UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
ý | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the quarterly period ended September 30, 2009 |
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OR |
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o |
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission File Number 001-33139
HERTZ GLOBAL HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization) |
20-3530539
(I.R.S. Employer Identification Number) |
225 Brae Boulevard
Park Ridge, New Jersey 07656-0713
(201) 307-2000
(Address, including Zip Code, and telephone number,
including area code, of Registrant's principal executive offices)
Not Applicable
(Former name, former address and former fiscal year,
if changed since last report.)
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ý No o
Indicate by check mark whether the Registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit and post such files). Yes o No o
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer ý | Accelerated filer o |
Non-accelerated filer
o
(Do not check if a smaller reporting company) |
Smaller reporting company o |
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes o No ý
There were 409,739,273 shares of the Registrant's common stock, par value $0.01 per share, issued and outstanding as of November 3, 2009.
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
INDEX
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Page | |||||
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PART I. FINANCIAL INFORMATION |
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ITEM 1. |
Condensed Consolidated Financial Statements (Unaudited) |
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Report of Independent Registered Public Accounting Firm |
1 |
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Condensed Consolidated Balance Sheets as of September 30, 2009 and December 31, 2008 |
2 |
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Consolidated Statements of Operations for the Three and Nine Months Ended September 30, 2009 and 2008 |
3 |
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Consolidated Statements of Cash Flows for the Nine Months Ended September 30, 2009 and 2008 |
45 |
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Notes to Condensed Consolidated Financial Statements |
639 |
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ITEM 2. |
Management's Discussion and Analysis of Financial Condition and Results of Operations |
4070 |
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ITEM 3. |
Quantitative and Qualitative Disclosures About Market Risk |
70 |
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ITEM 4. |
Controls and Procedures |
71 |
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PART II. OTHER INFORMATION |
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ITEM 1. |
Legal Proceedings |
72 |
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ITEM 1A. |
Risk Factors |
72 |
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ITEM 6. |
Exhibits |
7274 |
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SIGNATURE |
75 |
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EXHIBIT INDEX |
7677 |
ITEM l. Condensed Consolidated Financial Statements
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To
the Board of Directors and
Shareholders of Hertz Global Holdings, Inc.:
We have reviewed the accompanying condensed consolidated balance sheet of Hertz Global Holdings, Inc. and its subsidiaries as of September 30, 2009, and the related consolidated statements of operations for the three-month and nine-month periods ended September 30, 2009 and September 30, 2008 and the consolidated statements of cash flows for the nine month periods ended September 30, 2009 and September 30, 2008. These interim financial statements are the responsibility of the Company's management.
We conducted our review in accordance with the standards of the Public Company Accounting Oversight Board (United States). A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters. It is substantially less in scope than an audit conducted in accordance with the standards of the Public Company Accounting Oversight Board (United States), the objective of which is the expression of an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should be made to the accompanying condensed consolidated balance sheet and the related consolidated interim statements of operations and of cash flows for them to be in conformity with accounting principles generally accepted in the United States of America.
We previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheet as of December 31, 2008, the related consolidated statements of operations, of stockholders' equity and of cash flows for the year then ended (not presented herein), and in our report dated March 3, 2009, we expressed an unqualified opinion on those consolidated financial statements. As discussed in Note 1 to the accompanying condensed consolidated balance sheet and the related consolidated interim statements of operations and of cash flows, the Company changed its method of accounting for noncontrolling interests in accordance with the provisions of Financial Accounting Standards Board Accounting Standards Codification 810. The accompanying December 31, 2008 condensed consolidated balance sheet reflects this change.
/s/
PricewaterhouseCoopers LLP
Florham Park, New Jersey
November 6, 2009
1
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In Thousands of Dollars)
Unaudited
|
September 30,
2009 |
December 31,
2008 |
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ASSETS |
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Cash and cash equivalents |
$ | 926,717 | $ | 594,266 | ||||||
Restricted cash |
404,658 | 731,373 | ||||||||
Receivables, less allowance for doubtful accounts of $21,486 and $16,572 |
1,266,926 | 1,911,084 | ||||||||
Inventories, at lower of cost or market |
99,274 | 96,187 | ||||||||
Prepaid expenses and other assets |
312,900 | 286,712 | ||||||||
Revenue earning equipment, at cost: |
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Cars |
8,463,129 | 7,635,402 | ||||||||
Less accumulated depreciation |
(1,306,016 | ) | (1,133,946 | ) | ||||||
Other equipment |
2,558,009 | 2,708,254 | ||||||||
Less accumulated depreciation |
(664,897 | ) | (518,172 | ) | ||||||
Total revenue earning equipment |
9,050,225 | 8,691,538 | ||||||||
Property and equipment, at cost: |
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Land, buildings and leasehold improvements |
1,023,722 | 1,033,098 | ||||||||
Service equipment |
810,390 | 751,925 | ||||||||
|
1,834,112 | 1,785,023 | ||||||||
Less accumulated depreciation |
(644,029 | ) | (530,463 | ) | ||||||
Total property and equipment |
1,190,083 | 1,254,560 | ||||||||
Other intangible assets, net |
2,620,289 | 2,621,586 | ||||||||
Goodwill |
285,588 | 264,061 | ||||||||
Total assets |
$ | 16,156,660 | $ | 16,451,367 | ||||||
LIABILITIES AND EQUITY |
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Accounts payable |
$ | 747,326 | $ | 931,336 | ||||||
Accrued liabilities |
986,540 | 1,137,874 | ||||||||
Accrued taxes |
92,702 | 128,360 | ||||||||
Debt |
10,348,381 | 10,972,297 | ||||||||
Public liability and property damage |
294,748 | 311,352 | ||||||||
Deferred taxes on income |
1,566,054 | 1,481,866 | ||||||||
Total liabilities |
14,035,751 | 14,963,085 | ||||||||
Commitments and contingencies (Note 15) |
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Equity: |
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Hertz Global Holdings Inc. and Subsidiaries stockholders' equity |
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Common Stock, $0.01 par value, 2,000,000,000 shares authorized, 409,645,364 and 322,987,299 shares issued |
4,096 | 3,230 | ||||||||
Preferred Stock, $0.01 par value, 200,000,000 shares authorized, no shares issued |
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Additional paid-in capital |
3,135,299 | 2,503,819 | ||||||||
Accumulated deficit |
(1,031,415 | ) | (936,296 | ) | ||||||
Accumulated other comprehensive loss |
(4,243 | ) | (100,135 | ) | ||||||
Total Hertz Global Holdings, Inc. and Subsidiaries stockholders' equity |
2,103,737 | 1,470,618 | ||||||||
Noncontrolling interest |
17,172 | 17,664 | ||||||||
Total equity |
2,120,909 | 1,488,282 | ||||||||
Total liabilities and equity |
$ | 16,156,660 | $ | 16,451,367 | ||||||
The accompanying notes are an integral part of these financial statements.
2
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(In Thousands of Dollars, except per share data)
Unaudited
|
Three Months Ended
September 30, |
Nine Months Ended
September 30, |
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2009 | 2008 | 2009 | 2008 | |||||||||||
Revenues: |
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Car rental |
$ | 1,724,887 | $ | 1,946,136 | $ | 4,436,691 | $ | 5,339,955 | |||||||
Equipment rental |
280,281 | 432,885 | 836,421 | 1,286,836 | |||||||||||
Other |
36,247 | 42,853 | 87,673 | 109,521 | |||||||||||
Total revenues |
2,041,415 | 2,421,874 | 5,360,785 | 6,736,312 | |||||||||||
Expenses: |
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Direct operating |
1,118,596 | 1,351,790 | 3,062,489 | 3,801,827 | |||||||||||
Depreciation of revenue earning equipment |
499,050 | 595,016 | 1,468,228 | 1,658,715 | |||||||||||
Selling, general and administrative |
179,778 | 234,321 | 488,012 | 595,744 | |||||||||||
Interest expense |
169,294 | 220,077 | 498,238 | 637,151 | |||||||||||
Interest and other income, net |
(1,066 | ) | (5,490 | ) | (52,598 | ) | (20,450 | ) | |||||||
Total expenses |
1,965,652 | 2,395,714 | 5,464,369 | 6,672,987 | |||||||||||
Income (loss) before income taxes |
75,763 | 26,160 | (103,584 | ) | 63,325 | ||||||||||
(Provision) benefit for taxes on income |
(6,792 | ) | (2,855 | ) | 19,873 | (35,972 | ) | ||||||||
Net income (loss) |
68,971 | 23,305 | (83,711 | ) | 27,353 | ||||||||||
Less: Net income attributable to noncontrolling interest |
(4,443 | ) | (5,641 | ) | (11,408 | ) | (16,146 | ) | |||||||
Net income (loss) attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders |
$ | 64,528 | $ | 17,664 | $ | (95,119 | ) | $ | 11,207 | ||||||
Weighted average shares outstanding (in thousands) |
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Basic |
407,364 | 322,886 | 358,452 | 322,599 | |||||||||||
Diluted |
425,171 | 322,886 | 358,452 | 322,599 | |||||||||||
Earnings (loss) per share attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders: |
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Basic |
$ | 0.16 | $ | 0.05 | $ | (0.27 | ) | $ | 0.03 | ||||||
Diluted |
$ | 0.15 | $ | 0.05 | $ | (0.27 | ) | $ | 0.03 |
The accompanying notes are an integral part of these financial statements.
3
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands of Dollars)
Unaudited
|
Nine Months Ended
September 30, |
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2009 | 2008 | ||||||||
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(Note 1)
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Cash flows from operating activities: |
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Net income (loss) |
$ | (83,711 | ) | $ | 27,353 | |||||
Adjustments to reconcile net income (loss) to net cash provided by operating activities: |
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Depreciation of revenue earning equipment |
1,468,228 | 1,658,715 | ||||||||
Depreciation of property and equipment |
119,712 | 131,441 | ||||||||
Amortization of other intangible assets |
50,161 | 49,747 | ||||||||
Amortization of deferred financing costs |
42,249 | 36,777 | ||||||||
Amortization of debt discount |
26,731 | 11,630 | ||||||||
Stock-based compensation charges |
26,603 | 20,303 | ||||||||
Loss on derivatives |
2,020 | 12,058 | ||||||||
Amortization and ineffectiveness of cash flow hedges |
52,227 | 7,791 | ||||||||
Provision for losses on doubtful accounts |
22,459 | 21,693 | ||||||||
Asset writedowns |
26,463 | 34,113 | ||||||||
Deferred taxes on income |
99,922 | 5,010 | ||||||||
Gain on sale of property and equipment |
(1,149 | ) | (9,370 | ) | ||||||
Changes in assets and liabilities, net of effects of acquisition: |
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Receivables |
(25,118 | ) | (101,462 | ) | ||||||
Inventories, prepaid expenses and other assets |
(252 | ) | (61,860 | ) | ||||||
Accounts payable |
(188,137 | ) | 86,570 | |||||||
Accrued liabilities |
(191,165 | ) | (31,043 | ) | ||||||
Accrued taxes |
(112,994 | ) | 37,760 | |||||||
Public liability and property damage |
(27,047 | ) | (7,307 | ) | ||||||
Net cash provided by operating activities |
$ | 1,307,202 | $ | 1,929,919 | ||||||
The accompanying notes are an integral part of these financial statements.
4
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (Continued)
(In Thousands of Dollars)
Unaudited
|
Nine Months Ended
September 30, |
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|
2009 | 2008 | ||||||||
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(Note 1)
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Cash flows from investing activities: |
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Net change in restricted cash |
$ | 330,627 | $ | 146,084 | ||||||
Revenue earning equipment expenditures |
(5,194,514 | ) | (8,888,941 | ) | ||||||
Proceeds from disposal of revenue earning equipment |
4,162,671 | 6,010,267 | ||||||||
Property and equipment expenditures |
(68,970 | ) | (152,868 | ) | ||||||
Proceeds from disposal of property and equipment |
6,140 | 62,281 | ||||||||
Acquisitions, net of cash acquired |
(76,212 | ) | (68,864 | ) | ||||||
Purchase of short-term investments, net |
(4,169 | ) | | |||||||
Other investing activities |
652 | 82 | ||||||||
Net cash used in investing activities |
(843,775 | ) | (2,891,959 | ) | ||||||
Cash flows from financing activities: |
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Proceeds from issuance of long-term debt |
7,151 | 19,357 | ||||||||
Proceeds from convertible debt offering |
459,483 | | ||||||||
Repayment of long-term debt |
(814,099 | ) | (362,776 | ) | ||||||
Short-term borrowings: |
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Proceeds |
324,576 | 391,131 | ||||||||
Repayments |
(272,559 | ) | (302,856 | ) | ||||||
Proceeds (repayments) under the revolving lines of credit, net |
(374,846 | ) | 1,294,208 | |||||||
Distributions to noncontrolling interest |
(11,900 | ) | (12,950 | ) | ||||||
Proceeds from sale of stock |
528,758 | | ||||||||
Proceeds from exercise of stock options |
4,807 | 6,753 | ||||||||
Proceeds from employee stock purchase plan |
1,846 | | ||||||||
Proceeds from disgorgement of stockholder short-swing profits |
15 | 135 | ||||||||
Payment of financing costs |
(40,888 | ) | (33,839 | ) | ||||||
Net cash provided by (used in) financing activities |
(187,656 | ) | 999,163 | |||||||
Effect of foreign exchange rate changes on cash and cash equivalents |
56,680 | (35,787 | ) | |||||||
Net increase in cash and cash equivalents during the period |
332,451 | 1,336 | ||||||||
Cash and cash equivalents at beginning of period |
594,266 | 730,203 | ||||||||
Cash and cash equivalents at end of period |
$ | 926,717 | $ | 731,539 | ||||||
Supplemental disclosures of cash flow information: |
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Cash paid during the period for: |
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Interest (net of amounts capitalized) |
$ | 556,932 | $ | 626,934 | ||||||
Income taxes |
20,721 | 22,562 | ||||||||
Supplemental disclosures of non-cash flow information: |
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Purchases of revenue earning equipment included in accounts payable |
$ | 207,720 | $ | 232,045 | ||||||
Sales of revenue earning equipment included in receivables |
358,013 | 842,831 | ||||||||
Purchases of property and equipment included in accounts payable |
12,629 | 31,153 | ||||||||
Sales of property and equipment included in receivables |
8,741 | 5,008 |
The accompanying notes are an integral part of these financial statements.
5
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
Unaudited
Note 1Background, Basis of Presentation and Liquidity
Background
Hertz Global Holdings, Inc., or "Hertz Holdings," is our top-level holding company. The Hertz Corporation, or "Hertz," is our primary operating company and a direct wholly-owned subsidiary of Hertz Investors, Inc., which is wholly-owned by Hertz Holdings. "We," "us" and "our" mean Hertz Holdings and its consolidated subsidiaries, including Hertz. Capitalized terms used in this Form 10-Q without definition have the meanings given in our Annual Report on Form 10-K for the fiscal year ended December 31, 2008, filed with the United States Securities and Exchange Commission, or "SEC," on March 3, 2009, or the "Form 10-K."
We are a successor to corporations that have been engaged in the car and truck rental and leasing business since 1918 and the equipment rental business since 1965. Hertz Holdings was incorporated in Delaware in 2005 and had no operations prior to the Acquisition (as defined below).
On
December 21, 2005, investment funds associated with or designated by:
or collectively the "Sponsors," acquired all of Hertz's common stock from Ford Holdings LLC for aggregate consideration of $4,379 million in cash, debt refinanced or assumed of $10,116 million and transaction fees and expenses of $447 million. We refer to the acquisition of all of Hertz's common stock by the Sponsors as the "Acquisition."
In November 2006, we completed our initial public offering of 88,235,000 shares of our common stock. In June 2007, the Sponsors completed a secondary public offering of 51,750,000 shares of their Hertz Holdings common stock. In January 2009, Bank of America Corporation, or "Bank of America," acquired Merrill Lynch & Co., the parent company of MLGPE. Accordingly, Bank of America is now an indirect beneficial owner of our common stock held by MLGPE and certain of its affiliates.
2009 Hertz Holdings Offerings
In May and June 2009, we completed a follow-on public offering of 52,900,000 shares of our common stock at a price of $6.50 per share with proceeds before underwriting discounts and offering expenses of approximately $343.9 million, or the "Common Stock Public Offering."
In addition, in May 2009 we entered into subscription agreements with investment funds affiliated with CD&R and Carlyle to purchase an additional 32,101,182 shares of our common stock at a price of $6.23 per share (the same price per share paid to us by the underwriters in the Common Stock Public Offering) with proceeds to us of approximately $200.0 million, or the "Private Offering." The Private Offering closed on July 7, 2009 and the 32,101,182 shares of our common stock were issued to the CD&R and Carlyle affiliated investment funds on the same date. Giving effect to the Common Stock Public Offering and the Private Offering, the Sponsors' ownership percentage in us is approximately 51%.
In May and June 2009, we also completed a public offering of an aggregate principal amount of $474,755,000 of 5.25% convertible senior notes due 2014, or the "Convertible Debt Public Offering."
6
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
We used the net proceeds from the Common Stock Public Offering, the Private Offering and the Convertible Debt Public Offering, collectively the "2009 Hertz Holdings Offerings," to increase our liquidity and for general corporate purposes, including the repayment of principal amounts with respect to maturing debt under the fleet financing facilities of certain of our consolidated subsidiaries.
See Note 7Debt and Note 11Total Equity.
Basis of Presentation
The significant accounting policies summarized in Note 1 to our audited consolidated financial statements contained in our Form 10-K, have been followed in preparing the accompanying condensed consolidated financial statements, except for the adoption of Financial Accounting Standards Board Accounting Standards Codification, or "ASC," or "Codification," 810-10, "Noncontrolling Interests in Consolidated Financial Statementsan amendment of ARB No. 51," or "ASC 810-10," ASC 805, "Business Combinations," and ASC 820-10 "Fair Value Measurements."
The December 31, 2008 condensed consolidated balance sheet data was derived from our audited financial statements, but does not include all disclosures required by accounting principles generally accepted in the United States of America, or "GAAP."
In our opinion, all adjustments (which include only normal recurring adjustments) necessary for a fair statement of the results of operations for the interim periods have been made. Results for interim periods are not necessarily indicative of results for a full year.
Certain prior period amounts have been reclassified to conform with current reporting, including those relating to noncontrolling interests which conform with the provisions of ASC 810-10, which became effective for us in January 2009.
For all periods presented in this Report we have revised our consolidated statements of cash flows to exclude the impact of non-cash purchases and sales of revenue earning equipment and property and equipment which were included in "accounts payable" or "receivables" at the end of the period. See Note 17 in our Form 10-Q for the quarterly period ended June 30, 2009 filed with the SEC on August 7, 2009, or the "Second Quarter Form 10-Q."
Liquidity
The car and equipment rental industries are significantly influenced by general economic conditions. In the final three months of 2008 and continuing in the nine months ended September 30, 2009, both the car and equipment rental markets experienced unprecedented declines due to the precipitous slowdown in consumer spending as well as significantly reduced demand for industrial and construction equipment. The car rental industry is also significantly influenced by developments in the travel industry, and, particularly, in airline passenger traffic while the equipment rental segment is being impacted by the difficult economic and business environment as investment in commercial construction and the industrial markets slow. The United States and international markets are currently experiencing a significant decline in economic activities, including a tightening of the credit markets, reduced airline passenger traffic, reduced consumer spending and volatile fuel prices. These conditions are expected to continue through the remainder of 2009. During 2008 and the nine months ended September 30, 2009, this resulted in a rapid decline in the volume of car rental and equipment rental transactions, soft industry pricing and until only recently an increase in depreciation and fleet related costs as a percentage of revenues and lower residual values for the non-program cars and equipment that we sold.
7
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
"Non-program cars" mean cars not purchased under repurchase or guaranteed depreciation programs for which the car rental company is exposed to residual risk.
In response to the economic downturn, in 2008 we implemented aggressive strategic actions to reduce costs and improve liquidity. These actions included reducing wage and benefit costs through significant headcount reductions, accelerating fleet deletions and delaying additions to right-size the fleet to current demand levels and rationalizing our location footprint by closing a number of locations. We have developed additional plans for the remainder of 2009 in an effort to mitigate the impact of continued revenue declines on our results of operations, including reducing costs further through the additional headcount reductions that we announced in 2009, continuing to right-size our car and equipment rental fleet in response to the economic conditions, continued re-engineering of our processes, increasing prices and continuing to reduce the cost of acquiring our car and equipment rental fleet, among other actions.
As of September 30, 2009, we had $10,348.4 million of total indebtedness outstanding. Accordingly, we are highly leveraged and a substantial portion of our liquidity needs arise from debt service on indebtedness incurred in connection with the Acquisition and from the funding of our costs of operations and capital expenditures.
In 2009 we have also significantly addressed the fact that we had approximately $4.2 billion of our fleet debt that matures in 2010. We began addressing these liquidity needs at the end of the second quarter and the beginning of the third quarter by completing the 2009 Hertz Holdings Offerings, pursuant to which we received approximately $990 million of net proceeds, after deducting underwriting discounts and commissions and before offering expenses payable by Hertz Holdings. $200 million of the $990 million of net proceeds were received during the three months ended September 30, 2009.
On September 18, 2009, Hertz Vehicle Financing LLC, or "HVF," a bankruptcy-remote special purpose entity wholly-owned by Hertz, completed the closing of a new variable funding note facility referred to as the Series 2009-1 Variable Funding Rental Car Asset Backed Notes, or the "Series 2009-1 Notes." The facility has an expected maturity date of January 2012 and a 3 month controlled amortization period beginning in November 2011. The aggregate principal amount of such facility is $2.1 billion and such facility is available to HVF on a revolving basis until the controlled amortization period begins in November 2011. As of September 30, 2009, we had an aggregate principal amount outstanding of $300.0 million of Series 2009-1 Notes. This amount was subsequently paid in October 2009.
Immediately prior to the issuance of the Series 2009-1 Notes, HVF caused the termination of the series supplements and note purchase agreements relating to its Series 2005-3 Variable Funding Rental Car Asset Backed Notes, or the "Series 2005-3 Notes," Series 2005-4 Variable Funding Rental Car Asset Backed Notes, or the "Series 2005-4 Notes," and Series 2008-1 Variable Funding Rental Car Asset Backed Notes, or the "Series 2008-1 Notes," or the "Terminated VFNs," and caused the repayment and cancellation in full of the Terminated VFNs. The Terminated VFNs had expected final maturity dates ranging from November 2009 to November 2010 and we had an aggregate of approximately $2.0 billion of total capacity (prior to borrowing base or other limitations) under the Terminated VFNs. In effect we replaced the $2.0 billion of total capacity under the Terminated VFNs with the $2.1 billion of capacity that we have under the Series 2009-1 Notes while extending the expected final maturity date to January 2012.
In October 2009 HVF issued $1.2 billion in aggregate principal amount of new medium term notes (3 and 5 year) Series 2009-2 rental car asset backed notes, or the "Series 2009-2 Notes." The 3 year notes carry a 4.26% coupon (4.30% yield) and the 5 year notes carry a 5.29% coupon (5.35% yield) with expected
8
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
final maturities in 2013 and 2015, respectively. The advance rate on the notes is approximately 66%. In general, we expect to use the Series 2009-2 Notes to replace the Series 2005-1 and 2005-2 Rental Car Asset Backed Notes, or the "2005 Notes," as they mature in 2010.
Based on all that we have been able to accomplish in the first 10 months of 2009, our current availability under our various credit facilities and our business plan, we believe we have sufficient liquidity to meet our 2010 debt maturities. We still need to refinance approximately $1.7 billion of our international fleet debt that matures in December 2010 and we are currently in discussions with banks and lenders to review our refinancing options; however there can be no assurance that we will be able to refinance this indebtedness on terms comparable to our recent refinancings, or at all.
The agreements governing our corporate indebtedness require us to comply with two key covenants based on a consolidated leverage ratio and a consolidated interest expense coverage ratio. Our failure to comply with the obligations contained in any agreements governing our indebtedness could result in an event of default under the applicable instrument, which could result in the related debt becoming immediately due and payable and could further result in a cross default or cross acceleration of our debt issued under other instruments. However, as a result of the above-mentioned actions and planned future actions, we believe that we will remain in compliance with our corporate debt covenants and that cash generated from operations, together with amounts available under various liquidity facilities will be adequate to permit us to meet our debt service obligations, ongoing costs of operations, working capital needs and capital expenditure requirements for the next twelve months. Our future financial and operating performance, ability to service or refinance our debt and ability to comply with covenants and restrictions contained in our corporate debt agreements will be subject to future economic conditions and to financial, business and other factors, many of which are beyond our control.
Chrysler LLC and General Motors Bankruptcies / Financial Status of Monoline Insurance Companies
Immediately prior to Chrysler LLC's bankruptcy, less than 1% of our fleet was comprised of Chrysler LLC vehicles, so its bankruptcy filing has not had a material impact on our business, financial condition or results of operations.
General
Motors filed for bankruptcy in June 2009, which we will refer to as "Old General Motors," however we do not believe that this will have a material long-term impact on our business,
financial condition or results of operations, because:
MBIA Insurance Corporation, or "MBIA," and Ambac Corporation, or "Ambac," provide credit enhancements in the form of financial guaranties for our 2005 Notes, with each providing guaranties for
9
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
approximately half of the $3.2 billion in principal amount of the 2005 Notes that was outstanding as of September 30, 2009, all of which matures in 2010.
An event of bankruptcy with respect to MBIA or Ambac between now and November 2010 would result in an amortization event under the portion of the 2005 Notes guaranteed by the affected insurer. In addition, if an amortization event continues for 30 days or longer, the noteholders of the affected series of notes would have the right to require liquidation of a portion of the fleet sufficient to repay such notes, provided that the exercise of the right was exercised by a majority of the affected noteholders.
Since MBIA and Ambac are facing financial instability, have been downgraded one or more times and are on review for further credit downgrade or under developing outlook by one or more credit agencies, we did not have the Series 2009-1 Notes or the Series 2009-2 Notes guaranteed. Accordingly, if a bankruptcy of MBIA or Ambac were to occur prior to the 2005 Notes maturing, we expect that we would use our corporate liquidity and the borrowings under or proceeds from the Series 2009-1 Notes and the Series 2009-2 Notes to pay down the amounts owed under the affected series of 2005 Notes.
Note 2Recently Issued and/or Adopted Accounting Pronouncements
In June 2009, the Financial Accounting Standards Board, or "FASB," issued The FASB Accounting Standards Codification. The Codification became the source of authoritative GAAP recognized by the FASB to be applied by nongovernmental entities. Rules and interpretive releases of the SEC under authority of federal securities laws are also sources of authoritative GAAP for SEC registrants. On July 1, 2009, the Codification superseded all then-existing non-SEC accounting and reporting standards. All other nongrandfathered non-SEC accounting literature not included in the Codification became nonauthoritative.
Under ASC 470-20, "Debt with Conversion and Other Options", or "ASC 470-20," cash settled convertible securities are separated into their debt and equity components. The value assigned to the debt component is the estimated fair value, as of the issuance date, of a similar debt instrument without the conversion feature, and the difference between the proceeds for the convertible debt and the amount reflected as a debt liability is recorded as additional paid-in capital. As a result, the debt is recorded at a discount reflecting its below market coupon interest rate. The debt is subsequently accreted to its par value over its expected life, with the rate of interest that reflects the market rate at issuance being reflected on the consolidated statements of operations. We applied the provisions of ASC 470-20 to the Convertible Debt Public Offering. See Note 7Debt and Note 11Total Equity.
In January 2009, the FASB issued FSP No. FAS 132(R)-1, "Employers' Disclosures about Postretirement Benefit Plan Assets." This FSP has been incorporated into and contains amendments to ASC 715,"CompensationRetirement Benefits," or "ASC 715," that are intended to enhance the transparency surrounding the types of assets and associated risks in an employer's defined benefit pension or other postretirement plan. These particular amendments to ASC 715 will become effective for us beginning with our annual report for the period ended December 31, 2009. We will provide the required disclosure requirements beginning December 31, 2009, as required, and we do not believe it will have a material impact on our financial position or results of operations.
In June 2009, the FASB issued SFAS No. 167, "Amendments to FASB Interpretation No 46(R)," or "SFAS No. 167." SFAS No. 167 changes how a company determines when an entity that is insufficiently capitalized or is not controlled through voting (or similar rights) should be consolidated. The determination of whether a company is required to consolidate an entity is based on, among other
10
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
things, an entity's purpose and design and a company's ability to direct the activities of the entity that most significantly impact the entity's economic performance. The provisions of SFAS No. 167 become effective for us on January 1, 2010, and we do not believe that they will have a material impact on our financial position or results of operations.
Note 3Cash and Cash Equivalents and Restricted Cash
We consider all highly liquid investments purchased with an original maturity of three months or less to be cash equivalents.
Restricted cash includes cash and cash equivalents that are not readily available for our normal disbursements. Restricted cash and cash equivalents are restricted for the purchase of revenue earning vehicles and other specified uses under our fleet debt facilities, for our like-kind exchange programs and to satisfy certain of our self-insurance regulatory reserve requirements. As of September 30, 2009 and December 31, 2008, the portion of total restricted cash that was associated with our fleet debt facilities was $282.5 million and $557.2 million, respectively. The decrease in restricted cash associated with our fleet debt of $274.7 million from December 31, 2008 to September 30, 2009, primarily related to payments to reduce fleet debt and the timing of purchases and sales of revenue earning vehicles.
Note 4Goodwill and Other Intangible Assets
The following summarizes the changes in our goodwill for the period presented (in millions of dollars):
|
Car Rental |
Equipment
Rental |
Total | ||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
Balance as of January 1, 2009 |
|||||||||||
Goodwill |
$ | 307.1 | $ | 651.9 | $ | 959.0 | |||||
Accumulated impairment losses |
(43.0 | ) | (651.9 | ) | (694.9 | ) | |||||
|
264.1 | | 264.1 | ||||||||
Goodwill acquired during the year |
13.9 |
2.4 |
16.3 |
||||||||
Other changes during the year (1) |
5.0 | 0.2 | 5.2 | ||||||||
Balance as of September 30, 2009 |
|||||||||||
Goodwill |
326.0 | 654.5 | 980.5 | ||||||||
Accumulated impairment losses |
(43.0 | ) | (651.9 | ) | (694.9 | ) | |||||
|
$ | 283.0 | $ | 2.6 | $ | 285.6 | |||||
11
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
Other intangible assets, net, consisted of the following major classes (in millions of dollars):
|
September 30, 2009 | ||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Gross
Carrying Amount |
Accumulated
Amortization |
Net
Carrying Value |
||||||||||
Amortizable intangible assets: |
|||||||||||||
Customer-related |
$ | 600.7 | $ | (231.9 | ) | $ | 368.8 | ||||||
Other |
56.4 | (10.2 | ) | 46.2 | |||||||||
Total |
657.1 | (242.1 | ) | 415.0 | |||||||||
Indefinite-lived intangible assets: |
|||||||||||||
Trade name |
2,190.0 | | 2,190.0 | ||||||||||
Other |
15.3 | | 15.3 | ||||||||||
Total |
2,205.3 | | 2,205.3 | ||||||||||
Total other intangible assets, net |
$ | 2,862.4 | $ | (242.1 | ) | $ | 2,620.3 | ||||||
|
December 31, 2008 | |||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Gross
Carrying Amount |
Accumulated
Amortization |
Impairment
Charge |
Net
Carrying Value |
||||||||||||
Amortizable intangible assets: |
||||||||||||||||
Customer-related |
$ | 620.2 | $ | (187.9 | ) | $ | (17.0 | ) | $ | 415.3 | ||||||
Other |
10.9 | (4.5 | ) | | 6.4 | |||||||||||
Total |
631.1 | (192.4 | ) | (17.0 | ) | 421.7 | ||||||||||
Indefinite-lived intangible assets: |
||||||||||||||||
Trade name |
2,624.0 | | (434.0 | ) | 2,190.0 | |||||||||||
Other |
9.9 | | | 9.9 | ||||||||||||
Total |
2,633.9 | | (434.0 | ) | 2,199.9 | |||||||||||
Total other intangible assets, net |
$ | 3,265.0 | $ | (192.4 | ) | $ | (451.0 | ) | $ | 2,621.6 | ||||||
Amortization of other intangible assets for the three months ended September 30, 2009 and 2008, was approximately $16.5 million and $16.5 million, respectively, and for the nine months ended September 30, 2009 and 2008, was approximately $49.7 million and $49.7 million, respectively. Based on our amortizable intangible assets as of September 30, 2009, we expect amortization expense to be approximately $18.5 million for the remainder of 2009 and range from $59.4 million to $67.6 million for each of the next five fiscal years.
During the nine months ended September 30, 2009, we added 27 locations by acquiring former franchisees in our domestic and international car rental operations, as well as approximately 20 locations associated with our acquisition of Advantage Rent A Car and two locations related to an external acquisition done within our equipment rental operations. Total cash paid for intangible assets during the nine months ended September 30, 2009 was $50.9 million, of this amount, $45.5 million was allocated to amortizable intangible assets, primarily comprised of the tradename and concession agreements associated with the Advantage Rent A Car acquisition and technology assets associated with the acquisition of Eileo, S.A., and $5.4 million was allocated to indefinite-lived intangible assets
12
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
associated with reacquired franchise rights during the nine months ended September 30, 2009. Each of these transactions has been accounted for using the acquisition method of accounting in accordance with GAAP and operating results of the acquired entities from the dates of acquisition are included in our consolidated statements of operations. The allocation of the purchase price to the tangible and intangible net assets acquired is preliminary and subject to finalization. These acquisitions are not material, individually or collectively, to the consolidated amounts presented within our statement of operations for the nine months ended September 30, 2009.
Note 5Taxes on Income
The effective tax rate for the three and nine months ended September 30, 2009 was 9.0% and 19.2%, respectively. The effective tax rate for the three and nine months ended September 30, 2008 was 10.9% and 56.8%, respectively. The provision for taxes on income of $6.9 million in the three months ended September 30, 2009 increased from $2.9 million in the three months ended September 30, 2008, primarily due to the increase in income before income taxes and an increase in losses in certain non-U.S. jurisdictions for which a tax benefit cannot be recognized, partially offset by an increase in discrete benefits. The benefit for taxes on income was $19.9 million in the nine months ended September 30, 2009 compared to a provision for taxes on income of $36.0 million in the nine months ended September 30, 2008. The change is primarily due to pretax losses and discrete benefits recorded in the nine months ended September 30, 2009 compared to pretax income and discrete charges for the nine months ended September 30, 2008. This was partially offset by an increase in losses in certain non-U.S. jurisdictions for which a tax benefit cannot be recognized.
Note 6Depreciation of Revenue Earning Equipment
Depreciation of revenue earning equipment includes the following (in millions of dollars):
|
Three months ended
September 30, |
|||||||
---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | ||||||
Depreciation of revenue earning equipment |
$ | 479.8 | $ | 553.8 | ||||
Adjustment of depreciation upon disposal of the equipment |
1.3 | 20.7 | ||||||
Rents paid for vehicles leased |
18.0 | 20.5 | ||||||
Total |
$ | 499.1 | $ | 595.0 | ||||
|
Nine months ended
September 30, |
|||||||
---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | ||||||
Depreciation of revenue earning equipment |
$ | 1,346.9 | $ | 1,534.4 | ||||
Adjustment of depreciation upon disposal of the equipment |
68.1 | 53.8 | ||||||
Rents paid for vehicles leased |
53.2 | 70.5 | ||||||
Total |
$ | 1,468.2 | $ | 1,658.7 | ||||
The adjustment of depreciation upon disposal of revenue earning equipment for the three months ended September 30, 2009 and 2008, reflects a net gain of $2.0 million and a net loss of $9.4 million, respectively, on the disposal of vehicles used in our car rental operations and for the three months ended September 30, 2009 and 2008 reflects net losses of $3.3 million and $11.3 million, respectively, on the
13
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
disposal of industrial and construction equipment used in our equipment rental operations. The adjustment of depreciation upon disposal of revenue earning equipment for the nine months ended September 30, 2009 and 2008, reflects net losses of $27.3 million and $39.7 million, respectively, on the disposal of vehicles used in our car rental operations and for the nine months ended September 30, 2009 and 2008 reflects net losses of $40.8 million and $14.1 million, respectively, on the disposal of industrial and construction equipment used in our equipment rental operations.
Depreciation rates are reviewed on an ongoing basis based on management's routine review of present and estimated future market conditions and their effect on residual values at the time of disposal. During the nine months ended September 30, 2009, depreciation rates being used to compute the provision for depreciation of revenue earning equipment were adjusted on certain vehicles in our car rental operations to reflect changes in the estimated residual values to be realized when revenue earning equipment is sold. These depreciation rate changes resulted in net increases of $2.4 million and $14.4 million in depreciation expense for the three and nine months ended September 30, 2009, respectively. During the three and nine months ended September 30, 2009, depreciation rate changes in our equipment rental operations resulted in increases in depreciation expense of $2.3 million and $3.9 million, respectively.
For the three months ended September 30, 2009 and 2008, our worldwide car rental operations sold approximately 40,900 and 55,600 non-program cars, respectively, a 26.4% year over year decrease primarily due to a lower average fleet size. For the nine months ended September 30, 2009 and 2008, our worldwide car rental operations sold approximately 107,900 and 162,000 non-program cars, respectively, a 33.4% year over year decrease primarily due to a lower average fleet size.
Note 7Debt
Open Market Repurchases
In April 2009, we made aggregate open market repurchases, at a discount, of approximately $68.0 million and $81.5 million in face value of our Senior Notes and Senior Subordinated Notes, respectively. As a result of these repurchases, we recorded a gain of $48.5 million, net of transaction costs, in "Interest and other income, net" for the nine months ended September 30, 2009.
Convertible Debt Offering
In May and June 2009, we issued $474.8 million in aggregate principal amount of Convertible Senior Notes. Our Convertible Senior Notes may be convertible by holders into shares of our common stock, cash or a combination of cash and shares of our common stock, as elected by us, initially at a conversion rate of 120.6637 shares per $1,000 principal amount of notes, subject to adjustment. However, we have a policy of settling the conversion of our Convertible Senior Notes using a combination settlement, which calls for settling the fixed dollar amount per $1,000 in principal amount in cash and settling in shares, the excess conversion value, if any. Proceeds from the Convertible Debt Offering were allocated between "Debt" and "Additional paid-in capital." The value assigned to the debt component was the estimated fair value, as of the issuance date, of a similar debt instrument without the conversion feature, and the difference between the proceeds for the Convertible Senior Notes and the amount reflected as a debt liability was recorded as "Additional paid-in capital." As a result, the debt was recorded at a discount of $117.9 million reflecting its below market coupon interest rate. The debt is subsequently accreted to its par value over its expected life, with the rate of interest that reflects the market rate at issuance being reflected in the consolidated statements of operations.
14
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
Canadian Fleet Financing Facility
In June 2009, subsidiaries of Hertz entered into a second omnibus amendment to our Canadian Fleet Financing Facility, reducing the facility limit from CAD$400 million (or $371.9 million, calculated using exchange rates in effect on September 30, 2009) to CAD$225 million (or $209.2 million), changing the maturity date from May 2012 to May 2011 and adding increases in commitment fees. Also, among other things, certain covenants pertaining to fleet composition were eliminated and certain limitations on the number of vehicles supplied by a single manufacturer which may be included in the borrowing base calculation were added.
Amendment and Restatement of U.S. Fleet Debt Program Documents
In September 2009, HVF entered into amendments and restatements, of many of the agreements relating to its U.S. asset-backed fleet debt, or
collectively, the "U.S. Fleet Debt Program Documents," including:
Among other things, these amendments (i) give HVF the ability, subject to certain conditions, to issue series of notes secured by segregated pools of collateral pledged to support only such series; (ii) modify the conditions precedent to HVF issuing a new series of notes under the ABS Indenture; (iii) modify certain conditions precedent to the amendment of the ABS Indenture, series supplements and certain of the other U.S. Fleet Debt Program Documents; (iv) provide that if certain events of default with respect to manufacturers of vehicles subject to repurchase programs (each, a "Manufacturer Event of Default") are cured, the effects of such events of default on the U.S. Fleet Debt Program Documents generally cease; (v) provide that if a Manufacturer Event of Default occurs, the related manufacturer does not cease to be an eligible manufacturer, thereby allowing HVF to finance a greater proportion of vehicles manufactured by such manufacturer during a Manufacturer Event of Default and (vi) give HVF the ability, subject to certain conditions, to issue one or more series of notes that would be subordinated in rights to payment of interest and principal to each other series of notes outstanding.
15
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
Amendment of 2005-1 Notes
In addition, on September 18, 2009, HVF entered into amendments to the series supplements relating to its 2005 Notes. Among other things, the amendments with respect to each such series supplement add new concentration limits and change existing concentration limits for vehicles manufactured by certain manufacturers.
Series 2009-1 Notes
In September 2009, HVF issued the Series 2009-1 Notes. The aggregate principal amount of such facility is $2.1 billion and this facility is available to HVF on a revolving basis through the expected final maturity date of January 2012 with a January 2013 legal final maturity. The Series 2009-1 Notes are expected to bear interest at variable rates based upon the weighted average of the commercial paper rates paid by the bank conduits advancing funds to HVF plus a borrowing spread which varies based on the rating of the Series 2009-1 Notes. The borrowing spread on the Series 2009-1 Notes is subject to increase if Moody's Investors Service, or "Moody's," downgrades their rating of the Series 2009-1 Notes below "Aa3." The borrowing spread on the Series 2009-1 Notes is also subject to increase during the continuance of an amortization event with respect to the Series 2009-1 Notes. The Series 2009-1 Notes are currently rated "Aa1" by Moody's. The Series 2009-1 Notes are subject to events of default and amortization events that are customary in nature for U.S. rental car asset-backed securitizations of this type, including non-payment of principal or interest, violation of covenants, material inaccuracy of representations or warranties, failure to maintain certain enhancement levels, failure to maintain an interest rate hedge and insolvency or certain bankruptcy events. The occurrence of an amortization event or event of default could result in the rapid amortization of the Series 2009-1 Notes and in certain instances the liquidation of vehicles in the U.S. car rental fleet. As of September 30, 2009, we had an aggregate principal amount outstanding of $300.0 million of Series 2009-1 Notes. This amount was subsequently paid in October 2009.
In connection with the issuance of the Series 2009-1 Notes, HVF purchased a 5% interest rate cap. See Note 13Financial Instruments.
Immediately prior to the issuance of the Series 2009-1 Notes, HVF terminated the series supplements and note purchase agreements relating to its Series 2005-3 Notes, Series 2005-4 Notes and Series 2008-1 Notes and caused the repayment and cancellation in full of such notes.
Series 2009-2 Notes
On October 23, 2009, HVF issued $1.2 billion in aggregate principal amount of Series 2009-2 Notes. See Note 17Subsequent Events.
16
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
Our debt consists of the following (in millions of dollars):
|
September 30,
2009 |
December 31,
2008 |
||||||||
---|---|---|---|---|---|---|---|---|---|---|
Corporate Debt |
||||||||||
Senior Term Facility, average interest rate: 2009, 2.0%; 2008, 3.3% (effective average interest rate: 2009, 2.0%; 2008, 3.4%); net of unamortized discount: 2009, $15.1; 2008, $18.6 |
$ | 1,346.9 | $ | 1,353.6 | ||||||
Senior ABL Facility; net of unamortized discount: 2009, $10.6; 2008, $13.3 |
(10.6 | ) | (13.3 | ) | ||||||
Senior Notes, average interest rate: 2009, 8.7%; 2008, 8.7% |
2,059.4 | 2,113.6 | ||||||||
Senior Subordinated Notes, average interest rate: 2009, 10.5%; 2008, 10.5% |
518.5 | 600.0 | ||||||||
Promissory Notes, average interest rate: 2009, 7.3%; 2008, 7.2% (effective average interest rate: 2009, 7.4%; 2008, 7.3%); net of unamortized discount: 2009, $3.4; 2008, $4.0 |
394.9 | 461.4 | ||||||||
Convertible Senior Notes (1) , average interest rate: 2009, 5.25%; (effective average interest rate: 2009, 6.9%); net of unamortized discount: 2009, $112.0 |
362.8 | | ||||||||
Notes payable, average interest rate: 2009, 6.0%; 2008, 5.5% |
5.1 | 9.7 | ||||||||
Foreign subsidiaries' debt denominated in foreign currencies: |
||||||||||
Short-term bank borrowings, average interest rate: 2009, 10.8%; 2008, 4.5% |
6.5 | 54.9 | ||||||||
Other borrowings, average interest rate: 2009, 2.7%; 2008, 5.1% |
4.3 | 5.6 | ||||||||
Total Corporate Debt |
4,687.8 | 4,585.5 | ||||||||
Fleet Debt |
||||||||||
U.S. Fleet Debt (2) , average interest rate: 2009, 4.4%; 2008, 4.3% (effective average interest rate: 2009, 4.4%; 2008, 4.3%); net of unamortized discount: 2009, $3.8; 2008, $7.5 |
3,546.2 | 4,254.5 | ||||||||
International Fleet Debt, average interest rate: 2009, 2.4%; 2008, 5.0% (effective average interest rate: 2009, 2.4%; 2008, 5.1%); net of unamortized discount: 2009, $11.1; 2008, $6.5 |
904.8 | 1,027.1 | ||||||||
International ABS Fleet Financing Facility, average interest rate: 2009, 2.8%; 2008, 7.2%; (effective average interest rate: 2009, 2.9%; 2008, 7.4%); net of unamortized discount: 2009, $7.2; 2008, $10.3 |
573.0 | 565.3 | ||||||||
Fleet Financing Facility, average interest rate: 2009, 1.5%; 2008, 2.0% (effective average interest rate: 2009, 1.5%; 2008, 2.1%); net of unamortized discount: 2009, $0.9; 2008, $1.2 |
144.6 | 149.3 | ||||||||
Brazilian Fleet Financing Facility, average interest rate: 2009, 13.4%; 2008, 16.3% |
67.8 | 54.1 | ||||||||
Canadian Fleet Financing Facility, average interest rate: 2009, 3.9%; 2008, 3.8% |
126.8 | 111.6 | ||||||||
Belgian Fleet Financing Facility, average interest rate: 2009, 1.7%; 2008, 4.7% |
38.6 | 31.2 | ||||||||
Capitalized Leases (3) , average interest rate: 2009, 4.5%; 2008, 6.2% |
258.8 | 193.7 | ||||||||
Total Fleet Debt |
5,660.6 | 6,386.8 | ||||||||
Total Debt |
$ | 10,348.4 | $ | 10,972.3 | ||||||
NOTE: For further information on the definitions and terms of our debt, see Note 3 of the Notes to our audited annual consolidated financial statements included in our Form 10-K under the caption "Item 8Financial Statements and Supplementary Data."
17
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
The aggregate amounts of maturities of debt for each of the twelve-month periods ending September 30 (in millions of dollars) are as follows: 2010, $4,836.1 (including $2,400.6 of other short-term borrowings); 2011, $1,036.1; 2012, $176.4; 2013, $1,362.1; 2014, $2,555.4; after 2014, $546.4.
Our short-term borrowings as of September 30, 2009 include, among other items, the amounts outstanding under our International Fleet Debt facility, International ABS Fleet Financing Facility, Fleet Financing Facility, Brazilian Fleet Financing Facility, Canadian Fleet Financing Facility, Belgian Fleet Financing Facility and Capitalized Leases. These amounts are considered short-term in nature since they have maturity dates of three months or less; however these facilities are revolving in nature and do not expire at the time of the short-term debt maturity. In addition, we include certain scheduled payments of principal under our ABS Program as short-term borrowings.
As of September 30, 2009, there were outstanding standby letters of credit totaling $532.7 million. Of this amount, $264.0 million has been issued for the benefit of the ABS Program ($200.0 million of which was issued by Ford Motor Company, or "Ford," and $64.0 million of which was used under the Senior Credit Facilities) and the remainder is primarily to support self-insurance programs (including insurance policies with respect to which we have indemnified the policy issuers for any losses) in the United States, Canada and Europe and to support airport concession obligations in the United States and Canada. As of September 30, 2009, none of these letters of credit have been drawn upon.
As of September 30, 2009, Capitalized Leases have maturities ranging from October 2009 to February 2013.
Guarantees and Security
There have been no material changes to the guarantees and security provisions of the debt instruments and credit facilities under which our indebtedness as of September 30, 2009 has been issued from the terms as disclosed in our Form 10-K except as mentioned below.
The Series 2009-1 Notes are secured by, among other things, a pledge in certain collateral owned by HVF, including (i) the majority of the U.S. car rental fleet that we use in our daily rental operations, (ii) with respect to the portion of those vehicles subject to repurchase programs with vehicle manufacturers, the related manufacturer receivables, (iii) all rights of HVF under a master lease agreement between HVF and Hertz, and (iv) all monies on deposit from time to time in certain collection and cash collateral accounts and all proceeds thereof. The assets of HVF, including the U.S. car rental fleet owned by HVF, will not be available to satisfy the claims of Hertz's general creditors.
Covenants
Certain of our debt instruments and credit facilities contain a number of covenants that, among other things, limit or restrict the ability of the borrowers and the guarantors to dispose of assets, incur additional indebtedness, incur guarantee obligations, prepay other indebtedness, make dividends and other restricted payments, create liens, make investments, make acquisitions, engage in mergers, change the nature of their business, make capital expenditures, or engage in certain transactions with affiliates. Some of these agreements also require the maintenance of certain financial covenants. As of September 30, 2009, we were in compliance with all of these financial covenants.
As of September 30, 2009, we had an aggregate principal amount outstanding of $1,362.0 million pursuant to our Senior Term Facility and no amounts outstanding in our Senior ABL Facility. As of September 30, 2009, Hertz was required under the Senior Term Facility to have a consolidated leverage
18
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
ratio of not more than 5.50:1 and a consolidated interest expense coverage ratio of not less than 2.00:1. In addition, under our Senior ABL Facility, if there was less than $200 million of available borrowing capacity under that facility as of September 30, 2009, Hertz was required to have a consolidated leverage ratio of not more than 5.50:1 and a consolidated fixed charge coverage ratio of not less than 1:1 for the quarter then ended. Under the Senior Term Facility, as of September 30, 2009, we had a consolidated leverage ratio of 4.39:1 and a consolidated interest expense coverage ratio of 2.56:1. Since we had maintained sufficient borrowing capacity under our Senior ABL Facility as of September 30, 2009, and expect to maintain such capacity in the future, the consolidated fixed charge coverage ratio was not deemed relevant for presentation. For further information on the terms of our senior credit facilities, see Note 3 of the Notes to our audited annual consolidated financial statements included in our Form 10-K under the caption "Item 8Financial Statements and Supplementary Data."
Derivatives
We utilize certain derivative instruments to enhance our ability to manage risks relating to cash flow and interest rate exposure. See Note 13Financial Instruments.
Credit Facilities
As of September 30, 2009, the following credit facilities were available for the use of Hertz and its subsidiaries (in millions of dollars):
|
Remaining
Capacity |
Availability
Under Borrowing Base or Other Limitation |
||||||
---|---|---|---|---|---|---|---|---|
Corporate Debt |
||||||||
Senior ABL Facility |
$ | 1,691.3 | $ | 1,013.2 | ||||
Total Corporate Debt |
1,691.3 | 1,013.2 | ||||||
Fleet Debt |
||||||||
U.S. Fleet Debt |
1,841.9 | 447.3 | ||||||
International Fleet Debt |
677.4 | 114.3 | ||||||
International ABS Fleet Financing Facility |
445.6 | 66.0 | ||||||
Fleet Financing Facility |
20.4 | 20.0 | ||||||
Brazilian Fleet Financing Facility |
6.3 | | ||||||
Canadian Fleet Financing Facility |
82.4 | 31.3 | ||||||
Capitalized Leases |
53.4 | | ||||||
Total Fleet Debt |
3,127.4 | 678.9 | ||||||
Total |
$ | 4,818.7 | $ | 1,692.1 | ||||
As of September 30, 2009, the Senior Term Facility had approximately $1.6 million available under the letter of credit facility and the Senior ABL Facility had $151.9 million available under the letter of credit facility sublimit.
Our liquidity as of September 30, 2009 was approximately $5,067.3 million, which consisted of $926.7 million of cash, $1,013.2 million of unused commitments under our Senior ABL Facility and
19
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
$3,127.4 million of unused commitments under our fleet debt facilities. Taking into consideration the borrowing base limitations in our Senior ABL Facility and in our fleet debt facilities, the amount that we had available for immediate use as of September 30, 2009 under our Senior ABL Facility was $1,013.2 million and we had $678.9 million available under our various fleet debt facilities. Accordingly, as of September 30, 2009, we had $2,618.8 million ($926.7 million in cash, $1,013.2 million available under our Senior ABL Facility and $678.9 million available under our various fleet debt facilities) in liquidity that was available for our immediate use. Future availability of borrowings under these facilities will depend on borrowing base requirements and other factors, many of which are outside our control.
As of September 30, 2009, substantially all of our assets were pledged under one or more of the facilities noted above.
Accrued Interest
As of September 30, 2009 and December 31, 2008, accrued interest was $80.9 million and $131.4 million, respectively, which is reflected in our condensed consolidated balance sheet in "Accrued liabilities."
Note 8Employee Retirement Benefits
The following table sets forth the net periodic pension and postretirement (including health care, life insurance and auto) expense (in millions of dollars):
|
Pension Benefits |
|
|
|||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Postretirement
Benefits (U.S.) |
|||||||||||||||||||
|
U.S. | Non-U.S. | ||||||||||||||||||
|
Three months ended September 30, | |||||||||||||||||||
|
2009 | 2008 | 2009 | 2008 | 2009 | 2008 | ||||||||||||||
Components of Net Periodic Benefit Cost: |
||||||||||||||||||||
Service cost |
$ | 5.7 | $ | 5.0 | $ | 1.4 | $ | 1.6 | $ | | $ | | ||||||||
Interest cost |
7.0 | 6.6 | 2.5 | 2.1 | 0.2 | 0.1 | ||||||||||||||
Expected return on plan assets |
(5.4 | ) | (6.2 | ) | (2.0 | ) | (2.3 | ) | | | ||||||||||
Net amortizations |
0.1 | (0.3 | ) | (0.1 | ) | (0.1 | ) | (0.1 | ) | (2.6 | ) | |||||||||
Settlement loss |
0.8 | 0.2 | | | | | ||||||||||||||
Net pension/postretirement expense |
$ | 8.2 | $ | 5.3 | $ | 1.8 | $ | 1.3 | $ | 0.1 | $ | (2.5 | ) | |||||||
20
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
Our policy for funded plans is to contribute annually, at a minimum, amounts required by applicable laws, regulations and union agreements. From time to time, we make contributions beyond those legally required. For the three and nine months ended September 30, 2009, we contributed to and made benefit payments of $11.7 million and $28.9 million, respectively, to our funded worldwide plans. For the three and nine months ended September 30, 2008, our contributions to and benefit payments through unfunded plans were $9.7 million and $29.6 million, respectively. Of the contributions to worldwide plans, we contributed $6.5 million to the U.S. defined benefit plans during the three months ended September 30, 2009. No contributions were made to the U.S. plans during the same period in the previous year. For the three and nine months ended September 30, 2009, we made discretionary contributions of $1.3 million and $3.9 million, respectively, to our U.K. defined benefit pension plan. The amounts contributed to the U.K. plans for the three and nine months ended September 30, 2008, were $4.9 million and $7.2 million, respectively. We expect to contribute $42.6 million to our U.S. pension plan during 2009, including $13.0 million contributed during the nine months ended September 30, 2009, $14.2 million contributed in October 2009, and $15.4 million to be contributed later in the fourth quarter of 2009. These contributions are necessary primarily because of the significant decline in asset values in 2008.
We participate in various "multiemployer" pension plans administered by labor unions representing some of our employees. We make periodic contributions to these plans to allow them to meet their pension benefit obligations to their participants. In the event that we withdraw from participation in one of these plans, then applicable law could require us to make an additional lump-sum contribution to the plan, and we would have to reflect that as an expense in our consolidated statement of operations and as a liability on our condensed consolidated balance sheet. Our withdrawal liability for any multiemployer plan would depend on the extent of the plan's funding of vested benefits. In the ordinary course of our renegotiation of collective bargaining agreements with labor unions that maintain these plans, we could decide to discontinue participation in a plan, and in that event, we could face a withdrawal liability. Some multiemployer plans, including one in which we participate, are reported to have significant underfunded liabilities. Such underfunding could increase the size of our potential withdrawal liability.
Note 9Stock-Based Compensation
In February 2009, we granted 2,115,000 Restricted Stock Units, or "RSUs," to key executives and employees at fair values ranging from $2.75 to $3.24 and 3,819,739 Performance Stock Units, or "PSUs," at a fair value of $3.24, including a grant of 1,724,363 PSUs to Mark P. Frissora, our Chief Executive Officer. RSUs granted in 2009 generally have the terms set forth in the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan, or the "Omnibus Plan," however in the event of an employee's death or disability (as defined in the Omnibus Plan), a pro rata portion of the RSUs that would have vested on the next anniversary of the grant date will vest and the remainder of the RSUs will be canceled.
In February 2009, we granted options to acquire 52,500 shares of our common stock to certain executives at an exercise price of $3.24 under the Omnibus Plan.
In May 2009, we granted 505,500 RSUs to key employees at fair values ranging from $6.45 to $8.38. We also granted 155,588 shares of common stock to non-management directors or their assignees.
In July and August 2009, we granted 25,000 RSUs to key executives and employees at fair values ranging from $9.44 to $11.02.
21
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
For the three and nine months ended September 30, 2009, we recognized compensation cost of approximately $9.1 million ($5.6 million, net of tax) and $25.6 million ($15.7 million, net of tax), respectively, pursuant to our Hertz Global Holdings, Inc. Stock Incentive Plan and Hertz Global Holdings, Inc. Director Stock Incentive Plan, or the "Prior Plans," and the Omnibus Plan including the cost of stock options, RSUs, and PSUs. As of September 30, 2009, there was approximately $63.1 million of total unrecognized compensation cost related to non-vested stock options, RSUs, and PSUs granted by Hertz Holdings under the Prior Plans and the Omnibus Plan, including costs related to modifying the exercise prices of certain option grants in order to preserve the intrinsic value of the options, consistent with applicable tax law, to reflect special cash dividends of $4.32 per share paid on June 30, 2006 and $1.12 per share paid on November 21, 2006. These remaining costs are expected to be recognized over the remaining 1.4 years, on a weighted average basis, of the requisite service period that began on the grant dates.
Note 10Segment Information
Our operating segments are aggregated into reportable business segments based primarily upon similar economic characteristics, products, services, customers, and delivery methods. We have identified two reportable segments: rental of cars and light trucks, or "car rental"; and rental of industrial, construction and material handling equipment, or "equipment rental."
Adjusted pre-tax income is the measure utilized by management in making decisions about allocating resources to segments and measuring their performance. We believe this measure best reflects the financial results from ongoing operations. Adjusted pre-tax income is calculated as income (loss) before income taxes plus other reconciling items, non-cash purchase accounting charges, non-cash debt charges and certain one-time charges and non-operational items. The contribution of our reportable segments to revenues and adjusted pre-tax income and the reconciliation to consolidated revenues and income before income taxes for the three and nine months ended September 30, 2009 and 2008 are summarized below (in millions of dollars).
|
Three months ended September 30, | ||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Revenues | Adjusted Pre-Tax Income | |||||||||||||
|
2009 | 2008 | 2009 | 2008 | |||||||||||
Car rental |
$ | 1,757.7 | $ | 1,986.5 | $ | 258.3 | $ | 167.1 | |||||||
Equipment rental |
280.5 | 433.1 | 25.2 | 81.1 | |||||||||||
Total reportable segments |
2,038.2 | 2,419.6 | 283.5 | 248.2 | |||||||||||
Other |
3.2 | 2.3 | |||||||||||||
Total |
$ | 2,041.4 | $ | 2,421.9 | |||||||||||
Adjustments: |
|||||||||||||||
Other reconciling items (1) |
(88.2 | ) | (79.1 | ) | |||||||||||
Purchase accounting (2) |
(21.7 | ) | (25.2 | ) | |||||||||||
Non-cash debt charges (3) |
(48.5 | ) | (20.2 | ) | |||||||||||
Restructuring charges |
(35.7 | ) | (74.9 | ) | |||||||||||
Restructuring related charges (4) |
(11.4 | ) | (10.1 | ) | |||||||||||
Derivative losses (5) |
(1.9 | ) | (15.0 | ) | |||||||||||
Management transition costs |
(0.3 | ) | | ||||||||||||
Vacation accrual adjustment (6) |
| 2.5 | |||||||||||||
Income before income taxes |
$ | 75.8 | $ | 26.2 | |||||||||||
22
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
|
Nine months ended September 30, | ||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Revenues | Adjusted Pre-Tax Income | |||||||||||||
|
2009 | 2008 | 2009 | 2008 | |||||||||||
Car rental |
$ | 4,515.3 | $ | 5,442.8 | $ | 368.4 | $ | 355.8 | |||||||
Equipment rental |
837.0 | 1,287.4 | 50.6 | 225.9 | |||||||||||
Total reportable segments |
5,352.3 | 6,730.2 | 419.0 | 581.7 | |||||||||||
Other |
8.5 | 6.1 | |||||||||||||
Total |
$ | 5,360.8 | $ | 6,736.3 | |||||||||||
Adjustments: |
|||||||||||||||
Other reconciling items (1) |
(259.3 | ) | (240.9 | ) | |||||||||||
Purchase accounting (2) |
(69.5 | ) | (74.4 | ) | |||||||||||
Non-cash debt charges (3) |
(121.2 | ) | (56.4 | ) | |||||||||||
Restructuring charges |
(87.2 | ) | (127.2 | ) | |||||||||||
Restructuring related charges (4) |
(31.6 | ) | (21.0 | ) | |||||||||||
Management transition costs |
(1.0 | ) | (1.3 | ) | |||||||||||
Derivative gains (5) |
3.0 | 2.8 | |||||||||||||
Gain on debt buyback (7) |
48.5 | | |||||||||||||
Third-party bankruptcy accrual (8) |
(4.3 | ) | | ||||||||||||
Income (loss) before income taxes |
$ | (103.6 | ) | $ | 63.3 | ||||||||||
23
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
Note 11Total Equity
Common Stock and Additional Paid-In Capital
In May and June 2009, we completed the Common Stock Public Offering of 52,900,000 shares of our common stock at a price of $6.50 per share with proceeds before underwriting discounts and offering expenses of approximately $343.9 million.
In May and June 2009, we also completed the Convertible Debt Public Offering. The Convertible Senior Notes will be convertible by holders into shares of our common stock, cash or a combination of cash and shares of our common stock, as elected by us, initially at a conversion rate of 120.6637 shares per $1,000 principal amount of notes, subject to adjustment. Gross proceeds from the Convertible Debt Public Offering of $474.8 million were allocated between "Debt" and "Additional paid-in capital." The value assigned to the debt component was the estimated fair value, as of the issuance date, of a similar debt instrument without the conversion feature, and the difference between the proceeds for the Convertible Senior Notes and the amount reflected as a debt liability was recorded as "Additional paid-in capital" ($114.3 million).
On July 7, 2009, as a result of the Private Offering, 32,101,182 shares of our common stock were issued to CD&R and Carlyle affiliated investment funds with total proceeds to us of $200.0 million. See Note 1Background, Basis of Presentation and Liquidity.
Accumulated Other Comprehensive Income (Loss)
Accumulated other comprehensive loss as of September 30, 2009 and December 31, 2008 primarily includes unrealized losses on cash flow hedges of $(65.2) million and $(89.6) million, respectively, changes due to the pension mark-to-market adjustment of $(50.0) million and $(49.4) million, respectively, and unrealized losses on our Euro-denominated debt of $(23.9) million and $(15.7) million, respectively, and accumulated translation gains of $134.8 million and $54.5 million, respectively.
Comprehensive income (loss) for the three and nine months ended September 30, 2009 and 2008 were as follows (in millions of dollars):
|
Three Months Ended
September 30, |
||||||||
---|---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | |||||||
Net income |
$ | 68.9 | $ | 23.3 | |||||
Other comprehensive income (loss), net of tax: |
|||||||||
Foreign currency translation adjustments |
45.3 | (134.1 | ) | ||||||
Unrealized gain (loss) on Euro-denominated debt |
(7.2 | ) | 20.8 | ||||||
Change due to the pension mark-to-market adjustment |
0.4 | (19.1 | ) | ||||||
Change in fair value of cash flow hedges |
11.5 | (4.8 | ) | ||||||
Total other comprehensive income (loss) |
50.0 | (137.2 | ) | ||||||
Comprehensive income (loss) |
118.9 | (113.9 | ) | ||||||
Less: Comprehensive income attributable to the noncontrolling interest |
(4.4 | ) | (5.6 | ) | |||||
Comprehensive income (loss) attributable to Hertz Global Holdings, Inc. and Subsidiaries |
$ | 114.5 | $ | (119.5 | ) | ||||
24
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
|
Nine Months Ended
September 30, |
||||||||
---|---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | |||||||
Net income (loss) |
$ | (83.7 | ) | $ | 27.3 | ||||
Other comprehensive income (loss), net of tax: |
|||||||||
Foreign currency translation adjustments |
80.3 | (70.1 | ) | ||||||
Unrealized loss on Euro-denominated debt |
(8.2 | ) | 6.5 | ||||||
Change due to the pension mark-to-market adjustment |
(0.6 | ) | (19.2 | ) | |||||
Change in fair value of cash flow hedges |
24.4 | (5.8 | ) | ||||||
Total other comprehensive income (loss) |
95.9 | (88.6 | ) | ||||||
Comprehensive income (loss) |
12.2 | (61.3 | ) | ||||||
Less: Comprehensive income attributable to the noncontrolling interest |
(11.4 | ) | (16.1 | ) | |||||
Comprehensive loss attributable to Hertz Global Holdings, Inc. and Subsidiaries |
$ | 0.8 | $ | (77.4 | ) | ||||
Note 12Restructuring
As part of our ongoing effort to implement our strategy of reducing operating costs, we are evaluating our workforce and operations and making adjustments, including headcount reductions and business process re-engineering to optimize work flow at rental locations and maintenance facilities as well as streamlining our back-office operations and evaluating potential outsourcing opportunities. When we make adjustments to our workforce and operations, we may incur incremental expenses that delay the benefit of a more efficient workforce and operating structure, but we believe that increasing our operating efficiency and reducing the costs associated with the operation of our business are important to our long-term competitiveness. For further information on the actions taken in 2007 and 2008, see Note 12 of the Notes to our audited annual consolidated financial statements included in our Form 10-K under the caption "Item 8Financial Statements and Supplementary Data."
In January 2009, we announced that, as part of a comprehensive plan to further decrease costs and as a result of reduced rental demand, we were reducing our global workforce by more than 4,000 employees beginning in the fourth quarter 2008 and continuing through the first quarter of 2009, more than half of whom are not eligible for severance benefits. We incurred job reductions in the car and equipment rental businesses, corporate and support areas, and in all geographies, with an emphasis on eliminating non-customer facing jobs. Related to these location closures and continued cost reduction initiatives, we incurred restructuring charges for employee termination liabilities covering approximately 1,500 employee separations in the fourth quarter of 2008.
During the first and second quarters of 2009, our equipment rental business incurred charges mainly for losses on disposal of surplus equipment and recognition of facility lease obligations related to previously announced U.S. branch closures that were completed during the quarters. Our North American and European car rental businesses incurred charges mainly for facility lease obligations related to previously announced off-airport location closures that were completed during the quarters. In the first quarter of 2009, our European car rental business also eliminated certain specialty rental equipment as a future cost reduction initiative and incurred related lease termination costs. The first and second quarter 2009 restructuring charges included employee termination liabilities covering approximately 500 and 600 employees, respectively.
25
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
During the third quarter of 2009, our equipment rental business incurred charges mainly for costs related to facility lease obligations for previously closed branches and additional losses on the disposal of remaining surplus equipment related to these locations. Our European car rental business incurred employee termination benefits costs associated with the migration of work to the European shared service center and the creation of two regions to manage our country operations. Additionally, our European car rental business recognized a loss on sale of a building due to reduced office space needs resulting from headcount reductions. During the quarter, restructuring charges included employee termination liabilities covering approximately 300 employees globally.
For the three months ended September 30, 2009, our consolidated statement of operations included restructuring charges relating to the initiatives discussed above of $35.7 million which was composed of $18.8 million of involuntary termination benefits, $11.2 million in facility closures and lease obligation costs, $2.7 million in asset impairment charges, $0.8 million in pension liability settlements, $0.8 million in relocation and $1.4 million of other restructuring charges. The after-tax effect of the restructuring charges reduced diluted earnings per share by $0.07 for the three months ended September 30, 2009.
For the nine months ended September 30, 2009, our consolidated statement of operations included restructuring charges relating to the initiatives discussed above of $87.2 million which was composed of $37.4 million of involuntary termination benefits, $23.2 million in facility closures and lease obligation costs, $8.7 million in asset impairment charges, $6.9 million in consulting costs, $4.5 million in lease termination costs, $2.3 million in relocation costs, $1.7 million in contract termination costs and $2.5 million of other restructuring charges. The after-tax effect of the restructuring charges increased diluted loss per share by $0.19 for the nine months ended September 30, 2009.
For the three months ended September 30, 2008, our consolidated statement of operations included restructuring charges relating to the initiatives discussed above of $74.9 million, which was composed of $38.5 million of involuntary termination benefits, $23.5 million in asset impairment charges, $7.9 million in facility lease obligations, $2.2 million in consulting costs, $0.2 million in pension settlement loss and $2.6 million of other restructuring charges. The after-tax effect of the restructuring charges reduced diluted earnings per share by $0.16 for the three months ended September 30, 2008.
For the nine months ended September 30, 2008, our consolidated statement of operations included restructuring charges relating to the initiatives discussed above of $127.2 million, which was composed of $62.5 million of involuntary termination benefits, $34.1 million in asset impairment charges, $11.6 million in facility lease obligations, $9.6 million in consulting costs, $1.2 million in pension settlement loss, and $8.2 million of other restructuring charges. The after-tax effect of the restructuring charges reduced diluted earnings per share by $0.27 for the nine months ended September 30, 2008.
Additional efficiency and cost saving initiatives may be developed during the fourth quarter of 2009 and in 2010. However, we presently do not have firm plans or estimates of any related expenses.
Restructuring charges in our consolidated statement of operations can be summarized as follows (in millions of dollars):
|
Three months ended September 30, | ||||||||
---|---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | |||||||
By Caption: |
|||||||||
Direct operating |
$ | 16.5 | $ | 55.8 | |||||
Selling, general and administrative |
19.2 | 19.1 | |||||||
Total |
$ | 35.7 | $ | 74.9 | |||||
26
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
|
Nine months ended September 30, | ||||||||
---|---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | |||||||
By Caption: |
|||||||||
Direct operating |
$ | 51.7 | $ | 87.2 | |||||
Selling, general and administrative |
35.5 | 40.0 | |||||||
Total |
$ | 87.2 | $ | 127.2 | |||||
|
Three months ended September 30, | ||||||||
---|---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | |||||||
By Segment: |
|||||||||
Car rental |
$ | 25.4 | $ | 36.4 | |||||
Equipment rental |
9.1 | 36.6 | |||||||
Other reconciling items |
1.2 | 1.9 | |||||||
Total |
$ | 35.7 | $ | 74.9 | |||||
|
Nine months ended September 30, | ||||||||
---|---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | |||||||
By Segment: |
|||||||||
Car rental |
$ | 50.3 | $ | 64.7 | |||||
Equipment rental |
28.9 | 55.0 | |||||||
Other reconciling items |
8.0 | 7.5 | |||||||
Total |
$ | 87.2 | $ | 127.2 | |||||
Our condensed consolidated balance sheet as of September 30, 2009, included accruals relating to the restructuring program of $36.5 million. We expect to pay substantially all of the remaining restructuring obligations by the end of the second quarter 2010. The following table sets forth the activity affecting the accrual during the nine months ended September 30, 2009 (in millions of dollars):
|
Involuntary
Termination Benefits |
Pension
and Post Retirement Expense |
Consultant
Costs |
Other | Total | ||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Balance as of January 1, 2009 |
$ | 43.4 | $ | 0.5 | $ | | $ | 16.4 | $ | 60.3 | |||||||
Charges incurred |
37.5 | 0.8 | 6.9 | 42.0 | 87.2 | ||||||||||||
Cash payments |
(55.9 | ) | | (6.7 | ) | (18.8 | ) | (81.4 | ) | ||||||||
Other (1) |
(1.1 | ) | (1.3 | ) | (0.1 | ) | (27.1 | ) | (29.6 | ) | |||||||
Balance as of September 30, 2009 |
$ | 23.9 | $ | | $ | 0.1 | $ | 12.5 | $ | 36.5 | |||||||
Note 13Financial Instruments
GAAP establishes a three-tier value hierarchy, which prioritizes the inputs used in measuring fair value as follows: (Level 1) observable inputs such as quoted prices in active markets; (Level 2) inputs other than the quoted prices in active markets that are observable either directly or indirectly; and (Level 3)
27
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
unobservable inputs in which there is little or no market data, which require the reporting entity to develop its own assumptions.
Cash and Cash Equivalents and Restricted Cash
Fair value approximates the amount indicated on the balance sheet at September 30, 2009 because of the short-term maturity of these instruments. Money market accounts, the fair value of which at September 30, 2009, is measured using Level 1 inputs, totaling $345.0 million and $275.6 million are included in "Cash and cash equivalents" and "Restricted cash," respectively.
Debt
For borrowings with an initial maturity of 93 days or less, fair value approximates carrying value because of the short-term nature of these instruments. For all other debt, fair value is estimated based on quoted market rates as well as borrowing rates currently available to us for loans with similar terms and average maturities. The aggregate fair value of all debt at September 30, 2009 approximated $10,631.3 million, compared to its aggregate carrying value of $10,512.5 million. The aggregate fair value of all debt at December 31, 2008 approximated $7,968.3 million, compared to its aggregate carrying value of $11,033.9 million.
Derivative Instruments and Hedging Activities
The following table summarizes our financial assets and liabilities measured at fair value on a recurring basis as of September 30, 2009 and December 31, 2008 (in millions of dollars):
|
Fair Value of Derivative Instruments (1) | ||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Asset Derivatives (2) | Liability Derivatives (2) | |||||||||||||
|
September 30,
2009 |
December 31,
2008 |
September 30,
2009 |
December 31,
2008 |
|||||||||||
Derivatives designated as hedging instruments under ASC 815: |
|||||||||||||||
HVF interest rate swaps |
$ | | $ | | $ | 15.5 | $ | 134.5 | |||||||
Derivatives not designated as hedging instruments under ASC 815: |
|||||||||||||||
Gasoline swaps |
1.7 | | | | |||||||||||
Interest rate caps |
9.3 | 0.3 | 6.1 | 0.3 | |||||||||||
Foreign exchange options |
0.1 | 0.6 | | | |||||||||||
Total derivatives not designated as hedging instruments under ASC 815 |
11.1 | 0.9 | 6.1 | 0.3 | |||||||||||
Total derivatives |
$ | 11.1 | $ | 0.9 | $ | 21.6 | $ | 134.8 | |||||||
28
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
|
Amount of Gain or
(Loss) Recognized in Other Comprehensive Income on Derivative (Effective Portion) |
Amount of Gain or
(Loss) Reclassified from Accumulated Other Comprehensive Loss into Income (Effective Portion) |
Amount of Gain or
(Loss) Recognized in Income on Derivative (Ineffective Portion) |
|||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Three months ended September 30, | |||||||||||||||||||
|
2009 | 2008 | 2009 | 2008 | 2009 | 2008 | ||||||||||||||
Derivatives in ASC 815 Cash Flow Hedging Relationship: |
||||||||||||||||||||
HVF interest rate swaps |
$ | (3.5 | ) | $ | (8.0 | ) | $ | (22.4) | (1) | $ | | $ | | $ | (2.8 | ) |
|
Amount of Gain or
(Loss) Recognized in Other Comprehensive Income on Derivative (Effective Portion) |
Amount of Gain or
(Loss) Reclassified from Accumulated Other Comprehensive Income into Income (Effective Portion) |
Amount of Gain or
(Loss) Recognized in Income on Derivative (Ineffective Portion) |
|||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Nine months ended September 30, | |||||||||||||||||||
|
2009 | 2008 | 2009 | 2008 | 2009 | 2008 | ||||||||||||||
Derivatives in ASC 815 Cash Flow Hedging Relationship: |
||||||||||||||||||||
HVF interest rate swaps |
$ | (15.5 | ) | $ | (9.6 | ) | $ | (52.2) | (1) | $ | | $ | | $ | (7.8 | ) |
Note: The location of both the effective portion reclassified from "Accumulated other comprehensive loss" into income and the ineffective portion recognized in income is in "Interest expense" on our consolidated statement of operations.
|
|
Amount of Gain or
(Loss) Recognized in Income on Derivative |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
|
|
Three months ended
September 30, |
|||||||||
|
Location of Gain or (Loss)
Recognized on Derivative |
||||||||||
|
2009 | 2008 | |||||||||
Derivatives Not Designated as Hedging Instruments under ASC 815: |
|||||||||||
Gasoline swaps |
Direct operating | $ | 0.1 | $ | | ||||||
Interest rate caps |
Selling, general and administrative | (2.0 | ) | | |||||||
Foreign exchange options |
Selling, general and administrative | 0.1 | 0.2 | ||||||||
HIL swaptions |
Selling, general and administrative | | (15.0 | ) | |||||||
Total |
$ | (1.8 | ) | $ | (14.8 | ) | |||||
29
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
|
|
Amount of Gain or
(Loss) Recognized in Income on Derivative |
|||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
|
|
Nine months ended
September 30, |
|||||||||
|
Location of Gain or (Loss)
Recognized on Derivative |
||||||||||
|
2009 | 2008 | |||||||||
Derivatives Not Designated as Hedging Instruments under ASC 815: |
|||||||||||
Gasoline swaps |
Direct operating | $ | 5.0 | $ | | ||||||
Interest rate caps |
Selling, general and administrative | (2.0 | ) | | |||||||
Foreign exchange options |
Selling, general and administrative | 0.2 | 0.1 | ||||||||
HIL swaptions |
Selling, general and administrative | | 2.8 | ||||||||
Total |
$ | 3.2 | $ | 2.9 | |||||||
In connection with the Acquisition and the issuance of $3,550.0 million of floating rate U.S. Fleet Debt, our subsidiary HVF entered into certain interest rate swap agreements, or the "HVF Swaps," effective December 21, 2005, which qualify as cash flow hedging instruments in accordance with GAAP. These agreements mature at various terms, in connection with the scheduled maturity of the associated debt obligations, through November 2010. Under these agreements, until February 2009, HVF was paying monthly interest at a fixed rate of 4.5% per annum in exchange for monthly interest at one-month LIBOR, effectively transforming the floating rate U.S. Fleet Debt to fixed rate obligations. In March 2009, HVF made a cash payment to have the fixed rate on these swaps reset to the then current market rates of 0.872% and 1.25% for the swaps maturing in February 2010 and November 2010, respectively. $80.4 million of this payment was made to an affiliate of MLGPE which is a counterparty to the HVF Swaps. Concurrently with this payment, the hedging relationship was de-designated and the amount remaining in "Accumulated other comprehensive loss" associated with this cash flow hedging relationship was frozen and will be amortized into "Interest expense" over the respective terms of the associated debt in accordance with GAAP. We expect to amortize approximately $83.6 million from "Accumulated other comprehensive loss" into "Interest expense" over the next twelve months. Additionally, a new hedging relationship was designated between the HVF Swaps and the remaining $2,825.0 million of floating rate U.S. Fleet Debt, which also qualifies for cash flow hedge accounting in accordance with GAAP. Both at the inception of the hedge and on an ongoing basis, we measure ineffectiveness by comparing the fair value of the HVF Swaps and the fair value of hypothetical swaps, with similar terms, using the Hypothetical Method in accordance with GAAP. The hypothetical swaps represent a perfect hedge of the variability in interest payments associated with the U.S. Fleet Debt. Subsequent to the resetting of the swaps at current market rates, we anticipate that there will be no ineffectiveness in the hedging relationship because the critical terms of the HVF Swaps match the terms of the hypothetical swaps.
For the three and nine months ended September 30, 2009, we recorded an expense of $22.4 million and $52.2 million, respectively, in our consolidated statement of operations, in "Interest expense," associated with the amortization of the amount remaining in "Accumulated other comprehensive loss" associated with the de-designation of the cash flow hedging relationship described above. For the three and nine months ended September 30, 2008, we recorded an expense of $2.8 million and $7.8 million, respectively, in our consolidated statement of operations, in "Interest expense," associated with the ineffectiveness of the HVF Swaps. The ineffectiveness in 2008 resulted from a decline in the value of the HVF Swaps due to a decrease in forward interest rates along with a decrease in the time value component as we approached the maturity dates of the HVF Swaps. The effective portion of the change in fair value of the HVF Swaps is recorded in "Accumulated other comprehensive loss." As of
30
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
September 30, 2009 and December 31, 2008, the balance reflected in "Accumulated other comprehensive loss," net of tax, was a loss of $65.2 million (net of tax of $41.5 million) and a loss of $89.6 million (net of tax of $57.4 million), respectively. The fair values of the HVF Swaps were calculated using the income approach and applying observable market data (i.e. the 1-month LIBOR yield curve and credit default swap spreads).
In connection with the entrance into the HVF Swaps, Hertz entered into seven differential interest rate swap agreements, or the "differential swaps." These differential swaps were required to be put in place to protect the counterparties to the HVF Swaps in the event of an "amortization event" under the asset-backed notes agreements. In the event of an "amortization event," the amount by which the principal balance on the floating rate portion of the U.S. Fleet Debt is reduced, exclusive of the originally scheduled amortization, becomes the notional amount of the differential swaps and is transferred to Hertz. There was no payment associated with these differential swaps and their notional amounts are and will continue to be zero unless (1) there is an amortization event, which causes the amortization of the loan balance, or (2) the debt is prepaid.
An "event of bankruptcy" (as defined in the ABS Base Indenture) with respect to MBIA or Ambac would constitute an "amortization event" under the portion of the U.S. Fleet Debt facilities guaranteed by the affected insurer.
On September 12, 2008, a supplement was signed to the Indenture, dated as of August 1, 2006, between HVF and the Bank of New York Mellon Trust Company, N.A. This supplement created the Series 2008-1 Notes for issuance by HVF. In order to satisfy rating agency requirements related to its bankruptcy-remote status, HVF acquired an interest rate cap in an amount equal to the Series 2008-1 Notes maximum principal amount of $825.0 million with a strike rate of 7% and a term until August 15, 2011. HVF bought the cap on the date the supplement was signed for $0.4 million and in an associated transaction, Hertz sold an equal and opposite cap for $0.3 million. In connection with the issuance of the Series 2009-1 Notes, HVF caused the termination of the Series 2008-1 Notes, as well as both of the associated interest rate caps.
On September 18, 2009, HVF completed the closing of the Series 2009-1 Notes. In order to satisfy rating agency requirements related to its bankruptcy-remote status, HVF purchased an interest rate cap, for $11.7 million, with a maximum notional amount equal to the Series 2009-1 Notes maximum principal amount of $2.1 billion with a strike rate of 5% and a term until January 25, 2013. Additionally, Hertz sold a 5% interest rate cap, for $6.5 million, with a notional amount equal to 33.3% of the notional amount of the HVF cap through January 2012, and then subsequently with a matching notional amount to the HVF cap through its maturity date of January 25, 2013. The fair value of these interest rate caps was calculated using a discounted cash flow method and applying observable market data. Gains and losses resulting from changes in the fair value of these interest rate caps are included in our results of operations in the periods incurred.
In May 2006, in connection with the forecasted issuance of the permanent take-out international asset-based facilities, our subsidiary HIL purchased two swaptions for €3.3 million, to protect itself from interest rate increases. These swaptions gave HIL the right, but not the obligation, to enter into three year interest rate swaps, based on a total notional amount of €600 million at an interest rate of 4.155%. The swaptions were renewed twice in 2007, prior to their scheduled expiration dates of March 15, 2007 and September 5, 2007, at a total cost of €2.7 million, and expired on June 5, 2008. The fair values of the HIL swaptions were calculated using the income approach and applying observable market data. On June 4, 2008, these swaptions were sold for a realized gain of €9.4 million (or $14.8 million). Additionally, on June 4, 2008, HIL purchased two new swaptions for €8.6 million, to protect itself from interest rate increases associated with the International ABS Fleet Financing Facility, which closed on July 24, 2008.
31
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
These swaptions were based on an underlying transaction with a notional amount of €600 million at an interest rate of 4.25%. As of September 30, 2008, the fair value of the swaptions was €5.3 million (or $7.6 million), which is reflected in our condensed consolidated balance sheet in "Prepaid expenses and other assets." During the three and nine months ended September 30, 2008, the fair value adjustments related to these swaptions were gains of $15.0 million (unrealized loss on the new swaptions) and a gain of $2.8 million ($14.8 million realized gain on the sale of the old swaptions and a net $12.0 million unrealized loss on the old and new swaptions), respectively, which were recorded in our consolidated statement of operations in "Selling, general and administrative" expenses. On October 10, 2008, the outstanding swaptions were terminated and Hertz received a €1.9 million payment from counterparties.
We purchase unleaded gasoline at prevailing market rates. In January 2009, we began a program to manage our exposure to changes in prices through the use of derivative commodity instruments. In July 2009, we executed additional swaps to cover a portion of our exposure through June 2010. We presently hedge a portion of our overall gasoline purchases with commodity swaps and have contracts in place that settle on a monthly basis. As of September 30, 2009, our outstanding commodity instruments totaled approximately 7.7 million gallons. The fair value of these commodity instruments was calculated using a discounted cash flow method and applying observable market data. Gains and losses resulting from changes in the fair value of these commodity instruments are included in our results of operations in the periods incurred.
We manage our foreign currency risk primarily by incurring, to the extent practicable, operating and financing expenses in the local currency in the countries in which we operate, including making fleet and equipment purchases and borrowing for working capital needs. Also, we have purchased foreign exchange options to manage exposure to fluctuations in foreign exchange rates for selected marketing programs. The effect of exchange rate changes on these financial instruments would not materially affect our consolidated financial position, results of operations or cash flows. Our risks with respect to foreign exchange options are limited to the premium paid for the right to exercise the option and the future performance of the option's counterparty. Premiums paid for options outstanding as of September 30, 2009, were approximately $0.3 million and we limit counterparties to financial institutions that have strong credit ratings. As of September 30, 2009 and December 31, 2008, the total notional amount of these foreign exchange options was $2.5 million and $15.1 million, respectively, maturing through February 2010, and the fair value of all outstanding foreign exchange options, was approximately $0.1 million and $0.5 million, respectively, which was recorded in our condensed consolidated balance sheet in "Prepaid expenses and other assets." The fair value of the foreign exchange options was calculated using a discounted cash flow method and applying observable market data. Gains and losses resulting from changes in the fair value of these options are included in our results of operations in the periods incurred.
We also manage exposure to fluctuations in currency risk on intercompany loans we make to certain of our subsidiaries by entering into foreign currency forward contracts at the time of the loans which are intended to offset the impact of foreign currency movements on the underlying intercompany loan obligations. As a result, the forward contracts have no material impact on our results of operations. As of September 30, 2009, the total notional amount of these forward contracts was $926.1 million, maturing within two months.
On October 1, 2006, we designated our Senior Euro Notes as an effective net investment hedge of our Euro-denominated net investment in our international operations. As a result of this net investment hedge designation, as of September 30, 2009 and December 31, 2008, losses of $23.9 million (net of tax of $17.9 million) and $15.7 million (net of tax of $12.6 million), respectively, attributable to the translation
32
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
of our Senior Euro Notes into the U.S. dollar are recorded in our condensed consolidated balance sheet in "Accumulated other comprehensive loss."
Note 14Related Party Transactions
Relationship with Hertz Investors, Inc. and the Sponsors
Other than as disclosed below, in the three months ended September 30, 2009, there were no material changes to our relationship with Hertz Investors, Inc. or the Sponsors.
Director Compensation Policy
Several of our directors are employed by or affiliated with our Sponsors. In October 2006, our Board of Directors approved a compensation policy for the members of our board, our "Director Compensation Policy". Pursuant to the Director Compensation Policy our directors who are not our employees each received a $150,000 annual retainer fee, of which 40% (i.e., $60,000) was payable in cash and 60% (i.e., $90,000) was payable in the form of stock options having a Black-Scholes value equal to such dollar amount.
In May 2009, the Board of Directors approved an amendment to the Director Compensation Policy, whereby the equity portion of the annual retainer fee will now be paid in the form of shares of Hertz Holdings common stock instead of options. In addition, the Board of Directors also passed a resolution reducing the annual retainer fee by 20% for the period from May 2009 to May 2010 or such earlier date as Hertz Holdings fully restores the salary reductions of its officers. In the fall of 2009, Hertz Holdings fully restored the salary reductions of its officers and accordingly, the annual retainer fee for the Board of Directors will also be restored on a going forward basis.
For the three and nine months ended September 30, 2009, we recognized $0.4 million and $1.2 million, respectively, of expense relating to the Director Compensation Policy in our consolidated statement of operations in "Selling, general and administrative" expenses. For the three and nine months ended September 30, 2008, we recognized $0.5 million and $1.4 million, respectively, of expense relating to the Director Compensation Policy in our consolidated statement of operations in "Selling, general and administrative" expenses.
Other Sponsor Relationships
In May and June 2009, Merrill Lynch & Co., or "ML," an affiliate of one of our Sponsors, MLGPE, acted as an underwriter in the Common Stock Public Offering and in the Convertible Debt Public Offering, for which they received customary fees and expenses.
In May 2009 we entered into subscription agreements with investment funds affiliated with CD&R and Carlyle to purchase an additional 32,101,182 shares of our common stock at a price of $6.23 per share (the same price per share paid to us by the underwriters in the Common Stock Public Offering) with proceeds to us of approximately $200.0 million. The Private Offering closed on July 7, 2009 and the 32,101,182 shares of our common stock were issued to CD&R and Carlyle affiliated investment funds on the same date. Giving effect to the Common Stock Public Offering and the Private Offering the Sponsors' ownership percentage in us is approximately 51%.
Banc of America Securities LLC, an affiliate of MLGPE acted as one of the joint lead bookrunners in the issuance of the Series 2009-2 Notes, for which they received customary fees and expenses.
33
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
In the second quarter of 2007, we were advised by ML, that between November 17, 2006, and April 19, 2007, ML engaged in principal trading activity in our common stock. Some of those purchases and sales of our common stock should have been reported to the SEC on Form 4, but were not reported. ML and certain of its affiliates have engaged in additional principal trading activity since that time. ML and certain of its affiliates have since filed amended or additional reports on Form 4 disclosing the current number of shares of our common stock held by ML and its affiliates. To date, ML has paid to us approximately $4.9 million for its "short-swing" profit liability resulting from its principal trading activity that is subject to recovery by us under Section 16 of the Securities Exchange Act of 1934, as amended. In the event that ML or its affiliates (including private investment funds managed by certain private equity-arm affiliates of ML) sell additional shares of our common stock in the future, this amount may change. In 2008 and 2007, we recorded $0.1 million, net of tax and $2.9 million (net of tax of $1.9 million), respectively, in our condensed consolidated balance sheet in "Additional paid-in capital." In. addition, because ML may be deemed to be an affiliate of Hertz Holdings and there was no registration statement in effect with respect to its sale of shares during this period, certain of these sales may have been made in violation of Section 5 of the Securities Act of 1933, as amended.
Note 15Commitments and Contingencies
Off-Balance Sheet Commitments
As of September 30, 2009 and December 31, 2008, the following guarantees (including indemnification commitments) were issued and outstanding:
Indemnifications
In the ordinary course of business, we execute contracts involving indemnifications standard in the relevant industry and indemnifications specific to a transaction such as the sale of a business. These indemnifications might include claims relating to the following: environmental matters; intellectual property rights; governmental regulations and employment-related matters; customer, supplier and other commercial contractual relationships; and financial matters. Performance under these indemnities would generally be triggered by a breach of terms of the contract or by a third party claim. We regularly evaluate the probability of having to incur costs associated with these indemnifications and have accrued for expected losses that are probable and estimable. The types of indemnifications for which payments are possible include the following:
Sponsors; Directors
Hertz has entered into customary indemnification agreements with us, the Sponsors and our stockholders affiliated with the Sponsors, pursuant to which Hertz Holdings and Hertz will indemnify the Sponsors, our stockholders affiliated with the Sponsors and their respective affiliates, directors, officers, partners, members, employees, agents, representatives and controlling persons, against certain liabilities arising out of performance of a consulting agreement with Hertz Holdings and each of the Sponsors and certain other claims and liabilities, including liabilities arising out of financing arrangements or securities offerings. We also entered into indemnification agreements with each of our directors. We do not believe that these indemnifications are reasonably likely to have a material impact on us.
34
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
Environmental
We have indemnified various parties for the costs associated with remediating numerous hazardous substance storage, recycling or disposal sites in many states and, in some instances, for natural resource damages. The amount of any such expenses or related natural resource damages for which we may be held responsible could be substantial. The probable expenses that we expect to incur for such matters have been accrued, and those expenses are reflected in our condensed consolidated financial statements. As of September 30, 2009 and December 31, 2008, the aggregate amounts accrued for environmental liabilities including liability for environmental indemnities, reflected in our condensed consolidated balance sheet in "Accrued liabilities" were $2.1 million and $2.2 million, respectively. The accrual generally represents the estimated cost to study potential environmental issues at sites deemed to require investigation or clean-up activities, and the estimated cost to implement remediation actions, including on-going maintenance, as required. Cost estimates are developed by site. Initial cost estimates are based on historical experience at similar sites and are refined over time on the basis of in-depth studies of the sites. For many sites, the remediation costs and other damages for which we ultimately may be responsible cannot be reasonably estimated because of uncertainties with respect to factors such as our connection to the site, the materials there, the involvement of other potentially responsible parties, the application of laws and other standards or regulations, site conditions, and the nature and scope of investigations, studies, and remediation to be undertaken (including the technologies to be required and the extent, duration, and success of remediation).
Legal Proceedings
Below is a brief description of those legal proceedings that we believe may result in a material contingency. For a detailed description of these legal proceedings please see Note 10 of the Notes to our audited annual consolidated financial statements included in our Form 10-K under the caption "Item 8Financial Statements and Supplementary Data."
Other Consumer or Supplier Class Actions
On August 15, 2006, Davis Landscape, Ltd., individually and on behalf of all others similarly situated, v. Hertz Equipment Rental Corporation , was filed in the United States District Court for the District of New Jersey. Davis Landscape, Ltd., purported to be a nationwide class action on behalf of all persons and business entities who rented equipment from HERC and who paid a Loss Damage Waiver, or "LDW," charge. The plaintiff sought an unspecified amount of statutory damages under the New Jersey Consumer Fraud Act, an unspecified amount of compensatory damages with the return of all LDW charges paid, declaratory relief and an injunction prohibiting HERC from engaging in acts with respect to the LDW charge that violated the New Jersey Consumer Fraud Act. The complaint also asked for attorneys' fees and costs.
On October 13, 2006, Janet Sobel, Daniel Dugan, PhD. and Lydia Lee, individually and on behalf of all others similarly situated v. The Hertz Corporation and Enterprise Rent-A-Car Company was filed in the United States District Court for the District of Nevada. Sobel purported to be a nationwide class action on behalf of all persons who rented cars from Hertz or Enterprise Rent-A-Car, or "Enterprise," at airports in Nevada and whom Hertz or Enterprise charged
35
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
airport concession recovery fees. The plaintiffs sought an unspecified amount of compensatory damages, restitution of any charges found to be improper and an injunction prohibiting Hertz and Enterprise from quoting or charging any of the fees prohibited by Nevada law. The complaint also asked for attorneys' fees and costs.
On May 3, 2007, Fun Services of Kansas City, Inc., individually and as the representative of a class of similarly-situated persons, v. Hertz Equipment Rental Corporation was commenced in the District Court of Wyandotte County, Kansas. Fun Services purported to be a class action on behalf of all persons in Kansas and throughout the United States who on or after four years prior to the filing of the action were sent facsimile messages of advertising materials relating to the availability of property, goods or services by HERC and who did not provide express permission for sending such faxes. In August 2009, the District Court of Johnson County, Kansaswhere the case is now venuedissued an Order Granting Joint Motion to Stay Proceedings pending the outcome of another Telephone Consumer Protection Act case that is currently before the Kansas Supreme Court.
On November 14, 2007, Michael Shames, Gary Gramkow, on behalf of themselves and on behalf of all persons similarly situated v. The Hertz Corporation, Dollar Thrifty Automotive Group, Inc., Avis Budget Group, Inc., Vanguard Car Rental USA, Inc., Enterprise Rent-A-Car Company, Fox Rent A Car, Inc., Coast Leasing Corp., The California Travel and Tourism Commission, and Caroline Beteta was commenced in the United States District Court for the Southern District of California. Shames purported to be a class action brought on behalf of all individuals or entities that purchased rental car services from a defendant at a California situs airport after January 1, 2007. The complaint alleged that the defendants agreed to charge consumers a 2.5% assessment and not to compete with respect to this assessment, while misrepresenting that this assessment is owed by consumers, rather than the rental car defendants, to the California Travel and Tourism Commission. The complaint also alleges that defendants agreed to pass through to consumers a fee known as the Airport Concession Fee, which fee had previously been required to be included in the rental car defendants' individual base rates, without reducing their base rates. Based on these allegations, the complaint sought treble damages, disgorgement, injunctive relief, interest, attorneys' fees, and costs.
On December 13, 2007, Thomas J. Comiskey, on behalf of himself and all others similarly situated v. Avis Budget Group, Inc., Vanguard Car Rental USA, Inc., Dollar Thrifty Automotive Group, Inc., Advantage Rent-A-Car, Inc., Avalon Global Group, The Hertz Corporation, Enterprise Rent-A-Car Company, Fox Rent A Car, Inc., Beverly Hills Rent-A-Car, Inc., Rent4Less, Inc., Autorent Car Rental, Inc., Pacific Rent-A-Car, Inc., ABC Rent-A-Car, Inc., The California Travel and Tourism Commission, and Dale E. Bonner was commenced in the United States District Court for the Central District of California. Comiskey purported to be a class action brought on behalf of all persons and entities that have paid an assessment since the inception of the Passenger Car Rental Industry Tourism Assessment Program in California on January 1, 2007. On December 14, 2007, Isabel S. Cohen filed in the United States District Court for the Central District of California a complaint virtually identical to that filed in Comiskey. In February 2008, the court consolidated Comiskey and Cohen, captioned the consolidated action "In re Tourism Assessment Fee Litigation," and ordered the plaintiffs to serve a single
36
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
consolidated class action complaint. In March 2009, the plaintiffs filed a Notice of Appeal with the U.S. Court of Appeals for the Ninth Circuit seeking to overturn the District Court's entry of final judgment and the District Court's order denying plaintiffs' Ex Parte Motion for Leave to File a Motion for Relief from Judgment Pursuant to FRCP 59(e) and/or for Leave to File a Second Amended Complaint.
We believe that we have meritorious defenses in the foregoing matters and will defend ourselves vigorously.
In addition, we are currently a defendant in numerous actions and have received numerous claims on which actions have not yet been commenced for public liability and property damage arising from the operation of motor vehicles and equipment rented from us and our licensees. In the aggregate, we can be expected to expend material sums to defend and settle public liability and property damage actions and claims or to pay judgments resulting from them.
In addition to the foregoing, various legal actions, claims and governmental inquiries and proceedings are pending or may be instituted or asserted in the future against us and our subsidiaries. Litigation is subject to many uncertainties, and the outcome of the individual litigated matters is not predictable with assurance. It is possible that certain of the actions, claims, inquiries or proceedings, including those discussed above, could be decided unfavorably to us or any of our subsidiaries involved. Although the amount of liability with respect to these matters cannot be ascertained, potential liability in excess of related accruals is not expected to materially affect our consolidated financial position, results of operations or cash flows, but it could be material in the period in which it is recorded.
Note 16Earnings (Loss) Per Share
Basic earnings (loss) per share is computed based upon the weighted average number of common shares outstanding. Diluted earnings (loss) per share is computed based upon the weighted average number of common shares outstanding plus the effect of all potentially dilutive common stock equivalents, except when the effect would be anti-dilutive.
37
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
The following table sets forth the computation of basic and diluted earnings (loss) per share (in millions, except per share amounts):
|
Three Months Ended
September 30, |
|||||||
---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | ||||||
Basic and diluted earnings per share: |
||||||||
Numerator: |
||||||||
Net income attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders |
$ | 64.5 | $ | 17.7 | ||||
Denominator: |
||||||||
Weighted average shares used in basic computation |
407.4 | 322.9 | ||||||
Add: Stock options, RSUs and PSUs |
8.0 | | ||||||
Add: Potential issuance of common stock upon conversion of Convertible Senior Notes |
9.8 | | ||||||
Weighted average shares used in diluted computation |
425.2 | 322.9 | ||||||
Earnings per share attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders, basic |
$ | 0.16 | $ | 0.05 | ||||
Earnings per share attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders, diluted |
$ | 0.15 | $ | 0.05 |
|
Nine Months Ended
September 30, |
|||||||
---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | ||||||
Basic and diluted earnings (loss) per share: |
||||||||
Numerator: |
||||||||
Income (loss) attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders |
$ | (95.1 | ) | $ | 11.2 | |||
Denominator: |
||||||||
Weighted average shares used in basic and diluted computation |
358.5 | 322.6 | ||||||
Earnings (loss) per share attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders, basic |
$ | (0.27 | ) | $ | 0.03 | |||
Earnings (loss) per share attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders, diluted |
$ | (0.27 | ) | $ | 0.03 |
Diluted earnings (loss) per share computations for the three and nine months ended September 30, 2009 excluded the weighted-average impact of the assumed exercise of approximately 8.1 million and 22.6 million shares, respectively, of stock options, RSUs and PSUs, because such impact would be anti-dilutive. Additionally, for the nine months ended September 30, 2009, there was no impact to the diluted earnings (loss) per share computations associated with the Convertible Senior Notes, because such impact would be anti-dilutive. Diluted earnings per share computations for the three and nine months ended September 30, 2008 excluded the weighted average impact of the assumed exercise of approximately 16.4 million stock options because such impact would be anti-dilutive.
38
HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)
Unaudited
Note 17Subsequent Events
We have evaluated subsequent events through the time of filing these financial statements with the SEC on November 6, 2009.
In October 2009 HVF issued $1.2 billion in aggregate principal amount of Series 2009-2 Notes. The 3 year notes carry a 4.26% coupon (4.30% yield) and the 5 year notes carry a 5.29% coupon (5.35% yield) with expected final maturities in 2013 and 2015, respectively. The advance rate on the notes is approximately 66%. In general, we will use the Series 2009-2 Notes to replace the 2005 Notes as they mature in 2010.
39
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations
The following discussion and analysis provides information that management believes to be relevant to understanding our consolidated financial condition and results of operations. This discussion should be read in conjunction with the financial statements and the related notes thereto contained elsewhere in this Form 10-Q, or this "Report."
Cautionary Note Regarding Forward-Looking Statements
Certain statements contained or incorporated by reference in this Report including, without limitation, those concerning our liquidity and capital resources, contain "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 concerning our results of operations; economic performance; financial condition; management forecasts; efficiencies, cost savings and opportunities to increase productivity and profitability; income and margins; liquidity and availability to us of additional or continued sources of financing for our revenue earning equipment; financial instability of insurance companies providing financial guarantees for asset-backed securities; anticipated growth; financial instability of the manufacturers of our cars; economies of scale; the economy; future economic performance; our ability to maintain profitability during adverse economic cycles and unfavorable external events; fuel costs; future acquisitions and dispositions; litigation; potential and contingent liabilities; management's plans; taxes; tangible and intangible asset impairment charges; and refinancing of existing debt. Because such statements involve risks and uncertainties, actual results may differ materially from those expressed or implied by such forward-looking statements. These statements often include words such as "believes," "expects," "projects," "anticipates," "intends," "plans," "estimates," "seeks," "will," "may," "should," "forecasts" or similar expressions.
Forward-looking statements are not guarantees of performance or results and by their nature are subject to inherent risks and uncertainties. We caution you therefore that you should not rely on these forward-looking statements. You should understand that the risks and uncertainties discussed in "Part II"Item 1ARisk Factors" in Hertz Global Holdings, Inc.'s Quarterly Report on the Form 10-Q for the quarterly period ended June 30, 2009, or "Second Quarter Form 10-Q," and in "Part IItem 1ARisk Factors" included in Hertz Global Holdings, Inc.'s Annual Report on Form 10-K for the fiscal year ended December 31, 2008, filed with the United States Securities and Exchange Commission, or the "SEC," on March 3, 2009, or our "Form 10-K," could affect our future results and could cause those results or other outcomes to differ materially from those expressed or implied in our forward-looking statements.
Any forward-looking information contained in this Report speaks only as of the date of this Report. We undertake no obligation to update or revise any forward-looking statements to reflect new information, changed circumstances or unanticipated events.
Unless the context otherwise requires, in this Report, (i) "we," "us," "our," the "Registrant" and the "Company" mean Hertz Global Holdings, Inc. (previously known as CCMG Holdings, Inc.), or "Hertz Holdings," and its consolidated subsidiaries, (ii) "Hertz" means The Hertz Corporation, (iii) "HERC" means Hertz Equipment Rental Corporation, our wholly owned subsidiary, and our various other wholly owned international subsidiaries that conduct our industrial, construction and material handling equipment rental business, (iv) "cars" means cars and light trucks (including sport utility vehicles and, outside North America, light commercial vehicles), (v) "program cars" mean cars purchased by car rental companies under repurchase or guaranteed depreciation programs, (vi) "non-program cars" mean cars not purchased under repurchase or guaranteed depreciation programs for which the car rental company is exposed to residual risk and (vii) "equipment" means industrial, construction and material handling equipment.
40
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
We are a successor to corporations that have been engaged in the car and truck rental and leasing business since 1918 and the equipment rental business since 1965. Hertz Holdings was incorporated in Delaware in 2005 and had no operations prior to the Acquisition (as defined below).
On
December 21, 2005, investment funds associated with or designated by:
or collectively the "Sponsors," acquired all of Hertz's common stock from Ford Holdings LLC for aggregate consideration of $4,379 million in cash, debt refinanced or assumed of $10,116 million and transaction fees and expenses of $447 million. We refer to the acquisition of all of Hertz's common stock by the Sponsors as the "Acquisition."
In November 2006, we completed our initial public offering of 88,235,000 shares of our common stock. In June 2007, the Sponsors completed a secondary public offering of 51,750,000 shares of their Hertz Holdings common stock.
In January 2009, Bank of America Corporation, or "Bank of America," acquired Merrill Lynch & Co., the parent company of MLGPE. Accordingly, Bank of America is now an indirect beneficial owner of our common stock held by MLGPE and certain of its affiliates.
2009 Hertz Holdings Offerings
In May and June 2009, we completed a follow-on public offering of 52,900,000 shares of our common stock at a price of $6.50 per share with proceeds before underwriting discounts and offering expenses of approximately $343.9 million, or the "Common Stock Public Offering."
In addition, in May 2009 we entered into subscription agreements with investment funds affiliated with CD&R and Carlyle to purchase an additional 32,101,182 shares of our common stock at a price of $6.23 per share (the same price per share paid to us by the underwriters in the Common Stock Public Offering) with proceeds to us of approximately $200.0 million, or the "Private Offering." The Private Offering closed on July 7, 2009 and the 32,101,182 shares of our common stock were issued to the CD&R and Carlyle affiliated investment funds on the same date. Giving effect to the Common Stock Public Offering and the Private Offering, the Sponsors' ownership percentage in us is approximately 51%.
In May and June 2009, we also completed a public offering of an aggregate principal amount of $474,755,000 of 5.25% convertible senior notes due 2014, or the "Convertible Debt Public Offering."
We used the net proceeds from the Common Stock Public Offering, the Private Offering and the Convertible Debt Public Offering, collectively the "2009 Hertz Holdings Offerings," to increase our liquidity and for general corporate purposes, including the repayment of principal amounts with respect to maturing debt under the fleet financing facilities of certain of our consolidated subsidiaries.
See Note 7 and Note 11 to the Notes to our condensed consolidated financial statements included in this Report.
Overview of Our Business
We are engaged principally in the business of renting cars and renting equipment.
41
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
Our
revenues primarily are derived from rental and related charges and consist of:
Our equipment rental business also derives revenues from the sale of new equipment and consumables.
Our
expenses primarily consist of:
The car and equipment rental industries are significantly influenced by general economic conditions. In the final three months of 2008 and continuing in the nine months ended September 30, 2009, both the car and equipment rental markets experienced unprecedented declines due to the precipitous slowdown in consumer spending as well as significantly reduced demand for industrial and construction equipment. The car rental industry is also significantly influenced by developments in the travel industry, and, particularly, in airline passenger traffic while the equipment rental segment is being impacted by the difficult economic and business environment as investment in commercial construction and the industrial markets slow. The United States and international markets are currently experiencing a significant decline in economic activities, including a tightening of the credit markets, reduced airline passenger traffic, reduced consumer spending and volatile fuel prices. These conditions are expected to continue through the remainder of 2009. During 2008 and the nine months ended September 30, 2009, this resulted in a rapid decline in the volume of car rental and equipment rental transactions, soft industry pricing and until only recently an increase in depreciation and fleet related costs as a percentage of revenues and lower residual values for the non-program cars and equipment that we sold. See "Item 1ARisk Factors" in our Form 10-K and our Second Quarter Form 10-Q.
Our profitability is primarily a function of the volume, mix and pricing of rental transactions and the utilization of cars and equipment. Significant changes in the purchase price or residual values of cars and equipment or interest rates can also have a significant effect on our profitability depending on our ability to adjust pricing for these changes. We continue to have an overall strategy of increasing the proportion of non-program cars we have in our worldwide fleet. However in 2008, given the recent economic downturn described above, we sold a higher proportion of non-program cars during the third
42
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
quarter, when the used car market is traditionally stronger, to reduce exposure to residual value declines in the fourth quarter. Accordingly, for the year ended December 31, 2008, the percentage of non-program cars in the U.S. fleet decreased from 58% to 46% as compared to the year ended December 31, 2007; however, the percentage of non-program cars increased slightly internationally and for the year ended December 31, 2008, the percentage of non-program cars in our international fleet was 41%, compared to 35% for the year ended December 31, 2007. In the U.S., as of September 30, 2009, the percentage of non-program cars was 66% as compared to 59% as of September 30, 2008. Internationally, as of September 30, 2009, the percentage of non-program cars was 58%, compared to 55% as of September 30, 2008.
Our per car vehicle depreciation costs in the United States for 2008 increased approximately 6% from our per car vehicle depreciation costs for 2007 and increased approximately 20% in Europe year-over-year. In the nine months ended September 30, 2009, our per car vehicle depreciation costs decreased 1% and increased 16% in the United States and Europe, respectively, as compared to the prior year period. We expect our per car vehicle depreciation costs for the full year of 2009 in the United States to be slightly lower than 2008 and in Europe to be higher than 2008. Our business requires significant expenditures for cars and equipment, and consequently we require substantial liquidity to finance such expenditures. See "Liquidity and Capital Resources" below.
Our car rental and equipment rental operations are seasonal businesses, with decreased levels of business in the winter months and heightened activity during the spring and summer. We have the ability to dynamically manage fleet capacity, the most significant portion of our cost structure, to meet market demand. For instance, to accommodate increased demand, we increase our available fleet and staff during the second and third quarters of the year. As business demand declines, fleet and staff are decreased accordingly. A number of our other major operating costs, including airport concession fees, commissions and vehicle liability expenses, are directly related to revenues or transaction volumes. In addition, our management expects to utilize enhanced process improvements, including efficiency initiatives and the use of our information technology systems, to help manage our variable costs. Approximately two-thirds of our typical annual operating costs represent variable costs, while the remaining one-third is fixed or semi-fixed. We also maintain a flexible workforce, with a significant number of part time and seasonal workers. However, certain operating expenses, including minimum concession fees, rent, insurance, and administrative overhead, remain fixed and cannot be adjusted for seasonal demand.
As part of our ongoing effort to implement our strategy of reducing operating costs, we are evaluating our workforce and operations and making adjustments, including headcount reductions and business process re-engineering to optimize work flow at rental locations and maintenance facilities as well as streamlining our back-office operations and evaluating potential outsourcing opportunities. When we make adjustments to our workforce and operations, we may incur incremental expenses that delay the benefit of a more efficient workforce and operating structure, but we believe that increasing our operating efficiency and reducing the costs associated with the operation of our business are important to our long-term competitiveness. For further information on the actions taken in 2007 and 2008, see Note 12 of the Notes to our audited annual consolidated financial statements included in our Form 10-K under the caption "Item 8Financial Statements and Supplementary Data."
In January 2009, we announced that, as part of a comprehensive plan to further decrease costs and as a result of reduced rental demand, we were reducing our global workforce by more than 4,000 employees beginning in the fourth quarter 2008 and continuing through the first quarter of 2009, more than half of whom are not eligible for severance benefits. We incurred job reductions in the car and equipment rental
43
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
businesses, corporate and support areas, and in all geographies, with an emphasis on eliminating non-customer facing jobs. Related to these location closures and continued cost reduction initiatives, we incurred restructuring charges for employee termination liabilities covering approximately 1,500 employee separations in the fourth quarter of 2008.
During the first and second quarters of 2009, our equipment rental business incurred charges mainly for losses on disposal of surplus equipment and recognition of facility lease obligations related to previously announced U.S. branch closures that were completed during the quarters. Our North American and European car rental businesses incurred charges mainly for facility lease obligations related to previously announced off-airport location closures that were completed during the quarters. In the first quarter of 2009, our European car rental business also eliminated certain specialty rental equipment as a future cost reduction initiative and incurred related lease termination costs. The first and second quarter 2009 restructuring charges included employee termination liabilities covering approximately 500 and 600 employees, respectively.
During the third quarter of 2009, our equipment rental business incurred charges mainly for costs related to facility lease obligations for previously closed branches and additional losses on the disposal of remaining surplus equipment related to these locations. Our European car rental business incurred employee termination benefits costs associated with the migration of work to the European shared service center and the creation of two regions to manage our country operations. Additionally, our European car rental business recognized a loss on sale of a building due to reduced office space needs resulting from headcount reductions. During the quarter, restructuring charges included employee termination liabilities covering approximately 300 employees globally.
For the three and nine months ended September 30, 2009, our consolidated statement of operations included restructuring charges relating to the initiatives discussed above of $35.7 million and $87.2 million, respectively. For the three and nine months ended September 30, 2008, our consolidated statement of operations included restructuring charges relating to the initiatives discussed above of $74.9 million and $127.2 million, respectively.
Additional efficiency and cost saving initiatives may be developed during the remainder of 2009 and in 2010. However, we presently do not have firm plans or estimates of any related expenses. See Note 12 to the Notes to our condensed consolidated financial statements included in this Report.
For the nine months ended September 30, 2009, we experienced a 9.3% decrease in transaction days versus the prior period in the United States, and rental rate revenue per transaction day, or "RPD," was down 2.5%. During the nine months ended September 30, 2009, in our European operations, we experienced a low double digit decline in transaction days and our car rental RPD was below the level of our RPD during the nine months ended September 30, 2008. For the nine months ended September 30, 2009, based on publicly available information, we believe some U.S. car rental brands experienced declines in transaction days with varying RPD changes compared to the nine months ended September 30, 2008.
Our U.S. off-airport operations represented $722.8 million and $758.2 million of our total car rental revenues in the nine months ended September 30, 2009 and 2008, respectively. As of September 30, 2009, we had 1,643 off-airport locations. In the balance of 2009 and subsequent years, our strategy will include selected openings of new off-airport locations, the disciplined evaluation of existing locations and the pursuit of same-store sales growth. Our strategy includes increasing penetration in the off-airport market and growing the online leisure market, particularly in the longer length weekly sector, which is characterized by lower vehicle costs and lower transaction costs at a lower RPD. Increasing our
44
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
penetration in these sectors is consistent with our long-term strategy to generate profitable growth. When we open a new off-airport location, we incur a number of costs, including those relating to site selection, lease negotiation, recruitment of employees, selection and development of managers, initial sales activities and integration of our systems with those of the companies who will reimburse the location's replacement renters for their rentals. A new off-airport location, once opened, takes time to generate its full potential revenues and, as a result, revenues at new locations do not initially cover their start-up costs and often do not, for some time, cover the costs of their ongoing operations.
HERC experienced lower equipment rental volumes and pricing worldwide for the nine months ended September 30, 2009 compared to the prior year period. During the nine months ended September 30, 2009, based on publicly available information, we believe the majority of the U.S. equipment rental industry experienced reduced or decreased volumes and downward pricing. During the nine months ended September 30, 2009 (excluding additions relating to acquisitions), HERC had net decreases of five U.S. locations and 14 European locations, an increase of one location in China and no change in the number of locations in Canada.
45
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
Three Months Ended September 30, 2009 Compared with Three Months Ended September 30, 2008
Summary
The following table sets forth the percentage of total revenues represented by the various line items set forth in our consolidated statements of operations for the three months ended September 30, 2009 and 2008 (in millions of dollars):
|
|
|
Percentage of Revenues | ||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Three Months Ended
September 30, |
Three Months Ended
September 30, |
|||||||||||||
|
2009 | 2008 | 2009 | 2008 | |||||||||||
Revenues: |
|||||||||||||||
Car rental |
$ | 1,724.9 | $ | 1,946.1 | 84.5 | % | 80.3 | % | |||||||
Equipment rental |
280.3 | 432.9 | 13.7 | 17.9 | |||||||||||
Other |
36.2 | 42.9 | 1.8 | 1.8 | |||||||||||
Total revenues |
2,041.4 | 2,421.9 | 100.0 | 100.0 | |||||||||||
Expenses: |
|||||||||||||||
Direct operating |
1,118.6 | 1,351.8 | 54.8 | 55.8 | |||||||||||
Depreciation of revenue earning equipment |
499.1 | 595.0 | 24.4 | 24.5 | |||||||||||
Selling, general and administrative |
179.7 | 234.3 | 8.8 | 9.7 | |||||||||||
Interest expense |
169.3 | 220.1 | 8.3 | 9.1 | |||||||||||
Interest and other income, net |
(1.1 | ) | (5.5 | ) | | (0.2 | ) | ||||||||
Total expenses |
1,965.6 | 2,395.7 | 96.3 | 98.9 | |||||||||||
Income before income taxes |
75.8 | 26.2 | 3.7 | 1.1 | |||||||||||
Provision for taxes on income |
(6.9 | ) | (2.9 | ) | (0.3 | ) | (0.2 | ) | |||||||
Net income |
68.9 | 23.3 | 3.4 | 0.9 | |||||||||||
Less: Net income attributable to noncontrolling interest |
(4.4 | ) | (5.6 | ) | (0.2 | ) | (0.2 | ) | |||||||
Net income attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders |
$ | 64.5 | $ | 17.7 | 3.2 | % | 0.7 | % | |||||||
46
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
The following table sets forth certain of our selected car rental, equipment rental and other operating data for the three months ended or as of September 30, 2009 and 2008:
|
Three Months Ended or
as of September 30, |
||||||||
---|---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | |||||||
Selected Car Rental Operating Data: |
|||||||||
Worldwide number of transactions (in thousands) |
6,482 | 7,133 | |||||||
Domestic |
4,629 | 5,052 | |||||||
International |
1,853 | 2,081 | |||||||
Worldwide transaction days (in thousands) (a) |
33,456 | 35,525 | |||||||
Domestic |
21,705 | 22,613 | |||||||
International |
11,751 | 12,912 | |||||||
Worldwide rental rate revenue per transaction day (b) |
$ | 43.98 | $ | 44.84 | |||||
Domestic |
$ | 43.47 | $ | 45.01 | |||||
International |
$ | 44.90 | $ | 44.55 | |||||
Worldwide average number of company-operated cars during the period |
445,200 | 490,700 | |||||||
Domestic |
285,500 | 312,400 | |||||||
International |
159,700 | 178,300 | |||||||
Adjusted pre-tax income (in millions of dollars) (c) |
$ | 258.3 | $ | 167.1 | |||||
Worldwide revenue earning equipment, net (in millions of dollars) |
$ | 7,157.1 | $ | 8,472.7 | |||||
Selected Worldwide Equipment Rental Operating Data: |
|||||||||
Rental and rental related revenue (in millions of dollars) (d) |
$ | 248.9 | $ | 374.7 | |||||
Same store revenue growth, including growth initiatives (e) |
(33.4 | )% | (5.5 | )% | |||||
Average acquisition cost of rental equipment operated during the period (in millions of dollars) |
$ | 2,833.7 | $ | 3,411.7 | |||||
Adjusted pre-tax income (in millions of dollars) (c) |
$ | 25.2 | $ | 81.1 | |||||
Revenue earning equipment, net (in millions of dollars) |
$ | 1,893.1 | $ | 2,411.6 |
47
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
revenue to our rental rate revenue and rental rate revenue per transaction day (based on December 31, 2008 foreign exchange rates) for the three months ended September 30, 2009 and 2008 (in millions of dollars, except as noted):
|
Three Months Ended
September 30, |
|||||||
---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | ||||||
Car rental revenue per statement of operations |
$ | 1,724.9 | $ | 1,946.1 | ||||
Non-rental rate revenue |
(219.6 | ) | (262.8 | ) | ||||
Foreign currency adjustment |
(34.0 | ) | (90.4 | ) | ||||
Rental rate revenue |
$ | 1,471.3 | $ | 1,592.9 | ||||
Transaction days (in thousands) |
33,456 | 35,525 | ||||||
Rental rate revenue per transaction day (in whole dollars) |
$ | 43.98 | $ | 44.84 |
|
Three Months Ended
September 30, 2009 |
||||||||
---|---|---|---|---|---|---|---|---|---|
|
Car Rental | Equipment Rental | |||||||
Income before income taxes |
$ | 174.2 | $ | 3.0 | |||||
Adjustments: |
|||||||||
Purchase accounting (1) |
10.4 | 10.8 | |||||||
Non-cash debt charges (2) |
37.7 | 2.2 | |||||||
Restructuring charges |
25.4 | 9.1 | |||||||
Restructuring related charges (3) |
10.6 | 0.1 | |||||||
Adjusted pre-tax income |
$ | 258.3 | $ | 25.2 | |||||
|
Three Months Ended
September 30, 2008 |
|||||||
---|---|---|---|---|---|---|---|---|
|
Car Rental | Equipment Rental | ||||||
Income before income taxes |
$ | 85.8 | $ | 26.9 | ||||
Adjustments: |
||||||||
Purchase accounting (1) |
9.9 | 14.8 | ||||||
Non-cash debt charges (2) |
13.5 | 2.6 | ||||||
Restructuring charges |
36.4 | 36.6 | ||||||
Restructuring related charges (3) |
8.3 | 0.8 | ||||||
Derivative loss (4) |
15.0 | | ||||||
Vacation accrual adjustment (5) |
(1.8 | ) | (0.6 | ) | ||||
Adjusted pre-tax income |
$ | 167.1 | $ | 81.1 | ||||
48
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
|
Three Months Ended
September 30, |
|||||||
---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | ||||||
Equipment rental revenue per statement of operations |
$ | 280.3 | $ | 432.9 | ||||
Equipment sales and other revenue |
(26.3 | ) | (44.8 | ) | ||||
Foreign currency adjustment |
(5.1 | ) | (13.4 | ) | ||||
Rental and rental related revenue |
$ | 248.9 | $ | 374.7 | ||||
Revenues
|
Three Months Ended
September 30, |
|
|
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
(in millions of dollars)
|
2009 | 2008 | $ Change | % Change | |||||||||||
Revenues: |
|||||||||||||||
Car rental |
$ | 1,724.9 | $ | 1,946.1 | $ | (221.2 | ) | (11.4 | )% | ||||||
Equipment rental |
280.3 | 432.9 | (152.6 | ) | (35.3 | )% | |||||||||
Other |
36.2 | 42.9 | (6.7 | ) | (15.4 | )% | |||||||||
Total revenues |
$ | 2,041.4 | $ | 2,421.9 | $ | (380.5 | ) | (15.7 | )% | ||||||
Total revenues decreased 15.7% (13.4% excluding the effects of foreign currency) for the three months ended September 30, 2009 compared to the three months ended September 30, 2008.
Revenues from our car rental operations decreased 11.4%, primarily as a result of a 5.8% decrease in car rental transaction days worldwide, the effects of foreign currency translation of approximately $48.5 million, lower RPD described below and decreases of $41.1 million and $13.3 million in refueling fees and airport concession recovery fees, respectively.
49
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
RPD for worldwide car rental for the three months ended September 30, 2009 declined 1.9% from the same period in 2008, due to a decline in U.S. RPD of 3.4%, partly offset by an increase in International RPD of 0.8%. U.S. airport RPD declined by 2.1% and U.S. off-airport RPD declined by 4.1%.
Revenues from our equipment rental operations decreased 35.3%, primarily due to a 28.7% decrease in equipment rental volume, an 8.6% decline in pricing and the effects of foreign currency translation of approximately $5.7 million.
Revenues from all other sources decreased 15.4%, primarily due to a decrease in car rental licensee revenue of $5.6 million, including the effects of foreign currency translation of approximately $1.4 million.
Expenses
|
Three Months Ended
September 30, |
|
|
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
(in millions of dollars)
|
2009 | 2008 | $ Change | % Change | |||||||||||
Expenses: |
|||||||||||||||
Direct operating |
$ | 1,118.6 | $ | 1,351.8 | $ | (233.2 | ) | (17.3 | )% | ||||||
Depreciation of revenue earning equipment |
499.1 | 595.0 | (95.9 | ) | (16.1 | )% | |||||||||
Selling, general and administrative |
179.7 | 234.3 | (54.6 | ) | (23.3 | )% | |||||||||
Interest expense |
169.3 | 220.1 | (50.8 | ) | (23.1 | )% | |||||||||
Interest and other income, net |
(1.1 | ) | (5.5 | ) | 4.4 | (80.6 | )% | ||||||||
Total expenses |
$ | 1,965.6 | $ | 2,395.7 | $ | (430.1 | ) | (18.0 | )% | ||||||
Total expenses decreased 18.0%, and total expenses as a percentage of revenues decreased from 98.9% for the three months ended September 30, 2008 to 96.3% for the three months ended September 30, 2009.
Direct operating expenses decreased 17.3% as a result of decreases in fleet related expenses, other direct operating expenses and personnel related expenses.
Fleet related expenses decreased $96.7 million, or 27.6%. The decrease was primarily related to a decrease in fleet levels as a result of decreased worldwide rental volume which resulted in decreases in gasoline costs of $54.4 million, vehicle damage and maintenance costs of $15.6 million, self-insurance expense of $14.1 million and equipment rental delivery costs of $6.6 million. These decreases include the effects of foreign currency translation of approximately $9.7 million.
Other direct operating expenses decreased $89.7 million, or 14.8%. The decrease was primarily related to a decrease in fleet levels as a result of decreased worldwide rental volume which resulted in decreases in restructuring and restructuring related costs of $33.9 million, equipment rental cost of goods sold of $14.8 million, field incentive compensation of $12.5 million, concession fees in our car rental operations of $12.2 million, facility expenses of $10.8 million and charge card fees of $4.0 million. These decreases include the effects of foreign currency translation of approximately $15.0 million.
Personnel related expenses decreased $46.8 million, or 11.9%. The decrease was primarily related to a decrease in wages and benefits related to restructuring of $53.7 million, including the effects of foreign currency translation of approximately $7.4 million, partly offset by an increase in incentive compensation of $9.9 million.
50
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
Depreciation of revenue earning equipment for our car rental operations of $425.4 million for the three months ended September 30, 2009 decreased 15.6% from $504.2 million for the three months ended September 30, 2008. The decrease was primarily due to a decrease in average fleet operated, higher net proceeds received in excess of book value on the disposal of used vehicles and the effects of foreign currency translation of approximately $11.1 million. Depreciation of revenue earning equipment in our equipment rental operations of $73.7 million for the three months ended September 30, 2009 decreased 18.8% from $90.8 million for the three months ended September 30, 2008. The decrease was primarily due to a 16.9% decrease in the average acquisition cost of rental equipment operated during the period, higher net proceeds received in excess of book value on the disposal of used equipment and the effects of foreign currency translation of approximately $1.2 million.
Selling, general and administrative expenses decreased 23.3%, due to decreases in advertising expenses, administrative expenses and sales promotion expenses, including the effects of foreign currency translation of approximately $5.1 million.
Advertising expenses decreased $26.8 million, or 45.4%, primarily due to decreased media advertising.
Administrative expenses decreased $19.1 million, or 14.1%, primarily due to decreases in administrative salaries and related costs of $14.5 million, losses on our derivatives of $13.0 million and restructuring and restructuring related charges of $4.1 million, including the effects of foreign currency translation of approximately $3.8 million, partly offset by an increase in management incentive compensation of $11.5 million.
Sales promotion expenses decreased $8.7 million, or 21.5%, primarily related to a decrease in sales salaries and commissions of $5.2 million, including the effects of foreign currency translation of approximately $1.2 million.
Interest expense decreased 23.1%, primarily due to a decrease in the weighted average debt outstanding, a decrease in the weighted average interest rate on our borrowings, and the effects of foreign currency translation of approximately $2.7 million.
Interest and other income, net decreased $4.4 million due a decrease in interest income as a result of lower cash balances during the period.
Adjusted Pre-Tax Income
Adjusted pre-tax income for our car rental segment was $258.3 million for the three months ended September 30, 2009, an increase of 54.6% from $167.1 million for the three months ended September 30, 2008. The increase was primarily due to strong cost management performance, including higher revenues per vehicle, lower overall fleet costs and staffing/wage levels commensurate with rental volumes. Adjustments to our car rental segment income before income taxes on a GAAP basis for the three months ended September 30, 2009 and 2008, totaled $84.1 million and $81.3 million, respectively. See footnote c to the table under "Three Months Ended September 30, 2009 Compared with Three Months Ended September 30, 2008Summary" for a summary and description of these adjustments. Adjusted pre-tax income for our car rental segment as a percent of its revenues increased from 8.4% in the three months ended September 30, 2008 to 14.7% in the three months ended September 30, 2009.
Adjusted pre-tax income for our equipment rental segment was $25.2 million for the three months ended September 30, 2009, compared with $81.1 million for the three months ended September 30, 2008. The
51
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
decrease was primarily due to decreases in volume and pricing, partly offset by strong cost management performance. Adjustments to our equipment rental segment income before income taxes on a GAAP basis for the three months ended September 30, 2009 and 2008, totaled $22.2 million and $54.2 million, respectively. See footnote c to the table under "Three Months Ended September 30, 2009 Compared with Three Months Ended September 30, 2008Summary" for a summary and description of these adjustments. Adjusted pre-tax income for our equipment rental segment as a percent of its revenues decreased from 18.7% in the three months ended September 30, 2008 to 9.0% in the three months ended September 30, 2009.
The ratio of adjusted pre-tax income to revenues for our two segments has historically reflected the different environments in which they operate, although the historical difference has been reversed for the three months ended September 30, 2009 because of the more rapid decline in revenues in our equipment rental segment. In general, our infrastructure costs are higher within our car rental segment due to the number and type of locations in which it operates and the corresponding headcount. Within our equipment rental segment, our revenue earning equipment generates lower depreciation expense due to its longer estimated useful life.
Provision for Taxes on Income, Net income attributable to Noncontrolling interests and Net income attributable to Hertz Holdings, Inc. and Subsidiaries' common stockholders
|
Three Months Ended
September 30, |
|
|
||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
(in millions of dollars)
|
2009 | 2008 | $ Change | % Change | |||||||||
Income before income taxes |
$ | 75.8 | $ | 26.2 | $ | 49.6 | 189.6 | % | |||||
Provision for taxes on income |
(6.9 | ) | (2.9 | ) | (4.0 | ) | 137.9 | % | |||||
Net income |
68.9 | 23.3 | 45.6 | 195.9 | % | ||||||||
Less: Net income attributable to noncontrolling interests |
(4.4 | ) | (5.6 | ) | 1.2 | (21.2 | )% | ||||||
Net income attributable to Hertz Holdings, Inc. and Subsidiaries' common stockholders |
$ | 64.5 | $ | 17.7 | $ | 46.8 | 265.3 | % | |||||
The provision for taxes on income increased $4.0 million for the three months ended September 30, 2009, primarily due to the increase in income before income taxes and an increase in losses in certain non-U.S. jurisdictions for which a tax benefit cannot be recognized, partially offset by an increase in discrete benefits. The effective tax rate for the three months ended September 30, 2009 was 9.0% compared to 10.9% for the three months ended September 30, 2008. The decrease in tax rate was primarily attributable to tax benefits, discrete to the quarter, recorded on lower pre-tax income.
Net income attributable to noncontrolling interests decreased 21.2% due to a decrease in our majority-owned subsidiary Navigation Solutions, L.L.C.'s net income in the three months ended September 30, 2009 as compared to the three months ended September 30, 2008.
The net income attributable to Hertz Holdings, Inc. and Subsidiaries' common stockholders increased 265.3% primarily due strong cost management performance, partly offset by lower rental volume and pricing in our worldwide car and equipment rental, as well as the net effect of other contributing factors noted above. The impact of changes in exchange rates on the net income was mitigated by the fact that not only foreign revenues but also most foreign expenses were incurred in local currencies.
52
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
Nine Months Ended September 30, 2009 Compared with Nine Months Ended September 30, 2008
Summary
The following table sets forth the percentage of total revenues represented by the various line items set forth in our consolidated statements of operations for the nine months ended September 30, 2009 and 2008 (in millions of dollars):
|
|
|
Percentage of Revenues | ||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Nine Months Ended
September 30, |
Nine Months Ended
September 30, |
|||||||||||||
|
2009 | 2008 | 2009 | 2008 | |||||||||||
Revenues: |
|||||||||||||||
Car rental |
$ | 4,436.7 | $ | 5,340.0 | 82.8 | % | 79.3 | % | |||||||
Equipment rental |
836.4 | 1,286.8 | 15.6 | 19.1 | |||||||||||
Other |
87.7 | 109.5 | 1.6 | 1.6 | |||||||||||
Total revenues |
5,360.8 | 6,736.3 | 100.0 | 100.0 | |||||||||||
Expenses: |
|||||||||||||||
Direct operating |
3,062.5 | 3,801.8 | 57.1 | 56.4 | |||||||||||
Depreciation of revenue earning equipment |
1,468.2 | 1,658.7 | 27.4 | 24.6 | |||||||||||
Selling, general and administrative |
488.0 | 595.8 | 9.1 | 8.9 | |||||||||||
Interest expense |
498.3 | 637.1 | 9.3 | 9.5 | |||||||||||
Interest and other income, net |
(52.6 | ) | (20.4 | ) | (1.0 | ) | (0.3 | ) | |||||||
Total expenses |
5,464.4 | 6,673.0 | 101.9 | 99.1 | |||||||||||
Income (loss) before income taxes |
(103.6 | ) | 63.3 | (1.9 | ) | 0.9 | |||||||||
(Provision) benefit for taxes on income |
19.9 | (36.0 | ) | 0.3 | (0.5 | ) | |||||||||
Net income (loss) |
(83.7 | ) | 27.3 | (1.6 | ) | 0.4 | |||||||||
Less: Net income attributable to noncontrolling interest |
(11.4 | ) | (16.1 | ) | (0.2 | ) | (0.2 | ) | |||||||
Net income (loss) attributable to Hertz Global Holdings, Inc. and Subsidiaries' common stockholders |
$ | (95.1 | ) | $ | 11.2 | (1.8 | )% | 0.2 | % | ||||||
53
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
The following table sets forth certain of our selected car rental, equipment rental and other operating data for the nine months ended or as of September 30, 2009 and 2008:
|
Nine Months Ended or
as of September 30, |
||||||||
---|---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | |||||||
Selected Car Rental Operating Data: |
|||||||||
Worldwide number of transactions (in thousands) |
18,392 | 21,158 | |||||||
Domestic |
13,300 | 15,368 | |||||||
International |
5,092 | 5,790 | |||||||
Worldwide transaction days (in thousands) (a) |
89,293 | 99,041 | |||||||
Domestic |
60,163 | 66,353 | |||||||
International |
29,130 | 32,688 | |||||||
Worldwide rental rate revenue per transaction day (a)(b) |
$ | 42.89 | $ | 43.85 | |||||
Domestic |
$ | 42.33 | $ | 43.41 | |||||
International |
$ | 44.04 | $ | 44.74 | |||||
Worldwide average number of company-operated cars during the period |
410,500 | 467,700 | |||||||
Domestic |
272,100 | 310,900 | |||||||
International |
138,400 | 156,800 | |||||||
Adjusted pre-tax income (in millions of dollars) (a)(c) |
$ | 368.4 | $ | 355.8 | |||||
Worldwide revenue earning equipment, net (in millions of dollars) |
$ | 7,157.1 | $ | 8,472.7 | |||||
Selected Worldwide Equipment Rental Operating Data: |
|||||||||
Rental and rental related revenue (in millions of dollars) (a)(d) |
$ | 750.9 | $ | 1,103.2 | |||||
Same store revenue growth, including growth initiatives (a) |
(28.9 | )% | (3.3 | )% | |||||
Average acquisition cost of rental equipment operated during the period (in millions of dollars) |
$ | 2,888.8 | $ | 3,452.4 | |||||
Adjusted pre-tax income (in millions of dollars) (a)(c) |
$ | 50.6 | $ | 225.9 | |||||
Revenue earning equipment, net (in millions of dollars) |
$ | 1,893.1 | $ | 2,411.6 |
|
Nine Months Ended
September 30, |
|||||||
---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | ||||||
Car rental revenue per statement of operations |
$ | 4,436.7 | $ | 5,340.0 | ||||
Non-rental rate revenue |
(590.6 | ) | (740.2 | ) | ||||
Foreign currency adjustment |
(16.7 | ) | (257.0 | ) | ||||
Rental rate revenue |
$ | 3,829.4 | $ | 4,342.8 | ||||
Transaction days (in thousands) |
89,293 | 99,041 | ||||||
Rental rate revenue per transaction day (in whole dollars) |
$ | 42.89 | $ | 43.85 |
54
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
|
Nine Months Ended
September 30, 2009 |
||||||||
---|---|---|---|---|---|---|---|---|---|
|
Car Rental | Equipment Rental | |||||||
Income (loss) before income taxes |
$ | 164.4 | $ | (23.5 | ) | ||||
Adjustments: |
|||||||||
Purchase accounting (1) |
29.7 | 38.1 | |||||||
Non-cash debt charges (2) |
91.9 | 6.8 | |||||||
Restructuring charges |
50.3 | 28.9 | |||||||
Restructuring related charges (3) |
27.8 | 0.3 | |||||||
Third-party bankruptcy accrual (4) |
4.3 | | |||||||
Adjusted pre-tax income |
$ | 368.4 | $ | 50.6 | |||||
|
Nine Months Ended
September 30, 2008 |
||||||||
---|---|---|---|---|---|---|---|---|---|
|
Car Rental | Equipment Rental | |||||||
Income before income taxes |
$ | 209.4 | $ | 118.5 | |||||
Adjustments: |
|||||||||
Purchase accounting (1) |
30.5 | 42.4 | |||||||
Non-cash debt charges (2) |
37.9 | 8.0 | |||||||
Restructuring charges |
64.7 | 55.0 | |||||||
Restructuring related charges (3) |
16.1 | 2.0 | |||||||
Derivative gain (5) |
(2.8 | ) | | ||||||
Adjusted pre-tax income |
$ | 355.8 | $ | 225.9 | |||||
55
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
|
Nine Months Ended
September 30, |
|||||||
---|---|---|---|---|---|---|---|---|
|
2009 | 2008 | ||||||
Equipment rental revenue per statement of operations |
$ | 836.4 | $ | 1,286.8 | ||||
Equipment sales and other revenue |
(82.2 | ) | (137.4 | ) | ||||
Foreign currency adjustment |
(3.3 | ) | (46.2 | ) | ||||
Rental and rental related revenue |
$ | 750.9 | $ | 1,103.2 | ||||
Revenues
|
Nine Months Ended
September 30, |
|
|
|||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
(in millions of dollars)
|
2009 | 2008 | $ Change | % Change | ||||||||||||
Revenues: |
||||||||||||||||
Car rental |
$ | 4,436.7 | $ | 5,340.0 | $ | (903.3 | ) | (16.9 | )% | |||||||
Equipment rental |
836.4 | 1,286.8 | (450.4 | ) | (35.0 | )% | ||||||||||
Other |
87.7 | 109.5 | (21.8 | ) | (19.9 | )% | ||||||||||
Total revenues |
$ | 5,360.8 | $ | 6,736.3 | $ | (1,375.5 | ) | (20.4 | )% | |||||||
Total revenues decreased 20.4% (16.7% excluding the effects of foreign currency) for the nine months ended September 30, 2009 compared to the nine months ended September 30, 2008.
Revenues from our car rental operations decreased 16.9%, primarily as a result of a 9.8% decrease in car rental transaction days worldwide, the effects of foreign currency translation of approximately $208.8 million, lower RPD described below and decreases of $120.9 million and $56.0 million in refueling fees and airport concession recovery fees, respectively.
RPD for worldwide car rental for the nine months ended September 30, 2009 declined 2.2% from the same period in 2008, due to declines in U.S. and International RPD of 2.5% and 1.6%, respectively. U.S. airport RPD decreased 1.4% and U.S. off-airport RPD declined by 2.5%.
Revenues from our equipment rental operations decreased 35.0%, primarily due to a 28.0% decrease in equipment rental volume, a 6.7% decline in pricing and the effects of foreign currency translation of approximately $37.2 million.
Revenues from all other sources decreased 19.9%, primarily due to a decrease in car rental licensee revenue of $19.9 million, including the effects of foreign currency translation of approximately $5.9 million.
56
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
Expenses
|
Nine Months Ended
September 30, |
|
|
||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
(in millions of dollars)
|
2009 | 2008 | $ Change | % Change | |||||||||||
Expenses: |
|||||||||||||||
Direct operating |
$ | 3,062.5 | $ | 3,801.8 | $ | (739.3 | ) | (19.4 | )% | ||||||
Depreciation of revenue earning equipment |
1,468.2 | 1,658.7 | (190.5 | ) | (11.5 | )% | |||||||||
Selling, general and administrative |
488.0 | 595.8 | (107.8 | ) | (18.1 | )% | |||||||||
Interest expense |
498.3 | 637.1 | (138.8 | ) | (21.8 | )% | |||||||||
Interest and other income, net |
(52.6 | ) | (20.4 | ) | (32.2 | ) | 157.2 | % | |||||||
Total expenses |
$ | 5,464.4 | $ | 6,673.0 | $ | (1,208.6 | ) | (18.1 | )% | ||||||
Total expenses decreased 18.1%, and total expenses as a percentage of revenues increased from 99.1% for the nine months ended September 30, 2008 to 101.9% for the nine months ended September 30, 2009.
Direct operating expenses decreased 19.4% as a result of decreases in fleet related expenses, personnel related expenses and other direct operating expenses.
Fleet related expenses decreased $300.2 million, or 31.4%. The decrease was primarily related to a decrease in fleet levels as a result of decreased worldwide rental volume which resulted in decreases in gasoline costs of $137.6 million, vehicle damage and maintenance costs of $79.6 million, self-insurance expense of $47.7 million, equipment rental delivery costs of $22.3 million and vehicle taxes and registration fees of $20.3 million. These decreases include the effects of foreign currency translation of approximately $46.5 million.
Personnel related expenses decreased $230.2 million, or 19.0%. The decrease was primarily related to decreases in wages and benefits related to restructuring of $208.5 million, a decrease in incentive compensation of $10.8 million and a decrease in reservation costs of $10.6 million. These decreases include the effects of foreign currency translation of approximately $41.0 million.
Other direct operating expenses decreased $208.9 million, or 12.8%. The decrease was primarily related to a decrease in fleet levels as a result of decreased worldwide rental volume which resulted in decreases in concession fees in our car rental operations of $45.6 million, equipment rental cost of goods sold of $41.5 million, facility expenses of $27.7 million, restructuring and restructuring related charges of $21.1 million, commission fees of $15.8 million, charge card fees of $15.7 million and re-rent expense of $13.5 million. These decreases include the effects of foreign currency translation of approximately $78.5 million.
Depreciation of revenue earning equipment for our car rental operations of $1,220.6 million for the nine months ended September 30, 2009 decreased 12.8% from $1,399.7 million for the nine months ended September 30, 2008. The decrease was primarily due to a decrease in average fleet operated, higher net proceeds received in excess of book value on the disposal of used vehicles and the effects of foreign currency translation of approximately $57.8 million, partly offset by a $14.4 million net increase in depreciation in certain of our car rental operations resulting from changes in depreciation rates to reflect changes in the estimated residual value of vehicles. Depreciation of revenue earning equipment in our equipment rental operations of $247.6 million for the nine months ended September 30, 2009 decreased 4.4% from $259.0 million for the nine months ended September 30, 2008. The decrease was primarily due to a 16.3% decrease in the average acquisition cost of rental equipment operated during the period
57
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
and the effects of foreign currency translation of approximately $8.0 million, partly offset by lower net proceeds received in excess of book value on the disposal of used equipment.
Selling, general and administrative expenses decreased 18.1%, due to decreases in advertising expenses, administrative expenses and sales promotion expenses, including the effects of foreign currency translation of approximately $23.7 million.
Advertising expenses decreased $43.5 million, or 32.8%, primarily due to decreased media advertising and the effects of foreign currency translation of approximately $2.8 million.
Administrative expenses decreased $32.7 million, or 9.7%, primarily due to decreases in administrative salaries and related costs of $44.1 million and restructuring and restructuring related charges of $3.3 million, including the effects of foreign currency translation of approximately $14.4 million, partly offset by an increase in the loss on derivatives of $4.8 million and an increase in management incentive compensation of $3.0 million.
Sales promotion expenses decreased $31.6 million, or 25.0%, primarily related to a decrease in sales salaries and commissions of $19.4 million, including the effects of foreign currency translation of approximately $6.5 million.
Interest expense decreased 21.8%, primarily due to a decrease in the weighted average debt outstanding, a decrease in the weighted average interest rate on our borrowings, and the effects of foreign currency translation of approximately $14.7 million.
Interest and other income, net increased $32.2 million due to a gain of $48.5 million, net of transaction costs, recorded in connection with the buyback of portions of our Senior Notes and Senior Subordinated Notes, partly offset by a decrease in interest income of $16.3 million as a result of lower cash balances during the period.
Adjusted Pre-Tax Income
Adjusted pre-tax income for our car rental segment was $368.4 million for the nine months ended September 30, 2009, an increase of 3.5% from $355.8 million for the nine months ended September 30, 2008. The increase was primarily due to strong cost management performance, including higher revenues per vehicle, lower overall fleet costs and staffing/wage levels commensurate with rental volumes. Adjustments to our car rental segment income before income taxes on a GAAP basis for the nine months ended September 30, 2009 and 2008, totaled $204.0 million and $146.4 million, respectively. See footnote c to the table under "Nine Months Ended September 30, 2009 Compared with Nine Months Ended September 30, 2008Summary" for a summary and description of these adjustments. Adjusted pre-tax income for our car rental segment as a percent of its revenues increased from 6.5% in the nine months ended September 30, 2008 to 8.2% in the nine months ended September 30, 2009.
Adjusted pre-tax income for our equipment rental segment was $50.6 million for the nine months ended September 30, 2009, compared with $225.9 million for the nine months ended September 30, 2008. The decrease was primarily due to decreases in volume and pricing and lower net proceeds received in excess of book value on the disposal of used equipment, partly offset by strong cost management performance. Adjustments to our equipment rental segment income (loss) before income taxes on a GAAP basis for the nine months ended September 30, 2009 and 2008, totaled $74.1 million and $107.4 million, respectively. See footnote c to the table under "Nine Months Ended September 30, 2009 Compared with Nine Months Ended September 30, 2008Summary" for a summary and
58
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
description of these adjustments. Adjusted pre-tax income for our equipment rental segment as a percent of its revenues decreased from 17.5% in the nine months ended September 30, 2008 to 6.0% in the nine months ended September 30, 2009.
The ratio of adjusted pre-tax income (loss) to revenues for our two segments has historically reflected the different environments in which they operate, although the difference has been eliminated for the nine months ended September 30, 2009 because of the more rapid decline in revenues in our equipment rental segment. In general, our infrastructure costs are higher within our car rental segment due to the number and type of locations in which it operates and the corresponding headcount. Within our equipment rental segment, our revenue earning equipment generates lower depreciation expense due to its longer estimated useful life.
(Provision) benefit for Taxes on Income, Net income attributable to Noncontrolling interests and Net income (loss) attributable to Hertz Holdings, Inc. and Subsidiaries' common stockholders
|
Nine Months Ended
September 30, |
|
|
||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|
(in millions of dollars)
|
2009 | 2008 | $ Change | % Change | |||||||||
Income (loss) before income taxes |
$ | (103.6 | ) | $ | 63.3 | $ | (166.9 | ) | (263.6 | )% | |||
(Provision) benefit for taxes on income |
19.9 | (36.0 | ) | 55.9 | (155.2 | )% | |||||||
Net income (loss) |
(83.7 | ) | 27.3 | (111.0 | ) | (406.0 | )% | ||||||
Less: Net income attributable to noncontrolling interests |
(11.4 | ) | (16.1 | ) | 4.7 | (29.3 | )% | ||||||
Net income (loss) attributable to Hertz Holdings, Inc. and Subsidiaries' common stockholders |
$ | (95.1 | ) | $ | 11.2 | $ | (106.3 | ) | (948.7 | )% | |||
The benefit for taxes on losses for the nine months ended September 30, 2009 was $19.9 million and the provision for taxes on income for the nine months ended September 30, 2008 was $36.0 million. The change was primarily due to pretax losses and discrete benefits in the nine months ended September 30, 2009 as compared to pretax income and discrete charges for nine months ended September 30, 2008. This is partially offset by an increase in losses in certain non-U.S. jurisdictions for which a tax benefit cannot be recognized. The effective tax rate for the nine months ended September 30, 2009 was 19.2% compared to 56.8% for the nine months ended September 30, 2008. The change in tax rates was generally due to the factors noted above.
Net income attributable to noncontrolling interests decreased 29.3% due to a decrease in our majority-owned subsidiary Navigation Solutions, L.L.C.'s net income in the nine months ended September 30, 2009 as compared to the nine months ended September 30, 2008.
The net loss attributable to Hertz Holdings, Inc. and Subsidiaries' common stockholders increased $106.3 million primarily due to lower rental volume and pricing in our worldwide car and equipment rental operations, as well as the net effect of other contributing factors noted above. The impact of changes in exchange rates on the net loss was mitigated by the fact that not only foreign revenues but also most foreign expenses were incurred in local currencies.
Liquidity and Capital Resources
As of September 30, 2009, we had cash and cash equivalents of $926.7 million, an increase of $332.5 million from December 31, 2008. As of September 30, 2009, we had $404.7 million of restricted
59
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
cash to be used for the purchase of revenue earning vehicles and other specified uses under our Fleet Debt facilities, our like-kind exchange programs and to satisfy certain of our self-insurance regulatory reserve requirements. The decrease in restricted cash of $326.7 million from December 31, 2008 to September 30, 2009, primarily related to payments to reduce fleet debt and the timing of purchases and sales of revenue earning vehicles.
Our domestic and foreign operations are funded by cash provided by operating activities and by extensive financing arrangements maintained by us in the United States, Europe, Puerto Rico, Australia, New Zealand, Canada and Brazil. Net cash provided by operating activities during the nine months ended September 30, 2009 was $1,307.2 million, a decrease of $622.7 million from the nine months ended September 30, 2008. The decrease was primarily due to a net loss, changes in working capital and a decrease in depreciation of revenue earning equipment, partly offset by increases in deferred taxes and the amortization and ineffectiveness of cash flow hedges.
Our primary use of cash in investing activities is for the acquisition of revenue earning equipment, which consists of cars and equipment. Net cash used in investing activities during the nine months ended September 30, 2009 was $843.8 million, a decrease of $2,048.2 million from the nine months ended September 30, 2008. The change is primarily due to decreases in revenue earning equipment expenditures, partly offset by decreases in proceeds from the disposal of revenue earning equipment and an increase in the change in restricted cash. For the nine months ended September 30, 2009, our expenditures for revenue earning equipment were $5,194.5 million and our proceeds from the disposal of such equipment were $4,162.7 million, as compared to $8,888.9 million and $6,010.3 million, respectively, for the nine months ended September 30, 2008. For the nine months ended September 30, 2009, our capital expenditures for property and non-revenue earning equipment were $69.0 million and our proceeds from the disposal of such equipment were $6.1 million, as compared to $152.9 million and $62.3 million, respectively, for the nine months ended September 30, 2008.
For the nine months ended September 30, 2009, we experienced a decreased level of net expenditures for revenue earning equipment and property and equipment compared to the nine months ended September 30, 2008. This net decrease was primarily due to a decrease in year over year expenditures for revenue earning equipment related to decreased volume, partly offset by a year over year decrease in disposal proceeds for revenue earning equipment. For the full year 2009, we expect the level of net expenditures for revenue earning equipment, property and non-revenue earning equipment to be lower than that of the full year 2008. See "Capital Expenditures" below.
Our car rental and equipment rental operations are seasonal businesses with decreased levels of business in the winter months and typically heightened activity during the spring and summer. This is particularly true of our airport car rental operations and our equipment rental operations. To accommodate increased demand, we maintain a larger fleet by holding vehicles and equipment and purchasing additional fleet which increases our financing requirements in the second and third quarters of the year. These seasonal financing needs are funded by increasing the utilization of our various corporate and fleet credit facilities and the variable funding notes portion of our U.S. Fleet Debt facilities as defined in Note 3 to the Notes to our audited annual consolidated financial statements included in our Form 10-K under the caption "Item 8Financial Statements and Supplementary Data." As business demand moderates during the winter, we reduce our fleet accordingly and dispose of vehicles and equipment. The disposal proceeds are used to reduce debt.
In April 2009, we made aggregate open market repurchases, at a discount, of approximately $68.0 million and $81.5 million in face value of our Senior Notes and Senior Subordinated Notes, respectively. In addition, we and our affiliates have repurchased and may in the future repurchase or
60
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
otherwise retire debt of our subsidiaries and take other steps to reduce such debt or otherwise improve our balance sheet. These actions include open market purchases, negotiated repurchases and other retirements of outstanding debt. The amount of debt that may be repurchased or otherwise retired, if any, will depend on market conditions, trading levels of such debt from time to time, our cash position and other considerations.
In response to the economic downturn, in 2008 we implemented aggressive strategic actions to reduce costs and improve liquidity. These actions included reducing wage and benefit costs through significant headcount reductions, accelerating fleet deletions and delaying additions to right-size the fleet to current demand levels and rationalizing our location footprint by closing a number of locations. We have developed additional plans for the remainder of 2009 in an effort to mitigate the impact of continued revenue declines on our results of operations, including reducing costs further through the additional headcount reductions that we announced in 2009, continuing to right-size our car and equipment rental fleet in response to the economic conditions, continued re-engineering of our processes, increasing prices and continuing to reduce the cost of acquiring our car and equipment rental fleet, among other actions.
As of September 30, 2009, we had $10,348.4 million of total indebtedness outstanding. Cash paid for interest during the nine months ended September 30, 2009, was $556.9 million, net of amounts capitalized. Accordingly, we are highly leveraged and a substantial portion of our liquidity needs arise from debt service on indebtedness incurred in connection with the Acquisition and from the funding of our costs of operations and capital expenditures.
In 2009 we have also significantly addressed the fact that we had approximately $4.2 billion of our fleet debt that matures in 2010. We began addressing these liquidity needs at the end of the second quarter and the beginning of the third quarter by completing the 2009 Hertz Holdings Offerings, pursuant to which we received approximately $990 million of net proceeds, after deducting underwriting discounts and commissions and before offering expenses payable by Hertz Holdings. $200 million of the $990 million of net proceeds were received during the three months ended September 30, 2009.
On September 18, 2009, HVF, a bankruptcy-remote special purpose entity wholly-owned by Hertz, completed the closing of a new variable funding note facility referred to as the Series 2009-1 Variable Funding Rental Car Asset Backed Notes, or the "Series 2009-1 Notes." The facility has an expected maturity date of January 2012 and a 3 month controlled amortization period beginning in November 2011. The aggregate principal amount of such facility is $2.1 billion and such facility is available to HVF on a revolving basis until the controlled amortization period begins in November 2011. As of September 30, 2009, we had an aggregate principal amount outstanding of $300.0 million of Series 2009-1 Notes. This amount was subsequently paid in October 2009.
Immediately prior to the issuance of the Series 2009-1 Notes, HVF caused the termination of the series supplements and note purchase agreements relating to its Series 2005-3 Variable Funding Rental Car Asset Backed Notes, or the "Series 2005-3 Notes," Series 2005-4 Variable Funding Rental Car Asset Backed Notes, or the "Series 2005-4 Notes," and Series 2008-1 Variable Funding Rental Car Asset Backed Notes, or the "Series 2008-1 Notes," or the "Terminated VFNs," and caused the repayment and cancellation in full of the Terminated VFNs. The Terminated VFNs had expected final maturity dates ranging from November 2009 to November 2010 and we had an aggregate of approximately $2.0 billion of total capacity (prior to borrowing base or other limitations) under the Terminated VFNs. In effect we replaced the $2.0 billion of total capacity under the Terminated VFNs with the $2.1 billion of capacity that we have under the Series 2009-1 Notes while extending the expected final maturity date to January 2012.
61
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
In October 2009 HVF issued $1.2 billion in aggregate principal amount of new medium term notes (3 and 5 year) Series 2009-2 rental car asset backed notes, or the "Series 2009-2 Notes." The 3 year notes carry a 4.26% coupon (4.30% yield) and the 5 year notes carry a 5.29% coupon (5.35% yield) with expected final maturities in 2013 and 2015, respectively. The advance rate on the notes is approximately 66%. In general, we expect to use the Series 2009-2 Notes to replace the Series 2005-1 and 2005-2 Rental Car Asset Backed Notes, or the "2005 Notes," as they mature in 2010.
Based on all that we have been able to accomplish in the first 10 months of 2009, our current availability under our various credit facilities and our business plan, we believe we have sufficient liquidity to meet our 2010 debt maturities. We still need to refinance approximately $1.7 billion of our international fleet debt that matures in December 2010 and we are currently in discussions with banks and lenders to review our refinancing options; however there can be no assurance that we will be able to refinance this indebtedness on terms comparable to our recent refinancings, or at all.
The agreements governing our corporate indebtedness require us to comply with two key covenants based on a consolidated leverage ratio and a consolidated interest expense coverage ratio. Our failure to comply with the obligations contained in any agreements governing our indebtedness could result in an event of default under the applicable instrument, which could result in the related debt becoming immediately due and payable and could further result in a cross default or cross acceleration of our debt issued under other instruments. However, as a result of the above-mentioned actions and planned future actions, we believe that we will remain in compliance with our corporate debt covenants and that cash generated from operations, together with amounts available under various liquidity facilities will be adequate to permit us to meet our debt service obligations, ongoing costs of operations, working capital needs and capital expenditure requirements for the next twelve months. Our future financial and operating performance, ability to service or refinance our debt and ability to comply with covenants and restrictions contained in our corporate debt agreements will be subject to future economic conditions and to financial, business and other factors, many of which are beyond our control.
A significant number of cars that we purchase are subject to repurchase by car manufacturers under contractual repurchase or guaranteed depreciation programs. Under these programs, car manufacturers agree to repurchase cars at a specified price or guarantee the depreciation rate on the cars during a specified time period, typically subject to certain car condition and mileage requirements. We use this specified price or guaranteed depreciation rate to calculate our asset-backed financing capacity. If any manufacturer of our cars fails to fulfill its repurchase or guaranteed depreciation obligations, due to bankruptcy or otherwise, our asset-backed financing capacity could be decreased, or we may be required to materially increase the credit enhancement levels related to the financing of the fleet vehicles provided by such bankrupt manufacturer under certain of our Fleet Financing Facilities. For a discussion of risks related to the repurchase of program cars from us or the guarantee of the depreciation rate of program cars by the manufacturers of our cars and for a discussion of the risks associated with a manufacturer's bankruptcy or our reliance on asset-backed financing, see "Item 1ARisk Factors" in our Form 10-K and our Second Quarter Form 10-Q.
We rely significantly on asset-backed financing to purchase cars for our domestic and international car rental fleet. The amount of financing available to us pursuant to these programs depends on a number of factors, many of which are outside our control. In the past several years, Ford and Old General Motors, as defined below, which are the principal suppliers of cars to us on both a program and non-program basis, have experienced deterioration in their operating results and significant declines in their credit ratings and in June 2009, Old General Motors filed for bankruptcy. For further information concerning our asset-backed financing programs, see Note 3 to the Notes to our audited annual consolidated financial
62
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
statements included in our Form 10-K under the caption "Item 8Financial Statements and Supplementary Data." For a discussion of risks related to our reliance on asset-backed financing to purchase cars, see "Item 1ARisk Factors" in our Form 10-K and our Second Quarter Form 10-Q.
Immediately prior to Chrysler LLC's bankruptcy, less than 1% of our fleet was comprised of Chrysler LLC vehicles, so its bankruptcy filing has not had a material impact on our business, financial condition or results of operations.
General
Motors filed for bankruptcy in June 2009, which we will refer to as "Old General Motors," however, we do not believe that this will have a material long-term impact on our
business, financial condition or results of operations, because:
In the event of a bankruptcy of a car manufacturer, including Ford or New General Motors, our liquidity would be impacted by several factors including reductions in fleet residual values, as discussed above, and the risk that we would be unable to collect outstanding receivables due to us from such bankrupt manufacturer. In addition, the program cars manufactured by any such company would need to be removed from our fleet or re-designated as non-program vehicles, which would require us to furnish additional collateral enhancement associated with these program vehicles. For a discussion of the risks associated with a manufacturer's bankruptcy or our reliance on asset-backed financing, see "Item 1ARisk Factors" in our Form 10-K and our Second Quarter Form 10-Q.
Also, substantially all of our revenue earning equipment and certain related assets are owned by special purpose entities, or are subject to liens in favor of our lenders under the Senior ABL Facility, the ABS Program, the International Fleet Debt facilities, the Fleet Financing Facility, the Brazil Fleet Financing Facility, the Canadian Fleet Financing Facility, the Belgian Fleet Financing Facility, Capitalized Leases and the International ABS Fleet Financing Facility. Substantially all our other assets in the United States are also subject to liens in favor of our lenders under the Senior Credit Facilities, and substantially all of our other assets outside the United States are (with certain limited exceptions) subject to liens in favor of our lenders under the International Fleet Debt facilities or (in the case of our Canadian equipment rental business) the Senior ABL Facility. None of such assets will be available to satisfy the claims of our general creditors.
We have a significant amount of debt that will mature over the next several years. The aggregate amounts of maturities of debt for each of the twelve-month periods ending September 30 (in millions of dollars) are as follows: 2010, $4,836.1 (including $2,400.6 of other short-term borrowings); 2011, $1,036.1; 2012, $176.4; 2013, $1,362.1; 2014, $2,555.4; after 2014, $546.4. For a discussion of these maturities, see Note 3 to the Notes to our audited annual consolidated financial statements included in our Form 10-K under the caption "Item 8Financial Statements and Supplementary Data." The $2,400.6 million of short-term borrowings included in the 2009 maturity are revolving in nature and do not expire in 2009. As a result of our successful refinancing efforts in the prior 10 months and the
63
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
strategic cost reduction actions taken in 2008 and the first nine months of 2009 as well as those planned for the remainder of 2009 and 2010, we believe that we will remain in compliance with our debt covenants and that cash generated from operations, together with amounts available under various liquidity facilities will be adequate to permit us to meet our debt service obligations, ongoing costs of operations, working capital needs and capital expenditure requirements for the next twelve months. Our future financial and operating performance, ability to service or refinance our debt and ability to comply with covenants and restrictions contained in our debt agreements will be subject to future economic conditions and to financial, business and other factors, many of which are beyond our control.
MBIA and Ambac provide credit enhancements in the form of financial guaranties for our 2005 Notes, with each providing guaranties for approximately half of the $3.2 billion in principal amount of the 2005 Notes that was outstanding as of September 30, 2009, all of which matures in 2010.
An event of bankruptcy with respect to MBIA or Ambac between now and November 2010 would result in an amortization event under the portion of the 2005 Notes guaranteed by the affected insurer. In addition, if an amortization event continues for 30 days or longer, the noteholders of the affected series of notes would have the right to require liquidation of a portion of the fleet sufficient to repay such notes, provided that the exercise of the right was exercised by a majority of the affected noteholders.
Since MBIA and Ambac are facing financial instability, have been downgraded one or more times and are on review for further credit downgrade or under developing outlook by one or more credit agencies, we did not have the Series 2009-1 Notes or the Series 2009-2 Notes guaranteed. Accordingly, if a bankruptcy of MBIA or Ambac were to occur prior to the 2005 Notes maturing, we expect that we would use our corporate liquidity and the borrowings under or proceeds from the Series 2009-1 Notes and the Series 2009-2 Notes to pay down the amounts owed under the affected series of 2005 Notes.
Financing
We have a significant amount of indebtedness. For information on our indebtedness, see Note 7 to the Notes to our condensed consolidated financial statements included in this Report.
Covenants
Certain of our debt instruments and credit facilities contain a number of covenants that, among other things, limit or restrict the ability of the borrowers and the guarantors to dispose of assets, incur additional indebtedness, incur guarantee obligations, prepay other indebtedness, make dividends and other restricted payments, create liens, make investments, make acquisitions, engage in mergers, change the nature of their business, make capital expenditures, or engage in certain transactions with affiliates. Some of these agreements also require the maintenance of certain financial covenants. As of September 30, 2009, we were in compliance with all of these financial covenants.
As of September 30, 2009, we had an aggregate principal amount outstanding of $1,362.0 million pursuant to our Senior Term Facility and no amounts outstanding in our Senior ABL Facility. As of September 30, 2009, Hertz was required under the Senior Term Facility to have a consolidated leverage ratio of not more than 5.50:1 and a consolidated interest expense coverage ratio of not less than 2.00:1. In addition, under our Senior ABL Facility, if there was less than $200 million of available borrowing capacity under that facility as of September 30, 2009, Hertz was required to have a consolidated leverage ratio of not more than 5.50:1 and a consolidated fixed charge coverage ratio of not less than 1:1 for the quarter then ended. Under the Senior Term Facility, as of September 30, 2009, we had a consolidated leverage ratio of 4.39:1 and a consolidated interest expense coverage ratio of 2.56:1. Since
64
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
we had maintained sufficient borrowing capacity under our Senior ABL Facility as of September 30, 2009, and expect to maintain such capacity in the future, the consolidated fixed charge coverage ratio was not deemed relevant for presentation. For further information on the terms of our senior credit facilities, see Note 3 of the Notes to our audited annual consolidated financial statements included in our Form 10-K under the caption "Item 8Financial Statements and Supplementary Data." In addition to the borrowings under our senior credit facilities, we have a significant amount of additional debt outstanding. For a discussion of the risks associated with our significant leverage, see "Item 1ARisk Factors" in our Form 10-K and our Second Quarter Form 10-Q.
Credit Facilities
As of September 30, 2009, the following credit facilities were available for the use of Hertz and its subsidiaries (in millions of dollars):
|
Remaining
Capacity |
Availability
Under Borrowing Base or Other Limitation |
|||||||
---|---|---|---|---|---|---|---|---|---|
Corporate Debt |
|||||||||
Senior ABL Facility |
$ | 1,691.3 | $ | 1,013.2 | |||||
Total Corporate Debt |
1,691.3 | 1,013.2 | |||||||
Fleet Debt |
|||||||||
U.S. Fleet Debt |
1,841.9 | 447.3 | |||||||
International Fleet Debt |
677.4 | 114.3 | |||||||
International ABS Fleet Financing Facility |
445.6 | 66.0 | |||||||
Fleet Financing Facility |
20.4 | 20.0 | |||||||
Brazilian Fleet Financing Facility |
6.3 | | |||||||
Canadian Fleet Financing Facility |
82.4 | 31.3 | |||||||
Capitalized Leases |
53.4 | | |||||||
Total Fleet Debt |
3,127.4 | 678.9 | |||||||
Total |
$ | 4,818.7 | $ | 1,692.1 | |||||
As of September 30, 2009, the Senior Term Facility had approximately $1.6 million available under the letter of credit facility and the Senior ABL Facility had $151.9 million available under the letter of credit facility sublimit.
Our liquidity as of September 30, 2009 was approximately $5,067.3 million, which consisted of $926.7 million of cash, $1,013.2 million of unused commitments under our Senior ABL Facility and $3,127.4 million of unused commitments under our fleet debt facilities. Taking into consideration the borrowing base limitations in our Senior ABL Facility and in our fleet debt facilities, the amount that we had available for immediate use as of September 30, 2009 under our Senior ABL Facility was $1,013.2 million and we had $678.9 million available under our various fleet debt facilities. Accordingly, as of September 30, 2009, we had $2,618.8 million ($926.7 million in cash, $1,013.2 million available under our Senior ABL Facility and $678.9 million available under our various fleet debt facilities) in liquidity that was available for our immediate use. Future availability of borrowings under these facilities will depend on borrowing base requirements and other factors, many of which are outside our control. See "Item 1ARisk Factors" in our Form 10-K and our Second Quarter Form 10-Q.
65
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
Capital Expenditures
The following table sets forth the revenue earning equipment and property and equipment capital expenditures and related disposal proceeds, on a cash basis consistent with our revised consolidated statements of cash flows, received by quarter for 2009 and 2008 (in millions of dollars).
|
Revenue Earning Equipment | Property and Equipment | ||||||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
Capital
Expenditures |
Disposal
Proceeds |
Net Capital
Expenditures (Disposal Proceeds) |
Capital
Expenditures |
Disposal
Proceeds |
Net Capital
Expenditures |
||||||||||||||
2009 |
||||||||||||||||||||
First Quarter |
$ | 1,399.6 | $ | (2,026.1 | ) | $ | (626.5 | ) | $ | 26.7 | $ | (5.2 | ) | $ | 21.5 | |||||
Second Quarter |
2,140.9 | (1,171.5 | ) | 969.4 | 21.6 | 0.2 | 21.8 | |||||||||||||
Third Quarter |
1,654.0 | (965.1 | ) | 688.9 | 20.7 | (1.1 | ) | 19.6 | ||||||||||||
|
$ | 5,194.5 | $ | (4,162.7 | ) | $ | 1,031.8 | $ | 69.0 | $ | (6.1 | ) | $ | 62.9 | ||||||
2008 |
||||||||||||||||||||
First Quarter |
$ | 2,451.0 | $ | (2,026.4 | ) | $ | 424.6 | $ | 48.2 | $ | (34.5 | ) | $ | 13.7 | ||||||
Second Quarter |
3,626.4 | (2,161.9 | ) | 1,464.5 | 47.8 | (13.6 | ) | 34.2 | ||||||||||||
Third Quarter |
2,811.5 | (1,821.9 | ) | 989.6 | 56.8 | (14.2 | ) | 42.6 | ||||||||||||
|
$ | 8,888.9 | $ | (6,010.2 | ) | $ | 2,878.7 | $ | 152.8 | $ | (62.3 | ) | $ | 90.5 | ||||||
Revenue earning equipment expenditures in our car rental operations were $5,133.9 million and $8,605.5 million for the nine months ended September 30, 2009 and 2008, respectively. Revenue earning equipment expenditures in our equipment rental operations were $60.6 million and $283.4 million for the nine months ended September 30, 2009 and 2008, respectively.
Revenue earning equipment expenditures in our car rental and equipment rental operations for the nine months ended September 30, 2009 decreased by 40.3% and 78.6%, respectively, compared to the nine months ended September 30, 2008. The decrease in our car rental operations revenue earning equipment expenditures was primarily due to lower rental volumes during the nine months ended September 30, 2009 as compared to the nine months ended September 30, 2008, which required us to maintain lower fleet levels. The decrease in our equipment rental operations revenue earning equipment expenditures was primarily due to a general reduction in spending due to lower demand for equipment related to the economic downturn during the nine months ended September 30, 2009 as compared to the nine months ended September 30, 2008.
Property and equipment expenditures in our car rental operations were $62.5 million and $111.6 million for the nine months ended September 30, 2009 and 2008, respectively. Property and equipment expenditures in our equipment rental operations were $4.4 million and $34.1 million for the nine months ended September 30, 2009 and 2008, respectively. Property and equipment expenditures for all other activities were $2.1 million and $7.1 million for the nine months ended September 30, 2009 and 2008, respectively. Property and equipment expenditures in our car rental and equipment rental operations and all other activities for the nine months ended September 30, 2009 decreased by 44.0%, 87.1% and 70.4%, respectively. These decreases are a result of managing our capital expenditures during the recent economic downturn.
66
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
Off-Balance Sheet Commitments
As of September 30, 2009 and December 31, 2008, the following guarantees (including indemnification commitments) were issued and outstanding:
Indemnifications
In the ordinary course of business, we execute contracts involving indemnifications standard in the relevant industry and indemnifications specific to a transaction such as the sale of a business. These indemnifications might include claims relating to the following: environmental matters; intellectual property rights; governmental regulations and employment-related matters; customer, supplier and other commercial contractual relationships; and financial matters. Performance under these indemnities would generally be triggered by a breach of terms of the contract or by a third party claim. We regularly evaluate the probability of having to incur costs associated with these indemnifications and have accrued for expected losses that are probable and estimable. The types of indemnifications for which payments are possible include the following:
Sponsors; Directors
Hertz has entered into customary indemnification agreements with us, the Sponsors and our stockholders affiliated with the Sponsors, pursuant to which Hertz Holdings and Hertz will indemnify the Sponsors, our stockholders affiliated with the Sponsors and their respective affiliates, directors, officers, partners, members, employees, agents, representatives and controlling persons, against certain liabilities arising out of performance of a consulting agreement with Hertz Holdings and each of the Sponsors and certain other claims and liabilities, including liabilities arising out of financing arrangements or securities offerings. We also entered into indemnification agreements with each of our directors. We do not believe that these indemnifications are reasonably likely to have a material impact on us.
Environmental
We have indemnified various parties for the costs associated with remediating numerous hazardous substance storage, recycling or disposal sites in many states and, in some instances, for natural resource damages. The amount of any such expenses or related natural resource damages for which we may be held responsible could be substantial. The probable expenses that we expect to incur for such matters have been accrued, and those expenses are reflected in our condensed consolidated financial statements. As of September 30, 2009 and December 31, 2008, the aggregate amounts accrued for environmental liabilities, including liability for environmental indemnities, reflected in our condensed consolidated balance sheet in "Accrued liabilities" were $2.1 million and $2.2 million, respectively. The accrual generally represents the estimated cost to study potential environmental issues at sites deemed to require investigation or clean-up activities, and the estimated cost to implement remediation actions, including on-going maintenance, as required. Cost estimates are developed by site. Initial cost estimates are based on historical experience at similar sites and are refined over time on the basis of in-depth studies of the sites. For many sites, the remediation costs and other damages for which we ultimately may be responsible cannot be reasonably estimated because of uncertainties with respect to factors such as our connection to the site, the materials there, the involvement of other potentially responsible parties, the application of laws and other standards or regulations, site conditions, and the nature and scope of investigations, studies, and remediation to be undertaken (including the technologies to be required and the extent, duration, and success of remediation).
67
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
Risk Management
For a discussion of additional risks arising from our operations, including vehicle liability, general liability and property damage insurable risks, see "Item 1BusinessRisk Management" in our Form 10-K.
Market Risks
We are exposed to a variety of market risks, including the effects of changes in interest rates, foreign currency exchange rates and fluctuations in gasoline prices. We manage our exposure to these market risks through our regular operating and financing activities and, when deemed appropriate, through the use of derivative financial instruments. Derivative financial instruments are viewed as risk management tools and historically have not been used for speculative or trading purposes. In addition, derivative financial instruments are entered into with a diversified group of major financial institutions in order to manage our exposure to counterparty nonperformance on such instruments. For more information on these exposures, see Note 13 to the Notes to our audited annual consolidated financial statements included in our Form 10-K under the caption "Item 8Financial Statements and Supplementary Data."
Interest Rate Risk
From time to time, we may enter into interest rate swap agreements to manage interest rate risk. See Notes 7 and 13 to the Notes to our condensed consolidated financial statements included in this Report and Notes 3 and 13 to the Notes to our audited annual consolidated financial statements included in our Form 10-K under the caption "Item 8Financial Statements and Supplementary Data."
We have a significant amount of debt (including under our U.S. and International Fleet Debt facilities, other international fleet debt facilities, International ABS Fleet Financing Facility and Senior ABL Facility) with variable rates of interest based generally on LIBOR, EURIBOR or their equivalents for local currencies plus an applicable margin. Increases in interest rates could therefore significantly increase the associated interest payments that we are required to make on this debt.
We have assessed our exposure to changes in interest rates by analyzing the sensitivity to our earnings assuming various changes in market interest rates. Assuming a hypothetical increase of one percentage point in interest rates on our debt portfolio as of September 30, 2009, our net income would decrease by an estimated $19.2 million over a twelve-month period.
Consistent with the terms of the agreements governing the respective debt obligations, we may hedge a portion of the floating rate interest exposure under the Senior Credit Facilities, the U.S. and International Fleet Debt and International ABS Fleet Financing Facility to provide protection in respect of such exposure.
Foreign Currency Risk
We manage our foreign currency risk primarily by incurring, to the extent practicable, operating and financing expenses in the local currency in the countries in which we operate, including making fleet and equipment purchases and borrowing for working capital needs. Also, we have purchased foreign exchange options to manage exposure to fluctuations in foreign exchange rates for selected marketing programs. The effect of exchange rate changes on these financial instruments would not materially affect our consolidated financial position, results of operations or cash flows. Our risks with respect to foreign exchange options are limited to the premium paid for the right to exercise the option and the future performance of the option's counterparty.
68
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
We also manage exposure to fluctuations in currency risk on intercompany loans we make to certain of our subsidiaries by entering into foreign currency forward contracts at the time of the loans.
See Note 13 to the Notes to our condensed consolidated financial statements included in this Report.
Other Risks
We purchase unleaded gasoline at prevailing market rates. In January 2009, we began a program to manage our exposure to changes in prices through the use of derivative commodity instruments. See Note 13 to the Notes to our condensed consolidated financial statements included in this Report.
Inflation
The increased cost of vehicles is the primary inflationary factor affecting us. Many of our other operating expenses are also expected to increase with inflation, including health care costs and gasoline. Management does not expect that the effect of inflation on our overall operating costs will be greater for us than for our competitors.
Income Taxes
In January 2006, we implemented a like-kind exchange program for our U.S. car rental business. Pursuant to the program, we dispose of vehicles and acquire replacement vehicles in a form intended to allow such dispositions and replacements to qualify as tax-deferred "like-kind exchanges" pursuant to section 1031 of the Internal Revenue Code. The program has resulted in deferral of federal and state income taxes for fiscal 2007 and 2008 and the nine months ended September 30, 2009. A like-kind exchange program for HERC has been in place for several years. The program allows tax deferral if a qualified replacement asset is acquired within a specific time period after asset disposal. Accordingly, if a qualified replacement asset is not purchased within this limited time period, taxable gain is recognized. For strategic purposes, such as cash management and fleet reduction, we have triggered some taxable gains in the program. The bankruptcy filing of an OEM also resulted in minimal gain recognition. We had sufficient net operating losses to fully offset the taxable gains recognized. We cannot offer assurance that the expected tax deferral will continue or that the relevant law concerning the programs will remain in its current form. An extended reduction in purchases or downsizing of our car rental fleet could result in reduced deferrals in the future, which in turn could require us to make material cash payments for federal and state income tax liabilities. Our inability to obtain replacement financing as our fleet financing facilities mature would likely result in an extended reduction in purchases or downsizing of the fleet. However, we believe the likelihood of making material cash payments in the near future is low because of our significant net operating losses. For a discussion of risks related to our reliance on asset-backed financing to purchase cars, see "Item 1ARisk Factors" in our Form 10-K and our Second Quarter Form 10-Q.
In September 2008, Bank of America announced it was acquiring Merrill Lynch & Co., Inc., the parent company of MLGPE. This transaction closed on January 1, 2009. Accordingly, Bank of America is now an indirect beneficial owner of our common stock held by MLGPE and certain of its affiliates. For U.S. income tax purposes the transaction, when combined with other unrelated transactions during the previous 36 months, resulted in a change in control as that term is defined in Section 382 of the Internal Revenue Code. Consequently, utilization of all pre-2009 U.S. net operating losses is subject to an annual limitation. The limitation is not expected to result in a loss of net operating losses or have a material adverse impact on taxes.
69
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations (Continued)
Pension
We sponsor defined benefit pension plans worldwide. Pension obligations give rise to significant expenses that are dependent on assumptions discussed in Note 4 of the Notes to our audited annual consolidated financial statements included in our Form 10-K under the caption "Item 8Financial Statements and Supplementary Data." Based on present assumptions, our 2009 worldwide pre-tax pension expense is expected to be approximately $36.5 million, which would represent a decrease of $2.9 million from 2008. The anticipated decrease in expense compared to 2008 is primarily due to lower expense for U.S. plans, largely due to headcount reductions. To the extent that there are layoffs affecting a significant number of employees covered by any pension plan worldwide, 2009 expense could vary significantly because of further charges or credits. We expect to contribute $42.6 million to our U.S. pension plan during 2009, including $13.0 million contributed during the nine months ended September 30, 2009, $14.2 million contributed in October 2009, and $15.4 million to be contributed later in the fourth quarter of 2009. These contributions are necessary primarily because of the significant decline in asset values in 2008.
We participate in various "multiemployer" pension plans administered by labor unions representing some of our employees. We make periodic contributions to these plans to allow them to meet their pension benefit obligations to their participants. In the event that we withdraw from participation in one of these plans, then applicable law could require us to make an additional lump-sum contribution to the plan, and we would have to reflect that as an expense in our consolidated statement of operations and as a liability on our condensed consolidated balance sheet. Our withdrawal liability for any multiemployer plan would depend on the extent of the plan's funding of vested benefits. In the ordinary course of our renegotiation of collective bargaining agreements with labor unions that maintain these plans, we could decide to discontinue participation in a plan, and in that event, we could face a withdrawal liability. Some multiemployer plans, including one in which we participate, are reported to have significant underfunded liabilities. Such underfunding could increase the size of our potential withdrawal liability.
Recent Accounting Pronouncements
For a discussion of recent accounting pronouncements, see Note 2 to the Notes to our condensed consolidated financial statements included in this Report.
Other Financial Information
The interim financial information included in this Report has not been audited by PricewaterhouseCoopers LLP, or "PwC." In reviewing this interim financial information, PwC has applied limited procedures in accordance with professional standards for reviews of interim financial information. Accordingly, reliance on their reports on this information should be restricted. PwC is not subject to the liability provisions of Section 11 of the Securities Act of 1933 for its reports on the interim financial information because their reports do not constitute "reports" or "parts" of registration statements prepared or certified by PwC within the meaning of Sections 7 and 11 of the Securities Act of 1933.
ITEM 3. Quantitative and Qualitative Disclosures About Market Risk
There is no material change in the information reported under "Part II, Item 7AQuantitative and Qualitative Disclosures About Market Risk," contained in our Annual Report on Form 10-K for the fiscal year ended December 31, 2008. See "Item 2Management's Discussion and Analysis of Financial Condition and Results of OperationsMarket Risks," included in this Report.
70
ITEM 4. Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Disclosure controls and procedures are controls and other procedures that are designed to ensure that information required to be disclosed in company reports filed or submitted under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in company reports filed under the Securities Exchange Act of 1934 is accumulated and communicated to management, including our Chief Executive Officer and Chief Financial Officer, as appropriate to allow timely decisions regarding required disclosure.
An evaluation of the effectiveness of our disclosure controls and procedures was performed under the supervision of, and with the participation of, management, including our Chief Executive Officer and Chief Financial Officer, as of the end of the period covered by this Report. Based on this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures are effective.
Changes in Internal Control Over Financial Reporting
An evaluation of our internal controls over financial reporting was performed under the supervision of, and with the participation of, management, including our Chief Executive Officer and Chief Financial Officer, to determine whether any changes have occurred during the period covered by this Report that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. Based upon this evaluation, our Chief Executive Officer and Chief Financial Officer concluded that no changes in our internal control over financial reporting have occurred during the three months ended September 30, 2009 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
71
ITEM 1. Legal Proceedings
For a description of all material pending legal proceedings, see Note 15 to the Notes to our condensed consolidated financial statements included in this Report.
The following recent developments pertaining to legal proceedings described in our Form 10-K for the fiscal year ended December 31, 2008 are furnished on a supplemental basis:
In August 2009, the District Court of Johnson County, Kansaswhere the Fun Services of Kansas City, Inc., individually and as the representative of a class of similarly-situated persons, v. Hertz Equipment Rental Corporation case is now venuedissued an Order Granting Joint Motion to Stay Proceedings pending the outcome of another Telephone Consumer Protection Act case that is currently before the Kansas Supreme Court.
Aside from the above mentioned development, there were no material changes in the legal proceedings described in our Form 10-K for the fiscal year ended December 31, 2008 and in our quarterly reports on Form 10-Q for the quarterly periods ended March 31, 2009 and June 30, 2009, and we are not otherwise required to disclose any pending legal proceedings in response to Item 103 of Regulation S-K.
ITEM 1A. RISK FACTORS
There is no material change in the information reported under "Part IItem 1ARisk Factors" in our Form 10-K for the fiscal year ended December 31, 2008 and under "Part IIItem 1ARisk Factors" in our Form 10-Q for the quarterly period ended June 30, 2009.
ITEM 6. Exhibits
Exhibit
Number |
Description | |
---|---|---|
3.1.1 | Amended and Restated By-Laws of Hertz Global Holdings, Inc., effective August 12, 2009 | |
4.9.1 |
|
Third Amended and Restated Base Indenture, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee |
4.9.2.3 |
|
Amendment No. 3, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee and Securities Intermediary, to the Amended and Restated Series 2005-1 Supplement to the Third Amended and Restated Base Indenture, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee |
4.9.3.3 |
|
Amendment No. 3, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee and Securities Intermediary, to the Amended and Restated Series 2005-2 Supplement to the Third Amended and Restated Base Indenture, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee |
4.9.7 |
|
Third Amended and Restated Master Motor Vehicle Operating Lease and Servicing Agreement, dated as of September 18, 2009, between The Hertz Corporation, as Lessee and Servicer, and Hertz Vehicle Financing LLC, as Lessor |
72
Exhibit
Number |
Description | |
---|---|---|
4.9.8 | Second Amended and Restated Participation, Purchase and Sale Agreement, dated as of September 18, 2009, by and among Hertz General Interest LLC, Hertz Vehicle Financing LLC and The Hertz Corporation, as Lessee and Servicer | |
4.9.11 |
|
Third Amended and Restated Collateral Agency Agreement, dated as of September 18, 2009, among Hertz Vehicle Financing LLC, as a Grantor, Hertz General Interest LLC, as a Grantor, The Hertz Corporation, as Servicer, The Bank of New York Mellon Trust Company, N.A., as Collateral Agent, The Bank of New York Mellon Trust Company, N.A., as Trustee and a Secured Party, and The Hertz Corporation, as a Secured Party |
4.9.12 |
|
Second Amended and Restated Administration Agreement, dated as of September 18, 2009, by and among The Hertz Corporation, Hertz Vehicle Financing LLC, and The Bank of New York Mellon Trust Company, N.A., as Trustee |
4.9.13 |
|
Second Amended and Restated Master Exchange Agreement, dated as of September 18, 2009, among The Hertz Corporation, Hertz Vehicle Financing LLC, Hertz General Interest LLC, Hertz Car Exchange Inc., and DB Services Tennessee, Inc. |
4.9.14 |
|
Second Amended and Restated Escrow Agreement, dated as of September 18, 2009, among The Hertz Corporation, Hertz Vehicle Financing LLC, Hertz General Interest LLC, Hertz Car Exchange Inc., and J.P. Morgan Chase Bank, N.A. |
4.9.27 |
|
Series 2009-1 Supplement, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee and Securities Intermediary, to the Third Amended and Restated Base Indenture, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee |
4.9.28 |
|
Series 2009-1 Note Purchase Agreement (Series 2009-1 Variable Funding Rental Car Asset Backed Notes), dated as of September 18, 2009, 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 AG, New York Branch, as Administrative Agent |
4.9.29 |
|
Series 2009-2 Supplement, dated as of October 23, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee and Securities Intermediary, to the Third Amended and Restated Base Indenture, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee |
4.19.1 |
|
First Supplemental Indenture, dated as of August 19, 2009, between Hertz Global Holdings, Inc. and Wells Fargo Bank, National Association, as Trustee, to the Indenture, dated as of May 27, 2009, between Hertz Global Holdings, Inc. and Wells Fargo Bank, National Association, as Trustee |
10.37.1 |
|
Amendment No. 1 to the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan |
10.37.2 |
|
Amendment No. 2 to the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan |
10.45.1 |
|
Form of Amendment to Performance Stock Unit Agreement between [Participant] and Hertz Global Holdings, Inc. |
15 |
|
Letter from PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm, dated November 6, 2009, relating to Financial Information |
31.131.2 |
|
Rule 13a-14(a)/15d-14(a) Certifications of Chief Executive Officer and Chief Financial Officer |
73
Exhibit
Number |
Description | |
---|---|---|
32.132.2 | 18 U.S.C. Section 1350 Certifications of Chief Executive Officer and Chief Financial Officer |
Note: | Certain instruments with respect to various additional obligations, which could be considered as long-term debt, have not been filed as exhibits to this Report because the total amount of securities authorized under any such instrument does not exceed 10% of our total assets on a consolidated basis. We agree to furnish to the SEC upon request a copy of any such instrument defining the rights of the holders of such long-term debt. |
74
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
Date: November 6, 2009 |
HERTZ GLOBAL HOLDINGS, INC.
(Registrant) |
|||
|
|
By: |
|
/s/ ELYSE DOUGLAS |
Elyse Douglas | ||||
Executive Vice President and Chief Financial Officer
(principal financial officer and duly authorized officer) |
75
Exhibit
Number |
Description | |
---|---|---|
3.1.1 | Amended and Restated By-Laws of Hertz Global Holdings, Inc., effective August 12, 2009 | |
4.9.1 |
|
Third Amended and Restated Base Indenture, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee |
4.9.2.3 |
|
Amendment No. 3, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee and Securities Intermediary, to the Amended and Restated Series 2005-1 Supplement to the Third Amended and Restated Base Indenture, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee |
4.9.3.3 |
|
Amendment No. 3, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee and Securities Intermediary, to the Amended and Restated Series 2005-2 Supplement to the Third Amended and Restated Base Indenture, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee |
4.9.7 |
|
Third Amended and Restated Master Motor Vehicle Operating Lease and Servicing Agreement, dated as of September 18, 2009, between The Hertz Corporation, as Lessee and Servicer, and Hertz Vehicle Financing LLC, as Lessor |
4.9.8 |
|
Second Amended and Restated Participation, Purchase and Sale Agreement, dated as of September 18, 2009, by and among Hertz General Interest LLC, Hertz Vehicle Financing LLC and The Hertz Corporation, as Lessee and Servicer |
4.9.11 |
|
Third Amended and Restated Collateral Agency Agreement, dated as of September 18, 2009, among Hertz Vehicle Financing LLC, as a Grantor, Hertz General Interest LLC, as a Grantor, The Hertz Corporation, as Servicer, The Bank of New York Mellon Trust Company, N.A., as Collateral Agent, The Bank of New York Mellon Trust Company, N.A., as Trustee and a Secured Party, and The Hertz Corporation, as a Secured Party |
4.9.12 |
|
Second Amended and Restated Administration Agreement, dated as of September 18, 2009, by and among The Hertz Corporation, Hertz Vehicle Financing LLC, and The Bank of New York Mellon Trust Company, N.A., as Trustee |
4.9.13 |
|
Second Amended and Restated Master Exchange Agreement, dated as of September 18, 2009, among The Hertz Corporation, Hertz Vehicle Financing LLC, Hertz General Interest LLC, Hertz Car Exchange Inc., and DB Services Tennessee, Inc. |
4.9.14 |
|
Second Amended and Restated Escrow Agreement, dated as of September 18, 2009, among The Hertz Corporation, Hertz Vehicle Financing LLC, Hertz General Interest LLC, Hertz Car Exchange Inc., and J.P. Morgan Chase Bank, N.A. |
4.9.27 |
|
Series 2009-1 Supplement, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee and Securities Intermediary, to the Third Amended and Restated Base Indenture, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee |
76
Exhibit
Number |
Description | |
---|---|---|
4.9.28 | Series 2009-1 Note Purchase Agreement (Series 2009-1 Variable Funding Rental Car Asset Backed Notes), dated as of September 18, 2009, 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 AG, New York Branch, as Administrative Agent | |
4.9.29 |
|
Series 2009-2 Supplement, dated as of October 23, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee and Securities Intermediary, to the Third Amended and Restated Base Indenture, dated as of September 18, 2009, between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee |
4.19.1 |
|
First Supplemental Indenture, dated as of August 19, 2009, between Hertz Global Holdings, Inc. and Wells Fargo Bank, National Association, as Trustee, to the Indenture, dated as of May 27, 2009, between Hertz Global Holdings, Inc. and Wells Fargo Bank, National Association, as Trustee |
10.37.1 |
|
Amendment No. 1 to the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan |
10.37.2 |
|
Amendment No. 2 to the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan |
10.45.1 |
|
Form of Amendment to Performance Stock Unit Agreement between [Participant] and Hertz Global Holdings, Inc. |
15 |
|
Letter from PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm, dated November 6, 2009, relating to Financial Information |
31.131.2 |
|
Rule 13a-14(a)/15d-14(a) Certifications of Chief Executive Officer and Chief Financial Officer |
32.132.2 |
|
18 U.S.C. Section 1350 Certifications of Chief Executive Officer and Chief Financial Officer |
77
Table of Contents
Section |
|
Page |
|
|
|
ARTICLE I STOCKHOLDERS |
|
1 |
|
|
|
Section 1.01. Annual Meetings |
|
1 |
Section 1.02. Special Meetings |
|
1 |
Section 1.03. Participation in Meetings by Remote Communication |
|
1 |
Section 1.04. Notice of Meetings; Waiver of Notice |
|
1 |
Section 1.05. Quorum |
|
2 |
Section 1.06. Voting |
|
2 |
Section 1.07. Voting Lists |
|
3 |
Section 1.08. Adjournment |
|
3 |
Section 1.09. Proxies |
|
3 |
Section 1.10. Organization; Procedure; Inspection of Elections |
|
4 |
Section 1.11. Stockholder Action by Written Consent |
|
4 |
Section 1.12. Notice of Stockholder Proposals and Nominations |
|
5 |
|
|
|
ARTICLE II BOARD OF DIRECTORS |
|
8 |
|
|
|
Section 2.01. General Powers |
|
8 |
Section 2.02. Number and Term of Office |
|
9 |
Section 2.03. Annual and Regular Meetings: Notice |
|
9 |
Section 2.04. Special Meetings; Notice |
|
10 |
Section 2.05. Quorum |
|
10 |
Section 2.06. Voting |
|
10 |
Section 2.07. Adjournment |
|
10 |
Section 2.08. Action Without a Meeting |
|
10 |
Section 2.09. Regulations; Manner of Acting |
|
11 |
Section 2.10. Action by Telephonic Communications |
|
11 |
Section 2.11. Resignations |
|
11 |
Section 2.12. Removal of Directors |
|
11 |
Section 2.13. Vacancies and Newly Created Directorships |
|
11 |
Section 2.14. Director Fees and Expenses |
|
12 |
Section 2.15. Reliance on Accounts and Reports, etc. |
|
12 |
|
|
|
ARTICLE III COMMITTEES |
|
12 |
|
|
|
Section 3.01. How Constituted |
|
12 |
Section 3.02. Powers |
|
12 |
Section 3.03. Proceedings |
|
13 |
Section 3.04. Quorum and Manner of Acting |
|
13 |
Section 3.05. Action by Telephonic Communications |
|
14 |
Section 3.06. Resignations |
|
14 |
Section 3.07. Removal |
|
14 |
Section 3.08. Vacancies |
|
14 |
i
Table of Contents
(continued)
|
|
Page |
|
|
|
ARTICLE IV OFFICERS |
|
14 |
|
|
|
Section 4.01. Number |
|
14 |
Section 4.02. Election |
|
15 |
Section 4.03. Salaries |
|
15 |
Section 4.04. Removal and Resignation; Vacancies |
|
15 |
Section 4.05. Authority and Duties of Officers |
|
15 |
Section 4.06. Chairman of the Board |
|
15 |
Section 4.07. Chief Executive Officer |
|
15 |
Section 4.08. Vice President |
|
16 |
Section 4.09. Secretary |
|
16 |
Section 4.10. Chief Financial Officer |
|
17 |
Section 4.11. Treasurer |
|
17 |
Section 4.12. General Counsel |
|
18 |
Section 4.13. Controller |
|
18 |
Section 4.14. Additional Officers |
|
18 |
Section 4.15. Security |
|
18 |
|
|
|
ARTICLE V CAPITAL STOCK |
|
19 |
|
|
|
Section 5.01. Certificates of Stock, Uncertificated Shares |
|
19 |
Section 5.02. Signatures; Facsimile |
|
19 |
Section 5.03. Lost, Stolen or Destroyed Certificates |
|
19 |
Section 5.04. Transfer of Stock |
|
19 |
Section 5.05. Registered Stockholders |
|
19 |
Section 5.06. Transfer Agent and Registrar |
|
20 |
|
|
|
ARTICLE VI INDEMNIFICATION |
|
20 |
|
|
|
Section 6.01. Nature of Indemnity |
|
20 |
Section 6.02. Successful Defense |
|
21 |
Section 6.03. Determination That Indemnification Is Proper |
|
21 |
Section 6.04. Advance of Expenses |
|
21 |
Section 6.05. Procedure for Indemnification of Directors and Officers |
|
21 |
Section 6.06. Contract Right; Non-Exclusivity; Survival |
|
22 |
Section 6.07. Insurance |
|
22 |
Section 6.08. Subrogation |
|
23 |
Section 6.09. Employees and Agents |
|
23 |
Section 6.10. Interpretation, Severability |
|
23 |
|
|
|
ARTICLE VII OFFICES |
|
23 |
|
|
|
Section 7.01. Registered Office |
|
23 |
ii
Table of Contents
(continued)
|
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Page |
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Section 7.02. Other Offices |
|
23 |
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ARTICLE VIII GENERAL PROVISIONS |
|
23 |
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Section 8.01. Dividends |
|
23 |
Section 8.02. Reserves |
|
24 |
Section 8.03. Execution of Instruments |
|
24 |
Section 8.04. Voting as Stockholder |
|
24 |
Section 8.05. Fiscal Year |
|
24 |
Section 8.06. Seal |
|
24 |
Section 8.07. Books and Records; Inspection |
|
24 |
Section 8.08. Electronic Transmission |
|
24 |
|
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ARTICLE IX AMENDMENT OF BY-LAWS |
|
25 |
|
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Section 9.01. Amendment |
|
25 |
|
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ARTICLE X CONSTRUCTION |
|
25 |
|
|
|
Section 10.01. Construction |
|
25 |
HERTZ GLOBAL HOLDINGS, INC.
BY-LAWS
Effective as of August 12, 2009
1
2
3
4
5
6
(b) Special Meetings of Stockholders . Only such business as shall have been brought before the special meeting of the stockholders pursuant to the Corporations notice of meeting shall be conducted at such meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which Directors are to be elected pursuant to the Corporations notice of meeting ( i ) by or at the direction of the Board of Directors or ( ii ) provided that the Board of Directors has determined that the Directors shall be elected at such meeting, by any stockholder of the Corporation who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 1.12(b) and who is a stockholder of record at the time such notice is delivered to the Secretary of the Corporation. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more Directors of the Corporation, any stockholder entitled to vote at such meeting may nominate a person or persons, as the case may be, for election to such position(s) as specified by the Corporation, if the stockholders notice as required by Section 1.12(a)(ii) of these By-Laws shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not earlier than the 120 days prior to such special meeting and not later than the close of business on the later of the ninetieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting.
(c) General .
7
8
The Board of Directors from time to time may by resolution provide for the holding of regular meetings and fix the place (which may be within or without the State of Delaware) and the date and time of such meetings. Advance notice of regular meetings need not be given; provided if the Board of Directors shall fix or change the time or place of any regular
9
meeting, notice of such action shall be given to each member of the Board of Directors of the place, date and time of such meetings which shall be at least 48 hours notice, if such notice is sent by facsimile or Approved Electronic Transmission, to each Director, or delivered to him or her personally, or at least five days notice, if such notice is mailed to each Director, addressed to him or her at his or her usual place of business or other designated address. Notice of such a meeting need not be given to any Director who attends such meeting without protesting the lack of notice to him or her, prior to or at the commencement of such meeting, or to any Director who submits a signed waiver of notice, whether before or after such meeting.
10
11
12
The Executive and Governance Committee shall have, and any such other Committee may be granted by the Board of Directors, power to authorize the seal of the Corporation to be affixed to any or all papers which may require it.
13
14
15
16
17
18
19
The termination of any proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
20
person did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal proceeding, had reasonable cause to believe that his or her conduct was unlawful.
21
22
A member of the Board of Directors, or a member of any Committee designated by the Board of Directors shall be fully protected in relying in good faith upon the records of the
23
Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or Committees of the Board of Directors, or by any other person as to matters the Director reasonably believes are within such other persons professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation, as to the value and amount of the assets, liabilities and/or net profits of the Corporation, or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared and paid.
24
AMENDMENT OF BY-LAWS
Notwithstanding the foregoing, ( x ) no amendment to the Stockholders Agreement (whether or not such amendment modifies any provision of the Stockholders Agreement to which these By-Laws are subject) shall be deemed an amendment of these By-Laws for purposes of this Section 9.01 and ( y ) no amendment, alteration or repeal of Article VI shall adversely affect any right or protection existing under these By-Laws immediately prior to such amendment, alteration or repeal, including any right or protection of a Director thereunder in respect of any act or omission occurring prior to the time of such amendment.
25
Exhibit 4.9.1
EXECUTION VERSION
HERTZ VEHICLE FINANCING LLC,
as Issuer
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
THIRD AMENDED AND RESTATED BASE INDENTURE
Dated as of September 18, 2009
Rental Car Asset Backed Notes
(Issuable in Series)
TABLE OF CONTENTS
|
|
Page |
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ARTICLE I |
DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
|
|
|
Section 1.1. Definitions |
1 |
|
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|
|
Section 1.2. Cross-References |
1 |
|
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Section 1.3. Accounting and Financial Determinations; No Duplication |
2 |
|
|
|
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Section 1.4. Rules of Construction |
2 |
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|
ARTICLE II |
THE NOTES |
2 |
|
|
|
Section 2.1. Designation and Terms of Notes |
2 |
|
|
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Section 2.2. Notes Issuable in Series |
3 |
|
|
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Section 2.3. Series Supplement for Each Series |
5 |
|
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Section 2.4. Execution and Authentication |
8 |
|
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Section 2.5. Registrar and Paying Agent |
9 |
|
|
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Section 2.6. Paying Agent to Hold Money in Trust |
9 |
|
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Section 2.7. Noteholder List |
10 |
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Section 2.8. Transfer and Exchange |
11 |
|
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Section 2.9. Persons Deemed Owners |
12 |
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Section 2.10. Replacement Notes |
13 |
|
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Section 2.11. Treasury Notes |
13 |
|
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Section 2.12. Book-Entry Notes |
14 |
|
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Section 2.13. Definitive Notes |
15 |
|
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Section 2.14. Cancellation |
16 |
|
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Section 2.15. Principal and Interest |
16 |
|
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Section 2.16. Tax Treatment |
17 |
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ARTICLE III |
SECURITY |
17 |
|
|
|
Section 3.1. Grant of Security Interest |
17 |
|
|
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|
Section 3.2. Certain Rights and Obligations of HVF Unaffected |
19 |
|
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Section 3.3. Performance of Collateral Agreements |
20 |
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Section 3.4. Release of Indenture Collateral |
20 |
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Section 3.5. Opinions of Counsel |
21 |
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Section 3.6. Stamp, Other Similar Taxes and Filing Fees |
21 |
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ARTICLE IV |
REPORTS |
22 |
|
|
|
Section 4.1. Reports and Instructions to Trustee |
22 |
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Section 4.2. Reports to Noteholders |
23 |
|
|
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Section 4.3. Rule 144A Information |
24 |
|
|
|
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Section 4.4. Administrator |
24 |
|
|
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|
ARTICLE V |
ALLOCATION AND APPLICATION OF COLLECTIONS |
24 |
|
|
|
Section 5.1. Collection Account |
24 |
|
|
|
|
Section 5.2. Collections and Allocations |
25 |
|
|
|
|
Section 5.3. Determination of Monthly Interest |
28 |
|
|
|
|
Section 5.4. Determination of Monthly Principal |
28 |
|
|
|
|
ARTICLE 5A. |
HVF EXCHANGE ACCOUNT |
28 |
|
|
|
Section 5A.1. HVF Exchange Account |
28 |
|
|
|
|
ARTICLE VI |
DISTRIBUTIONS |
28 |
|
|
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Section 6.1. Distributions in General |
28 |
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Section 6.2. Optional Repurchase of Notes |
29 |
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ARTICLE VII |
REPRESENTATIONS AND WARRANTIES |
29 |
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Section 7.1. Existence and Power |
29 |
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Section 7.2. Limited Liability Company and Governmental Authorization |
29 |
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Section 7.3. No Consent |
30 |
Section 7.4. Binding Effect |
30 |
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Section 7.5. Litigation |
30 |
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Section 7.6. No ERISA Plan |
30 |
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Section 7.7. Tax Filings and Expenses |
30 |
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Section 7.8. Disclosure |
31 |
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Section 7.9. Investment Company Act |
31 |
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Section 7.10. Regulations T, U and X |
31 |
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Section 7.11. Solvency |
31 |
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Section 7.12. Ownership of Limited Liability Company Interests; Subsidiary |
31 |
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Section 7.13. Security Interests |
32 |
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Section 7.14. Related Documents |
33 |
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Section 7.15. [Reserved] |
34 |
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Section 7.16. Non-Existence of Other Agreements |
34 |
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Section 7.17. Compliance with Contractual Obligations and Laws |
34 |
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Section 7.18. Other Representations |
34 |
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ARTICLE VIII |
COVENANTS |
34 |
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Section 8.1. Payment of Notes |
34 |
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Section 8.2. Maintenance of Office or Agency |
34 |
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Section 8.3. Payment of Obligations |
35 |
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Section 8.4. Conduct of Business and Maintenance of Existence |
35 |
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Section 8.5. Compliance with Laws |
35 |
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Section 8.6. Inspection of Property, Books and Records |
35 |
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Section 8.7. Actions under the Collateral Agreements |
36 |
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Section 8.8. Notice of Defaults |
37 |
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Section 8.9. Notice of Material Proceedings |
37 |
Section 8.10. Further Requests |
37 |
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Section 8.11. Further Assurances |
37 |
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Section 8.12. Liens |
38 |
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Section 8.13. Other Indebtedness |
38 |
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Section 8.14. No ERISA Plan |
39 |
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Section 8.15. Mergers |
39 |
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Section 8.16. Sales of Assets |
39 |
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Section 8.17. Acquisition of Assets |
39 |
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Section 8.18. Dividends, Officers Compensation, etc. |
39 |
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Section 8.19. Legal Name; Location Under Section 9-301 |
39 |
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Section 8.20. HVF LLC Agreement |
40 |
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Section 8.21. Investments |
40 |
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Section 8.22. No Other Agreements |
40 |
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Section 8.23. Other Business |
40 |
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Section 8.24. Maintenance of Separate Existence |
40 |
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Section 8.25. Manufacturer Programs |
41 |
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Section 8.26. Disposition of HVF Vehicles |
42 |
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Section 8.27. Insurance |
42 |
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ARTICLE IX |
AMORTIZATION EVENTS AND REMEDIES |
43 |
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Section 9.1. Amortization Events |
43 |
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Section 9.2. Rights of the Trustee upon Amortization Event or Certain Other Events of Default |
44 |
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Section 9.3. Other Remedies |
48 |
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Section 9.4. Waiver of Past Events |
48 |
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Section 9.5. Control by Requisite Investors |
49 |
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Section 9.6. Limitation on Suits |
49 |
Section 9.7. Unconditional Rights of Holders to Receive Payment |
50 |
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Section 9.8. Collection Suit by the Trustee |
50 |
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Section 9.9. The Trustee May File Proofs of Claim |
50 |
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Section 9.10. Priorities |
51 |
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Section 9.11. Undertaking for Costs |
51 |
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Section 9.12. Rights and Remedies Cumulative |
51 |
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Section 9.13. Delay or Omission Not Waiver |
51 |
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Section 9.14. Reassignment of Surplus |
51 |
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ARTICLE X |
THE TRUSTEE |
52 |
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Section 10.1. Duties of the Trustee |
52 |
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Section 10.2. Rights of the Trustee |
54 |
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Section 10.3. Individual Rights of the Trustee |
56 |
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Section 10.4. Notice of Amortization Events and Potential Amortization Events |
56 |
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Section 10.5. Compensation |
56 |
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Section 10.6. Replacement of the Trustee |
56 |
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Section 10.7. Successor Trustee by Merger, etc. |
57 |
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Section 10.8. Eligibility Disqualification |
58 |
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Section 10.9. Appointment of Co-Trustee or Separate Trustee |
58 |
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Section 10.10. Representations and Warranties of Trustee |
59 |
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Section 10.11. HVF Indemnification of the Trustee |
60 |
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ARTICLE XI |
DISCHARGE OF INDENTURE |
60 |
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Section 11.1. Termination of HVFs Obligations |
60 |
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Section 11.2. Application of Trust Money |
61 |
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Section 11.3. Repayment to HVF |
61 |
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ARTICLE XII |
AMENDMENTS |
62 |
Section 12.1. Without Consent of the Noteholders |
62 |
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Section 12.2. With Consent of the Noteholders |
63 |
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Section 12.3. Supplements |
65 |
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Section 12.4. Revocation and Effect of Consents |
65 |
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Section 12.5. Notation on or Exchange of Notes |
65 |
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Section 12.6. The Trustee to Sign Amendments, etc. |
65 |
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ARTICLE XIII |
MISCELLANEOUS |
66 |
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Section 13.1. Notices |
66 |
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Section 13.2. Communication by Noteholders With Other Noteholders |
67 |
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Section 13.3. Certificate and Opinion as to Conditions Precedent |
67 |
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Section 13.4. Statements Required in Certificate |
67 |
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Section 13.5. Rules by the Trustee |
68 |
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Section 13.6. Duplicate Originals |
68 |
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Section 13.7. Benefits of Indenture |
68 |
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Section 13.8. Payment on Business Day |
68 |
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Section 13.9. Governing Law |
68 |
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Section 13.10. Successors |
69 |
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Section 13.11. Severability |
69 |
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Section 13.12. Counterpart Originals |
69 |
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Section 13.13. Table of Contents, Headings, etc. |
69 |
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Section 13.14. Termination; Indenture Collateral |
69 |
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Section 13.15. No Bankruptcy Petition Against HVF |
70 |
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Section 13.16. No Recourse |
70 |
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Section 13.17. Waiver of Jury Trial |
70 |
THIRD AMENDED AND RESTATED BASE INDENTURE, dated as of September 18, 2009, between HERTZ VEHICLE FINANCING LLC, a special purpose limited liability company established under the laws of Delaware, 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.) a national banking association, as trustee (in such capacity, the Trustee ).
W I T N E S S E T H:
WHEREAS, HVF and the Trustee entered into a Base Indenture dated as of September 18, 2002, as amended pursuant to the First Supplemental Indenture dated as of March 31, 2004, and as amended and restated pursuant to the Amended and Restated Base Indenture dated as of December 21, 2005, and the Second Amended and Restated Base Indenture, dated as of August 1, 2006 (the Prior Indenture );
WHEREAS, HVF and the Trustee desire to amend and restate the Prior Indenture in its entirety as herein set forth;
WHEREAS, HVF has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of one or more non-segregated Series of Rental Car Asset Backed Notes (the Notes ) and/or one or more segregated Series of Rental Car Asset Backed Notes (the Segregated Notes and, together with the Notes, the Indenture Notes ), issuable as provided in this Indenture; and
WHEREAS, all things necessary to make this Indenture a legal, valid and binding agreement of HVF, in accordance with its terms, have been done, and HVF proposes to do all the things necessary to make the Indenture Notes, when executed by HVF and authenticated and delivered by the Trustee hereunder and duly issued by HVF, the legal, valid and binding obligations of HVF as hereinafter provided;
NOW, THEREFORE, for and in consideration of the premises and the receipt of the Indenture Notes by the Indenture Noteholders, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Indenture Noteholders, as follows:
Section 1.1. Definitions.
Certain capitalized terms used herein (including the preamble and the recitals hereto) shall have the meanings assigned to such terms in the Definitions List attached hereto as Schedule I (the Definitions List ), as such Definitions List may be amended or modified from time to time in accordance with the provisions hereof.
Section 1.2. Cross-References.
Unless otherwise specified, references in this Indenture and in each other Related Document to any Article or Section are references to such Article or Section of this Indenture or such other Related Document, as the case may be and, unless otherwise specified, references in
any Article, Section or definition to any clause are references to such clause of such Article, Section or definition.
Section 1.3. Accounting and Financial Determinations; No Duplication.
Where the character or amount of any asset or liability or item of income or expense is required to be determined, or any accounting computation is required to be made, for the purpose of this Indenture, such determination or calculation shall be made, to the extent applicable and except as otherwise specified in this Indenture, in accordance with GAAP. When used herein, the term financial statement shall include the notes and schedules thereto. All accounting determinations and computations hereunder or under any other Related Documents shall be made without duplication.
Section 1.4. Rules of Construction.
In this Indenture, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) reference to any Person includes such Persons successors and assigns but, if applicable, only if such successors and assigns are permitted by this Indenture, and reference to any Person in a particular capacity only refers to such Person in such capacity;
(c) reference to any gender includes the other gender;
(d) reference to any Requirement of Law means such Requirement of Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time;
(e) including (and with correlative meaning include) means including without limiting the generality of any description preceding such term; and
(f) with respect to the determination of any period of time, from means from and including and to means to but excluding.
Section 2.1. Designation and Terms of Notes.
Each Series of Indenture Notes shall be substantially in the form specified in the applicable Series Supplement and shall bear, upon its face, the designation for such Series of Indenture Notes to which it belongs as selected by HVF, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted hereby or by the applicable Series Supplement and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined to be appropriate by the Authorized Officer executing such Indenture Notes, as evidenced by his execution of the Indenture Notes. All Indenture Notes of any Series of
2
Indenture Notes shall, except as specified in the applicable Series Supplement, be equally and ratably entitled as provided herein to the benefits hereof without preference, priority or distinction on account of the actual time or times of authentication and delivery, all in accordance with the terms and provisions of this Indenture and the applicable Series Supplement. The aggregate principal amount of Indenture Notes which may be authenticated and delivered under this Indenture is unlimited. The Indenture Notes of each Series of Indenture Notes shall be issued in the denominations set forth in the applicable Series Supplement.
Section 2.2. Notes Issuable in Series.
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Upon satisfaction of such conditions, the Trustee shall authenticate and deliver, as provided above, such Series of Indenture Notes upon execution thereof by HVF.
Section 2.3. Series Supplement for Each Series of Indenture Notes.
(a) In conjunction with the issuance of a new Series of Indenture Notes, the parties hereto shall execute a Series Supplement, which shall specify the relevant terms with respect to such new Series of Indenture Notes, which may include without limitation:
5
(ii) In the event any Segregated Series of Notes is issued, the related Series Supplement will provide that (A) the Servicer shall determine the Series-Specific Collateral for such Segregated Series of Notes, notify the Collateral Agent and Trustee with respect to such Series-Specific Collateral, and the Servicer, the Collateral Agent and the Trustee will identify the Series-Specific Collateral for such Segregated Series of Notes such that (x) the Series-Specific
6
Collateral will secure only the Segregated Series of Notes to which such Series-Specific Collateral is applicable, (y) the Indenture Noteholders with respect to any other Series of Indenture Notes will not be entitled to the benefit of such Series-Specific Collateral and (z) the Indenture Noteholders of such Segregated Series of Notes will not be entitled to the benefit of the Collateral or any Series-Specific Collateral securing other Segregated Series of Notes, (B) the Trustee will adjust the allocations and distributions to be made under the Indenture at the written direction of the Servicer so that the Indenture Noteholders with respect to the Segregated Series of Notes will be entitled to allocations and distributions arising solely from the Series-Specific Collateral related to such Segregated Series of Notes and the Noteholders will be entitled to allocations and distributions arising solely from the Collateral, (C) the Collateral Agent (and, to the extent that any collections from Series-Specific Collateral are subject to the like kind exchange program pursuant to the Master Exchange Agreement, the Intermediary) shall (x) establish and maintain a Segregated Collection Account (or, in the case of the Intermediary, Escrow Accounts) with respect to each Segregated Series of Notes or group of Segregated Series sharing in the same Series-Specific Collateral, into which collections on such Series-Specific Collateral will be deposited and (y) hold its lien encumbering the Collateral for the benefit of the Notes and hold its lien encumbering the Series-Specific Collateral for the benefit of the applicable Segregated Series of Notes, (D) the Indenture Noteholders of any Segregated Series of Notes, subject to the limitations contained in this Base Indenture and the applicable Series Supplement, will be entitled to direct the Trustee and the Collateral Agent in writing to exercise the remedies granted to such Segregated Series of Notes under the Indenture, the Collateral Agency Agreement and each other Related Document solely on behalf of such Segregated Series of Notes, (E) separate monthly reports and other information will be furnished under the Indenture to the holders of the Segregated Series of Notes for the Series-Specific Collateral, which monthly reports and other information will contain substantially the same type of information as the monthly reports provided under the Indenture to the Noteholders in respect of the Collateral prior to the issuance of such Segregated Series of Notes, (F) a Segregated Series Lease and, if applicable, separate collateral agency agreements and/or separate nominee agreements pertaining to the Series-Specific Collateral have been or will be entered into by the Issuer and each such document will be executed and delivered by Hertz, a title nominee, the Trustee and a collateral agent, as applicable, (G) to the extent specified in the Series Supplement for such Segregated Series of Notes, HVF and Hertz, as the case may be, will take such actions as are necessary to perfect (1) the interest of the Collateral Agent (or any other collateral agent designated by HVF) in the Series-Specific Collateral and (2) the Trustees interest on behalf of the Segregated Noteholders of such Segregated Series in the Series-Specific Collateral, (H) subject to Article XII , amendments will be made to this Indenture and the other Related Documents, if necessary, to reflect the foregoing, which amendments will, among other things, provide for revisions to the terms Aggregate Asset Amount, Collateral, Collection Account, Lease, Aggregate Asset Amount Deficiency, Limited Liquidation Event of Default, Liquidation Event of Default or Manufacturer Program, Collateral Agreements, Related Documents, Requisite Investors, Required Noteholders and such other terms as may be appropriate to reflect the creation of the Segregated Series, provided that any such amendment shall not have a material adverse effect (excluding any impact from the dilution of the percentage interests in the Collateral or voting percentage of the existing Indenture Noteholders as a result of such issuance) on the Indenture Noteholders of any Series of Indenture Notes Outstanding unless the Required Noteholders of such Series of Indenture Notes shall have given their prior written consent thereto (and, with
7
respect to each Series, the Trustee may conclusively rely on an Officers Certificate of HVF as sufficient evidence of such lack of a material adverse effect), (I) the relative rights and priorities with respect to the Series-Specific Collateral relating to such Segregated Series of Notes are adequately defined, (J) for purposes of the Segregated Series, terms that are defined both in the applicable Series Supplement and in the Definitions List, shall for purposes of such Series Supplement and the Base Indenture as it relates to such Segregated Series, have the meanings assigned to them in such Series Supplement and (K) provisions with respect to such Segregated Series of Notes will be incorporated which are substantially similar to those contained in Sections 3.2 , 3.3 , 3.4 and 3.5 and Articles 4 , 5 , 5A , 6 , 7 , 8 , 9 , 10 (other than 10.6(b)) and 13 .
Section 2.4. Execution and Authentication.
This is one of the Indenture Notes(1) of a Series of Indenture Notes issued under the within mentioned Indenture.
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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 |
(1) Indenture Notes may be replaced with Notes in the Authentication of a Note.
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The Trustee shall have the right to decline to authenticate and deliver any Indenture Notes under this Section 2.4 if the Trustee, based on the written advice of counsel, determines that such action may not lawfully be taken.
Section 2.5. Registrar and Paying Agent.
Section 2.6. Paying Agent to Hold Money in Trust.
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Section 2.7. Noteholder List.
The Trustee will furnish or cause to be furnished by the Registrar to HVF or the Paying Agent, within five Business Days after receipt by the Trustee of a request therefor from
10
HVF or the Paying Agent, respectively, in writing, a list in such form as HVF or the Paying Agent may reasonably require, of the names and addresses of the Indenture Noteholders of each Series of Indenture Notes as of the most recent Record Date for payments to such Indenture Noteholders. Unless otherwise provided in the applicable Series Supplement, holders of Indenture Notes of any Series of Indenture Notes having an aggregate Principal Amount of not less than 10% of the aggregate Principal Amount of such Series of Indenture Notes (the Applicants ) may apply in writing to the Trustee, and if such application states that the Applicants desire to communicate with other Indenture Noteholders of any Series of Indenture Notes with respect to their rights under this Indenture or under the Indenture Notes and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee, after having been adequately indemnified by such Applicants for its costs and expenses, shall afford or shall cause the Registrar to afford such Applicants access during normal business hours to the most recent list of Indenture Noteholders held by the Trustee and shall give HVF notice that such request has been made, within five Business Days after the receipt of such application. Such list shall be as of a date no more than 45 days prior to the date of receipt of such Applicants request. Every Indenture Noteholder, by receiving and holding an Indenture Note, agrees with the Trustee that neither the Trustee, the Registrar, nor any of their respective agents shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Indenture Noteholders hereunder, regardless of the source from which such information was obtained.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Indenture Noteholders of each Series of Indenture Notes. If the Trustee is not the Registrar, HVF shall furnish to the Trustee at least seven Business Days before each Payment Date and at such other time as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Indenture Noteholders of each Series of Indenture Notes.
Section 2.8. Transfer and Exchange.
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Section 2.9. Persons Deemed Owners.
Prior to due presentment for registration of transfer of any Indenture Note, the Trustee, any Agent and HVF may deem and treat the Person in whose name any Indenture Note is registered (as of the day of determination) as the absolute owner of such Indenture Note for the purpose of receiving payment of principal of and interest on such Indenture Note and for all other purposes whatsoever, whether or not such Indenture Note is overdue, and neither the Trustee, any Agent nor HVF shall be affected by notice to the contrary.
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Section 2.10. Replacement Notes.
Section 2.11. Treasury Notes.
In determining whether the Indenture Noteholders of the required Principal Amount of Indenture Notes have concurred in any direction, waiver or consent, Indenture Notes owned by HVF or any Affiliate of HVF (other than an Affiliate Issuer) shall be considered as though they are not Outstanding, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Indenture Notes of which a Trust Officer has received written notice of such ownership shall be so disregarded.
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Absent written notice to the Trustee of such ownership, the Trustee shall not be deemed to have knowledge of the identity of the individual owners of the Indenture Notes.
Section 2.12. Book-Entry Notes.
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Pursuant to the Depository Agreement applicable to a Series of Indenture Notes, unless and until Definitive Notes of such Series of Indenture Notes are issued pursuant to Section 2.13 , the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit distributions of principal and interest on the Indenture Notes to such Clearing Agency Participants.
Section 2.13. Definitive Notes.
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Section 2.14. Cancellation.
HVF may at any time deliver to the Trustee for cancellation any Indenture Notes previously authenticated and delivered hereunder which HVF may have acquired in any manner whatsoever, and all Indenture Notes so delivered shall be promptly cancelled by the Trustee. The Registrar and Paying Agent shall forward to the Trustee any Indenture Notes surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Indenture Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and the principal of and all accrued interest on all such cancelled Indenture Notes shall be deemed to have been paid in full (and such payment of principal and interest shall be deemed to have been made to the relevant Indenture Noteholders) and such cancelled Indenture Notes shall be deemed no longer to be outstanding for all purposes hereunder. HVF may not issue new Indenture Notes to replace Indenture Notes that it has redeemed or paid or that have been delivered to the Trustee for cancellation. All cancelled Indenture Notes held by the Trustee shall be disposed of in accordance with the Trustees standard disposition procedures unless HVF shall direct that cancelled Indenture Notes be returned to it pursuant to a Company Order.
Section 2.15. Principal and Interest.
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Section 2.16. Tax Treatment.
HVF has structured this Indenture and the Indenture Notes have been (or will be) issued with the intention that the Indenture Notes will qualify under applicable tax law as indebtedness and any entity acquiring any direct or indirect interest in any Indenture Note by acceptance of its Indenture Notes (or, in the case of a Note Owner, by virtue of such Note Owners acquisition of a beneficial interest therein) agrees to treat the Indenture Notes (or beneficial interests therein) for purposes of Federal, state and local and income or franchise taxes and any other tax imposed on or measured by income, as indebtedness.
Section 3.1. Grant of Security Interest.
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Section 3.2. Certain Rights and Obligations of HVF Unaffected.
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Section 3.3. Performance of Collateral Agreements.
Upon the occurrence of a default or breach by any Person party to a Collateral Agreement (other than any Collateral Agreement relating solely to a Segregated Series) or a Manufacturer Program, promptly following a request from the Trustee or the Collateral Agent to do so and at HVFs expense, HVF agrees to take all such lawful action as permitted under this Indenture as the Trustee or the Collateral Agent may request to compel or secure the performance and observance by: (i) the Hertz Nominee, the HFC Nominee, Hertz Vehicles LLC, HGI, the Administrator, the Servicer, the Lessee, the Intermediary or the Escrow Agent or any other party to any of the Collateral Agreements of its obligations to HVF, solely to the extent that such obligations relate to or otherwise affect the Collateral or the Note Obligations, and (ii) a Manufacturer under a Manufacturer Program of its obligations to HVF, solely to the extent that such obligations relate to or otherwise affect the Collateral, including, without limitation, any obligations of such Manufacturer to HGI or Hertz, as applicable, that have been assigned to HVF and constitute a part of the Collateral, in each case in accordance with the applicable terms thereof, and to exercise any and all rights, remedies, powers and privileges relating to the Collateral as are lawfully available to HVF to the extent and in the manner directed by the Trustee or the Collateral Agent, as applicable, including, without limitation, the transmission of notices of default and the institution of legal or administrative actions or proceedings to compel or secure performance by the Hertz Nominee, the HFC Nominee, Hertz Vehicles LLC, HGI, the Administrator, the Servicer, the Lessee, the Intermediary or the Escrow Agent (or such other party to any of the Collateral Agreements) or by a Manufacturer under a Manufacturer Program, of their respective obligations thereunder. If (i) HVF shall have failed, within 30 days of receiving such direction of the Trustee or the Collateral Agent, as applicable, to take commercially reasonable action to accomplish such directions of the Trustee or the Collateral Agent, as applicable, (ii) HVF refuses to take any such action or (iii) the Trustee or the Collateral Agent, as applicable, reasonably determines that such action must be taken immediately, in any such case the Trustee or the Collateral Agent, as applicable, may, but shall not be obligated to, take, at the expense of HVF, such previously directed action and any related action permitted under this Indenture, provided such action relates to the Collateral or the Note Obligations, which the Trustee or the Collateral Agent, as applicable, thereafter determines is appropriate (without the need under this provision or any other provision under this Indenture to direct HVF to take such action), on behalf of HVF and the Noteholders.
Section 3.4. Release of Indenture Collateral.
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Section 3.5. Opinions of Counsel.
The Trustee shall receive at least seven days notice when requested by HVF to take any action pursuant to Section 3.4(a) , accompanied by copies of any instruments involved, and the Trustee may also require as a condition of such action, an Opinion of Counsel, in form and substance reasonably satisfactory to the Trustee, stating the legal effect of any such action, outlining the steps required to complete the same, and concluding that all such action will not materially and adversely impair the security for the Indenture Notes or the rights of the Indenture Noteholders; provided , however that such Opinion of Counsel shall not be required to express an opinion as to the fair value of the Indenture Collateral. Counsel rendering any such opinion may rely, without independent investigation, on the accuracy and validity of any certificate or other instrument delivered to the Trustee in connection with any such action. For the avoidance of doubt, any action pursuant to Section 3.4(a) relating to the release of Series-Specific Collateral relating to a particular Segregated Series from the lien of this Indenture or the conveyance by the Trustee of its security interest in the same shall be deemed not to materially and adversely impair the security for any Notes or the rights of the Noteholders and shall be deemed not to materially and adversely impair the security for any other Segregated Series of Notes or the rights of the Segregated Noteholders of such other Segregated Series of Notes. For the avoidance of doubt, any action pursuant to Section 3.4(a) relating to the release of Collateral or the conveyance by the Trustee of its security interest in the same shall be deemed not to materially and adversely impair the security for any Segregated Notes or the rights of the Segregated Noteholders.
Section 3.6. Stamp, Other Similar Taxes and Filing Fees.
HVF shall indemnify and hold harmless the Trustee, the Collateral Agent and each Indenture Noteholder from any present or future claim for liability for any stamp or other similar tax and any penalties or interest with respect thereto, that may be assessed, levied or
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collected by any jurisdiction in connection with this Indenture (to the extent relating to such Indenture Notes, any Collateral or any Series-Specific Collateral). HVF shall pay any and all amounts in respect of, all search, filing, recording and registration fees, taxes, excise taxes and other similar imposts that may be payable or determined to be payable in respect of the execution, delivery, performance and/or enforcement of this Indenture.
Section 4.1. Reports and Instructions to Trustee.
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Section 4.2. Reports to Noteholders.
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Section 4.3. Rule 144A Information.
For so long as any of the Indenture Notes are restricted securities within the meaning of Rule 144(a)(3) under the Securities Act, HVF agrees to provide to any Indenture Noteholder or Note Owner and to any prospective purchaser of Indenture Notes designated by such Indenture Noteholder or Note Owner upon the request of such Indenture Noteholder or Note Owner or prospective purchaser, any information required to be provided to such holder or prospective purchaser to satisfy the conditions set forth in Rule 144A(d)(4) under the Securities Act.
Section 4.4. Administrator.
Pursuant to the Administration Agreement, the Administrator has agreed to provide certain reports, instructions and other services on behalf of HVF. The Indenture Noteholders by their acceptance of the Indenture Notes consent to the provision of such reports by the Administrator in lieu of HVF.
Section 5.1. Collection Account.
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S ection 5.2. Collections and Allocations.
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Notwithstanding the foregoing, (x) unless an Amortization Event with respect to any Series of Notes has occurred and is continuing, insurance proceeds and warranty payments with respect to the HVF Vehicles shall not be required to be deposited in a Collateral Account or the Collection Account, and may be held by HVF or paid to Hertz and (y) unless there has been a failure by HGI to make a payment to HVF on account of an Invoice Adjustment when due in accordance with Section 1.05(d) of the Purchase Agreement and such failure is continuing, payments by
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Manufacturers on account of such Invoice Adjustments shall not be required to be deposited in a Collateral Account or the Collection Account and may be held by HGI. HVF agrees that if any Collections shall be received by HVF in an account other than a Collateral Account, an HVF Exchange Account or the Collection Account or in any other manner, such monies, instruments, cash and other proceeds will not be commingled by HVF with any of its other funds or property, if any, but will be held separate and apart therefrom and shall be held in trust by HVF for, and immediately paid over to the Trustee or the Collateral Agent, as applicable, with any necessary endorsement. All Collections deposited into a Collateral Account shall be allocated and distributed to the Trustee as provided in the Collateral Agency Agreement. All monies, instruments, cash and other proceeds received by the Trustee pursuant to this Indenture (including amounts received from the Collateral Agent) shall be immediately deposited in the Collection Account or an HVF Exchange Account and shall be applied as provided in this Article 5 or Article 5A .
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Section 5.3. Determination of Monthly Interest.
Monthly payments of interest on each Series of Indenture Notes shall be determined, allocated and distributed in accordance with the procedures set forth in the applicable Series Supplement.
Section 5.4. Determination of Monthly Principal.
Monthly payments of principal of each Series of Indenture Notes shall be determined, allocated and distributed in accordance with the procedures set forth in the applicable Series Supplement. However, all principal of or interest on any Series of Indenture Notes shall be due and payable no later than the Series Termination Date with respect to such Series of Indenture Notes.
[THE REMAINDER OF ARTICLE 5 IS RESERVED AND MAY BE SPECIFIED IN ANY SUPPLEMENT WITH RESPECT TO ANY SERIES.]
ARTICLE 5A. HVF EXCHANGE ACCOUNT
Section 5A.1. HVF Exchange Account. On, prior to or after the Restatement Effective Date, the Trustee shall establish and maintain for the benefit of the Noteholders one or more HVF Exchange Accounts, each in the name of the Trustee or, prior to the date of termination of the Master Exchange Agreement pursuant to Section 7.01(b) thereof, the joint name of the Trustee and the Intermediary, that shall be administered and operated as provided in the Master Exchange Agreement. Each HVF Exchange Account shall be maintained (i) with a Qualified Institution or (ii) as a segregated trust account with a Qualified Trust Institution. If any HVF Exchange Account is not maintained in accordance with the previous sentence, then within ten (10) Business Days of obtaining knowledge of such fact, the Trustee and the Intermediary shall establish a new HVF Exchange Account which complies with such sentence and transfer into the new HVF Exchange Account all funds from the non-qualifying HVF Exchange Account. Initially, each HVF Exchange Account will be established with the Trustee.
Section 6.1. Distributions in General.
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Section 6.2. Optional Repurchase of Notes .
On or after the date (if any) set forth in the Series Supplement related to a Series of Notes, the Issuer shall have the option to purchase all Outstanding Notes of such Series, or class of such Series, at a purchase price set forth in such Series Supplement. Unless otherwise specified in the related Series Supplement, the Issuer shall give the Trustee at least 30 days prior written notice of the date on which the Issuer intends to exercise such option to purchase. Not later than 12:00 noon, New York City time, on the date set for purchase, an amount equal to the purchase price for the Notes of such Series will be deposited into the Collection Account for such Series in immediately available funds. The funds deposited into the Collection Account or distributed to the Trustee or the Paying Agent will be passed through in full to the Noteholders of such Series on such date.
HVF hereby represents and warrants, for the benefit of the Trustee and the Noteholders, as follows as of the Restatement Effective Date and each Series Closing Date:
Section 7.1. Existence and Power.
HVF (a) is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, (b) is duly qualified to do business as a foreign limited liability company and in good standing under the laws of each jurisdiction where the character of its property, the nature of its business or the performance of its obligations under the Related Documents make such qualification necessary, except to the extent that the failure to so qualify is not reasonably likely to result in a Material Adverse Effect, and (c) has all limited liability company powers and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and for purposes of the transactions contemplated by this Indenture and the other Related Documents.
Section 7.2. Limited Liability Company and Governmental Authorization.
The execution, delivery and performance by HVF of this Indenture, the applicable Series Supplement and the other Related Documents to which it is a party (a) is within HVFs limited liability company powers and has been duly authorized by all necessary limited liability company action, (b) requires no action by or in respect of, or filing with, any Governmental
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Authority which has not been obtained and (c) does not contravene, or constitute a default under, any Requirements of Law with respect to HVF or any Contractual Obligation with respect to HVF or result in the creation or imposition of any Lien on any property of HVF, except for Liens created by this Indenture or the other Related Documents. This Indenture and each of the other Related Documents to which HVF is a party has been executed and delivered by a duly authorized officer of HVF.
Section 7.3. No Consent.
No consent, action by or in respect of, approval or other authorization of, or registration, declaration or filing with, any Governmental Authority or other Person is required for the valid execution and delivery by HVF of this Base Indenture, any Series Supplement or any Related Documents or for the performance of any of HVFs obligations hereunder or thereunder other than such consents, approvals, authorizations, registrations, declarations or filings as shall have been obtained by HVF prior to the Restatement Effective Date or as contemplated in Section 7.13 .
Section 7.4. Binding Effect.
This Indenture and each other Related Document (other than any Related Document or portion thereof relating solely to any Segregated Series) is a legal, valid and binding obligation of HVF enforceable against HVF in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors rights generally or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing).
Section 7.5. Litigation.
There is no action, suit or proceeding pending against or, to the knowledge of HVF, threatened against or affecting HVF before any court or arbitrator or any Governmental Authority with respect to which there is a reasonable possibility of an adverse decision that would materially adversely affect the financial condition, business, assets or operations of HVF or which in any manner draws into question the validity or enforceability of this Indenture, any Series Supplement or any other Related Documents or the ability of HVF to perform its obligations hereunder or thereunder.
Section 7.6. No ERISA Plan.
HVF has not established and does not maintain or contribute to any Plan that is covered by Title IV of ERISA.
Section 7.7. Tax Filings and Expenses.
HVF has filed all federal, state and local tax returns and all other tax returns which, to the knowledge of HVF, are required to be filed (whether informational returns or not), and has paid all taxes due, if any, pursuant to said returns or pursuant to any assessment received by HVF, except such taxes, if any, as are being contested in good faith and for which adequate
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reserves have been set aside on its books. HVF has paid all fees and expenses required to be paid by it in connection with the conduct of its business, the maintenance of its existence and its qualification as a foreign limited liability company authorized to do business in each State in which it is required to so qualify, except to the extent that the failure to pay such fees and expenses is not reasonably likely to result in a Material Adverse Effect.
Section 7.8. Disclosure.
All certificates, reports, statements, documents and other information furnished to the Trustee by or on behalf of HVF pursuant to any provision of this Indenture or any Related Documents (other than any Related Document relating solely to any Segregated Series), or in connection with or pursuant to any amendment or modification of, or waiver under, this Indenture or any Related Documents (other than any Related Document relating solely to any Segregated Series), shall, at the time the same are so furnished, be complete and correct to the extent necessary to give the Trustee true and accurate knowledge of the subject matter thereof in all material respects, and the furnishing of the same to the Trustee shall constitute a representation and warranty by HVF made on the date the same are furnished to the Trustee to the effect specified herein.
Section 7.9. Investment Company Act.
HVF is not, and is not controlled by, an investment company within the meaning of, and is not required to register as an investment company under, the Investment Company Act.
Section 7.10. Regulations T, U and X.
The proceeds of the Indenture Notes will not be used to purchase or carry any margin stock (as defined or used in the regulations of the Board of Governors of the Federal Reserve System, including Regulations T, U and X thereof). HVF is not engaged in the business of extending credit for the purpose of purchasing or carrying any margin stock.
Section 7.11. Solvency.
Both before and after giving effect to the transactions contemplated by this Indenture and the other Related Documents, HVF is solvent within the meaning of the Bankruptcy Code and HVF is not the subject of any voluntary or involuntary case or proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy or insolvency law and no Event of Bankruptcy has occurred with respect to HVF.
Section 7.12. Ownership of Limited Liability Company Interests; Subsidiary.
All of the issued and outstanding limited liability company interests of HVF are owned by Hertz, all of which limited liability company interests have been validly issued, are fully paid and non-assessable and are owned of record by Hertz, free and clear of all Liens other than Permitted Liens; provided , however , that such limited liability company interests may be pledged to the ABL Collateral Agent pursuant to the ABL Guarantee and Collateral Agreement
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for the benefit of the secured parties thereunder. HVF has no subsidiaries and owns no capital stock of, or other equity interest in, any other Person, other than Hertz Vehicles LLC.
Section 7.13. Security Interests.
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Section 7.14. Related Documents.
The Collateral Agreements (other than any Collateral Agreement relating solely to any Segregated Series) are in full force and effect. There are no outstanding Servicer Defaults or Operating Lease Events of Default nor have events occurred which, with the giving of notice,
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the passage of time or both, would constitute a Servicer Default or Operating Lease Event of Default.
Section 7.15. [Reserved].
Section 7.16. Non-Existence of Other Agreements.
Other than as permitted by Section 8.22 , (i) HVF is not a party to any contract or agreement of any kind or nature and (ii) HVF is not subject to any material obligations or liabilities of any kind or nature in favor of any third party, including, without limitation, Contingent Obligations. HVF has not engaged in any activities since its formation (other than those incidental to its formation, the authorization and the issue of Indenture Notes, the execution of the Related Documents to which it is a party and the performance of the activities referred to in or contemplated by such agreements).
Section 7.17. Compliance with Contractual Obligations and Laws.
HVF is not (i) in violation of the HVF LLC Agreement, (ii) in violation of any Requirement of Law with respect to HVF or (iii) in violation of any Contractual Obligation with respect to HVF.
Section 7.18. Other Representations.
All representations and warranties of HVF made in each Related Document (other than any Related Document relating solely to any Segregated Series) to which it is a party are true and correct and are repeated herein as though fully set forth herein.
Section 8.1. Payment of Notes.
HVF shall pay the principal of (and premium, if any) and interest on the Notes when due pursuant to the provisions of this Indenture and any applicable Series Supplement. Principal and interest shall be considered paid on the date due if the Paying Agent holds on that date money designated for and sufficient to pay all principal and interest then due.
Section 8.2. Maintenance of Office or Agency.
HVF will maintain an office or agency (which may be an office of the Trustee, the Registrar or co-registrar) where Notes may be surrendered for registration of transfer or exchange, where notices and demands to or upon HVF in respect of the Notes and this Indenture may be served, and where, at any time when HVF is obligated to make a payment of principal of, and premium, if any, upon, the Notes, the Notes may be surrendered for payment. HVF will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time HVF shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office.
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HVF may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. HVF will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
HVF hereby designates the Corporate Trust Office as one such office or agency of HVF.
Section 8.3. Payment of Obligations.
HVF will pay and discharge, at or before maturity, all of its respective material obligations and liabilities, including, without limitation, tax liabilities and other governmental claims, except where the same may be contested in good faith by appropriate proceedings, and will maintain, in accordance with GAAP, reserves as appropriate for the accrual of any of the same.
Section 8.4. Conduct of Business and Maintenance of Existence.
HVF will maintain its existence as a limited liability company validly existing, and in good standing under the laws of the State of Delaware and duly qualified as a foreign limited liability company licensed under the laws of each state in which the failure to so qualify would be reasonably likely to result in a Material Adverse Effect.
Section 8.5. Compliance with Laws.
HVF will comply in all respects with all Requirements of Law with respect to HVF and all applicable laws, ordinances, rules, regulations, and requirements of Governmental Authorities except where the necessity of compliance therewith is contested in good faith by appropriate proceedings and where such noncompliance would not materially and adversely affect the business, financial condition, operations or properties of HVF or the ability of HVF to perform its obligations under this Indenture or under any other Related Documents to which it is a party; provided , however , such noncompliance will not result in a Lien (other than a Permitted Lien) on any of the Collateral.
Section 8.6. Inspection of Property, Books and Records.
HVF will keep proper books of record and account in which full, true and correct entries shall be made of all dealings and transactions, business and activities in accordance with GAAP. HVF will permit the Trustee or any Person appointed by it to act as its agent to visit and inspect any of its properties, to examine and make abstracts from any of its books and records and to discuss its affairs, finances and accounts with its officers, directors, employees and independent certified public accountants, all at such reasonable times upon reasonable notice and as often as may reasonably be requested.
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Section 8.7. Actions under the Collateral Agreements.
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Section 8.8. Notice of Defaults.
Promptly (and in any event within five (5) Business Days) upon becoming aware of (i) any Potential Amortization Event or Amortization Event with respect to any Series of Indenture Notes Outstanding, any Potential Operating Lease Event of Default, any Operating Lease Event of Default or any Servicer Default or (ii) any default under any other Collateral Agreement, any Related Documents or under any Manufacturer Program, HVF shall give the Trustee and the Rating Agencies with respect to each Series of Notes Outstanding notice thereof, together with an Officers Certificate of HVF setting forth the details thereof and any action with respect thereto taken or contemplated to be taken by HVF.
Section 8.9. Notice of Material Proceedings.
Promptly (and in any event within five (5) Business Days) upon becoming aware thereof, HVF shall give the Trustee and the Rating Agencies written notice of the commencement or existence of any proceeding by or before any Governmental Authority against or affecting HVF which is reasonably likely to have a material adverse effect on the financial condition, business, assets or operations of HVF or the ability of HVF to perform its obligations under this Indenture or under any other Related Documents to which it is a party.
Section 8.10. Further Requests.
HVF will promptly furnish to the Trustee such other information relating to the Notes as, and in such form as, the Trustee may reasonably request in connection with the transactions contemplated hereby or by any Series Supplement.
Section 8.11. Further Assurances.
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Section 8.12. Liens.
HVF will not create, incur, assume or permit to exist any Lien upon any of its property (including the Collateral), other than (i) Liens in favor of the Trustee for the benefit of the Indenture Noteholders and (ii) other Permitted Liens.
Section 8.13. Other Indebtedness.
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Section 8.14. No ERISA Plan.
HVF shall not establish or maintain or contribute to any Plan that is covered by Title IV of ERISA.
Section 8.15. Mergers.
HVF will not merge or consolidate with or into any other Person.
Section 8.16. Sales of Assets.
HVF will not sell, lease, transfer, liquidate or otherwise dispose of any of its property except as contemplated by the Related Documents.
Section 8.17. Acquisition of Assets.
HVF will not acquire, by long-term or operating lease or otherwise, any property except in accordance with the terms of the Related Documents.
Section 8.18. Dividends, Officers Compensation, etc.
HVF will not declare or pay any distributions on any of its limited liability company interests; provided , however , that so long as no Amortization Event or Potential Amortization Event has occurred and is continuing with respect to any Series of Notes Outstanding or would result therefrom, HVF may declare and pay distributions to the extent permitted under Section 18-607 of the Delaware Limited Liability Company Act. HVF will not pay any wages or salaries or other compensation to its officers, directors, employees or others except out of earnings computed in accordance with GAAP.
Section 8.19. Legal Name; Location Under Section 9-301.
HVF will neither change its location (within the meaning of Section 9-301 of the applicable UCC) or its legal name without at least 30 days prior written notice to the Trustee and the Collateral Agent. In the event that HVF desires to so change its location or change its legal name, HVF will make any required filings and prior to actually changing its location or its legal name HVF will deliver to the Trustee and the Collateral Agent (i) an Officers Certificate of HVF and an Opinion of Counsel confirming that all required filings have been made to continue the perfected interest of the Trustee on behalf of the Noteholders in the Indenture Collateral and the perfected interest of the Collateral Agent in the HVF Vehicle Collateral in
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respect of the new location or new legal name of HVF and (ii) copies of all such required filings with the filing information duly noted thereon by the office in which such filings were made.
Section 8.20. HVF LLC Agreement.
HVF will not amend the HVF LLC Agreement or its certificate of formation unless, prior to such amendment, the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding shall have been satisfied with respect to such amendment.
Section 8.21. Investments.
HVF will not make, incur, or suffer to exist any loan, advance, extension of credit or other investment in any Person other than in accordance with the Related Documents and, in addition, without limiting the generality of the foregoing, HVF will not direct the investment of funds in the Collection Account or any HVF Exchange Account in a manner that would have the effect of causing HVF to be an investment company within the meaning of the Investment Company Act.
Section 8.22. No Other Agreements.
HVF will not enter into or be a party to any agreement or instrument other than any Related Document, as the same may be amended, modified or supplemented from time to time, any documents related to any Enhancement or any documents and agreements incidental or related thereto.
Section 8.23. Other Business.
HVF will not engage in any business or enterprise or enter into any transaction other than the acquisition, financing, leasing and disposition of the HVF Vehicles and HVF Segregated Vehicles pursuant to the Related Documents, the related exercise of its rights thereunder, the borrowing of funds under the HVF Credit Facility, the incurrence and payment of ordinary course operating expenses, the issuing and selling of the Indenture Notes and other activities related to or incidental to any of the foregoing.
Section 8.24. Maintenance of Separate Existence.
HVF will:
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Section 8.25. Manufacturer Programs.
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Section 8.26. Disposition of HVF Vehicles.
Section 8.27. Insurance.
HVF will obtain and maintain, or cause to be obtained and maintained, with respect to the HVF Vehicles (i) comprehensive public liability and property damage protection in respect of the possession, condition, maintenance, operation and use of the HVF Vehicles, in the amount required to meet the minimum financial responsibility requirements mandated by applicable state law for each occurrence and (ii) catastrophic physical damage insurance, in an amount not less than $50,000,000; provided, however that HVF may rely on the Indemnification Agreement in lieu of obtaining and maintaining the insurance required by clauses (i) and (ii) hereof for so long as the Lessee is permitted to self-insure by applicable law. All insurance policies (to the extent that such policies relate to Vehicles with respect to which the Collateral Agent is the lienholder pursuant to the Collateral Agency Agreement) obtained pursuant to this Section 8.27 shall name the Collateral Agent as a loss payee as its interest may appear. HVF shall provide that the Trustee and the Collateral Agent will receive at least 30 days prior written notice of any change or cancellation of such insurance policies or arrangements. Any
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insurance, as opposed to self-insurance, obtained by HVF shall be obtained from a Qualified Insurer only.
Section 9.1. Amortization Events.
If any one of the following events shall occur during the Revolving Period, the Accumulation Period or the Controlled Amortization Period with respect to any Series of Notes (each, an Amortization Event ):
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then (i) in the case of any event described in clause (f) , (g) , (h) , (i) or (j) above (with respect to clause (j) above, only to the extent such Amortization Event is subject to waiver as set forth in the applicable Series Supplement), either the Trustee, by written notice to HVF, or the Required Noteholders of the applicable Series of Notes, by written notice to HVF and the Trustee, may declare that an Amortization Event has occurred with respect to such Series of Notes as of the date of the notice or (ii) in the case of any event described in clause (a) , (b) , (c) , (d) or (e) above, an Amortization Event with respect to all Series of Notes then outstanding shall immediately occur without any notice or other action on the part of the Trustee or any Noteholder or (iii) in the case of any event described in clause (j) above (only to the extent such Amortization Event is not subject to waiver as set forth in the applicable Series Supplement), an Amortization Event with respect to the related Series of Notes shall immediately occur without any notice or other action on the part of the Trustee or any Noteholder; provided , that, the events described in clauses (a) through (i) above shall not cause an Amortization Event to occur with respect to any Segregated Series of Notes (unless otherwise specified in the Series Supplement for any such Segregated Series).
Section 9.2. Rights of the Trustee upon Amortization Event or Certain Other Events of Default.
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Section 9.3. Other Remedies.
Subject to the terms and conditions of this Indenture, if an Amortization Event occurs and is continuing (other than any Amortization Event relating solely to any Segregated Series of Notes), the Trustee may pursue any remedy available to it on behalf of the Noteholders under applicable law or in equity to collect the payment of principal of or interest on the Notes of each Series of Notes (or the applicable Series of Notes, in the case of an Amortization Event that affects less than all Series of Notes) or to enforce the performance of any provision of such Notes, this Indenture or any Series Supplement with respect such Series of Notes. In addition, the Trustee may, or shall at the written direction of the Requisite Investors (or the Required Noteholders of one or more Series of Notes, in the case of an Amortization Event that affects only such Series of Notes), direct the Collateral Agent or HVF to exercise any rights or remedies available under any Related Documents (other than any Related Document relating solely to any Segregated Series of Notes) or under applicable law or in equity with respect to that Series of Notes, in each case to the extent relating to the Collateral or the Note Obligations; provided that any such actions shall not adversely affect in any material respect the interests of the Noteholders of any Notes Outstanding with respect to which no Amortization Event shall have occurred and shall not adversely affect in any material respect the interests of the Segregated Noteholders of any Segregated Series of Notes Outstanding.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding, and any such proceeding instituted by the Trustee shall be in its own name as trustee. All remedies are cumulative to the extent permitted by law.
Section 9.4. Waiver of Past Events.
Subject to Section 12.2 , the Noteholders of any Series of Notes owning an aggregate Principal Amount of Notes in excess of 66 2/3% of the aggregate Principal Amount of the Outstanding Notes of such Series, by notice to the Trustee, may waive any existing Potential
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Amortization Event or Amortization Event described in clause (f) , (g) , (h) , (i) or (j) of Section 9.1 (with respect to clause (j) , only to the extent subject to waiver as provided in the applicable Series Supplement) which relate to such Series and its consequences. Upon any such waiver, such Potential Amortization Event shall cease to exist with respect to such Series, and any Amortization Event with respect to such Series arising therefrom shall be deemed to have been cured for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other Potential Amortization Event or impair any right consequent thereon. A Potential Amortization Event or an Amortization Event described in clause (a) , (b) , (c) , (d) , (e) or (j) of Section 9.1 (with respect to clause (j) , only to the extent not subject to waiver as set forth in the applicable Series Supplement) shall not be subject to waiver. The Trustee shall provide notice to each Rating Agency of any waiver by the Noteholders of any Series pursuant to Section 9.4 . The provisions relating to the waiver of Amortization Events and Potential Amortization Events with respect to any Segregated Series shall be set forth in the related Segregated Series Supplement.
Section 9.5. Control by Requisite Investors.
The Requisite Investors (or, to the extent such remedy relates only to a particular Series of Notes, the Required Noteholders of such Series) may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee on behalf of the Noteholders or exercising any trust or power conferred on the Trustee. However, subject to Section 10.1 , the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of other Indenture Noteholders, or that may involve the Trustee in personal liability.
Section 9.6. Limitation on Suits.
Any other provision of this Indenture to the contrary notwithstanding, an Indenture Noteholder may pursue a remedy with respect to this Indenture or the Indenture Notes of such Series of Indenture Notes only if:
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An Indenture Noteholder may not use this Indenture to prejudice the rights of another Indenture Noteholder or to obtain a preference or priority over another Indenture Noteholder.
Section 9.7. Unconditional Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Indenture Noteholder of an Indenture Note to receive payment of principal of and interest on the Indenture Note, on or after the respective due dates expressed in the Indenture Note, or to bring suit for the enforcement of any such payment on or after such respective dates, is absolute and unconditional and shall not be impaired or affected without the consent of the Indenture Noteholder (it being understood that Noteholders have consented to the limitations of their rights with respect to the Series-Specific Collateral as set forth herein and the Segregated Noteholders of each Segregated Series of Notes have consented to the limitation of their rights with respect to the Collateral and Series-Specific Collateral securing any other Segregated Series of Notes as set forth herein).
Section 9.8. Collection Suit by the Trustee.
If any Amortization Event arising from the failure to make a payment in respect of a Series of Notes occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against HVF for the whole amount of principal and interest remaining unpaid on the Notes of such Series and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; provided , that the Trustee shall not be permitted to recover such a judgment from any Series-Specific Collateral.
Section 9.9. The Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Noteholders relating to the Collateral or the Note Obligations allowed in any judicial proceedings relative to HVF (or any other obligor upon the Notes), its creditors or its property, and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claim and any custodian in any such judicial proceeding is hereby authorized by each Noteholder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to such Noteholders, to pay the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 10.5 . To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 10.5 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money and other properties which such Noteholders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any
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such Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes of any Noteholder or the rights of any such Noteholder thereof, or to authorize the Trustee to vote in respect of the claim of any such Noteholder in any such proceeding.
Section 9.10. Priorities.
If the Trustee collects any money pursuant to this Article, the Trustee shall pay out the money in accordance with the provisions of Article 5 .
Section 9.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of any undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by an Indenture Noteholder pursuant to Section 9.7 , or a suit by Indenture Noteholders of more than 10% of the aggregate Principal Amount of all then Outstanding Indenture Notes.
Section 9.12. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Trustee or to the holders of Indenture Notes is intended to be exclusive of any other right or remedy, and every right or remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given under this Indenture or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy under this Indenture, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 9.13. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any holder of any Indenture Note to exercise any right or remedy accruing upon any Amortization Event shall impair any such right or remedy or constitute a waiver of any such Amortization Event or an acquiescence therein. Every right and remedy given by this Article 9 or by law to the Trustee or to the holders of Indenture Notes may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the holders of Indenture Notes, as the case may be.
Section 9.14. Reassignment of Surplus.
After termination of this Indenture and the payment in full of the Note Obligations, any proceeds of the Collateral received or held by the Trustee shall be turned over to HVF and the Indenture Collateral shall be reassigned to HVF by the Trustee without recourse to the Trustee and without any representations, warranties or agreements of any kind.
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Section 10.1. Duties of the Trustee.
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Section 10.2. Rights of the Trustee.
Except as otherwise provided by Section 10.1 :
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Section 10.3. Individual Rights of the Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Indenture Notes and may otherwise deal with HVF or an Affiliate of HVF with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
Section 10.4. Notice of Amortization Events and Potential Amortization Events.
If an Amortization Event or a Potential Amortization Event with respect to any Series of Indenture Notes Outstanding occurs and is continuing of which a Trust Officer shall have received written notice, the Trustee shall promptly (and in any event within five (5) Business Days) provide the Noteholders, HVF and each Rating Agency with notice of such Amortization Event or Potential Amortization Event, to the extent that the Notes of such Series are Book-Entry Notes, by telephone and facsimile and otherwise by first class mail.
Section 10.5. Compensation.
Section 10.6. Replacement of the Trustee.
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If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for any reason, HVF shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Requisite Indenture Investors and Requisite Investors, acting together, may appoint a successor Trustee to replace the successor Trustee appointed by HVF.
Section 10.7. Successor Trustee by Merger, etc.
Subject to Section 10.8 , if the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.
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Section 10.8. Eligibility Disqualification.
Section 10.9. Appointment of Co-Trustee or Separate Trustee.
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Section 10.10. Representations and Warranties of Trustee.
The Trustee represents and warrants to HVF and the Indenture Noteholders that:
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Section 10.11. HVF Indemnification of the Trustee.
HVF shall indemnify and hold harmless the Trustee or any predecessor Trustee and their respective directors, officers, agents and employees from and against any loss, liability, claim, expense (including taxes, other than taxes based upon, measured by or determined by the income of the Trustee or such predecessor Trustee), damage or injury suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising out of or in connection with the activities of the Trustee or such predecessor Trustee pursuant to this Indenture or any Series Supplement, including but not limited to any judgment, award, settlement, reasonable attorneys fees and other costs or expenses reasonably incurred in connection with the defense of any actual or threatened action, proceeding, claim (whether asserted by HVF or any Indenture Noteholder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section 10.11 ; provided , however , that HVF shall not indemnify the Trustee, any predecessor Trustee or their respective directors, officers, employees or agents if such acts, omissions or alleged acts or omissions constitute bad faith or negligence by the Trustee or such predecessor Trustee, as the case may be. The indemnity provided herein shall survive the termination of this Indenture and the resignation and removal of the Trustee.
Section 11.1. Termination of HVFs Obligations.
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Then, this Indenture shall cease to be of further effect (except as provided in this Section 11.1 ), and the Trustee, on demand of HVF, shall execute proper instruments acknowledging confirmation of and discharge under this Indenture.
In order to have money available on a payment date to pay principal or interest on the Indenture Notes, the U.S. Government Obligations shall be payable as to principal or interest at least one Business Day before such payment date in such amounts as will provide the necessary money. U.S. Government Obligations shall not be callable at the issuers option.
Section 11.2. Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and HVF shall hold in trust money or U.S. Government Obligations deposited with it pursuant to Section 11.1. The Trustee shall apply the deposited money and the money from U.S. Government Obligations through the Paying Agent in accordance with this Indenture to the payment of principal and interest on the Indenture Notes. The provisions of this Section 11.2 shall survive the expiration or earlier termination of this Indenture.
Section 11.3. Repayment to HVF.
The Trustee and the Paying Agent shall promptly pay to HVF upon written request any excess money or, pursuant to Sections 2.10 and 2.14 , return any Indenture Notes held by them at any time.
Subject to Section 2.6(c) , the Trustee and the Paying Agent shall pay to HVF upon written request any money held by them for the payment of principal or interest that remains unclaimed for two years after the date upon which such payment shall have become due.
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The provisions of this Section 11.3 shall survive the expiration or earlier termination of this Indenture.
Section 12.1. Without Consent of the Noteholders.
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provided , however , that, as evidenced by an Officers Certificate of HVF, such action shall not adversely affect in any material respect the interests of any Indenture Noteholder or Enhancement Provider.
Section 12.2. With Consent of the Noteholders.
(a) Except as provided in Section 12.1 , the provisions of this Indenture and any Series Supplement (unless otherwise provided in such Series Supplement) may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to in writing by HVF, the Trustee and the Requisite Indenture Investors (or the Required Noteholders of a Series of Indenture Notes, in respect of any amendment, modification or waiver to the Series Supplement with respect to such Series of Indenture Notes or any amendment, modification or waiver to the Indenture which materially adversely affects only the Indenture Noteholders of such Series of Indenture Notes and does not materially adversely affect the Indenture Noteholders of any other Series of Indenture Notes, as substantiated by an Officers Certificate of HVF to such effect); provided , that the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding shall have been satisfied with respect to each such amendment or modification; provided , further that (i) any amendment, modification or waiver of this Indenture that materially and adversely affects only the Notes, as evidenced by an Officers Certificate of HVF, shall require the consent of the Requisite Investors rather than the Requisite Indenture Investors; (ii) this Indenture may be amended by HVF without the consent of any Indenture Noteholders for the purpose of amending the definition of the term Ineligible Non-Investment Grade Manufacturer Receivable Amount; and (iii) HVF shall be permitted to issue any Subordinated Series of Indenture Notes and effect any amendments hereto reasonably necessary to effect such issuance without the consent of any Indenture Noteholder (other than the Required Noteholders of each such previously issued subordinated Series of Indenture Notes); provided that the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding shall have been satisfied with respect to such issuance of such Subordinated Series of Indenture Notes and that each such Subordinated Series of Indenture Notes shall be deemed to be subordinated in all material respects to each Segregated Series of Notes.
(b) Notwithstanding the foregoing (but subject to the first proviso in the immediately preceding sentence):
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(c) No failure or delay on the part of any Indenture Noteholder or the Trustee in exercising any power or right under this Indenture or any other Related Document 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.
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Section 12.3. Supplements and Amendments.
Each amendment or other modification to this Indenture or the Indenture Notes shall be set forth in a Supplement. The initial effectiveness of each Supplement shall be subject to the satisfaction of the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding and the delivery to the Trustee of an Opinion of Counsel that such Supplement is authorized by this Indenture and the conditions precedent set forth herein and in such Series Supplement with respect thereto have been satisfied. In addition to the manner provided in Sections 12.1 and 12.2 , each Series Supplement may be amended as provided in such Series Supplement.
Section 12.4. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by an Indenture Noteholder of an Indenture Note is a continuing consent by the Indenture Noteholder and every subsequent Indenture Noteholder of an Indenture Note or portion of an Indenture Note that evidences the same debt as the consenting Indenture Noteholders Indenture Note, even if notation of the consent is not made on any Indenture Note. However, any such Indenture Noteholder or subsequent Indenture Noteholder may revoke the consent as to his Indenture Note or portion of an Indenture Note if the Trustee receives written notice of revocation before the date the amendment or waiver becomes effective. An amendment or waiver becomes effective in accordance with its terms and thereafter binds every Indenture Noteholder. HVF may fix a record date for determining which Indenture Noteholders must consent to such amendment or waiver.
Section 12.5. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment or waiver on any Indenture Note thereafter authenticated. HVF, in exchange for all Indenture Notes, may issue and the Trustee shall authenticate new Indenture Notes that reflect the amendment or waiver. Failure to make the appropriate notation or issue a new Indenture Note shall not affect the validity and effect of such amendment or waiver.
Section 12.6. The Trustee to Sign Amendments, etc.
The Trustee shall sign any Supplement authorized pursuant to this Article 12 if the Supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing such Supplement, the Trustee shall be entitled to receive, if requested, an indemnity reasonably satisfactory to it and to receive and, subject to Section 10.1 , shall be fully protected in relying upon, an Officers Certificate of HVF and an Opinion of Counsel as conclusive evidence that such Supplement is authorized or permitted by this Indenture and that all conditions precedent have been satisfied, and that it will be valid and binding upon HVF in accordance with its terms.
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Section 13.1. Notices.
If to an Enhancement Provider, at the address provided in the applicable Enhancement Agreement.
HVF or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications; provided , however , HVF may not at any time designate more than a total of three (3) addresses to which notices must be sent in order to be effective.
Any notice (i) given in person shall be deemed delivered on the date of delivery of such notice, (ii) given by first class mail shall be deemed given five (5) days after the date that
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such notice is mailed, (iii) delivered by telex or telecopier shall be deemed given on the date of delivery of such notice, and (iv) delivered by overnight air courier shall be deemed delivered one Business Day after the date that such notice is delivered to such overnight courier.
Notwithstanding any provisions of this Indenture to the contrary, the Trustee shall have no liability based upon or arising from the failure to receive any notice required by or relating to this Indenture or the Indenture Notes.
If HVF mails a notice or communication to Indenture Noteholders, it shall mail a copy to the Trustee at the same time.
In the case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made that is satisfactory to the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 13.2. Communication by Noteholders With Other Noteholders.
Indenture Noteholders may communicate with other Indenture Noteholders with respect to their rights under this Indenture or the Indenture Notes.
Section 13.3. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by HVF to the Trustee to take any action under this Indenture, HVF shall furnish to the Trustee an Officers Certificate of HVF in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 13.4 ) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with.
Section 13.4. Statements Required in Certificate.
Each certificate with respect to compliance with a condition or covenant provided for in this Indenture shall include:
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Section 13.5. Rules by the Trustee.
The Trustee may make reasonable rules for action by or at a meeting of Indenture Noteholders.
Section 13.6. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One signed copy is enough to prove this Indenture.
Section 13.7. Benefits of Indenture.
Except as set forth in a Series Supplement, nothing in this Indenture or in the Indenture Notes, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Indenture Noteholders, any benefit or any legal or equitable right, remedy or claim under the Indenture.
Section 13.8. Payment on Business Day.
In any case where any Payment Date, redemption date or maturity date of any Indenture Note shall not be a Business Day, then (notwithstanding any other provision of this Indenture) payment of interest or principal (and premium, if any), as the case may be, need not be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on the Payment Date, redemption date, or maturity date; provided , however . that no interest shall accrue for the period from and after such Payment Date, redemption date, or maturity date, as the case may be.
Section 13.9. Governing Law.
THIS INDENTURE, AND ALL MATTERS ARISING FROM OR IN ANY MANNER RELATING TO THIS INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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Section 13.10. Successors.
All agreements of HVF in this Indenture and the Indenture Notes shall bind its successor; provided , however , except as provided in Section 12.2(b)(iii) , HVF may not assign its obligations or rights under this Indenture or any Related Document (other than any Related Document or, in the case of collateral assignments, portion thereof relating solely to a Segregated Series of Notes). All agreements of the Trustee in this Indenture shall bind its successor.
Section 13.11. Severability.
In case any provision in this Indenture or in the Indenture Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 13.13. Table of Contents, Headings, etc.
The Table of Contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 13.14. Termination; Indenture Collateral.
This Indenture, and any grants, pledges and assignments hereunder, shall become effective concurrently with the issuance of the first Series of Indenture Notes and shall terminate when (a) all Note Obligations and all similar obligations with respect to each Segregated Series of Notes shall have been fully paid and satisfied, (b) the obligations of each Enhancement Provider under any Enhancement and Related Documents have terminated, and (c) any Enhancement shall have terminated, at which time the Trustee, at the request of HVF and upon receipt of an Officers Certificate of HVF to the effect that the conditions in clauses (a) , (b) and (c) above have been complied with and upon receipt of a certificate from the Trustee and each Enhancement Provider to the effect that the conditions in clauses (a) , (b) and (c) above have been complied with, shall reassign (without recourse upon, or any warranty whatsoever by, the Trustee) and deliver all Indenture Collateral and documents then in the custody or possession of the Trustee promptly to HVF.
HVF and the Indenture Noteholders hereby agree that, if any funds remain on deposit in the Collection Account on any date on which no Series of Notes is Outstanding or each Series Supplement related to a Series of Notes has been terminated, such amounts shall be released by the Trustee and paid to HVF.
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Section 13.15. No Bankruptcy Petition Against HVF.
Each of the Indenture Noteholders and the Trustee hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of the latest maturing Indenture Note, it will not institute against, or join with, encourage or cooperate with any other Person in instituting, against HVF, Hertz Vehicles LLC, HGI or the Intermediary any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any Federal or state bankruptcy or similar law; provided , however , that nothing in this Section 13.15 shall constitute a waiver of any right to indemnification, reimbursement or other payment from HVF pursuant to this Indenture. In the event that any such Indenture Noteholder or the Trustee takes action in violation of this Section 13.15 , HVF, Hertz Vehicles LLC, HGI or the Intermediary, as the case may be, shall file or cause to be filed an answer with the bankruptcy court or otherwise properly contesting the filing of such a petition by any such Indenture Noteholder or the Trustee against HVF, Hertz Vehicles LLC, HGI or the Intermediary, as the case may be, or the commencement of such action and raising the defense that such Indenture Noteholder or the Trustee 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 13.15 shall survive the termination of this Indenture, and the resignation or removal of the Trustee. Nothing contained herein shall preclude participation by any Indenture Noteholder or the Trustee in the assertion or defense of its claims in any such proceeding involving HVF, Hertz Vehicles LLC, HGI or the Intermediary.
Section 13.16. No Recourse.
The obligations of HVF under this Indenture are solely the obligations of HVF. No recourse shall be had for the payment of any amount owing in respect of any fee hereunder or any other obligation or claim arising out of or based upon this Indenture against any member, employee, officer or director of HVF. Fees, expenses, costs or other obligations payable by HVF hereunder shall be payable by HVF to the extent and only to the extent that HVF is reimbursed therefor pursuant to any of the Related Documents, or funds are then available or thereafter become available for such purpose pursuant to Article 5 . In the event that HVF is not reimbursed for such fees, expenses, costs or other obligations or that sufficient funds are not available for their payment pursuant to Article 5 , the excess unpaid amount of such fees, expenses, costs or other obligations shall in no event constitute a claim (as defined in Section 101 of the Bankruptcy Code) against, or corporate obligation of, HVF. Nothing in this Section 13.16 shall be construed to limit the Trustee from exercising its rights hereunder with respect to the Collateral.
Section 13.17. Notice of Successor Manufacturers . HVF shall notify Standard & Poors of any consolidation, merger or transfer of all or substantially all the business of any Eligible Manufacturer which results in any successor to such Eligible Manufacturer within sixty (60) days of obtaining knowledge thereof.
Section 13.18. Waiver of Jury Trial.
EACH OF HVF AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
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AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE INDENTURE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the Trustee and HVF have caused this Indenture to be duly executed by their respective duly authorized officers as of the day and year first written above.
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HERTZ VEHICLE FINANCING LLC, |
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as Issuer |
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By: |
/s/ R. Scott Massengill |
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Name: R. Scott Massengill |
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Title: Vice President & Treasurer |
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THE
BANK OF NEW YORK MELLON TRUST
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as Trustee |
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By: |
/s/ John D. Ask |
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Name: John D. Ask |
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Title: Senior Associate |
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SCHEDULE 1
TO THE
AMENDED AND RESTATED
BASE INDENTURE
DEFINITIONS LIST
ABL Collateral Agent means Deutsche Bank AG, New York Branch, in its capacity as Collateral Agent under the ABL Guarantee and Collateral Agreement.
ABL Guarantee and Collateral Agreement means that certain Guarantee and Collateral Agreement, dated as of December 21, 2005, by and among, Hertz, certain of its subsidiaries, CCMG Corporation, and Deutsche Bank AG, New York Branch, as collateral agent.
Account Collateral means HVFs right, title and interest in, to and under all of the assets, property and interests in property, whether now owned or hereafter acquired or created, in Section 3.1(a)(ii) and (iii) of this Base Indenture.
Accrued Amounts means, with respect to any Series of Notes (or any class of such Series of Notes), the amount, if any, specified in the applicable Series Supplement.
Accumulation Period means, with respect to any Series of Notes, the period, if any, specified in the applicable Supplement.
Acquisition Date the date on which CCMG Acquisition, Corporation , a company formed by Clayton Dubilier & Rice, Inc., The Carlyle Group, and Merrill Lynch Global Partners, Inc. or an affiliate thereof consummates the acquisition of Hertz, directly or through one or more subsidiaries.
Additional Subsidies has the meaning specified in Section 1.1 of the Master Exchange Agreement.
Adjusted Aggregate Asset Amount with respect to any Series of Notes, has the meaning specified in the applicable Series Supplement.
Administration Agreement means the Amended and Restated Administration Agreement, dated as of the Restatement Effective Date, by and among the Administrator, HVF and the Trustee, as amended, modified or supplemented from time to time in accordance with its terms.
Administrator means Hertz, in its capacity as the administrator under the Administration Agreement, or any successor Administrator thereunder.
Administrator Default means any of the events described in Section 8(d) of the Administration Agreement.
Affiliate means, with respect to any specified Person, another Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the Person specified. For purposes of this definition, control means the power to direct the management and policies of a Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and controlled and controlling have meanings correlative to the foregoing.
Affiliate Issuer means any special purpose entity that is an Affiliate of Hertz that has entered into financing arrangements secured by one or more Series of Indenture Notes.
Agent means any Registrar or Paying Agent.
Aggregate Asset Amount means, as of any date, the amount equal to the sum, rounded to the nearest $100,000, of (i) the Net Book Value of all 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 Net Book Value of all Non-Program Vehicles that are Eligible Vehicles as of such date not sold or deemed to be sold under the Related Documents, plus (iii) 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 with respect to Vehicles that are Eligible Vehicles and Eligible Program Vehicles when turned in to and accepted by such Manufacturers or delivered and accepted for Auction, plus (iv) 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 with respect to Vehicles that were Eligible Vehicles but not Eligible Program Vehicles when turned in to and accepted by such Manufacturers or delivered and accepted for Auction, plus (v) with respect to Eligible Vehicles that have been delivered and accepted for Auction pursuant to a Manufacturer Program, all amounts receivable (other than amounts specified in clauses (iii) and (iv) above) from any Person in connection with the Auction of such Eligible Vehicles as of such date, plus (vi) with respect to Eligible Vehicles that have been turned in to and accepted by the Manufacturer, delivered and accepted for Auction or otherwise sold, any accrued and unpaid Casualty Payments or Termination Payments with respect to such Eligible Vehicles as of such date under the HVF Lease, plus (vii) with respect to Eligible Vehicles that have been turned in to and accepted by the 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 (iii), (iv), (v) and (vi) above), plus (viii) with respect to Rejected Vehicles that were New HVF Vehicles at the time of rejection, the amount due and payable as of such date by HGI to HVF pursuant to Section 1.05(b) of the Purchase Agreement, plus (ix) with respect to Eligible Vehicles that were 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 (x) 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 have not been turned in to and accepted by the Manufacturer thereof pursuant to
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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, plus (xi) the amount of cash and Permitted Investments on deposit in the Collection Account and the amount of cash and Permitted Investments on deposit in the HVF Exchange Accounts relating to HVF Vehicles, minus (xii) any Ineligible Asset Amount on such date.
Aggregate Asset Amount Deficiency means, with respect to any date of determination, the amount, if any, by which the Aggregate Required Asset Amount on such date exceeds the Aggregate Asset Amount on such date.
Aggregate Indenture Principal Amount means, the sum of (a) the Aggregate Principal Amount, (b) the sum of the Principal Amounts with respect to all Segregated Series of Notes then Outstanding and (c) the sum of the unutilized purchase commitments of the Committed Purchasers (excluding, for the purposes of making the foregoing calculation, any Indenture Notes held by any Affiliate of Hertz (other than a Committed Purchaser or an Affiliate Issuer)).
Aggregate Principal Amount means the sum of the Principal Amounts with respect to all Series of Notes then Outstanding.
Aggregate Required Asset Amount means, on any date of determination, the sum of the Required Asset Amount with respect to each Series of Notes Outstanding on such date.
Amortization Commencement Date means, with respect to a Series of Notes, the date on which an Amortization Event for such Series is deemed to have occurred pursuant to Section 9.1 of the Base Indenture.
Amortization Event with respect to each Series of Notes, has the meaning specified in Section 9.1 of the Base Indenture.
Amortization Period means, with respect to any Series of Notes, the period following the Revolving Period which shall be the Accumulation Period, the Controlled Amortization Period or the Rapid Amortization Period, each as defined in the applicable Series Supplement.
Annual Noteholders Tax Statement has the meaning specified in Section 4.2(b) of the Base Indenture.
Applicants has the meaning specified in Section 2.7 of the Base Indenture.
Assignment Agreement means the agreement with respect to each Manufacturer and its Manufacturer Program, entered into or to be entered into among Hertz, HGI, HVF and the Collateral Agent and acknowledged by such Manufacturer, (a) (x) (i) assigning to HGI certain of Hertzs rights, title and interest in and to such Manufacturers Manufacturer Program as such rights, title and interest relate to passenger automobiles and light-duty trucks purchased and to be purchased by HGI from such Manufacturer under such Manufacturer Program and (ii) assigning from HGI to HVF those rights, title and interest as they relate to passenger automobiles and
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light-duty trucks purchased by HVF from HGI pursuant to the Purchase Agreement, (y) in the case of the Initial Hertz Vehicles, assigning to HVF certain of Hertzs rights, title and interest in and to such Manufacturers Manufacturer Program as such rights, title and interest relate to passenger automobiles and light-duty trucks purchased by Hertz from such Manufacturer under such Manufacturer Program and contributed by Hertz to HVF and (z) in the case of the Service Vehicles, assigning to HVF certain of HFCs rights, title and interest in and to such Manufacturers Manufacturer Program as such rights, title and interest relate to passenger automobiles and light-duty trucks purchased by HFC from such Manufacturer under such Manufacturer Program and purchased by HVF from HFC, (b) assigning to the Collateral Agent on behalf of the Trustee for the benefit of the Noteholders HVFs rights, title and interest therein and (c) assigning to the Collateral Agent on behalf of Hertz HGIs rights, title and interest therein.
Auction means the set of procedures specified in a Guaranteed Depreciation Program for sale or disposition of Program Vehicles through auctions and at auction sites designated by such Program Vehicles Manufacturer pursuant to such Guaranteed Depreciation Program.
Audi means Audi of America, Inc., a division of Volkswagen.
Authorized Officer means (a) as to HGI, any of the President, any Vice President, the Treasurer or any Assistant Treasurer of HGI, (b) as to HVF, any of the President, any Vice President, the Treasurer or any Assistant Treasurer of HVF and (c) as to the Servicer, the Administrator or the Lessee, any of the President, any Vice President, the Treasurer or any Assistant Treasurer of the Servicer, Administrator or Lessee, as applicable.
Bankruptcy Code means The Bankruptcy Reform Act of 1978, as amended from time to time, and as codified as 11 U.S.C. Section 101 et seq.
Base Indenture means the Third Amended and Restated Base Indenture, dated as of the Restatement Effective Date, between HVF and the Trustee, as amended, modified or supplemented from time to time, exclusive of Series Supplements.
BMW means Bayerische Motoren Werke Aktiengesellschaft, a German corporation, and its successors.
Board of Directors means the Board of Directors of the Lessee or the Board of Directors of HVF, as applicable, or, in each case, any authorized committee of the Board of Directors.
Book-Entry Notes means beneficial interests in the Indenture Notes, ownership and transfers of which shall be evidenced or made through book entries by a Clearing Agency as described in Section 2.12 of the Base Indenture; provided that after the occurrence of a condition whereupon book-entry registration and transfer are no longer permitted and Definitive Notes are issued to the Note Owners, such Definitive Notes shall replace Book-Entry Notes.
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.
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Capitalized Cost means, unless otherwise specified in a Segregated Series Lease with respect to HVF Segregated Vehicles, with respect to each Vehicle, the sum of (a) the price paid for such Vehicle by HGI or the Intermediary (or, in the case of the Initial Hertz Vehicles, Hertz, or, in the case of the Service Vehicles, HFC) to the Manufacturer, dealer or other Person selling such Vehicle, as established by the invoice delivered in connection with the purchase of such Vehicle and reflecting any adjustments made pursuant to Section 1.05(d) of the Purchase Agreement (or, with respect to the Initial Hertz Vehicles or the Service Vehicles, any adjustments made by the related Manufacturer to such invoice price), plus, (b) if not otherwise included therein, with respect to any Program Vehicle, dealer profit to the extent included in the capitalized cost of such Program Vehicle under the terms of the applicable Manufacturer Program, or, with respect to any Non-Program Vehicle, dealer profit to the extent included in the capitalized cost of Program Vehicles of the same make, model and model year under the terms of the applicable Manufacturer Program, plus (c) delivery charges for such Vehicle minus, in the case of any Non-Program Vehicle, the amount of any upfront incentive fees paid or payable to HGI or the Intermediary (or, in the case of the Initial Hertz Vehicles, Hertz, or, in the case of the Service Vehicles, HFC) by the Manufacturer of such Vehicle in respect of the purchase of such Vehicle.
Carrying Charges means for any Payment Date, without duplication, the sum of (a) the product of (i) the Non-Segregated Series Percentage and (ii) all fees, expenses and other amounts payable by HVF to the Trustee under the Indenture or to a Qualified Intermediary under the Master Exchange Agreement, (b) the Monthly Servicing Fee payable by HVF to the Servicer pursuant to the HVF Lease on such Payment Date, (c) $1,500, (d) the sum of (i) all reasonable out-of-pocket costs and expenses of HVF incurred in connection with the issuance of each Series of Notes, including any fees payable to the Rating Agencies in connection with their rating of such Series of Notes and any fees or commissions payable in connection with the sale of such Series of Notes, and (ii) the product of (X) all reasonable out-of-pocket costs and expenses of HVF incurred in connection with the execution, delivery and performance (including the enforcement, waiver or amendment) of the Related Documents and (Y) the Non-Segregated Series Percentage, and (e) any amounts owing to a counterparty under a Swap Agreement or a Series-Specific Swap Agreement relating to a Series of Notes, less (f) any amounts due from a counterparty under a Swap Agreement or a Series-Specific Swap Agreement relating to a Series of Notes. Before issuance of any Series of Indenture Notes, HVF will review the estimated out-of-pocket costs and expenses to be incurred in connection with the issuance thereof with the Lessee. If Lessee objects to such estimated costs and expenses, it shall notify HVF prior to the issuance of such Series of Indenture Notes, and HVF shall not issue any additional Series of Indenture Notes.
Casualty means, with respect to any HVF Vehicle, that (a) such HVF Vehicle is destroyed, seized or otherwise rendered permanently unfit or unavailable for use, (b) such HVF Vehicle is lost or stolen and is not recovered for 180 days following the occurrence thereof or (c) in the case of a Program Vehicle not redesignated under Section 2.6 of the HVF Lease, the return of such HVF Vehicle cannot, prior to the end of the applicable Repurchase Period, be effected for any reason or the Manufacturer thereof did not accept such HVF Vehicle for repurchase under the terms of the applicable Manufacturer Program, in either case, for any reason other than the Manufacturers willful refusal or inability to comply with its obligations under its Manufacturer Program.
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Casualty Payment has the meaning specified in Section 6.2 of the HVF Lease.
Cede means Cede & Co., a nominee of DTC.
Certificated Security means a certificated security within the meaning of Section 8-102 of the applicable UCC.
Certificate of Title means, with respect to each Vehicle, the certificate of title applicable to such Vehicle duly issued in accordance with the certificate of title act or statute of the jurisdiction applicable to such Vehicle.
Chapter 11 Proceedings means proceedings under chapter 11 of the Bankruptcy Code.
Chrysler means Chrysler Group LLC, a Delaware limited liability company, and its successors.
Class means, with respect to any Series of Indenture Notes, any one of the classes of Indenture Notes of that Series of Indenture Notes as specified in the applicable Series Supplement.
Clearing Agency means an organization registered as a clearing agency pursuant to Section 17A of the Exchange Act or any successor provision thereto or Euroclear or Clearstream.
Clearing Agency Participant means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book entry transfers and pledges of securities deposited with the Clearing Agency.
Clearstream means Clearstream Banking, societe anonyme.
Closing Date means the Restatement Effective Date or any Series Closing Date.
Code means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time, and any successor statute of similar import, in each case as in effect from time to time. References to sections of the Code also refer to any successor sections.
Collateral means the collective reference to the Indenture Collateral and the HVF Vehicle Collateral.
Collateral Account means a Collateral Account (as such term is defined in Section 2.5(a) of the Collateral Agency Agreement) into which amounts relating to HVF Vehicle Collateral are deposited pursuant to the terms of the Collateral Agency Agreement.
Collateral Agency Agreement means the Third Amended and Restated Collateral Agency Agreement, dated as of the Restatement Effective Date, among HVF, as grantor, HGI, as grantor, Hertz as servicer, the Collateral Agent, the Trustee, as secured party,
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and Hertz, as secured party, as amended, restated, modified or supplemented from time to time in accordance with its terms.
Collateral Agent means The Bank of New York Mellon Trust Company, N.A., in its capacity as collateral agent under the Collateral Agency Agreement and any successor thereto or permitted assign in such capacity thereunder.
Collateral Agreements means the HVF Lease, the Supplemental Documents, the Assignment Agreements, the Purchase Agreement, the Hertz Contribution Agreement, the Administration Agreement, the Nominee Agreement, the Hertz Nominee Agreement, the HFC Nominee Agreement, the Indemnification Agreement, the LLC Agreement, the HVF Credit Facility, any Swap Agreement, the Master Exchange Agreement and the Escrow Agreement.
Collection Account means securities account no. 162826 entitled The Bank of New York Mellon Trust Company, N.A., as Trustee, Securities Account of Hertz Vehicle Financing LLC maintained by the Collection Account Securities Intermediary pursuant to the Collection Account Control Agreement or any successor securities account maintained pursuant to the Collection Account Control Agreement.
Collection Account Control Agreement means the agreement among HVF, The Bank of New York Mellon Trust Company, N.A. (f/k/a/ BNY Midwest Trust Company, N.A.), as securities intermediary, and the Trustee, dated as of September 18, 2002, relating to the Collection Account, as the same may be amended and supplemented from time to time.
Collection Account Securities Intermediary means The Bank of New York Mellon Trust Company, N.A. or any other securities intermediary that maintains the Collection Account pursuant to the Collection Account Control Agreement.
Collections means, without duplication, (a) all payments on the Collateral, including, without limitation, (i) all payments by or on behalf of the Lessee under the HVF Lease, (ii) all payments by Hertz to HVF under the Indemnification Agreement other than any payments related solely to any Series-Specific Collateral, (iii) all proceeds of the HVF Vehicles, including (A) all payments made by or on behalf of any Manufacturer or auction dealer, under the related Manufacturer Program with respect to the HVF Vehicles, but excluding Excluded Payments, (B) all payments by or on behalf of any other Person as proceeds from the sale of HVF Vehicles and (C) all insurance proceeds and warranty payments in respect of the HVF Vehicles, but excluding Excluded Payments, whether such payments are in the form of cash, checks, wire transfers or other forms of payment and whether in respect of principal, interest, repurchase price, fees, expenses or otherwise, (iv) all payments by HGI to HVF under the Purchase Agreement (other than any payments related solely to any Series-Specific Collateral), including, without limitation (A) all payments of the Transfer Price by HGI in respect of Transferred HVF Vehicles and Manufacturer Receivables relating to HVF Vehicles pursuant to Section 1.06 of the Purchase Agreement and (B) all payments of the Rejected Vehicle Payment relating to Vehicles that were New HVF Vehicles as of such rejection by HGI or the Servicer pursuant to Section 1.05(b) of the Purchase Agreement, (v) all Swap Payments relating to Series of Notes, (vi) all payments made from a Collateral Account (including the Joint Collection Account (as defined in the Master Exchange Agreement)) or an HVF Exchange Account to the
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Collection Account and (vii) all amounts earned on Permitted Investments of funds in the Collection Account and, to the extent so specified in a Series Supplement, in a Series Account.
Committed Purchaser means a Person that has committed to purchase a Series of Indenture Notes from HVF from time to time and that finances such purchases with, among other things, the proceeds of commercial paper notes issued by such special purpose company.
Company Order and Company Request means a written order or request signed in the name of HVF by any one of its Authorized Officers and delivered to the Trustee.
Condition Report means a condition report with respect to a Program Vehicle, signed and dated by the Servicer and a Manufacturer or its agent in accordance with the applicable Manufacturer Program.
Consolidated Subsidiary means, at any time, any Subsidiary or other entity the accounts of which are consolidated with those of Hertz in its consolidated financial statements as of such time.
Contingent Obligation means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of that Person (a) with respect to any indebtedness, lease, dividend, letter of credit or other obligation of another if the primary purpose or intent thereof by the Person incurring the Contingent Obligation is to provide assurance to the obligee of such obligation of another that such obligation of another will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such obligation will be protected (in whole or in part) against loss in respect thereof or (b) under any letter of credit issued for the account of that Person or for which that Person is otherwise liable for reimbursement thereof. Contingent Obligations shall include (a) the direct or indirect guarantee, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another and (b) any liability of such Person for the obligations of another through any agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise), (ii) to maintain the solvency of any balance sheet item, level of income or financial condition of another or (iii) to make take-or-pay or similar payments if required regardless of non-performance by any other party or parties to an agreement, if in the case of any agreement described under subclause (i) or (ii) of this sentence the primary purpose or intent thereof is as described in the preceding sentence. The amount of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported.
Contractual Obligation means, with respect to any Person, any provision of any security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
Controlled Amortization Period means, with respect to any Series of Notes, the period specified in the applicable Series Supplement.
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Controlled Distribution Amount means, with respect to a Class of Notes, the amount (or amounts) specified in any applicable Series Supplement.
Controlled Group means, with respect to any Person, such Person, whether or not incorporated, and any corporation, trade or business that is, along with such Person, a member of a controlled group of corporations or a controlled group of trades or businesses as described in Sections 414(b) and (c), respectively, of the Code.
Corporate Trust Office shall mean the principal office of the Trustee at which at any particular time its corporate trust business shall be administered which office at the date of the execution of the Base Indenture is located at 2 North LaSalle, Chicago, Illinois 60602, Attention: Corporate Trust AdministrationStructured Finance, or at any other time at such other address as the Trustee may designate from time to time by notice to the Indenture Noteholders and HVF.
Daily Collection Report has the meaning specified in Section 4.1(a) of the Base Indenture.
Defaulting Manufacturer has the meaning specified in Section 18(a) of the HVF Lease.
Definitions List means this Definitions List, as amended or modified from time to time.
Definitive Notes has the meaning specified in Section 2.12(a) of the Base Indenture.
Depository has the meaning specified in Section 2.12(a) of the Base Indenture.
Depository Agreement means, with respect to a Series of Indenture Notes having Book-Entry Notes, the agreement among HVF, the Trustee and the Clearing Agency, or as otherwise provided in the applicable Series Supplement.
Depreciation Charge means, with respect to (a) any Program Vehicle, the applicable depreciation charge set forth in the related Manufacturer Program for such Program Vehicle calculated on a daily basis and (b) any Non-Program Vehicle, the scheduled daily depreciation charge for such Non-Program Vehicle set forth by HVF in the Depreciation Schedule for such Non-Program Vehicle. If such charge is expressed as a percentage, the daily Depreciation Charge for such Vehicle shall be such percentage multiplied by the Capitalized Cost for such Vehicle calculated on a daily basis. For any such Vehicles not held for a full month in the month of acquisition, the Depreciation Charges shall be prorated by multiplying the applicable depreciation amount by a fraction, the numerator of which is the number of days from the In-Service Date with respect to such Vehicle to the first day of the next month and the denominator of which is the number of days in such month. For the month in which a Program Vehicle is turned back to the applicable Manufacturer pursuant to a Manufacturer Program, the Depreciation Charge shall be prorated by multiplying the applicable depreciation amount by a fraction, the numerator of which is the number of days from the first day of such month to the Turnback Date for such Vehicle and the denominator of which is the number of days in such
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month. In the event any such Vehicle is sold other than pursuant to the Manufacturer Program or suffers a Casualty, the Depreciation Charge shall be prorated by multiplying the applicable depreciation amount by a fraction, the numerator of which is the number of days from the first day of such month to the date of the sale of such Vehicle or the date such Vehicle suffers a Casualty, as the case may be, and the denominator of which is the number of days in such month.
Depreciation Schedule means the initial schedule of estimated daily depreciation prepared by HVF with respect to each type of Non-Program Vehicle, as revised from time to time by HVF, subject to Section 24 of the HVF Lease.
Determination Date means the date five Business Days prior to each Payment Date.
Disposition Date means with respect to any HVF Vehicle, (i) if such HVF Vehicle was sold at Auction pursuant to a Guaranteed Depreciation Program or returned to a Manufacturer for repurchase pursuant to a Repurchase Program, the Turnback Date, (ii) if such HVF Vehicle is sold to HGI in accordance with Section 1.06 of the Purchase Agreement, the date on which the Transfer Price with respect to such Transferred HVF Vehicle is deposited into the Collection Account or an HVF Exchange Account, (iii) if such HVF Vehicle was sold to any Person (other than to a Manufacturer pursuant to such Manufacturers Repurchase Program, to a third party through an Auction conducted by or through or arranged by the Manufacturer pursuant to its Guaranteed Depreciation Program or to HGI pursuant to the Purchase Agreement) the date on which the proceeds of such sale are deposited in the Collection Account or an HVF Exchange Account, (iv) if such HVF Vehicle becomes a Casualty or an Ineligible Vehicle (except as a result of a sale thereof), the date on which the Casualty Payment is paid by the Lessee to the Trustee or (v) if such HVF Vehicle becomes a Rejected Vehicle pursuant to Section 1.05(b) of the Purchase Agreement, the date on which the related Rejected Vehicle Payment is paid by HGI to the Trustee.
Disposition Proceeds means the net proceeds (other than the portion of the Repurchase Price payable (i) by the Manufacturer pursuant to a Manufacturer Program or (ii) with respect to Non-Program Vehicles, by the Lessee pursuant to the HVF Lease) from the sale or disposition of an HVF Vehicle to any Person, whether at an Auction or otherwise.
Dispute Period has the meaning specified in Section 2.2 of the Collateral Agency Agreement.
Distribution Account means, with respect to any Series of Notes, an account established as such pursuant to the applicable Series Supplement.
Dollar and the symbol $ mean the lawful currency of the United States.
DTC means The Depository Trust Company.
Due Date means, with respect to any payment due from a Manufacturer or auction dealer in respect of a Program Vehicle turned back for repurchase or sale pursuant to the terms of the related Manufacturer Program, the thirtieth (30th) day after the Disposition Date for such Vehicle.
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Early Termination Payment has the meaning specified in Section 13.4 of the HVF Lease.
Eligible Deposit Account means (a) a segregated identifiable trust account established in the trust department of a Qualified Trust Institution or (b) a separately identifiable deposit account established in the deposit taking department of a Qualified Institution.
Eligible M anufacturer means (a) Ford, Old GM, GM, Chrysler, Old Chrysler, Toyota, Honda, Mazda, Nissan, Volvo, Jaguar, Audi, Volkswagen, Land Rover, Hyu ndai, Kia, Lexus, Mercedes, Suzuki, BMW, Mitsubishi and Subaru and each other Manufacturer that becomes an Eligible Program Manufacturer and (b) any other Manufacturer with respect to which the Rating Agency Condition with respect to each Series of Notes Outstanding shall have been satisfied.
Eligible Manufacturer Program means at any time a Manufacturer Program that is in full force and effect with an Eligible Program Manufacturer; provided that (a) with respect to any new Manufacturer Program (including a new model year Manufacturer Program of an Eligible Program Manufacturer and a Manufacturer Program of a new Eligible Program Manufacturer) that is proposed for consideration after the Initial Closing Date as an Eligible Manufacturer Program, prior to such new Manufacturer Program constituting an Eligible Manufacturer Program hereunder, the Rating Agency Condition with respect to each Series of Notes Outstanding shall have been satisfied with respect to such Manufacturer Program, and (b) with respect to any material change (other than as specified in clause (a) above) in the terms of any existing Eligible Manufacturer Program, prior to such Manufacturer Program, as changed, constituting an Eligible Manufacturer Program hereunder, the Rating Agency Condition with respect to each Series of Notes Outstanding shall have been satisfied with respect to such change.
Eligible Program Manufacturer means (a) Ford, GM, Old GM, Chrysler, Old Chrysler, Toyota, Honda, Mazda, Nissan, Volvo, Jaguar, Audi, Volkswagen, Land Rover, Hyundai, Kia, Lexus, Mercedes, Suzuki 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 BBB- from S&P, at least Baa3 from Moodys and, unless otherwise agreed to by Fitch, at least BBB- from Fitch, provided , that if a Manufacturer proposed for consideration under the preceding clause (b) does not have a rating from S&P or Moodys, 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 for so long as a Manufacturer Event of Default is occurring with respect to any such Manufacturer, such Manufacturer shall not qualify as an Eligible Program Manufacturer.
Eligible Program Vehicle means a Program Vehicle that is subject to an Eligible Manufacturer Program on the Vehicle Operating Lease Commencement Date for such Program Vehicle unless it has been redesignated as a Non-Program Vehicle pursuant to Section 2.6 of the HVF Lease; provided , that if any such Vehicle that has been redesignated as a Non-Program Vehicle is subsequently redesignated as a Program Vehicle pursuant to Section 2.6 of the HVF Lease, solely for purposes of determining whether such Vehicle is an Eligible
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Program Vehicle pursuant to this definition, the Vehicle Operating Lease Commencement Date for any such Vehicle shall be deemed to be the date of any redesignation.
Eligible Vehicle means an HVF Vehicle (i) that is not older than forty-eight (48) months from the date of the original manufacturer invoice therefor, (ii) the Certificate of Title for which is in the name of the Hertz Vehicles LLC, as nominee titleholder for HVF and notes the Collateral Agent as the first lienholder (other than (x) with respect to an Initial Hertz Vehicle, for which the Certificate of Title shall be in the name of Hertz, (y) with respect to a Service Vehicle, for which the Certificate of Title shall be in the name of HFC and (z) in the case of clauses (x) and (y) above, each Certificate of Title described therein shall not note any lien thereon, including, without limitation, the lien of the Collateral Agent) (or, the Certificate of Title has been submitted to the appropriate state authorities for such retitling and notation), (iii) that is owned by HVF free and clear of all Liens other than Permitted Liens and (iv) that is designated as an HVF Vehicle in accordance with the Collateral Agency Agreement.
Enhancement means, with respect to any Series of Indenture Notes, the rights and benefits provided to the Indenture Noteholders of such Series of Indenture Notes pursuant to any letter of credit, surety bond, cash collateral account, overcollateralization, issuance of subordinated Indenture Notes, spread account, guaranteed rate agreement, maturity guaranty facility, tax protection agreement, interest rate swap or any other similar arrangement.
Enhancement Agreement means any contract, agreement, instrument or document governing the terms of any Enhancement or pursuant to which any Enhancement is issued or outstanding.
Enhancement Amount has the meaning specified, with respect to any Series of Indenture Notes, in the applicable Series Supplement.
Enhancement Deficiency has the meaning specified, with respect to any Series of Indenture Notes, in the applicable Series Supplement.
Enhancement Provider means the Person providing any Enhancement as designated in the applicable Series Supplement, other than any Indenture Noteholders the Notes of which are subordinated to any Class of the Indenture Notes of the same Series of Indenture Notes.
ERISA means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections.
Escrow Account has the meaning specified in Section 1.1 of the Escrow Agreement.
Escrow Agent has the meaning specified in Section 1.1 of the Escrow Agreement.
Escrow Agreement means the Amended and Restated Escrow Agreement, dated as of the Restatement Effective Date, among the Escrow Agent, the Intermediary, Hertz, HVF
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and HGI, as amended, modified or supplemented from time to time in accordance with its terms, or any replacement escrow agreement entered into pursuant to Section 5.01(e) of such escrow agreement (or the comparable provision of a replacement escrow agreement), as amended, modified or supplemented from time to time in accordance with its terms.
Euroclear means Euroclear Bank, S.A./N.V., as operator of the Euroclear System.
Event of Bankruptcy shall be deemed to have occurred with respect to a Person if:
(a) a case or other proceeding shall be commenced, without the application or consent of such Person, in any court, seeking the liquidation, reorganization, debt arrangement, dissolution, winding up, or composition or readjustment of debts of such Person, the appointment of a trustee, receiver, custodian, liquidator, assignee, sequestrator or the like for such Person or all or any substantial part of its assets, or any similar action with respect to such Person under any law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and 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 such Person shall be entered in an involuntary case under the federal bankruptcy laws or other similar laws now or hereafter in effect; or
(b) such Person 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 such Person or for any substantial part of its property, or shall make any general assignment for the benefit of creditors; or
(c) the board of directors of such Person (if such Person is a corporation or similar entity) shall vote to implement any of the actions set forth in clause (b) above.
Excess Damage Charges means, with respect to any Program Vehicle, the amount charged or deducted from the Repurchase Price by the Manufacturer of such Vehicle due to (a) damage over a prescribed limit, (b), if applicable, damage not subject to a prescribed limit and (c) missing equipment, in each case with respect to such Vehicle at the time that such Vehicle is turned in to such Manufacturer or its agent for repurchase or Auction pursuant to the applicable Manufacturer Program.
Excess Mileage Charges means, with respect to any Program Vehicle, the amount charged or deducted from the Repurchase Price, by the Manufacturer of such Vehicle due to the fact that such Vehicle has mileage over a prescribed limit at the time that such Vehicle
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is turned in to such Manufacturer or its agent for repurchase or Auction pursuant to the applicable Manufacturer Program.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Excluded Payments means (a) all incentive payments payable by a Manufacturer to purchase Vehicles (but not any amounts payable by a Manufacturer as an incentive for selling Program Vehicles outside of the related Manufacturer Program), (b) all amounts payable by a Manufacturer as compensation for the preparation of newly delivered vehicles, (c) all amounts payable by a Manufacturer as compensation for interest payable after the purchase price for a Vehicle is paid and (d) all amounts payable by a Manufacturer in reimbursement for warranty work performed by or on behalf of HVF on the Vehicles.
Expected Final Payment Date means, with respect to any Series of Indenture Notes, the date stated in the applicable Series Supplement as the date on which such Series of Indenture Notes is expected to be paid in full.
FDIC means the Federal Deposit Insurance Corporation.
Finance Guide means the Black Book Official Finance/Lease Guide.
Financial Officer means, with respect to any Person, the chief financial officer, vice president-finance, principal accounting officer, controller or treasurer of such Person.
Fitch means Fitch Ratings.
Fleet Report has the meaning specified in Section 2.4 of the Collateral Agency Agreement.
Ford means Ford Motor Company, a Delaware corporation, and its successors.
Ford Letter of Credit means an irrevocable letter of credit issued for the account of Ford or an affiliate thereof in favor of the Trustee for the benefit of a Series of Notes or a class of a Series of Notes.
Ford Reimbursement Obligations means any and all obligations of HVF in respect of a Ford Letter of Credit set forth in any Series Supplement; provided , however that no Ford Reimbursement Obligation in respect of a disbursement made under a Ford Letter of Credit shall arise until such time as Ford has reimbursed the provider of such Ford Letter of Credit for such disbursement.
GAAP means the generally accepted accounting principles promulgated or adopted by the Financial Accounting Standards Board and its predecessors and successors from time to time.
General Intangibles means general intangible within the meaning of Section 9-102(a)(42) of Revised Article 9.
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General Intangibles Collateral means HVFs right, title and interest in, to and under all of the assets, property and interests in property, whether now owned or hereafter acquired or created, as described in Section 3.1(a)(i) and (v) of this Base Indenture.
GM means General Motors Company, a Delaware corporation, and its successors.
Governmental Authority means any Federal, state, local or foreign court or governmental department, commission, board, bureau, agency, authority, instrumentality or regulatory body.
Guaranteed Depreciation Program means a guaranteed depreciation program pursuant to which a Manufacturer has agreed to (a) cause Vehicles manufactured by it or one of its Affiliates that are turned back during the specified Repurchase Period to be sold by an auction dealer, (b) cause the proceeds of any such sale to be deposited in a Collateral Account by such auction dealer promptly following such sale and (c) pay to HVF or the Intermediary the excess, if any, of the guaranteed payment amount with respect to any such Vehicle calculated as of the Turnback Date in accordance with the provisions of such guaranteed depreciation program over the amount deposited in a Collateral Account by an auction dealer pursuant to clause (b) above.
Hertz means The Hertz Corporation, a Delaware corporation, and its successors.
Hertz Contribution Agreement means the Contribution Agreement, dated as of December 21, 2005 , between Hertz and HVF, as the same may be amended, restated, modified or supplemented from time to time in accordance with its terms.
Hertz Nominee means Hertz, as nominee titleholder for HVF pursuant to the Hertz Nominee Agreement.
Hertz Nominee Agreement means the Vehicle Title Nominee Agreement, dated as of December 21, 2005, among Hertz, HVF and the Collateral Agent, as the same may be amended, restated, modified or supplemented from time to time in accordance with its terms.
Hertz Nominee Power of Attorney means a power of attorney in the form of Exhibit A-2 to the Hertz Nominee Agreement.
Hertz Vehicles LLC means Hertz Vehicles LLC, a Delaware limited liability company, and its successors.
HFC means Hertz Funding Corp., a Delaware corporation, and its successors.
HFC Nominee means HFC, as nominee titleholder for HVF pursuant to the HFC Nominee Agreement.
HFC Nominee Agreement means the Vehicle Title Nominee Agreement, dated as of December 21, 2005, among HFC, HVF, Hertz and the Collateral Agent, as the same may be amended, restated, modified or supplemented from time to time in accordance with its terms.
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HFC Nominee Power of Attorney means a power of attorney in the form of Exhibit A-2 to the HFC Nominee Agreement.
HFC Purchase Agreement means the Purchase Agreement, dated as of December 21, 2005, between HFC and HVF, as the same may be amended, restated, modified or supplemented from time to time in accordance with its terms.
HGI means Hertz General Interest LLC, a Delaware limited liability company, and its successors.
HGI Account means concentration account no. 323242723, held at JPMorgan Chase Bank in the name of Hertz General Interest LLC.
HGI Credit Facility means the Credit and Security Agreement dated as of September 18, 2002, between HGI and Hertz, as amended, modified or supplemented from time to time in accordance with its terms.
HGI Eligible Vehicle means a HGI Vehicle (i) that is not older than forty-eight (48) months from the date of the original manufacturer invoice therefore, (ii) the Certificate of Title for which is in the name of the Hertz Vehicles LLC, as nominee titleholder for HGI and notes the Collateral Agent as the first lienholder (or the Certificate of Title has been submitted to the appropriate state authorities for such notation), (iii) that is owned by HGI free and clear of all Liens other than Permitted Liens and (iv) that is designated as a HGI Vehicle in accordance with the Collateral Agency Agreement.
HGI Exchange Account has the meaning specified in Section 1.1 of the Master Exchange Agreement.
HGI Lease means the Second Amended and Restated Master Motor Vehicle Operating Lease and Servicing Agreement, dated as of December 21, 2005, between HGI, as lessor thereunder, and Hertz, as lessee and as servicer, as the same may be amended, restated, modified or supplemented from time to time in accordance with its terms.
HGI LLC Agreement means the Amended and Restated Limited Liability Company Agreement of HGI, dated as of December 21, 2005, as amended, modified or supplemented from time to time in accordance with its terms.
HGI Management Agreement means each of the Management Agreements with one or more of the members of the Board of Directors of HGI, as amended, modified or supplemented from time to time in accordance with its terms.
HGI Vehicle means a passenger automobile or light-duty truck which is owned by HGI and leased by HGI to the Lessee pursuant to the HGI Lease.
HGI Vehicle Collateral has the meaning specified in Section 2.1(c) of the Collateral Agency Agreement.
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Honda means American Honda Motor Co., Inc., a California corporation, and its successors.
HVF means Hertz Vehicle Financing LLC, a Delaware limited liability company, and its successors.
HVF Credit Facility means the Credit Agreement, in the form attached as Exhibit B to the Base Indenture, to be entered into between HVF and Hertz, as amended, modified or supplemented from time to time in accordance with its terms.
HVF Exchange Account has the meaning specified in Section 1.1 of the Master Exchange Agreement.
HVF Lease means the Third Amended and Restated Master Motor Vehicle Operating Lease and Servicing Agreement, dated as of the Restatement Effective Date, between HVF, as lessor thereunder, and Hertz, as lessee and as servicer, as the same may be amended, restated, modified or supplemented from time to time in accordance with its terms.
HVF LLC Agreement means the Amended and Restated Limited Liability Company Agreement of HVF, dated as of the Restatement Effective Date, as amended, modified or supplemented from time to time in accordance with its terms.
HVF Management Agreement means each of the Management Agreements with one or more of the members of the Board of Directors of HVF, as amended, modified or supplemented from time to time in accordance with its terms.
HVF Segregated Vehicle means a passenger automobile or light-duty truck which is owned by HVF and leased by HVF to the Lessee pursuant to a Segregated Series Lease.
HVF Segregated Vehicle Collateral has the meaning specified in Section 2.1(b) of the Collateral Agency Agreement.
HVF Vehicle means a passenger automobile or light-duty truck (including any Initial Hertz Vehicle or Service Vehicle) which is owned by HVF and leased by HVF to the Lessee pursuant to the HVF Lease (including any such Vehicle that constitutes Replacement Property under, and as defined in, the Master Exchange Agreement).
HVF Vehicle Collateral has the meaning specified in Section 2.1(a) of the Collateral Agency Agreement.
Hyundai means Hyundai Motor America Corporation, a California corporation, and its successors.
IHV Transfer Value means with respect to each Initial Hertz Vehicle, the net book value of such Initial Hertz Vehicle, as recorded on the books and records of Hertz (with appropriate adjustments for depreciation) at the time of the contribution of each Initial Hertz Vehicle to HVF pursuant to Section 1.01 of the Hertz Contribution Agreement.
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Indebtedness , as applied to any Person, means, without duplication, (a) all indebtedness for borrowed money, (b) that portion of obligations with respect to any lease of any property (whether real, personal or mixed) that is properly classified as a liability on a balance sheet in conformity with GAAP, (c) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money, (d) any obligation owed for all or any part of the deferred purchase price for property or services, which purchase price is (i) due more than six months from the date of the incurrence of the obligation in respect thereof or (ii) evidenced by a note or similar written instrument, (e) all indebtedness secured by any Lien on any property or asset owned by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person, and (f) all Contingent Obligations of such Person in respect of any of the foregoing.
Indemnified Person has the meaning specified in Section 2 of the Indemnification Agreement.
Indemnification Agreement means the Second Amended and Restated Indemnification Agreement, dated as of the Restatement Effective Date, among Hertz, Hertz Vehicles LLC, HGI and HVF, as amended, modified or supplemented from time to time in accordance with its terms.
Indenture means the Base Indenture, together with all Series Supplements, as amended, modified or supplemented from time to time by Supplements thereto in accordance with its terms.
Indenture Collateral has the meaning specified in Section 3.1 of the Base Indenture.
Indenture Notes has the meaning specified in the recitals to the Base Indenture.
Indenture Noteholder means the Person in whose name an Indenture Note is registered in the Note Register.
Independent Director has the meaning specified in Schedule A to each of the LLC Agreement, the HVF LLC Agreement and the HGI LLC Agreement.
Ineligible Asset Amount means, as of any date of determination, 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 all Manufacturer Receivables (other than Excluded Payments) as of such date payable to HVF or to the Intermediary pursuant to the Master Exchange Agreement, in each case, by a Manufacturer with respect to which a Manufacturer Event of Default specified in clause (i) or (ii) of the definition thereof is continuing with respect to HVF Vehicles that were Eligible Vehicles when turned in to and accepted by such Manufacturer or delivered and accepted for Auction, plus (b) the aggregate amount of all Manufacturer Receivables (other than Excluded Payments) as of such date payable to HVF or to the Intermediary pursuant to the Master Exchange Agreement, in each case, by a Manufacturer which is an Eligible Program Manufacturer with respect to HVF Vehicles that were Eligible Vehicles when turned in to and accepted by such Manufacturer or delivered and accepted for Auction which amounts are unpaid
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more than one hundred (100) days past the applicable Due Date, plus (c) the aggregate of all amounts specified in clause (iv) of the definition of Aggregate Asset Amount which are unpaid more than forty-five (45) days past the applicable Disposition Date, plus (d) the aggregate of all amounts specified in clause (v) of the definition of Aggregate Asset Amount which are unpaid sixty (60) days or more past the applicable Disposition Date, plus (e) the aggregate of all amounts specified in clauses (vi) , (vii) and (x) of the definition of Aggregate Asset Amount which are past due as of such date and in respect of which any grace period provided for in the HVF Lease for the making of such payments has expired, plus (f) the aggregate of all amounts specified in clause (viii) of the definition of Aggregate Asset Amount which are unpaid more than five Business Days past the date on which the related Rejected Vehicle was rejected by the Lessee pursuant to Section 1.05(b) of the Purchase Agreement, plus (g) the aggregate of all amounts specified in clause (ix) of the definition of Aggregate Asset Amount which are payable to HVF or to the Intermediary pursuant to the Master Exchange Agreement, in each case, by a Manufacturer which was an Eligible Program Manufacturer with respect to which a Manufacturer Event of Default specified in clause (i) or (ii) of the definition thereof is continuing or which are unpaid more than sixty (60) days past the due date thereof, plus (h) the amount by which (x) the aggregate of all amounts specified in clause (v) of the definition of Aggregate Asset Amount which are unpaid more than fifteen (15) days but less than sixty (60) days past the applicable Disposition Date exceeds (y) 1% of the Aggregate Asset Amount on such date plus (i) the amount by which (x) the aggregate of all amounts specified in clauses (i) and (ii) of the definition of Aggregate Asset Amount attributable to Initial Hertz Vehicles exceeds (y) the Maximum Initial Hertz Vehicle Amount plus (j) the amount by which (x) the aggregate of all amounts specified in clauses (i) and (ii) of the definition of Aggregate Asset Amount attributable to Service Vehicles exceeds (y) the Maximum Service Vehicle Amount plus (k) the Ineligible Non-Investment Grade Manufacturer Receivable Amount.
Ineligible Non-Investment Grade Manufacturer Receivable Amount means, as of any date of determination, with respect to each Non-Investment Grade 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 Non-Investment Grade Manufacturer with respect to Vehicles that are Eligible Vehicles and Eligible Program Vehicles when turned in to and accepted by such Non-Investment Grade 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 Non-Investment Grade Manufacturers with respect to Vehicles that were Eligible Vehicles but not Eligible Program Vehicles when turned in to and accepted by such Non-Investment Grade Manufacturer or delivered and accepted for Auction; provided , that the definition of Ineligible Non-Investment Grade Manufacturer Receivable Amount may be amended by HVF, subject to satisfaction of the Rating Agency Condition with respect to each Series of Notes Outstanding with respect to such amendment; provided further that any Non-Investment Grade Manufacturer may be excluded from this definition by HVF, subject to satisfaction of the Rating Agency Condition with respect to each Series of Notes Outstanding with respect to such exclusion.
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Ineligible Vehicle means an HVF Vehicle that is not an Eligible Vehicle.
Initial Closing Date means the date on which the initial Series of Indenture Notes was issued pursuant to the Indenture.
Initial Determination Date means, with respect to any Vehicle, the Determination Date with respect to the Related Month in which a Vehicle Operating Lease Commencement Date for such Vehicle occurs.
Initial Hertz Vehicles means, solely during the period commencing on December 21, 2005 and ending 180 days from December 21, 2005, a passenger automobile or light-duty truck which is contributed by Hertz to HVF on or prior to December 21, 2005 pursuant to the Hertz Contribution Agreement and leased by HVF to the Lessee pursuant to the HVF Lease (including any such Vehicle that constitutes Replacement Property under and as defined in the Master Exchange Agreement) and (i) that is not older than forty-eight (48) months from the date of the original manufacturer invoice therefore, (ii) the Certificate of Title for which is in the name of Hertz and shall not note any lien thereon, including, without limitation, the lien of the Collateral Agent (or the Certificate of Title has been submitted to the appropriate state authorities for retitling and notation of the lien of the Collateral Agent as the first lienholder), (iii) that has been made subject to the Hertz Nominee Agreement, (iv) that is owned by HVF free and clear of all Liens other than Permitted Liens and (v) that is designated as an HVF Vehicle in accordance with the Collateral Agency Agreement. For the avoidance of doubt, with respect to any passenger automobile or light-duty truck, from and after receipt by the Servicer or a Servicers Agent, as agent of, and custodian for, the Collateral Agent, or its designated agents, of a Certificate of Title with respect to such passenger automobile or light-duty truck which is in the name of Hertz Vehicles LLC, as nominee titleholder for HVF, and which notes the Collateral Agent as the first lienholder, such passenger automobile or light-duty truck shall not constitute an Initial Hertz Vehicle. In addition, for the avoidance of doubt, from and after the expiration of the period ending 180 days from December 21, 2005, no passenger automobile or light-duty truck shall constitute an Initial Hertz Vehicle.
Initial Principal Amount means, with respect to any Series of Indenture Notes, the aggregate initial principal amount specified in the applicable Series Supplement.
In-Service Date means, with respect to (i) any Vehicle subject to a Manufacturer Program, the date on which depreciation related to such Vehicle begins to accrue under such Manufacturer Program and (ii) any Vehicle not subject to a Manufacturer Program, the date designated by the Servicer in respect of such Non-Program Vehicle in the Monthly Servicing Certificate for the Related Month in which the Vehicle Operating Lease Commencement Date for such Non-Program Vehicle occurs.
Interest Collections means on any date of determination all Collections which represent payments of Monthly Variable Rent under the HVF Lease plus any amounts earned on Permitted Investments in the Collection Account which are available for distribution on such date.
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Interest Period means, with respect to any Series of Indenture Notes, the period specified in the applicable Series Supplement.
Intermediary means the Person acting in the capacity of Qualified Intermediary pursuant to the Master Exchange Agreement.
Invested Percentage means, with respect to any Series of Notes, the percentage specified in the applicable Series Supplement.
Investment Company Act means the Investment Company Act of 1940, as amended.
Investment Property has the meaning specified in Section 9-102(a)(49) of the applicable UCC.
Invoice Adjustment has the meaning specified in Section 1.05(d) of the Purchase Agreement.
Jaguar means Jaguar Cars, a division of Ford Motor Company, and its successors.
Kia means Kia Motors America, Inc., a California corporation, and its successors.
Land Rover means Land Rover North America, Inc., a Delaware corporation, and its successors.
Lease means either the HVF Lease or the HGI Lease.
Lease Payment Default means the occurrence of any event described in Section 17.1.1 of the HVF Lease.
Lease Payment Deficit means, for any Related Month, an amount equal to the excess, if any, of (a) the aggregate amount of payments required to be made under the HVF Lease with respect to the Related Month over (b) the aggregate amount of payments actually received by HVF under the HVF Lease with respect to the Related Month.
Lessee means Hertz, in its capacity as the lessee under the HVF Lease and the HGI Lease.
Lessor means HVF, in its capacity as the lessor under the HVF Lease.
Lexus means Lexus, a division of Toyota, and its successors.
Lien means, when used with respect to any Person, any interest in any real or personal property, asset or other right held, owned or being purchased or acquired by such Person which secures payment or performance of any obligation, and shall include any mortgage, lien, pledge, encumbrance, charge, retained security title of a conditional vendor or
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lessor, or other security interest of any kind, whether arising under a security agreement, mortgage, lease, deed of trust, chattel mortgage, assignment, pledge, retention or security title, financing or similar statement, or notice or arising as a matter of law, judicial process or otherwise.
Limited Liquidation Event of Default means, with respect to any Series of Notes, any event specified as such in the applicable Series Supplement.
Liquidation Event of Default means, so long as such event or condition continues, any of the following: (a) any Lease Payment Default , (b) an Event of Bankruptcy with respect to Hertz, Hertz Vehicles LLC, HGI or HVF or (c) an Operating Lease Event of Default in respect of a breach by the Lessor (or the Lessee on its behalf) of its agreements set forth in Section 18(a) of the HVF Lease .
LLC Agreement means the Second Amended and Restated Limited Liability Company Agreement of Hertz Vehicles LLC, dated as of the Restatement Effective Date, as amended, modified or supplemented from time to time in accordance with its terms.
Luxembourg Agent has the meaning specified in Section 2.4(c) of the Base Indenture.
Management Agreement means each of the Management Agreements with one or more of the members of the Board of Directors of Hertz Vehicles LLC, as amended, modified or supplemented from time to time in accordance with its terms.
Manufacturer means a manufacturer or distributor of passenger automobiles and/or light-duty trucks.
Manufacturer Event of Default means with respect to any Manufacturer, (i) there shall be Past Due Amounts owing to Hertz, HGI, HVF or the Intermediary with respect to such Manufacturer in an amount equal to or in excess of the lesser of (x) $25 million and (y) the then outstanding aggregate amount of repurchase obligations of such Manufacturer under its Manufacturer Program in respect of all Vehicles, in each case, net of Past Due Amounts aggregating no more than $50 million, (A) that are the subject of a good faith dispute as evidenced in a writing by Hertz, HGI, HVF or the Manufacturer questioning the accuracy of amounts paid or payable in respect of certain Vehicles tendered for repurchase under a Manufacturer Program (as distinguished from any dispute relating to the repudiation by such Manufacturer generally of its obligations under such Manufacturer Program or the assertion by such Manufacturer of the invalidity or unenforceability as against it of such Manufacturer Program) and (B) with respect to which Hertz, HGI or HVF, as the case may be, has provided adequate reserves as reasonably determined by such Person, (ii) the occurrence and continuance of an Event of Bankruptcy with respect to such Manufacturer; provided , that, a Manufacturer Event of Default which occurs pursuant to this clause (ii) shall be deemed to no longer be continuing on and after the date such Manufacturer assumes its Manufacturer Program in accordance with the Bankruptcy Code or (iii) the termination of such Manufacturers Manufacturer Program or the failure of such Manufacturers Repurchase Program or Guaranteed Depreciation Program to qualify as a Manufacturer Program.
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Manufacturer Program unless otherwise specified in a Segregated Series Supplement with respect to the Vehicles comprising the related Series-Specific Collateral, means at any time any Repurchase Program or Guaranteed Depreciation Program that is in full force and effect with a Manufacturer (i) pursuant to which the repurchase price or guaranteed auction sale price is at least equal to the Capitalized Cost of each Vehicle, minus all Depreciation Charges accrued with respect to such Vehicle prior to the date that the Vehicle is submitted for repurchase, minus Excess Mileage Charges, minus Excess Damage Charges, (ii) that cannot be amended or terminated with respect to any Vehicle after the purchase of that Vehicle, and (iii) the assignment of the benefits of which to HVF and the Collateral Agent has been acknowledged in writing by the related Manufacturer in the form of an Assignment Agreement.
Manufacturer Receivable means an amount due from a Manufacturer or an auction dealer under a Manufacturer Program in respect of or in connection with a Program Vehicle disposed of in accordance with such Manufacturer Program.
Market Value means, unless otherwise specified in a Segregated Series Supplement with respect to the related Series-Specific Vehicles, with respect to any Vehicle as of any date of determination, the wholesale market value of such Vehicle as specified in the Related Months published NADA Guide for the model class and model year of such Vehicle based on the average equipment and the average mileage of each vehicle of such model class and model year; provided , that if the NADA Guide is not being published or the NADA Guide is being published but such Vehicle is not included therein, the Finance Guide at the beginning of the model year shall be used to estimate the wholesale market value of the Vehicle, based on the Vehicles model class and model year or the closest model class and model year thereto and a vehicle condition of average (as defined in the Finance Guide); provided , further, that if the Finance Guide is not being published or the Finance Guide is being published but such Vehicle or a reasonably similar model class and model year is not included therein, the wholesale market value of such Vehicle shall be based on an independent third-party data source, and determined in accordance with a methodology, with respect to which the Rating Agency Condition with respect to each Series of Notes Outstanding shall have been satisfied; 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 wholesale market value of such 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.
Master Exchange Agreement means the Second Amended and Restated Master Exchange Agreement, dated as of the Restatement Effective Date, among Hertz, HVF, HGI, the Intermediary and DB Services Tennessee, Inc., as amended, modified or supplemented from time to time in accordance with its terms.
Material Adverse Effect means, with respect to any occurrence, event or condition:
1. a material adverse change in the financial condition, business, assets or operations of Hertz and its Consolidated Subsidiaries;
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2. a material adverse effect on the ability of Hertz, the Hertz Nominee, the HFC Nominee, Hertz Vehicles LLC, HGI, HVF or the Qualified Intermediary to perform its obligations under any of the Related Documents (other than any Related Document relating solely to any Segregated Series of Notes);
3. a material adverse effect on HVFs interest in the HVF Vehicles or the related Manufacturer Receivables; or
4. an adverse effect on (i) the validity or enforceability of any Related Documents or (ii) on the validity, status, perfection or priority of the Lien of the Trustee in the Indenture Collateral or of the Collateral Agent in the HVF Vehicle Collateral; provided that with respect to the Initial Hertz Vehicles and the Service Vehicles, the lack of the notation of the lien of the Collateral Agent on the Certificates of Title related to such Vehicles to the extent provided under the Related Documents, shall not constitute a Material Adverse Effect.
Maximum Initial Hertz Vehicle Amount means during the period (i) from and including December 21, 2005 to but excluding the 90th day following December 21, 2005, $480,000,000 of the Adjusted Aggregate Asset Amount, (ii) from and including the 90th day following December 21, 2005 to but excluding the 180th day following December 21, 2005, $270,000,000 of the Adjusted Aggregate Asset Amount and (iii) thereafter, $0.
Maximum Lease Termination Date means, with respect to any Vehicle, the earlier of (x) the last Business Day of the month that is 36 months after the month in which the Vehicle Operating Lease Commencement Date occurs with respect to such Vehicle and (y) the last Business Day of the month that is 47 months after the date of original invoice for such Vehicle.
Maximum Manufacturer Amount means, as of any date of determination, with respect to a particular Manufacturer or group of Manufacturers, the lowest Maximum Manufacturer Amount with respect to such Manufacturer or group of Manufacturers specified with respect to such Manufacturer or group of Manufacturers in any Series Supplement under which Notes are Outstanding as of such date.
Maximum Non-Eligible Manufacturer Amount means, as of any date of determination, the lowest Maximum Non-Eligible Manufacturer Amount specified in any Series Supplement under which Notes are Outstanding as of such date.
Maximum Non-Eligible Vehicle Amount means, as of any date of determination, the lowest Maximum Non-Eligible Vehicle Amount specified in any Series Supplement under which Notes are Outstanding as of such date.
Maximum Service Vehicle Amount means, $35,000,000.
Maximum Term has the meaning specified in Section 3.1 of the HVF Lease.
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Mazda means Mazda Motor of America, Inc., a California corporation, d/b/a Mazda North American Operations, and its successors, provided , that for determination of ratings by the Rating Agencies, Mazda means Mazda Motor Corporation and its successors.
Measurement Month on any date, means each calendar month, or the smallest number of consecutive calendar months, preceding such date in which at least the lesser of the following (a) and (b) were sold to third parties, at auction or otherwise (excluding salvage sales): (a) the greater of (x) one-twelfth of the number of Non-Program Vehicles as of the last day of such calendar month or consecutive calendar months and (y) 2,000 and (b) 4,500 Non-Program Vehicles; provided , however , that no calendar month included in a single Measurement Month shall be included in any other Measurement Month.
Mercedes means, Mercedes Benz USA, a wholly owned subsidiary of Chrysler, and its successors.
Minimum Term has the meaning specified in Section 3.1 of the HVF Lease.
Mitsubishi means Mitsubishi Motor Sales of America, Inc., a California corporation, and its successors.
Monthly Administration Fee has the meaning specified in the Administration Agreement.
Monthly Base Rent has the meaning specified in Section 4.1 of the HVF Lease.
Monthly Servicing Certificate has the meaning specified in Section 4.1(c) of the Base Indenture.
Monthly Servicing Fee has the meaning specified in Section 23 of the HVF Lease.
Monthly Noteholders Statement means, with respect to any Series of Indenture Notes, a statement substantially in the form of an Exhibit to the applicable Series Supplement.
Monthly Variable Rent has the meaning specified in Section 4.2 of the HVF Lease.
Moodys means Moodys Investors Service.
NADA Guide means the National Automobile Dealers Association, Official Used Car Guide, Eastern Edition.
Net Book Value means, (a) with respect to each New Vehicle subject to the HVF Lease or the HGI Lease, (i) as of any date of determination during the period from the Vehicle Operating Lease Commencement Date for such New Vehicle under the applicable Lease to but excluding the Initial Determination Date for such New Vehicle, the Capitalized Cost of such New Vehicle, (ii) as of the Initial Determination Date for such New Vehicle, (A) the Capitalized Cost for such New Vehicle minus (B) the aggregate Depreciation Charges accrued
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with respect to such New Vehicle under such Lease through the last day of the Related Month in which the Vehicle Operating Lease Commencement Date for such New Vehicle under such Lease occurred and (iii) as of any Determination Date after the Initial Determination Date for such New Vehicle, (A) the Net Book Value of such New Vehicle as calculated on the immediately preceding Determination Date minus (B) the aggregate Depreciation Charges accrued with respect to such New Vehicle under such Lease during the Related Month (through the last day thereof), (b) with respect to each Transferred Vehicle subject to the HVF Lease or the HGI Lease, (i) as of any date of determination during the period from the Vehicle Operating Lease Commencement Date for such Transferred Vehicle under the applicable Lease to but excluding the Initial Determination Date for such Transferred Vehicle, the Transfer Price of such Transferred Vehicle paid by the Purchaser of such Transferred Vehicle pursuant to Section 1.07 of the Purchase Agreement, (ii) as of the Initial Determination Date for such Transferred Vehicle, (A) the Transfer Price of such Transferred Vehicle paid by the Purchaser of such Transferred Vehicle pursuant to Section 1.07 of the Purchase Agreement minus (B) the aggregate Depreciation Charges accrued with respect to such Transferred Vehicle under such Lease through the last day of the Related Month in which the Vehicle Operating Lease Commencement Date for such Transferred Vehicle under such Lease occurred and (iii) as of any Determination Date after the Initial Determination Date for such Transferred Vehicle, (A) the Net Book Value of such Transferred Vehicle as calculated on the immediately preceding Determination Date minus (B) the aggregate Depreciation Charges accrued with respect to such Transferred Vehicle under such Lease during the Related Month (through the last day thereof), (c) with respect to each Initial Hertz Vehicle subject to the HVF Lease, (i) as of any date of determination during the period from the Vehicle Operating Lease Commencement Date for such Initial Hertz Vehicle under such Lease to but excluding the Initial Determination Date for such Initial Hertz Vehicle, the IHV Transfer Value of such Initial Hertz Vehicle, (ii) as of the Initial Determination Date for such Initial Hertz Vehicle, (A) the IHV Transfer Value of such Initial Hertz Vehicle minus (B) the aggregate Depreciation Charges accrued with respect to such Initial Hertz Vehicle under such Lease through the last day of the Related Month in which the Vehicle Operating Lease Commencement Date for such Initial Hertz Vehicle under such Lease occurred and (iii) as of any Determination Date after the Initial Determination Date for such Initial Hertz Vehicle, (A) the Net Book Value of such Initial Hertz Vehicle as calculated on the immediately preceding Determination Date minus (B) the aggregate Depreciation Charges accrued with respect to such Initial Hertz Vehicle under such Lease during the Related Month (through the last day thereof) and (d) with respect to each Service Vehicle subject to the HVF Lease, (i) as of any date of determination during the period from the Vehicle Operating Lease Commencement Date for such Service Vehicle under such Lease to but excluding the Initial Determination Date for such Service Vehicle, the SV Transfer Price of such Service Vehicle paid by HVF pursuant to Section 1.02 of the HFC Purchase Agreement, (ii) as of the Initial Determination Date for such Service Vehicle, (A) the SV Transfer Price of such Service Vehicle paid by HVF pursuant to Section 1.02 of the HFC Purchase Agreement minus (B) the aggregate Depreciation Charges accrued with respect to such Service Vehicle under such Lease through the last day of the Related Month in which the Vehicle Operating Lease Commencement Date for such Service Vehicle under such Lease occurred and (iii) as of any Determination Date after the Initial Determination Date for such Service Vehicle, (A) the Net Book Value of such Service Vehicle as calculated on the immediately preceding Determination Date minus (B) the aggregate Depreciation Charges accrued with respect to such Service Vehicle under such Lease during the Related Month
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(through the last day thereof). After the Initial Determination Date for any Vehicle subject to the HVF Lease or the HGI Lease, on any day which is not a Determination Date, the Net Book Value of such Vehicle shall be the Net Book Value calculated for such Vehicle on the most recent Determination Date. In connection with a redesignation of an Eligible Vehicle as either a Program Vehicle or a Non-Program Vehicle in accordance with Section 2.6 of the HVF Lease, the Net Book Value of such Vehicle shall be recalculated on the next Determination Date following such redesignation as if such Vehicle had been designated as a Non-Program Vehicle (in the case of a redesignated Program Vehicle) or a Program Vehicle (in the case of a redesignated Non-Program Vehicle) on the Vehicle Operating Lease Commencement Date for such Vehicle.
New HVF Vehicle has the meaning specified in Section 1.04 of the Purchase Agreement.
New Vehicle has the meaning specified in Section 1.04 of the Purchase Agreement.
New Vehicle Schedule has the meaning specified in Section 1.04 of the Purchase Agreement.
Nissan means Nissan North America, Inc., a California corporation, and its successors.
Nominee means Hertz Vehicles LLC, as nominee titleholder for each of HGI and HVF pursuant to the Nominee Agreement.
Nominee Agreement means the Second Amended and Restated Vehicle Title Nominee Agreement dated as of the Restatement Effective Date among Hertz Vehicles LLC, HVF, HGI, and the Collateral Agent, as amended, modified or supplemented from time to time in accordance with its terms.
Nominee Power of Attorney means a power of attorney in the form of Exhibit A to the Nominee Agreement.
Non-Eligible Program Vehicle means a Program Vehicle that is not an Eligible Program Vehicle on the Vehicle Operating Lease Commencement Date for such Program Vehicle unless it has been redesignated as a Non-Program Vehicle pursuant to Section 2.6 of the HVF Lease; provided , if any such Vehicle that has been redesignated as a Non-Program Vehicle is subsequently redesignated as a Program Vehicle pursuant to Section 2.6 of the HVF Lease, solely for purposes of determining whether a Vehicle is a Non-Eligible Program Vehicle pursuant to this definition, the Vehicle Operating Lease Commencement Date for any such Vehicle shall be deemed to be the date of any such redesignation.
Non-Investment Grade Manufacturer has the meaning specified, with respect to any Series, in the applicable Series Supplement.
Non-Program Vehicle means an HVF Vehicle that is not subject to a Manufacturer Program on the Vehicle Operating Lease Commencement Date for such HVF
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Vehicle or which is redesignated as a Non-Program Vehicle pursuant to Section 2.6 of the HVF Lease unless, in either case, it has been redesignated as a Program Vehicle pursuant to Section 2.6 of the HVF Lease; provided , that if any such Vehicle that has been redesignated as a Program Vehicle is subsequently redesignated as a Non-Program Vehicle pursuant to Section 2.6 of the HVF Lease, solely for purposes of determining whether a Vehicle is a Non-Program Vehicle pursuant to this definition, the Vehicle Operating Lease Commencement Date for any such Vehicle shall be deemed to be the date of any redesignation.
Non-Program Vehicle Special Default Payments has the meaning specified in Section 13.3 of the HVF Lease.
Non-Segregated Series Percentage means as of any date of determination the percentage equivalent of a fraction, the numerator of which is the Aggregate Principal Amount as of such date and the denominator of which is the sum of the Aggregate Principal Amount and the sum of the Principal Amounts with respect to all Segregated Series of Notes Outstanding, in each case as of such date.
Noteholder and Holder means the Person in whose name a Note is registered in the Note Register.
Note Obligations means all principal and interest, at any time and from time to time, owing by HVF on the Notes and all costs, fees and expenses payable by, or obligations of, HVF under the Indenture (exclusive of any Segregated Series Supplements) and/or the Related Documents (other than Related Documents or portions thereof relating solely to any Segregated Series).
Note Owner means, with respect to a Book-Entry Note, the Person who is the beneficial owner of such Book-Entry Note, as reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly or as an indirect participant, in accordance with the rules of such Clearing Agency).
Note Rate means, with respect to any Series of Indenture Notes, the annual rate at which interest accrues on the Indenture Notes of such Series of Indenture Notes (or formula on the basis of which such rate shall be determined) as stated in the applicable Series Supplement.
Note Register means the register maintained pursuant to Section 2.5(a) of the Base Indenture, providing for the registration of the Indenture Notes and transfers and exchanges thereof.
Notes has the meaning specified in the recitals to the Base Indenture.
Officers Certificate means a certificate signed by an Authorized Officer of Hertz, HGI, Hertz Vehicles LLC or HVF, as the case may be.
Old Chrysler means Old Carco LLC and its successors.
Old GM means Motors Liquidation Company and its successors.
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Operating Lease Commencement Date has the meaning specified in Section 3.2 of the HVF Lease.
Operating Lease Event of Default has the meaning specified in Section 17.1 of the HVF Lease.
Operating Lease Expiration Date has the meaning specified in Section 3.2 of the HVF Lease.
Opinion of Counsel means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to Hertz, HGI, Hertz Vehicles LLC or HVF, as the case may be.
Outstanding has the meaning specified, with respect to any Series of Indenture Notes, in the applicable Series Supplement.
Past Due Amounts means, with respect to any Manufacturer, the amount that such Manufacturer (or if such Manufacturers Manufacturer Program is a Guaranteed Depreciation Program, such Manufacturer or any related auction dealers) shall have failed to pay when due under such Manufacturers Manufacturer Program with respect to a Vehicle turned in to such Manufacturer with respect to which such failure shall have continued for more than one hundred (100) days following the Due Date.
Paying Agent has the meaning specified in Section 2.5(a) of the Base Indenture.
Payment Date means, unless otherwise specified in any Series Supplement for the related Series of Indenture Notes, the 25th day of each calendar month, or if such date is not a Business Day, the next succeeding Business Day, commencing on October 25, 2002.
Permitted Check Payments means (i) payments of sales proceeds of HVF Vehicles made by check by auction dealers under the Manufacturer Program with Chrysler and (ii) payments made by check by GM, Hyundai and Subaru under their respective Manufacturer Programs.
Permitted Investments means negotiable instruments or securities, payable in Dollars, issued by an entity organized under the laws of the United States of America and represented by instruments in bearer or registered or in book-entry form which evidence (excluding any security with the r symbol attached to its rating):
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Permitted Liens means (i) Liens for current taxes not delinquent or for taxes being contested in good faith and by appropriate proceedings, and with respect to which adequate reserves have been established, and are being maintained, in accordance with GAAP, (ii) mechanics, materialmens, landlords, warehousemens and carriers Liens, and other Liens imposed by law, securing obligations arising in the ordinary course of business that are not more than thirty days past due or are being contested in good faith and by appropriate proceedings and with respect to which adequate reserves have been established, and are being maintained, in
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accordance with GAAP, (iii) Liens in favor of the Trustee pursuant to the Indenture and Liens in favor of the Collateral Agent pursuant to the Collateral Agency Agreement, and (iv) Liens in favor of an Enhancement Provider, provided , however , that such Liens referred to in this clause (iv) are subordinate to the Liens in favor of the Trustee and the Collateral Agent and have been consented to by each of the Trustee and the Collateral Agent.
Person means any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company, joint stock company, corporation, trust, unincorporated organization or Governmental Authority.
Physical Property means bankers acceptances, commercial paper, negotiable certificates of deposits and other obligations that constitute instruments within the meaning of Section 9-102(a)(47) of the applicable UCC and are susceptible to physical delivery and Certificated Securities.
Plan means any employee pension benefit plan, as such term is defined in ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan, as defined in Section 4001 of ERISA) and to which any company in the Controlled Group has liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA for any time within the preceding five years or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.
Pool Factor means, unless a Series of Indenture Notes is issued in more than one Class as stated in the applicable Series Supplement a number carried out to seven decimals representing the ratio of the Principal Amount of such Series as of such Record Date (determined after taking into account any reduction in the Principal Amount which will occur on the following Payment Date) to the Initial Principal Amount of such Series, and with respect to a Series of Indenture Notes having more than one Class, as specified in the applicable Series Supplement.
Potential Amortization Event means any occurrence or event which, with the giving of notice, the passage of time or both, would constitute an Amortization Event.
Potential Manufacturer Event of Default means an event which, with the giving of notice, the passage of time or both, would constitute a Manufacturer Event of Default.
Potential Operating Lease Event of Default means any occurrence or event which, with the giving of notice, the passage of time or both, would constitute an Operating Lease Event of Default.
Power of Attorney means a power of attorney in the form of Exhibit B to the Collateral Agency Agreement.
Principal Amount means, with respect to each Series of Indenture Notes, the amount specified in the applicable Series Supplement.
Principal Collections means any Collections other than Interest Collections.
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Principal Distribution Period means, with respect to any Series of Indenture Notes, the period specified in the applicable Series Supplement.
Principal Payment Amount means, with respect to any Class of Indenture Notes, the amount (or amounts) specified in any applicable Series Supplement.
Principal Terms has the meaning specified in Section 2.3 of the Base Indenture.
Proceeds has the meaning specified in Section 9-102(a)(64) of the applicable UCC.
Program Segregated Vehicle means an HVF Segregated Vehicle eligible under, and subject to, a Manufacturer Program
Program Vehicle means an HVF Vehicle eligible under, and subject to, a Manufacturer Program.
Program Vehicle Special Default Payments has the meaning specified in Section 13.3 of the HVF Lease.
PR Borrower means Puerto Ricancars Fleet, LLC, a Puerto Rican special purpose limited liability company established under the laws of the Commonwealth of Puerto Rico.
Purchase Agreement means the Second Amended and Restated Participation, Purchase and Sale Agreement dated as of the Restatement Effective Date by and among HGI, HVF, the Servicer and the Lessee, as amended, modified or supplemented from time to time in accordance with its terms.
Purchaser has the meaning specified in the recitals to the Purchase Agreement.
Qualified Institution means a depository institution organized under the laws of the United States of America or any State thereof or incorporated under the laws of a foreign jurisdiction with a branch or agency located in the United States of America or any State thereof and subject to supervision and examination by federal or state banking authorities which at all times has the Required Rating and, in the case of any such institution organized under the laws of the United States of America, whose deposits are insured by the FDIC.
Qualified Insurer means a financially sound and responsible insurance company duly authorized and licensed where required by law to transact business and having a general policy rating of A or better by A.M. Best Company, Inc.
Qualified Intermediary means a Person satisfying the requirements for a qualified intermediary within the meaning of Section 1031 of the Code and the regulations thereunder.
Qualified Trust Institution means an institution organized under the laws of the United States of America or any State thereof or incorporated under the laws of a foreign
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jurisdiction with a branch or agency located in the United States of America or any State thereof and subject to supervision and examination by federal or state banking authorities which at all times (i) is authorized under such laws to act as a trustee or in any other fiduciary capacity, (ii) has capital, surplus and undivided profits of not less than $50,000,000 as set forth in its most recent published annual report of condition, and (iii) has a long term deposits rating of not less than BBB- by S&P, Baa3 by Moodys and, unless otherwise agreed to by Fitch, BBB- by Fitch.
Rapid Amortization Period means, with respect to any Series of Notes, the period specified in the applicable Series Supplement.
Rating Agency with respect to any Series of Indenture Notes, has the meaning specified in the applicable Series Supplement; provided , that, if a Rating Agency ceases to rate the Indenture Notes of any Series of Indenture Notes, such Rating Agency shall be deemed to no longer constitute a Rating Agency for all purposes with respect to such Series of Indenture Notes.
Rating Agency Condition with respect to any Series of Indenture Notes, has the meaning specified in the applicable Series Supplement.
Reasonably Equivalent Value has the meaning specified in Section 1.07 of the Purchase Agreement.
Reassignment Claim has the meaning specified in Section 2.2 of the Collateral Agency Agreement.
Reassignment Report has the meaning specified in Section 2.2 of the Collateral Agency Agreement.
Record Date means, with respect to any Series of Indenture Notes and any Payment Date, the date specified in the applicable Series Supplement.
Redesignated Ineligible Program Vehicle has the meaning specified in Section 2.6 of the HVF Lease.
Registered Organization means registered organization within the meaning of Section 9-102(a)(70) of Revised Article 9.
Registrar has the meaning specified in Section 2.5(a) of the Base Indenture.
Rejected Vehicle has the meaning specified in Section 1.05(b) of the Purchase Agreement.
Rejected Vehicle Payment has the meaning specified in Section 1.05(b) of the Purchase Agreement.
Rejected Vehicle Schedule has the meaning specified in Section 1.05(b) of the Purchase Agreement.
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Related Document Actions has the meaning specified in Section 12.2(c) of the Base Indenture.
Related Documents means, collectively, the Indenture, the Indenture Notes, the Purchase Agreement, the Hertz Contribution Agreement, the HFC Purchase Agreement, the Nominee Agreement, the Hertz Nominee Agreement, the HFC Nominee Agreement, the Collateral Agency Agreement, the Indemnification Agreement, the LLC Agreement, the HVF Credit Facility, any Enhancement Agreement, the Assignment Agreements, the Administration Agreement, the Depository Agreements, any agreements relating to the issuance or the purchase of any Series of Indenture Notes, the HVF Lease, the Supplemental Documents relating to the HVF Lease, the Master Exchange Agreement and the Escrow Agreement.
Related Month means, (i) with respect to any Payment Date or Determination Date, the most recently ended calendar month, (ii) with respect to any other date, the calendar month in which such date occurs and (iii) with respect to an Interest Period, the month in which such Interest Period commences; provided , however , that with respect to the above clause (i) , the initial Related Month shall be the period from and including the Initial Closing Date to and including the last day of the calendar month in which the Initial Closing Date occurs.
Related Vehicle Collateral has the meaning specified in Section 5.1(a) of the Collateral Agency Agreement.
Relinquished Property Proceeds has the meaning specified in Section 1.1 of the Master Exchange Agreement.
Rent has the meaning specified in Section 4.3 of the HVF Lease.
Reportable Event has the meaning specified in Title IV of ERISA.
Repurchase Period means, with respect to any Program Vehicle, the period during which such Vehicle may be turned in to the Manufacturer thereof for repurchase or sale at Auction pursuant to the applicable Manufacturer Program.
Repurchase Price with respect to any Program Vehicle (i) subject to a Repurchase Program means the price paid or payable by the Manufacturer thereof to repurchase such Program Vehicle pursuant to its Manufacturer Program and (ii) subject to a Guaranteed Depreciation Program means the amount which the Manufacturer thereof guarantees will be paid to the seller of such Program Vehicle by such Manufacturer and/or the related auction dealers upon the disposition of such Program Vehicle pursuant to its Manufacturer Program.
Repurchase Program means a program pursuant to which a Manufacturer has agreed to repurchase Vehicles manufactured by such Manufacturer or one of its Affiliates during the specified Repurchase Period.
Required Asset Amount means, with respect to any Series of Notes, the amount specified in the applicable Series Supplement.
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Required Enhancement Amount means, with respect to any Series of Notes, the amount specified in the applicable Series Supplement.
Required Noteholders has the meaning specified, with respect to any Series of Indenture Notes, in the applicable Series Supplement.
Required Rating means (i) a short-term certificate of deposit rating from Moodys of P-1, from S&P of at least A-1+ and, if rated by Fitch, from Fitch of at least F-1+ and (ii) a long-term unsecured debt rating of not less than Aa3 by Moodys, not less than AA- by S&P and, unless otherwise agreed to by Fitch, not less than AA- by Fitch.
Requirements of Law means, with respect to any Person or any of its property, the certificate of incorporation or articles of association and by-laws, limited liability company agreement, partnership agreement or other organizational or governing documents of such Person or any of its property, and any law, treaty, rule or regulation, or determination of any arbitrator or Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject, whether Federal, state or local (including, without limitation, usury laws, the Federal Truth in Lending Act and retail installment sales acts).
Requisite Indenture Investors means Indenture Noteholders holding in excess of 50% of the Aggregate Indenture Principal Amount; provided , however , that, upon the occurrence and during the continuance of an Amortization Event with respect to any Series of Indenture Notes held by a Committed Purchaser, the purchase commitment of such Committed Purchaser shall be deemed to be zero.
Requisite Investors means Noteholders holding in excess of 50% of the sum of (a) the Aggregate Principal Amount and (b) the sum of the unutilized purchase commitments of the Committed Purchasers (excluding, for the purposes of making the foregoing calculation, any Notes held by any Affiliate of Hertz (other than a Committed Purchaser or an Affiliate Issuer) and the unutilized purchase commitments of any Committed Purchasers in respect of a Segregated Series of Notes); provided , however that, upon the occurrence and during the continuance of an Amortization Event with respect to any Series of Notes held by a Committed Purchaser, the purchase commitment of such Committed Purchaser shall be deemed to be zero.
Responsible Officer means, with respect to the Collateral Agent, any officer within the corporate trust department of the Collateral Agent, including any Vice President, Assistant Vice President or Assistant Treasurer of the Corporate Trust Office, or any trust officer, or any officer customarily performing functions similar to those performed by the person who at the time shall be such officers, or to whom any corporate trust matter is referred because of his knowledge of and familiarity with a particular subject, or any successor thereto responsible for the administration of the Collateral Agency Agreement.
Restatement Effective Date means September 18 , 2009.
Revised Article 8 means Article 8 of the New York UCC.
Revised Article 9 means Article 9 of the New York UCC.
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Revolving Period means, with respect to any Series of Notes, the period specified in the applicable Series Supplement.
S&P or Standard & Poors means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.
Securities Act means the Securities Act of 1933, as amended.
Segregated Collateral Agency Series means any Segregated Series of Notes with respect to which the Collateral Agent shall act as collateral agent pursuant to the Collateral Agency Agreement, as specified in the related Series Supplement.
Segregated Non-Collateral Agency Series means any Segregated Series of Notes with respect to which the Collateral Agent does not act as collateral agent pursuant to the Collateral Agency Agreement, as specified in the applicable Series Supplement.
Segregated Collection Account means the collection account or other account designated in a Series Supplement to receive certain collections with respect to the Series-Specific Collateral for such Segregated Series; provided , that, if any such Series Supplement designates an alternate method for treating collections with respect to the Series-Specific Collateral for such Segregated Series, references to the Segregated Collection Account for such Segregated Series shall be deemed to be references to such alternate method.
Segregated Nominee Series means any Segregated Series of Notes with respect to which the Nominee shall be nominee titleholder with respect to the Vehicles included in the Series-Specific Collateral, as specified in the related Series Supplement.
Segregated Non-Nominee Series means any Segregated Series of Notes with respect to which the Nominee does not act as nominee titleholder with respect to the Vehicles included in the Series-Specific Collateral, as specified in the applicable Series Supplement.
Segregated Non-Program Vehicle unless otherwise specified in the related Segregated Series Supplement, means an HVF Segregated Vehicle that is not subject to a Manufacturer Program on the lease commencement date for such HVF Segregated Vehicle under the related Segregated Series Lease.
Segregated Noteholder means the Person in whose name a Segregated Note is registered in the Note Register.
Segregated Notes has the meaning specified in the recitals to the Base Indenture.
Segregated Program Vehicle means an HVF Segregated Vehicle eligible under, and subject to, a Manufacturer Program.
Segregated Series is defined in Section 2.3(b) of the Base Indenture.
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Segregated Series Lease means any lease relating to a Segregated Series of Notes, between HVF, as lessor thereunder, and Hertz, as lessee and as servicer, as the same may be amended, restated, modified or supplemented from time to time in accordance with its terms.
Segregated Series Note Obligations means all principal and interest, at any time and from time to time, owing by HVF on a particular Segregated Series of Notes and all costs, fees and expenses payable by, or obligations of, HVF under the Indenture, the related Segregated Series Supplement and/or the Related Documents (other than any Related Documents or portions thereof relating solely to any other Segregated Series or relating solely to any Series of Notes) to the extent relating solely to the related Series-Specific Collateral.
Segregated Series of Notes or Segregated Series means each Series of Segregated Notes issued and authenticated pursuant to the Base Indenture and the applicable Segregated Series Supplement.
Segregated Series Supplement means any Series Supplement relating to a Segregated Series of Notes.
Seller has the meaning specified in the recitals to the Purchase Agreement.
Series Account means any account or accounts established pursuant to a Series Supplement for the benefit of a Series of Indenture Notes.
Series Closing Date means, with respect to any Series of Indenture Notes, the date of issuance of such Series of Indenture Notes, as specified in the applicable Series Supplement.
Series of Indenture Notes means, collectively, each Series of Notes and each Segregated Series of Notes.
Series of Notes or Series means each Series of Notes issued and authenticated pursuant to the Base Indenture and the applicable Series Supplement (for the avoidance of doubt, excluding any Segregated Series of Notes).
Series-Specific Collateral has the meaning specified in the recitals of the Base Indenture.
Series-Specific Swap Agreement means one or more interest rate swap contracts, interest rate cap agreements or similar contracts entered into by HVF in connection with the issuance of a Series of Indenture Notes, as specified, and designated as a Series-Specific Swap Agreement in the applicable Series Supplement, providing limited protection against interest rate risks solely with respect to such Series of Indenture Notes.
Series Supplement means a supplement to the Base Indenture complying (to the extent applicable) with the terms of Section 2.3 of the Base Indenture.
Series Termination Date means, with respect to any Series of Indenture Notes, the date stated in the applicable Series Supplement as the termination date.
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Servicer means Hertz, in its capacity as servicer under the HVF Lease or any Segregated Series Lease, the Purchase Agreement and the Collateral Agency Agreement, as applicable.
Servicer Default has the meaning specified in Section 17.7 of the HVF Lease.
Service Vehicles means, solely during the period commencing on December 21, 2005 and ending 180 days from December 21, 2005, a passenger automobile or light-duty truck which is sold by HFC to HVF on or prior to December 21, 2005 pursuant to the HFC Purchase Agreement and leased by HVF to the Lessee pursuant to the HVF Lease (including any such Vehicle that constitutes Replacement Property under and as defined in the Master Exchange Agreement) and (i) that is not older than forty-eight (48) months from the date of the original manufacturer invoice therefore, (ii) the Certificate of Title for which is in the name of HFC and shall not note any lien thereon, including, without limitation, the lien of the Collateral Agent (or the Certificate of Title has been submitted to the appropriate state authorities for retitling and notation of the lien of the Collateral Agent as the first lienholder), (iii) that has been made subject to the HFC Nominee Agreement, (iv) that is owned by HVF free and clear of all Liens other than Permitted Liens and (v) that is designated as an HVF Vehicle in accordance with the Collateral Agency Agreement. For the avoidance of doubt, with respect to any passenger automobile or light-duty truck, from and after receipt by the Servicer or a Servicers Agent, as agent of, and custodian for, the Collateral Agent, or its designated agents, of a Certificate of Title with respect to such passenger automobile or light-duty truck which is in the name of Hertz Vehicles LLC, as nominee titleholder for HVF and which notes the Collateral Agent as the first lienholder, such passenger automobile or light-duty truck shall not constitute a Service Vehicle. In addition, for the avoidance of doubt, from and after the expiration of the period ending 180 days from December 21, 2005, no passenger automobile or light-duty truck shall constitute a Service Vehicle.
Special Default Payments has the meaning specified in Section 13.3 of the HVF Lease.
Special Term has the meaning specified in Section 3.1 of the HVF Lease.
Specified Bankruptcy Opinion Provisions means the provisions contained in the legal opinions delivered in connection with the issuance of each Series of Indenture Notes or, if applicable, amendments to the Related Documents relating to the non-substantive consolidation of Hertz and its Affiliates (other than Hertz Vehicles LLC) and HVF.
Subaru means Subaru of America, Inc., a New Jersey corporation, and its successors.
Subordinated Series of Indenture Notes means a subordinated Series of Indenture Notes (other than, for the avoidance of doubt, a subordinated Class of Indenture Notes issued pursuant to a Series Supplement) which is fully subordinated to each Series of Indenture Notes Outstanding (other than any other previously issued Subordinated Series of Indenture Notes).
Suzuki means Suzuki Motor Corporation and its successors.
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Subsidiary means, with respect to any Person (herein referred to as the parent), any corporation, partnership, association or other business entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or more than 50% of the general partnership interests are, at the time any determination is being made, owned, controlled or held by the parent or (b) that is, at the time any determination is being made, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
Supplement means a supplement to the Base Indenture complying (to the extent applicable) with the terms of Article 12 of the Base Indenture.
Supplemental Documents has the meaning specified in Section 2.1 of the HVF Lease.
SV Transfer Price has the meaning specified in Section 1.02 of the HFC Purchase Agreement.
Swap Agreement means one or more interest rate swap contracts, interest rate cap agreements or similar contracts (other than a Series-Specific Swap Agreement) entered into by HVF in connection with the issuance of a Series of Notes, as specified, and designated, as a Swap Agreement, in the applicable Series Supplement, providing limited protection against interest rate risks.
Swap Payments means amounts payable to or receivable by HVF pursuant to any Swap Agreement.
Tax Opinion means an Opinion of Counsel to be delivered in connection with the issuance of a new Series of Indenture Notes to the effect that, for United States federal income tax purposes, (i) the issuance of such new Series of Indenture Notes will not affect adversely the United States federal income tax characterization of any Series of Indenture Notes Outstanding or Class thereof that was (based upon an Opinion of Counsel) characterized as debt at the time of their issuance and (ii) HVF will not be classified as an association or as a publicly traded partnership taxable as a corporation for United States federal income tax purposes.
10-K Report has the meaning specified in Section 25.5 of the HVF Lease.
Term has the meaning specified in Section 3.2 of the HVF Lease.
Termination Payment means the collective reference to Excess Damage Charges, Excess Mileage Charges, early turnback surcharges and any other similar charges and penalties charged under the Manufacturer Programs.
Termination Value means, with respect to (a) any HVF Vehicle or HGI Vehicle other than a Transferred HVF Vehicle or Transferred HGI Vehicle, as of any date, an amount equal to (i) the Capitalized Cost of such Vehicle, minus (ii) all Depreciation Charges for such Vehicle accrued prior to such date under the applicable Lease , (b) any Transferred HVF Vehicle or Transferred HGI Vehicle, as of any date, an amount equal to (i) the Transfer Price previously
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paid by or on behalf of HGI or HVF, as the case may be, for such Vehicle pursuant to Section 1.07 of the Purchase Agreement minus (ii) all Depreciation Charges for such Transferred HVF Vehicle or Transferred HGI Vehicle accrued under the applicable Lease from the date such Vehicle was transferred pursuant to Section 1.06 of the Purchase Agreement to such date, (c) any Initial Hertz Vehicle, as of any date, an amount equal to (i) the IHV Transfer Value of such Initial Hertz Vehicle minus (ii) all Depreciation Charges for such Initial Hertz Vehicle accrued under the applicable Lease from the date such Initial Hertz Vehicle was transferred pursuant to Section 1.01 of the Hertz Contribution Agreement to such date and (d) any Service Vehicle, as of any date, an amount equal to (i) the SV Transfer Price previously paid by or on behalf of HVF for such Vehicle pursuant to Section 1.02 of the HFC Purchase Agreement minus (ii) all Depreciation Charges for such Service Vehicle accrued under the applicable Lease from the date such Service Vehicle was transferred pursuant to Section 1.01 of the HFC Purchase Agreement to such date.
Toyota means Toyota Motor Sales, U.S.A., Inc., a California corporation, and its successors, provided , that for determination of ratings by the Rating Agencies, Toyota means Toyota Motor Corporation and its successors.
Transfer Price has the meaning specified in Section 1.07 of the Purchase Agreement.
Transferred HGI Vehicle means, as of any date of determination, a HGI Vehicle which has been sold to HVF pursuant to Section 1.06 of the Purchase Agreement prior to such date.
Transferred HVF Vehicle means, as of any date of determination, an HVF Vehicle which has been sold to HGI pursuant to Section 1.06 of the Purchase Agreement prior to such date.
Transferred HVF Segregated Vehicle means, as of any date of determination, an HVF Segregated Vehicle which has been sold to HGI pursuant to Section 1.06 of the Purchase Agreement prior to such date.
Transferred Vehicle means a Transferred HGI Vehicle, a Transferred HVF Vehicle or a Transferred HVF Segregated Vehicle.
Transferred Vehicle Schedule has the meaning specified in Section 1.06 of the Purchase Agreement.
Trustee means the party named as such in the Indenture until a successor replaces it in accordance with the applicable provisions of the Indenture and thereafter means the successor serving thereunder.
Trust Officer means any officer within the corporate trust department of the Trustee, including any Vice President, Assistant Vice President or Assistant Treasurer of the Corporate Trust Office, or any trust officer, or any officer customarily performing functions similar to those performed by the person who at the time shall be such officers, or to whom any
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corporate trust matter is referred because of his knowledge of and familiarity with a particular subject, or any successor thereto responsible for the administration of the Base Indenture.
Turnback Date means, with respect to any Program Vehicle, the date on which such Vehicle is accepted for return by a Manufacturer or its agent pursuant to its Manufacturer Program and the Depreciation Charges cease to accrue pursuant to its Manufacturer Program.
UCC means the Uniform Commercial Code as in effect from time to time in the specified jurisdiction.
United States or U.S. means the United States of America, its fifty States and the District of Columbia.
U.S. Government Obligations means direct obligations of the United States of America, or any agency or instrumentality thereof for the payment of which the full faith and credit of the United States of America is pledged as to full and timely payment of such obligations.
Vehicle means an HGI Vehicle, an HVF Vehicle or an HVF Segregated Vehicle.
Vehicle Collateral means the collective reference to the HGI Vehicle Collateral, the HVF Vehicle Collateral and the HVF Segregated Vehicle Collateral.
Vehicle Funding Date has the meaning specified in Section 3.1 of the HVF Lease.
Vehicle Operating Lease Commencement Date has the meaning specified in Section 3.1 of the HVF Lease.
Vehicle Operating Lease Expiration Date has the meaning specified in Section 3.1 of each of the Leases.
Vehicle Purchase Price has the meaning specified in Section 2.4 of the HVF Lease.
Vehicle Return Default has the meaning specified in Section 17.6 of the HVF Lease.
Vehicle Term has the meaning specified in Section 3.1 of the HVF Lease.
Vehicle Turn-In Condition has the meaning specified in Section 13.1 of the HVF Lease.
Volkswagen means Volkswagen of America, Inc., a New Jersey corporation, and its successors.
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Volvo means Volvo Cars of North America, LLC, a Delaware limited liability company, and its successors.
VIN means vehicle identification number.
written or in writing means any form of written communication, including, without limitation, by means of telex, telecopier device, telegraph or cable.
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EXHIBIT A
TO BASE INDENTURE
FORM OF MONTHLY SERVICING CERTIFICATE
HERTZ VEHICLE FINANCING LLC
Pursuant to Section 4.1(c) of the Third Amended and Restated Base Indenture dated as of September 18, 2009 for Rental Car Asset Backed Notes (Issuable in Series) by and between Hertz Vehicle Financing LLC, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee (the Base Indenture), the undersigned , of Hertz Vehicle Financing LLC, does hereby certify to the best of his knowledge after due investigation that:
1. Attached hereto is a true and correct copy of the monthly Noteholders Statement hereby delivered on or before the fourth Business Day prior to the upcoming Payment Date pursuant to Section 4.1(d) of the Base Indenture.
The undersigned has read the provisions of the Indenture relating to the foregoing, has made due investigation into the matters discussed herein, which investigation has enabled him to express an informed opinion on the foregoing and, in the opinion of the undersigned, those conditions or covenants contained in the Base Indenture which relate to the above matters have been complied with.
Capitalized terms used herein shall have the meanings set forth in the Base Indenture and Schedule 1 (Definitions List) thereto.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Officers Certificate this day of , .
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EXHIBIT B
TO BASE INDENTURE
FORM OF HVF CREDIT FACILITY
This CREDIT AGREEMENT (this Agreement) is to be effective as of [ ], [ ], and is between THE HERTZ CORPORATION, a Delaware corporation (Lender), or its successors or assignees, and HERTZ VEHICLE FINANCING LLC, a Delaware limited liability company (Borrower).
BACKGROUND
A. Lender is willing to make a loan in the aggregate principal amount of up to [ ] ($[ ]) available to Borrower on the terms and conditions contained in this Agreement.
B. Borrower desires to use the proceeds received pursuant to this Agreement for general corporate purposes.
AGREEMENT
In consideration of the mutual promises set forth in this Agreement, Borrower and Lender agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms . For purposes of this Agreement, the following terms shall have the following definitions:
Amortization Event with respect to each Series of Notes has the meaning specified in the Indenture.
Business Day shall mean any day (excluding each Saturday, Sunday and legal holiday) on which [ ], a [ ] banking corporation, is open to transact business.
Default Rate shall mean the applicable Loan Rate plus (2) percentage points per annum.
Event of Default shall mean each event identified in Article 13 of this Agreement.
Governmental Authority shall mean any federal, state, local or foreign court or governmental department, commission, board, bureau, agency, authority, instrumentality or regulatory body.
Indenture shall mean the Third Amended and Restated Base Indenture, dated as of September 18, 2009, between the Borrower and The Bank of New York Trust Company, N.A., as trustee, as the same may be amended and supplemented from time to time, including by any Series Supplement.
Interest Payment Date shall mean, the 25th day of each month, or if such date is not a Business Day, the next succeeding Business Day, commencing on [ ], [ ], unless otherwise specified in any Series Supplement for the related Series of Notes.
Interest Period shall have the meaning set forth in Section 2.03.
Loan shall have the meaning set forth in Section 2.01(a).
Loan Documents shall mean this Agreement, the Loan Note and all other agreements, instruments and documents now or hereinafter executed by or on the behalf of Borrower and delivered to Lender which evidence or relate to this Agreement or the transactions contemplated hereby.
Loan Note shall mean that certain Loan Note dated the date hereof made by Borrower and held by Lender in the aggregate principal amount of up to [ ] ($[ ]), a copy of which is attached hereto and made a part hereof as Exhibit A.
Loan Rate shall mean, unless provided to the contrary elsewhere in this Agreement, [ ] percent ([ ]%) per annum.
Maturity Date shall mean [ ], [ ], unless accelerated upon an Event of Default or otherwise restricted pursuant to Section 2.05 hereof; provided , however , that the Maturity Date shall be extended automatically by one year on each December 31 occurring after the date hereof unless written notice of nonrenewal is received by the Borrower from the Lender no fewer than 180 days prior to such date.
Notes shall mean notes issued by the Borrower pursuant to the Indenture.
Obligations shall mean the Loan and each other loan, advance, indebtedness, liability, obligation, covenant or duty (including post-petition interest on the foregoing, to the extent lawful) owing, arising, due or payable from Borrower to Lender of any kind or nature, present or future, arising under the Loan Documents, whether direct or indirect (including those acquired by assignment), as the same may be modified, extended or renewed from time to time. Such term includes, without limitation, all interest, charges, expenses, fees, attorneys fees and each other sum chargeable to Borrower by Lender under the Loan Documents.
Outstanding shall have the meaning specified, with respect to any Series, in the applicable Series Supplement.
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Person shall mean any natural person, corporation, business trust, joint venture, association, company, partnership, limited liability company, joint stock company, corporation, trust, unincorporated organization or Government Authority.
Series shall mean any series of Notes issued by the Borrower.
Series Supplement shall mean a supplement to the Indenture that authorizes a particular Series of Notes.
Taxes shall mean each present or future stamp or documentary tax or other excise or property tax, charge or similar levy of the United States or any state or political subdivision thereof or any applicable foreign jurisdiction that may arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement.
ARTICLE II
Revolving Credit Facility
SECTION 2.01. Revolving Loan . (a) Lender hereby establishes, subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties made herein by Borrower, a loan (the Loan) in favor of Borrower in an aggregate principal amount not to exceed [ ] ($[ ]) and, subject to Section 2.01(d), agrees to make and remake advances to Borrower, upon the terms and conditions set forth in this Agreement, on any Business Day while this Agreement is in effect; provided , however , that Borrower shall give Lender notice on or before 12:00 noon on such Business Day of the amount of each desired advance and the date funds are to be received by Borrower.
(b) Borrower shall request an advance under this Agreement in writing by any officer of Borrower.
(c) Borrower shall not be required to pay any commitment fee, either initially or annually, with respect to this Agreement.
(d) Notwithstanding anything to the contrary in this Agreement, Lender shall not be obligated to advance funds under this Agreement to Borrower.
SECTION 2.02. Term . This Agreement shall continue in effect until the later of the Maturity Date or the date on which all of the Obligations have been paid in full.
SECTION 2.03. Interest . Except as otherwise provided in Section 3.01, Borrower agrees to pay to Lender interest on the weighted average principal amount of the Loan outstanding during each Interest Period at the Loan Rate on the Interest Payment Date for the period from and including the prior Interest Payment Date, or in the case of the first Interest Payment Date, the date of this Agreement, to but excluding such
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Interest Payment Date (each 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.
SECTION 2.04. Prepayment Privilege . Borrower may prepay without penalty any portion of, or the entire, outstanding balance due under this Agreement; provided , however , that Borrower may not make prepayments until funds are released to Borrower under any Series Supplement(s).
SECTION 2.05. Available Funds . Notwithstanding any provision to the contrary in this Agreement, the Loan Notes(s) or any other Loan Document, the parties agree that all amounts payable by Borrower under this Agreement, any Loan Note or any other Loan Document on each Interest Payment Date are hereby expressly made subordinate and subject in right of payment to the prior payment in full in cash of all obligations, whether direct or indirect, absolute or contingent due under the Series Supplement(s) as of such Interest Payment Date, in each case whether on account of principal, interest, fees, indemnities, costs, expenses or otherwise. This subordination is for the benefit of and enforceable by the holders of Notes. All amounts payable by Borrower to Lender under this Agreement, any Loan Note or any other Loan Document are due and payable to Lender only to the extent funds are released to Borrower under any Series Supplement(s).
SECTION 2.06. Loan Note . Contemporaneously with the execution of this Agreement, Borrower shall execute and deliver the Loan Note to Lender. The principal amount owing to Lender under the Loan Note at any given time shall be the aggregate amount of all advances made under the Loan, less all payments of principal theretofore paid by or on behalf of Borrower. The Loan Note shall (i) be payable to the order of the Lender, (ii) be dated the date hereof, and (iii) mature on the Maturity Date.
ARTICLE III
Default
SECTION 3.01. Default Interest Rate . Notwithstanding any provision to the contrary in this Agreement, during the existence of any Event of Default the aggregate outstanding principal amount of the Loan shall accrue interest at the Default Rate.
SECTION 3.02. Interest Payable . To the fullest extent permitted under applicable law, interest shall continue to accrue on the Loan after the filing by or against Borrower of a petition seeking relief in bankruptcy or under any act or law pertaining to insolvency or debtor relief, whether state, federal or foreign.
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ARTICLE IV
Payment
SECTION 4.01. Timing . All payments (including prepayments) by Borrower on account of principal, interest, costs and expenses under the Loan shall be made to Lender in immediately available funds not later than 3:00 p.m., New York City time on the date such payment is due, subject to Section 2.05 hereof. Any payment received after 3:00 p.m. shall be deemed to have been received by Lender the next Business Day. If any payment of principal or interest falls due on a day that is not a Business Day, then such due date shall be extended to the next succeeding Business Day, and interest shall continue to accrue on the outstanding principal for such period of extension, but interest for the period of extension shall not be due or payable until the next payment date.
SECTION 4.02. Application of Payments . Each payment made by Borrower shall be applied (i) first, to the payment of accrued and unpaid fees and interest on the Loan Note, and (ii) second, to the payment of unpaid principal on the Loan Note; provided , however , that, during the existence of an Event of Default, Lender may apply all such payments in any amounts and in any fashion or priority as Lender in its sole discretion may determine.
ARTICLE V
Use of Proceeds
Borrower covenants to use the proceeds received pursuant to this Agreement exclusively for general corporate purposes, including, without limitation, paying off debt (now existing or hereafter incurred) and as working capital.
ARTICLE VI
Disbursement of Proceeds
Borrower hereby authorizes Lender to disburse, for and on behalf of Borrower, the proceeds of each advance under this Agreement, in the form of a wire transfer to such bank account of Borrower as Borrower from time to time instructs Lender in accordance with the terms set forth in Section 2.01 of this Agreement.
ARTICLE VII
Taxes
SECTION 7.01. Liability . Borrower agrees to pay all Taxes incurred by Borrower with respect to proceeds disbursed under this Agreement.
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SECTION 7.02. Indemnification . Borrower agrees to indemnify Lender for the full amount of Taxes paid by Lender in connection with the Loan Documents and any transactions contemplated thereby and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. Borrower further agrees that such indemnification shall be made within thirty (30) days from the date Lender makes written demand therefor, subject to Section 2.05 hereof.
ARTICLE VIII
Register
Lender may maintain a register on which it records advances made by it to Borrower from time to time, and each payment in respect thereof. If Lender maintains such a register, such recordation shall be conclusive, absent error therein. Failure to maintain any such register, or any error in such register, shall not affect Borrowers obligations under this Agreement.
ARTICLE IX
Waiver of Rights
Borrower expressly waives: (i) notice of extension of credit to Borrower by Lender, (ii) presentment and demand for payment of any of the Obligations, (iii) protest and notice of dishonor of or default to Borrower or to any other party with respect to the Obligations, (iv) each other notice to which Borrower might otherwise be entitled, (v) any right to assert against Lender, as a defense, counterclaim, set-off or cross-claim, any defense (legal or equitable), setoff, counterclaim or claim which Borrower may now or hereafter have against Lender, but such waiver shall not prevent Borrower from asserting against Lender in a separate action, any claim, action, cause of action or demand that Borrower might have, whether or not arising out of this Agreement.
ARTICLE X
Representations and Warranties of Borrower
SECTION 10.01. Borrower is a duly organized and validly existing limited liability company under the laws of the State of Delaware.
SECTION 10.02. Borrower (i) is in good standing in each state in which it does business which is material to its operations, and (ii) has no material federal, state or local tax liabilities, which are past due, except such tax liabilities, if any, as are being contested in good faith and for which adequate reserves have been set aside on its books.
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SECTION 10.03. To the best of the knowledge of the undersigned officer of Borrower, there is no legal action or proceeding pending against Borrower which would prevent Borrower from validly entering into this Agreement.
SECTION 10.04. Borrower has the legal power to enter into this Agreement and the undersigned officer executing this Agreement on behalf of Borrower has been duly authorized to do so.
SECTION 10.05. Neither the execution nor the performance of the obligations contained in this Agreement constitutes a material violation, breach or default under any other agreement by which Borrower is bound.
ARTICLE XI
Affirmative Covenants
Until the Obligations are paid in full, Borrower covenants and agrees that, unless Lender otherwise consents in writing:
SECTION 11.01. Borrower will promptly repay the Obligations when due, subject to Section 2.05 hereof, including, without limitation, the amounts due under the Loan Note (and each other applicable Loan Document), according to the terms and conditions contained herein and therein.
SECTION 11.02. Borrower shall perform all obligations required to be performed by it under the terms of this Agreement, the Loan Note and each other applicable Loan Document.
SECTION 11.03. Borrower agrees to notify Lender promptly, but in no event later than five (5) Business Days after Borrower obtains knowledge of any: (i) Event of Default, or (ii) matter, including litigation or any investigation, government regulation or enforcement, that has resulted in, or might reasonably be expected to result in, a materially adverse change in the financial condition, operations or business affairs of Borrower.
SECTION 11.04. Borrower shall pay all taxes, assessments and government charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it, prior to the date on which penalties attach thereto, and all lawful claims which, if unpaid, might become a lien or charge upon any asset or property of Borrower; provided , however , that Borrower may, in good faith and with due diligence in appropriate proceedings contest any such tax, assessment, charge, levy or claim.
SECTION 11.05. Borrower agrees to comply in all material respects with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by,
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all governmental bodies, the noncompliance with which would be materially adverse to the conduct of Borrowers business.
ARTICLE XII
Negative Covenants
Until the Obligations are paid in full, Borrower covenants and agrees that, unless Lender otherwise consents in writing, Borrower shall not wind-up, liquidate, dissolve or, except with respect to a merger, consolidation or reorganization in which Borrower is the surviving corporation, enter into a consolidation, merger, syndication or other combination, or sell, lease, transfer or otherwise dispose of, in a single transaction or a series of related transactions, substantially all of its business or assets.
ARTICLE XIII
Events of Default
Each of the following shall constitute an Event of Default: (a) Borrower fails to make any payment required by this Agreement when due and the same is not cured within ten (10) Business Days; (b) Borrower breaches any covenant that Borrower has made to Lender in any Loan Document such breach and is not cured within thirty (30) Business Days; (c) any representation or statement made to Lender by Borrower or on Borrowers behalf is false or misleading in any material respect; (d) Borrower becomes insolvent, or a receiver is appointed for any part of Borrowers property; (e) Borrower makes any material assignment for the benefit of creditors; (f) any proceeding is commenced either by Borrower or against Borrower under any bankruptcy or insolvency law and such proceeding is not cured within sixty (60) days; or (g) an Amortization Event occurs with respect to all Series of Notes Outstanding.
ARTICLE XIV
Rights and Remedies After Event of Default
SECTION 14.01. During the existence of an Event of Default, Lender may: (i) declare that this Agreement is terminated, whereupon the Lender will cease to advance funds hereunder, (ii) subject to Section 2.05 hereof, declare the Obligations to be, and the same shall thereupon be, immediately due and payable without presentation, demand, or protest or other requirements of any kind (including, without limitation, valuation and appraisement, diligence, presentment, notice of intent to demand or accelerate and notice of acceleration), all of which are hereby expressly waived by Borrower, and (iii) exercise all of its rights under this Agreement in order to satisfy the Obligations.
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SECTION 14.02. The enumeration of Lenders rights in Section 14.01 is not intended to be exhaustive and the exercise by Lender of any right or remedy shall not preclude the exercise of any other right or remedy, all of which shall be cumulative, and shall be in addition to any other right or remedy given hereunder. No delay or failure to take action on the part of Lender in exercising any right shall be construed to be a waiver of any Event of Default. No course of dealing with Borrower by Lender, its agents or employees shall effect a change, modification or amendment to this Agreement nor shall it constitute a waiver of any Event of Default.
ARTICLE XV
Notices
Each notice required to be given under this Agreement shall be in writing addressed to the appropriate recipient at the following address (or fax number) listed in this Article 15, or such other address (or fax number) as the addressee may specify from time to time. Any notice may be delivered by (i) hand, (ii) United States mail, postage prepaid, (iii) Federal Express (or any other nationally recognized overnight courier), delivery charge prepaid, or (iv) fax (or any other similar facsimile device). Such notice shall be effective (i) when received if hand delivered, mailed or couriered, and (ii) when dispatched if given by fax.
TO LENDER:
The Hertz Corporation
225 Brae Boulevard
Park Ridge, NJ 07656
Attn: Treasury Department
TO BORROWER:
Hertz Vehicle Financing
LLC
225 Brae Boulevard
Park Ridge, NJ 07656
Attn: Treasury Department
ARTICLE XVI
No Petition
Lender agrees that it shall not institute against, or join any other Person in instituting against, Borrower any bankruptcy, reorganization, arrangement, insolvency or
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liquidation proceeding, or any other proceeding under any federal or state bankruptcy or similar law, for one year and a day after the Loan is repaid in full.
ARTICLE XVII
Waiver of Jury Trial
BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY LOAN DOCUMENT OR ANY TRANSACTION CONTEMPLATED IN ANY SUCH LOAN DOCUMENT. BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
ARTICLE XVIII
Miscellaneous
SECTION 18.01. The parties hereto agree to cooperate with each other to the fullest extent reasonably possible by executing all documents that may from time to time be required to perfect the interest of either party hereto arising hereunder and the rights and obligations hereunder.
SECTION 18.02. This Agreement may not be amended or modified without the written consent of all parties hereto.
SECTION 18.03. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK.
SECTION 18.04. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the remainder of this Agreement which may be given effect without the invalid or unenforceable provision, and to this end the provisions of this Agreement shall be severable.
SECTION 18.05. This Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior understandings and agreements.
SECTION 18.06. All section and article headings in this Agreement are for convenience of reference only and do not form part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement.
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SECTION 18.07. Each party agrees to pay its respective expenses incurred with the preparation of this Agreement, the carrying out of its terms and the consummation of the transactions contemplated thereby.
SECTION 18.08. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
ARTICLE XIX
Non-Petition
Lender hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of all of the Notes, it will not institute against, or join any other Person in instituting against Borrower, and bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States. In the event that Lender takes action in violation of this Article XIX, Borrower agrees, for the benefit of the holders of Notes, that it shall file an answer with the bankruptcy court or otherwise properly contest the filing of such a petition by Lender against it or the commencement of such action and raise the defense that Lender has agreed in writing not to take such action and should be estopped and precluded therefrom. The provisions of this Article XIX shall survive the termination of this Agreement.
ARTICLE XX
Limited Recourse
The obligations of Borrower under this Agreement are solely the obligations of Borrower. No recourse shall be had for the payment of any amount owing in respect of any fee hereunder or another obligation or claim arising out of or based upon this Agreement against any member, employee, officer or director of Borrower. Amounts, fees, expenses or costs payable by Borrower hereunder shall be payable by Borrower to the extent and only to the extent that Borrower is reimbursed therefore pursuant to any of the Related Documents, or funds are then available or thereafter become available for such purpose pursuant to the Indenture, and the amount of any fees, expenses or costs exceeding such funds shall in no event constitute a claim (as defined in Section 101 of the Bankruptcy Code) against, or corporate obligation of, Borrower.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of the th day of , .
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EXHIBIT A
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LOAN NOTE
§1. Promise to Pay.
Hertz Vehicle Financing LLC, a Delaware limited liability company (Borrower), hereby promises to pay to The Hertz Corporation, a Delaware corporation with headquarters located at 225 Brae Boulevard, Park Ridge, New Jersey 07656 (Lender), or its successors or assigns, in lawful money of the United States of America, the aggregate principal amount outstanding under this Loan Note of up to [ ] Dollars ($[ ]), together with all accrued interest. Each capitalized term used herein, and not defined herein, shall be given the same meaning as such term is given in that certain Credit Agreement between Lender and Borrower to be effective on the date hereof (Credit Agreement).
§2. Interest.
Until the Obligations have been paid in full, interest shall accrue on the outstanding principal balance hereof at the Loan Rate. Borrower shall not pay to Lender any commitment fee with respect to this Loan Note. During the existence of an Event of Default, Borrower agrees to pay interest at the Default Rate; provided , that interest shall accrue but will not be payable until and only to the extent funds are released to Borrower under any Series Supplement(s).
§3. Payments.
Borrower shall make payments of all accrued and unpaid interest on the weighted average principal amount of the Loan outstanding during each Interest Period at the Loan Rate on the Interest Payment Date. 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. Borrower shall pay Lender each payment required hereunder at Lenders address shown above or, if requested in writing by any officer of Lender, by wire transfer to another address as is designated by Lender. Except as provided in the Credit Agreement or required by applicable law, payments will be applied first to accrued and unpaid interest, then to principal.
§4. Prepayments.
Borrower may prepay without penalty all or a portion of the amount owed under this Loan Note; provided , however , that Borrower may only make prepayments with funds released to Borrower under any Series Supplement(s). Prepayments will not, unless agreed by Lender in writing, relieve Borrower of Borrowers
obligation to continue to make interest payments as provided in §3 above. Rather, each prepayment shall be applied to reduce the principal balance then outstanding.
§5. Default.
Each of the following shall constitute an Event of Default: (a) Borrower fails to make any payment required by the Credit Agreement when due and the same is not cured within ten (10) Business Days; (b) Borrower breaches any covenant that Borrower has made to Lender in any Loan Document and such breach is not cured within thirty (30) Business Days; (c) any representation or statement made to Lender by Borrower or on Borrowers behalf is false or misleading in any material respect; (d) Borrower becomes insolvent, or a receiver is appointed for any part of Borrowers property; (e) Borrower makes any material assignment for the benefit of creditors; (f) any proceeding is commenced either by Borrower or against Borrower under any bankruptcy or insolvency law and such proceeding is not cured within sixty (60) days; or (g) an Amortization Event occurs with respect to all Series of Notes Outstanding.
§6. Lenders Rights.
During the existence of an Event of Default, Lender may: (i) declare that the Credit Agreement is terminated, and cease to make continued credit available to Borrower under this Loan Note and the Credit Agreement, (ii) declare all or any part of the Obligations immediately due and payable, subject to §9 of this Loan Note below, and (iii) exercise all of its rights under this Note and the Credit Agreement in order to satisfy the Obligations.
§7. Revolving Line of Credit.
This Note evidences a revolving line of credit. Once the total principal amount of this Loan Note has been advanced, Borrower is only entitled to further loan advances upon repayment of a corresponding amount of principal. Each advance under this Loan Note may only be requested as set forth in the Credit Agreement. Borrower agrees to be liable for all sums advanced in accordance with the terms of this §7. The unpaid principal balance owing on this Loan Note at any time will be recorded on the schedule attached hereto and made a part hereof (the Schedule). Lender is authorized to make notations of the advances made by Lender to Borrower under this Loan Note, and of all payments by Borrower to Lender of outstanding principal amounts and accrued interest on the Loan, on the Schedule. Such notations, if made, will be presumed correct unless the contrary is established.
§8. General Provisions.
Lender may delay or forgo enforcing any of its rights or remedies under this Loan Note without waiver of those rights. Borrower, to the extent allowed by
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applicable law, waives presentment, demand for payment, protest and notice of dishonor. Upon any change in the terms of this Loan Note, and unless otherwise expressly stated in writing, no party who signs this Loan Note shall be released from liability. Neither Lender nor Borrower may renew, extend, amend or modify this Loan Note without the written consent of the other.
§9. Available Funds.
Notwithstanding any provision to the contrary in this Loan Note, the Credit Agreement or any other Loan Document, all amounts payable to Lender by Borrower under this Loan Note, the Credit Agreement or any other Loan Document are hereby expressly made subordinate and subject in right of payment to the prior payment in full in cash of all obligations, whether direct or indirect, absolute or contingent due under the Series Supplement(s), in each case whether on account of principal, interest, fees, indemnities, costs, expenses or otherwise. This subordination is for the benefit of and enforceable by the holders of Notes. All amounts payable by Borrower to Lender under this Loan Note, the Credit Agreement or any other Loan Document are due and payable to Lender only to the extent funds are released to Borrower under any Series Supplement(s).
§10. Separate Counterparts
This Loan Note may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
§11. Governing Law.
THIS LOAN NOTE WILL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK.
§12. Waiver of Jury Trial.
BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS LOAN NOTE, ANY LOAN DOCUMENT OR ANY TRANSACTION CONTEMPLATED IN ANY SUCH LOAN DOCUMENT. BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
§13. Non-petition.
Lender hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of all of the Notes, it will not institute against, or
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join any other Person in instituting against Borrower, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States. In the event that the Lender takes action in violation of this §13, Borrower agrees, for the benefit of the holders of Notes, that it shall file an answer with the bankruptcy court or otherwise properly contest the filing of such a petition by Lender, against it or the commencement of such action and raise the defense that Lender has agreed in writing not to take such action and should be estopped and precluded therefrom. The provisions of this §13 shall survive the termination of this Loan Note.
§14. Limited Recourse.
The obligations of Borrower under this Loan Note are solely the obligations of Borrower. No recourse shall be had for the payment of any amount owing in respect of any fee hereunder or another obligation or claim arising out of or based upon this Loan Note against any member, employee, officer or director of Borrower. Amounts, fees, expenses or costs payable by Borrower hereunder shall be payable by Borrower to the extent and only to the extent that Borrower is reimbursed therefor pursuant to any of the Related Documents, or funds are then available or thereafter become available for such purpose pursuant to the Indenture, and the amount of any fees, expenses or costs exceeding such funds shall in no event constitute a claim (as defined in Section 101 of the Bankruptcy Code) against, or corporate obligation of, Borrower.
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IN WITNESS WHEREOF, Borrower has executed this Loan Note as of the th day of , .
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EXHIBIT C
TO BASE INDENTURE
FORM OF OFFICERS CERTIFICATE
The undersigned, [ ], a [ ] of Hertz Vehicle Financing LLC, a Delaware limited liability company (the Company), pursuant to Section 8.25(a) of the Third Amended and Restated Base Indenture dated as of September 18, 2009 (the Base Indenture), between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the Trustee), hereby certifies that (i) the Company is in receipt of the preliminary Manufacturer Program (as defined in Schedule 1 to the Base Indenture) for [name of manufacturer] for the [ ] model year, (ii) upon review of such Manufacturer Program, there are no changes to the terms and conditions of the Manufacturer Program as compared to the Manufacturer Program for the previous model year that are likely to have a material adverse effect on HVF and (iii) the undersigned has no reason to believe that there will be any changes to the terms and conditions of the final Manufacturer Program for the [ ] model year as compared to the Manufacturer Program for the previous model year that would be likely to have a material adverse effect on HVF.
IN WITNESS WHEREOF, the undersigned has executed this certificate this day of , 20 .
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Exhibit 4.9.2.3
Execution Version
AMENDMENT NO. 3 (this Amendment ), dated as of September 18, 2009, between HERTZ VEHICLE FINANCING LLC ( HVF ) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association (as successor to BNY MIDWEST TRUST COMPANY, an Illinois trust company), as trustee (together with its successors in trust thereunder as provided in the Base Indenture referred to below, the Trustee ) to the Amended and Restated Series 2005-1 Supplement dated as of August 1, 2006 (as amended, modified, restated or supplemented from time to time, the Series 2005-1 Supplement ), between HVF and the Trustee to the Second Amended and Restated Base Indenture, dated as of August 1, 2006, between HVF and the Trustee (as amended, modified, restated or supplemented from time to time, exclusive of Series Supplements, the Base Indenture ).
WITNESSETH :
WHEREAS, HVF and the Trustee desire to amend the Series 2005-1 Supplement as herein set forth;
WHEREAS, Section 6.12 of the Series 2005-1 Supplement permits the Series 2005-1 Supplement to be amended in accordance with the terms of the Base Indenture;
WHEREAS, with the satisfaction of the Rating Agency Condition with respect to each Series of Notes Outstanding, the delivery of an Opinion of Counsel and the consent of the Required Noteholders or the consent of each affected Noteholder, as applicable, Sections 12.2 and 12.3 of the Base Indenture permit HVF and the Trustee to enter into certain amendments to the Series 2005-1 Supplement;
WHEREAS, pursuant to Section 6.6 of the Series 2005-1 Supplement MBIA Insurance Corporation ( MBIA ) is deemed to be the holder of 100% of the Class A Notes for purposes of consenting to an amendment of the Series 2005-1 Supplement, waiving any provision of the Base Indenture and giving consent pursuant to the Base Indenture; and
WHEREAS, Section 2.03 of the Insurance Agreement requires HVF to obtain the consent of MBIA in connection with any amendment to any provision of the Series 2005-1 Supplement;
NOW, THEREFORE, based upon the mutual promises and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned, intending to be legally bound, hereby agree as follows:
AGREEMENTS
1. Defined Terms . Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Base Indenture or, if not defined therein, in the Series 2005-1 Supplement.
2. Amendments to Definitions .
(i) The following shall be added to the definition of Class A-1 Outstanding Principal Amount immediately after the phrase on or prior to such date:
minus (c) the amount of any Class A-1 Notes that have been delivered to the Trustee for cancellation pursuant to Section 2.14 of the Base Indenture or otherwise redeemed or retired on or prior to such date.
(ii) The following shall be added to the definition of Class A-2 Outstanding Principal Amount immediately after the phrase on or prior to such date:
minus (c) the amount of any Class A-2 Notes that have been delivered to the Trustee for cancellation pursuant to Section 2.14 of the Base Indenture or otherwise redeemed or retired on or prior to such date.
(iii) The following shall be added to the definition of Class A-3 Outstanding Principal Amount immediately after the phrase on or prior to such date:
minus (c) the amount of any Class A-3 Notes that have been delivered to the Trustee for cancellation pursuant to Section 2.14 of the Base Indenture or otherwise redeemed or retired on or prior to such date.
(iv) The following shall be added to the definition of Class A-4 Outstanding Principal Amount immediately after the phrase on or prior to such date:
minus (c) the amount of any Class A-4 Notes that have been delivered to the Trustee for cancellation pursuant to Section 2.14 of the Base Indenture or otherwise redeemed or retired on or prior to such date.
(v) The following shall be added to the definition of Class A-5 Outstanding Principal Amount immediately after the phrase on or prior to such date:
minus (c) the amount of any Class A-5 Notes that have been delivered to the Trustee for cancellation pursuant to Section 2.14 of the Base Indenture or otherwise redeemed or retired on or prior to such date.
(vi) The following shall be added to the definition of Required Noteholders immediately after the phrase held by HVF or any Affiliate of HVF:
(other than an Affiliate Issuer).
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(vii) The following definitions shall be added to Section 1(b) and shall be inserted where alphabetically appropriate:
Aggregate Kia/Hyundai Amount means, as of any date of determination, the sum of the Kia Amount and the Hyundai 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.
Chrysler 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 Chrysler as of such date.
Ford 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 Ford as of such date.
Eligible Manufacturer means (a) Ford, GM, Chrysler, Toyota, Honda, Mazda, Nissan, Volvo, Jaguar, Audi, Volkswagen, Land Rover, Hyundai, Kia, Lexus, Mercedes, Suzuki, BMW, Mitsubishi and Subaru and each other Manufacturer that becomes an Eligible Program Manufacturer and (b) any other Manufacturer with respect to which the Rating Agency Condition with respect to the Series 2005-1 Rating Agency Condition shall have been satisfied; provided , that (i) for purposes of this definition, any Vehicles manufactured by Old GM that were leased to Hertz as of the Restatement Effective Date with respect to which GM has assumed or otherwise become obligated in respect of all of Old GMs obligations (other than any immaterial obligations and any obligations solely in respect of Old GMs Manufacturer Program) shall be deemed to have been manufactured by GM and (ii) for purposes of this definition, any Vehicles manufactured by Old Chrysler that were leased to Hertz as of the Restatement Effective Date with respect to which Chrysler has assumed or otherwise become obligated in respect of all of Old Chryslers obligations (other than any immaterial obligations and any obligations solely in respect of Old Chryslers Manufacturer Program) shall be deemed to have been manufactured by Chrysler.
Eligible Program Manufacturer means (a) Ford, GM, 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
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at least BBB- from S&P, at least Baa3 from Moodys and, unless otherwise agreed to by Fitch, at least BBB- from Fitch, provided , that if a Manufacturer proposed for consideration under the preceding clause (b) does not have a rating from S&P or Moodys, then the rating of the entity specified by the Rating Agencies shall apply, or (ii) with respect to which the Series 2005-1 Rating Agency Condition shall have been satisfied; provided , however , that for so long as a Manufacturer Event of Default is occurring with respect to any such Manufacturer, such Manufacturer shall not qualify as an Eligible Program Manufacturer; provided , further , that, for purposes of this definition, any Vehicles manufactured by Old GM that were leased to Hertz as of the Restatement Effective Date with respect to which GM has assumed or otherwise become obligated in respect of all obligations of Old GM (other than immaterial obligations but including, for the avoidance of doubt, Old GMs obligations under its Manufacturer Program) shall be deemed to have been manufactured by GM.
GM 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 GM as of such date.
Honda 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 Honda as of such date.
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.
Series 2005-2 Maximum Aggregate Kia/Hyundai Amount means, as of any day, an amount equal to 25% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-1 Maximum Aggregate Kia/Subaru/Hyundai Amount means, as of any day, an amount equal to 35% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-1 Maximum Chrysler Amount means, as of any day, an amount equal to 25% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-1 Maximum Ford Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
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Series 2005-1 Maximum GM Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-1 Maximum Honda Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-1 Maximum Nissan Amount means, as of any day, an amount equal to 20% of the Adjusted Aggregate Asset Amount.
Series 2005-1 Maximum Suzuki Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-1 Maximum Toyota Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-1 Maximum Volkswagen Amount means, as of any day, an amount equal to 10% of the Adjusted Aggregate Asset Amount on such day.
Suzuki 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 Suzuki as of such date.
Toyota 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 Toyota 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.
(viii) The definition of Class A Required Enhancement Incremental Amount shall be deleted in its entirety and replaced with the following:
Class A Required Enhancement Incremental Amount means
(i) as of the Series 2005-1 Closing Date, $0; and
(ii) as of any date thereafter, the product of (A) the Class A Required Asset Amount Percentage as of the immediately preceding
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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, Nissan, GM, Kia, 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 2005-1 Maximum Non-Eligible Vehicle Amount as of such immediately preceding Business Day, (2) the excess, if any, of the Hyundai Amount over the Series 2005-1 Maximum Hyundai Amount as of such immediately preceding Business Day, (3) the excess, if any, of the Jaguar Amount over the Series 2005-1 Maximum Jaguar Amount as of such immediately preceding Business Day, (4) the excess, if any, of the Kia Amount over the Series 2005-1 Maximum Kia Amount as of such immediately preceding Business Day, (5) the excess, if any, of the Land Rover Amount over the Series 2005-1 Maximum Land Rover Amount as of such immediately preceding Business Day, (6) the excess, if any, of the Mazda Amount over the Series 2005-1 Maximum Mazda Amount as of such immediately preceding Business Day, (7) the excess, if any, of the Mitsubishi Amount over the Series 2005-1 Maximum Mitsubishi Amount as of such immediately preceding Business Day, (8) the excess, if any, of the Subaru Amount over the Series 2005-1 Maximum Subaru Amount as of such immediately preceding Business Day, (9) the excess, if any, of the Suzuki Amount over the Series 2005-1 Maximum Suzuki Amount as of such immediately preceding Business Day, (10) the excess, if any, of the Non-Eligible Manufacturer Amount over the Series 2005-1 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, Nissan, GM, Kia, 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 2005-1 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 2005-1 Maximum Audi Amount as of such immediately preceding Business Day , (13) the excess, if any of the BMW Amount over the Series 2005-1 Maximum BMW Amount as of such immediately preceding Business Day, (14) the excess, if any of the Lexus Amount over the Series 2005-1 Maximum Lexus Amount as of such
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immediately preceding Business Day, (15) the excess, if any of the Mercedes Amount over the Series 2005-1 Maximum Mercedes Amount as of such immediately preceding Business Day, (16) the excess, if any of the Aggregate BMW/Lexus/Mercedes/Audi Amount over the Series 2005-1 Maximum Aggregate BMW/Lexus/Mercedes/Audi Amount as of such immediately preceding Business Day, (17) the excess, if any of the HVF Service Vehicle Amount over the Series 2005-1 Maximum HVF Service Vehicle Amount as of such immediately preceding Business Day, (18) the excess, if any of the Ford Amount over the Series 2005-1 Maximum Ford Amount as of such immediately preceding Business Day, (19) the excess, if any of the Honda Amount over the Series 2005-1 Maximum Honda Amount as of such immediately preceding Business Day, (20) the excess, if any of the GM Amount over the Series 2005-1 Maximum GM Amount as of such immediately preceding Business Day, (21) the excess if any of the Chrysler Amount over the Series 2005-1 Maximum Chrysler Amount as of such immediately preceding Business Day, (22) the excess if any of the Nissan Amount over the Series 2005-1 Nissan Amount as of such immediately preceding Business Day, (23) the excess, if any of the Toyota Amount over the Series 2005-1 Maximum Toyota Amount as of such immediately preceding Business Day, (24) the excess, if any of the Volkswagen Amount over the Series 2005-1 Maximum Volkswagen Amount as of such immediately preceding Business Day, (25) the excess, if any of the Aggregate Kia/Subaru/Hyundai Amount over the Series 2005-1 Maximum Aggregate Kia/Subaru/Hyundai Amount as of such immediately preceding Business Day, (26) the excess, if any of the Volvo Amount over the Series 2005-1 Maximum Volvo Amount as of such immediately preceding Business Day and (27) the excess, if any of the Aggregate Kia/Hyundai Amount over the Series 2005-1 Maximum Aggregate Kia/Hyundai Amount . The Manufacturer Non-Eligible Vehicle Amounts with respect to Ford, Volvo, Jaguar and Land Rover 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 2005-1 Maximum Manufacturer Non-Eligible Vehicle Amount for so long as each of Volvo, Jaguar and Land Rover is an Affiliate of Ford.
(ix) The definition of Series 2005-1 Maximum Manufacturer Non-Eligible Vehicle Amount shall be deleted in its entirety and replaced with the following:
Series 2005-1 Maximum Manufacturer Non-Eligible Vehicle Amount means, as of any day, (x) with respect to Toyota, an amount equal to 50% of the Non-Eligible Vehicle Amount and (y) with respect to any other Manufacturer, an amount equal to 40% of the Non-Eligible Vehicle Amount
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(x) The number 6% shall be deleted from the definition of Series 2005-1 Maximum Aggregate BMW/Lexus/Mercedes/Audi Amount and shall be replaced with the number 12%.
(xi) The number 3% shall be deleted from the definition of Series 2005-1 Maximum Audi Amount and shall be replaced with the number 5%.
(xii) The number 10% shall be deleted from the definition of Series 2005-1 Maximum Kia Amount and shall be replaced with the number 15%.
(xiii) The number 3% shall be deleted from the definition of Series 2005-1 Maximum Lexus Amount and shall be replaced with the number 5%.
(xiv) The number 3% shall be deleted from the definition of Series 2005-1 Maximum Mercedes Amount and shall be replaced with the number 5%.
(xv) The number 3% shall be deleted from the definition of Series 2005-1 Maximum BMW Amount and shall be replaced with the number 5%.
(xvi) The definition of Rating Agencies shall be deleted in its entirety and replaced with the following:
Rating Agencies means, with respect to the Series 2005-1 Notes, notwithstanding the proviso in the definition of Rating Agency in the Base Indenture, Standard & Poors and Moodys and any other nationally recognized rating agency rating the Series 2005-1 Notes at the request of HVF.
3. Amendments to Article VI . The following shall be added as Section 6.19 of the Series 2005-1 Supplement:
Section 6.19. Additional Covenants . HVF covenants and agrees that:
(a) Amendments to Related Documents . Except as contemplated by Section 3.2(a) of the Base Indenture or Section 12.1(a) of the Base Indenture, unless HVF shall have obtained the prior written consent of the Requisite Investors with respect to any amendment, modification, waiver, supplement, surrender or termination of, or any assignment by any other party to, a Related Document, HVF shall not amend, modify, waive, supplement, surrender or terminate, or consent to any assignment by any other party to, any Related Document (other than (x) any Related Document relating solely to one or more Segregated Series and (y) any (i) Notes, (ii) Enhancement Agreement, (iii) Series-Specific Swap Agreement, (iv) underwriting agreement, note purchase agreement, purchase agreement or similar agreement, (v) Depository Agreement, (vi) premium letter, fee letter or similar agreement, or (vii) any document similar to the foregoing, in each case relating solely to any Series of Indenture Notes other
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than the Series 2005-1 Notes) without the prior written consent of the Required Noteholders. Any such amendment, modification, waiver, supplement, surrender, assignment or termination made in violation of this Section 6.19(a) shall be void.
(b) Purchase of Old GM and Old Chrysler Vehicles . HVF shall not purchase any Vehicles manufactured by Old GM or Old Chrysler on or after the date of the Restatement Effective Date.
(c) Waivers of Base Indenture Series and Supplement . Prior to consenting to any waiver of the Base Indenture or the Series 2005-1 Supplement, the Insurer shall be entitled to request that any Rating Agency provide confirmation as to whether the Series 2005-1 Rating Agency Condition is satisfied with respect to such waiver.
(d) Amendments to Series Supplement or Base Indenture . Unless HVF shall have obtained the consent of (i) the Requisite Investors with respect to any amendment, modification or waiver to the Base Indenture pursuant to Section 12.2(a) of the Base Indenture which amendment, waiver or modification requires the consent of the Requisite Indenture Investors or (ii) the Required Noteholders with respect to any amendment, modification or waiver to the Base Indenture pursuant to Section 12.2(a) of the Base Indenture which amendment, waiver or modification affects only the Series 2005-1 Noteholders and, for the avoidance of doubt, does not affect the Noteholders of any other Series of Notes (as substantiated by an Officers Certificate of HVF to such effect), HVF shall not enter into any such amendment, modification or waiver to the Base Indenture without obtaining the consent of the Required Noteholders. Prior to entering into any amendment, waiver or modification described in Sections 12.2(b)(i), (b)(ii), (b)(iii) or (b)(iv) of the Base Indenture that affects the Series 2005-1 Noteholders, HVF shall obtain the consent of the affected Noteholders. Any such amendment, modification or waiver made in violation of this Section 6.19(d) shall be void.
(e) Subordinated Notes . Prior to issuing a subordinated Series of Notes (other than, for the avoidance of doubt, a subordinated class of Notes issued pursuant to a Series Supplement) which is fully subordinated to each Series of Notes Outstanding, HVF shall obtain the consent of the Required Noteholders.
4. Trustee Consent . By agreeing, acknowledging and consenting to this Amendment, MBIA (as deemed holder of 100% of the Class A Notes relating to the Series 2005-1 Supplement) hereby consents to the Trustee entering into this Amendment.
5. Effectiveness . This Amendment shall be effective upon its execution and delivery by each party hereto and the satisfaction or waiver of the Rating Agency Condition with respect to each Series of Notes Outstanding .
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6. Reference to and Effect on the Series 2005-1 Supplement; Ratification .
(a) Except as specifically amended above, the Series 2005-1 Supplement and Base Indenture are and shall continue to be in full force and effect and are hereby ratified and confirmed in all respects.
(b) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any party hereto under the Series 2005-1 Supplement, or constitute a waiver of any provision of any other agreement.
(c) Upon the effectiveness hereof, each reference in the Series 2005-1 Supplement to this Series Supplement, hereto, hereunder, hereof or words of like import referring to the Series 2005-1 Supplement, and each reference in any other Related Document to the Series 2005-1 Supplement, thereto, thereof, thereunder or words of like import referring to the Series 2005-1 Supplement, shall mean and be a reference to the Series 2005-1 Supplement as amended hereby.
7. Counterparts; Facsimile Signature . This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument. Any signature page to this Amendment containing a manual signature may be delivered by facsimile transmission or other electronic communication device capable of transmitting or creating a printable written record, and when so delivered shall have the effect of delivery of an original manually signed signature page.
8. Governing Law . THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAW.
9. Headings . The descriptive headings of the various sections of this Amendment are inserted for convenience of reference only and shall not be deemed to affect the meaning or construction of any of the provisions thereof.
10. Third-Party Beneficiaries . The Hertz Corporation shall be an express third-party beneficiary under this Amendment.
11. Severability . The failure or unenforceability of any provision hereof shall not affect the other provisions of this Amendment. Whenever possible each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Amendment.
12. Interpretation . Whenever the context and construction so require, all words used in the singular number herein shall be deemed to have been used in the plural, and vice
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versa, and the masculine gender shall include the feminine and neuter and the neuter shall include the masculine and feminine.
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IN WITNESS WHEREOF, HVF and the Trustee have caused this Amendment 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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/s/ R. Scott Massengill |
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Name: R. Scott Massengill |
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Title: Vice President & Treasurer |
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as successor to BNY MIDWEST TRUST COMPANY, as Trustee, |
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by |
/s/ John D. Ask |
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Name: John D. Ask |
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Title: Senior Associate |
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AGREED, ACKNOWLEDGED AND CONSENTED:
MBIA INSURANCE CORPORATION,
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/s/ Brian J. Cooney |
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Name: Brian J. Cooney |
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Title: Director |
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Exhibit 4.9.3.3
EXECUTION COPY
AMENDMENT NO. 3 (this Amendment ), dated as of September 18, 2009, between HERTZ VEHICLE FINANCING LLC ( HVF ) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association (as successor to BNY MIDWEST TRUST COMPANY, an Illinois trust company), as trustee (together with its successors in trust thereunder as provided in the Base Indenture referred to below, the Trustee ) to the Amended and Restated Series 2005-2 Supplement dated as of August 1, 2006 (as amended, modified, restated or supplemented from time to time, the Series 2005-2 Supplement ), between HVF and the Trustee to the Second Amended and Restated Base Indenture, dated as of August 1, 2006, between HVF and the Trustee (as amended, modified, restated or supplemented from time to time, exclusive of Series Supplements, the Base Indenture ).
WITNESSETH :
WHEREAS, HVF and the Trustee desire to amend the Series 2005-2 Supplement as herein set forth;
WHEREAS, Section 6.12 of the Series 2005-2 Supplement permits the Series 2005-2 Supplement to be amended in accordance with the terms of the Base Indenture;
WHEREAS, with the satisfaction of the Rating Agency Condition with respect to each Series of Notes Outstanding, the delivery of an Opinion of Counsel and the consent of the Required Noteholders or the consent of each affected Noteholder, as applicable, Sections 12.2 and 12.3 of the Base Indenture permit HVF and the Trustee to enter into certain amendments to the Series 2005-2 Supplement;
WHEREAS, pursuant to Section 6.6 of the Series 2005-2 Supplement Ambac Assurance Corporation ( Ambac ) is deemed to be the holder of 100% of the Class A Notes for purposes of consenting to an amendment of the Series 2005-2 Supplement, waiving any provision of the Base Indenture and giving consent pursuant to the Base Indenture; and
WHEREAS, Section 2.03 of the Insurance Agreement requires HVF to obtain the consent of Ambac in connection with any amendment to any provision of the Series 2005-2 Supplement;
NOW, THEREFORE, based upon the mutual promises and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned, intending to be legally bound, hereby agree as follows:
AGREEMENTS
1. Defined Terms . Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Base Indenture or, if not defined therein, in the Series 2005-2 Supplement.
2. Amendments to Definitions .
(i) The following shall be added to the definition of Class A-1 Outstanding Principal Amount immediately after the phrase on or prior to such date:
minus (c) the amount of any Class A-1 Notes that have been delivered to the Trustee for cancellation pursuant to Section 2.14 of the Base Indenture or otherwise redeemed or retired on or prior to such date.
(ii) The following shall be added to the definition of Class A-2 Outstanding Principal Amount immediately after the phrase on or prior to such date:
minus (c) the amount of any Class A-2 Notes that have been delivered to the Trustee for cancellation pursuant to Section 2.14 of the Base Indenture or otherwise redeemed or retired on or prior to such date.
(iii) The following shall be added to the definition of Class A-3 Outstanding Principal Amount immediately after the phrase on or prior to such date:
minus (c) the amount of any Class A-3 Notes that have been delivered to the Trustee for cancellation pursuant to Section 2.14 of the Base Indenture or otherwise redeemed or retired on or prior to such date.
(iv) The following shall be added to the definition of Class A-4 Outstanding Principal Amount immediately after the phrase on or prior to such date:
minus (c) the amount of any Class A-4 Notes that have been delivered to the Trustee for cancellation pursuant to Section 2.14 of the Base Indenture or otherwise redeemed or retired on or prior to such date.
(v) The following shall be added to the definition of Class A-5 Outstanding Principal Amount immediately after the phrase on or prior to such date:
minus (c) the amount of any Class A-5 Notes that have been delivered to the Trustee for cancellation pursuant to Section 2.14 of the Base Indenture or otherwise redeemed or retired on or prior to such date.
(vi) The following shall be added to the definition of Class A-6 Outstanding Principal Amount immediately after the phrase on or prior to such date:
minus (c) the amount of any Class A-6 Notes that have been delivered to the Trustee for cancellation pursuant to Section 2.14 of the Base Indenture or otherwise redeemed or retired on or prior to such date.
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(vii) The following shall be added to the definition of Required Noteholders immediately after the phrase held by HVF or any Affiliate of HVF:
(other than an Affiliate Issuer).
(viii) The following definitions shall be added to Section 1(b) and shall be inserted where alphabetically appropriate:
Aggregate Kia/Hyundai Amount means, as of any date of determination, the sum of the Kia Amount and the Hyundai 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.
Chrysler 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 Chrysler as of such date.
Ford 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 Ford as of such date.
Eligible Manufacturer means (a) Ford, GM, Chrysler, Toyota, Honda, Mazda, Nissan, Volvo, Jaguar, Audi, Volkswagen, Land Rover, Hyundai, Kia, Lexus, Mercedes, Suzuki, BMW, Mitsubishi and Subaru and each other Manufacturer that becomes an Eligible Program Manufacturer and (b) any other Manufacturer with respect to which the Rating Agency Condition with respect to the Series 2005-2 Rating Agency Condition shall have been satisfied; provided , that (i) for purposes of this definition, any Vehicles manufactured by Old GM that were leased to Hertz as of the Restatement Effective Date with respect to which GM has assumed or otherwise become obligated in respect of all of Old GMs obligations (other than any immaterial obligations and any obligations in respect of Old GMs Manufacturer Program) shall be deemed to have been manufactured by GM and (ii) for purposes of this definition, any Vehicles manufactured by Old Chrysler that were leased to Hertz as of the Restatement Effective Date with respect to which Chrysler has assumed or otherwise become obligated in respect of all of Old Chryslers obligations (other than any immaterial obligations and any obligations in respect of Old Chryslers Manufacturer Program) shall be deemed to have been manufactured by Chrysler.
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Eligible Program Manufacturer means (a) Ford, GM, 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 BBB- from S&P, at least Baa3 from Moodys and, unless otherwise agreed to by Fitch, at least BBB- from Fitch, provided , that if a Manufacturer proposed for consideration under the preceding clause (b) does not have a rating from S&P or Moodys, then the rating of the entity specified by the Rating Agencies shall apply, or (ii) with respect to which the Series 2005-2 Rating Agency Condition shall have been satisfied; provided , however , that for so long as a Manufacturer Event of Default is occurring with respect to any such Manufacturer, such Manufacturer shall not qualify as an Eligible Program Manufacturer; provided , further , that, for purposes of this definition, any Vehicles manufactured by Old GM that were leased to Hertz as of the Restatement Effective Date with respect to which GM has assumed or otherwise become obligated in respect of all obligations of Old GM (other than immaterial obligations but including, for the avoidance of doubt, Old GMs obligations under its Manufacturer Program) shall be deemed to have been manufactured by GM.
GM 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 GM as of such date.
Honda 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 Honda as of such date.
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.
Series 2005-2 Maximum Aggregate Kia/Hyundai Amount means, as of any day, an amount equal to 25% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-2 Maximum Aggregate Kia/Subaru/Hyundai Amount means, as of any day, an amount equal to 35% of the Adjusted Aggregate Asset Amount on such day.
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Series 2005-2 Maximum Chrysler Amount means, as of any day, an amount equal to 25% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-2 Maximum Ford Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-2 Maximum GM Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-2 Maximum Honda Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-2 Maximum Nissan Amount means, as of any day, an amount equal to 20% of the Adjusted Aggregate Asset Amount.
Series 2005-2 Maximum Suzuki Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-2 Maximum Toyota Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2005-2 Maximum Volkswagen Amount means, as of any day, an amount equal to 10% of the Adjusted Aggregate Asset Amount on such day.
Suzuki 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 Suzuki as of such date.
Toyota 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 Toyota 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.
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(ix) The definition of Class A Required Enhancement Incremental Amount shall be deleted in its entirety and replaced with the following:
Class A Required Enhancement Incremental Amount means
(i) as of the Series 2005-2 Closing Date, $0; and
(ii) as of any date thereafter, the product of (A) the Class A 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, Nissan, GM, Kia, 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 2005-2 Maximum Non-Eligible Vehicle Amount as of such immediately preceding Business Day, (2) the excess, if any, of the Hyundai Amount over the Series 2005-2 Maximum Hyundai Amount as of such immediately preceding Business Day, (3) the excess, if any, of the Jaguar Amount over the Series 2005-2 Maximum Jaguar Amount as of such immediately preceding Business Day, (4) the excess, if any, of the Kia Amount over the Series 2005-2 Maximum Kia Amount as of such immediately preceding Business Day, (5) the excess, if any, of the Land Rover Amount over the Series 2005-2 Maximum Land Rover Amount as of such immediately preceding Business Day, (6) the excess, if any, of the Mazda Amount over the Series 2005-2 Maximum Mazda Amount as of such immediately preceding Business Day, (7) the excess, if any, of the Mitsubishi Amount over the Series 2005-2 Maximum Mitsubishi Amount as of such immediately preceding Business Day, (8) the excess, if any, of the Subaru Amount over the Series 2005-2 Maximum Subaru Amount as of such immediately preceding Business Day, (9) the excess, if any, of the Suzuki Amount over the Series 2005-2 Maximum Suzuki Amount as of such immediately preceding Business Day, (10) the excess, if any, of the Non-Eligible Manufacturer Amount over the Series 2005-2 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, Nissan, GM, Kia, 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
6
such HVF Vehicles due from such Manufacturer) over the Series 2005-2 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 2005-2 Maximum Audi Amount as of such immediately preceding Business Day , (13) the excess, if any of the BMW Amount over the Series 2005-2 Maximum BMW Amount as of such immediately preceding Business Day, (14) the excess, if any of the Lexus Amount over the Series 2005-2 Maximum Lexus Amount as of such immediately preceding Business Day, (15) the excess, if any of the Mercedes Amount over the Series 2005-2 Maximum Mercedes Amount as of such immediately preceding Business Day, (16) the excess, if any of the Aggregate BMW/Lexus/Mercedes/Audi Amount over the Series 2005-2 Maximum Aggregate BMW/Lexus/Mercedes/Audi Amount as of such immediately preceding Business Day, (17) the excess, if any of the HVF Service Vehicle Amount over the Series 2005-2 Maximum HVF Service Vehicle Amount as of such immediately preceding Business Day, (18) the excess, if any of the Ford Amount over the Series 2005-2 Maximum Ford Amount as of such immediately preceding Business Day, (19) the excess, if any of the Honda Amount over the Series 2005-2 Maximum Honda Amount as of such immediately preceding Business Day, (20) the excess, if any of the GM Amount over the Series 2005-2 Maximum GM Amount as of such immediately preceding Business Day, (21) the excess if any of the Chrysler Amount over the Series 2005-2 Maximum Chrysler Amount as of such immediately preceding Business Day, (22) the excess if any of the Nissan Amount over the Series 2005-2 Nissan Amount as of such immediately preceding Business Day, (23) the excess, if any of the Toyota Amount over the Series 2005-2 Maximum Toyota Amount as of such immediately preceding Business Day, (24) the excess, if any of the Volkswagen Amount over the Series 2005-2 Maximum Volkswagen Amount as of such immediately preceding Business Day, (25) the excess, if any of the Aggregate Kia/Subaru/Hyundai Amount over the Series 2005-2 Maximum Aggregate Kia/Subaru/Hyundai Amount as of such immediately preceding Business Day, (26) the excess, if any of the Volvo Amount over the Series 2005-2 Maximum Volvo Amount as of such immediately preceding Business Day and (27) the excess, if any of the Aggregate Kia/Hyundai Amount over the Series 2005-2 Maximum Aggregate Kia/Hyundai Amount . The Manufacturer Non-Eligible Vehicle Amounts with respect to Ford, Volvo, Jaguar and Land Rover 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 2005-2 Maximum Manufacturer Non-Eligible Vehicle Amount for so long as each of Volvo, Jaguar and Land Rover is an Affiliate of Ford.
(x) The definition of Series 2005-2 Maximum Manufacturer Non-Eligible Vehicle Amount shall be deleted in its entirety and replaced with the following:
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Series 2005-2 Maximum Manufacturer Non-Eligible Vehicle Amount means, as of any day, (x) with respect to Toyota, an amount equal to 50% of the Non-Eligible Vehicle Amount and (y) with respect to any other Manufacturer, an amount equal to 40% of the Non-Eligible Vehicle Amount
(xi) The number 6% shall be deleted from the definition of Series 2005-2 Maximum Aggregate BMW/Lexus/Mercedes/Audi Amount and shall be replaced with the number 12%.
(xii) The number 3% shall be deleted from the definition of Series 2005-2 Maximum Audi Amount and shall be replaced with the number 5%.
(xiii) The number 10% shall be deleted from the definition of Series 2005-2 Maximum Kia Amount and shall be replaced with the number 15%.
(xiv) The number 3% shall be deleted from the definition of Series 2005-2 Maximum Lexus Amount and shall be replaced with the number 5%.
(xv) The number 3% shall be deleted from the definition of Series 2005-2 Maximum Mercedes Amount and shall be replaced with the number 5%.
(xvi) The number 3% shall be deleted from the definition of Series 2005-2 Maximum BMW Amount and shall be replaced with the number 5%.
(xvii) The definition of Rating Agencies shall be deleted in its entirety and replaced with the following:
Rating Agencies means, with respect to the Series 2005-2 Notes, notwithstanding the proviso in the definition of Rating Agency in the Base Indenture, Standard & Poors and Moodys and any other nationally recognized rating agency rating the Series 2005-2 Notes at the request of HVF.
3. Amendments to Article VI . The following shall be added as Section 6.19 of the Series 2005-2 Supplement:
Section 6.19. Additional Covenants . HVF covenants and agrees that:
(a) Amendments to Related Documents . Except as contemplated by Section 3.2(a) of the Base Indenture or Section 12.1(a) of the Base Indenture, unless HVF shall have obtained the prior written consent of the Requisite Investors with respect to any amendment, modification, waiver, supplement, surrender or termination of, or any assignment by any other party to, a Related Document, HVF shall not amend, modify, waive, supplement, surrender or terminate, or consent to any assignment by any other party to, any Related
8
Document (other than (x) any Related Document relating solely to one or more Segregated Series and (y) any (i) Notes, (ii) Enhancement Agreement, (iii) Series-Specific Swap Agreement, (iv) underwriting agreement, note purchase agreement, purchase agreement or similar agreement, (v) Depository Agreement, (vi) premium letter, fee letter or similar agreement, or (vii) any document similar to the foregoing, in each case relating solely to any Series of Indenture Notes other than the Series 2005-2 Notes) without the prior written consent of the Required Noteholders. Any such amendment, modification, waiver, supplement, surrender, assignment or termination made in violation of this Section 6.19(a) shall be void.
(b) Purchase of Old GM and Old Chrysler Vehicles . HVF shall not purchase any Vehicles manufactured by Old GM or Old Chrysler on or after the date of the Restatement Effective Date.
(c) Waivers of Base Indenture Series and Supplement . Prior to consenting to any waiver of the Base Indenture or the Series 2005-2 Supplement, the Insurer shall be entitled to request that any Rating Agency provide confirmation as to whether the Series 2005-2 Rating Agency Condition is satisfied with respect to such waiver.
(d) Amendments to Series Supplement or Base Indenture . Unless HVF shall have obtained the consent of (i) the Requisite Investors with respect to any amendment, modification or waiver to the Base Indenture pursuant to Section 12.2(a) of the Base Indenture which amendment, waiver or modification requires the consent of the Requisite Indenture Investors or (ii) the Required Noteholders with respect to any amendment, modification or waiver to the Base Indenture pursuant to Section 12.2(a) of the Base Indenture which amendment, waiver or modification affects only the Series 2005-2 Noteholders and, for the avoidance of doubt, does not affect the Noteholders of any other Series of Notes (as substantiated by an Officers Certificate of HVF to such effect), HVF shall not enter into any such amendment, modification or waiver to the Base Indenture without obtaining the consent of the Required Noteholders. Prior to entering into any amendment, waiver or modification described in Sections 12.2(b)(i), (b)(ii), (b)(iii) or (b)(iv) of the Base Indenture that affects the Series 2005-2 Noteholders, HVF shall obtain the consent of the affected Noteholders. Any such amendment, modification or waiver made in violation of this Section 6.19(d) shall be void.
(e) Subordinated Notes . Prior to issuing a subordinated Series of Notes (other than, for the avoidance of doubt, a subordinated class of Notes issued pursuant to a Series Supplement) which is fully subordinated to each Series of Notes Outstanding, HVF shall obtain the consent of the Required Noteholders.
4. Trustee Consent . By agreeing, acknowledging and consenting to this Amendment, Ambac (as deemed holder of 100% of the Class A Notes relating to the Series 2005-2 Supplement) hereby consents to the Trustee entering into this Amendment.
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5. Effectiveness . This Amendment shall be effective upon its execution and delivery by each party hereto and the satisfaction or waiver of the Rating Agency Condition with respect to each Series of Notes Outstanding .
6. Reference to and Effect on the Series 2005-2 Supplement; Ratification .
(a) Except as specifically amended above, the Series 2005-2 Supplement and Base Indenture are and shall continue to be in full force and effect and are hereby ratified and confirmed in all respects.
(b) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any party hereto under the Series 2005-2 Supplement, or constitute a waiver of any provision of any other agreement.
(c) Upon the effectiveness hereof, each reference in the Series 2005-2 Supplement to this Series Supplement, hereto, hereunder, hereof or words of like import referring to the Series 2005-2 Supplement, and each reference in any other Related Document to the Series 2005-2 Supplement, thereto, thereof, thereunder or words of like import referring to the Series 2005-2 Supplement, shall mean and be a reference to the Series 2005-2 Supplement as amended hereby.
7. Counterparts; Facsimile Signature . This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument. Any signature page to this Amendment containing a manual signature may be delivered by facsimile transmission or other electronic communication device capable of transmitting or creating a printable written record, and when so delivered shall have the effect of delivery of an original manually signed signature page.
8. Governing Law . THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAW.
9. Headings . The descriptive headings of the various sections of this Amendment are inserted for convenience of reference only and shall not be deemed to affect the meaning or construction of any of the provisions thereof.
10. Third-Party Beneficiaries . The Hertz Corporation shall be an express third-party beneficiary under this Amendment.
11. Severability . The failure or unenforceability of any provision hereof shall not affect the other provisions of this Amendment. Whenever possible each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition
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or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Amendment.
12. Interpretation . Whenever the context and construction so require, all words used in the singular number herein shall be deemed to have been used in the plural, and vice versa, and the masculine gender shall include the feminine and neuter and the neuter shall include the masculine and feminine.
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IN WITNESS WHEREOF, HVF and the Trustee have caused this Amendment 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 |
/s/ R. Scott Massengill |
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Name: R. Scott Massengill |
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Title: Vice President & Treasurer |
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as successor to BNY MIDWEST TRUST COMPANY, as Trustee, |
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by |
/s/ John D. Ask |
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Name: John D. Ask |
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Title: Senior Associate |
12
AGREED, ACKNOWLEDGED AND CONSENTED:
AMBAC ASSURANCE CORPORATION,
by |
/s/ Anthony Nocera |
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Name: Anthony Nocera |
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Title: First Vice President |
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13
Exhibit 4.9.7
EXECUTION VERSION
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THIRD AMENDED AND RESTATED MASTER MOTOR VEHICLE OPERATING LEASE AND SERVICING AGREEMENT
Dated as of September 18, 2009
between
HERTZ VEHICLE FINANCING LLC
as Lessor
and
THE HERTZ CORPORATION
as Lessee and Servicer
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Table of Contents
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Page |
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1. DEFINITIONS |
2 |
2. GENERAL AGREEMENT |
2 |
2.1. Lease of Vehicles |
4 |
2.2. Non-Liability of Lessor |
4 |
2.3. Return |
5 |
2.4. Lessees Right to Purchase Vehicles |
5 |
2.5. Lessors Right to Cause Vehicles to be Sold |
6 |
2.6. Redesignation of Vehicles |
7 |
2.7. Limitations on the Leasing or Redesignation of Certain Vehicles |
8 |
2.8. Conditions to Each Lease of Vehicle |
8 |
2.9. Compliance with Master Exchange Agreement |
9 |
3. TERM |
9 |
3.1. Vehicle Term |
9 |
3.2. Term |
10 |
4. RENT AND CHARGES |
11 |
4.1. Monthly Base Rent |
11 |
4.2. Monthly Variable Rent |
11 |
4.3. Rent |
11 |
4.4. Monthly Base Rent Adjustments |
11 |
4.5. Payment of Monthly Base Rent |
12 |
4.6. Payment of Monthly Variable Rent |
12 |
4.7. Rejected Vehicles |
12 |
4.8. Making of Payments |
12 |
4.9. Billing Process |
13 |
4.10. Casualty Payments |
13 |
4.11. Late Payment |
13 |
4.12. Prepayments |
13 |
4.13. Net Lease |
13 |
5. INSURANCE |
14 |
5.1. Comprehensive Public Liability, Property Damage, and Catastrophic Physical Damage |
14 |
5.2. Delivery of Certificate of Insurance |
15 |
6. RISK OF LOSS; CASUALTY AND INELIGIBLE VEHICLE OBLIGATIONS |
15 |
6.1. Risk of Loss Borne by Lessees |
15 |
6.2. Casualty; Ineligible Vehicles |
15 |
7. VEHICLE USE |
15 |
8. LIENS |
16 |
9. NON-DISTURBANCE |
16 |
10. FEES; TRAFFIC SUMMONSES; PENALTIES AND FINES |
17 |
11. MAINTENANCE AND REPAIRS |
17 |
12. VEHICLE WARRANTIES |
17 |
12.1. No Lessor Warranties |
17 |
12.2. Manufacturers Warranties |
18 |
i
Table of Contents
(continued)
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Page |
|
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13. VEHICLE USAGE GUIDELINES AND RETURN; SPECIAL DEFAULT PAYMENTS; EARLY TERMINATION PAYMENTS |
18 |
13.1. Usage |
18 |
13.2. Return |
18 |
13.3. Special Default Payments |
18 |
13.4. Early Termination Payments |
19 |
14. DISPOSITION PROCEDURE |
19 |
15. ODOMETER DISCLOSURE REQUIREMENT |
19 |
16. ASSIGNMENT |
20 |
16.1. Right of the Lessor to Assign this Agreement |
20 |
16.2. Limitations on the Right of the Lessee to Assign this Agreement |
20 |
17. DEFAULT AND REMEDIES THEREFOR |
20 |
17.1. Events of Default |
20 |
17.2. Effect of Operating Lease Event of Default |
21 |
17.3. Rights of Lessor Upon Operating Lease Event of Default |
21 |
17.4. Liquidation Event of Default, Limited Liquidation Event of Default and Non-Performance of Certain Covenants |
22 |
17.5. Measure of Damages |
23 |
17.6. Vehicle Return Default |
24 |
17.7. Servicer Default |
25 |
17.8. Application of Proceeds |
25 |
18. MANUFACTURER EVENTS OF DEFAULT |
25 |
19. CERTIFICATION OF TRADE OR BUSINESS USE |
26 |
20. TITLE TO VEHICLES |
26 |
21. RIGHTS OF LESSOR ASSIGNED TO TRUSTEE |
26 |
22. MODIFICATION AND SEVERABILITY |
27 |
23. SERVICER ACTING AS AGENT OF THE LESSOR |
27 |
24. MINIMUM DEPRECIATION RATE |
27 |
25. CERTAIN REPRESENTATIONS AND WARRANTIES |
28 |
25.1. Organization; Power; Qualification |
28 |
25.2. Authorization; Enforceability |
28 |
25.3. Compliance |
28 |
25.4. Other |
28 |
25.5. Financial Statements |
29 |
25.6. Investment Company Act |
29 |
25.7. Supplemental Documents True and Correct |
29 |
25.8. [Reserved] |
29 |
25.9. ERISA |
30 |
25.10. Indemnification Agreement |
30 |
25.11. Eligible Vehicles |
30 |
26. CERTAIN AFFIRMATIVE COVENANTS |
30 |
26.1. Corporate Existence; Foreign Qualification |
30 |
26.2. Books, Records and Inspections |
30 |
ii
Table of Contents
(continued)
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Page |
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26.3. ERISA |
31 |
26.4. Merger |
31 |
26.5. Reporting Requirements |
31 |
26.6. Indemnification Agreement |
32 |
26.7. Ford Program Agreements |
32 |
27. NO PETITION |
33 |
28. SUBMISSION TO JURISDICTION |
33 |
29. GOVERNING LAW |
33 |
30. JURY TRIAL |
34 |
31. NOTICES |
34 |
32. SURVIVABILITY |
35 |
33. HEADINGS |
35 |
34. EXECUTION IN COUNTERPARTS |
35 |
iii
THIRD AMENDED AND RESTATED MASTER MOTOR VEHICLE OPERATING LEASE AND SERVICING AGREEMENT
This Third Amended and Restated Master Motor Vehicle Operating Lease and Servicing Agreement (this Agreement ), dated as of September 18, 2009, by and between HERTZ VEHICLE FINANCING LLC, a Delaware limited liability company ( HVF ), as lessor (in such capacity, the Lessor ) and THE HERTZ CORPORATION, a Delaware corporation ( Hertz ), as lessee (in such capacity, the Lessee ) and as servicer (in such capacity, the Servicer ).
W I T N E S S E T H:
WHEREAS, HVF and Hertz entered into a Master Motor Vehicle Operating Lease and Servicing Agreement, dated as of September 18, 2002, as amended pursuant to Amendment No. 1 to the Master Motor Vehicle Operating Lease and Servicing Agreement, dated as of March 31, 2004, as amended and restated pursuant to the Amended and Restated Master Motor Vehicle Operating Lease and Servicing Agreement, dated as of December 21, 2005, and as further amended and restated pursuant to the Second Amended and Restated Master Motor Vehicle Operating Lease and Servicing Agreement, dated as of August 1, 2006 (the Prior Agreement );
WHEREAS, HVF and Hertz desire to amend and restate the Prior Agreement in its entirety as herein set forth;
WHEREAS, the Lessor has purchased or will purchase passenger automobiles and light duty trucks (the HGI Vehicles ) from Hertz General Interest LLC ( HGI ) pursuant to the Purchase Agreement that the Lessor determines shall be leased hereunder;
WHEREAS, the Lessor has received as a capital contribution from Hertz all of Hertzs right, title and interest in and to the Initial Hertz Vehicles pursuant to the Hertz Contribution Agreement;
WHEREAS, the Lessor has purchased from Hertz Funding Corp. ( HFC ) all of HFCs right, title and interest in and to the Service Vehicles (collectively with the HGI Vehicles and the Initial Hertz Vehicles, the Vehicles );
WHEREAS, the Lessor desires to lease to the Lessee and the Lessee desires to lease from the Lessor the Vehicles for use in connection with the daily rental car business of the Lessee or in the business of, pursuant to a sub-lease between the Lessee and Hertz Equipment Rental Corporation ( HERC ), Lessees wholly owned subsidiary, in connection with the daily equipment rental business of HERC, or by Hertz or HERCs employees in their personal or professional capacities;
NOW, THEREFORE, in consideration of the foregoing premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. DEFINITIONS. Except as otherwise specified, capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Definitions List attached as Schedule 1 to the Second Amended and Restated Base Indenture, dated as of September 18, 2009, between HVF, as Issuer, and The Bank of New York Mellon Trust Company, N.A., as Trustee, as such indenture may be amended, supplemented, restated or otherwise modified from time to time in accordance with its terms.
2. GENERAL AGREEMENT.(a) The Lessee and the Lessor intend that this Agreement is a lease and that the relationship between the Lessor and the Lessee pursuant hereto shall always be only that of lessor and lessee, and the Lessee hereby declares, acknowledges and agrees that the Lessor is the owner of, and pursuant to the Nominee Agreement, the Hertz Nominee Agreement or the HFC Nominee Agreement, the Nominee, the Hertz Nominee or the HFC Nominee, as applicable, holds legal title to, the Vehicles. The Lessee shall not acquire by virtue of this Agreement any right, equity, title or interest in or to any Vehicles, except the right to use the same under the terms hereof. The parties agree that this Agreement is a true lease and agree to treat this Agreement as a lease for all purposes, including accounting, regulatory and otherwise, except it will be disregarded for income tax purposes.
2
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2.1. Lease of Vehicles. From time to time, subject to the terms and provisions hereof, the Lessor agrees to lease to the Lessee, and the Lessee agrees to lease from the Lessor, the New Vehicles identified in New Vehicle Schedules and Transferred HVF Vehicles identified in Transferred Vehicle Schedules, in each case provided to the Lessor by the Servicer from time to time pursuant to Sections 1.04 and 1.06 of the Purchase Agreement. This Agreement, together with the Manufacturer Programs, the New Vehicle Schedules, the Rejected Vehicle Schedules, the Transferred Vehicle Schedules, the Initial Hertz Vehicle Schedules, the Service Vehicle Schedules and any other related documents attached to this Agreement, in each case solely to the extent to which such Manufacturer Programs, schedules and documents relate to HVF Vehicles or otherwise relate to and/or constitute Collateral (collectively, the Supplemental Documents ), will constitute the entire agreement regarding the leasing of Vehicles by the Lessor to the Lessee.
2.2. Non-Liability of Lessor. AS BETWEEN THE LESSOR AND THE LESSEE, ACCEPTANCE FOR LEASE OF THE VEHICLES UNDER THE PURCHASE AGREEMENT SHALL CONSTITUTE THE LESSEES ACKNOWLEDGMENT AND AGREEMENT THAT THE LESSEE HAS FULLY INSPECTED SUCH VEHICLES, THAT SUCH VEHICLES ARE IN GOOD ORDER AND CONDITION AND ARE OF THE MANUFACTURE, DESIGN, SPECIFICATIONS AND CAPACITY SELECTED BY THE LESSEE, THAT THE LESSEE IS SATISFIED THAT THE SAME ARE SUITABLE FOR THIS USE AND THAT THE LESSOR IS NOT A MANUFACTURER OR ENGAGED IN THE SALE OR DISTRIBUTION OF VEHICLES, AND HAS NOT MADE AND DOES NOT HEREBY MAKE ANY REPRESENTATION, WARRANTY OR COVENANT WITH RESPECT TO MERCHANTABILITY, CONDITION, QUALITY, DURABILITY OR SUITABILITY OF SUCH VEHICLE IN ANY RESPECT OR IN CONNECTION WITH OR FOR THE PURPOSES OR USES OF THE LESSEE, OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT EXPRESS OR IMPLIED OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT THERETO. THE LESSOR SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM ANY PROVISION HEREOF RESULTING FROM FIRE OR OTHER CASUALTY, NATURAL DISASTER, RIOT, STRIKE OR OTHER LABOR DIFFICULTY, GOVERNMENTAL REGULATION OR RESTRICTION, OR ANY CAUSE BEYOND THE LESSORS DIRECT CONTROL. IN NO EVENT SHALL
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THE LESSOR BE LIABLE FOR ANY INCONVENIENCES, LOSS OF PROFITS OR ANY OTHER CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES RESULTING FROM ANY DEFECT IN OR ANY THEFT, DAMAGE, LOSS OR FAILURE OF ANY VEHICLE, AND THERE SHALL BE NO ABATEMENT OF RENT OR OTHER AMOUNTS PAYABLE HEREUNDER BECAUSE OF THE SAME.
2.3. Return. (a) The Servicer will act as the Lessors agent in returning (as set forth in this Section 2.3) or otherwise disposing of each Vehicle on the Vehicle Operating Lease Expiration Date with respect to such Vehicle.
2.4. Lessees Right to Purchase Vehicles. The Lessee shall have the option, exercisable with respect to any Vehicle during the Vehicle Term, to purchase such Vehicle for an amount equal to the greater of (i) the Termination Value or (ii) the Market Value of such Vehicle, in each case, as of the date such amount shall be deposited in the Collection Account (the greater of such amounts being referred to as the Vehicle Purchase Price ). In the event the Lessee exercises its option to purchase any Vehicle, the Lessee shall pay the Vehicle Purchase Price of such Vehicle to the Lessor on or before the Payment Date with respect to the Related Month in which the Lessee elects to purchase such Vehicle and the Lessee will pay on or before such Payment Date all accrued and unpaid Monthly Base Rent and any Monthly Variable Rent then due and payable with respect to such Vehicle through such Payment Date. Monthly Base Rent and Monthly Variable Rent will continue to accrue with respect to such Vehicle through such Payment Date. The Lessor shall transfer title to any such Vehicle to, or shall direct the Nominee, the Hertz Nominee or the HFC Nominee, as applicable, to transfer title to any such Vehicle to, the Lessee concurrently with or promptly after the deposit of Vehicle Purchase Price (and any such unpaid Monthly Base Rent and Monthly Variable Rent) into the Collection Account.
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2.5. Lessors Right to Cause Vehicles to be Sold. If the Lessee does not elect to purchase any Vehicle pursuant to Section 2.4, then:
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2.6. Redesignation of Vehicles. At any time, including without limitation, if (i) a Program Vehicle becomes ineligible for repurchase by its Manufacturer or for sale at Auction under the applicable Manufacturer Program or (ii) the return of a Program Vehicle to the applicable Manufacturer cannot otherwise be effected for any reason, the Lessor (or the Servicer on its behalf and at its instruction) may redesignate a Program Vehicle as a Non-Program Vehicle, provided that, unless such Manufacturer is a Defaulting Manufacturer, no Amortization Event or Potential Amortization Event with respect to any Series of Notes Outstanding has occurred and is continuing or would be caused by such redesignation and provided further , in each case, that in connection with such redesignation the Lessor shall establish a Depreciation Schedule for such redesignated Non-Program Vehicle in accordance with Section 24 and the Lessee shall pay to the Lessor on the next succeeding Payment Date an amount equal to the difference, if any, between the Net Book Value of such Vehicle as of the date of redesignation and an amount (the Redesignation Amount ) equal to the Net Book Value of such Vehicle as of the date of redesignation calculated as if such Vehicle been a Non-Program Vehicle on the Vehicle Operating Lease Commencement Date for such Vehicle subject to such newly established Depreciation Schedule; provided further , however , that if (I) a Program Vehicle is redesignated as a Non-Program Vehicle under the circumstances described in Section 18(b) or (II) a Non-Program Vehicle is purchased from a Manufacturer during the continuance of a Manufacturer Event of Default pursuant to clause (ii) of the definition thereof with respect to such Manufacturer and such Vehicle would constitute a Program Vehicle but for the existence of such Manufacturer Event of Default (each such Vehicle, a Redesignated Ineligible Program Vehicle ), if (x) the Manufacturer of such Vehicle assumes its Manufacturer Program in accordance with the Bankruptcy Code, (y) following the assumption described in such clause (x), such Non-Program Vehicle is eligible under such assumed Manufacturer Program and otherwise meets the qualifications for Program Vehicles under an Eligible Manufacturer Program and (z) there are at least thirty (30) days prior to the expiration of the Maximum Term for a Program Vehicle, the Lessor may redesignate such Non-Program Vehicle as a Program Vehicle, and, in connection with such redesignation, future Depreciation Charges in respect of such redesignated Program Vehicle shall be made in accordance with requirements for Program Vehicles set forth in the definition of Depreciation Charges and the Lessor shall pay to the Lessee on the next succeeding Payment Date (a) in the case of any Vehicle that has not previously been redesignated as a Non-Program Vehicle, an amount equal to the difference, if any, between the Net Book Value of such Vehicle as of the date of redesignation and an amount equal to the Net Book Value of such Vehicle as of the date of redesignation calculated as if such Vehicle had been a Program Vehicle at all times on and after the Vehicle Operating Lease Commencement Date for such Vehicle or (b) in all other cases an amount (the Assumption Redesignation Amount ) equal to the difference, if any, between the Net Book Value of such redesignated Program Vehicle as of the date of such redesignation of such Vehicle as a Program Vehicle and an amount equal to the Net Book Value of such redesignated Program Vehicle as of such date of
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redesignation calculated as if such Vehicle been a Program Vehicle on the Vehicle Operating Lease Commencement Date for such Vehicle and such Vehicle had never been redesignated from a Program Vehicle to a Non-Program Vehicle; provided further that (1) no payment shall be required to be made and no payment may be made by the Lessor pursuant to the immediately preceding proviso to the extent that an Amortization Event of Potential Amortization Event with respect to any Series of Notes Outstanding exists or would be caused by such payment, (2) the amount of any such payment to be made by the Lessor on any such date shall be capped at and be paid from (and the obligation of the Lessor to make such payment on such date shall be limited to) the amount of funds available to be released to the Lessor on such date and (3) if any such payment from the Lessor is limited in amount pursuant to either clause (1) or clause (2) above, the Lessor shall pay to the Lessee the funds available to be released to the Lessor on such Payment Date and shall pay to the Lessee on each Payment Date thereafter the amount available to be released to the Lessor until such payment described in clause (a) or clause (b) above has been paid in full to the Lessee.
2.7. Limitations on the Leasing or Redesignation of Certain Vehicles. The Lessor and the Lessee hereby agree that the Lessor shall not lease to the Lessee New Vehicles or Transferred HVF Vehicles pursuant to Section 2.1, the Lessor shall not sell HVF Vehicles to HGI pursuant to Section 1.06 of the Purchase Agreement and the Lessor shall not redesignate Program Vehicles as Non-Program Vehicles pursuant to Section 2.6 if, as of the date of the addition of such New Vehicles or Transferred HVF Vehicles hereunder, the sale of such HVF Vehicles or such redesignation, after giving effect to such addition, sale or redesignation, (a) an Enhancement Deficiency would exist (after giving effect to any simultaneous voluntary increases in the level of Enhancement permitted under the Indenture) under any Series of Notes, unless (i) such addition, sale or redesignation would decrease the amount of, or cure, such Enhancement Deficiency or (ii) in the case of such redesignation, the Manufacturer of the applicable Vehicle is a Defaulting Manufacturer or (b) there would be a failure or violation of any other conditions, requirements or restrictions with respect to the leasing of Eligible Vehicles under this Agreement as is specified in any Series Supplement (other than a Segregated Series Supplement).
2.8. Conditions to Each Lease of Vehicle. The agreement of the Lessor to lease any Vehicle to the Lessee hereunder is subject to the following conditions precedent being satisfied on or prior to the Vehicle Operating Lease Commencement Date for such Vehicle. The Lessee hereby agrees that each acceptance of a Vehicle under the Purchase Agreement, the Hertz Contribution Agreement or the HFC Purchase Agreement shall be deemed to constitute a representation and warranty by the Lessee to the Lessor and the Trustee that all the conditions precedent to the leasing of such Vehicle hereunder shall have been satisfied and shall constitute acceptance by the Lessee of such Vehicle under the Lease as of such Vehicle Operating Lease Commencement Date:
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2.9. Compliance with Master Exchange Agreement. In connection with (x) any return by the Servicer of a Vehicle leased hereunder to a Manufacturer pursuant to Section 3.1(b), (y) any sale by the Servicer of a Vehicle leased hereunder to a third party pursuant to Section 2.5 or (z) other disposition of a Vehicle leased hereunder, the Servicer agrees, to the extent requested by the Lessor, to cooperate with the Lessor in effecting such sale or return on behalf of the Lessor pursuant to, and in accordance with, the terms of the Master Exchange Agreement.
3.1. Vehicle Term. (a) The Vehicle Operating Lease Commencement Date with respect to any Vehicle shall mean the date referenced in the applicable New Vehicle Schedule, Transferred Vehicle Schedule, Initial Hertz Vehicle Schedule or Service Vehicle Schedule with respect to such Vehicle but in no event shall such date be a date later than the date that funds are expended by HVF to acquire such Vehicle (such date, the Vehicle Funding Date for such Vehicle). The Vehicle Term with respect to each Vehicle (other than a Vehicle which has a Special Term) shall extend from the Vehicle Operating Lease Commencement Date through the earliest of (i) if such Vehicle is a Program Vehicle returned to a Manufacturer under a Manufacturer Program, the Turnback Date for such Vehicle, (ii) if such Vehicle is a Vehicle sold to a third party pursuant to Section 2.5, the date on which funds in respect of such sale are deposited in the Collection Account or an HVF Exchange Account (by such third party or by the Servicer on behalf of such third party), (iii) if such Vehicle is sold to the Lessee pursuant to Section 2.4, the date on which the Vehicle Purchase Price for such Vehicle is deposited into the Collection Account, (iv) if such Vehicle becomes a Casualty or an Ineligible Vehicle, the date funds in the amount of the Termination Value thereof are deposited in the Collection Account by the Lessee, (v) if such Vehicle becomes a Transferred HVF Vehicle, the date funds in the amount of the Transfer Price thereof are deposited in the
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Collection Account by HGI, (vi) if such Vehicle becomes a Rejected Vehicle, the date the Rejected Vehicle Payment is deposited in the Collection Account and (vii) the date that is the last Business Day of the month that is 36 months after the month in which the Vehicle Operating Lease Commencement Date occurs with respect to such Vehicle (the earliest of such seven dates being referred to as the Vehicle Operating Lease Expiration Date for such Vehicle). The Vehicle Term with respect to each Vehicle which has a Special Term shall extend through the earlier of (i) the last date of the Special Term for such Vehicle as the same may be extended in accordance with the following sentence and (ii) the Vehicle Operating Lease Expiration Date for such Vehicle. The Special Term shall be automatically renewed until the date that is the last Business Day of the month that is 36 months after the month in which the Vehicle Operating Lease Commencement Date occurs with respect to such Vehicle, unless the Lessor or the Lessee gives prior notice of non-renewal of the Special Term to the Lessor or the Lessee, as applicable, during the period of any Special Term, or the Vehicle Operating Lease Expiration Date occurs during the period of any Special Term. The Special Term shall mean (i) 180 days with respect to Vehicles titled in the State of Texas and the State of Maryland; (ii) one year with respect to Vehicles titled in the State of Illinois; (iii) eleven months with respect to Vehicles titled in the State of Iowa, the Commonwealth of Massachusetts, the State of Maine, the State of Vermont and the Commonwealth of Virginia; (iv) 30 days with respect to Vehicles titled in the State of Nebraska and the State of West Virginia and (v) 28 days with respect to Vehicles titled in the State of South Dakota.
3.2. Term. The Operating Lease Commencement Date shall mean the Initial Closing Date. The Operating Lease Expiration Date shall mean the later of (i) the date of the final payment in full of the last Note Outstanding and (ii) the Vehicle Operating Lease Expiration Date for the last Vehicle leased by the Lessee hereunder.
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The Term of this Agreement shall mean the period commencing on the Operating Lease Commencement Date and ending on the Operating Lease Expiration Date.
4. RENT AND CHARGES. The Lessee will pay Rent due and payable on a monthly basis as set forth in this Section 4.
4.1. Monthly Base Rent. The Monthly Base Rent for each Payment Date and each Vehicle shall be the sum of all Depreciation Charges that have accrued with respect to such Vehicle during the Related Month, as adjusted in accordance with Section 4.4.
4.2. Monthly Variable Rent. The Monthly Variable Rent for each Payment Date and each Vehicle shall equal the sum of (1) the product of (a) an amount equal to the sum of (i) all interest accruing on each Series of Notes Outstanding during the Interest Period for such Series of Notes ending on such Payment Date or on a date immediately preceding such Payment Date, (ii) the product of (X) all interest due and payable under the HVF Credit Facility as of such Payment Date and (Y) the Non-Segregated Series Percentage as of such Payment Date and (iii) all Carrying Charges for such Payment Date multiplied by (b) the quotient obtained by dividing (i) the Net Book Value as of the last day of the Related Month (or, if earlier, the Disposition Date) of such Vehicle by (ii) the aggregate Net Book Values as of the last day of the Related Month (or, if earlier, the Disposition Date) of all Vehicles leased hereunder during the Related Month plus (2) if such Vehicle is a Non-Eligible Program Vehicle or a Non-Program Vehicle, 1.50% of the Net Book Value of such Vehicle as of the last day of the Related Month (or, if later, as of the Vehicle Operating Lease Commencement Date of such Vehicle) plus (3) 2% per annum, payable at one-twelfth the annual rate, of the Net Book Value of such Vehicle as of the last day of the Related Month (or, if later, as of the Vehicle Operating Lease Commencement Date of such Vehicle).
4.3. Rent. Rent for each Vehicle means the Monthly Base Rent plus Monthly Variable Rent for such Vehicle.
4.4. Monthly Base Rent Adjustments. (a) If the Vehicle Operating Lease Commencement Date occurs (i) with respect to a Program Vehicle, prior to the In-Service Date for such Program Vehicle pursuant to its Manufacturer Program set forth in the Monthly Servicing Certificate for the Related Month in which such Vehicle Operating Lease Commencement Date occurs or (ii) with respect to a Non-Program Vehicle, prior to the date designated as the In-Service Date of such Non-Program Vehicle set forth in the Monthly Servicing Certificate for the Related Month in which such Vehicle Operating Lease Commencement Date occurs, the Depreciation Charges that accrued with respect to such Vehicle between its Vehicle Operating Lease Commencement Date and its In-Service Date during the Related Month in which such Vehicle Operating Lease Commencement Date occurs shall be deducted from the Monthly Base Rent for such Vehicle for the following Payment Date.
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4.5. Payment of Monthly Base Rent. On each Payment Date, after giving full credit for all prepayments on account thereof pursuant to Section 4.12, the Lessee shall pay to the Lessor the Monthly Base Rent for such Payment Date for each Vehicle that was leased by the Lessee under this Agreement on any day during the Related Month.
4.6. Payment of Monthly Variable Rent. On each Payment Date, after giving full credit for all prepayments on account thereof pursuant to Section 4.12, the Lessee shall pay to the Lessor the Monthly Variable Rent for such Payment Date for each Vehicle that was leased by the Lessee under this Agreement on any day during the Related Month.
4.7. Rejected Vehicles. If a Vehicle becomes a Rejected Vehicle on any day during the Related Month and HGI makes the Rejected Vehicle Payment within five Business Days of the date such Vehicle became a Rejected Vehicle, Monthly Base Rent shall not be payable by the Lessee in respect of such Vehicle for the following Payment Date. If a payment of Monthly Base Rent is made on the Payment Date during the Related Month in which a Vehicle becomes a Rejected Vehicle, the amount of such payment shall be credited to the Lessee on the following Payment Date (such amount being referred to as a Rejected Vehicle Credit ).
4.8. Making of Payments. All payments of Rent hereunder (and any other payments hereunder) shall be made by the Lessee to, or for the account of, the Lessor in immediately available funds, without setoff, counterclaim or deduction of any kind. All such payments shall be deposited into the Collection Account not later than 12:00 noon, New York City time, on the date due. If any payment of Rent (or any other payments hereunder) falls due on a day which is not a Business Day, then such due date shall be extended to the next following Business Day and Monthly Variable Rent shall accrue
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through such Business Day. If the Lessee pays less than the entire amount of Rent (or any other amounts) due on any Payment Date, after giving full credit for all prepayments made with respect to such Payment Date pursuant to Section 4.12, then the payment received from the Lessee in respect of such Payment Date shall be first applied to the Monthly Variable Rent due on such Payment Date.
4.9. Billing Process. The Servicer shall calculate all Rent, Casualty Payments, Special Default Payments, Early Termination Payments, Redesignation Amounts and Rejected Vehicle Credits. The Servicer shall aggregate the Lessees Rent due on all Vehicles, together with any other amounts due to the Lessor and any credits owing to the Lessee, and provide to the Lessor a monthly statement of the total amount, in a form acceptable to the Lessor, no later than the Determination Date. The monthly statement shall include a description of the charges owing from the Lessee and credits owing to the Lessee.
4.10. Casualty Payments. On each Payment Date, after giving full credit for all prepayments on account thereof pursuant to Section 4.12, the Lessee shall pay to the Lessor all Casualty Payments and Early Termination Payments that have accrued with respect to all Vehicles that were leased by the Lessee as provided in Section 6.2 and Section 13.4.
4.11. Late Payment. In the event the Lessee fails to remit payment of any amount due under this Agreement on or before the Payment Date or when otherwise due and payable hereunder, the amount not paid will be considered delinquent and the Lessee will pay a charge equal to (i) interest payable by HVF on any overdue amounts owed by HVF on its related obligations, or (ii) if no such interest is due and payable by HVF, one-month LIBOR plus 1.0%, times the delinquent amount from the Payment Date until such delinquent amount (with accrued interest) is received by the Trustee. LIBOR means, with respect to amounts due and unpaid under this Agreement, the London Interbank Offered Rate appearing on Page 3750 of the Dow Jones Market Screen (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 date that such amounts are due and unpaid under this Agreement.
4.12. Prepayments. On any date, the Lessee may, at its option, pay to the Lessor, in whole or in part, any months Rent or other payments, or portion thereof, in advance of the related Payment Date to the extent that such Rent or other payments have accrued.
4.13. Net Lease. THIS AGREEMENT SHALL BE A NET LEASE, AND THE LESSEES OBLIGATION TO PAY ALL RENT AND OTHER SUMS HEREUNDER SHALL BE ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT, SETOFF, COUNTERCLAIM, DEDUCTION OR REDUCTION FOR ANY REASON WHATSOEVER. The obligations and liabilities of the Lessee hereunder shall in no way be released, discharged or otherwise
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affected (except as may be expressly provided herein) for any reason, including without limitation: (i) any defect in the condition, merchantability, quality or fitness for use of the Vehicles or any part thereof; (ii) any damage to, removal, abandonment, salvage, loss, scrapping or destruction of or any requisition or taking of the Vehicles or any part thereof; (iii) any restriction, prevention or curtailment of or interference with any use of the Vehicles or any part thereof; (iv) any defect in or any Lien on title to the Vehicles or any part thereof; (v) any change, waiver, extension, indulgence or other action or omission in respect of any obligation or liability of the Lessee or the Lessor; (vi) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to the Lessee, the Lessor or any other Person, or any action taken with respect to this Agreement by any trustee or receiver of any Person mentioned above, or by any court; (vii) any claim that the Lessee has or might have against any Person, including without limitation the Lessor; (viii) any failure on the part of the Lessor or the Lessee to perform or comply with any of the terms hereof or of any other agreement; (ix) any invalidity or unenforceability or disaffirmance of this Agreement or any provision hereof or any of the other Related Documents or any provision of any thereof, in each case whether against or by the Lessee or otherwise; (x) any insurance premiums payable by the Lessee with respect to the Vehicles; or (xi) any other occurrence whatsoever, whether similar or dissimilar to the foregoing, whether or not the Lessee shall have notice or knowledge of any of the foregoing and whether or not foreseen or foreseeable. This Agreement shall be noncancellable by the Lessee and, except as expressly provided herein, the Lessee, to the extent permitted by law, waives all rights now or hereafter conferred by statute or otherwise to quit, terminate or surrender this Agreement, or to any diminution or reduction of Rent or other amounts payable by the Lessee hereunder. All payments by the Lessee made hereunder shall be final (except to the extent of adjustments provided for herein), absent manifest error and, except as otherwise provided herein, the Lessee shall not seek to recover any such payment or any part thereof for any reason whatsoever, absent manifest error. If for any reason whatsoever this Agreement shall be terminated in whole or in part by operation of law or otherwise except as expressly provided herein, the Lessee shall nonetheless pay an amount equal to all Rent and all other amounts due hereunder at the time and in the manner that such payments would have become due and payable under the terms of this Agreement as if it had not been terminated in whole or in part. All covenants and agreements of the Lessee herein shall be performed at its cost, expense and risk unless expressly otherwise stated.
5. INSURANCE. The Lessee represents that it is and at all times hereunder shall remain a self-insurer, or will provide insurance, in accordance with all applicable state law requirements and agrees to maintain or cause to be maintained insurance/self-insurance coverage in force as follows:
5.1. Comprehensive Public Liability, Property Damage, and Catastrophic Physical Damage. Comprehensive public liability and property damage protection in respect of the possession, condition, maintenance, operation and use of the Vehicles, in the amount required to meet the minimum financial responsibility requirements mandated by applicable state law for each occurrence, and catastrophic physical damage insurance,
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in an amount not less than $50,000,000. Catastrophic physical damage insurance shall name the Collateral Agent as loss payee as its interests may appear.
5.2. Delivery of Certificate of Insurance. On or prior to the Initial Closing Date, the Lessee shall deliver to the Lessor, the Trustee and the Collateral Agent a certificate(s) of insurance/self-insurance as to the items required by Section 5.1 herein above. The Lessee shall not change or cancel such insurance/self-insurance without giving at least 30 days prior written notice to the Lessor, the Trustee and the Collateral Agent. Any insurance, as opposed to self-insurance, obtained by the Lessee shall be obtained from a Qualified Insurer only.
6.1. Risk of Loss Borne by Lessees. Upon payment by the Lessor for each Vehicle, as between the Lessor and the Lessee, the Lessee assumes and bears the risk of loss, damage, theft, taking, destruction, attachment, seizure, confiscation or requisition with respect to such Vehicle, however caused or occasioned, and all other risks and liabilities, including personal injury or death and property damage, arising with respect to such Vehicle or the manufacture, purchase, acceptance, rejection, ownership, delivery, leasing, subleasing, possession, use, inspection, registration, operation, condition, maintenance, repair, storage, sale, return or other disposition of such Vehicle, howsoever arising.
6.2. Casualty; Ineligible Vehicles. If a Vehicle suffers a Casualty or becomes an Ineligible Vehicle, then the Lessee will promptly (i) notify the Servicer thereof and the Servicer shall include notice of such occurrence in the Monthly Servicing Certificate for the Related Month during which such Vehicle suffered the Casualty or became an Ineligible Vehicle and (ii) promptly, but in no event later than the Payment Date with respect to the Related Month during which such Vehicle suffered a Casualty or became an Ineligible Vehicle, pay to the Lessor the Termination Value of such Vehicle as of the date such Vehicle became a Casualty or an Ineligible Vehicle (the Casualty Payment ). Upon receipt of the Casualty Payment on or before the next Payment Date, this Agreement will terminate with respect to such Vehicle. Upon receipt of the Casualty Payment by the Lessor, (i) the Lessor shall cause title to such Vehicle to be transferred to the Lessee and (ii) the Lessee shall be entitled to any physical damage insurance proceeds applicable to such Vehicle.
7. VEHICLE USE. The Lessee may use Vehicles leased hereunder in its regular course of business and the Lessees and its subsidiaries employees may use Vehicles leased hereunder in their personal or professional capacities, subject to Sections 2.5 and 17 hereof and Section 9.2 of the Base Indenture. Such use shall be confined primarily to the United States, with limited use in Canada and Mexico; provided that the principal place of business or rental office of the Lessee with respect to the Vehicles is located in the United States. Subject to the preceding sentence, the Lessee may, at its sole expense, change the place of principal location of any Vehicles. Notwithstanding the foregoing, no change of location shall be undertaken unless and until all legal requirements
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applicable to such Vehicles shall have been met or obtained. The Lessee shall not knowingly use any Vehicles or knowingly permit the same to be used for any unlawful purpose. The Lessee shall use reasonable precautions to prevent loss or damage to Vehicles. The Lessee shall comply with all applicable statutes, decrees, ordinances and regulations regarding titling, registering, leasing, insuring and disposing of Vehicles and shall take reasonable steps to ensure that operators are licensed. The Lessee and the Lessor agree that the Lessee shall perform, at its own expense, such Vehicle preparation and conditioning services with respect to Vehicles leased by the Lessee hereunder as are customary. The Lessor or the Trustee, or any authorized representative of the Lessor or the Trustee, may during reasonable business hours from time to time, without disruption of the Lessees business, subject to applicable law, inspect Vehicles wherever they are located. In addition to its normal daily rental operations, the Lessee may sublet Vehicles to (A) Person(s) in the ordinary course of business, so long as (i) the sublease to such Person(s) is subject to the terms and conditions of this Agreement and expressly states that it is subordinate in all respects to this Agreement, (ii) the Vehicles being subleased are being used in such Person(s) daily rental car business and (iii) the aggregate Net Book Value of the Vehicles being subleased at any one time is less than ten percent of the aggregate Net Book Value of all Vehicles being leased under this Agreement at such time and (B) to any wholly-owned subsidiary of the Lessee (including HERC), so long as (i) the sublease of such Vehicles to such wholly-owned subsidiary is subject to the terms and conditions of this Agreement and expressly states that it is subordinate in all respects to this Agreement and (ii) the Vehicles being subleased are being used in such wholly-owned subsidiarys daily rental car business or equipment rental business, or by such subsidiarys employees in their personal or professional capacities. The sublease of any Vehicles permitted by this Section 7 shall not release the Lessee from any obligations under this Agreement.
8. LIENS. The Lessor may grant security interests in the Vehicles leased by the Lessee hereunder without consent of the Lessee. Except for Permitted Liens, the Lessee shall keep all Vehicles free of all Liens arising during the Term. If on the Vehicle Operating Lease Expiration Date for any Vehicle, there is a Lien on such Vehicle, the Lessor may, in its discretion, remove such Lien and any sum of money that may be paid by the Lessor in release or discharge thereof, including reasonable attorneys fees and costs, will be paid by the Lessee upon demand by the Lessor.
9. NON-DISTURBANCE. So long as the Lessee satisfies its obligations hereunder, its quiet enjoyment, possession and use of the Vehicles will not be disturbed during the Term subject, however, to Sections 2.5 and 17 hereof and except that the Lessor and the Trustee each retains the right, but not the duty, to inspect such Vehicles without disturbing the ordinary conduct of the Lessees business. Upon the request of the Lessor or the Trustee from time to time, the Lessee will make reasonable efforts to confirm to the Lessor and the Trustee the location, mileage and condition of each Vehicle leased by the Lessee hereunder and to make available for the Lessors or the Trustees inspection within a reasonable time period, not to exceed 45 days, such Vehicles at the location where such Vehicles are normally domiciled. Further, the Lessee will, during normal business hours and with prior notice of three Business Days, make its records
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pertaining to the Vehicles available to the Lessor or the Trustee for inspection at the location where the Lessees records are normally domiciled.
10. FEES; TRAFFIC SUMMONSES; PENALTIES AND FINES. The Lessee shall be responsible for the payment of all registration fees, title fees, license fees or other similar governmental fees and taxes (including the cost of any recording or registration fees or other similar governmental charges with respect to the notation on the Certificates of Title of the Vehicles of the interest of the Collateral Agent), all costs and expenses in connection with the transfer of title of, or reflection of the interest of any lienholder in, any Vehicle, traffic summonses, penalties, judgments and fines incurred with respect to any Vehicle leased hereunder during the Vehicle Term for such Vehicle or imposed during the Vehicle Term for such Vehicle by any Governmental Authority or any court of law or equity with respect to such Vehicles in connection with the Lessees operation of such Vehicles. Pursuant to the Nominee Agreement, the Hertz Nominee Agreement or the HFC Nominee Agreement, the Lessor has directed the Nominee or the HFC Nominee, respectively, to execute a power of attorney to the Servicer to allow the Servicer to title, register and dispose of the Vehicles leased hereunder in accordance with the terms hereof. Pursuant to the Hertz Nominee Agreement, the Lessor has directed the Hertz Nominee to execute a power of attorney to the Lessor, and the Lessor has in turn executed a power of attorney to the Servicer, to allow the Servicer to title, register and dispose of the Vehicles leased hereunder in accordance with the terms hereof.
11. MAINTENANCE AND REPAIRS. The Lessee shall pay for all maintenance and repairs to keep the Vehicles in good working order and condition, and the Lessee will maintain the Vehicles as required in order to keep the Manufacturers warranty in force. The Lessee will return Vehicles to an authorized Manufacturer facility or Manufacturer authorized warranty station for warranty work. The Lessee will comply with any Manufacturers recall of any Vehicle. The Lessee will pay, or cause to be paid, all usual and routine expenses incurred in the use and operation of Vehicles including, but not limited to, fuel, lubricants, and coolants. The Lessee shall not make any material alterations to any Vehicles without the prior consent of the Lessor. Any improvements or additions to any Vehicles shall become and remain the property of the Lessor, except that any addition to Vehicles made by the Lessee shall remain the property of the Lessee if such addition can be disconnected from such Vehicles without impairing the functioning of such Vehicles or its resale value, excluding such addition.
12.1. No Lessor Warranties. THE LESSEE ACKNOWLEDGES THAT THE LESSOR IS NOT THE MANUFACTURER, THE AGENT OF THE MANUFACTURER, OR THE DISTRIBUTOR OF THE VEHICLES. THE LESSOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE FITNESS, SAFENESS, DESIGN, MERCHANTABILITY, CONDITION, QUALITY, CAPACITY OR WORKMANSHIP OF THE VEHICLES NOR ANY WARRANTY THAT THE VEHICLES WILL SATISFY THE REQUIREMENTS OF ANY LAW OR ANY CONTRACT SPECIFICATION, AND AS BETWEEN THE LESSOR AND THE LESSEE, THE LESSEE AGREES TO BEAR ALL SUCH RISKS
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AT ITS SOLE COST AND EXPENSE. THE LESSEE SPECIFICALLY WAIVES ALL RIGHTS TO MAKE CLAIMS AGAINST THE LESSOR AND ANY VEHICLE FOR BREACH OF ANY WARRANTY OF ANY KIND WHATSOEVER AND, AS TO THE LESSOR, THE LESSEE LEASES THE VEHICLES AS IS. IN NO EVENT SHALL THE LESSOR BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHATSOEVER OR HOWSOEVER CAUSED.
12.2. Manufacturers Warranties. If a Vehicle is covered by a Manufacturers warranty, the Lessee, during the Vehicle Term for such Vehicle, shall have the right to make any claims under such warranty which the Lessor could make.
13.1. Usage. As used herein, Vehicle Turn-In Condition (a) with respect to each Program Vehicle shall mean the standard established by a set of criteria for evaluating such Vehicle upon its delivery to the Manufacturer and shall be determined in accordance with the related Manufacturer Program and (b) with respect to each Non-Program Vehicle shall mean (i) if such Non-Program Vehicle is manufactured by the same Manufacturer as any Program Vehicle leased hereunder, the same standard as required with respect to such Program Vehicle and (ii) if such Non-Program Vehicle does not satisfy clause (i) above, such condition that would reasonably be considered to be normal wear and tear or otherwise de minimis damages by the Manufacturer of such Vehicle (or its authorized agent) under such Manufacturers Manufacturer Program or, if such Manufacturer does not maintain a Manufacturer Program, under the Manufacturer Program of another Manufacturer with comparable sales volume.
13.2. Return. The Lessee agrees that the Vehicles will be in Vehicle Turn-In Condition upon return to the Lessor pursuant to Section 2.3. Any rebate or credits applicable to the unexpired term of any license plates for a Vehicle leased hereunder shall inure to the benefit of the Lessee. Each Program Vehicle not meeting the Vehicle Turn-In Condition under the applicable Manufacturer Program will, unless redesignated as a Non-Program Vehicle pursuant to Section 2.6, be treated as a Casualty. The Lessee will provide condition report data concerning the Program Vehicles returned to the Manufacturers during the Related Month to the Lessor in the format set forth on the Condition Report(s) on the Determination Date.
13.3. Special Default Payments. (a) On the Determination Date immediately following the receipt of payment of the Repurchase Price of each Program Vehicle from the Manufacturer (or the receipt of payment of the Repurchase Price of each such Program Vehicle sold through an auction conducted by or through a Manufacturer) or on the Determination Date immediately following the date by which the Repurchase Price of each such Program Vehicle turned back to a Manufacturer would have been paid if not for a Manufacturer Event of Default, the Servicer will calculate the amount of any Excess Damage Charges and/or Excess Mileage Charges applicable to such Program Vehicle pursuant to the applicable Manufacturer Program, and the Lessee will pay the full amount of such charges to the Lessor on the Payment Date immediately
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following such Determination Date (any such charges are referred to as Program Vehicle Special Default Payments ).
13.4. Early Termination Payments. If the Lessee turns back any Program Vehicle to a Manufacturer under its Manufacturer Program before the Minimum Term, on the Payment Date immediately following the receipt of the Repurchase Price of such Vehicle from such Manufacturer or on the Payment Date immediately following the date by which the Repurchase Price would have been paid if not for a Manufacturer Event of Default, the Lessee will pay the Lessor an amount equal to the excess, if any, of (x) the Termination Value of such Vehicle (as of the Turnback Date) over (y) the sum of the Repurchase Price received with respect to such Vehicle or that would have been received but for a Manufacturer Event of Default, as applicable, and any Special Default Payments made by the Lessee in respect of such Vehicle pursuant to Section 13.3 (any such amount is referred to as an Early Termination Payment ). On each Payment Date, the Lessee shall pay to the Lessor all Early Termination Payments that have accrued during the Related Month. The provisions of this Section 13.4 will survive the expiration or earlier termination of the Term.
14. DISPOSITION PROCEDURE. In connection with the disposition of any Program Vehicle, the Servicer will comply with the requirements of law and the requirements of the Manufacturer Programs in connection with, among other things, the delivery of Certificates of Title and documents of transfer signed as necessary, signed Condition Reports and signed odometer statements to be submitted with such Program Vehicles returned to a Manufacturer pursuant to Section 3.1(b) and accepted by the Manufacturer or its agent at the time of Program Vehicle return. In connection with the disposition of any Non-Program Vehicle, the Servicer will comply with the requirements of law.
15. ODOMETER DISCLOSURE REQUIREMENT. The Servicer agrees to comply with all requirements of law and all Manufacturer Program requirements with respect to each Vehicle in connection with the transfer of ownership by the Lessor of
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such Vehicle, including, without limitation, the submission of any required odometer disclosure statement at the time of any such transfer of ownership.
16.1. Right of the Lessor to Assign this Agreement. The Lessor shall have the right to finance the acquisition and ownership of Vehicles by selling or assigning its right, title and interest in this Agreement, including, without limitation, in moneys due from the Lessee and any third party under this Agreement, to the Trustee for the benefit of the Noteholders; provided , however , that any such sale or assignment shall be subject to the rights and interest of the Lessee in the Vehicles, including but not limited to the Lessees right of quiet and peaceful possession of such Vehicles as set forth in Section 9 hereof, and under this Agreement.
16.2. Limitations on the Right of the Lessee to Assign this Agreement. The Lessee shall not assign this Agreement or any of its rights hereunder to any other party; provided , however , that the Lessee may rent the Vehicles leased hereunder under the terms of its normal daily rental programs, and may sublease Vehicles pursuant to Section 7. Any purported assignment in violation of this Section 16.2 shall be void and of no force or effect. Nothing contained herein shall be deemed to restrict the right of the Lessee to acquire or dispose of, by purchase, lease, financing, or otherwise, motor vehicles that are not subject to the provisions of this Agreement.
17.1. Events of Default. Any one or more of the following will constitute an event of default (an Operating Lease Event of Default ) as that term is used herein:
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17.2. Effect of Operating Lease Event of Default. If any Operating Lease Event of Default described in Sections 17.1.1, 17.1.2, 17.1.6 or 17.1.9 shall occur, (x) the right of the Lessee to lease additional Vehicles from the Lessor hereunder shall immediately terminate and (y) any accrued and unpaid Rent and all other payments accrued but unpaid under this Agreement shall automatically, without further action by the Lessor or the Trustee, become immediately due and payable and (z) the Lessee shall, at the request of the Lessor or the Trustee acting at the direction of the Requisite Investors, return or cause to be returned all Vehicles leased by the Lessee subject to this Agreement to the Lessor or the Trustee as the case may be in accordance with the provisions of Section 2.3. If any other Operating Lease Event of Default shall occur, (x) the right of the Lessee to lease additional Vehicles hereunder from the Lessor shall automatically terminate and (y) the Trustee acting at the direction of the Requisite Investors may declare any accrued and unpaid Rent and all other payments accrued but unpaid under this Agreement to be due and payable whereupon such Rent and such other charges, amounts and payments shall become immediately due and payable.
17.3. Rights of Lessor Upon Operating Lease Event of Default. If an Operating Lease Event of Default, Limited Liquidation Event of Default (other than any Limited Liquidation Event of Default relating solely to any Segregated Series of Notes) or Liquidation Event of Default shall occur, then the Lessor at its option may:
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17.5. Measure of Damages. If an Operating Lease Event of Default, a Limited Liquidation Event of Default (other than any Limited Liquidation Event of Default relating solely to any Segregated Series of Notes) or a Liquidation Event of Default occurs and the Lessor or the Trustee exercises the remedies granted to the Lessor or the Trustee under this Article 17 or Section 9.2 of the Base Indenture, the amount that the Lessor shall be permitted to recover from the Lessee as payment shall be equal to:
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17.6. Vehicle Return Default. If the Lessee fails to comply with the provisions of (a) Section 2.3 hereof with respect to any Vehicle or (b) Section 3.1 with respect to returning any Program Vehicles to the Servicer for return to the related Manufacturer not later than the end of the Maximum Term (each, a Vehicle Return Default ), and the Vehicle is not redesignated as a Non-Program Vehicle in accordance with Section 2.6, then the Lessor at its option may:
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17.7. Servicer Default. Any of the following events will constitute a default of the Servicer ( Servicer Default ) as that term is used herein: (i) the failure in a material respect of the Servicer to comply with or perform any provision of this Agreement or any other Related Document (other than any Related Document relating solely to a Segregated Series of Notes), and such default continues for more than thirty (30) days after the earlier of the date written notice is delivered by the Lessor or the Trustee to the Servicer or the Servicer has actual knowledge thereof; (ii) an Event of Bankruptcy occurs with respect to the Servicer; (iii) the failure of the Servicer to make any payment when due from it hereunder or under any of the other Related Documents (other than any Related Document relating solely to a Segregated Series of Notes) or to deposit any Collections received by it into a Collateral Account when required under the Related Documents and, in each case, such failure continues for 5 Business Days; or (iv) if any representation or warranty made by the Servicer in any Related Document (other than any Related Document relating solely to a Segregated Series of Notes) is inaccurate or incorrect or is breached or is false or misleading in any material respect as of the date of the making thereof or any schedule, certificate, financial statement, report, notice, or other writing furnished by or on behalf of the Servicer to the Lessor or the Trustee pursuant to any Related Document (other than any Related Document relating solely to a Segregated Series of Notes) is false or misleading in any material respect on the date as of which the facts therein set forth are stated or certified, and the circumstance or condition in respect of which such representation, warranty or writing was inaccurate, incorrect, breached, false or misleading in any material respect, as the case may be, shall not have been eliminated or otherwise cured for thirty (30) days after the earlier of (x) the date of the receipt of written notice thereof from the Lessor or the Trustee to the Servicer and (y) the date the Servicer learns of such circumstance or condition. In the event of a Servicer Default, the Trustee, acting pursuant to Section 8.7(c) of the Base Indenture, shall have the right to replace the Servicer as servicer.
17.8. Application of Proceeds. The proceeds of any sale or other disposition pursuant to Section 17.2, 17.3 or 17.6 shall be applied by the Lessor in its sole discretion as the Lessor deems appropriate.
18. MANUFACTURER EVENTS OF DEFAULT. (a) During the continuance of a Manufacturer Event of Default with respect to any Manufacturer (a Defaulting
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Manufacturer), the Lessor shall not purchase Program Vehicles from such Defaulting Manufacturer pursuant to the Purchase Agreement.
19. CERTIFICATION OF TRADE OR BUSINESS USE. The Lessee hereby warrants and certifies, under penalties of perjury, that it intends to use the Vehicles which are subject to this Agreement in its trade or business.
20. TITLE TO VEHICLES. This is an agreement to lease only and title to Vehicles will at all times remain in the Lessor, the Nominee, the Hertz Nominee or the HFC Nominee, as applicable, and beneficial ownership will at all times remain in the Lessor. The Lessee will not have any rights or interest in Vehicles whatsoever other than the right of possession and use as provided by this Agreement.
21. RIGHTS OF LESSOR ASSIGNED TO TRUSTEE. The Lessee acknowledges that the Lessor has assigned or will assign all of its rights under this Agreement to the Trustee pursuant to the Indenture. Accordingly, the Lessee agrees that:
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22. MODIFICATION AND SEVERABILITY. The terms of this Agreement will not be waived, altered, modified, amended, supplemented or terminated in any manner whatsoever unless (i) the same shall be in writing and signed and delivered by the Lessor, the Servicer and the Lessee and consented to in writing by the Trustee and (ii) the Rating Agency Condition with respect to each Series of Notes Outstanding shall have been satisfied with respect to such amendment. If any part of this Agreement is not valid or enforceable according to law, all other parts will remain enforceable.
23. SERVICER ACTING AS AGENT OF THE LESSOR. The parties to this Agreement acknowledge and agree that Hertz acts as Servicer of the Lessor pursuant to this Agreement, and, in such capacity, as the agent of the Lessor, for purposes of performing certain duties of the Lessor under this Agreement and the Related Documents (other than any Related Documents or portions thereof relating solely to a Segregated Series of Notes). As compensation for the Servicers performance of such duties, the Lessor shall pay to the Servicer on each Payment Date (i) a fee (the Monthly Servicing Fee ) equal to .50% per annum, payable at one-twelfth the annual rate, on the outstanding Net Book Value of the Vehicles as of the last day of the preceding calendar month and (ii) the reasonable costs and expenses of the Servicer incurred by it as a result of arranging for the sale of Vehicles returned to the Lessor in accordance with Section 2.3(a) or as a result of a Vehicle Return Default and sold to third parties; provided , however , that such costs and expenses shall only be payable to the Servicer to the extent of any excess of the sale price received by the Lessor for any such Vehicle over the Termination Value thereof.
24. MINIMUM DEPRECIATION RATE. The Lessor agrees that the Depreciation Schedules with respect to Non-Program Vehicles leased under this Agreement shall be established such that (i) the Depreciation Charges accruing with respect to each Non-Program Vehicle during each Related Month shall be at least equal to 1.25%, and (ii) the weighted average of the Depreciation Charges accruing with respect to all Non-Program Vehicles during each Related Month shall be at least equal to the lesser of (a) 1.50% and (b) such lower percentage in respect of which the Rating Agency Condition with respect to each Series of Notes Outstanding shall have been satisfied.
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25. CERTAIN REPRESENTATIONS AND WARRANTIES. The Lessee represents and warrants to the Lessor and the Trustee that as of the Restatement Effective Date, as of each Vehicle Operating Lease Commencement Date and as of each Closing Date with respect to each subsequent Series of Notes:
25.1. Organization; Power; Qualification. The Lessee has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power under the laws of such State to execute and deliver this Agreement and the other Related Documents (other than any Related Documents relating only to a Segregated Series of Notes) to which it is a party and to perform its obligations hereunder and thereunder, and is duly qualified and in good standing to do business as a foreign corporation in each jurisdiction where the character of its properties or the nature of its business makes such qualification necessary and where the failure to do so would reasonably be expected to result in a Material Adverse Effect.
25.2. Authorization; Enforceability. Each of this Agreement and the other Related Documents (other than any Related Documents relating only to a Segregated Series of Notes) to which it is a party has been duly authorized, executed and delivered on behalf of the Lessee and, assuming due authorization, execution and delivery by the other parties hereto or thereto, is a valid and legally binding agreement of the Lessee enforceable against the Lessee in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors rights generally or by general equitable principles, whether considered in a proceeding at law or in equity or by an implied covenant of good faith and fair dealing).
25.3. Compliance. The execution, delivery and performance by the Lessee of this Agreement and the Related Documents (other than any Related Documents relating only to a Segregated Series of Notes) will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Lessee pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or other similar agreement or instrument under which the Lessee is a debtor or guarantor (except to the extent that such conflict, breach, creation or imposition is not reasonably likely to have a Material Adverse Effect) nor will such action result in a violation of any provision of applicable law or regulation (except to the extent that such violation is not reasonably likely to result in a Material Adverse Effect) or of the provisions of the certificate of incorporation or the by-laws of the Lessee.
25.4. Other. There is no consent, approval, authorization, order, registration or qualification of or with any Governmental Authority having jurisdiction over the Lessee which is required for, and the absence of which would materially affect, the execution, delivery and performance of this Agreement or the Related Documents (other than any Related Documents relating only to a Segregated Series of Notes).
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25.5. Financial Statements. (a) The Lessee has furnished each of the Lessor and the Trustee with, and the Lessor and the Trustee hereby acknowledge receipt of, a copy of the Lessees Annual Report to the Securities and Exchange Commission (the SEC) on Form 10-K for the year ended December 31, 2008 (the 10-K Report ). The financial statements set forth in such report present fairly in all material respects the consolidated financial position of the Lessee and its consolidated subsidiaries at December 31, 2008 and 2007, and the consolidated results of operations and cash flows for each of the three years in the period ended December 31, 2008, in conformity with generally accepted accounting principles in the United States.
25.6. Investment Company Act. The Lessee is not an investment company or a company controlled by an investment company within the meaning of the Investment Company Act of 1940, as amended, and the Lessee is not subject to any other statute which would impair or restrict its ability to perform its obligations under this Agreement or the other Related Documents (other than any Related Documents relating only to a Segregated Series of Notes), and neither the entering into or performance by the Lessee of this Agreement violates any provision of such Act.
25.7. Supplemental Documents True and Correct. All information contained in any material Supplemental Document which has been submitted, or which may hereafter be submitted by the Lessee to the Lessor is, or will be, true, correct and complete in all material respects.
25.8. [Reserved].
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25.9. ERISA. The Lessee has satisfied the minimum funding standards under ERISA with respect to its Plans and is in compliance in all material respects with the currently applicable provisions of ERISA.
25.10. Indemnification Agreement. The Indemnification Agreement is in full force and effect, and is a valid and legally binding agreement of the Lessee enforceable against the Lessee in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors rights generally or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing).
25.11. Eligible Vehicles. Each Vehicle is or will be, as the case may be, on the applicable Vehicle Operating Lease Commencement Date, an Eligible Vehicle.
26. CERTAIN AFFIRMATIVE COVENANTS. Until the expiration or termination of this Agreement, and thereafter until the obligations of the Lessee under this Agreement and the Related Documents (other than any Related Documents or portions thereof relating only to a Segregated Series of Notes) are satisfied in full, the Lessee covenants and agrees that, unless at any time the Lessor and the Trustee shall otherwise expressly consent in writing, it will:
26.1. Corporate Existence; Foreign Qualification. Do and cause to be done at all times all things necessary to (i) maintain and preserve its corporate existence; (ii) be, and ensure that it is, duly qualified to do business and in good standing as a foreign corporation in each jurisdiction where the character of its properties or the nature of its business makes such qualification necessary and where the failure to so qualify would be reasonably expected to result in a Material Adverse Effect; and (iii) comply with all Contractual Obligations and Requirements of Law binding upon it, except to the extent that the failure to comply therewith would not, in the aggregate, be reasonably expected to result in a Material Adverse Effect.
26.2. Books, Records and Inspections. (i) Maintain complete and accurate books and records with respect to the Vehicles leased by it under this Agreement and the other HVF Vehicle Collateral and (ii) at any time and from time to time during regular business hours, upon not less than reasonable prior notice from the Lessor or the Trustee, permit the Lessor or the Trustee (or such other person who may be designated from time to time by the Lessor or the Trustee) to examine and make copies of such books, records and documents in the possession or under the control of the Lessee relating to the Vehicles leased under this Agreement and the other HVF Vehicle Collateral; and (iii) permit the Lessor, the Trustee or the Collateral Agent (or such other person who may be designated from time to time by the Lessor, the Trustee or the Collateral Agent) to visit the office and properties of the Lessee for the purpose of examining such materials, and to discuss matters relating to the Vehicles leased under this Agreement with the Lessees independent public accountants or with any of the officers or employees of the Lessee having knowledge of such matters, all at such reasonable times and as often as the Lessor or the Trustee may reasonably request. The Lessor agrees that it will not disclose
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any information obtained pursuant to this Section 26.2 which is not otherwise publicly available without the prior approval of the Lessee, except that the Lessor may disclose such information (x) to its officers, employees, attorneys and advisors, in each case on a confidential and need-to-know basis, and (y) as required by applicable law or compulsory legal process.
26.3. ERISA. Comply with the minimum funding standards under ERISA with respect to its Plans and use its best efforts to comply in all material respects with all other applicable provisions of ERISA and the regulations and interpretations promulgated thereunder.
26.4. Merger. Not merge or consolidate with or into any other Person unless (i) the Lessee is the surviving entity of such merger or consolidation or (ii) the surviving entity of such merger or consolidation expressly assumes the Lessees obligations under this Agreement.
26.5. Reporting Requirements. Furnish, or cause to be furnished to the Lessor and the Trustee:
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Notwithstanding the foregoing, if any audited or reviewed financial statements or information required to be included in any such filing are not reasonably available on a timely basis as a result of the Lessees accountants not being independent (as defined pursuant to the Exchange Act and the rules and regulations of the SEC thereunder), the Lessee may, in lieu of making such filing or transmitting or making available the information, documents and reports so required to be filed, elect to make a filing on an alternative form or transmit or make available unaudited or unreviewed financial statements or information substantially similar to such required audited or reviewed financial statements or information, provided that the Lessee shall in any event be required to make such filing and so transmit or make available such audited or reviewed financial statements or information no later than the first anniversary of the date on which the same was otherwise required pursuant to the preceding provisions of this section.
26.6. Indemnification Agreement. Comply in all material respects with all of its obligations under the Indemnification Agreement.
26.7. Ford Program Agreements. Comply in all material respects with all of its obligations (other than to the extent to which any such obligations and rights of the
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applicable counterparties arising from non-compliance with such obligations relate solely to any Series-Specific Collateral for any Segregated Series) under those certain Auction Agent Agreements dated as of various dates by and among the Servicer, the Lessee, the Trustee and the various auction houses at which Program Vehicles manufactured by Ford are sold pursuant to which such auction houses agree to certain procedures regarding the transfer of title to such Program Vehicles.
27. NO PETITION. Each of the Lessee and the Servicer hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of all of the Indenture Notes, it will not institute against, or join with, encourage or cooperate with any other Person in instituting against the Lessor, the Nominee, the HFC Nominee or the Intermediary, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States. In the event that the Lessee or the Servicer takes action in violation of this Section 27, the Lessor, the Nominee, the HFC Nominee or the Intermediary, as the case may be, agrees, for the benefit of the Indenture Noteholders, that it shall file an answer with the bankruptcy court or otherwise properly contest the filing of such a petition by the Lessee or the Servicer, as the case may be, against it or the commencement of such action and raise the defense that the Lessee or the Servicer, as the case may be, has agreed in writing not to take such action and should be estopped and precluded therefrom. The provisions of this Section 27 shall survive the termination of this Agreement.
28. SUBMISSION TO JURISDICTION. The Lessor and the Trustee may enforce any claim arising out of this Agreement in any state or federal court having subject matter jurisdiction, including, without limitation, any state or federal court located in the State of New York. For the purpose of any action or proceeding instituted with respect to any such claim, the Lessee hereby irrevocably submits to the jurisdiction of such courts. The Lessee further irrevocably consents to the service of process out of said courts by mailing a copy thereof, by registered mail, postage prepaid, to the Lessee and agrees that such service, to the fullest extent permitted by law, (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall be taken and held to be valid personal service upon and personal delivery to it. Nothing herein contained shall affect the right of the Trustee and the Lessor to serve process in any other manner permitted by law or preclude the Lessor or the Trustee from bringing an action or proceeding in respect hereof in any other country, state or place having jurisdiction over such action. The Lessee hereby irrevocably waives, to the fullest extent permitted by law, any objection which it may have or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court located in the State of New York and any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum.
29. GOVERNING LAW. THIS AGREEMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. Whenever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision
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shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. All obligations of the Lessee and the Servicer and all rights of the Lessor or the Trustee expressed herein shall be in addition to and not in limitation of those provided by applicable law or in any other written instrument or agreement.
30. JURY TRIAL. EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT TO WHICH IT IS A PARTY, OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY RELATED TRANSACTION, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
31. NOTICES. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile transmission or similar writing) and shall be given to such party, addressed to it, at its address or telephone number set forth on the signature pages below, or at such other address or telephone number as such party may hereafter specify for the purpose by notice to the other party. Copies of notices, requests and other communications delivered to the Trustee, the Lessee and/or the Lessor pursuant to the foregoing sentence shall be sent to the following addresses:
TRUSTEE:
The Bank of New York Mellon
Trust Company, N.A.
2 North LaSalle Street
Chicago, IL 60602
Attention: Corporate Trust
Administration Structured
Finance
Telephone: (312) 827-8569
Fax: (312) 827-8562
LESSOR:
225 Brae Boulevard
Park Ridge, NJ 07656
Attention: Treasury Department
Telephone: (201) 307-2000
Fax: (201) 307-2746
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LESSEE:
225 Brae Boulevard
Park Ridge, NJ 07656
Attention: Treasury Department
Telephone: (201) 307-2000
Fax: (201) 307-2746
Each such notice, request or communication shall be effective when received at the address specified below. Copies of all notices must be sent by first class mail promptly after transmission by facsimile.
32. SURVIVABILITY. In the event that, during the term of this Agreement, the Lessee becomes liable for the payment or reimbursement of any obligations, claims or taxes pursuant to any provision hereof, such liability will continue, notwithstanding the expiration or termination of this Agreement, until all such amounts are paid or reimbursed by the Lessee.
33. HEADINGS. Section headings used in this Agreement are for convenience of reference only and shall not affect the construction of this Agreement.
34. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused it to be executed by their respective officers thereunto duly authorized as of the day and year first above written.
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Acknowledging its obligations under Section 27 hereof:
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NOMINEE: |
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HERTZ VEHICLES LLC, |
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by |
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/s/ R. Scott Massengill |
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Name: R. Scott Massengill |
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Title: Vice President & Treasurer |
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HFC NOMINEE: |
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HERTZ FUNDING CORPORATION, |
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by |
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/s/ R. Scott Massengill |
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Name: R. Scott Massengill |
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Title: Vice President & Treasurer |
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Exhibit 4.9.8
THIS SECOND AMENDED AND RESTATED PARTICIPATION, PURCHASE AND SALE AGREEMENT (as amended, this Agreement ) is made as of this 18th day of September, 2009, by and among THE HERTZ CORPORATION, a Delaware corporation ( Hertz ), individually and as lessee and servicer, HERTZ GENERAL INTEREST LLC, a Delaware limited liability company ( HGI ) and HERTZ VEHICLE FINANCING LLC, a Delaware limited liability company ( HVF ). Except as otherwise specified, capitalized terms used but not defined herein have the respective meanings set forth in Schedule I to the Third Amended and Restated Base Indenture, dated as of September 18, 2009, between HVF and the Trustee; provided , that, if any such capitalized term is defined in the Base Indenture, but has a corresponding Segregated Series-specific definition set forth in the related Segregated Series Supplement, the capitalized term set forth herein shall have the meaning of the corresponding Segregated Series-specific definition set forth in the applicable Segregated Series Supplement in all contexts relating to the HVF Segregated Vehicles and HVF Segregated Vehicle Collateral that constitute Series-Specific Collateral for such Segregated Series; provided , further , that if any capitalized term is defined in each of the Base Indenture and the HGI Lease, the definition of such capitalized term set forth in the HGI Lease shall apply in all contexts relating to the HGI Vehicles and HGI Vehicle Collateral.
WHEREAS, Hertz, HGI and HVF entered into a Participation, Purchase and Sale Agreement made as of the 18 th day of September, 2002, as amended pursuant to Amendment No. 1 to Participation, Purchase and Sale Agreement dated as of March 31, 2004;
WHEREAS, Hertz, HGI and HVF entered into an Amended and Restated Participation, Purchase and Sale Agreement made as of the 21st day of December, 2005 (as amended, the Prior Agreement );
WHEREAS, Hertz, HGI and HVF desire to amend and restate the Prior Agreement in its entirety as set forth herein;
WHEREAS, Hertz is engaged in the business of renting passenger automobiles and light-duty trucks ( Vehicles ) to customers;
WHEREAS, Hertz desires to arrange for HGI and HVF to finance and acquire Vehicles, and to lease the Vehicles to Hertz from time to time pursuant to two or more separate lease agreements (the HGI Lease , the HVF Lease and any lease agreement relating to a Segregated Series (a Segregated Series Lease , together with the HGI Lease and the HVF Lease, the Leases );
WHEREAS, for reasons of administrative convenience, the Servicer, on behalf of HGI, will order Vehicles for purchase by HGI and for sale by HGI to HVF, and HVF will purchase Vehicles ordered for it from HGI (HGI, in such capacity, a Seller , and HVF, in such capacity, a Purchaser );
WHEREAS, for reasons of administrative convenience, Vehicles purchased by HGI, including the Vehicles subsequently sold to HVF, will be titled in the name of Hertz Vehicles LLC, as nominee titleholder for HGI or HVF, as applicable, pursuant to the Nominee Agreement;
WHEREAS, for reasons of administrative convenience, the Collateral Agent will be named as lienholder on the Certificates of Title for certain Vehicles purchased by HGI, including certain Vehicles subsequently sold by HGI to HVF, for the benefit of the Secured Parties;
WHEREAS, from time to time, the Lessee may desire to lease a particular Vehicle pursuant to the HGI Lease rather than the HVF Lease or any Segregated Series Lease, or vice versa, and in order to effect such change HGI and HVF agree to purchase Vehicles from one another on the terms set forth herein (each of HGI and HVF, in the capacity of seller, a Seller , and in the capacity of purchaser, a Purchaser );
NOW, THEREFORE, the parties agree as follows:
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The Servicer, by arranging the transfer from HVF to HGI of the Capitalized Cost of any New HVF Vehicle and, unless otherwise specified in the Related Documents related to a Segregated Series, a New HVF Segregated Vehicle financed under a dealerss floor plan line of credit provided by FMCC or GMAC pursuant to Section 1.05(a), shall be deemed to have represented that HGI has paid the Capitalized Cost of such New ABS Vehicle to FMCC or GMAC, as applicable, and that any interest of FMCC or GMAC, as applicable, in such New ABS Vehicle has been terminated.
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SECTION 5.02. Master Exchange Agreement . The parties to this Agreement acknowledge and agree that any action to be taken by HVF or HGI pursuant to this Agreement (including, but not limited to, the payment or receipt of any amounts) may be taken by the Intermediary to the extent provided for in the Master Exchange Agreement. Servicer agrees, to the extent requested by HGI or HVF, to cooperate with HVF or HGI, as applicable, in effecting any such actions pursuant to, and in accordance with, the terms of the Master Exchange Agreement.
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If to Hertz, HGI or HVF:
225 Brae Boulevard
Park Ridge, NJ 07656
Attention: Treasury Department
Telephone no. (201) 307-2000
Facsimile no. (201) 307-2746
If to the Trustee:
The Bank of New York Mellon Trust Company, N.A.
2 North LaSalle Street, Suite 1020
Chicago, IL 60602
Attention: Corporate Trust
Administration Structured Finance
Telephone no. (312) 827-8569
Facsimile no. (312) 827-8562
If to the Collateral Agent:
The Bank of New York Mellon Trust Company, N.A.
2 North LaSalle Street, Suite 1020
Chicago, IL 60602
Attention: Corporate Trust
Administration Structured Finance
Telephone no. (312) 827-8569
Facsimile no. (312) 827-8562
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Any party hereto may give any notice, request, demand, claim, or other communication hereunder using any other means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication will be deemed to have been duly given unless and until it actually is received by the intended recipient. Any party hereto may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other parties notice in the manner herein as set forth.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
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THE HERTZ CORPORATION |
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By: |
/s/ Scott Massengill |
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Scott Massengill |
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Treasurer |
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HERTZ GENERAL INTEREST LLC |
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By: |
/s/ Scott Massengill |
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Scott Massengill |
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Vice President & Treasurer |
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HERTZ VEHICLE FINANCING LLC |
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By: |
/s/ Scott Massengill |
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Scott Massengill |
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Vice President & Treasurer |
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EXHIBIT A
New Vehicle Schedule
Owner (HGI or HVF)
Segregated Series to Which Vehicle Relates (if applicable)
VIN
Manufacturer
Model Year and Make
Program/Non-Program
Drop Location/ Owning Area
Date of Original Purchase
Capitalized Cost
Effective Date of Sale to HVF (if applicable)
Vehicle Operating Lease Commencement Date
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EXHIBIT B
Rejected Vehicle Schedule
Segregated Series to Which Vehicle Relates (if
applicable)
VIN
Manufacturer
Model Year and Make
Program/Non-Program
Drop Location/ Owning Area
Date of Original Purchase
Capitalized Cost
Effective Date of Sale to HVF
Date of Rejection by Lessee
Proposed Effective Date of Repurchase by HGI
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EXHIBIT C
Transferred Vehicle Schedule
Owner (HGI or HVF)
Segregated Series to Which Vehicle Relates (if applicable)
VIN
Inventory Unit Number
Manufacturer
Model Year and Make
Program/Non-Program
Drop Location/ Owning Area
Transfer Price
Date of Original Purchase
In-Service Date
Effective Date of Transfer
Vehicle Operating Lease Commencement Date
22
Exhibit 4.9.11
EXECUTION VERSION
THIRD AMENDED AND RESTATED COLLATERAL AGENCY AGREEMENT
among
HERTZ VEHICLE FINANCING LLC,
as a grantor,
HERTZ GENERAL INTEREST LLC,
as a grantor,
THE HERTZ CORPORATION,
as Servicer,
THE HERTZ CORPORATION,
as a secured party,
THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A.
as a secured party,
not in its individual capacity but solely
as Trustee,
and
THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A.
not in its individual capacity but solely
as Collateral Agent,
Dated as of September 18 , 2009
Table of Contents
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ARTICLE I |
CERTAIN DEFINITIONS |
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2 |
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SECTION 1.1. |
Certain Definitions |
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2 |
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SECTION 1.2. |
Interpretation and Construction |
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3 |
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ARTICLE II |
COLLATERAL AGENT AS LIENHOLDER FOR THE SECURED PARTIES |
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3 |
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SECTION 2.1. |
Security Interest |
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3 |
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SECTION 2.2. |
Designation of HVF Vehicles and HGI Vehicles |
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11 |
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SECTION 2.3. |
Redesignation of Vehicles |
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12 |
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SECTION 2.4. |
Servicers Fleet Reports |
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12 |
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SECTION 2.5. |
Collateral Accounts |
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13 |
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SECTION 2.6. |
Certificates of Title |
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16 |
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SECTION 2.7. |
Release of Collateral |
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18 |
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ARTICLE III |
THE SERVICER |
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19 |
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SECTION 3.1. |
Acceptance of Appointment |
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19 |
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SECTION 3.2. |
Servicer Functions |
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19 |
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SECTION 3.3. |
The Servicer Not to Resign |
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20 |
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SECTION 3.4. |
Servicing Rights of Collateral Agent |
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20 |
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SECTION 3.5. |
Incumbency Certificate |
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20 |
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SECTION 3.6. |
Effective Period and Termination |
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20 |
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ARTICLE IV |
REPRESENTATIONS, WARRANTIES AND COVENANTS |
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21 |
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SECTION 4.1. |
Representations and Warranties of the Grantors |
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21 |
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SECTION 4.2. |
Representations and Warranties of the Servicer |
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SECTION 4.3. |
Covenants of Grantors |
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ARTICLE V |
THE COLLATERAL AGENT |
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23 |
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SECTION 5.1. |
Appointment |
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SECTION 5.2. |
Representations |
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SECTION 5.3. |
Exculpatory Provisions |
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25 |
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SECTION 5.4. |
Limitations on Duties of the Collateral Agent |
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25 |
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SECTION 5.5. |
Resignation and Removal of Collateral Agent |
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28 |
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SECTION 5.6. |
Qualification of Successors to Collateral Agent |
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29 |
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SECTION 5.7. |
Merger of the Collateral Agent |
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29 |
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SECTION 5.8. |
Compensation and Expenses |
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29 |
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SECTION 5.9. |
Stamp, Other Similar Taxes and Filing Fees |
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30 |
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SECTION 5.10. |
Indemnification |
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30 |
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SECTION 5.11. |
Waiver of Set-Off by the Collateral Agent |
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ARTICLE VI |
MISCELLANEOUS |
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31 |
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SECTION 6.1. |
Amendments, Supplements and Waivers |
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31 |
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SECTION 6.2. |
Notices |
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31 |
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SECTION 6.3. |
Headings |
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32 |
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SECTION 6.4. |
Severability |
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32 |
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SECTION 6.5. |
Counterparts |
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32 |
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SECTION 6.6. |
Binding Effect |
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32 |
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SECTION 6.7. |
Governing Law |
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32 |
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SECTION 6.8. |
Effectiveness |
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32 |
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SECTION 6.9. |
Termination of this Agreement |
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32 |
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SECTION 6.10. |
No Bankruptcy Petition Against the Grantors |
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32 |
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SECTION 6.11. |
No Waiver; Cumulative Remedies |
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33 |
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SECTION 6.12. |
Submission To Jurisdiction; Waivers |
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33 |
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SECTION 6.13. |
Waiver of Jury Trial |
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SECTION 6.14. |
Insurance Notification |
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34 |
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SECTION 6.15. |
Waiver of Set-Off With Respect to the Grantors |
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34 |
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SECTION 6.16. |
Confidentiality |
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SECTION 6.17. |
No Recourse |
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EXHIBITS |
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Exhibit A |
Servicers Fleet Report |
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Exhibit B |
Power of Attorney |
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ii
COLLATERAL AGENCY AGREEMENT
THIS THIRD AMENDED AND RESTATED COLLATERAL AGENCY AGREEMENT, dated as of September 18, 2009 (as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof, this Agreement ), among HERTZ VEHICLE FINANCING LLC, a Delaware limited liability company ( HVF ), and HERTZ GENERAL INTEREST LLC, a Delaware limited liability company ( HGI ), as grantors (each a Grantor ), THE HERTZ CORPORATION, a Delaware corporation ( Hertz ), as Servicer (in such capacity, the Servicer ), THE HERTZ CORPORATION, as a secured party (the HGI Secured Party ), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association (not in its individual capacity but solely as Trustee on behalf of the Indenture Noteholders under the Indenture), as a secured party on behalf of the Noteholders (the HVF General Secured Party ) and as secured party on behalf of the Segregated Noteholders of each Segregated Collateral Agency Series (with respect to any such Segregated Series of Notes and the Series-Specific Collateral related thereto, the HVF Segregated Series Secured Party and with respect to all such Segregated Series of Notes and all such Series-Specific Collateral, the HVF Segregated Secured Party and, together with the HVF General Secured Party, the HVF Secured Party ) (the HVF Secured Party together with the HGI Secured Party, the Secured Parties ) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., (f/k/a BNY Midwest Trust Company) as collateral agent for the Secured Parties (in such capacity, the Collateral Agent ).
W I T N E S S E T H :
WHEREAS, HVF, HGI, Hertz, the Trustee and the Collateral Agent entered into a Second Amended and Restated Collateral Agency Agreement dated as of January 27, 2007 (the Prior Agreement );
WHEREAS, HVF, HGI, HERTZ, the Trustee and the Collateral Agent desire to amend and restate the Prior Agreement in its entirety as herein set forth;
WHEREAS, HVF owns and will from time to time acquire Vehicles and lease the HVF Vehicles to Hertz for use in Hertzs daily domestic rental operations and, in certain circumstances, for use by Hertzs and Hertz Equipment Rental Corporations employees, in each case pursuant to the HVF Lease;
WHEREAS, HVF owns and will from time to time acquire Vehicles and lease the HVF Segregated Vehicles to Hertz for use in Hertzs daily domestic rental operations and, in certain circumstances, for use by Hertzs and Hertz Equipment Rental Corporations employees, in each case pursuant to the applicable Segregated Series Lease;
WHEREAS, HVF will finance certain of the HVF Vehicles and HVF Segregated Vehicles by issuing Series of Notes and Segregated Series of Notes, respectively, pursuant to that certain Third Amended and Restated Base Indenture dated as of September 18 , 2009 between HVF and The Bank of New York Mellon Trust Company, N.A., as trustee (as such Third Amended and Restated Base Indenture may be amended, supplemented, restated or otherwise modified from time to time in accordance with its terms, the Base Indenture );
WHEREAS, HGI owns and will from time to time acquire Vehicles and lease the HGI Vehicles to Hertz for use in Hertzs daily domestic rental operations and, in certain circumstances, for use by Hertzs and Hertz Equipment Rental Corporations employees, in each case pursuant to the HGI Lease;
WHEREAS, pursuant to the HGI Credit Facility, Hertz has agreed to make extensions of credit to HGI upon the terms and subject to the conditions set forth therein in order to finance Vehicles;
WHEREAS, The Bank of New York Mellon Trust Company, N.A. has agreed to act as Collateral Agent on behalf of the Secured Parties, and in its capacity as Collateral Agent to be named as lienholder on the Certificates of Title for the HVF Vehicles (other than the Initial Hertz Vehicles and the Service Vehicles), the HVF Segregated Vehicles relating to each Segregated Collateral Agency Series and the HGI Vehicles for the benefit of the Secured Parties;
NOW, THEREFORE, in consideration of the premises and to induce the Trustee to enter into the Base Indenture and, as a condition precedent to the issuance of any Series of Notes thereunder, HVF hereby agrees with the Collateral Agent for the benefit of the HVF General Secured Party, to induce Hertz to extend credit to HGI under the Hertz Credit Facility, and to induce the Trustee from time to time to enter into a Segregated Series Supplement to the Base Indenture and, as a condition precedent to the issuance of any Segregated Collateral Agency Series thereunder, HVF herby agrees with the Collateral Agent for the benefit of the HVF Segregated Series Secured Party, HGI hereby agrees with the Collateral Agent for the benefit of HGI Secured Party as follows:
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Each Grantor and each Secured Party hereby authorizes the Collateral Agent to be named as the first lienholder on the Certificates of Title for the HVF Vehicles (other than the Initial Hertz Vehicles and the Service Vehicles), the HVF Segregated Vehicles for each Segregated Collateral Agency Series and the HGI Vehicles, in a representative capacity, as Collateral Agent for the Secured Parties. The Collateral Agent agrees that all of its right, title and interest in and to the Vehicle Collateral shall be solely for the respective benefit of the related Secured Party. For the avoidance of doubt each HVF Segregated Series Secured Party shall hold all such right, title and interest with respect to a pool of Series-Specific Collateral solely for the benefit of the applicable Segregated Series. Each Secured Party hereby directs the Collateral Agent to execute and deliver as of the date set forth therein in its capacity as Collateral Agent hereunder each Assignment Agreement hereafter entered into by the Grantors.
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In addition, any Grantor receiving any Proceeds of the Vehicle Collateral directly shall deposit such Proceeds into a Collateral Account within two Business Days of receipt. Notwithstanding the foregoing, if the Servicer receives any amount pursuant to clause (ii), (iii) or (vii) of this Section 2.5(b) and determines that such amount is Proceeds of the HVF Collateral, Proceeds of the HGI Collateral, Proceeds with respect to the GE Financed Vehicles or Proceeds with respect to the other Vehicles owned by Hertz before it is obligated to deposit such amount into a Collateral Account in accordance with this Section 2.5(b) , the Servicer shall deposit such amount directly into the Collection Account or an HVF Exchange Account for application in accordance with Section 4.02 of the Master Exchange Agreement if it is Proceeds of the HVF Vehicle Collateral, deposit such amount directly into the collection account specified in the Segregated Series Supplement for the applicable Segregated Series of Notes or an HVF Segregated Exchange Account for application in accordance with Section 4.02 of the Master Exchange Agreement if it is Proceeds of any HVF Segregated Series Vehicle Collateral, deposit such amount directly into the HGI Account or an HGI Exchange Account for application in accordance with Section 4.02 of the Master Exchange Agreement if it is Proceeds of the HGI Collateral, deposit such amount directly into the GE Collateral Account or a Hertz GE Exchange Account for application in accordance with Section 4.02 of the Master Exchange Agreement if it is Proceeds with respect to the GE Financed Vehicles or deposit such amount directly into an account designated by Hertz or a Hertz Exchange Account other than a Hertz GE Exchange Account for application in accordance with Section 4.02 of the Master Exchange Agreement if it is Proceeds with respect to the other Vehicles owned by Hertz.
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Each of the Secured Parties agrees to indemnify and hold the Collateral Agent and each of its officers, employees, directors and agents harmless to the same extent as its related Grantor in accordance with the foregoing paragraph but only to the extent that the Collateral Agent has not been paid by such Grantor pursuant to such paragraph; provided that the HVF General Secured Partys obligation to indemnify the Collateral Agent hereunder shall be limited to funds constituting Monthly Servicing Fees and Monthly Administration Fees under the Base Indenture and the related Series Supplements; provided further that each HVF Segregated Series Secured Partys obligation to indemnify the Collateral Agent hereunder shall be limited to funds
30
constituting monthly servicing fees and monthly administration fees under the Series Supplement relating to such HVF Segregated Series Secured Party.
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Confidential Information means information that Hertz or any of the Grantors, as applicable, furnishes to a Secured Party on a confidential basis, but does not include any such information that is or becomes generally available to the public other than as a result of a disclosure by such Secured Party or other Person to which such Secured Party delivered such information or that is or becomes available to such Secured Party from a source other than Hertz or any of the Grantors, as the case may be, provided that such source is not (1) known to such Secured Party to be bound by a confidentiality agreement with Hertz or any of the Grantors, as the case may be, or (2) known to such Secured Party to be otherwise prohibited from transmitting the information by a contractual, legal or fiduciary obligation.
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IN WITNESS WHEREOF, each party hereto has executed this Agreement or caused this Agreement to be duly executed by its officer thereunto duly authorized as of the day and year first above written.
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EXHIBIT A
SERVICERS FLEET REPORT
Pursuant to Sections 2.4 and 2.6 of the Third Amended and Restated Collateral Agency Agreement dated as of [ ][ ], 2009, among HERTZ VEHICLE FINANCING LLC, as a grantor, HERTZ GENERAL INTEREST LLC, as a grantor, THE HERTZ CORPORATION, as Servicer, THE HERTZ CORPORATION, as a Secured Party, THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee, as a Secured Party and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Collateral Agent (as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms thereof, the Collateral Agency Agreement ), the Servicer hereby certifies that attached hereto is a (1) report which shows for each of the HVF Vehicles (and as subsets thereof, each of the Initial Hertz Vehicles and the Service Vehicles), the HVF Segregated Vehicles (noting the particular Segregated Series with respect to which such HVF Segregated Vehicle is pledged), the HGI Vehicles, the GE Financed Vehicles and the other Vehicles owned by Hertz as of [the last day of] [the fifteenth day of] 20 : (a) the VINs with respect to each such Vehicle, (b) the date of the original purchase of such Vehicle, (c) whether such Vehicle is a Program Vehicle or a Non-Program Vehicle, (d) the Capitalized Cost and Net Book Value for each such Vehicle, and (e) the state in which each such Vehicle is titled and (2) a list of all locations in which the Certificates of Title for the HVF Vehicles, the HVF Segregated Vehicles and the HGI Vehicles are held by the Servicer or Servicers Agents as of the last day of such month and the name and address of all Servicers Agents as of the last day of such month. Capitalized terms used herein but not defined herein shall have the meanings assigned to such terms in the Collateral Agency Agreement.
Duly certified and executed, this day of , 20 .
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THE HERTZ CORPORATION, |
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as Servicer |
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By: |
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Name: |
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Title: |
A-1
EXHIBIT B
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Collateral Agent (the Collateral Agent ) under that certain Third Amended and Restated Collateral Agency Agreement, dated as of [ ] [ ], 2009, among HERTZ VEHICLE FINANCING LLC, as a grantor, HERTZ GENERAL INTEREST LLC, as a grantor, THE HERTZ CORPORATION, as Servicer, THE HERTZ CORPORATION, as a Secured Party, THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as trustee as a Secured Party, and the Collateral Agent, (as amended, supplemented, restated or otherwise modified from time to time in accordance with the terms thereof, the Collateral Agency Agreement ) does hereby make, constitute and appoint THE HERTZ CORPORATION, as Servicer and/or HERTZ VEHICLES LLC its true and lawful Attorney(s)-in-Fact for it and in its name, stead and behalf to execute any and all documents and instruments (i) to note the Collateral Agent as the holder of a first Lien on the Certificates of Title relating to the [HVF Vehicles][HVF Segregated Vehicles leased pursuant to the Segregated Series Lease relating to [ ]][HGI Vehicles], and/or otherwise ensure that the first Lien shown on any and all such Certificates of Title is in the name of the Collateral Agent, (ii) to release the Collateral Agents Lien on any such Certificate of Title, in connection with the sale or disposition of any Vehicle permitted pursuant to the provisions of Section 2.7 of the Collateral Agency Agreement and (iii) to appoint individual representatives of THE HERTZ CORPORATION and/or HERTZ VEHICLES LLC as attorneys-in-fact to fulfill the purposes of this Power of Attorney. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Collateral Agency Agreement.
GIVING AND GRANTING unto said attorney(s) full power and authority to do and perform each and every act and thing whatsoever, requisite, necessary or proper to be done in furtherance of the foregoing.
The powers and authority granted hereunder shall, unless sooner revoked by the Collateral Agent in accordance with Section 2.6 of the Collateral Agency Agreement or following the resignation or removal of the Collateral Agent under the Collateral Agency Agreement, cease upon the termination of the Collateral Agency Agreement. All powers of attorney for this purpose heretofore filed or executed by the Collateral Agent are hereby revoked.
B-1
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed on its behalf on this day of , 20 .
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., |
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not in its individual capacity |
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but solely as Collateral Agent |
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By: |
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Name: |
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Title: |
B-2
STATE OF NEW YORK |
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: ss.: |
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COUNTY OF NEW YORK |
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Subscribed and sworn before me, a notary public, in and for said county and state, this day of , 20 .
Notary Public
My Commission Expires:
B-3
Exhibit 4.9.12
EXECUTION VERSION
SECOND AMENDED AND RESTATED ADMINISTRATION AGREEMENT
Dated as of September 18, 2009
among
HERTZ VEHICLE FINANCING LLC,
as Issuer,
THE HERTZ CORPORATION,
as Administrator,
and
THE BANK OF NEW YORK MELLON, N.A.,
as Trustee
TABLE OF CONTENTS
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Page |
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SECTION 1. |
Duties of Administrator |
1 |
SECTION 2. |
Records |
5 |
SECTION 3. |
Compensation |
5 |
SECTION 4. |
Additional Information To Be Furnished to Issuer |
6 |
SECTION 5. |
Independence of Administrator |
6 |
SECTION 6. |
No Joint Venture |
6 |
SECTION 7. |
Other Activities of Administrator |
6 |
SECTION 8. |
Term of Agreement; Resignation and Removal of Administrator |
6 |
SECTION 9. |
Action upon Termination, Resignation or Removal |
8 |
SECTION 10. |
Notices |
8 |
SECTION 11. |
Amendments |
9 |
SECTION 12. |
Successors and Assigns |
9 |
SECTION 13. |
GOVERNING LAW |
9 |
SECTION 14. |
Headings |
9 |
SECTION 15. |
Counterparts |
9 |
SECTION 16. |
Severability |
9 |
SECTION 17. |
Limitation of Liability of Trustee and Administrator |
10 |
SECTION 18. |
Nonpetition Covenants |
10 |
SECTION 19. |
Liability of Administrator |
10 |
SECTION 20. |
Limited Recourse to HVF |
10 |
EXHIBIT A - Form of Power of Attorney
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SECOND AMENDED AND RESTATED ADMINISTRATION AGREEMENT dated as of September 18, 2009, among HERTZ VEHICLE FINANCING LLC, a Delaware limited liability company (the Issuer ), THE HERTZ CORPORATION, a Delaware corporation, as administrator (the Administrator ), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (f/k/a BNY Midwest Trust Company), a national banking association, not in its individual capacity but solely as trustee (the Trustee ) under the Base Indenture (as hereinafter defined). Except as otherwise specified, capitalized terms used but not defined herein have the respective meanings set forth in Schedule I to the Third Amended and Restated Base Indenture dated as of September 18, 2009 (as amended, modified or supplemented from time to time in accordance with the provisions thereof, but exclusive of any Segregated Series Supplements, the Indenture ) between the Issuer and the Trustee.
W I T N E S S E T H :
WHEREAS, the Issuer, the Administrator and the Trustee have entered into that certain Amended and Restated Administration Agreement, dated as of December 21st, 2005 (the Prior Agreement );
WHEREAS the Issuer has entered into the Related Documents (other than any Related Documents relating solely to any Segregated Series of Notes) to which it is a party in connection with the issuance of the Notes under the Indenture;
WHEREAS pursuant to the Related Documents (other than any Related Documents relating solely to any Segregated Series of Notes), the Issuer is required to perform certain duties relating to the Collateral that has been pledged to secure the Notes issued pursuant to the Indenture;
WHEREAS the Issuer desires to have the Administrator perform certain of the duties of the Issuer referred to in the preceding clause, and to provide such additional services consistent with the terms of this Agreement and the Related Documents (other than any Related Documents relating solely to any Segregated Series of Notes) as the Issuer may from time to time request;
WHEREAS the Administrator has the capacity to provide the services required hereby and is willing to perform such services for the Issuer on the terms set forth herein;
WHEREAS, the Issuer, the Administrator and the Trustee wish to amend and restate the Prior Agreement in its entirety;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
SECTION 1. Duties of Administrator . (a) Duties with Respect to the Related Documents. The Administrator agrees to perform all its duties as Administrator under the Related Documents to the extent relating to the Collateral or the Note
Obligations. To the extent relating to the Collateral or the Note Obligations, the Administrator shall prepare for execution by the Issuer or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuer to prepare, file or deliver pursuant to the Indenture. In furtherance of the foregoing, the Administrator shall take all appropriate action that it is the duty of the Issuer to take pursuant to the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Base Indenture (references are to sections of the Base Indenture):
(A) the preparation of or obtaining of the documents and instruments required for authentication of the Indenture Notes, if any, and delivery of the same to the Trustee (Sections 2.2 and 2.4);
(B) the duty to cause the Note Register to be kept and to give the Trustee notice of any appointment of a new Registrar and the location, or change in location, of the Note Register and the office or offices where Indenture Notes may be surrendered for registration of transfer or exchange (Section 2.5);
(C) the maintenance of an office or agency for registration of transfer or exchange of Indenture Notes and the notification of the Trustee or any change in the location of such office or agency (Sections 2.5 and 8.2);
(D) the duty to cause newly appointed Paying Agents, if any, to deliver to the Trustee the instrument specified in the Indenture regarding funds held in trust (Section 2.6);
(E) the direction to Paying Agents to pay to the Trustee all sums relating to any Series of Notes held in trust by such Paying Agents (Section 2.6);
(F) the notification of the Trustee in writing that the Clearing Agency is no longer willing or able to properly discharge its duties under the Indenture or that the Issuer at its option elects to terminate the book entry system through the Clearing Agency (Section 2.13);
(G) the preparation of Definitive Notes and arranging the delivery thereof (Section 2.13);
(H) the taking of such further acts as may be reasonably necessary or proper to compel or secure the performance and observance by Hertz Vehicles LLC, HGI, the Servicer, the Lessee (or such other party thereto) under any Collateral Agreement, or by a Manufacturer under a Manufacturer Program, of their respective obligations thereunder (Section 3.3);
(I) the preparation, obtaining or filing of the instruments, opinions and certificates and other documents required for the release of the Collateral (Sections 3.4 and 3.5);
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(J) the preparation and delivery to the Trustee of each of the reports, certificates, statements and other materials required to be delivered by the Issuer pursuant to Section 4.1 of the Base Indenture (Section 4.1);
(K) the direction, if necessary, to the firm of independent certified public accountants to furnish reports to the Trustee and the Rating Agencies in accordance with Sections 4.1(g) and (h) of the Base Indenture (Sections 4.1(g) and(h));
(L) the furnishing, or causing to be furnished, to the Trustee or the Paying Agent, as applicable, instructions as to withdrawals and payments from the Collection Account and any other accounts specified in a Series Supplement relating to the Notes in accordance with Section 4.1(j) of the Base Indenture (Section 4.1(j));
(M) if so requested, the furnishing to any Noteholder, Note Owner or prospective purchaser of the Notes any information required pursuant to Rule 144(d)(4) under the Securities Act (Section 4.3);
(N) the preparation and delivery of written instructions with respect to the investment of funds on deposit in the Collection Account and any other accounts specified in a Series Supplement relating to a Series of Notes (Section 5.1(b));
(O) the maintenance of the Issuers qualification to do business in each jurisdiction in which the failure to so qualify would be reasonably likely to result in a Material Adverse Effect (Section 8.4);
(P) the keeping of books of record and account (Section 8.6);
(Q) the delivery of notice to the Trustee of each default described in Section 8.8 of the Base Indenture, and preparation and delivery of an Officers Certificate of the Issuer setting forth the details of such default and any action with respect thereto taken or contemplated to be taken by the Issuer (Section 8.8);
(R) the delivery of notice to the Trustee and the Rating Agencies of material proceedings (Section 8.9);
(S) the furnishing of other information to the Trustee as the Trustee may reasonably request (Section 8.10);
(T) the preparation and filing of all supplements, amendments, financing statements, continuation statements, if any, instruments of further assurance and other instruments, in accordance with Section 8.1(a) of the Base Indenture, necessary to protect the Collateral (Section 8.11(a));
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(U) the obtaining of and the annual delivery of an Opinion of Counsel, in accordance with Section 8.11(d) of the Indenture, as to the Collateral (Section 8.11(d));
(V) the preparation and obtaining of, and delivery to the Trustee and the Collateral Agent of, filings, Officers Certificates and Opinions of Counsel upon the Issuer changing its location or legal name (Section 8.19);
(W) the preparation and delivery of instruments, agreements and Officers Certificates to the Trustee, the Lessor and the Rating Agencies with respect to Manufacturer Programs in accordance with Section 8.25 (Section 8.25);
(X) the turning back, or causing to be turned back, of Program Vehicles to the applicable Manufacturers pursuant to Sections 2.3(b) and 3.1(b) of the HVF Lease (Section 8.26(a));
(Y) the arranging for the prompt sale of Non-Program Vehicles returned to HVF pursuant to Sections 2.3(c) and 2.5(b) of the HVF Lease (Section 8.26(b));
(Z) the obtaining and the maintenance of insurance in accordance with Section 8.27 of the Base Indenture, and the delivery of notice to the Trustee and the Collateral Agent of any change or cancellation of such insurance (Section 8.27);
(AA) the preparation and the obtaining of documents and instruments required for the release of the Issuer from its obligation under the Indenture (Section 11.1);
(BB) the preparation of Officers Certificates and the obtaining of Opinions of Counsel with respect to the execution of Supplements to the Indenture (Section 12.6); and
(CC) the preparation of Officers Certificates with respect to any requests by HVF to the Trustee to take any action under the Indenture (Section 13.3).
(b) Additional Duties . In addition to the duties of the Administrator set forth above, to the extent relating to the Collateral or the Note Obligations, the Administrator shall perform such calculations and shall prepare for execution by the Issuer or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuer to prepare, file or deliver pursuant to the Related Documents (other than any Related Documents relating solely to a Segregated Series of Notes), and shall take all appropriate action that it is the duty of the Issuer to take pursuant to such Related Documents.
(c) Dealings with Affiliates . In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into
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transactions with or otherwise deal with any of its Affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuer and shall be, in the Administrators opinion, no less favorable to the Issuer than would be available from unaffiliated parties.
(d) Power of Attorney . The Issuer shall execute and deliver to the Administrator, and to each successor Administrator appointed pursuant to the terms hereof, one or more powers of attorney substantially in the form of Exhibit A hereto, appointing the Administrator the attorney-in-fact of the Issuer for the purpose of executing on behalf of the Issuer all such documents, reports, filings, instruments, certificates and opinions that the Administrator has agreed to prepare, file or deliver pursuant to this Agreement.
(e) Non-Ministerial Matters . (i) With respect to matters that in the reasonable judgment of the Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such action, the Administrator shall have notified the Issuer of the proposed action and the Issuer shall not have withheld consent or provided an alternative direction. For the purpose of the preceding sentence, non-ministerial matters shall include, without limitation:
(A) the initiation of any claim or lawsuit by the Issuer, the compromise of any action, claim or lawsuit brought by the Issuer, and the compromise of any action, claim or lawsuit brought against the Issuer (other than in the ordinary course of business);
(B) the amendment, change or modification of the Related Documents;
(C) the appointment of successor Registrars, successor Paying Agents and successor Trustees pursuant to the Indenture or the appointment of successor Administrators, or the consent to the assignment by the Registrar, the Paying Agent or the Trustee of its obligations under the Indenture; and
(D) the removal of the Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not, (x) make any payments to the Indenture Noteholders under the Related Documents, (y) sell the Collateral pursuant to the Indenture or (z) take any action that the Issuer directs the Administrator not to take on its behalf.
SECTION 2. Records . The Administrator shall maintain appropriate books of account and records relating to services performed hereunder, which books of account and records shall be accessible for inspection by the Issuer or the Trustee at any time during normal business hours.
SECTION 3. Compensation . As compensation for the performance of the Administrators obligations under this Agreement, the Administrator shall be entitled to
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$7,500 per month (the Monthly Administration Fee ) which shall be payable on each Payment Date.
SECTION 4. Additional Information To Be Furnished to Issuer . The Administrator shall furnish to the Issuer from time to time such additional information regarding the Collateral as the Issuer shall reasonably request.
SECTION 5. Independence of Administrator . For all purposes of this Agreement, the Administrator shall be an independent contractor and shall not be subject to the supervision of the Issuer with respect to the manner in which it accomplishes the performance of its obligations hereunder. Unless expressly authorized by the Issuer, the Administrator shall have no authority to act for or represent the Issuer in any way and shall not otherwise be deemed an agent of the Issuer.
SECTION 6. No Joint Venture . Nothing contained in this Agreement shall (i) constitute the Administrator or the Issuer as members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (ii) be construed to impose any liability as such on any of them or (iii) be deemed to confer on any of them any express, implied or apparent authority to incur any obligation or liability on behalf of the others.
SECTION 7. Other Activities of Administrator . (a) Nothing herein shall prevent the Administrator or its Affiliates from engaging in other businesses or, in its sole discretion, from acting in a similar capacity as an administrator for any other person or entity even though such person or entity may engage in business activities similar to those of the Issuer or the Trustee.
(b) The Administrator and its Affiliates may generally engage in any kind of business with any person party to a Related Document, any of its Affiliates and any person who may do business with or own securities of any such person or any of its Affiliates, without any duty to account therefor to the Issuer or the Trustee.
SECTION 8. Term of Agreement; Resignation and Removal of Administrator . (a) This Agreement shall continue in force until termination of the Indenture and the Related Documents (other than any Related Documents solely to any Segregated Series of Notes), in each case to the extent related to the Collateral or the Note Obligations, in accordance with their respective terms and the payment in full of all obligations owing thereunder, upon which event this Agreement shall automatically terminate.
(b) Subject to Sections 8(d) and (e), the Issuer, with the written consent of the Requisite Investors, may remove the Administrator without cause by providing the Administrator with at least 60 days prior written notice.
(c) Subject to Sections 8(d) and (e), the Trustee may, and at the direction of the Requisite Investors shall, remove the Administrator upon written notice of termination from the Trustee to the Administrator if any of the following events shall occur (each an Administrator Default ):
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(i) the Administrator shall default in the performance of any of its duties under this Agreement and such default materially and adversely affects the interests of the Noteholders and, after notice of such default, the Administrator shall not cure such default within thirty days (or, if such default cannot be cured in such time, shall not give within thirty days such assurance of cure as shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a decree or order for relief, and such decree or order shall not have been vacated within 60 days, in respect of the Administrator in any involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect or appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for the Administrator or any substantial part of its property or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official for the Administrator or any substantial part of its property, shall consent to the taking of possession by any such official of any substantial part of its property, shall make any general assignment for the benefit of creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clause (ii) or (iii) of this Section shall occur, it shall give written notice thereof to the Issuer and the Trustee within five days after the happening of such event.
(d) No resignation or removal of the Administrator pursuant to this Section shall be effective until (i) a successor Administrator (acceptable to each Enhancement Provider related to a Series of Notes, if any) shall have been appointed by the Issuer and (ii) such successor Administrator shall have agreed in writing to be bound by the terms of this Agreement in the same manner as the Administrator is bound hereunder. The Issuer shall provide written notice of any such removal to the Trustee, each Enhancement Provider related to a Series of Notes and the Rating Agencies.
(e) The appointment of any successor Administrator shall be effective only after satisfaction of the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding.
(f) A successor Administrator shall execute, acknowledge and deliver a written acceptance of its appointment hereunder to the resigning Administrator and to the Issuer. Thereupon the resignation or removal of the resigning Administrator shall become effective and the successor Administrator shall have all the rights, powers and duties of the Administrator under this Agreement. The successor Administrator shall mail a notice of its succession to the Noteholders. The resigning Administrator shall
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promptly transfer or cause to be transferred all property and any related agreements, documents and statements held by it as Administrator to the successor Administrator and the resigning Administrator shall execute and deliver such instruments and do other things as may reasonably be required for folly and certainly vesting in the successor Administrator all rights, powers, duties and obligations hereunder.
(g) In no event shall a resigning Administrator be liable for the acts or omissions of any successor Administrator hereunder.
(h) In the exercise or administration of its duties hereunder and under the Related Documents, the Administrator may act directly or through its agents or attorneys pursuant to agreements entered into with any of them. Any such delegation shall not relieve the Administrator of its liability and responsibility hereunder.
SECTION 9. Action upon Termination, Resignation or Removal . Promptly upon the effective date of termination of this Agreement pursuant to Section 8(a) or the resignation or removal of the Administrator pursuant to Section 8(b) or (c), respectively, the Administrator shall be entitled to be paid all fees and reimbursable expenses accruing to it to the date of such termination, resignation or removal. The Administrator shall forthwith upon termination pursuant to Section 8(a) deliver to the Issuer all property and documents of or relating to the Collateral then in the custody of the Administrator. In the event of the resignation or removal of the Administrator pursuant to Section 8(b) or (c), respectively, the Administrator shall cooperate with the Issuer and take all reasonable steps requested to assist the Issuer in making an orderly transfer of the duties of the Administrator.
SECTION 10. Notices . Any notice, report or other communication given hereunder shall be in writing and addressed as follows:
(a) if to the Issuer, to
Hertz Vehicle Financing LLC
225 Brae Boulevard
Park Ridge, NJ 07656
Attention: Treasury Department
(b) if to the Administrator, to
The Hertz Corporation
225 Brae Boulevard
Park Ridge, NJ 07656
Attention: Treasury Department
(c) if to the Trustee, to
The Bank of New York Mellon, N.A.
2 North LaSalle Street, Suite 1020
Chicago, IL 60602
Attention: Corporate Trust
Administration Structured Finance
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or to such other address as any party shall have provided to the other parties in writing. Any notice required to be in writing hereunder shall be deemed given if such notice is mailed by certified mail, postage prepaid, or hand-delivered to the address of such party as provided above, except that notices to the Trustee are effective only upon receipt.
SECTION 11. Amendments . This Agreement may be amended from time to time by a written amendment duly executed and delivered by the Issuer, the Administrator and the Trustee. No amendment of any provision of this Agreement will be valid unless the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding shall have been satisfied with respect thereto.
SECTION 12. Successors and Assigns . This Agreement may not be assigned by the Administrator unless such assignment is previously consented to in writing by the Issuer and the Trustee and subject to satisfaction of the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding. An assignment with such consent and satisfaction, if accepted by the assignee, shall bind the assignee hereunder in the same manner as the Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned by the Administrator without the consent of the Issuer or the Trustee to a corporation or other organization that is a successor (by merger, consolidation or purchase of assets) to the Administrator; provided that such successor organization executes and delivers to the Issuer and the Trustee an agreement in which such corporation or other organization agrees to be bound hereunder by the terms of said assignment in the same manner as the Administrator is bound hereunder; provided, further, that the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding shall have been satisfied with respect to such successor. Subject to the foregoing, this Agreement shall bind any successors or assigns of the parties hereto.
SECTION 13. GOVERNING LAW . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Headings . The section headings hereof have been inserted for convenience of reference only and shall not be construed to affect the meaning, construction or effect of this Agreement.
SECTION 15. Counterparts . This Agreement may be executed in counterparts, each of which when so executed shall together constitute but one and the same agreement.
SECTION 16. Severability . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and
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any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 17. Limitation of Liability of Trustee and Administrator . Notwithstanding anything contained herein to the contrary, in no event shall either the Trustee or the Administrator have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuer hereunder or in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the Issuer.
SECTION 18. Nonpetition Covenants . Notwithstanding any prior termination of this Agreement, the Administrator, the Issuer and the Trustee shall not, prior to the date which is one year and one day after the payment in full of all the Indenture Notes, petition or otherwise invoke, join with, encourage or cooperate with any other party in invoking or cause the Issuer to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Issuer under any Federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Issuer.
SECTION 19. Liability of Administrator . The Administrator agrees to indemnify HVF and the Trustee and their respective agents (the Indemnified Parties ) from and against any and all actions, causes of action, suits, losses, costs, liabilities and damages, and expenses incurred therewith, including reasonable attorneys fees and expenses incurred by the Indemnified Parties as a result of, or arising out of, or relating to the entering into and performance of this Agreement by the Indemnified Parties or suffered or sustained by the Indemnified Parties by reason of any acts, omissions or alleged acts or omissions arising out of the Administrators activities pursuant to this Agreement. Notwithstanding anything in the foregoing to the contrary, the Administrator shall not be obligated under its agreements of indemnity contained in this Section 19 (i) for any liabilities resulting from the gross negligence or willful misconduct of the Indemnified Parties or (ii) in respect of any claim arising out of the assessment of any tax against the Indemnified Parties. The obligations of the Administrator and the rights of the Indemnified Parties under this Section 19 shall survive any termination of this Agreement, in whole or in part.
SECTION 20. Limited Recourse to HVF . The obligations of HVF under this Agreement are solely the obligations of HVF. No recourse shall be had for the payment of any amount owing in respect of any fee hereunder or any other obligation or claim arising out of or based upon this Agreement against any member, employee, officer or director of HVF. Fees, expenses, costs or other obligations payable by HVF hereunder shall be payable by HVF to the extent and only to the extent that HVF is reimbursed therefor pursuant to any of the Related Documents, or funds are then available or thereafter become available for such purpose pursuant to Article 5 of the Base Indenture, and the amount of any fees, expenses or costs exceeding such funds shall in no event
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constitute a claim (as defined in Section 101 of the Bankruptcy Code) against, or corporate obligation of, HVF.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the day and year first above written.
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HERTZ VEHICLE FINANCING LLC |
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By: |
/s/ R. Scott Massengill |
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Scott Massengill |
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Vice President & Treasurer |
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THE HERTZ CORPORATION, |
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as Administrator |
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By: |
/s/ R. Scott Massengill |
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Scott Massengill |
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Treasurer |
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THE BANK OF NEW YORK MELLON, N.A., |
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as Trustee |
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By: |
/s/ John D. Ask |
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Name: John D. Ask |
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Title: Senior Associate |
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EXHIBIT A
[Form of Power of Attorney]
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that HERTZ VEHICLE FINANCING LLC ( HVF ), does hereby make, constitute and appoint THE HERTZ CORPORATION as Administrator under the Administration Agreement (as defined below), and its agents and attorneys, as Attorneys-in-Fact to execute on behalf of HVF all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of HVF to prepare, file or deliver pursuant to the Administration Agreement, including, without limitation, to appear for and represent HVF in connection with the preparation, filing and audit of federal, state and local tax returns pertaining to HVF, and with full power to perform any and all acts associated with such returns and audits that HVF could perform, including without limitation, the right to distribute and receive confidential information, defend and assert positions in response to audits, initiate and defend litigation, and to execute waivers of restriction on assessments of deficiencies, consents to the extension of any statutory or regulatory time limit, and settlements. For the purpose of this Power of Attorney, the term Administration Agreement means the Second Amended and Restated Administration Agreement dated as of September 18, 2009 among HVF, The Hertz Corporation, as Administrator, and The Bank of New York Mellon Trust Company, N.A., as Trustee, as such maybe amended, modified or supplemented from time to time.
All powers of attorney for this purpose heretofore filed or executed by HVF are hereby revoked.
EXECUTED this [ ]st day of [ ], 2009.
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HERTZ VEHICLE FINANCING LLC |
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By: |
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Name: |
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Title: |
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Exhibit 4.9.13
EXECUTION VERSION
SECOND AMENDED AND RESTATED MASTER EXCHANGE AGREEMENT
dated as of September 18, 2009
among
THE HERTZ CORPORATION,
HERTZ VEHICLE FINANCING LLC,
HERTZ GENERAL INTEREST LLC,
HERTZ CAR EXCHANGE INC.
and
DB SERVICES TENNESSEE, INC.
Table of Contents
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ARTICLE I |
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Definitions |
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SECTION 1.01. Definitions |
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ARTICLE II |
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General Exchange Provisions |
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SECTION 2.01. Exchange of Property |
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SECTION 2.02. Disposition and Transfer of Relinquished Property |
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SECTION 2.03. Acquisition and Transfer of Replacement Property |
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SECTION 2.04. Assignment of Agreements |
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SECTION 2.05. Notice to Purchasers and Sellers |
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SECTION 2.06. Direct Transfers |
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SECTION 2.07. Matching of Relinquished and Replacement Property |
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SECTION 2.08. Disclosure of Relationship |
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SECTION 2.09. Exclusivity |
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SECTION 2.10. Records |
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ARTICLE III |
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Identification |
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SECTION 3.01. Identification of Replacement Property |
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SECTION 3.02. Revocation of Identification |
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ARTICLE IV |
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Accounts |
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SECTION 4.01. Accounts |
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SECTION 4.02. Separation and Application of Funds in Joint Collection Accounts and Exchange Accounts; Proceeds from Transfer of Relinquished Property by the QI |
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SECTION 4.03. Payment for Replacement Property |
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SECTION 4.04. Investment of Funds in the Exchange Account |
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SECTION 4.05. Disbursements from Account |
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SECTION 4.06. Disbursement Occurrence |
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Table of Contents
(continued)
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ARTICLE V |
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Indemnity By Each Legal Entity |
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SECTION 5.01. No Personal Liability |
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SECTION 5.02. Indemnity |
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SECTION 5.03. Survival |
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ARTICLE VI |
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Representations, Warranties And Covenants |
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SECTION 6.01. Representations and Warranties of the QI |
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SECTION 6.02. Representations and Warranties of Owner |
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SECTION 6.03. Representations and Warranties of Each Legal Entity |
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SECTION 6.04. Survival of Representations and Warranties |
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SECTION 6.05. Maintenance of Separate Existence |
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SECTION 6.06. Ownership by Owner; Mergers |
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SECTION 6.07. Organizational Documents |
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SECTION 6.08. No Other Agreements |
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SECTION 6.09. Other Business |
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SECTION 6.10. QI Parent Downgrade Event Sale |
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SECTION 6.11. Trademark License |
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SECTION 6.12. Confidentiality |
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ARTICLE VII |
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Term And Compensation; Escrow Agreement Termination |
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SECTION 7.01. Term |
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SECTION 7.02. Compensation |
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SECTION 7.03. Escrow Agreement Termination |
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ARTICLE VIII |
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Miscellaneous |
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SECTION 8.01. Pending Litigation |
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SECTION 8.02. Notices |
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SECTION 8.03. Amendments |
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SECTION 8.04. Successors and Assigns; No Third-Party Beneficiaries |
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SECTION 8.05. Governing Law, Venue, Jury Trial Waiver, and Attorneys Fees |
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SECTION 8.06. Indebtedness |
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SECTION 8.07. Strict Performance |
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SECTION 8.08. Severability; Interpretation |
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SECTION 8.09. Dates, Descriptions, Values, and Matching |
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Table of Contents
(continued)
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SECTION 8.10. Counterparts |
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SECTION 8.11. Entire Agreement |
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SECTION 8.12. Electronic Signature |
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SECTION 8.13. Acknowledgment of Independent Relationship |
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SECTION 8.14. Headings |
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SECTION 8.15. Force Majeure |
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SECTION 8.16. Consequential Damages |
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SECTION 8.17. Investment Losses |
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SECTION 8.18. Treasury Regulations Disclosure Requirements |
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SECTION 8.19. No Petitions |
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SECTION 8.20. Servicer |
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This SECOND AMENDED AND RESTATED MASTER EXCHANGE AGREEMENT (as may be amended, restated or otherwise modified in accordance with the terms hereof, this Agreement ) is entered into as of September 18, 2009, by and among, HERTZ CAR EXCHANGE INC., a Delaware corporation (the QI ), DB SERVICES TENNESSEE, INC., a Delaware limited liability company ( DB Services ), THE HERTZ CORPORATION, a Delaware corporation ( Hertz ), HERTZ VEHICLE FINANCING LLC, a Delaware limited liability company ( HVF ) and HERTZ GENERAL INTEREST LLC, a Delaware limited liability company ( HGI ).
W I T N E S S E T H :
WHEREAS, the QI, DB Services, Hertz, HVF and HGI entered into a Master Exchange Agreement dated as of December 21, 2005;
WHEREAS, the QI, DB Services, Hertz, HVF and HGI entered into an Amended and Restated Master Exchange Agreement dated as of January 26, 2007 (as amended prior to the date hereof, the Prior Agreement );
WHEREAS, the QI, DB Services, Hertz, HVF and HGI desire to amend and restate the Prior Agreement in its entirety as set forth herein;
WHEREAS, HVF and HGI are single member limited liability companies, solely owned by Hertz, and therefore disregarded entities for purposes of the Code and the Treasury Regulations;
WHEREAS, each action taken by a Legal Entity in its individual capacity pursuant to this Agreement shall, for purposes of the Code and the Treasury Regulations, have been taken by Exchangor;
WHEREAS, Exchangor desires to exchange certain Vehicles that are held for productive use in its trade or business and that constitute Relinquished Property for other vehicles to be held for productive use in its trade or business that are like-kind to the Relinquished Property;
WHEREAS, the Relinquished Property will be sold to various buyers (each a Buyer ) from time to time, including Manufacturers and purchasers at auctions;
WHEREAS, the Replacement Property will be purchased from time to time from various Manufacturers and vehicle dealers (each a Seller );
WHEREAS, it is the intention of the parties that each Exchange of Relinquished Property for Replacement Property, and the transactions related thereto, be effectuated pursuant to the terms of this Agreement;
WHEREAS, Exchangor and the QI desire and intend that the Exchanges accomplished by Exchangor and the QI under this Agreement (the LKE Program ) satisfy the requirements of a like kind exchange program pursuant to Section 3.02 of Revenue Procedure 2003-39;
WHEREAS, Exchangor desires to effectuate each Exchange in a manner that will qualify as a like-kind exchange within the meaning of Section 1031 of the Internal Revenue Code of 1986, as amended (the Code ) and the treasury regulations (the Treasury Regulations ) promulgated thereunder (and any applicable corresponding provisions of state tax legislation) pursuant to one or more of the safe harbors described in Section 1.1031(k)-1(g) of the Treasury Regulations, and Revenue Procedure 2003-39;
WHEREAS, the QI is willing to act as a qualified intermediary within the meaning of Section 1031 of the Code and Section 1.1031(k)-1(g)(4) of the Treasury Regulations (such entity, a Qualified Intermediary ) in order to facilitate Exchanges of Relinquished Property for Replacement Property;
WHEREAS, it is the intention of the parties to maintain Joint Collection Accounts, Exchange Accounts and Joint Disbursement Accounts so that for purposes of the Treasury Regulations Exchangor is not determined to be in actual or constructive receipt of proceeds (including any earnings thereon) from the disposition of any Relinquished Property;
WHEREAS, Exchangor and the QI desire and intend this Agreement to satisfy the requirement of a written agreement referred to in Section 1.1031(k)-1(g)(4)(iii)(B) of the Treasury Regulations with respect to the applicable Relinquished Property and the applicable Replacement Property; and
WHEREAS, each Legal Entity will continue to comply with its obligations under the Related Documents to which it is a party;
NOW, THEREFORE, in consideration of the mutual covenants, conditions and agreements set forth herein, each Legal Entity and the QI hereby agree as follows:
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Accounts shall mean any Exchange Account, any Joint Collection Account or any Joint Disbursement Account, as the context requires.
Accession Agreement shall have the meaning set forth in Section 6.10(d).
Additional Subsidies shall mean funds (other than funds that currently constitute Relinquished Property Proceeds) that Exchangor may use for the acquisition of Replacement Property and to make Non-LKE Disbursements, which include:
Agreement shall have the meaning set forth in the preamble hereto.
Automated Clearing House shall mean a facility that processes debit and credit transactions under rules established by a Federal Reserve Bank operating circular on automated clearing house items or under rules of an automated clearing house association.
Base Indenture shall mean the Third Amended and Restated Base Indenture, dated as of September 18, 2009, between HVF and The Bank of New York Mellon, N.A., as trustee, as amended, modified or supplemented from time to time.
Business Day shall mean any day except a Saturday, Sunday or legal holiday on which the offices of the Trustee, any Legal Entity, the QI or, with respect to any matter involving any Account, the Escrow Agent (or any successor thereto) are not open for business.
Buyer shall have the meaning set forth in the recitals hereto.
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Collateral Agency Agreement means the Third Amended and Restated Collateral Agency Agreement, dated as of the date hereof, among HVF, HGI, Hertz and the Trustee, as amended, modified or supplemented from time to time.
Disbursement Occurrence shall have the meaning set forth in Section 4.06 hereof.
Disqualified Person shall have the meaning set forth in Section 6.01(k) hereof.
Electronic Funds Transfer shall mean any funds transfer initiated by an electronic instruction, including, without limitation, any funds transfer via the Automated Clearing House system, any wire transfer via the Federal Reserve System and any funds transfer recorded on the books and records of the banking institution maintaining the relevant accounts.
Escrow Accounts shall mean the Escrow Accounts under and as defined in the Escrow Agreement.
Escrow Agent shall mean the Escrow Agent under and as defined in the Escrow Agreement.
Escrow Agreement shall mean that agreement by and among the Escrow Agent, each Legal Entity and the QI, dated as of September 18, 2009, as amended, modified or supplemented from time to time, or any successor agreement thereto, pursuant to which one or more Exchange Accounts and Joint Disbursement Accounts shall be maintained as escrow accounts on behalf of the Legal Entities and any replacement of such agreement.
Event of Default shall have the meaning set forth in the GE Credit Agreement.
Exchange shall mean Exchangors transfer of Relinquished Property and Exchangors corresponding receipt of Replacement Property within the relevant Exchange Period with which the Relinquished Property has been matched by Exchangor that are of like-kind, as defined in Sections 1.1031(a)-1(b) and 1.1031(a)-2 of the Treasury Regulations.
Exchange Account shall mean any account established by the QI pursuant to the Escrow Agreement and (a) in the case of any HVF Exchange Account, maintained by the Trustee, in the joint name of the QI and the Trustee pursuant to Section 5A.1 of the Base Indenture, (b) in the case of any HVF Segregated Exchange Account relating to a particular Segregated Series of Notes, maintained by the Trustee, in the joint name of the QI and the Trustee pursuant to such Segregated Series Supplement or (c) in the case of any Hertz GE Exchange Account, maintained by the GE Collateral Agent in the joint name of the QI and the GE Collateral Agent pursuant to the provisions of the GE Credit Agreement and the GE Collateral Agreement, that (1) is used to receive Relinquished Property Proceeds and any Additional Subsidies from a Joint Collection Account, and (2) is used to provide such funds to another Exchange Account or a Joint Disbursement Account (to the extent of the funds in such Exchange Account pursuant to the Escrow Agreement).
Exchange Period shall mean, with respect to the Relinquished Property transferred in an Exchange, as defined in Section 1.1031(k)-1(b)(2) of the Treasury Regulations,
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the period beginning on the date such Relinquished Property is transferred to the QI and ending at 11:59 p.m. (New York City time) on the earlier of (a) the one hundred eightieth (180th) calendar day thereafter (irrespective of whether such day is a weekend day or a holiday) or (b) the due date (including extensions) for Exchangors U.S. federal income tax return for the year in which the transfer of the Relinquished Property takes place.
Exchangor shall mean Hertz, HVF and HGI, collectively, which are treated as a single taxpayer for purposes of the Code and the Treasury Regulations.
GE Collateral Account shall have the meaning assigned to the term Collateral Account in the GE Collateral Agreement.
GE Collateral Agent shall have the meaning assigned to the term Domestic Collateral Agent in the GE Credit Agreement.
GE Collateral Agreement shall mean the Domestic Guarantee and Collateral Agreement, dated as of September 29, 2006, made by Hertz and certain of its subsidiaries in favor of Gelco Corporation dba GE Fleet Services, as administrative agent and collateral agent, as amended, amended and restated, modified or supplemented or refinanced or replaced from time to time.
GE Credit Agreement means the Credit Agreement, dated as of September 29, 2006, among Hertz and Puerto Ricancars, Inc., as borrowers, the lenders from time to time parties thereto and Gelco Corporation dba GE Fleet Services, as administrative agent, domestic collateral agent and PRUSVI collateral agent, as amended, amended and restated modified or supplemented or refinanced or replaced from time to time.
GE Financed Vehicle shall mean a Vehicle that is owned by Hertz that is registered or submitted for registration in the state of Hawaii or Kansas, regardless of whether the GE Collateral Agent is the named lienholder for such Vehicle. Buses, salvage vehicles and tow trucks shall not be deemed to be GE Financed Vehicles.
GE Loan Documents shall have the meaning assigned to the term Loan Documents in the GE Credit Agreement.
Hertz shall have the meaning set forth in the preamble hereto.
Hertz Exchange Account shall mean any Exchange Account that receives funds from a Joint Collection Account or another Exchange Account relating to Relinquished Property Proceeds from a Vehicle that was owned by Hertz in the circumstances described in Section 4.02(a) hereof.
Hertz GE Exchange Account shall mean the Hertz Exchange Account maintained pursuant to the provisions of the GE Credit Agreement and the GE Collateral Agreement.
HGI shall have the meaning set forth in the preamble hereto.
5
HGI Exchange Account shall mean any Exchange Account that (a) receives funds from a Joint Collection Account or another Exchange Account relating to Relinquished Property Proceeds from a Vehicle that was owned by HGI in the circumstances described in Section 4.02(a) hereof and (b) may receive funds from an HVF Exchange Account or a Hertz Exchange Account in the circumstances described in Section 4.02(a) hereof.
HVF shall have the meaning set forth in the preamble hereto.
HVF Exchange Account shall mean any Exchange Account that receives funds from a Joint Collection Account or another Exchange Account relating to Relinquished Property Proceeds from an HVF Vehicle in the circumstances described in Section 4.02(a) hereof.
HVF Segregated Exchange Account shall mean any Exchange Account that receives funds from a Joint Collection Account or another Exchange Account relating to Relinquished Property Proceeds from an HVF Segregated Vehicle that was pledged as Series-Specific Collateral for a particular Segregated Series in the circumstances described in Section 4.02(a) hereof; provided , that, unless otherwise specified in the applicable Segregated Series Supplement, each HVF Segregated Exchange Account shall receive funds relating solely to the Series-Specific Collateral for such Segregated Series.
Identification Period shall mean, with respect to the Relinquished Property transferred in an Exchange, as defined in Section 1.1031(k)-l(b)(2) of the Treasury Regulations, the period beginning on the date such Relinquished Property is transferred to the QI and ending at 11:59 p.m. (New York City time) on the forty-fifth (45th) calendar day thereafter (irrespective of whether such day is a weekend day or a holiday).
Identified Replacement Vehicles means vehicles that have been identified and designated as Replacement Property with respect to Relinquished Property pursuant to Section 3.01 hereof, provided such identification has not been revoked pursuant to Section 3.02 hereof.
Independent Director shall mean a Person who is not, and during the previous five years was not (i) a stockholder, member, partner, director, officer, employee, affiliate, associate, creditor or independent contractor of Owner or any of its affiliates or associates (excluding, however, any service provided by a Person engaged as an independent manager or director, as the case may be) or (ii) a Person owning directly or beneficially any outstanding shares of common stock of Owner or any of its affiliates, or a stockholder, director, officer, employee, affiliate, associate, creditor or independent contractor of such beneficial owner or any of such beneficial owners affiliates or associates, or (iii) a member of the immediate family of any Person described above.
Joint Collection Account shall mean any account maintained by the Collateral Agent, in the joint name of the QI and the Collateral Agent (as a Collateral Account) pursuant to Section 2.5(a) of the Collateral Agency Agreement that (1) processes funds collected on behalf of each Legal Entity, (2) is used for identification and subsequent separation of the portion of such funds attributable to receipts of Hertz, HVF, and HGI and (3) is used to separate Relinquished Property Proceeds from Additional Subsidies.
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Joint Disbursement Account shall mean an account as defined in Section 5.02 of Revenue Procedure 2003-39 (1) that is used to receive Relinquished Property Proceeds from an Exchange Account and any Additional Subsidies from whatever source, and (2) which may be used to disburse Relinquished Property Proceeds and Additional Subsidies in order to acquire Replacement Property and to disburse Additional Subsidies to make Non-LKE Disbursements.
Legal Entity shall mean each of Hertz, HVF or HGI, individually.
Licensed Trademark shall have the meaning set forth in Section 6.10(a) hereof.
Licensed Services shall have the meaning set forth in Section 6.10(a) hereof.
Material Action shall mean any action described in clauses (i) through (iii) of Section 8(a) of the QIs certificate of incorporation.
LKE Program shall have the meaning set forth in the recitals hereto.
Non-LKE Disbursements shall mean disbursements for items other than the acquisition of Replacement Property (including the acquisition of non-Replacement Property and any fees, expenses or other costs required to be paid pursuant to Section 7.02 hereof) that are funded solely with Additional Subsidies.
Non-Qualified Funds shall mean all amounts that are deposited into the Joint Collection Accounts that are not Relinquished Property Proceeds.
Owner shall mean DB Services Tennessee, Inc., or any other entity that acquires all of the issued and outstanding shares of the QI pursuant to Section 6.10 hereof.
Qualified Earnings shall mean, with respect to any Relinquished Property, the earnings received on the Relinquished Property Proceeds from such Relinquished Property that have been held in an Escrow Account for a period not exceeding the Exchange Period for such Relinquished Property.
Qualified Intermediary shall have the meaning set forth in the recitals hereto.
QI shall have the meaning set forth in the preamble hereto.
QI Indemnitee shall have the meaning set forth in Section 5.02(a) hereof.
QI Parent Downgrade Event shall mean, on any date of determination, either (i) Deutsche Bank AG (or any entity that becomes the ultimate parent of the QI) shall have a short-term credit rating of below A-1 from S&P or below P-1 from Moodys or (ii) if at any time Deutsche Bank AG (or any entity that becomes the ultimate parent of the QI) does not have a short-term credit rating, Deutsche Bank AG (or any entity that is a successor to Deutsche Bank AG as the ultimate parent of the QI) shall have a long-term credit rating of below AA- from S&P or below Aa3 from Moodys.
QI Sale shall have the meaning set forth in Section 6.10(a) hereof.
7
Relinquished Property shall mean certain vehicles used in Exchangors business and qualifying as relinquished property within the meaning of Section 1.1031(k)-1(a) of the Treasury Regulations, which have been identified as such in a written notice delivered by a Legal Entity pursuant to Section 2.05 hereof to each other party to the applicable Relinquished Property Agreement of the assignment of such Relinquished Property Agreement to the QI.
Relinquished Property Agreement shall mean any agreement relating to the sale or other disposition of Relinquished Property, including but not limited to each Manufacturer Program relating to Relinquished Property of a Legal Entity, each agreement arising from the exercise by a Legal Entity of its right to sell a Vehicle that is Relinquished Property to a Manufacturer pursuant to the terms of its Manufacturer Program and each agreement by a Legal Entity to sell a Vehicle that is Relinquished Property to any third party otherwise than pursuant to a Manufacturer Program.
Relinquished Property Proceeds shall mean, funds derived from or otherwise attributable to the transfer of Relinquished Property, including any Qualified Earnings thereon, and excluding earnings thereon that do not constitute Qualified Earnings.
Replacement Property shall mean certain vehicles that are like-kind, as defined in Sections 1.1031(a)-1(b) and 1.1031(a)-2 of the Treasury Regulations, to the Relinquished Property and held for productive use, as described in Section 1.1031(a)-1 of the Treasury Regulations, in connection with Exchangors business operations and qualifying as replacement property within the meaning of Section 1.1031(k)-1(a) of the Treasury Regulations.
Replacement Property Acquisition Cost shall mean, with respect to a Replacement Property, the amount of consideration required to be paid to the Seller of such Replacement Property under any related Replacement Property Agreement.
Replacement Property Agreement shall mean any agreement (including an obligation of HGI) relating to the acquisition of Replacement Property, including but not limited to each agreement by HGI to purchase a vehicle which is Replacement Property from a Manufacturer or a vehicle dealer, whether such agreement to purchase arises under a Manufacturer Program or otherwise.
Rights shall mean (1) with respect to any Relinquished Property, each Legal Entitys rights in a Relinquished Property Agreement (but not its obligations), as defined in Treasury Regulations Section 1.1031(k)-1(g)(4)(iv) and (v), to sell the Relinquished Property and (2) with respect to any Replacement Property, each Legal Entitys rights in a Replacement Property Agreement (but not its obligations), as defined in Treasury Regulations Section 1.1031(k)-1(g)(4)(iv) and (v), to acquire the Replacement Property.
S&P shall mean Standard and Poors Rating Service or any successor thereto.
Safe Harbor shall mean any one or more of the safe harbors described in Section 1.1031(k)-1(g) of the Treasury Regulations and any one or more of the safe harbor provisions of Revenue Procedure 2003-39.
8
Sale Notice shall have the meaning set forth in Section 6.10(a) hereof.
Seller shall have the meaning set forth in the recitals hereto.
Special Termination Date shall have the meaning set forth in Section 7.01(b) hereof.
Start Date shall mean the date on which Exchangor begins exchanging vehicles in the applicable LKE Program.
Termination Date shall have the meaning set forth in Section 7.01(a) hereof.
Treasury Regulations shall have the meaning set forth in the recitals hereto.
Vehicle shall mean a Vehicle (as defined in Schedule I to the Base Indenture or the corresponding Segregated Series-specific definition set forth in each Segregated Series Supplement) or a passenger automobile, light-duty truck, bus or tow truck which is owned by Hertz, as the context may require.
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Each Legal Entity and the QI agree that the QI shall not (1) take possession of, (2) hold legal title to, or (3) be the registered owner of, any Relinquished Property or Replacement Property.
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If to the QI or the Owner:
DB Services Tennessee, Inc.
[ ]
If to Hertz, HGI, or HVF:
c/o The Hertz Corporation
225 Brae Boulevard
Park Ridge, NJ 07656
Attention: Treasurer
Fax: (201) 307-2476
with a copy to the Administrator at:
The Hertz Corporation
225 Brae Boulevard
Park Ridge, NJ 07656
Attention: Treasurer
Fax: (201) 307-2476
If to Trustee:
The Bank of New York Mellon, N.A.
2 North LaSalle
Chicago, IL 60602
Attn: Corporate Trust Administrator-Structured Finance
Phone: (312) 827-8569
Fax: (312) 827-8562
If to the GE Collateral Agent:
c/o GE Corporate Financial Services
201 Merritt 7
Norwalk, CT 06856-5201
Attention: Operations Site Leader-2nd Floor
Tel: 203-956-4146
Fax: 203-229-5788
Notice of any change in any such address, facsimile number or e-mail address will also be given in the manner set forth above. Whenever the giving of notice is required, the party entitled to receive such notice may waive the giving of such notice.
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[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
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THE HERTZ CORPORATION, |
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by |
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/s/ R. Scott Massengill |
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Name: R. Scott Massengill |
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Title: Treasurer |
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HERTZ VEHICLE FINANCING LLC, |
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by |
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/s/ R. Scott Massengill |
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Name: R. Scott Massengill |
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Title: Vice President & Treasurer |
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HERTZ GENERAL INTEREST LLC, |
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by |
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/s/ R. Scott Massengill |
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Name: R. Scott Massengill |
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Title: Vice President & Treasurer |
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HERTZ CAR EXCHANGE INC., |
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by |
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/s/ Daniel Feehan |
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Name: Daniel Feehan |
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Title: Vice President |
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by |
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/s/ Vickie Chaplin |
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Name: Vickie Chaplin |
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Title: Associate |
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DB SERVICES TENNESSEE, INC., |
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by |
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/s/ Alec Singh |
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Name: Alec Singh |
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Title: President |
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by |
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/s/ Christopher J. Edwards |
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Name: Christopher J. Edwards |
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Title: Vice President |
39
Exhibit 4.9.14
EXECUTION VERSION
SECOND AMENDED AND RESTATED ESCROW AGREEMENT
dated as of September 18, 2009
among
THE HERTZ CORPORATION,
HERTZ VEHICLE FINANCING LLC,
HERTZ GENERAL INTEREST LLC,
HERTZ CAR EXCHANGE INC.
and
J.P. MORGAN CHASE BANK, N.A.
TABLE OF CONTENTS
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ARTICLE I |
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Definitions |
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SECTION 1.01. |
Definitions |
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2 |
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ARTICLE II |
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General Provisions |
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SECTION 2.01. |
In General |
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SECTION 2.02. |
Provisions Governing the Escrow Accounts |
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ARTICLE III |
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Fund Transfers |
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SECTION 3.01. |
Transfer of Collected Funds from the Exchange Accounts |
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SECTION 3.02. |
Transfer of Disbursed Funds from the Disbursement Accounts |
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SECTION 3.03. |
Shortfalls in Funding |
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SECTION 3.04. |
Additional Subsidies |
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SECTION 3.05. |
The Escrow Accounts |
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SECTION 3.06. |
Limitation on Rights to Exchange Proceeds |
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SECTION 3.07. |
Returns |
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ARTICLE IV |
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Investment Of Funds |
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SECTION 4.01. |
Investment of the Exchange Funds |
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ARTICLE V |
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Distributions |
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SECTION 5.01. |
Distribution of Escrow Funds |
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ARTICLE VI |
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Miscellaneous Provisions |
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SECTION 6.01. |
Obligations of the Escrow Agent |
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SECTION 6.02. |
Conflicting Instructions; Adverse Claims |
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SECTION 6.03. |
Notices |
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SECTION 6.04. |
Notice of Claims Relating to the Escrow Accounts |
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SECTION 6.05. |
Limitation of Liabilities; Indemnification |
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SECTION 6.06. |
Entire Agreement; Successors and Assigns |
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SECTION 6.07. |
Counterparts |
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SECTION 6.08. |
No Third Party Beneficiaries |
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SECTION 6.09. |
Authorization |
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SECTION 6.10. |
Termination |
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SECTION 6.11. |
No Discretion |
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SECTION 6.12. |
GOVERNING LAW AND VENUE |
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SECTION 6.13. |
JURY TRIAL WAIVER |
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SECTION 6.14. |
Certain Bankruptcy Events |
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SECTION 6.15. |
Force Majeure |
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SECTION 6.16. |
Treasury Regulations Disclosure Requirements |
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SECTION 6.17. |
Power of Attorney |
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SECTION 6.18. |
No Petitions |
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SECTION 6.19. |
Waiver of Setoff |
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SECTION 6.20. |
Electronic Documentation |
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SECTION 6.21. |
Servicer |
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SECTION 6.22. |
Amendments |
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SECTION 6.23. |
Availability of Funds for Payments |
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ii
This SECOND AMENDED AND RESTATED ESCROW AGREEMENT (as amended, modified or supplemented from time to time in accordance with the provisions hereof, this Escrow Agreement ) is entered into as of September 18, 2009, by and among, HERTZ CAR EXCHANGE INC., a Delaware corporation (the QI ), J.P. Morgan Chase Bank, N.A., a national banking association, as the escrow agent (the Escrow Agent ), THE HERTZ CORPORATION, a Delaware corporation ( Hertz ), HERTZ VEHICLE FINANCING LLC, a Delaware limited liability company ( HVF ) and HERTZ GENERAL INTEREST LLC, a Delaware limited liability company ( HGI ).
W I T N E S S E T H :
WHEREAS, the QI, the Escrow Agent, Hertz, HVF and HGI entered into an Amended and Restated Escrow Agreement as of January 26, 2007 (the Prior Agreement );
WHEREAS, the QI, the Escrow Agent, Hertz, HVF and HGI desire to amend and restate the Prior Agreement in its entirety as set forth herein;
WHEREAS, HVF and HGI are single member limited liability companies, solely owned by Hertz, and therefore disregarded entities for purposes of the Code and the Treasury Regulations;
WHEREAS, each action taken by a Legal Entity in its individual capacity pursuant to this Agreement shall, for purposes of the Code and the Treasury Regulations, have been taken by Exchangor;
WHEREAS, Exchangor desires to exchange certain Vehicles that are held for productive use in its trade or business and that constitute Relinquished Property for other vehicles to be held for productive use in its trade or business that are like-kind to the Relinquished Property;
WHEREAS, the Relinquished Property will be sold by Exchangor to various buyers from time to time, including Manufacturers and purchasers at auctions;
WHEREAS, the Replacement Property will be purchased by Exchangor from time to time from various Manufacturers and vehicle dealers;
WHEREAS, Exchangor and the QI desire and intend that the Exchanges accomplished by Exchangor and the QI under the Master Exchange Agreement (the LKE Program ) satisfy the requirements of a like kind exchange program pursuant to Section 3.02 of Revenue Procedure 2003-39;
WHEREAS, Exchangor desires to effectuate each Exchange in a manner that will qualify as a like-kind exchange within the meaning of Section 1031 of the Internal Revenue Code of 1986, as amended (the Code ) and the treasury regulations (the Treasury Regulations ) promulgated thereunder (and any applicable corresponding provisions of state tax
legislation) pursuant to one or more of the safe harbors described in Section 1.1031(k)-1(g) of the Treasury Regulations, and Revenue Procedure 2003-39;
WHEREAS, subject to the terms and provisions of the Second Amended and Restated Master Exchange Agreement dated as of the date hereof (as amended, modified or supplemented from time to time in accordance with the provisions thereof, the Master Exchange Agreement ), among the QI, Hertz, HVF and HGI, each Legal Entity has engaged the QI to act as a qualified intermediary within the meaning of Section 1031 of the Code and Section 1.1031(k)-1(g)(4) of the Treasury Regulations (such entity, a Qualified Intermediary ) in order to facilitate Exchanges of Relinquished Property for Replacement Property and has directed the QI to establish, or become a joint holder of, one or more accounts to hold proceeds from the disposition of Relinquished Property and any Additional Subsidies and to disburse such proceeds and any Additional Subsidies consistent with Section 1031 of the Code;
WHEREAS, the Escrow Agent may from time to time hold and disburse, pursuant to the terms of this Escrow Agreement, certain funds belonging to Exchangor that are not derived from the disposition of Relinquished Property for purposes other than the acquisition of Replacement Property;
WHEREAS, subject to the terms and provisions of the Master Exchange Agreement, it is intended that for purposes of the Treasury Regulations, Exchangor is not determined to be in actual or constructive receipt of proceeds (including any earnings thereon) from the disposition of any Relinquished Property;
WHEREAS, notwithstanding the immediately foregoing paragraph, it is the intent of the parties that the funds held in the Escrow Accounts maintained by the Escrow Agent shall not be part of the QIs general assets, nor subject to claims by the QIs creditors; and
WHEREAS, each Legal Entity will continue to comply with its obligations under the Related Documents to which it is a party;
NOW, THEREFORE, for and in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Definitions
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Business Day shall mean any day except a Saturday, Sunday or legal holiday on which the offices of the Trustee, any Legal Entity, the QI or, with respect to any matter involving any Account, the Escrow Agent (or any successor thereto) is not open for business.
Code shall have the meaning set forth in the recitals hereto.
Escrow Accounts shall mean each of the Exchange Accounts and the Disbursement Accounts, each of which the QI shall maintain by itself or jointly in the course of administering its obligations under the Master Exchange Agreement and this Escrow Agreement, and each of which shall be established (if not already established) and maintained pursuant to terms of this Escrow Agreement by the Escrow Agent.
Escrow Agent shall mean J.P. Morgan Chase Bank, N.A., or any successor Escrow Agent appointed pursuant to this Escrow Agreement.
Escrow Agreement shall have the meaning set forth in the preamble hereto.
Escrow Funds shall mean the funds in the Escrow Accounts.
Funds Transfer Protocol(s) shall have the meaning set forth in Section 2.01(b) hereof.
Hertz shall have the meaning set forth in the preamble hereto.
HGI shall have the meaning set forth in the preamble hereto.
HVF shall have the meaning set forth in the preamble hereto.
IRS shall mean the Internal Revenue Service.
LKE Program shall have the meaning set forth in the recitals hereto.
Master Exchange Agreement shall have the meaning set forth in the recitals hereto.
QI shall have the meaning set forth in the recitals hereto.
Qualified Intermediary shall have the meaning set forth in the recitals hereto.
Termination Date shall have the meaning set forth in Section 6.10 hereof.
Treasury Regulations shall have the meaning set forth in the recitals hereto.
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From time to time during the term of this Escrow Agreement, the Escrow Agent agrees that it shall receive, hold, invest and disburse, pursuant to the terms and conditions herein set forth, the Escrow Funds delivered into a Disbursement Account by or on behalf of HGI that are Relinquished Property Proceeds and/or Additional Subsidies, at HGIs discretion, as may be needed to complete the purchase of any particular Replacement Property and to be delivered to a Manufacturer or dealer for the purchase of Replacement Property, or to make any Non-LKE Disbursement by or on behalf of HGI. From time to time on any Business Day, pursuant to standing instructions and procedures established by HGI and the QI in accordance with the terms of the Master Exchange Agreement, HGI may initiate proposed Electronic Funds Transfers that are subject to the QIs approval and shall notify the QI of such initiated transfers, in order to transfer funds from a Disbursement Account to acquire Replacement Property, to pay expenses of the type described in Section 1.1031(k)-1(g)(7) of the Treasury Regulations not otherwise paid from funds deposited into the Joint Collection Account and to make Non-LKE Disbursements. The instructions with respect to such proposed Electronic Funds Transfers shall set forth the amounts to be withdrawn from the applicable Disbursement Account on such day, shall be substantially in the form of Exhibit A, and shall be either (1) executed by or on behalf of both HGI and the QI or (2) executed by or on behalf of HGI with the certification contained in Exhibit A stating that HGI has provided such instruction simultaneously to the Escrow Agent and the QI. If the QI does not approve any of the proposed Electronic Funds Transfer transactions, the QI shall immediately notify HGI and the Escrow Agent via telephone or fax (any such notice by telephone to be confirmed in writing) of the disapproval and the reasons for such disapproval. If the Escrow Agent receives instructions in the form of Exhibit A (i) executed by or on behalf of HGI and the QI or (ii) executed by or on behalf of HGI with the appropriate certification and the QI has not disapproved of the instructions (orally or in writing) within one hour of the Escrow Agents receipt of such instructions, then the Escrow Agent shall promptly execute instructions delivered to the Escrow Agent (subject to the last sentence of this Section 3.02). The Escrow Agent shall have no duty or obligation to verify or confirm any of the information contained in the electronic instructions received by it pursuant to this Section 3.02. Notwithstanding the foregoing, the Escrow Agent shall have no duty to transfer or distribute any funds from a Disbursement Account unless such funds have been collected and credited to such Disbursement Account.
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Distributions
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The Escrow Agent at:
Fax:
The QI at:
DB Services Tennessee, Inc.
[ ]
Hertz, HVF or HGI, as applicable, at:
c/o
The Hertz Corporation
225 Brae Boulevard
Park Ridge, NJ 07656
Attention: Treasurer
Fax: (201) 307-2746
with a copy to the Administrator at:
The
Hertz Corporation
225 Brae Boulevard
Park Ridge, NJ 07656
Attention: Treasurer
Fax: (201) 307-2746
OR
The Trustee at:
The
Bank of New York Mellon Trust Company, N.A.
2 North LaSalle
Chicago, IL 60602
Attn: Corporate Trust
Administrator-Structured Finance
Phone: (312) 827-8569
Fax: (312) 827-8562
13
The GE Collateral Agent at:
c/o
GE Corporate Financial Services
201 Merritt 7
Norwalk, CT 06856-5201
Attention: Operations Site Leader-2nd Floor
Tel: 203-956-4146
Fax: 203-229-5788
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15
Notwithstanding any provision herein to the contrary, the Escrow Agent shall have the right to terminate this Escrow Agreement, as it relates to such party, at any time (the Termination Date ) prior to complete disbursement of all of the Escrow Funds upon not less than ninety (90) Business Days notice to the QI, each Legal Entity and the Trustee, provided , however , that if a notice to disburse the Escrow Funds pursuant to Section 5.01 hereof is
16
received by the Escrow Agent and such disbursement is to occur prior to the Termination Date, then the Escrow Agent will comply with the terms of this Escrow Agreement and make such disbursement pursuant hereto. If the Escrow Agent gives notice setting a Termination Date, the Legal Entities and the QI may, at their option and provided that the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding is satisfied with respect thereto, appoint one or more new escrow agents pursuant to an escrow agreement or escrow agreements substantially in the form of this Escrow Agreement and, provided, the Escrow Agent shall receive an instruction substantially in the form of Exhibit C-1 hereto not less than two (2) Business Days prior to the Termination Date, the Escrow Agent shall deliver the Escrow Funds in accordance with such instruction.
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18
(signature page follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
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THE HERTZ CORPORATION, |
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/s/ R. Scott Massengill |
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Name: R. Scott Massengill |
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Title: Treasurer |
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HERTZ VEHICLE FINANCING LLC, |
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by |
/s/ R. Scott Massengill |
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Name: R. Scott Massengill |
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Title: Vice President & Treasurer |
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HERTZ GENERAL INTEREST LLC, |
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/s/ R. Scott Massengill |
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Name: R. Scott Massengill |
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Title: Vice President & Treasurer |
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HERTZ CAR EXCHANGE INC., |
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by |
/s/ Daniel Feehan |
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Name: Daniel Feehan |
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Title: Vice President |
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by |
/s/ Vickie Chaplin |
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Name: Vickie Chaplin |
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Title: Associate |
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J.P. MORGAN CHASE BANK, N.A., |
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/s/ Christopher Vetri |
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Name: Christopher Vetri |
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Title: Trust Officer |
Exhibit A
To:
Escrow Agent Account Number #:
Legal Entity: [ ] [ ] [ ]
Legal Entitys Taxpayer Identification Number:
Instructions for Receipt of Escrow Funds and Disbursement of Funds for Acquisition of Replacement Property
Description of Relinquished Property and Deposit into Disbursement Account :
$ will be transferred to the above-referenced escrow account on or about . These funds are the net proceeds from the sale of the Relinquished Property by the Legal Entity to a buyer or Additional Subsidies provided by the Legal Entity. The funds will be delivered in the form of (check one):
o federal funds wire o cashiers check
Disbursement for Purchase of Replacement Property :
Be advised that the Legal Entity has followed the notification and closing procedures relative to a Replacement Property in accordance with the requirements of Internal Revenue Code Section 1031 and the regulations promulgated thereunder. As a result, please attend to the following transfer upon this instruction. Please make the following wire transfer:
AMOUNT: $
FROM ACCOUNT #:
TO: [Include Wiring Instructions]
FOR VALUE:
Authorization to Disburse Funds for Acquisition of a Replacement Property from Exchange Account :
Be advised that the Legal Entity has followed the notification and closing procedures relative to a Replacement Property in accordance with the requirements of Internal Revenue Code Section 1031 and the regulations promulgated thereunder. As a result, please attend to the following transfer upon receipt of this instruction.
You are hereby authorized to liquidate the investment previously specified and disburse the proceeds, if any, of the Escrow Funds from the appropriate account as follows:
AMOUNT: $
FROM EXCHANGE ACCOUNT #:
TO DISBURSEMENT ACCOUNT #:
FOR VALUE:
Return of Funds from Disbursement Accounts :
Please return funds from the following accounts, as instructed below:
AMOUNT: $
FROM EXCHANGE ACCOUNT #:
TO ACCOUNT #:
FOR VALUE:
AMOUNT: $
FROM DISBURSEMENT ACCOUNT #:
TO ACCOUNT #:
FOR VALUE:
Authorized by:
[The undersigned hereby certifies to the Escrow Agent and that this instruction has been provided to the Escrow Agent and simultaneously, and the Escrow Agent may rely upon this certification in compliance with Sections 3.01 and 3.02 of the Escrow Agreement when making transfers from the Escrow Accounts without the signature of upon this written instruction](1)
Legal Entity: , [on its own behalf] [as Servicer for ] [ ] [ ]
By: |
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[Qualified Intermediary: |
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By: |
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Print Name: |
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(1) Certification may be removed for any instruction executed by both and .
(2) No signature required if certification above is included
Authorization to Terminate Escrow Failure to Identify
Replacement Property
Description of Relinquished Property:
The Legal Entity has failed to identify a Replacement Property within the required period after transfer of title to the Relinquished Property in accordance with the requirements of Section 1031 of the Internal Revenue Code of 1986, as amended. As a result, the exchange relating to the funds in this escrow account shall terminate effective .
You are hereby authorized to liquidate the entire investment and disburse the net proceeds, if any, of the Escrow Funds as follows:
For , for the benefit of , as Trustee, Invoice Number:
Amount: $
Bank Information:
ABA/Routing Number:
Account Name:
Account Number: *
For Value:
Remit the balance, plus accrued income, to:
Bank:
ABA Number:
Account Name:
Account Number:
For Value:
Authorized by:
Qualified Intermediary: |
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By: |
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Print Name: |
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Title: |
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Legal Entity: , [on its own behalf] [as Servicer for ], [ ], [ ]
By: |
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Authorization to Terminate Escrow - Failure to Acquire within 180 Days
Description of Relinquished Property:
The Legal Entity has failed to acquire title to a Replacement Property within the required period after transfer of title to the Relinquished Property in accordance with the requirements of Section 1031. As a result, the exchange relating to the funds in this escrow account shall terminate effective .
You are hereby authorized to liquidate the entire investment and disburse not later than 2 Business Days after receipt of this notice, the net proceeds, if any, of the Escrow Funds as follows:
For Invoice Number:
Amount: $
Bank Information:
ABA/Routing Number:
Account Name:
Account Number: *
For Value:
Remit the balance, plus accrued income, to:
Bank:
ABA Number:
Account Name:
Account Number:
For Value:
Authorized by:
Qualified Intermediary: |
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By: |
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Print Name: |
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Title: |
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Legal Entity: , [on its own behalf] [as Servicer for][ ][ ][ ]
By: |
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Exhibit B
Person(s) Authorized to Execute Escrow Agreement and Exhibits
To:
Escrow Agent Account Numbers ######## and [ ]
Legal Entities: , ,
and
Legal Entities Taxpayer Identification Numbers:
Description of Relinquished Property:
The following person is authorized to execute the Escrow Agreement on behalf of each Legal Entity:
Authorized Signature: |
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Print Name: |
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Title: |
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Any of the following persons are authorized to execute the instructions on behalf of any Legal Entity:
Authorized Signature: |
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Print Name: |
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Title: |
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Authorized Signature: |
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Print Name: |
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Title: |
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Authorized Signature: |
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Print Name: |
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Title: |
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Authorized Signature: |
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Print Name: |
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Title: |
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Authorized Signature: |
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Print Name: |
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Title: |
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Any of the following persons are authorized to execute the Escrow Agreement and instructions on behalf of the QI.
Authorized Signature: |
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Print Name: |
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Authorized Signature: |
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Print Name: |
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Authorized Signature: |
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THIS EXHIBIT MUST BE SIGNED AND RETURNED WITH THE ESCROW AGREEMENT
Exhibit C-1
Instruction to Transfer Escrow Funds to New Escrowee
To:
Escrow Agent Account Number
Legal Entity: , ,
and
Legal Entitys Taxpayer Identification Numbers:
Description of Relinquished Property:
We hereby acknowledge or initiate notice of termination of the Escrow Agreement with you relative to the above account effective . You are hereby advised that the undersigned have appointed a new escrow holder. Therefore, the Escrow Funds are to be redeemed or otherwise liquidated and disbursed on .
You are hereby authorized to liquidate the entire investment, deduct any fees for your services or expenses, and disburse the net proceeds of the Escrow Funds as follows:
Bank:
ABA Number:
Account Name:
Account Number:
For Value:
Authorized by:
Qualified Intermediary: |
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By: |
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Print Name: |
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Title: |
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Legal Entity: , [on its own behalf] [as Servicer for][ ][ ][ ]
By: |
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Title: |
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Acknowledged and consented to by: |
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Exhibit C-2
Instruction to Transfer Escrow Funds
To:
Escrow Agent Account Number
Legal Entity: , ,
and
Legal Entitys Taxpayer Identification Numbers:
Description of Relinquished Property:
We hereby acknowledge or initiate notice of termination of the Escrow Agreement with you relative to the above account effective . You are hereby advised that the undersigned have not appointed a new escrow holder. Therefore, the Escrow Funds are to be redeemed or otherwise liquidated and disbursed on .
You are hereby authorized to liquidate the entire investment, deduct any fees for your services or expenses, and disburse the net proceeds of the Escrow Funds as follows:
Funds in the HVF Exchange Accounts
Bank:
ABA Number:
Account Name:
Account Number:
For Value:
[Funds in the HVF Segregated Exchange Account relating to the following Segregated Series:
Bank:
ABA Number:
Account Name:
Account Number:
For Value: ]
Funds in the HGI Exchange Accounts
Bank:
ABA Number:
Account Name:
Account Number:
For Value:
Funds in the Hertz Exchange Accounts
Bank:
ABA Number:
Account Name:
Account Number:
For Value:
Funds in the Disbursement Accounts
Bank:
ABA Number:
Account Name:
Account Number:
For Value:
Authorized by:
Qualified Intermediary: |
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Legal Entity: , [on its own behalf] [as Servicer for][ ][ ][ ]
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Exhibit D
Form of Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that [ ] [ ] does hereby make, constitute and appoint ( ) its true and lawful Attorney-in-Fact for it and in its name, stead and behalf, to exercise any of its rights under the Escrow Agreement (as may be amended, modified or supplemented from time to time, the Escrow Agreement ) relating to the [HVF Vehicles][HVF Segregated Vehicles leased pursuant to the Segregated Series Lease relating to [ ]][HGI Vehicles], dated as of X, 200X, among , , , , and , including but not limited to, the right to execute any and all documents pertaining to the transfer or release of Escrow Funds (as defined in the Escrow Agreement) relating to the [HVF Vehicles][HVF Segregated Vehicles leased pursuant to the Segregated Series Lease relating to [ ]][HGI Vehicles] and to terminate all or a portion the Escrow Agreement relating to the [HVF Vehicles][HVF Segregated Vehicles leased pursuant to the Segregated Series Lease relating to [ ]][HGI Vehicles]. This power is limited to the foregoing and specifically does not authorize the creation of any liens or encumbrances on any of said Escrow Funds. All powers of attorney for this purpose heretofore filed or executed by [HVF][HGI] are hereby revoked.
The powers and authority granted hereunder shall be effective as of the [ ] day of , 200X and unless sooner terminated, revoked or extended shall cease eight (8) years from such date.
IN WITNESS WHEREOF, [ ] [ ] has caused this instrument to be executed on its behalf by its duly authorized officer this day of , 200X.
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State of )
County of )
Subscribed and sworn before me, a notary public, in and for said county and state, this day of , 20 .
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Notary Public |
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My Commission Expires: |
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Exhibit 4.9.27
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 2009-1 SUPPLEMENT
dated as of September 18, 2009
to
THIRD AMENDED AND RESTATED
BASE INDENTURE
dated as of September 18, 2009
$2,138,072,750 Series 2009-1 Variable Funding Rental Car Asset Backed Notes
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS |
1 |
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ARTICLE II INITIAL ISSUANCE AND INCREASES AND DECREASES OF PRINCIPAL AMOUNT OF SERIES 2009-1 NOTES |
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Section 2.1 Initial Issuance; Procedure for Increasing the Series 2009-1 Principal Amount |
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Section 2.2 Procedure for Decreasing the Series 2009-1 Principal Amount |
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ARTICLE III SERIES 2009-1 ALLOCATIONS |
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Section 3.1 Series 2009-1 Series Accounts |
47 |
Section 3.2 Allocations with Respect to the Series 2009-1 Notes |
48 |
Section 3.3 Application of Interest Collections |
52 |
Section 3.4 Payment of Note Interest |
55 |
Section 3.5 Payment of Note Principal |
55 |
Section 3.6 Payment by Wire Transfer |
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Section 3.7 The Administrators Failure to Instruct the Trustee to Make a Deposit or Payment |
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Section 3.8 Series 2009-1 Reserve Account |
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Section 3.9 Series 2009-1 Letters of Credit and Series 2009-1 Cash Collateral Accounts |
64 |
Section 3.10 Series 2009-1 Distribution Account |
68 |
Section 3.11 Trustee as Securities Intermediary |
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Section 3.12 Series 2009-1 Interest Rate Caps |
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Section 3.13 Series 2009-1 Demand Note Constitutes Additional Collateral for Series 2009-1 Notes |
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ARTICLE IV AMORTIZATION EVENTS |
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ARTICLE V FORM OF SERIES 2009-1 NOTES |
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Section 5.1 Issuance of Series 2009-1 Notes |
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Section 5.2 Transfer of Series 2009-1 Notes |
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ARTICLE VI GENERAL |
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Section 6.1 Optional Redemption of Series 2009-1 Notes |
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Section 6.2 Information |
80 |
Section 6.3 Exhibits . |
84 |
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TABLE OF CONTENTS
(continued)
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Section 6.4 Ratification of Base Indenture |
85 |
Section 6.5 Notice to the Rating Agencies |
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Section 6.6 Third Party Beneficiary |
85 |
Section 6.7 Counterparts |
85 |
Section 6.8 Governing Law |
85 |
Section 6.9 Amendments |
85 |
Section 6.10 Covenant Regarding Affiliate Issuers |
86 |
Section 6.11 Termination of Series Supplement |
86 |
Section 6.12 Discharge of Indenture |
86 |
ii
TABLE OF CONTENTS
(continued)
EXHIBITS |
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Exhibit A: |
Form of Series 2009-1 Variable Funding Rental Car Asset Backed Notes |
Exhibit B: |
Form of Series 2009-1 Letter of Credit |
Exhibit C: |
Form of Lease Payment Deficit Notice |
Exhibit D: |
Form of Series 2009-1 Letter of Credit Reduction Notice |
Exhibit E: |
Form of Purchasers Letter |
Exhibit F-1: |
Form of Monthly Noteholders Statement |
Exhibit F-2: |
Form of Weekly Noteholders Statement |
Exhibit G-1: |
Form of Demand Notice |
Exhibit G-2: |
Form of Series 2009-1 Demand Note |
Exhibit H: |
Form of Estimated Interest Adjustment Notice |
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SERIES 2009-1 SUPPLEMENT dated as of September 18, 2009 ( 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 Third Amended and Restated Base Indenture, dated as of September 18, 2009, 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 Series 2009-1 Rental Car Asset Backed Notes. On the Series 2009-1 Closing Date, one class of Series 2009-1 Variable Funding Rental Car Asset Backed Notes shall be issued, and be referred to herein as the Series 2009-1 Notes .
The net proceeds from the sale of the Series 2009-1 Notes shall be deposited in the Series 2009-1 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.
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 2009-1 Collection Account and available for reduction of the Series 2009-1 Principal Amount and (2) the amount of cash and Permitted Investments on deposit in the Series 2009-1 Excess Collection Account, in each case, on such day.
Administrative Agent has the meaning specified in the Series 2009-1 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 2009-1 Interest Period, the amounts payable pursuant to Sections 3.3(a)(i) and (ii) of this Series Supplement with respect to such Series 2009-1 Interest Period, expressed as an annual percent of the Series 2009-1 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.
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Back-Up Administration Agreement means that certain Back-Up Administration Agreement dated as of September 18, 2009 by and among the Administrator, HVF and Lord Securities Corporation, as back-up administrator (as the same may be amended, restated, modified or supplemented from time to time in accordance with its terms), and any successor agreement entered into with a successor back-up administrator in accordance with the foregoing agreement, this Series Supplement and the Series 2009-1 Note Purchase Agreement.
Back-Up Disposition Agent Agreement means that certain Back-Up Disposition Agent Agreement dated as of September 18, 2009 by and among Fiserv Automotive Solutions, Inc., the Servicer and the Trustee (as the same may be amended, restated, modified or supplemented from time to time in accordance with its terms), and any successor agreement entered into with a successor back-up disposition agent in accordance with the foregoing agreement, this Series Supplement and the Series 2009-1 Note Purchase Agreement.
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 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 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 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%.
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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.
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 Baa2 from Moodys; provided , that if an Eligible Manufacturer does not have a rating from Moodys, then the rating of an affiliated entity specified by Moodys shall apply for purposes of this definition; provided , further , that if (a) the rating of a Manufacturer by Moodys is withdrawn or a Manufacturer is downgraded by Moodys 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 Series Supplement, such Manufacturer shall be deemed to be rated Baa2 by Moodys 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.
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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 Baa3 from Moodys, but which does not have a long-term unsecured debt rating of at least Baa2 from Moodys; provided that if an Eligible Manufacturer does not have a rating from Moodys, then the rating of an affiliated entity specified by Moodys shall apply for purposes of this definition; provided , further , that if (a) (x) a Manufacturer is downgraded by Moodys 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 Series Supplement, such Manufacturer shall be deemed to be rated Baa2 by Moodys 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 Moodys is withdrawn or a Manufacturer is downgraded by Moodys 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 Baa3 by Moodys 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 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.
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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 Baa3 from Moodys; provided that if an Eligible Manufacturer does not have a rating from Moodys, then the rating of an affiliated entity specified by Moodys shall apply for purposes of this definition; provided , further , that if (a) the rating of a Manufacturer by Moodys is withdrawn or a Manufacturer is downgraded by Moodys 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 Series Supplement, such Manufacturer shall be deemed to be rated Baa3 by Moodys 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.
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; (b) Investors shall cease to own, directly or indirectly, 100% of the Capital Stock of
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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.
Chrysler 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 Chrysler as of such date.
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 the benefits of such new Manufacturer Program from HVF to the Collateral Agent acknowledged by such 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 described in clause (i) or (ii) above, the actions and payments in subclauses (B) and (C) of each such clause have been taken or made.
Continuing Directors means the directors of Investors on the Series 2009-1 Closing Date and each other director if, in each case, such other directors 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.
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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.
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 2009-1 Interest Rate Cap that is a bank, other financial institution or Person which satisfies the Moodys First Trigger Required Ratings and/or the Moodys Second Trigger Required Ratings (or whose present and future obligations under its Series 2009-1 Interest Rate Cap are guaranteed pursuant to a guarantee (in form and substance satisfactory to the Rating Agencies and satisfying the other requirements set forth in the related Series 2009-1 Interest Rate Cap) provided by a guarantor which satisfies the Moodys First Trigger Required Ratings and/or the Moodys Second Trigger Required Ratings).
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 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 as of such date 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 as of such date 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
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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 2009-1 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.
Eurodollar Rate has the meaning set forth in the Series 2009-1 Note Purchase Agreement.
Eurodollar Rate (Reserve Adjusted) has the meaning set forth in the Series 2009-1 Note Purchase Agreement.
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 the Series 2005-1 Notes and the Series 2005-2 Notes.
Existing Series Supplement means each of the Series 2005-1 Supplement and the Series 2005-2 Supplement.
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Expected Final Payment Date means January 25, 2012.
Financial Assets has the meaning specified in Section 3.11(b)(i) of this Series Supplement.
First Level Ratings Event means, as of any date of determination, with respect to the Series 2009-1 Notes, the Series 2009-1 Notes shall not have explicit public ratings of at least Aa3 by Moodys for a period in excess of thirty (30) consecutive days so long as no Second Level Ratings Event or Third Level Ratings Event shall have occurred and be continuing.
Fleet Equity Amount has the meaning specified in the Ford Letter of Credit Facility Agreement.
Fleet Equity Condition means, as of any date of determination, a condition that is satisfied if the Fleet Equity Amount as of such date equals or exceeds the Required Minimum Fleet Equity Amount as of such date.
Ford 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 Ford as of such date.
Ford Letter of Credit Facility Agreement means that certain Letter of Credit Facility Agreement, dated as of December 21, 2005, by and among Hertz, HVF and Ford.
GM 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 GM as of such date.
Holdings means Hertz Global Holdings, Inc.
Honda 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 Honda as of such date
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 Hertzs 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
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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 30 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.
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 2009-1 Noteholders under the Series 2009-1 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 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 (j) and
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(k) of Article III of the Series 2005-1 Supplement and clauses (j) and (k) of Article III of the Series 2005-2 Supplement (or, in the event of any amendments or modifications to the Series 2005-1 Supplement or the Series 2005-2 Supplement on any date after the Series 2009-1 Closing Date, any corresponding clauses on and after the date of such amendment).
Interest Rate Cap Provider means HVFs counterparty under a Series 2009-1 Interest Rate Cap.
Investors means Hertz Investors, Inc.
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) , (c) , (d) , (g) , (h) , (i) , (j) , (k) , (n) , (o) , (p) , (t) , (u) , (v) or (w) 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 (q) 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 clauses (b) , (e) , or (f) of Article IV of this Series Supplement.
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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 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 as of such date 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
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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 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 as of such date 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.
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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 2009-1 Note Purchase Agreement.
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.
Moodys 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 Moodys, such rating is Prime-1 and its long-term senior unsecured debt, deposit, claims paying or credit (as the case may be) rating is A2 or above by Moodys or (ii) if such entity does not have a short-term, unsecured and unsubordinated debt obligation rating by Moodys, its long-term senior unsecured debt, deposit, claims paying or credit (as the case may be) rating is A1 or above by Moodys.
Moodys 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 Moodys, 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 Moodys or (ii) if such entity does not have a short-term, unsecured and unsubordinated debt obligation rating by Moodys, its long-
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term senior unsecured debt, deposit, claims paying or credit (as the case may be) rating is A3 or above by Moodys.
New York UCC has the meaning specified in Section 3.11(b)(i) of this Series Supplement.
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 as of such date 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
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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 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 as of such date 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 Baa3 from Moodys; provided that upon the withdrawal of the rating of a Manufacturer by Moodys or upon the downgrade of a Manufacturer by Moodys 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 Baa3 by Moodys 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-Investment Grade Manufacturer Program Vehicle Amount means, as of any date of determination, the sum of the Manufacturer Eligible Program Vehicle
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Amounts and the Manufacturer Non-Eligible Program Vehicle Amounts for all Non-Investment Grade Manufacturers as of such date.
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.
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 (other than any Non-Program Vehicles that are returned to a Manufacturer pursuant to a Manufacturer Program in accordance with Section 2.5(b) of the HVF Lease) 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-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.
Old Chrysler 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 Old Chrysler as of such date.
Old GM 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 Old GM as of such date.
Outstanding means with respect to the Series 2009-1 Notes, all Series 2009-1 Notes theretofore authenticated and delivered under the Indenture, except (a) Series 2009-1 Notes theretofore cancelled or delivered to the Registrar for cancellation, (b) Series 2009-1 Notes which have not been presented for payment but funds for the payment of which are on deposit in the Series 2009-1 Distribution Account and are available for payment of such Series 2009-1 Notes, and Series 2009-1 Notes which are considered paid pursuant to Section 8.1 of the Base Indenture, or (c) Series 2009-1 Notes in exchange for or in lieu of other Series 2009-1 Notes which have been authenticated
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and delivered pursuant to the Indenture unless proof satisfactory to the Trustee is presented that any such Series 2009-1 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 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 2009-1 Demand Note and distributed to the Series 2009-1 Noteholders in respect of amounts owing under the Series 2009-1 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 2009-1 Notes, the Series 2009-1 Principal Amount.
Principal Deficit Amount means, on any date of determination, the excess, if any, of (a) the Series 2009-1 Adjusted Principal Amount on such date over (b) the Series 2009-1 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 2009-1 Adjusted Principal Amount on such date over (y) the sum of (1) the Series 2009-1 Asset Amount on such date and (2) the lesser of (a) the Series 2009-1 Liquidity Amount on such date and (b) the Series 2009-1 Required Liquidity Amount on such date.
Pro Rata Share means, with respect to any Series 2009-1 Letter of Credit Provider, as of any date, the fraction (expressed as a percentage) obtained by dividing (A) the available amount under such Series 2009-1 Letter of Credit Providers Series 2009-1 Letter of Credit as of such date by (B) an amount equal to the aggregate available amount under all Series 2009-1 Letters of Credit as of such date; provided , that only for purposes of calculating the Pro Rata Share with respect to any Series 2009-1
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Letter of Credit Provider as of any date, if such Series 2009-1 Letter of Credit Provider has not complied with its obligation to pay the Trustee the amount of any draw under its Series 2009-1 Letter of Credit made prior to such date, the available amount under such Series 2009-1 Letter of Credit Providers Series 2009-1 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 2009-1 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 2009-1 Letter of Credit Providers actual liability in respect of any failure to pay any demand under its Series 2009-1 Letter of Credit).
Rating means the rating of the Series 2009-1 Notes by Moodys.
Rating Agencies means, with respect to the Series 2009-1 Notes, Moodys and any other nationally recognized rating agency rating the Series 2009-1 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; provided that for the avoidance of doubt, if a Redesignated Vehicle is subsequently redesignated as a Program Vehicle pursuant to Section 2.6 of the HVF Lease, such Vehicle shall no longer constitute a Redesignated Vehicle following such subsequent redesignation.
Reference Banks means four major banks in the London interbank market selected by the Calculation Agent.
Required Minimum Fleet Equity Amount has the meaning specified in the Ford Letter of Credit Facility Agreement.
Required Noteholders means, with respect to the Series 2009-1 Notes, Series 2009-1 Noteholders holding more than 50% of the Series 2009-1 Principal Amount (excluding any Series 2009-1 Notes held by HVF or any Affiliate of HVF (other than Series 2009-1 Notes held by an Affiliate Issuer if such Affiliate Issuer has assigned all voting, consent and control rights associated with such Series 2009-1 Notes to Persons that are not Affiliates of HVF)).
Required Ratings means, with respect to the Series 2009-1 Notes, explicit public ratings of at least Aa2 by Moodys.
Second Level Ratings Event means, as of any date of determination, with respect to the Series 2009-1 Notes, the Series 2009-1 Notes shall not have explicit public ratings of at least A3 by Moodys for a period in excess of thirty (30)
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consecutive days so long as no Third Level Ratings Event shall have occurred and be continuing.
Senior Credit Facilities means the Hertzs (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 Hertzs 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)), (b) senior secured term loan facility, provided under a credit agreement, dated as of December 21, 2005, among Hertz together with certain of the Hertzs 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 2005-1 Notes means the medium term asset-backed notes issued pursuant to the Series 2005-1 Supplement.
Series 2005-2 Notes means the medium term asset-backed notes issued pursuant to the Series 2005-2 Supplement.
Series 2005-3 Notes means the variable funding asset-backed notes issued pursuant to the Series 2005-3 Supplement.
Series 2005-4 Notes means the variable funding asset-backed notes issued pursuant to the Series 2005-4 Supplement.
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
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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 between HVF and the Trustee, relating to, among other things, the issuance by HVF of its Series 2005-4 Notes.
Series 2009-1 Accrued Amounts means, on any date of determination, the sum of (i) accrued and unpaid interest on the Series 2009-1 Notes as of such date (including any accrued and unpaid Program Fee and Undrawn Fee), (ii) the Indenture Carrying Charges due and payable to the Series 2009-1 Noteholders on the next succeeding Payment Date and (iii) the product of (x) the Series 2009-1 Percentage as of such date of determination and (y) the Indenture Carrying Charges not included in clause (ii) above.
Series 2009-1 Accrued Interest Account has the meaning specified in Section 3.1(a) of this Series Supplement.
Series 2009-1 Adjusted Enhancement Amount means, the Series 2009-1 Enhancement Amount, excluding from the calculation thereof the amount available to be drawn under any Series 2009-1 Letter of Credit if at the time of such calculation (A) such Series 2009-1 Letter of Credit shall not be in full force and effect, (B) an Event of Bankruptcy shall have occurred with respect to the Series 2009-1 Letter of Credit Provider of such Series 2009-1 Letter of Credit, (C) such Series 2009-1 Letter of Credit Provider shall have repudiated such Series 2009-1 Letter of Credit or failed to honor a draw thereon made in accordance with the terms thereof or (D) a Series 2009-1 Downgrade Event shall have occurred and be continuing for at least 30 days with respect to the Series 2009-1 Letter of Credit Provider of such Series 2009-1 Letter of Credit.
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Series 2009-1 Adjusted Liquidity Amount means, the Series 2009-1 Liquidity Amount, excluding from the calculation thereof the amount available to be drawn under any Series 2009-1 Letter of Credit if at the time of such calculation (A) such Series 2009-1 Letter of Credit shall not be in full force and effect, (B) an Event of Bankruptcy shall have occurred with respect to the Series 2009-1 Letter of Credit Provider of such Series 2009-1 Letter of Credit, (C) such Series 2009-1 Letter of Credit Provider shall have repudiated such Series 2009-1 Letter of Credit or failed to honor a draw thereon made in accordance with the terms thereof or (D) a Series 2009-1 Downgrade Event shall have occurred and be continuing for at least 30 days with respect to the Series 2009-1 Letter of Credit Provider of such Series 2009-1 Letter of Credit.
Series 2009-1 Adjusted Principal Amount means, as of any date of determination, the excess, if any, of (A) the Series 2009-1 Principal Amount as of such date over (B) the sum of (1) the amount of cash and Permitted Investments on deposit in the Series 2009-1 Excess Collection Account and (2) the amount of cash and Permitted Investments on deposit in the Series 2009-1 Collection Account and available for reduction of the Series 2009-1 Principal Amount, in each case, as of such date.
Series 2009-1 Asset Amount means, as of any date of determination, the product of (i) the Series 2009-1 Asset Percentage as of such date and (ii) the Aggregate Asset Amount as of such date.
Series 2009-1 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 2009-1 Required Asset Amount, determined during the Series 2009-1 Revolving Period or the Series 2009-1 Controlled Amortization Period as of the last day of the immediately preceding Related Month (or, until the end of the initial Related Month after the Series 2009-1 Closing Date, on the Series 2009-1 Closing Date), or, during the Series 2009-1 Rapid Amortization Period, as of the last day of the Series 2009-1 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 2009-1 Closing Date, as of the Series 2009-1 Closing Date and (II) as of the same date as in clause (I) , the Aggregate Required Asset Amount.
Series 2009-1 Available Cash Collateral Account Amount means, as of any date of determination, the amount on deposit in the Series 2009-1 Cash Collateral Account (after giving effect to any deposits thereto and withdrawals and releases therefrom on such date).
Series 2009-1 Available Reserve Account Amount means, as of any date of determination, the amount on deposit in the Series 2009-1 Reserve Account.
Series 2009-1 Base Rate Tranche means that portion of the Series 2009-1 Principal Amount purchased or maintained with Series 2009-1 Advances which bear interest by reference to the Series 2009-1 Base Rate.
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Series 2009-1 Capped Excess Non-Investment Grade Manufacturer Program Vehicle Amount means, as of any day, an amount equal to 55.75% of the Adjusted Aggregate Asset Amount, on such day.
Series 2009-1 Cash Collateral Account has the meaning specified in Section 3.9(f) of this Series Supplement.
Series 2009-1 Cash Collateral Account Collateral has the meaning specified in Section 3.9(a) of this Series Supplement.
Series 2009-1 Cash Collateral Account Interest and Earnings means with respect to a Series 2009-1 Cash Collateral Account all interest and earnings (net of losses and investment expenses) paid on funds on deposit in such Series 2009-1 Cash Collateral Account.
Series 2009-1 Cash Collateral Account Surplus means, with respect to any Payment Date, the lesser of (a) the Series 2009-1 Available Cash Collateral Account Amount and (b) the lesser of (i) the excess, if any, of the Series 2009-1 Adjusted Enhancement Amount (after giving effect to any withdrawal from the Series 2009-1 Reserve Account on such Payment Date) over the Series 2009-1 Required Enhancement Amount on such Payment Date and (ii) the excess, if any, of the Series 2009-1 Adjusted Liquidity Amount over the Series 2009-1 Required Liquidity Amount on such Payment Date.
Series 2009-1 Cash Collateral Percentage means, as of any date of determination, the percentage equivalent of a fraction, the numerator of which is the Series 2009-1 Available Cash Collateral Account Amount as of such date and the denominator of which is the Series 2009-1 Letter of Credit Liquidity Amount as of such date.
Series 2009-1 Certificate of Credit Demand means a certificate in the form of Annex A to a Series 2009-1 Letter of Credit.
Series 2009-1 Certificate of Preference Payment Demand means a certificate in the form of Annex C to a Series 2009-1 Letter of Credit.
Series 2009-1 Certificate of Termination Demand means a certificate in the form of Annex D to a Series 2009-1 Letter of Credit.
Series 2009-1 Certificate of Unpaid Demand Note Demand means a certificate in the form of Annex B to Series 2009-1 Letter of Credit.
Series 2009-1 Closing Date means September 18, 2009.
Series 2009-1 Collateral means the Collateral, the Series 2009-1 Interest Rate Caps, each Series 2009-1 Letter of Credit, the Series 2009-1 Series Account Collateral, the Series 2009-1 Cash Collateral Account Collateral, the Series 2009-1
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Demand Note, the Series 2009-1 Distribution Account Collateral and the Series 2009-1 Reserve Account Collateral.
Series 2009-1 Collection Account has the meaning specified in Section 3.1(a) of this Series Supplement.
Series 2009-1 Commercial Paper means the promissory notes of each Series 2009-1 Noteholder issued by such Series 2009-1 Noteholder in the commercial paper market and allocated to the funding of Series 2009-1 Advances in respect of the Series 2009-1 Notes.
Series 2009-1 Controlled Amortization Amount means, with respect to each Series 2009-1 Controlled Amortization Payment Date, the lesser of (i) the result of (a) one third of the Series 2009-1 Outstanding Principal Amount as of the date of the commencement of the Series 2009-1 Controlled Amortization Period minus (b) the aggregate amount of any Voluntary Decreases effected pursuant to Section 2.2(b) of this Series Supplement and paid to the Series 2009-1 Noteholders pursuant to Section 3.5(e) of this Series Supplement during the Series 2009-1 Controlled Amortization Payment Period ending on such Series 2009-1 Controlled Amortization Payment Date and (ii) the Series 2009-1 Principal Amount.
Series 2009-1 Controlled Amortization Payment Date means each of the Payment Dates occurring in November and December 2011 and January 2012.
Series 2009-1 Controlled Amortization Payment Period means, with respect to any Series 2009-1 Controlled Amortization Payment Date, the period from but excluding the Determination Date immediately preceding the prior Series 2009-1 Controlled Amortization Payment Date (or, in the case of the first Series 2009-1 Controlled Amortization Payment Date, the period from and excluding the October 25, 2011 Payment Date) to but including the Determination Date immediately preceding such Series 2009-1 Controlled Amortization Payment Date; provided that any Monthly Base Rent paid by the Lessee under the HVF Lease on a Series 2009-1 Controlled Amortization Payment Date shall be deemed to have been received during the Series 2009-1 Controlled Amortization Payment Period with respect to such Series 2009-1 Controlled Amortization Payment Date.
Series 2009-1 Controlled Amortization Period means the period commencing on October 26, 2011 (or, if such day is not a Business Day, the Business Day immediately preceding such day) and continuing to the earlier of (i) the commencement of the Series 2009-1 Rapid Amortization Period, and (ii) the date on which the Series 2009-1 Notes are paid in full.
Series 2009-1 CP Tranche means that portion of the Series 2009-1 Principal Amount purchased or maintained with Series 2009-1 Advances which bear interest by reference to the CP Rate.
Series 2009-1 Daily Interest Amount means, for any day in a Series 2009-1 Interest Period, an amount equal to the result of (a) the product of (i) the Series
25
2009-1 Note Rate for such Series 2009-1 Interest Period and (ii) the Series 2009-1 Principal Amount as of the close of business on such date divided by (b) 360.
Series 2009-1 Deficiency Amount has the meaning specified in Section 3.3(e) of this Series Supplement.
Series 2009-1 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.
Series 2009-1 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 2009-1 Demand Note that were deposited into the Series 2009-1 Distribution Account and paid to the Series 2009-1 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 2009-1 LOC Preference Payment Disbursement (or any withdrawal from any Series 2009-1 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 2009-1 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 2009-1 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 2009-1 Deposit Date has the meaning specified in Section 3.2 of this Series Supplement.
Series 2009-1 Designated Account has the meaning specified in Section 3.11(a) of this Series Supplement.
Series 2009-1 Disbursement shall mean any Series 2009-1 LOC Credit Disbursement, any Series 2009-1 LOC Preference Payment Disbursement, any Series 2009-1 LOC Termination Disbursement or any Series 2009-1 LOC Unpaid Demand Note Disbursement under the Series 2009-1 Letters of Credit or any combination thereof, as the context may require.
Series 2009-1 Distribution Account has the meaning specified in Section 3.10(a) of this Series Supplement.
Series 2009-1 Distribution Account Collateral has the meaning specified in Section 3.10(d) of this Series Supplement.
26
Series 2009-1 Downgrade Event has the meaning specified in Section 3.9(c) of this Series Supplement.
Series 2009-1 Eligible Letter of Credit Provider means a Person having, at the time of the issuance of the related Series 2009-1 Letter of Credit, a long-term senior unsecured debt rating (or the equivalent thereof in the case of Moodys or Standard & Poors, as applicable) of at least A1 from Moodys and at least A from Standard & Poors and a short-term senior unsecured debt rating (or the equivalent thereof in the case of Moodys or Standard & Poors, as applicable) of at least P-1 from Moodys and at least A-1 from Standard & Poors.
Series 2009-1 Enhancement Amount means, as of any date of determination, the sum of (i) the Series 2009-1 Overcollateralization Amount as of such date, (ii) the Series 2009-1 Letter of Credit Amount as of such date and (iii) the Series 2009-1 Available Reserve Account Amount as of such date (after giving effect to any deposits thereto and withdrawals and releases therefrom on such date).
Series 2009-1 Enhancement Deficiency means, on any day, the amount by which the Series 2009-1 Adjusted Enhancement Amount is less than the Series 2009-1 Required Enhancement Amount.
Series 2009-1 Eurodollar Tranche means that portion of the Series 2009-1 Principal Amount purchased or maintained with Series 2009-1 Advances which bear interest by reference to the Eurodollar Rate.
Series 2009-1 Excess Collection Account has the meaning specified in Section 3.1(a) of this Series Supplement.
Series 2009-1 Excess Principal Event shall be deemed to have occurred if, on any date, the Series 2009-1 Outstanding Principal Amount as of such date exceeds the Series 2009-1 Maximum Principal Amount as of such date.
Series 2009-1 First Maximum Non-Investment Grade Manufacturer Program Vehicle Amount means, as of any day, an amount equal to 50% of the Adjusted Aggregate Asset Amount.
Series 2009-1 Highest Enhancement Percentage means, with respect to any date of determination, the sum of (a) 49% (or such lower percentage as may be agreed to by HVF, each Funding Agent and Moodys, subject to satisfaction of the Series 2009-1 Rating Agency Condition with respect to Moodys) 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 2009-1 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 2009-1 Closing Date).
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Series 2009-1 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 2009-1 Initial Principal Amount means the aggregate initial principal amount of the Series 2009-1 Notes, which is $0.
Series 2009-1 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 2009-1 Interest Period shall commence on and include the Series 2009-1 Closing Date and end on and include October 24, 2009.
Series 2009-1 Interest Rate Cap means any interest rate cap entered into in accordance with the provisions of Section 3.12(a) of this Series Supplement, including, without limitation, the Series 2009-1 Interest Rate Cap Documents with respect thereto; provided that for the avoidance of doubt each Series 2009-1 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 2009-1 Interest Rate Cap Documents means , with respect to any Series 2009-1 Interest Rate Cap, the ISDA Master Agreement which governs such Series 2009-1 Interest Rate Cap, together with the schedule and credit support annex thereto and the applicable confirmations thereunder.
Series 2009-1 Intermediate Enhancement Percentage means, with respect to any date of determination, the sum of (a) 48% (or such lower percentage as may be agreed to by HVF, each Funding Agent and Moodys, subject to satisfaction of the Series 2009-1 Rating Agency Condition with respect to Moodys) 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 2009-1 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 2009-1 Closing Date).
Series 2009-1 Intermediate Enhancement Vehicle Percentage means, as of any date of determination, the excess of (i) 100% over (ii) the sum of (x) the Series 2009-1 Lowest Enhancement Vehicle Percentage as of such date plus (y) the Series 2009-1 Highest Enhancement Vehicle Percentage as of such date.
Series 2009-1 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 2009-1 Required Adjusted Asset Amount, determined during the Series 2009-1 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
28
2009-1 Closing Date, on the Series 2009-1 Closing Date), or, the Series 2009-1 Required Adjusted Asset Amount, determined during the Series 2009-1 Controlled Amortization Period and the Series 2009-1 Rapid Amortization Period as of the last day of the Series 2009-1 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 2009-1 Closing Date, as of the Series 2009-1 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 2009-1 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 2009-1 Investor Group has the meaning set forth in the Series 2009-1 Note Purchase Agreement.
Series 2009-1 Investor Group Principal Amount has the meaning set forth in the Series 2009-1 Note Purchase Agreement.
Series 2009-1 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 2009-1 Accrued Interest Account if all payments of Monthly Variable Rent required to have been made under the HVF Lease from but 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 2009-1 Accrued Interest Account from but excluding the preceding Payment Date to and including such Payment Date.
Series 2009-1 Lease Payment Deficit means either a Series 2009-1 Lease Interest Payment Deficit or a Series 2009-1 Lease Principal Payment Deficit.
Series 2009-1 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 2009-1 Lease Principal Payment Deficit, if any, on the preceding Payment Date over (y) the amount deposited in the Series 2009-1 Distribution Account pursuant to Section 3.5(d) of this Series Supplement on such preceding Payment Date on account of such Series 2009-1 Lease Principal Payment Deficit.
Series 2009-1 Lease Principal Payment Deficit means on any Payment Date the sum of (a) the Series 2009-1 Monthly Lease Principal Payment Deficit for such Payment Date and (b) the Series 2009-1 Lease Principal Payment Carryover Deficit for such Payment Date.
29
Series 2009-1 Letter of Credit means an irrevocable letter of credit, substantially in the form of Exhibit B to this Series Supplement issued by a Series 2009-1 Eligible Letter of Credit Provider in favor of the Trustee for the benefit of the Series 2009-1 Noteholders; provided , that any Series 2009-1 Letter of Credit issued after the Series 2009-1 Closing Date shall be subject to the satisfaction of the Series 2009-1 Rating Agency Condition.
Series 2009-1 Letter of Credit Agreement means the Series 2009-1 Letter of Credit Reimbursement Agreement and any other agreement pursuant to which a Series 2009-1 Letter of Credit is issued in favor of the Trustee for the benefit of the Series 2009-1 Noteholders.
Series 2009-1 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 2009-1 Letters of Credit, as specified therein, and (ii) if the Series 2009-1 Cash Collateral Account has been established and funded pursuant to Section 3.9 of this Series Supplement, the Series 2009-1 Available Cash Collateral Account Amount on such date and (b) the outstanding principal amount of the Series 2009-1 Demand Note on such date.
Series 2009-1 Letter of Credit Expiration Date means, with respect to any Series 2009-1 Letter of Credit, the expiration date set forth in such Series 2009-1 Letter of Credit, as such date may be extended in accordance with the terms of such Series 2009-1 Letter of Credit.
Series 2009-1 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 2009-1 Letter of Credit, as specified therein, and (b) if a Series 2009-1 Cash Collateral Account has been established and funded pursuant to Section 3.9(e) of this Series Supplement, the Series 2009-1 Available Cash Collateral Account Amount on such date.
Series 2009-1 Letter of Credit Provider means the issuer of a Series 2009-1 Letter of Credit.
Series 2009-1 Letter of Credit Reimbursement Agreement means any and each reimbursement agreement providing for the reimbursement of a Series 2009-1 Letter of Credit Provider for draws under its Series 2009-1 Letter of Credit, as the same may be amended, restated, modified or supplemented from time to time in accordance with its terms.
Series 2009-1 Liquidity Amount means, as of any date of determination, the sum of (a) the Series 2009-1 Letter of Credit Liquidity Amount and (b) the Series 2009-1 Available Reserve Account Amount on such date (after giving effect to any deposits thereto on such date).
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Series 2009-1 Liquidity Deficiency means, as of any date of determination, the amount by which the Series 2009-1 Adjusted Liquidity Amount is less than the Series 2009-1 Required Liquidity Amount as of such date.
Series 2009-1 Liquidity Surplus means, with respect to any date of determination, the excess, if any, of the Series 2009-1 Adjusted Liquidity Amount over the Series 2009-1 Required Liquidity Amount, in each case, as of such date.
Series 2009-1 LOC Credit Disbursement means an amount drawn under a Series 2009-1 Letter of Credit pursuant to a Series 2009-1 Certificate of Credit Demand.
Series 2009-1 LOC Preference Payment Disbursement means an amount drawn under a Series 2009-1 Letter of Credit pursuant to a Series 2009-1 Certificate of Preference Payment Demand.
Series 2009-1 LOC Termination Disbursement means an amount drawn under a Series 2009-1 Letter of Credit pursuant to a Series 2009-1 Certificate of Termination Demand.
Series 2009-1 LOC Unpaid Demand Note Disbursement means an amount drawn under a Series 2009-1 Letter of Credit pursuant to a Series 2009-1 Certificate of Unpaid Demand Note Demand.
Series 2009-1 Lowest Enhancement Percentage means, with respect to any date of determination, 25% (or such lower percentage as may be agreed to by HVF, each Funding Agent and Moodys, subject to satisfaction of the Series 2009-1 Rating Agency Condition with respect to Moodys).
Series 2009-1 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 2009-1 Maximum Aggregate BMW/Lexus/Mercedes/Audi Amount means, as of any day, an amount equal to 12% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Aggregate Kia/Subaru/Hyundai Amount means, as of any day, an amount equal to 35% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Amount means any of the Series 2009-1 Maximum Aggregate BMW/Lexus/Mercedes/Audi Amount, the Series 2009-1 Maximum Aggregate Kia/Subaru/Hyundai Amount, the Series 2009-1 Maximum Audi Amount, the Series 2009-1 Maximum BMW Amount, the Series 2009-1 Maximum Chrysler Amount, the Series 2009-1 Maximum Ford Amount, the Series 2009-1 Maximum GM Amount, the Series 2009-1 Maximum Honda Amount, the Series 2009-1 Maximum HVF Service
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Vehicle Amount, the Series 2009-1 Maximum Hyundai Amount, the Series 2009-1 Maximum Jaguar Amount, the Series 2009-1 Maximum Kia Amount, the Series 2009-1 Maximum Land Rover Amount, the Series 2009-1 Maximum Lexus Amount, the Series 2009-1 Maximum Non-Eligible Manufacturer Amount, the Series 2009-1 Maximum Mazda Amount, the Series 2009-1 Maximum Mercedes Amount, the Series 2009-1 Maximum Mitsubishi Amount, the Series 2009-1 Maximum Nissan Amount, the Series 2009-1 Maximum Non-Eligible Vehicle Amount, the Series 2009-1 Maximum Manufacturer Non-Eligible Vehicle Amount, the Series 2009-1 Maximum Subaru Amount, the Series 2009-1 Maximum Suzuki Amount, the Series 2009-1 Maximum Toyota Amount, the Series 2009-1 Maximum Volkswagen Amount and the Series 2009-1 Maximum Volvo Amount.
Series 2009-1 Maximum Audi Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day .
Series 2009-1 Maximum BMW Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Chrysler Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Ford Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum GM Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Honda Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 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 2009-1 Maximum Hyundai Amount means, as of any day, an amount equal to 13% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Jaguar Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Kia Amount means, as of any day, an amount equal to 20% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Land Rover Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Lexus Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day .
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Series 2009-1 Maximum Manufacturer Non-Eligible Vehicle Amount means, as of any day, (x) with respect to Toyota, an amount equal to 50% of the Non-Eligible Vehicle Amount and (y) with respect to any other Manufacturer, an amount equal to 40% of the Non-Eligible Vehicle Amount.
Series 2009-1 Maximum Mazda Amount means, as of any day, an amount equal to 20% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Mercedes Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Mitsubishi Amount means, as of any day, an amount equal to 10% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Nissan Amount means, as of any day, an amount equal to 20% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 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 2009-1 Maximum Non-Eligible Vehicle Amount means, as of any day, an amount equal to 100% of the Adjusted Aggregate Asset Amount.
Series 2009-1 Maximum Principal Amount means, $2,138,072,750; provided that such amount may be (i) reduced at any time and from time to time by HVF upon notice to each Series 2009-1 Noteholder, the Administrative Agent, each Conduit Investor and each Committed Note Purchaser in accordance with the terms of the Series 2009-1 Note Purchase Agreement, or (ii) increased at any time and from time to time upon an Additional Investor Group becoming party to the Series 2009-1 Note Purchase Agreement in accordance with the terms thereof.
Series 2009-1 Maximum Subaru Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Suzuki Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Toyota Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Volkswagen Amount means, as of any day, an amount equal to 10% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 Maximum Volvo Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-1 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
33
result of (a) the sum of the Series 2009-1 Principal Amount as of each day during the related Series 2009-1 Interest Period (after giving effect to any increases or decreases to the Series 2009-1 Principal Amount on such day) during which an Amortization Event with respect to the Series 2009-1 Notes has occurred and is continuing divided by (b) the actual number of days in the related Series 2009-1 Interest Period during which an Amortization Event with respect to the Series 2009-1 Notes has occurred and is continuing, and (z) the result of (a) the actual number of days in the related Series 2009-1 Interest Period during which an Amortization Event with respect to the Series 2009-1 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 2009-1 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 2009-1 Monthly Interest means, with respect to any Payment Date, the sum of (i) the Series 2009-1 Daily Interest Amount for each day in the related Series 2009-1 Interest Period, plus (ii) all previously due and unpaid amounts described in clause (i) with respect to prior Series 2009-1 Interest Periods (together with interest on such unpaid amounts required to be paid in this clause (ii) at the Series 2009-1 Note Rate), plus (iii) the Undrawn Fee for such Payment Date, calculated in accordance with Section 3.02(b) of the Series 2009-1 Note Purchase Agreement.
Series 2009-1 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 2009-1 Collection Account if all payments required to have been made under the HVF Lease from but 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 2009-1 Collection Account (without giving effect to any amounts deposited into the Series 2009-1 Accrued Interest Account pursuant to the proviso in Section 3.2(c)(ii) of this Series Supplement) from but excluding the preceding Payment Date to and including such Payment Date.
Series 2009-1 Noteholder means each Person in whose name a Series 2009-1 Note is registered in the Note Register.
Series 2009-1 Note Purchase Agreement means the Note Purchase Agreement, dated as of September 18, 2009, among HVF, the Series 2009-1 Noteholders, the Administrative Agent, the Administrator, the Series 2009-1 Funding Agents, the Conduit Investors and the Committed Note Purchasers, pursuant to which the Series 2009-1 Noteholders have agreed to purchase the Series 2009-1 Notes from HVF, subject to the terms and conditions set forth therein, as amended, supplemented, restated or otherwise modified from time to time.
Series 2009-1 Note Rate means, for any Series 2009-1 Interest Period, the sum of (i) the weighted average of the CP Rates applicable to the Series 2009-1 CP
34
Tranche and the weighted average of the Eurodollar Rates (Reserve Adjusted) applicable to the Series 2009-1 Eurodollar Tranche and the weighted average of the Series 2009-1 Base Rates applicable to the Series 2009-1 Base Rate Tranche, in each case, for the Series 2009-1 Interest Period and (ii) the Program Fee Rate as defined in the Series 2009-1 Note Purchase Agreement; provided , however , that the Series 2009-1 Note Rate will in no event be higher than the maximum rate permitted by applicable law.
Series 2009-1 Notes means any one of the Series 2009-1 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 hereto.
Series 2009-1 Notice of Reduction means a notice in the form of Annex E to a Series 2009-1 Letter of Credit.
Series 2009-1 Outstanding Principal Amount means, when used with respect to any date, an amount equal to (a) the sum of (i) Series 2009-1 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 2009-1 Noteholders on or prior to such date plus (c) any Increases in the Series 2009-1 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 2009-1 Outstanding Principal Amount exceed the Series 2009-1 Maximum Principal Amount.
Series 2009-1 Overcollateralization Amount means, as of any date of determination, (i) on which no Aggregate Asset Amount Deficiency exists, the Series 2009-1 Required Overcollateralization Amount as of such date or (ii) on which an Aggregate Asset Amount Deficiency exists, the excess, if any, of the Series 2009-1 Asset Amount over the Series 2009-1 Adjusted Principal Amount as of such date.
Series 2009-1 Past Due Rent Payment has the meaning specified in Section 3.2(d) of this Series Supplement.
Series 2009-1 Percentage means, as of any date of determination, a fraction, expressed as a percentage, the numerator of which is the Series 2009-1 Principal Amount as of such date and the denominator of which is the Aggregate Principal Amount as of such date.
Series 2009-1 Principal Amount means when used with respect to any date, an amount equal to the Series 2009-1 Outstanding Principal Amount plus the amount of any principal payments made to Series 2009-1 Noteholders that have been rescinded or otherwise returned by the Series 2009-1 Noteholders for any reason; provided that, during the Series 2009-1 Revolving Period, for purposes of determining whether or not the Requisite Investors have given any consent, waiver, direction or instruction, the Series 2009-1 Principal Amount held by each Series 2009-1 Noteholder shall be deemed to include, without double counting, the undrawn portion of the Maximum Purchaser Group Invested Amount ( i.e ., the unutilized purchase
35
commitments under the Series 2009-1 Note Purchase Agreement) for such Series 2009-1 Noteholders Investor Group.
Series 2009-1 Principal Allocation has the meaning specified in Section 3.2 (a)(ii) of this Series Supplement.
Series 2009-1 Rapid Amortization Payment Period means, with respect to any Payment Date during the Series 2009-1 Rapid Amortization Period, the period from but excluding the Determination Date immediately preceding the prior Payment Date (or, in the case of the first Payment Date during the Series 2009-1 Rapid Amortization Period, the period from and including the date of the commencement of such Series 2009-1 Rapid Amortization Period) to and including the Determination Date immediately preceding such Payment Date; provided that any Monthly Base Rent paid by the Lessee under the HVF Lease on a Payment Date during the Series 2009-1 Rapid Amortization Period shall be deemed to have been received during the Series 2009-1 Rapid Amortization Payment Period with respect to such Payment Date.
Series 2009-1 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 2009-1 Notes, and ending upon the earlier to occur of (i) the date on which (A) the Series 2009-1 Notes are fully paid and (B) the termination of the Indenture.
Series 2009-1 Rating Agency Condition means, with respect to the Series 2009-1 Notes and any action, including the issuance of an additional Series of Notes, that Moodys shall have notified HVF, the Administrative Agent and the Trustee in writing that such action will not result in a reduction or withdrawal of its then-current ratings of the Series 2009-1 Notes.
Series 2009-1 Repurchase Amount has the meaning specified in Section 6.1 of this Series Supplement.
Series 2009-1 Required Adjusted Asset Amount means, as of any date of determination, the sum of (i) the excess, if any, of (A) the Series 2009-1 Principal Amount as of such date over (B) the sum of (1) the amount of cash and Permitted Investments on deposit in the Series 2009-1 Excess Collection Account and (2) the amount of cash and Permitted Investments on deposit in the Series 2009-1 Collection Account that, in the case of each of (i)(B)(1) and (i)(B)(2), is required to be applied to reduce the Series 2009-1 Principal Amount, as of such date and (ii) the Series 2009-1 Required Overcollateralization Amount as of such date.
Series 2009-1 Required Asset Amount means, as of any date of determination, the sum of (i) the Series 2009-1 Adjusted Principal Amount as of such date and (ii) the Series 2009-1 Required Overcollateralization Amount as of such date.
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Series 2009-1 Required Asset Amount Percentage means, as of any date of determination, the percentage equivalent of a fraction, the numerator of which is the Series 2009-1 Required Asset Amount and the denominator of which is the Aggregate Required Asset Amount as of such date.
Series 2009-1 Required Enhancement Amount means, as of any date of determination, the sum of (i) the product of (x) the Series 2009-1 Required Enhancement Percentage as of such date and (y) the Series 2009-1 Adjusted Principal Amount as of such date and (ii) the Series 2009-1 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 2009-1 Required Enhancement Amount shall equal the lesser of (x) the Series 2009-1 Adjusted Principal Amount as of such date and (y) the sum of (l) the product of the Series 2009-1 Required Enhancement Percentage as of such date of determination and the Series 2009-1 Adjusted Principal Amount as of the date of the occurrence of such Limited Liquidation Event of Default and (2) the Series 2009-1 Required Incremental Enhancement Amount as of such date of determination.
Series 2009-1 Required Enhancement Percentage means, as of any date of determination, the greater of (a) 50%, and (b) the sum of (i) the product of (A) the Series 2009-1 Lowest Enhancement Percentage as of such date times (B) the Series 2009-1 Lowest Enhancement Vehicle Percentage as of such date plus (ii) the product of (A) the Series 2009-1 Intermediate Enhancement Percentage as of such date times (B) the Series 2009-1 Intermediate Enhancement Vehicle Percentage as of such date plus (iii) the product of (A) the Series 2009-1 Highest Enhancement Percentage as of such date times (B) the Series 2009-1 Highest Enhancement Vehicle Percentage as of such date.
Series 2009-1 Required Incremental Enhancement Amount means
(i) as of the Series 2009-1 Closing Date, $0; and
(ii) as of any date thereafter on which the Series 2009-1 Adjusted Principal Amount is greater than zero, the product of (A) the Series 2009-1 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, Nissan, GM, Kia, 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 2009-1 Maximum Non-Eligible Vehicle Amount as of such immediately preceding Business Day, (2) the excess, if any, of the Hyundai Amount over the Series 2009-1 Maximum Hyundai Amount as of such immediately preceding Business Day, (3) the excess, if any, of the Jaguar Amount over the Series 2009-1 Maximum Jaguar Amount as of such immediately preceding Business Day, (4) the excess, if any, of the Kia Amount over the Series 2009-1 Maximum Kia Amount as of such immediately preceding
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Business Day, (5) the excess, if any, of the Land Rover Amount over the Series 2009-1 Maximum Land Rover Amount as of such immediately preceding Business Day, (6) the excess, if any, of the Mazda Amount over the Series 2009-1 Maximum Mazda Amount as of such immediately preceding Business Day, (7) the excess, if any, of the Mitsubishi Amount over the Series 2009-1 Maximum Mitsubishi Amount as of such immediately preceding Business Day, (8) the excess, if any, of the Subaru Amount over the Series 2009-1 Maximum Subaru Amount as of such immediately preceding Business Day, (9) the excess, if any, of the Suzuki Amount over the Series 2009-1 Maximum Suzuki Amount as of such immediately preceding Business Day, (10) the excess, if any, of the Volvo Amount over the Series 2009-1 Maximum Volvo Amount as of such immediately preceding Business Day, (11) the excess, if any, of the Non-Eligible Manufacturer Amount over the Series 2009-1 Maximum Non-Eligible Manufacturer Amount as of such immediately preceding Business Day, (12) 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, Nissan, GM, Kia, 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 2009-1 Maximum Manufacturer Non-Eligible Vehicle Amount as of such immediately preceding Business Day, (13) the excess, if any of the Audi Amount over the Series 2009-1 Maximum Audi Amount as of such immediately preceding Business Day, (14) the excess, if any of the BMW Amount over the Series 2009-1 Maximum BMW Amount as of such immediately preceding Business Day, (15) the excess, if any of the Ford Amount over the Series 2009-1 Maximum Ford Amount as of such immediately preceding Business Day, (16) the excess, if any of the Honda Amount over the Series 2009-1 Maximum Honda Amount as of such immediately preceding Business Day (17) the excess, if any of the Lexus Amount over the Series 2009-1 Maximum Lexus Amount as of such immediately preceding Business Day, (18) the excess, if any of the GM Amount over the Series 2009-1 Maximum GM Amount as of such immediately preceding Business Day, (19) the excess, if any of the Mercedes Amount over the Series 2009-1 Maximum Mercedes Amount as of such immediately preceding Business Day, (20) the excess, if any of the Chrysler Amount over the Series 2009-1 Maximum Chrysler Amount as of such immediately preceding Business Day (21) the excess, if any of the Nissan Amount over the Series 2009-1 Maximum Nissan Amount as of such immediately preceding Business Day, (22) the excess, if any of the Toyota Amount over the Series 2009-1 Maximum Toyota Amount as of such immediately preceding Business Day, (23) the excess, if any of the Volkswagen Amount over the Series 2009-1 Maximum Volkswagen Amount as of such immediately preceding Business Day, (24) the excess, if any of the Aggregate BMW/Lexus/Mercedes/Audi Amount over the Series 2009-1 Maximum Aggregate BMW/Lexus/Mercedes/Audi Amount as of such immediately preceding Business Day, (25) the excess, if any of the Aggregate Kia/Subaru/Hyundai Amount over the Series 2009-1 Maximum Aggregate Kia/Subaru/Hyundai Amount as of such immediately preceding Business Day, (26) the excess, if any of the HVF Service Vehicle Amount over the Series 2009-1 Maximum HVF Service Vehicle Amount as of
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such immediately preceding Business Day, (27) 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, (28) an amount equal to the excess, if any, of (a) the lesser of (i) the Non-Investment Grade Manufacturer Program Vehicle Amount and (ii) the Series 2009-1 Capped Excess Non-Investment Grade Manufacturer Program Vehicle Amount over (b) the Series 2009-1 First Maximum Non-Investment Grade Manufacturer Program Vehicle Amount, in each case, as of such immediately preceding Business Day and (29) the excess, if any, of the Non-Investment Grade Manufacturer Program Vehicle Amount over the Series 2009-1 Second Maximum Non-Investment Grade Manufacturer 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 2009-1 Maximum Manufacturer Non-Eligible Vehicle Amount for so long as each of Volvo and Mazda is an Affiliate of Ford.
Series 2009-1 Required Liquidity Amount means, as of any date of determination, an amount equal to the product of (i) the Series 2009-1 Required Liquidity Percentage as of such date times (ii) the Series 2009-1 Adjusted Principal Amount as of such date.
Series 2009-1 Required Liquidity Percentage means, as of any date of determination, 6.25%.
Series 2009-1 Required Overcollateralization Amount means, as of any date of determination, the excess, if any, of (a) the Series 2009-1 Required Enhancement Amount as of such date over (b) the sum of (i) the Series 2009-1 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 2009-1 Letter of Credit Amount as of such date.
Series 2009-1 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 2009-1 Required Liquidity Amount over the Series 2009-1 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 2009-1 Letter of Credit if at the time of such calculation (A) such Series 2009-1 Letter of Credit shall not be in full force and effect, (B) an Event of Bankruptcy shall have occurred with respect to the Series 2009-1 Letter of Credit Provider of such Series 2009-1 Letter of Credit, (C) such Series 2009-1 Letter of Credit Provider shall have repudiated such Series 2009-1 Letter of Credit or failed to honor a draw thereon made in accordance with the terms thereof or (D) a Series 2009-1 Downgrade Event shall have occurred and be continuing for at least 30 days with respect to the Series 2009-1 Letter of Credit Provider of such Series 2009-1 Letter of Credit and (b) the excess, if any, of the Series 2009-1 Required Enhancement Amount over the Series 2009-1 Adjusted Enhancement Amount (excluding therefrom the Series 2009-1 Available Reserve Account Amount), in each case, as of such date.
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Series 2009-1 Reserve Account has the meaning specified in Section 3.8(a) of this Series Supplement.
Series 2009-1 Reserve Account Collateral has the meaning specified in Section 3.8(d) of this Series Supplement.
Series 2009-1 Reserve Account Surplus means, with respect to any date of determination, the excess, if any, of the Series 2009-1 Available Reserve Account Amount (after giving effect to any deposits thereto and withdrawals and releases therefrom on such date) over the Series 2009-1 Required Reserve Account Amount, in each case, as of such date.
Series 2009-1 Revolving Period means the period from and including the Series 2009-1 Closing Date to the commencement of the earlier of (i) the Series 2009-1 Rapid Amortization Period or (ii) the Series 2009-1 Controlled Amortization Period.
Series 2009-1 Second Maximum Non-Investment Grade Manufacturer Program Vehicle Amount means, as of any day, an amount equal to 75% of the Adjusted Aggregate Asset Amount.
Series 2009-1 Series Account Collateral has the meaning specified in Section 3.1(d) of this Series Supplement.
Series 2009-1 Series Accounts has the meaning specified in Section 3.1(a) of this Series Supplement.
Series 2009-1 Standard & Poors Enhancement Amount means, as of any date of determination, the sum of (i) the product of (x) the Series 2009-1 Standard & Poors Enhancement Percentage as of such date and (y) the Series 2009-1 Adjusted Principal Amount as of such date, (ii) the Series 2009-1 Required Incremental Enhancement Amount as of such date and (iii) the Series 2009-1 Standard & Poors Additional 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 2009-1 Standard & Poors Enhancement Amount shall equal the lesser of (x) the Series 2009-1 Adjusted Principal Amount as of such date and (y) the sum of (l) the product of the Series 2009-1 Standard & Poors Enhancement Percentage as of such date of determination and the Series 2009-1 Adjusted Principal Amount as of the date of the occurrence of such Limited Liquidation Event of Default, (2) the Series 2009-1 Required Incremental Enhancement Amount as of such date of determination and (3) the Series 2009-1 Standard & Poors Additional Incremental Enhancement Amount as of such date.
Series 2009-1 Standard & Poors Enhancement Percentage means, as of any date of determination, the sum of (a) 50% 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 2009-1 Closing Date) and (y) the lowest Market
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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 2009-1 Closing Date).
Series 2009-1 Standard & Poors Additional Incremental Enhancement Amount means, as of any date of determination, the excess, if any, of (a) Standard & Poors Ineligible Receivable Manufacturer Receivable Amount as of such date over (b) Ineligible Receivable Manufacturer Receivable Amount as of such date.
Series 2009-1 Standard & Poors Additional Enhancement Amount means, as of any date of determination, the excess, if any, of (a) the Series 2009-1 Standard & Poors Enhancement Amount as of such date over (b) the Series 2009-1 Required Enhancement Amount as of such date.
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 Servicers Senior Credit Facilities becoming immediately due and payable and that has not been waived by the lenders under such facilities.
Standard & Poors Ineligible Receivable Manufacturer Receivable Amount means, as of any date of determination, with respect to each Standard & Poors 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 Standard & Poors Ineligible Receivable Manufacturer with respect to Vehicles that are Eligible Vehicles and Eligible Program Vehicles when turned in to and accepted by such Standard & Poors 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 Standard & Poors Ineligible Receivable Manufacturers with respect to Vehicles that were Eligible Vehicles but not Eligible Program Vehicles when turned in to and accepted by such Standard & Poors Ineligible Receivable Manufacturer or delivered and accepted for Auction.
Standard & Poors Ineligible Receivable Manufacturer means, as of any date of determination, each Eligible Manufacturer that as of such date does not have a short-term unsecured debt rating of at least A-1 from Standard & Poors or a long-term unsecured debt rating of at least A from Standard & Poors; provided that if the rating of a Manufacturer by Standard and Poors is withdrawn or a Manufacturer is downgraded by Standard & Poors to a rating that would require inclusion of such Manufacturer in this definition, then for purposes of this definition, such Manufacturer shall be deemed to have a short-term unsecured debt rating of at least A-1 from Standard & Poors or long-term unsecured debt rating of at least A from Standard & Poors, as the case may be, 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
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downgrade and (ii) the date on which the Trustee or the Administrative Agent notifies the Servicer of such withdrawal or downgrade.
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.
Suzuki 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 Suzuki as of such date.
Toyota 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 Toyota as of such date.
Third Level Ratings Event means, as of any date of determination, with respect to the Series 2009-1 Notes, the Series 2009-1 Notes shall not have explicit public ratings of at least Baa3 by Moodys for a period in excess of thirty (30) consecutive days.
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 Months 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 2009-1 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 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.
Volkswagen Amount means, as of any date of determination, an amount equal to the sum of the Manufacturer Non-Eligible Vehicle Amount and the
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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 2009-1 Notes, a statement substantially in the form of Exhibit F-2 hereto.
Section 2.1. Initial Issuance; Procedure for Increasing the Series 2009-1 Principal Amount .
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Section 2.2. Procedure for Decreasing the Series 2009-1 Principal Amount .
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With respect to the Series 2009-1 Notes only, the following shall apply:
Section 3.1. Series 2009-1 Series Accounts .
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Section 3.2. Allocations with Respect to the Series 2009-1 Notes . The net proceeds from the initial sale of the Series 2009-1 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 2009-1 Interest Rate Caps will be deposited into the Series 2009-1 Collection Account. On each Business Day on which the proceeds of the initial sale of the Series 2009-1 Notes, any Increase or Collections are deposited into the Collection Account (each such date, a Series 2009-1 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 :
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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 2009-1 Accrued Interest Account pursuant to Section 3.3(a) below in respect of all funds available from any Series 2009-1 Interest Rate Caps and Interest Collections processed since the preceding Payment Date and allocated to the holders of the Series 2009-1 Notes.
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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 ).
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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 2009-1 Noteholders from the Series 2009-1 Distribution Account the amount deposited in the Series 2009-1 Distribution Account for the payment of all amounts payable to the Series 2009-1 Noteholders pursuant to Section 3.3 of this Series Supplement.
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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
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released from the Series 2009-1 Distribution Account no later than 4:30 p.m. (New York City time) for credit to the account designated by the Series 2009-1 Noteholders.
Section 3.7. The Administrators 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 2009-1 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 2009-1 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 2009-1 Letters of Credit with respect to a Class of Series 2009-1 Notes required to be given by the Administrator, at the time specified in this Series Supplement, the Trustee shall draw on such Series 2009-1 Letters of Credit with respect to such Class of Series 2009-1 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 2009-1 Letter of Credit.
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(j) Termination of Series 2009-1 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 2009-1 Noteholders and payable from the Series 2009-1 Cash Collateral Account as provided herein, shall withdraw from such Series 2009-1 Cash Collateral Account all amounts on deposit therein and shall pay such amounts, first , pro rata to the Series 2009-1 Letter of Credit Providers, to the extent that there are unreimbursed Series 2009-1 Disbursements due and owing to such Series 2009-1 Letter of Credit Providers, for application in accordance with the provisions of the respective Series 2009-1 Letters of Credit, and second , to HVF any remaining amounts.
Section 3.10. Series 2009-1 Distribution Account .
(a) Establishment of Series 2009-1 Distribution Account . The Trustee shall establish and maintain in the name of the Trustee for the benefit of the Series 2009-1 Noteholders an account (the Series 2009-1 Distribution Account ), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Series 2009-1 Noteholders. The Series 2009-1 Distribution Account shall be an Eligible Deposit Account. If the Series 2009-1 Distribution Account is at any time no longer an Eligible Deposit Account, HVF shall, within 10 Business Days of obtaining knowledge that the Series 2009-1 Distribution Account is no longer an Eligible Deposit Account, establish a new Series 2009-1 Distribution Account that is an Eligible Deposit Account. If a new Series 2009-1 Distribution Account is established, HVF shall instruct the Trustee in writing to transfer all cash and investments from the non-qualifying Series 2009-1 Distribution Account into the new Series 2009-1 Distribution Account. Initially, the Series 2009-1 Distribution Account will be established with the Trustee.
(b) Administration of the Series 2009-1 Distribution Account . The Administrator may instruct the institution maintaining the Series 2009-1 Distribution Account in writing to invest funds on deposit in the Series 2009-1 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 2009-1 Distribution Account), unless any Permitted Investment held in the Series 2009-1 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 2009-1 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 2009-1 Distribution Account shall remain uninvested.
(c) Earnings from Series 2009-1 Distribution Account . All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the
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Series 2009-1 Distribution Account shall be deemed to be on deposit and available for distribution.
(d) Series 2009-1 Distribution Account Constitutes Additional Collateral for Series 2009-1 Notes . In order to secure and provide for the repayment and payment of the Note Obligations with respect to the Series 2009-1 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 2009-1 Noteholders, all of HVFs right, title and interest in and to the following (whether now or hereafter existing or acquired): (i) the Series 2009-1 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 2009-1 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 2009-1 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 2009-1 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 cash (the items in the foregoing clauses (i) through (vi) are referred to, collectively, as the Series 2009-1 Distribution Account Collateral ).
Section 3.11. Trustee as Securities Intermediary .
(a) The Trustee or other Person holding the Series 2009-1 Collection Account, the Series 2009-1 Excess Collection Account, the Series 2009-1 Accrued Interest Account, the Series 2009-1 Reserve Account, the Series 2009-1 Cash Collateral Account or the Series 2009-1 Distribution Account (each a Series 2009-1 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 ) and a bank (as defined in Section 9-102 of the New York UCC), in such capacities, the Securities Intermediary ). If the Securities Intermediary in respect of any Series 2009-1 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 2009-1 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 2009-1 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 2009-1
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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 2009-1 Designated Account;
(iv) Each item of property (whether investment property, security, instrument or cash) credited to a Series 2009-1 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 2009-1 Designated Accounts, the Securities Intermediary shall comply with such entitlement order without further consent by HVF or the Administrator;
(vi) The Series 2009-1 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 Intermediarys jurisdiction and the Series 2009-1 Designated Accounts (as well as the securities entitlements (as defined in Section 8-102(a)(17) of the 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 2009-1 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 2009-1 Designated Accounts, the Securities Intermediary knows of no claim to, or interest, in the Series 2009-1 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 2009-1 Designated Account or in any Financial Asset carried therein, the Securities Intermediary will promptly notify the Trustee, the Administrator and HVF thereof.
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(c) The Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Series 2009-1 Designated Accounts and in all proceeds thereof, and shall be the only person authorized to originate entitlement orders in respect of the Series 2009-1 Designated Accounts.
Section 3.12. Series 2009-1 Interest Rate Caps .
(a) On or prior to the first Increase hereunder, HVF shall acquire one or more Series 2009-1 Interest Rate Caps from an Eligible Interest Rate Cap Provider. At the time of the acquisition of the initial Series 2009-1 Interest Rate Caps, the aggregate notional amount of all Series 2009-1 Interest Rate Caps shall equal the Series 2009-1 Maximum Principal Amount, and the aggregate notional amount of all Series 2009-1 Interest Rate Caps may be reduced to the extent that the Series 2009-1 Maximum Principal Amount is reduced after the acquisition of the initial Series 2009-1 Interest Rate Caps but shall not at any time be less than the Series 2009-1 Maximum Principal Amount at such time. HVF shall acquire one or more additional Series 2009-1 Interest Rate Caps in connection with any increase of the Series 2009-1 Maximum Principal Amount such that the aggregate notional amounts of all Series 2009-1 Interest Rate Caps shall equal the Series 2009-1 Maximum Principal Amount after giving effect to such increase. The strike rate of each Series 2009-1 Interest Rate Cap shall not be greater than 5%. Each Series 2009-1 Interest Rate Cap shall have a term of at least until the Legal Final Payment Date. HVF shall satisfy the Series 2009-1 Rating Agency Condition in connection with its acquisition of any Series 2009-1 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 2009-1 Interest Rate Cap are guaranteed pursuant to a guarantee (in form and substance satisfactory to the Rating Agencies and satisfying the other requirements set forth in the related Series 2009-1 Interest Rate Cap), the related guarantor) fails to satisfy the Moodys First Trigger Required Ratings, then the Interest Rate Cap Provider will be required, pursuant to the terms of the Series 2009-1 Interest Rate Cap, at the Interest Rate Cap Providers expense, to post and maintain collateral pursuant to a credit support annex entered into in connection with the Series 2009-1 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 2009-1 Interest Rate Cap, at such Interest Rate Cap Providers expense, to obtain a replacement interest rate cap on the same terms as the Series 2009-1 Interest Rate Cap (or with such modifications as are acceptable to the Rating Agencies) from an Eligible Interest Rate Cap Provider and, simultaneously with such replacement, HVF shall terminate the Series 2009-1 Interest Rate Cap being replaced; provided that no termination of the Series 2009-1 Interest Rate Cap shall occur until HVF has entered into a replacement Series 2009-1 Interest Rate Cap. Each Series 2009-1 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 2009-1 Interest Rate Cap, then the
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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 2009-1 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 2009-1 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 2009-1 Noteholder by its acceptance of a Series 2009-1 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 2009-1 Interest Rate Cap, (B) does not constitute collateral for the Series 2009-1 Notes (provided that in order to secure and provide for the payment of the Note Obligations with respect to the Series 2009-1 Notes, HVF has pledged each Series 2009-1 Interest Rate Cap and its security interest in any collateral posted in connection therewith as collateral for the Series 2009-1 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 2009-1 Interest Rate Cap and such collateral is applied in accordance with the terms of such Series 2009-1 Interest Rate Cap to satisfy such defaulted obligations of such Interest Rate Cap Provider.
(e) HVF shall require all proceeds of each Series 2009-1 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 2009-1 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 2009-1 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 2009-1 Noteholders, all of HVFs right, title and interest, whether now or hereafter existing or acquired, in the Series 2009-1 Interest Rate Caps and all proceeds thereof.
Section 3.13. Series 2009-1 Demand Note Constitutes Additional Collateral for Series 2009-1 Notes .
(a) In order to secure and provide for the repayment and payment of the Note Obligations with respect to the Series 2009-1 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 2009-1 Noteholders, all of HVFs right, title and interest in and to the following (whether now or hereafter existing or acquired): (i) the Series 2009-1
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Demand Note; (ii) all certificates and instruments, if any, representing or evidencing the Series 2009-1 Demand Note; and (iii) all proceeds of any and all of the foregoing, including cash. On the date hereof, HVF shall deliver to the Trustee, for the benefit of the Series 2009-1 Noteholders, the Series 2009-1 Demand Note, endorsed in blank. The Trustee, for the benefit of the Series 2009-1 Noteholders, shall be the only Person authorized to make a demand for payment on the Series 2009-1 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 2009-1 Demand Note or forgive amounts payable thereunder so that the outstanding principal amount of the Series 2009-1 Demand Note after such reduction or forgiveness is less than the Series 2009-1 Letter of Credit Liquidity Amount. HVF shall not agree, to any amendment of the Series 2009-1 Demand Note without first satisfying the Series 2009-1 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 2009-1 Demand Note or forgive amounts payable thereunder so that the outstanding principal amount of the Series 2009-1 Demand Note after such forgiveness or reduction is less than the greater of (i) the Series 2009-1 Letter of Credit Liquidity Amount and (ii) an amount equal to 3.00% of the Series 2009-1 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 2009-1 Notes and shall constitute the Amortization Events set forth in Section 9.1(j) of the Base Indenture with respect to the Series 2009-1 Notes:
(a) HVF defaults in the payment of any interest on, or other amount payable in respect of, the Series 2009-1 Notes (other than the payments described in clauses (b), (e) and (f) 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 2009-1 Notes when the same becomes due and payable on the applicable Legal Final Payment Date;
(c) a Series 2009-1 Enhancement Deficiency shall occur and continue for at least three (3) Business Days;
(d) a Series 2009-1 Liquidity Deficiency shall occur and continue for at least three (3) Business Days;
(e) all principal of and interest on the Series 2009-1 Notes is not paid in full on or before the Expected Final Payment Date;
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(f) the Series 2009-1 Controlled Amortization Amount is not paid on any Series 2009-1 Controlled Amortization Payment Date and, other than with respect to the final Series 2009-1 Controlled Amortization Payment Date, such failure continues for a period of three (3) Business Days;
(g) the Series 2009-1 Asset Amount shall be less than the Series 2009-1 Required Asset Amount for at least three (3) Business Days;
(h) the Principal Deficit Amount shall be greater than zero;
(i) the Collection Account, any Collateral Account, any Series 2009-1 Series Account, the Series 2009-1 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;
(j) (A) the Series 2009-1 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 2009-1 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 2009-1 Enhancement Deficiency would result from excluding the Series 2009-1 Available Reserve Account Amount from the Series 2009-1 Enhancement Amount or (y) the Series 2009-1 Adjusted Liquidity Amount, excluding therefrom the Series 2009-1 Available Reserve Account Amount, would be less than the Series 2009-1 Required Liquidity Amount;
(k) from and after the funding of the Series 2009-1 Cash Collateral Account, (A) the Series 2009-1 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 2009-1 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 2009-1 Enhancement Deficiency would result from excluding the Series 2009-1 Available Cash Collateral Account Amount from the Series 2009-1 Enhancement Amount or (y) the Series 2009-1 Adjusted Liquidity Amount, excluding therefrom the Series 2009-1 Available Cash Collateral Account Amount, would be less than the Series 2009-1 Required Liquidity Amount;
(l) a Change of Control shall have occurred;
(m) at any time on or after the date of the first Increase hereunder, HVF shall fail to acquire and maintain in force one or more Series 2009-1 Interest Rate Caps at the times and in the notional amounts required by the terms of Section 3.12 of this Series Supplement;
(n) the Trustee shall for any reason cease to have a valid and perfected first priority security interest in the Series 2009-1 Collateral (other than the Series 2009-1
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Reserve Account Collateral and the Series 2009-1 Cash Collateral Account Collateral) or any of the Lessee, HVF or any Affiliate of either so asserts in writing;
(o) the occurrence of a Servicer Event of Default;
(p) the occurrence of a Servicer Default or an Administrator Default;
(q) 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);
(r) HVF fails to comply with any of its other agreements or covenants in, or provisions of, the Series 2009-1 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 2009-1 Noteholders and continues to materially and adversely affect the interests of the Series 2009-1 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;
(s) 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 2009-1 Noteholders and such false representation is not cured for a period of thirty (30) days after the earlier of (i) the 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;
(t) the Administrator fails to comply with any of its other agreements or covenants in, or provisions of, any Related Document (other than any Related Document relating solely to a Segregated Series of Notes) or any representation made by the Administrator in any Related Document (other than any Related Document relating solely to a Segregated Series of Notes) is false and the failure to so comply or such false representation, as the case may be, materially and adversely affects the interests of the Series 2009-1 Noteholders and continues to materially and adversely affect the interests of the Series 2009-1 Noteholders for a period of thirty (30) days after the earlier of (i) the date on which the Administrator 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 the Administrator by the Trustee or to the Administrator and the Trustee by the Administrative Agent;
(u) HVF or the Administrator shall fail to comply with Section 8.01(b) of the Series 2009-1 Note Purchase Agreement ( provided that, if the Series 2009-1 Noteholders are not materially and adversely affected by such failure, such failure must continue for a period of five (5) Business Days after the earlier of (i) the date on which HVF or the Administrator 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 or the Administrator, as applicable, by the Trustee or to HVF or the Administrator, as
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applicable, and the Trustee by the Administrative Agent before such failure shall constitute an Amortization Event);
(v) (I) HVF or the Administrator shall fail to comply with their respective obligations under the Back-Up Administration Agreement in any material respect and the failure to so comply materially and adversely affects the interests of the Series 2009-1 Noteholders and continues to materially and adversely affect the interests of the Series 2009-1 Noteholders for a period of thirty (30) days after the earlier of (i) the date on which HVF or the Administrator, as applicable, 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 and the Administrator by the Trustee or to HVF, the Administrator and the Trustee by the Administrative Agent or (II) the Back-Up Administration Agreement or any material portion thereof shall cease, for any reason, to be in full force and effect or enforceable in accordance with its terms for a period of thirty (30) days after the earlier of (i) the date on which HVF or the Administrator, as applicable, obtains knowledge thereof or (ii) the date on which written notice of thereof shall have been given to HVF and the Administrator by the Trustee or to HVF, the Administrator and the Trustee by the Administrative Agent (unless such failure to be in full force and effect or failure to be enforceable is a result of a breach of the Back-Up Administration Agreement or any portion thereof by HVF or the Administrator, in which case such thirty (30) day grace period shall not apply); or
(w) (I) the Administrator, in its capacity as Servicer, shall fail to comply with its obligations under the Back-Up Disposition Agreement in any material respect and the failure to so comply materially and adversely affects the interests of the Series 2009-1 Noteholders and continues to materially and adversely affect the interests of the Series 2009-1 Noteholders for a period of thirty (30) days after the earlier of (i) the date on which the Administrator or 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 the Administrator and HVF by the Trustee or to the Administrator, HVF and the Trustee by the Administrative Agent or (II) the Back-Up Disposition Agent Agreement or any material portion thereof shall cease, for any reason, to be in full force and effect or enforceable in accordance with its terms for a period of thirty (30) days after the earlier of (i) the date on which HVF or the Administrator, as applicable, obtains knowledge thereof or (ii) the date on which written notice thereof shall have been given to HVF and the Administrator by the Trustee or to HVF, the Administrator and the Trustee by the Administrative Agent (unless such failure to be in full force and effect or failure to be enforceable is a result of a breach of the Back-Up Disposition Agreement or any portion thereof by the Administrator, in its capacity as Servicer, in which case such thirty (30) day grace period shall not apply).
In the case of
(i) any event described in clauses (a) through (n) above, an Amortization Event with respect to the Series 2009-1 Notes will immediately occur without any notice or other action on the part of the Trustee or any Series 2009-1 Noteholder or
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An Amortization Event with respect to the Series 2009-1 Notes described in clauses (a) through (l) , (n) through (q) , (r) (with respect to any agreement, covenant or provision in the Series 2009-1 Notes, the Indenture, this Series Supplement or any other Related Document the amendment or modification of which requires the consent of Series 2009-1 Noteholders holding more than 66 2 / 3 % of the Series 2009-1 Principal Amount or which otherwise prohibits HVF from taking any action without the consent of Series 2009-1 Noteholders holding more than 66 2 / 3 of the Series 2009-1 Principal Amount), (t) , (u) , (v) and (w) above may be waived solely with the written consent of Series 2009-1 Noteholders holding 100% of the Series 2009-1 Principal Amount. An Amortization Event with respect to the Series 2009-1 Notes described in clauses (m), (r) (other than with respect to any agreement, covenant or provision in the Series 2009-1 Notes, the Indenture, this Series Supplement or any other Related Document the amendment or modification of which requires the consent of Series 2009-1 Noteholders holding more than 66 2 / 3 % of the Series 2009-1 Principal Amount or which otherwise prohibits HVF from taking any action without the consent of Series 2009-1 Noteholders holding more than 66 2 / 3 % of the Series 2009-1 Principal Amount) and (s) 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 2009-1 Notes described in clause (n) above shall be curable at any time.
Section 5.1. Issuance of Series 2009-1 Notes . The Series 2009-1 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 2009-1 Noteholders pursuant to and in accordance with the Series 2009-1 Note 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 2009-1 Note Purchase Agreement, the Series 2009-1 Notes will not be permitted to be transferred, assigned, exchanged or otherwise pledged or conveyed by the Series 2009-1 Noteholders. The initial Series 2009-1 Notes issued on the Series 2009-1 Closing Date shall bear a face amount equal to up to the Series 2009-1 Maximum Principal Amount as of the Series 2009-1 Closing Date, and shall be initially issued in a principal amount equal to the Series 2009-1 Initial Principal Amount. Additional Series 2009-1 Notes ( Additional Series 2009-1 Notes ) may be issued subsequent to the Series 2009-1 Closing Date in accordance with Section 2.1
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hereof in connection with the addition of an Additional Investor Group pursuant to Section 9.16 of the Series 2009-1 Note Purchase Agreement. Additional Series 2009-1 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 2009-1 Notes, the Series 2009-1 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 2009-1 Principal Amount such that the principal amount of the Series 2009-1 Notes that are outstanding accurately reflects all such Increases, Decreases and additional issuances.
The Series 2009-1 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 2009-1 Notes, as evidenced by their execution of the Series 2009-1 Notes. The Series 2009-1 Notes may be produced in any manner, all as determined by the officers executing such Series 2009-1 Notes, as evidenced by their execution of such Series 2009-1 Notes. The initial sale of the Series 2009-1 Notes is limited to Persons who have executed the Series 2009-1 Note Purchase Agreement. The sale of Additional Series 2009-1 Notes shall be limited to Persons who become a party to the Series 2009-1 Note Purchase Agreement in accordance with Section 9.16 thereof.
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THIS SERIES 2009-1 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 2009-1 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 PURCHASERS LETTER IN THE FORM OF EXHIBIT E TO THE SERIES 2009-1 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.
The required legends set forth above shall not be removed from the Series 2009-1 Notes except as provided herein.
Section 6.1. Optional Redemption of Series 2009-1 Notes . The Series 2009-1 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
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the Base Indenture at any time. The repurchase price for any Series 2009-1 Note (in each case, the Series 2009-1 Repurchase Amount ) shall equal the sum of (a) the aggregate outstanding principal balance of such Series 2009-1 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 2009-1 Commercial Paper issued at a discount, all accrued and unpaid discount on such Series 2009-1 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 2009-1 Commercial Paper from the date of purchase under this Section 6.1 to the maturity date of such Series 2009-1 Commercial Paper, or (ii) with respect to the portion of such principal balance which was funded with Series 2009-1 Commercial Paper that was not issued at a discount, all accrued and unpaid interest on such Series 2009-1 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 2009-1 Commercial Paper), or (iii) with respect to the portion of such principal balance which was funded other than with Series 2009-1 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 2009-1 Notes pursuant hereto and pursuant to the Series 2009-1 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 2009-1 Notes, in a Microsoft Excel electronic file (or similar electronic file) substantially in the form of Exhibit F-1 , setting forth, inter alia, the following information:
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The Trustee shall provide to the Series 2009-1 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 2009-1 Notes, in a Microsoft Excel electronic file (or similar electronic file) substantially in the form of Exhibit F-2 , setting forth, inter alia, the following information:
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Promptly upon its receipt thereof, the Trustee shall provide to the Series 2009-1 Noteholders, or their designated agent, copies of each Weekly Noteholders Statement.
Exhibit A-1: |
Series 2009-1 Variable Funding Rental Car Asset Backed Notes |
Exhibit B: |
Form of Series 2009-1 Letter of Credit |
Exhibit C: |
Form of Lease Payment Deficit Notice |
Exhibit D: |
Form of Series 2009-1 Letter of Credit Reduction Notice |
Exhibit E: |
Form of Purchasers Letter |
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Exhibit F-1: |
Form of Monthly Noteholders Statement |
Exhibit F-2: |
Form of Weekly Noteholders Statement |
Exhibit G-1: |
Form of Demand Notice |
Exhibit G-2: |
Form of Series 2009-1 Demand Note |
Exhibit H: |
Form of Estimated Interest Adjustment Notice |
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 2009-1 Noteholders, Opinion of Counsel and Officers Certificate delivered to the Trustee pursuant to this Series Supplement or any other Related Document (other than any Related Document relating solely to any Segregated Series of Notes). 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 2009-1 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 2009-1 Note Purchase Agreement. In the event that the Annualized Financing Cost, calculated with respect to the amounts payable in any Series 2009-1 Interest Period, exceeds 10%, HVF shall provide Moodys 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. Ford shall be an express third party beneficiary of the Base Indenture and this Series Supplement, in each case solely to the extent any clause or section of either the Base Indenture or the Series Supplement grants a right to, or provides for a right of, Ford, requires Ford to receive information, or requires Fords consent.
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.
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 2009-1 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
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Supplement, such requirement shall be satisfied if such amendment or modification is consented to by the Required Noteholders with respect to the Series 2009-1 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 2009-1 Notes (or reduce the principal amount of or rate of interest on the Series 2009-1 Notes), alter any provisions (including any relevant definitions) relating to the pro rata treatment of payments to the Series 2009-1 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 2009-1 Noteholders or each Series 2009-1 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; provided , further , that, if the Series 2009-1 Notes are downgraded below Aa3, A3 and/or Baa3 by Moodys, each Series 2009-1 Noteholder, each Conduit Investor and each Committed Note Purchaser shall be deemed to have consented to any such amendment or modification required by the Rating Agencies to restore such Aa3 rating, A3 rating and/or Baa3 rating, 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. Old GM Vehicles and Old Chrysler Vehicles . HVF shall not purchase any Vehicles manufactured by Old GM or Old Chrysler on or after the date hereof.
Section 6.12. Termination of Series Supplement . This Series Supplement shall cease to be of further effect when (i) all Outstanding Series 2009-1 Notes theretofore authenticated and issued have been delivered (other than destroyed, lost, or stolen Series 2009-1 Notes which have been replaced or paid) to the Trustee for cancellation, (ii) HVF has paid all sums payable hereunder and (iii) the Series 2009-1 Demand Note Payment Amount is equal to zero or the Series 2009-1 Letter of Credit Liquidity Amount is equal to zero.
Section 6.13. 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 6.12 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 2009-1 Notes without the consent of the Required Noteholders with respect to the Series 2009-1 Notes.
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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: |
/s/ R. Scott Massengill |
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Name: R. Scott Massengill |
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Title: Vice President & 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: |
/s/ John D. Ask |
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Name: John D. Ask |
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Title: Senior Associate |
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EXHIBIT A
TO
SERIES 2009-1 SUPPLEMENT
FORM OF SERIES 2009-1 VARIABLE FUNDING
RENTAL CAR ASSET BACKED NOTE
RENTAL CAR ASSET BACKED NOTE
SERIES 2009-1 VARIABLE FUNDING
REGISTERED |
$[] |
No. R- [ ]
SEE REVERSE FOR CERTAIN CONDITIONS
THIS SERIES 2009-1 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 2009-1 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 PURCHASERS LETTER IN THE FORM OF EXHIBIT E TO THE SERIES 2009-1 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 2009-1 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 Bank of America, N.A., as funding agent for Bank of America, N.A., as a Committed Note Purchaser, and Kitty Hawk Funding Corporation, as a Conduit Investor (the Series 2009-1 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 2009-1 Note shall be due on the Legal Final Payment Date. The Company will pay interest on this Series 2009-1 Note at the Series 2009-1 Note Rate. Such interest shall be payable on each Payment Date until the principal of this Series 2009-1 Note is paid or made available for payment, to the extent funds are available from Interest Collections allocable to the Series 2009-1 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 2009-1 Note, to the extent funds are available from Interest Collections allocable to the Series 2009-1 Note, on the dates set forth in Section 3.3 of the Series 2009-1 Supplement. Pursuant to Sections 2.1 and 2.2 of the Series 2009-1 Supplement and Sections 2.02 and 2.03 of the Series 2009-1 Note Purchase Agreement, the principal amount of this Series 2009-1 Note shall be subject to Increases and Decreases on any Business Day during the Series 2009-1 Revolving Period, and accordingly, such principal amount is subject to prepayment at any time. During the Series 2009-1 Revolving Period, this Series 2009-1 Note is subject to mandatory prepayment, to the extent funds have been allocated to the Series 2009-1 Excess Collection Account and are available therefor, in accordance with Section 2.2(a) of the Series 2009-1 Supplement. During the Series 2009-1 Controlled Amortization Period, the principal of this Series 2009-1 Note shall be paid in installments on each Series 2009-1 Controlled Amortization Payment Date to the extent of funds available for payment therefor pursuant to the Indenture. Beginning on the first Payment Date following the occurrence of a Series 2009-1 Amortization Event, subject to cure in accordance with the Series 2009-1 Supplement, the principal of this Series 2009-1 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 2009-1 Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Series 2009-1 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. Except as otherwise provided in the Indenture, payments made by the Company with respect to this Series 2009-1 Note shall be applied first to interest due and payable on this Series 2009-1 Note as provided above and then to the unpaid principal of this Series 2009-1 Note. This Series 2009-1 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 2009-1 Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Series 2009-1 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 2009-1 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 AdministrationStructured Finance.
Unless the certificate of authentication hereon has been executed by the Trustee whose name appears below by manual signature, this Series 2009-1 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.
IN WITNESS WHEREOF, the Company has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer.
Dated: September , 2009
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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 |
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is a Series 2009-1 Note, a series issued under the within-mentioned Indenture.
Dated: September , 2009
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THE BANK OF NEW YORK
MELLON
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as Trustee |
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By: |
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Authorized Signatory |
REVERSE OF SERIES 2009-1 NOTE
This Series 2009-1 Note is one of a duly authorized issue of Notes of the Company, designated as its Series 2009-1 Variable Funding Rental Car Asset Backed Notes (herein called the Series 2009-1 Note ), issued under (i) a Third Amended and Restated Base Indenture, dated as of September 18, 2009 (such Third Amended and Restated Base Indenture, as further amended, supplemented 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 2009-1 Supplement, dated as of September 18, 2009 (such Series 2009-1 Supplement, as further amended, supplemented or modified, is herein referred to as the Series 2009-1 Supplement ), between the Company and the Trustee. The Base Indenture and the Series 2009-1 Supplement are referred to herein as the Indenture . Except as set forth in the Series 2009-1 Supplement, the Series 2009-1 Note is subject to all terms of the Indenture. All terms used in this Series 2009-1 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 2009-1 Note is and will be equally and ratably secured by the Collateral pledged as security therefor as provided in the Base Indenture and the Series 2009-1 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, 2009.
As described above, the entire unpaid principal amount of this Series 2009-1 Note shall be due and payable on the Legal Final Payment Date, in accordance with Section 3.5(c) of the Series 2009-1 Supplement. Notwithstanding the foregoing, this Series 2009-1 Note is subject to mandatory prepayment, to the extent funds have been allocated to the Series 2009-1 Excess Collection Account and are available therefor, in accordance with the Indenture, during the Series 2009-1 Controlled Amortization Period, principal of this Note may be paid earlier, as described in the Indenture, and if an Amortization Event with respect to the Series 2009-1 Notes shall have occurred and be continuing then, in certain circumstances, principal of the Series 2009-1 Note may be paid earlier, as described in the Indenture. All principal payments of the Series 2009-1 Note shall be made to the Series 2009-1 Noteholders.
Payments of interest on this Series 2009-1 Note are due and payable on each Payment Date or such other date as may be specified in the Series 2009-1 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 2009-1 Note, shall be made by wire transfer to the Holder of record of this Series 2009-1 Note (or one or more predecessor Series 2009-1 Notes) on
the Note Register as of the close of business on each Record Date. Any reduction in the principal amount of this Series 2009-1 Note (or one or more predecessor Series 2009-1 Notes) effected by any payments made on any Payment Date shall be binding upon all future Holders of this Series 2009-1 Note and of any Series 2009-1 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 2009-1 Note Rate to the extent lawful.
Subject to the terms of the Indenture and the Series 2009-1 Note Purchase Agreement, the holder of any Series 2009-1 Note may transfer the same in whole or in part, in an amount equivalent to an authorized denomination, by surrendering such Series 2009-1 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 2009-1 Supplement. In exchange for any Series 2009-1 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 2009-1 Notes for the same aggregate principal amount as was transferred. In the case of the transfer of any Series 2009-1 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 2009-1 Notes for the aggregate principal amount that was not transferred. No transfer of any Series 2009-1 Note shall be made unless the request for such transfer is made by each Series 2009-1 Noteholder at such office. Upon the issuance of transferred Series 2009-1 Notes, the Trustee shall recognize the Holders of such Series 2009-1 Note as Series 2009-1 Noteholders.
Each Series 2009-1 Noteholder, by acceptance of a Series 2009-1 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 2009-1 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 constituting Collateral for any and all liabilities, obligations and undertakings contained in the Indenture or in this Series 2009-1 Note, to the extent provided for in the Indenture.
Each Series 2009-1 Noteholder, by acceptance of a Series 2009-1 Note, covenants and agrees that by accepting the benefits of the Indenture that such Series 2009-1 Noteholder will not, for a period of one year and one day following payment in full of the Series 2009-1 Notes and each other Series of Indenture 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 bankruptcy or similar law in connection with any obligations relating to the Indenture Notes, the Indenture or the Related Documents.
Prior to the due presentment for registration of transfer of this Series 2009-1 Note, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Series 2009-1 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 2009-1 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 2009-1 Noteholder that, for Federal, state and local income and franchise tax purposes and any other tax imposed on or measured by income, the Series 2009-1 Note will evidence indebtedness secured by the Collateral. Each Series 2009-1 Noteholder, by the acceptance of this Series 2009-1 Note, agrees to treat this Series 2009-1 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 2009-1 Notes under the Indenture at any time by the Company with the consent of the Required Noteholders with respect to the Series 2009-1 Notes. The Indenture also contains provisions permitting the Holders of Series 2009-1 Notes representing specified percentages of the aggregate outstanding amount of the Series 2009-1 Notes, on behalf of the Holders of all the Series 2009-1 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 2009-1 Notes. To the extent set forth in the Indenture, any amendment or other modification to the Series 2009-1 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 2009-1 Notes (or reduce the principal amount of or rate of interest on the Series 2009-1 Notes), alter any provisions (including, without limitation, any relevant definitions) relating to the pro rata treatment of payments to the Series 2009-1 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 2009-1 Noteholders or each Series 2009-1 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 2009-1 Note (or any one or more predecessor Series 2009-1 Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Series 2009-1 Note and of any Series 2009-1 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 2009-1 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 2009-1 Notes issued thereunder.
The term Company as used in this Series 2009-1 Note includes any successor to the Company under the Indenture.
The Series 2009-1 Note is issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations set forth therein.
This Series 2009-1 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 2009-1 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 2009-1 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; provided , that, notwithstanding anything to the contrary herein or in the Indenture, the Series 2009-1 Noteholders shall not have recourse to any Series-Specific Collateral.
INCREASES AND DECREASES
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the within Series 2009-1 Note and all rights thereunder, and hereby irrevocably constitutes and appoints , attorney, to transfer said Series 2009-1 Note on the books kept for registration thereof, with full power of substitution in the premises.
Dated: |
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(1) |
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Signature Guaranteed: |
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Name: |
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Title: |
(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 2009-1 Note in every particular, without alteration, enlargement or any change whatsoever.
EXHIBIT B
TO
SERIES 2009-1 SUPPLEMENT
FORM OF SERIES 2009-1 LETTER OF CREDIT
FORM OF SERIES 2009-1 LETTER OF CREDIT
NO. [ ]
September [ ], 2009
Beneficiary:
The Bank of New York Mellon Trust Company, N.A.
as Trustee
under the Series 2009-1 Supplement
referred to below
2 North LaSalle Street
Chicago, Illinois 60602
Attention: [Corporate Trust AdministrationStructured 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 2009-1 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 Beneficiarys favor on Beneficiarys behalf as Trustee under the Series 2009-1 Supplement, dated as of September 18, 2009 (as such agreement may be amended, supplemented, amended and restated or otherwise modified from time to time, the Series 2009-1 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 Third Amended and Restated Base Indenture, dated as of September 18, 2009 (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 2009-1 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 Banks Office ) on [ ] (or, if such date is not a Business Day (as defined below), the immediately succeeding Business Day) (the Series 2009-1 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 2009-1 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 Trustees drafts, each drawn on the Issuing Bank at the Issuing Banks Office, payable at sight on a Business Day (as defined below), and accompanied by the Trustees 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 2009-1 Letter of Credit Amount as in effect on such Business Day, (2) in one or more drawings by one or more of the Trustees drafts, drawn on the Issuing Bank at the Issuing Banks Office, payable at sight on a Business Day, and accompanied by the Trustees 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 2009-1 Letter of Credit Amount as in effect on such Business Day, (3) in one or more drawings by one or more of the Trustees drafts, drawn on the Issuing Bank at the Issuing Banks Office, payable at sight on a Business Day, and accompanied by the Trustees 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 2009-1 Letter of Credit Amount as in effect on such Business Day and (4) in one or more drawings by one or more of the Trustees drafts, drawn on the Issuing Bank at the Issuing Banks Office, payable at sight on a Business Day, and accompanied by the Trustees 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 2009-1 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 2009-1 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 2009-1 Letter of Credit Amount presented to it hereunder, the
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amount available to be drawn under this Series 2009-1 Letter of Credit Amount shall automatically be reduced to zero and this Series 2009-1 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 2009-1 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(d)(i) of the Series 2009-1 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 2009-1 Letter of Credit Amount shall, in no event, be reinstated to an amount in excess of the then current Series 2009-1 Letter of Credit Amount (without giving effect to any reduction to the Series 2009-1 Letter of Credit Amount that resulted from such Credit Demand or Unpaid Demand Note Demand).
The Series 2009-1 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 2009-1 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 2009-1 Letter of Credit Amount has been increased and setting forth the amount of such increase, which increase shall not result in the Series 2009-1 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 Banks 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 2009-1 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 Beneficiarys 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 2009-1 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 Beneficiarys payment instructions. If Beneficiary so requests to the Issuing Bank, payment under this Series 2009-1 Letter of Credit may be made by wire transfer of Federal Reserve Bank of New York funds to Beneficiarys 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
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Issuing Bank under this Series 2009-1 Letter of Credit shall be made with the Issuing Banks 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 2009-1 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 2009-1 Letter of Credit and (iii) the Series 2009-1 Letter of Credit Expiration Date, this Series 2009-1 Letter of Credit shall automatically terminate and Beneficiary shall surrender this Series 2009-1 Letter of Credit to the undersigned Issuing Bank on such day.
This Series 2009-1 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 2009-1 Supplement, and may be successively transferred. Transfer of this Series 2009-1 Letter of Credit to such transferee shall be effected by the presentation to the Issuing Bank of this Series 2009-1 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 2009-1 Letter of Credit to (or to the order of) the transferee or, if so requested by Beneficiarys transferee, issue a letter of credit to (or to the order of) Beneficiarys transferee with provisions therein consistent with this Series 2009-1 Letter of Credit.
This Series 2009-1 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 2009-1 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 2009-1 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 Banks 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 2009-1 Letter of Credit or (ii) to effect payment under this Series 2009-1 Letter of Credit if a drawing which otherwise conforms to the terms and conditions of this Series 2009-1 Letter is made prior to the earlier of (A) the thirtieth day after the resumption of business and (B) the Series 2009-1 Letter of Credit Expiration Date and (ii) Article 41 of the Uniform Customs shall not apply to this Series 2009-1 Letter of Credit as drawings hereunder shall not be deemed to be installments for purposes thereof.
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Communications with respect to this Series 2009-1 Letter of Credit shall be in writing and shall be addressed to the Issuing Bank at the Issuing Banks Office, specifically referring to the number of this Series 2009-1 Letter of Credit.
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Very truly yours, |
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5
ANNEX A
CERTIFICATE OF CREDIT DEMAND
[Issuing Banks Address]
Attention: [Global Loan Operations, Standby Letter of Credit Unit]
Certificate of Credit Demand under the Irrevocable Letter of Credit No. [ ] (the Series 2009-1 Letter of Credit ), dated September [ ], 2009, 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 2009-1 Letter of Credit or, if not defined therein, the Series 2009-1 Supplement (as defined in the Series 2009-1 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 2009-1 Supplement referred to in the Series 2009-1 Letter of Credit.
2. [A Series 2009-1 Lease Interest Payment Deficit exists and, pursuant to Section 3.3(d) of the Series 2009-1 Supplement, an amount equal to the Issuing Banks Pro Rata Share of the least of (i) such Series 2009-1 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 2009-1 Supplement over the amounts available from the Series 2009-1 Accrued Interest Account plus the amount withdrawn from the Series 2009-1 Reserve Account pursuant to Section 3.3(c) of the Series 2009-1 Supplement and (iii) the Series 2009-1 Letter of Credit Liquidity Amount as of the date hereof](2)
[A Series 2009-1 Lease Interest Payment Deficit exists and, pursuant to Section 3.3(d) of the Series 2009-1 Supplement, an amount equal to the Issuing Banks Pro Rata Share of the product of (x) 100% minus the Series 2009-1 Cash Collateral Percentage and (y) the least of (i) such Series 2009-1 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 2009-1 Supplement over the amounts available from the Series 2009-1 Accrued Interest Account plus the amount withdrawn from the Series 2009-1 Reserve Account
(1) If Trustee under the Series 2009-1 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 2009-1 Lease Interest Payment Deficit and if no Series 2009-1 Cash Collateral Account has been established and funded.
A-1
pursuant to Section 3.3(c) of the Series 2009-1 Supplement and (iii) the Series 2009-1 Letter of Credit Liquidity Amount as of the date hereof](3)
[A Series 2009-1 Lease Principal Payment Deficit exists after giving effect to the distribution of amounts to be deposited in the Series 2009-1 Distribution Account in accordance with Section 3.5(b)(i) of the Series 2009-1 Supplement and, pursuant to Section 3.5(b)(ii) of the Series 2009-1 Supplement, an amount equal to the Issuing Banks Pro Rata Share of the lesser of (i) the excess, if any, of the Series 2009-1 Lease Principal Payment Deficit over the amount, if any, withdrawn from the Series 2009-1 Reserve Account in accordance with Section 3.5(b)(i) of the Series 2009-1 Supplement, [and] (ii) the Series 2009-1 Letter of Credit Liquidity Amount as of the date hereof (after giving effect to any drawings on the Series 2009-1 Letters of Credit pursuant to Section 3.3(d) of the Series 2009-1 Supplement) [and (iii) the excess, if any, of the Principal Deficit Amount over the over the amount, if any, withdrawn from the Series 2009-1 Reserve Account in accordance with Section 3.5(b)(i) of the Series 2009-1 Supplement](4) ](5)
[A Series 2009-1 Lease Principal Payment Deficit exists after giving effect to the distribution of amounts to be deposited in the Series 2009-1 Distribution Account in accordance with Section 3.5(b)(i) of the Series 2009-1 Supplement and, pursuant to Section 3.5(b)(ii) of the Series 2009-1 Supplement, an amount equal to the Issuing Banks Pro Rata Share of the product of (x) 100% minus the Series 2009-1 Cash Collateral Percentage and (y) the lesser of (i) the excess, if any, of the Series 2009-1 Lease Principal Payment Deficit over the amount, if any, withdrawn from the Series 2009-1 Reserve Account in accordance with Section 3.5(b)(i) of the Series 2009-1 Supplement, [and] (ii) the Series 2009-1 Letter of Credit Liquidity Amount as of the date hereof (after giving effect to any drawings on the Series 2009-1 Letters of Credit pursuant to Section 3.3(d) of the Series 2009-1 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 2009-1 Lease Interest Payment Deficit and if the Series 2009-1 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 2009-1 Lease Principal Payment Deficit on any Payment Date and if no Series 2009-1 Cash Collateral Account has been established and funded.
A-2
2009-1 Reserve Account in accordance with Section 3.5(b)(i) of the Series 2009-1 Supplement](6) ](7)
has been allocated to making a drawing under the Series 2009-1 Letter of Credit.
3. The Trustee is making a drawing under the Series 2009-1 Letter of Credit as required by Section[s] [3.3(d) and/or 3.5(b)(ii) ](8) of the Series 2009-1 Supplement for an amount equal to $ , which amount is a Series 2009-1 LOC Credit Disbursement (the Series 2009-1 LOC Credit Disbursement ) and is equal to the amount allocated to making a drawing on the Series 2009-1 Letter of Credit under such Section [3.3(d) and/or 3.5(b)(ii) ](9) of the Series 2009-1 Supplement as described above. The Series 2009-1 LOC Credit Disbursement does not exceed the amount that is available to be drawn by the Trustee under the Series 2009-1 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 2009-1 Letter of Credit, upon the Issuing Bank honoring the draft accompanying this certificate, the Series 2009-1 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 2009-1 Lease Principal Payment Deficit on any Payment Date and the Series 2009-1 Cash Collateral Account has been established and funded.
(8) Use reference to Section 3.3(d) of the Series 2009-1 Supplement in case of a Series 2009-1 Lease Interest Payment Deficit and/or Section 3.5(b)(ii) of the Series 2009-1 Supplement in case of a Series 2009-1 Lease Principal Payment Deficit.
(9) Use reference to Section 3.3(d) of the Series 2009-1 Supplement in case of a Series 2009-1 Lease Interest Payment Deficit and/or Section 3.5(b)(ii) of the Series 2009-1 Supplement in case of a Series 2009-1 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
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as Trustee |
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Title: |
(11) See footnote 1 above.
A-4
ANNEX B
CERTIFICATE OF UNPAID DEMAND NOTE DEMAND
[Issuing Banks 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 2009-1 Letter of Credit ), dated September [ ], 2009, 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 2009-1 Letter of Credit or, if not defined therein, the Series 2009-1 Supplement (as defined in the Series 2009-1 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 2009-1 Supplement referred to in the Series 2009-1 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 2009-1 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 2009-1 Supplement, an amount equal to the Issuing Banks Pro Rata Share
[of the lesser of (i) the amount that Hertz failed to pay under the Series 2009-1 Demand Note (or the amount that the Trustee failed to demand for payment thereunder); and (ii) the Series 2009-1 Letter of Credit Amount as of the date hereof;] (2)
(1) If Trustee under the Series 2009-1 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 2009-1 Cash Collateral Account has been established and funded as of such date.
B-1
[of the product of (x) 100% minus the Series 2009-1 Cash Collateral Account Percentage and (y) the lesser of (i) the amount that Hertz failed to pay under the Series 2009-1 Demand Note (or the amount that the Trustee failed to demand for payment thereunder); and (ii) the Series 2009-1 Letter of Credit Amount as of the date hereof;](3 )
has been allocated to making a drawing on the Series 2009-1 Letter of Credit.
3. Pursuant to Section[s] [3.5(b)(iv)] [3.5(c)(iii)](4) of the Series 2009-1 Supplement, the Trustee is making a drawing under the Series 2009-1 Letter of Credit in an amount equal to $ , which amount is a Series 2009-1 LOC Unpaid Demand Note Disbursement (the Series 2009-1 LOC Unpaid Demand Note Disbursement ) and is equal to the amount allocated to making a drawing on the Series 2009-1 Letter of Credit under Section[s] [3.5(b)(iv)] [3.5(c)(iii)](5) of the Series 2009-1 Supplement as described above. The Series 2009-1 LOC Unpaid Demand Note Disbursement does not exceed the amount that is available to be drawn by the Trustee under the Series 2009-1 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 2009-1 Letter of Credit, upon the Issuing Bank honoring the draft accompanying this certificate, the Series 2009-1 Letter of Credit Amount shall be automatically decreased by an amount equal to such draft.
(3) Use on any Business Day if the Series 2009-1 Cash Collateral Account has been established and funded as of such date.
(4) Use reference to Section 3.5(b)(iv) of the Series 2009-1 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 2009-1 Supplement on the Business Day immediately preceding the Legal Final Payment Date.
(5) Use reference to Section 3.5(b)(iv) of the Series 2009-1 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 2009-1 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 |
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TRUST COMPANY, N.A.](7), |
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as Trustee |
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Title: |
(7) See footnote 1 above.
B-3
ANNEX C
CERTIFICATE OF PREFERENCE PAYMENT DEMAND
[Issuing Banks Address]
Attention: [Global Loan Operations, Standby Letter of Credit Unit]
Certificate of Preference Payment Demand under the Irrevocable Letter of Credit No. [ ] (the Series 2009-1 Letter of Credit ), dated September [ ], 2009, 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 2009-1 Letter of Credit or, if not defined therein, the Series 2009-1 Supplement (as defined in the Series 2009-1 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 2009-1 Supplement referred to in the Series 2009-1 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 2009-1 Supplement, an amount equal to the Issuing Banks Pro Rata Share of [the lesser of (i) the Preference Amount referred to above and (ii) the Series 2009-1 Letter of Credit Liquidity Amount as of the date hereof](3) [the product of (x) 100% minus the Series 2009-1 Cash Collateral Percentage and (y) the lesser of (i) the Preference Amount referred to
(1) If Trustee under the Series 2009-1 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 2009-1 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 2009-1 on the Business Day immediately preceding the Legal Final Payment Date.
(3) Use if no Series 2009-1 Cash Collateral Account has been established and funded as of such date.
C-1
above and (ii) the Series 2009-1 Letter of Credit Liquidity Amount as of the date hereof](4) has been allocated to making a drawing under the Series 2009-1 Letter of Credit.
5. Pursuant to [ Section 3.5(b)(iv) )][3.5(c)(iii)](5) of the Series 2009-1 Supplement, the Trustee is making a drawing in the amount of $ which amount is a Series 2009-1 LOC Preference Payment Disbursement (the Series 2009-1 LOC Preference Payment Disbursement ) and is equal to the amount allocated to making a drawing on the Series 2009-1 Letter of Credit under such [ Section 3.5(b)(iv) )][3.5(c)(iii)] (6) of the Series 2009-1 Supplement as described above. The Series 2009-1 LOC Preference Payment Disbursement does not exc eed the amount that is available to be drawn by the Trustee under the Series 2009-1 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 2009-1 Letter of Credit, upon the Issuing Bank honoring the draft accompanying this certificate, the Series 2009-1 Letter of Credit Amount shall be automatically decreased by an amount equal to such draft.
(4) Use if the Series 2009-1 Cash Collateral Account has been established and funded as of such date.
(5) Use reference to Section 3.5(b)(iv) of the Series 2009-1 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 2009-1 Supplement on the Business Day immediately preceding the Legal Final Payment Date.
(6) Use reference to Section 3.5(b)(iv) of the Series 2009-1 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 2009-1 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
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as Trustee |
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By |
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Title: |
(8) See footnote 1 above.
C-3
ANNEX D
CERTIFICATE OF TERMINATION DEMAND
[Issuing Banks Address]
Attention: [Global Loan Operations, Standby Letter of Credit Unit]
Certificate of Termination Demand under the Irrevocable Letter of Credit No. [ ] (the Series 2009-1 Letter of Credit ), dated September [ ], 2009, 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 2009-1 Letter of Credit Agreement or, if not defined therein, the Series 2009-1 Supplement (as defined in the Series 2009-1 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 2009-1 Supplement referred to in the Series 2009-1 Letter of Credit.
2. [Pursuant to Section 3.9(b) of the Series 2009-1 Supplement, an amount equal to the Issuing Banks Pro Rata Share of the lesser of (x) the greatest of (A) the excess, if any, of the Series 2009-1 Required Enhancement Amount over the Series 2009-1 Adjusted Enhancement Amount, excluding the Series 2009-1 Letter of Credit but taking into account any substitute Series 2009-1 Letter of Credit which has been obtained from a Series 2009-1 Eligible Letter of Credit Provider and is in full force and effect on such date, (B) the excess, if any, of the Series 2009-1 Required Liquidity Amount over the Series 2009-1 Adjusted Liquidity Amount, excluding the Series 2009-1 Letter of Credit but taking into account each substitute Series 2009-1 Letter of Credit which has been obtained from a Series 2009-1 Eligible Letter of Credit Provider and is in full force and effect on such date, and (C) the excess, if any, of the Series 2009-1 Demand Note Payment Amount over the Series 2009-1 Letter of Credit Liquidity Amount, excluding the Series 2009-1 Letter of Credit but taking into account each substitute Series 2009-1 Letter of Credit which has been obtained from a Series 2009-1 Eligible Letter of Credit Provider, and is in full force and effect on such date, and (y) the amount available to be
(1) If Trustee under the Series 2009-1 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 2009-1 Letter of Credit on such date has been allocated to making a drawing under the Series 2009-1 Letter of Credit. ](2)
[The Trustee has not received the notice required from the Administrator pursuant to Section 3.9(b) of the Series 2009-1 Supplement on or prior to the date that is fifteen (15) Business Days prior to each Series 2009-1 Letter of Credit Expiration Date . As such, pursuant to such Section 3.9(b) of the Series 2009-1 Supplement, the Trustee is making a drawing for the full amount of the Series 2009-1 Letter of Credit.] (3)
[Pursuant to Section 3.9(c) of the Series 2009-1 Supplement, an amount equal to the lesser of (i) the greatest of (A) the excess, if any, of the Series 2009-1 Required Enhancement Amount over the Series 2009-1 Adjusted Enhancement Amount, excluding the available amount under the Series 2009-1 Letter of Credit, on such date, (B) the excess, if any, of the Series 2009-1 Required Liquidity Amount over the Series 2009-1 Adjusted Liquidity Amount, excluding the available amount under the Series 2009-1 Letter of Credit, on such date, and (C) the excess, if any, of the Series 2009-1 Demand Note Payment Amount over the Series 2009-1 Letter of Credit Liquidity Amount, excluding the available amount under the Series 2009-1 Letter of Credit, on such date, and (ii) the amount available to be drawn on the Series 2009-1 Letter of Credit on such date has been allocated to making a drawing under the Series 2009-1 Letter of Credit.] (4)
3. [Pursuant to Section [3.9(b) ] (5) [ 3.9(c) ] (6) of the Series 2009-1 Supplement, the Trustee is making a drawing in the amount of $ which is a Series 2009-1 LOC Termination Disbursement (the Series 2009-1 LOC Termination Disbursement ) and is equal to the amount allocated to making a drawing on the Series 2009-1 Letter of Credit under such Section [3.9 (b) ] (7) [3.9(c) ] (8) of the Series 2009-1 Supplement as described above. The Series 2009-1 LOC Termination Disbursement does not exceed the
(2) Use in case of an expiring Series 2009-1 Letter of Credit.
(3) Use if Administrator does not provide the Trustee with notices required under Section 3.9(b) of the Series 2009-1 Supplement with respect to an expiring Series 2009-1 Letter of Credit.
(4) Use in case of Issuing Bank being subject to a Series 2009-1 Downgrade Event.
(5) Use in case of an expiring Series 2009-1 Letter of Credit.
(6) Use in case of a Series 2009-1 Letter of Credit Provider being subject to a Downgrade Event.
(7) Use in case of an expiring Series 2009-1 Letter of Credit.
(8) Use in case of a Series 2009-1 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 2009-1 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.](9) as Trustee]
(9) See footnote 1 above.
D-3
5. The Trustee acknowledges that, pursuant to the terms of the Series 2009-1 Letter of Credit, upon the Issuing Bank honoring the draft accompanying this certificate, the Series 2009-1 Letter of Credit Amount shall be automatically reduced to zero and the Series 2009-1 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
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as Trustee |
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Title: |
(10) See footnote 1 above.
D-4
ANNEX E
CERTIFICATE OF REINSTATEMENT
OF LETTER OF CREDIT AMOUNT
[Issuing Banks 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 2009-1 Letter of Credit ), dated September [ ], 2009, 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](1), as Trustee (in such capacity, the Trustee ) under the Series 2009-1 Supplement and the Base Indenture. Capitalized terms not otherwise defined herein shall have the meanings assigned thereto in the Series 2009-1 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 2009-1 Notes (as defined in the Series 2009-1 Supplement).
3. Hertz hereby notifies you that, pursuant to the terms and conditions of the Series 2009-1 Letter of Credit, the Series 2009-1 Letter of Credit Amount of the Issuing Bank is hereby reinstated in the amount of $[ ] so that the Series 2009-1 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
(1) If the Trustee under the Series 2009-1 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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Title: |
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 undersigneds Series 2009-1 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 2009-1 Letter of Credit Amount by an amount equal to the Reimbursement Amount.
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E-3
ANNEX F
INSTRUCTION TO TRANSFER
[Issuing Banks 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 Banks Address] |
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all rights of the undersigned beneficiary to draw under the above-captioned Letter of Credit (the Series 2009-1 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 2009-1 Supplement (as defined in the Series 2009-1 Letter of Credit).
By this transfer, all rights of the undersigned beneficiary in the Series 2009-1 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 2009-1 Letter of Credit pertaining to transfers.
F-1
The Series 2009-1 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 2009-1 Letter of Credit to our transferee and that the Issuing Bank endorse the Series 2009-1 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 2009-1 Letter of Credit.
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Very truly yours, |
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[THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.], (1) |
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as Trustee |
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Name: |
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Title: |
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(1) If the Trustee under the Series 2009-1 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 2009-1 LETTER OF CREDIT AMOUNT
[Issuing Banks Address]
Attention: [Global Loan Operations, Standby Letter of Credit Unit]
Notice of Reduction of Series 2009-1 Letter of Credit Amount under the Irrevocable Letter of Credit No. [ ] (the Series 2009-1 Letter of Credit ), dated September [ ], 2009, 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.)] (1) , as the Trustee. Capitalized terms not otherwise defined herein shall have the meanings assigned thereto in the Series 2009-1 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 2009-1 Letter of Credit Agreement authorizing it to request a reduction of the Series 2009-1 Letter of Credit Amount to $ and is delivering this notice in accordance with the terms of the Series 2009-1 Letter of Credit Agreement.
2. The Issuing Bank acknowledges that the aggregate maximum amount of the Series 2009-1 Letter of Credit is reduced to $ from $ pursuant to and in accordance with the terms and provisions of the Series 2009-1 Letter of Credit and that the reference in the first paragraph of the Series 2009-1 Letter of Credit to ($ ) is amended to read ($ ).
3. This request, upon your acknowledgment set forth below, shall constitute an amendment to the Series 2009-1 Letter of Credit and shall form an integral part thereof and confirms that all other terms of the Series 2009-1 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 2009-1 Letter of Credit Agreement.
(1) If Trustee under the Series 2009-1 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.](2), |
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THIS DAY OF ,200 : |
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G-2
ANNEX H
NOTICE OF INCREASE OF SERIES 2009-1 LETTER OF CREDIT AMOUNT
[The Bank of New York Mellon Trust Company, N.A.] (1) ,
as Trustee under the
Series 2009-1 Supplement
referred to below
2 North LaSalle Street
Chicago, Illinois 60602
Attention: Corporate Trust AdministrationStructured Finance
Notice of Increase of Series 2009-1 Letter of Credit Amount under the Irrevocable Letter of Credit No. [ ] (the Series 2009-1 Letter of Credit ), dated September [ ], 2009, 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.) ](2) , as the Trustee. Capitalized terms not otherwise defined herein shall have the meanings assigned thereto in the Series 2009-1 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 2009-1 Letter of Credit Amount by $ , which increase shall not result in the Series 2009-1 Letter of Credit Amount exceeding an amount equal to [ ] Dollars ($[ ]).
2. Upon your acknowledgment set forth below, the aggregate maximum amount of the Series 2009-1 Letter of Credit is increased to $ from $ pursuant to and in accordance with the terms and provisions of the Series 2009-1 Letter of Credit and that the reference in the first paragraph of the Series 2009-1 Letter of Credit to ($ ) is amended to read ($ ) .
3. This notice, upon your acknowledgment set forth below, shall constitute an amendment to the Series 2009-1 Letter of Credit and shall form an integral part thereof and confirms that all other terms of the Series 2009-1 Letter of Credit remain unchanged.
(1) If Trustee under the Series 2009-1 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) 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 2009-1 Letter of Credit Agreement.
IN WITNESS WHEREOF, the Issuing Bank has executed and delivered this certificate on this day of , .
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THIS DAY OF , 200 : |
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[THE BANK OF NEW YORK |
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MELLON TRUST COMPANY, N.A.] (3) , |
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(3) See footnote 1 above.
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EXHIBIT C
TO SERIES 2009-1 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 AdministrationStructured Finance
[ ] , 200
Ladies and Gentlemen:
This Lease Payment Deficit Notice is delivered to you pursuant to Section 3.3(b) of the Series 2009-1 Supplement, dated as of September 18, 2009, to the Third Amended and Restated Base Indenture, dated as of September 18, 2009, 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 2009-1 Supplement.
Pursuant to Section 3.3(b) of the Series 2009-1 Supplement, The Hertz Corporation, in its capacity as Administrator under the Related Documents, hereby provides notice of a Series 2009-1 Lease Payment Deficit in the amount of $ (consisting of a Series 2009-1 Lease Interest Payment Deficit in the amount of $ and a Series 2009-1 Lease Principal Payment Deficit in the amount of $ ).
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EXHIBIT D
TO
SERIES 2009-1 SUPPLEMENT
FORM OF REDUCTION NOTICE REQUEST
SERIES 2009-1 LETTER OF CREDIT
The Bank of New York Mellon Trust Company, N.A.,
as Trustee under the
Series 2009-1 Supplement
referred to below
2 North LaSalle Street
Chicago, Illinois 60602
Attention: Corporate Trust AdministrationStructured Finance
Request for reduction of the stated amount of the Series 2009-1 Letter of Credit under the Series 2009-1 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 2009-1 Supplement referred to in the Letter of Credit Agreement (the Series 2009-1 Supplement ) as follows:
1. The Series 2009-1 Letter of Credit Amount and the Series 2009-1 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 2009-1 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 2009-1 Series Supplement to execute and deliver to the Series 2009-1 Letter of Credit Provider a Notice of Reduction substantially in the form of Annex G to the Series 2009-1 Letter of Credit (the Notice of Reduction ) for a reduction (the Reduction ) in the stated amount of the Series 2009-1 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 2009-1 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 2009-1 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 2009-1 Letter of Credit Amount and the Series 2009-1 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 2009-1 Letter of Credit, substantially in the form of Annex G to the Series 2009-1 Letter of Credit, and (c) the Series 2009-1 Letter of Credit Providers acknowledgment of such notice constitutes a representation and warranty to the Series 2009-1 Letter of Credit Provider and the Trustee (i) by the undersigned that each of the statements set forth in the Series 2009-1 Letter of Credit Agreement is true and correct and (ii) by the undersigned, in its capacity as Administrator under the Series 2009-1 Supplement, that (A) the Series 2009-1 Adjusted Enhancement Amount will equal or exceed the Series 2009-1 Required Enhancement Amount, (B) the Series 2009-1 Adjusted Liquidity Amount will equal or exceed the Series 2009-1 Required Liquidity Amount and (C) the Series 2009-1 Letter of Credit Liquidity Amount will equal or exceed the Series 2009-1 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 2009-1 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 2009-1 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 2009-1 Letter of Credit shall be deemed canceled upon receipt by the Series 2009-1 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 2009-1 Supplement.
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IN WITNESS WHEREOF, The Hertz Corporation has executed and delivered this request on this day of , .
THE HERTZ CORPORATION |
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EXHIBIT E
TO
SERIES 2009-1 SUPPLEMENT
FORM OF PURCHASERS LETTER
The Bank of New York Mellon Trust Company, N.A.,
as Registrar
2 North LaSalle Street
Chicago, Illinois 60602
Attention: Corporate Trust AdministrationStructured Finance
Re:
Hertz Vehicle Financing LLC
Series 2009-1 Rental Car Asset Backed Notes
Reference is made to the Series 2009-1 Supplement, dated as of September [15,] 2009 (as from time to time amended, supplemented or otherwise modified in accordance with the terms thereof, the Series 2009-1 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 Third Amended and Restated Base Indenture, dated as of September 18, 2009 (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 2009-1 Supplement.
In connection with a proposed purchase of certain Series 2009-1 Notes from [ ] by the undersigned, the undersigned hereby represents and warrants that:
(1) it has had an opportunity to discuss HVFs and the Administrators 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 2009-1 Notes;
(3) it is purchasing the Series 2009-1 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 2009-1 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 2009-1 Notes, and that any transfer must comply with provisions of Section 2.8 of the Base Indenture;
(5) it understands that the Series 2009-1 Notes will bear the legend set out in the form of Series 2009-1 Notes attached as Exhibit A to the Series 2009-1 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 2009-1 Notes;
(7) it understands that the Series 2009-1 Notes may be offered, resold, pledged or otherwise transferred only with HVFs 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 2009-1 Notes will be pledged by each Conduit Investor pursuant to its related commercial paper program documents, and the Series 2009-1 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 2009-1 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 2009-1 Notes as described in clause (B) or (D) of Section 6.03(g) of the Series 2009-1 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 2009-1 Note Purchase Agreement , the transferee of the Series 2009-1 Notes will be required to deliver a certificate, as described in the Series 2009-1 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 2009-1 Notes (and all securities issued in exchange therefor or substitution thereof) shall bear a legend substantially in the form set forth in the Series 2009-1 Notes included as an exhibit to the Series 2009-1 Supplement. The undersigned understands that the registrar and transfer agent for the Series 2009-1 Notes will not be required to accept for registration of transfer the Series 2009-1 Notes acquired by it, except upon presentation of an executed letter in the form required by the Series 2009-1 Supplement; and
(9) it will obtain from any purchaser of the Series 2009-1 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.
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3
EXHIBIT F-1
TO
SERIES 2009-1 SUPPLEMENT
FORM OF MONTHLY NOTEHOLDERS STATEMENT
HERTZ VEHICLE FINANCING LLC
$[ ] Series 2009-1 Variable Funding Rental Car Asset Backed Notes
The undersigned, Authorized Officers of The Hertz Corporation ( Hertz ), pursuant to each of (i) the Third Amended and Restated Master Motor Vehicle Operating Lease and Servicing Agreement, dated as of September 18, 2009, 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 Second Amended and Restated Administration Agreement, dated as of September 18, 2009 (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 Third Amended and Restated Base Indenture, dated as of September 18, 2009, 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 2009-1 Supplement thereto, dated as of September 18, 2009 (as such supplement may be further amended, supplemented, restated or otherwise modified from time to time in accordance with its terms, the Series 2009-1 Supplement ) (as such agreement may be amended, supplemented, restated or otherwise modified from time to time in accordance with its terms, the Third 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 Third 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 2009-1 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 Third 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 2009-1 Notes during the Related Month] [An Amortization Event or Potential Amortization Event with respect to the Series 2009-1 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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EXHIBIT F-2
TO
SERIES 2009-1 SUPPLEMENT
FORM OF WEEKLY NOTEHOLDERS STATEMENT
HERTZ VEHICLE FINANCING LLC
$[ ] Series 2009-1 Variable Funding Rental Car Asset Backed Notes
The undersigned, Authorized Officers of [The Hertz Corporation ( Hertz )]* [HVF] , pursuant to each of (i) the Third Amended and Restated Master Motor Vehicle Operating Lease and Servicing Agreement, dated as of September 18, 2009, 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 Second Amended and Restated Administration Agreement, dated as of September 18, 2009 (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 Third Amended and Restated Base Indenture, dated as of September 18, 2009, 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 2009-1 Supplement thereto, dated as of September 18, 2009 (as such supplement may be further amended, supplemented, restated or otherwise modified from time to time in accordance with its terms, the Series 2009-1 Supplement ) (as such agreement may be amended, supplemented, restated or otherwise modified from time to time in accordance with its terms, the Third 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 Third Amended and Restated Base Indenture, or, if not defined therein, in the Series 2009-1 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 2009-1 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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Use if delivered by HVF
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EXHIBIT G-2
TO
SERIES 2009-1 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 2009-1 Supplement, dated as of September 18, 2009 (the Series 2009-1 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 2009-1 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 2009-1 SUPPLEMENT
FORM OF SERIES 2009-1 DEMAND NOTE
$[ ] |
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New York, New York |
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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 Third Amended and Restated Base Indenture, dated as of September 18, 2009, 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 2009-1 Supplement thereto dated as of September 18, 2009 (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 2009-1 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 each Payment Date on the weighted average principal balance outstanding during 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 such period an Interest Period ) at the Demand Note Rate. 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, 2009. 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 attorneys fees, paralegals 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 2009-1 Noteholders pursuant to the Series 2009-1 Supplement. The parties intend that this Demand Note will be pledged to the Trustee for the benefit of the secured parties under the Series 2009-1 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 2009-1 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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EXHIBIT H
TO
SERIES 2009-1 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 AdministrationStructured Finance
ESTIMATED INTEREST ADJUSTMENT NOTICE
This notice is being delivered to you pursuant to Section 3.3(a) of that certain Series 2009-1 Supplement, dated as of September 18, 2009 (the Series 2009-1 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 2009-1 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 2009-1 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 2009-1 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 2009-1 Supplement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as an officer of the Servicer as of the day of , 20 .
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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 4.9.28
EXECUTION VERSION
SERIES 2009-1 NOTE PURCHASE AGREEMENT
(SERIES 2009-1 VARIABLE FUNDING RENTAL CAR ASSET BACKED NOTES)
dated as of September 18, 2009,
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 AG, NEW YORK BRANCH,
as Administrative Agent
TABLE OF CONTENTS
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Page |
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ARTICLE I DEFINITIONS |
2 |
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SECTION 1.01 |
Definitions |
2 |
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ARTICLE II PURCHASE AND SALE OF SERIES 2009-1 NOTES |
11 |
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SECTION 2.01 |
The Initial Note Purchase |
11 |
SECTION 2.02 |
Advances |
11 |
SECTION 2.03 |
Borrowing Procedures |
12 |
SECTION 2.04 |
The Series 2009-1 Notes |
13 |
SECTION 2.05 |
Commitment Terms |
14 |
SECTION 2.06 |
Selection of Interest Rates |
14 |
SECTION 2.07 |
Reduction in Commitment Amount |
14 |
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ARTICLE III INTEREST AND FEES |
14 |
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SECTION 3.01 |
Interest |
14 |
SECTION 3.02 |
Fees |
15 |
SECTION 3.03 |
Eurodollar Lending Unlawful |
16 |
SECTION 3.04 |
Deposits Unavailable |
16 |
SECTION 3.05 |
Increased or Reduced Costs, etc. |
17 |
SECTION 3.06 |
Funding Losses |
17 |
SECTION 3.07 |
Increased Capital Costs |
18 |
SECTION 3.08 |
Taxes |
18 |
SECTION 3.09 |
Indenture Carrying Charges; Survival |
20 |
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ARTICLE IV OTHER PAYMENT TERMS |
20 |
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SECTION 4.01 |
Time and Method of Payment |
20 |
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ARTICLE V THE ADMINISTRATIVE AGENT AND THE FUNDING AGENTS |
20 |
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SECTION 5.01 |
Authorization and Action of the Administrative Agent |
20 |
SECTION 5.02 |
Delegation of Duties |
21 |
SECTION 5.03 |
Exculpatory Provisions |
21 |
SECTION 5.04 |
Reliance |
21 |
SECTION 5.05 |
Non-Reliance on the Administrative Agent and Other Purchasers |
22 |
SECTION 5.06 |
The Administrative Agent in its Individual Capacity |
22 |
SECTION 5.07 |
Successor Administrative Agent |
22 |
SECTION 5.08 |
Authorization and Action of Funding Agents |
22 |
SECTION 5.09 |
Delegation of Duties |
23 |
SECTION 5.10 |
Exculpatory Provisions |
23 |
SECTION 5.11 |
Reliance |
23 |
SECTION 5.12 |
Non-Reliance on the Funding Agent and Other Purchasers |
24 |
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TABLE OF CONTENTS
(continued)
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SECTION 5.13 |
The Funding Agent in its Individual Capacity |
24 |
SECTION 5.14 |
Successor Funding Agent |
24 |
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ARTICLE VI REPRESENTATIONS AND WARRANTIES |
25 |
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SECTION 6.01 |
HVF |
25 |
SECTION 6.02 |
Administrator |
25 |
SECTION 6.03 |
Conduit Investors |
26 |
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ARTICLE VII CONDITIONS |
28 |
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SECTION 7.01 |
Conditions to Issuance |
28 |
SECTION 7.02 |
Conditions to Initial Borrowing |
29 |
SECTION 7.03 |
Conditions to Each Borrowing |
29 |
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ARTICLE VIII COVENANTS |
30 |
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SECTION 8.01 |
Covenants |
30 |
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ARTICLE IX MISCELLANEOUS PROVISIONS |
35 |
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SECTION 9.01 |
Amendments |
35 |
SECTION 9.02 |
No Waiver; Remedies |
36 |
SECTION 9.03 |
Binding on Successors and Assigns |
37 |
SECTION 9.04 |
Survival of Agreement |
38 |
SECTION 9.05 |
Payment of Costs and Expenses; Indemnification |
38 |
SECTION 9.06 |
Characterization as Related Document; Entire Agreement |
41 |
SECTION 9.07 |
Notices |
41 |
SECTION 9.08 |
Severability of Provisions |
41 |
SECTION 9.09 |
Tax Characterization |
42 |
SECTION 9.10 |
No Proceedings; Limited Recourse |
42 |
SECTION 9.11 |
Confidentiality |
43 |
SECTION 9.12 |
Governing Law |
44 |
SECTION 9.13 |
Jurisdiction |
44 |
SECTION 9.14 |
Waiver of Jury Trial |
44 |
SECTION 9.15 |
Counterparts |
45 |
SECTION 9.16 |
Additional Investor Groups |
45 |
SECTION 9.17 |
Assignment |
45 |
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TABLE OF CONTENTS
(continued)
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EXHIBITS |
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SCHEDULE I |
List of Conduit Investors and Committed Note Purchasers |
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EXHIBIT A |
Form of Advance Request |
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EXHIBIT B |
Form of Assignment and Assumption Agreement |
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EXHIBIT C |
Form of Investor Group Supplement |
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EXHIBIT D |
Form of Addendum |
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EXHIBIT E |
Fleet Report |
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SERIES 2009-1 NOTE PURCHASE AGREEMENT
THIS SERIES 2009-1 NOTE PURCHASE AGREEMENT, dated as of September 18, 2009 (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 AG, NEW YORK BRANCH, 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 2009-1 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 2009-1 Supplement ), to the Third Amended and Restated Base Indenture, dated as of September 18, 2009 (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 2009-1 Supplement, the Indenture ), between HVF and the Trustee, pursuant to which HVF issued one or more Series 2009-1 Variable Funding Rental Car Asset Backed Notes (the Series 2009-1 Notes ).
2. HVF wishes to issue the Series 2009-1 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 2009-1 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 2009-1 Notes purchased in connection herewith and will constitute purchases of Series 2009-1 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 2009-1 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 2009-1 Controlled Amortization Period, or, if earlier, the commencement of the Series 2009-1 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.
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 2009-1 Supplement or, if not defined therein, the meanings assigned to such terms in the Definitions List attached to the Base Indenture as Schedule I , as applicable. For the avoidance of doubt, to the extent any capitalized term defined herein also has a meaning assigned to such term in the Definitions List attached to the Base Indenture, the meaning given to such term herein shall apply. 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 2009-1 Closing Date pursuant to Section 9.16 in connection with an increase in the Series 2009-1 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 2009-1 Maximum Principal Amount when such Additional Investor Group becomes a party hereto and Additional Series 2009-1 Notes are issued pursuant to Sections 2.1 and 5.1 of the Series 2009-1 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
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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).
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 2009-1 Notes issued to such Additional Investor Group, which shall be an amount equal to such Additional Investor Groups Commitment Percentage of the principal amount of outstanding Series 2009-1 Notes as of such date (after giving effect to the issuance of such Additional Investor Groups Series 2009-1 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 2009-1 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 2009-1 Closing Date.
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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.
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 Groups Maximum Investor Group Principal Amount bears to the Series 2009-1 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 & Poors and P2 from Moodys, 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 2009-1 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 2009-1 Principal Amount or that are issued by such Conduits specifically to fund or maintain the Series 2009-1 Principal Amount, in each case, during such period, as determined by their respective Funding Agent (on behalf of such Conduits), including (x)
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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 responsible for the administration of such Conduits commercial paper programs in connection with the preparation, completion, issuance, delivery or payment of Series 2009-1 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 2009-1 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 January 2012 Payment Date; and
(ii) upon the occurrence and during the continuation of the Series 2009-1 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 2009-1 Base Rate Tranches or included in the Series 2009-1 CP Tranche until payment in full of the Series 2009-1 Notes.
Eurodollar Office means, the office of the related Funding Agent
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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 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 = |
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Eurodollar Rate |
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(Reserve Adjusted) |
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1.00 Eurodollar Reserve Percentage |
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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
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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 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 2009-1 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 2009-1 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 Groups 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 2009-1 Closing Date, such Investor Groups Commitment Percentage of the Series 2009-1 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
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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 the Series 2009-1 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 on such date 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 Groups 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 the Series 2009-1 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 on such date.
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 2009-1 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
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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.
Program Support Agreement means and includes any agreement entered into by any Program Support Provider in respect of any Series 2009-1 Commercial Paper and/or Series 2009-1 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 2009-1 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 Investors 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 Purchasers or Conduit Investors Series 2009-1 Commercial Paper and/or Series 2009-1 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 Investors securitization program as it relates to any Series 2009-1 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.
Related Documents shall mean the documents set forth in the definition of Related Documents in the Base Indenture other than any such Related Documents relating solely to any Segregated Series of Notes.
Securities Act : The U.S. Securities Act of 1933, as amended.
Series 2009-1 Base Rate means, on any day, a rate per annum equal to the sum of (i) the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day and (c) if available, the Eurodollar Rate (Reserve Adjusted) in effect on such day plus (ii) 0.50%. Any change in the Series 2009-1 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
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Advances maintained as Series 2009-1 Base Rate Tranches will take effect simultaneously with each change in the Series 2009-1 Base Rate.
Series 2009-1 Commitment Termination Date means October 26, 2011 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 2009-1 Related Documents means the Related Documents relating to the Series 2009-1 Notes (including, without limitation, the Base Indenture, the Series 2009-1 Supplement, the Purchase Agreement, the HVF Lease, the Collateral Agency Agreement and the Administration Agreement), each Series 2009-1 Interest Rate Cap, the Back-up Administration Agreement and the HVF LLC Agreement; provided that, for the avoidance of doubt, (i) any Related Document that relates solely to a Series of Notes other than the Series 2009-1 Notes shall not be a Series 2009-1 Related Document, (ii) any Related Document that relates to the Series 2009-1 Notes and other Series of Notes shall be a Series 2009-1 Related Document and (iii) any Related Document that relates solely to any Segregated Series of Notes shall not be a Series 2009-1 Related Document.
Series 2009-1 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 2009-1 Notes.
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 Section 3.02(b) .
Undrawn Fee Rate has the meaning set forth in the Program Fee Letter.
Up-Front Fee for each Committed Note Purchaser has the meaning set forth in the Up-Front Fee Letter (if any) for such Committed Note Purchaser.
Up-Front Fee Letter means, with respect to a Committed Note Purchaser, if applicable, that certain fee letter dated as of the date hereof, by and among such Committed Note Purchaser, the Administrative Agent and HVF setting forth the definition of Up-Front Fee for such Committed Note Purchaser.
Weighted Average CP Rate means, with respect to any Series 2009-1 Interest Period, the weighted average of the CP Rates applicable to each Advance funded or maintained during such Series 2009-1 Interest Period through the issuance of Series 2009-1 Commercial Paper.
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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 2009-1 Notes on the Series 2009-1 Closing Date. Such Series 2009-1 Notes for each Investor Group will be dated the Series 2009-1 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.
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SECTION 2.03 Borrowing Procedures .
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SECTION 2.04 The Series 2009-1 Notes . On each date an Advance is funded under the Series 2009-1 Notes pursuant to the Series 2009-1 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.
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SECTION 2.05 Commitment Terms . The Term of the Commitment hereunder shall be for a period commencing on the Series 2009-1 Closing Date and ending on the Series 2009-1 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 provider(s) or related credit provider(s) pursuant to the applicable liquidity purchase agreement or liquidity loan agreement with respect to the Series 2009-1 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 be made as Eurodollar Advances; provided that if any such Committed Note Purchaser is funding Advances through the issuance of Series 2009-1 Commercial Paper, such Advances shall bear interest at the CP Rate.
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 2009-1 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 2009-1 Supplement, and (ii) must be in a minimum amount of $10,000,000 and (y) after giving effect to such reduction, the Series 2009-1 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.
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SECTION 3.02 Fees .
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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 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 2009-1 Eurodollar Tranche of such Advance, the obligation of such Person to make, continue or maintain or convert any such Advance as the Series 2009-1 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 2009-1 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:
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
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any Advances into, the Series 2009-1 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, and such Investor Group shall immediately convert all Advances of any such Program Support Provider or Committed Note Purchaser, as applicable, into the Series 2009-1 Base Rate Tranche of such Advance at the end of the then current Eurodollar Interest Periods with respect thereto or sooner, if required for the reasons set forth in clause (a), (b) or (c) above, as the case may be.
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 reductions in the rate of return on such Affected Persons 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 2009-1 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 HVFs 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 2009-1 CP Tranche or Series 2009-1 Eurodollar Tranche, or to convert any portion of the principal amount of any Advance into, the Series 2009-1 Eurodollar Tranche of such Advance) as a result of:
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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 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 Persons 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 to such Affected Person an incremental commitment fee 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
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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 receipt of 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,
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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 2009-1 Supplement. The agreements in Sections 3.05 , 3.06 , 3.07 and 3.08 shall survive the termination of this Series 2009-1 Note Purchase Agreement, the Series 2009-1 Supplement and the Base Indenture and the payment of all amounts payable hereunder and thereunder.
SECTION 4.01 Time and Method of Payment . All amounts payable to any Funding Agent hereunder or with respect to the Series 2009-1 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. HVFs 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.
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 AG, New York Branch 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 2009-1 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 2009-1 Supplement, the Administrative Agent shall act solely as agent for the Conduit Investors, the Committed Note Purchasers and the Funding Agents 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
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to take any action that exposes the Administrative Agent to personal liability or that is contrary to this Agreement, the Series 2009-1 Supplement or Applicable Law. The appointment and authority of the Administrative Agent hereunder shall terminate upon the indefeasible payment in full of the Series 2009-1 Notes and all other amounts owed by HVF hereunder and under the Series 2009-1 Supplement 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.
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 Persons 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
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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 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 2009-1 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 (as they come due or are required to be paid) 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 Agents 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 Investors name, or if there is no Conduit Investor with respect to any Investor Group, the
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Committed Note Purchasers 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 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 . No Funding 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 Persons 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 . No Funding Agent shall 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. No Funding Agent shall 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),
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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.
SECTION 5.12 Non-Reliance on the Funding Agent and Other Purchasers . Each Investor Group expressly acknowledges that neither its related Funding 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 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. Each Investor Group represents and warrants to its related 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 (as they come due or are required to be paid) 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 Agents 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.
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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, other than any such representation or warranty relating solely to any Segregated Series, the other Series 2009-1 Related Documents is true and correct and further represents and warrants to such parties that:
SECTION 6.02 Administrator . The Administrator represents and warrants to each Conduit Investor and each Committed Note Purchaser that:
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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:
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SECTION 7.01 Conditions to Issuance . Each Conduit Investor has no obligation to purchase the Series 2009-1 Notes hereunder on the Series 2009-1 Closing Date unless:
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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 2009-1 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 Agents Investor Group and HVF shall have paid all fees required to be paid by it on the Series 2009-1 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:
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(f) HVF shall have acquired and shall be maintaining in force one or more Series 2009-1 Interest Rate Caps in accordance with Section 3.12 of the Series 2009-1 Supplement.
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.
SECTION 8.01 Covenants . HVF and the Administrator each severally covenants and agrees that, until the Series 2009-1 Notes have been paid in full and the Term has expired, it will:
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SECTION 9.01 Amendments . Subject to any provision of the Base Indenture or the Series 2009-1 Supplement requiring the consent of each affected Noteholder or of a higher percentage of Noteholders, no amendment to or waiver of any
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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 Administrator, HVF, Conduit Investors and Committed Note Purchasers holding more than 66 2 / 3 % of the Series 2009-1 Notes and the Commitment, respectively, and in the case of any material amendments (as reasonably determined by the Administrative Agent), receipt of written confirmation from each rating agency then rating the Series 2009-1 Notes and the Series 2009-1 Commercial Paper that such amendment will not result in the reduction or withdrawal of the then current ratings in respect of the Series 2009-1 Notes or the Series 2009-1 Commercial Paper, as applicable; provided , however , that the consent of each Conduit Investor and each Committed Note Purchaser shall be required for and amendment or modification that (A) extends the due date for, or reduces the amount of any scheduled repayment or prepayment of principal of or interest on the Series 2009-1 Notes (or reduces the principal amount of or rate of interest on the Series 2009-1 Notes or otherwise changes the manner in which interest is calculated); (B) affects adversely the interests, rights or obligations of any Conduit Investor or Committed Note Purchaser individually in comparison to any other Conduit Investor or Committed Note Purchaser; (C) relates to or alters the pro rata treatment of payments to and Advances by the Conduit Investors and Committed Note Purchasers; (D) amends or modifies this Section 9.01 or Section 8.01(b) or otherwise amends or modifies any provision relating to the amendment or modification of this Agreement, or, pursuant to the Related Documents, would require the consent of 100% of the Series 2009-1 Noteholders or each Series 2009-1 Noteholder affected by such amendment or modification; (E) would approve the assignment or transfer by HVF of any of its rights or obligations hereunder; (F) releases HVF of any obligation hereunder; (G) would reduce, modify or amend any indemnities in favor of any Conduit Investors, Committed Note Purchasers or Funding Agents; (H) would amend or modify and of the following defined terms or any defined terms contained therein: Commitment, Commitment Amount, Commitment Percentage, Conduit Assignee, CP Rate, Eurodollar Advance, Eurodollar Interest Period, Eurodollar Rate, Eurodollar Rate (Reserve Adjusted), Investor Group Principal Amount, Maximum Investor Group Principal Amount, Prime Rate, Program Fee, Series 2009-1 Base Rate, Series 2009-1 Commitment Termination Date, Undrawn Fee or Up-Front Fee; (I) would alter any of the conditions precedent to any Advance; or (J) would amend or modify Sections 2.03, 2.05, 2.06, 2.07, 3.01, 3.02 or 9.17 or Article VII; provided , further that Article V may not be amended or modified without the consent of the Administrative Agent.
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
36
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 2009-1 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.
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SECTION 9.04 Survival of Agreement . All covenants, agreements, representations and warranties made herein and in the Series 2009-1 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 2009-1 Notes and shall continue in full force and effect until all interest on and principal of the Series 2009-1 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 2009-1 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.
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
38
such Committed Note Purchaser (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel to the Administrative Agent, such Funding Agent, such Conduit Investor and such Committed Note Purchaser, if any) 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 2009-1 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 (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel to the Administrative Agent, such Funding Agent, such Conduit Investor and such Committed Note Purchaser, if any and the reasonable fees and out-of-pocket expenses of any third-party servicers and disposition agents) 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 2009-1 Notes pursuant to Section 9.17 ; provided , however , that HVF shall reimburse each Committed Note Purchaser and/or Conduit Investor who purchased Series 2009-1 Notes on the Series 2009-1 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 2009-1 Notes within 180 days of the Series 2009-1 Closing Date.
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except for any such Indemnified Liabilities arising for the account of a particular Indemnified Party by reason of the relevant Indemnified Partys 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.
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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 2009-1 Supplement, the Program Fee Letter, the Up-Front Fee Letter, 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.
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.
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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 2009-1 Notes will be treated as evidence of indebtedness, (b) agrees to treat the Series 2009-1 Notes for all such purposes as indebtedness and (c) agrees that the provisions of the Related Documents shall be construed to further these intentions.
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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 2009-1 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.
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 2009-1 Notes or the Conduits debt, (d) in the course of litigation with HVF, the Administrator or Hertz, (e) any Series 2009-1 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 any provider of credit enhancement or liquidity to any Conduit Investor, (h) on a confidential basis, to auditors or legal or other
43
professional advisors of any party hereto or (i) 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 2009-1 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 2009-1 NOTE PURCHASE AGREEMENT MAY BE 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 2009-1 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 2009-1 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
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CONNECTION WITH, THIS SERIES 2009-1 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 2009-1 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 Series 2009-1 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 2009-1 Maximum Principal Amount by complying with the provisions of this Section 9.16 and Sections 2.1 and 5.1 of the Series 2009-1 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 Purchasers 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 hereunder and the Administrative Agent shall amend Schedule I hereto in accordance with the information provided in the notice described above.
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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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SCHEDULE I
SARATOGA FUNDING CORP., LLC, as a Conduit Investor
DEUTSCHE BANK AG, NEW YORK BRANCH, as a Committed Note Purchaser
Commitment Amount: $627,525,000.00
Commitment Percentage: 29.3500%
Committed Note Purchaser Percentage: 100%
Maximum Investor Group Principal Amount: $627,525,000.00
DEUTSCHE BANK AG, NEW YORK BRANCH, as a Funding Agent and a Committed Note Purchaser, for SARATOGA FUNDING CORP., LLC, as a Conduit Investor
KITTY HAWK FUNDING CORPORATION, as a Conduit Investor
BANK OF AMERICA, N.A., as a Committed Note Purchaser
Commitment Amount: $225,000,000.00
Commitment Percentage: 10.5235%
Committed Note Purchaser Percentage: 100%
Maximum Investor Group Principal Amount: $225,000,000.00
BANK OF AMERICA, N.A., as a Funding Agent and a Committed Note Purchaser, for KITTY HAWK FUNDING CORPORATION, as a Conduit Investor
LIBERTY STREET FUNDING LLC, as a Conduit Investor
THE BANK OF NOVA SCOTIA, acting through its New York Agency, as a Committed Note Purchaser
Commitment Amount: $75,000,000.00
Commitment Percentage: 3.5078%
Committed Note Purchaser Percentage: 100%
Maximum Investor Group Principal Amount: $75,000,000.00
[SERIES 2009-1 NOTE PURCHASE AGREEMENT]
THE BANK OF NOVA SCOTIA, acting through its New York Agency, as a Funding Agent and a Committed Note Purchaser, for LIBERTY STREET FUNDING LLC, as a Conduit Investor
SHEFFIELD RECEIVABLES CORPORATION, as a Conduit Investor
SHEFFIELD RECEIVABLES CORPORATION, as a Committed Note Purchaser
Commitment Amount: $300,000,000.00
Commitment Percentage: 14.0313%
Committed Note Purchaser Percentage: 100%
Maximum Investor Group Principal Amount: $300,000,000.00
BARCLAYS BANK PLC, as a Funding Agent, for SHEFFIELD RECEIVABLES CORPORATION, as a Conduit Investor and a Committed Note Purchaser
FAIRWAY FINANCE COMPANY LLC, as a Conduit Investor
BANK OF MONTREAL, as a Committed Note Purchaser
Commitment Amount: $100,000,000.00
Commitment Percentage: 4.6771%
Committed Note Purchaser Percentage: 100%
Maximum Investor Group Principal Amount: $100,000,000.00
BMO CAPITAL MARKETS CORP., as a Funding Agent, for FAIRWAY FINANCE COMPANY LLC, as a Conduit Investor, and BANK OF MONTREAL, as a Committed Note Purchaser
ATLANTIC ASSET SECURITIZATION LLC, as a Conduit Investor
CALYON NEW YORK BRANCH, as a Committed Note Purchaser
Commitment Amount: $197,244,000.00
Commitment Percentage: 9.2253%
Committed Note Purchaser Percentage: 100%
Maximum Investor Group Principal Amount: $197,244,000.00
CALYON NEW YORK BRANCH, as a Funding Agent and a Committed Note Purchaser, for ATLANTIC ASSET SECURITIZATION LLC, as a Conduit Investor
MONT BLANC CAPITAL CORP., as a Conduit Investor
ING BANK N.V. DUBLIN BRANCH, as a Committed Note Purchaser
Commitment Amount: $150,000,000.00
Commitment Percentage: 7.0157%
Committed Note Purchaser Percentage: 100%
Maximum Investor Group Principal Amount: $150,000,000.00
ING CAPITAL MARKETS LLC, as a Funding Agent, for MONT BLANC CAPITAL CORP., as a Conduit Investor, and ING BANK N.V. DUBLIN BRANCH, as a Committed Note Purchaser
PARK AVENUE RECEIVABLES COMPANY LLC (PARCO), as a Conduit Investor
JPMORGAN CHASE BANK, N.A., as a Committed Note Purchaser
Commitment Amount: $258,303,750.00
Commitment Percentage: 12.0811%
Committed Note Purchaser Percentage: 100%
Maximum Investor Group Principal Amount: $258,303,750.00
JPMORGAN CHASE BANK, N.A., as a Funding Agent and a Committed Note Purchaser, for PARK AVENUE RECEIVABLES COMPANY LLC (PARCO), as a Conduit Investor
VERSAILLES ASSETS LLC, as a Conduit Investor
VERSAILLES ASSETS LLC, as a Committed Note Purchaser
Commitment Amount: $150,000,000.00
Commitment Percentage: 7.0157%
Committed Note Purchaser Percentage: 100%
Maximum Investor Group Principal Amount: $150,000,000.00
NATIXIS FINANCIAL PRODUCTS INC., as a Funding Agent, for VERSAILLES ASSETS LLC, as a Conduit Investor and a Committed Note Purchaser
AMSTERDAM FUNDING CORPORATION, as a Conduit Investor
THE ROYAL BANK OF SCOTLAND PLC, as a Committed Note Purchaser
Commitment Amount: $55,000,000.00
Commitment Percentage: 2.5724%
Committed Note Purchaser Percentage: 100%
Maximum Investor Group Principal Amount: $55,000,000.00
RBS SECURITIES INC., as a Funding Agent, for AMSTERDAM FUNDING CORPORATION, as a Conduit Investor, and THE ROYAL BANK OF SCOTLAND PLC, as a Committed Note Purchaser
EXHIBIT
A
TO
SERIES 2009-1 NOTE PURCHASE AGREEMENT
FORM OF ADVANCE REQUEST
HERTZ VEHICLE FINANCING LLC
SERIES 2009-1 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 2009-1 Note Purchase Agreement, dated as of September 18, 2009 (as amended, supplemented, restated or otherwise modified from time to time, the Series 2009-1 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 AG, New York Branch, 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 2009-1 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 acknowledges 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 2009-1 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 2009-1 Note Purchase Agreement and Section 2.1(b) of the Series 2009-1 Supplement have been satisfied and all statements set forth in Section 6.01 of the
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Series 2009-1 Note Purchase Agreement are true and correct as required pursuant to Section 7.03(a)(i) of the Series 2009-1 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 .
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A-2
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 AG, NEW YORK BRANCH, as Administrative Agent
60 Wall Street, 3rd Floor
New York, NY 10005-2858
Attention: Robert Sheldon
Telephone: (212) 250- 4493
Fax: (212) 797- 5160
Email: robert.sheldon@db.com
With an electronic copy to: abs.conduits@db.com
DEUTSCHE BANK AG, NEW YORK BRANCH, as a Funding Agent and a Committed Note Purchaser, for SARATOGA FUNDING CORP., LLC, as a Conduit Investor
60 Wall Street, 3rd Floor
New York, NY 10005-2858
Attention: Ozan Kaya
Telephone: (212) 250-4998
Fax: (212) 797- 5300
Or, in the case of Saratoga Funding Corp., LLC:
60 Wall Street, 3rd Floor
New York, NY 10005-2858
Attention: Timothy Geraghty
Telephone: (212) 250-7364
Fax: (917) 338-3018
with a copy to:
60 Wall Street, 3rd Floor
New York, NY 10005-2858
Attention: Rachel Wills
Telephone: (904) 520-5359
Fax: (904) 520-8175
A-3
BANK OF AMERICA, N.A., as a Funding Agent and a Committed Note Purchaser, for KITTY HAWK FUNDING CORPORATION, as a Conduit Investor
214 North Tryon Street
Charlotte, NC 28255
Attention: Tim Pacitto
Telephone: (980) 388-9464
Fax: (704) 387-2828
Or, in the case of Kitty Hawk Funding Corporation:
48 Wall Street
27th Floor
New York, NY 10005
Attention: Laura A. Calvaruso
Telephone: (212) 346-9000
Fax: (212) 346-9012
THE BANK OF NOVA SCOTIA, acting through its New York Agency, as a Funding Agent and a Committed Note Purchaser, for LIBERTY STREET FUNDING LLC, as a Conduit Investor
One Liberty Plaza
26th Floor
New York, NY 10006
Attention: Darren Ward
Telephone: (212) 225-5264
Fax: (212) 225-5274
Or, in the case of Liberty Street Funding LLC:
68 South Service Road
Suite 120
Melville, NY 11747
Attention: Jill Russo
Telephone: (631) 587-4700
Fax: (212) 302-5151
BARCLAYS BANK PLC, as a Funding Agent, for SHEFFIELD RECEIVABLES CORPORATION, as a Conduit Investor and a Committed Note Purchaser
745 Seventh Avenue
5th Floor
New York, NY 10019
Attention: Jeffrey Goldberg
Telephone: (212) 528-7372
Fax: N/A
A-4
Or, in the case of Sheffield Receivables Corporation:
c/o Barclays Bank PLC
745 Seventh Avenue
5th Floor
New York, NY 10019
Attention: Janette Lieu
Telephone: (212) 528-7475
Fax: (917) 265-1116
BMO CAPITAL MARKETS CORP., as a Funding Agent, for FAIRWAY FINANCE COMPANY LLC, as a Conduit Investor, and BANK OF MONTREAL, as a Committed Note Purchaser
115 S. LaSalle Street, 13W
Chicago, IL 60603
Attention: Keith Niebrugge
Telephone: (312) 461-3134
Fax: (312) 293-4908
with a copy to:
115 S. LaSalle Street, 13W
Chicago, IL 60603
Attention: Jeffrey BaCote
Telephone: (312) 461-7449
Fax: (312) 461-3189
Or, in the case of Fairway Finance Company LLC:
c/o Lord Securities Corp.
48 Wall Street
27th Floor
New York, NY 10005
Attention: Phil Martone
Telephone: (212) 346-9008
Fax: (212) 346-9012
Or, in the case of Bank of Montreal:
115 S. LaSalle Street, 13W
Chicago, IL 60603
Attention: Zachary Norman
Telephone: (312) 461-3843
Fax: (312) 293-4948
A-5
CALYON NEW YORK BRANCH, as a Funding Agent and a Committed Note Purchaser, for ATLANTIC ASSET SECURITIZATION LLC, as a Conduit Investor
1301 Avenue of the Americas
New York, NY 10019
Attention: Florence Reyes
Telephone: (212) 261-7897
Fax: (917) 849-5447
with a copy to:
1301 Avenue of the Americas
New York, NY 10019
Attention: Roman Burt
Telephone: (212) 261-3996
Fax: (917) 849-5447
Or, in the case of Atlantic Asset Securitization LLC or Calyon New York Branch, as a Committed Note Purchaser:
1301 Avenue of the Americas
New York, NY 10019
Attention: Tina Kourmpetis
Telephone: (212) 261-7814
Fax: (917) 849-5447
with a copy to:
1301 Avenue of the Americas
New York, NY 10019
Attention: Betty Wu
Telephone: (212) 261-7858
Fax: (917) 849-5447
ING CAPITAL MARKETS LLC, as a Funding Agent, for MONT BLANC CAPITAL CORP., as a Conduit Investor, and ING BANK N.V. DUBLIN BRANCH, as a Committed Note Purchaser
1325 Avenue of the Americas
New York, NY 10019
Attention: Dennis Strid
Telephone: (646) 424-7908
Fax: (646) 424-6489
Or, in the case of ING Bank N.V. Dublin Branch:
A-6
49 St. Stevens Green
Dublin 2, Ireland
Attention: David Rea
Telephone: +353 1 638 4038
Fax: +353 1 638 4020
JPMORGAN CHASE BANK, N.A., as a Funding Agent and a Committed Note Purchaser, for PARK AVENUE RECEIVABLES COMPANY LLC (PARCO), as a Conduit Investor
10 S. Dearborn St.
Chicago, IL 60603
Attention: Hetal Patel
Telephone: (312) 732-2651
Fax: (312) 732-3600
with a copy to:
10 S. Dearborn St.
Chicago, IL 60603
Attention: Mark Gilmore
Telephone: (212) 834-5175
Fax: (212) 834-6564
Or, in the case of Park Avenue Receivables Company LLC (PARCO):
10 S. Dearborn St.
Chicago, IL 60603
Attention: Anthony Bero
Telephone: (312) 732-4647
Fax: (312) 732-1844
NATIXIS FINANCIAL PRODUCTS INC., as a Funding Agent, for VERSAILLES ASSETS LLC, as a Conduit Investor and a Committed Note Purchaser
9 West 57th St.
New York, NY 10019
Attention: Frank Fletcher
Telephone: (212) 891-5878
Fax: (212) 891-3335
Or, in the case of Versailles Assets LLC:
c/o Global Securitization Services LLC
68 South Service Road
Suite 120
A-7
Melville, NY 11747
Attention: Andrew Stidd
Telephone: (212) 302-8767
Fax: (631) 587-4700
RBS SECURITIES INC., as a Funding Agent, for AMSTERDAM FUNDING CORPORATION, as a Conduit Investor, and THE ROYAL BANK OF SCOTLAND PLC, as a Committed Note Purchaser
540 West Madison St.
Chicago IL 60661
Attention: David Donofrio
Telephone: (312) 338-6720
Fax: (312) 338-0140
Or, in the case of Amsterdam Funding Corporation:
c/o Global Securitization Services, LLC
68 South Service Road
Suite 120
Melville, New York 11747
Attention: Frank B. Bilotta
Telephone: (212) 302-8331
Fax: (212) 302-8767
A-8
SCHEDULE II:
Funding Allocation by Funding Agent: |
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DEUTSCHE BANK AG, NEW YORK BRANCH |
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29.3500% |
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$ |
627,525,000.00 |
BANK OF AMERICA, N.A. |
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10.5235% |
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$ |
225,000,000.00 |
THE BANK OF NOVA SCOTIA |
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3.5078% |
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$ |
75,000,000.00 |
BARCLAYS BANK PLC |
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14.0313% |
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$ |
300,000,000.00 |
BMO CAPITAL MARKETS CORP. |
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4.6771% |
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$ |
100,000,000.00 |
CALYON NEW YORK BRANCH |
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9.2253% |
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$ |
197,244,000.00 |
ING CAPITAL MARKETS LLC |
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7.0157% |
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$ |
150,000,000.00 |
JPMORGAN CHASE BANK, N.A. |
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12.0811% |
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$ |
258,303,750.00 |
NATIXIS FINANCIAL PRODUCTS INC. |
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7.0157% |
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$ |
150,000,000.00 |
RBS SECURITIES INC. |
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2.5724% |
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$ |
55,000,000.00 |
A-9
EXHIBIT B
TO
SERIES 2009-1 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 2009-1 Note Purchase Agreement, dated as of September 18, 2009 (as from time to time amended, supplemented or otherwise modified in accordance with the terms thereof, the Series 2009-1 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 AG, New York Branch, 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 2009-1 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 2009-1 Note Purchase Agreement and the Series 2009-1 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 2009-1 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 Purchasers Purchased Percentage ) of the Transferors Commitment under the Series 2009-1 Note Purchase Agreement and the Transferors 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 Purchasers Purchased Percentage of the Transferors Commitment under the Series 2009-1 Note Purchase Agreement and the Transferors 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 2009-1 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 2009-1 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 2009-1 Supplement or the Series 2009-1 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 2009-1 Supplement, the Series 2009-1 Note Purchase Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Indenture, the Series 2009-1 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 Companys 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 2009-1 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 2009-1 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 2009-1 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 2009-1 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 2009-1 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 2009-1 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 2009-1 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 2009-1 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 2009-1 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.
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[ ], as Transferor |
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Title: |
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By: |
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Title: |
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[ ], as Acquiring Committed Note Purchaser |
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By: |
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Title: |
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[ ], as Funding Agent |
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By: |
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B-4
CONSENTED AND ACKNOWLEDGED: |
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HERTZ VEHICLE FINANCING LLC |
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By: |
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B-5
SCHEDULE I
LIST OF ADDRESSES FOR NOTICES
AND OF COMMITMENT PERCENTAGES
DEUTSCHE BANK AG, NEW YORK BRANCH , as
Administrative Agent
Address:
Attention:
Telephone:
Facsimile:
[TRANSFEROR]
Address: |
[ ] |
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Attention: [ |
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Telephone: [ |
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Facsimile: [ |
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Prior Commitment Percentage: |
[ |
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Revised Commitment Percentage: |
[ |
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Prior Investor Group Principal Amount: |
[ |
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Revised Investor Group Principal Amount: |
[ |
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[TRANSFEROR FUNDING AGENT]
Address: |
[ ] |
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Attention: [ |
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Telephone: [ |
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Facsimile: [ |
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[ACQUIRING COMMITTED NOTE PURCHASER]
Address: |
[ ] |
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Attention: [ |
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Telephone: [ |
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Facsimile: [ |
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Prior Commitment Percentage: |
[ |
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Revised Commitment Percentage: |
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Prior Investor Group Principal Amount: |
[ |
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Revised Investor Group Principal Amount: |
[ |
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[ACQUIRING COMMITTED NOTE PURCHASER FUNDING AGENT]
Address: |
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Attention: [ |
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Telephone: [ |
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EXHIBIT C
TO
SERIES 2009-1 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 2009-1 Note Purchase Agreement, dated as of September 18, 2009 (as from time to time amended, supplemented or otherwise modified in accordance with the terms thereof, the Series 2009-1 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 AG, New York Branch, 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 2009-1 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 2009-1 Note Purchase Agreement and the Series 2009-1 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 2009-1 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 Groups Purchased Percentage ) of
the Commitment Amount with respect to the Committed Note Purchasers included in the Transferor Investor Group under the Series 2009-1 Note Purchase Agreement and the Transferor Investor Groups 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 Groups Purchased Percentage of the Commitment with respect to the Committed Note Purchasers included in the Transferor Investor Group under the Series 2009-1 Note Purchase Agreement and the Transferor Investor Groups 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 2009-1 Supplement or the Series 2009-1 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 2009-1 Supplement, the Series 2009-1 Note Purchase Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Indenture, the Series 2009-1 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 Companys obligations under the Indenture, the Series 2009-1 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 2009-1 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 2009-1 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 2009-1 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 2009-1 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 2009-1 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 2009-1 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 2009-1 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 2009-1 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 2009-1 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.
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[ ], as Transferor Investor Group |
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[ ], as Transferor Investor Group |
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[ ], as Acquiring Investor Group |
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[ ], as Acquiring Investor Group |
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[ ], as Funding Agent |
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CONSENTED AND ACKNOWLEDGED: |
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HERTZ VEHICLE FINANCING LLC |
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C-4
LIST OF ADDRESSES FOR NOTICES
AND OF COMMITMENT PERCENTAGES
EXHIBIT D
TO
SERIES 2009-1 NOTE PURCHASE AGREEMENT
ADDENDUM TO AGREEMENT
Each of the undersigned:
(i) confirms that it has received a copy of the Series 2009-1 Note Purchase Agreement, dated as of September 18, 2009 (as from time to time amended, supplemented or otherwise modified in accordance with the terms thereof, the Series 2009-1 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 AG, New York Branch, 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 2009-1 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 2009-1 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 Purchasers Committed Note Purchaser Percentage is percent ( %);
(v) designates as the Funding Agent for itself, and such Funding Agent hereby accepts such appointment;
(vi) becomes a party to the Series 2009-1 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 2009-1 Note Purchase Agreement; and
(vii) each member of the Additional Investor Group hereby represents and warrants that the representations and warranties contained in Section 6.03 of the Series 2009-1 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 2009-1 Note Purchase Agreement on and as of the date hereof. The notice address for each member of the Additional Investor Group is as follows:
II-1
[INSERT CONTACT INFORMATION FOR EACH ENTITY]
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 , 20 .
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[NAME OF ADDITIONAL FUNDING AGENT],
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[NAME OF ADDITIONAL CONDUIT
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[NAME OF ADDITIONAL COMMITTED
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Acknowledged and Agreed to as of the date
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HERTZ VEHICLE FINANCING LLC |
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DEUTSCHE BANK AG, NEW YORK
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Exhibit 4.9.29
EXECUTION COPY
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 2009-2 SUPPLEMENT
dated as of October 23, 2009
to
THIRD AMENDED AND RESTATED
BASE INDENTURE
dated as of September 18, 2009
$500,000,000 Series 2009-2 4.26% Rental Car Asset Backed Notes, Class A-1
$700,000,000 Series 2009-2 5.29% Rental Car Asset Backed Notes, Class A-2
Three-Year Notes and Five-Year Notes
TABLE OF CONTENTS
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ARTICLE I |
DEFINITIONS |
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2 |
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ARTICLE II |
SERIES 2009-2 ALLOCATIONS |
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36 |
Section 2.1. |
Series 2009-2 Series Accounts |
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36 |
Section 2.2. |
Allocations with Respect to the Series 2009-2 Notes |
|
37 |
Section 2.3. |
Application of Interest Collections |
|
41 |
Section 2.4. |
Payment of Note Interest |
|
44 |
Section 2.5. |
Payment of Note Principal |
|
44 |
Section 2.6. |
The Administrators Failure to Instruct the Trustee to Make a Deposit or Payment |
|
50 |
Section 2.7. |
Class A Reserve Account |
|
51 |
Section 2.8. |
Class A Letters of Credit and Class A Cash Collateral Accounts |
|
52 |
Section 2.9. |
Series 2009-2 Distribution Account |
|
57 |
Section 2.10. |
Trustee as Securities Intermediary |
|
58 |
Section 2.11. |
[Reserved] |
|
59 |
Section 2.12. |
Series 2009-2 Demand Note Constitutes Additional Collateral for Class A Notes |
|
60 |
|
|
|
|
ARTICLE III |
AMORTIZATION EVENTS |
|
60 |
|
|
|
|
ARTICLE IV |
RESERVED |
|
62 |
|
|
|
|
ARTICLE V |
FORM OF CLASS A NOTES |
|
62 |
Section 5.1. |
Issuance of Class A Notes |
|
62 |
Section 5.2. |
Restricted Global Notes |
|
63 |
Section 5.3. |
Regulation S Global Notes and Unrestricted Global Notes |
|
63 |
Section 5.4. |
Transfer Restrictions |
|
64 |
Section 5.5. |
Definitive Notes |
|
68 |
|
|
|
|
ARTICLE VI |
GENERAL |
|
69 |
Section 6.1. |
Optional Redemption of Class A Notes |
|
69 |
Section 6.2. |
Information |
|
69 |
Section 6.3. |
Exhibits |
|
72 |
i
TABLE OF CONTENTS
(continued)
|
|
|
Page |
|
|
|
|
Section 6.4. |
Ratification of Base Indenture |
|
72 |
Section 6.5. |
Notice to Rating Agencies |
|
72 |
Section 6.6. |
[Reserved] |
|
72 |
Section 6.7. |
Third Party Beneficiary |
|
72 |
Section 6.8. |
[Reserved] |
|
72 |
Section 6.9. |
[Reserved] |
|
73 |
Section 6.10. |
Counterparts |
|
73 |
Section 6.11. |
Governing Law |
|
73 |
Section 6.12. |
Amendments |
|
73 |
Section 6.13. |
Termination of Series Supplement |
|
73 |
Section 6.14. |
Discharge of Indenture |
|
73 |
Section 6.15. |
[Reserved] |
|
74 |
Section 6.16. |
[Reserved] |
|
74 |
Section 6.17. |
[Reserved] |
|
74 |
Section 6.18. |
Issuances of Class B Notes |
|
74 |
Section 6.19. |
Noteholder Consent to Certain Amendments |
|
76 |
Section 6.20. |
Confidential Information |
|
77 |
Section 6.21. |
Trustee Has No Duty to Monitor Manufacturer Ratings |
|
78 |
ii
TABLE OF CONTENTS
(continued)
|
|
Page |
|
|
|
|
EXHIBITS |
|
|
|
|
Exhibit A-1-1: |
Form of Restricted Global Class A-1 Note |
|
Exhibit A-1-2: |
Form of Regulation S Global Class A-1 Note |
|
Exhibit A-1-3: |
Form of Unrestricted Global Class A-1 Note |
|
Exhibit A-2-1: |
Form of Restricted Global Class A-2 Note |
|
Exhibit A-2-2: |
Form of Regulation S Global Class A-2 Note |
|
Exhibit A-2-3: |
Form of Unrestricted Global Class A-2 Note |
|
Exhibit B: |
Form of Class A Letter of Credit |
|
Exhibit C: |
Form of Lease Payment Deficit Notice |
|
Exhibit D: |
Form of Class A Letter of Credit Reduction Notice |
|
Exhibit E: |
Reserved |
|
Exhibit F-1: |
Form of Transfer Certificate |
|
Exhibit F-2: |
Form of Transfer Certificate |
|
Exhibit F-3: |
Form of Transfer Certificate |
|
Exhibit G: |
Form of Monthly Noteholders Statement |
|
Exhibit H: |
Form of Series 2009-2 Demand Note |
|
Exhibit I: |
Form of Demand Notice |
|
Exhibit J: |
Form of Supplemental Indenture to Base Indenture |
|
Exhibit K: |
Form of Amendment to Collateral Agency Agreement |
|
Exhibit L: |
Form of Amendment to HGI Purchase Agreement |
|
Exhibit M: |
Form of Amendment to HVF Lease |
|
iii
SERIES 2009-2 SUPPLEMENT dated as of October 23, 2009 ( 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 Third Amended and Restated Base Indenture, dated as of September 18, 2009, between HVF and the Trustee (as amended, modified or supplemented from time to time, exclusive of Series Supplements, the Base Indenture ).
PRELIMINARY STATEMENT
WHEREAS, Section 2.2 and Section 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 Series 2009-2 Rental Car Asset Backed Notes. On the Series 2009-2 Closing Date, two classes of Series 2009-2 Notes shall be issued: the first of which shall be designated as the Series 2009-2 4.26% Rental Car Asset Backed Notes, Class A-1, and referred to herein as the Class A-1 Notes, and the second of which shall be designated as the Series 2009-2 5.29% Rental Car Asset Backed Notes, Class A-2 and referred to herein as the Class A-2 Notes. The Class A-1 Notes and the Class A-2 Notes are referred to herein collectively as the Class A Notes.
Subsequent to the Series 2009-2 Closing Date, HVF may on any date during the Series 2009-2 Revolving Period offer and sell additional Series 2009-2 Notes in up to two classes, subject to the satisfaction of the conditions set forth in Section 6.19 of this Series Supplement: the first of which, if issued, shall be designated as the Series 2009-2 Fixed Rate Rental Car Asset Backed Notes, Class B-1, and referred to herein as the Class B-1 Notes and the second of which, if issued, shall be designated as the Series 2009-2 Fixed Rate Rental Car Asset Backed Notes, Class B-2, and referred to herein as the Class B-2 Notes . The Class B-1 Notes and the Class B-2 Notes are referred to herein collectively as the Class B Notes .
The Class A Notes together with the Class B Notes, if issued, are referred to herein collectively as the Series 2009-2 Notes. The Series 2009-2 Notes shall be issued in minimum denominations of $100,000 and integral multiples of $1,000 in excess thereof.
The net proceeds from the sale of the Class A Notes shall be deposited in the Series 2009-2 Excess Collection Account and applied in accordance with this Series Supplement.
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. Any capitalized term defined herein which also has a meaning assigned to it in the Definitions List to the Base Indenture shall have the meaning given to such term herein. 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 2009-2 Notes and not to any other Series of Notes issued by HVF. All references herein to the Series 2009-2 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 2009-2 Notes (whether such words and phrases are used in this Series Supplement, the Base Indenture or any 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:
Adjusted Aggregate Asset Amount means, as of any date of determination, 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 2009-2 Collection Account and available for reduction of the Class A Principal Amount and (2) the amount of cash and Permitted Investments on deposit in the Series 2009-2 Excess Collection Account, in each case as of such date.
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.
Applicable Procedures has the meaning specified in Section 5.1 of this Series Supplement.
2
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 has occurred; provided that 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 any 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.
BNY means 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), and its successors and assigns.
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%.
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 Baa2 from Moodys; provided , that if an Eligible Manufacturer does not have a rating from Moodys, then the rating of an affiliated entity specified by Moodys shall apply for purposes of this definition; provided , further , that if (a) the rating of a Manufacturer by Moodys is withdrawn or a Manufacturer is downgraded by Moodys 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 Series Supplement, such Manufacturer shall be deemed to be rated Baa2 by Moodys 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
3
downgrade and (ii) the date on which the Trustee 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 any 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 any 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 Baa3 from Moodys, but which does not have a long-term unsecured debt rating of at least Baa2 from Moodys; provided that if an Eligible Manufacturer does not have a rating from Moodys, then the rating of an affiliated entity specified by Moodys shall apply for purposes of this definition; provided , further , that if (a) (x) a Manufacturer is downgraded by Moodys 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 Series Supplement, such Manufacturer shall be deemed to be rated Baa2 by Moodys 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 notifies the Servicer of such downgrade or (b) (x) the rating of a Manufacturer by Moodys is withdrawn or a Manufacturer is downgraded by Moodys 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 Baa3 by Moodys 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
4
knowledge of such withdrawal or downgrade and (ii) the date on which the Trustee 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 any HVF Exchange Account, in each case as of such date.
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 any 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 Baa3 from Moodys; provided that if an Eligible Manufacturer does not have a rating from Moodys, then the rating of an affiliated entity specified by Moodys shall apply for purposes of this definition; provided , further , that if (a) the rating of a Manufacturer by Moodys is withdrawn or a Manufacturer is downgraded by Moodys 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 Series Supplement, such Manufacturer shall be deemed to be rated Baa3 by Moodys 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 notifies the Servicer of such withdrawal or downgrade.
5
Chrysler 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 Chrysler as of such date.
Class means a class of the Series 2009-2 Notes, which may be the Class A-1 Notes or the Class A-2 Notes.
Class A Adjusted Enhancement Amount means, as of any date of determination, the Class A Enhancement Amount, excluding from the calculation thereof the amount available to be drawn under any Class A Letter of Credit if at the time of such calculation (A) such Class A Letter of Credit shall not be in full force and effect, (B) an Event of Bankruptcy shall have occurred with respect to the Class A Letter of Credit Provider of such Class A Letter of Credit, (C) such Class A Letter of Credit Provider shall have repudiated such Class A Letter of Credit or failed to honor a draw thereon made in accordance with the terms thereof or (D) a Class A Downgrade Event shall have occurred and be continuing for at least 30 days with respect to the Class A Letter of Credit Provider of such Class A Letter of Credit.
Class A Adjusted Liquidity Amount means, the Class A Liquidity Amount, excluding from the calculation thereof the amount available to be drawn under any Class A Letter of Credit if at the time of such calculation (A) such Class A Letter of Credit shall not be in full force and effect, (B) an Event of Bankruptcy shall have occurred with respect to the Class A Letter of Credit Provider of such Class A Letter of Credit, (C) such Class A Letter of Credit Provider shall have repudiated such Class A Letter of Credit or failed to honor a draw thereon made in accordance with the terms thereof or (D) a Class A Downgrade Event shall have occurred and be continuing for at least 30 days with respect to the Class A Letter of Credit Provider of such Class A Letter of Credit.
Class A Adjusted Principal Amount means, as of any date of determination, the excess, if any, of (A) the Class A Principal Amount as of such date over (B) the sum of (1) the amount of cash and Permitted Investments on deposit in the Series 2009-2 Excess Collection Account and (2) the amount of cash and Permitted Investments on deposit in the Series 2009-2 Collection Account and available for reduction of the Class A Principal Amount, in each case as of such date.
Class A Asset Amount means, as of any date of determination, the product of (i) the Class A Asset Percentage as of such date and (ii) the Aggregate Asset Amount as of such date.
Class A Asset Percentage means, as of any date of determination, a fraction, the numerator of which shall be equal to the Class A Required Asset Amount, determined during the Series 2009-2 Revolving Period as of the end of the immediately preceding Related Month (or, until the end of the initial Related Month in which the Series 2009-2 Closing Date occurs, on the Series 2009-2 Closing Date), or, during the
6
Series 2009-2 Controlled Amortization Period and the Series 2009-2 Rapid Amortization Period, as of the end of the Series 2009-2 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 in which the Series 2009-2 Closing Date occurs, as of the Series 2009-2 Closing Date and (II) as of the same date as in clause (I), the Aggregate Required Asset Amount.
Class A Available Cash Collateral Account Amount means, as of any date of determination, with respect to each Class A Cash Collateral Account, the amount on deposit in such Class A Cash Collateral Account (after giving effect to any deposits thereto and withdrawals and releases therefrom on such date).
Class A Available Reserve Account Amount means, as of any date of determination, the amount on deposit in the Class A Reserve Account.
Class A Cash Collateral Account has the meaning specified in Section 2.8(f) of this Series Supplement.
Class A Cash Collateral Account Interest and Earnings means, with respect to a Class A Cash Collateral Account, all interest and earnings (net of losses and investment expenses) paid on funds on deposit in such Class A Cash Collateral Account.
Class A Cash Collateral Account Percentage means, as of any date of determination, the percentage equivalent of a fraction, the numerator of which is the aggregate Class A Available Cash Collateral Account Amount for all Class A Cash Collateral Accounts as of such date and the denominator of which is the Class A Letter of Credit Liquidity Amount as of such date.
Class A Cash Collateral Account Surplus means, with respect to any Payment Date, the lesser of (a) the aggregate Class A Available Cash Collateral Account Amount for all Class A Cash Collateral Accounts on such Payment Date and (b) the lesser of (i) the excess, if any, of the Class A Adjusted Enhancement Amount (after giving effect to any withdrawal from the Class A Reserve Account on such Payment Date) over the Class A Required Enhancement Amount in each case on such Payment Date and (ii) the excess, if any, of the Class A Adjusted Liquidity Amount over the Class A Required Liquidity Amount in each case on such Payment Date.
Class A Certificate of Credit Demand means a certificate in the form of Annex A to a Class A Letter of Credit.
Class A Certificate of Termination Demand means a certificate in the form of Annex C to a Class A Letter of Credit.
Class A Certificate of Unpaid Demand Note Demand means a certificate in the form of Annex B to Class A Letter of Credit.
7
Class A Controlled Distribution Amount means a Class A-1 Controlled Distribution Amount or a Class A-2 Controlled Distribution Amount, as the context may require.
Class A Deficiency Amount means a Class A-1 Deficiency Amount or a Class A-2 Deficiency Amount, as the context may require.
Class A Disbursement shall mean any Class A LOC Credit Disbursement, any Class A LOC Termination Disbursement or any Class A LOC Unpaid Demand Note Disbursement under the Class A Letters of Credit or any combination thereof, as the context may require.
Class A Downgrade Event has the meaning specified in Section 2.8(c) of this Series Supplement.
Class A Eligible Letter of Credit Provider means a person having, at the time of the issuance of the related Class A Letter of Credit, a long-term senior unsecured debt rating (or the equivalent thereof) of at least A1 from Moodys and a short-term senior unsecured debt rating of at least P-1 from Moodys.
Class A Enhancement Amount means, as of any date of determination, the sum of (i) the Class A Overcollateralization Amount as of such date, (ii) the Class A Letter of Credit Amount as of such date and (iii) the Class A Available Reserve Account Amount as of such date (after giving effect to any deposits thereto and withdrawals and releases therefrom on such date).
Class A Enhancement Deficiency means, on any day, the amount, if any, by which the Class A Adjusted Enhancement Amount as of such day is less than the Class A Required Enhancement Amount as of such day.
Class A Global Note means a Regulation S Global Note, a Restricted Global Note or an Unrestricted Global Note.
Class A Highest Enhancement Percentage means, as of any date of determination, the sum of (a) 0% and (b) the Class A Intermediate Enhancement Percentage as of such date.
Class A Highest Enhancement Vehicle Percentage means, as of any date of determination, the sum of (a) the Non-Program Vehicle Percentage as of such date and (b) the Bankrupt Manufacturer Vehicle Percentage as of such date.
Class A Intermediate Enhancement Percentage means, as of any date of determination, the sum of (a) 55% 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 2009-2 Closing Date) and (y) the lowest Market Value
8
Average as of any Determination Date within the preceding 12 calendar months (or such fewer number of months as have elapsed since the Series 2009-2 Closing Date).
Class A Intermediate Enhancement Vehicle Percentage means, as of any date of determination, the excess of (i) 100% over (ii) the sum of (x) the Class A Lowest Enhancement Vehicle Percentage as of such date plus (y) the Class A Highest Enhancement Vehicle Percentage as of such date.
Class A Letter of Credit means an irrevocable letter of credit, substantially in the form of Exhibit B to this Series Supplement, issued by a Class A Eligible Letter of Credit Provider in favor of the Trustee for the benefit of the Class A Noteholders; provided that any Class A Letter of Credit issued after the Series 2009-2 Closing Date that is not in a form substantially similar to a Class A Letter of Credit in effect on the Series 2009-2 Closing Date shall be subject to satisfaction of the Series 2009-2 Rating Agency Condition.
Class A 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 all Class A Letters of Credit, as specified therein, and (ii) if any Class A Cash Collateral Account has been established and funded pursuant to Section 2.8 of this Series Supplement, the aggregate Class A Available Cash Collateral Account Amount for all such Class A Cash Collateral Accounts on such date and (b) the outstanding principal amount of the Series 2009-2 Demand Note on such date.
Class A Letter of Credit Expiration Date means, with respect to any Class A Letter of Credit, the expiration date set forth in such Class A Letter of Credit, as such date may be extended in accordance with the terms of such Class A Letter of Credit.
Class A 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 Class A Letter of Credit, as specified therein, and (b) if any Class A Cash Collateral Account has been established and funded pursuant to Section 2.8 of this Series Supplement, the aggregate Class A Available Cash Collateral Account Amount for all such Class A Cash Collateral Accounts on such date.
Class A Letter of Credit Provider means the issuer of a Class A Letter of Credit.
Class A Letter of Credit Reimbursement Agreement means any and each reimbursement agreement providing for the reimbursement of a Class A Letter of Credit Provider for draws under its Class A Letter of Credit, as the same may be amended, restated, modified or supplemented from time to time in accordance with its terms.
Class A Liquidity Amount means, as of any date of determination, the sum of (a) the Class A Letter of Credit Liquidity Amount on such date and (b) the Class
9
A Available Reserve Account Amount on such date (after giving effect to any deposits thereto on such date).
Class A Liquidity Deficiency means, as of any date of determination, the amount, if any, by which the Class A Adjusted Liquidity Amount is less than the Class A Required Liquidity Amount as of such date.
Class A Liquidity Surplus means, with respect to any date of determination, the excess, if any, of the Class A Adjusted Liquidity Amount over the Class A Required Liquidity Amount, in each case as of such date.
Class A LOC Credit Disbursement means an amount drawn under a Class A Letter of Credit pursuant to a Class A Certificate of Credit Demand.
Class A LOC Termination Disbursement means an amount drawn under a Class A Letter of Credit pursuant to a Class A Certificate of Termination Demand.
Class A LOC Unpaid Demand Note Disbursement means an amount drawn under a Class A Letter of Credit pursuant to a Class A Certificate of Unpaid Demand Note Demand.
Class A Lowest Enhancement Percentage means, with respect to any date of determination, 25%.
Class A 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.
Class A Monthly Interest means, with respect to any Series 2009-2 Interest Period, the sum of Class A-1 Monthly Interest and Class A-2 Monthly Interest for such Series 2009-2 Interest Period.
Class A Noteholders means, collectively, the Class A-1 Noteholders and the Class A-2 Noteholders.
Class A Note Owner means, with respect to any Class A Note that is a Class A Global Note, any Person who is a beneficial owner of an interest in such Class A Global Note, as reflected on the books of DTC, or on the books of a Person maintaining an account with DTC (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of DTC).
Class A Note Rate means the Class A-1 Note Rate or the Class A-2 Note Rate, as the context may require.
10
Class A Notes means, collectively, the Class A-1 Notes and the Class A-2 Notes.
Class A Notice of Reduction means a notice in the form of Annex E to a Class A Letter of Credit.
Class A Overcollateralization Amount means, as of any date of determination, (i) on which no Aggregate Asset Amount Deficiency exists, the Class A Required Overcollateralization Amount as of such date or (ii) on which an Aggregate Asset Amount Deficiency exists, the excess, if any, of the Class A Asset Amount over the Class A Adjusted Principal Amount as of such date.
Class A Principal Amount means, as of any date of determination, the sum of the Class A-1 Principal Amount and the Class A-2 Principal Amount, in each case as of such date.
Class A Purchase Agreement means that certain purchase agreement, dated October 16, 2009 among HVF, Hertz and Barclays Capital Inc. and Banc of America Securities LLC, as representatives of the several Initial Purchasers.
Class A Required Asset Amount means, as of any date of determination, the sum of the Class A Adjusted Principal Amount and the Class A Required Overcollateralization Amount, in each case as of such date.
Class A Required Asset Amount Percentage means, as of any date of determination, the percentage equivalent of a fraction, the numerator of which is the Class A Required Asset Amount and the denominator of which is the Aggregate Required Asset Amount, in each case, as of such date.
Class A Required Enhancement Amount means, as of any date of determination, the sum of (i) the product of (x) the Class A Required Enhancement Percentage as of such date and (y) the Class A Adjusted Principal Amount as of such date and (ii) the Class A Required Incremental Enhancement Amount as of such date; provided , however , that, as of any date of determination after the occurrence of a Series 2009-2 Limited Liquidation Event of Default, the Class A Required Enhancement Amount shall equal the lesser of (x) the Class A Adjusted Principal Amount as of such date and (y) the sum of (l) the product of the Class A Required Enhancement Percentage as of such date of determination and the Class A Adjusted Principal Amount as of the date of the occurrence of such Series 2009-2 Limited Liquidation Event of Default and (2) the Class A Required Incremental Enhancement Amount as of such date of determination.
Class A Required Incremental Enhancement Amount means
(i) as of the Series 2009-2 Closing Date, $0; and
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(ii) as of any date thereafter on which the Class A Adjusted Principal Amount is greater than zero, the product of (A) the Class A 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, Nissan, GM, Kia, 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 2009-2 Maximum Non-Eligible Vehicle Amount as of such immediately preceding Business Day, (2) the excess, if any, of the Hyundai Amount over the Series 2009-2 Maximum Hyundai Amount as of such immediately preceding Business Day, (3) the excess, if any, of the Jaguar Amount over the Series 2009-2 Maximum Jaguar Amount as of such immediately preceding Business Day, (4) the excess, if any, of the Kia Amount over the Series 2009-2 Maximum Kia Amount as of such immediately preceding Business Day, (5) the excess, if any, of the Land Rover Amount over the Series 2009-2 Maximum Land Rover Amount as of such immediately preceding Business Day, (6) the excess, if any, of the Mazda Amount over the Series 2009-2 Maximum Mazda Amount as of such immediately preceding Business Day, (7) the excess, if any, of the Mitsubishi Amount over the Series 2009-2 Maximum Mitsubishi Amount as of such immediately preceding Business Day, (8) the excess, if any, of the Subaru Amount over the Series 2009-2 Maximum Subaru Amount as of such immediately preceding Business Day, (9) the excess, if any, of the Suzuki Amount over the Series 2009-2 Maximum Suzuki Amount as of such immediately preceding Business Day, (10) the excess, if any, of the Volvo Amount over the Series 2009-2 Maximum Volvo Amount as of such immediately preceding Business Day, (11) the excess, if any, of the Non-Eligible Manufacturer Amount over the Series 2009-2 Maximum Non-Eligible Manufacturer Amount as of such immediately preceding Business Day, (12) 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, Nissan, GM, Kia, 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 2009-2 Maximum Manufacturer Non-Eligible Vehicle Amount for such Manufacturer as of such immediately preceding Business Day, (13) the excess, if any of the Audi Amount over the Series 2009-2 Maximum Audi Amount as of such immediately preceding Business Day, (14) the excess, if any of the BMW Amount over the Series 2009-2 Maximum BMW Amount as of such immediately preceding Business Day, (15) the excess, if any of the Ford Amount over the Series 2009-2 Maximum Ford Amount as of such immediately preceding Business Day, (16) the excess, if any of the Honda Amount over the Series 2009-2 Maximum Honda Amount as of such immediately preceding Business Day (17) the excess, if any of the Lexus Amount over the Series 2009-2 Maximum Lexus Amount as of such immediately preceding Business
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Day, (18) the excess, if any of the GM Amount over the Series 2009-2 Maximum GM Amount as of such immediately preceding Business Day, (19) the excess, if any of the Mercedes Amount over the Series 2009-2 Maximum Mercedes Amount as of such immediately preceding Business Day, (20) the excess, if any of the Chrysler Amount over the Series 2009-2 Maximum Chrysler Amount as of such immediately preceding Business Day (21) the excess, if any of the Nissan Amount over the Series 2009-2 Maximum Nissan Amount as of such immediately preceding Business Day, (22) the excess, if any of the Toyota Amount over the Series 2009-2 Maximum Toyota Amount as of such immediately preceding Business Day, (23) the excess, if any of the Volkswagen Amount over the Series 2009-2 Maximum Volkswagen Amount as of such immediately preceding Business Day, (24) the excess, if any of the Aggregate BMW/Lexus/Mercedes/Audi Amount over the Series 2009-2 Maximum Aggregate BMW/Lexus/Mercedes/Audi Amount as of such immediately preceding Business Day, (25) the excess, if any of the Aggregate Kia/Subaru/Hyundai Amount over the Series 2009-2 Maximum Aggregate Kia/Subaru/Hyundai Amount as of such immediately preceding Business Day, and (26) the excess, if any of the HVF Service Vehicle Amount over the Series 2009-2 Maximum HVF Service Vehicle 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 2009-2 Maximum Manufacturer Non-Eligible Vehicle Amount for so long as each of Volvo and Mazda is an affiliate of Ford.
Class A Required Enhancement Percentage means, as of any date of determination, the sum of (i) the product of (A) the Class A Lowest Enhancement Percentage as of such date times (B) the Class A Lowest Enhancement Vehicle Percentage as of such date and (ii) the product of (A) the Class A Intermediate Enhancement Percentage as of such date times (B) the Class A Intermediate Enhancement Vehicle Percentage as of such date and (iii) the product of (A) the Class A Highest Enhancement Percentage as of such date times (B) the Class A Highest Enhancement Vehicle Percentage as of such date.
Class A Required Liquidity Amount means, as of any date of determination, an amount equal to the product of (i) (x) for any date of determination on or prior to the December 2012 Payment Date, 3.00% and (y) for any date of determination thereafter, 3.25% and (ii) the Class A Adjusted Principal Amount as of such date.
Class A Required Overcollateralization Amount means, as of any date of determination, the excess, if any, of (a) the Class A Required Enhancement Amount as of such date over (b) the sum of (i) the Class A 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 Class A Letter of Credit Amount as of such date.
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Class A 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 Class A Required Liquidity Amount over the Class A 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 Class A Letter of Credit if at the time of such calculation (A) such Class A Letter of Credit will not be in full force and effect, (B) an Event of Bankruptcy shall have occurred with respect to the Class A Letter of Credit Provider of such Class A Letter of Credit, (C) such Class A Letter of Credit Provider shall have repudiated such Class A Letter of Credit or failed to honor a draw thereon made in accordance with the terms thereof or (D) a Class A Downgrade Event shall have occurred and be continuing for at least 30 days with respect to the Class A Letter of Credit Provider of such Class A Letter of Credit and (b) the excess, if any, of the Class A Required Enhancement Amount over the Class A Adjusted Enhancement Amount (excluding therefrom the Class A Available Reserve Account Amount), in each case as of such date.
Class A Reserve Account has the meaning specified in Section 2.7(a) of this Series Supplement.
Class A Reserve Account Collateral has the meaning specified in Section 2.7(d) of this Series Supplement.
Class A Reserve Account Surplus means, with respect to any date of determination, the excess, if any, of the Class A Available Reserve Account Amount (after giving effect to any deposits thereto and withdrawals and releases therefrom on such date) over the Class A Required Reserve Account Amount, in each case as of such date.
Class A Total Monthly Interest means, for each Payment Date the sum of (A) the Class A-1 Monthly Interest with respect to the related Series 2009-2 Interest Period, (B) the Class A-2 Monthly Interest with respect to the related Series 2009-2 Interest Period, and (C) an amount equal to the aggregate amount of any unpaid Class A Deficiency Amounts after giving effect to all payments made on the preceding Payment Date (together with any accrued interest on such Class A Deficiency Amounts at the applicable Class A Note Rate).
Class A-1 Carryover Controlled Amortization Amount means, with respect to the Class A-1 Notes for any Related Month during the Three-Year Notes Controlled Amortization Period, the amount, if any, by which the portion of the Monthly Total Principal Allocation for the previous Related Month allocated to pay the Class A-1 Controlled Distribution Amount was less than the Class A-1 Controlled Distribution Amount for the previous Related Month; provided , however , that for the first Related Month in the Three-Year Notes Controlled Amortization Period, the Class A-1 Carryover Controlled Amortization Amount will be zero.
Class A-1 Controlled Amortization Amount means (i) for any Related Month other than the last Related Month during the Three-Year Notes Controlled
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Amortization Period, $83,333,333.33 and (ii) for the last Related Month during the Three-Year Notes Controlled Amortization Period, $88,333,333.35.
Class A-1 Controlled Distribution Amount means, with respect to any Related Month during the Three-Year Notes Controlled Amortization Period, an amount equal to the sum of the Class A-1 Controlled Amortization Amount for such Related Month and any Class A-1 Carryover Controlled Amortization Amount for such Related Month.
Class A-1 Deficiency Amount has the meaning specified in Section 2.3(g) of this Series Supplement.
Class A-1 Initial Principal Amount means the aggregate initial principal amount of the Class A-1 Notes, which is $500,000,000.
Class A-1 Monthly Interest means, (a) with respect to the initial Series 2009-2 Interest Period, an amount equal to the product of (i) the Class A-1 Note Rate, (ii) the Class A-1 Initial Principal Amount and (iii) 32/360 and (b) with respect to any other Series 2009-2 Interest Period, an amount equal to the product of (i) one-twelfth of the Class A-1 Note Rate and (ii) the Class A-1 Principal Amount on the first day of such Series 2009-2 Interest Period, after giving effect to any principal payments made on such date.
Class A-1 Note Rate means 4.26% per annum.
Class A-1 Noteholder means the Person in whose name a Class A-1 Note is registered in the Note Register.
Class A-1 Notes means any one of the Series 2009-2 4.26% Rental Car Asset Backed Notes, Class A-1, executed by HVF and authenticated by or on behalf of the Trustee, substantially in the form of Exhibit A-1-1 , Exhibit A-1-2 or Exhibit A-1-3 .
Class A-1 Principal Amount means when used with respect to any date, an amount equal to (a) the Class A-1 Initial Principal Amount minus (b) the amount of principal payments made to the Class A-1 Noteholders on or prior to such date minus (c) the principal amount of any Class A-1 Notes that have been delivered to the Trustee for cancellation pursuant to the Base Indenture and for which no replacement Class A-1 Note was issued on or prior to such date.
Class A-2 Carryover Controlled Amortization Amount means, with respect to the Class A-2 Notes for any Related Month during the Five-Year Notes Controlled Amortization Period, the amount, if any, by which the portion of the Monthly Total Principal Allocation for the previous Related Month allocated to pay the Class A-2 Controlled Distribution Amount was less than the Class A-2 Controlled Distribution Amount for the previous Related Month; provided , however , that for the first Related
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Month in the Five-Year Notes Controlled Amortization Period, the Class A-2 Carryover Controlled Amortization Amount will be zero.
Class A-2 Controlled Amortization Amount means (i) for any Related Month other than the last Related Month during the Five-Year Notes Controlled Amortization Period, $116,666,666.66 and (ii) for the last Related Month during the Five-Year Notes Controlled Amortization Period, $116,666,666.70.
Class A-2 Controlled Distribution Amount means, with respect to any Related Month during the Five-Year Notes Controlled Amortization Period, an amount equal to the sum of the Class A-2 Controlled Amortization Amount for such Related Month and any Class A-2 Carryover Controlled Amortization Amount for such Related Month.
Class A-2 Deficiency Amount has the meaning specified in Section 2.3(g) of this Series Supplement.
Class A-2 Initial Principal Amount means the aggregate initial principal amount of the Class A-2 Notes, which is $700,000,000.
Class A-2 Monthly Interest means, (a) with respect to the initial Series 2009-2 Interest Period, an amount equal to the product of (i) the Class A-2 Note Rate, (ii) the Class A-2 Initial Principal Amount and (iii) 32/360 and (b) with respect to any other Series 2009-2 Interest Period, an amount equal to the product of (i) one-twelfth of the Class A-2 Note Rate and (ii) the Class A-2 Principal Amount on the first day of such Series 2009-2 Interest Period, after giving effect to any principal payments made on such date.
Class A-2 Noteholder means the Person in whose name a Class A-2 Note is registered in the Note Register.
Class A-2 Note Rate means 5.29% per annum.
Class A-2 Notes means any one of the Series 2009-2 5.29% Rental Car Asset Backed Notes, Class A-2, executed by HVF and authenticated by or on behalf of the Trustee, substantially in the form of Exhibit A-2-1 , Exhibit A-2-2 or Exhibit A-2-3 .
Class A-2 Principal Amount means when used with respect to any date, an amount equal to (a) the Class A-2 Initial Principal Amount minus (b) the amount of principal payments made to the Class A-2 Noteholders on or prior to such date minus (c) the principal amount of any Class A-2 Notes that have been delivered to the Trustee for cancellation pursuant to the Base Indenture and for which no replacement Class A-2 Note was issued on or prior to such date.
Class B Noteholders means, collectively, the Class B-1 Noteholders and the Class B-2 Noteholders.
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Class B Notes has the meaning set forth in the preamble.
Class B Notes Closing Date has the meaning specified in Section 6.18(a)(i) of this Series Supplement.
Class B-1 Noteholder means the Person in whose name a Class B-1 Note is registered in the Note Register.
Class B-1 Notes has the meaning set forth in the preamble.
Class B-2 Noteholder means the Person in whose name a Class B-2 Note is registered in the Note Register.
Class B-2 Notes has the meaning set forth in the preamble.
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 HVF 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 the benefits of such new Manufacturer Program from HVF to the Collateral Agent acknowledged by such 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 described in clause (i) or (ii) above, the actions and payments in subclauses (B) and (C) of each such clause have been taken or made.
Demand Notice has the meaning specified in Section 2.5(b)(ii) of this Series Supplement.
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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 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 as of such date 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 as of such date 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.
Excluded Redesignated Vehicle means each HVF 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 HVF Vehicle becomes a Redesignated Vehicle to and until the Inclusion Date for such HVF Vehicle.
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Financial Assets has the meaning specified in Section 2.10(b)(i) of this Series Supplement.
Five-Year Notes Controlled Amortization Period means the period commencing at the close of business on August 31, 2012 (or, if such day is not a Business Day, the Business Day immediately preceding such day) and continuing to the earlier of (i) the commencement of the Series 2009-2 Rapid Amortization Period, and (ii) the date on which the Class A-2 Notes and Class B-2 Notes, if any, are paid in full.
Five-Year Notes Expected Final Payment Date means the March 2015 Payment Date.
Five-Year Notes Legal Final Payment Date means the March 2016 Payment Date.
Fleet Equity Amount has the meaning specified in the Ford Letter of Credit Facility Agreement.
Fleet Equity Condition means, as of any date of determination, a condition that is satisfied if the Fleet Equity Amount as of such date equals or exceeds the Required Minimum Fleet Equity Amount as of such date.
Ford 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 Ford as of such date.
Ford Letter of Credit Facility Agreement means that certain Letter of Credit Facility Agreement, dated as of December 21, 2005, by and among Hertz, HVF, and Ford, as amended, modified, restated, or supplemented from time to time
Ford LOC Exposure Amount has the meaning specified in the Ford Letter of Credit Facility Agreement.
GM 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 GM as of such date.
Honda 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 Honda as of such date.
HVF Service Vehicle Amoun t 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.
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HVF Service Vehicles means, an HVF Vehicle used by Hertzs 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 HVF Vehicle manufactured by a Manufacturer with respect to which an Event of Bankruptcy has occurred, the date that is 30 days after the earlier of (i) the date such HVF Vehicle became a Redesignated Vehicle and (ii) the date upon which such Event of Bankruptcy with respect to the Manufacturer of such HVF Vehicle first occurred.
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 or the Nominee under the Indenture or the Related Documents plus any other operating expenses of HVF then payable by HVF.
Ineligible Receivable Manufacturer means a Manufacturer that is either a Category 2 Manufacturer, a Category 3 Manufacturer, or a Bankrupt Manufacturer.
Initial Purchaser means Barclays Capital Inc., Banc of America Securities LLC, BNP Paribas Securities Corp., Calyon Securities (USA) Inc., and RBS Securities Inc., each as an initial purchaser under the Class A Purchase Agreement.
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.
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.
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Lease Payment Deficit Notice has the meaning specified in Section 2.3(c) of this Series Supplement.
Legal Final Payment Date means the Three-Year Notes Legal Final Payment Date or the Five-Year Notes Legal Final Payment Date, as the context may require.
Manufacturer Eligible Program Vehicle Amount means, as of any date of determination, with respect to any Manufacturer, 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 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 as of such date 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
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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 under this Series Supplement.
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 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 as of such date 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
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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 under this Series Supplement.
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 the Non-Program Vehicles (excluding any Excluded Redesignated Vehicles) as of such preceding Determination Date and the two Determination Dates precedent thereto.
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.
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.
Monthly Total Principal Allocation means for any Related Month or Series 2009-2 Rapid Amortization Principal Collection Period, the total of (i) all Series 2009-2 Principal Allocations with respect to such Related Month or Series 2009-2 Rapid Amortization Principal Collection Period, as applicable, plus (ii) any amounts deposited in the Series 2009-2 Collection Account during the Series 2009-2 Controlled Amortization Period after the payment of all required interest payments pursuant to Section 2.3(h)(iv)(B) of this Series Supplement, and minus (iii) any amounts deposited in the Series 2009-2 Accrued Interest Account during the Series 2009-2 Rapid Amortization Period pursuant to Section 2.2(c)(ii) of this Series Supplement.
New York UCC has the meaning specified in Section 2.10(a) of this Series Supplement.
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
23
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 as of such date 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 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
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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 as of such date 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-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.
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 (other than any Non-Program Vehicles that are returned to a Manufacturer pursuant to a Manufacturer Program in accordance with Section 2.5(b) of the HVF Lease) 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-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
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on deposit in the Collection Account and any HVF Exchange Account, in each case as of such date.
Outstanding means with respect to the Series 2009-2 Notes, all Series 2009-2 Notes theretofore authenticated and delivered under the Indenture, except (a) Series 2009-2 Notes theretofore cancelled or delivered to the Registrar for cancellation, (b) Series 2009-2 Notes which have not been presented for payment but funds for the payment of which are on deposit in the Series 2009-2 Distribution Account and are available for payment of such Series 2009-2 Notes, and Series 2009-2 Notes which are considered paid pursuant to Section 8.1 of the Base Indenture, or (c) Series 2009-2 Notes in exchange for or in lieu of other Series 2009-2 Notes which have been authenticated and delivered pursuant to the Indenture unless proof satisfactory to the Trustee is presented that any such Series 2009-2 Notes are held by a purchaser for value.
Past Due Rent Payment has the meaning specified in Section 2.2(d) of this Series Supplement.
Principal Deficit Amount means, on any date of determination, the excess, if any, of (a) the Class A Adjusted Principal Amount on such date (after giving effect to the distribution of the Monthly Total Principal Allocation for the Related Month or, during the Series 2009-2 Rapid Amortization Period, the related Series 2009-2 Rapid Amortization Collection Period) over (b) the Series 2009-2 Asset Amount on such date; provided , however , that the Principal Deficit Amount on any date that is prior to the Five-Year Notes 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 Class A Adjusted Principal Amount on such date (after giving effect to the distribution of the Monthly Total Principal Allocation for the Related Month or, during the Series 2009-2 Rapid Amortization Period, the related Series 2009-2 Rapid Amortization Collection Period) over (y) the sum of (1) the Series 2009-2 Asset Amount on such date and (2) the lesser of (a) the Series 2009-2 Liquidity Amount on such date and (b) the Class A Required Liquidity Amount on such date.
Proposed Class B Notes has the meaning specified in Section 6.18 of this Series Supplement.
Pro Rata Share means, with respect to any Class A Letter of Credit Provider, as of any date, the fraction (expressed as a percentage) obtained by dividing (A) the available amount under such Class A Letter of Credit Providers Class A Letter of Credit as of such date by (B) an amount equal to the aggregate available amount under all Class A Letters of Credit, as of such date provided , that such Class A Letter of Credit Provider has not complied with its obligation to pay the Trustee the amount of any draw under its Class A Letter of Credit made prior to such date, the available amount under such Class A Letter of Credit Providers Class A Letter of Credit as of such date shall be treated as reduced (for calculation purposes only) by the amount of such unpaid demand
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and shall not be reinstated for purposes of such calculation unless and until the date as of which such Class A 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 Class A Letter of Credit Providers actual liability in respect of any failure to pay any demand under its Class A Letter of Credit).
QIB has the meaning specified in Section 5.1 of this Series Supplement.
Rating Agencies means, with respect to the Series 2009-2 Notes, Moodys and any other nationally recognized rating agency rating the Series 2009-2 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; provided that for the avoidance of doubt, if a Redesignated Vehicle is subsequently redesignated as a Program Vehicle pursuant to Section 2.6 of the HVF Lease, such Vehicle shall no longer constitute a Redesignated Vehicle following such subsequent redesignation.
Regulation S means Regulation S promulgated under the Securities Act.
Regulation S Global Notes has the meaning specified in Section 5.3 of this Series Supplement.
Required Minimum Fleet Equity Amount has the meaning specified in the Ford Letter of Credit Facility Agreement.
Required Noteholders means, Class A Noteholders holding more than 50% of the Class A Principal Amount (excluding any Class A Notes held by HVF or any Affiliate of HVF (other than an Affiliate Issuer so long as such Affiliate Issuer has assigned all voting, consent, and control rights associated with such Class A Notes to Persons that are not Affiliates of HVF).
Restricted Global Notes has the meaning specified in Section 5.2 of this Series Supplement.
Restricted Notes means the Restricted Global Notes, and all other Class A Notes evidencing the obligations, or any portion of the obligations, initially evidenced by the Restricted Global Notes, other than certificates transferred or exchanged upon certification as provided in Section 5 of this Series Supplement.
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Restricted Period means, with respect to any Class A Notes, the period commencing on the Series 2009-2 Closing Date and ending on the 40th day after such Series 2009-2 Closing Date.
Rule 144A means Rule 144A promulgated under the Securities Act.
Senior Credit Facilities means Hertzs (a) senior secured asset based revolving loan facility, provided under a credit agreement, dated as of December 21, 2005, among Hertz Equipment Rental Corporation, the Servicer together with certain of Hertzs Canadian subsidiaries, the several lenders from time to time party thereto, Deutsche Bank AG, New York Branch, as administrative agent and collateral agent, Deutsche Bank AG, Canada Branch, as Canadian agent and Canadian collateral agent, Lehman Commercial Paper Inc., as syndication agent, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as documentation agent (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)), (b) senior secured term loan facility, provided under a credit agreement, dated as of December 21, 2005, among Hertz, the several lenders from time to time party thereto, 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 documentation agent (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, that certain Third Amendment to Credit Agreement, dated as of May 23, 2007, and that certain Fourth Amendment to Credit Agreement, dated as of March 31, 2009)), 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 2009-2 Series Account Collateral has the meaning specified in Section 2.1(d) of this Series Supplement.
Series 2009-2 Accrued Amounts means, on any date of determination, the sum of (i) accrued and unpaid interest on the Series 2009-2 Notes as of such date and (ii) the product of (A) the Indenture Carrying Charges payable on the next succeeding Payment Date times (B) the Series 2009-2 Percentage as of such date of determination.
Series 2009-2 Accrued Interest Account has the meaning specified in Section 2.1(a) of this Series Supplement.
Series 2009-2 Asset Amount means, as of any date of determination, the product of (i) the Series 2009-2 Invested Percentage (with respect to principal) as of such date and (ii) the Aggregate Asset Amount as of such date.
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Series 2009-2 Closing Date means October 23, 2009.
Series 2009-2 Collateral means the Collateral, each Class A Letter of Credit, the Series 2009-2 Series Account Collateral, each Class A Cash Collateral Account Collateral, the Series 2009-2 Demand Note, the Series 2009-2 Distribution Account Collateral, and the Class A Reserve Account Collateral.
Series 2009-2 Collection Account has the meaning specified in Section 2.1(a) of this Series Supplement.
Series 2009-2 Controlled Amortization Period means the Three-Year Notes Controlled Amortization Period or the Five-Year Notes Controlled Amortization Period, as the context requires.
Series 2009-2 Demand Note means each demand note made by Hertz, substantially in the form of Exhibit H 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.
Series 2009-2 Deposit Date has the meaning specified in Section 2.2 of this Series Supplement.
Series 2009-2 Designated Account has the meaning specified in Section 2.10(a) of this Series Supplement.
Series 2009-2 Distribution Account has the meaning specified in Section 2.9(a) of this Series Supplement.
Series 2009-2 Distribution Account Collateral has the meaning specified in Section 2.9(d) of this Series Supplement.
Series 2009-2 Excess Collection Account has the meaning specified in Section 2.1(a) of this Series Supplement..
Series 2009-2 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 2009-2 Interest Period shall commence on and include the Series 2009-2 Closing Date and end on and include November 24, 2009.
Series 2009-2 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 2009-2 Required Asset Amount, determined (x) during
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the Series 2009-2 Revolving Period as of the end of the immediately preceding Related Month (or, until the end of the initial Related Month after the Series 2009-2 Closing Date, on the Series 2009-2 Closing Date), or (y) during the Series 2009-2 Controlled Amortization Period and the Series 2009-2 Rapid Amortization Period as of the last day of the Series 2009-2 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 2009-2 Closing Date, as of the Series 2009-2 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 2009-2 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 2009-2 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 2.2(a) , (b) or (c) of this Series Supplement would have been deposited into the Series 2009-2 Accrued Interest Account if all payments of Monthly Variable Rent required to have been made under the HVF Lease from but 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 2.2(a) , (b) or (c) of this Series Supplement have been received for deposit into the Series 2009-2 Accrued Interest Account from but excluding the preceding Payment Date to and including such Payment Date.
Series 2009-2 Lease Payment Deficit means either a Series 2009-2 Lease Interest Payment Deficit or a Series 2009-2 Lease Principal Payment Deficit.
Series 2009-2 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 2009-2 Lease Principal Payment Deficit, if any, on the preceding Payment Date over (y) the amount deposited in the Series 2009-2 Distribution Account pursuant to Section 2.5(b)(iv) of this Series Supplement on such preceding Payment Date on account of such Series 2009-2 Lease Principal Payment Deficit.
Series 2009-2 Lease Principal Payment Deficit means on any Payment Date the sum of (a) the Series 2009-2 Monthly Lease Principal Payment Deficit for such Payment Date and (b) the Series 2009-2 Lease Principal Payment Carryover Deficit for such Payment Date.
Series 2009-2 Limited Liquidation Event of Default means, so long as such event or condition continues, any event or condition of the type specified in clauses (a) through (g) of Article III of this Series Supplement continues for thirty (30) days (without double counting the cure period, if any, provided therein); provided however ,
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that if (i) within such thirty (30) day period, such Amortization Event with respect to the Series 2009-2 Notes has been cured and (ii) the Trustee has received from the Required Noteholders with respect to the Series 2009-2 Notes a waiver of the occurrence of such Series 2009-2 Limited Liquidation Event of Default, then such event or condition shall no longer constitute a Series 2009-2 Limited Liquidation Event of Default.
Series 2009-2 Maximum Aggregate BMW/Lexus/Mercedes/Audi Amount means, as of any day, an amount equal to 12% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Aggregate Kia/Subaru/Hyundai Amount means, as of any day, an amount equal to 35% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Audi Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum BMW Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Chrysler Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Ford Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum GM Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Honda Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 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 2009-2 Maximum Hyundai Amount means, as of any day, an amount equal to 13% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Jaguar Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Kia Amount means, as of any day, an amount equal to 20% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Land Rover Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
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Series 2009-2 Maximum Lexus Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Manufacturer Non-Eligible Vehicle Amount means, as of any day, (x) with respect to Toyota, an amount equal to 50% of the Non-Eligible Vehicle Amount and (y) with respect to any other Manufacturer, an amount equal to 40% of the Non-Eligible Vehicle Amount.
Series 2009-2 Maximum Mazda Amount means, as of any day, an amount equal to 20% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Mercedes Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Mitsubishi Amount means, as of any day, an amount equal to 10% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Nissan Amount means, as of any day, an amount equal to 20% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Non-Eligible Manufacturer Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Non-Eligible Vehicle Amount means, as of any day, an amount equal to 100% of the Adjusted Aggregate Asset Amount.
Series 2009-2 Maximum Subaru Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Suzuki Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Toyota Amount means, as of any day, an amount equal to 70% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Volkswagen Amount means, as of any day, an amount equal to 10% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 Maximum Volvo Amount means, as of any day, an amount equal to 5% of the Adjusted Aggregate Asset Amount on such day.
Series 2009-2 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 2.2(a) , (b) or (c) of this Series Supplement would have been deposited into the Series 2009-2 Collection Account if all payments required to have been made under the HVF Lease from but excluding the
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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 2.2(a) , (b) or (c) of this Series Supplement have been received for deposit into the Series 2009-2 Collection Account (without giving effect to any amounts deposited into the Series 2009-2 Accrued Interest Account pursuant to the proviso in Section 2.2(c)(ii) of this Series Supplement) from but excluding the preceding Payment Date to and including such Payment Date.
Series 2009-2 Noteholders means the Class A Noteholders and each person in whose name a Class B Note, if issued, is registered in the Note Register.
Series 2009-2 Notes means collectively, the Class A Notes and any Class B Notes, if issued.
Series 2009-2 Past Due Rent Payment has the meaning specified in Section 2.2(d) of this Series Supplement.
Series 2009-2 Percentage means, as of any date of determination, a fraction, expressed as a percentage, the numerator of which is the Class A Principal Amount as of such date and the denominator of which is the Aggregate Principal Amount as of such date.
Series 2009-2 Principal Allocation has the meaning specified in Section 2.2 (a)(ii) of this Series Supplement.
Series 2009-2 Rapid Amortization Period means the period beginning at 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 2009-2 Notes and ending upon the earlier to occur of (i) the date on which the Series 2009-2 Notes are paid in full and (ii) the termination of the Indenture.
Series 2009-2 Rapid Amortization Principal Collection Period means, with respect to any Payment Date during the Series 2009-2 Rapid Amortization Period, the period from but excluding the Determination Date immediately preceding the prior Payment Date (or, in the case of the first Payment Date during the Series 2009-2 Rapid Amortization Period, the period from and including the date of the commencement of such Series 2009-2 Rapid Amortization Period) to and including the Determination Date immediately preceding such Payment Date; provided that any Monthly Base Rent paid by the Lessee under the HVF Lease on a Payment Date during the Series 2009-2 Rapid Amortization Period shall be deemed to have been received during the Series 2009-2 Rapid Amortization Principal Collection Period with respect to such Payment Date.
Series 2009-2 Rating Agency Condition means, with respect to the Series 2009-2 Notes and any action, including the issuance of the Class B Notes or an additional Series of Notes, that each Rating Agency then rating the Series 2009-2 Notes
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shall have notified HVF and the Trustee in writing that such action will not result in a reduction or withdrawal of its then current ratings of the Series 2009-2 Notes.
Series 2009-2 Required Asset Amount means, as of any date of determination, the sum of (i) the Class A Adjusted Principal Amount as of such date and (ii) the Class A Required Overcollateralization Amount as of such date.
Series 2009-2 Required Asset Amount Percentage means, as of any date of determination, the percentage equivalent of a fraction, the numerator of which is the Series 2009-2 Required Asset Amount and the denominator of which is the Aggregate Required Asset Amount as of such date.
Series 2009-2 Revolving Period means the period from and including the Series 2009-2 Closing Date to the earlier of (i) the commencement of the Series 2009-2 Rapid Amortization Period and (ii) the commencement of the Five-Year Notes Controlled Amortization Period; provided that during the Three-Year Notes Controlled Amortization Period the Series 2009-2 Revolving Period shall be suspended.
Series 2009-2 Series Accounts has the meaning specified in Section 2.1(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 outstanding under the Servicers Senior Credit Facilities becoming immediately due and payable and that has not been waived by the lenders under such facilities.
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.
Suzuki 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 Suzuki 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 Months 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
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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, subject to satisfaction of the Series 2009-2 Rating Agency Condition, at the request of HVF based on the average equipment and average mileage of each HVF Vehicle of such model class and 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 HVF Vehicle and any other factors deemed relevant by the Servicer.
Toyota 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 Toyota as of such date.
Three-Year Notes Controlled Amortization Period means the period commencing at the close of business on August 31, 2012 (or, if such day is not a Business Day, the Business Day immediately preceding such day) and continuing to the earlier of (i) the commencement of the Series 2009-2 Rapid Amortization Period, and (ii) the date on which the Class A-1 Notes and Class B-1 Notes, if any, are paid in full.
Three-Year Notes Expected Final Payment Date means the March 2013 Payment Date.
Three-Year Notes Legal Final Payment Date means the March 2014 Payment Date.
Unrestricted Global Notes has the meaning specified in Section 5.4(d) of this Series Supplement.
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.
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.
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ARTICLE II
SERIES 2009-2 ALLOCATIONS
With respect to the Series 2009-2 Notes only, the following shall apply:
Section 2.1. Series 2009-2 Series Accounts .
(a) Establishment of Series 2009-2 Series Accounts . HVF shall establish and maintain in the name of the Trustee for the benefit of the Series 2009-2 Noteholders three accounts: the Series 2009-2 Collection Account (such account, the Series 2009-2 Collection Account ), the Series 2009-2 Accrued Interest Account (such account, the Series 2009-2 Accrued Interest Account ) and the Series 2009-2 Excess Collection Account (such account, the Series 2009-2 Excess Collection Account and, together with the Series 2009-2 Collection Account and the Series 2009-2 Accrued Interest Account, the Series 2009-2 Series Accounts ). Each Series 2009-2 Series Account shall bear a designation clearly indicating that the funds deposited therein are held for the benefit of the Series 2009-2 Noteholders. Each Series 2009-2 Series Account shall be an Eligible Deposit Account. If a Series 2009-2 Series Account is at any time no longer an Eligible Deposit Account, HVF shall, within 10 Business Days of obtaining knowledge that such Series 2009-2 Series Account is no longer an Eligible Deposit Account, establish a new Series 2009-2 Series Account that is an Eligible Deposit Account. If a new Series 2009-2 Series Account is established, HVF shall instruct the Trustee in writing to transfer all cash and investments from the non-qualifying Series 2009-2 Series Account into the new Series 2009-2 Series Account. Initially, each of the Series 2009-2 Series Accounts will be established with BNY.
(b) Administration of the Series 2009-2 Series Accounts . HVF may instruct (by standing instructions or otherwise) the institution maintaining each of the Series 2009-2 Series Accounts to invest funds on deposit in such Series 2009-2 Series Account from time to time in Permitted Investments; provided , however , that (x) any such investment in the Series 2009-2 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 2009-2 Excess Collection Account) and (y) any such investment in the Series 2009-2 Collection Account or the Series 2009-2 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 2009-2 Collection Account or Series 2009-2 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 2009-2 Series Accounts shall remain uninvested.
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(c) Earnings from Series 2009-2 Series Accounts . All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Series 2009-2 Series Accounts shall be deemed to be on deposit therein and available for distribution.
(d) Series 2009-2 Series Accounts Constitute Additional Collateral for Series 2009-2 Notes . In order to secure and provide for the repayment and payment of the Note Obligations with respect to the Series 2009-2 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 2009-2 Noteholders, all of HVFs right, title and interest in and to the following (whether now or hereafter existing or acquired): (i) the Series 2009-2 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 2009-2 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 2009-2 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 2009-2 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 cash (the items in the foregoing clauses (i) through (vi) are referred to, collectively, as the Series 2009-2 Series Account Collateral ).
Section 2.2. Allocations with Respect to the Series 2009-2 Notes . The net proceeds from the initial sale of the Class A Notes shall be deposited into the Series 2009-2 Excess Collection Account on the Series 2009-2 Closing Date and the proceeds from any issuance of Class B Notes shall be deposited into the Series 2009-2 Excess Collection Account on the Class B Notes Closing Date and, in each case, shall be applied pursuant to Section 2.2(f) of this Series Supplement. On each Business Day on which Collections are deposited into the Collection Account (each such date, a Series 2009-2 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 2.2 :
(a) Allocations of Collections During the Series 2009-2 Revolving Period . During the Series 2009-2 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 2009-2 Deposit Date, to apply from all amounts deposited into the Collection Account as set forth below:
(i) allocate to and deposit in the Series 2009-2 Collection Account an amount equal to the Series 2009-2 Invested Percentage (as of such day) of the aggregate amount of Interest Collections on such day and. All such
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amounts deposited into the Series 2009-2 Collection Account shall thereafter be deposited into the Series 2009-2 Accrued Interest Account; and
(ii) allocate to and deposit in the Series 2009-2 Excess Collection Account an amount equal to the Series 2009-2 Invested Percentage (as of such day) of the aggregate amount of Principal Collections on such day (for any such day, the Series 2009-2 Principal Allocation ).
(b) Allocations of Collections During any Series 2009-2 Controlled Amortization Period . During any Series 2009-2 Controlled Amortization Period with respect to any Class of Series 2009-2 Notes, 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 2009-2 Deposit Date, to apply from all amounts deposited into the Collection Account as set forth below:
(i) allocate to and deposit in the Series 2009-2 Collection Account an amount determined as set forth in Section 2.2(a)(i) above for such day, which amount shall be thereafter allocated to and deposited in the Series 2009-2 Accrued Interest Account; and
(ii) (A) with respect to the Three-Year Notes Controlled Amortization Period, allocate to and deposit in the Series 2009-2 Collection Account an amount equal to the Series 2009-2 Principal Allocation for such day, which amount shall be used to make principal payments pursuant to Section 2.5 of this Series Supplement; provided , however , that if the Monthly Total Principal Allocation for the current Related Month (together with the amount deposited in the Series 2009-2 Collection Account from the Series 2009-2 Excess Collection Account pursuant to Section 2.2(f) of this Series Supplement) exceeds the Class A-1 Controlled Distribution Amount, with respect to such Related Month, then the amount of such excess shall be deposited into the Series 2009-2 Excess Collection Account; and
(B) with respect to the Five-Year Notes Controlled Amortization Period, allocate to and deposit in the Series 2009-2 Collection Account an amount equal to the Series 2009-2 Principal Allocation for such day, which amount shall be used to make principal payments pursuant to Series 2.5 of this Series Supplement; provided , however , that if the Monthly Total Principal Allocation for the current Related Month (together with the amount deposited in the Series 2009-2 Collection Account from the Series 2009-2 Excess Collection Account pursuant to Section 2.2(f) of this Series Supplement) exceeds the Class A-2 Controlled Distribution Amount, with respect to such Related Month, then the amount of such excess shall be deposited into the Series 2009-2 Excess Collection Account.
(c) Allocations of Collections During the Series 2009-2 Rapid Amortization Period . During the Series 2009-2 Rapid Amortization Period, the
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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 2009-2 Deposit Date, to apply from all amounts deposited into the Collection Account as set forth below:
(i) allocate to and deposit in the Series 2009-2 Collection Account an amount determined as set forth in Section 2.2(a)(i) above for such day, which amount shall be thereafter allocated to and deposited in the Series 2009-2 Accrued Interest Account; and
(ii) allocate to and deposit in the Series 2009-2 Collection Account an amount equal to the Series 2009-2 Principal Allocation for such day, which amount shall be used to make principal payments pursuant to Section 2.5 of this Series Supplement; provided that if on any Determination Date (A) the Administrator determines that the amount anticipated to be available from Interest Collections allocable to the Series 2009-2 Notes and other amounts available pursuant to Section 2.3 of this Series Supplement to pay Class A Total Monthly Interest on the next succeeding Payment Date will be less than the Class A Total Monthly Interest for such Payment Date and (B) the Class A Enhancement Amount is greater than zero, then the Administrator shall direct the Trustee in writing to withdraw from the Series 2009-2 Collection Account a portion of the Principal Collections allocated to the Series 2009-2 Notes during the related Series 2009-2 Rapid Amortization Principal Collection Period equal to the lesser of such insufficiency and the Class A Enhancement Amount and deposit such amount into the Series 2009-2 Accrued Interest Account to be treated as Interest Collections on such Payment Date.
(d) Past Due Rental Payments . Notwithstanding the foregoing, if, after the occurrence of a Series 2009-2 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 2009-2 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 2009-2 Collection Account an amount equal to the Series 2009-2 Invested Percentage as of the date of the occurrence of such Series 2009-2 Lease Payment Deficit of the Collections attributable to such Past Due Rent Payment (the Series 2009-2 Past Due Rent Payment ). The Administrator shall instruct the Trustee in writing pursuant to the Administration Agreement to withdraw from the Series 2009-2 Collection Account and apply the Series 2009-2 Past Due Rent Payment in the following order:
(i) if the occurrence of the related Series 2009-2 Lease Payment Deficit resulted in one or more Class A LOC Credit Disbursements being made under the Class A Letters of Credit, pay to each Class A Letter of Credit Provider who honored such a Class A LOC Credit Disbursement for application in accordance with the provisions of the applicable Class A Letter of Credit Reimbursement Agreement, an amount equal to the lesser of (x) the
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unreimbursed amount of such Class A Letter of Credit Providers Class A LOC Credit Disbursement and (y) such Class A Letter of Credit Providers pro rata share of the amount of the Series 2009-2 Past Due Rent Payment, calculated on the basis of the unreimbursed amount of each such Class A Letter of Credit Providers Class A LOC Credit Disbursement;
(ii) if the occurrence of such Series 2009-2 Lease Payment Deficit resulted in a withdrawal being made from any Class A Cash Collateral Account, deposit in each such Class A Cash Collateral Account an amount equal to the pro rata portion of the lesser of (x) the amount of the Series 2009-2 Past Due Rent Payment remaining after any payments pursuant to clause (i) above and (y) the amount withdrawn from all such Class A Cash Collateral Accounts on account of such Series 2009-2 Lease Payment Deficit, calculated on the basis of the amounts so withdrawn from such Class A Cash Collateral Accounts;
(iii) if the occurrence of such Series 2009-2 Lease Payment Deficit resulted in a withdrawal being made from the Class A Reserve Account pursuant to Section 2.3(d)(i) of this Series Supplement, deposit in the Class A Reserve Account an amount equal to the lesser of (x) the amount of the Series 2009-2 Past Due Rent Payment remaining after any payments pursuant to clauses (i) and (ii) above and (y) the excess, if any, of the Class A Required Reserve Account Amount over the Class A Available Reserve Account Amount on such day;
(iv) deposit into the Series 2009-2 Accrued Interest Account the amount, if any, by which the Series 2009-2 Lease Interest Payment Deficit, if any, relating to such Series 2009-2 Lease Payment Deficit exceeds the amount of the Series 2009-2 Past Due Rent Payment applied pursuant to clauses (i) through (iii) above; and
(v) deposit in the Series 2009-2 Collection Account and treat as Principal Collections the remaining amount of the Series 2009-2 Past Due Rent Payment.
(e) Amounts Allocated from Other Series . Amounts allocated to other Series of Notes that have been reallocated by HVF to the Series 2009-2 Notes (i) during the Series 2009-2 Revolving Period shall be deposited into the Series 2009-2 Excess Collection Account and applied in accordance with Section 2.2(f) of this Series Supplement and (ii) during the Series 2009-2 Controlled Amortization Period or the Series 2009-2 Rapid Amortization Period shall be deposited into the Series 2009-2 Collection Account and allocated in accordance with Section 2.2(b) or 2.2(c) , as the case may be, of this Series Supplement to make principal payments in respect of the Series 2009-2 Notes.
(f) Series 2009-2 Excess Collection Account . Amounts deposited into the Series 2009-2 Excess Collection Account on any Series 2009-2 Deposit Date shall be
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applied in the following order of priority (i) first , withdrawn and deposited in the Class A Reserve Account in an amount up to the excess, if any, of the Class A Required Reserve Account Amount for such date over the Class A Available Reserve Account Amount for such date, (ii) second , 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, (iii) third , used to pay Ford all unpaid Ford Reimbursement Obligations, and (iv) fourth , any remaining funds may be released to HVF, provided that (x) the application of such funds pursuant to clauses (ii) through (iv) above may only be made if no Class A Enhancement Deficiency or other Amortization Event with respect to the Series 2009-2 Notes would result therefrom or exist immediately thereafter and (y) at any time the Ford LOC Exposure Amount is greater than zero, the application of such funds pursuant to clause (iv) above may only be made if the Fleet Equity Condition would be satisfied after giving effect to such release. Notwithstanding the foregoing, on the first day of each Series 2009-2 Controlled Amortization Period and on the first Business Day of each Related Month during each Series 2009-2 Controlled Amortization Period thereafter, or, if earlier, on the first day of the Series 2009-2 Rapid Amortization Period, all funds on deposit in the Series 2009-2 Excess Collection Account will be withdrawn from the Series 2009-2 Excess Collection Account and deposited into the Series 2009-2 Collection Account and applied in accordance with Section 2.2(b)(ii) or 2.2(c)(ii) , as the case may be, of this Series Supplement.
Section 2.3. Application of Interest Collections .
(a) [Reserved]
(b) Note Interest with respect to the Series 2009-2 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 2009-2 Accrued Interest Account to the extent funds are anticipated to be available from Interest Collections allocable to the Series 2009-2 Notes processed from but not including the preceding Payment Date through and including the succeeding Payment Date in respect of (i) first , the Class A Monthly Interest for the Series 2009-2 Interest Period ending on the day preceding such succeeding Payment Date and (ii) second , the unpaid Class A Deficiency Amounts, if any, as of the preceding Payment Date (together with any accrued interest on such Class A Deficiency Amounts). 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 2.3(b) from the Series 2009-2 Accrued Interest Account and deposit such amounts into the Series 2009-2 Distribution Account.
(c) 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 2009-2 Lease Payment Deficit, such notification to be in the form of Exhibit C to this Series Supplement (each a Lease Payment Deficit Notice ).
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(d) Withdrawals from the Class A Reserve Account . If the Administrator determines on any Payment Date that the amounts available from the Series 2009-2 Accrued Interest Account are insufficient to pay the sum of the amounts described in clauses (i) and (ii) of Section 2.3(b) of this Series Supplement on such Payment Date, the Administrator shall instruct the Trustee in writing to withdraw from the Class A Reserve Account and deposit in the Series 2009-2 Distribution Account on such Payment Date an amount equal to the lesser of the Class A Available Reserve Account Amount and such insufficiency. The Trustee shall withdraw such amount from the Class A Reserve Account and deposit such amount in the Series 2009-2 Distribution Account.
(e) Draws on Class A Letters of Credit . If the Administrator determines on any Payment Date that there exists a Series 2009-2 Lease Interest Payment Deficit, the Administrator shall instruct the Trustee in writing to draw on the Class A 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 (x) such Series 2009-2 Lease Interest Payment Deficit, (y) the excess, if any, of the sum of the amounts described in clauses (i) and (ii) of Section 2.3(b) of this Series Supplement for such Payment Date over the amounts available from the Series 2009-2 Accrued Interest Account plus the amount to be withdrawn from the Class A Reserve Account pursuant to Section 2.3(d) of this Series Supplement, if any, on such Payment Date and (z) the Class A Letter of Credit Liquidity Amount on such Payment Date on the Class A Letters of Credit by presenting to each Class A Letter of Credit Provider a draft accompanied by a Class A Certificate of Credit Demand and shall cause the Class A LOC Credit Disbursements to be deposited in the Series 2009-2 Distribution Account on such Payment Date; provided , however that if any Class A Cash Collateral Account has been established and funded, the Trustee shall withdraw from each such Class A Cash Collateral Account and deposit in the Series 2009-2 Distribution Account an amount equal to the pro rata portion of the lesser of (A) the Class A Cash Collateral Account Percentage on such Payment Date of the least of the amounts described in clauses (x) , (y) and (z) above and (B) the Class A Available Cash Collateral Account Amount for all such Class A Cash Collateral Accounts on such Payment Date, calculated on the basis of the Class A Available Cash Collateral Account Amount for each such Class A Cash Collateral Account as of such Payment Date, and draw an amount equal to the remainder of such amount on the Class A Letters of Credit.
(f) [Reserved]
(g) Deficiency Amounts . If the amounts described in Sections 2.3(b) , (d) , and (e) of this Series Supplement are insufficient to pay the Class A Total Monthly Interest for any Payment Date, payments of interest to the Class A 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 Class A-1 Notes shall be referred to as the Class A-1 Deficiency Amount and the aggregate amount, if any, of
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such deficiency on any Payment Date allocable to the Class A-2 Notes shall be referred to as the Class A-2 Deficiency Amount . Interest shall accrue on the Deficiency Amount for each Class of Class A Notes at the applicable Class A Note Rate.
(h) 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 2.4 of this Series Supplement), if any, of the amounts available from the Series 2009-2 Accrued Interest Account as follows:
(i) first , to pay the Administrator, in an amount equal to the Series 2009-2 Percentage as of the beginning of the Series 2009-2 Interest Period ending on the day preceding such Payment Date of the Monthly Administration Fee for such Series 2009-2 Interest Period;
(ii) second , to pay the Trustee, in an amount equal to the Series 2009-2 Percentage as of the beginning of the Series 2009-2 Interest Period ending on the day preceding such Payment Date of the Trustees fees for such Series 2009-2 Interest Period;
(iii) third , on a pro rata basis, to pay any Indenture Carrying Charges (other than Indenture Carrying Charges provided for above) to the Persons to whom such amounts are owed, in an amount equal to the Series 2009-2 Percentage as of the beginning of the Series 2009-2 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 2009-2 Interest Period; and
(iv) fourth , the balance, if any, shall be withdrawn from the Series 2009-2 Accrued Interest Account by the Trustee and (A) during the Series 2009-2 Revolving Period, deposited into the Series 2009-2 Excess Collection Account or (B) during the Series 2009-2 Controlled Amortization Period or the Series 2009-2 Rapid Amortization Period, deposited into the Series 2009-2 Collection Account and treated as Principal Collections.
(i) Trustee Fees . If, on any Payment Date after the occurrence and during the continuance of a Liquidation Event of Default or a Series 2009-2 Limited Liquidation Event of Default, (x) the funds available to pay the Trustee fees pursuant to Section 2.3(h)(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 2.3(h)(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, and the Trustee shall, withdraw from the Class A Reserve Account and pay to itself on such Payment Date an amount equal to the least of (A) the Class A Available Reserve Account Amount on such
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Payment Date (after giving effect to any deposits thereto and withdrawals and releases therefrom on such Payment Date), (B) the excess, if any, of (i) 0.70% of the Series 2009-2 Required Asset Amount as of the date of the occurrence of such Liquidation Event of Default or Series 2009-2 Limited Liquidation Event of Default over (ii) the aggregate of the amounts previously withdrawn from the Class A Reserve Account under this Section 2.3(i) in respect of fees and other amounts due and owing to the Trustee, and (C) such insufficiency.
Section 2.4. Payment of Note Interest .
On each Payment Date, the Trustee shall, in accordance with Section 6.1 of the Base Indenture, pay to the Class A Noteholders from the Series 2009-2 Distribution Account the amount deposited in the Series 2009-2 Distribution Account for the payment of interest pursuant to Section 2.3 of this Series Supplement.
Section 2.5. Payment of Note Principal .
(a) Monthly Payments During Series 2009-2 Controlled Amortization Period or Series 2009-2 Rapid Amortization Period . Commencing with (i) the second Determination Date during the Three-Year Notes Controlled Amortization Period, and on each Determination Date thereafter during the Three-Year Notes Controlled Amortization Period, and (ii) the earlier of the second Determination Date during the Five-Year Notes Controlled Amortization Period and the first Determination Date during the Series 2009-2 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 each Class of the Class A Notes pursuant to Section 2.2(b)(ii) during the Related Month or Section 2.2(c)(ii) of this Series Supplement during the applicable Series 2009-2 Rapid Amortization Collection Period, as the case may be, prior to such date and not previously deposited into the Series 2009-2 Distribution Account for payment to the Class A Noteholders of the applicable Class of Class A Notes, (w) any amounts to be withdrawn from the Class A Reserve Account and deposited into the Series 2009-2 Distribution Account, (x) any amounts to be drawn on the Class A Letters of Credit (and/or withdrawn from any Class A Cash Collateral Account) and (y) the amount of any demand to be made under the Series 2009-2 Demand Note. The Trustee shall withdraw such amounts allocated pursuant to Section 2.2(b)(ii) and Section 2.2(c)(ii) of this Series Supplement to pay principal of the Class A Notes and deposit such amounts in the Series 2009-2 Distribution Account to be paid to the Class A Noteholders of the applicable Class of Class A Notes.
(b) Principal Deficit Amount . If the Principal Deficit Amount is greater than zero on any date, the Administrator shall promptly provide written notice thereof to the Trustee. On each Payment Date (other than the Three-Year Notes Legal Final Payment Date or the Five-Year Notes Legal Final Payment Date) on which the Principal Deficit Amount is greater than zero and on any Payment Date during the Series 2009-2 Rapid Amortization Period on which a Series 2009-2 Lease Principal Payment
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Deficit exists, amounts shall be transferred to the Series 2009-2 Distribution Account as follows:
(i) Class A Reserve Account Withdrawal . If, on any Determination Date (other than the Determination Date related to the Three-Year Notes Legal Final Payment Date or the Five-Year Notes Legal Final Payment Date) the Administrator determines that the Principal Deficit Amount with respect to the next succeeding Payment Date will be greater than zero, the Administrator shall instruct the Trustee in writing prior to 12:00 noon (New York City time) on the second Business Day prior to such Payment Date, to withdraw and the Trustee shall withdraw from the Class A Reserve Account an amount equal to the lesser of (x) such Principal Deficit Amount and (y) the Class A Available Reserve Account Amount on such Payment Date (after giving effect to any withdrawals from the Class A Reserve Account anticipated to be made on such Payment Date pursuant to Section 2.3(d) of this Series Supplement), and deposit such withdrawal in the Series 2009-2 Distribution Account on such Payment Date.
(ii) Demand Note Draw . If the Administrator determines on any Determination Date (other than the Determination Date related to the Three-Year Notes Legal Final Payment Date or the Five-Year Notes Legal Final Payment Date) that the Principal Deficit Amount with respect to the next succeeding Payment Date (after giving effect to the withdrawal from the Class A Reserve Account on such Payment Date pursuant to clause (i) of this Section 2.5(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 I (each a Demand Notice ) on Hertz for payment under the Series 2009-2 Demand Note in an amount equal to the lesser of (x) the excess of (A) such Principal Deficit Amount over (B) the amount to be deposited in the Series 2009-2 Distribution Account in accordance with clause (i) of this Section 2.5(b) and (y) the Class A Letter of Credit Amount on such Business Day (after giving effect to any draws on the Class A Letters of Credit and/or withdrawals from any Class A Cash Collateral Accounts anticipated to be made on such Payment Date pursuant to Section 2.3(e) of this Series Supplement).
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.
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The Trustee shall cause the proceeds of any demand on the Series 2009-2 Demand Note to be deposited into the Series 2009-2 Distribution Account, and such proceeds shall be treated as Principal Collections.
(iii) Letter of Credit Draw . If (1) the Trustee shall have delivered a Demand Notice as provided in Section 2.5(b)(ii) of this Series Supplement and Hertz shall have failed to pay to the Trustee or deposit into the Series 2009-2 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 or (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, the Trustee shall draw on the Class A 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 2009-2 Demand Note or the amount that the Trustee failed to demand for payment thereunder, as the case may be; and (B) the Class A Letter of Credit Amount as of such Business Day (after giving effect to any drawings on the Class A Letters of Credit and/or withdrawals from any Class A Cash Collateral Accounts anticipated to be made on the related Payment Date pursuant to Section 2.3(e) of this Series Supplement), by presenting to each Class A Letter of Credit Provider a draft accompanied by a Series 2009-2 Certificate of Unpaid Demand Note Demand; provided , however that if any Class A Cash Collateral Account has been established and funded, the Trustee shall withdraw from each such Class A Cash Collateral Account and deposit in the Series 2009-2 Distribution Account an amount equal to the pro rata portion of the lesser of (x) the Class A Cash Collateral Account Percentage on such Business Day of the lesser of the amounts set forth in clause (A) and (B) above and (y) the aggregate Class A Available Cash Collateral Account Amount for all Class A Cash Collateral Accounts on such Business Day, calculated on the basis of the Class A Available Cash Collateral Account Amount of each such Class A Cash Collateral Accounts as of such Business Day, and draw an amount equal to the remainder of such amount on the Class A Letters of Credit.
The Trustee shall deposit, or cause the deposit of, the proceeds of any such draw on the Class A Letters of Credit and the proceeds of any such withdrawal from each Class A Cash Collateral Account into the Series 2009-2 Distribution Account and such proceeds shall be treated as Principal Collections.
(iv) Series 2009-2 Lease Principal Payment Deficit . If the Administrator determines on any Payment Date during the Series 2009-2 Rapid Amortization Period that the Principal Deficit Amount on such Payment Date (after giving effect to any withdrawals from the Class A Reserve Account pursuant to clause (i) of this Section 2.5(b) , any draws on the Series 2009-2 Demand Note pursuant to clause (ii) of this Section 2.5(b) , and any draws on the
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Class A Letters of Credit and/or withdrawals from any Class A Cash Collateral Account pursuant to clause (iii) of this Section 2.5(b) , in each case for such Payment Date), will be greater than zero, and there exists a Series 2009-2 Lease Principal Payment Deficit on such Payment Date, then the Administrator shall instruct the Trustee in writing to draw on the Class A Letters of Credit, if any, in an amount equal to the least of (1) such Series 2009-2 Lease Principal Payment Deficit, (2) the Class A Letter of Credit Liquidity Amount as of such Payment Date (after giving effect to any draws on the Class A Letters of Credit and/or withdrawals from any Class A Cash Collateral Account with respect to such Payment Date pursuant to Section 2.3(e) and clause (iii) of this Section 2.5(b) of this Series Supplement), and (3) such remaining Principal Deficit Amount. Upon receipt of a notice by the Trustee from the Administrator in respect of a Series 2009-2 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 Class A Letters of Credit by presenting to each Class A Letter of Credit Provider a draft accompanied by a Series 2009-2 Certificate of Credit Demand and shall cause the Series 2009-2 LOC Credit Disbursements to be deposited in the Series 2009-2 Distribution Account on such Payment Date; provided , however , that if any Class A Cash Collateral Account has been established and funded, the Trustee shall withdraw from each such Class A Cash Collateral Account and deposit in the Series 2009-2 Distribution Account an amount equal to the pro rata portion of the lesser of (x) the Class A Cash Collateral Account Percentage on such Payment Date of the amount set forth in the notice provided to the Trustee by the Administrator and (y) the Class A Available Cash Collateral Account Amount for all such Class A Cash Collateral Accounts on such Payment Date, calculated on the basis of the aggregate Class A Available Cash Collateral Account Amount for each such Class A Cash Collateral Account as of such Payment Date, and draw an amount equal to the remainder of such amount on the Class A Letters of Credit.
(v) In the event that the Lessee files a petition for relief under Chapter 11 of the Bankruptcy Code and during the Series 2009-2 Rapid Amortization Period fails to make payments under the HVF Lease to satisfy the interest on the Class A Notes, the Class A Letters of Credit will only be available to be drawn upon (and amounts on deposit in the Class A Cash Collateral Accounts may only be withdrawn) to pay principal of the Class A Notes on any Payment Date and the Trustee shall only draw (or withdraw), an amount equal to the lesser of (i) the amount determined pursuant to clause (iii) of this Section 2.5(b) or clause (iv) of this Section 2.5(b) , as applicable, and (ii) the excess, if any, of (x) the Class A Liquidity Amount (after giving effect to any draws under the Class A Letters of Credit on such Payment Date pursuant to Section 2.3(e) of this Series Supplement or clause (iii) of this Section 2.5(b) (solely in the case of a draw under clause (iv) of this Section 2.5(b) )) as of such Payment Date over (y) the Class A Required Liquidity Amount as of such Payment Date.
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(c) Legal Final Payment Dates .
(i) Class A Reserve Account Withdrawal . (A) If, on the Three-Year Notes Legal Final Payment Date, the amount to be deposited in the Series 2009-2 Distribution Account for the related Series 2009-2 Rapid Amortization Principal Collection Period in accordance with subclause (v) of Section 2.5(a) of this Series Supplement, together with any amounts to be deposited in the Series 2009-2 Distribution Account in accordance with Section 2.5(b)(iv) of this Series Supplement on such Three-Year Notes Legal Final Payment Date, in each case, to pay principal of the Class A-1 Notes, will be less than the aggregate Principal Amount of the Class A-1 Notes on the Three-Year Notes Legal Final Payment Date, then, prior to 10:30 a.m. (New York City time) on the second Business Day prior to the Three-Year Notes Legal Final Payment Date, the Administrator shall instruct the Trustee to withdraw from the Class A Reserve Account, an amount equal to the lesser of (i) the amount by which the Class A Liquidity Amount (after giving effect to any withdrawals from the Class A Reserve Account pursuant to Section 2.3(d) of this Series Supplement and any draws under the Class A Letters of Credit and/or withdrawals from each Class A Cash Collateral Account, pursuant to Section 2.3(e) and Section 2.5(b)(iv) of this Series Supplement anticipated to be made on such Three-Year Notes Legal Final Payment Date) will exceed the Class A Required Liquidity Amount (after giving effect to all anticipated reductions in the aggregate Principal Amount of the Class A-1 Notes on such Three-Year Notes Legal Final Payment Date) and (ii) such insufficiency, and deposit such withdrawn amounts in the Series 2009-2 Distribution Account on or prior to the Three-Year Notes Legal Final Payment Date. The Trustee shall withdraw such amount from the Class A Reserve Account and deposit such amount in the Series 2009-2 Distribution Account on or prior to the Three-Year Notes Legal Final Payment Date.
(B) If, on the Five-Year Notes Legal Final Payment Date, the amount to be deposited in the Series 2009-2 Distribution Account for the related Series 2009-2 Rapid Amortization Principal Collection Period in accordance with subclause (v) of Section 2.5(a) of this Series Supplement, together with any amounts to be deposited in the Series 2009-2 Distribution Account in accordance with Section 2.5(b)(iv) of this Series Supplement on such Five-Year Notes Legal Final Payment Date, in each case, to pay principal of the Class A-2 Notes, is less than the aggregate Principal Amount of the Class A-2 Notes on the Five-Year Notes Legal Final Payment Date, then, prior to 10:30 a.m. (New York City time) on the second Business Day prior to the Five-Year Notes Legal Final Payment Date, the Administrator shall instruct the Trustee to withdraw from the Class A Reserve Account, an amount equal to the lesser of (i) the Class A Available Reserve Account Amount on the Five-Year Notes Legal Final Payment Date (after giving effect to any withdrawals from the Class A Reserve Account pursuant to Section 2.3(d) of this Series Supplement anticipated to be made on such Five-Year Notes Legal Final Payment Date), and (ii) such
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insufficiency, and deposit such withdrawn amounts in the Series 2009-2 Distribution Account on or prior to the Five-Year Notes Legal Final Payment Date. The Trustee shall withdraw such amount from the Class A Reserve Account and deposit such amount in the Series 2009-2 Distribution Account on or prior to the Five-Year Notes Legal Final Payment Date.
(ii) Demand Note Draw . If the amount to be deposited in the Series 2009-2 Distribution Account pursuant to subclause (v) of Section 2.5(a) of this Series Supplement together with any amounts to be deposited therein in accordance with Section 2.5(b)(iv) and Section 2.5(c)(i) of this Series Supplement on the Three-Year Notes Legal Final Payment Date is less than (x) the aggregate Principal Amount of the Class A-1 Notes on the Three-Year Notes Legal Final Payment Date or (y) the aggregate Principal Amount of the Class A-2 Notes on the Five-Year Notes Legal Final Payment Date, then, prior to 10:30 a.m. (New York City time) on the second Business Day prior to the applicable related 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 2009-2 Demand Note in an amount equal to the lesser of (i) such insufficiency and (ii) the Class A Letter of Credit Amount as of such Business Day (after giving effect to any draws on the Class A Letters of Credit and/or withdrawals from any Class A Cash Collateral Account anticipated to be made on such Legal Final Payment Date pursuant to Section 2.3(e) and Section 2.5(b)(iv) of this Series Supplement). The Trustee shall, prior to 12:00 noon (New York City time) on the second Business Day preceding the applicable 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 2009-2 Demand Note to be deposited into the Series 2009-2 Distribution Account on or prior to the applicable Legal Final Payment Date, and such proceeds shall be treated as Principal Collections for all purposes hereunder.
(iii) Letter of Credit Draw . If (1) the Trustee shall have delivered a Demand Notice as provided in Section 2.5(c)(ii) of this Series Supplement and Hertz shall have failed to pay to the Trustee or deposit into the Series 2009-2 Distribution Account the amount specified in such Demand Notice referred to in Section 2.5(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 or (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, the Trustee shall draw on the Class A Letters of Credit, if any, by 12:00 p.m. (New York City time) on such
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Business Day an amount equal to the lesser of (A) the amount that Hertz failed to pay under the Series 2009-2 Demand Note (or the amount that the Trustee failed to demand for payment thereunder) and (B) the Class A Letter of Credit Amount as of such Business Day (after giving effect to any draws on the Class A Letters of Credit and/or withdrawals from any Class A Cash Collateral Account anticipated to be made on the applicable related Legal Final Payment Date pursuant to Section 2.3(e) and Section 2.5(b)(iv) of this Series Supplement), by presenting to each Class A Letter of Credit Provider a draft accompanied by a Series 2009-2 Certificate of Unpaid Demand Note Demand; provided , however that if any Class A Cash Collateral Account has been established and funded, the Trustee shall withdraw from each such Class A Cash Collateral Account and deposit in the Series 2009-2 Distribution Account an amount equal to the pro rata portion of the lesser of (x) the Class A Cash Collateral Account Percentage on such Business Day of the lesser of the amounts set forth in clause (A) and (B) above and (y) the aggregate Class A Available Cash Collateral Account Amount for all such Class A Cash Collateral Accounts on such Business Day, calculated on the basis of the Class A Available Cash Collateral Account Amount for each such Class A Cash Collateral Account, and draw an amount equal to the remainder of such amount on the Class A Letters of Credit. The Trustee shall deposit, or cause the deposit of, the proceeds of any such draw on the Class A Letters of Credit and the proceeds of any such withdrawal from each Class A Cash Collateral Account into the Series 2009-2 Distribution Account on or prior to the applicable Legal Final Payment Date and such proceeds shall be treated as Principal Collections.
(d) Distribution . On each Payment Date occurring on or after the date a withdrawal is made from the Series 2009-2 Collection Account pursuant to Section 2.5(a) of this Series Supplement, the Trustee shall, in accordance with Section 6.1 of the Base Indenture, pay to the Class A Noteholders the amount deposited in the Series 2009-2 Distribution Account for the payment of principal of the Class A Notes held by such Class A Noteholders pursuant to Section 2.5(a) of this Series Supplement and any amounts deposited in the Series 2009-2 Distribution Account for the payment of principal of such Class A Notes pursuant to Section 2.5(b) of this Series Supplement and, to the extent necessary to pay the Class A-1 Principal Amount on the Three-Year Notes Legal Final Payment Date and the Class A-2 Principal Amount on the Five-Year Notes Legal Final Payment Date, amounts deposited in the Series 2009-2 Distribution Account pursuant to Section 2.5(c) of this Series Supplement.
Section 2.6. The Administrators 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 2009-2 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
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periods), the Trustee shall make such payment or deposit into or from the Collection Account or such Series 2009-2 Series Account without such notice or instruction from the Administrator, provided that the Administrator, upon request of the Trustee, 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 Class A Letters of Credit required to be given by the Administrator, at the time specified in this Series Supplement, the Trustee shall draw on such Class A Letters of Credit without such instruction from the Administrator, provided that the Administrator, upon request of the Trustee, promptly provides the Trustee with all information necessary to allow the Trustee to draw on each such Class A Letter of Credit.
Section 2.7. Class A Reserve Account .
(a) Establishment of Class A Reserve Account . HVF shall establish and maintain in the name of the Trustee for the benefit of the Class A Noteholders, an account (the Class A Reserve Account ), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Class A Noteholders. The Class A Reserve Account shall be an Eligible Deposit Account. If the Class A Reserve Account is at any time no longer an Eligible Deposit Account, HVF shall, within 10 Business Days of obtaining knowledge that the Class A Reserve Account is no longer an Eligible Deposit Account, establish a new Class A Reserve Account that is an Eligible Deposit Account. If a new Class A Reserve Account is established, HVF shall instruct the Trustee in writing to transfer all cash and investments from the non-qualifying Class A Reserve Account into the new Class A Reserve Account. Initially, the Class A Reserve Account will be established with the Trustee.
(b) Administration of the Class A Reserve Account . HVF may instruct (by standing instructions or otherwise) the institution maintaining the Class A Reserve Account to invest funds on deposit in the Class A 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 Class A Reserve Account), unless any Permitted Investment held in the Class A 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 Class A Reserve Account shall remain uninvested.
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(c) Earnings from Class A Reserve Account . All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Class A Reserve Account shall be deemed to be on deposit therein and available for distribution.
(d) Class A Reserve Account Constitutes Additional Collateral for Class A Notes . In order to secure and provide for the repayment and payment of the Note Obligations with respect to the Class A Notes, HVF hereby grants a security interest in and assigns, pledges, grants, transfers and sets over to the Trustee, for the benefit of the Class A Noteholders, all of HVFs right, title and interest in and to the following (whether now or hereafter existing or acquired): (i) the Class A 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 Class A 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 Class A 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 Class A 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 Class A Reserve Account Collateral ).
(e) Class A Reserve Account Surplus . In the event that the Class A Reserve Account Surplus on any Payment Date is greater than zero, the Trustee, acting in accordance with the written instructions of the Administrator, shall withdraw from the Class A Reserve Account an amount equal to the Class A Reserve Account Surplus and (i) pay to Ford the lesser of (x) such Class A Reserve Account Surplus and (y) all unpaid Ford Reimbursement Obligations and (ii) only for so long as the Ford LOC Exposure Amount is greater than zero, solely to the extent that after giving effect to any such payment, the Fleet Equity Condition would be satisfied pay to HVF any portion of such Class A Reserve Account Surplus remaining after any required deposit and/or payment pursuant to clause (i) above.
(f) Termination of Class A Reserve Account . On or after the date on which the Series 2009-2 Notes are paid in full and Ford has been paid all unpaid Ford Reimbursement Obligations, the Trustee, acting in accordance with the written instructions of the Administrator, only for so long as the Ford LOC Exposure Amount is greater than zero, solely to the extent that after giving effect to any such withdrawal, the Fleet Equity Condition would be satisfied, the Trustee, in accordance with the written instructions of the Administrator shall withdraw from the Class A Reserve Account all remaining amounts on deposit therein for payment to HVF.
Section 2.8. Class A Letters of Credit and Class A Cash Collateral Accounts .
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(a) Class A Cash Collateral Account Constitutes Additional Collateral for Class A Notes . In order to secure and provide for the repayment and payment of the Note Obligations with respect to the Class A Notes, HVF hereby grants a security interest in and assigns, pledges, grants, transfers and sets over to the Trustee, for the benefit of the Class A Noteholders, all of HVFs right, title and interest in and to the following (whether now or hereafter existing or acquired): (i) each Class A Cash Collateral Account, including any security entitlement thereto; (ii) all funds on deposit in each Class A Cash Collateral Account from time to time; (iii) all certificates and instruments, if any, representing or evidencing any or all of the Class A Cash Collateral 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 each Class A 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 each Class A Cash Collateral 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 Class A Cash Collateral Account Collateral ).
(b) Class A Letter of Credit Expiration Date . If prior to the date which is sixteen (16) Business Days prior to the then-scheduled Class A Letter of Credit Expiration Date with respect to any Class A Letter of Credit, excluding the amount available to be drawn under such Class A Letter of Credit but taking into account each substitute Class A Letter of Credit which has been obtained from a Class A Eligible Letter of Credit Provider, and is in full force and effect on such date, (i) the Class A Adjusted Enhancement Amount would be equal to or greater than the Class A Required Enhancement Amount and (ii) the Class A Adjusted Liquidity Amount would be equal to or greater than the Class A Required Liquidity Amount, then the Administrator shall notify the Trustee in writing no later than fifteen (15) Business Days prior to such Class A Letter of Credit Expiration Date of such determination. If prior to the date which is sixteen (16) Business Days prior to the then-scheduled Class A Letter of Credit Expiration Date with respect to any Class A Letter of Credit, excluding such Class A Letter of Credit but taking into account any substitute Class A Letter of Credit which has been obtained from a Class A Eligible Letter of Credit Provider, and is in full force and effect on such date, (i) the Class A Adjusted Enhancement Amount would be less than the Class A Required Enhancement Amount or (ii) the Class A Adjusted Liquidity Amount would be less than the Class A Required Liquidity Amount, then the Administrator shall notify the Trustee in writing no later than fifteen (15) Business Days prior to such Class A Letter of Credit Expiration Date of (x) the greater of (A) the excess, if any, of the Class A Required Enhancement Amount over the Class A Adjusted Enhancement Amount, excluding such Class A Letter of Credit but taking into account any substitute Class A Letter of Credit which has been obtained from a Class A Eligible Letter of Credit Provider, and is in full force and effect on such date and (B) the excess, if any, of the Class A Required Liquidity Amount over the Class A Adjusted Liquidity
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Amount, excluding such Class A Letter of Credit but taking into account each substitute Class A Letter of Credit which has been obtained from a Class A 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 Class A 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 the lesser of the amounts set forth in clauses (x) and (y) above on such Class A Letter of Credit by presenting a draft accompanied by a Class A Certificate of Termination Demand and shall cause the Class A LOC Termination Disbursements to be deposited in the applicable Class A 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 Class A 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 Class A Letter of Credit by presenting a draft accompanied by a Class A Certificate of Termination Demand and shall cause the Class A LOC Termination Disbursements to be deposited in the applicable Class A Cash Collateral Account.
(c) Class A Letter of Credit Providers . The Administrator shall notify the Trustee in writing within one Business Day of becoming aware that the short-term debt credit rating of any Class A Letter of Credit Provider has fallen below P-1 as determined by Moodys or the long-term debt credit rating of any Class A Letter of Credit Provider has fallen below A1 as determined by Moodys (with respect to any Class A Letter of Credit Provider, a Class A Downgrade Event ). On the thirtieth (30th) day after the occurrence of a Class A Downgrade Event with respect to any Class A Letter of Credit Provider, the Administrator shall notify the Trustee in writing on such date of (i) the greatest of (A) the excess, if any, of the Class A Required Enhancement Amount over the Class A Adjusted Enhancement Amount, excluding the available amount under the Class A Letter of Credit issued by such Class A Letter of Credit Provider, on such date and (B) the excess, if any, of the Class A Required Liquidity Amount over the Class A Adjusted Liquidity Amount, excluding the available amount under such Class A Letter of Credit, on such date, and (ii) the amount available to be drawn on such Class A 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 Class A 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 Class A Certificate of Termination Demand and shall cause the Class A LOC Termination Disbursement to be deposited in the applicable Class A Cash Collateral Account.
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(d) Reductions in Stated Amounts of the Class A 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 Class A Letter of Credit, the Trustee shall within two Business Days of the receipt of such notice deliver to the Class A Letter of Credit Provider who issued such Class A Letter of Credit a Class A Notice of Reduction requesting a reduction in the stated amount of such Class A 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 Class A Letter of Credit, (i) the Class A Adjusted Enhancement Amount will equal or exceed the Class A Required Enhancement Amount and (ii) the Class A Adjusted Liquidity Amount will equal or exceed the Class A Required Liquidity Amount.
(e) Draws on the Class A Letters of Credit . If there is more than one Class A Letter of Credit on the date of any draw on the Class A Letters of Credit pursuant to the terms of this Series Supplement (other than pursuant to Sections 2.8(b) or Section 2.8(c) of this Series Supplement), the Administrator shall instruct the Trustee, in writing, to draw on each Class A Letter of Credit in an amount equal to the Pro Rata Share of the Class A Letter of Credit Provider issuing such Class A Letter of Credit of the amount of such draw on the Class A Letters of Credit.
(f) Establishment of Class A Cash Collateral Accounts . On or prior to the date of any drawing under a Class A Letter of Credit pursuant to Section 2.8(b) or Section 2.8(c) of this Series Supplement, HVF shall establish and maintain in the name of the Trustee for the benefit of the Class A Noteholders, an account (each such account, a Class A Cash Collateral Account ) for the deposit of any such drawings, bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Class A Noteholders. Each Class A Cash Collateral Account shall be an Eligible Deposit Account. If any such Class A Cash Collateral Account is at any time no longer an Eligible Deposit Account, HVF shall, within 10 Business Days of obtaining knowledge that such Class A Cash Collateral Account is no longer an Eligible Deposit Account, establish a new Class A Cash Collateral Account that is an Eligible Deposit Account. If a new Class A Cash Collateral Account is established, HVF shall instruct the Trustee in writing to transfer all cash and investments from the non-qualifying Class A Cash Collateral Account into the new Class A Cash Collateral Account
(g) Administration of the Class A Cash Collateral Account . HVF may instruct (by standing instructions or otherwise) the institution maintaining each Class A Cash Collateral Account to invest funds on deposit in each Class A Cash Collateral Account from time to time in Permitted Investments. Any investment of funds on deposit in a Class A 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 Class A Cash Collateral Account), unless any Permitted Investment held in such Class A Cash Collateral Account is held with the Trustee, in which case such investment may mature on such Payment Date so long as such funds
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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 a Class A Cash Collateral Account shall remain uninvested.
(h) Earnings from Class A Cash Collateral Account . All Class A Cash Collateral Account Interest and Earnings with respect to a Class A Cash Collateral Account shall be deemed to be on deposit therein and available for distribution.
(i) Class A Cash Collateral Account Surplus . In the event that the Class A 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, shall, subject to the limitations set forth in this Section 2.8(i) , withdraw on a pro rata basis the amount specified by the Administrator, calculated on the basis of the Class A Available Cash Collateral Account Amount for each such Class A Cash Collateral Account, from each Class A Cash Collateral Account specified by the Administrator and apply such amount in accordance with the terms of this Section 2.8(i) . The aggregate amount of any such withdrawals from the Class A Cash Collateral Accounts shall be limited to the Class A Cash Collateral Account Surplus on such Payment Date. Any amounts withdrawn from any Class A Cash Collateral Account shall be paid: first , to Ford, the lesser of the amount withdrawn from the Class A Cash Collateral Account and the amount of such unpaid Ford Reimbursements, (ii) second , for so long as the Ford LOC Exposure Amount is greater than zero, to the extent that after giving effect to any such withdrawal the Fleet Equity Condition would be satisfied, to the Class A Letter of Credit Providers, to the extent that there are unreimbursed Class A Disbursements due and owing to such Class A Letter of Credit Providers in respect of the Class A Letters of Credit, for application in accordance with the provisions of the respective Class A Letter of Credit Reimbursement Agreement, and (iii) third , for so long as the Ford LOC Exposure Amount is greater than zero, to the extent that after giving effect to any such withdrawal the Fleet Equity Condition would be satisfied, to HVF any remaining amounts.
(j) Termination of Class A Cash Collateral Accounts . 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 Class A Noteholders and payable from each Class A Cash Collateral Account as provided herein, shall withdraw from each such Class A Cash Collateral Account all amounts on deposit therein (to the extent not withdrawn pursuant to Section 2.8(d) above) and shall pay such amounts, first , pro rata to the Class A Letter of Credit Providers, to the extent that there are unreimbursed Class A Disbursements due and owing to such Class A Letter of Credit Providers, for application in accordance with the provisions of the respective Class A Letters of Credit, and second , only for so long as the Ford LOC Exposure Amount is greater than zero solely to the extent that after giving
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effect to any such withdrawal, the Fleet Equity Condition would be satisfied, to HVF any remaining amounts.
Section 2.9. Series 2009-2 Distribution Account .
(a) Establishment of Series 2009-2 Distribution Account . The Trustee shall establish and maintain in the name of the Trustee for the benefit of the Series 2009-2 Noteholders an account (the Series 2009-2 Distribution Account ), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Series 2009-2 Noteholders. The Series 2009-2 Distribution Account shall be an Eligible Deposit Account. If the Series 2009-2 Distribution Account is at any time no longer an Eligible Deposit Account, HVF shall, within 10 Business Days of obtaining knowledge that the Series 2009-2 Distribution Account is no longer an Eligible Deposit Account, establish a new Series 2009-2 Distribution Account that is an Eligible Deposit Account. If a new Series 2009-2 Distribution Account is established, HVF shall instruct the Trustee in writing to transfer all cash and investments from the non-qualifying Series 2009-2 Distribution Account into the new Series 2009-2 Distribution Account. Initially, the Series 2009-2 Distribution Account will be established with the Trustee.
(b) Administration of the Series 2009-2 Distribution Account . The Administrator may instruct the institution maintaining the Series 2009-2 Distribution Account in writing to invest funds on deposit in the Series 2009-2 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 2009-2 Distribution Account), unless any Permitted Investment held in the Series 2009-2 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 2009-2 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 2009-2 Distribution Account shall remain uninvested.
(c) Earnings from Series 2009-2 Distribution Account . All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Series 2009-2 Distribution Account shall be deemed to be on deposit and available for distribution.
(d) Series 2009-2 Distribution Account Constitutes Additional Collateral for Series 2009-2 Notes . In order to secure and provide for the repayment and payment of the Note Obligations with respect to the Series 2009-2 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 2009-2 Noteholders all of HVFs right, title and
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interest in and to the following (whether now or hereafter existing or acquired): (i) the Series 2009-2 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 2009-2 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 2009-2 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 2009-2 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 cash (the items in the foregoing clauses (i) through (vi) are referred to, collectively, as the Series 2009-2 Distribution Account Collateral ).
Section 2.10. Trustee as Securities Intermediary .
(a) The Trustee or other Person holding the Series 2009-2 Collection Account, the Series 2009-2 Excess Collection Account, the Series 2009-2 Accrued Interest Account, the Class A Reserve Account, the Class A Cash Collateral Account, or the Series 2009-2 Distribution Account (each a Series 2009-2 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 ) and a bank (as defined in Section 9-102 of the New York UCC), in such capacities, the Securities Intermediary ). If the Securities Intermediary in respect of any Series 2009-2 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 2.10 .
(b) The Securities Intermediary agrees that:
(i) The Series 2009-2 Designated Accounts are accounts to which financial assets within the meaning of Section 8-102(a)(9) ( Financial Assets ) of the New York UCC in will be credited;
(ii) All securities or other property underlying any Financial Assets credited to any Series 2009-2 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 2009-2 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 2009-2 Designated Account;
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(iv) Each item of property (whether investment property, security, instrument or cash) credited to a Series 2009-2 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 2009-2 Designated Accounts, the Securities Intermediary shall comply with such entitlement order without further consent by HVF or the Administrator;
(vi) The Series 2009-2 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 Intermediarys jurisdiction and the Series 2009-2 Designated Accounts (as well as the securities entitlements (as defined in Section 8-102(a)(17) of the 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 2009-2 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 2.10(b)(v) of this Series Supplement; and
(viii) Except for the claims and interest of the Trustee and HVF in the Series 2009-2 Designated Accounts, the Securities Intermediary knows of no claim to, or interest, in the Series 2009-2 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 2009-2 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 2009-2 Designated Accounts and in all proceeds thereof, and shall be the only person authorized to originate entitlement orders in respect of the Series 2009-2 Designated Accounts.
Section 2.11. [RESERVED]
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Section 2.12. Series 2009-2 Demand Note Constitutes Additional Collateral for Series 2009-2 Notes .
(a) In order to secure and provide for the repayment and payment of the Note Obligations with respect to the Series 2009-2 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 2009-2 Noteholders, all of HVFs right, title and interest in and to the following (whether now or hereafter existing or acquired): (i) the Series 2009-2 Demand Note; (ii) all certificates and instruments, if any, representing or evidencing the Series 2009-2 Demand Note; and (iii) all proceeds of any and all of the foregoing, including cash. On the date hereof, HVF shall deliver to the Trustee, for the benefit of the Series 2009-2 Noteholders, the Series 2009-2 Demand Note, endorsed in blank. The Trustee, for the benefit of the Series 2009-2 Noteholders, shall be the only Person authorized to make a demand for payment on the Series 2009-2 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 2009-2 Demand Note or forgive amounts payable thereunder on any date so that the outstanding principal amount of the Series 2009-2 Demand Note after such reduction or forgiveness is less than the greater of (x) 0.50% of the then-current aggregate Principal Amount of the Series 2009-2 Notes as of such date and (y) the Class A Letter of Credit Liquidity Amount as of such date. Other than in connection with a reduction or forgiveness in accordance with the first sentence of this Section 2.12(b) , or an increase in the stated amount of the Series 2009-2 Demand Note, HVF shall not agree, to any amendment of the Series 2009-2 Demand Note without first satisfying the Series 2009-2 Rating Agency Condition.
ARTICLE III
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 2009-2 Notes and shall constitute the Amortization Events set forth in Section 9.1(j) of the Base Indenture with respect to the Series 2009-2 Notes:
(a) HVF defaults in the payment of any interest on, or other amount payable in respect of, the Series 2009-2 Notes (other than the payments described in clauses (b) and (e) below) when the same becomes due and payable and such default continues for a period of five (5) Business Days;
(b) HVF defaults in the payment of any principal of the Series 2009-2 Notes when the same becomes due and payable on the applicable Legal Final Payment Date;
(c) a Class A Enhancement Deficiency shall exist and continue to exist for at least three (3) Business Days;
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(d) a Class A Liquidity Deficiency shall exist and continue to exist for at least three (3) Business Days;
(e) (i) all principal of and interest on the Class A-1 Notes is not paid in full on or before the Three-Year Notes Expected Final Payment Date or (ii) all principal of and interest on the Class A-2 Notes is not paid in full on or before the Five-Year Notes Expected Final Payment Date;
(f) the Class A Asset Amount shall be less than the Class A Required Asset Amount for at least three (3) Business Days;
(g) the Class A Reserve Account, a Class A Cash Collateral Account, the Series 2009-2 Excess Collection Account, or any HVF Exchange 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 and either a Class A Enhancement Deficiency or a Class A Liquidity Deficiency would result from excluding the amount on deposit in any such account that is subject to an injunction, estoppel or other stay or a Lien (other than a Permitted Lien) for at least three (3) Business Days from the Class A Adjusted Enhancement Amount or the Class A Adjusted Liquidity Amount, to the extent applicable;
(h) the Trustee shall for any reason cease to have a valid and perfected first-priority security interest in the Series 2009-2 Collateral or any of the Lessee, HVF or any Affiliate of either so asserts in writing;
(i) the occurrence of a Servicer Event of Default;
(j) HVF fails to comply with any of its other agreements or covenants in, or provisions of, the Series 2009-2 Notes or the Indenture and the failure to so comply materially and adversely affects the interests of the Series 2009-2 Noteholders and continues to materially and adversely affect the interests of the Series 2009-2 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 Required Noteholders with respect to the Series 2009-2 Notes; or
(k) any representation made by HVF in the Indenture or any Related Document is false and such false representation materially and adversely affects the interests of the Series 2009-2 Noteholders and such false representation is not cured for a period of thirty (30) days after the earlier of (i) the 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 Required Noteholders with respect to the Series 2009-2 Notes.
In the case of
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(i) any event described in clauses (a) through (h) above, an Amortization Event with respect to the Series 2009-2 Notes will immediately occur without any notice or other action on the part of the Trustee or any Series 2009-2 Noteholder or
(ii) any event described in clauses (i) through (k) above, either the Trustee may, by written notice to HVF or the Required Noteholders with respect to the Series 2009-2 Notes may, by written notice to HVF and the Trustee declare that an Amortization Event with respect to the Series 2009-2 Notes has occurred as of the date of the notice.
Subject to Section 12.2 of the Base Indenture, (A) the Class A Noteholders owning an aggregate Principal Amount of Class A Notes in excess of 66-2/3% of the Class A Principal Amount, by notice to the Trustee, may waive any existing Potential Amortization Event or Amortization Event with respect to the Series 2009-2 Notes described in clauses (a) through (h) above and (B) the Required Noteholders with respect to the Series 2009-2 Notes, by notice to the Trustee, may waive any existing Potential Amortization Event or Amortization Event with respect to the Series 2009-2 Notes described in clauses (i) through (k) above. Upon any such waiver, such Potential Amortization Event shall cease to exist with respect to the Series 2009-2 Notes, and any Amortization Event with respect to the Series 2009-2 Notes arising therefrom shall be deemed to have been cured for every purpose of the Indenture, but no such waiver shall extend to any subsequent or other Potential Amortization Event or impair any right consequent thereon. The Trustee shall provide notice to each Rating Agency then-rating the Series 2009-2 Notes of any waiver by the Series 2009-2 Notes pursuant to this provision.
Notwithstanding anything herein to the contrary, an Amortization Event with respect to the Series 2009-2 Notes described in clause (h) above shall be curable at any time.
ARTICLE IV
RESERVED
ARTICLE V
FORM OF CLASS A NOTES
Section 5.1. Issuance of Class A Notes . The Class A Notes will be initially offered and sold by HVF pursuant to the Class A Purchase Agreement. The Class A Notes will be resold initially only to (A) qualified institutional buyers (as defined in Rule 144A) ( QIBs ) in reliance on Rule 144A and (B) Persons other than U.S. Persons (as defined in Regulation S) in reliance on Regulation S. The Class A Notes may thereafter be transferred to QIBs or purchasers in reliance on Regulation S in accordance with the procedure described herein. The Class A Notes will be Book-Entry Notes and DTC will be the Depository for the Class A Notes. The provisions of the rules and
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procedures of DTC, the Operating Procedures of the Euroclear System and Terms and Conditions Governing Use of Euroclear and the General Terms and Conditions of Clearstream Banking and Customer Handbook of Clearstream (the Applicable Procedures ) shall be applicable to transfers of beneficial interests in the Class A Notes which are in the form of Class A Global Notes.
Section 5.2. Restricted Global Notes . Each Class of Class A Notes offered and sold in their initial distribution in reliance upon Rule 144A will be issued in the form of one or more global notes in fully registered form, without coupons, substantially in the form set forth in Exhibits A-1-1 and A-2-1 , respectively, registered in the name of Cede, as nominee of DTC, and deposited with BNY, as custodian of DTC (collectively, the Restricted Global Notes ). The aggregate initial principal amount of the Restricted Global Notes may from time to time be increased or decreased by adjustments made on the records of BNY, as custodian for DTC, in connection with a corresponding decrease or increase in the aggregate initial principal amount of the corresponding class of Regulation S Global Notes or the Unrestricted Global Notes, as hereinafter provided.
Section 5.3. Regulation S Global Notes and Unrestricted Global Notes . Each Class of the Class A Notes offered and sold on the Series 2009-2 Closing Date in reliance upon Regulation S will be issued in the form of one or more global notes in fully registered form, without coupons, substantially in the forms set forth in Exhibits A-1-2 and A-2-2 , in each case registered in the name of Cede, as nominee of DTC, and deposited with BNY, as custodian of DTC, for credit to the respective accounts at DTC of the designated agents holding on behalf of Euroclear and Clearstream. Until such time as the Restricted Period shall have terminated, such Class A Notes shall be referred to herein collectively as the Regulation S Global Notes . After such time as the Restricted Period shall have terminated with respect to any Class A Note, such Class A Notes shall be exchangeable, in whole or in part, for interests in one or more permanent global notes in registered form without interest coupons, substantially in the forms set forth in Exhibits A-1-3 and A-2-3 as hereinafter provided (collectively, the Unrestricted Global Notes ). The aggregate principal amount of the Regulation S Global Notes or the Unrestricted Global Notes may from time to time be increased or decreased by adjustments made on the records of BNY, as custodian for DTC, in connection with a corresponding decrease or increase of aggregate principal amount of the corresponding Restricted Global Notes, as hereinafter provided.
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Section 5.4. Transfer Restrictions .
(a) A Class A Global Note may not be transferred, in whole or in part, to any Person other than DTC or a nominee thereof, or to a successor Depository or to a nominee of a successor Depository, and no such transfer to any such other Person may be registered; provided , however , that this Section 5.4(a) shall not prohibit any transfer of a Class A Note that is issued in exchange for a Class A Global Note in accordance with Section 2.13 of the Base Indenture and shall not prohibit any transfer of a beneficial interest in a Class A Global Note effected in accordance with the other provisions of this Section 5.4 .
(b) The transfer by a Class A Note Owner holding a beneficial interest in a Restricted Global Note to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted Global Note shall be made upon the deemed representation of the transferee that it is purchasing for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding HVF as such transferee has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A.
(c) If a Class A Note Owner holding a beneficial interest in a Restricted Global Note wishes at any time to exchange its interest in such Restricted Global Note for an interest in the Regulation S Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Regulation S Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 5.4(c) . Upon receipt by the Registrar, at the office of the Registrar, of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Registrar to credit or cause to be credited to a specified Clearing Agency Participants account a beneficial interest in the Regulation S Global Note, in a principal amount equal to that of the beneficial interest in such Restricted Global Note to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form set forth in Exhibit F-1 given by the Class A Note Owner holding such beneficial interest in such Restricted Global Note, the Registrar shall instruct BNY, as custodian of DTC, to reduce the principal amount of the Restricted Global Note, and to increase the principal amount of the Regulation S Global Note, by the principal amount of the beneficial interest in such Restricted Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for Euroclear or Clearstream or both, as the case may be) a
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beneficial interest in the Regulation S Global Note having a principal amount equal to the amount by which the principal amount of such Restricted Global Note was reduced upon such exchange or transfer.
(d) If a Class A Note Owner holding a beneficial interest in a Restricted Global Note wishes at any time to exchange its interest in such Restricted Global Note for an interest in the Unrestricted Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 5.4(d) . Upon receipt by the Registrar, at the office of the Registrar, of (A) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Registrar to credit or cause to be credited to a specified Clearing Agency Participants account a beneficial interest in the Unrestricted Global Note in a principal amount equal to that of the beneficial interest in such Restricted Global Note to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) a certificate in substantially the form of Exhibit F-2 given by the Class A Note Owner holding such beneficial interest in such Restricted Global Note, the Registrar shall instruct BNY, as custodian of DTC, to reduce the principal amount of such Restricted Global Note, and to increase the principal amount of the Unrestricted Global Note, by the principal amount of the beneficial interest in such Restricted Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for Euroclear or Clearstream or both, as the case may be) a beneficial interest in the Unrestricted Global Note having a principal amount equal to the amount by which the principal amount of such Restricted Global Note was reduced upon such exchange or transfer.
(e) If a Class A Note Owner holding a beneficial interest in a Regulation S Global Note or an Unrestricted Global Note wishes at any time to exchange its interest in such Regulation S Global Note or such Unrestricted Global Note for an interest in the Restricted Global Note, or to transfer such interest to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Restricted Global Note, such exchange or transfer may be effected, subject to the Applicable Procedures, only in accordance with the provisions of this Section 5.4(e) . Upon receipt by the Registrar, at the office of the Registrar, of (i) written instructions given in accordance with the Applicable Procedures from a Clearing Agency Participant directing the Registrar to credit or cause to be credited to a specified Clearing Agency Participants account a beneficial interest in the Restricted Global Note in a principal amount equal to that of the beneficial interest in such Regulation S Global Note or such Unrestricted Global Note, as the case may be, to be so exchanged or transferred, (ii) a written order given in accordance with the Applicable Procedures containing information regarding the account
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of the Clearing Agency Participant (and the Euroclear or Clearstream account, as the case may be) to be credited with, and the account of the Clearing Agency Participant to be debited for, such beneficial interest and (iii) with respect to a transfer of a beneficial interest in such Regulation S Global Note (but not such Unrestricted Global Note), a certificate in substantially the form set forth in Exhibit F-3 given by such Class A Note Owner holding such beneficial interest in such Regulation S Global Note, the Registrar shall instruct BNY, as custodian of DTC, to reduce the principal amount of such Regulation S Global Note or such Unrestricted Global Note, as the case may be, and to increase the principal amount of the Restricted Global Note, by the principal amount of the beneficial interest in such Regulation S Global Note or such Unrestricted Global Note to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (which shall be the Clearing Agency Participant for DTC) a beneficial interest in the Restricted Global Note having a principal amount equal to the amount by which the principal amount of such Regulation S Global Note or such Unrestricted Global Note, as the case may be, was reduced upon such exchange or transfer.
(f) In the event that a Class A Global Note or any portion thereof is exchanged for Class A Notes other than Class A Global Notes, such other Class A Notes may in turn be exchanged (upon transfer or otherwise) for Class A Notes that are not Class A Global Notes or for a beneficial interest in a Class A Global Note (if any is then outstanding) only in accordance with such procedures, which shall be substantially consistent with the provisions of Sections 5.4(a) through Section 5.4(e) and Section 5.4(g) of this Series Supplement (including the certification requirement intended to ensure that transfers and exchanges of beneficial interests in a Class A Global Note comply with Rule 144A or Regulation S under the Securities Act, as the case may be) and any Applicable Procedures, as may be adopted from time to time by HVF and the Registrar.
(g) Until the termination of the Restricted Period with respect to any Class A Note, interests in the Regulation S Global Notes representing such Class A Note may be held only through Clearing Agency Participants acting for and on behalf of Euroclear and Clearstream; provided , that this Section 5.4(g) shall not prohibit any transfer in accordance with Section 5.4(d) of this Series Supplement. After the expiration of the applicable Restricted Period, interests in the Unrestricted Global Notes may be transferred without requiring any certifications.
(h) The Class A Notes shall bear the following legends to the extent indicated:
(i) The Restricted Global Notes shall bear the following legend:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT ), OR WITH ANY STATE SECURITIES LAWS. THE HOLDER OF THIS NOTE BY
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ITS ACCEPTANCE HEREOF AGREES 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) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ( RULE 144A ), TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A (A QIB ) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHT OF HVF, PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT.
(ii) The Regulation S Global Notes shall bear the following legend:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT ), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES. UNTIL 40 DAYS AFTER THE ORIGINAL ISSUE DATE OF THE NOTES (THE RESTRICTED PERIOD ) IN CONNECTION WITH THE OFFERING OF THE NOTES IN THE UNITED STATES FROM OUTSIDE OF THE UNITED STATES, THE SALE, PLEDGE OR TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN CONDITIONS AND RESTRICTIONS. THE HOLDER HEREOF, BY PURCHASING OR OTHERWISE ACQUIRING THIS NOTE, ACKNOWLEDGES THAT THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND AGREES FOR THE BENEFIT OF HERTZ VEHICLE FINANCING LLC ( HVF ) THAT THIS NOTE MAY BE TRANSFERRED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OF THE STATES, TERRITORIES AND POSSESSIONS OF THE UNITED STATES GOVERNING THE OFFER AND SALE OF SECURITIES, AND PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD, ONLY (1) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) PURSUANT TO AND IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT OR (3) TO HVF.
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(iii) The Class A Global Notes shall bear the following legends:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ( DTC ), A NEW YORK CORPORATION, 55 WATER STREET, NEW YORK, NEW YORK 10004, OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO HVF OR THE REGISTRAR, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE REGISTERED OWNER, CEDE & CO., HAS AN INTEREST HEREIN.
(iv) The required legends set forth above shall not be removed from the applicable Class A Notes except as provided herein. The legend required for a Restricted Note may be removed from such Restricted Note if there is delivered to HVF and the Registrar such satisfactory evidence, which may include an Opinion of Counsel as may be reasonably required by HVF that neither such legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Class A Note will not violate the registration requirements of the Securities Act. Upon provision of such satisfactory evidence, the Trustee at the direction of HVF shall authenticate and deliver in exchange for such Restricted Note a Class A Note or Class A Notes having an equal aggregate principal amount that does not bear such legend. If such a legend required for a Restricted Note has been removed from a Class A Note as provided above, no other Class A Note issued in exchange for all or any part of such Class A Note shall bear such legend, unless HVF has reasonable cause to believe that such other Class A Note is a restricted security within the meaning of Rule 144 under the Securities Act and instructs the Trustee to cause a legend to appear thereon.
Section 5.5. Definitive Notes . No Class A Note Owner will receive a Definitive Note representing such Class A Note Owners interest in the Class A Notes other than in accordance with Section 2.13 of the Base Indenture. Definitive Notes shall
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have such insertions and deletions as are necessary to give effect to the provisions of Section 2.13 of the Base Indenture.
ARTICLE VI
GENERAL
Section 6.1. Optional Redemption of Series 2009-2 Notes . (a) On any Payment Date, HVF may, at its option, redeem the Class A Notes or any Class of the Class A Notes, in whole but not in part, if on such Payment Date, in the case of a redemption of all of the Class A Notes, the Principal Amount of the Class A Notes is less than or equal to 10% of the aggregate Initial Principal Amount of the Class A Notes and, in the case of any Class of the Class A Notes, the Principal Amount of such class of Class A Notes is less than or equal to 10% of the Initial Principal Amount of such class of Class A Notes, as the case may be, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon with funds deposited in the Series 2009-2 Distribution Account for the payment of such redemption price.
(b) If HVF elects to redeem any Class of the Class A Notes pursuant to the provisions of Section 6.1(a) , it shall notify the Trustee in writing at least 15 days prior to the intended date of redemption of (i) such intended date of redemption, (ii) the Class A Notes subject to redemption and (iii) the principal amount of the Class A Notes to be redeemed. Upon receipt of a notice of redemption from HVF, the Trustee shall give notice of such redemption in the manner provided in Section 13.1 of the Base Indenture to the Class A Noteholders of the Class A Notes to be redeemed. Such notice shall be given not less than 5 days prior to the intended date of redemption.
Section 6.2. Information . 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 2009-2 Notes, substantially in the form of Exhibit G , setting forth, inter alia, the following information:
(i) the total amount available to be distributed to Class A Noteholders on such Payment Date;
(ii) the amount of such distribution allocable to the payment of principal of each Class of the Class A Notes;
(iii) the amount of such distribution allocable to the payment of interest on each Class of the Class A Notes;
(iv) the Series 2009-2 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;
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(v) the Class A Enhancement Amount, the Class A Adjusted Enhancement Amount, the Class A Liquidity Amount, the Class A 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 2009-2 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 Program 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 2 Manufacturer Eligible Program Vehicle Amount, the Category 2 Manufacturer Eligible Program Vehicle Percentage, the Category 2 Manufacturer Non-Eligible Program Vehicle Amount, the Category 2 Manufacturer Non-Eligible Program Vehicle Percentage, the Category 2 Manufacturer Program Vehicle Percentage, the Category 3 Manufacturer 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, and the Non-Eligible Manufacturer Amount as of the close of business on the last day of the Related Month;
(xi) the Class A Highest Enhancement Percentage, the Class A Intermediate Enhancement Percentage, the Class A Lowest Enhancement Percentage, Class A Intermediate Enhancement Vehicle Percentage and the Class A 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, and all calculations related thereto;
(xii) the Class A Required Incremental Enhancement Amount, if any, as of the close of business on the last day of the Related Month;
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(xiii) the Class A Required Liquidity Amount, if any, as of the close of business on the last day of the Related Month, and whether a Class A Liquidity Deficiency existed and the amount thereof, in each case, as of the close of business on the last day of the Related Month;
(xiv) the Class A Required Enhancement Amount as of the close of business on the last day of the Related Month, and whether a Class A Enhancement Deficiency existed and the amount thereof, in each case, as of the close of business on the last day of the Related Month;
(xv) the Class A Required Overcollateralization Amount, the Class A Overcollateralization Amount and the Series 2009-2 Required Asset Amount, in each case, as of the close of business on the last day of the Related Month;
(xvi) the Class A Required Reserve Account Amount and the Class A Available Reserve Account Amount, in each case, as of the close of business on the last day of the Related Month;
(xvii) the percentage, Manufacturer Eligible Program Vehicle Amount and rating of the related Manufacturer of all HVF Vehicles, with respect to each Manufacturer including such information grouped according to whether each such Manufacturer is a Category 1 Manufacturer, a Category 2 Manufacturer, or a Category 3 Manufacturer, as of the close of business on the last day of the Related Month which were Eligible Program Vehicles manufactured by such Manufacturer;
(xviii) the percentage, Manufacturer Non-Eligible Vehicle Amount and rating of the related Manufacturer 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;
(xix) the percentage, Manufacturer Non-Eligible Vehicle Amount and rating of the related Manufacturer 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;
(xx) the Class A Letter of Credit Liquidity Amount and the Class A Letter of Credit Amount, in each case, as of the close of business on the last day of the Related Month; and
(xxi) the Class A Principal Amount and the Class A Adjusted Principal Amount, in each case as of such Payment Date.
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The Trustee shall provide to the Series 2009-2 Noteholders, or their designated agent copies of each Monthly Noteholders Statement.
Section 6.3. Exhibits . The following exhibits attached hereto supplement the exhibits included in the Indenture.
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 Rating Agencies . The Trustee shall provide to each Rating Agency a copy of each notice to the Series 2009-2 Noteholders, Opinion of Counsel and Officers Certificate delivered to the Trustee pursuant to this Series Supplement or any other Related Document.
Section 6.6. [ Reserved ]
Section 6.7. Third Party Beneficiary . Ford, in its capacity as accountholder of a Ford Letter of Credit, is an express third party beneficiary of the Base Indenture and this Series Supplement to the extent of the provisions relating to Ford.
Section 6.8. [Reserved]
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Section 6.9. [Reserved]
Section 6.10. 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 6.11. 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.
Section 6.12. Amendments . This Series Supplement may be modified or amended from time to time in accordance with the terms of the Base Indenture, provided , that if, pursuant to the terms of the Base Indenture or this Series Supplement, the consent of the Required Noteholders with respect to the Series 2009-2 Notes 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 2009-2 Notes; provided , further , that, if the consent of the Required Noteholders with respect to the Series 2009-2 Notes is required for a proposed amendment or modification of this Series Supplement that does not adversely affect in any material respect one or more Classes of the Series 2009-2 Notes (as evidenced by an Officers Certificate to such effect), then such requirement shall be satisfied if such amendment or modification is consented to by the Series 2009-2 Noteholders representing more than 50% of the Principal Amount of the Classes of the Series 2009-2 Notes materially adversely affected by such amendment or modification (without the necessity of obtaining the consent of the Series 2009-2 Noteholders holding the Classes of the Series 2009-2 Notes not affected by such amendment or modification); provided , further that, notwithstanding anything in Section 6.12 of this Series Supplement or Article XII of the Base Indenture, this Series Supplement may be amended to provide for the issuance of any Class B Notes in accordance with Section 6.18 without the consent of any Class A Noteholder. Any amendment to this Series Supplement, including any amendment in connection with the issuance of Class B Notes pursuant to Section 6.18 of this Series Supplement, shall be subject to the satisfaction of the Series 2009-2 Rating Agency Condition.
Section 6.13. Termination of Series Supplement . This Series Supplement shall cease to be of further effect when (i) all Outstanding Series 2009-2 Notes theretofore authenticated and issued have been delivered (other than destroyed, lost, or stolen Series 2009-2 Notes which have been replaced or paid) to the Trustee for cancellation, (ii) HVF has paid all sums payable hereunder, and (iii) the Class A Letter of Credit Liquidity Amount is equal to zero.
Section 6.14. 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 6.13 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
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Series 2009-2 Notes without the consent of the Required Noteholders with respect to the Series 2009-2 Notes.
Section 6.15. [Reserved]
Section 6.16. [ Reserved ].
Section 6.17. [ Reserved ].
Section 6.18. Issuances of Class B Notes .
(a) No Class B Notes shall be issued on the Series 2009-2 Closing Date. On any date during the Series 2009-2 Revolving Period, HVF may issue Class B-1 Notes and/or Class B-2 Notes, subject to the satisfaction of the following conditions precedent:
(i) HVF and the Trustee shall have entered into an amendment to this Series Supplement providing (a) that each class of Class B Notes will bear a fixed rate of interest, determined on or prior to the Class B Notes Closing Date, (b) that the expected final payment date for the Class B-1 Notes, if any, will be the Three-Year Notes Expected Final Payment Date and that the expected final payment date for the Class B-2 Notes, if any, will be the Five-Year Notes Expected Final Payment Date, (c) that the principal amount of the Class B-1 Notes, if any, will be due and payable on the Three-Year Notes Legal Final Payment Date and that the principal amount of the Class B-2 Notes, if any, will be due and payable on the Five-Year Notes Legal Final Payment Date, (d) that the controlled amortization period with respect to the Class B-1 Notes, if any, will be the Three-Year Notes Controlled Amortization Period and that the controlled amortization period with respect to the Class B-2 Notes, if any, will be the Five-Year Notes Controlled Amortization Period, and (e) payment mechanics with respect to the Class B Notes substantially similar to those with respect to the Class A Notes (other than as set forth below) and such other provisions with respect to the Class B Notes as may be required for such issuance;
(ii) The Trustee shall have received a Company Request at least two (2) Business Days (or such shorter time as is acceptable to the Trustee) in advance of the proposed closing date for the issuance of the Class B Notes (the Class B Notes Closing Date ) requesting that the Trustee authenticate and deliver the Class B-1 Notes and/or the Class B-2 Notes specified in such Company Request (such specified Class B Notes, the Proposed Class B Notes );
(iii) If the Class B Notes Closing Date occurs after the commencement of the Three-Year Notes Controlled Amortization Period, no Class B-1 Notes shall be issued;
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(iv) The Trustee shall have received a Company Order authorizing and directing the authentication and delivery of the Proposed Class B Notes, by the Trustee and specifying the designation of each such Class or Classes of Proposed Class B Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of each Class of Proposed Class B Notes to be authenticated and the Note Rate with respect to such Class of Proposed Class B Notes;
(v) The Trustee shall have received an Officers Certificate of HVF dated as of the Class B Notes Closing Date to the effect that:
(A) no Amortization Event with respect to the Series 2009-2 Notes, Liquidation Event of Default, Series 2009-2 Limited Liquidation Event of Default, Aggregate Asset Amount Deficiency, Operating Lease Event of Default, or Class A Enhancement Deficiency is continuing or will occur as a result of the issuance of such Proposed Class B Notes,
(B) all conditions precedent provided in this Series Supplement with respect to the authentication and delivery of such Proposed Class B Notes have been complied with, and
(C) the issuance of Proposed Class B Notes and any related amendments to this Series Supplement and any Related Documents relating to the Series 2009-2 Notes will not reduce the availability of the Class A Enhancement Amount to support the payment of interest on or principal of the Class A Notes in any material respect;
(vi) no amendments to this Series Supplement or any Related Documents relating to the Series 2009-2 Notes in connection with the issuance of the Proposed Class B Notes may provide for (a) the application of amounts available under the Class A Letters of Credit or the Class A Reserve Account to support the payment of interest on or principal of the Class B Notes while any Class A Notes remain outstanding; (b) payment of interest to any Class B Notes on any Payment Date until all interest due on the Class A Notes on such Payment Date has been paid; (c) (x) during the Three-Year Notes Controlled Amortization Period, payment of principal of the Class B-1 Notes on any Payment Date until the Controlled Distribution Amount with respect to the Class A-1 Notes on such Payment Date has been paid, (y) during the Five-Year Notes Controlled Amortization Period, payment of principal of the Class B-2 Notes on any Payment Date until the Controlled Distribution Amount with respect to the Class A-2 Notes on such Payment Date has been paid and (z) during the Series 2009-2 Rapid Amortization Period, payment of principal of the Class B Notes until the principal amount of the Class A Notes has been paid in full; (d) the reallocation of Principal Collections allocable to the Series 2009-2 Notes to pay interest on the Class B Notes while any Class A Notes remain outstanding; (e) any voting rights in respect of the Class B Notes, for so long as any Class A Notes are outstanding,
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other than with respect to amendments to the Indenture pursuant to Section 12.2(b)(i) or (ii) ; and (f) the addition of any Amortization Event with respect to the Series 2009-2 Notes other than those related to payment defaults on the Class B Notes similar to those in respect of the Class A Notes and enhancement or liquidity deficiencies in respect of the credit enhancement supporting the Class B Notes similar to those in respect of the Class A Notes;
(vii) the Trustee shall have received opinions of counsel substantially similar to those received in connection with the offering and sale of the Class A Notes, including without limitation, opinions to the effect that:
(A) the Proposed Class B Notes will be characterized as indebtedness for federal income tax purposes,
(B) the issuance of the Proposed Class B Notes will not affect adversely the United States federal income tax characterization of any Series of Notes outstanding or Class thereof that was (based upon on Opinion of Counsel) characterized as debt at the time of their issuance and HVF will not be classified as an association or as a publicly traded partnership taxable as a corporation for United States federal income tax purposes as a result of such issuance,
(C) all conditions precedent provided for in the Base Indenture and this Series Supplement with respect to the authentication and delivery of the Proposed Class B Notes have been complied with, and
(D) the Proposed Class B Notes have been duly authorized and executed and such Proposed Class B Notes (when authenticated and delivered in accordance with the provisions of the Base Indenture and this Series Supplement) and any amendments to this Series Supplement and any Related Documents relating to the Series 2009-2 Notes will constitute valid, binding and enforceable obligations of HVF, subject, in the case of enforcement, to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors rights generally and to general principles of equity.
Section 6.19. Noteholder Consents . Each Series 2009-2 Noteholder, upon acquisition of a Series 2009-2 Note, will be deemed to agree and consent to (i) the execution of a Supplemental Indenture to the Base Indenture substantially in the form of Exhibit J hereto, (ii) the execution of an amendment to the Collateral Agency Agreement substantially in the form of Exhibit K hereto, (iii) the execution of an amendment to the HGI Purchase Agreement substantially in the form of Exhibit L hereto, and (iv) the execution of an amendment to the HVF Lease substantially in the form of Exhibit M hereto, in each case, together with any changes to such forms that do not adversely affect the Series 2009-2 Noteholders in any material respect as evidenced by an Officers Certificate of HVF. Such deemed consent will apply to each proposed amendment set forth in Exhibits J , K , L , and M individually, and the failure to effect any of the
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amendments set forth therein will not revoke the consent with respect to any other amendment.
Section 6.20. Confidential Information . (a) The Trustee and each Class A Note Owner agrees, by its acceptance and holding of a beneficial interest in a Class A Note, to maintain the confidentiality of all Confidential Information in accordance with procedures adopted by such Class A Noteholder in good faith to protect confidential information of third parties delivered to such person; provided that such person may deliver or disclose Confidential Information to: (i) such persons directors, trustees, officers, employees, agents, attorneys, independent or internal auditors and affiliates who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 6.20 ; (ii) such persons financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 6.20 ; (iii) any other Class A Note Owner; (iv) any person of the type that would be, to such persons knowledge, permitted to acquire an interest in the Class A Notes in accordance with the requirements of the Indenture to which such person sells or offers to sell any such interest in the Class A Notes or any part thereof and that agrees to hold confidential the Confidential Information substantially in accordance with the terms of this Section 6.20 (or in accordance with such other confidentiality procedures as are acceptable to HVF); (v) any federal or state or other regulatory, governmental or judicial authority having jurisdiction over such person; (vi) the National Association of Insurance Commissioners or any similar organization, or any nationally-recognized rating agency that requires access to information about the investment portfolio or such person; (vii) any reinsurers or liquidity or credit providers that agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 6.20 (or in accordance with such other confidentiality procedures as are acceptable to HVF); (viii) any other person with the consent of HVF; or (ix) any other person to which such delivery or disclosure may be necessary or appropriate (A) to effect compliance with any law, rule, regulation, statute or order applicable to such person, (B) in response to any subpoena or other legal process upon prior notice to HVF (unless prohibited by applicable law or other requirement having the force of law), (C) in connection with any litigation to which such person is a party upon prior notice to HVF (unless prohibited by applicable law or other requirement having the force of law) or (D) if an Amortization Event with respect to the Series 2009-2 Notes has occurred and is continuing, to the extent such person may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under the Class A Notes, the Indenture or any other Related Document; and provided , further , however , that delivery to any Class A Note Owner of any report or information required by the terms of the Indenture to be provided to such Class A Note Owner shall not be a violation of this Section 6.20 . Each Class A Note Owner, by its acceptance of a beneficial interest in the Class A Notes, shall be deemed to have agreed, except as set forth in clauses (v) , (vi) and (ix) above, that it shall use the Confidential Information for the sole purpose of making an investment in the Class A Notes or administering its investment in the Class A Notes. In the event of any required disclosure of the Confidential Information by such Class A Note Owner, such
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Class A Note Owner shall be deemed to have agreed to use reasonable efforts to protect the confidentiality of the Confidential Information.
(b) For the purposes of this Section 6.20 , Confidential Information means information delivered to the Trustee or any Class A Note Owner by or on behalf of HVF in connection with and relating to the transactions contemplated by or otherwise pursuant to the Indenture and the Related Documents; provided that such term does not include information that: (i) was publicly known or otherwise known to the Trustee or the Class A Note Owner prior to the time of such disclosure; (ii) subsequently becomes publicly known through no act or omission by the Trustee, any Class A Note Owner or any person acting on behalf of the Trustee or any Class A Note Owner; (iii) otherwise is known or becomes known to the Trustee or any Class A Note Owner other than (x) through disclosure by HVF or (y) as a result of a breach of fiduciary duty to HVF or a contractual duty to HVF; or (iv) is allowed to be treated as non-confidential by consent of HVF.
Section 6.21. Trustee Has No Duty to Monitor Manufacturer Ratings. In no event shall the Trustee (x) have any duty or responsibility to monitor the ratings of the Manufacturers or (y) be charged with knowledge of such ratings, unless a Trust Officer receives written notice of such ratings from HVF, Hertz or any Series 2009-2 Noteholder or otherwise has actual knowledge thereof.
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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: |
/s/ R. Scott Massengill |
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Name: R. Scott Massengill |
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Title: V. P. & Treasurer |
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee, |
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By: |
/s/ John D. Ask |
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Name: John D. Ask |
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Title: Senior Associate |
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Exhibit 4.19.1
First Supplemental Indenture
FIRST SUPPLEMENTAL INDENTURE, dated as of August 19, 2009 (this Supplemental Indenture ), between Hertz Global Holdings, Inc., a corporation organized duly organized and existing under the laws of the state of Delaware (and its successors and assigns) (the Company ); and Wells Fargo Bank, National Association, as Trustee under the Indenture referred to below.
W I T N E S S E T H:
WHEREAS, the Company and the Trustee have entered into an Indenture, dated as of May 27, 2009 (as amended, supplemented, waived or otherwise modified, the Indenture ), providing for the issuance of 5.25% Convertible Senior Notes due 2014 of the Company (the Notes );
WHEREAS, the Company desires to execute and deliver an amendment to the Indenture for the purposes of ( i ) correcting a defect or inconsistency in Section 9.02(b)(3) of the Indenture and ( ii ) conforming the relevant text of Section 9.02(b)(3) of the Indenture to the corresponding provision of the Description of Notes section of the prospectus supplement, dated May 20, 2009, related to the offering and sale of the Notes;
WHEREAS, the Company desires to enter into such supplemental indenture for good and valuable consideration; and
WHEREAS, pursuant to Section 8.01 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without notice to or the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company and the Trustee mutually covenant and agree for the benefit of the Holders of the Notes as follows:
1. Defined Terms . As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined. The words herein, hereof and hereby and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular Section hereof.
2. Amendment of Section 9.02 . The text of paragraph (b)(3) of Section 9.02 of the Indenture is hereby amended pursuant to Sections 8.01(f) and/or (j) of the Indenture by the deletion of clause (B) thereof and the substitution of the following therefor:
(B) if the Fixed Cash Amount is less than the Conversion Value a number of shares of Common Stock equal to the sum, for each of the thirty (30)
Settlement Period Trading Days in the Settlement Period, of 1/30 th of (a) the Conversion Rate then in effect minus (b) the quotient of (x) the Fixed Cash Amount divided by (y) the VWAP of the Common Stock on that Settlement Period Trading Day (plus cash in lieu of fractional shares, if applicable, as set forth in Section 9.02(i)).
3. Governing Law . THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THE TRUSTEE, THE COMPANY, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.
4. Ratification of Indenture; Supplemental Indentures Part of Indenture . Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or as to the accuracy of the recitals to this Supplemental Indenture.
5. Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
6. Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
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HERTZ GLOBAL HOLDINGS, INC. |
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By: |
/s/ Elyse Douglas |
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Name: |
Elyse Douglas |
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Title: |
Executive Vice President and Chief Financial Officer |
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WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee |
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By: |
/s/ Martin Reed |
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Name: |
Martin Reed |
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Title |
Vice President |
4
Exhibit 10.37.1
Amendment No. 1
to the
Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan
This AMENDMENT NO. 1 to the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan (the Plan ) is effective as of May 20, 2009.
1. Vesting of Options Granted to Non-Employee Directors . The first sentence of Section 5.1(c) of the Plan shall be amended to read in its entirety (the amended portion is printed in bold ):
(c) Exercisability . Each Option awarded to a Participant under the Plan shall become exercisable based on the performance of a minimum period of service or the occurrence of any event or events, including a Change in Control, as the Committee shall determine, either at or after the grant date; provided , that, except in the case of Replacement Awards or grants to newly-eligible Participants or to non-employee directors of the Company or its Subsidiaries , no Option shall become exercisable prior to a Participants completion of one year of service to the Company or any Subsidiary.
2. Vesting of Stock Appreciation Rights Granted to Non-Employee Directors . The first sentence of Section 5.2(b) of the Plan shall be amended to read in its entirety (the amended portion is printed in bold ):
(b) Exercise . Stock Appreciation Rights awarded to a Participant under the Plan shall become exercisable based on the performance of a minimum period of service or the occurrence of any event or events, including a Change in Control, as the Committee shall determine, either at or after the grant date; provided , that, except in the case of Replacement Awards or grants to newly-eligible Participants or to non-employee directors of the Company or its Subsidiaries , no Stock Appreciation Right shall become exercisable prior to a Participants completion of one year of service to the Company or any Subsidiary.
3. Establishment of Share Awards .
(a) The definition of Award set forth in Section 2.1 of the Plan shall be amended to read in its entirety (the amended portion is printed in bold ):
Award means any Option, Stock Appreciation Right, Performance Stock, Performance Stock Unit, Performance Unit, Restricted Stock, Restricted Stock Unit, Share Award or Deferred Stock Unit granted pursuant to the Plan, including an Award combining two or more types in a single grant.
(b) The new defined term Share Award shall be added to Section 2.1 of the Plan as follows:
Share Award means an Award of unrestricted Shares pursuant to Section 7.8 of the Plan.
(c) The heading of Article VII of the Plan shall be amended to read in its entirety (the amended portion is printed in bold ):
RESTRICTED STOCK AND RESTRICTED STOCK UNITS; SHARE AWARDS
(d) A new Section 7.8 shall be added to the Plan, as follows:
7.8 Share Awards . Share Awards may be granted to Participants at such time or times as shall be determined by the Committee on such terms and conditions as the Committee may determine in its discretion. Share Awards may be made as additional compensation for services rendered by a Participant to the Company or any Subsidiary or may be in lieu of cash or other compensation to which the Participant may be entitled from the Company or any Subsidiary.
4. Except as modified hereby, the Plan as in effect immediately prior to this amendment shall remain in full force and effect. Capitalized terms used but not defined herein shall have the meanings set forth in the Plan.
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Exhibit 10.37.2
Amendment No. 2
to the
Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan
This AMENDMENT NO. 2 to the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan (the Plan ) is effective as of May 20, 2009.
1. Provisions Relating To Performance Stock Units . Section 6.4(a) of the Plan shall be amended so as to read in its entirety (the amended portion is printed in bold ):
(a) Restrictions on Transferability . Except as otherwise provided in Section 6.6(a) or with the consent of the Committee , Performance Stock Units may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated. Any attempt by a Participant, directly or indirectly, to offer, transfer, sell, pledge, hypothecate or otherwise dispose of any Performance Stock Units or any interest therein or any rights relating thereto other than as provided in the Plan shall be void and of no effect.
2. Except as modified hereby, the Plan as in effect immediately prior to this amendment shall remain in full force and effect. Capitalized terms used but not defined herein shall have the meanings set forth in the Plan.
Exhibit 10.45.1
FORM OF AMENDMENT TO THE PERFORMANCE STOCK UNIT AGREEMENT BETWEEN AND HERTZ GLOBAL HOLDINGS, INC.,
DATED AS OF (the PSU AGREEMENT ).
This AMENDMENT TO THE PSU AGREEMENT (this Amendment ), dated as of , 20 , is entered into by (the Participant ) and Hertz Global Holdings, Inc., a Delaware corporation (the Company ), and approved by the Board of Directors of the Company.
W I T N E S S E T H
WHEREAS, the Participant and the Company are parties to the PSU Agreement;
WHEREAS, the Participant was previously granted Performance Stock Units (the PSUs ) of the Company, each of which represents the right to receive, without payment, one share of Common Stock upon the occurrence of certain events, pursuant to the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan, as amended, (the Plan ) and subject to the terms and conditions set forth in the PSU Agreement;
WHEREAS, the Participant has advised the Company that he wishes to transfer, without consideration, ownership of the PSUs to ;
WHEREAS, the PSU Agreement does not currently permit the transfer of ownership of the PSUs except upon the Participants death; and
WHEREAS, the Compensation Committee of the Board of Directors of Hertz Global Holdings, Inc. (the Committee ), pursuant to Section 6.4(a) of the Plan, has the authority to consent to the transfer of the PSUs.
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the parties hereto agree as follows:
1. Amendment to the Restrictions on Transferability.
Section 7(a) of the PSU Agreement shall be amended so as to read in its entirety (the additional language is printed in bold and the deleted language is struck through):
(a)
Restrictions
on Transferability
. The Performance
Stock Units granted hereby may not be sold, transferred, pledged, assigned, or
otherwise alienated or hypothecated other than
with the
consent of the Company or
by will or by the laws of descent and
distribution to the estate of the Participant upon the Participants death;
provided that
any such permitted transferee
the
deceased Participants beneficiary or representative of the Participants
estate
shall acknowledge and agree in writing, in a form reasonably
acceptable to the Company, to be bound by the provisions of this Agreement and
the Plan as if such beneficiary or the estate were the Participant. Any attempt by the Participant,
directly or indirectly, to offer, transfer, sell, pledge, hypothecate or otherwise dispose of any Performance Stock Units or any interest therein or any rights relating thereto without complying with the provisions of the Plan and this Agreement, including this Section 7(a), shall be void and of no effect.
2. Except as modified hereby, the PSU Agreement as in effect immediately prior to this amendment shall remain in full force and effect. Capitalized terms used but not defined herein shall have the same meaning as set forth in the PSU Agreement.
[ signature page follows ]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first above written.
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HERTZ GLOBAL HOLDINGS, INC. |
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Name: |
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Title: |
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PARTICIPANT |
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Name: |
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November 6, 2009
Securities
and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Commissioners:
We are aware that our report dated November 6, 2009 on our review of interim financial information of Hertz Global Holdings, Inc. and its subsidiaries (the "Company") for the three-month and nine-month periods ended September 30, 2009 and September 30, 2008 and included in the Company's quarterly report on Form 10-Q for the quarter ended September 30, 2009 is incorporated by reference in its Registration Statements on Form S-8 (File Nos. 333-138812 and 333-151103) and on Form S-3 (File No. 333-159348).
Very truly yours,
/s/
PricewaterhouseCoopers LLP
Florham Park, New Jersey
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO RULE 13a-14(a)/15d-14(a)
I, Mark P. Frissora, certify that:
Date: November 6, 2009
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By: |
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/s/ MARK P. FRISSORA |
Mark P. Frissora Chief Executive Officer |
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO RULE 13a-14(a)/15d-14(a)
I, Elyse Douglas, certify that:
Date: November 6, 2009
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By: |
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/s/ ELYSE DOUGLAS |
Elyse Douglas Chief Financial Officer |
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350
In connection with the quarterly report of Hertz Global Holdings, Inc. (the "Company") on Form 10-Q for the period ending September 30, 2009 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Mark P. Frissora, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
Date: November 6, 2009 |
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By: |
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/s/ MARK P. FRISSORA |
Mark P. Frissora Chief Executive Officer |
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO 18 U.S.C. SECTION 1350
In connection with the quarterly report of Hertz Global Holdings, Inc. (the "Company") on Form 10-Q for the period ending September 30, 2009 as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Elyse Douglas, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
Date: November 6, 2009 |
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By: |
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/s/ ELYSE DOUGLAS |
Elyse Douglas Chief Financial Officer |