provider, with respect to its participating
interest, shall be entitled to the benefits granted to such Conduit Investor or
Committed Note Purchaser, as applicable, under this Agreement.
(b) Notwithstanding any other provision
set forth in this Agreement, each Conduit Investor may at any time, without the
consent of HVF, transfer and assign all or a portion of its rights in the
Series 2008-1 Notes (and its rights hereunder and under the Related Documents)
to its related Committed Note Purchaser. Furthermore, each Conduit Investor may
at any time grant a security interest in and lien on, all or any portion of its
interests under this Agreement, its Series 2008-1 Note and all Related
Documents to (i) its related Committed Note Purchaser, (ii) its Funding Agent,
(iii) any Program Support Provider who, at any time now or in the future,
provides program liquidity or credit enhancement, including without limitation,
an insurance policy for such Conduit Investor relating to the Series 2008-1
Commercial Paper or the Series 2008-1 Notes, (iv) any other Person who, at any
time now or in the future, provides liquidity or credit enhancement for the
Conduit Investors, including without limitation, an insurance policy relating
to the Series 2008-1 Commercial Paper or the Series 2008-1 Notes or (v) any
collateral trustee or collateral agent for any of the foregoing;
provided
,
however
, any such security interest or lien shall be released upon
assignment of its Series 2008-1 Note to its related Committed Note Purchaser.
Each Committed Note Purchaser may assign its Commitment, or all or any portion
of its interest under its Series 2008-1 Note, this Agreement and the Related
Documents to any Person with the prior written consent of HVF, such consent not
to be unreasonably withheld. Notwithstanding any other provisions set forth in
this Agreement, each Committed Note Purchaser may at any time create a security
interest in all or any portion of its rights under this Agreement, its Series
2008-1 Note and the Related Documents in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System or any similar foreign entity.
SECTION 9.04
Survival of Agreement
.
All covenants, agreements,
representations and warranties made herein and in the Series 2008-1 Notes
delivered pursuant hereto shall survive the making and the repayment of the
Advances and the execution and delivery of this Agreement and the Series 2008-1
Notes and shall continue in full force and effect until all interest on and
principal of the Series 2008-1 Notes and all other amounts owed to the Conduit
Investors, the Committed Note Purchasers, the Funding Agents and the
Administrative Agent hereunder and under the Series 2008-1 Supplement have been
paid in full and the commitment of the Committed Note Purchasers hereunder has
been terminated. In addition, the obligations of HVF, the Committed Note
Purchasers and the Conduit Investors under
Sections
3.03
,
3.04
,
3.05
,
3.06
,
3.07
,
3.08
,
9.05
,
9.10(b)
and
9.11
shall survive the termination of this Agreement.
SECTION 9.05
Payment of Costs and
Expenses; Indemnification
. (a)
Payment
of Costs and Expenses
. HVF agrees to
pay on demand all reasonable
34
expenses of the Administrative Agent, each Funding Agent, each Conduit
Investor and each Committed Note Purchaser (including the reasonable fees and
out-of-pocket expenses of counsel to each Conduit Investor and each Committed
Note Purchaser, if any, as well as the fees and expenses of the Rating Agencies
providing a rating in respect of any Series 2008-1 Commercial Paper) in
connection with
(i) the negotiation, preparation,
execution, delivery and administration of this Agreement and of each other
Related Document, including schedules and exhibits, and any liquidity, credit
enhancement or insurance documents of a Program Support Provider with respect
to a Conduit Investor relating to the Series 2008-1 Notes and any amendments,
waivers, consents, supplements or other modifications to this Agreement or any
other Related Document as may from time to time hereafter be proposed, whether
or not the transactions contemplated hereby or thereby are consummated, and
(ii) the consummation of the transactions
contemplated by this Agreement and the other Related Documents.
HVF further
agrees to pay, and to save the Administrative Agent, each Funding Agent, each
Conduit Investor and each Committed Note Purchaser harmless from all liability
for (i) any breach by HVF of its obligations under this Agreement,
(ii) all reasonable costs incurred by the Administrative Agent, such
Funding Agent, such Conduit Investor or such Committed Note Purchaser in
enforcing this Agreement and (iii) any stamp, documentary or other taxes
which may be payable in connection with the execution or delivery of this
Agreement, any Borrowing hereunder, or the issuance of the Series 2008-1 Notes
or any other Related Documents. HVF also agrees to reimburse the Administrative
Agent, each Funding Agent, each Conduit Investor and each Committed Note
Purchaser upon demand for all reasonable out-of-pocket expenses incurred by the
Administrative Agent, such Funding Agent, such Conduit Investor or such
Committed Note Purchaser in connection with (x) the negotiation of any
restructuring or “work-out”, whether or not consummated, of the Related
Documents and (y) the enforcement of, or any waiver or amendment requested
under or with respect to, this Agreement or any other of the Related Documents.
Without limiting the foregoing, HVF shall have no
obligation to reimburse any Committed Note Purchaser and/or Conduit Investor
for any of the fees and/or expenses incurred by such Committed Note Purchaser
and/or Conduit Investor with respect to its sale or assignment of all or any
part of its respective rights and obligations under this Agreement and the
Series 2008-1 Notes pursuant to
Section 9.17
;
provided
,
however
,
that HVF shall reimburse each Committed Note Purchaser and/or Conduit Investor
who purchased Series 2008-1 Notes on the Series 2008-1 Closing Date for its
reasonable legal and administrative fees and expenses (excluding any fees
and/or expenses payable to the Rating Agencies) that were incurred by such
Committed Note Purchaser or Conduit Investor in connection with its assignment
and/or sale of its rights under this Agreement and such Series 2008-1 Notes
within 180 days of the Series 2008-1 Closing Date.
35
(b)
Indemnification
. In
consideration of the execution and delivery of this Agreement by the Conduit
Investors and the Committed Note Purchasers, HVF hereby indemnifies and holds
each Conduit Investor and each Committed Note Purchaser and each of their
officers, directors, employees and agents (collectively, the “
Indemnified
Parties
”) harmless from and against any and all actions, causes of action,
suits, losses, costs, liabilities and damages, and reasonable expenses incurred
in connection therewith (irrespective of whether any such Indemnified Party is
a party to the action for which indemnification hereunder is sought and
including, without limitation, any liability in connection with the offering
and sale of the Series 2008-1 Notes), including reasonable attorneys’ fees and
disbursements (collectively, the “
Indemnified Liabilities
”), incurred by
the Indemnified Parties or any of them (whether in prosecuting or defending
against such actions, suits or claims) to the extent resulting from, or arising
out of, or relating to
(i) any transaction financed or to be
financed in whole or in part, directly or indirectly, with the proceeds of any
Advance; or
(ii) the entering into and performance of
this Agreement and any other Related Document by any of the Indemnified Parties,
except for any
such Indemnified Liabilities arising for the account of a particular
Indemnified Party by reason of the relevant Indemnified Party’s gross
negligence or willful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, HVF hereby agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. The indemnity set forth
in this
Section 9.05(b)
shall in no event include indemnification for
any taxes (which indemnification is provided in
Section 3.08
). HVF shall
give notice to the Rating Agencies of any claim for Indemnified Liabilities
made under this Section.
(c)
Indemnification of the
Administrative Agent and each Funding Agent
. (i) In consideration of the execution and
delivery of this Agreement by the Administrative Agent and each Funding Agent,
HVF hereby indemnifies and holds the Administrative Agent and each Funding
Agent and each of their respective officers, directors, employees and agents
(collectively, the “
Agent Indemnified Parties
”) harmless from and
against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and reasonable expenses incurred in connection
therewith (irrespective of whether any such Agent Indemnified Party is a party
to the action for which indemnification hereunder is sought and including,
without limitation, any liability in connection with the offering and sale of
the Series 2008-1 Notes), including reasonable attorneys’ fees and
disbursements (collectively, the “
Agent Indemnified Liabilities
”),
incurred by the Agent Indemnified Parties or any of them (whether in
prosecuting or defending against such actions, suits or claims) to the extent
resulting from, or arising out of, or relating to the entering into and
performance of this Agreement and any other Related Document by any of the
Agent Indemnified Parties, except for any such Agent Indemnified Liabilities
arising for the account of a particular Agent Indemnified Party by reason of
the relevant Agent Indemnified Party’s gross negligence or willful misconduct.
If and to the extent that the foregoing undertaking may be unenforceable for
any reason,
36
HVF hereby agrees to make the maximum contribution to
the payment and satisfaction of each of the Agent Indemnified Liabilities which
is permissible under applicable law. The indemnity set forth in this
Section
9.05(c)(i)
shall in no event include indemnification for any taxes (which
indemnification is provided in
Section 3.08
). HVF shall give notice to
the Rating Agencies of any claim for Agent Indemnified Liabilities made under
this section.
(ii) In consideration of the execution and
delivery of this Agreement by the Administrative Agent, each Funding Agent and
each Committed Note Purchaser, ratably according to its respective Commitment,
hereby indemnifies and holds the Administrative Agent and each of its officers,
directors, employees and agents (collectively, the “
Administrative Agent
Indemnified Parties
”) and each Funding Agent and each of its officers,
directors, employees and agents (collectively, the “
Funding Agent
Indemnified Parties
”, and together with the Administrative Agent
Indemnified Parties, the “
Agent Indemnified Parties
”) harmless from and
against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and reasonable expenses incurred in connection
therewith (solely to the extent not
reimbursed by or on behalf of HVF) (irrespective of whether any such Agent
Indemnified Party is a party to the action for which indemnification hereunder
is sought and including, without limitation, any liability in connection with
the offering and sale of the Series 2008-1 Notes), including reasonable
attorneys’ fees and disbursements (collectively, the “
Agent Indemnified
Liabilities
”), incurred by the Agent Indemnified Parties or any of them
(whether in prosecuting or defending against such actions, suits or claims) to
the extent resulting from, or arising out of, or relating to the entering into
and performance of this Agreement and any other Related Document by any of the
Agent Indemnified Parties, except for any such Agent Indemnified Liabilities
arising for the account of a particular Agent Indemnified Party by reason of
the relevant Agent Indemnified Party’s gross negligence or willful misconduct.
If and to the extent that the foregoing undertaking may be unenforceable for
any reason, each Funding Agent and each Committed Note Purchaser hereby agrees
to make the maximum contribution to the payment and satisfaction of each of the
Agent Indemnified Liabilities which is permissible under applicable law. The
indemnity set forth in this
Section 9.05(c)(ii)
shall in no event
include indemnification for any taxes (which indemnification is provided in
Section
3.08
). Each Committed Note Purchaser shall give notice to the Rating
Agencies of any claim for Agent Indemnified Liabilities made under this
section.
SECTION 9.06
Characterization as Related
Document; Entire Agreement
. This
Agreement shall be deemed to be a Related Document for all purposes of the Base
Indenture and the other Related Documents. This Agreement, together with the
Base Indenture, the Series 2008-1 Supplement, the documents delivered pursuant
to
Section 7.01
and the other Related Documents, including the exhibits
and schedules thereto, contains a final and complete integration of all prior
expressions by the parties hereto with respect to the subject matter hereof and
shall constitute the entire agreement among the parties hereto with respect to
the subject matter hereof, superseding all previous oral statements and other
writings with respect thereto.
37
SECTION 9.07
Notices
. All notices, amendments, waivers, consents and
other communications provided to any party hereto under this Agreement shall be
in writing and addressed, delivered or transmitted to such party at its address
or facsimile number set forth below its signature hereto or at such other
address or facsimile number as may be designated by such party in a written
notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any notice, if transmitted by facsimile,
shall be deemed given when transmitted upon receipt of electronic confirmation
of transmission.
SECTION 9.08
Severability of Provisions
.
Any covenant, provision, agreement or
term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions of this Agreement.
SECTION 9.09
Tax Characterization
. Each party to this Agreement
(a) acknowledges that it is the intent of the parties to this Agreement
that, for accounting purposes and for all Federal, state and local income and
franchise tax purposes, the Series 2008-1 Notes will be treated as evidence of
indebtedness, (b) agrees to treat the Series 2008-1 Notes for all such
purposes as indebtedness and (c) agrees that the provisions of the Related
Documents shall be construed to further these intentions.
SECTION 9.10
No Proceedings; Limited
Recourse
. (a)
HVF
. Each of the parties hereto (other
than HVF) hereby covenants and agrees that, prior to the date which is one year
and one day after the payment in full of any Notes issued by HVF pursuant to
the Base Indenture, it will not institute against, or join with any other
Person in instituting against, HVF, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any Federal or state bankruptcy or similar law, all as more particularly set
forth in Section 13.15 of the Base Indenture and subject to any retained rights
set forth therein;
provided
,
however
, that nothing in this
Section
9.10(a)
shall constitute a waiver of any right to indemnification,
reimbursement or other payment from HVF pursuant to this Agreement, the Series
2008-1 Supplement or the Base Indenture. In the event that a Committed Note
Purchaser (solely in its capacity as such) or a Conduit Investor (solely in its
capacity as such) takes action in violation of this
Section 9.10(a)
, HVF
agrees that it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such a petition by any such Person against HVF
or the commencement of such action and raise the defense that such Person 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
Section 9.10(a)
shall survive the
termination of this Agreement. Nothing contained herein shall preclude
participation by a Committed Note Purchaser or a Conduit Investor in assertion
or defense of its claims in any such proceeding involving HVF. The obligations
of HVF under this Agreement are solely the limited liability company
obligations of HVF. In addition, each of the parties hereto agrees that all
fees, expenses and other costs payable hereunder by HVF shall be payable only
to the extent set forth in Section 13.16 of the Base Indenture and that all
other amounts owed to them by HVF
38
shall be payable solely from amounts that become available for payment
pursuant to the Base Indenture and the Series 2008-1 Supplement.
(b)
The Conduit Investors
. Each of
the parties hereto (other than the Conduit Investors) hereby covenants and
agrees that it will not, prior to the date which is one year and one day after
the payment in full of the latest maturing Series 2008-1 Commercial Paper or
other debt securities or instruments issued by a Conduit Investor, institute
against, or join with any other Person in instituting against, such Conduit
Investor, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any Federal or state
bankruptcy or similar law, subject to any retained rights set forth therein;
provided
,
however
, that nothing in this
Section 9.10(b)
shall constitute a
waiver of any right to indemnification, reimbursement or other payment from
such Conduit Investor pursuant to this Agreement, the Series 2008-1 Supplement
or the Base Indenture. In the event that HVF, the Administrator, a Committed
Note Purchaser (solely in its capacity as such) or Hertz takes action in violation
of this
Section 9.10(b)
, such related Conduit Investor may file an
answer with the bankruptcy court or otherwise properly contest the filing of
such a petition by any such Person against such Conduit Investor or the
commencement of such action and raise the defense that such Person 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
Section 9.10(b)
shall survive the
termination of this Agreement. Nothing contained herein shall preclude
participation by HVF, the Administrator, a Committed Note Purchaser or Hertz in
assertion or defense of its claims in any such proceeding involving a Conduit
Investor. The obligations of the Conduit Investors under this Agreement are
solely the corporate obligations of the Conduit Investors. No recourse shall be
had for the payment of any amount owing in respect of this Agreement, including
any obligation or claim arising out of or based upon this Agreement, against
any stockholder, employee, officer, agent, director, member, affiliate or
incorporator of any Conduit Investor;
provided
,
however
, nothing
in this
Section 9.10(b)
shall relieve any of the foregoing Persons from
any liability which any such Person may otherwise have for its gross negligence
or willful misconduct.
Notwithstanding any provisions contained in this
Agreement to the contrary, the Conduit Investors shall not, and shall not be
obligated to, fund or pay any amount pursuant to this Agreement or the Series
2008-1 Notes unless (i) the respective Conduit Investor has received funds
which may be used to make such funding or other payment and which funds are not
required to repay any of the commercial paper notes (“
CP Notes
”) issued
by such Conduit Investor when due and (ii) after giving effect to such funding
or payment, either (x) such Conduit Investor could issue CP Notes to refinance
all of its outstanding CP Notes (assuming such outstanding CP Notes matured at
such time) in accordance with the program documents governing its commercial
paper program or (y) all of the CP Notes are paid in full. Any amount which a
Conduit Investor does not pay pursuant to the operation of the preceding
sentence shall not constitute a claim (as defined in Section 101 of the
Bankruptcy Code) against or obligation of such Conduit Investor for any such
insufficiency.
39
SECTION 9.11
Confidentiality
. Each Committed Note Purchaser and each Conduit
Investor agrees that it shall not disclose any Confidential Information to any
Person without the prior written consent of the Administrator and HVF, other
than (a) to their Affiliates and their officers, directors, employees, agents
and advisors (including, without limitation, legal counsel and accountants) and
to actual or prospective assignees and participants, and then only on a
confidential basis, (b) as requested by a court or administrative order or
decree, governmental or regulatory authority or self-regulatory organization or
required by any statute, law, rule or regulation or judicial process (including
any subpoena or similar legal process), (c) to any Rating Agency providing a
rating for the Series 2008-1 Notes or the Conduit’s debt, (d) in the course of
litigation with HVF, the Administrator or Hertz, (e) any Series 2008-1
Noteholder, any Committed Note Purchaser, any Conduit Investor, any Funding
Agent or the Administrative Agent, (f) any Person acting as a placement agent
or dealer with respect to any commercial paper (provided that any Confidential
Information provided to any such placement agent or dealer does not reveal the
identity of HVF or any of its Affiliates), (g) on a confidential basis, to
auditors or legal or other professional advisors of any party hereto or (h) to
any Person to the extent such Committed Note Purchaser or Conduit Investor
reasonably determines such disclosure is necessary or appropriate in connection
with the enforcement or for the defense of the rights and remedies under the
Series 2008-1 Notes, the Indenture or any other Related Document.
“
Confidential Information
”
means information that HVF or the Administrator furnishes to a Committed Note
Purchaser or a Conduit Investor, but does not include (i) any such information
that is or becomes generally available to the public other than as a result of
a disclosure by a Committed Note Purchaser or a Conduit Investor or other
Person to which a Committed Note Purchaser or a Conduit Investor delivered such
information, (ii) any such information that was in the possession of a
Committed Note Purchaser or a Conduit Investor prior to its being furnished to
such Committed Note Purchaser or a Conduit Investor by HVF or the
Administrator, or (iii) that is or becomes available to a Committed Note
Purchaser or a Conduit Investor from a source other than HVF or the
Administrator,
provided
that, with respect to
clauses (ii)
and
(iii)
herein, such source is not (1) known to a Committed Note Purchaser or a Conduit
Investor to be bound by a confidentiality agreement with HVF, the
Administrator, Hertz, as the case may be, or (2) known to a Committed Note
Purchaser or a Conduit Investor to be otherwise prohibited from transmitting
the information by a contractual, legal or fiduciary obligation.
SECTION 9.12
Governing Law
. THIS AGREEMENT AND ALL MATTERS ARISING UNDER
OR IN ANY MANNER RELATING TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAW.
SECTION 9.13
Jurisdiction
.
ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST ANY OF THE PARTIES HEREUNDER WITH RESPECT TO THIS SERIES 2008-1 NOTE
PURCHASE AGREEMENT MAY BE
40
BROUGHT IN ANY STATE OR (TO THE EXTENT PERMITTED
BY LAW) FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK AND BY EXECUTION AND DELIVERY OF THIS SERIES
2008-1 NOTE PURCHASE AGREEMENT, EACH PARTY HEREUNDER ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS SERIES 2008-1 NOTE PURCHASE
AGREEMENT.
SECTION 9.14
Waiver of Jury Trial
.
ALL PARTIES HEREUNDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS SERIES 2008-1 NOTE PURCHASE AGREEMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF THE PARTIES IN CONNECTION HEREWITH OR THEREWITH. ALL PARTIES
ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL AND SIGNIFICANT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS SERIES 2008-1 NOTE PURCHASE
AGREEMENT.
SECTION 9.15
Counterparts
. This Agreement may be executed in any number
of counterparts (which may include facsimile) and by the different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original, and all of which together shall constitute one and the same
instrument.
SECTION 9.16
Additional Investor Groups
.
Unless an Amortization Event or a
Potential Amortization Event, in each case, with respect to the 2008-1 Notes
shall have occurred and be continuing, HVF may, upon at least three (3)
Business Days’ prior written notice to each Funding Agent, the Administrative
Agent and each Rating Agency, cause an Additional Investor Group and its
related Funding Agent, Conduit Purchasers, if any, and Committed Note
Purchasers to become parties to this Agreement to increase the Series 2008-1
Maximum Principal Amount by complying with the provisions of this
Section
9.16
and Sections 2.1 and 5.1 of the Series 2008-1 Supplement. Each such
notice shall set forth the name of the Funding Agent, the Conduit Purchasers,
if any, and the Committed Note Purchasers which are members of such Additional
Investor Group, the Maximum Investor Group Principal Amount with respect to
such Additional Investor Group, the related Committed Note Purchaser’s
Committed Note Purchaser Percentage and the desired effective date of such
Additional Investor Group becoming a party to this Agreement. Each Additional
Investor Group shall, upon the execution of an Addendum by such Additional
Investor Group, the Administrative Agent and HVF, become a party to this
Agreement from and after the date of such execution with the same effect as if
such Additional Investor Group had been an original party
41
hereunder and the Administrative Agent shall amend
Schedule I
hereto in accordance with the information provided in the notice described
above.
SECTION 9.17
Assignment
. (a) Any
Committed Note Purchaser may at any time sell all or any part of its rights and
obligations under this Agreement and the Series 2008-1 Notes, with the prior
written consent of HVF, which consent shall not be unreasonably withheld, to
one or more financial institutions (an “
Acquiring Committed Note Purchaser
”)
pursuant to an assignment and assumption agreement, substantially in the form
of
Exhibit B
(the “
Assignment and Assumption Agreement
”),
executed by such Acquiring Committed Note Purchaser, such assigning Committed
Note Purchaser, the Funding Agent with respect to such Committed Note Purchaser
and HVF and delivered to the Administrative Agent;
provided
that the
consent of HVF to any such assignment shall not be required (i) after the
occurrence and during the continuance of an Amortization Event with respect to
the Series 2008-1 Notes or (ii) if such Acquiring Committed Note Purchaser is
an Affiliate of such assigning Committed Note Purchaser.
(b) Without limiting the foregoing, each
Conduit Investor may assign all or a portion of the Investor Group Principal
Amount with respect to such Conduit Investor and its rights and obligations
under this Agreement and any other Related Documents to which it is a party (or
otherwise to which it has rights) to a Conduit Assignee with respect to such
Conduit Investor, without the prior written consent of HVF. Upon such assignment
by a Conduit Investor to a Conduit Assignee, (i) such Conduit Assignee shall be
the owner of the Investor Group Principal Amount or such portion thereof with
respect to such Conduit Investor, (ii) the related administrative or managing
agent for such Conduit Assignee will act as the Funding Agent for such Conduit
Assignee hereunder, with all corresponding rights and powers, express or
implied, granted to the Funding Agent hereunder or under the other Related
Documents, (iii) such Conduit Assignee and its liquidity support provider(s)
and credit support provider(s) and other related parties, in each case relating
to the Series 2008-1 Commercial Paper and/or the Series 2008-1 Notes, shall
have the benefit of all the rights and protections provided to such Conduit
Investor herein and in the other Related Documents (including, without
limitation, any limitation on recourse against such Conduit Assignee as
provided in this paragraph), (iv) such Conduit Assignee shall assume all of
such Conduit Investor’s obligations, if any, hereunder or under the Base
Indenture or under any other Related Document with respect to such portion of
the Investor Group Principal Amount and such Conduit Investor shall be released
from such obligations, (v) all distributions in respect of the Investor Group
Principal Amount or such portion thereof with respect to such Conduit Investor
shall be made to the applicable Funding Agent on behalf of such Conduit
Assignee, (vi) the definition of the term “CP Rate” with respect to the portion
of the Investor Group Principal Amount with respect to such Conduit Investor,
as applicable funded with commercial paper issued by such Conduit Assignee from
time to time shall be determined in the manner set forth in the definition of
“CP Rate” applicable to such Conduit Assignee on the basis of the interest rate
or discount applicable to commercial paper issued by such Conduit Assignee
(rather than any other Conduit Investor), (vii) the defined terms and other
terms and provisions of this Agreement and the other Related Documents shall be
interpreted in accordance with the foregoing, and (viii) if requested by the
Funding Agent with respect to such
42
Conduit Assignee, the parties will
execute and deliver such further agreements and documents and take such other
actions as the Funding Agent may reasonably request to evidence and give effect
to the foregoing. No assignment by any Conduit Investor to a Conduit Assignee
of all or any portion of the Investor Group Principal Amount with respect to
such Conduit Investor shall in any way diminish the obligation of the Committed
Note Purchasers in the same Investor Group as such Conduit Investor under
Section
2.03
to fund
any Increase not funded by such Conduit Investor or such Conduit Assignee.
(c)
Any
Conduit Investor and the Committed Note Purchaser with respect to such Conduit
Investor may at any time sell all or any part of their respective rights and
obligations under this Agreement and the Series 2008-1 Notes, with the prior
written consent of HVF, which consent shall not be unreasonably withheld, to a
multi-seller commercial paper conduit, whose commercial paper has ratings of at
least “A-2” from S&P and “P2” from Moody’s and one or more financial institutions
providing support to such multi-seller commercial paper conduit (an “
Acquiring
Investor Group
”) pursuant to a transfer supplement, substantially in the
form of
Exhibit C
(the “
Investor Group Supplement
”), executed by
such Acquiring Investor Group, the Funding Agent with respect to such Acquiring
Investor Group (including the Conduit Investor and the Committed Note
Purchasers with respect to such Investor Group), such assigning Conduit
Investor and the Committed Note Purchasers with respect to such Conduit
Investor, the Funding Agent with respect to such assigning Conduit Investor and
Committed Note Purchasers and HVF and delivered to the Administrative Agent;
provided
that the consent of HVF to any such assignment shall not be required after the
occurrence and during the continuance of an Amortization Event with respect to
the Series 2008-1 Notes;
provided
further
that it shall not
be considered unreasonable for HVF to withhold its consent to an assignment to
a potential Acquiring Investor Group that has ratings of at least “A-2” from
S&P and “P2” by Moody’s, but does not have ratings of at least “A-1” from
S&P or “P1” by Moody’s if such assignment will result in a material
increase in HVF’s costs of financing with respect to the applicable Series
2008-1 Notes.
(d) Any Committed Note Purchaser may, in
the ordinary course of its business and in accordance with applicable law, at
any time sell to one or more financial institutions or other entities (“
Participants
”)
participations in its Committed Note Purchaser Percentage of the Maximum
Investor Group Principal Amount with respect to it and the other Committed Note
Purchasers included in the related Investor Group, its Series 2008-1 Note and
its rights hereunder (or, in each case, a portion thereof) pursuant to
documentation in form and substance satisfactory to such Committed Note
Purchaser and the Participant;
provided
,
however
, that (i) in the
event of any such sale by a Committed Note Purchaser to a Participant, (A) such
Committed Note Purchaser’s obligations under this Agreement shall remain
unchanged, (B) such Committed Note Purchaser shall remain solely responsible
for the performance thereof and (C) HVF and the Administrative Agent shall
continue to deal solely and directly with such Committed Note Purchaser in
connection with its rights and obligations under this Agreement and (ii) no
Committed Note Purchaser shall sell any participating interest under which the
Participant shall have rights to approve any amendment to, or any consent or
waiver with respect to, this Agreement, the Base Indenture, the Series 2008-1
Supplement or any
43
Related Document, except to the
extent that the approval of such amendment, consent or waiver otherwise would
require the unanimous consent of all Committed Note Purchasers hereunder. A
Participant shall have the right to receive reimbursement for amounts due
pursuant to
Sections 3.05
,
3.06
,
3.07
and
3.08
but
only to the extent that the related selling Committed Note Purchaser would have
had such right absent the sale of the related participation and, with respect
to amounts due pursuant to
Section 3.08
, only to the extent such
Participant shall have complied with the provisions of
Section 3.08
as
if such Participant were a Committed Note Purchaser.
(e) HVF authorizes each Committed Note
Purchaser to disclose to any Participant or Acquiring Committed Note Purchaser
(each, a “
Transferee
”) and any prospective Transferee any and all
financial information in such Committed Note Purchaser’s possession concerning
HVF, the Collateral, the Administrator and the Related Documents which has been
delivered to such Committed Note Purchaser by HVF or the Administrator in
connection with such Committed Note Purchaser’s credit evaluation of HVF, the
Collateral and the Administrator.
[Remainder
of Page Intentionally Blank]
44
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their duly
authorized officers and delivered as of the day and year first above written.
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HERTZ
VEHICLE FINANCING LLC
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By:
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/s/ Scott Massengill
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Name:
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Scott Massengill
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Title:
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Vice President and Treasurer
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Address:
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225
Brae Boulevard
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Park
Ridge, NJ 07656
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Attention:
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Treasury
Department
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|
|
Telephone:
|
(201)
307-2000
|
|
|
Facsimile:
|
(201)307-2746
|
|
|
|
|
|
|
|
Note Purchase Agreement
|
|
THE
HERTZ CORPORATION
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Scott Massengill
|
|
|
|
Name:
|
Scott Massengill
|
|
|
|
Title:
|
Treasurer
|
|
|
|
|
|
|
|
|
Address:
|
225
Brae Boulevard
|
|
|
|
Park
Ridge, NJ 07656
|
|
|
|
|
|
|
Attention:
|
Treasury
Department
|
|
|
Telephone:
|
(201)
307-2000
|
|
|
Facsimile:
|
(201)307-2746
|
|
|
|
|
|
|
Note Purchase Agreement
|
|
DEUTSCHE
BANK SECURITIES INC., as the
Administrative Agent
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ ROBERT SHELDON
|
|
|
|
Name:
|
ROBERT SHELDON
|
|
|
|
Title:
|
DIRECTOR
|
|
|
|
|
|
|
|
|
By:
|
/s/ CHAWEY WU
|
|
|
|
Name:
|
CHAWEY
WU
|
|
|
|
|
Title:
|
VICE PRESIDENT
|
|
|
|
|
|
|
|
Address:
|
60
Wall Street, 19
th
Floor
|
|
|
|
New
York, NY 10005-2858
|
|
|
|
|
|
|
Attention:
|
Tina
Gu
|
|
|
Telephone:
|
(212)
250-0357
|
|
|
Facsimile:
|
(212)
797-5150
|
|
|
|
|
|
|
|
|
|
|
With
electronic copy to abs.conduits@db.com
|
Note Purchase Agreement
|
|
SHEFFIELD
RECEIVABLES CORPORATION,
as a Conduit Investor
|
|
|
|
|
|
|
|
|
|
|
By:
Barclays Bank
PLC, as Attorney-in-Fact
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Shailesh S. Deshpande
|
|
|
Name:
|
Shailesh
S. Deshpande
|
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
Address:
|
200
Park Avenue
|
|
|
|
New
York, New York 10166
|
|
|
|
|
|
|
Attention:
|
Mary
Logan
|
|
|
Telephone:
|
(212)
412-3266
|
|
|
Facsimile:
|
(212)
412-6846
|
|
|
Email:
|
mary.logan@barcap.com
|
|
|
|
|
|
|
|
|
Note Purchase Agreement
|
|
SHEFFIELD
RECEIVABLES CORPORATION,
as a Committed Note Purchaser
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Shailesh S. Deshpande
|
|
|
|
Name:
|
Shailesh
S. Deshpande
|
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
Address:
|
200
Park Avenue
|
|
|
|
New
York, New York 10166
|
|
|
|
|
|
|
Attention:
|
Mary
Logan
|
|
|
Telephone:
|
(212)
412-3266
|
|
|
Facsimile:
|
(212)
412-6846
|
|
|
Email:
|
mary.logan@barcap.com
|
|
|
|
|
|
|
|
|
|
|
COMMITMENT AMOUNT:
|
|
|
$300,000,000
|
|
|
|
|
|
|
|
|
PERCENTAGE:
36.3636%
|
Note
Purchase Agreement
|
|
BARCLAYS
BANK PLC., as a Funding Agent
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Fouad S. Onbargi
|
|
|
|
Name:
|
Fouad
S. Onbargi
|
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
|
|
|
Address:
|
200
Park Avenue
|
|
|
|
New
York, New York 10166
|
|
|
|
|
|
|
|
|
|
|
Attention:
|
Mary
Logan
|
|
|
Telephone:
|
(212)
412-3266
|
|
|
Facsimile:
|
(212)
412-6846
|
|
|
Email:
|
mary.logan@barcap.com
|
Note
Purchase Agreement
|
|
NANTUCKET
FUNDING CORP., LLC, as a
Conduit Investor
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Philip A. Mortone
|
|
|
|
Name:
|
Philip
A. Mortone
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
Address:
|
60
Wall Street, 19
th
Floor
|
|
|
|
New
York, NY 10005-2858
|
|
|
|
|
|
|
Attention:
|
Tina
Gu
|
|
|
Telephone:
|
(212)
250-0357
|
|
|
Facsimile:
|
(212)
797-5150
|
|
|
|
|
|
|
|
|
|
|
With electronic copy to
abs.conduits@db.com
|
Note
Purchase Agreement
|
|
DEUTSCHE BANK AG, NEW
YORK BRANCH,
as Committed Note Purchaser
|
|
|
|
|
|
|
|
|
By:
|
/s/
ROBERT SHELDON
|
|
|
|
Name:
|
ROBERT SHELDON
|
|
|
|
|
Title:
|
DIRECTOR
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
CHAWEY WU
|
|
|
|
Name:
|
CHAWEY WU
|
|
|
|
|
Title:
|
VICE
PRESIDENT
|
|
|
|
|
|
|
|
Address:
|
60
Wall Street, 19
th
Floor
|
|
|
|
New
York, NY 10005-2858
|
|
|
|
|
|
|
Attention:
|
Tina
Gu
|
|
|
Telephone:
|
(212)
250-0357
|
|
|
Facsimile:
|
(212)
797-5150
|
|
|
|
|
|
|
|
|
|
|
With electronic copy to
abs.conduits@db.com
|
|
|
|
|
|
|
|
|
|
COMMITMENT AMOUNT:
|
|
|
|
$300,000,000
|
|
|
|
|
|
|
|
|
|
|
|
PERCENTAGE:
36.3636%
|
|
|
|
|
|
|
|
Note
Purchase Agreement
|
|
DEUTSCHE
BANK AG, NEW YORK BRANCH,
as a Funding Agent
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
ROBERT SHELDON
|
|
|
|
Name:
|
ROBERT SHELDON
|
|
|
|
|
Title:
|
DIRECTOR
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
CHAWEY WU
|
|
|
|
Name:
|
CHAWEY WU
|
|
|
|
|
Title:
|
VICE
PRESIDENT
|
|
|
|
|
|
|
|
|
|
|
|
Address:
|
60
Wall Street, 19
th
Floor
|
|
|
|
New
York, NY 10005-2858
|
|
|
|
|
|
|
|
|
|
|
Attention:
|
Tina
Gu
|
|
|
Telephone:
|
(212)
250-0357
|
|
|
Facsimile:
|
(212)
797-5150
|
|
|
|
|
|
|
|
|
|
|
With electronic copy to
abs.conduits@db.com
|
|
|
|
|
|
|
|
|
Note
Purchase Agreement
|
|
MERRILL LYNCH MORTGAGE
CAPITAL INC.,
as Committed Note Purchaser
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Joseph Magnus
|
|
|
|
Name:
|
Joseph Magnus
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
Address:
|
2
World Financial Center
|
|
|
|
25
th
Floor
|
|
|
|
New
York, New York 10281
|
|
|
|
|
|
|
Attention:
|
Mark
MacDonald
|
|
|
Telephone:
|
(212)
236-2560
|
|
|
Facsimile:
|
(212)
553-2326
|
|
|
Email:
|
Mark_MacDonald@ml.com
|
|
|
|
|
|
|
With
copies to:
|
|
|
|
|
|
|
|
Address:
|
2
World Financial Center
|
|
|
|
25
th
Floor
|
|
|
|
New
York, New York 10281
|
|
|
|
|
|
|
Attention:
|
Chris
Gregory
|
|
|
Telephone:
|
(212)
236-2563
|
|
|
Facsimile:
|
(212)
553-2326
|
|
|
Email:
|
christopher_gregory@ml.com
|
|
|
|
|
|
|
Address:
|
4
World Financial Center
|
|
|
|
11
th
Floor
|
|
|
|
New
York, New York 10080
|
|
|
|
|
|
|
Attention:
|
Bill
Heskett
|
|
|
Telephone:
|
(212)
449-9836
|
|
|
Facsimile:
|
(212)
449-9015
|
|
|
Email:
|
william_heskett@ml.com
|
|
|
|
|
|
|
|
|
|
|
Address:
|
4
World Financial Center
|
|
|
|
11
th
Floor
|
|
|
|
New
York, New York 10080
|
|
|
|
|
|
|
Attention:
|
Olga
Filipenko
|
|
|
Telephone:
|
(212)
449-4928
|
|
|
Facsimile:
|
(212)
449-9015
|
|
|
Email:
|
olga_filipenko@ml.com
|
Note
Purchase Agreement
|
|
Address:
|
4
World Financial Center
|
|
|
|
11
th
Floor
|
|
|
|
New
York, New York 10080
|
|
|
|
|
|
|
Attention:
|
Joseph
Magnus
|
|
|
Telephone:
|
(212)
449-7854
|
|
|
Facsimile:
|
(212)
449-9015
|
|
|
Email:
|
joseph_magnus@ml.com
|
|
|
|
|
|
|
|
|
|
|
COMMITMENT
AMOUNT:
$225,000,000
|
|
|
|
|
|
|
|
|
|
|
|
PERCENTAGE:
27.2727%
|
|
|
|
|
|
[SERIES
2008-1 NOTE PURCHASE AGREEMENT]
|
|
MERRILL
LYNCH MORTGAGE CAPITAL INC.,
as a
Funding Agent
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Joseph Magnus
|
|
|
|
Name:
|
Joseph Magnus
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
Address:
|
2
World Financial Center
|
|
|
|
25
th
Floor
|
|
|
|
New
York, New York 10281
|
|
|
|
|
|
|
Attention:
|
Mark
MacDonald
|
|
|
Telephone:
|
(212)
236-2560
|
|
|
Facsimile:
|
(212)
553-2326
|
|
|
Email:
|
Mark_MacDonald@ml.com
|
|
|
|
|
|
|
With
a copies to:
|
|
|
|
|
|
|
Address:
|
2
World Financial Center
|
|
|
|
25
th
Floor
|
|
|
|
New
York, New York 10281
|
|
|
|
|
|
|
Attention:
|
Chris
Gregory
|
|
|
Telephone:
|
(212)
236-2563
|
|
|
Facsimile:
|
(212)
553-2326
|
|
|
Email:
|
christopher_gregory@ml.com
|
|
|
|
|
|
|
Address:
|
4
World Financial Center
|
|
|
|
11
th
Floor
|
|
|
|
New
York, New York 10080
|
|
|
|
|
|
|
Attention:
|
Bill
Heskett
|
|
|
Telephone:
|
(212)
449-9836
|
|
|
Facsimile:
|
(212)
449-9015
|
|
|
Email:
|
william_heskett@ml.com
|
|
|
|
|
|
|
Address:
|
4
World Financial Center
|
|
|
|
11
th
Floor
|
|
|
|
New
York, New York 10080
|
|
|
|
|
|
|
Attention:
|
Olga
Filipenko
|
|
|
Telephone:
|
(212)
449-4928
|
|
|
Facsimile:
|
(212)
449-9015
|
|
|
Email:
|
olga_filipenko@ml.com
|
Note
Purchase Agreement
|
|
Address:
|
4
World Financial Center
|
|
|
|
11
th
Floor
|
|
|
|
New
York, New York 10080
|
|
|
|
|
|
|
Attention:
|
Joseph
Magnus
|
|
|
Telephone:
|
(212)
449-7854
|
|
|
Facsimile:
|
(212)
449-9015
|
|
|
Email:
|
joseph_magnus@ml.com
|
[SERIES 2008-1
NOTE PURCHASE AGREEMENT]
Schedule I
SHEFFIELD
RECEIVABLES CORPORATION, as a Conduit Investor
BARCLAYS BANK
PLC., as a Committed Note Purchaser
Commitment
Amount: $300,000,000
Committed Note
Purchaser Percentage: 36.3636%
Maximum
Investor Group Principal Amount: $300,000,000
BARCLAYS BANK
PLC., as a Funding Agent for SHEFFIELD RECEIVABLES CORPORATION
NANTUCKET
FUNDING CORP., LLC, as a Conduit Investor
DEUTSCHE BANK
AG NEW YORK BRANCH, as a Committed Note Purchaser
Commitment
Amount: $300,000,000
Committed Note
Purchaser Percentage: 36.3636%
Maximum
Investor Group Principal Amount: $300,000,000
DEUTSCHE BANK
AG, NEW YORK BRANCH, as a Funding Agent for NANTUCKET FUNDING CORP., LLC
[SERIES 2008-1
NOTE PURCHASE AGREEMENT]
MERRILL LYNCH
MORTGAGE CAPITAL INC., as a Committed Note Purchaser
Commitment
Amount: $225,000,000
Committed Note
Purchaser Percentage: 27.2727%
Maximum
Investor Group Principal Amount: $225,000,000
MERRILL LYNCH
MORTGAGE CAPITAL INC., as a Funding Agent for MERRILL LYNCH MORTGAGE CAPITAL
INC.
[SERIES 2008-1
NOTE PURCHASE AGREEMENT]
EXHIBIT
A
TO
SERIES 2008-1 NOTE PURCHASE AGREEMENT
FORM OF ADVANCE REQUEST
HERTZ VEHICLE FINANCING LLC
SERIES 2008-1 VARIABLE FUNDING RENTAL CAR
ASSET BACKED NOTES
To: Addressees on Schedule I hereto
Ladies and
Gentlemen:
This Advance Request is delivered to you pursuant to Section 7.03
of that certain Series 2008-1 Note Purchase Agreement, dated as of September 12,
2008 (as amended, supplemented, restated or otherwise modified from time to
time, the “
Series 2008-1 Note Purchase Agreement
”) among Hertz
Vehicle Financing LLC, the Conduit Investors, the Committed Note Purchasers,
the Funding Agents named therein, The Hertz Corporation, as Administrator and
Deutsche Bank Securities Inc., as Administrative Agent (in such capacity, the “
Administrative
Agent
”).
Unless otherwise defined herein or as the context otherwise requires,
terms used herein have the meaning assigned thereto under Section 1.01 of
the Series 2008-1 Note Purchase Agreement, and if not defined therein,
shall have the meaning assigned thereto under Schedule I of the Base Indenture.
The undersigned hereby requests that an Advance be made in the
aggregate principal amount of
$
on ,
20 .
The undersigned hereby elects that any Advance that is not funded at the
CP Rate by a Conduit Investor or otherwise shall be a Eurodollar Advance and
the related Eurodollar Interest Period shall commence on the date of such
Eurodollar Advance and end on the next Payment Date.
The undersigned hereby certifies that (i) the Aggregate Asset
Amount as of the date hereof is an amount equal to
$
and (ii) the Series 2008-1 Enhancement Amount as of the date hereof
is an amount equal to
$ .
The undersigned hereby acknowledges that the delivery of this Advance
Request and the acceptance by undersigned of the proceeds of the Advance
requested hereby constitute a representation and warranty by the undersigned
that, on the date of such Advance, and before and after giving effect thereto
and to the application of the proceeds therefrom, all conditions set forth in Section 7.03
of the Series 2008-1 Note Purchase Agreement and Section 2.1(b) of
the Series 2008-1 Supplement have been satisfied and all statements set
forth in Section 6.01 of the
A-1
Series 2008-1 Note Purchase Agreement are true
and correct as required pursuant to Section 7.03(a)(i) of the Series 2008-1
Note Purchase Agreement.
The undersigned agrees that if prior to the time of the Advance
requested hereby any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify both you
and each Committed Note Purchaser and each Conduit Investor, if any, in your
Investor Group. Except to the extent, if
any, that prior to the time of the Advance requested hereby you and each
Committed Note Purchaser and each Conduit Investor, if any, in your Investor
Group, shall receive written notice to the contrary from the undersigned, each
matter certified to herein shall be deemed once again to be certified as true
and correct at the date of such Advance as if then made.
Please wire transfer the proceeds of the Advance to the following
account pursuant to the following instructions:
[insert payment instructions]
The undersigned has caused this Advance Request to be executed and
delivered, and the certification and warranties
contained herein to be made, by its duly Authorized Officer this
day of
,
20 .
|
|
HERTZ VEHICLE FINANCING
LLC
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
Title:
|
|
|
SCHEDULE I:
|
|
|
|
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Trustee
|
|
2 North LaSalle Street
|
|
Chicago, IL 60602
|
|
Attention: Corporate
Trust Administration — Structured Finance
|
|
Telephone: 312-827-8663
|
|
Fax: 312-827-8562
|
|
Email:
john.ask@bnymellon.com
|
|
|
|
DEUTSCHE BANK SECURITIES INC.,
as Administrative Agent
|
|
60 Wall Street
|
|
New York, NY 10005-2858
|
|
Attention: Tina Gu
|
|
Telephone: (212)
250-0357
|
|
Fax: (212) 797-5150
|
|
Email: tina.gu@db.com
|
|
|
|
With an electronic copy
to: abs.conduits@db.com
|
|
|
|
BARCLAYS BANK PLC., as a
Funding Agent for SHEFFIELD RECEIVABLES CORPORATION and SALISBURY RECEIVABLES
COMPANY
|
|
Ms. Mary Logan
|
|
Director
|
|
Barclays Bank PLC
|
|
200 Park Avenue
|
|
New York, NY 10166
|
|
Tel: (212) 412-3266
|
|
Fax: (212) 412-6846
|
|
Email:mary.logan@barcap.com
|
|
|
|
DEUTSCHE BANK AG, NEW YORK
BRANCH, as a Funding Agent for NANTUCKET FUNDING CORP., LLC
|
|
60 Wall Street
|
|
New York, NY 10005-2858
|
|
Attention: Tina Gu
|
|
Telephone: (212)
250-0357
|
|
Fax: (212) 797-5150
|
|
Email: tina.gu@db.com
|
|
|
|
With an electronic copy
to: abs.conduits@db.com
|
|
MERRILL LYNCH MORTGAGE CAPITAL
INC., as a Funding Agent and Committed Note Purchaser
|
|
2 World Financial
Center, 25
th
Floor
|
|
New York, NY 10281
|
|
Attention: Mark
MacDonald
|
|
Telephone: (212)
236-2560
|
|
Fax: (212) 553-2326
|
|
Email:
Mark_MacDonald@ml.com
|
|
|
|
with a copy to:
|
|
|
|
2 World Financial
Center, 25
th
Floor
|
|
New York, NY 10281
|
|
Attention: Chris
Gregory
|
|
Telephone: (212)
236-2563
|
|
Fax: (212) 553-2326
|
|
Email: christopher_gregory@ml.com
|
|
|
|
with a copy to:
|
|
|
|
4 World Financial
Center, 11
th
Floor
|
|
New York, NY 10080
|
|
Attention: Bill Heskett
|
|
Telephone: (212)
449-9863
|
|
Fax: (212) 449-9015
|
|
Email:
william_heskett@ml.com
|
|
|
|
with a copy to:
|
|
|
|
4 World Financial
Center, 11
th
Floor
|
|
New York, NY 10080
|
|
Attention: Olga
Filipenko
|
|
Telephone: (212)
449-4928
|
|
Fax: (212) 449-9015
|
|
Email:
olga_filipenko@ml.com
|
|
|
|
with a copy to:
|
|
|
|
4
World Financial Center, 11
th
Floor
|
New York, New York
10080
Attention: Joseph Magnus
Telephone: (212) 449-7854
Facsimile: (212) 449-9015
Email:
joseph_magnus@ml.com
SCHEDULE II:
|
Funding
Allocation by Funding Agent:
|
|
|
|
|
|
|
BARCLAYS
BANK PLC.
|
|
36.3636
|
%
|
$
|
|
|
DEUTSCHE
BANK AG, NEW YORK BRANCH
|
|
36.3636
|
%
|
$
|
|
|
MERRILL
LYNCH MORTGAGE CAPITAL INC.
|
|
27.2727
|
%
|
$
|
|
EXHIBIT
B
TO
SERIES 2008-1 NOTE PURCHASE AGREEMENT
FORM OF ASSIGNMENT AND
ASSUMPTION AGREEMENT
ASSIGNMENT
AND ASSUMPTION AGREEMENT, dated as of [ ],
among [ ] (the “
Transferor
”),
each purchaser listed as an Acquiring Committed Note Purchaser on the signature
pages hereof (each, an “
Acquiring Committed Note Purchaser
”), the
Funding Agent with respect to such Acquiring Committed Note Purchaser listed in
the signature pages hereof (each, a “
Funding Agent
”), and Hertz
Vehicle Financing LLC, a Delaware limited liability company (the “
Company
”).
W
I
T
N
E
S
S
E
T
H:
WHEREAS,
this Assignment and Assumption Agreement is being executed and delivered in
accordance with subsection 9.17(a) of the Series 2008-1 Note Purchase
Agreement, dated as of September 12, 2008 (as from time to time amended,
supplemented or otherwise modified in accordance with the terms thereof, the “
Series 2008-1
Note Purchase Agreement
”; terms defined therein being used herein as
therein defined), among the Company, the Conduit Investors, the Committed Note
Purchasers, the Funding Agents named therein, The Hertz Corporation, as
Administrator and Deutsche Bank Securities Inc., as Administrative Agent (in
such capacity, the “
Administrative Agent
”);
WHEREAS,
each Acquiring Committed Note Purchaser
(if it is not already an existing Committed Note Purchaser) wishes to become a Committed Note
Purchaser party to the Series 2008-1 Note Purchase Agreement; and
WHEREAS,
the Transferor is selling
and
assigning to each Acquiring Committed Note Purchaser, its rights,
obligations and commitments under the Series 2008-1 Note Purchase
Agreement and the Series 2008-1 Notes;
NOW,
THEREFORE, the parties hereto hereby agree as follows:
Upon
the execution and delivery of this Assignment and Assumption Agreement by each
Acquiring Committed Note Purchaser, each Funding Agent, the Transferor and the
Company (the date of such execution and delivery, the “
Transfer Issuance
Date
”), each Acquiring Committed Note Purchaser shall be a Committed Note
Purchaser party to the Series 2008-1 Note Purchase Agreement for all
purposes thereof.
B-1
The
Transferor acknowledges receipt from each Acquiring Committed Note Purchaser of
an amount equal to the purchase price, as agreed between the Transferor and
such Acquiring Committed Note Purchaser (the “
Purchase Price
”), of the
portion being purchased by such Acquiring Committed Note Purchaser (such
Acquiring Committed Note Purchaser’s “
Purchased Percentage
”) of the
Transferor’s Commitment under the Series 2008-1 Note Purchase Agreement
and the Transferor’s Investor Group Invested Amount. The Transferor hereby irrevocably sells,
assigns and transfers to each Acquiring Committed Note Purchaser, without recourse,
representation or warranty, and each Acquiring Committed Note Purchaser hereby
irrevocably purchases, takes and assumes from the Transferor, such Acquiring
Committed Note Purchaser’s Purchased Percentage of the Transferor’s Commitment
under the Series 2008-1 Note Purchase Agreement and the Transferor’s
Investor Group Invested Amount.
The
Transferor has made arrangements with each Acquiring Committed Note Purchaser
with respect to (i) the portion, if any, to be paid, and the date or dates
for payment, by the Transferor to such Acquiring Committed Note Purchaser of
any program fees, undrawn facility fee, structuring and commitment fees or
other fees (collectively, the “
Fees
”) [heretofore received] by the
Transferor pursuant to Section 3.02 of the Series 2008-1 Note
Purchase Agreement prior to the Transfer Issuance Date [and (ii) the
portion, if any, to be paid, and the date or dates for payment, by such
Acquiring Committed Note Purchaser to the Transferor of Fees received by such
Acquiring Committed Note Purchaser pursuant to the Series 2008-1
Supplement from and after the Transfer Issuance Date].
From
and after the Transfer Issuance Date, amounts that would otherwise by payable
to or for the account of the Transferor pursuant to the Series 2008-1
Supplement or the Series 2008-1 Note Purchase Agreement shall, instead, be
payable to or for the account of the Transferor and the Acquiring Committed
Note Purchasers, as the case may be, in accordance with their respective
interests as reflected in this Assignment and Assumption Agreement, whether
such amounts have accrued prior to the Transfer Issuance Date or accrue
subsequent to the Transfer Issuance Date.
Each
of the parties to this Assignment and Assumption Agreement agrees that at any
time and from time to time upon the written request of any other party, it will
execute and deliver such further documents and do such further acts and things
as such other party may reasonably request in order to effect the purposes of
this Assignment and Assumption Agreement.
By
executing and delivering this Assignment and Assumption Agreement, the
Transferor and each Acquiring Committed Note Purchaser confirm to and agree
with each other and the Committed Note Purchasers as follows: (i) other than the representation and warranty
that it is the legal and beneficial owner of the interest being assigned hereby
free and clear of any adverse claim, the Transferor makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Series 2008-1
Supplement, the Series 2008-1 Note Purchase Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Indenture, the Series 2008-1 Notes, the Related Documents or any
instrument or document furnished pursuant thereto; (ii) the Transferor
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Company or the performance or observance by
the
B-2
Company of any of the Company’s obligations under the Indenture, the
Related Documents or any other instrument or document furnished pursuant
hereto; (iii) each Acquiring Committed Note Purchaser confirms that it has
received a copy of the Indenture, the Series 2008-1 Note Purchase
Agreement and such other Related Documents and other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Assumption Agreement; (iv) each Acquiring
Committed Note Purchaser will, independently and without reliance upon the
Administrative Agent, the Transferor or any other Investor Group and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Series 2008-1 Note Purchase Agreement; (v) each Acquiring
Committed Note Purchaser appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the Series 2008-1
Note Purchase Agreement as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are reasonably incidental thereto,
all in accordance with Article 5 of the Series 2008-1 Note Purchase
Agreement; (vi) each Acquiring Committed Note Purchaser appoints and
authorizes a Funding Agent to take such action as agent on its behalf and to
exercise such powers under the Series 2008-1 Note Purchase Agreement as
are delegated to such Funding Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, all in accordance with Article 5
of the Series 2008-1 Note Purchase Agreement, (vii) each Acquiring
Committed Note Purchaser agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Series 2008-1 Note
Purchase Agreement are required to be performed by it as an Acquiring Committed
Note Purchaser and (viii) the Acquiring Committed Note Purchaser hereby
represents and warrants to HVF and the Administrator that the representations
and warranties contained in
Section 6.03
of the Series 2008-1
Note Purchase Agreement are true and correct with respect to the Acquiring
Committed Note Purchaser on and as of the date hereof and the Acquiring
Committed Note Purchaser shall be deemed to have made such representations and
warranties contained in
Section 6.03
of the Series 2008-1 Note
Purchase Agreement on and as of the date hereof.
Schedule
I hereto sets forth the revised Commitment Percentages of the Transferor and
each Acquiring Committed Note Purchaser as well as administrative information
with respect to each Acquiring Committed Note Purchaser and its Funding Agent.
This
Assignment and Assumption Agreement and all matters arising under or in any
manner relating to this Assignment and Assumption Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York, and
the obligations, rights and remedies of the parties hereto shall be determined
in accordance with such law.
B-3
IN
WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption
Agreement to be executed by their respective duly authorized officers as of the
date first set forth above.
|
|
[ ],
as Transferor
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
[ ], as Acquiring Committed Note Purchaser
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
[ ],
as Funding Agent
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
Title:
|
B-4
CONSENTED AND ACKNOWLEDGED:
HERTZ VEHICLE FINANCING LLC
B-5
LIST OF ADDRESSES FOR
NOTICES
AND OF COMMITMENT
PERCENTAGES
DEUTSCHE BANK SECURITIES INC.
, as
Administrative Agent
Address:
Attention:
Telephone:
Facsimile:
[ ]
|
Address:
|
|
[ ]
|
|
|
|
|
|
Attention: [ ]
|
|
|
|
|
|
Telephone: [ ]
|
|
|
|
|
|
Facsimile: [ ]
|
|
|
|
Prior Commitment
Percentage:
|
|
[ ]
|
|
|
|
|
|
|
|
|
|
Revised Commitment
Percentage:
|
|
[ ]
|
|
|
|
|
|
|
|
|
|
Prior Investor Group
Invested Amount:
|
|
[ ]
|
|
|
|
|
|
|
|
|
|
Revised Investor Group
Invested Amount:
|
|
[ ]
|
|
|
|
|
|
|
|
|
|
[
|
|
]
|
|
|
|
|
|
|
|
|
|
Address:
|
|
|
|
|
|
|
|
|
|
|
|
Attention:
|
|
|
|
|
|
|
|
|
|
|
|
Telephone:
|
|
|
|
|
|
Facsimile:
|
|
|
|
|
|
|
|
|
|
|
|
Prior Commitment
Percentage:
|
|
[ ]
|
|
|
|
|
|
|
|
|
|
Revised Commitment
Percentage:
|
|
[ ]
|
|
|
|
|
|
|
|
|
|
Prior Investor Group
Invested Amount:
|
|
[ ]
|
|
|
|
|
|
|
|
|
|
Revised
Investor Group Invested Amount:
|
|
[ ]
|
|
|
EXHIBIT
C
TO
SERIES 2008-1 NOTE PURCHASE AGREEMENT
FORM OF INVESTOR GROUP
SUPPLEMENT
INVESTOR
GROUP SUPPLEMENT, dated as of [ ], among (i) [ ]
(the “
Transferor Investor Group
”), (ii) [ ] (the “
Acquiring
Investor Group
”), (iii) the Funding Agent with respect to the
Acquiring Investor Group listed in the signature pages hereof (each, a “
Funding
Agent
”), and (iv) Hertz Vehicle Financing LLC, a Delaware limited
liability company (the “
Company
”).
W
I
T
N
E
S
S
E
T
H:
WHEREAS,
this Investor Group Supplement is being executed and delivered in accordance
with subsection 9.17(c) of the Series 2008-1 Note Purchase Agreement,
dated as of September [12], 2008 (as from time to time amended,
supplemented or otherwise modified in accordance with the terms thereof, the “
Series 2008-1
Note Purchase Agreement
”; terms defined therein being used herein as
therein defined), among the Company, the Conduit Investors, the Committed Note
Purchasers, the Funding Agents named therein, The Hertz Corporation, as
Administrator and Deutsche Bank Securities Inc., as Administrative Agent (in
such capacity, the “
Administrative Agent
”);
WHEREAS,
the Acquiring Investor Group wishes to become a Conduit Investor and a
Committed Note Purchaser with respect to such Conduit Investor under the Series 2008-1
Note Purchase Agreement; and
WHEREAS,
the Transferor Investor Group is selling
and assigning to the Acquiring Investor Group its respective
rights, obligations and commitments under the Series 2008-1 Note Purchase
Agreement and the Series 2008-1 Notes with respect to the percentage of
its total commitment specified on Schedule I attached hereto;
NOW,
THEREFORE, the parties hereto hereby agree as follows:
Upon
the execution and delivery of this Investor Group Supplement by the Acquiring
Investor Group, each Funding Agent with respect thereto, the Transferor
Investor Group and the Company (the date of such execution and delivery, the “
Transfer
Issuance Date
”), the Conduit Investor and the Committed Note Purchasers
with respect to the Acquiring Investor Group shall be parties to the Series 2008-1
Note Purchase Agreement for all purposes thereof.
The
Transferor Investor Group acknowledges receipt from the Acquiring Investor
Group of an amount equal to the purchase price, as agreed between the
Transferor Investor Group and the Acquiring Investor Group (the “
Purchase
Price
”), of the portion being purchased by the Acquiring Investor Group
(the Acquiring Investor Group’s “
Purchased Percentage
”) of
the Commitment Amount with respect to the Committed Note Purchasers
included in the Transferor Investor Group under the Series 2008-1 Note
Purchase Agreement and the Transferor Investor Group’s Investor Group Principal
Amount. The Transferor Investor Group
hereby irrevocably sells, assigns and transfers to the Acquiring Investor
Group, without recourse, representation or warranty, and the Acquiring Investor
Group hereby irrevocably purchases, takes and assumes from the Transferor
Investor Group, the Acquiring Investor Group’s Purchased Percentage of the
Commitment with respect to the Committed Note Purchasers included in the
Transferor Investor Group under the Series 2008-1 Note Purchase Agreement
and the Transferor Investor Group’s Investor Group Principal Amount.
From
and after the Transfer Issuance Date, amounts that would otherwise be payable
to or for the account of the Transferor Investor Group pursuant to the Series 2008-1
Supplement or the Series 2008-1 Note Purchase Agreement shall, instead, be
payable to or for the account of the Transferor Investor Group and the
Acquiring Investor Group, as the case may be, in accordance with their
respective interests as reflected in this Investor Group Supplement, whether
such amounts have accrued prior to the Transfer Issuance Date or accrue
subsequent to the Transfer Issuance Date.
Each
of the parties to this Investor Group Supplement agrees that at any time and
from time to time upon the written request of any other party, it will execute
and deliver such further documents and do such further acts and things as such
other party may reasonably request in order to effect the purposes of this
Investor Group Supplement.
By
executing and delivering this Investor Group Supplement, the Transferor
Investor Group and the Acquiring Investor Group confirm to and agree with each
other as follows: (i) other than
the representation and warranty that it is the legal and beneficial owner of
the interest being assigned hereby free and clear of any adverse claim, the
Transferor Investor Group makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Series 2008-1 Supplement, the Series 2008-1
Note Purchase Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Indenture, the Series 2008-1
Notes, the Related Documents or any instrument or document furnished pursuant
thereto; (ii) the Transferor Investor Group makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Company or the performance or observance by the Company of any of the
Company’s obligations under the Indenture, the Series 2008-1 Note Purchase
Agreement, the Related Documents or any other instrument or document furnished
pursuant hereto; (iii) the Acquiring Investor Group confirms that it has
received a copy of the Indenture, the Series 2008-1 Note Purchase
Agreement and such other Related Documents and other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Investor Group Supplement; (iv) the Acquiring Investor
Group will, independently and without reliance upon the Administrative Agent,
the Transferor Investor Group or any other Person and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Series 2008-1
Note Purchase Agreement; (v) the Acquiring Investor Group appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Series 2008-1 Note Purchase Agreement as
are delegated to the Administrative Agent by the terms thereof, together with
such powers as are reasonably
C-2
incidental thereto, all in accordance with Article 5 of the Series 2008-1
Note Purchase Agreement; (vi) each member of the Acquiring Investor Group
appoints and authorizes its respective Funding Agent, listed on Schedule I
hereto, to take such action as agent on its behalf and to exercise such powers
under the Series 2008-1 Note Purchase Agreement as are delegated to such
Funding Agent by the terms thereof, together with such powers as are reasonably
incidental thereto, all in accordance with Article 5 of the Series 2008-1
Note Purchase Agreement, (vii) each member of the Acquiring Investor Group
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Series 2008-1 Note Purchase
Agreement are required to be performed by it as a member of the Acquiring
Investor Group and (viii) each member of the Acquiring Investor Group
hereby represents and warrants to HVF and the Administrator that the representations
and warranties contained in
Section 6.03
of the Series 2008-1
Note Purchase Agreement are true and correct with respect to the Acquiring
Investor Group on and as of the date hereof and the Acquiring Investor Group
shall be deemed to have made such representations and warranties contained in
Section 6.03
of the Series 2008-1 Note Purchase Agreement on and as of the date hereof.
Schedule
I hereto sets forth the revised Commitment Percentages of the Transferor
Investor Group and the Acquiring Investor Group, as well as administrative
information with respect to the Acquiring Investor Group and its Funding Agent.
This
Investor Group Supplement and all matters arising under or in any manner
relating to this Investor Group Supplement shall be governed by, and construed
in accordance with, the laws of the State of New York, and the obligations,
rights and remedies of the parties hereto shall be determined in accordance
with such law.
C-3
IN
WITNESS WHEREOF, the parties hereto have caused this Investor Group Supplement
to be executed by their respective duly authorized officers as of the date
first set forth above.
|
|
[ ],
as Transferor Investor Group
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
Title:
|
|
|
|
|
|
[ ],
as Transferor Investor Group
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
[ ]
, as Acquiring Investor Group
|
|
|
|
|
|
By:
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
[ ]
, as Acquiring Investor Group
|
|
|
|
|
|
By:
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
[ ]
, as Funding Agent
|
|
|
|
|
|
By:
|
|
|
|
Title:
|
CONSENTED AND ACKNOWLEDGED:
HERTZ VEHICLE FINANCING LLC
C-4
LIST OF ADDRESSES FOR
NOTICES
AND OF COMMITMENT
PERCENTAGES
EXHIBIT
D
TO
SERIES 2008-1 NOTE PURCHASE AGREEMENT
ADDENDUM TO AGREEMENT
Each of the undersigned
(i) confirms that it has received a copy of the Series 2008-1
Note Purchase Agreement, dated as of September 12, 2008 (as from time to
time amended, supplemented or otherwise modified in accordance with the terms
thereof, the “
Series 2008-1 Note Purchase Agreement
”; terms defined
therein being used herein as therein defined), among HVF, the Conduit
Investors, the Committed Note Purchasers, the Funding Agents named therein, The
Hertz Corporation, as Administrator and Deutsche Bank Securities Inc., as
Administrative Agent (in such capacity, the “
Administrative Agent
”) and
such other agreements, documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Addendum; (ii) appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under the Series 2008-1 Note Purchaser
Agreement as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (iii) agrees
to all of the provisions of the Series 2008-1 Note Purchase Agreement; (iv) agrees
that the related Maximum Investor Group Principal Amount is
$
(including any portion of the Maximum Investor Group Principal Amount of such
Investor Group acquired pursuant to an assignment to such Investor Group as an
Acquiring Investor Group) and the related Committed Note Purchaser’s Committed
Note Purchaser Percentage is percent ( %);
(v) designates
as the Funding Agent for itself, and such Funding Agent hereby accepts such
appointment; (iv) becomes a party to the Series 2008-1 Note Purchase
Agreement and a Conduit Investor, Committed Note Purchaser or Funding Agent, as
the case may be, thereunder with the same effect as if the undersigned were an
original signatory to the Series 2008-1 Note Purchase Agreement; and (v) each
member of the Additional Investor Group hereby represents and warrants that the
representations and warranties contained in Section 6.03 of the Series 2008-1
Note Purchase Agreement are true and correct with respect to the Additional
Investor Group on and as of the date hereof and the Additional Investor Group
shall be deemed to have made such representations and warranties contained in Section 6.03
of the Series 2008-1 Note Purchase Agreement on and as of the date
hereof. The notice address for each
member of the Additional Investor Group is as follows:
[INSERT ADDRESS]
This Addendum shall be effective when a counterpart
hereof, signed by the undersigned, HVF and the Administrative Agent has been
delivered to the parties hereto.
This Addendum shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned have caused this
Addendum to be duly executed and delivered by its duly authorized officer or
agent as of this day of
,
200 .
Schedule II - 1
|
|
[NAME OF ADDITIONAL FUNDING AGENT],
as Funding Agent
|
|
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|
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|
|
By:
|
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|
|
Name:
|
|
|
|
Title:
|
|
|
|
|
|
[NAME OF ADDITIONAL CONDUIT
PURCHASER], as Conduit Investor
|
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|
|
By:
|
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|
|
|
Name:
|
|
|
|
Title:
|
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|
|
|
[NAME OF ADDITIONAL COMMITTED
PURCHASER], as Committed Note Purchaser
|
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|
|
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|
|
By:
|
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|
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Name:
|
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|
Title:
|
|
Acknowledged and Agreed to as of the date
first above written:
|
|
|
|
|
|
HERTZ VEHICLE FINANCING
LLC
|
|
|
|
|
|
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|
By:
|
|
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|
|
Name:
|
|
|
|
Title:
|
|
|
DEUTSCHE BANK SECURITIES INC., as
Administrative Agent
|
|
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By:
|
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|
|
Name:
|
|
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Title:
|
|
