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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

OR

o

 

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

 
   
  Page

PART I. FINANCIAL INFORMATION

   
     

ITEM 1.

 

Condensed Consolidated Financial Statements (Unaudited)

   

 

Report of Independent Registered Public Accounting Firm

 

1

 

Condensed Consolidated Balance Sheets as of September 30, 2009 and December 31, 2008

 

2

 

Consolidated Statements of Operations for the Three and Nine Months Ended September 30, 2009 and 2008

 

3

 

Consolidated Statements of Cash Flows for the Nine Months Ended September 30, 2009 and 2008

 

4–5

 

Notes to Condensed Consolidated Financial Statements

 

6–39

     

ITEM 2.

 

Management's Discussion and Analysis of Financial Condition and Results of Operations

 

40–70

     

ITEM 3.

 

Quantitative and Qualitative Disclosures About Market Risk

 

70

     

ITEM 4.

 

Controls and Procedures

 

71

PART II. OTHER INFORMATION

   
     

ITEM 1.

 

Legal Proceedings

 

72

     

ITEM 1A.

 

Risk Factors

 

72

     

ITEM 6.

 

Exhibits

 

72–74

SIGNATURE

 

75

EXHIBIT INDEX

 

76–77



PART I—FINANCIAL INFORMATION

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
 

ASSETS

             

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:

             
 

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:

             
 

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

             

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)

             

Equity:

             

Hertz Global Holdings Inc. and Subsidiaries stockholders' equity

             
 

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

         
 

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,
 
 
  2009   2008   2009   2008  

Revenues:

                         
 

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:

                         
 

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)

                         
 

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:

                         
 

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,
 
 
  2009   2008  
 
   
  (Note 1)
 

Cash flows from operating activities:

             
 

Net income (loss)

  $ (83,711 ) $ 27,353  
 

Adjustments to reconcile net income (loss) to net cash provided by operating activities:

             
   

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:

             
   

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,
 
 
  2009   2008  
 
   
  (Note 1)
 

Cash flows from investing activities:

             
 

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:

             
 

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:

             
   

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:

             
 

Cash paid during the period for:

             
   

Interest (net of amounts capitalized)

  $ 556,932   $ 626,934  
   

Income taxes

    20,721     22,562  

Supplemental disclosures of non-cash flow information:

             
   

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 1—Background, 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:

    Clayton, Dubilier & Rice, Inc., or "CD&R,"

    The Carlyle Group, or "Carlyle," and

    Merrill Lynch Global Private Equity, or "MLGPE,"

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 7—Debt and Note 11—Total 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 Statements—an 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:

    Old General Motors paid us, and New General Motors, as defined below, continues to pay us, all of the amounts owed under our repurchase programs;

    With the approval of the bankruptcy court, Old General Motors assumed the vehicle repurchase programs it has with us and assigned the repurchase programs to a newly formed company referred to as "New General Motors";

    New General Motors emerged from bankruptcy quickly; and

    The resale value of vehicles manufactured by Old General Motors has not declined following its filing.

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 2—Recently 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 7—Debt and Note 11—Total 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,"Compensation—Retirement 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 3—Cash 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 4—Goodwill 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  
               

(1)
Consists of changes resulting from the translation of foreign currency denominated balances at different exchange rates from the beginning of the period to the end of the period.

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 5—Taxes 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 6—Depreciation 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 7—Debt

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:

    the ABS Indenture;

    a Third Amended and Restated Master Motor Vehicle Operating Lease and Servicing Agreement between Hertz, as Lessee and Servicer, and HVF, as Lessor;

    a Third Amended and Restated Collateral Agency Agreement among HVF, as a Grantor, Hertz General Interest LLC, as a Grantor, Hertz, 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 Hertz, as a Secured Party;

    a Second Amended and Restated Participation, Purchase and Sale Agreement by and between Hertz General Interest LLC, HVF and Hertz, as Lessee and Servicer;

    a Second Amended and Restated Administration Agreement by and between Hertz, HVF and the Trustee;

    a Second Amended and Restated Master Exchange Agreement among Hertz, HVF, Hertz General Interest LLC, Hertz Car Exchange Inc., and DB Services Tennessee, Inc.; and

    a Second Amended and Restated Escrow Agreement among Hertz, HVF, Hertz General Interest LLC, Hertz Car Exchange Inc., and J.P. Morgan Chase Bank, N.A.

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 13—Financial 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 17—Subsequent 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 8—Financial Statements and Supplementary Data."

(1)
Our "Convertible Senior Notes" refer to $474.8 million aggregate principal amount of 5.25% convertible senior notes due June 2014 issued by us during May and June 2009.

(2)
Our "U.S. Fleet Debt" as of September 30, 2009, consisted of our 2005 Notes and our Series 2009-1 Notes. For all periods prior to September 30, 2009 it also included the Terminated VFNs.

(3)
"Capitalized Leases" include capitalized lease financings outstanding in the United Kingdom (previously referred to as the "U.K. Leveraged Financing"), Australia and Netherlands.

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 8—Financial 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 13—Financial 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 8—Employee 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 )
                           

 

 
  Pension Benefits    
   
 
 
  Postretirement
Benefits (U.S.)
 
 
  U.S.   Non-U.S.  
 
  Nine months ended September 30,  
 
  2009   2008   2009   2008   2009   2008  

Components of Net Periodic Benefit Cost:

                                     
 

Service cost

  $ 16.5   $ 18.0   $ 4.1   $ 5.9   $ 0.1   $ 0.1  
 

Interest cost

    21.0     20.3     7.1     7.5     0.6     0.5  
 

Expected return on plan assets

    (17.1 )   (18.5 )   (5.6 )   (8.3 )        
 

Net amortizations

    0.3     0.2     (0.3 )   (0.5 )   (0.3 )   (2.8 )
 

Settlement loss

    1.5     2.5                  
                           
 

Net pension/postretirement expense

  $ 22.2   $ 22.5   $ 5.3   $ 4.6   $ 0.4   $ (2.2 )
                           

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 9—Stock-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 10—Segment 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  
                       

(1)
Represents general corporate expenses, certain interest expense (including net interest on corporate debt), as well as other business activities such as our third-party claim management services.

(2)
Represents the purchase accounting effects of the Acquisition and any subsequent acquisitions on our results of operations relating to increased depreciation and amortization of tangible and intangible assets and accretion of revalued workers' compensation and public liability and property damage liabilities.

(3)
Represents non-cash debt charges relating to the amortization of deferred debt financing costs and debt discounts. For the three and nine months ended September 30, 2009, also includes $22.4 million and $52.2 million, respectively, associated with the amortization of amounts pertaining to the de-designation of the HVF interest rate swaps as effective hedging instruments. For the three and nine months ended September 30, 2008, also includes $2.8 million and $7.8 million, respectively, associated with the ineffectiveness of the HVF interest rate swaps.

(4)
Represents incremental, one-time costs incurred directly supporting our business transformation initiatives. Such costs include transition costs incurred in connection with our business process outsourcing arrangements and incremental costs incurred to facilitate business process re-engineering initiatives that involve significant organization redesign and extensive operational process changes.

(5)
In 2009, represents the mark-to-market adjustments on our interest rate cap and gasoline swap. In 2008, represents unrealized losses and a realized gain on our Hertz International Ltd., or "HIL," interest rate swaptions which were terminated in October 2008.

(6)
Represents changes in the employee vacation accrual relating to a change in our U.S. vacation policy in 2007 which provides for vacation entitlement to be earned ratably throughout the year versus the previous policy which provided for full vesting on January 1 of each year.

(7)
Represents a gain (net of transaction costs) recorded in connection with the buyback of portions of our Senior Notes and Senior Subordinated Notes.

(8)
Represents an allowance for uncollectible program car receivables related to a bankrupt European dealer affiliated with a U.S. car manufacturer.

23



HERTZ GLOBAL HOLDINGS, INC. AND SUBSIDIARIES

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (Continued)

Unaudited

Note 11—Total 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 1—Background, 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 12—Restructuring

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 8—Financial 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  
                       

(1)
Consists of a decrease of $17.8 million for facility closures, $8.7 million for the impairment of revenue earning equipment and other assets, $1.7 million for contract termination costs and $1.4 million for executive pension liability settlements.

Note 13—Financial 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  
                   

(1)
All fair value measurements were primarily based upon significant observable (Level 2) inputs.

(2)
All asset derivatives are recorded in "Prepaid expenses and other assets" and all liability derivatives are recorded in "Accrued liabilities" on our condensed consolidated balance sheets.

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.

(1)
Represents the amortization of amounts in "Accumulated other comprehensive loss" associated with the de-designation of the previous cash flow hedging relationship as described below.

 
   
  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 14—Related 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 15—Commitments 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 8—Financial Statements and Supplementary Data."

Other Consumer or Supplier Class Actions

    1.
    Hertz Equipment Rental Corporation, or "HERC," Loss Damage Waiver

      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.

    2.
    Concession Fee Recoveries

      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.

    3.
    Telephone Consumer Protection Act

      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, Kansas—where the case is now venued—issued 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.

    4.
    California Tourism Assessments

      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 16—Earnings (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 17—Subsequent 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 1A—Risk 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 I—Item 1A—Risk 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:

    Clayton, Dubilier & Rice, Inc., or "CD&R,"

    The Carlyle Group, or "Carlyle," and

    Merrill Lynch Global Private Equity, or "MLGPE,"

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:

    Car rental revenues (revenues from all company-operated car rental operations, including charges to customers for the reimbursement of costs incurred relating to airport concession fees and vehicle license fees, the fueling of vehicles and the sale of loss or collision damage waivers, liability insurance coverage and other products);

    Equipment rental revenues (revenues from all company-operated equipment rental operations, including amounts charged to customers for the fueling and delivery of equipment and sale of loss damage waivers); and

    Other revenues (fees and certain cost reimbursements from our licensees and revenues from our car leasing operations and our third-party claim management services).

Our equipment rental business also derives revenues from the sale of new equipment and consumables.

Our expenses primarily consist of:

    Direct operating expenses (primarily wages and related benefits; commissions and concession fees paid to airport authorities, travel agents and others; facility, self-insurance and reservation costs; the cost of new equipment and consumables purchased for resale; and other costs relating to the operation and rental of revenue earning equipment, such as damage, maintenance and fuel costs);

    Depreciation expense relating to revenue earning equipment (including net gains or losses on the disposal of such equipment). Revenue earning equipment includes cars and rental equipment;

    Selling, general and administrative expenses (including advertising); and

    Interest expense.

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 1A—Risk 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 8—Financial 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  

(a)
Transaction days represents the total number of days that vehicles were on rent in a given period.

(b)
Car rental rate revenue consists of all revenue, net of discounts, associated with the rental of cars including charges for optional insurance products, but excluding revenue derived from fueling and concession and other expense pass-throughs, NeverLost units in the U.S. and certain ancillary revenue. Rental rate revenue per transaction day is calculated as total rental rate revenue, divided by the total number of transaction days, with all periods adjusted to eliminate the effect of fluctuations in foreign currency. Our management believes eliminating the effect of fluctuations in foreign currency is appropriate so as not to affect the comparability of underlying trends. This statistic is important to our management as it represents the best measurement of the changes in underlying pricing in the car rental business and encompasses the elements in car rental pricing that management has the ability to control. The optional insurance products are packaged within certain negotiated corporate, government and membership programs and within certain retail rates being charged. Based upon these existing programs and rate packages, management believes that these optional insurance products should be consistently included in the daily pricing of car rental transactions. On the other hand, non-rental rate revenue items such as refueling and concession pass-through expense items are driven by factors beyond the control of management (i.e. the price of fuel and the concession fees charged by airports). Additionally, NeverLost units are an optional revenue product which management does not consider to be part of their daily pricing of car rental transactions. The following table reconciles our car rental

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  
(c)
Adjusted pre-tax income is calculated as income (loss) before income taxes plus non-cash purchase accounting charges, non-cash debt charges and certain one-time charges and non-operational items. Adjusted pre-tax income is the measure utilized by management in making decisions about allocating resources to segments and measuring their performance. Management believes this measure best reflects the financial results from ongoing operations. The following table reconciles income before income taxes by segment to adjusted pre-tax income by segment for the three months ended September 30, 2009 and 2008 (in millions of dollars):

   
  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  
             

    (1)
    Represents the purchase accounting effects of the Acquisition and any subsequent acquisitions on our results of operations relating to increased depreciation and amortization of tangible and intangible assets and accretion of revalued workers' compensation and public liability and property damage liabilities.

    (2)
    Represents non-cash debt charges relating to the amortization of deferred debt financing costs and debt discounts. For the three months ended September 30, 2009, also includes $22.4 million associated with the amortization of amounts pertaining to the de-designation of the Hertz Vehicle Financing LLC, or "HVF," interest rate swaps as effective hedging instruments. For the three months ended September 30, 2008, also includes $2.8 million associated with the ineffectiveness of the HVF interest rate swaps.

48


ITEM 2.    Management's Discussion and Analysis of Financial Condition and Results of
                Operations (Continued)

    (3)
    Represents incremental, one-time costs incurred directly supporting our business transformation initiatives. Such costs include transition costs incurred in connection with our business process outsourcing arrangements and incremental costs incurred to facilitate business process re-engineering initiatives that involve significant organization redesign and extensive operational process changes.

    (4)
    Represents unrealized loss on our Hertz International Ltd., or "HIL," interest rate swaptions.

    (5)
    Represents decreases in the employee vacation accrual during the three months ended September 30, 2008 relating to a change in our U.S. vacation policy in 2007 which provides for vacation entitlement to be earned ratably throughout the year versus the previous policy which provided for full vesting on January 1 each year.
(d)
Equipment rental and rental related revenue consists of all revenue, net of discounts, associated with the rental of equipment including charges for delivery, loss damage waivers and fueling, but excluding revenue arising from the sale of equipment, parts and supplies and certain other ancillary revenue. Rental and rental related revenue is adjusted in all periods to eliminate the effect of fluctuations in foreign currency. Our management believes eliminating the effect of fluctuations in foreign currency is appropriate so as not to affect the comparability of underlying trends. This statistic is important to our management as it is utilized in the measurement of rental revenue generated per dollar invested in fleet on an annualized basis and is comparable with the reporting of other industry participants. The following table reconciles our equipment rental revenue to our equipment rental and rental related revenue (based on December 31, 2008 foreign exchange rates) for the three months ended September 30, 2009 and 2008 (in millions of dollars):

   
  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  
             
(e)
Same store revenue growth represents the change in the current period total same store revenue over the prior period total same store revenue as a percentage of the prior period. The same store revenue amounts are adjusted in all periods to eliminate the effect of fluctuations in foreign currency. Our management believes eliminating the effect of fluctuations in foreign currency is appropriate so as not to affect the comparability of underlying trends.

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, 2008—Summary" 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, 2008—Summary" 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  

(a)
For further details relating to car rental transaction days, car rental rate revenue per transaction day, adjusted pre-tax income, equipment rental and rental related revenue and equipment rental same store revenue growth, see "Three Months Ended September 30, 2009 Compared with Three Months Ended September 30, 2008—Summary."

(b)
The following table reconciles our car rental revenue to our rental rate revenue and rental rate revenue per transaction day (based on December 31, 2008 foreign exchange rates) for the nine months ended September 30, 2009 and 2008 (in millions of dollars, except as noted):

   
  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)

(c)
The following table reconciles income (loss) before income taxes by segment to adjusted pre-tax income by segment for the nine months ended September 30, 2009 and 2008 (in millions of dollars):

   
  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  
             

    (1)
    Represents the purchase accounting effects of the Acquisition and any subsequent acquisitions on our results of operations relating to increased depreciation and amortization of tangible and intangible assets and accretion of revalued workers' compensation and public liability and property damage liabilities.

    (2)
    Represents non-cash debt charges relating to the amortization of deferred debt financing costs and debt discounts. For the nine months ended September 30, 2009, also includes $52.2 million associated with the amortization of amounts pertaining to the de-designation of the HVF interest rate swaps as effective hedging instruments. For the nine months ended September 30, 2008, also includes $7.8 million associated with the ineffectiveness of the HVF interest rate swaps.

    (3)
    Represents incremental, one-time costs incurred directly supporting our business transformation initiatives. Such costs include transition costs incurred in connection with our business process outsourcing arrangements and incremental costs incurred to facilitate business process re-engineering initiatives that involve significant organization redesign and extensive operational process changes.

    (4)
    Represents an allowance for uncollectible program car receivables related to a bankrupt European dealer affiliated with a U.S. car manufacturer.

    (5)
    Represents realized and unrealized gains on our HIL interest rate swaptions.

    (6)
    Represents an increase in the employee vacation accrual during the nine months ended September 30, 2008 relating to a change in our U.S. vacation policy in 2007 which provides for vacation entitlement to be earned ratably throughout the year versus the previous policy which provided for full vesting on January 1 each year.

55


ITEM 2.    Management's Discussion and Analysis of Financial Condition and Results of
                Operations (Continued)

(d)
The following table reconciles our equipment rental revenue to our equipment rental and rental related revenue (based on December 31, 2008 foreign exchange rates) for the nine months ended September 30, 2009 and 2008 (in millions of dollars):

   
  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, 2008—Summary" 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, 2008—Summary" 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 8—Financial 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 1A—Risk 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 8—Financial Statements and Supplementary Data." For a discussion of risks related to our reliance on asset-backed financing to purchase cars, see "Item 1A—Risk 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:

    Old General Motors paid us, and New General Motors, as defined below, continues to pay us, all of the amounts owed under our repurchase programs;

    With the approval of the bankruptcy court, Old General Motors assumed the vehicle repurchase programs it has with us and assigned the repurchase programs a newly formed company referred to as "New General Motors;

    New General Motors emerged from bankruptcy quickly; and

    The resale value of vehicles manufactured by Old General Motors has not declined following its filing.

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 1A—Risk 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 8—Financial 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 8—Financial 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 1A—Risk 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 1A—Risk 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 1—Business—Risk 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 8—Financial 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 8—Financial 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 1A—Risk 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 8—Financial 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 7A—Quantitative 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 2—Management's Discussion and Analysis of Financial Condition and Results of Operations—Market 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



PART II—OTHER INFORMATION

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, Kansas—where 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 venued—issued 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 I—Item 1A—Risk Factors" in our Form 10-K for the fiscal year ended December 31, 2008 and under "Part II—Item 1A—Risk Factors" in our Form 10-Q for the quarterly period ended June 30, 2009.

ITEM 6.    Exhibits

(a)
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

31.1–31.2

 

Rule 13a-14(a)/15d-14(a) Certifications of Chief Executive Officer and Chief Financial Officer

73


Exhibit
Number
  Description
32.1–32.2   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 INDEX

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

31.1–31.2

 

Rule 13a-14(a)/15d-14(a) Certifications of Chief Executive Officer and Chief Financial Officer

32.1–32.2

 

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.

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QuickLinks

PART I—FINANCIAL INFORMATION
ITEM 1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
CONDENSED CONSOLIDATED BALANCE SHEETS AS OF SEPTEMBER 30, 2009 AND DECEMBER 31, 2008
CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE THREE AND NINE MONTHS ENDED SEPTEMBER 30, 2009 AND 2008
CONSOLIDATED STATEMENTS OF CASH FLOWS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2009 AND 2008
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
ITEM 4. CONTROLS AND PROCEDURES
PART II—OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
ITEM 1A. RISK FACTORS
ITEM 6. EXHIBITS
SIGNATURE
EXHIBIT INDEX

Exhibit 3.1.1

 

 

 

HERTZ GLOBAL HOLDINGS, INC.

 

 

AMENDED AND RESTATED BY-LAWS

 

 

 

 



 

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)

 

 

 

Page

 

 

 

Section 7.02. Other Offices

 

23

 

 

 

ARTICLE VIII GENERAL PROVISIONS

 

23

 

 

 

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

 

 

 

ARTICLE IX AMENDMENT OF BY-LAWS

 

25

 

 

 

Section 9.01. Amendment

 

25

 

 

 

ARTICLE X CONSTRUCTION

 

25

 

 

 

Section 10.01. Construction

 

25

 

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HERTZ GLOBAL HOLDINGS, INC.

 

BY-LAWS

 

Effective as of August 12, 2009

 

ARTICLE I

 

STOCKHOLDERS

 

Section 1.01.  Annual Meetings .  The annual meeting of the stockholders of the Corporation for the election of directors (each, a “ Director ”) to succeed Directors whose terms expire and for the transaction of such other business as properly may come before such meeting shall be held each year, either within or without the State of Delaware, at such place, if any, and on such date and at such time, as may be fixed from time to time by resolution of the Board of Directors and set forth in the notice or waiver of notice of the meeting, unless, subject to Section 1.11 of these By-Laws and the Certificate of Incorporation of the Corporation, the stockholders have acted by written consent to elect Directors as permitted by the General Corporation Law of the State of Delaware, as amended from time to time (the “ DGCL ”).

 

Section 1.02.  Special Meetings .  Special meetings of the stockholders for any purpose may be called at any time only by or at the direction of the Board of Directors pursuant to a resolution adopted by a majority of the total number of Directors then in office.  Any special meeting of the stockholders shall be held at such place, if any, within or without the State of Delaware, and on such date and at such time, as shall be specified in such resolution.  The stockholders of the Corporation do not have the power to call a special meeting.

 

Section 1.03.  Participation in Meetings by Remote Communication .  The Board of Directors, acting in its sole discretion, may establish guidelines and procedures in accordance with applicable provisions of the DGCL and any other applicable law for the participation by stockholders and proxyholders in a meeting of stockholders by means of remote communications, and may determine that any meeting of stockholders will not be held at any place but will be held solely by means of remote communication.  Stockholders and proxyholders complying with such procedures and guidelines and otherwise entitled to vote at a meeting of stockholders shall be deemed present in person and entitled to vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication.

 

Section 1.04.  Notice of Meetings; Waiver of Notice .

 

(a)  The Secretary or any Assistant Secretary shall cause notice of each meeting of stockholders to be given in writing in a manner permitted by the DGCL not less than ten nor more than 60 days prior to the meeting, to each stockholder of record entitled to vote at such meeting, subject to such exclusions as are then permitted by the DGCL.  The notice shall specify ( i ) the place, if any, date and time of such meeting of the stockholders, ( ii ) the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, ( iii ) in the case of a special meeting, the purpose or purposes

 

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for which such meeting is called and ( iv ) such other information as may be required by law or as may be deemed appropriate by the Board of Directors, the Chief Executive Officer or the Secretary of the Corporation.  If the stockholder list referred to in Section 1.07 of these By-Laws is made accessible on an electronic network, the notice of meeting must indicate how the stockholder list can be accessed.  If a stockholder meeting is to be held solely by means of electronic communications, the notice of such meeting must provide the information required to access such stockholder list.

 

(b)  A written waiver of notice of meeting signed by a stockholder or a waiver by electronic transmission by a stockholder, whether given before or after the meeting, is deemed equivalent to notice.  Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in a waiver of notice.  The attendance of any stockholder at a meeting of stockholders is a waiver of notice of such meeting, except when the stockholder attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business at the meeting on the ground that the meeting is not lawfully called or convened.

 

Section 1.05.  Quorum .  Except as otherwise required by law or by the Certificate of Incorporation, the presence in person or by proxy of the holders of record of a majority of the shares entitled to vote at a meeting of stockholders shall constitute a quorum for the transaction of business at such meeting, provided , however , that where a separate vote by a class or series is required, the holders of a majority in voting power of all issued and outstanding stock of such class or series entitled to vote on such matter, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to such matter.  In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.08 of these By-laws until a quorum shall attend.

 

Section 1.06.  Voting .  Except as otherwise provided in the Certificate of Incorporation or by law, every holder of record of shares entitled to vote at a meeting of stockholders shall be entitled to one vote for each such share outstanding in his or her name on the books of the Corporation at the close of business on the record date for such vote.  If no record date has been fixed for a meeting of stockholders, then every holder of record of shares entitled to vote at a meeting of stockholders shall be entitled to one vote (unless otherwise provided by the Certificate of Incorporation or by law) for each such share of stock outstanding in his or her name on the books of the Corporation at the close of business on the day next preceding the day on which notice of the meeting is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.  Except as otherwise required by law, the Certificate of Incorporation, these By-Laws, the rules and regulations of any stock exchange applicable to the Corporation or pursuant to any other rule or regulation applicable to the Corporation or its stockholders, the vote of a majority of the shares entitled to vote at a meeting of stockholders on the subject matter in question represented in person or by proxy at any meeting at which a quorum is present shall be sufficient for the transaction of any business at such meeting.  The stockholders do not have the right to cumulate their votes for the election of Directors.

 

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Section 1.07.  Voting Lists .  The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare, at least 10 days before every meeting of the stockholders (and before any adjournment thereof for which a new record date has been set), a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder.  This list shall be open to the examination of any stockholder prior to and during the meeting for any purpose germane to the meeting in the manner required by the DGCL and other applicable law.  The stock ledger shall be the only evidence as to who are the stockholders entitled by this section to examine the list required by this section or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.08.  Adjournment .  Any meeting of stockholders may be adjourned from time to time, by the chairperson of the meeting or by the vote of a majority of the shares of stock present in person or represented by proxy at the meeting, to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the place, if any, and date and time thereof (and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting) are announced at the meeting at which the adjournment is taken unless the adjournment is for more than 30 days or a new record date is fixed for the adjourned meeting after the adjournment, in which case notice of the adjourned meeting in accordance with Section 1.04 of these By-Laws shall be given to each stockholder of record entitled to vote at the meeting.  At the adjourned meeting, the Corporation may transact any business that might have been transacted at the original meeting.

 

Section 1.09.  Proxies .  Any stockholder entitled to vote at any meeting of the stockholders or to express consent to or dissent from corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy.  A stockholder may authorize a valid proxy by executing a written instrument signed by such stockholder, or by causing his or her signature to be affixed to such writing by any reasonable means including, but not limited to, by facsimile signature, or by transmitting or authorizing an electronic transmission setting forth an authorization to act as proxy to the person designated as the holder of the proxy, a proxy solicitation firm or a like authorized agent.  No proxy may be voted or acted upon after the expiration of three years from the date of such proxy, unless such proxy provides for a longer period.  Every proxy is revocable at the pleasure of the stockholder executing it unless the proxy states that it is irrevocable and applicable law makes it irrevocable.  A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or by filing another duly executed proxy bearing a later date with the Secretary.  Proxies by electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder.  Any copy, facsimile telecommunication or other reliable reproduction of a writing or transmission created pursuant to this section may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.

 

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Section 1.10.  Organization; Procedure; Inspection of Elections .

 

(a)  At every meeting of stockholders the presiding officer shall be the Chairman of the Board or, in the event of his or her absence or disability, the Chief Executive Officer or, in the event of his or her absence or disability, a presiding officer chosen by resolution of the Board of Directors.  The Secretary, or in the event of his or her absence or disability, the Assistant Secretary, if any, or if there be no Assistant Secretary, in the absence of the Secretary, an appointee of the presiding officer, shall act as secretary of the meeting.  The Board of Directors may make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient.  Subject to any such rules and regulations, the presiding officer of any meeting shall have the right and authority to prescribe rules, regulations and procedures for such meeting and to take all such actions as in the judgment of the presiding officer are appropriate for the proper conduct of such meetings.  Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: ( i ) the establishment of an agenda or order of business for the meeting; ( ii ) rules and procedures for maintaining order at the meeting and the safety of those present; ( iii ) limitations on attendance at or participation in the meeting to stockholders or records of the Corporation, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; ( iv ) restrictions on entry to the meeting after the time fixed for the commencement thereof; and ( v ) limitations on the time allotted to questions or comments by participants.  The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter of business not properly brought before the meeting shall not be transacted or considered.  Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

(b)  Preceding any meeting of the stockholders, the Board of Directors may, and when required by law shall, appoint one or more persons to act as inspectors of elections, and may designate one or more alternate inspectors.  If no inspector or alternate so appointed by the Board of Directors is able to act, or if no inspector or alternate has been appointed and the appointment of an inspector is required by law, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting.  No Director or nominee for the office of Director shall be appointed as an inspector of elections.  Each inspector, before entering upon the discharge of the duties of an inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability.  The inspectors shall discharge their duties in accordance with the requirements of applicable law.

 

Section 1.11.  Stockholder Action by Written Consent .

 

(a)  For so long as Clayton, Dubilier & Rice Fund VII, L.P., CDR CCMG Co-investor L.P., CD&R Parallel Fund VII, L.P., Carlyle Partners IV, L.P., CP IV Coinvestment, L.P., CEP II U.S. Investments, L.P., CEP II Participations S.à.r.l., ML Global Private Equity Fund, L.P., Merrill Lynch Ventures L.P. 2001, CMC-Hertz Partners, L.P., ML Hertz Co-Investor, L.P. and their respective affiliates (collectively, the “ Sponsors ”) collectively own more

 

4



 

than 50.0% of the outstanding shares of common stock of the Corporation (the “ Common Stock ”), then, to the fullest extent permitted by law and except as otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at an annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote of stockholders, if a consent or consents in writing, setting forth the action so taken, are:  ( i ) signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted (but not less than the minimum number of votes otherwise prescribed by law) and ( ii ) delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded within 60 days of the earliest dated consent so delivered to the Corporation.

 

(b)  Except as otherwise provided in the Certificate of Incorporation, if the Sponsors collectively own 50.0% or less of the outstanding shares of the Common Stock, then any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken only upon the vote of the stockholders at an annual or special meeting duly called and may not be taken by written consent of the stockholders.

 

(c)  If a stockholder action by written consent is permitted under these By-Laws and the Certificate of Incorporation, and the Board of Directors has not fixed a record date for the purpose of determining the stockholders entitled to participate in such consent to be given, then:  ( i ) if the DGCL does not require action by the Board of Directors prior to the proposed stockholder action, the record date shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation at any of the locations referred to in Section 1.11(a)(ii) of these By-Laws; and ( ii ) if the DGCL requires action by the Board of Directors prior to the proposed stockholder action, the record date shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.  Every written consent to action without a meeting shall bear the date of signature of each stockholder who signs the consent, and shall be valid if timely delivered to the Corporation at any of the locations referred to in Section 1.11(a)(ii) of these By-Laws.

 

(d)  The Secretary shall give prompt notice of the taking of an action without a meeting by less than unanimous written consent to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to the Corporation in accordance with the DGCL.

 

Section 1.12.  Notice of Stockholder Proposals and Nominations .  (a)  Annual Meetings of Stockholders.  (i) Nominations of persons for election to the Board of Directors and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders only ( A ) pursuant to the Corporation’s notice of the meeting (or any supplement thereto), ( B ) by or at the direction of the Board of Directors or a Committee appointed by the Board for such purpose, or ( C ) by any stockholder of the Corporation who is entitled to vote at the meeting, who complies with the notice procedures set forth in clauses (ii) and (iii) of this

 

5



 

Section 1.12(a) and who was a stockholder of record at the time such notice is delivered and at the date of the meeting.

 

(ii)           For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to subclause (C) of Section 1.12(a)(i) of these By-Laws, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and any such proposed business other than nominations must constitute a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not fewer than 90 days nor more than 120 days prior to the first anniversary of the preceding year’s annual meeting (which anniversary date, in the case of the first annual meeting of stockholders following the closing of the Corporation’s initial underwritten public offering of common stock, shall be deemed to be May 15, 2007); provided that if the date of the annual meeting is advanced by more than 30 days or delayed by more than 70 days from such anniversary date of the preceding year’s annual meeting, notice by the stockholder to be timely must be so delivered not earlier than 120 days prior to such annual meeting and not later than the close of business on the later of the ninetieth day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made.  Such stockholder’s notice shall set forth ( A ) as to each person whom the stockholder proposes to nominate for election or re-election as a Director all information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”) and Rule 14a-11 thereunder, or any successor provisions, including such person’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; ( B ) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting (including the text of any resolution proposed for consideration and if such business includes proposed amendments to the Certificate of Incorporation or By-Laws, the text of the proposed amendments), the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and of any beneficial owner on whose behalf the proposal is made; and ( C ) as to the stockholder giving the notice and any beneficial owner on whose behalf the nomination or proposal is made ( 1 ) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner, ( 2 ) the class or series and number of shares of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner, ( 3 ) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, and ( 4 ) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends ( x ) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or ( y ) otherwise to solicit proxies from stockholders in support of such proposal or nomination. The foregoing notice requirements shall be deemed satisfied by a stockholder if the stockholder has notified the Corporation of his or her intention to present a proposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) promulgated under the Exchange Act, and such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies

 

6



 

for such annual meeting. The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a Director of the Corporation.  In addition, a stockholder seeking to bring an item of business before the annual meeting shall promptly provide any other information reasonably requested by the Corporation.

 

(iii)          Notwithstanding anything in the second sentence of Section 1.12(a)(ii) of these By-Laws to the contrary, in the event that the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Corporation at least 70 days prior to the first anniversary of the preceding year’s annual meeting (which anniversary date, in the case of the first annual meeting of stockholders following the closing of the Corporation’s initial underwritten public offering of common stock, shall be deemed to be May 15, 2007 ), a stockholder’s notice under this Section 1.12(a) shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which such public announcement is first made by the Corporation.

 

(b)  Special Meetings of Stockholders .  Only such business as shall have been brought before the special meeting of the stockholders pursuant to the Corporation’s 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 Corporation’s 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 stockholder’s 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 .

 

(i)  Except as otherwise provided by law, the Certificate of Incorporation or these By-Laws, the presiding officer of a meeting of stockholders shall have the power and duty ( x ) to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 1.12 (including whether the

 

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stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made, solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in support of such stockholder’s nominee or proposal in compliance with such stockholder’s representation as required by clause (a)(ii)(C)(4) of this Section 1.12), and (y) if any proposed nomination or business is not in compliance with this Section 1.12, to declare that such defective nomination shall be disregarded or that such proposed business shall not be transacted.

 

(ii)           If the stockholder (or a qualified representative of the stockholder) making a nomination or proposal under this Section 1.12 does not appear at a meeting of stockholders to present such nomination or proposal, the nomination shall be disregarded and/or the proposed business shall not be transacted, as the case may be, notwithstanding that proxies in favor thereof may have been received by the Corporation.  For purposes of this Section 1.12, to be considered a qualified representative of the stockholder, a person must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.

 

(iii)          For purposes of this Section 1.12, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.

 

(iv)          Notwithstanding the foregoing provisions of this Section 1.12, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 1.12.  Nothing in this Section 1.12 shall be deemed to affect any rights of (x) stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (y) the holders of any series of preferred stock to elect Directors pursuant to any applicable provisions of the Certificate of Incorporation or of the relevant preferred stock certificate of designation.

 

(v)  The announcement of an adjournment or postponement of an annual or special meeting does not commence a new time period (and does not extend any time period) for the giving of notice of a stockholder nomination or a stockholder proposal as described above.

 

ARTICLE II

 

BOARD OF DIRECTORS

 

Section 2.01.  General Powers .  Except as may otherwise be provided by law, by the Certificate of Incorporation or by these By-Laws, the property, affairs and business of the Corporation shall be managed by or under the direction of the Board of Directors and the Board of Directors may exercise all the powers and authority of the Corporation.

 

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Section 2.02.  Number and Term of Office .  The number of Directors, subject to any rights of the holders of shares of any class or series of Preferred Stock, shall initially be 13, classified (including Directors in office as of the date hereof) with respect to the time for which they severally hold office into three classes, as nearly equal in number as possible, which number may be modified (but not reduced to less than three) from time to time exclusively by resolution of the Board of Directors, subject to the terms of the Amended and Restated Stockholders Agreement among the Corporation and certain of its stockholders, dated as of November 20, 2006 (as amended from time to time, the “ Stockholders Agreement ”) and any rights of the holders of shares of any class or series of Preferred Stock, if in effect.  One class’s initial term will expire at the first annual meeting of the stockholders following the date hereof, another class’s initial term will expire at the second annual meeting of the stockholders following the date hereof and another class’s initial term will expire at the third annual meeting of stockholders following the date hereof, with Directors of each class to hold office until their successors are duly elected and qualified, provided that the term of each Director shall continue until the election and qualification of a successor and be subject to such Director’s earlier death, resignation or removal. At each annual meeting of stockholders of the Corporation beginning with the first annual meeting of stockholders following the date hereof, subject to any rights of the holders of shares of any class or series of Preferred Stock, the successors of the Directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election.  In the case of any increase or decrease, from time to time, in the number of Directors of the Corporation, the number of Directors in each class shall be apportioned as nearly equal a possible.  No decrease in the number of Directors shall shorten the term of any incumbent Director.  At each meeting of the stockholders for the election of Directors, provided a quorum is present, the Directors shall be elected by a plurality of the votes validly cast in such election.

 

Section 2.03.  Annual and Regular Meetings: Notice .  The annual meeting of the Board of Directors for the purpose of electing officers and for the transaction of such other business as may come before the meeting shall be held as soon as possible following adjournment of the annual meeting of the stockholders either ( i ) at the place of such annual meeting of the stockholders, in which event notice of such annual meeting of the Board of Directors need not be given, or ( ii ) at such other time and place as shall have been specified in advance notice given to members of the Board of Directors of the date, place and time of such meeting.  Any such notice shall be given at least 48 hours in advance if sent by to each Director by facsimile or any form of electronic transmission previously approved by a Director, which approval has not been revoked (“ Approved Electronic Transmission ”), or delivered to him or her personally, or at least five days’ in advance, if notice is mailed to each Director, addressed to him or her at his or her usual place of business or other designated address.  Any such notice 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.

 

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

 

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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.

 

Section 2.04.  Special Meetings; Notice .  Special meetings of the Board of Directors shall be held whenever called by any member of the Board of Directors, at such place (within or without the State of Delaware), date and time as may be specified in the respective notices or waivers of notice of such meetings.  Special meetings of the Board of Directors may be called on 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 on five days’ notice, if 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 any special 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 (including by electronic transmission), whether before or after such meeting.  Any business may be conducted at a special meeting.

 

Section 2.05.  Quorum .  A quorum for meetings of the Board of Directors shall consist of a majority of the total authorized membership of the Board of Directors, subject to the requirements under the Stockholders Agreement (if in effect).

 

Section 2.06.  Voting .  Except as otherwise required by law, the Certificate of Incorporation or these Bylaws, the vote of a majority of the Directors present at any meeting at which a quorum is present shall be the act of the Board of Directors, subject to the approval requirements under the Stockholders Agreement (if in effect).

 

Section 2.07.  Adjournment .  A majority of the Directors present, whether or not a quorum is present, may adjourn any meeting of the Board of Directors to another date, time or place, provided such adjourned meeting is no earlier than 48 hours after written notice (in accordance with these By-Laws) of such postponement has been given to the Directors (or such notice is waived in accordance with these By-Laws), and, at any such postponed meeting, a quorum shall consist of a majority of the total authorized membership of the Board of Directors, subject to the requirements under the Stockholders Agreement  (if in effect).

 

Section 2.08.  Action Without a Meeting .  Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all members of the Board of Directors consent thereto in writing or by Approved Electronic Transmission, and such writing or writings or Approved Electronic Transmissions are filed with the minutes of proceedings of the Board of Directors.  Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

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Section 2.09.  Regulations; Manner of Acting .  To the extent consistent with applicable law, the Certificate of Incorporation and these By-Laws, the Board of Directors may adopt such rules and regulations for the conduct of meetings of the Board of Directors and for the management of the property, affairs and business of the Corporation as the Board of Directors may deem appropriate.  In addition to the election of the Chairman of the Board, the Board may elect one or more vice-chairpersons or lead Directors to perform such other duties as may be designated by the Board.

 

Section 2.10.  Action by Telephonic Communications .  Members of the Board of Directors may participate in a meeting of the Board of Directors by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this provision shall constitute presence in person at such meeting.

 

Section 2.11.  Resignations .  Any Director may resign at any time by submitting an electronic transmission or by delivering a written notice of resignation to the Chairman of the Board, the Chief Executive Officer or the Secretary.  Such resignation shall take effect upon delivery unless the resignation specifies a later effective date or an effective date determined upon the happening of a specific event.

 

Section 2.12.  Removal of Directors .  Subject to the rights of the holders of shares of any class or series of Preferred Stock, if any, to elect additional Directors pursuant to the Certificate of Incorporation (including any certificate of designation thereunder), any Director may be removed only for cause, upon affirmative vote of holders of at least a majority of the votes to which all the stockholders of the Corporation would be entitled to cast in any election of Directors or class of Directors, acting at a meeting of the stockholders or by written consent (if permitted) in accordance with the DGCL, the Certificate of Incorporation and these By-Laws, provided that for so long as the Stockholders Agreement is in effect, the removal of any Director shall also be subject to the requirements under the Stockholders Agreement.

 

Section 2.13.  Vacancies and Newly Created Directorships .  Subject to the rights of the holders of shares of any class or series of Preferred Stock, if any, to elect additional Directors pursuant to the Certificate of Incorporation (including any certificate of designation thereunder), any vacancy in the Board of Directors that results from the death, disability, resignation, disqualification, removal of any Director or from any other cause shall be filled solely by the affirmative vote of a majority of the total number of Directors then in office, even if less than a quorum, or by a sole remaining Director, provided that for so long as the Stockholders Agreement is in effect, the removal of any Director shall also be subject to the requirements under the Stockholders Agreement.  Any Director filling a vacancy shall be of the same class as that of the Director whose death, resignation, disqualification, removal or other event caused the vacancy, and any Director filling a newly created directorship shall be of the class specified by the Board of Directors at the time the newly created directorships were created.  A Director elected to fill a vacancy or newly created Directorship shall hold office until his or her successor has been elected and qualified or until his or her earlier death, resignation or removal.

 

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Section 2.14.  Director Fees and Expenses .  The amount, if any, which each Director shall be entitled to receive as compensation for his or her services shall be fixed from time to time by the Board of Directors, subject to the Stockholders Agreement (if then if effect).  The Corporation will cause each non-employee Director serving on the Board of Directors to be reimbursed for all reasonable out-of-pocket costs and expenses incurred by him or her in connection with such service.

 

Section 2.15.  Reliance on Accounts and Reports, etc .  A Director, or a member of any Committee designated by the Board of Directors shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Corporation and upon information, opinions, reports or statements presented to the Corporation by any of the Corporation’s officers or employees, or Committees designated by the Board of Directors, or by any other person as to the matters the member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.

 

ARTICLE III

 

COMMITTEES

 

Section 3.01.  How Constituted .  The Board of Directors shall have an Executive and Governance Committee, a Compensation Committee and an Audit Committee and such other committees as the Board of Directors may determine (collectively, the “ Committees ”).  For so long as the Stockholders Agreement is in effect, the Executive and Governance Committee shall consist of the Chairman of the Board and such other members required for the executive and governance committee pursuant to Section 2.1(d) of the Stockholders Agreement (if in effect).  Each other Committee shall consist of at least three Directors, selected in accordance with Section 2.1(d) of the Stockholders Agreement (if in effect).  Selection and removal of the chairman of the Executive and Governance Committee shall be subject to the requirements for the chairman of the executive and governance committee set forth in Section 2.1(d) of the Stockholders Agreement (if in effect).  Subject to this Section 3.01 and the Stockholders Agreement (if in effect), each Committee shall consist of such number of Directors as from time to time may be fixed by a majority of the total authorized membership of the Board of Directors, and any Committee may be abolished or re-designated from time to time by the Board of Directors. Each member of any such Committee (whether designated at an annual meeting of the Board of Directors or to fill a vacancy or otherwise) shall hold office until his or her successor shall have been designated or until he or she shall cease to be a Director, or until his or her earlier death, resignation or removal.

 

Section 3.02.  Powers .  Each Committee shall have such powers and responsibilities as the Board of Directors may from time to time authorize.  During the intervals between the meetings of the Board of Directors, the Executive and Governance Committee, except as otherwise provided in this Section 3.02 or required by the DGCL, shall have and may exercise all the powers and authority of the Board of Directors in the management of the property, affairs and business of the Corporation.  Each such other Committee, except as otherwise provided in this Section 3.02, shall have and may exercise such powers of the Board of Directors as may be

 

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provided by resolution or resolutions of the Board of Directors.  Neither the Executive and Governance Committee nor any other Committee shall have the power or authority:

 

(a)  to amend the Certificate of Incorporation (except that a Committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the Board of Directors as provided in Section 151(a) of the DGCL, fix the designations and any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the Corporation or fix the number of shares of any series of stock or authorize the increase or decrease of the shares of any series);

 

(b)  to adopt an agreement of merger or consolidation or a certificate of ownership and merger;

 

(c)  to recommend to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets;

 

(d)  to recommend to the stockholders a dissolution of the Corporation or a revocation of a dissolution; or

 

(e)  to amend these By-Laws of the Corporation.

 

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.

 

Section 3.03.  Proceedings .  Each Committee may fix its own rules of procedure and may meet at such place (within or without the State of Delaware), at such time and upon such notice, if any, as it shall determine from time to time, provided that the Board of Directors may adopt other rules and regulations for the governance of any Committee not inconsistent with the provisions of these By-Laws and the Stockholders Agreement (if in effect).  Each such Committee shall keep minutes of its proceedings and shall report such proceedings to the Board of Directors at the meeting of the Board of Directors following any such proceedings.

 

Section 3.04.  Quorum and Manner of Acting .  Except as may be otherwise provided in the resolution creating such Committee, at all meetings of any Committee the presence of members constituting a majority of the total authorized membership of such Committee shall constitute a quorum for the transaction of business.  The act of the majority of the members present at any meeting at which a quorum is present shall be the act of such Committee, subject to any requirements under the Stockholders Agreement (if in effect).  Any action required or permitted to be taken at any meeting of any such Committee may be taken without a meeting, if all members of such Committee shall consent to such action in writing or by electronic transmission, and such writing or writings or electronic transmission or transmissions are filed with the minutes of the proceedings of the Committee.  Such filing shall be in paper form if the

 

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minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.  The members of any such Committee shall act only as a Committee, and the individual members of such Committee shall have no power as such.

 

Section 3.05.  Action by Telephonic Communications .  Members of any Committee designated by the Board of Directors may participate in a meeting of such Committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this provision shall constitute presence in person at such meeting.

 

Section 3.06.  Resignations .  Any member of any Committee may resign at any time by submitting an electronic transmission or by delivering a written notice of resignation to the Chairman of the Board, the Chief Executive Officer or the Secretary.  Unless otherwise specified therein, such resignation shall take effect upon delivery.

 

Section 3.07.  Removal .  Any member of any Committee may be removed from his or her position as a member of such Committee at any time, either for or without cause, by resolution adopted by a majority of the whole Board of Directors, provided that for so long as the Stockholders Agreement is in effect, the removal of any member of a Committee shall be subject to the requirements under the Stockholders Agreement.

 

Section 3.08.  Vacancies .  If any vacancy shall occur in any Committee, by reason of disqualification, death, resignation, removal or otherwise, the remaining members shall continue to act, and any such vacancy may be filled by the Board of Directors subject to Section 3.01 of these By-Laws and the Stockholders Agreement (if in effect).

 

ARTICLE IV

 

OFFICERS

 

Section 4.01.  Number .  The officers of the Corporation shall be chosen by the Board of Directors in accordance with the Stockholders Agreement (if in effect) and, subject to the last sentence of this Section 4.01, shall be a Chairman of the Board, a Chief Executive Officer, one or more Vice Presidents, a Secretary, a Chief Financial Officer, a Treasurer, a General Counsel and a Controller, and any other officers appointed pursuant to Section 4.14.  The Board of Directors also may elect and the Chief Executive Officer may appoint one or more Assistant Secretaries, Assistant Treasurers and Assistant Controllers in such numbers as the Board of Directors or the Chief Executive Officer may determine who shall have such authority, exercise such powers and perform such duties as may be specified in these By-Laws or determined by the Board of Directors.  Any number of offices may be held by the same person, except that one person may not hold both the office of Chief Executive Officer and Secretary.  The Board may, subject to the Stockholders Agreement (if in effect), determine that the Chairman of the Board will not be an officer of the Corporation.  The Chairman of the Board (whether or not an officer) shall be a Director, but no other officer need be a Director.

 

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Section 4.02.  Election .  Unless otherwise determined by the Board of Directors, the officers of the Corporation shall be elected by the Board of Directors at the annual meeting of the Board of Directors, and shall be elected to hold office until the next succeeding annual meeting of the Board of Directors at which his or her successor has been elected and qualified.  In the event of the failure to elect officers at such annual meeting, officers may be elected at any regular or special meeting of the Board of Directors.  Each officer shall hold office until his or her successor has been elected and qualified, or until his or her earlier death, resignation or removal.  For so long as the Stockholders Agreement is in effect, the election of the Chairman of the Board and the Chief Executive Officer shall be subject to the terms of the Stockholders Agreement.

 

Section 4.03.  Salaries .  Except as otherwise determined by the Board of Directors, the salaries of all officers of the Corporation shall be fixed by the Compensation Committee, or, if not so fixed by the Compensation Committee, by the Board of Directors, subject to any applicable legal or regulatory requirements.

 

Section 4.04.  Removal and Resignation; Vacancies .  Any officer may be removed for or without cause at any time by the Board of Directors or by the Chief Executive Officer as permitted pursuant to Section 4.07.  Any officer may resign at any time by delivering notice of resignation, either in writing signed by such officer or by electronic transmission, to the Chairman of the Board, the Chief Executive Officer or the Secretary.  Unless otherwise specified therein, such resignation shall take effect upon delivery.  Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise, shall be filled by the Board of Directors, or, if the Chief Executive Officer has authority pursuant to Section 4.07 of these By-Laws to fill such office, then by the Chief Executive Officer subject to Section 4.07 of these By-Laws or by the Board of Directors.  For so long as the Stockholders Agreement is in effect, the removal of the Chairman of the Board and the Chief Executive Officer, and the filling of vacancy in such positions, shall be subject to the terms of the Stockholders Agreement.

 

Section 4.05.  Authority and Duties of Officers .  The officers of the Corporation shall have such authority and shall exercise such powers and perform such duties as may be specified in these By-Laws or in a resolution of the Board of Directors, except that in any event each officer shall exercise such powers and perform such duties as may be required by law.

 

Section 4.06.  Chairman of the Board .  The Chairman of the Board shall preside at all meetings of the Board of Directors and stockholders at which he or she is present.

 

Section 4.07.  Chief Executive Officer .  The Chief Executive Officer shall, subject to the direction of the Board of Directors, be the chief executive officer of the Corporation, shall have general control and supervision of the policies and operations of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect.  He or she shall manage and administer the Corporation’s business and affairs and shall also perform all duties and exercise all powers usually pertaining to the office of a chief executive officer, president or chief operating officer, of a corporation, including, without limitation under the DGCL.  He or she shall have the authority to sign, in the name and on behalf of the Corporation, checks, orders, contracts, leases, notes, drafts and any other documents and instruments in connection with the

 

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business of the Corporation, and together with the Secretary or an Assistant Secretary, conveyances of real estate and other documents and instruments to which the seal of the Corporation may need to be affixed.  Except as otherwise determined by the Board of Directors and subject to the Stockholders Agreement (if in effect), he or she shall have the authority to cause the employment or appointment of such employees (other than the Chief Executive Officer) and agents of the Corporation as the conduct of the business of the Corporation may require, to fix their compensation and to remove or suspend any such employees or agents elected or appointed by the Chief Executive Officer or the Board of Directors.  Except as otherwise determined by the Board of Directors, he or she shall also have the authority to remove any officer of the Corporation with, if the Chief Executive Officer is not the Chairman of the Board, the approval of the Chairman of the Board, or, if the Chief Executive Officer is the Chairman of the Board, the approval of the lead director or such other director designated by the Board for such purpose.  The Chief Executive Officer shall perform such other duties and have such other powers as the Board of Directors or the Chairman of the Board may from time to time prescribe.

 

Section 4.08.  Vice President .  Except as otherwise determined by the Board of Directors, each Vice President shall perform such duties and exercise such powers as may be assigned to him or her from time to time by the Chief Executive Officer.  Except as otherwise determined by the Board of Directors, in the absence of the Chief Executive Officer, the duties of the Chief Executive Officer shall be performed and his or her powers may be exercised by such Vice President as shall be designated by the Chief Executive Officer, or failing such designation, such duties shall be performed and such powers may be exercised by each Vice President in the order of their earliest election to that office; subject in any case to review and superseding action by the Chief Executive Officer.

 

Section 4.09.  Secretary .  Except as otherwise determined by the Board of Directors, the Secretary shall have the following powers and duties:

 

(a)  He or she shall keep or cause to be kept a record of all the proceedings of the meetings of the stockholders and of the Board of Directors and all Committees of which a secretary has not been appointed in books provided for that purpose.

 

(b)  He or she shall cause all notices to be duly given in accordance with the provisions of these By-Laws and as required by law.

 

(c)  Whenever any Committee shall be appointed pursuant to a resolution of the Board of Directors, he or she shall furnish a copy of such resolution to the members of such Committee.

 

(d)  He or she shall be the custodian of the records and of the seal of the Corporation and cause such seal (or a facsimile thereof) to be affixed to all certificates representing shares of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized in accordance with these By-Laws, and when so affixed he or she may attest the same.

 

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(e)  He or she shall properly maintain and file all books, reports, statements, certificates and all other documents and records required by law, the Certificate of Incorporation or these By-Laws.

 

(f)  He or she shall have charge of the stock books and ledgers of the Corporation and shall cause the stock and transfer books to be kept in such manner as to show at any time the number of shares of stock of the Corporation of each class issued and outstanding, the names (alphabetically arranged) and the addresses of the holders of record of such shares, the number of shares held by each holder and the date as of which each became such holder of record.

 

(g)  He or she shall sign (unless the Treasurer, an Assistant Treasurer or an Assistant Secretary shall have signed) certificates representing shares of the Corporation the issuance of which shall have been authorized by the Board of Directors.

 

(h)  He or she shall perform, in general, all duties incident to the office of secretary and such other duties as may be specified in these By-Laws or as may be assigned to him or her from time to time by the Board of Directors, or the Chief Executive Officer.

 

Section 4.10.  Chief Financial Officer .  Except as otherwise determined by the Board of Directors, the Chief Financial Officer shall be the chief financial officer of the Corporation and shall have the following powers and duties:

 

(a)  He or she shall have charge and supervision over and be responsible for the moneys, securities, receipts and disbursements of the Corporation, and shall keep or cause to be kept full and accurate records of all receipts of the Corporation.

 

(b)  He or she shall render to the Board of Directors, whenever requested, a statement of the financial condition of the Corporation and of all his or her transactions as Chief Financial Officer, and render a full financial report at the annual meeting of the stockholders, if called upon to do so.

 

(c)  He or she shall be empowered from time to time to require from all officers or agents of the Corporation reports or statements giving such information as he or she may desire with respect to any and all financial transactions of the Corporation.

 

(d)  He or she shall perform, in general, all duties incident to the office of chief financial officer and such other duties as may be specified in these By-Laws or as may be assigned to him or her from time to time by the Board of Directors or the Chairman of the Board.

 

Section 4.11.  Treasurer .  Except as otherwise determined by the Board of Directors, the Treasurer shall have the following powers and duties:

 

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(a)  He or she may sign (unless an Assistant Treasurer or the Secretary or an Assistant Secretary shall have signed) certificates representing stock of the Corporation the issuance of which shall have been authorized by the Board of Directors.

 

(b)  He or she shall perform, in general, all duties incident to the office of treasurer and such other duties as may be specified in these By-Laws or as may be assigned to him or her from time to time by the Board of Directors, the Chairman of the Board or the Chief Financial Officer.

 

Section 4.12.  General Counsel Except as otherwise determined by the Board of Directors, the General Counsel shall have the following powers and duties:

 

(a)  He or she shall have general supervision of all matters of a legal nature concerning the Corporation.

 

(b)  He or she shall perform all such duties incident to his or her office and such other duties as may be specified in these By-Laws or as may be assigned to him or her by the Board of Directors, the Chairman of the Board or the Chief Executive Officer.

 

Section 4.13.  Controller Except as otherwise determined by the Board of Directors, the Controller shall have the following powers and duties:

 

(a)  He or she shall keep and maintain the books of account of the Corporation in such manner that they fairly present the financial condition of the Corporation and its subsidiaries.

 

(b)  He or she shall perform all such duties incident to the office of controller and such other duties as may be specified in these By-Laws or as may be assigned to him or her by the Board of Directors, the Chairman of the Board, or the Chief Financial Officer.

 

Section 4.14.  Additional Officers .  The Board of Directors may appoint such other officers and agents as it may deem appropriate, and such other officers and agents shall hold their offices for such terms and shall exercise such powers and perform such duties as may be determined from time to time by the Board of Directors.  The Board of Directors from time to time may delegate to any officer or agent the power to appoint subordinate officers or agents and to prescribe their respective rights, terms of office, authorities and duties.  Any such officer or agent may remove any such subordinate officer or agent appointed by him or her, for or without cause.

 

Section 4.15.  Security .  The Board of Directors may require any officer, agent or employee of the Corporation to provide security for the faithful performance of his or her duties, in such amount and of such character as may be determined from time to time by the Board of Directors.

 

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ARTICLE V

 

CAPITAL STOCK

 

Section 5.01.  Certificates of Stock, Uncertificated Shares .  The shares of the Corporation shall be represented by certificates, except to the extent that the Board of Directors has provided by resolution or resolutions that some or all of any or all classes or series of the stock of the Corporation shall be uncertificated shares.  Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation.  Every holder of stock in the Corporation represented by certificates shall be entitled to have, and the Board may in its sole discretion permit a holder of uncertificated shares to receive upon request a certificate signed by the appropriate officers of the Corporation, representing the number of shares registered in certificate form.  Such certificate shall be in such form as the Board of Directors may determine, to the extent consistent with applicable law, the Certificate of Incorporation and these By-Laws.

 

Section 5.02.  Signatures; Facsimile .  All signatures on the certificates referred to in Section 5.01 of these By-Laws may be in facsimile, engraved or printed form, to the extent permitted by law.  In case any officer, transfer agent or registrar who has signed, or whose facsimile, engraved or printed signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.

 

Section 5.03.  Lost, Stolen or Destroyed Certificates .  A new certificate may be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, only upon delivery to Corporation of an affidavit of the owner or owners (or their legal representatives) of such certificate, setting forth such allegation, and a bond or undertaking as may be satisfactory to a financial officer of the Corporation to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate.

 

Section 5.04.  Transfer of Stock .  Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares, duly endorsed or accompanied by appropriate evidence of succession, assignment or authority to transfer, the Corporation shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.  Within a reasonable time after the transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the DGCL.  Subject to the provisions of the Certificate of Incorporation and these By-Laws, the Board of Directors may prescribe such additional rules and regulations as it may deem appropriate relating to the issue, transfer and registration of shares of the Corporation.

 

Section 5.05.  Registered Stockholders .  Prior to due surrender of a certificate for registration of transfer, the Corporation may treat the registered owner as the person exclusively entitled to receive dividends and other distributions, to vote, to receive notice and otherwise to

 

19



 

exercise all the rights and powers of the owner of the shares represented by such certificate, and the Corporation shall not be bound to recognize any equitable or legal claim to or interest in such shares on the part of any other person, whether or not the Corporation shall have notice of such claim or interests, provided that if a transfer of shares shall be made for collateral security, and not absolutely, this fact shall be so expressed in the entry of the transfer if, when the certificates are presented to the Corporation for transfer or uncertificated shares are requested to be transferred, both the transferor and transferee request the Corporation to do so.

 

Section 5.06.  Transfer Agent and Registrar .  The Board of Directors may appoint one or more transfer agents and one or more registrars, and may require all certificates representing shares to bear the signature of any such transfer agents or registrars.

 

ARTICLE VI

 

INDEMNIFICATION

 

Section 6.01.  Nature of Indemnity .  The Corporation shall indemnify, to the fullest extent permitted by the DGCL and other applicable law, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (each, a “proceeding”), by reason of the fact that he or she is or was or has agreed to become a Director or officer of the Corporation, or while serving as a Director or officer of the Corporation, is or was serving or has agreed to serve at the request of the Corporation as a Director, officer, employee, manager or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in such capacity, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her or on his or her behalf in connection with such proceeding and any appeal therefrom, if he or she acted in good faith and in a manner 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 no reasonable cause to believe his or her conduct was unlawful; provided that in the case of an action or suit by or in the right of the Corporation to procure a judgment in its favor (i) such indemnification shall be limited to expenses (including attorneys’ fees) actually and reasonably incurred by such person in the defense or settlement of such action or suit, and (ii) no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chancery or such other court shall deem proper.  Notwithstanding the foregoing, but subject to Section 6.05 of these By-Laws, the Corporation shall not be obligated to indemnify a Director or officer of the Corporation in respect of a proceeding (or part thereof) instituted by such Director or officer, unless such proceeding (or part thereof) has been authorized in the specific case by the Board of Directors.

 

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.

 

Section 6.02.  Successful Defense .  To the extent that a present or former Director or officer of the Corporation has been successful on the merits or otherwise in defense of any proceeding referred to in Section 6.01 of these By-Laws or in defense of any claim, issue or matter therein, he or she shall be indemnified by the Corporation against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith.

 

Section 6.03.  Determination That Indemnification Is Proper Any indemnification of a present or former Director or officer of the Corporation under Section 6.01 of these By-Laws (unless ordered by a court) shall be made by the Corporation only upon a determination that indemnification of such person is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 6.01 of these By-Laws.   Any such determination shall be made, with respect to a person who is a Director or officer at the time of such determination ( i ) by a majority vote of the Directors who are not parties to such proceeding, even though less than a quorum, or ( ii ) by a Committee of such Directors designated by majority vote of such Directors, even though less than a quorum, or ( iii ) if there are no such Directors, or if such Directors so direct, by independent legal counsel in a written opinion, or ( iv ) by the stockholders.

 

Section 6.04.  Advance of Expenses .  Expenses (including attorneys’ fees) incurred by a present or former Director or officer in defending any civil, criminal, administrative or investigative proceeding shall be paid by the Corporation prior to the final disposition of such proceeding upon written request by such person and delivery of an undertaking by such person to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation under this Article or applicable law; provided that the Board of Directors may not require such Director or officer to post any bond or otherwise provide any security for such undertaking.  The Corporation or, in respect of a present Director or officer, the Board of Directors may authorize the Corporation’s counsel to represent (subject to applicable conflict of interest considerations) such present or former Director or officer in any proceeding, whether or not the Corporation is a party to such proceeding.

 

Section 6.05.  Procedure for Indemnification of Directors and Officers .  Any indemnification of a Director or officer of the Corporation under Sections 6.01 and 6.02 of these By-Laws, or advance of expenses to such persons under Section 6.04 of these By-Laws, shall be made promptly, and in any event within 30 days, upon the written request by or on behalf of such person (together with supporting documentation).  If a determination by the Corporation that such person is entitled to indemnification pursuant to this Article is required, and the Corporation fails to respond within 60 days to a written request for indemnity, the Corporation shall be deemed to have approved such request.  If the Corporation denies a written request for indemnity or advancement of expenses, in whole or in part, or if payment in full pursuant to such request is not made within 30 days, the right to indemnification or advances as granted by this Article shall be enforceable by such person in any court of competent jurisdiction.  Such person’s costs and expenses incurred in connection with successfully establishing his or her right to

 

21



 

indemnification, in whole or in part, in any such action shall also be indemnified by the Corporation.  It shall be a defense to any such action (other than an action brought to enforce a claim for the advance of costs, charges and expenses under Section 6.04 of these By-Laws where the required undertaking, if any, has been received by or tendered to the Corporation) that the claimant has not met the standard of conduct set forth in Section 6.01 of these By-Laws, but the burden of proving such defense shall be on the Corporation.  Neither the failure of the Corporation (including its Board of Directors or any Committee thereof, its independent legal counsel, and its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Section 6.01 of these By-Laws, nor the fact that there has been an actual determination by the Corporation (including its Board of Directors or any Committee thereof, its independent legal counsel, and its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.

 

Section 6.06.  Contract Right; Non-Exclusivity; Survival .

 

(a)  The rights to indemnification and advancement of expenses provided by this Article shall be deemed to be separate contract rights between the Corporation and each Director and officer who serves in any such capacity at any time while these provisions as well as the relevant provisions of the DGCL are in effect and any repeal or modification thereof shall not adversely affect any right or obligation then existing with respect to any state of facts then or previously existing or any proceeding previously or thereafter brought or threatened based in whole or in part upon any such state of facts.  Such “contract rights” may not be modified retroactively as to any present or former Director or officer without the consent of such Director or officer.

 

(b)  The rights to indemnification and advancement of expenses provided by this Article shall continue as to a person who has ceased to be a Director or officer and shall not be deemed exclusive of any other rights to which a present or former Director or officer of the Corporation seeking indemnification or advancement of expenses may be entitled under any by-law, agreement, vote of stockholders or disinterested Directors, or otherwise.

 

(c)  The rights to indemnification and advancement of expenses provided by this Article to any present or former Director or officer shall inure to the benefit of the heirs, executors and administrators of such a person.

 

Section 6.07.  Insurance .  The Corporation shall purchase and maintain insurance on behalf of any person who is or was or has agreed to become a Director or officer of the Corporation, or is or was serving at the request of the Corporation as a Director or officer of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her or on his or her behalf in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of this Article, provided that such insurance is available on commercially reasonable terms consistent with then prevailing rates in the insurance market.

 

22



 

Section 6.08.  Subrogation .  In the event of payment under this Article VI, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of the indemnitee, who shall execute all documents, and do all acts, that as the Corporation may reasonably request to secure such rights, including the execution of such documents as the Corporation may reasonably request to enable the Corporation effectively to bring suit to enforce such rights.

 

Section 6.09.  Employees and Agents .  The Board, or any officer authorized by the Board generally or in the specific case to make indemnification decisions, may cause the Corporation to indemnify any present or former employee or agent of the Corporation in such manner and for such liabilities as the Board may determine, up to the fullest extent permitted by the DGCL and other applicable law.

 

Section 6.10.  Interpretation, Severability .  Terms defined in Sections 145(h) or (i) of the DGCL have the meanings set forth in such sections when used in this Article.  If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each Director or officer as to costs, charges and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any proceeding, whether civil, criminal, administrative, investigative or otherwise, including an action by or in the right of the Corporation, to the fullest extent permitted by any applicable portion of this Article that shall not have been invalidated and to the fullest extent permitted by applicable law.

 

ARTICLE VII

 

OFFICES

 

Section 7.01.  Registered Office .  The registered office of the Corporation in the State of Delaware shall be located at the location provided in the Certificate of Incorporation of the Corporation.

 

Section 7.02.  Other Offices .  The Corporation may maintain offices or places of business at such other locations within or without the State of Delaware as the Board of Directors may from time to time determine or as the business of the Corporation may require.

 

ARTICLE VIII

 

GENERAL PROVISIONS

 

Section 8.01.  Dividends .  Subject to any applicable provisions of law and the Certificate of Incorporation, dividends upon the shares of the Corporation may be declared by the Board of Directors at any regular or special meeting of the Board of Directors and any such dividend may be paid in cash, property, or shares of the Corporation’s capital stock.

 

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 person’s 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.

 

Section 8.02.  Reserves .  There may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, thinks proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation or for such other purpose as the Board of Directors shall think conducive to the interest of the Corporation, and the Corporation’s stockholders and the Board of Directors may similarly modify or abolish any such reserve.

 

Section 8.03.  Execution of Instruments .  Except as otherwise provided by law or the Certificate of Incorporation, the Board of Directors or the Chief Executive Officer may authorize the Chief Executive Officer or any other officer or agent to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation.  Any such authorization may be general or limited to specific contracts or instruments.

 

Section 8.04.  Voting as Stockholder .  Unless otherwise determined by resolution of the Board of Directors, the Chairman of the Board or the Chief Executive Officer or any Vice President shall have full power and authority on behalf of the Corporation to attend any meeting of stockholders of any corporation in which the Corporation may hold stock, and to act, vote (or execute proxies to vote) and exercise in person or by proxy all other rights, powers and privileges incident to the ownership of such stock at any such meeting, or through action without a meeting.  The Board of Directors may by resolution from time to time confer such power and authority (in general or confined to specific instances) upon any other person or persons.

 

Section 8.05.  Fiscal Year .  The fiscal year of the Corporation shall commence on the first day of January of each year and shall terminate in each case on December 31.

 

Section 8.06.  Seal .  The seal of the Corporation shall be circular in form and shall contain the name of the Corporation, the year of its incorporation and the words “Corporate Seal” and “Delaware”.  The form of such seal shall be subject to alteration by the Board of Directors.  The seal may be used by causing it or a facsimile thereof to be impressed, affixed or reproduced, or may be used in any other lawful manner.

 

Section 8.07.  Books and Records; Inspection .  Except to the extent otherwise required by law, the books and records of the Corporation shall be kept at such place or places within or without the State of Delaware as may be determined from time to time by the Board of Directors.

 

Section 8.08.  Electronic Transmission .  “Electronic transmission”, as used in these By-laws, means any form of communication, not directly involving the physical transmission of

 

24



 

paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

 

ARTICLE IX

 

AMENDMENT OF BY-LAWS

 

Section 9.01.  Amendment .  Subject to the provisions of the Certificate of Incorporation, these By-Laws may be amended, altered or repealed:

 

(a)  by resolution adopted by a majority of the Board of Directors if at any special or regular meeting of the Board of Directors if, in the case of such special meeting only, notice of such amendment, alteration or repeal is contained in the notice or waiver of notice of such meeting, or

 

(b)  at any regular or special meeting of the stockholders upon the affirmative vote of the holders of a majority of the combined voting power of the outstanding shares of the Corporation entitled to vote in any election of Directors or class of Directors if, in the case of such special meeting only, notice of such amendment, alteration or repeal is contained in the notice or waiver of notice of such meeting, provided , that Sections 1.02, 1.11, 1.12, 2.02, 2.12, 2.13, Article VI and this Section 9.01 shall not be amended, altered or repealed pursuant to this Section 9.01(b) without the affirmative vote of holders of at least two-thirds of the votes to which all the stockholders of the Corporation would be entitled to cast in any election of Directors or class of Directors.

 

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.

 

ARTICLE X

 

CONSTRUCTION

 

Section 10.01.  Construction In the event of any conflict between the provisions of these By-Laws as in effect from time to time and the provisions of the Certificate of Incorporation of the Corporation as in effect from time to time, the provisions of such Certificate of Incorporation shall be controlling.

 

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

 

 

 

ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE

1

 

 

 

Section 1.1. Definitions

1

 

 

Section 1.2. Cross-References

1

 

 

Section 1.3. Accounting and Financial Determinations; No Duplication

2

 

 

 

Section 1.4. Rules of Construction

2

 

 

 

ARTICLE II

THE NOTES

2

 

 

 

Section 2.1. Designation and Terms of Notes

2

 

 

Section 2.2. Notes Issuable in Series

3

 

 

Section 2.3. Series Supplement for Each Series

5

 

 

Section 2.4. Execution and Authentication

8

 

 

Section 2.5. Registrar and Paying Agent

9

 

 

Section 2.6. Paying Agent to Hold Money in Trust

9

 

 

Section 2.7. Noteholder List

10

 

 

Section 2.8. Transfer and Exchange

11

 

 

Section 2.9. Persons Deemed Owners

12

 

 

Section 2.10. Replacement Notes

13

 

 

Section 2.11. Treasury Notes

13

 

 

Section 2.12. Book-Entry Notes

14

 

 

Section 2.13. Definitive Notes

15

 

 

Section 2.14. Cancellation

16

 

 

Section 2.15. Principal and Interest

16

 

 

Section 2.16. Tax Treatment

17

 

 

 

ARTICLE III

SECURITY

17

 



 

 

 

 

Section 3.1. Grant of Security Interest

17

 

 

Section 3.2. Certain Rights and Obligations of HVF Unaffected

19

 

 

Section 3.3. Performance of Collateral Agreements

20

 

 

Section 3.4. Release of Indenture Collateral

20

 

 

Section 3.5. Opinions of Counsel

21

 

 

Section 3.6. Stamp, Other Similar Taxes and Filing Fees

21

 

 

 

ARTICLE IV

REPORTS

22

 

 

 

Section 4.1. Reports and Instructions to Trustee

22

 

 

Section 4.2. Reports to Noteholders

23

 

 

Section 4.3. Rule 144A Information

24

 

 

Section 4.4. Administrator

24

 

 

 

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

 

 

 

Section 6.1. Distributions in General

28

 

 

Section 6.2. Optional Repurchase of Notes

29

 

 

 

ARTICLE VII

REPRESENTATIONS AND WARRANTIES

29

 

 

 

Section 7.1. Existence and Power

29

 

 

Section 7.2. Limited Liability Company and Governmental Authorization

29

 

 

Section 7.3. No Consent

30

 



 

Section 7.4. Binding Effect

30

 

 

Section 7.5. Litigation

30

 

 

Section 7.6. No ERISA Plan

30

 

 

Section 7.7. Tax Filings and Expenses

30

 

 

Section 7.8. Disclosure

31

 

 

Section 7.9. Investment Company Act

31

 

 

Section 7.10. Regulations T, U and X

31

 

 

Section 7.11. Solvency

31

 

 

Section 7.12. Ownership of Limited Liability Company Interests; Subsidiary

31

 

 

Section 7.13. Security Interests

32

 

 

Section 7.14. Related Documents

33

 

 

Section 7.15. [Reserved]

34

 

 

Section 7.16. Non-Existence of Other Agreements

34

 

 

Section 7.17. Compliance with Contractual Obligations and Laws

34

 

 

Section 7.18. Other Representations

34

 

 

 

ARTICLE VIII

COVENANTS

34

 

 

 

Section 8.1. Payment of Notes

34

 

 

Section 8.2. Maintenance of Office or Agency

34

 

 

Section 8.3. Payment of Obligations

35

 

 

Section 8.4. Conduct of Business and Maintenance of Existence

35

 

 

Section 8.5. Compliance with Laws

35

 

 

Section 8.6. Inspection of Property, Books and Records

35

 

 

Section 8.7. Actions under the Collateral Agreements

36

 

 

Section 8.8. Notice of Defaults

37

 

 

Section 8.9. Notice of Material Proceedings

37

 



 

Section 8.10. Further Requests

37

 

 

Section 8.11. Further Assurances

37

 

 

Section 8.12. Liens

38

 

 

Section 8.13. Other Indebtedness

38

 

 

Section 8.14. No ERISA Plan

39

 

 

Section 8.15. Mergers

39

 

 

Section 8.16. Sales of Assets

39

 

 

Section 8.17. Acquisition of Assets

39

 

 

Section 8.18. Dividends, Officers’ Compensation, etc.

39

 

 

Section 8.19. Legal Name; Location Under Section 9-301

39

 

 

Section 8.20. HVF LLC Agreement

40

 

 

Section 8.21. Investments

40

 

 

Section 8.22. No Other Agreements

40

 

 

Section 8.23. Other Business

40

 

 

Section 8.24. Maintenance of Separate Existence

40

 

 

Section 8.25. Manufacturer Programs

41

 

 

Section 8.26. Disposition of HVF Vehicles

42

 

 

Section 8.27. Insurance

42

 

 

 

ARTICLE IX

AMORTIZATION EVENTS AND REMEDIES

43

 

 

 

Section 9.1. Amortization Events

43

 

 

Section 9.2. Rights of the Trustee upon Amortization Event or Certain Other Events of Default

44

 

 

Section 9.3. Other Remedies

48

 

 

Section 9.4. Waiver of Past Events

48

 

 

Section 9.5. Control by Requisite Investors

49

 

 

Section 9.6. Limitation on Suits

49

 



 

Section 9.7. Unconditional Rights of Holders to Receive Payment

50

 

 

Section 9.8. Collection Suit by the Trustee

50

 

 

Section 9.9. The Trustee May File Proofs of Claim

50

 

 

Section 9.10. Priorities

51

 

 

Section 9.11. Undertaking for Costs

51

 

 

Section 9.12. Rights and Remedies Cumulative

51

 

 

Section 9.13. Delay or Omission Not Waiver

51

 

 

Section 9.14. Reassignment of Surplus

51

 

 

 

ARTICLE X

THE TRUSTEE

52

 

 

 

Section 10.1. Duties of the Trustee

52

 

 

Section 10.2. Rights of the Trustee

54

 

 

Section 10.3. Individual Rights of the Trustee

56

 

 

Section 10.4. Notice of Amortization Events and Potential Amortization Events

56

 

 

Section 10.5. Compensation

56

 

 

Section 10.6. Replacement of the Trustee

56

 

 

Section 10.7. Successor Trustee by Merger, etc.

57

 

 

Section 10.8. Eligibility Disqualification

58

 

 

Section 10.9. Appointment of Co-Trustee or Separate Trustee

58

 

 

Section 10.10. Representations and Warranties of Trustee

59

 

 

Section 10.11. HVF Indemnification of the Trustee

60

 

 

 

ARTICLE XI

DISCHARGE OF INDENTURE

60

 

 

 

Section 11.1. Termination of HVF’s Obligations

60

 

 

Section 11.2. Application of Trust Money

61

 

 

Section 11.3. Repayment to HVF

61

 

 

 

ARTICLE XII

AMENDMENTS

62

 



 

Section 12.1. Without Consent of the Noteholders

62

 

 

Section 12.2. With Consent of the Noteholders

63

 

 

Section 12.3. Supplements

65

 

 

Section 12.4. Revocation and Effect of Consents

65

 

 

Section 12.5. Notation on or Exchange of Notes

65

 

 

Section 12.6. The Trustee to Sign Amendments, etc.

65

 

 

 

ARTICLE XIII

MISCELLANEOUS

66

 

 

 

Section 13.1. Notices

66

 

 

Section 13.2. Communication by Noteholders With Other Noteholders

67

 

 

Section 13.3. Certificate and Opinion as to Conditions Precedent

67

 

 

Section 13.4. Statements Required in Certificate

67

 

 

Section 13.5. Rules by the Trustee

68

 

 

Section 13.6. Duplicate Originals

68

 

 

Section 13.7. Benefits of Indenture

68

 

 

Section 13.8. Payment on Business Day

68

 

 

Section 13.9. Governing Law

68

 

 

Section 13.10. Successors

69

 

 

Section 13.11. Severability

69

 

 

Section 13.12. Counterpart Originals

69

 

 

Section 13.13. Table of Contents, Headings, etc.

69

 

 

Section 13.14. Termination; Indenture Collateral

69

 

 

Section 13.15. No Bankruptcy Petition Against HVF

70

 

 

Section 13.16. No Recourse

70

 

 

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:

 

ARTICLE I   DEFINITIONS AND INCORPORATION BY REFERENCE

 

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 Person’s 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”.

 

ARTICLE II   THE NOTES

 

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

 

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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.

 

(a) The Indenture Notes may be issued in one or more Series of Indenture Notes.  Each Series of Indenture Notes shall be created by a Series Supplement.

 

(b) Indenture Notes of a new Series of Indenture Notes may from time to time be executed by HVF and delivered to the Trustee for authentication and thereupon the same shall be authenticated and delivered by the Trustee upon the receipt by the Trustee of a Company Request at least two (2) Business Days (or such shorter time as is acceptable to the Trustee) in advance of the related Series Closing Date and upon delivery by HVF to the Trustee, and receipt by the Trustee, of the following:

 

(i)            a Company Order authorizing and directing the authentication and delivery of the Indenture Notes of such new Series of Indenture Notes by the Trustee and specifying the designation of such new Series of Indenture Notes, the Initial Principal Amount (or the method for calculating the Initial Principal Amount) of such new Series of Indenture Notes to be authenticated and the Note Rate with respect to such new Series of Indenture Notes;

 

(ii)           a Series Supplement satisfying the criteria set forth in Section 2.3 executed by HVF and the Trustee and specifying the Principal Terms of such new Series of Indenture Notes;

 

(iii)          the related Enhancement Agreement, if any, executed by each of the parties thereto, other than the Trustee;

 

(iv)          written confirmation from each Rating Agency that the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding (other than any such Series of Indenture Notes with respect to which an Amortization Event or Potential Amortization Event is continuing as of the date of the issuance of the new Series of Indenture Notes or will occur as a result of the issuance of the new Series of Indenture Notes) shall have been satisfied with respect to such issuance;

 

(v)           (x) solely in connection with the issuance of a Series of Notes, an Officer’s Certificate of HVF dated as of the applicable Series Closing Date to the effect that (A) no Limited Liquidation Event of Default or Enhancement Deficiency with respect to any Series of Notes Outstanding is continuing or will occur as a result of the issuance of a new Series of Notes, (B) no Liquidation Event of Default, Aggregate Asset Amount Deficiency, Operating Lease Event of Default or Potential Operating Lease Event of Default is continuing or will occur as a result of the issuance of a new Series of

 

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Notes and (C) consent has been obtained from the Required Noteholders of each Series of Notes (i) with respect to which an Amortization Event or Potential Amortization Event is continuing as of the date of the issuance of the new Series of Notes or will occur as a result of the issuance of the new Series of Notes and (ii) that will not be refinanced with the proceeds of the issuance of such new Series of Notes and (D) all conditions precedent provided in this Base Indenture and the related Series Supplement with respect to the authentication and delivery of the new Series of Notes have been satisfied and (y) solely in connection with the issuance of a Segregated Series of Notes, all conditions precedent provided in this Base Indenture and the related Segregated Series Supplement with respect to the authentication and delivery of the new Segregated Series of Notes have been satisfied;

 

(vi)          a Tax Opinion;

 

(vii)         evidence that each of the parties to the Related Documents with respect to the new Series of Indenture Notes has covenanted and agreed in such Related Documents 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 any other Person in instituting, against Hertz Vehicles LLC, HGI, HVF or the Intermediary any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings, under any Federal or state bankruptcy or similar law;

 

(viii)        unless otherwise specified in the related Series Supplement, an Opinion of Counsel, subject to the assumptions and qualifications stated therein, and in a form substantially acceptable to the Trustee, dated the applicable Closing Date, substantially to the effect that:

 

(A)                               all instruments furnished to the Trustee conform to the requirements of this Base Indenture and the related Series Supplement and constitute all the documents required to be delivered hereunder and thereunder for the Trustee to authenticate and deliver the new Series of Indenture Notes, and all conditions precedent provided for in this Base Indenture and the related Series Supplement with respect to the authentication and delivery of the new Series of Indenture Notes have been complied with;
 
(B)                                 the related Series Supplement has been duly authorized, executed and delivered by HVF;
 
(C)                                 the new Series of Indenture Notes has been duly authorized and executed and, when authenticated and delivered in accordance with the provisions of this Base Indenture and the related Series Supplement, will constitute valid, binding and enforceable obligations of HVF entitled to the benefits of this Base Indenture and the related Series Supplement, subject, in the case of enforcement, to bankruptcy, insolvency, reorganization,

 

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moratorium and other similar laws affecting creditors’ rights generally and to general principles of equity; and
 
(D)                                the related Series Supplement is a legal, valid and binding agreement of HVF, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights generally and to general principles of equity; and
 

(ix)           such other documents, instruments, certifications, agreements or other items as the Trustee may reasonably require.

 

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:

 

(i)            its name or designation;

 

(ii)           the Initial Principal Amount or the method of calculating the Initial Principal Amount with respect to such Series of Indenture Notes;

 

(iii)          the Note Rate with respect to such Series of Indenture Notes;

 

(iv)          the Series Closing Date;

 

(v)           each Rating Agency rating such Series of Indenture Notes;

 

(vi)          the name of the Clearing Agency, if any;

 

(vii)         the interest payment date or dates and the date or dates from which interest shall accrue;

 

(viii)        with respect to any Series of Notes, the method of allocating Collections to such Series and with respect to any Segregated Series of Notes, the method of allocating collections with respect to such Segregated Series;

 

(ix)           with respect to any Series of Notes, whether the Notes of such Series will be issued in multiple Classes and, if so, the method of allocating Collections allocated to such Series among such Classes and the rights and priorities of each such Class, and with respect to any Segregated Series of Notes, whether the Indenture Notes of such Segregated Series will be issued in multiple Classes and, if so, the method of allocating collections with respect to such Segregated Series among such Classes and the rights and priorities of each such Class;

 

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(x)            the method by which the principal amount of the Indenture Notes of such Series of Indenture Notes shall amortize or accrete;

 

(xi)           the names of any Series Accounts to be used by such Series of Indenture Notes and the terms governing the operation of any such account and the use of moneys therein;

 

(xii)          any deposit of funds to be made in any Series Account on the Series Closing Date;

 

(xiii)         the terms of any related Enhancement and the Enhancement Provider thereof, if any;

 

(xiv)        whether the Indenture Notes of such Series of Indenture Notes may be issued in bearer form and any limitations imposed thereon;

 

(xv)         the Series Termination Date of such Series of Indenture Notes; and

 

(xvi)        any other relevant terms of such Series of Indenture Notes (including whether or not such Series of Indenture Notes will be pledged as collateral for an issuance by an Affiliate Issuer) that do not (subject to Section 2.3(b) ) change the terms of any Series of Indenture Notes Outstanding and that do not prevent the satisfaction of the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding with respect to the issuance of such new Series of Indenture Notes (all such terms, the “ Principal Terms ” of such Series of Indenture Notes).

 

(b) (i)  A Series Supplement may specify that the related Series of Indenture Notes (each, a “ Segregated Series ”) will have collateral that is to be solely for the benefit of the Segregated Noteholders of such Segregated Series of Notes and any other Segregated Series of Notes specified in such Series Supplement (such collateral being referred to as “ Series-Specific Collateral ”).  If any Series-Specific Collateral with respect to such Segregated Series of Notes is specified, such Series Supplement shall expressly designate the related Series of Indenture Notes as a “Segregated Series” for purposes of this Base Indenture; provided , however , that no such Segregated Series of Notes will be issued unless (x) the Rating Agency Condition is satisfied with respect to each Series of Indenture Notes Outstanding, (y) HVF shall have delivered to the Trustee an Officers’ Certificate to the effect that the issuance of such Segregated Series of Notes will not have a material adverse effect (excluding any impact from the dilution of the interests or voting percentage of the existing Indenture Noteholders as a result of such issuance) upon the Indenture Noteholders of any Series of Indenture Notes Outstanding at the time of the issuance of the Segregated Series of Notes, and (z) the applicable Series Supplement provides, in form satisfactory to the Trustee, for the changes and modifications to the Indenture and the other Related Documents as are described in clause (ii)  below.

 

(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

 

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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 Trustee’s 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

 

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respect to each Series, the Trustee may conclusively rely on an Officer’s 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.

 

(a) The Indenture Notes shall, upon issue pursuant to Section 2.2 , be executed on behalf of HVF by an Authorized Officer and delivered by HVF to the Trustee for authentication and redelivery as provided herein.  If an Authorized Officer whose signature is on an Indenture Note no longer holds that office at the time the Indenture Note is authenticated, the Indenture Note shall nevertheless be valid.

 

(b) At any time and from time to time after the execution and delivery of this Indenture, HVF may deliver Indenture Notes of any particular Series of Indenture Notes executed by HVF to the Trustee for authentication, together with one or more Company Orders for the authentication and delivery of such Indenture Notes, and the Trustee, in accordance with such Company Order and this Indenture, shall authenticate and deliver such Indenture Notes.

 

(c) No Indenture Note shall be entitled to any benefit under this Indenture or be valid for any purpose unless there appears on such Indenture Note a certificate of authentication substantially in the form provided for herein, duly executed by the Trustee by the manual signature of a Trust Officer (and the Luxembourg agent (the “ Luxembourg Agent ”), if the Indenture Notes of the Series of Indenture Notes to which such Indenture Note belongs are listed on the Luxembourg Stock Exchange).  Such signatures on such certificate shall be conclusive evidence, and the only evidence, that the Indenture Note has been duly authenticated under this Indenture.  The Trustee may appoint an authenticating agent acceptable to HVF to authenticate Indenture Notes.  Unless limited by the term of such appointment, an authenticating agent may authenticate Indenture Notes whenever the Trustee may do so.  Each reference in this Indenture to authentication by the Trustee includes authentication by such agent.  The Trustee’s certificate of authentication shall be in substantially the following form:

 

This is one of the Indenture Notes(1) of a Series of Indenture Notes issued under the within mentioned Indenture.

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee

 

 

 

 

By:

 

 

 

Authorized Signatory

 


(1) “Indenture Notes” may be replaced with “Notes” in the Authentication of a Note.

 

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(d) Each Indenture Note shall be dated and issued as of the date of its authentication by the Trustee.

 

(e) Notwithstanding the foregoing, if any Indenture Note shall have been authenticated and delivered hereunder but never issued and sold by HVF, and HVF shall deliver such Indenture Note to the Trustee for cancellation as provided in Section 2.14 together with a written statement (which need not comply with Section 13.3 and need not be accompanied by an Opinion of Counsel) stating that such Indenture Note has never been issued and sold by HVF, for all purposes of this Indenture such Indenture Note shall be deemed never to have been authenticated and delivered hereunder and shall not be entitled to the benefits of this Indenture.

 

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.

 

(a) HVF shall (i) maintain an office or agency where Indenture Notes may be presented for registration of transfer or for exchange (the “ Registrar ”) and (ii) appoint a paying agent (which shall satisfy the eligibility criteria set forth in Section 10.8(a) ) (“ Paying Agent ”) at whose office or agency Indenture Notes may be presented for payment.  The Registrar shall keep a register of the Indenture Notes and of their transfer and exchange (the “ Note Register ”).  HVF may appoint one or more co-registrars and one or more additional paying agents.  The term “Paying Agent” includes any additional paying agent and the term “Registrar” includes any co-registrars.  HVF may change any Paying Agent or Registrar without prior notice to any Indenture Noteholder.  HVF shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture.  The Trustee is hereby initially appointed as the Registrar, Paying Agent and agent for service of notices and demands in connection with the Indenture Notes.

 

(b) HVF shall enter into an appropriate agency agreement with any Agent not a party to this Indenture.  Such agency agreement shall implement the provisions of this Indenture that relate to such Agent.  If HVF fails to maintain a Registrar or Paying Agent, the Trustee shall act as such, and shall be entitled to appropriate compensation in accordance with this Indenture until HVF shall appoint a replacement Registrar or Paying Agent, as applicable.

 

Section 2.6.  Paying Agent to Hold Money in Trust.

 

(a) HVF will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee (and if the Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of this Section, that such Paying Agent will:

 

(i)         hold all sums held by it for the payment of amounts due with respect to the Indenture Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;

 

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(ii)        give the Trustee notice of any default by HVF of which it has actual knowledge in the making of any payment required to be made with respect to the Indenture Notes;

 

(iii)       at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent;

 

(iv)       immediately resign as a Paying Agent and forthwith pay to the Trustee all sums held by it in trust for the payment of Indenture Notes if at any time it ceases to meet the standards required to be met by a Trustee hereunder at the time of its appointment; and

 

(v)        comply with all requirements of the Code with respect to the withholding from any payments made by it on any Indenture Notes of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in connection therewith.

 

(b) HVF may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, by Company Order direct any Paying Agent to pay to the Trustee all sums held in trust by such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which the sums were held by such Paying Agent; and upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

 

(c) Subject to applicable laws with respect to escheat of funds, any money held by the Trustee or any Paying Agent in trust for the payment of any amount due with respect to any Indenture Note and remaining unclaimed for two years after such amount has become due and payable shall be discharged from such trust and be paid to HVF on Company Request; and the Indenture Noteholder of such Indenture Note shall thereafter, as an unsecured general creditor, look only to HVF for payment thereof (but only to the extent of the amounts so paid to HVF), and all liability of the Trustee or such Paying Agent with respect to such trust money shall thereupon cease; provided , however , that the Trustee or such Paying Agent, before being required to make any such repayment, may, at the expense of HVF, cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in New York City, and in a newspaper customarily published on each Business Day and of general circulation in London and Luxembourg (if the related Series of Indenture Notes has been listed on the Luxembourg Stock Exchange), if applicable, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to HVF.  The Trustee may also adopt and employ, at the expense of HVF, any other reasonable means of notification of such repayment.

 

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

 

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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.

 

(a) Upon surrender for registration of transfer of any Indenture Note at the office or agency of the Registrar, if the requirements of Section 2.8(f)  and Section 8-401(a) of the UCC are met, HVF shall execute and after HVF has executed, the Trustee shall authenticate and deliver to the Indenture Noteholder, in the name of the designated transferee or transferees, one or more new Indenture Notes, in any authorized denominations, of the same Class and a like Initial Principal Amount.  At the option of any Indenture Noteholder, Indenture Notes may be exchanged for other Indenture Notes of the same Series of Indenture Notes and Class in authorized denominations of like Initial Principal Amount, upon surrender of the Indenture Notes to be exchanged at any office or agency of the Registrar maintained for such purpose.  Whenever Indenture Notes of any Series of Indenture Notes are so surrendered for exchange, if the requirements of Section 8-401(a) of the UCC are met, HVF shall execute and after HVF has executed, the Trustee shall authenticate and deliver to the Indenture Noteholder, the Indenture Notes which the Indenture Noteholder making the exchange is entitled to receive.

 

(b) Every Indenture Note presented or surrendered for registration of transfer or exchange shall be (i) duly endorsed by, or be accompanied by a written instrument of transfer in form satisfactory to the Trustee duly executed by, the Indenture Noteholder thereof or such

 

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Indenture Noteholder’s attorney duly authorized in writing, with a medallion signature guarantee, and (ii) accompanied by such other documents as the Trustee may require.  HVF shall execute and deliver to the Trustee or the Registrar, as applicable, Indenture Notes in such amounts and at such times as are necessary to enable the Trustee to fulfill its responsibilities under this Indenture and the Indenture Notes.

 

(c) All Indenture Notes issued upon any registration of transfer or exchange of the Indenture Notes shall be the valid obligations of HVF, evidencing the same debt, and entitled to the same benefits under this Indenture, as the related Indenture Notes surrendered upon such registration of transfer or exchange.

 

(d) The preceding provisions of this Section 2.8 notwithstanding, the Trustee or the Registrar, as the case may be, shall not be required to register the transfer or exchange of any Indenture Note of any Series of Indenture Notes for a period of 15 days preceding the due date for payment in full of the Indenture Notes of such Series of Indenture Notes.

 

(e) Unless otherwise provided in the applicable Series Supplement, no service charge shall be payable for any registration of transfer or exchange of Indenture Notes, but HVF or the Registrar may require payment by the Indenture Noteholder of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Indenture Notes.

 

(f) Unless otherwise provided in the applicable Series Supplement, registration of transfer of Indenture Notes containing a legend relating to the restrictions on transfer of such Indenture Notes (which legend shall be set forth in the applicable Series Supplement) shall be effected only if the conditions set forth in such applicable Series Supplement are satisfied.  Notwithstanding any other provision of this Section 2.8 and except as otherwise provided in Section 2.13 , the typewritten Indenture Note or Indenture Notes representing Book-Entry Notes for any Series of Indenture Notes may be transferred, in whole but not in part, only to another nominee of the Clearing Agency for such Series of Indenture Notes, or to a successor Clearing Agency for such Series of Indenture Notes selected or approved by HVF or to a nominee of such successor Clearing Agency, only if in accordance with this Section 2.8 and Section 2.12 .

 

(g) If the Indenture Notes are listed on the Luxembourg Stock Exchange, the Trustee or the Luxembourg Agent, as the case may be, shall send to HVF upon any transfer or exchange of any Indenture Note information reflected in the copy of the register for the Indenture Notes maintained by the Registrar or the Luxembourg Agent, as the case may be.

 

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.

 

(a) If (i) any mutilated Indenture Note is surrendered to the Trustee, or the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Indenture Note, and (ii) there is delivered to the Trustee such security or indemnity as may be required by it to hold HVF and the Trustee harmless then, provided that the requirements of Section 8-405 of the UCC are met, HVF shall execute and upon its request the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Indenture Note, a replacement Indenture Note; provided , however , that if any such destroyed, lost or stolen Indenture Note, but not a mutilated Indenture Note, shall have become or within seven days shall be due and payable, instead of issuing a replacement Indenture Note, HVF may pay such destroyed, lost or stolen Indenture Note when so due or payable without surrender thereof.  If, after the delivery of such replacement Indenture Note or payment of a destroyed, lost or stolen Indenture Note pursuant to the proviso to the preceding sentence, a protected purchaser (within the meaning of Section 8-303 of the UCC) of the original Indenture Note in lieu of which such replacement Indenture Note was issued presents for payment such original Indenture Note, HVF and the Trustee shall be entitled to recover such replacement Indenture Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Indenture Note from such Person to whom such replacement Indenture Note was delivered or any assignee of such Person, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by HVF or the Trustee in connection therewith.

 

(b) Upon the issuance of any replacement Indenture Note under this Section 2.10 , HVF may require the payment by the Indenture Noteholder of such Indenture Note of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Trustee) connected therewith.

 

(c) Every replacement Indenture Note issued pursuant to this Section 2.10 in replacement of any mutilated, destroyed, lost or stolen Indenture Note shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Indenture Notes of the same Class and Series of Indenture Notes duly issued hereunder.

 

(d) The provisions of this Section 2.10 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Indenture 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.

 

(a) Unless otherwise provided in any applicable Series Supplement, the Indenture Notes of each Series of Indenture Notes, upon original issuance, shall be issued in the form of typewritten Indenture Notes representing the Book-Entry Notes, to be delivered to the depository specified in such Series Supplement (the “ Depository ”) which shall be the Clearing Agency on behalf of such Series of Indenture Notes.  The Indenture Notes of each Series of Indenture Notes shall, unless otherwise provided in the applicable Series Supplement, initially be registered on the Note Register in the name of the Clearing Agency or the nominee of the Clearing Agency.  No Note Owner will receive a definitive note representing such Note Owner’s interest in the related Series of Indenture Notes, except as provided in Section 2.13 .  Unless and until definitive, fully registered Indenture Notes of any Series of Indenture Notes (“ Definitive Notes ”) have been issued to Note Owners pursuant to Section 2.13 :

 

(i)         the provisions of this Section 2.12 shall be in full force and effect with respect to each such Series of Indenture Notes;

 

(ii)        HVF, the Paying Agent, the Registrar and the Trustee may deal with the Clearing Agency and the applicable Clearing Agency Participants for all purposes (including the payment of principal of and interest on the Indenture Notes and the giving of instructions or directions hereunder) as the sole Indenture Noteholder of the Indenture Notes, and shall have no obligation to the Note Owners;

 

(iii)       to the extent that the provisions of this Section 2.12 conflict with any other provisions of this Indenture, the provisions of this Section 2.12 shall control with respect to each such Series of Indenture Notes;

 

(iv)       the rights of Note Owners of each such Series of Indenture Notes shall be exercised only through the Clearing Agency and the applicable Clearing Agency Participants and shall be limited to those established by law and agreements between such Note Owners and the Clearing Agency and/or the Clearing Agency Participants, and all references in this Indenture to actions by the Indenture Noteholders shall refer to actions taken by the Clearing Agency upon instructions from the Clearing Agency Participants, and all references in this Indenture to distributions, notices, reports and statements to the Indenture Noteholders shall refer to distributions, notices, reports and statements to the Clearing Agency, as registered holder of the Indenture Notes of such Series of Indenture Notes for distribution to the Note Owners in accordance with the procedures of the Clearing Agency; and

 

(v)        whenever this Indenture requires or permits actions to be taken based upon instructions or directions of Indenture Noteholders evidencing a specified percentage of the principal amount of the Outstanding Indenture Notes, the applicable Clearing Agency shall be deemed to represent such percentage only to the extent that it has received instructions to such effect from Note Owners and/or their related Clearing

 

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Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the Outstanding Indenture Notes and has delivered such instructions to the Trustee.

 

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.

 

(b) Whenever notice or other communication to the Indenture Noteholders is required under this Indenture, unless and until Definitive Notes shall have been issued to Note Owners pursuant to Section 2.13 , the Trustee and HVF shall give all such notices and communications specified herein to be given to Indenture Noteholders to the applicable Clearing Agency for distribution to the Note Owners.

 

Section 2.13.  Definitive Notes.

 

(a) The Indenture Notes of any Series of Indenture Notes, to the extent provided in the related Series Supplement, upon original issuance, may be issued in the form of Definitive Notes.  The applicable Series Supplement shall set forth the legend relating to the restrictions on transfer of such Definitive Notes and such other restrictions as may be applicable.

 

(b) With respect to the Indenture Notes of any Series of Indenture Notes issued in the form of typewritten Indenture Notes representing the Book-Entry Notes, if (i) (A) HVF advises the Trustee in writing that the Clearing Agency with respect to any Series of Indenture Notes is no longer willing or able to discharge properly its responsibilities under the applicable Depository Agreement and (B) the Trustee or HVF is unable to locate a qualified successor, (ii) HVF, at its option, advises the Trustee in writing that it elects to terminate the book-entry system through the Clearing Agency with respect to any Series of Indenture Notes Outstanding or (iii) after the occurrence of an Amortization Event with respect to any Series of Indenture Notes Outstanding, Note Owners holding a beneficial interest in excess of 50% of the aggregate Principal Amount of such Series of Indenture Notes advise the Trustee and the applicable Clearing Agency through the applicable Clearing Agency Participants in writing that the continuation of a book-entry system through the applicable Clearing Agency is no longer in the best interests of such Note Owners, the Trustee shall notify all Note Owners of such Series of Indenture Notes, through the applicable Clearing Agency Participants, of the occurrence of any such event and of the availability of Definitive Notes to Note Owners of such Series of Indenture Notes.  Upon surrender to the Trustee of the Indenture Notes of such Series of Indenture Notes by the applicable Clearing Agency, accompanied by registration instructions from the applicable Clearing Agency for registration, HVF shall execute and the Trustee shall authenticate, upon receipt of a Company Order, and deliver the Definitive Notes in accordance with the instructions of the Clearing Agency.  Neither HVF nor the Trustee shall be liable for any delay in delivery of such instructions and may each conclusively rely on, and shall be protected in relying on, such instructions.  Upon the issuance of Definitive Notes of such Series of Indenture Notes all references herein to obligations imposed upon or to be performed by the applicable Clearing Agency shall be deemed to be imposed upon and performed by the Trustee, to the extent

 

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applicable with respect to such Definitive Notes, and the Trustee shall recognize the Indenture Noteholders of the Definitive Notes of such Series of Indenture Notes as Indenture Noteholders of such Series of Indenture Notes hereunder.

 

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 Trustee’s 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.

 

(a) The principal of each Series of Indenture Notes shall be payable at the times and in the amount set forth in the applicable Series Supplement and in accordance with Section 6.1 .

 

(b) Each Series of Indenture Notes shall accrue interest as provided in the applicable Series Supplement and such interest shall be payable on each Payment Date for such Series of Indenture Notes in accordance with Section 6.1 and the applicable Series Supplement.

 

(c) Except as provided in the following sentence, the Person in whose name any Indenture Note is registered at the close of business on any Record Date with respect to a Payment Date for such Indenture Note shall be entitled to receive the principal and interest payable on such Payment Date notwithstanding the cancellation of such Indenture Note upon any registration of transfer, exchange or substitution of such Indenture Note subsequent to such Record Date.  Any interest payable at maturity shall be paid to the Person to whom the principal of such Indenture Note is payable.

 

(d) If HVF defaults in the payment of interest on the Indenture Notes of any Series of Indenture Notes, such interest, to the extent paid on any date that is more than five (5) Business Days after the applicable due date, at the option of HVF, shall cease to be payable to the Persons who were Indenture Noteholders of such Series of Indenture Notes on the applicable Record Date and HVF shall pay the defaulted interest in any lawful manner, plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Indenture Noteholders of such Series of Indenture Notes on a subsequent special record date which date shall be at least five (5) Business Days prior to the payment date, at the rate provided in this Indenture and in the

 

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Indenture Notes of such Series of Indenture Notes.  HVF shall fix or cause to be fixed each such special record date and payment date, and at least 15 days before the special record date, HVF (or the Trustee, in the name of and at the expense of HVF) shall mail to Indenture Noteholders of such Series of Indenture Notes a notice that states the special record date, the related payment date and the amount of such interest to be paid.

 

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 Owner’s 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.

 

ARTICLE III  SECURITY

 

Section 3.1.  Grant of Security Interest.

 

(a) To secure the Note Obligations, HVF hereby pledges, assigns, conveys, delivers, transfers and sets over to the Trustee, for the benefit of the Noteholders, and hereby grants to the Trustee, for the benefit of such Noteholders, a security interest in, all of the following property now owned or at any time hereafter acquired by HVF or in which HVF now has or at any time in the future may acquire any right, title or interest (collectively, the “ Indenture Collateral ”):

 

(i)         the Collateral Agreements as and to the extent they relate to the HVF Vehicle Collateral or the Note Obligations, including, without limitation, all monies relating to such HVF Vehicle Collateral or the Note Obligations due and to become due to HVF under or in connection with the Collateral Agreements, whether payable as Rent, fees, expenses, costs, indemnities, insurance recoveries, damages for the breach of any of the Collateral Agreements or otherwise, all security for amounts so payable thereunder and all rights, remedies, powers, privileges and claims of HVF against any other party under or with respect to the Collateral Agreements (whether arising pursuant to the terms of such Collateral Agreements or otherwise available to HVF at law or in equity) as and to the extent such rights, remedies, powers, privileges and claims relate to the HVF Vehicle Collateral or the Note Obligations, the right to enforce any of the Collateral Agreements to the extent they relate to the HVF Vehicle Collateral or the Note Obligations and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Collateral Agreements or the obligations of any party thereunder, in each case as and to the extent such consents, requests, notices, directions, approvals, extensions or waivers relate to the HVF Vehicle Collateral or the Note Obligations;

 

(ii)        the Collection Account and each HVF Exchange Account, all monies on deposit from time to time in the Collection Account and each HVF Exchange

 

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Account and all proceeds thereof; provided , however, that in the case of any funds held in the accounts maintained pursuant to the Escrow Agreement that constitute Relinquished Property Proceeds, such funds shall not constitute HVF Vehicle Collateral unless such funds are or become Additional Subsidies;

 

(iii)       each Series Account (other than any Series Account established pursuant to a Segregated Series of Notes), all monies on deposit from time to time in such Series Account and all proceeds thereof;

 

(iv)       all Investment Property (other than Investment Property relating solely to the HVF Segregated Vehicle Collateral);

 

(v)        all additional property (other than property relating solely to HVF Segregated Vehicle Collateral) that may from time to time hereafter (pursuant to the terms of any Series Supplement or otherwise) be subjected to the grant and pledge hereof by HVF or by anyone on its behalf; and

 

(vi)       to the extent not otherwise included, all Proceeds and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing.

 

(b) To secure the Note Obligations, HVF hereby confirms the grant, pledge, hypothecation, assignment, conveyance, delivery and transfer to the Collateral Agent under the Collateral Agency Agreement for the benefit of the Trustee, on behalf of the Noteholders, of a continuing first priority perfected Lien on all right, title and interest of HVF in, to and under the HVF Vehicle Collateral.

 

(c) The foregoing grant is made in trust to secure the Note Obligations and to secure compliance with the provisions of this Indenture and any Series Supplement (other than any Segregated Series Supplement), all as provided in this Indenture.  The Trustee, as trustee on behalf of the Noteholders, acknowledges such grant, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and subject to Section 10.1 and 10.2 , agrees to perform its duties required in this Indenture.  The Collateral shall secure the Notes equally and ratably without prejudice, priority or distinction (except, with respect to any Series of Notes, as otherwise stated in the applicable Series Supplement).

 

(d) For all purposes hereunder and for the avoidance of doubt, the Collateral  will be held by the Trustee solely for the benefit of the Noteholders, and no Segregated Series Noteholder will have any right, title or interest in, to or under the Collateral.  The Issuer may identify and pledge to the Trustee additional pools of Series-Specific Collateral to secure a Segregated Series of Notes, as specified in the related Segregated Series Supplement.  For all purposes hereunder and for the avoidance of doubt, any Series-Specific Collateral pledged to the Trustee for the benefit of a Segregated Series of Notes will be held by the Trustee solely for the benefit of the Segregated Noteholders for such Segregated Series of Notes and no other Indenture Noteholders shall have any right, title or interest in, to or under such Series-Specific Collateral unless specifically provided in the Series Supplement for such Segregated Series of Notes.  For the avoidance of doubt, if it is determined that the Segregated Noteholders of a

 

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Segregated Series of Notes have any right, title or interest in, to or under the Collateral or Series-Specific Collateral other than the Series-Specific Collateral securing such Segregated Series of Notes, then such Segregated Noteholders agree that their right, title and interest in, to or under the Collateral or such Series-Specific Collateral not securing such Segregated Noteholder’s Segregated Series of Notes shall be subordinate in all respects to the claims or rights of the Noteholders with respect to such Collateral or the Segregated Noteholders with respect to such Series-Specific Collateral, as the case may be.  Similarly, if it is determined that any Noteholders have any right, title or interest in, to or under any Series-Specific Collateral, then such Noteholders agree that their right, title and interest in, to or under such Series-Specific Collateral shall be subordinate in all respects to the claims or rights of the Segregated Noteholders with respect to the Segregated Series of Notes entitled to the benefit of such Series-Specific Collateral.  This Base Indenture shall constitute a subordination agreement for purposes of Section 510(a) of the Bankruptcy Code.

 

Section 3.2.  Certain Rights and Obligations of HVF Unaffected.

 

(a) Notwithstanding the assignment and security interest so granted to the Trustee on behalf of the Noteholders, HVF shall nevertheless be permitted, subject to the Trustee’s right to revoke such permission with respect to the Collateral in the event of an Amortization Event with respect to any Series of Notes Outstanding and subject to the provisions of Section 3.3 , to give all consents, requests, notices, directions, approvals, extensions or waivers, if any, which are required to be given in the normal course of business (which does not include waivers of default under any of the Collateral Agreements or any of the Manufacturer Programs).

 

(b) The assignment of the Collateral to the Trustee on behalf of the Noteholders shall not (i) relieve HVF from the performance of any term, covenant, condition or agreement on HVF’s part to be performed or observed under or in connection with any of the Collateral Agreements or any of the Manufacturer Programs or (ii) impose any obligation on the Trustee or any such Noteholders to perform or observe any such term, covenant, condition or agreement on HVF’s part to be so performed or observed or impose any liability on the Trustee or any of the Noteholders for any act or omission on the part of HVF or from any breach of any representation or warranty on the part of HVF.

 

(c) HVF hereby agrees to indemnify and hold harmless the Trustee (including its directors, officers, employees and agents) from and against any and all losses, liabilities (including liabilities for penalties), claims, demands, actions, suits, judgments, reasonable out-of-pocket costs and expenses arising out of or resulting from the assignment granted hereby or by the Collateral Agency Agreement or any Assignment Agreement, whether arising by virtue of any act or omission on the part of HVF or otherwise, including, without limitation, the reasonable out-of-pocket costs, expenses, and disbursements (including reasonable attorneys’ fees and expenses) incurred by the Trustee in enforcing this Indenture or preserving any of its rights to, or realizing upon, any of the Collateral; provided , however , the foregoing indemnification shall not extend to any action by the Trustee which constitutes gross negligence or willful misconduct by the Trustee or any other indemnified person hereunder.  The indemnification provided for in this Section 3.2 shall survive the removal of, or a resignation by, such Person as Trustee as well as the termination of this Indenture, any Series Supplement, the Collateral Agency Agreement or any Assignment Agreement.

 

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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 HVF’s 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.

 

(a) The Trustee shall, when required by the provisions of this Indenture, execute instruments to release property from the lien of this Indenture, or convey the Trustee’s interest in the same, in a manner and under circumstances that are not inconsistent with the provisions of this Indenture.  No party relying upon an instrument executed by the Trustee as provided in this Section 3.4 shall be bound to ascertain the Trustee’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.

 

(b) In accordance with the Collateral Agency Agreement, from and after the earliest of (i) in the case of a Program Vehicle subject to a Repurchase Program, the Turnback Date for such Program Vehicle, (ii) in the case of a Program Vehicle subject to a Guaranteed Depreciation Program, the date of sale of such Program Vehicle by an auction dealer to a third

 

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party, (iii) in the case of a Non-Program Vehicle, the date of the deposit of the Disposition Proceeds of such Non-Program Vehicle by or on behalf of HVF into the Collection Account or an HVF Exchange Account, (iv) in the case of a Transferred HVF Vehicle, the date the related Transfer Payment is deposited into the Collection Account or an HVF Exchange Account, (v) in the case of a Casualty, the date the related Casualty Payment is deposited into the Collection Account and (vi) in the case of a Rejected Vehicle that was a New HVF Vehicle at the time of rejection, the date the related Rejected Vehicle Payment is deposited into the Collection Account, such HVF Vehicle and the related Certificate of Title shall automatically be released from the lien of the Collateral Agency Agreement.  Any Lien of the Trustee on the HVF Vehicles shall automatically be deemed to be released concurrently with any release of the Lien of the Collateral Agent as provided in the Collateral Agency Agreement.

 

(c) The Trustee shall, at such time as there is no Note Outstanding, release any remaining portion of the Collateral from the lien of this Indenture and release to HVF any funds then on deposit in the Collection Account and any Series Accounts (other than any Series Accounts relating solely to any Segregated Series of Notes).  The Trustee shall release property from the lien of this Indenture pursuant to this Section 3.4(c)  only upon receipt of a Company Order accompanied by an Officer’s Certificate and an Opinion of Counsel meeting the applicable requirements of Section 13.3 .

 

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.

 

ARTICLE IV   REPORTS

 

Section 4.1.  Reports and Instructions to Trustee.

 

(a)  Daily Collection Reports .  On each Business Day commencing on the Initial Closing Date, HVF shall prepare and maintain, or cause to be prepared and maintained, a record (each, a “ Daily Collection Report ”) setting forth the aggregate of the amounts deposited in the Collection Account and the amounts relating to HVF Vehicles deposited in the HVF Exchange Account on the immediately preceding Business Day, which shall consist of: (A) the aggregate amount of payments received from Manufacturers and/or auction dealers under Manufacturer Programs related to Program Vehicles and in each case deposited in the Collection Account or an HVF Exchange Account, plus (B) the aggregate amount of proceeds received from third parties (other than Manufacturers and auction dealers) with respect to the sale of HVF Vehicles and in each case deposited in the Collection Account or an HVF Exchange Account, plus (C) the aggregate amount of other Collections deposited in the Collection Account or an HVF Exchange Account.  HVF shall deliver a copy of the Daily Collection Report for each Business Day to the Trustee.

 

(b)  Reports and Certificates .  Promptly following delivery to HVF, HVF shall forward to the Trustee copies of all reports, certificates, information or other materials delivered to HVF pursuant to the HVF Lease.

 

(c)  Monthly Servicing Certificate .  On or before the fourth Business Day prior to each Payment Date (unless otherwise agreed by the Trustee), HVF shall furnish to the Trustee and the Paying Agent a certificate substantially in the form of Exhibit A (each a “ Monthly Servicing Certificate ”).

 

(d)  Monthly Noteholders’ Statement .  On or before the fourth Business Day prior to each Payment Date (unless otherwise agreed by the Trustee), HVF shall furnish to the Trustee a Monthly Noteholders’ Statement with respect to each Series of Indenture Notes substantially in the form provided in the applicable Series Supplement.

 

(e)  Monthly Collateral Certificate .  On or before each Payment Date, HVF shall furnish to the Trustee and the Collateral Agent an Officer’s Certificate of HVF to the effect that, except as stated therein, (i) the HVF Vehicles and all other Collateral is free and clear of all Liens, other than Permitted Liens, and (ii) the aggregate amount of all vicarious liability claims outstanding against HVF as of the immediately preceding Determination Date is less than $5 million.  If the aggregate amount of vicarious liability claims outstanding against HVF exceeds $5 million, the Officer’s Certificate delivered pursuant to this Section 4.1(e)  shall also contain a schedule describing all of the vicarious liability claims then outstanding against HVF.

 

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(f)  Quarterly Compliance Certificates .  On the Payment Date in each of March, June, September and December, commencing in December 2002, HVF shall deliver to the Trustee an Officer’s Certificate of HVF to the effect that, except as provided in a notice delivered pursuant to Section 8.8 , no Amortization Event or Potential Amortization Event with respect to any Series of Notes Outstanding has occurred or is continuing and no Operating Lease Event of Default or Potential Operating Lease Event of Default has occurred or is continuing.

 

(g)  Non-Program Vehicle Report .  On the Payment Date in May of each year, commencing in May 2003, HVF shall cause a nationally recognized firm of independent certified public accountants to furnish a report to the Trustee and the Rating Agencies to the effect that they have performed certain agreed upon procedures with respect to the calculations of (i) the Disposition Proceeds received by HVF from the sale or other disposition of all Non-Program Vehicles (other than Casualties) sold or otherwise disposed of during the Related Month, (ii) the respective Net Book Values of such Non-Program Vehicles and (iii) the Market Values of such Non-Program Vehicles on the date of such sale or other disposition.

 

(h)  Verification of Title .  On or prior to May 30 of each year, commencing May 30, 2003, HVF shall cause a nationally recognized firm of independent certified public accountants to furnish a report to the Trustee and the Rating Agencies to the effect that they have performed certain agreed upon procedures on a statistical sample of the Certificates of Title of the HVF Vehicles designed to provide a ninety-five percent (95%) confidence level confirming that the HVF Vehicles are titled in the name of Hertz Vehicles LLC and the Certificates of Title show a first lien in the name of the Collateral Agent, except for such exceptions as shall be set forth in such report (which exceptions may include the existence of the Initial Hertz Vehicles and the Service Vehicles).

 

(i)  Additional Information .  From time to time such additional information regarding the financial position, results of operations or business of Hertz, Hertz Vehicles LLC, HGI or HVF as the Trustee may reasonably request to the extent that such information is available to HVF pursuant to the Related Documents (other than Related Documents related solely to a Segregated Series of Notes).

 

(j)  Instructions as to Withdrawals and Payments .  HVF will furnish, or cause to be furnished, to the Trustee or the Paying Agent, as applicable, written instructions to make withdrawals and payments from the Collection Account, any HVF Exchange Account and any other accounts specified in a Series Supplement and to make drawings under any Enhancement, as contemplated herein and in any Series Supplement.  The Trustee and the Paying Agent shall promptly follow any such written instructions.

 

Section 4.2.  Reports to Noteholders.

 

(a) On each Payment Date, the Paying Agent shall forward to each Indenture Noteholder of record as of the immediately preceding Record Date of each Series of Indenture Notes Outstanding the Monthly Noteholders’ Statement with respect to such Series of Indenture Notes, with a copy to the Rating Agencies and any Enhancement Provider with respect to such Series of Indenture Notes.

 

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(b)  Annual Noteholders’ Tax Statement .  Unless otherwise specified in the applicable Series Supplement, on or before January 31 of each calendar year, beginning with calendar year 2003, the Paying Agent shall furnish to each Person who at any time during the preceding calendar year was an Indenture Noteholder a statement prepared by HVF containing the information which is required to be contained in the Monthly Noteholders’ Statements with respect to such Series of Indenture Notes aggregated for such calendar year or the applicable portion thereof during which such Person was an Indenture Noteholder, together with such other customary information (consistent with the treatment of the Indenture Notes as debt) as HVF deems necessary or desirable to enable the Indenture Noteholders to prepare their tax returns (each such statement, an “ Annual Noteholders’ Tax Statement ”).  Such obligations of HVF to prepare and the Paying Agent to distribute the Annual Noteholders’ Tax Statement shall be deemed to have been satisfied to the extent that substantially comparable information shall be provided by the Paying Agent pursuant to any requirements of the Code as from time to time in effect.

 

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.

 

ARTICLE V   ALLOCATION AND APPLICATION OF COLLECTIONS

 

Section 5.1.  Collection Account.

 

(a)  Establishment of Collection Account .  On or prior to the Initial Closing Date, HVF, the Collection Account Securities Intermediary and the Trustee shall have entered into the Collection Account Control Agreement pursuant to which the Collection Account shall be established and maintained for the benefit of the Noteholders.  If at any time a Trust Officer obtains knowledge that the Collection Account is no longer an Eligible Deposit Account, the Trustee shall, within ten (10) Business Days of obtaining such knowledge, cause the Collection Account to be moved to a Qualified Institution or a Qualified Trust Institution and cause the depositary maintaining the new Collection Account to assume the obligations of the existing Collection Account Securities Intermediary under the Collection Account Control Agreement.  For all purposes hereunder and for the avoidance of doubt, the Collection Account has been established solely for the benefit of the Noteholders, and in connection with the issuance of each

 

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Segregated Series of Notes, the Issuer will establish with the Trustee a separate and segregated trust account with respect to collections under the Series-Specific Collateral related to such Segregated Series of Notes as contemplated by Section 2.3(b) .

 

(b)  Administration of the Collection Account .  All amounts held in the Collection Account shall be invested in Permitted Investments in accordance with the Collection Account Control Agreement at the written direction of HVF.  Investments of funds on deposit in administrative sub-accounts of the Collection Account established in respect of particular Notes shall be required to mature on or before the dates specified in the applicable Series Supplement.  In the absence of written investment instructions hereunder, funds on deposit in the Collection Account shall remain uninvested.  HVF shall not direct 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.

 

(c)  Earnings from Collection Account .  All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Collection Account shall be deemed to be available and on deposit for distribution.

 

(d)  Establishment of Series Accounts .  To the extent specified in the Series Supplement with respect to any Series of Notes, the Trustee may establish and maintain one or more Series Accounts and/or administrative sub-accounts of the Collection Account to facilitate the proper allocation of Collections in accordance with the terms of such Series Supplement.

 

S ection 5.2.  Collections and Allocations.

 

(a)  Collections in General .  Until this Indenture is terminated pursuant to Section 11.1 , HVF shall, and the Trustee is authorized (upon written instructions) to, cause all Collections due and to become due to HVF or the Trustee, as the case may be, to be deposited in the following manner:

 

(i)         all amounts due under or in connection with the HVF Vehicle Collateral, including, without limitation, amounts due from Manufacturers and their related auctions dealers under their Manufacturer Programs with respect to the HVF Vehicles, other than Excluded Payments and Permitted Check Payments, shall be deposited directly into a Collateral Account by the Manufacturers and the related auction dealers and shall be withdrawn from such Collateral Account and deposited either into the Collection Account or, in the case of Relinquished Property Proceeds, an HVF Exchange Account for application in accordance with Section 4.2 of the Master Exchange Agreement within seven Business Days of the deposit thereof into such Collateral Account;

 

(ii)        all amounts representing the proceeds from sales of HVF Vehicles to third parties, other than the Manufacturers or their auction dealers, and all amounts received by the Servicer in the form of Permitted Check Payments shall be deposited into a Collateral Account within two Business Days of receipt by the Servicer and shall be withdrawn from a Collateral Account and either deposited into the Collection Account or, in the case of Relinquished Property Proceeds, an HFV Exchange Account for

 

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application in accordance with Section 4.2 of the Master Exchange Agreement within seven Business Days of the deposit thereof into a Collateral Account;

 

(iii)       all insurance proceeds and warranty payments in respect of the HVF Vehicles, other than Excluded Payments, shall be deposited into a Collateral Account within two Business Days of receipt by the Servicer and shall be withdrawn from a Collateral Account and deposited into the Collection Account within seven Business Days of the deposit thereof into a Collateral Account;

 

(iv)       all amounts payable to HVF pursuant to the HVF Lease shall be paid directly to the Trustee for deposit into the Collection Account;

 

(v)        all payments of Transfer Price by HGI in respect of Transferred HVF Vehicles and Manufacturer Receivables, all Rejected Vehicle Payments in respect of Vehicles that were HVF Vehicles at the time of such rejection by HGI or the Servicer and all other amounts payable by HGI to HVF in respect of HVF Vehicles pursuant to the Purchase Agreement shall be paid directly to the Trustee for deposit into the Collection Account;

 

(vi)       all amounts payable by the Nominee pursuant to Section 11(b) of the Nominee Agreement shall be deposited directly into a Collateral Account by the Nominee and shall be withdrawn from a Collateral Account and deposited into the Collection Account within seven Business Days of the deposit thereof into a Collateral Account;

 

(vii)      all amounts payable by the Hertz Nominee pursuant to Section 10 of the Hertz Nominee Agreement shall be deposited directly into a Collateral Account by the Hertz Nominee and shall be withdrawn from a Collateral Account and deposited into the Collection Account within seven Business Days of the deposit thereof into a Collateral Account;

 

(viii)     all amounts payable by the HFC Nominee pursuant to Section 10 of the HFC Nominee Agreement shall be deposited directly into a Collateral Account by the HFC Nominee and shall be withdrawn from a Collateral Account and deposited into the Collection Account within seven Business Days of the deposit thereof into a Collateral Account; and

 

(ix)       all Collections from any other source shall be either paid directly into the Collection Account at such times as such amounts are due or deposited by the Servicer into the Collection Account within seven Business Days after deposit thereof into a Collateral Account.

 

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 .

 

(b)  Allocations for Noteholders .  On each day on which Collections are deposited into the Collection Account, HVF shall allocate Collections deposited into the Collection Account in accordance with this Article 5 and shall instruct the Trustee in writing to withdraw the required amounts from the Collection Account and make the required deposits in any Series Account in accordance with this Article 5 , as modified by any Series Supplement.  HVF shall make such deposits or payments on the date indicated therein in immediately available funds or as otherwise provided in the applicable Series Supplement.   If, on any date on which Collections are deposited into the Collection Account or Collections are otherwise on deposit in the Collection Account, there are unpaid Ford Reimbursement Obligations, HVF shall apply any such Collections not allocable to any Series pursuant to a Series Supplement to pay such unpaid Ford Reimbursement Obligations by instructing the Trustee in writing to withdraw from the Collection Account and pay to Ford an amount equal to the lesser of such unpaid Ford Reimbursement Obligations and the amount of Collections deposited into or on deposit in the Collection Account on such date that are not allocable to any Series pursuant to any Series Supplement.

 

(c)  Sharing Collections .  In the manner described in the applicable Series Supplement (other than a Segregated Series Supplement), to the extent that Principal Collections that are allocated to any Series of Notes on a Payment Date are not needed to make payments to Noteholders of such Series of Notes or required to be deposited in a Series Account for such Series of Notes on such Payment Date, such Principal Collections may, at the direction of HVF, be applied to cover principal payments due to or for the benefit of Noteholders of another Series of Notes.  Any such reallocation will not result in a reduction in the Principal Amount of the Series of Notes to which such Principal Collections were initially allocated.

 

(d)  Unallocated Principal Collections .  If, after giving effect to Section 5.2(c) , Principal Collections allocated to any Series on any Payment Date are in excess of the amount required to be paid in respect of such Series on such Payment Date, then any such excess Principal Collections shall be allocated to HVF or such other party as may be entitled thereto as set forth in any Series Supplement.   If, on any date on which Principal Collections are allocated to HVF pursuant to this Section 5.2(d) , there are unpaid Ford Reimbursement Obligations, HVF shall apply any such Principal Collections to pay such unpaid Ford Reimbursement Obligations by instructing the Trustee in writing to withdraw from the applicable Series Account and pay to

 

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Ford an amount equal to the lesser of such unpaid Ford Reimbursement Obligations and the amount of such Principal Collections allocated to HVF pursuant to this Section 5.2(d) .

 

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.

 

ARTICLE VI   DISTRIBUTIONS

 

Section 6.1.  Distributions in General.

 

(a) Unless otherwise specified in the applicable Series Supplement, on each Payment Date, the Paying Agent shall pay to the Noteholders of each Series of Notes of record on the preceding Record Date the amounts payable thereto hereunder by check mailed first-class postage prepaid to such Noteholder at the address for such Noteholder appearing in the Note Register except that with respect to Notes registered in the name of a Clearing Agency or its nominee, such amounts shall be payable by wire transfer of immediately available funds released by the Paying Agent from the applicable Series Account no later than Noon (New York City time) on the Payment Date for credit to the account designated by such Clearing Agency or its

 

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nominee, as applicable; provided , however , that, the final principal payment due on a Note shall only be paid to the Noteholder of a Definitive Note on due presentment of such Definitive Note for cancellation in accordance with the provisions of the Note.

 

(b) Unless otherwise specified in the applicable Series Supplement (i) all distributions to Noteholders of all Classes within a Series of Notes will have the same priority and (ii) in the event that on any date of determination the amount available to make payments to the Noteholders of a Series of Notes is not sufficient to pay all sums required to be paid to such Noteholders on such date, then each Class of Noteholders will receive its ratable share (based upon the aggregate amount due to such Class of Noteholders) of the aggregate amount available to be distributed in respect of the Notes of such Series.

 

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.

 

ARTICLE VII                          REPRESENTATIONS AND WARRANTIES

 

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 HVF’s 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 HVF’s 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.

 

(a) HVF owns and has good and marketable title to the Collateral, free and clear of all Liens other than Permitted Liens.  The Manufacturer Receivables (other than to the extent that they relate solely to HVF Segregated Vehicle Collateral) and HVF’s rights under the Collateral Agreements (other than to the extent that they relate solely to HVF Segregated Vehicle Collateral) constitute general intangibles under the applicable UCC.  This Indenture constitutes a valid and continuing Lien on the Indenture Collateral in favor of the Trustee on behalf of the Noteholders, which Lien on the Indenture Collateral has been perfected and is prior to all other Liens (other than Permitted Liens), and the Collateral Agency Agreement constitutes a valid and continuing Lien on the HVF Vehicle Collateral in favor of the Collateral Agent, which Lien on the HVF Vehicle Collateral has been perfected and is prior to all other Liens (other than Permitted Liens) and, in each case, is enforceable as such as against creditors of and purchasers from 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.  HVF has received all consents and approvals required by the terms of the Collateral to the pledge of the Collateral to the Trustee or the Collateral Agent, as the case may be.

 

(b) Other than the security interest granted to the Trustee hereunder and the Collateral Agent under the Collateral Agency Agreement, HVF has not pledged, assigned, sold or granted a security interest in the Collateral, the Account Collateral, the Collateral that constitutes Investment Property or the General Intangibles Collateral.  All action necessary (including the filing of UCC-1 financing statements, the assignment of rights under the Manufacturer Programs (other than to the extent they relate solely to HVF Segregated Vehicle Collateral) to the Collateral Agent under the Assignment Agreements and the notation on the Certificates of Title for all HVF Vehicles (other than the Initial Hertz Vehicles and the Service Vehicles) of the Collateral Agent’s Lien for the benefit of the Noteholders) to protect and perfect the Trustee’s security interest in the Indenture Collateral and the Collateral Agent’s security interests in the HVF Vehicle Collateral has been duly and effectively taken.  No security agreement, financing statement, equivalent security or lien instrument or continuation statement listing HVF as debtor covering all or any part of the Collateral is on file or of record in any jurisdiction, except such as may have been filed, recorded or made by HVF in favor of the Trustee on behalf of the Noteholders in connection with this Indenture or the Collateral Agent in connection with the Collateral Agency Agreement, and HVF has not authorized any such filing.

 

(c) HVF’s legal name is Hertz Vehicle Financing LLC and its location within the meaning of Section 9-307 of the applicable UCC is the State of Delaware.

 

(d) Except for a change made pursuant to Section 8.19 , (i) HVF’s sole place of business and chief executive office shall be at, and the place where its records concerning the Collateral are kept is at: 225 Brae Boulevard, Park Ridge, New Jersey 07656 and (ii) HVF’s

 

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jurisdiction of organization is Delaware.  HVF does not transact, and has not transacted, business under any other name.

 

(e) All authorizations in this Indenture for the Trustee to endorse checks, instruments and securities and to execute financing statements, continuation statements, security agreements and other instruments with respect to the Indenture Collateral and to take such other actions with respect to the Indenture Collateral authorized by this Indenture are powers coupled with an interest and are irrevocable.

 

(f) This Base Indenture creates a valid and continuing Lien (as defined in the New York UCC) in the Account Collateral, the Collateral constituting Investment Property and the General Intangibles Collateral in favor of the Trustee on behalf of the Trustee for the benefit of the Noteholders, which Lien is prior to all other Liens (other than Permitted Liens) and is enforceable as such as against creditors of and purchasers from 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.  All action necessary to perfect such first-priority security interest has been duly taken.

 

(g) The General Intangibles Collateral constitutes “general intangibles” within the meaning of the New York UCC.

 

(h) HVF owns and has good and marketable title to the Account Collateral, the Collateral constituting Investment Property and the General Intangibles Collateral free and clear of any Liens (other than Permitted Liens), claim or encumbrance of any Person.

 

(i) HVF has caused or will have caused, within ten days, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the General Intangibles Collateral and the Collateral constituting Investment Property granted to the Trustee in favor of the Noteholders hereunder.

 

(j) HVF has not authorized the filing of and is not aware of any financing statements against HVF that include a description of collateral covering the Account Collateral, the Collateral constituting Investment Property or the General Intangibles Collateral other than any financing statement relating to the security interest granted to the Trustee in favor of the Trustee for the benefit of the Noteholders hereunder or that has been terminated.  HVF is not aware of any judgment or tax lien filings against HVF.

 

(k) HVF is a Registered Organization.

 

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.

 

ARTICLE VIII                      COVENANTS

 

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.

 

(a) HVF will comply in all material respects with all of its obligations under the Manufacturer Programs.  HVF will not take any action which would permit Hertz, the Hertz Nominee, the HFC Nominee, Hertz Vehicles LLC, HGI, the Intermediary, the Escrow Agent or any other Person to have the right to refuse to perform any of its respective obligations under any of the Collateral Agreements, the Manufacturer Programs or any other instrument or agreement included in the Collateral or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any Collateral Agreement, Manufacturer Program or any such instrument or agreement, in each case solely to the extent relating to or otherwise affecting the Collateral or the Note Obligations.

 

(b) Except as otherwise provided in Section 3.2(a) , HVF agrees that it will not, without the prior written consent of the Trustee acting at the direction of the Requisite Investors, exercise any right, remedy, power or privilege available to it with respect to any obligor under a Collateral Agreement or under any instrument or agreement included in the Collateral, take any action to compel or secure performance or observance by any such obligor of its obligations to HVF or give any consent, request, notice, direction, approval, extension or waiver with respect to any such obligor.  Subject to Section 12.2 hereof, HVF agrees that it will not, without the prior written consent of the Trustee, acting at the direction of the Requisite Indenture Investors, amend, modify, waive, supplement, terminate or surrender, or agree to any amendment, modification, supplement, termination, waiver or surrender of, the terms of any of the Related Documents or consent to the assignment of any of the Related Documents by any other party thereto (collectively, the “ Related Document Actions ”); provided , that, if any such Related Document Action does not materially adversely affect the Indenture Noteholders of one or more, but not all, Series of Indenture Notes, as evidenced by an Officer’s Certificate of HVF, any such Series of Indenture Notes that is not materially adversely affected by such Related Document Action shall be deemed not to be Outstanding for purposes of such obtaining such consent (and the related calculation of Requisite Indenture Investors shall be modified accordingly); provided , further that, if any such Related Document Action does not materially adversely affect the Indenture Noteholders, as evidenced by an Officer’s Certificate of HVF, HVF shall be entitled to effect such Related Document Action without the prior written consent of the Trustee.  For the avoidance of doubt, and notwithstanding anything herein or in any Related Document to the contrary, any amendment, modification, waiver, supplement, termination or surrender of any Related Document relating solely to a particular Series of Indenture Notes shall be deemed not to materially adversely affect the Indenture Noteholders of any other Series of Indenture Notes.  Notwithstanding the foregoing, HVF may terminate the Master Exchange Agreement and the Escrow Agreement pursuant to their respective terms at any time.

 

(c) Upon the occurrence of a Servicer Default, HVF will not, without the prior written consent of the Trustee acting at the direction of the Requisite Investors, terminate the Servicer and appoint a successor Servicer in accordance with the HVF Lease and the Collateral Agency Agreement and will terminate the Servicer and appoint a successor Servicer in accordance with the HVF Lease and the Collateral Agency Agreement if and when so directed by the Trustee acting at the direction of the Requisite Investors.

 

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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 Officer’s 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.

 

(a) HVF shall do such further acts and things, and execute and deliver to the Trustee such additional assignments, agreements, powers and instruments, as are necessary or desirable to maintain the security interest of the Trustee in the Indenture Collateral on behalf of the Noteholders and of the Collateral Agent in the HVF Vehicle Collateral as a perfected security interest subject to no prior Liens (other than Permitted Liens), to carry into effect the purposes of this Indenture or the other Related Documents (other than any Related Document relating solely to any Segregated Series of Notes) or to better assure and confirm unto the Trustee or the Noteholders their rights, powers and remedies hereunder including, without limitation, the filing of any financing or continuation statements under the UCC in effect in any jurisdiction with respect to the liens and security interests granted hereby or pursuant to the Collateral Agency Agreement.  Without limiting the generality of the foregoing provisions of this Section 8.11(a) , HVF shall take all actions that are required to maintain the security interest of the Trustee in the Indenture Collateral and of the Collateral Agent in the HVF Vehicle Collateral as a perfected security interest subject to no prior Liens (other than Permitted Liens), including, without limitation (i) filing all UCC financing statements, continuation statements and amendments thereto necessary to achieve the foregoing, (ii) causing the Lien of the Collateral Agent to be noted on all Certificates of Title relating to HVF Vehicle Collateral and (iii) causing the Servicer, as agent for the Collateral Agent, to maintain possession of such Certificates of Title for the benefit of the Collateral Agent pursuant to Section 2.6(a) of the Collateral Agency Agreement.

 

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If HVF fails to perform any of its agreements or obligations under this Section 8.11(a) , the Trustee shall, at the direction of the Required Noteholders of any Series of Notes, itself perform such agreement or obligation, and the expenses of the Trustee incurred in connection therewith shall be payable by HVF upon the Trustee’s demand therefor.  The Trustee is hereby authorized to execute and file any financing statements, continuation statements or other instruments necessary or appropriate to perfect or maintain the perfection of the Trustee’s security interest in the Indenture Collateral.

 

(b) If any amount payable under or in connection with any of the Indenture Collateral shall be or become evidenced by any promissory note, chattel paper or other instrument, such note, chattel paper or instrument shall be deemed to be held in trust and immediately pledged and physically delivered to the Trustee hereunder, and shall, subject to the rights of any Person in whose favor a prior Lien has been perfected, be duly endorsed in a manner satisfactory to the Trustee and delivered to the Trustee promptly.

 

(c) HVF will warrant and defend the Trustee’s right, title and interest in and to the Indenture Collateral and the income, distributions and proceeds thereof, for the benefit of the Trustee on behalf of the Noteholders, against the claims and demands of all Persons whomsoever.

 

(d) On or before March 31 of each calendar year, commencing with March 31, 2003, HVF shall furnish to the Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as are necessary to maintain the perfection of the lien and security interest created by this Indenture or the Collateral Agency Agreement in the Collateral and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the perfection of such lien and security interest.  Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the perfection of the lien and security interest of this Indenture in the Collateral until March 31 in the following calendar year.

 

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.

 

(a) HVF will not create, assume, incur, suffer to exist or otherwise become or remain liable in respect of any Indebtedness other than (i) Indebtedness hereunder or under any other Related Document and (ii) Indebtedness under the HVF Credit Facility, the form of which is attached as Exhibit B hereto.

 

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(b) HVF will not enter into the HVF Credit Facility unless, as a condition to the effectiveness of the HVF Credit Facility, the Trustee shall have received one or more Opinions of Counsel, subject to the assumptions and qualifications stated therein, and in a form reasonably acceptable to the Trustee, substantially to the effect that (i) the HVF Credit Facility has been duly authorized, executed and delivered by the parties thereto, and (ii) the HVF Credit Facility is a legal, valid and binding agreement of the parties thereto, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’ rights generally and to general principals of equity.

 

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 Officer’s 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:

 

(a) maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions and ensure that the funds of HVF will not be diverted to any other Person or for other than the use of HVF, nor will such funds be commingled with the funds of Hertz or any other Subsidiary or Affiliate of Hertz other than as provided in the Related Documents;

 

(b) ensure that all transactions between HVF and any of its Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’s length basis, it being understood and agreed that the transactions contemplated in the Related Documents meet the requirements of this clause (b) ;

 

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(c) to the extent that it requires an office to conduct its business, conduct its business from an office at a separate address from that of Hertz and its Affiliates (other than Hertz Vehicles LLC or any other affiliated special purpose company (other than HGI)); provided , that segregated offices in the same building shall constitute separate addresses for purposes of this clause (c) .  To the extent that HVF and any of its members or Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;

 

(d) issue separate financial statements prepared at least annually and prepared in accordance with GAAP;

 

(e)  conduct its affairs in its own name and in accordance with the HVF LLC Agreement and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special meetings appropriate to authorize all actions of HVF, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;

 

(f) not assume or guarantee any of the liabilities of Hertz or any Affiliate thereof;

 

(g) take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order to (x) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct in all material respects with respect to HVF and (y) comply in all material respects with those procedures described in such provisions which are applicable to HVF; and

 

(h) maintain at least two Independent Directors on its Board of Directors.

 

Section 8.25.  Manufacturer Programs.

 

(a) Prior to the leasing of any Program Vehicles under the HVF Lease for any model year after the 2002 model year, HVF will cause the Lessee to deliver to the Trustee, the Lessor and the Rating Agencies an Officer’s Certificate of the Lessee substantially in the form of Exhibit C .

 

(b) No later than six months following the leasing of any Program Vehicles under the HVF Lease for any model year after the 2002 model year, HVF will (x) deliver to the Trustee and the Rating Agencies an executed copy of the Manufacturer Program for such model year and (y) have received an executed Assignment Agreement with respect to such Manufacturer Program for such model year.

 

(c) Prior to the leasing of any Program Vehicles under the HVF Lease subject to a Manufacturer Program of a new Manufacturer, HVF will (i) have received an executed Assignment Agreement with respect to such Manufacturer Program and (ii) have satisfied the Rating Agency Condition with respect to each Series of Notes Outstanding with respect to the leasing of Program Vehicles subject to such Manufacturer Program under the HVF Lease.

 

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(d) HVF shall deliver to the Trustee, the Lessor and the Rating Agencies promptly following the introduction of any prospective material change in any existing Manufacturer Program or the introduction of any new Manufacturer Program by an existing Manufacturer (other than a Manufacturer Program for a new model year by an existing Manufacturer) notice of the same describing the principal terms thereof.  If there is a material change to a Manufacturer Program during a model year, HVF will satisfy the Rating Agency Condition with respect to each Series of Notes Outstanding with respect to the leasing of Program Vehicles subject to such Manufacturer Program, as so changed, pursuant to the HVF Lease.

 

(e) HVF shall deliver to the Trustee a copy of any rating confirmations required to be obtained pursuant to this Section 8.25 .

 

(f) In no event shall HVF agree, to the extent any consent of HVF is solicited or required by the Manufacturer or any assignor of such Manufacturer Program, to any change in any Manufacturer Program that is reasonably likely to materially adversely affect its rights or the rights of the Noteholders with respect to any Program Vehicle previously purchased or financed under such Manufacturer Program.

 

Section 8.26.  Disposition of HVF Vehicles.

 

(a) HVF will turn in, or cause to be turned in, each Program Vehicle to the relevant Manufacturer within the Repurchase Period therefor in accordance with the applicable Manufacturer Program unless, prior to the end of such Repurchase Period, HVF sells such Program Vehicle and receives sales proceeds thereof in cash plus, if the related Manufacturer is an Eligible Program Manufacturer, non-return incentives payable by such Manufacturer to HVF, in an amount at least equal to the Repurchase Price that HVF would have received with respect to such Program Vehicle if it had turned such Program Vehicle back to the Manufacturer.

 

(b) If a Non-Program Vehicle is returned to HVF pursuant to Section 2.5(c) of the HVF Lease, HVF will use commercially reasonable efforts to arrange for the prompt sale of such Non-Program Vehicle and to maximize the sale price thereof.

 

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.

 

ARTICLE IX                             AMORTIZATION EVENTS AND REMEDIES

 

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 ”):

 

(a) the occurrence of an Event of Bankruptcy with respect to Hertz Vehicles LLC, HGI, HVF or Hertz;

 

(b) the Securities and Exchange Commission or other regulatory body having jurisdiction reaches a final determination that Hertz Vehicles LLC, HGI or HVF is an “investment company” or is under the “control” of an “investment company” under the Investment Company Act;

 

(c) the HVF Lease is terminated for any reason;

 

(d) any Lease Payment Default shall have occurred;

 

(e) any Aggregate Asset Amount Deficiency exists and continues for a period of three Business Days;

 

(f) any Operating Lease Event of Default (other than a Lease Payment Default) shall have occurred and be continuing;

 

(g) there shall have been filed against Hertz, Hertz Vehicles LLC, HGI or HVF (i) a notice of a federal tax lien from the Internal Revenue Service, (ii) a notice of a Lien from the Pension Benefit Guaranty Corporation under Section 412(n) of the Code or Section 302(f) of ERISA for a failure to make a required installment or other payment to a Plan to which either of such sections applies or (iii) a notice of any other Lien (other than a Permitted Lien) that could reasonably be expected to attach to the assets of Hertz Vehicles LLC, HVF or any HVF Exchange Account and 30 days shall have elapsed without such notice having been effectively withdrawn or such Lien having been released or discharged;

 

(h) subject to Section 8.7(b)  herein, any of the Related Documents or any material portion thereof (other than any Related Document which relates solely to any Segregated Series of Notes) shall cease, for any reason, to be in full force and effect, enforceable in accordance with its terms or Hertz, the Hertz Nominee, the HFC Nominee, Hertz Vehicles LLC, HGI or HVF shall so assert in writing;

 

(i) any Servicer Default or any Administrator Default shall have occurred; or

 

(j) any other event shall occur which may be specified in any Series Supplement (other than a Segregated Series Supplement) as 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.

 

(a)  General .  If and whenever an Amortization Event with respect to any Series of Notes Outstanding shall have occurred and be continuing, the Trustee may and, at the written direction of the Requisite Investors shall, exercise (or direct the Collateral Agent to exercise) from time to time any rights and remedies available to it on behalf of the Noteholders under applicable law or any Related Documents (other than any Related Document or portion thereof relating solely to any Segregated Series of Notes); provided , however , that if such Amortization Event is with respect to less than all Series of Notes Outstanding, then the Trustee’s rights and remedies pursuant to the provisions of this Section 9.2 shall, to the extent not detrimental to the rights of the holders of the Series of Notes Outstanding with respect to which no Amortization Event shall have occurred, be limited to rights and remedies pertaining only to those Series of Notes with respect to which such Amortization Event has occurred and the Trustee shall exercise such rights and remedies at the written direction of Noteholders holding in excess of 50% of the aggregate Principal Amount of all such Series of Notes with respect to which such Amortization Event has occurred, to the extent that such rights and remedies relate to Collateral or the Note Obligations.  Any amounts relating to the Collateral or the Note Obligations obtained by the Trustee (or by the Collateral Agent at the direction of the Trustee) on account of or as a result of the exercise by the Trustee of any right shall be held by the Trustee as additional collateral for the repayment of Note Obligations and shall be applied as provided in Article 5 .  If so specified in the applicable Series Supplement, the Trustee may agree not to exercise any rights or remedies available to it as a result of the occurrence of an Amortization Event with respect to a Series of Notes to the extent set forth therein.

 

(b)  Liquidation Event of Default; Limited Liquidation Event of Default .  If a Liquidation Event of Default or a Limited Liquidation Event of Default shall have occurred and be continuing (other than any Limited Liquidation Event of Default relating solely to any Segregated Series of Notes), the Trustee, at the written direction of the Requisite Investors (in the case of a Liquidation Event of Default) or the Required Noteholders of the applicable Series of Notes (in the case of a Limited Liquidation Event of Default), shall direct HVF and the

 

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Collateral Agent to exercise (and HVF agrees to exercise) all rights, remedies, powers, privileges and claims of HVF relating to the Collateral against any party to any Related Documents (other than any Related Document relating solely to any Segregated Series of Notes) arising as a result of the occurrence of such Liquidation Event of Default or Limited Liquidation Event of Default, as the case may be, or otherwise, including the right or power to take any action to compel performance or observance by any such party of its obligations to HVF as such obligations relate to the Collateral and the right to terminate all or a portion of the HVF Lease and take possession of HVF Vehicles and to give any consent, request, notice, direction, approval, extension or waiver in respect of such HVF Lease, and any right of HVF to take such action independent of such direction shall be suspended.  If and whenever a Liquidation Event of Default or a Limited Liquidation Event of Default with respect to any Series of Notes Outstanding shall have occurred and be continuing, the Trustee may and, at the written direction of the Requisite Investors (in the case of a Liquidation Event of Default) or the Required Noteholders of the applicable Series of Notes (in the case of a Limited Liquidation Event of Default), shall direct HVF to terminate (a) the Nominee Power of Attorney granted to Hertz and direct the Nominee to grant a Nominee Power of Attorney to HVF, the Collateral Agent or the Trustee, as specified by the Trustee, pursuant to Section 2(c) of the Nominee Agreement, (b) the Power of Attorney granted to Hertz pursuant to Section 2.6(b) of the Collateral Agency Agreement, (c) the Hertz Nominee Power of Attorney granted to Hertz and direct the Hertz Nominee to grant a Hertz Nominee Power of Attorney to the Trustee or the Collateral Agent and/or (d) the HFC Nominee Power of Attorney granted to HFC and direct the HFC Nominee to grant a HFC Nominee Power of Attorney to the Trustee or the Collateral Agent, in each case solely to the extent such powers of attorney relate to the Collateral.

 

(c)  Manufacturer Programs and HVF Vehicles .  (i)  Upon the occurrence of a Liquidation Event of Default, the Trustee, at the written direction of the Requisite Investors, shall promptly (and in any event within any reasonably practicable period specified in such written direction) instruct the Collateral Agent to return or cause HVF to return the Program Vehicles to the related Manufacturers (after the minimum holding period specified in the Manufacturer’s Manufacturer Program and, unless otherwise directed by the Requisite Investors, so long as a Manufacturer Event of Default has not occurred and is continuing with respect to the related Manufacturer) and then, to the extent any Manufacturer fails to accept any such Program Vehicles under the terms of the applicable Manufacturer Program (or, unless otherwise directed by the Requisite Investors, if a Manufacturer Event of Default has occurred and is continuing with respect to any Manufacturer), to direct the Collateral Agent to liquidate or cause HVF to liquidate such Program Vehicles in accordance with the rights of HVF under the Related Documents and to otherwise sell or cause to be sold to third parties all Non-Program Vehicles.  Upon the occurrence of a Limited Liquidation Event of Default with respect to any Series of Notes, the Trustee, acting at the written direction of the Required Noteholders of the applicable Series of Notes, shall promptly (and in any event within any reasonably practicable period specified in such written direction) instruct the Collateral Agent to return or cause HVF to return Program Vehicles to the related Manufacturers (after the minimum holding period specified in the Manufacturer’s Manufacturer Program and, unless otherwise directed by such Required Noteholders, so long as a Manufacturer Event of Default has not occurred and is continuing with respect to the related Manufacturer) and then, to the extent any Manufacturer fails to accept any such Program Vehicles under the terms of the applicable Manufacturer Program (or, unless otherwise directed by such Required Noteholders, if a Manufacturer Event of Default has

 

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occurred and is continuing with respect to any Manufacturer), to direct the Collateral Agent to liquidate or cause HVF to liquidate such Program Vehicles in accordance with the rights of HVF under the Related Documents and to sell Non-Program Vehicles or cause Non-Program Vehicles to be sold to third parties in an amount sufficient to pay all interest and principal on such Series of Notes; provided however , that the Collateral Agent, the Trustee and HVF shall select the Program Vehicles to be returned to the related Manufacturers and the Non-Program Vehicles to be sold to third parties in a manner that does not adversely affect in any material respect the interests of the Noteholders of any Series of Notes Outstanding or any Enhancement Provider.

 

(ii)                                   In addition to, and not in limitation of, the remedies and duties of the Trustee set forth in subsection (i)  above or (iii)  below, if a Liquidation Event of Default or a Limited Liquidation Event of Default shall have occurred and be continuing, the Trustee may, and at the written direction of the Requisite Investors (in the case of a Liquidation Event of Default) or at the direction of the Required Noteholders of the applicable Series of Notes (in the case of a Limited Liquidation Event of Default) shall direct the Collateral Agent to exercise, or cause HVF to exercise, to the extent necessary, all rights, remedies, powers, privileges and claims of HVF or the Collateral Agent, to the extent such rights, remedies, powers, privileges and claims relate to the Collateral, against the Manufacturers under or in connection with the Manufacturer Programs.

 

(iii)                                In the event that either (A) an Event of Bankruptcy with respect to any Manufacturer of Program Vehicles shall have occurred and is continuing and such Manufacturer shall fail to repurchase any Program Vehicles in accordance with the terms of the related Manufacturer Program and a Trust Officer has actual knowledge thereof or (B) if there has occurred and is continuing any other Manufacturer Event of Default and a Trust Officer has knowledge thereof, the Trustee shall direct the Collateral Agent to sell or cause HVF to sell any and all Program Vehicles covered by the related Manufacturer Program of such Manufacturer for the highest purchase price offered and, promptly upon receipt, to deposit the proceeds of such sale into the Collection Account for allocation hereunder; provided however , that if any event described in clause (A)  or (B)  above occurs, HVF shall have three Business Days from such occurrence to redesignate such Program Vehicles as Non-Program Vehicles in accordance with, and subject to the terms and conditions of, Section 2.6 of the HVF Lease before the Trustee may direct the Collateral Agent to sell any such Program Vehicles.

 

(d)  Failure of HVF or the Collateral Agent to Take Action .  If (i) HVF or the Collateral Agent shall have failed, within 10 Business Days of receiving the direction of the Trustee, to take commercially reasonable action to accomplish directions of the Trustee given pursuant to clauses (b)  or  (c)  above, (ii) HVF or the Collateral Agent refuses to take such action or (iii) the Trustee reasonably determines that such action must be taken immediately, the Trustee may (and at the written direction of the Required Noteholders of the affected Series of Notes (with respect to any Limited Liquidation Event of Default) or the Requisite Investors (with respect to any Liquidation Event of Default) shall) take such previously directed action (and any related action as permitted under this Indenture thereafter determined by the Trustee to be appropriate without the need under this provision or any other provision under this Indenture to direct HVF or the Collateral Agent to take such action).  The Trustee may direct the Collateral Agent to institute legal proceedings for the appointment of a receiver or receivers to take

 

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possession of the HVF Vehicles pending the sale thereof pursuant either to the powers of sale granted by this Indenture, the Collateral Agency Agreement and the other Related Documents or to a judgment, order or decree made in any judicial proceeding for the foreclosure or involving the enforcement of this Indenture.

 

(e)  Sale of Collateral .  Upon any sale of any of the Collateral directly by the Trustee, or by the Collateral Agent at the direction of the Trustee, whether made under the power of sale given under this Section 9.2 or under judgment, order or decree in any judicial proceeding for the foreclosure or involving the enforcement of this Indenture:

 

(i)                        the Trustee, any Indenture Noteholder and/or any Enhancement Provider may bid for and purchase the property being sold, and upon compliance with the terms of sale may hold, retain and possess and dispose of such property in its own absolute right without further accountability;

 

(ii)                     the Trustee, or the Collateral Agent at the direction of the Trustee, may make and deliver to the purchaser or purchasers a good and sufficient deed, bill of sale and instrument of assignment and transfer of the property sold;

 

(iii)                  all right, title, interest, claim and demand whatsoever, either at law or in equity or otherwise, of HVF of, in and to the property so sold shall be divested; and such sale shall be a perpetual bar both at law and in equity against HVF, its successors and assigns, and against any and all Persons claiming or who may claim the property sold or any part thereof from, through or under HVF or its successors or assigns;

 

(iv)                 the receipt of the Trustee or of the officer thereof making such sale shall be a sufficient discharge to the purchaser or purchasers at such sale for his or their purchase money, and such purchaser or purchasers, and his or their assigns or personal representatives, shall not, after paying such purchase money and receiving such receipt of the Trustee or of such officer therefor, be obliged to see to the application of such purchase money or be in any way answerable for any loss, misapplication or nonapplication thereof; and

 

(v)                    to the extent that it may lawfully do so, HVF agrees that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any appraisal, valuation, stay, extension or redemption laws, or any law permitting it to direct the order in which the HVF Vehicles shall be sold, now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance or enforcement of this Indenture.

 

(f)  Additional Remedies .  In addition to any rights and remedies now or hereafter granted hereunder or under applicable law with respect to the Collateral, the Trustee shall (subject to the foregoing provisions in respect of the HVF Vehicles) have all of the rights and remedies of a secured party under the UCC as enacted in any applicable jurisdiction.

 

(g)  Amortization Event .  Upon the occurrence of an Amortization Event with respect to one or more, but not all, Series of Notes Outstanding, the Trustee shall exercise all remedies hereunder to the extent necessary to pay all interest on and principal of the related

 

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Series of Notes; provided that any such actions shall not adversely affect in any material respect the interests of the Noteholders of any Series of 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.

 

(h)  Segregated Series .  Upon the occurrence of an Amortization Event relating to any Outstanding Segregated Series of Notes, the Trustee shall limit any recourse hereunder to the related Series-Specific Collateral in satisfying the payment of interest and principal due on such Segregated Series of Notes.  For all purposes hereunder and for the avoidance of doubt, the Required Noteholders with respect to any Segregated Series of Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Series-Specific Collateral relating to such Segregated Series of Notes; provided that any such actions shall not adversely affect in any material respect the interests of the Segregated Noteholders of any other Segregated Series of Notes Outstanding and shall not adversely affect in any material respect the interests of the Noteholders.

 

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:

 

(a) the Indenture Noteholder gives to the Trustee written notice of a continuing Amortization Event with respect to such Series of Indenture Notes;

 

(b) the Indenture Noteholders of at least 25% of the aggregate Principal Amount of all then Outstanding Indenture Notes of such Series of Indenture Notes make a written request to the Trustee to pursue the remedy;

 

(c) such Indenture Noteholder or Indenture Noteholders offer and, if requested, provide to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense;

 

(d) the Trustee does not comply with the request within 60 days after receipt of the request and the offer and, if requested, the provision of indemnity; and

 

(e) during such 60-day period the Required Noteholders of such Series of Indenture Notes do not give the Trustee a direction inconsistent with the request.

 

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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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ARTICLE X                                 THE TRUSTEE

 

Section 10.1.  Duties of the Trustee.

 

(a) If an Amortization Event has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs; provided however , that the Trustee shall have no liability in connection with any action or inaction taken, or not taken, by it upon the deemed occurrence of an Amortization Event of which a Trust Officer has not received written notice.  The preceding sentence shall not have the effect of insulating the Trustee from liability arising out of the Trustee’s negligence or willful misconduct.

 

(b) Except during the occurrence and continuance of an Amortization Event:

 

(i)                        The Trustee undertakes to perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(ii)                     In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; however, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine such certificates or opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).  Except as otherwise provided, the delivery of reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including HVF’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).

 

(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(i)                        This clause does not limit the effect of clause (b)  of this Section 10.1 .

 

(ii)                     The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts.

 

(iii)                  The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 9.3 .

 

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(iv)                 The Trustee shall not be charged with knowledge of any default by any Person in the performance of its obligations under any Related Document, unless a Trust Officer receives written notice of such failure from HVF, Hertz or any Indenture Noteholder or otherwise has actual knowledge thereof.

 

(d) Notwithstanding anything to the contrary contained in this Indenture or any of the Related Documents, no provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability (financial or otherwise) if there are reasonable grounds (as determined by the Trustee in its sole discretion) for believing that the repayment of such funds is not reasonably assured to it by the security afforded to it by the terms of this Indenture.  The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any risk, loss, liability or expense.

 

(e) In the event that the Paying Agent or the Registrar shall fail to perform any obligation, duty or agreement in the manner or on the day required to be performed by the Paying Agent or the Registrar, as the case may be, under this Indenture, the Trustee shall be obligated as soon as practicable upon actual knowledge of a Trust Officer thereof and receipt of appropriate records and information, if any, to perform such obligation, duty or agreement in the manner so required.

 

(f) Subject to Section 10.3 , all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law or the Related Documents.

 

(g) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct of, affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 10.1 .

 

(h) Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto and, unless directed by the Required Noteholders of any Series of Notes Outstanding, the Trustee shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any securities interest in the Collateral.  The Trustee shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission or any carrier, forwarding agency or other agent or bailee selected by the Trustee with due care in good faith.

 

(i) The Trustee shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee, for the validity or sufficiency of the

 

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Collateral or any agreement or assignment contained therein, for the validity of the title of HVF to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral.  Except as otherwise provided herein, the Trustee shall have no duty to inquire as to the performance or observance of any of the terms of this Indenture or the Related Documents by HVF or the Collateral Agent.

 

Section 10.2.  Rights of the Trustee.

 

Except as otherwise provided by Section 10.1 :

 

(a) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting based upon any document believed by it to be genuine and to have been signed by or presented by the proper person.

 

(b) The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

(c) The Trustee may act through agents, custodians and nominees and shall not be liable for any misconduct or negligence on the part of, or for the supervision of, any such agent, custodian or nominee so long as such agent, custodian or nominee is appointed with due care.  The appointment of agents (other than legal counsel) pursuant to this subsection (c)  shall be subject to the prior consent of HVF, which consent shall not be unreasonably withheld.

 

(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.

 

(e) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture or any Series Supplement, or to institute, conduct or defend any litigation hereunder or in relation hereto, at the request, order or direction of any of the Indenture Noteholders, pursuant to the provisions of this Indenture or any Series Supplement, unless such Indenture Noteholders shall have offered to the Trustee reasonable security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which may be incurred therein or thereby; nothing contained herein shall, however, relieve the Trustee of the obligations, upon the occurrence of a default by the Lessee, the Servicer, the Hertz Nominee, the HFC Nominee, Hertz Vehicles LLC, HGI or HVF (which has not been cured), to exercise such of the rights and powers vested in it by this Indenture or any Series Supplement, and to use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

 

(f) The Trustee shall not be bound to make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by the Required Noteholders of any Series of Indenture Notes. If the Trustee is so requested by the Required Noteholders or determines in its own discretion to make such further

 

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inquiry or investigation into such facts or matters as it sees fit, the Trustee shall be entitled, upon reasonable notice and upon reasonable request, to examine the books, records and premises of HVF, personally or by agent or attorney, at the sole cost of HVF and the Trustee shall incur no liability by reason of such inquiry or investigation.

 

(g) The Trustee shall not be liable for any losses or liquidation penalties in connection with Permitted Investments, unless such losses or liquidation penalties were incurred through the Trustee’s own willful misconduct, negligence or bad faith.

 

(h) The Trustee shall not be liable for the acts or omissions of any successor to the Trustee so long as such acts or omissions were not the result of the negligence, bad faith or willful misconduct of the predecessor Trustee.

 

(i) The Trustee shall not be required to take any action pursuant to any request or direction of HVF unless such request or direction is sufficiently evidenced by a Company Request or Company Order.

 

(j) Whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer’s Certificate.

 

(k) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other person employed to act hereunder.

 

(l) The Trustee may request that HVF deliver an incumbency certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which incumbency certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.

 

(m) In acting under this Base Indenture and any Series Supplement, the Trustee may obtain a written direction from the Servicer to clarify the identification of any Collateral or Series-Specific Collateral and the related beneficiaries thereof.

 

(n) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware services); it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

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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.

 

(a) HVF shall promptly pay to the Trustee from time to time compensation for its acceptance of this Indenture and services hereunder as the Trustee and HVF shall from time to time agree in writing.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  HVF shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services.  Such expenses shall include (i) the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel and (ii) the reasonable expenses of the Trustee’s agents.

 

(b) HVF shall not be required to reimburse any expense or indemnify the Trustee against any loss, liability, or expense incurred by the Trustee through the Trustee’s own willful misconduct or negligence.

 

(c) When the Trustee incurs expenses or renders services after an Amortization Event occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under the Bankruptcy Code.

 

(d) The provisions of this Section 10.5 shall survive the termination of this Indenture and the resignation and removal of the Trustee.

 

Section 10.6.  Replacement of the Trustee.

 

(a) A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 10.6 .

 

(b) The Trustee may, after giving forty-five (45) days prior written notice to HVF, each Indenture Noteholder and each Rating Agency, resign at any time and be discharged from the trust hereby created; provided however , that no such resignation of the Trustee shall be effective until a successor trustee has assumed the obligations of the Trustee hereunder.  The Requisite Indenture Investors and Requisite Investors, acting together, may remove the Trustee

 

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with respect to the trust hereby created at any time by so notifying the Trustee and HVF.  So long as no Amortization Event has occurred and is continuing with respect to any Series of Outstanding Indenture Notes, HVF may remove the Trustee at any time.  HVF shall remove the Trustee if:

 

(i)                        the Trustee fails to comply with Section 10.8 ;

 

(ii)                     the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under the Bankruptcy Code;

 

(iii)                  a custodian or public officer takes charge of the Trustee or its property; or

 

(iv)                 the Trustee becomes incapable of acting.

 

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.

 

(c) If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, at the expense of HVF, HVF or any Indenture Noteholder may petition any court of competent jurisdiction for the appointment of a successor Trustee.

 

(d) If the Trustee after written request by any Indenture Noteholder fails to comply with Section 10.8 , such Indenture Noteholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.

 

(e) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee or removed Trustee and to HVF.  Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture and any Series Supplement (unless otherwise provided in a Series Supplement relating to a Segregated Series).  The successor Trustee shall mail a notice of its succession to Indenture Noteholders.  The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided , however , that all sums owing to the retiring Trustee hereunder have been paid.  Notwithstanding replacement of the Trustee pursuant to this Section 10.6 , HVF’s obligations under Section 10.5 shall continue for the benefit of the retiring Trustee.

 

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.

 

(a) There shall at all times be a Trustee hereunder which shall (i) be a corporation organized and doing business under the laws of the United States of America or of any state thereof authorized under such laws to exercise corporate trustee power and (ii) be subject to supervision or examination by Federal or state authority and shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.

 

(b) At any time the Trustee shall cease to satisfy the eligibility requirements of Section 10.8(a)  above, the Trustee shall resign immediately in the manner and with the effect specified in Section 10.6 .

 

Section 10.9.  Appointment of Co-Trustee or Separate Trustee.

 

(a) Notwithstanding any other provisions of this Indenture or any Series Supplement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Indenture Collateral may at the time be located, the Trustee shall have the power and may execute and deliver all instruments to appoint one or more persons to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the Indenture Collateral, and to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders, such title to the Indenture Collateral, or any part thereof, and, subject to the other provisions of this Section 10.9 , such powers, duties, obligations, rights and trusts as the Trustee may consider necessary or desirable.  No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 10.8 and no notice to Indenture Noteholders of the appointment of any co-trustee or separate trustee shall be required under Section 10.6 .  No co-trustee shall be appointed without the consent of HVF unless such appointment is required as a matter of state law or to enable the Trustee to perform its functions hereunder.

 

(b) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:

 

(i)                        The Indenture Notes of each Series of Indenture Notes shall be authenticated and delivered solely by the Trustee or an authenticating agent appointed by the Trustee;

 

(ii)                     All rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed, the Trustee shall be incompetent or unqualified to perform, such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Indenture Collateral or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Trustee;

 

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(iii)                  No trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and

 

(iv)                 The Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee.

 

(c) Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as effectively as if given to each of them.  Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture and the conditions of this Article 10.  Each separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture and any Series Supplement, specifically including every provision of this Indenture or any Series Supplement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee.  Every such instrument shall be filed with the Trustee and a copy thereof given to HVF.

 

(d) Any separate trustee or co-trustee may at any time constitute the Trustee, its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect to this Indenture or any Series Supplement on its behalf and in its name.  If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.

 

Section 10.10.  Representations and Warranties of Trustee.

 

The Trustee represents and warrants to HVF and the Indenture Noteholders that:

 

(i)                        The Trustee is a national banking association, organized, existing and in good standing under the laws of the State of New York;

 

(ii)                     The Trustee has full power, authority and right to execute, deliver and perform this Indenture and any Series Supplement issued concurrently with this Indenture and to authenticate the Indenture Notes, and has taken all necessary action to authorize the execution, delivery and performance by it of this Indenture and any Series Supplement issued concurrently with this Indenture and to authenticate the Indenture Notes;

 

(iii)                  This Indenture has been duly executed and delivered by the Trustee; and

 

(iv)                 The Trustee meets the requirements of eligibility as a trustee hereunder set forth in Section 10.8 .

 

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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.

 

ARTICLE XI                             DISCHARGE OF INDENTURE

 

Section 11.1.  Termination of HVF’s Obligations.

 

(a) This Indenture shall cease to be of further effect (except that (i) HVF’s obligations under Section 10.5 and Section 10.11 , (ii) the Trustee’s and Paying Agent’s obligations under Section 11.3 and (iii) the Indenture Noteholders’ and the Trustee’s obligations under Section 13.15 shall survive) when all Outstanding Indenture Notes theretofore authenticated and issued (other than destroyed, lost or stolen Indenture Notes which have been replaced or paid) have been delivered to the Trustee for cancellation and HVF has paid all sums payable hereunder.

 

(b) In addition, except as may be provided to the contrary in any Series Supplement, HVF may terminate all of its obligations under this Indenture if:

 

(i)                        HVF irrevocably deposits in trust with the Trustee or at the option of the Trustee, with a trustee reasonably satisfactory to the Trustee and HVF under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, money or U.S. Government Obligations in an amount sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay, when due, principal and interest on the Indenture Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder; provided however , that (1) the trustee of the irrevocable trust shall have been irrevocably instructed to pay such money or the proceeds of such U.S. Government Obligations to the Trustee and (2) the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Obligations to the payment of said principal and interest with respect to the Indenture Notes;

 

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(ii)                     HVF delivers to the Trustee an Officer’s Certificate of HVF stating that all conditions precedent to satisfaction and discharge of this Indenture have been complied with, and an Opinion of Counsel to the same effect;

 

(iii)                  HVF delivers to the Trustee an Officer’s Certificate of HVF stating that no Potential Amortization Event or Amortization Event shall have occurred and be continuing on the date of such deposit; and

 

(iv)                 the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding shall have been satisfied with respect to such deposit and termination of obligations pursuant to this Section 11.1 .

 

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.

 

(c) After such irrevocable deposit made pursuant to Section 11.1(b)  and satisfaction of the other conditions set forth herein, the Trustee upon request shall acknowledge in writing the discharge of HVF’s obligations under this Indenture except for those surviving obligations specified above.

 

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 issuer’s option.

 

(d) The representations and warranties set forth in Article 7 of this Indenture shall survive for so long as any Series of Notes are Outstanding, and may not be waived with respect to any Series of Notes Outstanding.

 

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.

 

ARTICLE XII                         AMENDMENTS

 

Section 12.1.  Without Consent of the Noteholders.

 

(a) Without the consent of any Indenture Noteholder, HVF and the Trustee, at any time and from time to time, may enter into one or more Supplements hereto, in form satisfactory to the Trustee, for any of the following purposes:

 

(i)                        to create a new Series of Indenture Notes (including, without limitation, making such modifications to this Base Indenture and the other Related Documents as may be required to issue a Segregated Series of Notes);

 

(ii)                     to add to the covenants of HVF for the benefit of any Indenture Noteholders (and if such covenants are to be for the benefit of less than all Series of Indenture Notes, stating that such covenants are expressly being included solely for the benefit of such Series of Indenture Notes) or to surrender any right or power herein conferred upon HVF ( provided , however , that HVF will not pursuant to this subsection 12.1(a)(ii)  surrender any right or power it has under the Related Documents;

 

(iii)                  to mortgage, pledge, convey, assign and transfer to the Trustee any property or assets as security for the Notes or any Segregated Series of Notes and to specify the terms and conditions upon which such property or assets are to be held and dealt with by the Trustee and to set forth such other provisions in respect thereof as may be required by the Indenture or as may, consistent with the provisions of the Indenture, be deemed appropriate by HVF and the Trustee, or to correct or amplify the description of any such property or assets at any time so mortgaged, pledged, conveyed and transferred to the Trustee;

 

(iv)                 to cure any ambiguity, defect, or inconsistency or to correct or supplement any provision contained herein or in any Series Supplement or in any Indenture Notes issued hereunder;

 

(v)                    to provide for uncertificated Indenture Notes in addition to certificated Indenture Notes;

 

(vi)                 to add to or change any of the provisions of the Indenture to such extent as shall be necessary to permit or facilitate the issuance of Indenture Notes in bearer form, registrable or not registrable as to principal, and with or without interest coupons;

 

(vii)              to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Indenture Notes of one or more Series of Indenture Notes and to add to or change any of the provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or

 

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(viii)           to correct or supplement any provision herein or in any Series Supplement which may be inconsistent with any other provision herein or therein or to make any other provisions with respect to matters or questions arising under this Indenture or in any Series Supplement;

 

provided , however , that, as evidenced by an Officer’s Certificate of HVF, such action shall not adversely affect in any material respect the interests of any Indenture Noteholder or Enhancement Provider.

 

(b) Upon the request of HVF and receipt by the Trustee of the documents described in Section 2.2 , the Trustee shall join with HVF in the execution of any Series Supplement authorized or permitted by the terms of this Indenture and shall make any further appropriate agreements and stipulations which may be therein contained, but the Trustee shall not be obligated to enter into such Series Supplement which affects its own rights, duties or immunities under this Indenture or otherwise.

 

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 Officer’s 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 Officer’s 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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(i)                        any modification of this Section 12.2 , any requirement hereunder that any particular action be taken by Indenture Noteholders holding the relevant percentage in Principal Amount of the Indenture Notes or any change in the definition of the terms “Aggregate Asset Amount”, “Aggregate Asset Amount Deficiency”, “Eligible Manufacturer Program”, “Eligible Manufacturer”, “Eligible Program Manufacturer”, “Ineligible Asset Amount”, “Limited Liquidation Event of Default”, “Liquidation Event of Default” or “Manufacturer Program” or the applicable amount of Enhancement shall require the consent of each Indenture Noteholder materially adversely affected thereby;

 

(ii)                     any amendment, waiver or other modification that would (A) extend the due date for, or reduce the amount of any scheduled repayment or prepayment of principal of or interest on any Indenture Note (or reduce the principal amount of or rate of interest on any Indenture Note) shall require the consent of each materially adversely affected Indenture Noteholder; (B) affect adversely in any material respect the interests, rights or obligations of any Indenture Noteholder individually in comparison to any other Indenture Noteholder shall require the consent of such Indenture Noteholder; or (C) amend or otherwise modify any Amortization Event shall require the consent of each Indenture Noteholder materially adversely affected thereby;

 

(iii)                  any amendment, waiver or other modification that would (A) approve the assignment or transfer by HVF of any of its rights or obligations hereunder or under any other Related Documents to which it is a party, except pursuant to the express terms hereof or thereof; or (B) release any obligor under any Related Documents to which it is a party, except pursuant to the express terms hereof or of such Related Document, shall require in each case the consent of Indenture Noteholders holding not less than 66 2 / 3 % of the Aggregate Indenture Principal Amount; provided , however , that any such amendment, waiver, or other modification relating to a Related Document that relates solely to a single Series of Indenture Notes (as evidenced by an Officer’s Certificate of HVF) shall require only the consent of Indenture Noteholders holding not less than 66 2 / 3 % of the Principal Amount of such Series of Indenture Notes; provided , further that with respect to any such amendment, waiver or other modification relating to a Related Document or portion thereof that does not adversely affect in any material respect a Series of Indenture Notes, as evidenced by an Officer’s Certificate of HVF, then such Series of Indenture Notes shall be deemed not to be outstanding for purposes of the foregoing consent (and the calculation of Aggregate Indenture Principal Amount shall be modified accordingly);

 

(iv)                 any amendment, waiver or other modification that would amend or otherwise modify any Servicer Default shall require the consent of Noteholders holding not less than 66 2 / 3 % of the Aggregate Principal Amount.

 

(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 Noteholder’s 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 Officer’s 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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ARTICLE XIII                     MISCELLANEOUS

 

Section 13.1.  Notices.

 

(a) Any notice or communication by HVF or the Trustee to the other shall be in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to the other’s address:

 

If to HVF:

 

 

 

Hertz Vehicle Financing LLC

 

c/o

The Hertz Corporation

 

 

225 Brae Boulevard

 

 

Park Ridge, NJ 07656

 

 

 

Attn:    Treasury Department

 

Phone:    (201) 307-2000

 

Fax:    (201) 307-2746

 

 

 

with a copy to the Administrator:

 

 

 

The Hertz Corporation

 

225 Brae Boulevard

 

Park Ridge, NJ 07656

 

 

 

Attn:    Treasury Department

 

Phone:    (201) 307-2000

 

Fax:    (201) 307-2746

 

 

 

If to the Trustee:

 

 

 

2 North LaSalle

 

Chicago, Illinois 60602

 

Attn:    Corporate Trust Administrator — Structured Finance

 

Phone:    (312) 827-8569

 

Fax:    (312) 827-8562

 

 

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.

 

(b) Where the Indenture provides for notice to Indenture Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if sent in writing and mailed, first-class postage prepaid, to each Indenture Noteholder affected by such event, at its address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed (if any) for the giving of such notice.  In any case where notice to an Indenture Noteholder is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Indenture Noteholder shall affect the sufficiency of such notice with respect to other Indenture Noteholders, and any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given.  Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.  Waivers of notice by Indenture Noteholders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

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 Officer’s 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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(a) a statement that the Person giving such certificate has read such covenant or condition;

 

(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements contained in such certificate are based;

 

(c) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and

 

(d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.

 

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 Officer’s 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 & Poor’s 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.

 

 

HERTZ VEHICLE FINANCING LLC,

 

as Issuer

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Vice President & Treasurer

 

 

 

 

 

THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,

 

as Trustee

 

 

 

 

 

By:

/s/ John D. Ask

 

 

Name: John D. Ask

 

 

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 HVF’s 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 Hertz’s rights, title and interest in and to such Manufacturer’s 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 Hertz’s rights, title and interest in and to such Manufacturer’s 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 HFC’s rights, title and interest in and to such Manufacturer’s 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 HVF’s rights, title and interest therein and (c) assigning to the Collateral Agent on behalf of Hertz HGI’s 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 Manufacturer’s 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 Administration—Structured 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 Manufacturer’s 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 Moody’s 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 Moody’s, then the rating of the entity specified by the Rating Agencies shall apply, or (ii) with respect to which the Rating Agency Condition with respect to each Series of Notes Outstanding shall have been satisfied; provided , however , that 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 HVF’s 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 Servicer’s 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 Manufacturer’s Manufacturer Program or the failure of such Manufacturer’s 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 Month’s 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 Vehicle’s 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 HVF’s 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.

 

Moody’s ” means Moody’s 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.

 

Officer’s 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 Manufacturer’s Manufacturer Program is a Guaranteed Depreciation Program, such Manufacturer or any related auction dealers) shall have failed to pay when due under such Manufacturer’s 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):

 

(i)  obligations the full and timely payment of which are to be made by or is fully guaranteed by the United States of America other than financial contracts whose value depends on the values or indices of asset values;

 

(ii)  demand deposits of, time deposits in, or certificates of deposit issued by, any depositary institution or trust company incorporated under the laws of the United States of America or any state thereof whose short-term debt is rated “P-1” by Moody’s, “A-1+” by S&P (or as otherwise agreed to by S&P) and, if rated by Fitch, “F1+” by Fitch (or as otherwise agreed to by Fitch) and subject to supervision and examination by

 

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Federal or state banking or depositary institution authorities; provided , however , that at the earlier of (x) the time of the investment and (y) the time of the contractual commitment to invest therein, the certificates of deposit or short-term deposits, if any, or long-term unsecured debt obligations (other than such obligation whose rating is based on collateral or on the credit of a Person other than such institution or trust company) of such depositary institution or trust company shall have a credit rating from S&P of “A-1+” (or as otherwise agreed to by S&P), a credit rating from Moody’s of “P-1” and, if rated by Fitch, a credit rating from Fitch of “F-1+” (or as otherwise agreed to by Fitch) in the case of certificates of deposit or short-term deposits, or a rating from S&P not lower than “AA,” a rating from Moody’s not lower than “Aa2” and, if rated by Fitch, a rating from Fitch not lower than “AA” in the case of long-term unsecured debt obligations;

 

(iii)  commercial paper having, at the earlier of (x) the time of the investment and (y) the time of the contractual commitment to invest therein, a rating from S&P of “A-1+” (or as otherwise agreed to by S&P), a rating from Moody’s of “P-1” and, if rated by Fitch, a rating from Fitch of “F-1+” (or as otherwise agreed to by Fitch);

 

(iv)  bankers’ acceptances issued by any depositary institution or trust company described in clause (ii)  above;

 

(v)  investments in money market funds rated “AAAm” by S&P, “Aaa” by Moody’s and, if rated by Fitch, “AAA” by Fitch, or otherwise approved in writing by S&P, Moody’s and Fitch;

 

(vi)  Eurodollar time deposits having a credit rating from S&P of “A-1+” (or as otherwise agreed to by S&P), a credit rating from Moody’s of “P-1” and, if rated by Fitch, a credit rating from Fitch of “F-1+” (or as otherwise agreed to by Fitch);

 

(vii)  repurchase agreements involving any of the Permitted Investments described in clauses (i)  and (vi)  above and the certificates of deposit described in clause (ii)  above which are entered into with a depository institution or trust company, having a commercial paper or short-term certificate of deposit rating of “A-1+” by S&P (or as otherwise agreed to by S&P), “P-1” by Moody’s and, if rated by Fitch, “F-1+” by Fitch (or as otherwise agreed to by Fitch) or which otherwise is approved as to collateralization by the Rating Agencies; and

 

(viii)  any other instruments or securities, if the Rating Agencies confirm in writing that the investment in such instruments or securities will not adversely affect any ratings with respect to any Series of Indenture Notes.

 

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’, materialmen’s, landlords’, warehousemen’s 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 banker’s 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 Moody’s 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 Moody’s 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 Moody’s, 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 & Poor’s ” means Standard & Poor’s 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 Servicer’s 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 Officer’s Certificate this        day of                           ,         .

 

 

 

 

 

Name:

 

Title:

 



 

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.

 

5



 

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 Borrower’s 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.

 

6



 

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,

 

7



 

all governmental bodies, the noncompliance with which would be materially adverse to the conduct of Borrower’s 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 Borrower’s behalf is false or misleading in any material respect; (d) Borrower becomes insolvent, or a receiver is appointed for any part of Borrower’s 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.

 

8


 

SECTION 14.02.                                         The enumeration of Lender’s 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

 

9



 

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                     ,         .

 

 

THE HERTZ CORPORATION,

 

 

 

 

by

 

 

 

 

Name:

 

 

 

Title:

 

 

 

 

 

HERTZ VEHICLE FINANCING LLC,

 

 

 

 

by

 

 

 

 

Name:

 

 

 

Title:

 

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EXHIBIT A

 



 

                            ,          

 

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 Lender’s 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 Borrower’s

 



 

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 Borrower’s behalf is false or misleading in any material respect; (d) Borrower becomes insolvent, or a receiver is appointed for any part of Borrower’s 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.                                Lender’s 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.

 

[THE BALANCE OF THIS PAGE LEFT INTENTIONALLY BLANK]

 

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IN WITNESS WHEREOF, Borrower has executed this Loan Note as of the       th day of                           ,         .

 

HERTZ VEHICLE FINANCING LLC

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

 

Received and acknowledged by

 

THE HERTZ CORPORATION

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

Date:

 

 

 

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EXHIBIT C
TO BASE INDENTURE

FORM OF OFFICER’S 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    .

 

 

 

 

 

[Name]

 

[Title]

 




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 GM’s obligations (other than any immaterial obligations and any obligations solely in respect of Old GM’s 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 Chrysler’s obligations (other than any immaterial obligations and any obligations solely in respect of Old Chrysler’s 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 Moody’s 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 Moody’s, 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 GM’s 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 & Poor’s and Moody’s 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 Officer’s 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

 

10



 

versa, and the masculine gender shall include the feminine and neuter and the neuter shall include the masculine and feminine.

 

11



 

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.

 

 

HERTZ VEHICLE FINANCING LLC,

 

 

 

by

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Vice President & Treasurer

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as successor to BNY MIDWEST TRUST COMPANY, as Trustee,

 

 

 

by

/s/ John D. Ask

 

 

Name: John D. Ask

 

 

Title: Senior Associate

 

12



 

AGREED, ACKNOWLEDGED AND CONSENTED:

 

 

MBIA INSURANCE CORPORATION,

 

by

/s/ Brian J. Cooney

 

Name: Brian J. Cooney

 

Title: Director

 

 

13




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”.

 

2



 

(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 GM’s obligations (other than any immaterial obligations and any obligations in respect of Old GM’s 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 Chrysler’s obligations (other than any immaterial obligations and any obligations in respect of Old Chrysler’s Manufacturer Program) shall be deemed to have been manufactured by Chrysler.”

 

3



 

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 Moody’s 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 Moody’s, 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 GM’s 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.”

 

4



 

“‘ 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.”

 

5



 

(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:

 

7


 

“‘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 & Poor’s and Moody’s 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 Officer’s 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.

 

9



 

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

 

10



 

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.

 

11



 

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.

 

 

HERTZ VEHICLE FINANCING LLC,

 

 

 

by

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Vice President & Treasurer

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as successor to BNY MIDWEST TRUST COMPANY, as Trustee,

 

 

 

by

/s/ John D. Ask

 

 

Name: John D. Ask

 

 

Title: Senior Associate

 

12



 

AGREED, ACKNOWLEDGED AND CONSENTED:

 

 

AMBAC ASSURANCE CORPORATION,

 

by

/s/ Anthony Nocera

 

Name: Anthony Nocera

 

Title: First Vice President

 

 

13




Exhibit 4.9.7

 

EXECUTION VERSION

 

 

 

 

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

 

 

 



 

Table of Contents

 

 

Page

 

 

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. Lessee’s Right to Purchase Vehicles

5

2.5. Lessor’s 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. Manufacturer’s Warranties

18

 

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Table of Contents

(continued)

 

 

Page

 

 

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

 

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Table of Contents

(continued)

 

 

Page

 

 

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

 

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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 Hertz’s 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 HFC’s 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 ”), Lessee’s wholly owned subsidiary, in connection with the daily equipment rental business of HERC, or by Hertz or HERC’s 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.

 

(b)            If, notwithstanding the intent of the parties to this Agreement, this Agreement is characterized by any third party as a financing arrangement or as otherwise not constituting a “true lease,” then it is the intention of the parties that this Agreement shall constitute a security agreement under applicable law, and, to secure all of its obligations under this Agreement, the Lessee hereby grants to the Lessor a security interest in all of the Lessee’s right, title and interest, if any, in and to all of the following assets, property and interests in property, whether now owned or hereafter acquired or created:

 

(i)             the rights of the Lessee under this Agreement, as the same may be amended, modified or supplemented from time to time in accordance with its terms, and each Supplemental Document (other than the Manufacturer Programs) (the “ Lessee Agreements ”), including, without limitation, (a) all monies, if any, due and to become due to the Lessee under or in connection with any of the Lessee Agreements, whether payable as rent, fees, expenses, costs, indemnities, insurance recoveries, damages for the breach of any of the Lessee Agreements or otherwise, and (b) all rights, remedies, powers, privileges and claims of the Lessee against any other party under or with respect to the Lessee Agreements (whether arising pursuant to the terms of such Lessee Agreements or otherwise available to the Lessee at law or in equity), including the right to enforce any of the Lessee Agreements and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Lessee Agreements or the obligations and liabilities of any party thereunder, (c) all liens and property from time to time purporting to secure payment of the obligations and liabilities of the Lessee arising under or in connection with the Lessee Agreements,

 

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together with any documents or agreements describing any collateral securing such obligations or liabilities, and (d) all guarantees, insurance and other agreements or arrangements of whatever character from time to time supporting or securing payment of such obligations and liabilities of the Lessee pursuant to the Lessee Agreements;
 
(ii)            all HVF Vehicles which, notwithstanding that this Agreement is intended to convey only a leasehold interest, are determined to be owned by the Lessee, and all Certificates of Title with respect to the HVF Vehicles;
 
(iii)           all right, title and interest of the Lessee in and to any proceeds from the sale of HVF Vehicles which, notwithstanding that this Agreement is intended to convey only a leasehold interest, are determined to be owned by the Lessee, including all monies due in respect of such HVF Vehicles, whether payable as the purchase price of such HVF Vehicles or as fees, expenses, costs, indemnities, insurance recoveries or otherwise;
 
(iv)           all payments under insurance policies (whether or not the Lessor, the Collateral Agent or the Trustee is named as the loss payee thereof) with respect to the HVF Vehicles or any warranty payable by reason of loss or damage to, or otherwise with respect to, any of the HVF Vehicles;
 
(v)            all additional property relating to the HVF Vehicles that may from time to time hereafter be subjected to the grant and pledge under this Agreement, as same may be modified or supplemented from time to time, by the Lessee or by anyone on its behalf; and
 
(vi)           all Proceeds of any and all of the foregoing including, without limitation, payments under insurance (whether or not the Lessor is named as the loss payee thereof) and cash.
 

(c)            To secure the Note Obligations, the Lessee hereby grants to the Collateral Agent on behalf of the Noteholders, a first priority security interest in all of the Lessee’s right, title and interest, if any, in and to all of the collateral described in Section 2(b) above, whether now owned or hereafter acquired or created.  Upon the occurrence of a Liquidation Event of Default or a Limited Liquidation Event of Default with respect to any Series of Notes Outstanding and subject to the provisions of the Related Documents, the Collateral Agent shall have all of the rights and remedies of a secured party, including, without limitation, the rights and remedies granted under the UCC.

 

(d)            The Lessee agrees to deliver to the Lessor and the HVF Secured Party on or before the Series 2009-1 Closing Date:

 

(i)             a written search report from a Person satisfactory to the Lessor listing all effective financing statements that name the Lessee as debtor or assignor, and that are filed in the jurisdictions in which filings were made pursuant to clause (ii) below, together with copies of such financing statements;
 
(ii)            evidence of the filing in the State of Delaware of proper financing statements on Form UCC-1 naming the Lessee, as debtor, and the Lessor, as secured

 

3



 

party and the Collateral Agent as assignee secured party, covering the collateral described in Section 2(b)  above; and
 
(iii)           evidence of the filing in the State of Delaware of proper financing statements on Form UCC-l naming the Lessee, as debtor, and the Collateral Agent as secured party covering the collateral described in Section 2(b)  above;
 

(e)            The Lessee hereby authorizes the Lessor to file, or cause to be filed, financing or continuation statements, and amendments thereto and assignments thereof, under the applicable UCC in order to perfect its interest in the security granted pursuant to Section 2(b)  hereof.

 

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 LESSEE’S 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 LESSOR’S DIRECT CONTROL.  IN NO EVENT SHALL

 

4



 

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 Lessor’s 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.

 

(b)  The Lessee will, subject to Sections 2.4 and 2.5, return each Program Vehicle (other than a Casualty, a Rejected Vehicle or a Program Vehicle which has become an Ineligible Vehicle) to the Servicer in accordance with the requirements of Section 3.1(b), who upon receipt of such Program Vehicle will return such Program Vehicle to the nearest related Manufacturer official auction or other facility designated by such Manufacturer at the Lessee’s sole expense in accordance with the requirements of Section 3.1(b).

 

(c)  The Lessee will, subject to Sections 2.4 and 2.5, return each Non-Program Vehicle to the Servicer not less than thirty (30) days prior to the Maximum Lease Termination Date with respect to such Non-Program Vehicle, who upon receipt of such Non-Program Vehicle will dispose of such Non-Program Vehicle in accordance with the requirements of Section 2.5(b).

 

2.4.  Lessee’s 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.

 

5


 

2.5.  Lessor’s Right to Cause Vehicles to be Sold.  If the Lessee does not elect to purchase any Vehicle pursuant to Section 2.4, then:

 

(a)  The Lessor shall have the right, at any time with the consent of the Lessee or during the ninety (90) days prior to the expiration of the Maximum Term for a Program Vehicle, to direct the Servicer to arrange for the sale of such Program Vehicle to a third party, if permitted under the related Manufacturer Program, for a price greater than or equal to the Termination Value of such Program Vehicle, reduced by the amount of any non-return incentive received by the Lessor or payable to the Lessor from the Manufacturer in respect of such Program Vehicle pursuant to such Manufacturer Program if such Manufacturer is an Eligible Program Manufacturer, on or prior to the Maximum Lease Termination Date with respect to such Program Vehicle.  Notwithstanding the disposition of a Program Vehicle pursuant to this Section 2.5(a) prior to the end of a calendar month, the Lessee shall pay to the Lessor all accrued and unpaid Monthly Base Rent and any Monthly Variable Rent then due and payable with respect to such Program Vehicle through the Payment Date with respect to the Related Month during which the Disposition Proceeds of such Program Vehicle are deposited into the Collection Account, unless such Program Vehicle is a Casualty or becomes an Ineligible Vehicle, payment for which will be made in accordance with Section 6.  When a sale of such Program Vehicle is arranged by the Servicer pursuant to this Section 2.5(a), (i) the Servicer shall deliver the Vehicle to the purchaser thereof and (ii) the Servicer shall cause to be deposited into the Collateral Account the funds paid for such Vehicle by the purchaser.

 

(b)  The Servicer shall use commercially reasonable efforts, at its own expense, to arrange for the sale of each Non-Program Vehicle to a third party for the Vehicle Purchase Price with respect to such Vehicle on or prior to the Maximum Lease Termination Date with respect to such Non-Program Vehicle.  Notwithstanding the disposition of a Non-Program Vehicle by the Servicer prior to the end of a calendar month, the Lessee shall pay to the Lessor all accrued and unpaid Monthly Base Rent and any Monthly Variable Rent then due and payable with respect to such Non-Program Vehicle through the Payment Date with respect to the Related Month during which the Disposition Proceeds of such Non-Program Vehicle are deposited into the Collection Account, unless such Non-Program Vehicle is a Casualty or becomes an Ineligible Vehicle, payment for which will be made in accordance with Section 6.  When a sale of such Non-Program Vehicle is arranged by the Servicer pursuant to this Section 2.5(b), (i) the Servicer shall deliver the Vehicle to the purchaser thereof and (ii) the Servicer shall cause to be deposited into the Collateral Account the funds paid for such Vehicle by the purchaser; provided , that, the Lessee may deliver to the Servicer any Non-Program Vehicle that remains eligible under, and subject to, a Manufacturer Program for return to the related Manufacturer in accordance with Section 3.1(b) hereof as if such Non-Program Vehicle were a Program Vehicle if the Servicer reasonably believes that such Manufacturer will honor its obligations under such Manufacturer Program with respect to such Vehicle.

 

(c)  In the event any Vehicle or Vehicles are not purchased by the Lessee pursuant to Section 2.4, sold to a third party pursuant to Section 2.5 or returned to a Manufacturer pursuant to Section 3.1(b), the Servicer shall return such Vehicle to the Lessor, on the

 

6



 

Payment Date with respect to the Related Month in which the applicable Maximum Lease Termination Date falls, and the Lessee shall pay an amount equal to all accrued but unpaid Monthly Base Rent and all Monthly Variable Rent payable with respect to such Vehicles through such Payment Date.

 

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

 

7



 

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:

 

(a)  No Default.   No Potential Operating Lease Event of Default or Operating Lease Event of Default shall have occurred and be continuing on such date or would result from the leasing of such Vehicle hereunder;

 

8



 

(b)  Funding.   HVF shall have sufficient funds (other than funds allocated to one or more Segregated Series of Indenture Notes relating to or constituting Series-Specific Collateral) available under the Indenture or otherwise to purchase such Vehicle from HGI or HFC pursuant to the Purchase Agreement or the HFC Purchase Agreement, respectively;

 

(c)  Representations and Warranties.   The representations and warranties contained in Section 25 are true and correct in all material respects as of such date;

 

(d)  Eligible Vehicle.   Such Vehicle is an Eligible Vehicle and (x) if such Vehicle is being purchased under the HFC Purchase Agreement, such Vehicle satisfies the definition of Service Vehicle and (y) if such Vehicle is being contributed pursuant to the Hertz Contribution Agreement, such Vehicle satisfies the definition of Initial Hertz Vehicle; and

 

(e)  No Violation of Section 2.7.   No violation of Section 2.7 shall have occurred and be continuing on such date or would result from the leasing of such Vehicle hereunder.

 

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.  TERM.

 

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.

 

(b)  Subject to Sections 2.4 and 2.5(a), the Lessee shall deliver each Program Vehicle to the Servicer for return to the related Manufacturer in accordance with such Manufacturer Program (a) not prior to the end of the minimum holding period specified in the related Manufacturer Program (the “ Minimum Term ”), (b) not later than the end of the maximum holding period specified in the related Manufacturer Program (the “ Maximum Term ”), and (c) in any event, no later than the Maximum Lease Termination Date with respect to such Vehicle.  Upon receipt of a Program Vehicle for return to the related Manufacturer, the Servicer will return such Program Vehicle to the nearest related Manufacturer official auction or other facility designated by such Manufacturer at the Servicer’s expense and otherwise in accordance with the requirements of the applicable Manufacturer Program.  If the Lessee delivers a Program Vehicle to the Servicer for return to the related Manufacturer before the Minimum Term, the Lessee will make a payment in an amount equal to the Early Termination Payment to the Lessor in accordance with Section 13.4, unless such Vehicle is a Casualty or becomes an Ineligible Vehicle, in which case, the disposition of such Vehicle will be handled in accordance with Section 6.  If the Lessee delivers a Program Vehicle to the Servicer for return to the related Manufacturer after the Maximum Term, the Lessee shall pay to the Lessor the Casualty Payment in respect of such Vehicle in accordance with Section 6.

 

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.

 

(b)  If the Vehicle Operating Lease Commencement Date occurs (i) with respect to a Program Vehicle, after the In-Service Date for such Program Vehicle pursuant to its

 

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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, after 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 Non-Program Vehicle between its In-Service Date and its Vehicle Operating Lease Commencement Date during the Related Month in which such Vehicle Operating Lease Commencement Date occurs shall be included in the Monthly Base Rent for such Vehicle for the following Payment Date.

 

(c)  If a Program Vehicle is subject to a Manufacturer Program that calculates Depreciation Charges on a basis other than a 30-day month, an adjustment shall be made to the Monthly Base Rent for such Vehicle for the Payment Date following the Related Month in which the Vehicle Operating Lease Expiration Date for such Program Vehicle occurs to reconcile the Depreciation Charges that accrued with respect to such Program Vehicle during the Vehicle Term of such Program Vehicle with the depreciation charges that accrued with respect to such Program Vehicle under the applicable Manufacturer Program.

 

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 Lessee’s 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 month’s 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 LESSEE’S 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.  RISK OF LOSS; CASUALTY AND INELIGIBLE VEHICLE OBLIGATIONS.

 

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 Lessee’s 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 Lessee’s 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 subsidiary’s daily rental car business or equipment rental business, or by such subsidiary’s 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 Lessee’s 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 Lessor’s or the Trustee’s 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 Lessee’s 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 Lessee’s 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 Manufacturer’s 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 Manufacturer’s 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.  VEHICLE WARRANTIES.

 

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.  Manufacturer’s Warranties.  If a Vehicle is covered by a Manufacturer’s 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.  VEHICLE USAGE GUIDELINES AND RETURN; SPECIAL DEFAULT PAYMENTS; EARLY TERMINATION PAYMENTS.

 

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 Manufacturer’s 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 ”).

 

(b)  On the first Determination Date following the last day of the Related Month in which the Disposition Proceeds from the sale or other disposition of any Non-Program Vehicle (other than a Casualty, a Vehicle that has been purchased by the Lessee pursuant to Section 2.4 or a Transferred HVF Vehicle) are deposited into a Collateral Account, the Servicer will calculate, in respect of such Non-Program Vehicle, an amount equal to the quotient of (i) the sum of all Program Vehicle Special Default Payments payable by the Lessee on the twelve Payment Dates preceding such Determination Date divided by (ii) the number of Program Vehicles that were turned back to Manufacturers or sold through auctions conducted by or through Manufacturers during the twelve Related Months respectively preceding such twelve Payment Dates, and the Lessee will pay such amount to the Lessor on the Payment Date immediately following such Determination Date (any such charges are referred to as “ Non-Program Vehicle Special Default Payments ” and, together with the Program Vehicle Special Default Payments, the “ 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.  ASSIGNMENT.

 

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 Lessee’s 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.  DEFAULT AND REMEDIES THEREFOR.

 

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:

 

17.1.1.  there occurs a default in the payment of any Rent or other amount payable by the Lessee under this Agreement for a period of five Business Days (without giving effect to any payment made with available Enhancement);

 

17.1.2.  any unauthorized assignment or transfer of this Agreement by the Lessee occurs;

 

17.1.3.  the failure, in any material respect, of the Lessee to maintain, or cause to be maintained, insurance as required in Section 5;

 

17.1.4.  the failure, in a material respect, of the Lessee to observe or perform any other covenant, condition, agreement or provision hereof, including, but not limited to, usage, and maintenance, and such default continues for more than thirty (30) days after the earlier of the date written notice thereof is delivered by the Lessor or the Trustee to the Lessee or the Lessee has actual knowledge thereof;

 

17.1.5.  if any representation or warranty made by the Lessee herein 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

 

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statement, report, notice, or other writing furnished by or on behalf of the Lessee to the Lessor or the Trustee (excluding for the avoidance of doubt, any schedule, certificate, financial statement, report, notice or other writing furnished by or on behalf of the Lessee under or in connection with a Segregated Series), 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 Lessee and (y) the date the Lessee learns of such circumstance or condition;

 

17.1.6.  an Event of Bankruptcy occurs with respect to the Lessee;

 

17.1.7.  this Agreement or any portion thereof ceases to be in full force and effect or a proceeding shall be commenced by the Lessee to establish the invalidity or unenforceability of this Agreement;

 

17.1.8.  a Servicer Default occurs; or

 

17.1.9.  a Liquidation Event of Default occurs.

 

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:

 

(i)  in the case of an Operating Lease Event of Default, proceed by appropriate court action or actions, either at law or in equity, to enforce performance by the Lessee of the applicable covenants and terms of this Agreement or to recover damages for the breach hereof calculated in accordance with Section 17.5; or

 

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(ii)  in the case of a Liquidation Event of Default, by notice in writing to the Lessee, terminate this Agreement in its entirety and/or the right of possession hereunder of the Lessee of any or all Vehicles and the Lessor may direct delivery by the Servicer of Certificates of Title for the Vehicles to or upon the direction of the Lessor, whereupon all rights and interests of the Lessee to such Vehicles will cease and terminate (but the Lessee will remain liable hereunder as herein provided, provided , however , its liability will be calculated in accordance with Section 17.5); and, in the case of such a Limited Liquidation Event of Default, the Lessor may, by notice in writing to the Lessee, terminate the right of possession hereunder of such number of Vehicles as will generate disposition proceeds in an amount sufficient to pay all principal of and interest on (and all other amounts due the Holders of) the Series of Notes as to which such a Limited Liquidation Event of Default shall have occurred, whereupon all rights and interests of the Lessee to such Vehicles will cease and terminate (but the Lessee will remain liable hereunder as provided, provided , however that its liability will be calculated in accordance with Section 17.5).  Upon termination of the right of possession of the Lessee with respect to any Vehicles, the Lessor or its agents may peaceably enter upon the premises of the Lessee or other premises where such Vehicles may be located and take possession of them and thenceforth hold, possess and enjoy the same free from any right of the Lessee, or its successors or assigns, to use such Vehicles for any purpose whatsoever, and the Lessor will, nevertheless, have a right to recover from the Lessee any and all amounts which under the terms of this Section 17.3 (as limited by Section 17.5 of this Agreement) as may be then due.  Each and every power and remedy hereby specifically given to the Lessor will be in addition to every other power and remedy hereby specifically given or now or hereafter existing at law, in equity or in bankruptcy and each and every power and remedy may be exercised from time to time and simultaneously and as often and in such order as may be deemed expedient by the Lessor; provided , however , that the measure of damages recoverable against the Lessee will in any case be calculated in accordance with Section 17.5.  All such powers and remedies will be cumulative, and the exercise of one will not be deemed a waiver of the right to exercise any other or others.  No delay or omission of the Lessor in the exercise of any such power or remedy and no renewal or extension of any payments due hereunder will impair any such power or remedy or will be construed to be a waiver of any default or any acquiescence therein.  Any extension of time for payment hereunder or other indulgence duly granted to the Lessee will not otherwise alter or affect the Lessor’s rights or the obligations hereunder of the Lessee.  The Lessor’s acceptance of any payment after it will have become due hereunder will not be deemed to alter or affect the Lessor’s rights hereunder with respect to any subsequent payments or defaults therein.
 

17.4.  Liquidation Event of Default, Limited Liquidation Event of Default and Non-Performance of Certain Covenants.

 

(i)  If a Liquidation Event of Default or a Limited Liquidation Event of Default (other than any Limited Liquidation Event of Default relating solely to any Segregated Series of Notes) shall have occurred and be continuing, the Trustee, to the extent provided in the Indenture, shall have the rights against the Lessee and the Collateral provided in the Indenture and the Collateral Agency Agreement upon a Liquidation Event of Default or such a Limited Liquidation Event of Default, as the case may be, including

 

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the right to take possession of all or a portion of the Vehicles immediately from the Lessee.
 
(ii)  During the continuance of a Liquidation Event of Default or a Limited Liquidation Event of Default (other than any Limited Liquidation Event of Default relating solely to any Segregated Series of Notes), the Servicer shall return any or all Program Vehicles to the related Manufacturers in accordance with the instructions of the Lessor.  To the extent any Manufacturer fails to accept any such Program Vehicles under the terms of the applicable Manufacturer Program, the Lessor shall have the right to otherwise dispose of such Program Vehicles and to direct the Servicer to dispose of such Program Vehicles in accordance with its instructions.  Upon the occurrence of a Liquidation Event of Default or a Limited Liquidation Event of Default (other than any Limited Liquidation Event of Default relating solely to a Segregated Series of Notes), the Servicer shall dispose of any or all Non-Program Vehicles and Program Vehicles in accordance with the instructions of the Lessor.  To the extent the Servicer fails to so dispose of any such Non-Program Vehicles or Program Vehicles, the Lessor shall have the right to otherwise dispose of such Non-Program Vehicles or Program Vehicles.  In addition, following the occurrence of a Liquidation Event of Default or a Limited Liquidation Event of Default (other than any Limited Liquidation Event of Default relating solely to a Segregated Series of Notes), the Lessor shall have all of the rights, remedies, powers, privileges and claims vis-a-vis the Lessee, necessary or desirable to allow the Trustee to exercise the rights, remedies, powers, privileges and claims (other than in each case, for the avoidance of doubt, to the extent related to Series-Specific Collateral for any Segregated Series) given to the Trustee pursuant to Sections 3.3 and 9.2 of the Base Indenture, and the Lessee acknowledges that it has hereby granted to the Lessor all such rights, remedies, powers, privileges and claims granted by the Lessor to the Trustee pursuant to Article 3 of the Base Indenture and that the Trustee may act in lieu of the Lessor in the exercise of all such rights, remedies, powers, privileges and claims.
 

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:

 

(i)  all accrued and unpaid Rent for each Vehicle to the earlier of the date of the return to the Lessor of such Vehicle or disposition by the Servicer of such Vehicle in accordance with the terms of this Agreement and all other payments payable under this Agreement; plus
 
(ii)  any reasonable out-of-pocket damages and expenses, including reasonable attorneys’ fees and expenses which the Lessor or the Trustee will have sustained by reason of such an Operating Lease Event of Default, Limited Liquidation Event of Default or Liquidation Event of Default, together with reasonable sums for such attorneys’ fees and such expenses as will be expended or incurred in the seizure, storage,

 

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rental or sale of the Vehicles or in the enforcement of any right or privilege hereunder or in any consultation or action in such connection; plus
 
(iii)  interest from time to time on amounts due and unpaid under this Agreement at one-month LIBOR plus 1.0% computed from the date of such an Operating Lease Event of Default, Limited Liquidation Event of Default or Liquidation Event of Default or the date payments were originally due to the Lessor under this Agreement or from the date of each expenditure by the Lessor or the Trustee, as applicable, which is recoverable from the Lessee pursuant to this Section 17, as applicable, to and including the date payments are made by the Lessee.
 

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:

 

(i)  proceed by appropriate court action or actions, either at law or equity, to enforce performance by the Lessee of such covenants and terms of this Agreement or to recover damages for the breach hereof calculated in accordance with Section 17.5 as it relates to such Vehicle; or
 
(ii)  by notice in writing to the Lessee following the occurrence of such Vehicle Return Default, terminate this Agreement with respect to such Vehicle and/or the right of possession hereunder of the Lessee with respect to such Vehicle and the Lessor may direct delivery by the Servicer of the Certificate of Title to such Vehicle to or upon the order of the Lessor, whereupon all rights and interests of the Lessee to such Vehicle will cease and terminate (but the Lessee will remain liable hereunder as herein provided, provided , however , that its liability will be calculated in accordance with Section 17.5 as it relates to such Vehicle); and thereupon the Lessor or its agents may peaceably enter upon the premises of the Lessee or other premises where the Vehicle may be located and take possession of it and thenceforth hold, possess and enjoy the same free from any right of the Lessee or its successors or assigns to use such Vehicle for any purpose whatsoever and the Lessor will nevertheless have a right to recover from the Lessee any and all amounts which, under the terms of this Agreement may then be due; or
 
(iii)  hold, keep idle or lease to others such Vehicle, as the Lessor in its sole discretion may determine, free and clear of any rights of the Lessee without any duty to account to the Lessee with respect to such action or inaction or for any proceeds with respect to such action or inaction except that the Lessee’s obligation to pay Monthly Base Rent for periods commencing after the Lessee shall have been deprived of the use of such Vehicle pursuant to this clause (iii) shall be reduced by the net proceeds, if any, received by the Lessor from leasing such Vehicle to any person other than the Lessee for the same period or any portion thereof; or

 

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(iv)  whether or not the Lessor shall have exercised or shall thereafter exercise any of the rights under the foregoing clauses (i), (ii) or (iii), demand by written notice to the Lessee that it pay to the Lessor immediately, and it shall so pay to the Lessor, the Casualty Payment with respect to such Vehicle in accordance with Section 6 hereof.
 
(v)  if the Lessor shall have sold any Vehicle repossessed by the Lessor pursuant to clause (ii) above, the Lessor in lieu of exercising its rights under clause (iv) above with respect to such Vehicle may, if it shall so elect, demand that the Lessee pay to the Lessor and the Lessee shall pay to the Lessor on the date of such sale as liquidated damages for loss of a bargain and not as a penalty, any unpaid Rent due through such date of sale plus the amount of any deficiency between the net proceeds of such sale and the Termination Value of such Vehicle computed as of the date of the sale.
 

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.

 

(b)            Upon the occurrence of a Manufacturer Event of Default the Servicer agrees to (i) act at the direction of the Lessor or the Trustee to take commercially reasonable action to liquidate the Program Vehicles subject to a Manufacturer Program with respect to such Manufacturer (provided that if such Manufacturer Event of Default is cured and is no longer continuing at any time when the Servicer is liquidating such Program Vehicles, the Servicer may cease liquidating such Program Vehicles) or (ii) convert such Program Vehicles to Non-Program Vehicles in accordance with Section 2.6 and subject to the limitations set forth therein.

 

(c)            For so long as a Manufacturer Event of Default is continuing with respect to a Defaulting Manufacturer, the Lessee shall not be liable for any failure by the Lessor to recover all or any portion of the Repurchase Price with respect to any Program Vehicles subject to the Manufacturer Program of the Defaulting Manufacturer; provided , however , that nothing in this Section 18 shall be construed to modify, terminate or otherwise affect the Lessee’s obligations under this 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:

 

(i)  subject to the terms of the Indenture, the Trustee shall have all the rights, powers, privileges and remedies of the Lessor hereunder and the Lessee’s obligations hereunder (including the payment of Rent and all other amounts payable hereunder) shall not be subject to any claim or defense which the Lessee may have against the Lessor (other than the defense of payment actually made) and shall be absolute and unconditional and shall not be subject to any abatement, setoff, counterclaim, deduction or reduction for any reason whatsoever.  Specifically, the Lessee agrees that, upon the occurrence of 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, the Trustee may exercise (for and on behalf of the Lessor) any right or remedy against the Lessee provided for herein and the Lessee will not interpose as a defense that such claim should have been asserted by the Lessor;

 

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(ii)  Upon the delivery by the Trustee of any notice to the Lessee stating that an Operating Lease Event of Default, Liquidation Event of Default or Limited Liquidation Event of Default (other than any Limited Liquidation Event of Default relating solely to any Segregated Series of Notes) has occurred, the Lessee will, if so requested by the Trustee, treat the Trustee for all purposes as the Lessor hereunder and in all respects comply with all obligations under this Agreement that are asserted by the Trustee, as the Lessor hereunder, irrespective of whether the Lessee has received any such notice from the Lessor; and
 
(iii)  The Lessee acknowledges that pursuant to this Agreement it has agreed to make all payments of Rent hereunder (and any other payments hereunder) directly to the Trustee for deposit in the Collection Account.
 

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 Servicer’s 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 Lessee’s 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.

 

(b)  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 Lessee’s Quarterly Report to the SEC on Form 10-Q for the quarter ended June 30, 2009 (the “ 10-Q 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 June 30, 2009 and the consolidated results of operations and cash flows of the Lessee and its consolidated subsidiaries for the quarterly period ended June 30, 2009, in conformity with generally accepted accounting principles in the United States.

 

(c)  As of the date of this Agreement there has not occurred any material adverse change in the financial position of the Lessee and its subsidiaries considered as a whole, since December 31, 2008, other than as set forth or contemplated in the 10-K Report or the 10-Q Report.

 

(d)  The financial data which shall be delivered to the Lessor and the Trustee pursuant to Section 26.5 will be prepared in conformity with generally accepted accounting principles in the United States and will present fairly in all material respects the financial condition of the Lessee as of the dates thereof and the results of its operations for the periods covered thereby.

 

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 Lessee’s 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 Lessee’s obligations under this Agreement.

 

26.5.  Reporting Requirements.  Furnish, or cause to be furnished to the Lessor and the Trustee:

 

(i)  within 120 days after the end of each of its fiscal years, copies of the Annual Report on Form 10-K filed by the Lessee with the SEC or, if the Lessee is not a reporting company, information equivalent to that which would be required to be included in such an Annual Report if it were a reporting company, including without limitation, consolidated financial statements consisting of a balance sheet of the Lessee and its consolidated subsidiaries as at the end of such fiscal year and statements of income, stockholders’ equity and cash flows of the Lessee and its consolidated subsidiaries for such fiscal year, setting forth in comparative form the corresponding figures for the preceding fiscal year (if applicable), certified by and containing an opinion, unqualified as to scope, of a firm of independent certified public accountants of nationally recognized standing selected by the Lessee and acceptable to the Lessor and the Trustee;
 
(ii)  within 60 days after the end of each of the first three quarters of each of its fiscal years, copies of the Quarterly Report on Form 10-Q filed by the Lessee with the SEC or, if the Lessee is not a reporting company, information equivalent to that which would be required to be included in such a Quarterly Report if it were a reporting company, including without limitation, (x) financial statements consisting of consolidated balance sheets of the Lessee and its consolidated subsidiaries as at the end of such quarter and statements of income, stockholders’ equity and cash flows of the Lessee and its consolidated subsidiaries for each such quarter, setting forth in comparative form the corresponding figures for the corresponding periods of the preceding fiscal year (if applicable), all in reasonable detail and certified (subject to normal year-end audit adjustments) by a senior financial officer of the Lessee as having been prepared in accordance with GAAP;
 
(iii)  simultaneously with the delivery of the Annual Report on Form 10-K (or equivalent information) referred to in (i) above and the Quarterly Report on Form 10-Q (or equivalent information) referred to in (ii) above, an Officer’s Certificate of the Lessee

 

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stating whether, to the knowledge of such officer, there exists on the date of the certificate any condition or event which then constitutes, or which after notice or lapse of time or both would constitute, a Potential Operating Lease Event of Default or Operating Lease Event of Default, and, if any such condition or event exists, specifying the nature and period of existence thereof and the action of the Lessee is taking and proposes to take with respect thereto.
 
(iv)  promptly after becoming aware thereof, (a) notice of the occurrence of any Potential Operating Lease Event of Default or Operating Lease Event of Default, together with a written statement of an Authorized Officer describing such event and the action that the Lessee proposes to take with respect thereto, and (b) notice of any Amortization Event;
 
(v)  promptly after obtaining actual knowledge thereof, notice of any Manufacturer Event of Default or termination or replacement of a Manufacturer Program;
 
(vi)  promptly after any executive officer of the Lessee becomes aware of the occurrence of any Reportable Event (other than a reduction in active Plan participants) with respect to any Plan, a certificate signed by the Executive Vice President and Chief Financial Officer, the Treasurer or the Controller of the Lessee setting forth the details as to such Reportable Event and the action which the Lessee is taking and proposes to take with respect thereto, together with a copy of the notice of such Reportable Event given to the Pension Benefit Guaranty Corporation.
 
(vii)  from time to time while this Agreement is in effect, upon the reasonable request of the Lessor or the Trustee, officials of the Lessee will confer with officials of the Lessor or the Trustee, as applicable, and advise them as to matters bearing on the Vehicles or the operations or financial condition of the Lessee.
 

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 Lessee’s 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

 

33



 

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.

 

35



 

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.

 

 

LESSOR:

 

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

By:

/s/ R. Scott Massengill

 

 

Scott Massengill

 

 

Vice President & Treasurer

 

 

 

 

 

 

Address:

225 Brae Boulevard

 

 

 

Park Ridge, NJ 07656

 

 

Attention:

Treasury Department

 

 

Telephone:

(201) 307-2000

 

 

Fax:

(201) 307-2746

 

 

 

 

 

LESSEE AND SERVICER:

 

 

 

THE HERTZ CORPORATION

 

 

 

By:

/s/ R. Scott Massengill

 

 

Scott Massengill

 

 

Treasurer

 

 

 

 

 

 

 

 

 

 

Address:

225 Brae Boulevard

 

 

 

Park Ridge, NJ 07656

 

 

Attention:

Treasury Department

 

 

Telephone:

(201) 307-2000

 

 

Fax:

(201) 307-2746

 

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Acknowledging its obligations under Section 27 hereof:

 

 

 

NOMINEE:

 

 

 

 

 

HERTZ VEHICLES LLC,

 

 

 

by

 

 

 

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Vice President & Treasurer

 

 

 

 

 

 

 

HFC NOMINEE:

 

 

 

 

 

HERTZ FUNDING CORPORATION,

 

 

 

by

 

 

 

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

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:

 

ARTICLE 1

 

AMOUNTS AND TERMS OF PURCHASES

 

SECTION 1.01.  General .  Each of HGI and HVF agrees that, subject to the satisfaction of the conditions set forth in Section 2.8 of the Leases (or the applicable section with respect to any Segregated Series Lease), it will lease to the Lessee as many Vehicles as the Lessee desires to lease, provided that HGI or HVF, as applicable, has sufficient available funds to purchase such Vehicles in accordance with this Agreement.  The parties agree that, from time to time, the Lessee will notify HGI, and HGI will notify the Servicer and HVF, in writing, that the Lessee desires to lease Vehicles pursuant to the Leases.  Upon the receipt of such notice, the Servicer shall order the requested Vehicles in accordance with Section 1.02 .

 

SECTION 1.02.  Ordering Vehicles .   HGI hereby appoints Hertz, as Servicer, to act as HGI’s agent in placing vehicle orders on behalf of HGI pursuant to the terms of the Manufacturer Programs with respect to Program Vehicles and as otherwise agreed by the Servicer and a dealer or buying representative with respect to Non-Program Vehicles.  The Servicer agrees that all Program Vehicles ordered as provided herein shall be ordered utilizing the procedures consistent with the applicable Manufacturer Program.  The Servicer will be responsible for taking delivery of the Vehicles and conducting pre-delivery inspection of Vehicles, filing claims on behalf of HGI (or, in the case of Vehicles that have been purchased by HVF in accordance with this Agreement prior to the delivery of such Vehicle, HVF) for damage in transit and other Manufacturer delivery claims

 

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related to the Vehicles, facilitating payment for Vehicles, titling Vehicles in accordance with the Nominee Agreement (or any nominee agreement relating to a Segregated Non-Nominee Series) and liening Vehicles in accordance with the Collateral Agency Agreement (or any collateral agency agreement relating to a Segregated Non-Collateral Agency Series), and performing other duties with respect to Vehicles.  The Servicer may arrange to have the Vehicles delivered to a location selected by the Lessee at the Lessee’s expense to the extent that any such expense has not been included in the Capitalized Cost of such Vehicle.

 

SECTION 1.03.  Vehicle Payment and Acceptance .  (a)  In accordance with the payment terms agreed to between HGI and each Manufacturer, authorized dealer or other Person that sells a Vehicle to HGI, HGI shall pay to such party the Capitalized Cost of such Vehicle.  In accordance with the purchase terms agreed to between HGI and each Manufacturer, title to such Vehicle shall pass to HGI upon its payment for such Vehicle (or, in the case of a Vehicle manufactured by Volvo, upon delivery of such Vehicle to HGI).  The Lessee shall pay all applicable costs and expenses of freight, packing, handling, storage, shipment and delivery of such Vehicle and sales and use tax (if any) to the extent that the same have not been included in the Capitalized Cost of such Vehicle.

 

(b)  The Lessee agrees that payment by HGI for a Vehicle in accordance with this Section 1.03 will constitute confirmation by the Lessee that it has accepted such Vehicle, and that the conditions precedent to the lease of such Vehicle under the HGI Lease have been satisfied, provided that the Lessee will have the option to reject any such Vehicle that may be rejected pursuant to the terms of the applicable Manufacturer Program with respect to Program Vehicles, or in accordance with its customary business practices with respect to Non-Program Vehicles.

 

SECTION 1.04.  New Vehicle Notices .  Within seven Business Days of payment by HGI for each Vehicle (or, in the case of a Vehicle manufactured by Volvo, within seven Business Days of the later of the date of delivery and the date of invoice for such Vehicle), the Lessee will determine whether it desires HGI to retain ownership of such Vehicle, or sell it to HVF (each such Vehicle a “ New Vehicle ”, and each New Vehicle to be purchased by HVF as an HVF Vehicle, a “ New HVF Vehicle ” and each New Vehicle to be purchased by HVF as an HVF Segregated Vehicle, a “ New HVF Segregated Vehicle ”, and the New HVF Vehicles and New HVF Segregated Vehicles together, the “ New ABS Vehicles ”).  Upon making its determination with respect to each New Vehicle, the Lessee shall then give notice of such determination (specifying, if applicable, whether such New Vehicle is a New HVF Vehicle or a New HVF Segregated Vehicle) to the Servicer and the Servicer shall deliver a notice to HGI, HVF, the Nominee (or, if applicable, the nominee with respect to the related Segregated Non-Nominee Series), the Collateral Agent (or, if applicable, the collateral agent with respect to the related Segregated Non-Collateral Agency Series) and, in respect of each New ABS Vehicle, the Trustee, setting forth the information listed in Exhibit A hereto with respect to such New Vehicle (each such notice a “ New Vehicle Schedule ”), including, if applicable, the proposed effective date of the transfer of such New ABS Vehicle to HVF.

 

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SECTION 1.05.  New HVF Vehicle Payment and Acceptance .  (a)  On the proposed effective date of the sale and transfer of any New ABS Vehicle to HVF set forth in the New Vehicle Schedule delivered pursuant to Section 1.04 , HVF shall, subject to the satisfaction of the conditions set forth in Section 2.02 , pay to HGI an amount equal to the Capitalized Cost of such New ABS Vehicle; provided , that, for the avoidance of doubt, the Capitalized Cost with respect to any New HVF Vehicle shall be paid from amounts arising from or constituting the Collateral and the Capitalized Cost with respect to any New HVF Segregated Vehicle shall be paid from amounts arising from or constituting the Series-Specific Collateral with respect to the Segregated Series for whose benefit such New HVF Segregated Vehicle is pledged.  HVF shall make payments in immediately available funds to or at the direction of HGI.

 

(b)  Hertz, HGI and HVF hereby agree that title to each New ABS Vehicle shall pass to HVF upon satisfaction of the conditions set forth in Section 2.02 in respect of such New ABS Vehicle.  The Lessee agrees that payment of the purchase price for a New ABS Vehicle by HVF under this Section 1.05 will constitute confirmation by the Lessee that it has accepted such New ABS Vehicle, and that the conditions precedent to the lease of such New HVF Vehicle under the HVF Lease or such New HVF Segregated Vehicle under the applicable Segregated Series Lease, as applicable, have been satisfied, provided that the Lessee will have the option to reject any such New ABS Vehicle that may be rejected pursuant to the terms of the applicable Manufacturer Program with respect to Program Vehicles, or in accordance with its customary business practices with respect to Non-Program Vehicles.  If the Lessee rejects a New ABS Vehicle after payment for such New ABS Vehicle has been made by HVF, HGI shall repurchase such New ABS Vehicle within five Business Days of such rejection for an amount equal to the Capitalized Cost of such New ABS Vehicle (a “ Rejected Vehicle Payment ”).  If the Lessee rejects a New ABS Vehicle after payment for such New ABS Vehicle has been made, the Lessee shall give notice of such rejection to the Servicer and the Servicer shall then deliver a notice to HGI, HVF, the Nominee (or, if applicable, the nominee with respect to the related Segregated Non-Nominee Series), the Collateral Agent (or, if applicable, the collateral agent with respect to the related Segregated Non-Collateral Agency Series) and the Trustee setting forth the information listed in Exhibit B with respect to such rejected New ABS Vehicle (each such notice a “ Rejected Vehicle Schedule ”, and each such New ABS Vehicle, a “ Rejected Vehicle ”), including the proposed effective date of the repurchase by HGI.  HVF and HGI hereby agree that title to a Rejected Vehicle shall pass to HGI upon payment to HVF of the related Rejected Vehicle Payment.  If HGI fails to make the Rejected Vehicle Payment with respect to a Rejected Vehicle to HVF within five Business Days of the rejection by the Lessee of such Vehicle, the Servicer shall immediately make the Rejected Vehicle Payment to HVF on behalf of HGI.

 

(c)  HGI hereby assigns to HVF, with respect to any New ABS Vehicle that HVF purchases from HGI in accordance with this Section 1.05 , all rights that HGI has against the Manufacturer of such New ABS Vehicle.  This clause (c)  shall apply to any New ABS Vehicle whether or not it has been delivered to the Lessee at the time of its sale to HVF.

 

(d)  HGI agrees that it will pay to HVF any Invoice Adjustments paid or payable to HGI by a Manufacturer in respect of a New ABS Vehicle.  HVF agrees that it will pay to

 

4



 

HGI any Invoice Adjustments paid or payable by HGI to a Manufacturer in respect of a New ABS Vehicle; provided , that, for the avoidance of doubt, the Invoice Adjustments payable by HVF with respect to any New HVF Vehicle shall be paid from amounts arising from or constituting the Collateral and the Invoice Adjustments payable by HVF with respect to any New HVF Segregated Vehicle shall be paid from amounts arising from or constituting the Series-Specific Collateral with respect to the Segregated Series for whose benefit such New HVF Segregated Vehicle is pledged.  Invoice Adjustments will be payable by HGI to HVF within 5 Business Days after notification from a Manufacturer to HGI that Invoice Adjustments are payable by such Manufacturer to HGI in respect of a New ABS Vehicle.  Invoice Adjustments will be payable by HVF to HGI within 5 Business Days of notification from HGI to HVF that a Manufacturer has notified HGI that Invoice Adjustments are payable to such Manufacturer by HGI.  “Invoice Adjustments” means payments from or to a Manufacturer representing the difference between the estimated Capitalized Cost of a Vehicle as reflected on its invoice, and the actual Capitalized Cost of such Vehicle.

 

SECTION 1.06.  Vehicle Transfers .  (a)  From time to time, the Lessee may desire to lease a particular Vehicle pursuant to the HVF Lease or any Segregated Series Lease rather than the HGI Lease, or vice versa.  The parties hereto agree that the Lessee may effect such a change with respect to a particular Vehicle by delivering a notice to HVF, HGI, the Nominee, the nominee with respect to the related Segregated Non-Nominee Series, the Servicer, the Collateral Agent, the collateral agent with respect to the related Segregated Non-Collateral Agency Series, and the Trustee setting forth the information listed in Exhibit C with respect to such Vehicle (each such notice a “ Transferred Vehicle Schedule ”), including the proposed effective date of the transfer of such Vehicle; provided , however , that the Lessee may not cause HVF to sell to HGI a Non-Program Vehicle or a Segregated Non-Program Vehicle for a Transfer Price that is less than the Termination Value of such Vehicle immediately prior to the transfer thereof.  This Section 1.06 does not apply to the initial treatment of New Vehicles under Section 1.04 .

 

SECTION 1.07.  Transferred Vehicle Payments .  On the proposed effective date of the transfer of any Vehicle pursuant to Section 1.06 , subject to the satisfaction of the conditions set forth in Section 2.02 , the applicable Purchaser shall pay to the applicable Seller the Reasonably Equivalent Value of such Vehicle (in each case, the “ Transfer Price ”); provided , that, for the avoidance of doubt, the Transfer Price with respect to any Vehicle that will be leased pursuant to the HVF Lease shall be paid from amounts arising from or constituting the Collateral and the Transfer Price with respect to any Vehicle that will be leased pursuant to a particular Segregated Series Lease shall be paid from amounts arising from or constituting the Series-Specific Collateral with respect to the Segregated Series for whose benefit such Vehicle will be pledged. “Reasonably Equivalent Value” means (i) with respect to a Vehicle that is subject to a Manufacturer Program that provides that such Vehicle must be resold to the applicable Manufacturer, the Termination Value of such Vehicle, (ii) with respect to any other Vehicle that is subject to a Manufacturer Program, the greater of the Market Value of such Vehicle and the Termination Value of such Vehicle immediately prior to the transfer thereof and (iii) with respect to any other Vehicle, the Market Value for such Vehicle.  The applicable Seller and the applicable Purchaser hereby agree that title to each Vehicle transferred pursuant to Section 1.06 shall

 

5



 

pass to the applicable Purchaser upon satisfaction of the conditions set forth in Section 2.02 in respect of such Vehicle.  All payments to HVF hereunder relating to HVF Vehicles shall be deposited into the Collection Account and all payments to HVF relating to HVF Segregated Vehicles constituting Series-Specific Collateral with respect to a particular Segregated Series, unless otherwise specified in the related Segregated Series Supplement, shall be deposited into the collection account, or similar account, for such Segregated Series.

 

SECTION 1.08.  Hertz as Servicer .  Each of HGI and HVF hereby appoints Hertz as Servicer to be responsible for ordering and receiving Vehicles pursuant to Section 1.02 , and all administrative details relating to Vehicle transfers under Sections 1.04 through 1.07 , including transfer of funds, the preparation of documentation, the calculation of purchase price amounts, and the provision of information under this Agreement.  The Servicer shall be responsible for ensuring that all information included in New Vehicle Schedules, Rejected Vehicle Schedules and Transferred Vehicle Schedules is true and correct.  HGI and HVF will cooperate, at the Servicer’s expense, with the Servicer’s performance in accordance with the terms of this Section 1.08 .

 

SECTION 1.09.  Chrysler Vehicles .  If the Lessee leases Program Vehicles subject to a Guaranteed Depreciation Program with Old Chrysler or one of its affiliates (“ Chrysler Vehicles ”) under the Leases, the Lessee agrees that all such Chrysler Vehicles will be owned by HGI and leased under the HGI Lease, owned by HVF and leased under the HVF Lease or owned by HVF and leased under a Segregated Series Lease.  This Section 1.09 does not apply to the initial treatment of Chrysler Vehicles that are New ABS Vehicles and that are purchased from HGI by HVF in accordance with Section 1.05 .

 

SECTION 1.10.  Hertz as Lessee .  Hertz, as Lessee, agrees that upon a transfer of a Vehicle from the HGI Lease to the HVF Lease or a Segregated Series Lease or vice versa pursuant to this Agreement, Hertz relinquishes all rights that it has in such Vehicle pursuant to the Lease under which such Vehicle was leased prior to such transfer.

 

ARTICLE 2

 

CONDITIONS OF PURCHASES

 

SECTION 2.01.  Conditions Precedent to the Obligations of HVF, HGI and Hertz .  The obligations of HVF, HGI, the Lessee and the Servicer hereunder are subject to the satisfaction of each of the following conditions:

 

(a)  This Agreement has been duly authorized by each of HVF, HGI and Hertz, and all necessary corporate action has been taken and all necessary governmental approvals, if any, have been obtained with respect to this Agreement by each of HVF, HGI and Hertz;

 

(b)  With respect to all obligations relating to a particular Lease, such Lease has been duly authorized by each of the parties thereto, and all necessary corporate action has been taken and all necessary governmental approvals, if any, have been obtained with respect to such Lease by each of the parties thereto; and

 

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(c)  With respect to all obligations relating to Vehicles with respect to which the Nominee acts as nominee titleholder, the Nominee Agreement has been duly authorized by each of the parties thereto, and all necessary corporate action has been taken and all necessary governmental approvals, if any, with respect to the Nominee Agreement have been obtained by each of the parties thereto.

 

(d)  With respect to all obligations relating to Vehicles of a particular Segregated Non-Nominee Series, the related nominee agreement has been duly authorized by each of the parties thereto, and all necessary corporate action has been taken and all necessary governmental approvals, if any, with respect to such nominee agreement have been obtained by each of the parties thereto.

 

SECTION 2.02.  Conditions Precedent to Each Purchase .  Each purchase of a New ABS Vehicle or Transferred Vehicle hereunder (each, a “ Purchase ”) shall be subject to the further conditions precedent that:

 

(a)  on the date of such Purchase and after giving effect to such Purchase, the following statements shall be true (and the Purchaser, by making payment for such New ABS Vehicle or such Transferred Vehicle, and the Seller, by accepting such payment, shall be deemed to have certified that):

 

(i)  the representations and warranties contained in Sections 3.01 and 3.02 are correct on and as of the date of such Purchase as though made on and as of such date;

 

(ii)  with respect to any such Purchase of a New HVF Vehicle or Transferred Vehicle which was leased pursuant to the HVF Lease immediately prior to such Purchase, no event has occurred and is continuing, or would result from such Purchase, that constitutes an HVF Vehicle Termination Event (as such term is defined in Section 6.01 );

 

(iii)  with respect to any such Purchase of a New HVF Segregated Vehicle pledged for the benefit of any Segregated Series or a Transferred Vehicle which was leased pursuant to a Segregated Series Lease relating to any Segregated Series immediately prior to such Purchase, no event has occurred and is continuing, or would result from such Purchase, that constitutes an HVF Segregated Vehicle Termination Event (as such term is defined in Section 6.01 ) with respect to such Segregated Series;

 

(iv)  the Purchase is allowed under the Related Documents;

 

(v)  the Purchaser shall have paid the Capitalized Cost of such New ABS Vehicle or Transfer Price of such Transferred Vehicle in accordance with Sections 1.05 and 1.07 ;

 

(vi)  the Vehicle being purchased is an HGI Eligible Vehicle or an Eligible Vehicle;

 

(vii)  the conditions to leasing such Vehicle under Section 2.8 of the HVF Lease or HGI Lease or the analogous section in any Segregated Series Lease, as applicable, shall have been satisfied; and

 

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(viii)  in the case of a New HVF Vehicle and, unless otherwise specified in the Related Documents related to a Segregated Series, a New HVF Segregated Vehicle financed under a dealer’s floor plan line of credit provided by Ford Motor Credit Company (“ FMCC ”) or General Motors Acceptance Corporation (“ GMAC ”), HGI shall have paid the Capitalized Cost of such Vehicle to FMCC or GMAC, as applicable, and any interest of FMCC or GMAC, as applicable, in such New ABS Vehicle shall have been terminated; and

 

(b)  the Purchaser and the Seller shall have received such other approvals, opinions or documents as the Purchaser or the Seller, as applicable, may reasonably request.

 

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 dealers’s 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.

 

ARTICLE 3

 

REPRESENTATIONS AND WARRANTIES

 

SECTION 3.01.  Representations of HGI and HVF .  As of the date hereof and with respect to each Vehicle transfer pursuant to Section 1.04 or 1.06 , each of HGI and HVF represents and warrants as of the date of such transfer as follows:

 

(a)  It (i) is a limited liability company duly formed, validly existing and in good standing under the laws of Delaware, (ii) is duly qualified to do business as a foreign limited liability company and is 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 (iii) has all power and authority and all governmental licenses, authorizations, consents and approvals required to carry on its business as now conducted and as presently proposed to be conducted and for the purposes of the transactions contemplated by this Agreement and the other Related Documents.

 

(b)  It has all requisite power and authority to execute, deliver and perform this Agreement and to carry out the provisions hereof.  Its execution, delivery and performance of this Agreement have been duly authorized by all necessary action on its part and requires no action by or in respect of, or filing with, any Governmental Authority which has not been obtained.

 

(c)  This Agreement has been duly executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with the Agreement’s terms, except as the same may be limited by (i) applicable bankruptcy,

 

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insolvency, reorganization or similar laws affecting the enforcement of creditors rights and (ii) general principles of equity.

 

(d)  There is no action, suit, investigation or proceeding pending or, to its knowledge, threatened against it before any court or arbitrator or Governmental Authority that would materially adversely effect its financial condition, business, assets or operations or which in any manner draws into question the validity or enforceability of this Agreement or any other Related Document or its ability to perform its obligations under the Related Documents.

 

(e)  The execution, delivery and performance by it of this Agreement does not contravene, or constitute a default under, any Requirement of Law with respect to it or any Contractual Obligation with respect to it or result in the creation or imposition of any Lien on any property of it (except for Permitted Liens).

 

(f)  Sales made pursuant to this Agreement are intended to constitute valid sales of New ABS Vehicles and Transferred Vehicles to the applicable Purchaser and immediately upon transfer hereunder the applicable Purchaser shall have good title thereto, enforceable against creditors of, and purchasers from, the applicable Seller.  Neither Seller shall have any remaining property interest in a New ABS Vehicle or Transferred Vehicle sold to a Purchaser.

 

(g)  Immediately prior to each transfer of a New ABS Vehicle or Transferred Vehicle to the Purchaser hereunder, the applicable Seller had title to such New ABS Vehicle or Transferred Vehicle free and clear of all Liens and rights of others, except Permitted Liens.

 

(h)  Each sale of a New ABS Vehicle or Transferred Vehicle by a Seller to a Purchaser pursuant to this Agreement, and all other transactions between such Seller and such Purchaser, will be made in good faith and without intent to hinder, delay or defraud creditors of such Seller or Purchaser.

 

(i)  It has not established and does not maintain or contribute to any Pension Plan that is covered by Title IV of ERISA.

 

(j)  It has filed all federal, state and local tax returns and all other tax returns which, to its knowledge, 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 it, except such taxes, if any, as are being contested in good faith and for which adequate reserves have been set aside on its books.  It 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.

 

(k)  It 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.

 

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(l)  Both before and after giving effect to each Purchase by HVF or HGI, as applicable, it is solvent within the meaning of the Bankruptcy Code and 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 it.

 

(m)  All of its issued and outstanding limited liability company interests 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.  In the case of HVF, it has no subsidiaries and owns no capital stock of, or other equity interest in, any other Person, other than Hertz Vehicles LLC.

 

(n)  In the case of HVF, (x) other than the HVF Credit Facility, the Related Documents or any agreement entered into in connection with the issuance of any Series of Notes pursuant to the Base Indenture, it is not a party to any contract or agreement of any kind or nature and (y) it is not subject to any obligations or liabilities of any kind or nature in favor of any third party, including, without limitation, Contingent Obligations.  In the case of HVF, it has not engaged in any activities since its formation (other than those incidental to its formation, 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).

 

(o)  It is not (i) in violation of the HGI LLC Agreement or HVF LLC Agreement, as applicable, (ii) in violation of any Requirement of Law or (iii) in violation of any Contractual Obligation.

 

If the applicable Vehicle transfer involves an HVF Vehicle, the HVF Segregated Vehicles, the Related Documents relating solely to such HVF Segregated Vehicles and each related Segregated Series shall be disregarded for purposes of making the representations set forth in Sections 3.01(f)  and (g) .  If the applicable Vehicle transfer involves an HVF Segregated Vehicle, the HVF Segregated Vehicles constituting Series-Specific Collateral for each other Segregated Series, the Related Documents relating solely to such other HVF Segregated Vehicles and each other Segregated Series, the HVF Vehicles, the Related Documents relating solely to such HVF Vehicles and each related Series of Notes shall be disregarded for purposes of making representations set forth in Sections 3.01(f)  and (g) .

 

SECTION 3.02.  Representations of Hertz .  As of the date hereof and with respect to each Vehicle transfer pursuant to Section 1.04 or 1.06 , Hertz represents and warrants as of the date of such transfer as follows:

 

(a)  It 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 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 have a Material Adverse Effect.

 

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(b)  This Agreement has been duly authorized, executed and delivered on its behalf and, assuming due authorization, execution and delivery by the other parties thereto, this Agreement is a valid and legally binding agreement of Hertz.

 

(c)  There is no consent, approval, authorization, order, registration or qualification of or with any Governmental Authority having jurisdiction over it which is required for the execution, delivery and performance of this Agreement (except to the extent that the failure to obtain such consent, approval, authorization, order, registration or qualification is not reasonably likely to result in a Material Adverse Effect).

 

(d)  There are no actions, suits, investigations or proceedings pending or, to its knowledge after reasonable inquiry, threatened against it before any Governmental Authority which question the validity or enforceability of this Agreement or any action taken or to be taken pursuant hereto, or which, if adversely determined, are reasonably likely to materially impair its ability to perform its obligations under this Agreement.

 

(e)  Neither it nor any of its properties or assets are subject to any contract or agreement, any provision of its certificate of incorporation or by-laws or other restriction, any law, rule, ruling, regulation or judgment of any country, state, territory or political subdivision thereof or Governmental Authority which would have a material adverse effect on its ability to perform its obligations under this Agreement.

 

(f)  Its execution, delivery and performance of this Agreement 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 its property or assets 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 it is a debtor or guarantor (except to the extent that such conflict, breach, creation or imposition is not reasonably likely to result in 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 its certificate of incorporation or by-laws.

 

ARTICLE 4

 

COVENANTS

 

SECTION 4.01.  Covenants of the Parties .

 

(a)  Compliance with Laws, etc.   Each of HGI, HVF and Hertz will comply in all material respects with all Requirements of Law and all applicable laws, 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 its business, financial condition, operations or properties or its ability to perform its obligations under the Related Documents to which it is a party.

 

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(b)  Notice of Proceedings .  Promptly upon becoming aware thereof, each of HGI, HVF and Hertz agrees to give the other parties to this Agreement, the Trustee and the Collateral Agent written notice of the commencement or existence of any proceeding by or before any Governmental Authority against or affecting it which is reasonably likely to have a material adverse effect on its financial condition, business, assets or operations or its ability to perform its obligations under the Related Documents to which it is a party.

 

(c)  Further Assurances .  Each of HGI, HVF and Hertz agrees from time to time, at its expense, promptly to execute and deliver all further instruments and documents, and to take all further reasonable actions (other than re-titling HVF Vehicles or HGI Vehicles to reflect a titleholder other than the Nominee) that may be reasonably necessary or desirable, or that a Purchaser or its assignee may reasonably request, to perfect, protect, or more fully evidence the sale of New ABS Vehicles and Transferred Vehicles under this Agreement, or to enable a party to this Agreement or its assignee to exercise and enforce its respective rights and remedies under this Agreement.

 

(d)  Separate Conduct of Business.

 

(i)  Each of HVF and Hertz agree that HVF will:  (i) at all times maintain at least two Independent Directors; (ii) to the extent that it will require an office to conduct its business, conduct its business from an office separate from that of Hertz or any of Hertz’s other Affiliates; (iii) maintain separate corporate records and books of account from those of Hertz or any of Hertz’s other Affiliates; (iv) ensure that all substantive communications, including without limitation, letters, invoices, purchase orders, contracts, statements and applications, will be made solely in its own name; (v) not hold itself out as having agreed to pay, or as being liable for, the obligations of Hertz or any of Hertz’s other Affiliates ; (vi) continuously maintain as official records the resolutions, agreements and other instruments underlying the transactions contemplated by this Agreement; (vii) not engage in any transaction with Hertz or any of Hertz’s other Affiliates except as contemplated by this Agreement or the other Related Documents or as permitted by this Agreement or the other Related Documents; and (viii) prepare its annual financial statements in a manner that is wholly consistent with the conclusion that the assets of Hertz or any of Hertz’s other Affiliates are not available to pay its creditors.

 

(ii)  Hertz agrees that it will (i) conduct its business from an office separate from that of HVF, should HVF require an office to conduct its business; (ii) maintain separate corporate records and books of account from those of HVF; (iii) ensure that all substantive communications, including without limitation, letters, invoices, purchase orders, contracts, statements and applications, will be made solely in its own name, except as contemplated in this Agreement or the Related Documents or as permitted by this Agreement or the other Related Documents; (iv) not hold itself out as having agreed to pay, or as being liable for, the obligations of HVF; (v) continuously maintain as official records the resolutions, agreements and other instruments underlying the transactions contemplated by this Agreement; (vi) not engage in any transaction with HVF except as contemplated by this Agreement or the other Related Documents or as permitted by this Agreement or the other Related Documents; and (vii) prepare its annual financial statements in accordance with GAAP.

 

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(e)  Maintenance of Separate Existence .  Each of HGI and HVF acknowledges its receipt of a copy of that certain opinion letter issued by Weil, Gotshal & Manges dated September 18, 2009 addressing the issue of substantive consolidation as it may relate to each of Hertz, HFF, Hertz Vehicles LLC and HVF.  HGI and HVF hereby agree to maintain in place all policies and procedures in all material respects, and take and continue to take all action, described in the factual assumptions set forth in such opinion letter and relating to such Person, except as may be confirmed as not required in a subsequent or supplemental opinion of Weil, Gotshal & Manges addressing the issue of substantive consolidation as it may relate to each of Hertz, Hertz Vehicles LLC, HVF and HFF.

 

(f)  Notice of Event of Termination .  Each of HGI, HVF and Hertz agrees that promptly upon becoming aware of any Event of Termination or any event which, with the giving of notice, the passage of time or both, would constitute an Event of Termination, it will furnish notice of such Event of Termination to the Trustee, the Collateral Agent (and, if such HVF Segregated Vehicle Termination Event relates to HVF Segregated Vehicles pledged as Series-Specific Collateral for any Segregated Non-Collateral Agency Series, the collateral agent with respect to such related Segregated Series) and each of the other parties to this Agreement.

 

(g)  New Vehicle Schedules, Rejected Vehicle Schedules and Transferred Vehicle Schedules .  Hertz, as Servicer, shall deliver New Vehicle Schedules with respect to New HVF Vehicles, Rejected Vehicle Schedules with respect to New HVF Vehicles and Transferred Vehicle Schedules with respect to New HVF Vehicles to HGI, HVF, the Nominee, the Collateral Agent and the Trustee in accordance with Sections 1.04 and 1.06 , and the information contained in such New Vehicle Schedules, Rejected Vehicle Schedules and Transferred Vehicle Schedules shall be correct in all material respects at the time of their delivery.  Hertz, as Servicer, shall deliver New Vehicle Schedules with respect to New HVF Segregated Vehicles, Rejected Vehicle Schedules with respect to New HVF Segregated Vehicles and Transferred Vehicle Schedules with respect to New HVF Segregated Vehicles to HGI, HVF, the Nominee, the Collateral Agent (or, if such schedules relate to HVF Segregated Vehicles pledged as Series-Specific Collateral for any Segregated Non-Collateral Agency Series, the collateral agent with respect to such related Segregated Series), and the Trustee in accordance with Sections 1.04 and 1.06 , and the information contained in such New Vehicle Schedules, Rejected Vehicle Schedules and Transferred Vehicle Schedules shall be correct in all material respects at the time of their delivery

 

(h)  Titling and Liening of Vehicles .  Hertz, as Servicer, shall, subject to the terms of the Nominee Agreement, title each Vehicle (other than any HVF Segregated Vehicle constituting Series-Specific Collateral for any Segregated Non-Nominee Series) in the name of the Nominee, unless and until it is directed to do otherwise in accordance with the Nominee Agreement.  Hertz shall title each HVF Segregated Vehicle pledged as Series-Specific Collateral for any Segregated Non-Nominee Series in the name of the nominee with respect to the related Segregated Non-Nominee Series, unless it is directed to do otherwise in accordance with the related nominee agreement or Series Supplement.  Hertz, as Servicer, shall, subject to the terms of the Collateral Agency Agreement, note the lien of the Collateral Agent on the Certificate of Title of each Vehicle, unless and until it is

 

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directed to do otherwise in accordance with the Collateral Agency Agreement.  Hertz, as Servicer, shall, subject to the terms of the collateral agency agreement or any similar agreement relating to a Segregated Non-Collateral Agency Series, Collateral Agent note the lien of the collateral agent with respect to such Segregated Non-Collateral Agency Series on the Certificate of Title of each such Vehicle pledged as Series-Specific Collateral with respect to such Segregated Series.

 

(i)  HGI further agrees that:

 

(i)  Payment of Obligations .  It 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.

 

(ii)  Conduct of Business and Maintenance of Existence .  It 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 have a material adverse effect on its business, financial condition, results of operations or properties or its ability to perform its obligations under the Related Documents to which it is a party or which qualification shall be necessary to protect the validity and enforceability of this Agreement.

 

(iii)  Books and Records .  It will keep proper books of record and accounts in which full, true and correct entries shall be made of all its dealings and transactions, business and activities in accordance with GAAP.

 

(iv)  No ERISA Plan .  It will not establish or maintain or contribute to any Pension Plan that is covered by Title IV of ERISA.

 

(v)  Mergers .  It will not merge or consolidate with or into any other Person.

 

(vi)  Dividends, Officers’ Compensation, etc .  It will not declare or pay any distributions on any of its limited liability company interests except to the extent permitted under Section 18-607 of the Delaware Limited Liability Company Act.

 

(vii)  Amendments to HGI LLC Agreement .  It will not amend the HGI 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.

 

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ARTICLE 5

 

SERVICER; MASTER EXCHANGE AGREEMENT

 

SECTION 5.01.  Hertz Acting as Servicer .  The parties to this Agreement acknowledge and agree that Hertz has agreed to act on behalf of each of HGI and HVF as Servicer pursuant to the Leases, and, as Servicer, has agreed to perform certain duties of each of HGI and HVF under this Agreement and the other Related Documents.

 

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.

 

ARTICLE 6

 

EVENTS OF TERMINATION

 

SECTION 6.01.  Events of Termination .  If any of the following events (each an “ Event of Termination ”) shall occur and be continuing:

 

(a)  A Purchaser shall fail to make any payment required under Section 1.05 or 1.07 for five Business Days; or

 

(b)  Any representation or warranty made by Hertz, HGI or HVF under this Agreement or any written information or report (including, without limitation, any New Vehicle Schedule, Rejected Vehicle Schedule or Transferred Vehicle Schedule) delivered by the Servicer pursuant to this Agreement shall prove to have been incorrect or untrue in any material respect when made or delivered and such condition, to the extent it is capable of being remedied, shall remain unremedied for 10 days; or

 

(c)  Hertz, HGI or HVF shall fail to perform or observe in any material respect any other term, covenant or agreement contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for 10 days after the earlier of the date that written notice thereof shall have been given to Hertz, HGI, HVF, the Trustee, the Collateral Agent or the collateral agent with respect to a Segregated Non-Collateral Agency Series, and the date that Hertz, HGI or HVF has actual knowledge thereof; or

 

(d)  A Liquidation Event of Default occurs; or

 

(e)  Any purchase of New ABS Vehicles, Rejected Vehicles or Transferred Vehicles hereunder shall for any reason cease to transfer valid ownership of such New ABS Vehicles, Rejected Vehicles or Transferred Vehicles to the Purchaser thereof free and clear of any Lien other than Permitted Liens; or

 

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(f)  An Event of Bankruptcy occurs with respect to Hertz or a Seller; or

 

(g)  A Servicer Default occurs; or

 

(h)  With respect to the HVF Vehicles, an Amortization Event occurs, and with respect to the HVF Segregated Vehicles that constitute Series-Specific Collateral for any Segregated Series, an Amortization Event occurs with respect to such Segregated Series;

 

then, and in any such event, each of HGI and HVF will no longer be obligated to buy or sell vehicles under this Agreement.

 

ARTICLE 7

 

INDEMNIFICATION

 

SECTION 7.01.  Indemnification .  The parties agree that the arrangements set forth in this Agreement are covered by the Indemnification Agreement. In addition, (a) Hertz hereby indemnifies and holds harmless HGI, HVF, the Trustee and the Collateral Agent for any or all damages, claims, demands, losses, liabilities and related costs or expenses (“ Losses ”) arising out of or resulting from (including reasonable costs of investigation and attorney’s fees and expenses) (i) any actions or failures to act in connection with this Agreement, including providing notices pursuant to Sections 1.04 and 1.06 , ordering Vehicles pursuant to Section 1.02 , and facilitating payment for Vehicles pursuant to Sections 1.03 , 1.05 and 1.07 or (ii) the failure of any representation or warranty or statement made by Hertz (or any of its officers) under or in connection with this Agreement or in any certificate, report, schedule or notice delivered pursuant hereto to be true and correct when made or deemed made; and (b) HGI hereby indemnifies and holds harmless HVF for any and all Losses arising out of or resulting from (including reasonable costs of negotiation and attorney’s fees and expenses) any actions of a Qualified Intermediary on behalf of HGI in connection with the Master Exchange Agreement.  The provisions of this indemnity shall run directly to, and be enforceable by, an injured party and shall survive the termination of this Agreement.

 

ARTICLE 8

 

MISCELLANEOUS

 

SECTION 8.01.  No Third Party Beneficiaries.   This Agreement will not confer any rights or remedies upon any Person other than the parties hereto, the Trustee, the Collateral Agent and their respective successors and permitted assigns.

 

SECTION 8.02.  Entire Agreement.   This Agreement and the other agreements specifically referenced herein constitute the entire agreement among the parties hereto and supersede any prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they related in any way to the subject matter hereof.

 

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SECTION 8.03.  Succession and Assignment.   This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.  Under the Indenture, HVF will assign its rights under this Agreement to the Trustee (for the benefit of the holders of the applicable Indenture Notes); the parties hereto may not otherwise assign either this Agreement or any of their respective rights, interest, or obligations hereunder without the prior written approval of the other parties and the satisfaction of the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding.

 

SECTION 8.04.  Counterparts.   This Agreement may be executed in separate counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.

 

SECTION 8.05.  Headings.   The section headings contained in this Agreement are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement.

 

SECTION 8.06.  Notices.   All notices, requests, demands, claims and other communications hereunder will be in writing.  Any notice, request demand, claim, or other communication hereunder will be deemed duly given if (and then two Business Days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient as set forth below:

 

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.

 

SECTION 8.07.  Governing Law.   THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK.

 

SECTION 8.08.  Amendments and Waivers .  No amendment of any provision of this Agreement will be valid unless the same will be in writing and signed by each of the parties hereto and the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding shall have been satisfied with respect thereto.  No waiver by any party hereto of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, will be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

 

SECTION 8.09.  Severability.   Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

 

SECTION 8.10.  Construction.   The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against any party.

 

SECTION 8.11.  Nonpetition Covenants.   Each of HVF, HGI and Hertz 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, HVF, HGI 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. The provisions of this Section 8.11 shall survive the termination of this Agreement.

 

SECTION 8.12.  Fee .  As compensation for the services rendered by HGI to HVF pursuant to this Agreement, HVF shall pay to HGI a fee of $5,000 per month which shall be payable on the Payment Date.

 

18



 

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.

 

 

THE HERTZ CORPORATION

 

 

 

By:

/s/ Scott Massengill

 

 

Scott Massengill

 

 

Treasurer

 

 

 

HERTZ GENERAL INTEREST LLC

 

 

 

By:

/s/ Scott Massengill

 

 

Scott Massengill

 

 

Vice President & Treasurer

 

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

By:

/s/ Scott Massengill

 

 

Scott Massengill

 

 

Vice President & Treasurer

 

19



 

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

 

20



 

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

 

21



 

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

 

 

 

 

 

Page

 

 

 

 

 

ARTICLE I

CERTAIN DEFINITIONS

 

2

SECTION 1.1.

Certain Definitions

 

2

SECTION 1.2.

Interpretation and Construction

 

3

ARTICLE II

COLLATERAL AGENT AS LIENHOLDER FOR THE SECURED PARTIES

 

3

SECTION 2.1.

Security Interest

 

3

SECTION 2.2.

Designation of HVF Vehicles and HGI Vehicles

 

11

SECTION 2.3.

Redesignation of Vehicles

 

12

SECTION 2.4.

Servicer’s Fleet Reports

 

12

SECTION 2.5.

Collateral Accounts

 

13

SECTION 2.6.

Certificates of Title

 

16

SECTION 2.7.

Release of Collateral

 

18

ARTICLE III

THE SERVICER

 

19

SECTION 3.1.

Acceptance of Appointment

 

19

SECTION 3.2.

Servicer Functions

 

19

SECTION 3.3.

The Servicer Not to Resign

 

20

SECTION 3.4.

Servicing Rights of Collateral Agent

 

20

SECTION 3.5.

Incumbency Certificate

 

20

SECTION 3.6.

Effective Period and Termination

 

20

ARTICLE IV

REPRESENTATIONS, WARRANTIES AND COVENANTS

 

21

SECTION 4.1.

Representations and Warranties of the Grantors

 

21

SECTION 4.2.

Representations and Warranties of the Servicer

 

22

SECTION 4.3.

Covenants of Grantors

 

23

ARTICLE V

THE COLLATERAL AGENT

 

23

SECTION 5.1.

Appointment

 

23

SECTION 5.2.

Representations

 

25

SECTION 5.3.

Exculpatory Provisions

 

25

SECTION 5.4.

Limitations on Duties of the Collateral Agent

 

25

SECTION 5.5.

Resignation and Removal of Collateral Agent

 

28

SECTION 5.6.

Qualification of Successors to Collateral Agent

 

29

 

i



 

SECTION 5.7.

Merger of the Collateral Agent

 

29

SECTION 5.8.

Compensation and Expenses

 

29

SECTION 5.9.

Stamp, Other Similar Taxes and Filing Fees

 

30

SECTION 5.10.

Indemnification

 

30

SECTION 5.11.

Waiver of Set-Off by the Collateral Agent

 

31

ARTICLE VI

MISCELLANEOUS

 

31

SECTION 6.1.

Amendments, Supplements and Waivers

 

31

SECTION 6.2.

Notices

 

31

SECTION 6.3.

Headings

 

32

SECTION 6.4.

Severability

 

32

SECTION 6.5.

Counterparts

 

32

SECTION 6.6.

Binding Effect

 

32

SECTION 6.7.

Governing Law

 

32

SECTION 6.8.

Effectiveness

 

32

SECTION 6.9.

Termination of this Agreement

 

32

SECTION 6.10.

No Bankruptcy Petition Against the Grantors

 

32

SECTION 6.11.

No Waiver; Cumulative Remedies

 

33

SECTION 6.12.

Submission To Jurisdiction; Waivers

 

33

SECTION 6.13.

Waiver of Jury Trial

 

33

SECTION 6.14.

Insurance Notification

 

34

SECTION 6.15.

Waiver of Set-Off With Respect to the Grantors

 

34

SECTION 6.16.

Confidentiality

 

34

SECTION 6.17.

No Recourse

 

34

 

 

 

 

EXHIBITS

 

 

 

 

Exhibit A

Servicer’s Fleet Report

 

 

Exhibit B

Power of Attorney

 

 

 

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 Hertz’s daily domestic rental operations and, in certain circumstances, for use by Hertz’s and Hertz Equipment Rental Corporation’s 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 Hertz’s daily domestic rental operations and, in certain circumstances, for use by Hertz’s and Hertz Equipment Rental Corporation’s 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 Hertz’s daily domestic rental operations and, in certain circumstances, for use by Hertz’s and Hertz Equipment Rental Corporation’s 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:

 

ARTICLE I

CERTAIN DEFINITIONS

 

SECTION 1.1.  Certain Definitions.   Unless otherwise specified herein, capitalized terms used herein (including the preamble and the recitals hereto) shall have the meanings assigned to such terms (a) in the Definitions List attached as Schedule I to the Base Indenture as such Definitions List may be amended or modified from time to time in accordance with the provisions of the Base Indenture (the “ Definitions List ”), except that (i) for purposes of this Agreement only, the term “Related Documents” shall be deemed to include the HGI Lease and the HGI Credit Facility and (ii) the term “Vehicles” as used herein and, for purposes of this Agreement only, as used in the Definitions List shall have the meaning assigned to that term in the Master Exchange Agreement or (b) in the Master Exchange Agreement; 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

 

2



 

the HGI Lease shall apply in all contexts relating to the HGI Vehicles and HGI Vehicle Collateral.

 

SECTION 1.2.  Interpretation and Construction.   Unless the context of this Agreement otherwise clearly requires, references to the plural include the singular, to the singular include the plural and to the part include the whole.  The words “hereof”, “herein”, “hereunder” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement.  Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”.  Sections and other headings contained in this Agreement are for reference purposes only and shall not control or affect the construction of this Agreement or the interpretation hereof in any respect.  Section, subsection and exhibit references are to this Agreement unless otherwise specified.  As used in this Agreement, the masculine, feminine or neuter gender shall each be deemed to include the others whenever the context so indicates.

 

ARTICLE II

COLLATERAL AGENT AS LIENHOLDER
FOR THE SECURED PARTIES

 

SECTION 2.1.  Security Interest.   (a)  Grant by HVF for the benefit of the HVF General Secured Party for the Further Benefit of Noteholders .  As security for the payment of the Note Obligations from time to time owing by HVF under the Indenture, HVF hereby grants, pledges and assigns to the Collateral Agent for the benefit of the HVF General Secured Party a security interest in all right, title and interest of HVF in, to and under the following, whether now existing or hereafter acquired (the “ HVF Vehicle Collateral ”):

 

(i) all HVF Vehicles and all Certificates of Title with respect thereto;

 

(ii) all Manufacturer Programs as they relate to the HVF Vehicles and all monies due and to become due in respect of such HVF Vehicles from the Manufacturers under or in connection with the Manufacturer Programs (other than Excluded Payments) whether payable as vehicle repurchase prices, auction prices, auction sales proceeds, guaranteed depreciation payments, incentive payments in respect of sales of Program Vehicles outside of the related Manufacturer Programs, fees, expenses, costs, indemnities, insurance recoveries, damages for breach of the Manufacturer Programs or otherwise and all rights to compel performance and otherwise exercise remedies relating to the HVF Vehicles thereunder and/or such monies due or to become due with respect thereto;

 

(iii) the Assignment Agreements as they relate to the HVF Vehicles, including, without limitation, all rights, remedies, powers, privileges and claims of HVF against any other party under or with respect to the Assignment Agreements as they relate to such HVF Vehicles (whether arising pursuant to the terms of the Assignment Agreements or otherwise available to HVF at law or in equity), and the right to enforce any of the Assignment Agreements as they relate

 

3



 

to such HVF Vehicles and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Assignment Agreements or the obligations of any party thereunder, in each case as the same relate to such HVF Vehicles;

 

(iv) the Nominee Agreement as it relates to the HVF Vehicles, including, without limitation, all rights, remedies, powers, privileges and claims of HVF against any other party under or with respect to the Nominee Agreement as it relates to such HVF Vehicles (whether arising pursuant to the terms of the Nominee Agreement or otherwise available to HVF at law or in equity), and the right to enforce the Nominee Agreement as it relates to such HVF Vehicles and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Nominee Agreement or the obligations of any party thereunder, in each case as the same relate to such HVF Vehicles;

 

(v) the Hertz Nominee Agreement as it relates to the HVF Vehicles, including, without limitation, all rights, remedies, powers, privileges and claims of HVF against any other party under or with respect to the Hertz Nominee Agreement as it relates to such HVF Vehicles (whether arising pursuant to the terms of the Hertz Nominee Agreement or otherwise available to HVF at law or in equity), and the right to enforce the Hertz Nominee Agreement as it relates to such HVF Vehicles and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Hertz Nominee Agreement or the obligations of any party thereunder in each case as the same relates to the HVF Vehicles;

 

(vi) the HFC Nominee Agreement as it relates to the HVF Vehicles, including, without limitation, all rights, remedies, powers, privileges and claims of HVF against any other party under or with respect to the HFC Nominee Agreement as it relates to such HVF Vehicles (whether arising pursuant to the terms of the HFC Nominee Agreement or otherwise available to HVF at law or in equity), and the right to enforce the HFC Nominee Agreement as it relates to such HVF Vehicles and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the HFC Nominee Agreement or the obligations of any party thereunder in each case as the same relates to the HVF Vehicles;

 

(vii) all sale or other proceeds from the disposition of HVF Vehicles, including all monies due in respect of such HVF Vehicles, whether payable as the purchase price of such Vehicles, or as related fees, expenses, costs, indemnities, insurance recoveries, or otherwise;

 

(viii) all payments and claims under insurance policies (whether or not the Collateral Agent or the HVF General Secured Party is named as the loss payee

 

4



 

thereof) with respect to HVF Vehicles or any warranty payable by reason of loss or damage to, or otherwise with respect to, any of such HVF Vehicles;

 

(ix) the Collateral Accounts, all monies on deposit from time to time in the Collateral Accounts constituting proceeds from the disposition of or otherwise arising from, related to or in respect of HVF Vehicles and all proceeds thereof;

 

(x) the Master Exchange Agreement and the Escrow Agreement as they relate to the HVF Vehicles and all monies due and to become due to HVF thereunder in respect of the HVF Vehicles, whether payable by the Intermediary to HVF from the accounts maintained pursuant to the Escrow Agreement or payable as damages for breach of the Master Exchange Agreement, the Escrow Agreement or otherwise and all rights to compel performance and otherwise exercise remedies thereunder, in each case to the extent such agreements relate to HVF Vehicles, including, without limitation, all rights, remedies, powers, privileges and claims of HVF against any other party under or with respect to the Master Exchange Agreement and the Escrow Agreement (whether arising pursuant to the terms of the Master Exchange Agreement or the Escrow Agreement or otherwise available to HVF at law or in equity) to the extent such rights, remedies, powers, privileges and claims relate to HVF Vehicles, and the right to enforce the Master Exchange Agreement and the Escrow Agreement and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Master Exchange Agreement or the Escrow Agreement or the obligations of any party thereunder, in each case to the extent relating to HVF Vehicles; provided, however, that in the case of any funds held in the accounts maintained pursuant to the Escrow Agreement that constitute Relinquished Property Proceeds, such funds shall not constitute HVF Vehicle Collateral unless such funds are or become Additional Subsidies; and

 

(xi) to the extent not otherwise included, all Proceeds and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing.

 

(b)              Grant by HVF for the Benefit of HVF Segregated Series Secured Party for the Further Benefit of the Holders of a Segregated Series of Note .  As security for the payment of the respective obligations in respect of the Segregated Series Note Obligations from time to time owing by HVF under the Indenture with respect to a Segregated Series, HVF hereby grants, pledges and assigns to the Collateral Agent for the benefit of the HVF Series Segregated Secured Party for the further benefit of the holders of the related Segregated Notes a security interest in all right, title and interest of HVF in, to and under the following, whether now existing or hereafter acquired (with respect to such Segregated Series, the “ HVF Segregated Series Vehicle Collateral ” and the HVF Segregated Series Vehicle Collateral with respect to all Segregated Collateral Agency Series, the “ HVF Segregated Vehicle Collateral ”):

 

(i) all HVF Segregated Vehicles relating to such Segregated Series and all Certificates of Title with respect thereto;

 

5



 

(ii) all Manufacturer Programs as they relate to such HVF Segregated Vehicles relating to such Segregated Series and all monies due and to become due in respect of such HVF Segregated Vehicles from the Manufacturers under or in connection with the Manufacturer Programs (other than Excluded Payments) whether payable as vehicle repurchase prices, auction prices, auction sales proceeds, guaranteed depreciation payments, incentive payments in respect of sales of Program Vehicles outside of the related Manufacturer Programs, fees, expenses, costs, indemnities, insurance recoveries, damages for breach of the Manufacturer Programs or otherwise and all rights to compel performance and otherwise exercise remedies relating to such HVF Segregated Vehicles thereunder and/or such monies due or to become due with respect thereto;

 

(iii) the Assignment Agreements as they relate to such HVF Segregated Vehicles relating to such Segregated Series, including, without limitation, all rights, remedies, powers, privileges and claims of HVF against any other party under or with respect to the Assignment Agreements as they relate to such HVF Segregated Vehicles (whether arising pursuant to the terms of the Assignment Agreements or otherwise available to HVF at law or in equity), and the right to enforce any of the Assignment Agreements as they relate to such HVF Segregated Vehicles and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Assignment Agreements or the obligations of any party thereunder, as the same relates to such HVF Segregated Vehicles;

 

(iv) the Nominee Agreement as it relates to such HVF Segregated Vehicles relating to such Segregated Series, including, without limitation, all rights, remedies, powers, privileges and claims of HVF against any other party under or with respect to the Nominee Agreement as it relates to such HVF Segregated Vehicles (whether arising pursuant to the terms of the Nominee Agreement or otherwise available to HVF at law or in equity), and the right to enforce the Nominee Agreement as it relates to such HVF Segregated Vehicles and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Nominee Agreement or the obligations of any party thereunder, in each case as the same relates to the HVF Segregated Vehicles;

 

(v) all sale or other proceeds from the disposition of such HVF Segregated Vehicles relating to such Segregated Series, including all monies due in respect of such HVF Segregated Vehicles, whether payable as the purchase price of such Vehicles, or as related fees, expenses, costs, indemnities, insurance recoveries, or otherwise;

 

(vi) all payments and claims under insurance policies (whether or not the Collateral Agent or the HVF Series Segregated Secured Party is named as the loss payee thereof) with respect to such HVF Segregated Vehicles relating to such

 

6



 

Segregated Series or any warranty payable by reason of loss or damage to, or otherwise with respect to, any of such HVF Segregated Vehicles;

 

(vii) the Collateral Accounts, all monies on deposit from time to time in the Collateral Accounts constituting proceeds from the disposition of or otherwise arising from, related to or in respect of such HVF Segregated Vehicles relating to such Segregated Series, and all proceeds thereof;

 

(viii) the Master Exchange Agreement and the Escrow Agreement as they relate to such HVF Segregated Vehicles relating to such Segregated Series and all monies due and to become due to HVF thereunder in respect of such HVF Segregated Vehicles, whether payable by the Intermediary to HVF from the accounts maintained pursuant to the or Escrow Agreement or payable as damages for breach of the Master Exchange Agreement, the Escrow Agreement or otherwise and all rights to compel performance and otherwise exercise remedies thereunder, in each case to the extent such agreements relate to such HVF Segregated Vehicles, including, without limitation, all rights, remedies, powers, privileges and claims of HVF against any other party under or with respect to the Master Exchange Agreement and the Escrow Agreement (whether arising pursuant to the terms of the Master Exchange Agreement or the Escrow Agreement or otherwise available to HVF at law or in equity) to the extent such rights, remedies, powers, privileges and claims relate to such HVF Segregated Vehicles, and the right to enforce the Master Exchange Agreement and the Escrow Agreement and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Master Exchange Agreement or the Escrow Agreement or the obligations of any party thereunder, in each case to the extent relating to such HVF Segregated Vehicles; provided, however, that in the case of any funds held in the accounts maintained pursuant to the Escrow Agreement that constitute Relinquished Property Proceeds, such funds shall not constitute HVF Segregated Series Vehicle Collateral unless such funds are or become Additional Subsidies; and

 

(ix) to the extent not otherwise included, all Proceeds and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing.

 

(c)  Grant by HGI .  As security for the payment of the unpaid principal of and interest on all loans made to HGI under the HGI Credit Facility and all other obligations and liabilities of HGI from time to time owing by HGI to Hertz thereunder, HGI hereby grants, pledges and assigns to the Collateral Agent for the benefit of HGI Secured Party, a security interest in all right, title and interest of HGI in, to and under the following, whether now existing or hereafter acquired (the “ HGI Vehicle Collateral ” and together with the HVF Vehicle Collateral and the HVF Segregated Vehicle Collateral, the “ Vehicle Collateral ”):

 

(i) all HGI Vehicles and all Certificates of Title with respect thereto;

 

7


 

(ii) all Manufacturer Programs as they relate to such HGI Vehicles and all monies due and to become due in respect of the HGI Vehicles from the Manufacturers under or in connection with the Manufacturer Programs (other than Excluded Payments) whether payable as vehicle repurchase prices, auction prices, auction sales proceeds, guaranteed depreciation payments, incentive payments in respect of sales of Program Vehicles outside of the related Manufacturer Programs, fees, expenses, costs, indemnities, insurance recoveries, damages for breach of the Manufacturer Programs or otherwise and all rights to compel performance and otherwise exercise remedies relating to the HGI Vehicles thereunder and/or such monies due or to become due with respect thereto;

 

(iii) the Assignment Agreements as they relate to the HGI Vehicles, including, without limitation, all rights, remedies, powers, privileges and claims of HGI against any other party under or with respect to the Assignment Agreements as they relate to such HGI Vehicles (whether arising pursuant to the terms of the Assignment Agreements or otherwise available to HGI at law or in equity), and the right to enforce any of the Assignment Agreements as they relate to such HGI Vehicles and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Assignment Agreements or the obligations of any party thereunder, in each case as the same relates to such HGI Vehicles;

 

(iv) the Nominee Agreement as it relates to the HGI Vehicles, including, without limitation, all rights, remedies, powers, privileges and claims of HGI against any other party under or with respect to the Nominee Agreement as it relates to such HGI Vehicles (whether arising pursuant to the terms of the Nominee Agreement or otherwise available to HGI at law or in equity), and the right to enforce the Nominee Agreement as it relates to such HGI Vehicles and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Nominee Agreement or the obligations of any party thereunder, in each case as the same relates to such HGI Vehicles;

 

(v) all sale or other proceeds from the disposition of HGI Vehicles, including all monies due in respect of such HGI Vehicles, whether payable as the purchase price of such Vehicles, or as related fees, expenses, costs, indemnities, insurance recoveries, or otherwise;

 

(vi) all payments and claims under insurance policies with respect to HGI Vehicles or any warranty payable by reason of loss or damage to, or otherwise with respect to, any of such HGI Vehicles;

 

(vii) the Collateral Accounts, all monies on deposit from time to time in the Collateral Accounts constituting proceeds from the disposition of or otherwise arising from, related to or in respect of HGI Vehicles, and all proceeds thereof;

 

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(viii) the Master Exchange Agreement and the Escrow Agreement as they relate to HGI and all monies due and to become due to HGI thereunder, whether payable by the Intermediary to HGI from the accounts maintained pursuant to the Escrow Agreement or payable as damages for breach of the Master Exchange Agreement, the Escrow Agreement or otherwise and all rights to compel performance and otherwise exercise remedies thereunder, in each case to the extent such agreements relate to HGI Vehicles, including, without limitation, all rights, remedies, powers, privileges and claims of HGI against any other party under or with respect to the Master Exchange Agreement and the Escrow Agreement (whether arising pursuant to the terms of the Master Exchange Agreement or the Escrow Agreement or otherwise available to HGI at law or in equity) to the extent such rights, remedies, powers, privileges and claims relate to such HVF Segregated Vehicles, and the right to enforce the Master Exchange Agreement and the Escrow Agreement and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Master Exchange Agreement or the Escrow Agreement or the obligations of any party thereunder, in each case to the extent such agreements relate to HGI Vehicles; provided, however, that in the case of any funds held in the accounts maintained pursuant to the Escrow Agreement that constitute Relinquished Property Proceeds, such funds shall not constitute HGI Vehicle Collateral unless such funds are or become Additional Subsidies; and

 

(ix) to the extent not otherwise included, all Proceeds and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing.

 

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.

 

(d)  Notwithstanding the assignment and security interest so granted to the Collateral Agent on behalf of the applicable Secured Parties pursuant to subsections (a)  and (c)  above, each Grantor shall nevertheless be permitted, subject to the Collateral Agent’s right (for the avoidance of doubt, subject to Section 5.4(g) ) to revoke such permission relating to the HVF Collateral Vehicles with respect to HVF in the event of an Amortization Event with respect to any Series of Notes Outstanding and to revoke such permission with respect to HGI in the event of an Event of Default under the HGI Credit Facility, to give all consents, requests, notices, directions, approvals, extensions or waivers, if any, which are required to be given in the normal

 

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course of business in connection with the Vehicles or any Collateral Agreement (which does not include waivers of default under any of the Collateral Agreements or any of the Manufacturer Programs).  Notwithstanding the assignment and security interest so granted to the Collateral Agent on behalf of each HVF Segregated Series Secured Party pursuant to subsection (b)  above, the applicable Grantor shall nevertheless be permitted, subject to the Collateral Agent’s right (for the avoidance of doubt, subject to Section 5.4(g) ) to revoke such permission relating to the applicable HVF Segregated Series Vehicle Collateral with respect to HVF in the event of an Amortization Event with respect to the applicable Segregated Series of Notes Outstanding, to give all consents, requests, notices, directions, approvals, extensions or waivers, if any, which are required to be given in the normal course of business in connection with the Vehicles included as HVF Segregated Series Vehicle Collateral with respect to such Segregated Series or any collateral agreement (which does not include waivers of default under any of the Collateral Agreements or any of the Manufacturer Programs) relating to such Segregated Series.

 

(e)  The HVF General Secured Party hereby agrees that it shall be entitled to the benefits of this Agreement only with respect to the HVF Vehicles and the other HVF Vehicle Collateral.  The HVF Secured Party hereby acknowledges that it shall have no interest in (i) any HGI Vehicle or any HVF Segregated Vehicle, (ii) any funds in a Collateral Account that are proceeds of any HGI Vehicle or any HVF Segregated Vehicle, (iii) any rights under any Manufacturer Program with respect to any HGI Vehicle or any HVF Segregated Vehicle or (iv) any other portion of the HGI Vehicle Collateral or any HVF Segregated Vehicle Collateral, in each case regardless of the time, order, manner or nature of attachment or perfection of security interests in the HVF Vehicles, the HVF Segregated Vehicles or the HGI Vehicles (including the giving of or failure to give any purchase money security interest or other notice, or the order of filing financing statements), or any provision of the UCC, the Bankruptcy Code, or other applicable law.

 

(f)  Each HVF Segregated Series Secured Party, in its capacity as secured party on behalf of the Segregated Noteholders of a particular Segregated Series of Notes, hereby agrees that it shall be entitled to the benefits of this Agreement only with respect to the HVF Segregated Vehicles included as Series-Specific Collateral with respect to such Segregated Series of Notes and the related HVF Segregated Series Vehicle Collateral.  The HVF Segregated Series Secured Party for such Segregated Series of Notes hereby acknowledges that, in such capacity, it shall have no interest in (i) any HGI Vehicle, any HVF Vehicle or any HVF Segregated Vehicle not included as Series-Specific Collateral with respect to such Segregated Series of Notes, (ii) any funds in a Collateral Account that are proceeds of any HGI Vehicle, any HVF Vehicle or any HVF Segregated Vehicle not included as Series-Specific Collateral with respect to such Segregated Series of Notes, (iii) any rights under any Manufacturer Program with respect to any HGI Vehicle, any HVF Vehicle or any HVF Segregated Vehicle not included as Series-Specific Collateral with respect to such Segregated Series of Notes or (iv) any other portion of the HGI Vehicle Collateral, the HVF Vehicle Collateral or the HVF Segregated Vehicle Collateral not included as HVF Segregated Series Vehicle Collateral with respect to such Segregated Series of Notes, in each case regardless of the time, order, manner or nature of attachment or perfection of security interests in the HVF Vehicles, the HVF Segregated Vehicles or the HGI Vehicles (including the giving of or failure to give any purchase money security interest or other notice, or

 

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the order of filing financing statements), or any provision of the UCC, the Bankruptcy Code, or other applicable law.

 

(g)  The HGI Secured Party hereby agrees that it shall be entitled to the benefits of this Agreement only with respect to the HGI Vehicles and the other HGI Vehicle Collateral.  The HGI Secured Party hereby acknowledges that it shall have no interest in (i) any HVF Vehicle or any HVF Segregated Vehicle, (ii) any funds in a Collateral Account that are proceeds of any HVF Vehicle or any HVF Segregated Vehicle, (iii) any rights under any Manufacturer Program with respect to any HVF Vehicle or any HVF Segregated Vehicle or (iv) any other portion of the HVF Vehicle Collateral or HVF Segregated Vehicle Collateral, in each case regardless of the time, order, manner or nature of attachment or perfection of security interests in the HVF Vehicles, the HVF Segregated Vehicles or the HGI Vehicles (including the giving of or failure to give any purchase money security interest or other notice, or the order of filing financing statements), or any provision of the UCC, the Bankruptcy Code, or other applicable law.

 

(h)  References herein to “HVF Segregated Vehicles” shall not include the HVF Segregated Vehicles pledged to a collateral agent other than the Collateral Agent for the benefit of any Segregated Non-Collateral Agency Series unless expressly stated to the contrary herein.

 

SECTION 2.2.  Designation of HVF Vehicles and HGI Vehicles.   The Servicer shall identify on its computer system all Vehicles subject to the HVF Lease as HVF Vehicles, all Vehicles subject to the HGI Lease as HGI Vehicles and all Vehicles subject to each Segregated Series Lease (noting the particular Segregated Series Lease to which they are leased).  The designation of the Vehicles as HVF Vehicles, HVF Segregated Vehicles (including the notation indicating the particular Segregated Series Lease to which they are leased) and HGI Vehicles on the Servicer’s computer system shall be considered prima facie evidence of the HVF General Secured Party’s rights with respect to the HVF Vehicles and the other HVF Vehicle Collateral, with respect to each Segregated Series each HVF Segregated Series Secured Party’s rights with respect to the applicable HVF Segregated Vehicles and the other HVF Segregated Series Vehicle Collateral relating to such Segregated Series and the HGI Secured Party’s rights with respect to the HGI Vehicles and the other HGI Vehicle Collateral.  If at any time a Secured Party reasonably believes that such designation (including such a notation indicating a particular Segregated Series) by the Servicer is incorrect, it may dispute (the “ disputing Secured Party ”) such designation by delivering a written notice to each of the Servicer and the Collateral Agent setting forth its claim (a “ Reassignment Claim ”) as to the correct designation of an HVF Vehicle, HVF Segregated Vehicle or HGI Vehicle, as the case may be (each a “ redesignation ”).  The Servicer shall, promptly upon receipt of such notice, distribute a copy thereof to each Grantor and the Secured Party designated as the beneficiary of such Vehicle (the “ non-disputing Secured Party ”).  The non-disputing Secured Party shall, within ten (10) Business Days of receipt of such notice from the Servicer, notify each of the Servicer and the Collateral Agent in writing as to whether it consents to the disputing Secured Party’s redesignation.  If the Servicer and the Collateral Agent receive written notice from the non-disputing Secured Party consenting to the disputing Secured Party’s redesignation within the period set forth above, the Servicer shall promptly effect such redesignation.

 

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SECTION 2.3.  Redesignation of Vehicles .  From time to time (i) HGI may sell New HVF Vehicles or New HVF Segregated Vehicles to HVF pursuant to Section 1.05 of the Purchase Agreement, (ii) HGI may sell Transferred HGI Vehicles to HVF pursuant to Section 1.07 of the Purchase Agreement and (iii) HVF may sell Transferred HVF Vehicles or Transferred HVF Segregated Vehicles to HGI pursuant to Section 1.07 of the Purchase Agreement.  On the effective date of any such sale, upon the satisfaction of the conditions to the effectiveness of such sale under the Purchase Agreement, the Servicer shall redesignate on its computer systems such New HVF Vehicles as HVF Vehicles or as HVF Segregated Vehicle (indicating the particular Segregated Series Lease pursuant to which any such HVF Segregated Vehicle is leased), as applicable, such Transferred HGI Vehicles as HVF Vehicles or HVF Segregated Vehicles (indicating the particular Segregated Series Lease pursuant to which such HVF Segregated Vehicle is leased), as applicable, or such Transferred HVF Vehicles or Transferred HVF Segregated Vehicles as HGI Vehicles, as the case may be.  The Servicer shall redesignate each such Vehicle on its computer systems at the then current Net Book Value of such Vehicle.  Except as otherwise provided in Section 2.5(d), (i) the HVF General Secured Party and each HVF Segregated Series Secured Party hereby acknowledges that it shall have no interest in any Vehicle or other related Vehicle Collateral after such Vehicle has been redesignated as an HGI Vehicle in accordance with the terms of this Section 2.3 and that any such redesignation shall automatically constitute a release by the HVF General Secured Party or the relevant HVF Segregated Series Secured Party, as applicable, of any interest therein, (ii) the HGI Secured Party hereby acknowledges that it shall have no interest in any Vehicle or other related Vehicle Collateral after such Vehicle has been redesignated as an HVF Vehicle or an HVF Segregated Vehicle in accordance with the terms of this Section 2.3 and that any such redesignation shall automatically constitute a release by the HGI Secured Party of any interest therein, (iii) each HVF Segregated Series Secured Party hereby acknowledges that it shall have no interest in any Vehicle or other related Vehicle Collateral after such Vehicle has been redesignated as an HVF Vehicle in accordance with the terms of this Section 2.3 and (iv) the HVF General Secured Party hereby acknowledges that it shall have no interest in any Vehicle or other related Vehicle Collateral after such Vehicle has been redesignated as an HVF Segregated Vehicle in accordance with the terms of this Section 2.3.

 

SECTION 2.4.  Servicer’s Fleet Reports.   (a)  On or prior to each Determination Date, the Servicer shall furnish or cause to be furnished to the Collateral Agent a report (which may be on diskette or other electronic medium reasonably acceptable to the Collateral Agent) substantially in the form of Exhibit A (each such report, a “ Fleet Report ”), (i) identifying the HVF Vehicles (and as subsets thereof, each of the Initial Hertz Vehicles and the Service Vehicles), the HVF Segregated Vehicles (and the particular Segregated Series Lease pursuant to which such HVF Segregated Vehicles is leased), the HGI Vehicles, the GE Financed Vehicles and the other Vehicles owned by Hertz separately, as of the last day of the Related Month, (ii) listing each Vehicle by the VIN with respect to such Vehicle, (iii) identifying the date of the original purchase of each such Vehicle, (iv) identifying whether each such Vehicle is a Program Vehicle or a Non-Program Vehicle, (v) showing, as of the last day of the Related Month, the Capitalized Cost and the Net Book Value of each such Vehicle, (vi) identifying the state in which each such Vehicle is titled, (vii) providing 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 Servicer’s Agents as of such date, (viii) providing the name and address of all

 

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Servicer’s Agents as of such date and (ix) providing on a confidential basis (A) the actual mileage of each Vehicle as of its last check-in, (B) the date of the last check-in of each Vehicle, (C) if the Vehicle is a Program Vehicle or a Segregated Program Vehicle, the total mileage per the related Manufacturer Program, (D) the Minimum Term specified in each Manufacturer Program and (E) the Maximum Term specified in each Manufacturer Program.

 

(b)  The Collateral Agent shall make the most recent Fleet Report available for inspection by any Secured Party at the Corporate Trust Office, during normal business hours, upon such Secured Party’s prior written request.

 

(c)  On each Business Day commencing on the Initial Closing Date, the Servicer shall prepare and maintain a report identifying the HVF Vehicles, HVF Segregated Vehicles (specifying the particular Segregated Series Lease pursuant to which such HVF Segregated Vehicle is leased), the HGI Vehicles, the GE Financed Vehicles and the other Vehicles owned by Hertz separately by the VIN with respect to each such Vehicle as of the close of business on the immediately preceding Business Day, and shall deliver such report to HGI and HVF upon their request.

 

(d)  For so long as a Liquidation Event of Default or a Limited Liquidation Event of Default has occurred and is continuing (other than any such Limited Liquidation Event of Default that relates solely to any Segregated Series of Notes), the Servicer shall furnish or cause to be furnished to HVF on a weekly basis a report (which may be on diskette or other electronic medium) that contains the data set forth in a Fleet Report, but determined on a weekly basis, and HVF shall furnish or cause to be furnished to each HVF General Secured Party such weekly Fleet Report, and so long as a Liquidation Event of Default or a Limited Liquidation Event of Default has occurred and is continuing with respect to any Segregated Series of Notes, the Servicer shall furnish or cause to be furnished to HVF on a weekly basis a report (which may be on diskette or other electronic medium) that contains the data set forth in a Fleet Report, but determined on a weekly basis, and HVF shall furnish or cause to be furnished to the HVF Segregated Series Secured Party for such Series such weekly Fleet Report.

 

(e)  The Collateral Agent shall be entitled to request from the Servicer, with 10 Business Days prior written notice, a fully-uploadable list of Vehicles indicating whether any Vehicle is an HVF Segregated Vehicle (and, if such Vehicle is an HVF Segregated Vehicle, to which Segregated Series such HVF Segregated Vehicle relates) or an HVF Vehicle.

 

SECTION 2.5.  Collateral Accounts.   (a)  The Collateral Agent shall establish and maintain for the benefit of all of the Secured Parties one or more accounts, as “Deposit Accounts” under and as defined in Section 9-102(a)(29) of the New York UCC (each a “ Collateral Account ”), each in the name of the Collateral Agent or, prior to the date of termination of the Master Exchange Agreement pursuant to Section 7.01(b) thereof, the joint name of the Collateral Agent and the Intermediary, that shall be administered and operated as provided in this Agreement and the Master Exchange Agreement, bearing a designation clearly indicating that the funds deposited therein are held for the respective benefit of the applicable Secured Party as their interests may appear.  Each Collateral Account shall be maintained (i) with a Qualified Institution or (ii) as a segregated trust account with a Qualified Trust

 

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Institution.  If any Collateral Account is not maintained in accordance with the previous sentence, then within ten (10) Business Days of obtaining knowledge of such fact, the Collateral Agent and the Intermediary shall establish a new Collateral Account which complies with such sentence and transfer into the new Collateral Account all funds from the non-qualifying Collateral Account.  Initially, each Collateral Account will be established with the Collateral Agent.  Notwithstanding any contrary provision that may be contained in any Related Document, the provisions contained in this Agreement relating to the Collateral Accounts and to the flow of funds into and out of the Collateral Accounts are consented to by the parties hereto (in accordance with Section 6.1 hereof) and shall control.

 

(b)  The Servicer and each Grantor shall cause:

 

(i) all amounts due from Manufacturers and their related auctions dealers under their Manufacturer Programs with respect to the Vehicles, other than Excluded Payments and Permitted Check Payments, to be deposited directly into a Collateral Account by the Manufacturers and the related auction dealers; provided, however, that, 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 Manufacturers on account of Invoice Adjustments shall not be required to be deposited in a Collateral Account;

 

(ii) all amounts representing the proceeds from sales of Vehicles to third parties, other than the Manufacturers or their related auction dealers, and all amounts received by the Servicer in the form of Permitted Check Payments to be deposited into a Collateral Account within two Business Days of receipt by the Servicer;

 

(iii) all insurance proceeds and warranty payments in respect of the Vehicles, other than Excluded Payments, to be deposited into a Collateral Account within two Business Days of receipt by the Servicer; provided, however, that unless an Amortization Event with respect to any Series of Notes Outstanding has occurred and is continuing, insurance proceeds and warranty payments with respect to the HVF Vehicles and HGI Vehicles shall not be required to be deposited in a Collateral Account; provided, further, however that unless an Amortization Event with respect to a Segregated Series of Notes is Outstanding, insurance proceeds and warranty payments with respect to the HVF Segregated Vehicles relating to such Segregated Series shall not be required to be deposited into a Collateral Account;

 

(iv) all amounts payable by the Nominee pursuant to Section 11(b) of the Nominee Agreement to be deposited directly into a Collateral Account by the Nominee;

 

(v) all amounts payable by the Hertz Nominee pursuant to Section 10 of the Hertz Nominee Agreement to be deposited directly into a Collateral Account by the Hertz Nominee;

 

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(vi) all amounts payable by the HFC Nominee pursuant to Section 10 of the HFC Nominee Agreement to be deposited directly into a Collateral Account by the HFC Nominee; and

 

(vii) all other Proceeds of the Vehicle Collateral, to be deposited into a Collateral Account within two Business Days of receipt by the Servicer.

 

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.

 

(c)  The Collateral Agent shall promptly notify the Servicer when funds are deposited in any Collateral Account.  Promptly after the deposit of any funds into a Collateral Account, but in no event more than seven Business Days thereafter, the Servicer shall instruct the Collateral Agent in writing as to (i) the amount thereof which represents Proceeds of the HVF Vehicle Collateral, (ii) the amount thereof which represents Proceeds of HVF Segregated Series Vehicle Collateral with respect to each Segregated Series, (iii) the amount thereof which represents Proceeds of the HGI Vehicle Collateral, (iv) the amount thereof which represents Proceeds with respect to the GE Financed Vehicles and (v) the amount thereof which represents Proceeds with respect to the other Vehicles owned by Hertz.  The Collateral Agent shall pursuant to and promptly after receipt of instructions from the Servicer, withdraw from the applicable Collateral Account and deposit in either the Collection Account or, in the case of Relinquished Property Proceeds, an HVF Exchange Account for application in accordance with Section 4.02 of the Master Exchange Agreement all amounts representing Proceeds of the HVF Collateral, withdraw from the applicable Collateral Account and deposit in either the appropriate collection account relating to the applicable Segregated Series or, in the case of Relinquished Property Proceeds, an HVF Segregated Exchange Account for application in accordance with Section 4.02 of the Master Exchange Agreement all amounts representing Proceeds of any HVF

 

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Segregated Series Vehicle Collateral, withdraw from the applicable Collateral Account and deposit in either the HGI Account or an HGI Exchange Account for application in accordance with Section 4.02 of the Master Exchange Agreement all amounts representing Proceeds of the HGI Collateral, withdraw from the applicable Collateral Account and deposit in either the GE Collateral Account or a Hertz GE Exchange Account for application in accordance with Section 4.02 of the Master Exchange Agreement all amounts representing Proceeds with respect to the GE Financed Vehicles and withdraw from the applicable Collateral Account and deposit in either 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 all amounts representing Proceeds with respect to other Vehicles owned by Hertz.  Upon receipt by a Responsible Officer of the Collateral Agent from a Manufacturer of any information pertaining to payments made by such Manufacturer or an auction dealer to a Collateral Account in connection with any Manufacturer Program, the Collateral Agent shall provide such information to the Servicer.

 

(d)  If at any time the Servicer or any Secured Party shall receive any funds to which it is not entitled pursuant to the provisions of this Agreement, the Collateral Agent, the Servicer or such Secured Party shall so advise the other parties hereto in writing (upon which written advice the Collateral Agent may conclusively rely) and the Servicer or such Secured Party, as the case may be, shall forthwith take reasonable steps to ensure that such funds are remitted to the Person so entitled thereto or as such Person directs or as otherwise provided in the Related Documents.

 

(e)  The Servicer may instruct in writing the Collateral Agent to invest funds on deposit in a Collateral Accounts in Permitted Investments.  If the Collateral Agent does not receive instructions from the Servicer prior to 11:00 a.m., New York City time, on any day as to the distribution or investment of any funds on deposit in a Collateral Account then the Collateral Agent shall invest such funds in Permitted Investments pursuant to an investment letter previously delivered by the Servicer to the Collateral Agent.  All investments of funds on deposit in any Collateral Account shall be redeemable or mature on the next Business Day.  The Collateral Agent shall not be responsible for any losses incurred on any investments made pursuant to this Section 2.5(e) .  All investment earnings (net of losses and investment expenses) shall be payable to the Servicer on each Payment Date.

 

SECTION 2.6.  Certificates of Title.   (a)  The Servicer or its designated agents (the “ Servicer’s Agents ”) on behalf of the Servicer shall hold all of the Certificates of Title for the HVF Vehicles, the HVF Segregated Vehicles and the HGI Vehicles in the Servicer’s capacity as agent of, and custodian for, the Collateral Agent.  The Servicer or the Servicer’s Agents on behalf of the Servicer shall (i) hold all such Certificates of Title, under lock and key, in a safe fireproof location at one or more of the offices specified in each Fleet Report delivered by the Servicer pursuant to Section 2.4, and (ii) not release or surrender any such Certificate of Title other than Certificates of Title as to which the security interest of the Collateral Agent has been released in accordance with Section 2.7 of this Agreement; provided, however that the Servicer or the Servicer’s Agents, on behalf of and at the direction of the Servicer, may deliver the Certificate of Title for any HVF Vehicle, HVF Segregated Vehicle or HGI Vehicle sold or otherwise disposed of in accordance with the Related Documents to the purchaser thereof,

 

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together with any documentation necessary to effect the removal of the notation of the Lien of this Agreement on such Certificate of Title.  The Servicer shall cause the Certificates of Title with respect to each HVF Vehicle, HVF Segregated Vehicle (other than any HVF Segregated Vehicle for which the Nominee does not act as nominee titleholder) and HGI Vehicle to show the Nominee (and, with respect to the Initial Hertz Vehicles, Hertz, and with respect to the Service Vehicles, HFC), as the registered owner of such Vehicle, and (other than with respect to the Initial Hertz Vehicles and the Service Vehicles, which shall have no lienholder noted) the Collateral Agent, as agent, as the first lienholder, at the address of one of the offices of the Servicer referred to in the preceding sentence.  For the avoidance of doubt, the Servicer shall not be obligated to retitle the Initial Hertz Vehicles or the Service Vehicles which are not currently titled in the name of the Nominee or do not reflect the Collateral Agent, as agent, as the first lienholder.  The Servicer shall pay any compensation payable to a Servicer Agent from its own funds.  Notwithstanding any delegation of duties to a Servicer Agent hereunder, the Servicer shall not be relieved of its liability and responsibility with respect to such duties.  The Servicer shall notify the Rating Agencies in writing at least thirty (30) days prior to the replacement of an existing Servicer’s Agent or the designation of any new Servicer’s Agent.

 

(b)  The Collateral Agent hereby grants to the Servicer a power of attorney to take any and all actions, in the name of the Collateral Agent, (i) to note the Collateral Agent as the holder of a first lien on the Certificates of Title for the HVF Vehicles, the HVF Segregated Vehicles and the HGI Vehicles, and/or otherwise ensure that the first Lien shown on any and all Certificates of Title for the HVF Vehicles, the HVF Segregated Vehicles and the HGI Vehicles is in the name of the Collateral Agent and (ii) to release the Collateral Agent’s Lien on any Certificate of Title in connection with the release of the related Vehicle from the Lien of this Agreement in accordance with Section 2.7 .  Nothing in this Agreement shall be construed as authorization from the Collateral Agent to the Servicer to release any Lien on the Certificates of Title for the HVF Vehicles, the HVF Segregated Vehicles and the HGI Vehicles except upon compliance with this Agreement.  To further evidence the power of attorney referred to in this Section 2.6(b) , the Collateral Agent agrees that upon request of the Servicer it will execute a separate power of attorney in respect of the HVF Vehicles, the HVF Segregated Vehicles pledged for the benefit of each Segregated Series or the HGI Vehicles substantially in the form of Exhibit B .

 

(c)  After the occurrence and during the continuance of an Amortization Event with respect to any Series of Notes Outstanding, the HVF General Secured Party may cause the Collateral Agent to terminate the power of attorney in respect of the HVF Vehicles referred to in Section 2.6(b)  (including the related power granted under Section 2.6(b) ) by giving written notice to such effect to the Servicer and the Collateral Agent.  After the occurrence and during the continuance of an Amortization Event with respect to a Segregated Series of Notes, the applicable HVF Segregated Series Secured Party may cause the Collateral Agent to terminate the power of attorney in respect of the HVF Segregated Vehicles pledged for the benefit of such Segregated Series referred to in Section 2.6(b)  (including the related power granted under Section 2.6(b) ) by giving written notice to such effect to the Servicer and the Collateral Agent.  The HGI Secured Party may cause the Collateral Agent to terminate the power of attorney in respect of the HGI Vehicles referred to in Section 2.6(b)  (including the related power granted under Section 2.6(b) ) by giving written notice to such effect to the Servicer and the Collateral

 

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Agent.  The Collateral Agent agrees that upon receipt of any such notice (upon which notice the Collateral Agent may conclusively rely) it shall promptly terminate such power of attorney by giving written notice to such effect to the Servicer.  After any such termination, the Collateral Agent will follow the written direction of the Servicer to release liens on HVF Vehicles. HVF Segregated Vehicles or HGI Vehicles, as applicable, unless a contrary written direction is received from a Secured Party.

 

SECTION 2.7.  Release of Collateral.   (a)  With respect to any HVF Vehicle, from and after the earliest of (i) in the case of a Program Vehicle subject to a Repurchase Program, the Turnback Date for such Program Vehicle, (ii) in the case of a Program Vehicle subject to a Guaranteed Depreciation Program, the date of sale of such Program Vehicle by an auction dealer to a third party, (iii) in the case of a Non-Program Vehicle, the date of the deposit of the Disposition Proceeds of such Non-Program Vehicle by or on behalf of HVF into the Collection Account or an HVF Exchange Account, (iv) in the case of a Transferred HVF Vehicle, the date the related Transfer Payment is deposited into the Collection Account or an HVF Exchange Account and (v) in the case of a Casualty, the date the related Casualty Payment is deposited into the Collection Account, such HVF Vehicle and the related Certificate of Title shall automatically be released from the Lien of this Agreement.

 

(b)  With respect to any HVF Segregated Vehicle, from and after the earliest of (i) in the case of a Segregated Program Vehicle subject to a Repurchase Program, the Turnback Date for such Segregated Program Vehicle, (ii) in the case of a Segregated Program Vehicle subject to a Guaranteed Depreciation Program, the date of sale of such Segregated Program Vehicle by an auction dealer to a third party, (iii) in the case of a Segregated Non-Program Vehicle, the date of the deposit of the Disposition Proceeds of such Segregated Non-Program Vehicle by or on behalf of HVF into the collection account established pursuant to the related Segregated Series Supplement or an HVF Exchange Account, (iv) in the case of a Transferred HVF Segregated Vehicle, the date the related Transfer Payment is deposited into the collection account established pursuant to the related Segregated Series Supplement or an HVF Segregated Exchange Account and (v) in the case of a Casualty, the date the related Casualty Payment is deposited into the collection account established pursuant to the related Segregated Series Supplement, such HVF Segregated Vehicle and the related Certificate of Title shall automatically be released from the Lien of this Agreement.

 

(c)  From and after the earliest of (i) in the case of an HGI Vehicle subject to a Repurchase Program, the Turnback Date for such Vehicle, (ii) in the case of an HGI Vehicle subject to a Guaranteed Depreciation Program, the date of sale of such HGI Vehicle by an auction dealer to a third party, (iii) in the case of an HGI Vehicle not subject to a Repurchase Program or Guaranteed Depreciation Program, the date of the deposit of the Disposition Proceeds of such Vehicle by or on behalf of HGI into the HGI Account or an HGI Exchange Account, (iv) in the case of a Transferred HGI Vehicle, the date the related Transfer Payment is deposited into the HGI Account or an HGI Exchange Account, (v) in the case of a Casualty, the date the related Casualty Payment is deposited into the HGI Account or an HGI Exchange Account and (vi) in the case of a Rejected Vehicle, the date the related Rejected Vehicle Payment is deposited into the Collection Account or an HGI Exchange Account, such HGI Vehicle and the related Certificate of Title shall automatically be released from the Lien of this

 

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Agreement; in addition, HGI may release any of the HGI Vehicle Collateral and any related Certificate of Title from the Lien of this Agreement at any time by directing, in writing, the Servicer and the Collateral Agent to release such HGI Vehicle from such Lien.

 

(d)  A third party who buys a Vehicle from HVF or HGI in the ordinary course of business shall take such Vehicle free of any Lien created pursuant to this Agreement.

 

(e)  On each Determination Date, the Servicer will provide the Collateral Agent and each Secured Party with a list of HVF Vehicles, HVF Segregated Vehicles and HGI Vehicles as to which the Lien of the Collateral Agent has been released during the Related Month.

 

(f)  In connection with any release permitted under this Section 2.7 , the Collateral Agent and each Secured Party agrees to execute such further documents, if any, as may be reasonably requested by the Servicer to effect such release.

 

ARTICLE III

THE SERVICER

 

SECTION 3.1.  Acceptance of Appointment.   The Collateral Agent and each Secured Party hereby appoints Hertz, and Hertz hereby agrees to act, as the initial Servicer under this Agreement.

 

SECTION 3.2.  Servicer Functions.   The Servicer shall service and administer the Vehicles in accordance with the terms of this Agreement and the Leases or Segregated Series Lease, as applicable, and without limitation of the foregoing, the Servicer shall: (i) cause the Collateral Agent to be shown as the first lienholder on all Certificates of Title for the HVF Vehicles, the HVF Segregated Vehicles and the HGI Vehicles in accordance with Section 2.6, (ii) designate Vehicles subject to the HVF Lease as HVF Vehicles, Vehicles subject to a Segregated Series Lease as HVF Segregated Vehicles (noting the particular Segregated Series to which they are leased) and Vehicles subject to the HGI Lease as HGI Vehicles on its computer system in accordance with Sections 2.2 and 2.3, (iii) collect all amounts due and owing to the Grantors by the Manufacturers under the Manufacturers Programs in respect of the HVF Vehicles, HVF Segregated Vehicles and HGI Vehicles and to commence enforcement proceedings with respect to such Manufacturer Programs, (iv) collect all other amounts due and owing to the Grantors in respect of such Vehicles and the other Vehicle Collateral, (v) direct payments due under the Manufacturer Programs with respect to the HVF Vehicles, HVF Segregated Vehicles and HGI Vehicles to be deposited directly into a Collateral Account by the Manufacturers and related auction dealers in accordance with Section 2.5(b), (vi) to deposit all sale proceeds from sales of HVF Vehicles, HVF Segregated Vehicles and HGI Vehicles to third parties (other than under any related Manufacturer Program) and insurance proceeds and warranty payments in respect of such Vehicles received directly by the Servicer into a Collateral Account within two Business Days of receipt by the Servicer in accordance with Section 2.5(b) , (vii) turn in the HVF Vehicles, the HVF Segregated Vehicles and the HGI Vehicles covered by Manufacturer Programs to the relevant Manufacturer within the applicable Repurchase Period in accordance with the Leases or the Segregated Series Leases, as applicable, and comply with all

 

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of its obligations under the Manufacturer Programs, (viii) furnish the Servicer’s Fleet Report as provided in Section 2.4, (ix) instruct the Collateral Agent in writing to make distributions, withdrawals and payments from the Collateral Accounts in accordance with Section 2.5, (x) perform the duties specified in Section 8.20 of the Master Exchange Agreement and Section 6.21 of the Escrow Agreement and (xi) otherwise administer and service the HVF Vehicles, HVF Segregated Vehicles and the HGI Vehicles in accordance with the Related Documents.  The Servicer shall have full power and authority, acting alone or through any party properly designated by it hereunder to do any and all things in connection with its servicing and administration duties which it may deem necessary or desirable to accomplish such servicing and administration duties and which does not materially adversely affect the interests of any Secured Party unless otherwise prohibited by the Related Documents.

 

SECTION 3.3.  The Servicer Not to Resign.   Without the prior written consent of the Collateral Agent and each of the Secured Parties, the Servicer shall not resign from the obligations and duties imposed on it hereunder.

 

SECTION 3.4.  Servicing Rights of Collateral Agent.   (a)   If the Servicer shall fail to perform any of its obligations hereunder, which failure adversely affects one or more of the Secured Parties, or a Servicer Default has occurred and is continuing, the Collateral Agent, at the direction and at the expense of each Secured Party so adversely affected thereby, shall take such action or cause such action to be taken, to perform such obligations as shall be so directed by such Secured Party, whereupon the Collateral Agent shall have full right and authority to take or cause to be taken such action so directed.

 

(b)  In the event that the Collateral Agent is directed to take any action with respect to the HVF Vehicles, HVF Segregated Vehicles or the HGI Vehicles or perform any obligation of the Servicer pursuant to Section 3.4 of this Agreement, the Servicer shall fully cooperate with the Collateral Agent in any manner requested by the Collateral Agent or the applicable Secured Party in order to assist the Collateral Agent in taking any such action or performing any such duty.

 

SECTION 3.5.  Incumbency Certificate.   With the delivery of this Agreement and from time to time thereafter, each of the Grantors and the Servicer shall furnish to the Collateral Agent a certificate (each, an “Incumbency Certificate”) certifying as to the incumbency and specimen signatures of each of their respective Authorized Officers.  Until the Collateral Agent receives a subsequent Incumbency Certificate, the Collateral Agent shall be entitled to rely on the last such Incumbency Certificate delivered to it for purposes of determining the Authorized Officers.

 

SECTION 3.6.  Effective Period and Termination.   The Servicer’s appointment hereunder shall become effective on the date hereof and shall continue in full force and effect until terminated pursuant to this Section 3.6 or until this Agreement shall be terminated.  If all of the rights and obligations of Hertz as Servicer under the HVF Lease shall have been terminated under Section 17 of the HVF Lease, the appointment of Hertz as Servicer in respect of the HVF Vehicles hereunder may be terminated by the HVF General Secured Party in the same manner as the HVF General Secured Party may terminate the rights and obligations of the

 

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Servicer under Section 17 of the HVF Lease.  As soon as practicable after any termination of such appointment, the Servicer shall, at its expense, deliver all documents and records relating to the HVF Vehicle Collateral, including, without limitation, the most recent Fleet Report, to the HVF General Secured Party or the HVF General Secured Party’s agent at such place or places as the HVF General Secured Party may reasonably designate.  If all of the rights and obligations of Hertz as Servicer under any Segregated Series Lease relating to a Segregated Series of Notes shall have been terminated under the applicable section of such Segregated Series Lease, the appointment of Hertz as Servicer in respect of the HVF Segregated Vehicles relating to such Segregated Series of Notes hereunder may be terminated by the applicable HVF Segregated Series Secured Party in the same manner as the HVF Segregated Series Secured Party may terminate the rights and obligations of the Servicer under the applicable section of such Segregated Series Lease.  As soon as practicable after any termination of such appointment, the Servicer shall, at its expense, deliver all documents and records relating to the related HVF Segregated Series Vehicle Collateral, including, without limitation, the most recent Fleet Report, to the applicable HVF Segregated Series Secured Party or the HVF Segregated Series Secured Party’s agent at such place or places as the applicable HVF Segregated Series Secured Party may reasonably designate.

 

ARTICLE IV

 

REPRESENTATIONS, WARRANTIES AND COVENANTS

 

SECTION 4.1.  Representations and Warranties of the Grantors.   Each Grantor represents and warrants to the Collateral Agent and each Secured Party as follows as of the Restatement Effective Date and each Series Closing Date:

 

(a)  The execution, delivery and performance by such Grantor of this Agreement (i) is within such Grantor’s limited liability company powers and has been duly authorized by all necessary limited liability company action, (ii) requires no action by or in respect of, or filing with, any Governmental Authority which has not been obtained and (iii) does not contravene, or constitute a default under, any Requirements of Law with respect to such Grantor or any Contractual Obligation with respect to such Grantor or result in the creation or imposition of any Lien on any property of such Grantor, except for Liens created by this Agreement.  This Agreement has been executed and delivered by a duly authorized officer of such Grantor.

 

(b)  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 such Grantor of this Agreement or for the performance of any of such Grantor’s obligations hereunder other than such consents, approvals, authorizations, registrations, declarations or filings as shall have been obtained by HVF prior to the Restatement Effective Date.

 

(c)  This Agreement is a legal, valid and binding obligation of such Grantor enforceable against such Grantor 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

 

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considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing).

 

(d)  Each Grantor owns and has good and marketable title to the Vehicle Collateral in which such Grantor has an interest, free and clear of all Liens other than Permitted Liens.  This Agreement constitutes a valid and continuing Lien on such Vehicle Collateral in favor of the Collateral Agent on behalf of the related Secured Party, which Lien on such Vehicle Collateral has been perfected (other than with respect to the Initial Hertz Vehicles and the Service Vehicles) and is prior to all other Liens (other than Permitted Liens) and is enforceable as such as against creditors of and purchasers from such Grantor 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.

 

(e)  Other than the security interest granted to the Collateral Agent hereunder, neither Grantor has pledged, assigned, sold or granted a security interest in the Vehicle Collateral.  All action necessary to protect and perfect the Collateral Agent’s security interest in the Vehicle Collateral (other than with respect to the Initial Hertz Vehicles and the Service Vehicles) in which such Grantor has an interest has been duly and effectively taken.  No security agreement, financing statement, equivalent security or lien instrument or continuation statement listing such Grantor as debtor covering all or any part of such Vehicle Collateral is on file or of record in any jurisdiction, except such as may have been filed, recorded or made by such Grantor in favor of the Collateral Agent in connection with this Agreement or the Trustee in connection with the Indenture, and neither Grantor has authorized any such filing.

 

(f)  Its legal name is on the signature pages hereto and its location within the meaning of Section 9-307 of the applicable UCC is the State of Delaware.  It will not change its name or the jurisdiction of its organization without 60 days prior written notice to the Collateral Agent.

 

SECTION 4.2.  Representations and Warranties of the Servicer .  The Servicer represents and warrants to the Collateral Agent and each Secured Party as follows as of the Restatement Effective Date and each Series Closing Date:

 

(a)  This Agreement has been duly authorized, executed and delivered on behalf of the Servicer and, assuming due authorization, execution and delivery by the other parties hereto, is a valid and legally binding obligation of the Servicer, enforceable against the Servicer 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).

 

(b)  The execution, delivery and performance by the Servicer of this Agreement 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 Servicer pursuant to the terms of any indenture, mortgage,

 

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deed of trust, loan agreement, guarantee, lease financing agreement or other similar agreement or instrument under which the Servicer is a debtor or guarantor (except to the extent that such conflict, breach, creation or imposition is not reasonably likely to result in 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 Servicer.

 

(c)  There is no consent, approval, authorization, order, registration or qualification of or with any Governmental Authority having jurisdiction over the Servicer which is required for the execution, delivery and performance of this Agreement (except to the extent that the failure to obtain such consent, approval, authorization, order, registration or qualification is not reasonably likely to result in a Material Adverse Effect).

 

SECTION 4.3.  Covenants of Grantors.   Each Grantor hereby agrees that:

 

(a)  It shall take all action necessary to maintain and to perfect the Collateral Agent’s security interest on behalf of the related Secured Party in the applicable Vehicle Collateral (other than with respect to the Initial Hertz Vehicles and the Service Vehicles) in which it has an interest now in existence and hereafter acquired or created, including, without limitation, the filing of any financing or continuation statements under the UCC in effect in any jurisdiction with respect to the liens and security interests granted hereunder.

 

(b)  At any time and from time to time, upon the written request of the Collateral Agent, and at its sole expense, it will promptly and duly execute and deliver any and all such further instruments and documents and take such further action as the Collateral Agent may reasonably deem desirable in obtaining the full benefits of this Collateral Agreement and of the rights and powers herein granted, including, without limitation, the filing of any financing or continuation statements under the UCC in effect in any jurisdiction with respect to the liens and security interests granted hereby.  It also hereby authorizes the Collateral Agent to file any such financing or continuation statement, at its expense.  If any amount payable under or in connection with any of the Vehicle Collateral shall be or become evidenced by any promissory note, chattel paper or other instrument, such note, chattel paper or instrument shall be deemed to be held in trust and promptly pledged to the Collateral Agent hereunder, and shall, subject to the rights of any Person in whose favor a prior Lien has been perfected, be duly endorsed in a manner satisfactory to the Collateral Agent and delivered to the Collateral Agent promptly.

 

(c)  It shall warrant and defend the Collateral Agent’s right, title and interest in and to the Vehicle Collateral in which it has an interest and the Proceeds thereof, for the benefit of the related Secured Party against the claims and demands of all Persons whomsoever.

 

ARTICLE V

 

THE COLLATERAL AGENT

 

SECTION 5.1.  Appointment.   (a)  Each Secured Party, by its execution of this Agreement, appoints the Collateral Agent as its agent under and for purposes of this Agreement.  Each Secured Party authorizes the Collateral Agent to act on behalf of such Secured Party under

 

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this Agreement and, in the absence of other written instructions from a Secured Party with respect to the portion of the Vehicle Collateral securing such Secured Party (its “ Related Vehicle Collateral ”) as may be received from time to time by the Collateral Agent (with respect to which the Collateral Agent agrees that it will comply) to exercise such powers hereunder as are specifically delegated to or required of the Collateral Agent by the terms hereof and to exercise such powers as are provided to each Secured Party with respect to its Related Vehicle Collateral under the Related Documents and with such powers as may be reasonably incidental thereto.  The Collateral Agent is hereby irrevocably appointed the true and lawful attorney-in-fact of each of the Secured Parties, in its name and stead, for such purposes as are necessary or desirable to effectuate the provisions of this Agreement, including, without limitation, in exercising remedies upon or otherwise dealing with the Vehicle Collateral.  Each such power of attorney is irrevocable and coupled with an interest.

 

(b)  If any Secured Party represents in writing to the Collateral Agent that it has the right to act with respect to its Related Vehicle Collateral pursuant to the Related Documents, the Collateral Agent may conclusively rely upon such representation and shall exercise any and all rights, remedies, powers and privileges available to such Secured Party with respect to its Related Vehicle Collateral to the extent and in the manner directed by such Secured Party, at the expense of the related Grantor and subject to the other provisions of this Agreement (including without limitation Section 5.4(g) ), as permitted under the Related Documents, including, without limitation, the transmission of notices of default, repossession of Vehicles, and the institution of legal or administrative actions or proceedings.  Each of the Grantors and the Secured Parties agrees that the Collateral Agent may exercise such rights, remedies, powers and privileges in lieu of a Secured Party in accordance with the preceding sentence.

 

(c)  At any time after the occurrence and during the continuance of an Amortization Event with respect to any Series of Notes Outstanding, if the Collateral Agent shall default in its obligation to exercise the rights, remedies, powers or privileges of the HVF General Secured Party with respect to the HVF Vehicle Collateral in accordance with the direction of the HVF General Secured Party (including any rights under Section 3.4 or 5.1(b) ), the Collateral Agent shall, upon the written request of the HVF General Secured Party, assign to the HVF General Secured Party the Collateral Agent’s security interest in the HVF Vehicle Collateral and shall, at the Collateral Agent’s expense, execute those instruments and documents necessary to effectuate such assignment (including, if necessary, the execution of any documents necessary to effect the change of the first lienholder on Certificates of Title for the HVF Vehicles to the HVF General Secured Party or its agent or assignee).

 

(d)  At any time after the occurrence and during the continuance of an Amortization Event with respect to any Segregated Series of Notes Outstanding, if the Collateral Agent shall default in its obligation to exercise the rights, remedies, powers or privileges of the HVF Segregated Series Secured Party relating to such Segregated Series of Notes with respect to the related HVF Segregated Series Vehicle Collateral in accordance with the direction of such HVF Segregated Series Secured Party (including any rights under Section 3.4 or 5.1(b) ), the Collateral Agent shall, upon the written request of such HVF Segregated Series Secured Party, assign to such HVF Segregated Series Secured Party the Collateral Agent’s security interest in such HVF Segregated Collateral and shall, at the Collateral Agent’s expense, execute those

 

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instruments and documents necessary to effectuate such assignment (including, if necessary, the execution of any documents necessary to effect the change of the first lienholder on Certificates of Title for the HVF Segregated Vehicles constituting such HVF Segregated Series Vehicle Collateral to the applicable HVF Segregated Series Secured Party or its agent or assignee).

 

SECTION 5.2.  Representations.   The Collateral Agent hereby represents and warrants that (i) it is a national banking association, duly organized, validly existing and in good standing under the laws of New York and it has all requisite power and authority to enter into and perform its obligations under this Agreement and (ii) the execution, delivery and performance by it of this Agreement have been duly authorized by all necessary corporate action on its part, and this Agreement is the legal, valid and binding obligation of the Collateral Agent, enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally and by the application of equitable principles.

 

SECTION 5.3.  Exculpatory Provisions.   The Collateral Agent makes no representations as to the value or condition of the Vehicle Collateral or any part thereof, as to the status or designation of any Vehicle as a HVF Vehicle, a HVF Segregated Vehicle or a HGI Vehicle pursuant to Section 2.2, as to the title of either of the Grantors thereto, as to the protection afforded by this Agreement, as to any statements, representations or warranties made by any Person (other than itself) in or in connection with this Agreement or any Related Document, as to the validity, execution (except its own execution), enforceability (except enforceability against itself), priority, perfection, legality or sufficiency of this Agreement or any Related Document or any documents or instruments referred to therein, or the sufficiency or effectiveness or perfection or priority of any Lien on any collateral described in this Agreement, or as to the validity or collectibility of any obligation contemplated by this Agreement, and the Collateral Agent shall incur no liability or responsibility in respect of any such matters.  The Collateral Agent shall not be responsible for insuring the Vehicle Collateral or for the payment of taxes, charges, assessments or Liens upon the Vehicle Collateral or for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or otherwise perfecting or maintaining the perfection of its security interest in the Vehicle Collateral purported to be granted hereby or otherwise as to the maintenance of the Vehicle Collateral.

 

SECTION 5.4.  Limitations on Duties of the Collateral Agent.   (a)  The Collateral Agent undertakes to perform only the duties expressly set forth herein and no implied duties shall be read into this Agreement.  Nothing herein shall be deemed to constitute the Collateral Agent a trustee or fiduciary for any Secured Party.

 

(b)  The Collateral Agent may exercise the rights and powers granted to it by this Agreement, together with such powers as are reasonably incidental thereto, but only pursuant to the terms of this Agreement.

 

(c)  The Collateral Agent’s duty of care shall be solely to deal with the Vehicle Collateral as it would deal with property of its own, the Collateral Agent shall not be liable for any error of judgment made in good faith by an officer thereof, or for any action taken or omitted

 

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to be taken by it in accordance with this Agreement, except to the extent caused by the gross negligence or willful misconduct of the Collateral Agent.

 

(d)  The Collateral Agent shall have no authority to grant, convey or assign the Certificates of Title or change the notation of a security interest thereon or deal with the Certificates of Title in any way except as expressly provided herein.

 

(e)  The Collateral Agent shall have no liability or responsibility for (i) any release of Vehicle Collateral by the Servicer pursuant to Sections 2.7 or (ii) any act of the Servicer taken in its own name or the name of the Collateral Agent.

 

(f)  The Collateral Agent shall have no duty to calculate, compute or verify, and shall not be held in any manner responsible for the content of the Servicer’s Fleet Report, except to verify that the certificate filed therewith conforms to the form of Exhibit A .

 

(g)  Except as required by the specific terms of this Agreement, the Collateral Agent shall not be required to exercise any discretion and shall have no duty to exercise or to refrain from exercising any right, power, remedy or privilege granted to it hereby, or to take any affirmative action or refrain from taking any affirmative action hereunder, including with respect to the identification of funds referred to herein or the application thereof, unless directed to do so by the Secured Party specified herein as being entitled to direct the Collateral Agent hereunder or, as provided herein, the Servicer (and shall be fully protected in acting or refraining from acting pursuant to or in accordance with such directions, which shall be binding on each of the Secured Parties).  Notwithstanding anything herein to the contrary, the Collateral Agent shall not be required to take any action (a) that in its reasonable opinion is or may be contrary to law or to the terms of this Agreement, any Related Document or any other agreement or instrument relating to the Vehicle Collateral, or (b) which might or would in its reasonable opinion subject it or any of its directors, officers, employees or agents to personal or financial liability unless it is indemnified hereunder to its satisfaction (and if any indemnity should become, in the reasonable determination of the Collateral Agent, inadequate, the Collateral Agent may call for additional indemnity and cease to act until such additional indemnity is given).

 

(h)  The Collateral Agent may, in its sole discretion, retain counsel, independent accountants and other experts selected by it and may act in reliance upon the advice of such counsel, independent accountants and other experts concerning all matters pertaining to the agencies hereby created and its duties hereunder, and shall be held harmless and shall not be liable for any action taken or omitted to be taken by it in good faith in reliance upon or in accordance with the statements and advice of such counsel (or counsel to Hertz or either of the Grantors), accountants and other experts.

 

(i)  In the event that the Collateral Agent receives conflicting instructions delivered in accordance with this Agreement, the Collateral Agent shall have the right to seek instructions concerning its duties and actions under this Agreement from any court of competent jurisdiction.  If the Collateral Agent receives unclear or conflicting instructions, it shall be entitled to refrain from taking action until clear or non-conflicting instructions are received, but shall inform the instructing party or parties promptly of its decision to refrain from taking such action.  Without limiting the foregoing, in the event that the Collateral Agent receives unclear

 

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or conflicting instructions from the Secured Parties hereunder or there is any other disagreement between the other parties hereto resulting in adverse claims and demands being made in connection with the Vehicle Collateral, or in the event that the Collateral Agent in good faith is in doubt as to what action it should take hereunder, the Collateral Agent shall be entitled to retain the Vehicle Collateral until the Collateral Agent shall have received (i) a final order of a court of competent jurisdiction directing delivery of the Vehicle Collateral or (ii) a written agreement executed by the other parties hereto directing delivery of the Vehicle Collateral in which event the Collateral Agent shall disburse the Vehicle Collateral in accordance with such order or agreement.  Upon request of the Collateral Agent, any such court order shall be accompanied by a legal opinion by counsel for the presenting party satisfactory to the Collateral Agent to the effect that such order is final.

 

(j)  The Collateral Agent shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement, any Related Document or any other agreements or instruments relating to the Vehicle Collateral on the part of any party hereto or thereto or to inspect any books and records relating to the Vehicle Collateral other than as it determines necessary in the fulfillment of its own obligations hereunder.

 

(k)  The Collateral Agent shall be entitled to rely on any communication, certificate, instrument, opinion, report, notice, paper or other document reasonably believed by it to be genuine and correct and to have been signed, given or sent by the proper Person or Persons.  The Collateral Agent shall be entitled to assume that no Amortization Event, Limited Liquidation Event of Default or Liquidation Event of Default shall have occurred and be continuing and that a Collateral Account, and any funds on deposit in or to the credit of a Collateral Account, are not subject to any writ, order, judgment, warrant of attachment, execution or similar process (collectively, a “ writ ”), unless (i) in the case of any writ, the Collateral Agent has actual knowledge thereof or (ii) the Collateral Agent has received written notice from the Servicer, any of the Grantors or a Secured Party that an Amortization Event, Limited Liquidation Event of Default or Liquidation Event of Default has occurred or such writ has been issued and, in each case, continues to be in effect, which notice specifies the nature thereof.

 

(l)  The Collateral Agent, in its individual capacity, may accept deposits from, lend money to and generally engage in any kind of business with the Servicer, either of the Grantors, any Manufacturer and their respective Affiliates as if it were not the agent of the Secured Parties.

 

(m)  The Collateral Agent may act through agents, custodians and nominees and shall not be liable for any negligent act on the part of, or for the supervision of, any such agent, custodian or nominee so long as such agent, custodian or nominee is appointed with due care.  The appointment of agents, custodians and nominees (other than legal counsel) pursuant to this subsection (m)  shall be subject to the prior written consent of each of the Grantors and the Secured Parties, which consent shall not be unreasonably withheld, and shall be conditioned on the satisfaction of the Rating Agency Condition with respect to each Series of Notes Outstanding and each Segregated Series of Notes Outstanding with respect to such appointment.  The possession of the Vehicle Collateral by such agents, custodians or nominees shall be deemed to

 

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be the possession by the Collateral Agent.  No provision of this Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial or other liability in the performance of any duties hereunder or in the exercise of any rights and powers hereunder unless the Collateral Agent is provided with an indemnity from one or more of the Secured Parties or other Persons, satisfactory to the Collateral Agent in its sole discretion.

 

SECTION 5.5.  Resignation and Removal of Collateral Agent.   (a)  The Collateral Agent may, at any time with or without cause by giving forty-five (45) days’ prior written notice to the Servicer, each of the Grantors and the Secured Parties, resign and be discharged of its responsibilities hereunder created, such resignation to become effective upon the appointment by the Secured Parties of a successor Collateral Agent, and the acceptance of such appointment by such successor Collateral Agent.  The Servicer shall, promptly upon receipt thereof, provide a copy of the notice from the Collateral Agent referred to in the preceding sentence to each Rating Agency.  The Collateral Agent may be removed with respect to all or a portion of the Vehicle Collateral by the Servicer at any time (with or without cause) upon thirty (30) days’ prior written notice by the Servicer to the Collateral Agent, the Grantors, the Secured Parties and each of the Rating Agencies, and the appointment by each of the Secured Parties of a successor Collateral Agent; provided, however, that (i) if the Servicer is in default (beyond all applicable grace and cure periods) of any obligation under this Agreement relating to the HVF Vehicle Collateral or an Amortization Event with respect to any Series of Notes Outstanding has occurred and is continuing, the right of the Servicer to remove the Collateral Agent with respect to the HVF Vehicle Collateral shall cease and the HVF General Secured Party shall have the right to remove the Collateral Agent (with or without cause) with respect to the HVF Vehicle Collateral upon thirty (30) days’ written notice to the Servicer, the Grantors, each HVF Segregated Series Secured Party, the HGI Secured Party, the Collateral Agent and each of the Rating Agencies and (ii) if the Servicer is in default (beyond all applicable grace and cure periods) of any obligation under this Agreement relating to the HVF Segregated Series Vehicle Collateral for any Segregated Series of Notes or an Amortization Event with respect to such Segregated Series of Notes has occurred and is continuing, the right of the Servicer to remove the Collateral Agent with respect to such HVF Segregated Series Vehicle Collateral shall cease and the related HVF Segregated Series Secured Party shall have the right to remove the Collateral Agent (with or without cause) with respect to the applicable HVF Segregated Series Vehicle Collateral upon thirty (30) days’ written notice to the Servicer, the Grantors, each HVF Segregated Series Secured Party, the HGI Secured Party, the Collateral Agent and each of the Rating Agencies; provided, further, that no removal of the Collateral Agent shall be effective until the appointment of a successor Collateral Agent and acceptance of such appointment by such Collateral Agent.  Any removed Collateral Agent shall be entitled to its reasonable fees and expenses to the date the successor Collateral Agent assumes the Collateral Agent’s duties hereunder.  The indemnification of Section 5.10 shall survive the termination of the other provisions of this Agreement as to the predecessor Collateral Agent.  If no successor Collateral Agent shall be appointed and approved within thirty (30) days from the date of the giving of the aforesaid notice of resignation or within thirty (30) days from the date of such notice of removal, the Collateral Agent or any Secured Party may petition a court of competent jurisdiction to appoint a successor Collateral Agent to act until such time, if any, as a successor Collateral Agent shall be appointed as above provided.  Any successor Collateral Agent so appointed by such court shall immediately upon its acceptance of such appointment without further act

 

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supersede any predecessor Collateral Agent.  Upon the appointment of a successor Collateral Agent hereunder and its acceptance of such appointment, the predecessor Collateral Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement.

 

(b)  The appointment, designation and acceptance referred to in Section 5.5(a) shall, after any required filing, be full evidence of the right and authority to make the same and of all the facts therein recited, and this Agreement shall vest in such successor Collateral Agent, without any further act, deed or conveyance, all of the estate and title of its predecessors and upon such filing for record the successor Collateral Agent shall become fully vested with all the estates, properties, rights, powers, duties, authority and title of its predecessors; but any predecessor Collateral Agent shall nevertheless, on the written request of any Secured Party, the Servicer, any Grantor or any successor Collateral Agent empowered to act as such at the time any such request is made, execute and deliver an instrument without recourse or representation transferring to such successor all the estates, properties, rights, powers, duties, authority and title of such predecessor hereunder and shall deliver all securities and moneys held by it to such successor Collateral Agent.  Upon the appointment of a successor Collateral Agent hereunder, the predecessor Collateral Agent shall be discharged of and from any and all further obligations arising in connection with this Agreement; provided , however , that the predecessor Collateral Agent will serve as nominee lienholder for the successor Collateral Agent with respect to those Vehicles on whose Certificate of Title the predecessor Collateral Agent had been named as lienholder prior to its resignation or removal pursuant to this Section 5.5 .

 

SECTION 5.6.  Qualification of Successors to Collateral Agent.   Every successor to the Collateral Agent appointed pursuant to Section 5.5 (i) shall be a bank or trust company in good standing and having power so to act and incorporated under the laws of the United States or any State thereof or the District of Columbia, (ii) shall have capital, surplus and undivided profits of not less than $50,000,000, and (iii) shall have a long-term deposits rating of not less than “BBB-” by Standard & Poor’s and “Baa3” by Moody’s and, unless otherwise agreed to by Fitch, “BBB-” by Fitch, if there be such an institution with such capital, surplus and undivided profits and ratings willing, qualified and able to accept the trust upon reasonable or customary terms.  The appointment of any successor Collateral Agent pursuant to Section 5.5 shall be subject to the satisfaction of the Rating Agency Condition with respect to each Series of Notes Outstanding and each Series of Segregated Notes Outstanding.

 

SECTION 5.7.  Merger of the Collateral Agent.   Any corporation into which the Collateral Agent may be merged, or with which it may be converted or consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Collateral Agent shall be a party shall be the Collateral Agent under this Agreement without the execution or filing of any paper or any further act on the part of the parties hereto.  The Collateral Agent shall give the Rating Agencies, the Servicer, each of the Grantors and the Secured Parties prior written notice of any such merger, conversion or consolidation.

 

SECTION 5.8.  Compensation and Expenses.   The Servicer shall pay to the Collateral Agent, from time to time (i) compensation for its services hereunder for administering the Vehicle Collateral as the Collateral Agent and the Servicer shall from time to time agree in

 

29



 

writing, and (ii) all reasonable out-of-pocket costs and expenses of the Collateral Agent (including reasonable fees and expenses of counsel) (A) arising in connection with the preparation, execution, delivery, or modification of this Agreement and/or the enforcement of any of the provisions hereof or (B) incurred in connection with the administration of the Vehicle Collateral, the sale or other disposition of the Vehicle Collateral pursuant to any Related Document and/or the preservation, protection or defense of the Collateral Agent’s rights under this Agreement and in and to the Vehicle Collateral.

 

SECTION 5.9.  Stamp, Other Similar Taxes and Filing Fees.   The Servicer shall indemnify and hold harmless the Collateral Agent 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 collected by any jurisdiction in connection with this Agreement or any Vehicle Collateral.  The Servicer shall pay, or reimburse the Collateral Agent for, any and all amounts in respect of, all search, filing, recording and registration fees, taxes, excise taxes and other similar imposts payable in respect of the execution, delivery, performance and/or enforcement of this Agreement.

 

SECTION 5.10.  Indemnification.   Each Grantor shall pay, and indemnify and hold the Collateral Agent and each of the officers, employees, directors and agents thereof harmless from and against, any and all liabilities (including liabilities for penalties and liabilities arising or resulting from actions or suits), obligations, losses, judgments, demands, damages, claims, costs or expenses of any kind or nature whatsoever that may at any time be imposed on, incurred by, or asserted against, the Collateral Agent or any such officers, employees, directors or agents in any way relating to or arising out of the Related Vehicle Collateral and the execution, delivery, amendment, enforcement, performance and/or administration of this Agreement (and any agreements related thereto including, without limitation, the Assignment Agreements), including reasonable fees and expenses of counsel and other experts, and the applicable Grantor shall reimburse a Secured Party for any payments made by such Secured Party to the Collateral Agent or any such officers, employees, directors or agents for any of the foregoing provided that such payments were permitted to be made by such Secured Party under the Related Documents; provided, however, that no Grantor shall be liable for the payment of any portion of such liabilities (including liabilities for penalties and liabilities arising or resulting from actions or suits), obligations, losses, judgments, demands, damages, claims, costs or expenses of the Collateral Agent or any such officers, employees, directors or agents which are determined by a court of competent jurisdiction in a final proceeding to have resulted from the gross negligence or willful misconduct of the Collateral Agent or any such agent.

 

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 Party’s 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 Party’s obligation to indemnify the Collateral Agent hereunder shall be limited to funds

 

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constituting monthly servicing fees and monthly administration fees under the Series Supplement relating to such HVF Segregated Series Secured Party.

 

SECTION 5.11.  Waiver of Set-Off by the Collateral Agen t.  The Collateral Agent hereby expressly waives any and all rights of setoff, abatement, diminution or deduction that it may otherwise at any time have under applicable law with respect to the Vehicle Collateral, provided, however, that this waiver shall apply only to obligations owed to the Collateral Agent in its individual capacity and not as an agent for the Secured Parties, and agrees that all Vehicle Collateral shall at all times be held and applied in accordance with the provisions hereof.

 

ARTICLE VI

 

MISCELLANEOUS

 

SECTION 6.1.  Amendments, Supplements and Waivers.   This Agreement may be amended, waived, terminated, supplemented or otherwise modified pursuant to a writing executed by the Collateral Agent, each Secured Party, each Grantor and the Servicer; provided, however, that this agreement may be amended, waived, supplemented or otherwise modified without the consent of a Secured Party if such amendment, waiver, supplement or modification does not materially adversely affect the interests of such Secured Party (as evidenced by an Officer’s Certificate of the Servicer); provided , that this Agreement may be terminated with respect to a Secured Party without the consent of any other Secured Party.  The initial effectiveness of any amendment or other modification to this Agreement shall be subject to the satisfaction of the Rating Agency Condition with respect to each Series of Notes Outstanding and each Segregated Series of Notes Outstanding.  Notwithstanding anything to the contrary contained herein, this Agreement may be amended, supplemented or otherwise modified pursuant to a writing executed by the Collateral Agent, each Grantor and the Servicer without the consent of any Secured Party, but subject to any consents specified in a Series Supplement, in order to permit HVF to provide financing in the form of one or more rated and/or unrated asset backed securities and/or one or more credit facilities to PR Borrower for the purpose of acquiring vehicles for its car rental fleet in Puerto Rico or to make payments in reduction of the principal amount of other indebtedness of PR Borrower or for any other purpose which is permitted in the consents, if any, obtained pursuant to the Series Supplements but subject to the satisfaction of the Rating Agency Condition with respect to each Series of Notes Outstanding and each Segregated Collateral Agency Series Outstanding.

 

SECTION 6.2.  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 on the signature pages hereof or at such other address or facsimile number as may be designated by such party in a notice to the other parties.  Any notice, if mailed by certified or registered mail 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 such, and shall be addressed at the address specified for such party on the signature pages hereto.

 

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SECTION 6.3.  Headings.   Section, subsection and other headings used in this Agreement are for convenience only and shall not affect the construction of this Agreement.

 

SECTION 6.4.  Severability.   Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

SECTION 6.5.  Counterparts.   This Agreement may be executed in separate counterparts and by the different parties on different counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.

 

SECTION 6.6.  Binding Effect.  This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.  The parties hereto may not assign either this Agreement or any of their respective rights, interests or obligations hereunder.  Nothing herein is intended or shall be construed to give any other Person any right, remedy or claim under, to or in respect of this Agreement or the Vehicle Collateral.

 

SECTION 6.7.  Governing Law.   THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

SECTION 6.8.  Effectiveness.   This Agreement shall become effective on the execution and delivery hereof and shall remain in effect until no Secured Party shall have any claim on the Vehicle Collateral.  This Agreement shall constitute a subordination agreement for purposes of Section 510(a) of the Bankruptcy Code.

 

SECTION 6.9.  Termination of this Agreement.   At any time that no amounts are then owing to the Secured Parties under the Related Documents and the Related Documents shall have been terminated, the Servicer may terminate this Agreement upon notice to the Collateral Agent and the Secured Parties, and the Collateral Agent shall take all actions reasonably requested by the Servicer, at the Servicer’s expense, to evidence the termination of this Agreement and the Collateral Agent’s interest in the Vehicle Collateral, including, without limitation, execute such documents and instruments as the Servicer may reasonably request in connection with such reassignment; provided, however, that Sections 5.3, 5.4(a), (c), and (e) through (k), 5.8, and the indemnification set forth in Sections 5.9 and 5.10 shall survive the termination of this Agreement.

 

SECTION 6.10.  No Bankruptcy Petition Against the Grantors.   Each of the Collateral Agent 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 the latest maturing Indenture Note, it will not institute against, or join with, encourage or cooperate with any other Person in instituting against, either Grantor, Hertz Vehicles LLC or the Intermediary, any bankruptcy, reorganization,

 

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arrangement, insolvency or liquidation proceedings, or other similar proceedings under any Federal or state bankruptcy or similar law; provided, however, that nothing in this Section 6.10 shall constitute a waiver of any right to indemnification, reimbursement or other payment from any Grantor or Secured Party pursuant to this Agreement.  The provisions of this Section 6.10 shall survive the termination of this Agreement, and the resignation or removal of the Collateral Agent.

 

SECTION 6.11.  No Waiver; Cumulative Remedies.   No failure to exercise and no delay in exercising, on the part of the Collateral Agent or any Secured Party, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

 

SECTION 6.12.  Submission To Jurisdiction; Waivers.   Each Grantor and the Servicer hereby irrevocably and unconditionally:

 

(a)  submits for itself and its property in any legal action or proceeding relating to this Agreement or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the State of New York, the courts of the United States for the Southern District of New York, and appellate courts from any thereof;

 

(b)  consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same;

 

(c)  agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Grantor or the Servicer, as the case may be, at its address set forth in Section 6.2 or at such other address of which the Collateral Agent shall have been notified pursuant thereto;

 

(d)  agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and

 

(e)  waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section any special, exemplary, punitive or consequential damages.

 

SECTION 6.13.  Waiver of Jury Trial.   THE COLLATERAL AGENT, EACH GRANTOR, EACH SECURED PARTY AND THE SERVICER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.

 

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SECTION 6.14.  Insurance Notification.   The Collateral Agent shall, promptly upon its receipt of notification of any termination of or proposed cancellation or nonrenewal of any insurance policies required to be maintained under any of the Related Documents, notify the related Secured Party of any such termination, proposed cancellation or nonrenewal.

 

SECTION 6.15.  Waiver of Set-Off With Respect to the Grantors.   Each of the Secured Parties hereby waives and relinquishes any right that it has or may have to set-off or to exercise any banker’s lien or any right of attachment or garnishment with respect to any funds at any time and from time to time on deposit in, or otherwise to the credit of, any account and any claims of the Grantors therein or with respect to any right to payment from the Grantors, it being understood, however, that nothing contained in this Section 6.15 shall, or is intended to, derogate from the assignment and security interest granted to any Secured Party under the Related Documents or the Collateral Agent under this Agreement or impair any rights of the Secured Parties or the Collateral Agent hereunder or thereunder.

 

SECTION 6.16.  Confidentiality.   Each party hereto (other than Hertz and the Grantors) agrees that it shall not disclose any Confidential Information to any Person without the prior written consent of Hertz or the applicable Grantor, as the case may be, other than (a) to any Secured Party, and then only on a confidential basis, (b) as required by any law, rule or regulation or any judicial process of which Hertz or the applicable Grantor, as the case may be, has knowledge; provided that any party hereto may disclose Confidential Information as required by law, rule or regulation or any judicial process of which Hertz or the applicable Grantor, as the case may be, does not have knowledge if such party is prohibited by law from disclosing such requirement to Hertz or the applicable Grantor, as the case may be, and (c) in the course of litigation with Hertz, any of the Grantors, as the case may be, or any Secured Party.

 

“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.

 

SECTION 6.17.  No Recourse.   The obligations of each Grantor under this Agreement are solely the obligations of such Grantor.  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 either Grantor.  Fees, expenses, costs or other obligations payable by either Grantor hereunder shall be payable by such Grantor to the extent and only to the extent that such Grantor is reimbursed therefor pursuant to any of the Related Documents.  In the event that a Grantor is not reimbursed for such fees, expenses, costs or other obligations, 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, such Grantor. Nothing

 

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in this Section 6.17 shall be construed to limit the Collateral Agent from exercising its rights hereunder with respect to the Collateral.

 

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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.

 

 

 

HERTZ VEHICLE FINANCING LLC,

 

 

as Grantor

 

 

 

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

 

 

Name: R. Scott Massengill

 

 

 

Title: Vice President & Treasurer

 

 

 

 

 

Address:

225 Brae Boulevard

 

 

 

Park Ridge, NJ 07656

 

 

Attention:

Treasury Department

 

 

Telephone:

(201) 307-2000

 

 

Facsimile:

(201) 307-2746

 

 

 

 

 

 

 

 

HERTZ GENERAL INTEREST LLC,

 

 

as Grantor

 

 

 

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

 

 

Name: R. Scott Massengill

 

 

 

Title: Vice President & Treasurer

 

 

 

 

 

 

Address:

225 Brae Boulevard

 

 

 

Park Ridge, NJ 07656

 

 

Attention:

Treasury Department

 

 

Telephone:

(201) 307-2000

 

 

Facsimile:

(201) 307-2746

 

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THE HERTZ CORPORATION,

 

 

as Servicer

 

 

 

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

 

 

Name: R. Scott Massengill

 

 

 

Title: Treasurer

 

 

 

 

 

 

Address:

225 Brae Boulevard

 

 

 

Park Ridge, NJ 07656

 

 

Attention:

Treasury Department

 

 

Telephone:

(201) 307-2000

 

 

Facsimile:

(201) 307-2746

 

 

 

 

 

 

 

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

 

 

as Secured Party, not in its individual capacity but solely as Trustee

 

 

 

 

 

 

 

 

By:

/s/ John D. Ask

 

 

 

Name: John D. Ask

 

 

 

Title: Senior Associate

 

 

 

 

 

 

Address:

2 North LaSalle Street, Suite 1020

 

 

 

Chicago, IL 60602

 

 

Attention:

Corporate Trust Administration — Structured Finance

 

 

Telephone:

(312) 827-8569

 

 

Facsimile:

(312) 827-8562

 

 

 

 

 

 

 

 

 

 

THE HERTZ CORPORATION,

 

 

as Secured Party

 

 

 

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

 

 

Name: R. Scott Massengill

 

 

 

Title: Treasurer

 

 

 

 

 

 

Address:

225 Brae Boulevard

 

 

 

Park Ridge, NJ 07656

 

 

Attention:

Treasury Department

 

 

Telephone:

(201) 307-2000

 

 

Facsimile:

(201) 307-2746

 

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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

 

 

not in its individual capacity but solely as Collateral Agent

 

 

 

 

 

By:

/s/ John D. Ask

 

 

 

Name: John D. Ask

 

 

 

Title: Senior Associate

 

 

 

 

 

 

Address:

2 North LaSalle Street, Suite 1020

 

 

 

Chicago, IL 60602

 

 

Attention:

Corporate Trust Administration — Structured Finance

 

 

Telephone:

(312) 827-8569

 

 

Facsimile:

(312) 827-8562

 

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EXHIBIT A

 

SERVICER’S 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 Servicer’s Agents as of the last day of such month and the name and address of all Servicer’s 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    .

 

 

THE HERTZ CORPORATION,

 

as Servicer

 

 

 

 

 

By:

 

 

 

Name:

 

 

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 Agent’s 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     .

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

 

 

not in its individual capacity

 

 

but solely as Collateral Agent

 

 

 

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

B-2



 

STATE OF NEW YORK

)

 

 

:   ss.:

 

COUNTY OF NEW YORK

)

 

 

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

 

 

 

Page

 

 

 

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

 

i



 

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);

 

2



 

(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 Issuer’s 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 Officer’s 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));

 

3



 

(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, Officer’s 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 Officer’s 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 Officer’s 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 Officer’s 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

 

4



 

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 Administrator’s 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 Administrator’s obligations under this Agreement, the Administrator shall be entitled to

 

5



 

$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 ”):

 

6


 

(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

 

7



 

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

 

8



 

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

 

9



 

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 attorney’s 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 Administrator’s 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

 

10



 

constitute a claim (as defined in Section 101 of the Bankruptcy Code) against, or corporate obligation of, HVF.

 

11



 

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the day and year first above written.

 

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

 

 

Scott Massengill

 

 

 

Vice President & Treasurer

 

 

 

 

 

THE HERTZ CORPORATION,

 

 

as Administrator

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

 

 

Scott Massengill

 

 

 

Treasurer

 

 

 

 

 

 

THE BANK OF NEW YORK MELLON, N.A.,

 

 

as Trustee

 

 

 

 

 

 

By:

/s/ John D. Ask

 

 

 

Name: John D. Ask

 

 

 

Title: Senior Associate

 

12



 

EXHIBIT A

 

[Form of Power of Attorney]

 

POWER OF ATTORNEY

 

STATE OF

)

 

)

COUNTY OF

)

 

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.

 

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

 

 

By:

 

 

 

 

Name:

 

 

 

Title:

 

13




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

 

 

Page

 

 

ARTICLE I

 

 

Definitions

 

SECTION 1.01. Definitions

2

 

 

ARTICLE II

 

 

General Exchange Provisions

 

SECTION 2.01. Exchange of Property

9

SECTION 2.02. Disposition and Transfer of Relinquished Property

10

SECTION 2.03. Acquisition and Transfer of Replacement Property

10

SECTION 2.04. Assignment of Agreements

11

SECTION 2.05. Notice to Purchasers and Sellers

12

SECTION 2.06. Direct Transfers

12

SECTION 2.07. Matching of Relinquished and Replacement Property

12

SECTION 2.08. Disclosure of Relationship

12

SECTION 2.09. Exclusivity

13

SECTION 2.10. Records

13

 

 

ARTICLE III

 

 

Identification

 

SECTION 3.01. Identification of Replacement Property

13

SECTION 3.02. Revocation of Identification

14

 

 

ARTICLE IV

 

 

Accounts

 

 

SECTION 4.01. Accounts

15

SECTION 4.02. Separation and Application of Funds in Joint Collection Accounts and Exchange Accounts; Proceeds from Transfer of Relinquished Property by the QI

17

SECTION 4.03. Payment for Replacement Property

19

SECTION 4.04. Investment of Funds in the Exchange Account

20

SECTION 4.05. Disbursements from Account

20

SECTION 4.06. Disbursement Occurrence

20

 

i



 

Table of Contents
(continued)

 

 

Page

 

 

ARTICLE V

 

 

Indemnity By Each Legal Entity

 

SECTION 5.01. No Personal Liability

21

SECTION 5.02. Indemnity

21

SECTION 5.03. Survival

21

 

 

ARTICLE VI

 

 

Representations, Warranties And Covenants

 

SECTION 6.01. Representations and Warranties of the QI

22

SECTION 6.02. Representations and Warranties of Owner

23

SECTION 6.03. Representations and Warranties of Each Legal Entity

24

SECTION 6.04. Survival of Representations and Warranties

25

SECTION 6.05. Maintenance of Separate Existence

25

SECTION 6.06. Ownership by Owner; Mergers

26

SECTION 6.07. Organizational Documents

27

SECTION 6.08. No Other Agreements

27

SECTION 6.09. Other Business

27

SECTION 6.10. QI Parent Downgrade Event Sale

27

SECTION 6.11. Trademark License

28

SECTION 6.12. Confidentiality

29

 

 

ARTICLE VII

 

 

Term And Compensation; Escrow Agreement Termination

 

SECTION 7.01. Term

29

SECTION 7.02. Compensation

32

SECTION 7.03. Escrow Agreement Termination

32

 

 

ARTICLE VIII

 

 

Miscellaneous

 

SECTION 8.01. Pending Litigation

32

SECTION 8.02. Notices

32

SECTION 8.03. Amendments

34

SECTION 8.04. Successors and Assigns; No Third-Party Beneficiaries

34

SECTION 8.05. Governing Law, Venue, Jury Trial Waiver, and Attorneys’ Fees

35

SECTION 8.06. Indebtedness

35

SECTION 8.07. Strict Performance

35

SECTION 8.08. Severability; Interpretation

35

SECTION 8.09. Dates, Descriptions, Values, and Matching

35

 



 

Table of Contents
(continued)

 

 

Page

 

 

SECTION 8.10. Counterparts

36

SECTION 8.11. Entire Agreement

36

SECTION 8.12. Electronic Signature

36

SECTION 8.13. Acknowledgment of Independent Relationship

36

SECTION 8.14. Headings

36

SECTION 8.15. Force Majeure

36

SECTION 8.16. Consequential Damages

36

SECTION 8.17. Investment Losses

37

SECTION 8.18. Treasury Regulations Disclosure Requirements

37

SECTION 8.19. No Petitions

37

SECTION 8.20. Servicer

38

 



 

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:

 

ARTICLE I

 

Definitions

 

SECTION 1.01.  Definitions.   Capitalized terms used herein and not otherwise defined herein shall have the meaning set forth in Schedule I to the Base Indenture; 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, HVF Segregated Vehicle Collateral or other Series-Specific Collateral with respect to 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

 

2



 

Vehicles and HGI Vehicle Collateral.  The following terms used in this Agreement shall have the following meanings, unless otherwise expressly provided herein:

 

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:

 

(i) funds on deposit in any Account that were Relinquished Property Proceeds but have not been identified to Replacement Property within the Identification Period or with respect to which any identification has been revoked or the Exchange Period has expired without acquisition of Replacement Property;

 

(ii) funds on deposit in any Account that were Relinquished Property Proceeds but are no longer Relinquished Property Proceeds because Exchangor has received all of the Replacement Property that was identified with respect to the related Relinquished Property Proceeds during the Identification Period for the related Exchange pursuant to Section 3.01 hereof;

 

(iii) funds on deposit in any Account that never were Relinquished Property Proceeds, including, among other amounts, Non-Qualified Funds, additional amounts transferred to a Joint Disbursement Account by a Legal Entity pursuant to Section 4.03(e) and any earnings on deposit in any Account that are not Qualified Earnings; and/or

 

(iv) funds that may be withdrawn pursuant to Section 4.06.

 

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.

 

3



 

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 Exchangor’s transfer of Relinquished Property and Exchangor’s 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,

 

4



 

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 Exchangor’s 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 owner’s 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.

 

6


 

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

 

QI Sale ” shall have the meaning set forth in Section 6.10(a) hereof.

 

7



 

Relinquished Property ” shall mean certain vehicles used in Exchangor’s 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 Exchangor’s 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 Entity’s 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 Entity’s 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 Poor’s 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.

 

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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.

 

ARTICLE II

 

General Exchange Provisions

 

SECTION 2.01.  Exchange of Property.   (a)  In accordance with the terms of this Agreement, the QI agrees to transfer Relinquished Property to a Buyer, pursuant to the terms of Section 2.02 hereof, and to subsequently acquire Replacement Property of a like-kind from a Seller pursuant to the terms of Section 2.03 hereof in transactions intended to qualify as exchanges under Section 1031 of the Code.

 

(b)  No transfer by a Legal Entity of Relinquished Property pursuant to this Agreement shall be made unless each of the following conditions are satisfied:  (u) the Escrow Agreement shall be in effect; (v) in connection with the transfer of any Program Vehicle pursuant to an Eligible Manufacturer Program, the applicable Legal Entity shall have contracted to sell such Program Vehicle pursuant to such Eligible Manufacturer Program (the Manufacturer party to which shall have consented to the purchase and sale of Vehicles by the QI pursuant to an Assignment Agreement, which consent shall not have been revoked) and shall have directed the QI to sell such Program Vehicle pursuant to such Eligible Manufacturer Program on the date such Program Vehicle becomes Relinquished Property pursuant to this Agreement; (w) on the date of any transfer of any Vehicle to the QI, the only obligations or liabilities, if any, secured by such Vehicle are obligations or liabilities arising under the Related Documents, the GE Credit Agreement, the GE Collateral Agreement or the other GE Loan Documents; (x) solely with respect to (i) a proposed transfer by HVF of Relinquished Property (other than any Relinquished Property relating to Series-Specific Collateral for any Segregated Series which does not have one or more Rating Agencies rating the related Segregated Notes at the request of the Issuer) pursuant to this Agreement or (ii) a proposed transfer by Hertz of Relinquished Property with respect to a GE Financed Vehicle pursuant to this Agreement, as of the date of any such transfer, a QI Parent Downgrade Event shall not have occurred and continued unremedied for a period of seven calendar days (ending at 11:59 p.m. on such seventh day) prior to such date (unless such

 

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QI Parent Downgrade Event has been remedied) and (y) on the date of any such transfer, the following statements shall be true:  (i) solely with respect to a proposed transfer by HVF of Relinquished Property relating to Collateral pursuant to this Agreement, no Potential Amortization Event or Amortization Event and no Liquidation Event of Default or Limited Liquidation Event of Default has occurred and is continuing or would result from the making of such transfer, in each case with respect to a Series of Notes, (ii) solely with respect to a proposed transfer by HVF of Relinquished Property relating to Series-Specific Collateral of a particular Segregated Series pursuant to this Agreement, no Potential Amortization Event or Amortization Event with respect to such Segregated Series and no Liquidation Event of Default or Limited Liquidation with respect to such Segregated Series has occurred and is continuing or would result from the making of such transfer, (iii) solely with respect to a proposed transfer by Hertz of Relinquished Property with respect to a GE Financed Vehicle pursuant to this Agreement, no Event of Default has occurred and is continuing or would result from the making of such transfer, (iv) (a) solely with respect to a proposed transfer by HVF of Relinquished Property relating to HVF Vehicles, the Termination Date has not occurred with respect to the HVF Vehicles and (b) solely with respect to the proposed transfer by HVF of Relinquished Property relating to HVF Segregated Vehicles constituting Series-Specific Collateral of a particular Segregated Series, the Termination Date has not occurred with respect to such HVF Segregated Vehicles and (v) the representations and warranties of the QI in Article VI hereof are true and correct on and as of such date and shall be deemed to have been made on and as of such date with the same effect as though made on and as of such date.  In connection with any such transfer of Relinquished Property, (A) the applicable Legal Entity, by making such transfer, shall be deemed to have represented and warranted to the effect set forth in clauses (z)(i), (ii), (iii) and (iv) above, and (B) the QI shall be deemed to have represented and warranted to the effect set forth in clause (z)(v) above.

 

SECTION 2.02.  Disposition and Transfer of Relinquished Property.   Each Legal Entity has entered, and/or from time to time may enter, into one or more Relinquished Property Agreements with one or more Buyers for the sale of Relinquished Property.  In connection with each Exchange, the applicable Legal Entity shall, in accordance with Section 1.1031(k)-1(g)(4)(v) of the Treasury Regulations:  (a) assign to the QI all of its Rights with respect to such Relinquished Property under the applicable Relinquished Property Agreements in accordance with Section 2.04 hereof, such assignment to be made without recourse to the QI (and the QI agrees to accept such assignments); (b) notify all parties to the applicable Relinquished Property Agreements in writing of the assignment in accordance with Section 2.05 prior to or concurrent with the date of transfer of the Relinquished Property to the applicable Buyer, and (c) transfer its interest in the Relinquished Property to the applicable Buyer pursuant to the applicable Relinquished Property Agreements.

 

SECTION 2.03.  Acquisition and Transfer of Replacement Property.   HGI has entered, and/or from time to time may enter, into one or more Replacement Property Agreements with one or more Sellers for the purchase of Replacement Property.  In connection with each Exchange, HGI shall, in accordance with Section 1.1031(k)-1(g)(4)(v) of the Treasury Regulations:  (a) assign to the QI all of its Rights with respect to such Replacement Property under the applicable Replacement Property Agreements in accordance with Section 2.04 hereof, any such assignment to be made without recourse to the QI (and the QI agrees to accept such assignments); (b) notify all parties to the applicable Replacement Property Agreement in writing

 

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of the assignment in accordance with Section 2.05 prior to or concurrent with the date of transfer of the Replacement Property from the applicable Seller, and (c) receive an ownership interest in the Replacement Property from the applicable Seller pursuant to the applicable Replacement Property Agreement.

 

SECTION 2.04.  Assignment of Agreements.

 

(a)  Existing Agreements.   Each Legal Entity hereby assigns to the QI, solely in the QI’s capacity as Exchangor’s Qualified Intermediary, such Legal Entity’s Rights, but not its obligations, under each related Relinquished Property Agreement to which such Legal Entity is a party as of the date hereof, such assignment to be effective only upon such Legal Entity’s transfer of such Relinquished Property pursuant to Section 2.02 hereof and only with respect to such Relinquished Property, and the QI hereby agrees to accept such assignment, solely in its capacity as Exchangor’s Qualified Intermediary.  HGI hereby assigns to the QI, solely in the QI’s capacity as Exchangor’s Qualified Intermediary, HGI’s Rights, but not its obligations, under each related Replacement Property Agreement to which HGI is a party as of the date hereof with respect to such Replacement Property, and the QI hereby accepts such assignment, solely in its capacity as Exchangor’s Qualified Intermediary.

 

(b)  New Agreements.   Each Legal Entity hereby assigns to the QI, solely in the QI’s capacity as Qualified Intermediary, such Legal Entity’s Rights, but not its obligations, under each related Relinquished Property Agreement that it enters into after the date of this Agreement, such assignment to be effective only upon such Legal Entity’s transfer of such Relinquished Property pursuant to Section 2.02 hereof and only with respect to such Relinquished Property.  HGI hereby assigns to the QI, solely in the QI’s capacity as Qualified Intermediary, HGI’s Rights, but not its obligations, under each Replacement Property Agreement that it enters into after the date of this Agreement with respect to such Replacement Property.  Unless otherwise agreed by the parties, each Legal Entity shall make available to the QI a report of daily activity listing such new agreements into which it entered during the period covered by such report.  The QI shall and hereby does accept each assignment pursuant to this Section 2.04(b) from each Legal Entity, solely in its capacity as Exchangor’s Qualified Intermediary.

 

(c)  Revocation of, or Change in, Assignment.   (i) By notice to the QI, each Legal Entity may revoke its assignment to the QI of its Rights with respect to any Replacement Property identified in such notice.  (ii) By notice to the QI, each Legal Entity may cease assigning to the QI such Legal Entity’s Rights pursuant to this Section 2.04 with respect to any of its Relinquished Property identified in such notice and any related Relinquished Property Agreement, if then in existence, whereupon the property identified in such notice shall cease to be Relinquished Property and any related agreement shall cease to be a Relinquished Property Agreement to the extent related to the property specified in such notice.  (iii) Not later than the Termination Date specified in any notice of termination delivered pursuant to Section 7.01(a) hereof, the applicable Legal Entity shall cease assigning to the QI its Rights with respect to any Relinquished Property relating to the Vehicles with respect to which the Termination Date relates.  (iv) On the Special Termination Date specified in Section 7.01(b) hereof, the Legal Entities shall cease assigning to the QI its Rights with respect to any Relinquished Property arising on or after such date.  Any such notices shall only be effective with respect to property transferred or received after the date on which such notice is given.

 

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(d)  Safe Harbor.   For purposes of the Code and the Treasury Regulations, each assignment to the QI made by a Legal Entity pursuant to this Section 2.04 is made by Exchangor pursuant to the assignment Safe Harbor set forth in Section 6.02 of Revenue Procedure 2003-39 and, except as may be otherwise required by applicable law, shall be effective when provided in Section 2.04(a) or 2.04(b) hereof, as applicable, without the need for any further actions other than those provided in Sections 2.01, 2.02, 2.03, 2.04(a) and 2.04(b) hereof by a Legal Entity or the QI with respect to the transfer of any Relinquished Property or any Replacement Property.

 

(e)  Limitation on Rights Transferred to QI.   Each of the parties hereto agrees and acknowledges that any assignment to the QI hereunder shall not give the QI any rights under any Relinquished Property Agreement to which any Legal Entity is a party relating to the disposition of a Vehicle except the Rights in respect of a Vehicle that becomes Relinquished Property.  The QI hereby acknowledges that it shall have no interest in any Relinquished Property Agreement with respect to any Vehicle that is not Relinquished Property.

 

SECTION 2.05.  Notice to Purchasers and Sellers.   Each Legal Entity represents and agrees that it will provide notice, on or before the date of the relevant transfer of property, to each other party to any Relinquished Property Agreement or any Replacement Property Agreement with respect to which any of its Rights thereunder have been assigned to the QI that such Legal Entity’s Rights in such Relinquished Property Agreement or such Replacement Property Agreement, as the case may be, have been assigned, to the extent set forth herein, to the QI, as its Qualified Intermediary.

 

SECTION 2.06.  Direct Transfers.   For purposes of this Agreement, the QI shall be considered to have (1) acquired Relinquished Property from Exchangor and transferred it to the Buyer thereof in each case where such Relinquished Property is in fact transferred by a Legal Entity directly to such Buyer pursuant to the relevant Relinquished Property Agreement in accordance with Section 2.02 hereof, and (2) acquired Replacement Property from the Seller thereof and transferred it to Exchangor in each case where the Replacement Property is in fact transferred by such Seller to HGI pursuant to the relevant Replacement Property Agreement in accordance with Section 2.03 hereof, in each case as provided by Sections 1.1031(k)-1(g)(4)(iv) and (v) of the Treasury Regulations.

 

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.

 

SECTION 2.07.  Matching of Relinquished and Replacement Property.   Exchangor shall match Replacement Property with Relinquished Property for each Exchange on its books and records in accordance with Section 1.1031(a)-2 of the Treasury Regulations and the Safe Harbor set forth in Sections 4.01 and 4.02 of Revenue Procedure 2003-39.

 

SECTION 2.08.  Disclosure of Relationship.   Each Legal Entity acknowledges and agrees that the QI shall have the right to disclose the relationships set forth in this Agreement to any Seller, Buyer or other person and that the QI is, and is acting in the sole capacity as, Exchangor’s Qualified Intermediary.

 

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SECTION 2.09.  Exclusivity.   Except as permitted under this Agreement and the Escrow Agreement, the QI agrees that it will not enter into any agreements or conduct any transactions or other business other than agreements, transactions or business with the Legal Entities pursuant to agreements between such Legal Entities and the QI, or any transactions directly ancillary thereto.

 

SECTION 2.10.  Records.   The QI agrees that it will monitor and keep detailed and accurate records of the transactions carried out pursuant to this Agreement, including the dollar amounts involved in each of such transactions.  Such records shall include information concerning the date of each transfer of Relinquished Property to a Buyer and the date of each receipt of Replacement Property from a Seller.  Such records shall be maintained in accordance with recognized accounting practices and in such a manner so as they may be readily audited.  All such records will be available for inspection by the Collateral Agent, the GE Collateral Agent, the Trustee, each Enhancement Provider and each Legal Entity, or its designated representatives, upon such Legal Entity’s request, at reasonable, mutually agreeable times, while this Agreement remains in force.  After expiration, termination or cancellation of this Agreement, at the applicable Legal Entity’s expense (which expenses shall be reasonable and approved by such Legal Entity), the QI shall continue to maintain such records, and to allow such Legal Entity to audit or inspect the records, until such time as such Legal Entity notifies the QI that the records are no longer required.  The QI shall cooperate with the applicable Legal Entity, or its designated representatives, in the conduct of any such inspection.  Notwithstanding anything set forth above, unless otherwise requested by a Legal Entity, the records relating to any particular day’s activities may be destroyed at any time, upon 10 Business Days’ prior written notice to the applicable Legal Entity, after the date which is seven (7) years from the date such record was originated.

 

ARTICLE III

 

Identification

 

SECTION 3.01.  Identification of Replacement Property.   Any Legal Entity may, at any time during the Identification Period, with respect to an Exchange, by written notice to the QI, signed by such Legal Entity and sent to the QI in any manner prescribed by Section 1.1031(k)-1(c)(2) of the Treasury Regulations, identify and designate the Replacement Property with respect to the Relinquished Property transferred in such Exchange; provided however , that (a) HVF shall not so identify and designate Replacement Property (i) with respect to HVF Vehicles, after 11:59 p.m. on the seventh calendar day after the occurrence of a QI Parent Downgrade Event that continues unremedied at such time, unless such QI Parent Downgrade Event has been remedied, (ii) with respect to HVF Segregated Vehicles (other than any HVF Segregated Vehicles constituting Series-Specific Collateral for any Segregated Series which does not have one or more Rating Agencies rating the related Segregated Notes at the request of the Issuer), after 11:59 p.m. on the seventh calendar day after the occurrence of a QI Parent Downgrade Event that continues unremedied at such time, unless such QI Parent Downgrade Event has been remedied, (iii) with respect to HVF Vehicles, for so long as an Amortization Event is continuing with respect to any Series of Notes and (iv) with respect to HVF Segregated Vehicles constituting Series-Specific Collateral of any Segregated Series, for so long as an Amortization Event is continuing with respect to such Segregated Series; (b) Hertz

 

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shall not so identify and designate Replacement Property with respect to GE Financed Vehicles (i) after 11:59 p.m. on the seventh calendar day after the occurrence of a QI Parent Downgrade Event that continues unremedied at such time, unless such QI Parent Downgrade Event has been remedied or (ii) after the occurrence of an Event of Default that continues unremedied at such time; and (c) no Legal Entity shall so identify and designate Replacement Property with respect to any Vehicles after the Special Termination Date.  The Legal Entities shall only designate Replacement Property that is like-kind to such Relinquished Property, as defined in Sections 1.1031(a)-(b) and 1.1031(a)-2 of the Treasury Regulations.  The Legal Entities shall identify as Replacement Property either (a) no more than three vehicles in the aggregate or (b) any number of vehicles whose aggregate fair market value does not exceed 200% of the aggregate fair market value of the related Relinquished Property involved in such Exchange.

 

SECTION 3.02.  Revocation of Identification.   (a)  Any identification by a Legal Entity pursuant to Section 3.01 hereof may be revoked by written notice from any Legal Entity to the QI prior to the end of the Identification Period.

 

(b)  During the continuance of an Amortization Event with respect to any Series of Notes, any identification pursuant to Section 3.01 with respect to Relinquished Property of HVF which relates to HVF Vehicles which can be revoked pursuant to Section 3.02(a) shall be revoked.

 

(c)  During the continuance of an Amortization Event with respect to any Segregated Series of Notes, any identification pursuant to Section 3.01 with respect to Relinquished Property of HVF which relates to HVF Segregated Vehicles constituting Series-Specific Collateral for such Segregated Series which can be revoked pursuant to Section 3.02(a) shall be revoked.

 

(d)  During the continuance of an Event of Default, any identification pursuant to Section 3.01 with respect to Relinquished Property of Hertz which relates to GE Financed Vehicles which can be revoked pursuant to Section 3.02(a) shall be revoked.

 

(e)  If a QI Parent Downgrade Event shall have occurred and continues unremedied at 11:59 p.m. on the seventh calendar day after the occurrence of such event, any identification pursuant to Section 3.01 with respect to Relinquished Property of HVF (other than any such Relinquished Property which relates to HVF Segregated Vehicles constituting Series-Specific Collateral for any Segregated Series which does not have one or more Rating Agencies rating the related Segregated Notes at the request of the Issuer) or Relinquished Property of Hertz which relates to GE Financed Vehicles which can be revoked pursuant to Section 3.02(a) shall be revoked.

 

(f)  Hertz will give the QI written notice of the occurrence of an Amortization Event with respect to any Series of Indenture Notes, an Event of Termination pursuant to the Purchase Agreement, an Event of Default or a QI Parent Downgrade Event promptly after Hertz becomes aware of the occurrence of such event.

 

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ARTICLE IV

 

Accounts

 

SECTION 4.01.  Accounts.   (a)  Each Legal Entity and the QI shall enter into the Escrow Agreement with the QI and the Escrow Agent, pursuant to which the Legal Entities and the QI shall maintain one or more Exchange Accounts and Joint Disbursement Accounts, at The Bank of New York Mellon, N.A. or the Escrow Agent or an affiliate thereof.  One or more Joint Collection Accounts have been or will be established and will be maintained by the Collateral Agent in accordance with Section 2.5 of the Collateral Agency Agreement or the analogous section in any collateral agency agreement relating to a Segregated Non-Collateral Agency Series, as applicable; one or more HVF Exchange Accounts have been or will be established and will be maintained by the Trustee in accordance with Section 5A.1 of the Base Indenture, each in the name of “The Bank of New York Mellon, N.A., as Trustee, and Hertz Car Exchange Inc., as Qualified Intermediary for HVF”; one or more HVF Segregated Exchange Accounts have been or will be established and will be maintained by the Trustee in accordance with the applicable section of the related Segregated Series Supplement, each in the name of “The Bank of New York Mellon, N.A., as Trustee, and Hertz Car Exchange Inc., as Qualified Intermediary for HVF”; and one or more Hertz GE Exchange Accounts have been or will be established and will be maintained by the GE Collateral Agent in accordance with the provisions of the GE Credit Agreement and the GE Collateral Agreement, each in the name of “Gelco Corporation dba GE Fleet Services, as Collateral Agent, and Hertz Car Exchange, Inc., as Qualified Intermediary for Hertz”.  All such Accounts shall be operated in accordance with the terms of this Agreement, the Collateral Agency Agreement or any collateral agency agreement relating to a Segregated Non-Collateral Agency Series, the Base Indenture, the Segregated Series Supplements, the GE Credit Agreement and the GE Collateral Agreement, as applicable.  If any Joint Collection Account is not maintained in accordance with Section 2.5 of the Collateral Agency Agreement or the analogous section in any collateral agency agreement relating to a Segregated Non-Collateral Agency Series, as applicable, then within ten (10) Business Days of obtaining knowledge of such fact, the Collateral Agent (or any collateral agent with respect to any Segregated Non-Collateral Agency Series) and the QI shall establish a new Joint Collection Account which complies with such section and transfer into the new Joint Collection Account all funds from the old Joint Collection Account.  If any HVF Exchange Account is not maintained in accordance with Section 5A.1 of the Base Indenture, then within ten (10) Business Days of obtaining knowledge of such fact, the Trustee and the QI shall establish a new HVF Exchange Account which complies with such section and transfer into the new HVF Exchange Account all funds from the old HVF Exchange Account.  If any HVF Segregated Exchange Account is not maintained in accordance with the applicable section of the related Segregated Series Supplement, then within ten (10) Business Days of obtaining knowledge of such fact, the Trustee and the QI shall establish a new HVF Segregated Exchange Account which complies with such section and transfer into the new HVF Segregated Exchange Account all funds from the old HVF Segregated Exchange Account. If any Hertz GE Exchange Account is not maintained in accordance with the provisions of the GE Credit Agreement and the GE Collateral Agreement, then within ten (10) Business Days of obtaining knowledge of such fact, the GE Collateral Agent and the QI shall establish a new Hertz GE Exchange Account which complies with such provisions and transfer into the new Hertz GE Exchange Account all funds from the old Hertz GE Exchange Account.

 

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(b)  The Joint Collection Accounts are intended to facilitate the orderly and efficient collection of proceeds from the disposition of the Relinquished Property, including the collection of all Relinquished Property Proceeds, and to allow (1) the identification and subsequent separation of the portion of such funds attributable to Vehicles disposed of by Hertz, HVF or HGI, (2) the further identification and subsequent separation of the portion of such funds attributable to HVF Vehicles and the portion of such funds attributable to HVF Segregated Vehicles, in which case the Segregated Series with respect to which such HVF Segregated Vehicle constitutes Series-Specific Collateral shall be identified and (3) the further identification and subsequent separation of the portion of such funds of each Legal Entity that are Relinquished Property Proceeds of such Legal Entity from the portion of such funds that are Non-Qualified Funds of such Legal Entity.  All proceeds received from Buyers by or on behalf of the QI or a Legal Entity in respect of sales of Relinquished Property shall be immediately deposited in a Joint Collection Account.

 

(c)  The Exchange Accounts are intended (i) to receive all Relinquished Property Proceeds and (ii) (A) in the case of an HVF Exchange Account, an HVF Segregated Exchange Account or a Hertz Exchange Account, to provide Relinquished Property Proceeds to an HGI Exchange Account upon the purchase of a vehicle by Hertz or HVF from HGI and (B) in the case of an HGI Exchange Account, to provide Relinquished Property Proceeds to the Joint Disbursement Accounts.

 

(d)  The Joint Disbursement Accounts are intended to facilitate the orderly and efficient disbursement of funds to the Sellers, including the disbursement of all funds relating to the acquisition of Replacement Property under the LKE Program.

 

(e)  Pursuant to the Escrow Agreement, Relinquished Property Proceeds held by the QI on behalf of a Legal Entity in (i) an HVF Exchange Account or unless otherwise specified in Segregated Series Supplement an HVF Segregated Exchange Account shall be invested in Permitted Investments, (ii) a Hertz GE Exchange Account shall be invested in Cash Equivalents (as defined in the GE Credit Agreement) or (iii) any other Exchange Account shall be invested as directed by Hertz or HGI, in each case, until such funds are used, in the case of Hertz or HVF, to fund an HGI Account upon the purchase of a vehicle from HGI, and in the case of HGI, to fund a Joint Disbursement Account, as the case may be.

 

(f)  All Relinquished Property Proceeds (and any earnings thereon), whether in a Joint Collection Account, a Joint Disbursement Account or an Exchange Account, shall be held subject to Sections 1.1031(k)-1(g)(4)(ii) and 1.1031(k)-1(g)(6) of the Treasury Regulations, including the restrictions on Exchangor’s right to receive, pledge, borrow, or otherwise obtain the benefits of Relinquished Property Proceeds and Qualified Earnings thereon held by the QI.  Subject to the limitation that each Legal Entity shall have no right to receive, pledge, borrow, or otherwise obtain the benefits of Relinquished Property Proceeds or the Qualified Earnings thereon held by either the QI or the bank maintaining the account where such Relinquished Property Proceeds are on deposit, Relinquished Property Proceeds may be withdrawn from any Exchange Account or Joint Disbursement Account upon a Disbursement Occurrence with respect to the related Relinquished Property.  Upon any Disbursement Occurrence, the QI shall, at such time and in satisfaction of the QI’s remaining obligations under this Agreement as to the related Exchange with respect to such Disbursement Occurrence, have the bank maintaining the

 

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Account where the applicable funds are on deposit pay any remaining amount relating to such Exchange, including without limitation accumulated interest as to such Exchange in any Exchange Account, to, or as directed by, the Legal Entities; provided that if such funds relate to HVF Vehicles, such amount shall be paid to the Collection Account and if such funds relate to the HVF Segregated Vehicles constituting the Series-Specific Collateral for any Segregated Series unless otherwise specified in a Segregated Series Supplement such amount shall be paid to the collection account for such Segregated Series.

 

SECTION 4.02.  Separation and Application of Funds in Joint Collection Accounts and Exchange Accounts; Proceeds from Transfer of Relinquished Property by the QI.

 

(a)  Identification of Funds.   On each Business Day, (i) each Legal Entity shall: (1) identify funds in the Joint Collection Accounts as of such Business Day which constitute Non-Qualified Funds with respect to such Legal Entity and direct the QI to immediately transfer such funds to (A) in the case of Non-Qualified Funds of HVF with respect to HVF Vehicles, the Collection Account and with respect to HVF Segregated Vehicles constituting the Series-Specific Collateral for any Segregated Series unless otherwise specified in the related Segregated Series Supplement the collection account for such Segregated Series, (B) in the case of Non-Qualified Funds of Hertz with respect to GE Financed Vehicles, the GE Collateral Account and (C) in the case of other Non-Qualified Funds of Hertz or Non-Qualified Funds of HGI, to such other account as shall be specified by the applicable Legal Entity; (2) initiate on such Business Day proposed Electronic Funds Transfers from the Joint Collection Accounts in order to transfer funds in the Joint Collection Accounts as of such Business Day which constitute Relinquished Property Proceeds with respect to Relinquished Property transferred by such Legal Entity to the applicable Exchange Account and (3) notify the QI and (A) in the case of transfers to the Collection Account, any collection account or other account relating to a Segregated Series of Notes, an HVF Exchange Account or an HVF Segregated Exchange Account, the Trustee or (B) in the case of transfers to the GE Collateral Account or a Hertz GE Exchange Account, the GE Collateral Agent of such proposed transfers and (ii) each Legal Entity shall:  (1) identify funds in the Exchange Accounts as of such Business Day which constitute Non-Qualified Funds with respect to such Legal Entity and direct the QI to immediately transfer such funds to (A) in the case of Non-Qualified Funds of HVF with respect to HVF Vehicles, the Collection Account and with respect to HVF Segregated Vehicles constituting the Series-Specific Collateral for any Segregated Series unless otherwise specified in the related Segregated Series Supplement the collection account or other account for such Segregated Series, (B) in the case of Non-Qualified Funds of Hertz with respect to GE Financed Vehicles, the GE Collateral Account and (C) in the case of other Non-Qualified Funds of Hertz and Non-Qualified Funds of HGI, to such other account as shall be specified by the applicable Legal Entity; (2) initiate on such Business Day proposed Electronic Funds Transfers from (x) an Exchange Account in order to transfer funds in such Exchange Account as of such Business Day which constitute Relinquished Property Proceeds with respect to Relinquished Property transferred by a Legal Entity (but which funds were previously transferred to the Exchange Account of a different Legal Entity) to the applicable Exchange Account, provided that, in the case of an HVF Exchange Account, no Aggregate Asset Amount Deficiency (under the Base Indenture) exists or would result therefrom and, in the case of an HVF Segregated Exchange Account, no Aggregate Asset Amount Deficiency (under the applicable Segregated Series Supplement) exists or would result therefrom, and (y) a Hertz Exchange Account, an HVF Exchange Account or an HVF

 

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Segregated Exchange Account in order to transfer funds in such Exchange Account as of such Business Day which constitute Relinquished Property Proceeds with respect to Relinquished Property transferred by such Legal Entity hereunder to an HGI Exchange Account upon the purchase of a vehicle by Hertz or HVF from HGI and (3) notify the QI and, in the case of a transfer from an HVF Exchange Account or an HVF Segregated Exchange Account, the Trustee or, in the case of a transfer from a Hertz GE Exchange Account, the GE Collateral Agent of such proposed transfers.

 

(b)  Approval of Certain Transfers.   If upon notification to the QI of the proposed Electronic Funds Transfers of Relinquished Property Proceeds pursuant to clause (i)(2) or (ii)(2) of Section 4.02(a) hereof, the QI approves of such proposed Electronic Funds Transfers, the QI agrees to take, within one hour of the receipt of such notification of transfers, all appropriate actions needed to approve and transmit such transfers.  If the QI does not approve of any of such proposed Electronic Funds Transfers of Relinquished Property Proceeds, the QI shall immediately notify (1) the applicable Legal Entity, and (A) in the case of Relinquished Property Proceeds of HVF, the Trustee or (B) in the case of Relinquished Property Proceeds of Hertz with respect to the GE Financed Vehicles, the GE Collateral Agent, and (2) the banking institution maintaining the applicable Joint Collection Account or Exchange Account via telephone or fax (any such notice given by telephone to be confirmed in writing), of the disapproval and the reasons for such disapproval.  The QI shall cause the bank maintaining the Joint Collection Accounts and Exchange Accounts to accept the instructions of the applicable Legal Entity to make each Electronic Funds Transfer described in Section 4.02(a) hereof that is subsequently approved by the QI pursuant to this Section 4.02(b) hereof.

 

(c)  Ownership of Funds; Restricted Transfers.   Each of the Legal Entities and the QI hereby acknowledge and agree that it is the intent of the parties hereto that funds deposited into the Joint Collection Accounts, Exchange Accounts and Joint Disbursement Accounts and funds held in accounts maintained by the Escrow Agent shall be used solely to enable the QI to perform its obligations hereunder to acquire Replacement Property and shall not be considered part of the QI’s general assets nor subject to claims by the QI’s creditors.

 

(d)  Non-Qualified Funds.   The QI shall apply any Non-Qualified Funds, or shall cooperate with each Legal Entity for purposes of executing any authorization to cause any Non-Qualified Funds to be applied, as directed by the applicable Legal Entity pursuant to clause (i)(1) or (ii)(1) of Section 4.02(a) hereof.

 

(e)  Effectuation of Transfer.   On each Business Day, the QI shall cause the bank maintaining each Joint Collection Account or Exchange Account to cause the amount, if any, set forth in the instructions described in Section 4.02(a)(i) or (a)(ii) hereof, to be transferred from such Joint Collection Account to the applicable Exchange Account.  The QI hereby agrees that it shall not approve any transfer of Relinquished Property Proceeds from the Joint Collection Accounts to any account other than an Exchange Account.  HVF shall provide notice to the Trustee of any transfer from (i) a Joint Collection Account to the Collection Account or any collection account or other account relating to a Segregated Series of Notes, an HVF Exchange Account or an HVF Segregated Exchange Account and (ii) an HVF Exchange Account or an HVF Segregated Exchange Account to an HGI Exchange Account.

 

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SECTION 4.03.   Payment for Replacement Property.

 

(a)  Reports.   On each Business Day, HGI shall provide the QI with a report with respect to each Joint Disbursement Account setting forth for such day (1) the aggregate Replacement Property Acquisition Cost expected to be disbursed from such Joint Disbursement Account, (2) the aggregate amount to be transferred to such Joint Disbursement Account from an HGI Exchange Account, if any, to fund such aggregate Replacement Property Acquisition Cost, (3) the amount (if any) to be transferred to such Joint Disbursement Account from any other source to fund such aggregate Replacement Property Acquisition Cost, (4) the aggregate amount (if any) to be transferred to such Joint Disbursement Account from any other account, to fund disbursements not related to the LKE Program, and (5) adjustments, if any, to amounts previously funded from an HGI Exchange Account.

 

(b)  Funding by the QI.   On each Business Day, HGI shall initiate a series of proposed Electronic Funds Transfers in order to withdraw from an HGI Exchange Account and transfer to one or more Joint Disbursement Accounts on such day amounts to fund the aggregate Replacement Property Acquisition Cost on such day in accordance with the report delivered pursuant to Section 4.03(a) hereof and shall notify the QI of such proposed Electronic Funds Transfers.  If upon such notification of the proposed Electronic Funds Transfers the QI approves of the proposed Electronic Funds Transfers, the QI agrees to take, within one hour of the receipt of such notification, all appropriate actions needed to approve and transmit such transfers.  If the QI does not approve of any of such proposed Electronic Funds Transfers, the QI shall immediately notify HGI, via telephone or fax (any such notice given by telephone to be confirmed in writing), of the disapproval and the reasons for such disapproval.  The QI shall cause the bank maintaining each Joint Disbursement Account to accept the instructions of HGI to make each Electronic Funds Transfer described above that is subsequently approved by the QI.

 

(c)  Shortfalls in Funding.   If, for any reason, the sum of the amounts proposed to be transferred from an HGI Exchange Account to a Joint Disbursement Account for the purchase of Replacement Property on any Business Day exceeds the total amount of funds in such Exchange Account available for such purpose on such Business Day, including any funds earned from the investment of funds held in such Exchange Account pursuant to the Escrow Agreement, the QI shall promptly notify HGI of such shortfall, and the amounts to be transferred to a Joint Disbursement Account from such HGI Exchange Account on such Business Day to fund the aggregate Replacement Property Acquisition Cost shall be reduced by the amount of such shortfall.

 

(d)  Effectuation of Transfers.   On each Business Day, the QI shall cause the bank maintaining each Exchange Account to cause the amounts, if any, set forth in the instructions described in Section 4.03(b) hereof, reduced, if necessary, as described in Section 4.03(c) hereof, to be transferred from the applicable Exchange Account to the applicable Joint Disbursement Account.

 

(e)  Funding by Exchangor.   In the event that the aggregate funds transferred from an HGI Exchange Account to the Joint Disbursement Accounts on any Business Day are insufficient to fund all Replacement Property Acquisition Costs and Non-LKE Disbursements to be made from each Joint Disbursement Account on such day, the QI shall promptly notify HGI

 

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of such shortfall, and HGI may transfer Additional Subsidies to the applicable Joint Disbursement Account in an amount sufficient for the QI to acquire the Replacement Property and make such Non-LKE Disbursements.  The QI shall not be required to pay Replacement Property Acquisition Costs or make Non-LKE Disbursements for which sufficient funds are not available.

 

SECTION 4.04.  Investment of Funds in the Exchange Account.

 

(a)  Investment of Funds.   On each Business Day, all funds in the Exchange Accounts shall be invested in accordance with the terms of Section 4.01(e) and the Escrow Agreement.  Each Legal Entity shall provide the QI instructions from time to time in accordance with the Escrow Agreement setting forth the manner in which such funds shall be invested.

 

(b)  Interest Reporting.   Each Legal Entity and the QI acknowledge and agree that the income earned on funds invested pursuant to the Escrow Agreement will be attributed to Exchangor for income tax purposes.

 

SECTION 4.05.  Disbursements from Account.   All Relinquished Property Proceeds shall be held subject to the terms of this Agreement (including, without limitation, the terms of Section 4.01(f)) and, following any transfer of such Relinquished Property Proceeds to an Exchange Account or a Joint Disbursement Account in accordance with the terms hereof, the Escrow Agreement.

 

SECTION 4.06.  Disbursement Occurrence.   All Relinquished Property Proceeds and Additional Subsidies shall be held subject to the terms of this Agreement, the Escrow Agreement, the Collateral Agency Agreement or collateral agency agreement relating to a Segregated Non-Collateral Agency Series, and, in the case of Relinquished Property Proceeds and Additional Subsidies with respect to GE Financed Vehicles, the GE Credit Agreement and the GE Collateral Agreement.  In particular, all Relinquished Property Proceeds (and any Qualified Earnings thereon) shall be held subject to Treasury Regulations Sections 1.1031(k)-1(g)(4)(ii) and (g)(6).  Without limiting the foregoing, Exchangor’s rights to receive, pledge, borrow, or otherwise obtain the benefits of any Relinquished Property Proceeds (whether in the form of money or other property) and any Qualified Earnings thereon are expressly limited as provided in Treasury Regulations Sections 1.1031(k)-1(g)(4)(ii) and 1.1031(k)-1(g)(6).  Exchangor shall have no right to receive, pledge, borrow, or otherwise obtain the benefits of Relinquished Property Proceeds or the Qualified Earnings thereon held in the Accounts except for amounts withdrawn solely for one of the following occurrences (each a “ Disbursement Occurrence ”):  (a) if Exchangor has not identified, or has revoked an identification with respect to, any Replacement Property on or before the end of the Identification Period, (b) after identification and after the Identification Period has expired, Exchangor has received all of the identified Replacement Property to which Exchangor is entitled, (c) after the end of the Exchange Period for any Relinquished Property or (d) HGI, HVF or Hertz receiving written notification from one or more Manufacturers of Identified Replacement Vehicles with respect to Relinquished Property, stating that Manufacturers of Identified Replacement Vehicles will not be delivering, before the end of the applicable Exchange Period or otherwise, Identified Replacement Vehicles with an aggregate purchase price of at least 80% of the aggregate proceeds of the sale of such Relinquished Property.  All funds held in the Joint Collection

 

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Accounts, Exchange Accounts and Joint Disbursement Accounts shall be subject to such restrictions as are necessary for such accounts to satisfy the requirements of Sections 5.02 and 5.03 of Rev. Proc. 2003-39.

 

ARTICLE V

 

Indemnity By Each Legal Entity

 

SECTION 5.01.   No Personal Liability.   The parties hereto agree that no director, officer, employee, member, shareholder or agent of any party to this Agreement shall have any personal liability under or in connection with this Agreement.

 

SECTION 5.02.  Indemnity.   (a)  Hertz agrees to indemnify, hold harmless, and defend the QI, its respective agents, officers, directors, employees, members and affiliates (each a “ QI Indemnitee ”) from and against any and all losses, liabilities, costs and expenses suffered in connection with any claims or actions to the extent directly related to the QI’s involvement under this Agreement as a “Qualified Intermediary”, pursuant to Treasury Regulation Section 1.1031(k)-1(g)(4)(iii), unless such losses, liabilities, costs or expenses resulted from the gross negligence or willful misconduct of a QI Indemnitee.  This indemnity shall include losses, liabilities and claims resulting from payments, withdrawals or orders made or purported to be made in accordance with, or from actions taken in good faith and in reliance upon the provisions of this Agreement.  This indemnity shall include any and all claims arising from or in connection with the presence, release, threat of release, generation, analysis, storage, transportation, discharge or disposal of hazardous substances or hazardous materials (as such terms or similar terms may be defined in the provisions of applicable federal, state or local laws, irrespective of whether such laws, regulations, directives or ordinances are in existence at the date of this Agreement) to, in, under, about, adjacent, or from any Relinquished Property or Replacement Property, and all costs of investigation, soil and water sampling, drilling, testing, reporting, repair, removal, remediation, clean-up, closure, decontamination and detoxification of any property, including the rental and use of any equipment used in connection therewith; and including the cost of any professionals and persons performing any services in connection with any environmental clean-up, in each case, to the extent related to the QI’s involvement under this Agreement.

 

(b)  If the QI Indemnitee seeks indemnification for any loss, liability, cost, expense, claim or action described in Section 5.02(a) above, Hertz shall defend the claim at its expense and shall pay any settlements approved by the QI Indemnitee and any judgments which may be finally awarded, provided that Hertz shall have the right to control the defense of such third party claims or actions. The QI Indemnitee agrees to consult and cooperate to the extent reasonably deemed necessary by Hertz in such defense.

 

SECTION 5.03.  Survival.   The indemnities in this Article V shall survive the expiration or sooner termination of this Agreement and shall not merge into any document executed in conjunction herewith.  It is intended that the provisions of this Article V take precedence over the provisions of any other agreements between the parties entered into pursuant to this Agreement, and the parties agree that the provisions of this Article V may not be amended

 

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or modified except by a written agreement between the parties making express reference to this Article V.

 

ARTICLE VI

 

Representations, Warranties And Covenants

 

SECTION 6.01.  Representations and Warranties of the QI.   The QI hereby represents and warrants to each Legal Entity as of the date hereof and throughout the term of this Agreement and covenants, where applicable, with each Legal Entity as follows:

 

(a)  Organization, Power, Standing, and Qualification.   The QI has been duly organized and is in good standing and validly existing under the laws of the state of Delaware.  Except as otherwise required by applicable law, the QI will only qualify to do business or register as a sales and use tax vendor in those states requested in writing by a Legal Entity, and all costs and expenses of same shall be paid solely by such Legal Entity.  The QI shall at all times operate in a manner consistent with its certificate of incorporation and its bylaws.

 

(b)  Corporate Power and Authority.   The QI has all necessary power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement.  The QI has duly authorized, executed and delivered this Agreement.  This Agreement is a valid and binding obligation of the QI, enforceable in accordance with its terms.

 

(c)  Validity of Contemplated Transactions.   The execution and delivery of this Agreement by the QI and the performance of the QI’s obligations hereunder (i) will not violate the certificate of incorporation or bylaws of the QI, (ii) will not conflict with, violate, result in a breach of or constitute a default under any provision of applicable law, (iii) will not violate any order known to be issued by any court or government agency having jurisdiction over the QI and (iv) will not conflict with, violate, result in a breach of or constitute a default under or result in the imposition of any lien upon any of the properties or assets of the QI under the terms of, any agreement to which the QI is a party, which in the case of clauses (ii), (iii) and (iv) above, would, in the aggregate, reasonably be expected to have a material adverse effect on the legality, validity or enforceability of this Agreement or the QI’s ability to perform its obligations hereunder.

 

(d)  Indebtedness and Liens.   Except as expressly provided in this Agreement and the Escrow Agreement, neither the QI, nor any Person acting on behalf of or as an agent for the QI, has incurred or will incur any indebtedness for borrowed money, or guarantee any obligations of any other Person, or pledge, assign, transfer, or otherwise encumber (or permit or suffer to exist any Lien or any other of the foregoing encumbrances with respect to) its assets or any aspect of this Agreement whatsoever, including the Rights assigned herein to the QI by each Legal Entity.

 

(e)  Litigation and Compliance.   There is no action, suit, investigation or proceeding against the QI pending or threatened before any court, governmental agency or arbitrator that challenges, or would reasonably be expected to have a material adverse effect on, the legality, validity or enforceability of this Agreement.

 

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(f)  Tax Advice.   The QI represents that, except as expressly stated in this Agreement, at no time has it or its officers, directors, employees, agents or affiliates made any representation or rendered any advice with respect to the legal or tax aspects of the Exchanges contemplated herein.

 

(g)  No Consent.   No consent of, 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 of this Agreement by the QI or for the performance of any of the QI’s obligations hereunder.

 

(h)  Solvency.   Before and after giving effect to the transactions contemplated by this Agreement, the QI is solvent within the meaning of the Bankruptcy Code and the QI is not the subject of any voluntary or involuntary case or proceeding seeking liquidation, reorganization or other relief with respect to itself or its debt under any bankruptcy or insolvency law and no Event of Bankruptcy has occurred with respect to the QI.

 

(i)  Ownership.   All of the issued and outstanding shares of the QI are owned by Owner, and have been validly issued, are fully paid and non-assessable.  The QI has no subsidiaries and owns no capital stock or any interest in any other Person.

 

(j)  No Other Agreements.   Other than as contemplated by this Agreement and the Escrow Agreement, (i) the QI is not a party to any contract or any agreement of any kind or nature and (ii) the QI is not subject to any obligations or liabilities of any kind or nature in favor of any third party.

 

(k)  Not a Disqualified Person.   Prior to, as of and after the date hereof and all of the time that this Agreement is in force and effect, the QI is not a disqualified person within the meaning of such term as set forth in Section 1.1031(k)-1(k) of the Treasury Regulations (a “ Disqualified Person ”), taking into account all exceptions and exclusions therefrom.  The QI shall not become a Disqualified Person during the period commencing on the execution date hereof through the Termination Date and, if any Exchange is pending after the Termination Date, including the Exchange Period relating to the same.

 

SECTION 6.02.  Representations and Warranties of Owner.   Owner hereby represents and warrants to each Legal Entity as of the date hereof and throughout the term of this Agreement and covenants, where applicable, with each Legal Entity as follows:

 

(a)  Organization, Power, Standing, and Qualification.   Owner has been duly organized and is in good standing and validly existing under the laws of the state of its organization.

 

(b)  Corporate Power and Authority.   Owner has all necessary power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement.  Owner has duly authorized, executed and delivered this Agreement.  This Agreement is a valid and binding obligation of Owner, enforceable in accordance with its terms.

 

(c)  Validity of Contemplated Transactions.   The execution and delivery of this Agreement by Owner and the performance of Owner’s obligations hereunder (i) will not violate

 

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the organizational documents of Owner, (ii) will not conflict with, violate, result in a breach of or constitute a default under any provision of applicable law, (iii) will not violate any order known to be issued by any court or government agency having jurisdiction over Owner and (iv) will not conflict with, violate, result in a breach of or constitute a default under or result in the imposition of any lien upon any of the properties or assets of Owner under the terms of, any material indenture other material agreement to which Owner is a party, which in the case of clauses (ii), (iii) and (iv) above, either would, in the aggregate, reasonably be expected to have a Material Adverse Effect or would, in the aggregate, reasonably be expected to have a material adverse effect on the legality, validity or enforceability of this Agreement or Owner’s ability to perform its obligations hereunder.

 

(d)  Litigation and Compliance.   There is no action, suit, investigation, litigation or proceeding against Owner pending or threatened before any court, governmental agency or arbitrator that challenges, or would reasonably be expected to have a material adverse effect on, the legality, validity or enforceability of this Agreement.

 

(e)  Not a Disqualified Person.   Owner shall not cause the QI to become a Disqualified Person during the period commencing on the execution date hereof through and including the date of transfer of any Replacement Property to such Legal Entity as part of the LKE Program.

 

(f)  No Consents.   No consent of, 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 of this Agreement by Owner or for the performance of Owner’s obligations hereunder, other than such consents, approvals, authorizations, registrations, declarations or filings as shall have been previously obtained by such Owner.

 

(g)  Ownership of QI.   The QI is wholly owned directly by Owner.

 

SECTION 6.03.  Representations and Warranties of Each Legal Entity.   Each Legal Entity, separately and not jointly, hereby represents and warrants to the QI as of the date hereof and on the date of each of the transactions described in Article II, Article III and Article IV hereof and covenants, where applicable, with the QI as follows:

 

(a)  Organization, Power, Standing, and Qualification.   Such Legal Entity has been duly organized and is in good standing and validly existing under the laws of the state of Delaware.

 

(b)  Corporate Power and Authority.   Such Legal Entity has all necessary power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement.  Such Legal Entity has duly authorized, executed and delivered this Agreement.  This Agreement is a valid and binding obligation of such Legal Entity, enforceable in accordance with its terms.

 

(c)  Validity of Contemplated Transactions.   The execution and delivery of this Agreement by such Legal Entity and the performance of such Legal Entity’s obligations hereunder (i) will not violate the certificate of incorporation or bylaws or limited liability

 

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company agreement, as applicable, of such Legal Entity, (ii) will not conflict with, violate, result in a breach of or constitute a default under any provision of applicable law, (iii) will not violate any order known to be issued by any court or government agency having jurisdiction over such Legal Entity and (iv) will not conflict with, violate, result in a breach of or constitute a default under or result in the imposition of any lien upon any of the properties or assets of such Legal Entity under the terms of, any material indenture other material agreement to which such Legal Entity is a party, which in the case of clauses (ii), (iii) and (iv) above, either would, in the aggregate, reasonably be expected to have a Material Adverse Effect or would, in the aggregate, reasonably be expected to have a material adverse effect on the legality, validity or enforceability of this Agreement or such Legal Entity’s ability to perform its obligations hereunder.

 

(d)  Litigation and Compliance.   There is no action, suit, investigation, litigation or proceeding against such Legal Entity pending or threatened before any court, governmental agency or arbitrator that challenges, or would reasonably be expected to have a material adverse effect on, the legality, validity or enforceability of this Agreement.

 

(e)  Legal or Tax Advice.   Such Legal Entity acknowledges that neither the QI nor any officer, director, employee, agent or affiliate of the QI has made representation or rendered any advice with respect to the legal or tax aspects of the Exchanges contemplated hereby.  Such Legal Entity further acknowledges that it has been advised to seek independent legal and tax advice regarding the LKE Program, regarding whether any Relinquished Property and Replacement Property are like-kind under Sections 1.1031(a)-2 and 1.1031(k)-1 of the Treasury Regulations and to have this Agreement reviewed and approved by independent counsel.

 

(f)  Not a Disqualified Person.   Such Legal Entity hereby represents and warrants to the QI that, to the best of such Legal Entity’s knowledge, as of the date hereof, the QI is not a Disqualified Person.  Such Legal Entity shall not cause the QI to become a Disqualified Person during the period commencing on the execution date hereof through and including the date of transfer of any Replacement Property to such Legal Entity as part of the LKE Program.

 

(g)  No Consents.   No consent of, 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 of this Agreement by such Legal Entity or for the performance of any of such Legal Entity’s obligations hereunder, other than such consents, approvals, authorizations, registrations, declarations or filings as shall have been previously obtained by such Legal Entity.

 

SECTION 6.04.  Survival of Representations and Warranties.   All representations and warranties made herein by the parties shall survive the execution, delivery, performance and termination of this Agreement.

 

SECTION 6.05.  Maintenance of Separate Existence.   The QI covenants and agrees that it shall do all things necessary to continue to be readily distinguishable from Owner and its affiliates and maintain its corporate existence separate and apart from that of Owner and its affiliates including, without limitation, (i) practicing and adhering to organizational formalities, such as maintaining appropriate books and records; (ii) observing all organizational formalities in connection with all dealings between itself and Owner, and the affiliates or any

 

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unaffiliated entity with respect to Owner; (iii) observing all procedures required by its certificate of incorporation, its by-laws and the laws of the state of its incorporation; (iv) acting solely in its name and through its duly authorized officers or agents in the conduct of its businesses; (v) managing its business and affairs by or under the direction of its board of directors; (vi) ensuring that its board of directors duly authorizes all of its actions; (vii) maintaining at least two directors who are Independent Directors and maintaining the requirement in its organic documents that no Material Action may be taken without the affirmative vote of its Independent Directors; (viii) owning or leasing (including through shared arrangements with affiliates) all office furniture and equipment necessary to operate its business; (ix) not (A) having or incurring any indebtedness to Owner or its affiliates or any other Person; (B) guaranteeing or otherwise becoming liable for any obligations of Owner or its affiliates or any other Person; (C) having obligations guaranteed by Owner or its affiliates or any other Person; (D) holding itself out as responsible for debts of Owner or its affiliates or any other Person or for decisions or actions with respect to the affairs of Owner or its affiliates or any other Person; (E) operating or purporting to operate as an integrated, single economic unit with respect to Owner, its affiliates or any other Person; (F) seeking to obtain credit or incur any obligation to any third party based upon the assets of Owner, its affiliates or any other Person; (G) inducing any such third party to reasonably rely on the creditworthiness of Owner, its affiliates or any other Person; and (H) being directly or indirectly named as a direct or contingent beneficiary or loss payee on any insurance policy of Owner, its affiliates or any other Person; (x) maintaining its deposit and other bank accounts and all of its assets separate from those of any other Person; (xi) maintaining its financial records separate and apart from those of any other Person; (xii) not suggesting in any way, within its financial statements, that its assets are available to pay the claims of creditors of Owner, its affiliates or any other Person; (xiii) compensating all its employees, officers, consultants and agents for services provided to it by such Persons out of its own funds; (xiv) maintaining office space separate and apart from that of Owner, its affiliates and any other Person and a telephone number separate and apart from that of Owner, its affiliates and any other Person; (xv) conducting all oral and written communications, including, without limitation, letters, invoices, purchase orders, contracts, statements, and applications solely in its own name; (xvi) having separate stationery from Owner, its affiliates or any other Person; (xvii) accounting for and managing all of its liabilities separately from those of Owner, its affiliates and any other Person; (xviii) allocating, on an arm’s-length basis, all shared corporate operating services, leases and expenses, including those associated with the services of shared consultants and agents and shared computer and other office equipment and software; and otherwise maintaining an arm’s-length relationship with each of Owner, its affiliates and any other Person; (xix) refraining from filing or otherwise initiating or supporting the filing of a motion in any bankruptcy or other insolvency proceeding involving Owner to substantively consolidate Owner with an affiliate or any other Person; (xx) remaining solvent and assuring adequate capitalization for the business in which it is engaged; (xxi) conducting all of its business (whether written or oral) solely in its own name so as not to mislead others as to the identity of Owner or its affiliates; and (xxii) not taking any Material Action without the affirmative vote of its Independent Directors.

 

SECTION 6.06.  Ownership by Owner; Mergers.   Other than pursuant to Section 6.10 hereof, Owner will not sell, assign, pledge or otherwise transfer any of its interest in the QI.  The QI will not merge or consolidate with or into any other Person unless the QI complies with Section 8.04.

 

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SECTION 6.07.  Organizational Documents.   The QI will not amend any of its organizational documents, including its certificate of incorporation and by-laws, unless (i) such amendment is approved by all of its directors, including its Independent Directors, (ii) prior to such amendment, the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding will be met and (iii) in the case of its certificate of incorporation, the amended certificate of incorporation provides that the QI will not take any Material Action without the affirmative vote of its Independent Directors.

 

SECTION 6.08.  No Other Agreements.   The QI will not enter into or be a party to any agreement or instrument other than this Agreement, the Escrow Agreement and any documents and agreements incidental thereto or entered into as contemplated herein.

 

SECTION 6.09.  Other Business.   The QI will not engage in any business or enterprise or enter into any transaction other than the making of Exchanges pursuant to this Agreement, the related exercise of its rights as Qualified Intermediary hereunder, the incurrence and payment of ordinary course operating expenses and other activities related to or incidental to either of the foregoing.

 

SECTION 6.10.  QI Sale.

 

(a)  Hertz may deliver a written notice (a “ Sale Notice ”) to Owner at any time. If Hertz delivers a Sale Notice and does not deliver another written notice to the Owner withdrawing such sale Notice before the QI Sale is consummated, then the Owner shall transfer all of the capital stock of the QI to such purchaser as may be designated by Hertz in such Sale Notice (the “ QI Sale ”) on the date specified for such transfer in the Sale Notice, which date shall not be less than five days (or such shorter period as may be agreed upon by Hertz and Owner) after the delivery of such Sale Notice.  Any such purchaser shall not be Hertz or a Disqualified Person.

 

(b)  In the event of a QI Sale, Owner shall:

 

(i) transfer all of the capital stock of the QI to the purchaser designated in the related Sale Notice for such consideration (which may be nominal) as may be designated by Hertz in such Sale Notice;

 

(ii) execute and deliver all documents, instruments and consents as may be specified by Hertz as reasonably necessary or desirable to effectuate the QI Sale;

 

(iii) make representations and warranties as to its title to the capital stock of the QI being sold, the absence of any liens thereon and its power, authority and right to consummate the QI Sale without contravention of law or contract;

 

(iv) make such further representations and warranties that are reasonable, customary and appropriate and that the purchaser of the capital stock of the QI reasonably requests; and

 

(v) be liable for any breach of the representations and warranties made by it in connection with such QI Sale.

 

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(c)  All expenses incurred by Owner in connection with any QI Sale shall be borne by the Owner.

 

(d)  Upon the consummation of a QI Sale, (i) the rights, duties and obligations of the transferring Owner shall be assigned and delegated to the new Owner and the transferring Owner shall be released from its obligations under this Agreement, except to the extent such obligations relate to periods prior to the QI Sale, and (ii) the new Owner shall become a party to this Agreement pursuant to an agreement in substantially the form of Exhibit A hereto (an “ Accession Agreement ”).

 

SECTION 6.11.  Trademark License.   (a)  Subject to the terms of this Section 6.11, Hertz grants the QI a non-exclusive, royalty-free license to use the service mark “Hertz”, as evidenced by Certificate of Registration No. 0614123 (the “ Licensed Trademark ”) with respect only to the QI’s service as Qualified Intermediary pursuant to this Agreement (the “ Licensed Services ”), and in connection therewith, in the QI’s trade name and company name.

 

(b)  The QI agrees to provide, at Hertz’s request, specimens showing use of the Licensed Trademark with respect to the Licensed Services for Hertz’s inspection and approval and as needed by Hertz to file in the United States Patent and Trademark office evidencing use of the Licensed Trademark in commerce by the QI.

 

(c)  The QI acknowledges that Hertz owns the Licensed Trademark, and that it has no rights with respect thereto other than the licenses set forth in this Section 6.11.  Any rights in the Licensed Trademark arising from the use of the Licensed Trademark by the QI shall inure and accrue exclusively to Hertz.

 

(d)  The QI shall only use the Licensed Trademark in a manner previously approved by Hertz.

 

(e)  The QI agrees to provide the Licensed Services in accordance with standards of quality approved by Hertz.  Hertz’s designee shall have the right, at all reasonable times, during normal business hours, to enter the QI’s premises to inspect any documents or records relating to the Licensed Services, for the purpose of enabling Hertz to assess whether the Licensed Services comply with the standards of quality submitted or approved by Hertz.  If the Licensed Services supplied by the QI do not conform with the standards of quality approved by Hertz in any respect, Hertz shall so inform the QI in writing of such failure to conform, and the QI shall immediately cease use of the Licensed Trademark.

 

(f)  The QI agrees to inform Hertz of the use of any marks similar to the Licensed Trademark and any potential infringements of the Licensed Trademark which come to its attention.

 

(g)  In the event the QI is named as defendant in any action based on its use of the Licensed Trademark, the QI agrees to immediately notify Hertz, and Hertz shall have the right to intervene in any such action and to control and direct the defense thereof, including the right to select defense counsel, provided that in the event Hertz chooses to exercise control Hertz agrees to reimburse the QI for the cost of the QI’s defense and to indemnify the QI against all damages

 

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arising therefrom, provided that the QI has complied with all its obligations under this Section 6.11 and has cooperated with Hertz in the defense of such action.

 

(h)  Upon termination of this Agreement, the QI agrees to discontinue all use of the Licensed Trademark in any manner whatsoever, including use and registration of the Licensed Trademark in the QI’s trade name and company name.  Upon termination of this Agreement, all rights granted to the QI under this Section 6.11 shall revert to Hertz.

 

SECTION 6.12.  Confidentiality.   (a)  The QI shall keep confidential, and cause its affiliates and its and their officers, directors, employees and advisors to keep confidential, all information relating to each Legal Entity (the “ Confidential Information ”), except as required by law or administrative process or as provided for in this Agreement and except for information that is available to the public as of the date of this Agreement or thereafter becomes available to the public other than as a result of a breach of this Section 6.12.

 

(b)  Notwithstanding anything to the contrary set forth in Section 6.12(a), (i) the QI may disclose any of the Confidential Information provided by a Legal Entity to any bank or other governmental regulatory authority having jurisdiction over the QI upon the request of the regulatory authority without having to provide such Legal Entity with notice of any kind and (ii) in the event that the QI is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, it is agreed that the QI will, if reasonably practicable and to the extent permitted by law, provide Hertz with prompt notice of such request or requirement so that Hertz may seek an appropriate protective order or waive compliance by the QI with the provisions of this Agreement, and if, in the absence of such protective order or the receipt of such waiver hereunder, the QI is nonetheless, in the opinion of the QI’s counsel, legally required to disclose such Confidential Information or else stand liable for contempt or suffer other censure or penalty, the QI may disclose such information without liability hereunder, provided, however, that the QI shall disclose only that portion of such Confidential Information which it is legally required to disclose.

 

ARTICLE VII

 

Term And Compensation; Escrow Agreement Termination

 

SECTION 7.01.  Term .  (a)  The term of this Agreement shall begin on December 21, 2005, and shall continue for thirty-six (36) months from December 21, 2005.  This Agreement shall be automatically renewed for successive thirty-six (36) month terms, unless the QI notifies each of the Legal Entities, the Trustee and each Enhancement Provider (or, if there is an agent for two or more Enhancement Providers, such agent) in writing at least one-hundred-twenty (120) days prior to the end of a term of its desire to terminate this Agreement.  In addition, (i) a Legal Entity may terminate this Agreement at any time with respect to such Legal Entity (or, in the case of HVF, the portion of this Agreement relating to HVF Vehicles or HVF Segregated Vehicles relating to any Segregated Series), by providing not less than sixty (60) days’ prior written notice to the QI, the Trustee and each Enhancement Provider (or, if there is an agent for two or more Enhancement Providers, such agent) and (ii) this Agreement shall automatically terminate (w) with respect to the HVF Vehicles, at 11:59 p.m. on the 45th calendar

 

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day after the occurrence of a QI Parent Downgrade Event that continues unremedied at such time, (x) with respect to the HVF Segregated Vehicles which constitute Series-Specific Collateral for any Segregated Series which has one or more Rating Agencies rating the Segregated Notes related to such Segregated Series at HVF’s request at 11:59 p.m. on the 45th calendar day after the occurrence of a QI Parent Downgrade Event that continues unremedied at such time, (y) with respect to the HVF Vehicles, the first date on which an Amortization Event is continuing with respect to each Series of Notes Outstanding and (z) with respect to the HVF Segregated Vehicles constituting Series-Specific Collateral for any Segregated Series, on the date of the occurrence of an Amortization Event with respect to such Segregated Series.  The date which is (x) the end of a thirty-six (36) month term (as may be renewed), (y) sixty (60) days after a Legal Entity’s notice as provided herein, solely with respect to such Legal Entity, or (z) (i) the 45th calendar day following the occurrence of a QI Parent Downgrade Event that continues unremedied at such time, solely with respect to the HVF Vehicles and the HVF Segregated Vehicles which constitute Series-Specific Collateral for any Segregated Series (other than any Segregated Series which does not have one or more Rating Agencies rating the related Segregated Notes at the request of the Issuer), (ii) the first date on which one or more Amortization Events are continuing as specified in clause (y) above, solely with respect to the HVF Vehicles or (iii) the date of the occurrence of an Amortization Event as specified as specified in clause (z) above, solely with respect to the HVF Segregated Vehicles which constitute Series-Specific Collateral for such Segregated Series, shall be called the “ Termination Date ”.  Upon any such termination, (i) this Agreement shall remain in effect with respect to Relinquished Property Proceeds relating to a sale to a Buyer prior to the Termination Date and for which no Disbursement Occurrence has taken place, (ii) any indemnities and obligations owing to the QI under this Agreement as of the Termination Date shall survive until satisfied or otherwise terminated, (iii) if such Termination Date relates to the HVF Vehicles no further Relinquished Property Proceeds, Qualified Earnings thereon or other amounts attributable to the transfer of an HVF Vehicle or other HVF Vehicle Collateral shall be transferred from an HVF Exchange Account to any Escrow Account, Joint Disbursement Account or any account other than the Collection Account and (iv) if such Termination Date relates to the HVF Segregated Vehicles constituting Series-Specific Collateral for any Segregated Series no further Relinquished Property Proceeds, Qualified Earnings thereon or other amounts attributable to the transfer of an HVF Segregated Vehicle or other HVF Segregated Vehicle Collateral, in each case relating to such Segregated Series, shall be transferred from an HVF Segregated Exchange Account relating to such Segregated Series to any Escrow Account relating to such Segregated Series, Joint Disbursement Account relating to such Segregated Series or any account other than the collection account or other account designated as relating to such Segregated Series.   Termination of this Agreement pursuant to this Section 7.01(a) shall not affect any rights or obligations of the parties hereto under an Exchange that has not yet been completed as of the Termination Date, and in the event that this Agreement terminates with respect to any party hereto pursuant to this Section 7.01(a), such party shall not take any action that causes a pending Exchange not to qualify under Section 1031 of the Code or in a manner that would violate Sections 1.1031(k)-1(g)(4)(ii) or (g)(6) of the Treasury Regulations or Revenue Procedure 2003-39.  Subject to the restrictions above, upon the Termination Date, the QI shall, at such time, and in satisfaction of the QI’s remaining obligations under this Agreement with respect to the portion of this Agreement so terminated, pay all funds in any Account to the applicable Legal Entity or such Legal Entity’s designee or, in the case of (i) funds in an HVF Exchange Account or

 

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otherwise arising from or attributable to the disposition of HVF Vehicles, to the Collection Account or (ii) funds in an HVF Segregated Exchange Account relating to a particular Segregated Series or otherwise arising from or attributable to the disposition of HVF Segregated Vehicles comprising Series-Specific Collateral for such Segregated Series, to the collection account or other account designated as relating to such Segregated Series.  The Servicer will provide notice of any Termination Date to each Rating Agency.  Notwithstanding the foregoing, if any such Termination Date has occurred but the event which directly caused such Termination Date has been waived, cured or is otherwise no longer continuing, the parties hereto may reinstate this Agreement in full by written instrument executed by each such party and, upon satisfaction of the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding, this Agreement shall be reinstated in full and such Termination Date shall be deemed not to have occurred for all purposes on and after such reinstatement.

 

(b)  Special Termination.   Notwithstanding the provisions of Section 7.01(a), this Agreement shall automatically terminate at 11:59 p.m. on the 90th calendar day after the occurrence of a QI Parent Downgrade Event that continues unremedied at such time.  The 90th calendar day following the occurrence of a QI Parent Downgrade Event that continues unremedied at such time shall be called the “Special Termination Date”.  Upon any such termination, (i) this Agreement shall remain in effect with respect to Relinquished Property Proceeds relating to a sale to a Buyer prior to the Special Termination Date and for which no Disbursement Occurrence has taken place, (ii) any indemnities and obligations owing to the QI under this Agreement as of the Special Termination Date shall survive until satisfied or otherwise terminated, (iii) no further Relinquished Property Proceeds, Qualified Earnings thereon or other amounts attributable to the transfer of an HVF Vehicle or other HVF Vehicle Collateral or an HVF Segregated Vehicle or other HVF Segregated Vehicle Collateral shall be transferred from an HVF Exchange Account or an HVF Segregated Exchange Account to any Escrow Account, Joint Disbursement Account or any account other than the Collection Account (in the case of such amounts attributable to the transfer of an HVF Vehicle or other HVF Vehicle Collateral) or the applicable collection account or other account designated (in the case of such amounts attributable to the transfer of such an HVF Segregated Vehicle or such other HVF Segregated Vehicle Collateral relating to any Segregated Series) and (iv) no further Relinquished Property Proceeds, Qualified Earnings thereon or other amounts attributable to the transfer of a GE Financed Vehicle or any related collateral shall be transferred from a Hertz GE Exchange Account to any Escrow Account, Joint Disbursement Account or any account other than the GE Collateral Account.  Termination of this Agreement pursuant to this Section 7.01(b) shall not affect any rights or obligations of the parties hereto under an Exchange that has not yet been completed as of the Special Termination Date, and in the event that this Agreement terminates pursuant to this Section 7.01(b), no party shall take any action that causes a pending Exchange not to qualify under Section 1031 of the Code or in a manner that would violate Sections 1.1031(k)-1(g)(4)(ii) or (g)(6) of the Treasury Regulations or Revenue Procedure 2003-39.  Subject to the restrictions above, upon the Special Termination Date, the QI shall, at such time, and in satisfaction of the QI’s remaining obligations under this Agreement, pay all funds in any Account to the applicable Legal Entity or such Legal Entity’s designee or, in the case of funds in an HVF Exchange Account relating to or otherwise arising from or attributable to the disposition of HVF Vehicles owned by HVF, to the Collection Account or, in the case of funds in an HVF Exchange Account relating to or otherwise arising from or attributable to the disposition of HVF Segregated Vehicles owned by HVF comprising Series-Specific Collateral for any Segregated

 

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Series, to the collection account or other account designated for such Segregated Series or, in the case of funds in a Hertz GE Exchange Account or otherwise arising from or attributable to the disposition of GE Financed Vehicles, to the GE Collateral Account.  On the Special Termination Date, the name of the QI shall be removed from the Joint Collection Accounts.  The Servicer will provide notice of the Special Termination Date to each Rating Agency.  Notwithstanding the foregoing, if any such Special Termination Date has occurred but the event which directly caused such Special Termination Date has been waived, cured or is otherwise no longer continuing, the parties hereto may reinstate this Agreement in full by written instrument executed by each such party and, upon satisfaction of the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding, this Agreement shall be reinstated in full and such Termination Date shall be deemed not to have occurred for all purposes on and after such reinstatement.

 

SECTION 7.02.  Compensation.   The Legal Entities agree to pay the QI in a timely manner after receipt of a quarterly invoice therefor and any reasonably required supporting documentation, the fees and other amounts as set forth in Exhibit A hereto.  If this Agreement is terminated for any reason, the QI will continue to be compensated with respect to all Exchanges being made by the QI until all such Exchanges are completed.

 

SECTION 7.03.  Escrow Agreement Termination.   If (i) the Legal Entities terminate the Escrow Agreement or any portion thereof pursuant to Section 6.14 thereof or (ii) the Escrow Agent terminates the Escrow Agreement pursuant to Section 6.10 thereof, and a new escrow holder is not appointed prior to the termination of the Escrow Agreement, the QI shall, at such time, pay all funds in any Account relating to such termination to the applicable Legal Entity or such Legal Entity’s designee or, in the case of funds in an HVF Exchange Account relating to or otherwise arising from or attributable to the disposition of HVF Vehicles owned by HVF, to the Collection Account or, in the case of funds in an HVF Segregated Exchange Account relating to or otherwise arising from or attributable to the disposition of HVF Segregated Vehicles owned by HVF comprising Series-Specific Collateral for any Segregated Series, to the collection account or other account designated for such Segregated Series or, in the case of funds in a Hertz GE Exchange Account or otherwise arising from or attributable to the disposition of GE Financed Vehicles, to the GE Collateral Account.

 

ARTICLE VIII

 

Miscellaneous

 

SECTION 8.01.  Pending Litigation.   If any party hereto receives any written notice that there is, or may be, a pending or threatened litigation against such party in any manner relating to this Agreement, the LKE Program or such party’s ability to perform under this Agreement or that may adversely affect any other party hereto, then the party receiving said notice shall immediately notify the other parties hereto pursuant to Section 8.02 hereof and shall notify the Trustee at the address set forth in the Base Indenture; provided that HVF upon obtaining knowledge, or receipt of notice, of any such pending or threatened litigation shall also notify each Enhancement Provider.

 

SECTION 8.02.  Notices.   All notices, requests, demands, waivers, consents,

 

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approvals or other communications required or permitted hereunder will be in writing, will be deemed given when actually received and will be given by personal delivery, by facsimile transmission with receipt acknowledged, by means of electronic mail, by same day or overnight courier services or by registered or certified mail, postage prepaid, return receipt requested, to the following addresses:

 

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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SECTION 8.03.  Amendments.   Subject to Section 7.01, this Agreement may be amended and supplemented only by a written instrument duly executed by all the parties hereto upon satisfaction of the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding; provided that an Accession Agreement may be entered into pursuant to Section 6.10(d) subject only to the consent of Owner and each Legal Entity.

 

SECTION 8.04.  Successors and Assigns; No Third-Party Beneficiaries.   This Agreement shall be binding upon and inure to the benefit of each party and its successors in interest and permitted assigns.  Except as expressly otherwise allowed herein (including Section 6.01(d)), no party may assign or otherwise transfer any of its rights or delegate any of its duties or obligations under this Agreement without the prior written consent of each other party, which consent shall not be unreasonably withheld; provided however , that no assignment by the QI shall be effective without satisfaction of the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding; provided further however , that (1) each Legal Entity may pledge all of its right, title and interest in this Agreement to the extent not otherwise prohibited by the Related Documents and (2) any party hereto may assign (subject to the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding in the case of the QI) this Agreement, without such written consent, to a successor or surviving entity resulting from a merger or acquisition involving substantially all of a party’s stock or assets; provided further that any assignment by the QI or any transfer of any interest in this Agreement by the QI, whether by merger or acquisition or otherwise, shall only be effective if (i) the successor or surviving entity (x) is a bankruptcy-remote, special purpose entity organized under the laws of any state of the United States, is not an affiliate of Hertz, HVF or HGI and has organic documents that provide that it will not take any Material Action without the affirmative vote of its Independent Directors and (y) expressly agrees in writing to abide by the terms of this Agreement and the Escrow Agreement and (ii) HVF and Hertz consent to such assignment or transfer.  To secure the payment of the Note Obligations from time to time owing by HVF under the Indenture, HVF has pledged and assigned to the Collateral Agent for the benefit of the HVF Secured Parties a security interest in all of its right, title and interest in, to and under this Agreement as it relates to the HVF Vehicles, and the QI hereby consents to such assignment.  To secure the payment of the Segregated Series Note Obligations from time to time owing by HVF under any Segregated Series Supplement, HVF has pledged and assigned to the Collateral Agent (or any collateral agent relating to a Segregated Non-Collateral Agency Series) for the benefit of the applicable HVF Segregated Secured Party a security interest in all of its right, title and interest in, to and under this Agreement as it relates to the HVF Segregated Vehicles pledged as Series-Specific Collateral for such Segregated Series, and the QI hereby consents to such assignment.  To secure HGI’s obligations under the HGI Credit Facility and all other liabilities of HGI from time to time owing by HGI to Hertz thereunder, HGI has pledged and assigned, to the Collateral Agent, for the benefit of the HGI Secured Parties, a security interest in all right, title and interest in, to and under this Agreement and the QI hereby consents to such assignment.  To secure Hertz’s obligations under the GE Credit Agreement, the GE Collateral Agreement and the other GE Loan Documents, Hertz has pledged and assigned to the GE Collateral Agent for the secured parties under the GE Collateral Agreement a security interest in all right, title and interest in, to and under this Agreement insofar as it relates to GE Financed Vehicles and the QI consents to such assignment.  Except as provided in this paragraph, nothing contained in this Agreement is intended, or will be construed, to confer upon or give to any Person, other than the

 

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parties hereto and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement.

 

SECTION 8.05.  Governing Law, Venue, Jury Trial Waiver, and Attorneys’ Fees.

 

(a)  GOVERNING LAW AND VENUE.   THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.  VENUE SHALL BE IN ANY STATE OR FEDERAL COURT WITHIN THE STATE OF NEW YORK.

 

(b)  JURY TRIAL WAIVER.   EACH LEGAL ENTITY AND THE QI HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING FROM THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY COUNTERCLAIM THERETO.

 

SECTION 8.06.  Indebtedness.   The QI shall not assume any secured loan or other obligation on any Replacement Property or execute any promissory note or other evidence of indebtedness in connection with the acquisition of any Replacement Property, including any of the foregoing that would impose any personal liability upon the QI for repayment of such obligation.  The QI shall not execute any agreement nor participate in any transaction which, in the reasonable opinion of the QI or its counsel, would require the QI to engage in any unlawful or fraudulent action.

 

SECTION 8.07.  Strict Performance.   The failure of any party to insist upon strict performance of any of the terms or conditions of this Agreement will not constitute a waiver of any of its rights hereunder, provided that any provision may be waived by the party intended to benefit therefrom by a written instrument signed by such party.

 

SECTION 8.08.  Severability; Interpretation.   If any provision of this Agreement is held illegal, invalid or unenforceable in a jurisdiction, this Agreement will, in such circumstances, be deemed modified in such jurisdiction to the extent necessary to render enforceable the provisions hereof, and such illegality, invalidity or unenforceability will not affect any other provision of this Agreement in any other jurisdiction.  It is the intent of the parties hereto that this Agreement comply with the requirements for like-kind exchanges pursuant to Section 1031 of the Code and the regulations thereunder and for a like-kind exchange program pursuant to Revenue Procedure 2003-39.  To the greatest extent possible, the provisions of this Agreement shall be interpreted in a manner consistent with such intent.

 

SECTION 8.09.  Dates, Descriptions, Values, and Matching.   Each Legal Entity shall be ultimately and solely responsible for the accuracy of any transfer dates, the Relinquished Property and the Replacement Property descriptions, the Relinquished Property and the Replacement Property values and the Relinquished Property and the Replacement Property matching with respect to each Exchange performed pursuant to its LKE Program.

 

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SECTION 8.10.  Counterparts.   This Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered will be deemed to be an original and all of which counterparts when taken together will constitute but one and the same instrument.  The execution of this Agreement by any party hereto will not become effective until counterparts hereof have been executed and delivered by each other party hereto.  It will not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any other counterparts.

 

SECTION 8.11.  Entire Agreement.   This Agreement, as supplemented by the Escrow Agreement, constitutes the entire understanding and agreement among the parties with respect to the subject matter contained herein and supersedes and merges any prior understandings and agreements (whether written or oral) respecting such subject matter.

 

SECTION 8.12.  Electronic Signature.   In the satisfaction of their respective obligations and the exercise of their respective rights under this Agreement and any related documents and/or agreements, to include bills of sale, each party hereto is, and hereby agrees to be, bound (as though duly authorized, notarized, and sealed original signatures were affixed to a document) by any evidence of consent, approval, authorization and/or agreement such party transmits or causes to be transmitted by electronic means, including but not limited to: downloading and/or transmitting of information via e-mail; facsimile; and the internet or similar electronic transmission.

 

SECTION 8.13.  Acknowledgment of Independent Relationship.   Each Legal Entity and the QI mutually acknowledge and agree that, pursuant to this Agreement, the QI will solely acquire Rights in contracts to both the Relinquished Property and the Replacement Property in accordance with the provisions of Section 1031 of the Code and the Treasury Regulations thereunder and that legal title to the Relinquished Property will be transferred to one or more Buyers and legal title to the Replacement Property will be transferred to the applicable Legal Entity.  The QI and each Legal Entity desire to maintain an independent relationship, therefore, the QI and each Legal Entity hereby acknowledge that in engaging in the activities contemplated by this Agreement, the QI is acting as a Qualified Intermediary.  In no event shall the QI or any of the QI’s directors, officers, employees, agents or shareholders be deemed to be acting as an agent of any Legal Entity (except as expressly provided in this Agreement and the Treasury Regulations), nor shall the QI have any fiduciary relationship to any Legal Entity.

 

SECTION 8.14.  Headings.   The headings in this Agreement are for convenience of reference only and do not affect its interpretation.

 

SECTION 8.15.  Force Majeure.   No party to this Agreement is liable to any other party for losses due to, or if it is unable to perform its obligations under the terms of this Agreement if such inability to perform is caused by, circumstances reasonably beyond a party’s control, such as natural disasters, fire, floods, third party strikes, failure of public utilities or telecommunications infrastructure or any other causes reasonably beyond its control.

 

SECTION 8.16.  Consequential Damages.   Notwithstanding anything to the contrary in this Agreement, in no event shall the QI or any director, officer, employee, member, shareholder or agent of the QI be liable for, and each Legal Entity releases the QI and each

 

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director, officer, employee, member, shareholder or agent of the QI from, any and all liability for special, indirect, incidental or consequential damages of any kind whatsoever (including lost profits) even if the QI or any director, officer, employee, member, shareholder or agent of the QI is advised of such loss or damage and regardless of the form of action.  The aforesaid is not intended to and shall in no way diminish or bar Hertz’s obligation to indemnify the QI Indemnitees for third party claims for such damages.

 

SECTION 8.17.  Investment Losses.   In no event shall the QI be liable for, and each Legal Entity hereby releases the QI from, any and all liability from any damages resulting from, any loss of principal, interest or other earnings which may be incurred as a result of the investment of any funds or in redeeming any investment held by the QI in any Account pursuant to the terms of this Agreement or the Escrow Agreement.

 

SECTION 8.18.  Treasury Regulations Disclosure Requirements.   Each Legal Entity represents that it does not intend to treat any transaction contemplated by this Agreement as a reportable transaction within the meaning of Section 1.6011-4 of the Treasury Regulations, and without limiting the foregoing, will fully comply with the filing and reporting requirements applicable to like-kind exchanges, including any requirement in any applicable regulations or forms.  In the event that any Legal Entity determines to take any action inconsistent with such intention, such Legal Entity will promptly notify the QI, and each Legal Entity acknowledges that in this event any other party to this Agreement may treat the transaction as subject to Section 301.6112-1 of the Treasury Regulations, and maintain the investor list and other records required by such Treasury Regulation.

 

SECTION 8.19.  No Petitions.   (a)  Each Legal Entity 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 and all obligations of Hertz under the GE Credit Agreement, the GE Collateral Agreement and the other GE Loan Documents, it will not institute against, or join with, encourage or cooperate with any other Person in instituting against, the QI, 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 any Legal Entity takes action in violation of this Section 8.19(a), the QI agrees, for the benefit of the HVF Secured Parties and the secured parties under the GE Collateral Agreement, that it shall file an answer with the bankruptcy court or otherwise properly contest the filing of such a petition by any Legal Entity against the QI or the commencement of such action and raise the defense that such Legal Entity 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.

 

(b)  The QI 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, HVF, 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 QI takes action in violation of this Section 8.19(b), HVF agrees, for the benefit of the HVF Secured Parties, that it shall file an answer with the bankruptcy court or otherwise properly contest the filing of such a petition by the QI against HVF or the commencement of such action and raise the defense that the QI has agreed in writing not to take such action and should be

 

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estopped and precluded therefrom and such other defenses, if any, as its counsel advises that it may assert.

 

(c)  The provisions of this Section 8.19 shall survive the termination of this Agreement.

 

SECTION 8.20.  Servicer.   The parties to this Agreement acknowledge and agree that Hertz acts as Servicer of HVF and HGI pursuant to this Agreement, and, in such capacity, as the agent of HVF and HGI, for purposes of performing certain duties of HVF and HGI under this Agreement.  The parties to this Agreement acknowledge and agree that Hertz, as Servicer, may take any action to be taken by HVF or HGI under this Agreement, subject to the assignment of HVF’s or HGI’s interest hereunder to the Collateral Agent.

 

[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.

 

 

THE HERTZ CORPORATION,

 

 

 

 

 

 

 

by

 

 

 

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Treasurer

 

 

 

 

 

 

 

HERTZ VEHICLE FINANCING LLC,

 

 

 

 

by

 

 

 

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Vice President & Treasurer

 

 

 

 

 

 

 

HERTZ GENERAL INTEREST LLC,

 

 

 

 

by

 

 

 

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Vice President & Treasurer

 

 

 

 

 

 

 

HERTZ CAR EXCHANGE INC.,

 

 

 

 

by

 

 

 

/s/ Daniel Feehan

 

 

Name: Daniel Feehan

 

 

Title: Vice President

 

 

 

 

by

 

 

 

/s/ Vickie Chaplin

 

 

Name: Vickie Chaplin

 

 

Title: Associate

 

 

 

 

 

 

 

DB SERVICES TENNESSEE, INC.,

 

 

 

 

by

 

 

 

/s/ Alec Singh

 

 

Name: Alec Singh

 

 

Title: President

 

 

 

 

by

 

 

 

/s/ Christopher J. Edwards

 

 

Name: Christopher J. Edwards

 

 

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

 

 

 

Page

 

 

 

 

ARTICLE I

 

 

 

 

 

Definitions

 

 

 

 

 

 

SECTION 1.01.

Definitions

 

2

 

 

 

 

ARTICLE II

 

 

 

 

 

General Provisions

 

 

 

 

 

 

SECTION 2.01.

In General

 

4

SECTION 2.02.

Provisions Governing the Escrow Accounts

 

4

 

 

 

 

ARTICLE III

 

 

 

 

 

Fund Transfers

 

 

 

 

 

 

SECTION 3.01.

Transfer of Collected Funds from the Exchange Accounts

 

5

SECTION 3.02.

Transfer of Disbursed Funds from the Disbursement Accounts

 

6

SECTION 3.03.

Shortfalls in Funding

 

6

SECTION 3.04.

Additional Subsidies

 

6

SECTION 3.05.

The Escrow Accounts

 

7

SECTION 3.06.

Limitation on Rights to Exchange Proceeds

 

7

SECTION 3.07.

Returns

 

7

 

 

 

 

ARTICLE IV

 

 

 

 

 

Investment Of Funds

 

 

 

 

 

 

SECTION 4.01.

Investment of the Exchange Funds

 

7

 

 

 

 

ARTICLE V

 

 

 

 

 

Distributions

 

 

 

 

 

 

SECTION 5.01.

Distribution of Escrow Funds

 

8

 

 

 

 

ARTICLE VI

 

 

 

 

 

Miscellaneous Provisions

 

 

 

 

 

 

SECTION 6.01.

Obligations of the Escrow Agent

 

10

 

i



 

SECTION 6.02.

Conflicting Instructions; Adverse Claims

 

12

SECTION 6.03.

Notices

 

13

SECTION 6.04.

Notice of Claims Relating to the Escrow Accounts

 

14

SECTION 6.05.

Limitation of Liabilities; Indemnification

 

14

SECTION 6.06.

Entire Agreement; Successors and Assigns

 

15

SECTION 6.07.

Counterparts

 

16

SECTION 6.08.

No Third Party Beneficiaries

 

16

SECTION 6.09.

Authorization

 

16

SECTION 6.10.

Termination

 

16

SECTION 6.11.

No Discretion

 

17

SECTION 6.12.

GOVERNING LAW AND VENUE

 

17

SECTION 6.13.

JURY TRIAL WAIVER

 

17

SECTION 6.14.

Certain Bankruptcy Events

 

17

SECTION 6.15.

Force Majeure

 

18

SECTION 6.16.

Treasury Regulations Disclosure Requirements

 

18

SECTION 6.17.

Power of Attorney

 

18

SECTION 6.18.

No Petitions

 

18

SECTION 6.19.

Waiver of Setoff

 

19

SECTION 6.20.

Electronic Documentation

 

19

SECTION 6.21.

Servicer

 

19

SECTION 6.22.

Amendments

 

19

SECTION 6.23.

Availability of Funds for Payments

 

19

 

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 QI’s general assets, nor subject to claims by the QI’s 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:

 

ARTICLE I

 

Definitions

 

SECTION 1.01.  Definitions.   Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in Schedule I to the Base Indenture and, if not defined therein, the meanings set forth in the Master Exchange Agreement; 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, HVF Segregated Vehicle Collateral or other Series-Specific

 

2



 

Collateral with respect to 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.  The following terms used in this Escrow Agreement shall have the following meanings, unless otherwise expressly provided herein:

 

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.

 

3



 

ARTICLE II

 

General Provisions

 

SECTION 2.01.  In General

 

(a)  Appointment of Escrow Agent.   The Escrow Agent is hereby appointed by each of the Legal Entities and the QI, and agrees to act, as escrow holder of the Escrow Funds held in the Escrow Accounts pursuant to this Escrow Agreement in accordance with the terms hereof.

 

(b)  Fund Transfers.   Provided they are consistent with this Escrow Agreement and the limitations on each Legal Entity’s rights to receive, pledge, borrow or otherwise obtain the benefits of any Relinquished Property Proceeds, the particular mechanisms for accomplishing the movement of Escrow Funds described in this Escrow Agreement may be set forth and memorialized in one or more written “Funds Transfer Protocols” attached hereto from time to time as Exhibit A , which shall either (1) be executed by or on behalf of both a Legal Entity and the QI or (2) follow the protocol set forth in Section 3.01 or Section 3.02 hereof.  A Funds Transfer Protocol may also consist of a compendium of previously executed documents or charts (e.g., flow charts, corporate resolutions and signature cards) which when taken together obviate the need for a single written protocol.

 

(c)  Escrow Accounts.   The parties acknowledge and agree that the funds held in any of the Escrow Accounts, or any other account or sub-account established pursuant to the terms of this Escrow Agreement, shall only be distributed in accordance with the terms of this Escrow Agreement, as supplemented by the Master Exchange Agreement.  The Escrow Agent shall have no equitable interest in any amounts deposited in any of the Escrow Accounts referred to herein.

 

SECTION 2.02.  Provisions Governing the Escrow Accounts.   (a)  All Escrow Funds deposited into an Escrow Account pursuant to this Escrow Agreement shall be in U.S. dollars and shall be delivered or disbursed either by (i) federal funds wire transfer, (ii) Electronic Funds Transfer, or (iii) cashier’s check, or other check, with notification in a form consistent with, or as described in, Exhibit A hereto.

 

(b)  The Escrow Agent shall not have any responsibility or liability for any funds delivered pursuant to this Escrow Agreement until actually received in the appropriate account, in accordance with the terms hereof.

 

(c)  The Escrow Accounts shall be maintained (i) with a Qualified Institution or (ii) as a segregated trust account with a Qualified Trust Institution.  If any Escrow Account is not maintained in accordance with the previous sentence, then the Legal Entities shall within ten (10) Business Days of obtaining knowledge of such fact, in conjunction with the QI, establish a new Escrow Account which complies with such sentence and transfer into the new Escrow Account all funds from the non-complying Escrow Account.  The Escrow Accounts shall be maintained as “securities accounts” (as defined in Section 8-501 of the New York UCC) and the investments made with Escrow Funds shall be held in the Escrow Accounts.

 

4



 

ARTICLE III

 

Fund Transfers

 

SECTION 3.01.  Transfer of Collected Funds from the Exchange Accounts.   (a)  On any Business Day, pursuant to standing instructions and procedures established by each Legal Entity and the QI and in accordance with the Master Exchange Agreement, each Legal Entity may initiate proposed Electronic Funds Transfers that are subject to the QI’s approval and shall notify the QI of such initiated transfers.  The instructions with respect to the proposed Electronic Funds Transfers shall set forth the amounts to be withdrawn from an Exchange Account and transferred to another Exchange Account or a Disbursement Account on such day, shall be substantially in the form of Exhibit A hereto, and shall be either (1) executed by or on behalf of both the applicable Legal Entity and the QI or (2) executed by or on behalf of the applicable Legal Entity with the certification contained in Exhibit A stating that such Legal Entity has provided such instruction simultaneously to the Escrow Agent and the QI.  Such instructions to the Escrow Agent shall also include instructions regarding adjustments (e.g., calculation errors, overpayments, etc.), if any, to amounts previously funded from such Exchange Account.  If the QI does not approve any of the proposed Electronic Funds Transfer transactions, the QI shall immediately notify the applicable Legal Entity and the Escrow Agent, and in the case of a transfer of funds from an HVF Exchange Account or an HVF Segregated Exchange Account, the Trustee and in the case of a transfer of funds from a Hertz GE Exchange Account, the GE Collateral Agent, via telephone or fax (any such notice given 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 both the applicable Legal Entity and the QI or (ii) executed by or on behalf of the applicable Legal Entity with the appropriate certification and the QI has not disapproved of the instructions (orally or in writing) within one hour of the Escrow Agent’s 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 3.01(a)).  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 3.01(a).  Notwithstanding the foregoing, the Escrow Agent shall have no duty to transfer or distribute any funds from an Exchange Account unless such funds have been collected and credited to such Exchange Account.

 

(b)  After the occurrence of a Disbursement Occurrence, each Legal Entity shall direct the Escrow Agent to wire any funds held in its Escrow Account that are no longer Relinquished Property Proceeds to, or as directed by, the applicable Legal Entity; provided that (i) in the case of HVF, the portion of such amount relating to HVF Vehicles shall be paid to the Collection Account and the portion of such amount relating to HVF Segregated Vehicles that constitute Series-Specific Collateral for a particular Segregated Series of Notes unless otherwise specified in the related Segregated Series Supplement shall be paid into the collection account or other account specified in such Segregated Series Supplement and (ii) in the case of Hertz, any such amount in respect of GE Financed Vehicles shall be paid to the GE Collateral Account.

 

5



 

SECTION 3.02.  Transfer of Disbursed Funds from the Disbursement Accounts.

 

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 HGI’s 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 QI’s 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 Agent’s 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.

 

SECTION 3.03.  Shortfalls in Funding.   If, for any reason, the sum of the amounts requested by a Legal Entity to be transferred from an Exchange Account to another Exchange Account or a Disbursement Account in accordance with the Master Exchange Agreement on any Business Day pursuant to Section 3.01 hereof exceeds the total amount of collected funds in such Exchange Account with respect to such Legal Entity, including any Qualified Earnings from the investment of funds with respect to such Legal Entity held in the Exchange Account pursuant to this Escrow Agreement on such day and actually credited to the Exchange Account, the Escrow Agent shall promptly notify the applicable Legal Entity of the amount of such shortfall, and the amounts to be transferred to such other Exchange Account or Disbursement Account on such day shall be reduced by the amount of such shortfall.

 

SECTION 3.04.  Additional Subsidies.   In the event that the Escrow Funds with respect to HGI are insufficient to pay the Replacement Property Acquisition Cost incurred by HGI, HGI may transfer Additional Subsidies directly to an HGI Exchange Account or a Disbursement Account in an amount sufficient for the QI to acquire the applicable Replacement

 

6


 

Property.  Any Legal Entity may transfer Additional Subsidies to one of its Exchange Accounts to fund Non-LKE Disbursements and HGI may transfer Additional Subsidies to any Disbursement Account to fund Non-LKE Disbursements (provided, that, for the avoidance of doubt, Additional Subsidies relating to HVF Vehicles or HVF Segregated Vehicles constituting Series-Specific Collateral for a particular Segregated Series shall only be transferred to an HVF Exchange Account or unless otherwise specified in a Segregated Series Supplement an HVF Segregated Exchange Account relating to such Segregated Series, respectively, in order to fund such Non-LKE Disbursement).

 

SECTION 3.05.  The Escrow Accounts.   Transfers of funds in and out of the Exchange Accounts and the Disbursement Accounts shall be governed by the terms of this Escrow Agreement, as supplemented by terms of the Master Exchange Agreement.

 

SECTION 3.06.  Limitation on Rights to Exchange Proceeds.

 

(a)  All Escrow Funds shall be held subject to the terms of this Escrow Agreement.  In particular, all Relinquished Property Proceeds, and any Qualified Earnings thereon, shall be held subject to Sections 1.1031(k)-1(g)(4)(ii) and 1.1031(k)-l(g)(6) of the Treasury Regulations, including the restrictions on Exchangor’s right to receive, pledge, borrow or otherwise obtain the benefits of Relinquished Property Proceeds or the earnings thereon.  Subject to the limitation that each Legal Entity shall have no right to receive, pledge, borrow or otherwise obtain the benefits of the Relinquished Property Proceeds or the earnings thereon held by either the QI or the Escrow Agent, Relinquished Property Proceeds may be withdrawn from an Exchange Account or Disbursement Account upon a Disbursement Occurrence with respect to the related Relinquished Property or such Relinquished Property Proceeds.  This Section 3.06(a) shall apply notwithstanding any inconsistent instruction given by any Legal Entity and notwithstanding any decision by any Legal Entity not to pursue a deferred exchange or to abandon the transactions contemplated by this Escrow Agreement.

 

(b)  The QI shall have only such interest in any of the Escrow Funds as is expressly provided in the Master Exchange Agreement and shall have the right to use, withdraw, transfer or otherwise act with respect to any of the Escrow Funds only as expressly provided in, and for the purposes set forth in, this Escrow Agreement or the Master Exchange Agreement.

 

SECTION 3.07.  Returns.   If at any time, for any reason, funds transferred from an Escrow Account are returned to such Escrow Account, such funds shall be transferred by the Escrow Agent upon receipt by the Escrow Agent of electronic written instructions from the applicable Legal Entity and the QI.

 

ARTICLE IV

 

Investment Of Funds

 

SECTION 4.01.  Investment of the Exchange Funds.

 

(a)  From time to time during the term of this Escrow Agreement, the Escrow Agent shall invest and reinvest all (or such lesser portion as may be agreed to between the parties hereto) the funds held in (i) an HVF Exchange Account or unless otherwise specified in a

 

7



 

Segregated Series Supplement an HVF Segregated Exchange Account in any Permitted Investments, (ii) a Hertz GE Exchange Account in Cash Equivalents (as defined in the GE Credit Agreement) or (iii) any other Exchange Account as directed by Hertz or HGI; provided , however , that in no event shall any Legal Entity direct that any such investment, directly or indirectly, be in any security of a Legal Entity or any of its affiliates.  Interest and other amounts, or any benefits earned in lieu of the payment of interest, earned on the Escrow Funds shall be treated as Escrow Funds and the parties hereto agree that absent a change in law, all information returns shall identify the applicable Legal Entity as the recipient.

 

(b)  If any Qualified Earnings on Relinquished Property Proceeds are held in an Exchange Account, such Qualified Earnings shall not be disbursed during the Exchange Period for the related Relinquished Property.  Any Qualified Earnings as to which the Exchange Period of the Relinquished Property has expired shall thereafter be deemed Additional Subsidies.

 

ARTICLE V

 

Distributions

 

SECTION 5.01.  Distribution of Escrow Funds.   The Escrow Agent shall hold the Escrow Funds in its possession until instructed hereunder to deliver the Escrow Funds or any specified portion thereof as follows:

 

(a)  If the Escrow Agent receives a request pursuant to Section 3.01 or Section 3.02 hereof authorizing release of the Escrow Funds, or a portion thereof, the Escrow Agent shall, subject to the terms and conditions described in this Escrow Agreement, disburse the Escrow Funds, or designated portion thereof, including any interest or other amounts earned on the Escrow Funds, pursuant to the instructions set forth in such request; provided , however , that other than as set forth in Section 3.01 or Section 3.02 hereof, the Escrow Agent shall have no duty or obligation to verify or confirm any of the information contained in the request.

 

(b)  If the Escrow Agent receives written notice substantially in the form of Exhibit A hereto authorizing termination of the escrow hereunder as related to funds that are attributable to designated Relinquished Property and any earnings thereon for failure to identify the Replacement Property with respect to any Relinquished Property within the Identification Period with respect to such Relinquished Property, signed jointly by or on behalf of authorized representatives of the QI and the applicable Legal Entity, the Escrow Agent shall, (a) if such notice is received by 11:00 a.m. (New York time) on a Business Day, on the Business Day such notice is received or (b) otherwise one Business Day after receipt of such notice, redeem or otherwise liquidate the Escrow Funds or designated portion thereof and disburse the Escrow Funds (including any interest or other amounts earned on the Escrow Funds), or designated portion thereof, to, or as directed by, the applicable Legal Entity pursuant to the instructions set forth in such notice; provided that (i) (x) in the case of Escrow Funds of HVF relating to HVF Vehicles  (including any funds that are attributable to Relinquished Property relating to such HVF Vehicles and any earnings thereon), such amount shall be paid to the Collection Account and (y) in the case of Escrow Funds of HVF relating to HVF Segregated Vehicles that

 

8



 

constitute Series-Specific Collateral for a particular Segregated Series of Notes (including any funds that are attributable to Relinquished Property relating to such HVF Segregated Vehicles and any earnings thereon), such amount unless otherwise specified in a Segregated Series Supplement shall be paid to the collection account or other account relating to such Segregated Series and (ii) in the case of Escrow Funds of Hertz (including any funds that are attributable to Relinquished Property owned by Hertz and any earnings thereon) with respect to GE Financed Vehicles, such amount shall be paid to the GE Collateral Account.

 

(c)  If the Escrow Agent receives written notice substantially in the form of Exhibit A hereto authorizing termination of the escrow hereunder, as related to designated Relinquished Property Proceeds, and any Qualified Earnings thereon, for failure to acquire Replacement Property within the Exchange Period, signed jointly by or on behalf of authorized representatives of the QI and the applicable Legal Entity, such party shall, (a) if such notice is received by 11:00 a.m. (New York time) on a Business Day, on the Business Day such notice is received or (b) otherwise one Business Day after receipt of such notice, redeem or otherwise liquidate the Escrow Funds or designated portion thereof and disburse the Escrow Funds (including any interest or other amounts earned on the Escrow Funds), or designated portion thereof, to, or as directed by, the applicable Legal Entity pursuant to the instructions set forth in such notice; provided that (i) (x) in the case of Escrow Funds of HVF relating to HVF Vehicles, such amount shall be paid to the Collection Account and (y) in the case of Escrow Funds of HVF relating to HVF Segregated Vehicles that constitute Series-Specific Collateral for a particular Segregated Series of Notes, such amount unless otherwise specified in a Segregated Series Supplement shall be paid to the collection account or other account relating to such Segregated Series and (ii) in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, such amount shall be paid to the GE Collateral Account.

 

(d)  If the Escrow Agent receives a written release notice substantially in the form of Exhibit C hereto stating that a new escrow holder has been appointed pursuant to a new escrow agreement and authorizing termination of the escrow hereunder, signed jointly by or on behalf of authorized representatives of the QI and all Legal Entities and consented to by the Trustee and the GE Collateral Agent, such party shall release the Escrow Funds (or any portion thereof), in the amounts and to the parties referenced in such notice, and any documentation related to the tax deferred exchange that it may hold.

 

(e)  If the Legal Entities terminate this Escrow Agreement pursuant to Section 6.14 hereof, and thereafter the Escrow Agent receives written notice substantially in the form of Exhibit C-1 hereto stating that a new escrow holder has been appointed pursuant to a new escrow agreement following the termination of all or a portion of this Escrow Agreement, the Escrow Agent shall, on the date set forth in such notice, which in no event shall be less than two (2) Business Days following such party’s receipt of such notice, redeem or otherwise liquidate the Escrow Funds with respect to the portion of this Escrow Agreement that was terminated and disburse the Escrow Funds (including any income, interest, or other amounts earned on the Escrow Funds) to such new escrow holder, pursuant to the instructions set forth in such notice.  If (i) the Legal Entities terminate all or a portion of this Escrow Agreement pursuant to Section 6.14 hereof or (ii) 

 

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the Escrow Agent terminates this Escrow Agreement pursuant to Section 6.10 hereof, and thereafter the Escrow Agent receives written notice substantially in the form of Exhibit C-2 hereto stating that a new escrow holder has not been appointed prior to the termination of this Escrow Agreement, the Escrow Agent shall, on the date set forth in such notice, which in no event shall be less than two (2) Business Days following such party’s receipt of such notice, redeem or otherwise liquidate the Escrow Funds with respect to the portion of this Escrow Agreement that was terminated and disburse such Escrow Funds (including any income, interest, or other amounts earned on the Escrow Funds), pursuant to the instructions set forth in such notice.

 

(f)  The Escrow Agent will only accept instructions that have been signed by those persons authorized to do so per an authorization in the form of Exhibit B (as such exhibit may be amended and supplemented from time to time).  The signatures contained in an authorization in the form of Exhibit B hereto will be considered good and valid for all purposes of this Escrow Agreement until rescinded or modified in writing via a new authorization in the form of Exhibit B delivered to the Escrow Agent.

 

(g)  Except as otherwise provided pursuant to Section 3.01, Section 3.02 and Section 3.06(a) hereof and this Section 5.01, the Escrow Funds may not be disbursed under any conditions except those set forth above in this Section 5.01, and the parties agree that neither the QI nor any Legal Entity shall have the authority to direct (and no such direction shall be effective against) the Escrow Agent to disburse Escrow Funds.  All disbursements made pursuant to this Escrow Agreement by the Escrow Agent shall be made by wire or other Electronic Funds Transfer unless such party, in its sole discretion, agrees to another method of disbursement.

 

ARTICLE VI

 

Miscellaneous Provisions

 

SECTION 6.01.  Obligations of the Escrow Agent.

 

(a)  The Escrow Agent shall invoice each Legal Entity quarterly for authorized fees and expenses payable by such Legal Entity.  Payments of reasonable fees and expenses pursuant to an invoice shall be due thirty (30) days from the date of each Legal Entity’s receipt of such invoice plus any required supporting documentation.

 

(b)  The Escrow Agent shall not have any obligation to, nor shall it incur any liability for failing to, advance, use or risk, in any manner or for any purpose, its own funds or otherwise incur financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder.  The provisions of this Section 6.01(b) shall survive the termination of this Escrow Agreement.

 

(c)  Except as expressly contemplated by this Escrow Agreement, the Escrow Agent shall not sell, transfer or otherwise dispose of in any manner all or any portion of the Escrow Funds, except pursuant to an order of a court of competent jurisdiction.

 

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(d)  The duties, responsibilities and obligations of the Escrow Agent under this Escrow Agreement shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied.  Other than as contemplated herein, the Escrow Agent shall not be subject to, or required to comply with, any other agreement between the Legal Entities and the QI or to which a Legal Entity or the QI is a party, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Escrow Agreement) from a Legal Entity or the QI or an entity or entities acting on their behalf.

 

(e)  If at any time the Escrow Agent is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process that in any way affects the Escrow Funds, the Escrow Agent shall, in the case of Escrow Funds of HVF, promptly notify the Trustee of such occurrence, in the case of Escrow Funds of Hertz with respect to GE Financed Vehicles, promptly notify the GE Collateral Agent of such occurrence, and, in any case, be authorized to comply therewith in any manner that it or legal counsel of its own choosing reasonably deems appropriate; and if the Escrow Agent complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, it shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.

 

(f)  The Escrow Agent shall not be under any duty to give the Escrow Funds held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any Escrow Funds held hereunder except as provided for in this Escrow Agreement.  Uninvested funds held hereunder shall not earn or accrue interest.

 

(g)  At any time the Escrow Agent may request an instruction in writing from any of the Legal Entities and the QI and may, at its own option, include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder.  The Escrow Agent shall not be liable for acting in accordance with such a proposal on or after the date specified therein, provided that the specified date shall be at least three (3) Business Days after the applicable Legal Entity, the Trustee and the QI receive such party’s request for instructions and its proposed course of action, and provided   further that, prior to so acting, the Escrow Agent has not received the written instructions requested, including a refusal to the proposed course of action.

 

(h)  In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or other communication received hereunder by the Escrow Agent, the Escrow Agent may, in its sole discretion, only after notifying the applicable Legal Entity, the Trustee and the QI in writing, refrain from taking any action other than retaining possession of the Escrow Funds unless the Escrow Agent receives written instructions, signed by such Legal Entity and the QI, which eliminates such ambiguity or uncertainty.

 

(i)  Each Legal Entity shall pay or reimburse the Escrow Agent upon request, for any taxes relating to the Escrow Funds with respect to such Legal Entity incurred in connection herewith and shall indemnify and hold the Escrow Agent harmless from any amounts it is obligated to pay in the way of such taxes.  In addition, all interest or other income earned under

 

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this Escrow Agreement shall be allocated to Exchangor for federal income tax purposes, and paid only as directed by the applicable Legal Entity and the QI pursuant to the terms and conditions of this Escrow Agreement, as supplemented by the terms of the Master Exchange Agreement, and reported by Exchangor to the IRS or any other taxing authority.  Notwithstanding any written directions, the Escrow Agent shall report, and as required withhold, any taxes it determines may be required by any law or regulation in effect at the time of distribution.  If any earnings remain undistributed at the end of any calendar year, the Escrow Agent shall report to the IRS or such other authority such earnings as it deems appropriate or as required by any applicable law or regulation.  This Section 6.01(i) shall survive the termination of this Escrow Agreement or the resignation or removal of the Escrow Agent.

 

(j)  The Escrow Agent shall be entitled to rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it by a Legal Entity or otherwise hereunder without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof.  Subject to Section 5.01(f) hereto, the Escrow Agent may act in reliance upon, and shall be fully protected in relying upon, any instrument or signature reasonably believed by it to be genuine and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.  All written notices when received as provided pursuant to Section 6.03 hereof shall be valid and accepted whether signed in counterparts or one document.

 

SECTION 6.02.  Conflicting Instructions; Adverse Claims.   In the event of any disagreement between any Legal Entity and the QI resulting in conflicting instructions to (including the disapproval by the QI of a proposed Electronic Funds Transfer pursuant to Section 3.01 or Section 3.02 hereof), or adverse claims or demands by any Legal Entity and the QI upon, the Escrow Agent with respect to the release of the Escrow Funds or any part thereof, then the Escrow Agent shall immediately deliver a true copy thereof to the applicable Legal Entity, the QI and, in the case of a disagreement involving HVF, the Trustee and, in the case of a disagreement involving Hertz and Escrow Funds with respect to GE Financed Vehicles, the GE Collateral Agent, along with such party’s written notice in refusing to comply with the adverse claims or demands referred to above, or as an alternative, wait for clarification from both such Legal Entity and the QI before complying.  If the Escrow Agent gives written notice to the applicable Legal Entity, the QI and, if required, the Trustee or the GE Collateral Agent as referred to above, then the Escrow Agent shall be entitled to and be fully protected in refusing to comply with any claims or demands on it and shall continue to hold the Escrow Funds until it receives either (i) a written notice signed by both the QI and the applicable Legal Entity directing the delivery of the Escrow Funds or (ii) a final order of a court of competent jurisdiction, entered in a proceeding in which the QI and the applicable Legal Entity are named as parties, directing the delivery of the Escrow Funds in accordance with the terms of this Escrow Agreement, in either of which events the Escrow Agent shall then deliver the Escrow Funds in accordance with said direction.  The Escrow Agent shall not be or become liable in any way or to any person for its refusal to comply with any such claims or demands until and unless it has received a direction of the nature described in clause (i)  or (ii)  above.  Upon the taking by the Escrow Agent of any action in accordance with clause (i)  or (ii)  above the Escrow Agent shall be released of and from all liability hereunder with respect to the Escrow Funds.

 

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SECTION 6.03.  Notices.   All notices, requests, demands, waivers, consents, approvals or other communications required or permitted hereunder will be in writing, will be deemed given when actually received and will be given by personal delivery, by facsimile transmission with receipt acknowledged, by means of electronic mail, by same day or overnight courier services or by registered or certified mail, postage prepaid, return receipt requested, to the following addresses:

 

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

 

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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

 

SECTION 6.04.  Notice of Claims Relating to the Escrow Accounts.   If the Escrow Agent receives a written notice signed by or on behalf of either the QI or a Legal Entity advising the Escrow Agent that there is a pending litigation between the QI and such Legal Entity or any other entity claiming entitlement to the Escrow Funds, (i) the Escrow Agent may, on notice to the QI, such Legal Entity, and in the case of litigation involving HVF, the Trustee and in the case of litigation involving Hertz and Escrow Funds with respect to GE Financed Vehicles, the GE Collateral Agent, deposit the Escrow Funds with the clerk of the court in which said litigation is pending; or (ii) take such affirmative steps as it elects in order to terminate its duties as escrow holder hereunder, including, without limitation, the deposit of the Escrow Funds with a court of competent jurisdiction and, if no action to which the QI and such Legal Entity are parties is then pending with respect to the Escrow Funds, the commencement of an action for interpleader, the costs thereof to be borne jointly and severally by the QI and the applicable Legal Entity.

 

SECTION 6.05.  Limitation of Liabilities; Indemnification.   (a)  The parties hereto hereby acknowledge and agree that the duties of the Escrow Agent hereunder are purely ministerial, at the request of the QI and each Legal Entity and for their convenience.  The Escrow Agent shall not be or be deemed to be the agent or trustee for the QI or any Legal Entity, and neither the QI nor any Legal Entity shall be or be deemed to be the agent or trustee of the Escrow Agent.  The QI and each Legal Entity agree that, notwithstanding any provision hereof to the contrary, the Escrow Agent shall not incur any liability whatsoever for any action taken, suffered or omitted or for any loss or injury resulting from its actions or the performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part, and do hereby release and waive any claim they may have against the Escrow Agent, which may result from its performance of its obligations under this Escrow Agreement other than as a result of gross negligence or willful misconduct.  Subject to the foregoing, the Escrow Agent shall not be responsible or liable in any manner whatsoever for (a) acting in accordance with or relying upon any instruction, notice, demand, certificate or document from any Legal Entity or the QI or any entity acting on behalf of any Legal Entity or the QI provided for herein, (b) the acts or omissions in compliance and accordance with this Escrow Agreement of its nominees, correspondents, designees, agents, subagents or subcustodians, so long as such nominees, correspondents, designees, agents, subagents or subcustodians are selected with due care, (c) the investment or reinvestment of any Escrow Funds held by it hereunder in good faith in accordance with the terms hereof, (d) the sufficiency, correctness, genuineness, validity or enforceability of any document or instrument delivered to it, (e) the form of execution of any such document or instrument, (f) the apparent identity, authority, or rights of any person executing or delivering any such document or instrument, (g) the terms and conditions of any document or instrument pursuant to which the parties may act, (h) the validity or effectiveness of

 

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any of the transactions, or the treatment for tax purposes of any of the transactions contemplated herein, (i) the sale of the Relinquished Property or the selection or terms of acquisition of any Replacement Property or other property, or the state of title, condition, quality or value of any Relinquished Property, Replacement Property or other property, (j) compliance with or monitoring the requirements of Section 1031 of the Code and/or Revenue Procedure 2003-39, or (k) the treatment for tax purposes of any Escrow Funds delivered or held hereunder or the income, interest or other amounts which may be earned or accrue relative to the Escrow Funds.  Subject to Section 5.01(f), the Escrow Agent shall be entitled to rely upon the authenticity of any signature purporting to be by the QI or any Legal Entity received by it relating to this Escrow Agreement.

 

(b)  Hertz shall, and hereby does, indemnify, protect, save, defend and hold harmless the Escrow Agent and its respective officers, directors, employees, agents and attorneys from and against all claims, loss, damage and costs, including reasonable attorney’s fees, incurred in connection with the performance of the Escrow Agent’s duties hereunder, except with respect to acts involving gross negligence or willful misconduct on the part of the Escrow Agent.  The provisions of this Section 6.05(b) shall survive the termination of this Escrow Agreement.

 

(c)  The Escrow Agent shall not be required to give any bond or other security hereunder.  The QI and each Legal Entity hereby acknowledge that the Escrow Agent shall not have any liability for any loss, cost or damage that the QI or any Legal Entity or any other person or entity may sustain by reason of the failure to pay, default, insolvency or bankruptcy of any entity or investment in which the Escrow Funds may have been invested or deposited which prevents or delays payment of the Escrow Funds or any interest, income or other amount earned or accrued thereon as herein provided.

 

SECTION 6.06.  Entire Agreement; Successors and Assigns.   This Escrow Agreement, the Master Exchange Agreement and the other agreements referenced herein contain the entire agreement between the parties relative to the subject matter hereof and there are no verbal or collateral understandings, agreements, representations or warranties not expressly set forth herein.  Except as expressly otherwise allowed herein, no party may assign or otherwise transfer any of its rights or delegate any of its duties or obligations under this Escrow Agreement without the prior written consent of each other party, which consent shall not be unreasonably withheld; provided , however , that no assignment shall be effective without satisfaction of the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding; provided further , however , that (1) each Legal Entity may pledge all of its right, title and interest in this Agreement to the extent not otherwise prohibited by the Related Documents or by Treasury Regulation Section 1.1031(k)-1(g)(6) and (2) any party hereto may assign (subject to the Rating Agency Condition) this Agreement, without such written consent, other than the written consent of HVF and Hertz in the case of an assignment by the Escrow Agent, to a successor or surviving entity resulting from a merger or acquisition involving substantially all of a party’s stock or assets.  To secure the payment of the Note Obligations from time to time owing by HVF under the Indenture, HVF has pledged and assigned to the Collateral Agent for the benefit of the HVF Secured Party a security interest in all of its right, title and interest in, to and under this Escrow Agreement (but not the Escrow Accounts) as it relates to the HVF Vehicles, and the Escrow Agent, Hertz and HGI hereby consent to such assignment.  To secure the payment of the

 

15



 

Segregated Series Note Obligations from time to time owing by HVF under each Segregated Series Supplement, HVF has pledged and assigned to the Collateral Agent for the benefit of each HVF Segregated Secured Party with respect to a particular Segregated Series of Notes a security interest in all of its right, title and interest in, to and under this Escrow Agreement (but not the Escrow Accounts) as it relates to the HVF Segregated Vehicles which constitute Series-Specific Collateral for such Segregated Series, and the Escrow Agent, Hertz and HGI hereby consent to such assignment.  To secure HGI’s obligations under the HGI Credit Facility and all other liabilities of HGI from time to time owing by HGI to Hertz thereunder, HGI has pledged and assigned, to the Collateral Agent, for the benefit of the HGI Secured Parties, a security interest in all of its right, title and interest in, to and under this Escrow Agreement (but not the Escrow Accounts) as it relates to HGI Vehicles and the Escrow Agent, Hertz and HVF hereby consent to such assignment.  To secure Hertz’s obligations under the GE Credit Agreement, the GE Collateral Agreement and the other GE Loan Documents, Hertz has pledged and assigned to the GE Collateral Agent for the benefit of the secured parties under the GE Collateral Agreement a security interest in all of its right, title and interest in, to and under this Escrow Agreement (but not the Escrow Accounts) insofar as it relates to GE Financed Vehicles and the Escrow Agent, HVF and HGI hereby consent to such assignment.

 

SECTION 6.07.  Counterparts.   This Escrow Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered will be deemed to be an original and all of which counterparts when taken together will constitute but one and the same instrument.  The execution of this Agreement by any party hereto will not become effective until counterparts hereof have been executed and delivered by each other party hereto.  It will not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any other counterparts.

 

SECTION 6.08.  No Third Party Beneficiaries.   Nothing contained in this Escrow Agreement is intended, or will be construed, to confer upon or give to any Person, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies under or by reason of this Escrow Agreement.

 

SECTION 6.09.  Authorization.   Each Person signing this Escrow Agreement and any accompanying exhibits each represent and warrant that such Person has all necessary power and authority to execute and deliver this Escrow Agreement and any accompanying exhibits on behalf of the party for whom they are so executing and delivering the same.

 

SECTION 6.10.  Termination.   (a)  Upon delivery of all of the Escrow Funds and all interest earned thereon as required or permitted hereunder and following written notice to each of the Escrow Agent and the Trustee of termination of this Escrow Agreement, the Escrow Agent shall be relieved and discharged from all obligations and liabilities hereunder with respect thereto and this Escrow Agreement shall thereupon be deemed terminated.

 

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

 

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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.

 

SECTION 6.11.  No Discretion.   The Escrow Agent may act through agents or attorneys-in-fact, by and under a power of attorney duly executed by the Escrow Agent in carrying out any of the powers and duties pursuant to this Escrow Agreement, subject to clause (b)  of Section 6.05(a) hereof.  The Escrow Agent shall not be required to exercise any discretion hereunder.

 

SECTION 6.12.  GOVERNING LAW AND VENUE.   THIS ESCROW AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.  VENUE SHALL BE IN ANY STATE OR FEDERAL COURT WITHIN THE STATE OF NEW YORK.

 

SECTION 6.13.  JURY TRIAL WAIVER.   EACH LEGAL ENTITY, THE QI AND THE ESCROW AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING FROM THE SUBJECT MATTER OF THIS ESCROW AGREEMENT, INCLUDING ANY COUNTERCLAIM THERETO.

 

SECTION 6.14.   Certain Bankruptcy Events.   If the Escrow Agent:

 

(a)  suffers the entry against it of a judgment, decree or order for relief by a court of competent jurisdiction or any regulatory agency in an involuntary proceeding commenced under any applicable insolvency, receivership or other similar law of any jurisdiction now or hereafter in effect, or has any such proceeding commenced against it which remains undismissed for a period of thirty (30) days, or

 

(b)  commences a voluntary case under any applicable bankruptcy, insolvency, receivership or similar law now or hereafter in effect; or applies for or consents to the entry of an order for relief in an involuntary case under any such law; or makes a general assignment for the benefit of creditors; or fails generally to pay (or admits in writing its inability to pay) its debts as such debts become due; or takes corporate or other action to authorize any of the foregoing,

 

(c)  then the Legal Entities may, immediately upon notice to the QI, the Trustee, the GE Collateral Agent and the Escrow Agent (together with a copy of the replacement

 

17



 

escrow agreement referred to below), and subject to satisfaction of the Rating Agency Condition with respect to each Outstanding Series of Indenture Notes, terminate all or a portion of this Escrow Agreement, appoint, or cause the QI to appoint, a successor escrow agent with respect to all or a portion of this Escrow Agreement and enter into a replacement escrow agreement with such successor on terms substantially the same in all material respects as the terms of this Escrow Agreement.

 

SECTION 6.15.  Force Majeure.   No party to this Escrow Agreement is liable to any other party for losses due to, or if it is unable to perform its obligations under the terms of this Escrow Agreement if such inability to perform is caused by, circumstances reasonably beyond a party’s control, such as natural disasters, fire, floods, third party strikes, failure of public utilities or telecommunications infrastructure or any other causes reasonably beyond its control.

 

SECTION 6.16.  Treasury Regulations Disclosure Requirements.   Each Legal Entity represents that it does not intend to treat any transaction contemplated by this Escrow Agreement as a reportable transaction within the meaning of Section 1.6011-4 of the Treasury Regulations, and without limiting the foregoing, will fully comply with the filing and reporting requirements applicable to like-kind exchanges, including any requirement in applicable regulations and forms.  In the event that any Legal Entity determines to take any action inconsistent with such intention, such Legal Entity will promptly notify the QI, and each Legal Entity acknowledges that in this event, any other party to this Escrow Agreement may treat the transaction as subject to Section 301.6112-1 of the Treasury Regulations, and maintain the investor list and other records required by such Treasury Regulation.

 

SECTION 6.17.  Power of Attorney.   Each of HVF and HGI shall execute on the date hereof (or, with respect to any HVF Segregated Vehicles, HVF may execute after the date hereof) a power of attorney substantially in the form of Exhibit D hereto, pursuant to which Hertz may exercise any of HVF’s or HGI’s rights under this Escrow Agreement, including the right to execute any and all documents pertaining to the transfer or release of Escrow Funds and to terminate all or a portion of the Escrow Agreement.

 

SECTION 6.18.  No Petitions.   The Escrow Agent 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 HVF, the QI or Hertz, 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 Escrow Agent takes action in violation of this Section 6.18, (i) each of the QI and HVF agrees, for the benefit of the HVF Secured Parties, and (ii) Hertz agrees, for the benefit of the parties to the GE Loan Documents, that it shall file an answer with the bankruptcy court or otherwise properly contest the filing of such a petition by the Escrow Agent against the QI, HVF or Hertz or the commencement of such action and raise the defense that the Escrow Agent 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.

 

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The provisions of this Section 6.18 shall survive the termination of this Agreement.

 

SECTION 6.19.  Waiver of Setoff.   The Escrow Agent agrees that all monies, checks, instruments and other items of payment deposited into the Escrow Accounts shall not be subject to deduction, setoff, banker’s lien, or any other right in favor of any Person, except that such party may setoff (i) any checks credited to the Escrow Accounts and thereafter returned unpaid because of uncollected or insufficient funds and (ii) items, including, without limitation any Automated Clearing House transactions, which are returned for any reason or any adjustments.

 

SECTION 6.20.  Electronic Documentation.   Each of the parties hereto agrees that any instruction required to be delivered in the form of Exhibit A may be provided in an electronic form so long as the form of electronic documentation used is sufficient to constitute a legal and binding instruction.

 

SECTION 6.21.  Servicer.   The parties to this Escrow Agreement acknowledge and agree that Hertz acts as Servicer of HVF and HGI pursuant to this Escrow Agreement, and, in such capacity, as the agent of HVF and HGI, for purposes of performing certain duties of HVF and HGI under this Escrow Agreement.  The parties to this Escrow Agreement acknowledge and agree that Hertz, as Servicer, may take any action to be taken by HVF or HGI under this Escrow Agreement.

 

SECTION 6.22.  Amendments.   This Escrow Agreement may be amended and supplemented only by a written instrument duly executed by all the parties hereto upon satisfaction of the Rating Agency Condition with respect to each Series of Indenture Notes Outstanding.

 

SECTION 6.23.  Availability of Funds for Payments.   Notwithstanding any provisions contained in this Escrow Agreement to the contrary, HVF shall not, and shall not be obligated to pay any amount pursuant to this Escrow Agreement unless HVF has funds which are not required to repay any Series of Notes Indenture Outstanding when due.  Prior to the commencement of an insolvency proceeding by or against HVF, any amount which HVF does not pay pursuant to the operation of the preceding sentence shall not constitute a claim (as defined in § 101 of the Bankruptcy Code) against or obligation of HVF for any such insufficiency unless and until HVF satisfies the provisions of such preceding sentence.

 

(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.

 

 

THE HERTZ CORPORATION,

 

 

 

 

 

by

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Treasurer

 

 

 

 

 

 

 

HERTZ VEHICLE FINANCING LLC,

 

 

 

 

 

by

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Vice President & Treasurer

 

 

 

 

 

HERTZ GENERAL INTEREST LLC,

 

 

 

 

 

by

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Vice President & Treasurer

 

 

 

 

 

HERTZ CAR EXCHANGE INC.,

 

 

 

 

 

by

/s/ Daniel Feehan

 

 

Name: Daniel Feehan

 

 

Title: Vice President

 

 

 

 

 

 

 

by

/s/ Vickie Chaplin

 

 

Name: Vickie Chaplin

 

 

Title: Associate

 

 

 

 

 

J.P. MORGAN CHASE BANK, N.A.,

 

 

 

 

 

by

/s/ Christopher Vetri

 

 

Name: Christopher Vetri

 

 

Title: Trust Officer

 


 

Exhibit A

To:

 

Escrow Agent Account Number #:                                

Legal Entity:  [                               ] [                               ] [                               ]

Legal Entity’s 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 cashier’s 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:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 

[Qualified Intermediary:

 

](2)

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 


(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:

 

 

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 

Legal Entity:                                                , [on its own behalf] [as Servicer for                                        ], [                                      ], [                                                                   ]

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 



 

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:

 

 

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 

Legal Entity:                                                             , [on its own behalf] [as Servicer for][                                     ][                                      ][                                     ]

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 


 

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:

 

 

Print Name:

 

 

Title:

 

 

 

 

Any of the following persons are authorized to execute the instructions on behalf of any Legal Entity:

 

 

Authorized Signature:

 

 

Print Name:

 

 

Title:

 

 

 

 

Authorized Signature:

 

 

Print Name:

 

 

Title:

 

 

 

 

Authorized Signature:

 

 

Print Name:

 

 

Title:

 

 

 

 

Authorized Signature:

 

 

Print Name:

 

 

Title:

 

 

 



 

Authorized Signature:

 

 

Print Name:

 

 

Title:

 

 

 

Any of the following persons are authorized to execute the Escrow Agreement and instructions on behalf of the QI.

 

Authorized Signature:

 

 

Print Name:

 

 

Title:

 

 

 

 

Authorized Signature:

 

 

Print Name:

 

 

Title:

 

 

 

 

Authorized Signature:

 

 

Print Name:

 

 

Title:

 

 

 

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 Entity’s 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:

 

 

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 

 

Legal Entity:                                                             , [on its own behalf] [as Servicer for][                                     ][                                      ][                                     ]

 

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 



 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 

Acknowledged and consented to by:

 

 

 

 

 

 

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 


 

Exhibit C-2

 

Instruction to Transfer Escrow Funds

 

To:

 

Escrow Agent Account Number

Legal Entity:                                    ,                                     ,                                     

                                     and                                     

Legal Entity’s 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:

 

 

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 

 

Legal Entity:                                                             , [on its own behalf] [as Servicer for][                                        ][                                         ][                                        ]

 

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 

Acknowledged and consented to by:

 

 

 

 

 

 

 

By:

 

 

Date:

 

Print Name:

 

 

 

 

Title:

 

 

 

 

 



 

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.

 

 

[                                                ] ]              

 

                                    ]

 

 

 

By:

 

 

State of                         )

 

County of                     )

 

Subscribed and sworn before me, a notary public, in and for said county and state, this          day of                         , 20    .

 

 

 

 

 

 

 

Notary Public

 

 

 

 

 

 

My Commission Expires:

 

 

 

 




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

 

 

Page

 

 

ARTICLE I DEFINITIONS

1

 

 

ARTICLE II INITIAL ISSUANCE AND INCREASES AND DECREASES OF PRINCIPAL AMOUNT OF SERIES 2009-1 NOTES

43

 

 

Section 2.1   Initial Issuance; Procedure for Increasing the Series 2009-1 Principal Amount

43

Section 2.2   Procedure for Decreasing the Series 2009-1 Principal Amount

45

 

 

ARTICLE III SERIES 2009-1 ALLOCATIONS

47

 

 

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

61

Section 3.7   The Administrator’s Failure to Instruct the Trustee to Make a Deposit or Payment

62

Section 3.8   Series 2009-1 Reserve Account

62

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

69

Section 3.12   Series 2009-1 Interest Rate Caps

71

Section 3.13   Series 2009-1 Demand Note Constitutes Additional Collateral for Series 2009-1 Notes

72

 

 

ARTICLE IV     AMORTIZATION EVENTS

73

 

 

ARTICLE V FORM OF SERIES 2009-1 NOTES

77

 

 

Section 5.1   Issuance of Series 2009-1 Notes

77

Section 5.2   Transfer of Series 2009-1 Notes

78

 

 

ARTICLE VI GENERAL

79

 

 

Section 6.1   Optional Redemption of Series 2009-1 Notes

79

Section 6.2   Information

80

Section 6.3   Exhibits .

84

 

i



 

TABLE OF CONTENTS

(continued)

 

 

Page

 

 

Section 6.4   Ratification of Base Indenture

85

Section 6.5   Notice to the Rating Agencies

85

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

 

 

 

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 Purchaser’s 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

 

iii



 

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.

 

ARTICLE I

 

DEFINITIONS

 

(a)           All capitalized terms not otherwise defined herein shall have the meanings assigned thereto in the Definitions List attached to the Base Indenture as Schedule I thereto, as amended, modified, restated or supplemented from time to time in accordance with the terms of the Base Indenture or the Series 2009-1 Note Purchase Agreement; provided , however , that to the extent any capitalized term used but not defined herein has a meaning assigned to such term in both the Definitions List attached to the Base Indenture as Schedule I thereto and the Series 2009-1 Note Purchase Agreement, then the meaning given to such term in the Definitions List attached to the Base Indenture as Schedule I shall apply.  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.  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 2009-1 Notes and not to any other Series of Notes issued by HVF.  All references herein to the “Series 2009-1 Supplement” shall mean the Base Indenture, as supplemented hereby.

 

(b)           The following words and phrases shall have the following meanings with respect to the Series 2009-1 Notes (whether such words and phrases are used in this Series Supplement, the Base Indenture or any other Related Document) and the definitions of such terms are applicable to the singular as well as the plural form of such terms and to the masculine as well as the feminine and neuter genders of such terms:

 

Additional Series 2009-1 Notes ” has the meaning specified in Section 5.1 of this Series Supplement.

 

Adjusted Aggregate Asset Amount ” means, as of any day, the sum of (a) the Aggregate Asset Amount and (b) the sum of (1) the amount of cash and Permitted Investments on deposit in the Series 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.

 

2



 

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%.

 

3



 

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 Moody’s; provided , that if an Eligible Manufacturer does not have a rating from Moody’s, then the rating of an affiliated entity specified by Moody’s shall apply for purposes of this definition; provided , further , that if (a) the rating of a Manufacturer by Moody’s is withdrawn or a Manufacturer is downgraded by Moody’s 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 Moody’s 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 Moody’s, but which does not have a long-term unsecured debt rating of at least “Baa2” from Moody’s; provided that if an Eligible Manufacturer does not have a rating from Moody’s, then the rating of an affiliated entity specified by Moody’s shall apply for purposes of this definition; provided , further , that if (a) (x) a Manufacturer is downgraded by Moody’s 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 Moody’s 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 Moody’s is withdrawn or a Manufacturer is downgraded by Moody’s 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 Moody’s 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 Moody’s; provided that if an Eligible Manufacturer does not have a rating from Moody’s, then the rating of an affiliated entity specified by Moody’s shall apply for purposes of this definition; provided , further , that if (a) the rating of a Manufacturer by Moody’s is withdrawn or a Manufacturer is downgraded by Moody’s 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 Moody’s 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 director’s nomination for election to the board of directors of Investors is recommended by at least a majority of the then Continuing Directors or the election of such other director is approved by one or more Permitted Holders.

 

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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 Moody’s First Trigger Required Ratings and/or the Moody’s 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 Moody’s First Trigger Required Ratings and/or the Moody’s 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 Moody’s 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 Hertz’s employees, or to the extent permitted under the HVF Lease, employees of Hertz Equipment Rental Corporation.

 

Hyundai Amount ” means, as of any date of determination, an amount equal to the sum of the Manufacturer Non-Eligible Vehicle Amount and the

 

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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 HVF’s 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.

 

Moody’s First Trigger Required Ratings ” means, with respect to any entity, rating requirements which are satisfied where (i) if such entity has a short-term, unsecured and unsubordinated debt obligation rating by Moody’s, such rating is “Prime-1” and its long-term senior unsecured debt, deposit, claims paying or credit (as the case may be) rating is “A2” or above by Moody’s or (ii) if such entity does not have a short-term, unsecured and unsubordinated debt obligation rating by Moody’s, its long-term senior unsecured debt, deposit, claims paying or credit (as the case may be) rating is “A1” or above by Moody’s.

 

Moody’s Second Trigger Required Ratings ” means, with respect to any entity, rating requirements which are satisfied where (i) if such entity has a short-term, unsecured and unsubordinated debt obligation rating by Moody’s, such rating is “Prime-2” or above and its long-term senior unsecured debt, deposit, claims paying or credit (as the case may be) rating is “A3” or above by Moody’s or (ii) if such entity does not have a short-term, unsecured and unsubordinated debt obligation rating by Moody’s, its long-

 

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term senior unsecured debt, deposit, claims paying or credit (as the case may be) rating is “A3” or above by Moody’s.

 

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 Moody’s; provided that upon the withdrawal of the rating of a Manufacturer by Moody’s or upon the downgrade of a Manufacturer by Moody’s 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 Moody’s 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 Provider’s 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 Provider’s 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 Provider’s 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 Moody’s.

 

Rating Agencies ” means, with respect to the Series 2009-1 Notes, Moody’s 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 Moody’s.

 

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 Moody’s 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 Hertz’s (a) senior secured asset based revolving loan facility, provided under a credit agreement, dated as of December 21, 2005, among Hertz Equipment Rental Corporation, Hertz together with certain of the Hertz’s subsidiaries, as borrower, the several banks and financial institutions from time to time party thereto, as lenders, Deutsche Bank AG, New York Branch, as administrative agent and collateral agent, Lehman Commercial Paper Inc., as syndication agent, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as sole documentation agent, and the other financial institutions party thereto from time to time (as it may be amended, amended and restated, supplemented or otherwise modified (including as amended by that certain Amendment to Credit Agreement, dated as of June 30, 2006, that certain Second Amendment to Credit Agreement, dated as of February 15, 2007, that certain Third Amendment to Credit Agreement, dated as of May 23, 2007 and that certain Fourth Amendment to Credit Agreement, dated as of September 30, 2007)), (b) senior secured term loan facility, provided under a credit agreement, dated as of December 21, 2005, among Hertz together with certain of the Hertz’s subsidiaries, as borrower, the several banks and financial institutions from time to time party thereto, as lenders, Deutsche Bank AG, New York Branch, as administrative agent and collateral agent, Lehman Commercial Paper Inc., as syndication agent, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as sole documentation agent, and the other financial institutions party thereto from time to time (as it may be amended, amended and restated, supplemented or otherwise modified (including as amended by that certain Amendment to Credit Agreement, dated as of June 30, 2006, that certain Second Amendment to Credit Agreement, dated as of February 9, 2007 and that certain Third Amendment to Credit Agreement, dated as of May 23, 2007)) and (c) any successor or replacement credit facility to the senior secured asset based revolving loan facility or senior secured term loan facility described in clauses (a) and (b)).

 

Series 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 

 

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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.

 

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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 Moody’s or Standard & Poor’s, as applicable) of at least “A1” from Moody’s and at least “A” from Standard & Poor’s and a short-term senior unsecured debt rating (or the equivalent thereof in the case of Moody’s or Standard & Poor’s, as applicable) of at least “P-1” from Moody’s and at least “A-1” from Standard & Poor’s.

 

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 Moody’s, subject to satisfaction of the Series 2009-1 Rating Agency Condition with respect to Moody’s) and (b) an amount equal to 100% minus the lower of (x) the lowest Non-Program Vehicle Measurement Month Average for any Measurement Month within the preceding 12 calendar months (or such fewer number of months as have elapsed since the Series 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 Moody’s, subject to satisfaction of the Series 2009-1 Rating Agency Condition with respect to Moody’s) and (b) an amount equal to 100% minus the lower of (x) the lowest Non-Program Vehicle Measurement Month Average for any Measurement Month within the preceding 12 calendar months (or such fewer number of months as have elapsed since the Series 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 

 

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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.

 

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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 Moody’s, subject to satisfaction of the Series 2009-1 Rating Agency Condition with respect to Moody’s).

 

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

 

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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

 

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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

 

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commitments under the Series 2009-1 Note Purchase Agreement) for such Series 2009-1 Noteholder’s 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 Moody’s 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 & Poor’s Enhancement Amount ” means, as of any date of determination, the sum of (i) the product of (x) the Series 2009-1 Standard & Poor’s 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 & Poor’s 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 & Poor’s 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 & Poor’s 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 & Poor’s Additional Incremental Enhancement Amount as of such date.

 

Series 2009-1 Standard & Poor’s 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 & Poor’s Additional Incremental Enhancement Amount ” means, as of any date of determination, the excess, if any, of (a) Standard & Poor’s Ineligible Receivable Manufacturer Receivable Amount as of such date over (b) Ineligible Receivable Manufacturer Receivable Amount as of such date.

 

Series 2009-1 Standard & Poor’s Additional Enhancement Amount ” means, as of any date of determination, the excess, if any, of (a) the Series 2009-1 Standard & Poor’s 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 Servicer’s Senior Credit Facilities becoming immediately due and payable and that has not been waived by the lenders under such facilities.

 

Standard & Poor’s Ineligible Receivable Manufacturer Receivable Amount ” means, as of any date of determination, with respect to each Standard & Poor’s 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 & Poor’s Ineligible Receivable Manufacturer with respect to Vehicles that are Eligible Vehicles and Eligible Program Vehicles when turned in to and accepted by such Standard & Poor’s 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 & Poor’s 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 & Poor’s Ineligible Receivable Manufacturer or delivered and accepted for Auction.

 

Standard & Poor’s 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 & Poor’s or a long-term unsecured debt rating of at least “A” from Standard & Poor’s; provided that if the rating of a Manufacturer by Standard and Poor’s is withdrawn or a Manufacturer is downgraded by Standard & Poor’s 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 & Poor’s or long-term unsecured debt rating of at least “A” from Standard & Poor’s, 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 Moody’s 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 Month’s published NADA Guide for the model class and model year of such HVF Vehicle based on the average equipment and the average mileage of each HVF Vehicle of such model class and model year; provided , that if the NADA Guide was not published in the Related Month or the NADA Guide is being published but such HVF Vehicle is not included therein, the Third-Party Market Value of such HVF Vehicle shall be based on the market value specified in the Finance Guide for the model class and model year of such HVF Vehicle based on the average equipment and the average mileage of each HVF Vehicle of such model class and model year; provided , further, that if the Finance Guide is being published but such HVF Vehicle is not included therein, the Third-Party Market Value of such HVF Vehicle shall mean the Net Book Value of such HVF Vehicle; provided , further, that if the Finance Guide was not published in the Related Month, the Third-Party Market Value of such HVF Vehicle shall be based on an independent third-party data source selected by the Servicer and approved by each Rating Agency that is rating the Series 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.

 

ARTICLE II

 

INITIAL ISSUANCE AND INCREASES AND DECREASES

OF PRINCIPAL AMOUNT OF SERIES 2009-1 NOTES

 

Section 2.1.   Initial Issuance; Procedure for Increasing the Series 2009-1 Principal Amount .

 

(a)           Subject to satisfaction of the conditions precedent set forth in subsection (b)  of this Section 2.1 (in the case of subsections (b)(ii) , (b)(iii) , (b)(iv) , (b)(v) , (b)(vi) , (b)(vii ), (b)(viii ), (b)(ix)  and (b)(xi) of this Section 2.1 , as evidenced by an Advance Request delivered to the Trustee as to which the Trustee may rely) (i) on the Series 2009-1 Closing Date, HVF may issue Series 2009-1 Notes in the aggregate initial principal amount equal to the Series 2009-1 Initial Principal Amount, (ii) on any Business Day during the Series 2009-1 Revolving Period, issue Additional Series 2009-1 Notes in an aggregate initial principal amount equal to the Additional Investor Group Initial Principal Amount with respect to the related Additional Investor Group and (iii) on any Business Day during the Series 2009-1 Revolving Period, HVF may, in accordance with the Series 2009-1 Note Purchase Agreement, increase the Series 2009-1 Principal Amount (such increase referred to as an “ Increase ”), by issuing, at par, ratable amounts of additional principal amounts of the Series 2009-1 Notes.  Each Increase shall be made in accordance with the provisions of Sections 2.02 and 2.03 of the Series 2009-1 Note Purchase Agreement and shall be ratably allocated among the Series 2009-1 Notes, based on their respective portion of the Series 2009-1 Principal Amount prior to giving effect to such Increase.  Proceeds from the initial issuance of the Series 2009-1 Notes, from any additional issuance of Additional Series 2009-1 Notes and from any Increase shall be deposited into the Collection Account and allocated in accordance with Article III hereof.  Upon each Increase, the Trustee shall, or shall cause the Registrar to, indicate in the Note Register such Increase.

 

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(b)           The initial Series 2009-1 Notes will be issued on the Series 2009-1 Closing Date, Additional Series 2009-1 Notes will be issued on any Business Day during the Series 2009-1 Revolving Period that an Additional Investor Group becomes a party to the Series 2009-1 Note Purchase Agreement, and the Series 2009-1 Principal Amount may be increased on any Business Day during the Series 2009-1 Revolving Period (subject to the limitations set forth in Section 2.2(a)  below), in each case, pursuant to subsection (a)  above, only upon satisfaction of each of the following conditions with respect to such initial issuance, such additional issuance of Additional Series 2009-1 Notes and each proposed Increase:

 

(i)            the Series 2005-3 Notes, the Series 2005-4 Notes and the Series 2008-1 Notes shall have been paid in full and all commitments with respect thereto shall have been terminated;

 

(ii)           other than in the case of the initial issuance of the Series 2009-1 Notes on the Closing Date, the amount of such issuance or Increase shall be equal to or greater than $2,500,000 and integral multiples of $100,000 in excess thereof;

 

(iii)          after giving effect to such issuance or Increase, (A) the Investor Group Principal Amount with respect to each Investor Group shall not exceed the Maximum Investor Group Principal Amount with respect to such Investor Group and (B) the Series 2009-1 Principal Amount shall not exceed the Series 2009-1 Maximum Principal Amount;

 

(iv)          after giving effect to such issuance or Increase and the application of the proceeds thereof, no Series 2009-1 Enhancement Deficiency, Series 2009-1 Liquidity Deficiency or Aggregate Asset Amount Deficiency shall exist;

 

(v)           after giving effect to such issuance or Increase and the application of the proceeds thereof, the amount on deposit in the Series 2009-1 Reserve Account shall be equal to or greater than the Series 2009-1 Required Reserve Account Amount;

 

(vi)          no Amortization Event with respect to the Series 2009-1 Notes has occurred and is continuing and such issuance or Increase and the application of the proceeds thereof will not result in the occurrence of (1) an Amortization Event with respect to the Series 2009-1 Notes or a Limited Liquidation Event of Default, or (2) an event or occurrence, which, with the passing of time or the giving of notice thereof, or both, would become an Amortization Event with respect to the Series 2009-1 Notes or a Limited Liquidation Event of Default;

 

(vii)         all representations and warranties set forth in Article 7 of the Base Indenture shall be true and correct with the same effect as if made on and as of such date (except to the extent such representations relate to an earlier date);

 

(viii)        all conditions precedent to the making of advances under the Series 2009-1 Note Purchase Agreement shall have been satisfied;

 

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(ix)           in the case of the initial issuance of the Series 2009-1 Notes on the Closing Date, receipt by HVF of a letter from each Rating Agency confirming that the Series 2009-1 Notes have been rated with the applicable Required Rating by such Rating Agency and receipt by the Trustee and the Administrative Agent of a true and correct copy thereof;

 

(x)            no more than three Increases shall occur during any calendar week;

 

(xi)           each Rating Agency shall have received prior written notice of each issuance of Additional Series 2009-1 Notes; and

 

(xii)          with respect to any Increase, 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 this Series Supplement.

 

Section 2.2.   Procedure for Decreasing the Series 2009-1 Principal Amount .

 

(a)           Mandatory Decrease .  Whenever (i) a Series 2009-1 Enhancement Deficiency exists, then, on or before the Payment Date immediately following discovery of such Series 2009-1 Enhancement Deficiency, HVF shall apply funds in the Series 2009-1 Excess Collection Account in accordance with Section 3.2(f)  of this Series Supplement, to make a pro rata reduction in the Series 2009-1 Principal Amount (subject to the limitations specified in Section 2.2(c)  below) by the lesser of (x) the amount necessary, so that after giving effect to all Decreases of the Series 2009-1 Principal Amount on such Payment Date, no such Series 2009-1 Enhancement Deficiency shall exist and (y) the amount that would reduce the Series 2009-1 Principal Amount to zero, (ii) an Aggregate Asset Amount Deficiency exists, then, on or before the Payment Date immediately following discovery of such Aggregate Asset Amount Deficiency, HVF shall allocate to and deposit in the Series 2009-1 Excess Collection Account to be applied in accordance with Section 3.2(f)  of this Series Supplement, funds to make a pro rata reduction in the Series 2009-1 Principal Amount (subject to the limitations specified in Section 2.2(c)  below) in an amount equal to the lesser of (x) the Series 2009-1 Invested Percentage (with respect to Principal Collections) of the amount of such Aggregate Asset Amount Deficiency and (y) the Series 2009-1 Principal Amount as of the date of application of such funds and (iii) a Series 2009-1 Excess Principal Event shall have occurred, then, on or before the Payment Date immediately following discovery of such Series 2009-1 Excess Principal Event, HVF shall allocate to and deposit in the Series 2009-1 Excess Collection Account to be applied in accordance with Section 3.2(f)  of this Series Supplement, funds to make a pro rata reduction in the Series 2009-1 Principal Amount (subject to the limitations specified in Section 2.2(c)  below) by the lesser of (x) the amount necessary, so that after giving effect to all Decreases of the Series 2009-1 Principal Amount on such Payment Date, no such Series 2009-1 Excess Principal Event shall exist and (y) the amount that would reduce the Series 2009-1 Principal Amount to zero (each reduction of the Series 2009-1 Principal Amount pursuant to this Section 2.2(a) , a “ Mandatory Decrease ”); plus , with respect to each clause above, any associated breakage costs (including Series 2009-1 Commercial Paper discounts and

 

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interest scheduled to accrue through the maturity of such Series 2009-1 Commercial Paper) incurred as a result of such decrease (paid together with such decrease calculated in accordance with the procedures outlined in Section 6.1 of this Series Supplement for optional repurchases).  Such Mandatory Decrease shall be ratably allocated among the Series 2009-1 Noteholders, based on their respective portion of the Series 2009-1 Principal Amount prior to giving effect to such Mandatory Decrease.  Upon discovery of such a Series 2009-1 Enhancement Deficiency, Aggregate Asset Amount Deficiency or Series 2009-1 Excess Principal Event, HVF shall promptly, but in any event within 5 Business Days, deliver written notice (by facsimile with original to follow by mail) of any related Mandatory Decreases to the Trustee.

 

(b)           Voluntary Decrease .  On any Business Day, upon at least 3 Business Day’s prior notice to each Series 2009-1 Noteholder, each Conduit Investor, each Committed Note Purchaser and the Trustee, HVF may decrease the Series 2009-1 Principal Amount (each such reduction of the Series 2009-1 Principal Amount pursuant to this Section 2.2(b) , a “ Voluntary Decrease ”) by withdrawing from the Series 2009-1 Excess Collection Account or, after the conclusion of the Series 2009-1 Revolving Period, the Series 2009-1 Collection Account, an amount (subject to the last sentence of this Section 2.2(b) ) up to the sum of all Principal Collections (or, in the case of the Series 2009-1 Collection Account, up to the total amount available in such account for payment of principal of the Series 2009-1 Notes) on deposit in such accounts and, in the case of the Series 2009-1 Excess Collection Account, available for distribution to effect a Voluntary Decrease pursuant to Section 3.2(f)  of this Series Supplement, and distributing pro rata to the Series 2009-1 Noteholders in respect of principal of the Series 2009-1 Notes, the amount of such withdrawal in accordance with Section 3.5(e)  of this Series Supplement;  plus any associated breakage costs (including Series 2009-1 Commercial Paper discounts and interest scheduled to accrue through the maturity of such Series 2009-1 Commercial Paper) incurred as a result of such decrease (paid together with such decrease and calculated in accordance with the procedures outlined in Section 6.1 of this Series Supplement for optional repurchases); provided that HVF shall not effect a Voluntary Decrease pursuant to this Section 2.2(b) more than three times in any calendar week; provided   further that the Trustee shall not be required to monitor the compliance of HVF with the limitation on the frequency of Voluntary Decreases set forth in the immediately preceding proviso.  Such Voluntary Decrease shall be ratably allocated among the Series 2009-1 Noteholders, based on their respective portion of the Series 2009-1 Principal Amount.  Each such Voluntary Decrease shall be, in the aggregate for all Series 2009-1 Notes, in a minimum principal amount of $5,000,000 and integral multiples of $100,000 in excess thereof.

 

(c)           Upon distribution to the Series 2009-1 Noteholders of principal of the Series 2009-1 Notes in connection with each Decrease, the Trustee shall, or shall cause the Registrar to indicate in the Note Register such Decrease.  The amount of any Decrease shall not exceed the amount allocated to the Series 2009-1 Excess Collection Account or the Series 2009-1 Collection Account and available for distribution to Series 2009-1 Noteholders in respect of principal of the Series 2009-1 Notes on the date of such Decrease pursuant to the terms hereof; provided that, for the avoidance of doubt, any amounts on deposit in the Series 2009-1 Collection Account and identified for payment

 

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to the Series 2009-1 Noteholders pursuant to Section 3.5(a)  of this Series Supplement shall not be “available for distribution to Series 2009-1 Noteholders”.

 

ARTICLE III

 

SERIES 2009-1 ALLOCATIONS

 

With respect to the Series 2009-1 Notes only, the following shall apply:

 

Section 3.1.   Series 2009-1 Series Accounts .

 

(a)           Establishment of Series 2009-1 Series Accounts .  HVF shall establish and maintain in the name of the Trustee for the benefit of the Series 2009-1 Noteholders three accounts: the Series 2009-1 Collection Account (such account, the “ Series 2009-1 Collection Account ”), the Series 2009-1 Accrued Interest Account (such account, the “ Series 2009-1 Accrued Interest Account ”) and the Series 2009-1 Excess Collection Account (such account, the “ Series 2009-1 Excess Collection Account ” and, together with the Series 2009-1 Collection Account and the Series 2009-1 Accrued Interest Account, the “ Series 2009-1 Series Accounts ”).  Each Series 2009-1 Series Account shall bear a designation clearly indicating that the funds deposited therein are held for the benefit of the Series 2009-1 Noteholders.  Each Series 2009-1 Series Account shall be an Eligible Deposit Account.  If a Series 2009-1 Series Account is at any time no longer an Eligible Deposit Account, HVF shall, within 10 Business Days of obtaining knowledge that such Series 2009-1 Series Account is no longer an Eligible Deposit Account, establish a new Series 2009-1 Series Account that is an Eligible Deposit Account.  If a new Series 2009-1 Series Account is established, HVF shall instruct the Trustee in writing to transfer all cash and investments from the non-qualifying Series 2009-1 Series Account into the new Series 2009-1 Series Account.  Initially, each of the Series 2009-1 Series Accounts will be established with The Bank of New York Mellon.

 

(b)           Administration of the Series 2009-1 Series Accounts .  HVF may instruct (by standing instructions or otherwise) the institution maintaining each of the Series 2009-1 Series Accounts to invest funds on deposit in such Series 2009-1 Series Account from time to time in Permitted Investments; provided , however , that (x) any such investment in the Series 2009-1 Excess Collection Account shall mature not later than the Business Day following the date on which such funds were received (including funds received upon a payment in respect of a Permitted Investment made with funds on deposit in the Series 2009-1 Excess Collection Account) and (y) any such investment in the Series 2009-1 Collection Account or the Series 2009-1 Accrued Interest Account shall mature not later than the Business Day prior to the first Payment Date following the date on which such funds were received (including funds received upon a payment in respect of a Permitted Investment made with funds on deposit in the Series 2009-1 Collection Account or Series 2009-1 Accrued Interest Account), unless any such Permitted Investment is held with the Trustee, then such investment may mature on such Payment Date so long as such funds shall be available for withdrawal on or prior to such Payment Date.  HVF shall not direct the Trustee to dispose of (or permit the disposal of)

 

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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 Series Accounts shall remain uninvested.

 

(c)           Earnings from Series 2009-1 Series Accounts .  All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Series 2009-1 Series Accounts shall be deemed to be on deposit therein and available for distribution.

 

(d)           Series 2009-1 Series Accounts Constitute 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 HVF’s right, title and interest in and to the following (whether now or hereafter existing or acquired):  (i) the Series 2009-1 Series Accounts, including any security entitlement thereto; (ii) all funds on deposit therein from time to time; (iii) all certificates and instruments, if any, representing or evidencing any or all of the Series 2009-1 Series Accounts or the funds on deposit therein from time to time; (iv) all investments made at any time and from time to time with monies in the Series 2009-1 Series Accounts, whether constituting securities, instruments, general intangibles, investment property, financial assets or other property; (v) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for the Series 2009-1 Series Accounts, the funds on deposit therein from time to time or the investments made with such funds; and (vi) all proceeds of any and all of the foregoing, including cash (the items in the foregoing clauses (i)  through (vi)  are referred to, collectively, as the “ Series 2009-1 Series Account Collateral ”).

 

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 :

 

(a)           Allocations of Collections During the Series 2009-1 Revolving Period .  During the Series 2009-1 Revolving Period, the Administrator will direct the Trustee in writing pursuant to the Administration Agreement, prior to 1:00 p.m. (New York City time) on each Series 2009-1 Deposit Date, to apply from all amounts deposited into the Collection Account as set forth below:

 

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(i)            allocate to and deposit in the Series 2009-1 Collection Account an amount equal to the sum of (A) the Series 2009-1 Invested Percentage (as of such day) of the aggregate amount of Interest Collections on such day and (B) any amounts received by the Trustee in respect of the Series 2009-1 Interest Rate Caps.  All such amounts deposited into the Series 2009-1 Collection Account shall thereafter be deposited into the Series 2009-1 Accrued Interest Account; and

 

(ii)           allocate to and deposit in the Series 2009-1 Excess Collection Account (A) an amount equal to the Series 2009-1 Invested Percentage (as of such day) of the aggregate amount of Principal Collections on such day, (B) on the Series 2009-1 Closing Date, the net proceeds from the issuance of the Series 2009-1 Notes and (C) on the date of any Increase, the proceeds of such Increase (for any such day, the “ Series 2009-1 Principal Allocation ”).

 

(b)           Allocation of Collections During the Series 2009-1 Controlled Amortization Period .   During the Series 2009-1 Controlled Amortization Period, the Administrator will direct the Trustee in writing pursuant to the Administration Agreement, prior to 1:00 p.m. (New York City time) on any Series 2009-1 Deposit Date, to apply from all amounts deposited into the Collection Account as set forth below:

 

(i)            allocate to and deposit in the Series 2009-1 Collection Account an amount determined as set forth in Section 3.2(a)(i)  above for such day, which amount shall be thereafter allocated to and deposited in the Series 2009-1 Accrued Interest Account; and

 

(ii)           allocate to and deposit in the Series 2009-1 Collection Account an amount equal to the Series 2009-1 Principal Allocation for such day, which amount, along with any amounts allocated from the Series 2009-1 Excess Collection Account to the Series 2009-1 Collection Account pursuant to Section 3.2(f) of this Series Supplement or allocated to the Series 2009-1 Collection Account pursuant to Section 3.2(e)  or Section 3.3(f)  of this Series Supplement, shall be used to make principal payments on a pro   rata basis in respect of the Series 2009-1 Notes on the Series 2009-1 Controlled Amortization Payment Date related to the Series 2009-1 Controlled Amortization Payment Period in which such allocation and deposits have been made in an amount equal to the Series 2009-1 Controlled Amortization Amount for such Series 2009-1 Controlled Amortization Payment Date; provided , however , that if, during any Series 2009-1 Controlled Amortization Payment Period, the aggregate amount of such daily Series 2009-1 Principal Allocations (together with the amount deposited in the Series 2009-1 Collection Account from the Series 2009-1 Excess Collection Account pursuant to Section 3.2(f)  of this Series Supplement or deposited in the Series 2009-1 Collection Account pursuant to Section 3.2(e)  or Section 3.3(f)  of this Series Supplement) exceeds the Series 2009-1 Controlled Amortization Amount for the related Series 2009-1 Controlled Amortization Payment Date, then the amount of such excess shall be deposited in the Series 2009-1 Excess Collection Account.

 

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(c)           Allocations of Collections During the Series 2009-1 Rapid Amortization Period .  During the Series 2009-1 Rapid Amortization Period, the Administrator will direct the Trustee in writing pursuant to the Administration Agreement, prior to 1:00 p.m. (New York City time) on any Series 2009-1 Deposit Date, to apply from all amounts deposited into the Collection Account as set forth below:

 

(i)            allocate to and deposit in the Series 2009-1 Collection Account an amount determined as set forth in Section 3.2(a)(i)  above for such day, which amount shall be thereafter allocated to and deposited in the Series 2009-1 Accrued Interest Account; and

 

(ii)           allocate to and deposit in the Series 2009-1 Collection Account an amount equal to the Series 2009-1 Principal Allocation for such day, which amount shall be used to make principal payments on a pro   rata basis in respect of the Series 2009-1 Notes until the Series 2009-1 Notes have been paid in full; 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 2009-1 Notes, any amounts payable to the Trustee in respect of any Series 2009-1 Interest Rate Caps and other amounts available pursuant to Section 3.3 of this Series Supplement to pay Series 2009-1 Monthly Interest on the next succeeding Payment Date will be less than the sum of the Series 2009-1 Monthly Interest for such Payment Date and (B) the Series 2009-1 Enhancement Amount is greater than zero, then the Administrator shall direct the Trustee in writing to withdraw from the Series 2009-1 Collection Account a portion of such Principal Collections allocated to the Series 2009-1 Notes during the related Series 2009-1 Rapid Amortization Payment Period) equal to the lesser of such insufficiency and the Series 2009-1 Enhancement Amount and deposit such amount into the Series 2009-1 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 2009-1 Lease Payment Deficit, the Lessee shall make a payment of Rent or other amount payable by the Lessee under the HVF Lease on or prior to the fifth Business Day after the occurrence of such Series 2009-1 Lease Payment Deficit (a “ Past Due Rent Payment ”), the Administrator shall direct the Trustee in writing pursuant to the Administration Agreement to allocate to and deposit in the Series 2009-1 Collection Account an amount equal to the Series 2009-1 Invested Percentage as of the date of the occurrence of such Series 2009-1 Lease Payment Deficit of the Collections attributable to such Past Due Rent Payment (the “ Series 2009-1 Past Due Rent Payment ”).  The Administrator shall instruct the Trustee in writing pursuant to the Administration Agreement to withdraw from the Series 2009-1 Collection Account and apply the Series 2009-1 Past Due Rent Payment in the following order:

 

(i)            if the occurrence of the related Series 2009-1 Lease Payment Deficit resulted in one or more Series 2009-1 LOC Credit Disbursements being made under the Series 2009-1 Letters of Credit, pay to each Series 2009-1 Letter of Credit Provider who made such a Series 2009-1 LOC Credit Disbursement for

 

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application in accordance with the provisions of the applicable Series 2009-1 Letter of Credit Reimbursement Agreement an amount equal to the lesser of (x) the unreimbursed amount of such Series 2009-1 Letter of Credit Provider’s Series 2009-1 LOC Credit Disbursement and (y) such Series 2009-1 Letter of Credit Provider’s pro rata share, calculated on the basis of the unreimbursed amount of each such Series 2009-1 Letter of Credit Provider’s Series 2009-1 LOC Credit Disbursement, of the amount of the Series 2009-1 Past Due Rent Payment;

 

(ii)           if the occurrence of such Series 2009-1 Lease Payment Deficit resulted in a withdrawal being made from the Series 2009-1 Cash Collateral Account, deposit in the Series 2009-1 Cash Collateral Account an amount equal to the lesser of (x) the amount of the Series 2009-1 Past Due Rent Payment remaining after any payments pursuant to clause (i)  above and (y) the amount withdrawn from the Series 2009-1 Cash Collateral Account on account of such Series 2009-1 Lease Payment Deficit;

 

(iii)          if the occurrence of such Series 2009-1 Lease Payment Deficit resulted in a withdrawal being made from the Series 2009-1 Reserve Account pursuant to Section 3.3(d)  of this Series Supplement, deposit in the Series 2009-1 Reserve Account an amount equal to the lesser of (x) the amount of the Series 2009-1 Past Due Rent Payment remaining after any payments pursuant to clauses (i)  and (ii)  above and (y) the excess, if any, of the Series 2009-1 Required Reserve Account Amount over the Series 2009-1 Available Reserve Account Amount on such day;

 

(iv)          deposit into the Series 2009-1 Accrued Interest Account the amount, if any, by which the Series 2009-1 Lease Interest Payment Deficit, if any, relating to such Series 2009-1 Lease Payment Deficit exceeds the amount of the Series 2009-1 Past Due Rent Payment applied pursuant to clauses (i)  through (iii)  above; and

 

(v)           deposit into the Series 2009-1 Excess Collection Account and treat as Principal Collections the remaining amount of the Series 2009-1 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 2009-1 Notes (i) during the Series 2009-1 Revolving Period shall be deposited into the Series 2009-1 Excess Collection Account and applied in accordance with Section 3.2(f)  of this Series Supplement and (ii) during the Series 2009-1 Controlled Amortization Period or the Series 2009-1 Rapid Amortization Period shall be deposited into the Series 2009-1 Collection Account and applied in accordance with Section 3.2(b)  or 3.2(c) , as the case may be, of this Series Supplement to make principal payments in respect of the Series 2009-1 Notes.

 

(f)            Series 2009-1 Excess Collection Account .  Amounts deposited into the Series 2009-1 Excess Collection Account on any Series 2009-1 Deposit Date

 

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prior to the commencement of the Series 2009-1 Rapid Amortization Period will be (i)  first , withdrawn and deposited in the Series 2009-1 Reserve Account in an amount up to the excess, if any, of the Series 2009-1 Required Reserve Account Amount for such date over the Series 2009-1 Available Reserve Account Amount for such date, (ii)  second , used to make a Mandatory Decrease, if applicable, in accordance with Sections 2.2(a)  and 3.5(e)  of this Series Supplement, (iii)  third , used to pay the principal amount of other Series of Notes that are then required to be paid or, at the option of HVF, to pay the principal amount of other Series of Notes that may be paid under the Indenture, (iv)  fourth , at the option of HVF to make a Voluntary Decrease in accordance with Sections 2.2(b)  and 3.5(e)  of this Series Supplement, (v)  fifth , used to pay Ford all unpaid Ford Reimbursement Obligations, and (vi)  sixth , any remaining funds may be released to HVF, in the case of clauses (iii)  through (vi) , only to the extent that no Series 2009-1 Enhancement Deficiency or other Amortization Event with respect to the Series 2009-1 Notes would result therefrom or exist immediately thereafter and in the case of clause (vi) only for so long as the Ford LOC Exposure Amount is greater than zero, solely to the extent that after giving effect to such payment or release, the Fleet Equity Condition would be satisfied.  Notwithstanding the foregoing, on the first day of the Series 2009-1 Controlled Amortization Period and, subject to the proviso to Section 3.2(b)(ii), on each Business Day thereafter or, if earlier, the first day of the Series 2009-1 Rapid Amortization Period, all funds on deposit in the Series 2009-1 Excess Collection Account (including amounts allocated thereto pursuant to Section 3.2(a)(ii), (b)(ii), (c)(ii) or (d)(v) of this Series Supplement and any amounts allocated thereto pursuant to Section 3.2(e) of this Series Supplement) will be withdrawn from the Series 2009-1 Excess Collection Account and deposited into the Series 2009-1 Collection Account and applied in accordance with Section 3.2(b)(ii)  or 3.2(c)(ii)  of this Series Supplement, as the case may be.

 

Section 3.3.   Application of Interest Collections .

 

On the fourth Business Day prior to each Payment Date, as provided below, the Administrator shall instruct the Trustee in writing pursuant to the Administration Agreement to withdraw, and on such Payment Date the Trustee, acting in accordance with such instructions, shall withdraw, the amounts required to be withdrawn from the Series 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.

 

(a)           Note Interest with respect to the Series 2009-1 Notes .  On the fourth Business Day prior to each Payment Date, the Administrator shall instruct the Trustee in writing pursuant to the Administration Agreement as to the amount to be withdrawn from the Series 2009-1 Accrued Interest Account to the extent funds are anticipated to be available from Interest Collections allocable to the Series 2009-1 Notes processed from but not including the preceding Payment Date through the succeeding Payment Date and any amounts payable to HVF under any Series 2009-1 Interest Rate Cap during that period in respect of (i)  first , (I) first an amount equal to the sum of (A) the Series 2009-1 Monthly Interest (excluding amounts referenced in clause (ii)  of the

 

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definition thereof to the extent duplicative of Series 2009-1 Deficiency Amounts payable under clause (ii)  below) for such Payment Date (the portion of such amount of Series 2009-1 Monthly Interest that will accrue for the period (each an, “ Estimated Interest Period ”) from and including the Determination Date immediately preceding such Payment Date to but excluding such Payment Date (such portion of the Series 2009-1 Monthly Interest with respect to any such Estimated Interest Period, the “ Estimated Interest ”) shall be estimated by the Administrator on such Determination Date) plus (B) the Estimated Interest Adjustment Amount with respect to such Determination Date and (II)  second , an amount equal to any Indenture Carrying Charges due to the Series 2009-1 Noteholders and unpaid as of such Payment Date which are not included in the definition of Series 2009-1 Monthly Interest, (ii)  second , an amount equal to the unpaid Series 2009-1 Deficiency Amounts, if any, as of the preceding Payment Date (together with any accrued interest on such Series 2009-1 Deficiency Amounts) and (iii)  third , an amount equal to the Series 2009-1 Monthly Default Interest Amount, if any, for such Payment Date.  On or before 10:00 a.m. (New York City time) on the following Payment Date, the Trustee shall withdraw the amounts described in the first sentence of this Section 3.3(a) , from the Series 2009-1 Accrued Interest Account and deposit such amounts into the Series 2009-1 Distribution Account.

 

On or before 4:00 p.m. (New York City time) on the Business Day immediately preceding each Determination Date, the Administrator shall notify the Trustee of any Estimated Interest Adjustment Amount with respect to such Determination Date, such notification to be in the form of Exhibit H to this Series Supplement (each an “ Estimated Interest Adjustment Notice ”).

 

(b)           Lease Payment Deficit Notice .  On or before 10:00 a.m. (New York City time) on each Payment Date, the Administrator shall notify the Trustee of the amount of any Series 2009-1 Lease Payment Deficit, such notification to be in the form of Exhibit C to this Series Supplement (each a “ Lease Payment Deficit Notice ”).

 

(c)           Withdrawals from the Series 2009-1 Reserve Account .  If the Administrator determines on any Payment Date that the amounts available from the Series 2009-1 Accrued Interest Account are insufficient to pay the sum of the amounts described in clauses (i)  and (ii)  of Section 3.3(a)  of this Series Supplement on such Payment Date, the Administrator shall instruct the Trustee in writing to withdraw from the Series 2009-1 Reserve Account and deposit in the Series 2009-1 Distribution Account on such Payment Date an amount equal to the lesser of the Series 2009-1 Available Reserve Account Amount and such insufficiency.  The Trustee shall withdraw such amount from the Series 2009-1 Reserve Account and deposit such amount in the Series 2009-1 Distribution Account.

 

(d)           Draws on Series 2009-1 Letters of Credit .  If the Administrator determines on any Payment Date that there exists a Series 2009-1 Lease Interest Payment Deficit, the Administrator shall instruct the Trustee in writing to draw on the Series 2009-1 Letters of Credit, if any, and, upon receipt of such notice by the Trustee on or prior to 10:30 a.m. (New York City time) on such Payment Date, the Trustee shall, by 12:00 p.m. (New York City time) on such Payment Date draw an amount, as set forth in such notice,

 

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equal to 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 this Series Supplement on such Payment Date 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 this Series Supplement on such Payment Date and (iii) the Series 2009-1 Letter of Credit Liquidity Amount on the Series 2009-1 Letters of Credit by presenting to each Series 2009-1 Letter of Credit Provider a draft accompanied by a Series 2009-1 Certificate of Credit Demand and shall cause the Series 2009-1 LOC Credit Disbursements to be deposited in the Series 2009-1 Distribution Account on such Payment Date; provided , however , that if the Series 2009-1 Cash Collateral Account has been established and funded, the Trustee shall withdraw from the Series 2009-1 Cash Collateral Account and deposit in the Series 2009-1 Distribution Account an amount equal to the lesser of (x) the Series 2009-1 Cash Collateral Percentage on such Payment Date of the least of the amounts described in clauses (i) , (ii)  or (iii)  above and (y) the Series 2009-1 Available Cash Collateral Account Amount on such Payment Date and draw an amount equal to the remainder of such amount on the Series 2009-1 Letters of Credit.

 

(e)           Deficiency Amounts .  If the amounts described in Sections 3.3(a) , (b) , (c)  and (d)  of this Series Supplement are insufficient to pay the Series 2009-1 Monthly Interest for any Payment Date, payments of interest to the Series 2009-1 Noteholders will be reduced on a pro   rata basis by the amount of such deficiency.  The aggregate amount, if any, of such deficiency on any Payment Date allocable to the Series 2009-1 Notes shall be referred to as the “ Series 2009-1 Deficiency Amount ”.  Interest shall accrue on the Series 2009-1 Deficiency Amount at the applicable Series 2009-1 Note Rate.

 

(f)            Balance .  On the fourth Business Day prior to each Payment Date, the Administrator shall instruct the Trustee in writing pursuant to the Administration Agreement to pay, on such Payment Date, the balance (after making the payments required in Section 3.4 of this Series Supplement), if any, of the amounts available from the Series 2009-1 Accrued Interest Account as follows:

 

(i)            first , to the Administrator, in an amount equal to the Series 2009-1 Percentage as of the beginning of the Series 2009-1 Interest Period ending on the day preceding such Payment Date of the Monthly Administration Fee for such Series 2009-1 Interest Period;

 

(ii)           second , to the Trustee, in an amount equal to the Series 2009-1 Percentage as of the beginning of the Series 2009-1 Interest Period ending on the day preceding such Payment Date of the Trustee’s fees for such Series 2009-1 Interest Period;

 

(iii)          third , on a pro   rata basis, to pay any Indenture Carrying Charges to the Persons to whom such amounts are owed, in an amount equal to the Series 2009-1 Percentage as of the beginning of the Series 2009-1 Interest Period ending on the day preceding such Payment Date of such Indenture Carrying Charges

 

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(other than Indenture Carrying Charges provided for above) for such Series 2009-1 Interest Period; and

 

(iv)          fourth , the balance, if any, shall be withdrawn from the Series 2009-1 Accrued Interest Account by the Trustee and (A) during the Series 2009-1 Revolving Period, deposited into the Series 2009-1 Excess Collection Account or (B) during the Series 2009-1 Controlled Amortization Period or the Series 2009-1 Rapid Amortization Period, deposited into the Series 2009-1 Collection Account and treated as Principal Collections.

 

(g)           Trustee Fees . If, on any Payment Date after the occurrence and during the continuance of a Liquidation Event of Default or a Limited Liquidation Event of Default, (x) the funds available to pay the Trustee fees pursuant to Section 3.3(f)(ii)  of this Series Supplement on such Payment Date are less than the amount payable to the Trustee thereunder on such Payment Date or (y) the funds available to pay the portion of the Indenture Carrying Charges payable to the Trustee pursuant to Section 3.3(f)(iii)  of this Series Supplement on such Payment Date are less than the amount payable to the Trustee thereunder on such Payment Date, the Administrator shall instruct the Trustee in writing to withdraw from the Series 2009-1 Reserve Account and pay to itself on such Payment Date an amount equal to the least of (A) the Series 2009-1 Available Reserve Account Amount on such Payment Date (after giving effect to any deposits thereto and withdrawals and releases therefrom on such date), (B) an amount equal to the excess, if any, of (i) 0.70% of the Series 2009-1 Required Asset Amount as of the date of the occurrence of such Liquidation Event of Default or Limited Liquidation Event of Default over (ii) the aggregate of the amounts previously withdrawn from the Series 2009-1 Reserve Account under this Section 3.3(g)  in respect of fees and other amounts due and owing to the Trustee and (C) such insufficiency.  The Trustee shall withdraw such amounts from the Series 2009-1 Reserve Account and pay or reimburse itself.

 

Section 3.4.    Payment of Note Interest .  On each Payment Date, the Trustee shall, in accordance with Section 6.1 of the Base Indenture, pay to the Series 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.

 

Section 3.5.   Payment of Note Principal.

 

(a)           Monthly Payments During Series 2009-1 Controlled Amortization Period or Series 2009-1 Rapid Amortization Period .  Commencing on the earlier to occur of (i) the Determination Date immediately preceding the first Series 2009-1 Controlled Amortization Payment Date, or (ii) the first Determination Date after the commencement of the Series 2009-1 Rapid Amortization Period and on each Determination Date thereafter, the Administrator shall instruct the Trustee in writing pursuant to the Administration Agreement as to (v) the amount allocated to the Series 2009-1 Notes pursuant to Section 3.2(b)(ii)  or 3.2(c)(ii)  of this Series Supplement, as the case may be, and any amounts allocated from the Series 2009-1 Excess Collection Account to the Series 2009-1 Collection Account pursuant to Section 3.2(f)  of this Series 

 

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Supplement and/or allocated to the Series 2009-1 Collection Account pursuant to Section 3.2(e)  or Section 3.3(f)  of this Series Supplement, in each case, prior to such date and not  previously deposited into the Series 2009-1 Distribution Account for payment to the Series 2009-1 Noteholders and the amount of the portion of the Monthly Base Rent under the HVF Lease that will be allocated to the Series 2009-1 Notes pursuant to Section 3.2(b)(ii)  or 3.2(c)(ii)  of this Series Supplement, as the case may be, (w) any amounts to be withdrawn from the Series 2009-1 Reserve Account and deposited into the Series 2009-1 Distribution Account, (x) any amounts to be drawn on the Series 2009-1 Letters of Credit (and/or withdrawn from the Series 2009-1 Cash Collateral Account) and (y) the amount of any demand to be made under the Series 2009-1 Demand Note.  On each Series 2009-1 Controlled Amortization Payment Date and the Expected Final Payment Date, the Trustee shall withdraw such amounts from the Series 2009-1 Collection Account allocated to pay principal of the Series 2009-1 Notes during the related Series 2009-1 Controlled Amortization Payment Period and deposit such amount together with the proceeds of any demand made on the Series 2009-1 Demand Note received during the period from but excluding the immediately preceding Payment Date to and including such Payment Date into the Series 2009-1 Distribution Account, which amount and any other amounts deposited in the Series 2009-1 Distribution Account for the payment of principal of such Series 2009-1 Notes pursuant to Section 3.5(b)  of this Series Supplement during the related Series 2009-1 Controlled Amortization Payment Period shall be paid to the Series 2009-1 Noteholders in accordance with Section 3.5(e)(ii)  or 3.5(e)(iii)  of this Series Supplement, as the case may be.  On the Payment Date following each such Determination Date during the Series 2009-1 Rapid Amortization Period, the Trustee shall withdraw such amounts allocated to pay principal of the Series 2009-1 Notes from the Series 2009-1 Collection Account and deposit such amount together with the proceeds of any demand made on the Series 2009-1 Demand Note received during the period from but excluding the immediately preceding Payment Date to and including such Payment Date into the Series 2009-1 Distribution Account along with any other amounts deposited in the Series 2009-1 Distribution Account for the payment of principal of such Series 2009-1 Notes pursuant to Section 3.5(b)  of this Series Supplement and any amounts deposited in the Series 2009-1 Distribution Account pursuant to Section 3.5(c) of this Series Supplement, in each case, during the related Series 2009-1 Rapid Amortization Payment Period, which amount shall be paid to the Series 2009-1 Noteholders until the Series 2009-1 Noteholders have been paid the Series 2009-1 Principal Amount in full.

 

(b)           Principal Deficit Amount .  If the Principal Deficit Amount is greater than zero on any date or the Administrator determines that there exists a Series 2009-1 Lease Principal Payment Deficit, the Administrator shall promptly provide written notice thereof to the Administrative Agent and the Trustee.  On each Payment Date on which the Principal Deficit Amount is greater than zero or a Series 2009-1 Lease Principal Payment Deficit exists, amounts shall be transferred to the Series 2009-1 Distribution Account as follows:

 

(i)            Series 2009-1 Reserve Account Withdrawal .  On each Payment Date on which the Principal Deficit Amount is greater than zero, the Administrator shall instruct the Trustee in writing prior to 12:00 noon (New York

 

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City time) on such Payment Date, in the case of a Principal Deficit Amount resulting from a Series 2009-1 Lease Payment Deficit, or prior to 12:00 noon (New York City time) on the second Business Day prior to such Payment Date, in the case of any other Principal Deficit Amount, to withdraw from the Series 2009-1 Reserve Account, an amount equal to the lesser of (x) such Principal Deficit Amount and (y) the Series 2009-1 Available Reserve Account Amount on such Payment Date (after giving effect to any withdrawals from the Series 2009-1 Reserve Account on such Payment Date pursuant to Section 3.3(c)  of this Series Supplement), and deposit such withdrawal in the Series 2009-1 Distribution Account on such Payment Date.

 

(ii)           Principal Draws on Series 2009-1 Letters of Credit .  If the Administrator determines on any Payment Date that there exists a Series 2009-1 Lease Principal Payment Deficit that exceeds the amount, if any, withdrawn from the Series 2009-1 Reserve Account in accordance with clause (i)  of this Section 3.5(b) , then the Administrator shall instruct the Trustee in writing to draw on the Series 2009-1 Letters of Credit, if any, in an amount equal to the least of (1) the excess 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 clause (i)  of this Section 3.5(b) , (2) the Series 2009-1 Letter of Credit Liquidity Amount (after giving effect to any drawings on the Series 2009-1 Letters of Credit on such Payment Date pursuant to Section 3.3(d)  of this Series Supplement) and (3)  on any date that is prior to the Legal Final Payment Date occurring during the period commencing on and including the date of the filing by Hertz of a petition for relief under Chapter 11 of the Bankruptcy Code to but excluding the date on which Hertz shall have resumed making all payments of Monthly Variable Rent required to be made under the HVF Lease, the excess, if any, of the Principal Deficit Amount over the amount, if any, withdrawn from the Series 2009-1 Reserve Account in accordance with clause (i)  of this Section 3.5(b) .  Upon receipt of a notice by the Trustee from the Administrator in respect of a Series 2009-1 Lease Principal Payment Deficit on or prior to 10:30 a.m. (New York City time) on a Payment Date, the Trustee shall, by 12:00 p.m. (New York City time) on such Payment Date draw an amount as set forth in such notice equal to the applicable amount set forth above on the Series 2009-1 Letters of Credit by presenting to each Series 2009-1 Letter of Credit Provider a draft accompanied by a Series 2009-1 Certificate of Credit Demand and shall cause the Series 2009-1 LOC Credit Disbursements to be deposited in the Series 2009-1 Distribution Account on such Payment Date; provided , however , that if the Series 2009-1 Cash Collateral Account has been established and funded, the Trustee shall withdraw from the Series 2009-1 Cash Collateral Account and deposit in the Series 2009-1 Distribution Account an amount equal to the lesser of (x) the Series 2009-1 Cash Collateral Percentage on such Payment Date of the amount set forth in the notice provided to the Trustee by the Administrator and (y) the Series 2009-1 Available Cash Collateral Account Amount on such Payment Date and draw an amount equal to the remainder of such amount on the Series 2009-1 Letters of Credit.

 

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(iii)          Demand Note Draw .  If on any Determination Date, the Administrator determines that the Principal Deficit Amount on the next succeeding Payment Date (after giving effect to the withdrawal from the Series 2009-1 Reserve Account on such Payment Date pursuant to clause (i)  of this Section 3.5(b)  of this Series Supplement and any drawings on the Series 2009-1 Letters of Credit on such Payment Date pursuant to clause (ii)  of this Section 3.5(b) ) will be greater than zero, then, prior to 10:00 a.m. (New York City time) on the second Business Day prior to such Payment Date, the Administrator shall instruct the Trustee in writing (and provide the requisite information to the Trustee) to deliver a demand notice substantially in the form of Exhibit G-1 (each a “ Demand Notice ”) on Hertz for payment under the Series 2009-1 Demand Note in an amount equal to the lesser of (i) the Principal Deficit Amount less the amount to be deposited in the Series 2009-1 Distribution Account in accordance with clauses (i)  and/or (ii)  of this Section 3.5(b)  of this Series Supplement and (ii) the principal amount of the Series 2009-1 Demand Note.  The Trustee shall, prior to 12:00 noon (New York City time) on the second Business Day preceding such Payment Date, deliver such Demand Notice to Hertz; provided , however , that if an Event of Bankruptcy (or the occurrence of an event described in clause (a)  of the definition thereto, without the lapse of a period of 60 consecutive days) with respect to Hertz shall have occurred and be continuing, the Trustee shall not be required to deliver such Demand Notice to Hertz.  The Trustee shall cause the proceeds of any demand on the Series 2009-1 Demand Note to be deposited into the Series 2009-1 Distribution Account, and such proceeds shall be treated as Principal Collections.

 

(iv)          Letter of Credit Draw .  If (1) the Trustee shall have delivered a Demand Notice as provided in Section 3.5(b)(iii)  of this Series Supplement and Hertz shall have failed to pay to the Trustee or deposit into the Series 2009-1 Distribution Account the amount specified in such Demand Notice in whole or in part by 12:00 noon (New York City time) on the Business Day following the making of the Demand Notice, (2) due to the occurrence of an Event of Bankruptcy (or the occurrence of an event described in clause (a)  of the definition thereof, without the lapse of a period of 60 consecutive days) with respect to Hertz, the Trustee shall not have delivered such Demand Notice to Hertz or (3) there is a Preference Amount, the Trustee shall draw on the Series 2009-1 Letters of Credit, if any, by 12:00 p.m. (New York City time) on such Business Day in an amount equal to the lesser of (A) the amount that Hertz failed to pay under the Series 2009-1 Demand Note, the amount that the Trustee failed to demand for payment thereunder or the Preference Amount, as the case may be; and (B) the Series 2009-1 Letter of Credit Amount on such Business Day, by presenting to each Series 2009-1 Letter of Credit Provider a draft accompanied by a Series 2009-1 Certificate of Unpaid Demand Note Demand or, in the case of a Preference Amount, a Series 2009-1 Certificate of Preference Payment Demand; provided , however that if the Series 2009-1 Cash Collateral Account has been established and funded, the Trustee shall withdraw from the Series 2009-1 Cash Collateral Account and deposit in the Series 2009-1 Distribution Account an amount equal to the lesser of (x) the Series 2009-1 Cash Collateral Percentage on

 

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such Business Day of the lesser of the amounts set forth in clause (A)  and (B)  above and (y) the Series 2009-1 Available Cash Collateral Account Amount on such Business Day and draw an amount equal to the remainder of such amount on the Series 2009-1 Letters of Credit.  The Trustee shall deposit, or cause the deposit of, the proceeds of any such draw on the Series 2009-1 Letters of Credit and the proceeds of any such withdrawal from the Series 2009-1 Cash Collateral Account into the Series 2009-1 Distribution Account and such proceeds shall be treated as Principal Collections.

 

(c)           Legal Final Payment Dates .  The Series 2009-1 Principal Amount shall be due and payable on the Legal Final Payment Date.  In connection therewith:

 

(i)            Reserve Account Withdrawal .  If the amount to be deposited in the Series 2009-1 Distribution Account in accordance with Section 3.5(a)  of this Series Supplement with respect to the Legal Final Payment Date together with any amounts to be deposited therein in accordance with Section 3.5(b)  of this Series Supplement on the Legal Final Payment Date, in each case, to pay principal of the Series 2009-1 Notes, is less than the Series 2009-1 Principal Amount on the Legal Final Payment Date, prior to 10:30 a.m. (New York City time) on the second Business Day prior to the Legal Final Payment Date, the Administrator shall instruct the Trustee to withdraw from the Series 2009-1 Reserve Account, an amount equal to the lesser of (i) the Series 2009-1 Available Reserve Account Amount (after giving effect to any withdrawals from the Series 2009-1 Reserve Account pursuant to Section 3.3(c)  and Section 3.5(b)(i)  of this Series Supplement), and (ii) such insufficiency, and deposit such withdrawn amounts in the Series 2009-1 Distribution Account on the Legal Final Payment Date.  The Trustee shall withdraw such amounts from the Series 2009-1 Reserve Account and deposit such amounts in the Series 2009-1 Distribution Account on or prior to the Legal Final Payment Date.

 

(ii)           Demand Note Draw .  If the amount to be deposited in the Series 2009-1 Distribution Account pursuant to Section 3.5(a)  of this Series Supplement together with any amounts to be deposited therein in accordance with Section 3.5(b)  and Section 3.5(c)(i)  of this Series Supplement on the Legal Final Payment Date is less than the Series 2009-1 Principal Amount, then, prior to 10:00 a.m. (New York City time) on the second Business Day prior to the Legal Final Payment Date, the Administrator shall instruct the Trustee in writing (and provide the requisite information to the Trustee) to deliver a Demand Notice to Hertz for payment under the Series 2009-1 Demand Note in an amount equal to the lesser of (i) such insufficiency and (ii) the principal amount of the Series 2009-1 Demand Note.  The Trustee shall, prior to 12:00 noon (New York City time) on the second Business Day preceding the Legal Final Payment Date, deliver such Demand Notice to Hertz; provided , however , that if an Event of Bankruptcy (or the occurrence of an event described in clause (a)  of the definition thereof, without the lapse of a period of 60 consecutive days) with respect to Hertz shall have occurred and be continuing, the Trustee shall not be required to deliver such Demand Notice to Hertz.  The Trustee shall cause the proceeds of

 

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any demand on the Series 2009-1 Demand Note to be deposited into the Series 2009-1 Distribution Account, 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 3.5(c)(ii)  of this Series Supplement and Hertz shall have failed to pay to the Trustee or deposit into the Series 2009-1 Distribution Account the amount specified in such Demand Notice referred to in Section 3.5(c)(ii)  of this Series Supplement in whole or in part by 12:00 noon (New York City time) on the Business Day following the making of the Demand Notice, (2) due to the occurrence of an Event of Bankruptcy (or the occurrence of an event described in clause (a)  of the definition thereof, without the lapse of a period of 60 consecutive days) with respect to Hertz, the Trustee shall not have delivered such Demand Notice to Hertz or (3) there is a Preference Amount, the Trustee shall draw on the Series 2009-1 Letters of Credit, if any, by 12:00 p.m. (New York City time) on such Business Day an amount equal to the lesser of (A) the amount that Hertz failed to pay under the Series 2009-1 Demand Note (or the amount that the Trustee failed to demand for payment thereunder) or the Preference Amount, as the case may be; and (B) the Series 2009-1 Letter of Credit Amount on such Business Day, by presenting to each Series 2009-1 Letter of Credit Provider a draft accompanied by a Series 2009-1 Certificate of Unpaid Demand Note Demand or, in the case of a Preference Amount, a Series 2009-1 Certificate of Preference Demand; provided , however that if the Series 2009-1 Cash Collateral Account has been established and funded, the Trustee shall withdraw from the Series 2009-1 Cash Collateral Account and deposit in the Series 2009-1 Distribution Account an amount equal to the lesser of (x) the Series 2009-1 Cash Collateral Percentage on such Business Day of the lesser of the amounts set forth in clause (A)  and (B)  above and (y) the Series 2009-1 Available Cash Collateral Account Amount on such Business Day and draw an amount equal to the remainder of such amount on the Series 2009-1 Letters of Credit.  The Trustee shall deposit, or cause the deposit of, the proceeds of any such draw on the Series 2009-1 Letters of Credit and the proceeds of any such withdrawal from the Series 2009-1 Cash Collateral Account into the Series 2009-1 Distribution Account 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 pursuant to Section 3.5(a)  of this Series Supplement and any amounts are deposited in the Series 2009-1 Distribution Account for the payment of principal of such Series 2009-1 Notes pursuant to Section 3.5(b)  of this Series Supplement and/or Section 3.5(c)  of this Series Supplement, the Trustee shall, in accordance with Section 6.1 of the Base Indenture, pay to the Series 2009-1 Noteholders the amount deposited in the Series 2009-1 Distribution Account for the payment of principal of the Series 2009-1 Notes held by such Series 2009-1 Noteholders pursuant to Section 3.5(a)  of this Series Supplement and Section 3.5(e)(ii)  or 3.5(e)(iii)  of this Series Supplement, as applicable.  After the commencement of the Series 2009-1 Controlled Amortization Period or the Series 2009-1 Rapid Amortization Period and the payment in full of the Series 2009-1 Principal Amount, any remaining Principal Collections allocated

 

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to the Series 2009-1 Notes in accordance with Section 3.2(b) or (c) of this Series Supplement shall be withdrawn from the Series 2009-1 Collection Account and/or the Series 2009-1 Excess Collection Account and used to pay any remaining amounts payable by the Issuer pursuant to this Series Supplement or the Series 2009-1 Note Purchase Agreement in accordance with the priorities set forth in Sections 3.3(a)  and (f)  of this Series Supplement.

 

(e)           Decreases .  (i)  On any Business Day on which (a) a Mandatory Decrease pursuant to Section 2.2(a)  of this Series Supplement shall be declared, the Trustee shall withdraw from the Series 2009-1 Excess Collection Account in accordance with the written instructions of the Administrator an amount equal to the lesser of (x) the funds then allocated to the Series 2009-1 Excess Collection Account and available for payment of such Mandatory Decrease pursuant to Section 3.2(f)  of this Series Supplement and (y) the amount of such Mandatory Decrease, and distribute on a pro   rata basis such amount to the Series 2009-1 Noteholders as a payment of principal of the Series 2009-1 Notes or (b) a Voluntary Decrease pursuant to Section 2.2(b)  of this Series Supplement shall be declared, the Trustee shall distribute the amounts withdrawn from the Series 2009-1 Excess Collection Account (and available for payment of such Voluntary Decrease pursuant to Section 3.2(f)  of this Series Supplement) and/or the Series 2009-1 Collection Account (and available in such account for payment of principal of the Series 2009-1 Notes) on a pro rata basis to the Series 2009-1 Noteholders as a payment of principal of the Series 2009-1 Notes.

 

(ii)           On each Series 2009-1 Controlled Amortization Payment Date other than the Expected Final Payment Date, after giving effect to deposits in the Series 2009-1 Distribution Account pursuant to Sections 3.5(a)  and 3.5(b)  of this Series Supplement, the Trustee shall withdraw from the Series 2009-1 Distribution Account an amount equal to the lesser of (x) the funds on deposit in the Series 2009-1 Distribution Account and available for payment of principal of the Series 2009-1 Notes and (y) the Series 2009-1 Controlled Amortization Amount in respect of such Series 2009-1 Controlled Amortization Payment Date, and distribute such amount to the Series 2009-1 Noteholders on a pro   rata basis as payment of principal of the Series 2009-1 Notes.

 

(iii)          On the Expected Final Payment Date, after giving effect to deposits in the Series 2009-1 Distribution Account pursuant to Sections 3.5(a)  and (b)  of this Series Supplement, the Trustee shall withdraw from the Series 2009-1 Distribution Account an amount equal to the lesser of (x) the funds on deposit in the Series 2009-1 Distribution Account and available for payment of principal of the Series 2009-1 Notes and (y) the Series 2009-1 Principal Amount on such date, and distribute such amount to the Series 2009-1 Noteholders on a pro   rata basis as payment of principal of the Series 2009-1 Notes until the Series 2009-1 Noteholders have been paid the Series 2009-1 Principal Amount in full.

 

Section 3.6.   Payment by Wire Transfer .  On each Payment Date, pursuant to Section 6.1 of the Base Indenture and Sections 3.4 and 3.5 hereof, the Trustee shall cause the amounts (to the extent received by the Trustee) set forth in Section 3.4 or 3.5 of this Series Supplement to be paid by wire transfer of immediately available funds

 

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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 Administrator’s Failure to Instruct the Trustee to Make a Deposit or Payment .  If the Administrator fails to give notice or instructions to make any payment from or deposit into the Collection Account or any Series 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.

 

Section 3.8.   Series 2009-1 Reserve Account .

 

(a)           Establishment of Series 2009-1 Reserve Account .  HVF 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 Reserve 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 Reserve Account shall be an Eligible Deposit Account.  If the Series 2009-1 Reserve Account is at any time no longer an Eligible Deposit Account, HVF shall, within 10 Business Days of obtaining knowledge that the Series 2009-1 Reserve Account is no longer an Eligible Deposit Account, establish a new Series 2009-1 Reserve Account that is an Eligible Deposit Account.  If a new Series 2009-1 Reserve Account is established, HVF shall instruct the Trustee in writing to transfer all cash and investments from the non-qualifying Series 2009-1 Reserve Account into the new Series 2009-1 Reserve Account.  Initially, the Series 2009-1 Reserve Account will be established with the Trustee.

 

(b)           Administration of the Series 2009-1 Reserve Account .  HVF may instruct (by standing instructions or otherwise) the institution maintaining the Series 2009-1 Reserve Account to invest funds on deposit in the Series 2009-1 Reserve Account from time to time in Permitted Investments; provided , however , that any such investment shall mature not later than the Business Day prior to the first Payment Date following the date on which such funds were received (including funds received upon a payment in

 

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respect of a Permitted Investment made with funds on deposit in the Series 2009-1 Reserve Account), unless any Permitted Investment held in the Series 2009-1 Reserve Account is held with the Trustee, then such investment may mature on such Payment Date so long as such funds shall be available for withdrawal on or prior to such Payment Date.  HVF shall not direct the Trustee to dispose of (or permit the disposal of) any Permitted Investments prior to the maturity thereof to the extent such disposal would result in a loss of the initial purchase price of such Permitted Investment.  In the absence of written investment instructions hereunder, funds on deposit in the Series 2009-1 Reserve Account shall remain uninvested.

 

(c)           Earnings from Series 2009-1 Reserve Account .  All interest and earnings (net of losses and investment expenses) paid on funds on deposit in the Series 2009-1 Reserve Account shall be deemed to be on deposit therein and available for distribution.

 

(d)           Series 2009-1 Reserve 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 HVF’s right, title and interest in and to the following (whether now or hereafter existing or acquired):  (i) the Series 2009-1 Reserve Account, including any security entitlement thereto; (ii) all funds on deposit therein from time to time; (iii) all certificates and instruments, if any, representing or evidencing any or all of the Series 2009-1 Reserve Account or the funds on deposit therein from time to time; (iv) all investments made at any time and from time to time with monies in the Series 2009-1 Reserve Account, whether constituting securities, instruments, general intangibles, investment property, financial assets or other property; (v) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for the Series 2009-1 Reserve Account, the funds on deposit therein from time to time or the investments made with such funds; and (vi) all proceeds of any and all of the foregoing, including cash (the items in the foregoing clauses (i)  through (vi)  are referred to, collectively, as the “ Series 2009-1 Reserve Account Collateral ”).

 

(e)           Series 2009-1 Reserve Account Surplus .  In the event that the Series 2009-1 Reserve Account Surplus on any Payment Date is greater than zero, the Trustee, acting in accordance with the written instructions of the Administrator (with a copy to the Administrative Agent), shall withdraw from the Series 2009-1 Reserve Account an amount equal to the Series 2009-1 Reserve Account Surplus and pay such Series 2009-1 Reserve Account Surplus to HVF.

 

(f)            Termination of Series 2009-1 Reserve Account .  On or after the date on which the Series 2009-1 Notes are fully paid and Ford has been paid all unpaid Ford Reimbursement Obligations and, 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, acting in accordance with the written instructions of the Administrator, shall withdraw from the

 

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Series 2009-1 Reserve Account all remaining amounts on deposit therein for payment to HVF.

 

Section 3.9.   Series 2009-1 Letters of Credit and Series 2009-1 Cash Collateral Accounts .

 

(a)           Series 2009-1 Cash Collateral 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 HVF’s right, title and interest in and to the following (whether now or hereafter existing or acquired):  (i) the Series 2009-1 Cash Collateral Account, including any security entitlement thereto; (ii) all funds on deposit in the Series 2009-1 Cash Collateral Account from time to time; (iii) all certificates and instruments, if any, representing or evidencing any or all of the Series 2009-1 Cash Collateral Account or the funds on deposit therein from time to time; (iv) all investments made at any time and from time to time with monies in the Series 2009-1 Cash Collateral Account, whether constituting securities, instruments, general intangibles, investment property, financial assets or other property; (v) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for the Series 2009-1 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 cash (the items in the foregoing clauses (i)  through (vi)  are referred to, collectively, as the “ Series 2009-1 Cash Collateral Account Collateral ”).

 

(b)           Series 2009-1 Letter of Credit Expiration Date . If prior to the date which is sixteen (16) Business Days prior to the then scheduled Series 2009-1 Letter of Credit Expiration Date with respect to any Series 2009-1 Letter of Credit, excluding the amount available to be drawn under such 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, (i) the Series 2009-1 Adjusted Enhancement Amount would be equal to or greater than the Series 2009-1 Required Enhancement Amount, (ii) the Series 2009-1 Adjusted Liquidity Amount would be equal to or greater than the Series 2009-1 Required Liquidity Amount, or (iii) the Series 2009-1 Letter of Credit Liquidity Amount would be equal to or greater than the Series 2009-1 Demand Note Payment Amount, then the Administrator shall notify the Trustee and the Administrative Agent in writing no later than fifteen (15) Business Days prior to such Series 2009-1 Letter of Credit Expiration Date of such determination.  If prior to the date which is sixteen (16) Business Days prior to the then scheduled Series 2009-1 Letter of Credit Expiration Date with respect to any Series 2009-1 Letter of Credit, excluding such 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, (i)  the Series 2009-1 Adjusted Enhancement Amount would be less than the Series 2009-1 Required Enhancement Amount, (ii) the Series 2009-1 Adjusted Liquidity Amount would be less than the Series 2009-1 Required Liquidity Amount, or (iii) the Series 2009-1

 

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Letter of Credit Liquidity Amount would be less than the Series 2009-1 Demand Note Payment Amount, then the Administrator shall notify the Trustee and the Administrative Agent in writing no later than fifteen (15) Business Days prior to such Series 2009-1 Letter of Credit Expiration Date 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 such 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 such 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 such 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 drawn on such expiring Series 2009-1 Letter of Credit on such date.  Upon receipt of such notice by the Trustee on or prior to 10:30 a.m. (New York City time) on any Business Day, the Trustee shall, by 12:00 p.m. (New York City time) on such Business Day (or, in the case of any notice given to the Trustee after 10:30 a.m. (New York City time), by 12:00 p.m. (New York City time) on the next following Business Day), draw the lesser of the amounts set forth in clauses (x)  and (y)  above on such Series 2009-1 Letter of Credit by presenting a draft accompanied by a Series 2009-1 Certificate of Termination Demand and shall cause the Series 2009-1 LOC Termination Disbursements to be deposited in the Series 2009-1 Cash Collateral Account.  If the Trustee does not receive the notice from the Administrator described above on or prior to the date that is fifteen (15) Business Days prior to each Series 2009-1 Letter of Credit Expiration Date, the Trustee shall, by 12:00 p.m. (New York City time) on such Business Day draw the full amount of such Series 2009-1 Letter of Credit by presenting a draft accompanied by a Series 2009-1 Certificate of Termination Demand and shall cause the Series 2009-1 LOC Termination Disbursements to be deposited in the applicable Series 2009-1 Cash Collateral Account.

 

(c)           Series 2009-1 Letter of Credit Providers .  The Administrator shall notify the Trustee and the Administrative Agent in writing within one Business Day of becoming aware that the short-term debt credit rating of any Series 2009-1 Letter of Credit Provider has fallen below “P-1” as determined by Moody’s or “A-1” as determined by Standard & Poor’s or the long-term debt credit rating of any Series 2009-1 Letter of Credit Provider has fallen below “A1” as determined by Moody’s or “A” as determined by Standard & Poor’s (with respect to any Series 2009-1 Letter of Credit Provider, a “ Series 2009-1 Downgrade Event ”).  On the thirtieth (30th) day after the occurrence of a Series 2009-1 Downgrade Event with respect to any Series 2009-1 Letter of Credit Provider, the Administrator shall notify the Trustee and the Administrative Agent in writing on such date of (i) the greatest of (A) the excess, if any, of the Series 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 issued by such Series 2009-1 Letter of Credit Provider, on such date, (B) the excess, if any, of

 

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the Series 2009-1 Required Liquidity Amount over the Series 2009-1 Adjusted Liquidity Amount, excluding the available amount under such 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 such Series 2009-1 Letter of Credit, on such date, and (ii) the amount available to be drawn on such Series 2009-1 Letter of Credit on such date.  Upon receipt of such notice by the Trustee on or prior to 10:30 a.m. (New York City time) on any Business Day, the Trustee shall, by 12:00 p.m. (New York City time) on such Business Day (or, in the case of any notice given to the Trustee after 10:30 a.m. (New York City time), by 12:00 p.m. (New York City time) on the next following Business Day), draw on such Series 2009-1 Letter of Credit in an amount equal to the lesser of the amount in clause (i)  or clause (ii)  of the immediately preceding sentence on such Business Day by presenting a draft accompanied by a Series 2009-1 Certificate of Termination Demand and shall cause the Series 2009-1 LOC Termination Disbursement to be deposited in a Series 2009-1 Cash Collateral Account.

 

(d)           Reductions in Stated Amounts of the Series 2009-1 Letters of Credit.   If the Trustee receives a written notice from the Lessee, substantially in the form of Exhibit D , requesting a reduction in the stated amount of any Series 2009-1 Letter of Credit, the Trustee shall within two Business Days of the receipt of such notice deliver to the Series 2009-1 Letter of Credit Provider who issued such Series 2009-1 Letter of Credit a Series 2009-1 Notice of Reduction requesting a reduction in the stated amount of such Series 2009-1 Letter of Credit in the amount requested in such notice effective on the date set forth in such notice, provided that on such effective date, after giving effect to the requested reduction in the stated amount of such Series 2009-1 Letter of Credit, (i) the Series 2009-1 Adjusted Enhancement Amount will equal or exceed the Series 2009-1 Required Enhancement Amount, (ii) the Series 2009-1 Adjusted Liquidity Amount will equal or exceed the Series 2009-1 Required Liquidity Amount, and (iii) the Series 2009-1 Letter of Credit Liquidity Amount will equal or exceed the Series 2009-1 Demand Note Payment Amount.

 

(e)           Draws on the Series 2009-1 Letters of Credit.   If there is more than one Series 2009-1 Letter of Credit on the date of any draw on the Series 2009-1 Letters of Credit pursuant to the terms of this Series Supplement (other than pursuant to Sections 3.9(b)  and (c)  of this Series Supplement), the Administrator shall instruct the Trustee, in writing, to draw on each Series 2009-1 Letter of Credit in an amount equal to the Pro Rata Share of the Series 2009-1 Letter of Credit Provider issuing such Series 2009-1 Letter of Credit of the amount of such draw on the Series 2009-1 Letters of Credit.

 

(f)            Establishment of Series 2009-1 Cash Collateral Account.   On or prior to the date of any drawing under a Series 2009-1 Letter of Credit pursuant to Section 3.9(b)  or (c)  of this Series Supplement, HVF shall establish and maintain in the name of the Trustee for the benefit of the Series 2009-1 Noteholders, an account (the “ Series 2009-1 Cash Collateral 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 Cash Collateral Account shall be an Eligible Deposit Account.  If the Series 2009-1 Cash Collateral Account is at any time no longer an Eligible Deposit

 

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Account, HVF shall, within 10 Business Days of obtaining knowledge that the Series 2009-1 Cash Collateral Account is no longer an Eligible Deposit Account, establish a new Series 2009-1 Cash Collateral Account that is an Eligible Deposit Account.  If a new Series 2009-1 Cash Collateral Account is established, HVF shall instruct the Trustee in writing to transfer all cash and investments from the non-qualifying Series 2009-1 Cash Collateral Account into the new Series 2009-1 Cash Collateral Account

 

(g)           Administration of the Series 2009-1 Cash Collateral Account .  HVF may instruct (by standing instructions or otherwise) the institution maintaining a Series 2009-1 Cash Collateral Account to invest funds on deposit in a Series 2009-1 Cash Collateral Account from time to time in Permitted Investments.  Any investment of funds on deposit in a Series 2009-1 Cash Collateral Account shall mature not later than the Business Day prior to the first Payment Date following the date on which such funds were received (including funds received upon a payment in respect of a Permitted Investment made with funds on deposit in a Series 2009-1 Cash Collateral Account), unless any Permitted Investment held in such Series 2009-1 Cash Collateral Account is held with the Trustee, in which case such investment may mature on such Payment Date so long as such funds shall be available for withdrawal on or prior to such Payment Date.  HVF shall not direct the Trustee to dispose of (or permit the disposal of) any Permitted Investments prior to the maturity thereof to the extent such disposal would result in a loss of the initial purchase price of such Permitted Investment.  In the absence of written investment instructions hereunder, funds on deposit in a Series 2009-1 Cash Collateral Account shall remain uninvested.

 

(h)           Earnings from Series 2009-1 Cash Collateral Account .  All Series 2009-1 Cash Collateral Account Interest and Earnings shall be deemed to be on deposit therein and available for distribution.

 

(i)            Series 2009-1 Cash Collateral Account Surplus .  In the event that the Series 2009-1 Cash Collateral Account Surplus on any Payment Date is greater than zero, the Administrator may direct the Trustee to, and the Trustee, acting in accordance with the written instructions of the Administrator (with a copy to the Administrative Agent), shall, subject to the limitations set forth in this Section 3.9(i) , withdraw the amount specified by the Administrator from the Series 2009-1 Cash Collateral Account specified by the Administrator and apply such amount in accordance with the terms of this Section 3.9(i) .  The amount of any such withdrawal from the Series 2009-1 Cash Collateral Account shall be limited to the least of (a) the Series 2009-1 Available Cash Collateral Account Amount on such Payment Date, (b) the Series 2009-1 Cash Collateral Account Surplus on such Payment Date and (c) the excess, if any, of the Series 2009-1 Letter of Credit Liquidity Amount on such Payment Date over the Series 2009-1 Demand Note Payment Amount on such Payment Date.  Any amounts withdrawn from the Series 2009-1 Cash Collateral Account pursuant to this Section 3.9(i)  shall be paid:  first , 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 in respect of the Series 2009-1 Letters of Credit, for application in accordance with the provisions of the respective Series 2009-1 Letter of Credit Reimbursement Agreement, and second , to HVF any remaining amounts.

 

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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 HVF’s 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 Intermediary’s 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 Moody’s 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 Provider’s 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 Provider’s 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 HVF’s 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 HVF’s 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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(ii)            any event described in clauses (o)  through (w)  above, either the Trustee may, by written notice to HVF or the Required Noteholders with respect to the Series 2009-1 Notes may, by written notice to HVF and the Trustee declare that an Amortization Event with respect to the Series 2009-1 Notes has occurred as of the date of the notice.

 

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.

 

ARTICLE V

 

FORM OF SERIES 2009-1 NOTES

 

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.

 

Section 5.2.   Transfer of Series 2009-1 Notes .

 

(a)            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 HVF and the Registrar by, the holder thereof and accompanied by a certificate substantially in the form of Exhibit E hereto; provided, that if the holder of any Series 2009-1 Note transfers, in whole or in part, its interest in any Series 2009-1 Note pursuant to (i) an Assignment and Assumption Agreement substantially in the form of Exhibit B to the Series 2009-1 Note Purchase Agreement or (ii) an Investor Group Supplement substantially in the form of Exhibit C to the Series 2009-1 Note Purchase Agreement, then such Series 2009-1 Noteholder will not be required to submit a certificate substantially in the form of Exhibit E hereto upon transfer of its interest in such Series 2009-1 Note.  In exchange for any Series 2009-1 Note properly presented for transfer, HVF shall execute and the Trustee shall promptly authenticate and deliver or cause to be authenticated and delivered in compliance with applicable law, to the transferee at such office, or send by mail (at the risk of the transferee) to such address as the transferee may request, Series 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, HVF

 

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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 the Series 2009-1 Noteholder at such office.  Neither HVF nor the Trustee shall be liable for any delay in delivery of transfer instructions and each may conclusively rely on, and shall be protected in relying on, such instructions.  Upon the issuance of transferred Series 2009-1 Notes, the Trustee shall recognize the Holders of such Series 2009-1 Note as Series 2009-1 Noteholders.

 

(b)            Each Series 2009-1 Note shall bear the following legend:

 

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 PURCHASER’S 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.

 

ARTICLE VI

 

GENERAL

 

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:

 

(i)             the total amount available to be distributed to Series 2009-1 Noteholders on such Payment Date;

 

(ii)            the amount of such distribution allocable to the payment of principal of the Series 2009-1 Notes;

 

(iii)           the amount of such distribution allocable to the payment of interest on the Series 2009-1 Notes;

 

(iv)           the Series 2009-1 Controlled Amortization Amount, if any, for the related Series 2009-1 Controlled Amortization Payment Date;

 

(v)            the Series 2009-1 Invested Percentage with respect to Interest Collections and with respect to Principal Collections for the period from and including the second Determination Date preceding such Payment Date to but excluding the Determination Date immediately preceding such Payment Date;

 

(vi)           the Series 2009-1 Enhancement Amount, the Series 2009-1 Adjusted Enhancement Amount, the Series 2009-1 Liquidity Amount, the Series

 

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2009-1 Adjusted Liquidity Amount, in each case, as of the close of business on the last day of the Related Month;

 

(vii)          whether, to the knowledge of the Administrator, any Lien exists on any of the Collateral (other than Permitted Liens);

 

(viii)         whether, to the knowledge of the Administrator, any Operating Lease Event of Default has occurred;

 

(ix)            whether, to the knowledge of the Administrator, any Amortization Event or Potential Amortization Event with respect to the Series 2009-1 Notes has occurred;

 

(x)             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;

 

(xi)            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-Investment Grade Manufacturer Program Vehicle Amount, the Non- Program Vehicle Amount, the Non-Program Vehicle Percentage and the Standard & Poor’s Ineligible Receivable Manufacturer Receivable Amount as of the close of business on the last day of the Related Month;

 

(xii)           the Non-Eligible Manufacturer Amount as of the close of business on the last day of the Related Month;

 

(xiii)          the Series 2009-1 Highest Enhancement Percentage, the Series 2009-1  Intermediate Enhancement Percentage, the Series 2009-1 Lowest Enhancement Percentage, Series 2009-1 Intermediate Enhancement Vehicle Percentage, the Series 2009-1 Required Enhancement Percentage, Series 2009-1 Standard & Poor’s Enhancement Amount, Series 20091 Standard & Poor’s Enhancement Percentage, Series 2009-1 Standard & Poor’s Additional Incremental Enhancement Amount and Series 2009-1 Standard & Poor’s Additional Enhancement Amount as of the close of business on the last day of the

 

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Related Month and the Market Value Average and Non-Program Vehicle Measurement Month Average and all calculations related thereto;

 

(xiv)         the Aggregate BMW/Lexus/Mercedes/Audi Amount, the Aggregate Kia/Subaru/Hyundai Amount, the Audi Amount, the BMW Amount, the Ford Amount, the Honda Amount, the Hyundai Amount, the Jaguar Amount, the Kia Amount, the Land Rover Amount, the Lexus Amount, the Mazda Amount, the Mercedes Amount, the Mitsubishi Amount, the Chrysler Amount, the GM Amount, the Nissan Amount, the Old Chrysler Amount, the Old GM Amount, the Subaru Amount, the Suzuki Amount, the Toyota Amount, the Volvo Amount and the Volkswagen Amount as of the close of business on the last day of the Related Month;

 

(xv)          the Series 2009-1 Required Incremental Enhancement Amount, if any, as of the close of business on the last day of the Related Month;

 

(xvi)         the Series 2009-1 Required Liquidity Amount, if any, as of the close of business on the last day of the Related Month, and whether a Series 2009-1 Liquidity Deficiency with respect to any Class of Series 2009-1 Notes existed and the amount thereof, in each case, as of the close of business on the last day of the Related Month;

 

(xvii)        the Series 2009-1 Required Enhancement Amount as of the close of business on the last day of the Related Month, and whether a Series 2009-1 Enhancement Deficiency with respect to any Class of Series 2009-1 Notes existed and the amount thereof, in each case, as of the close of business on the last day of the Related Month;

 

(xviii)       the Series 2009-1 Required Overcollateralization Amount, the Series 2009-1 Overcollateralization Amount and the Series 2009-1 Required Asset Amount, in each case, as of the close of business on the last day of the Related Month;

 

(xix)          the Series 2009-1 Required Reserve Account Amount and the Series 2009-1 Available Reserve Account Amount, in each case, as of the close of business on the last day of the Related Month;

 

(xx)           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, a Category 3 Manufacturer or a Standard & Poor’s Ineligible Receivable Manufacturer, as of the close of business on the last day of the Related Month which were Eligible Program Vehicles manufactured by such Manufacturer;

 

(xxi)          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

 

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business on the last day of the Related Month which were Program Vehicles manufactured by such Manufacturer;

 

(xxii)         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;

 

(xxiii)        the Series 2009-1 Letter of Credit Liquidity Amount, the Series 2009-1 Demand Note Payment Amount and the Series 2009-1 Letter of Credit Amount, in each case, as of the close of business on the last day of the Related Month; and

 

(xxiv)        the Series 2009-1 Principal Amount and the Series 2009-1 Adjusted Principal Amount, in each case, as of such Payment Date.

 

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:

 

(i)             the Series 2009-1 Enhancement Amount, the Series 2009-1 Adjusted Enhancement Amount, the Series 2009-1 Liquidity Amount, the Series 2009-1 Adjusted Liquidity Amount, in each case, as of the close of business on the last Business Day of the prior calendar week;

 

(ii)            the Aggregate Asset Amount and the amount of the Aggregate Asset Amount Deficiency, if any, as of the close of business on the last Business Day of the prior calendar week;

 

(iii)           the Series 2009-1 Required Enhancement Incremental Amount, if any, as of the close of business on the last Business Day of the prior calendar week;

 

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(iv)           the Series 2009-1 Required Liquidity Amount, if any, as of the close of business on the last day of the Related Month, and whether a Series 2009-1 Liquidity Deficiency with respect to any Class of Series 2009-1 Notes existed and the amount thereof, in each case, as of the close of business on the last Business Day of the prior calendar week;

 

(v)            the Series 2009-1 Required Enhancement Amount as of the close of business on the prior Business Day, and whether a Series 2009-1 Enhancement Deficiency with respect to any Class of Series 2009-1 Notes existed and the amount thereof, in each case, as of the close of business on the last Business Day of the prior calendar week;

 

(vi)           the Series 2009-1 Required Overcollateralization Amount, the Series 2009-1 Overcollateralization Amount and the Series 2009-1 Required Asset Amount, in each case, as of the close of business on the last Business Day of the prior calendar week;

 

(vii)          the Series 2009-1 Required Reserve Account Amount and the Series 2009-1 Available Reserve Account Amount, in each case, as of the close of business on the last Business Day of the prior calendar week;

 

(viii)         the percentage of all HVF Vehicles, with respect to each Manufacturer, as of the close of business on the last Business Day of the prior calendar week that were Eligible Program Vehicles manufactured by such Manufacturer;

 

(ix)            the Series 2009-1 Letter of Credit Liquidity Amount, the Series 2009-1 Demand Note Payment Amount and the Series 2009-1 Letter of Credit Amount, in each case, as of the close of business on the last Business Day of the prior calendar week;

 

(x)             the Series 2009-1 Principal Amount and the Series 2009-1 Adjusted Principal Amount, in each case, as of the close of business on the last Business Day of the prior calendar week.

 

Promptly upon its receipt thereof, the Trustee shall provide to the Series 2009-1 Noteholders, or their designated agent, copies of each Weekly Noteholders’ Statement.

 

Section 6.3.   Exhibits .  The following exhibits attached hereto supplement the exhibits included in the Indenture.

 

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 Purchaser’s 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 Officer’s 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 Moody’s with notice of such event.

 

Section 6.6.   Third Party Beneficiary .  The Administrative Agent is an express third party beneficiary of (i) the Base Indenture and (ii) this Series Supplement.  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 Ford’s 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

 

85



 

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 Moody’s, 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.

 

86



 

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.

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

Name: R. Scott Massengill

 

Title: Vice President & Treasurer

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

 

   as Trustee,

 

 

 

 

 

By:

/s/ John D. Ask

 

Name: John D. Ask

 

Title: Senior Associate

 

87


 

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 PURCHASER’S 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 Administration—Structured 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

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

 

 

By:

 

 

 

Name: Scott Massengill

 

 

Title: Vice President and Treasurer

 

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is a Series 2009-1 Note, a series issued under the within-mentioned Indenture.

 

Dated: September     , 2009

 

 

 

THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.,

 

as Trustee

 

 

 

 

 

By:

 

 

 

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

 

Date

 

Unpaid
Principal
Amount

 

Increase

 

Decrease

 

Total

 

Series
2009-1 Note Rate

 

Interest Period
(if applicable)

 

Notation
Made By

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

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:

 

 

 

 

 

 

 

 

(1)

 

 

 

Signature Guaranteed:

 

 

 

 

 

 

 

Name:

 

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 Administration—Structured Finance]

 

Dear Sir or Madam:

 

The undersigned (“[                           ]” or the “ Issuing Bank ”) hereby establishes, at the request and for the account of The Hertz Corporation, a Delaware corporation (“ Hertz ”), pursuant to that certain senior secured asset based revolving loan facility, provided under a credit agreement, dated as of December 21, 2005 (as amended, supplemented, amended and restated or otherwise modified from time to time in accordance with the terms thereof, the “ Series 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 Beneficiary’s favor on Beneficiary’s 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 Bank’s 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 Trustee’s drafts, each drawn on the Issuing Bank at the Issuing Bank’s Office, payable at sight on a Business Day (as defined below), and accompanied by the Trustee’s written and completed certificate signed by the Trustee in substantially the form of Annex A attached hereto (any such draft accompanied by such certificate being a “ Credit Demand ”), an amount equal to the face amount of each such draft but in the aggregate amount not exceeding the Series 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 Trustee’s drafts, drawn on the Issuing Bank at the Issuing Bank’s Office, payable at sight on a Business Day, and accompanied by the Trustee’s written and completed certificate signed by it in substantially the form of Annex B attached hereto (such draft accompanied by such certificate being an “ Unpaid Demand Note Demand ”), an amount equal to the face amount of such draft but not exceeding the Series 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 Trustee’s drafts, drawn on the Issuing Bank at the Issuing Bank’s Office, payable at sight on a Business Day, and accompanied by the Trustee’s written and completed certificate signed by it in substantially the form of Annex C attached hereto (such draft accompanied by such certificate being a “ Preference Payment Demand ”), an amount equal to the face amount of such draft but not exceeding the Series 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 Trustee’s drafts, drawn on the Issuing Bank at the Issuing Bank’s Office, payable at sight on a Business Day, and accompanied by the Trustee’s written and completed certificate signed by it in substantially the form of Annex D attached hereto (such draft accompanied by such certificate being a “ Termination Demand ”), an amount equal to the face amount of such draft but not exceeding the Series 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

 

2



 

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 Bank’s Office, Attention: [Global Loan Operations, Standby Letter of Credit Unit].  If the Issuing Bank receives any Credit Demand, Unpaid Demand Note Demand, Preference Payment Demand or Termination Demand at such office, all in strict conformity with the terms and conditions of this Series 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 Beneficiary’s payment instructions.  If the Issuing Bank receives any Credit Demand, Unpaid Demand Note Demand, Preference Payment Demand or Termination Demand at such office, all in strict conformity with the terms and conditions of this Series 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 Beneficiary’s 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 Beneficiary’s account in a bank on the Federal Reserve wire system or by deposit of same day funds into a designated account.  All payments made by the

 

3



 

Issuing Bank under this Series 2009-1 Letter of Credit shall be made with the Issuing Bank’s own funds.

 

Upon the earliest of (i) the date on which the Issuing Bank honors a Preference Payment Demand or Termination Demand presented hereunder to the extent of the Series 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 Beneficiary’s transferee, issue a letter of credit to (or to the order of) Beneficiary’s 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 Bank’s Office, the Issuing Bank agrees to (i) promptly notify the Trustee of an alternative location in which to send any communications with respect to this Series 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.

 

4



 

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 Bank’s Office, specifically referring to the number of this Series 2009-1 Letter of Credit.

 

 

 

 

Very truly yours,

 

 

 

[         ]

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

5



 

ANNEX A

 

CERTIFICATE OF CREDIT DEMAND

 

[Issuing Bank’s Address]

 

Attention:  [Global Loan Operations, Standby Letter of Credit Unit]

 

Certificate of Credit Demand under the Irrevocable Letter of Credit No. [        ] (the “ Series 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 Bank’s 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 Bank’s 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 Bank’s 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 Bank’s 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                 ,       .

 

 

[THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.](11),

 

as Trustee

 

 

 

By

 

 

Title:

 


(11)         See footnote 1 above.

 

A-4



 

ANNEX B

 

CERTIFICATE OF UNPAID DEMAND NOTE DEMAND

 

[Issuing Bank’s Address]

 

Attention:  [Global Loan Operations, Standby Letter of Credit Unit]

 

Certificate of Unpaid Demand Note Demand under the Irrevocable Letter of Credit No. [                          ] (the “ Series 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 Bank’s 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               ,       .

 

 

 

[THE BANK OF NEW YORK MELLON

 

TRUST COMPANY, N.A.](7),

 

as Trustee

 

 

 

 

 

By

 

 

 

Title:

 


(7)             See footnote 1 above.

 

B-3



 

ANNEX C

 

CERTIFICATE OF PREFERENCE PAYMENT DEMAND

 

[Issuing Bank’s Address]

 

Attention:  [Global Loan Operations, Standby Letter of Credit Unit]

 

Certificate of Preference Payment Demand under the Irrevocable Letter of Credit No. [                        ] (the “ Series 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 Bank’s 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            ,           .

 

 

[THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A.],(8)

 

as Trustee

 

 

 

By

 

 

 

 

 

Title:

 


(8)           See footnote 1 above.

 

C-3



 

ANNEX D

 

CERTIFICATE OF TERMINATION DEMAND

 

[Issuing Bank’s Address]

 

Attention:  [Global Loan Operations, Standby Letter of Credit Unit]

 

Certificate of Termination Demand under the Irrevocable Letter of Credit No. [                        ] (the “ Series 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 Bank’s 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        ,          .

 

 

[THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.],
(10)

 

as Trustee

 

 

 

 

 

By

 

 

 

Title:

 


(10)         See footnote 1 above.

 

D-4



 

ANNEX E

 

CERTIFICATE OF REINSTATEMENT
OF LETTER OF CREDIT AMOUNT

 

[Issuing Bank’s Address]

 

Attention:  [Global Loan Operations, Standby Letter of Credit Unit]

 

Certificate of Reinstatement of Letter of Credit Amount under the Irrevocable Letter of Credit No. [                      ] (the “ Series 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                          ,              .

 

 

THE HERTZ CORPORATION

 

 

 

 

 

By

 

 

 

  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 undersigned’s 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.

 

[

]

 

 

By:

 

 

 

Name :

 

 

Title:

 

 

E-3



 

ANNEX F

 

INSTRUCTION TO TRANSFER

 

[Issuing Bank’s Address]

 

Attention:              Standby Letter of Credit Department

 

Re:          Irrevocable Letter of Credit No. [                   ]

 

Ladies and Gentlemen:

 

For value received, the undersigned beneficiary hereby irrevocably transfers to:

 

 

 

 

 

[Name of Transferee]

 

 

 

 

 

 

 

 

[Issuing Bank’s Address]

 

 

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.

 

 

Very truly yours,

 

 

 

[THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.], (1)

 

as Trustee

 

 

 

 

 

By

 

 

 

Name:

 

 

Title:

 

 

 

 

By

 

 

 

Name:

 

 

Title:

 


(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 Bank’s 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                    ,                    .

 

 

[THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.](2),

 

as Trustee

 

 

 

By:

 

 

 

  Title:

 

 

ACKNOWLEDGED

 

THIS                    DAY OF                    ,200     :

 

 

 

[

]

 

 

By:

 

 

 

Name:

 

 

Title:

 

 


(2)           See footnote 1 above.

 

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 Administration—Structured 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                          ,                          .

 

 

[BANK]

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

ACKNOWLEDGED AND AGREED TO

 

THIS              DAY OF                          , 200    :

 

 

 

[THE BANK OF NEW YORK

 

MELLON TRUST COMPANY, N.A.] (3) ,

 

   as Trustee

 

By:

 

 

 

  Name:

 

 

  Title:

 

 


(3)           See footnote 1 above.

 

2



 

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 Administration—Structured Finance

 

[                ]       , 200   

 

Ladies and Gentlemen:

 

This Lease Payment Deficit Notice is delivered to you pursuant to Section 3.3(b)  of the Series 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 $                   ).

 

 

THE HERTZ CORPORATION

 

 

 

By:

 

 

Name:

 

 

Title:

 

 



 

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 Administration—Structured 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 Provider’s 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.

 

2



 

IN WITNESS WHEREOF, The Hertz Corporation has executed and delivered this request on this        day of                ,       .

 

THE HERTZ CORPORATION

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

3



 

EXHIBIT E

TO

SERIES 2009-1 SUPPLEMENT

 

FORM OF PURCHASER’S LETTER

 

The Bank of New York Mellon Trust Company, N.A.,

as Registrar

2 North LaSalle Street

Chicago, Illinois 60602

Attention: Corporate Trust Administration—Structured Finance

 

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 HVF’s and the Administrator’s business, management and financial affairs, and the terms and conditions of the proposed purchase, with HVF and the Administrator and their respective representatives;

 

(2)           it is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act and has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of investing in, and is able and prepared to bear the economic risk of investing in, the Series 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 HVF’s prior written consent, which consent shall not be unreasonably withheld, and only (A) to HVF, (B) in a transaction meeting the requirements of Rule 144A under the Securities Act, (C) outside the United States to a foreign person in a transaction meeting the requirements of Regulation S under the Securities Act, or (D) in a transaction complying with or exempt from the registration requirements of the Securities Act and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction; notwithstanding the foregoing, it is hereby understood and agreed by HVF that (i) in the case of each Investor Group with respect to which there is a Conduit Investor, the Series 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.

 

 

[

]

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

Dated:                          

 

 

 

 

cc: Hertz Vehicle Financing LLC

 

 

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                     ,       .

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

2



 

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                     ,       .

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 


* Use if delivered by the Administrator

 

 Use if delivered by HVF

 

2



 

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

 

$[                  ]

 

New York, New York

 

 

September 18, 2009

 

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 attorney’s fees, paralegal’s fees and other legal costs (including court costs) incurred in connection with consultation, arbitration and litigation (including trial, appellate, administrative and bankruptcy proceedings), regardless of whether or not suit is brought, and all other costs and expenses incurred by HVF or the Trustee in exercising its rights and remedies hereunder.  Such costs of collection shall bear interest at the Demand Note Rate until paid.

 

No Negotiation .  This Demand Note is not negotiable other than to the Trustee for the benefit of the Series 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.

 

 

 

THE HERTZ CORPORATION,

 

 

 

 

 

By:

 

 

 

 

 

Scott Massengill

 

 

Treasurer

 

3



 

PAYMENT GRID

 

Date

 

Principal
Amount

 

Amount of
Principal
Payment

 

Outstanding
Principal
Balance

 

Notation Made
By

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4



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 Administration—Structured 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      .

 

 

 

 

THE HERTZ CORPORATION

 

 

 

 

 

 

 

By:

 

 

 

 

 

Name:

 

 

 

 

Title:

 

2




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

 

 

Page

 

 

ARTICLE I DEFINITIONS

2

SECTION 1.01

Definitions

2

 

 

 

ARTICLE II PURCHASE AND SALE OF SERIES 2009-1 NOTES

11

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

 

 

 

ARTICLE III INTEREST AND FEES

14

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

 

 

 

ARTICLE IV OTHER PAYMENT TERMS

20

SECTION 4.01

Time and Method of Payment

20

 

 

 

ARTICLE V THE ADMINISTRATIVE AGENT AND THE FUNDING AGENTS

20

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

 

i



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

SECTION 5.13

The Funding Agent in its Individual Capacity

24

SECTION 5.14

Successor Funding Agent

24

 

 

 

ARTICLE VI REPRESENTATIONS AND WARRANTIES

25

SECTION 6.01

HVF

25

SECTION 6.02

Administrator

25

SECTION 6.03

Conduit Investors

26

 

 

 

ARTICLE VII CONDITIONS

28

SECTION 7.01

Conditions to Issuance

28

SECTION 7.02

Conditions to Initial Borrowing

29

SECTION 7.03

Conditions to Each Borrowing

29

 

 

 

ARTICLE VIII COVENANTS

30

SECTION 8.01

Covenants

30

 

 

 

ARTICLE IX MISCELLANEOUS PROVISIONS

35

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

 

ii



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

EXHIBITS

 

SCHEDULE I

List of Conduit Investors and Committed Note Purchasers

 

EXHIBIT A

Form of Advance Request

 

EXHIBIT B

Form of Assignment and Assumption Agreement

 

EXHIBIT C

Form of Investor Group Supplement

 

EXHIBIT D

Form of Addendum

 

EXHIBIT E

Fleet Report

 

 

iii



 

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.

 

ARTICLE I

DEFINITIONS

 

SECTION 1.01    Definitions .  As used in this Agreement and unless the context requires a different meaning, capitalized terms used but not defined herein (including the preamble and the recitals hereto) shall have the meanings assigned to such terms in Article 1 of the Series 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 Group’s 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 Group’s 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 Group’s 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 & Poor’s and “P2” from Moody’s, that is administered by the Funding Agent with respect to such Conduit Investor or any Affiliate of such Funding Agent, in each case, designated by such Funding Agent to accept an assignment from such Conduit Investor of the Investor Group Principal Amount or a portion thereof with respect to such Conduit Investor pursuant to Section 9.17(b) .

 

Conduit Investors ” has the meaning set forth in the recitals hereto.

 

Confidential Information ” for purposes of this Agreement, has the meaning set forth in Section 9.11 .

 

CP Rate ” means, with respect to each Conduit Investor (i) for any day during any Series 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 =

 

Eurodollar Rate

 

(Reserve Adjusted)

 

1.00 – Eurodollar Reserve Percentage

 

 

The Eurodollar Rate (Reserve Adjusted) for any Eurodollar Interest Period for Eurodollar Advances will be determined by the related Funding Agent on the basis of the Eurodollar Reserve Percentage in effect one (1) Business Day before the first day of such Eurodollar Interest Period.

 

Eurodollar Reserve Percentage ” means, for any Eurodollar Interest

 

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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 Group’s Commitment Percentage of the Increase, if any, on such Business Day.

 

Investor Group Principal Amount ” means, (a) with respect to any Investor Group other than an Additional Investor Group, (i) when used with respect to the Series 2009-1 Closing Date, such Investor Group’s 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 Group’s Additional Investor Group Initial Principal Amount and (ii) when used with respect to any other date, an amount equal to (w) the Investor Group Principal Amount with respect to such Additional Investor Group on the immediately preceding Business Day plus (x) the Investor Group Increase Amount with respect to such Additional Investor Group on such date minus (y) the amount of principal payments made to such Investor Group pursuant to 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 Investor’s securitization program, together with any letter of credit, insurance policy or other instrument issued thereunder or guaranty thereof (but excluding any discretionary advance facility provided by a Committed Note Purchaser).

 

Program Support Provider ” means and includes any financial institutions and any other or additional Person now or hereafter extending credit or having a commitment to extend credit to or for the account of, and/or agreeing to make purchases from, a Committed Note Purchaser or a Conduit Investor in respect of such Committed Note Purchaser’s or Conduit Investor’s Series 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 Investor’s 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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ARTICLE II

PURCHASE AND SALE OF SERIES 2009-1 NOTES

 

SECTION 2.01   The Initial Note Purchase .  On the terms and conditions set forth in the Indenture and this Agreement, and in reliance on the covenants, representations and agreements set forth herein and therein, HVF will cause the Trustee to issue the Series 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.

 

SECTION 2.02   Advances .  (a)  Subject to the terms and conditions of this Agreement and the Series 2009-1 Supplement, each Conduit Investor, if any may and, if such Conduit Investor determines that it will not make an Advance or any portion of an Advance, its related Committed Note Purchaser(s) or, if there is no Conduit Investor with respect to any Investor Group, the Committed Note Purchaser(s) with respect to such Investor Group, shall, to the extent such Conduit Investor does not make such Advance or there is no such Conduit Investor with respect to an Investor Group, and the Series 2009-1 Commitment Termination Date has not occurred, upon HVF’s request, delivered in accordance with the provisions of Section 2.03 , and the satisfaction of all conditions precedent thereto, make Advances from time to time during the Series 2009-1 Revolving Period; provided , that, such Advances shall be made ratably by each Conduit Investor, if any, based on the respective Commitment Percentage of its Investor Group and the portion of any such Advance made by a Committed Note Purchaser shall be its Committed Note Purchaser Percentage of the Commitment Percentage with respect to the related Investor Group; provided , that no Advance shall be required or permitted to be made on any date if, after giving effect to such Advance, (i) such related Investor Group Principal Amount would exceed the Maximum Investor Group Principal Amount, (ii) the Series 2009-1 Principal Amount would exceed the Series 2009-1 Maximum Principal Amount, (iii) a Series 2009-1 Enhancement Deficiency or an Aggregate Asset Amount Deficiency exists or would exist as a result of such Advance, or (iv) an Amortization Event, Potential Amortization Event, Liquidation Event of Default or Limited Liquidation Event of Default, in each case, with respect to the Series 2009-1 Notes exists or would exist as a result of such Advance. If a Conduit Investor elects not to fund the full amount of its Commitment Percentage of the Series 2009-1 Initial Principal Amount (or, in the case of a Conduit Investor in an Additional Investor Group, the Additional Investor Group Initial Principal Amount with respect to such Additional Investor Group) or a requested Increase, such Conduit Investor shall notify the Administrative Agent and the Funding Agent with respect to such Conduit Investor, and each Committed Note Purchaser with respect to such Conduit Investor shall fund its Committed Note Purchaser Percentage of the portion of the Commitment Percentage with respect to such Investor Group of the Series 2009-1 Initial Principal Amount (or, in the case of a Committed Note Purchaser in an Additional Investor Group, the applicable portion of the Additional Investor Group Initial Principal Amount with respect to such Additional Investor Group) or  such Increase, as the case may be, not funded by such Conduit Investor.

 

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(b)                                  Subject to Section 9.10(b) , each Conduit Investor hereby agrees with respect to itself that it will use commercially reasonable efforts to fund Advances made by its Investor Group through the issuance of Series 2009-1 Commercial Paper; provided , that (i) no Conduit Investor will have any obligation to use commercially reasonable efforts to fund Advances made by its Investor Group through the issuance of Series 2009-1 Commercial Paper at any time (x) an Amortization Event has occurred and is continuing (other than any Amortization Event relating solely to any Segregated Series of Notes) or (y) the funding of such Advance through the issuance of Series 2009-1 Commercial Paper would be prohibited by the program documents governing such Conduit Investor’s commercial paper program, (ii) nothing herein is (or shall be construed) as a commitment by any Conduit Investor to fund any Advance through the issuance of Series 2009-1 Commercial Paper, and (iii) notwithstanding anything herein or in any other Related Document to the contrary, at no time will a Conduit Investor that is not also a Committed Note Purchaser be obligated to make Advances hereunder.

 

(c)                                   The proceeds of all Advances on any date shall be allocated according to the provisions of Article III of the Series 2009-1 Supplement.  Each of the Advances to be made on any date shall be made singly as part of a single borrowing (each such single borrowing being a “ Borrowing ”).  Subject to the terms of this Agreement and the Series 2009-1 Supplement, the aggregate principal amount of the Advances represented by the Series 2009-1 Notes may be increased or decreased from time to time.

 

SECTION 2.03   Borrowing Procedures .

 

(a)                                   Whenever HVF wishes the Conduit Investors, or if there is no Conduit Investor with respect to any Investor Group, the Committed Note Purchaser with respect to such Investor Group, to make an Advance, HVF shall (or shall cause the Administrator to) notify the Administrative Agent, each Funding Agent and the Trustee upon irrevocable written notice delivered to the Administrative Agent and each Funding Agent (with a copy of such notice delivered to the Committed Note Purchasers) no later than 11:30 a.m. New York City time on the Business Day prior to the proposed Borrowing (which Borrowing date shall, except in the case of the Initial Advance, be an Increase Date); provided that no more than three Borrowings shall occur during any calendar week.  Each such notice shall be irrevocable and shall in each case refer to this Agreement and specify the aggregate amount of the requested Borrowing to be made on such date.  HVF shall (or shall cause the Administrator to) ratably allocate the proposed Borrowing among the Investor Groups’ respective Investor Group Principal Amounts.  Each Funding Agent shall promptly advise its related Conduit Investor, or if there is no Conduit Investor with respect to any Investor Group, its related Committed Note Purchaser, of any notice given pursuant to this Section and, if there is a Conduit Investor with respect to any Investor Group, shall promptly thereafter (but in no event later than 11:00 a.m. New York City time on the proposed date of Borrowing), notify HVF and the related Committed Note Purchaser(s), whether such Conduit Investor has determined to make such Advance.  On the date of each Borrowing and subject to the other conditions set forth herein and in the Series 2009-1 Supplement, each Conduit Investor or its related Committed Note Purchaser(s), as the case may be, and each Committed Note Purchaser

 

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with respect to any Investor Group that does not include a Conduit Investor, shall make available to HVF the amount of such Advance by wire transfer in U.S. dollars of such amount in same day funds to the Series 2009-1 Collection Account no later than 3:00 p.m. (New York time) on the date of such Borrowing.

 

(b)                                  If, by 2:00 p.m. (New York time) on the date of any Borrowing, one or more Committed Note Purchasers in an Investor Group (each, a “ Defaulting Committed Note Purchaser ,” and each Committed Note Purchaser in the related Investor Group other than any Defaulting Committed Note Purchaser being referred to as a “ Non-Defaulting Committed Note Purchaser ”) fails to make its ratable portion of any Borrowing available to HVF pursuant to Section 2.03(a)  (the aggregate amount unavailable to HVF as a result of such failure being herein called in either case the “ Borrowing Deficit ”), then the Funding Agent for such Investor Group shall, by no later than 2:30 p.m. (New York City time) on the applicable date of such Borrowing instruct each Non-Defaulting Committed Note Purchaser in the same Investor Group as the Defaulting Committed Note Purchaser to pay, by no later than 3:00 p.m. (New York time), in immediately available funds, to the Series 2009-1 Collection Account, an amount equal to the lesser of (i) such Non-Defaulting Committed Note Purchaser’s proportionate share (based upon the relative Committed Note Purchaser Percentage of such Non-Defaulting Committed Note Purchasers) of the Borrowing Deficit and (ii) such Non-Defaulting Committed Note Purchaser’s Committed Note Purchaser Percentage of the amount by which the Maximum Investor Group Investor Amount for such Investor Group exceeds the Investor Group Principal Amount for such Investor Group (determined after giving effect to any Advances already made by such Investor Group on such date).  A Defaulting Committed Note Purchaser shall forthwith, upon demand, pay to the applicable Funding Agent for the ratable benefit of the Non-Defaulting Committed Note Purchasers all amounts paid by each such Non-Defaulting Committed Note Purchaser on behalf of such Defaulting Committed Note Purchaser, together with interest thereon, for each day from the date a payment was made by a Non-Defaulting Committed Note Purchaser until the date such Non-Defaulting Committed Note Purchaser has been paid such amounts in full, at a rate per annum equal to the sum of the Series 2009-1 Base Rate plus 1% per annum.

 

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.

 

ARTICLE III

INTEREST AND FEES

 

SECTION 3.01   Interest .  (a) Each related Advance funded or maintained by an Investor Group during the related Series 2009-1 Interest Period (i) through the issuance of Series 2009-1 Commercial Paper shall bear interest at the CP Rate for such Series 2009-1 Interest Period and (ii) through means other than the issuance of Series 2009-1 Commercial Paper shall bear interest at the Eurodollar Rate (Reserve Adjusted) applicable to such Investor Group for the related Eurodollar Interest Period, in each case except as otherwise provided in the definition of Eurodollar Interest Period or in Section 3.03 or 3.04 .  Each Funding Agent shall notify HVF and the Administrator of the applicable interest rate for the Advances made by its Investor Group for the related Series 2009-1 Interest Period or Eurodollar Interest Period, as the case may be (including the applicable CP Rate, the Eurodollar Rate (Reserve Adjusted) and/or Series 2009-1 Base Rate, as the case may be) by 11:00 a.m. (New York time) on the second Business Day immediately preceding each Determination Date and on the Business Day following each Payment Date.

 

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(b)                                  Interest (including all amounts described in Section 3.01(a)  above and any Series 2009-1 Monthly Default Interest Amount) shall be due and payable on each Payment Date in accordance with the provisions of the Series 2009-1 Supplement.

 

(c)                                   All computations of interest at the CP Rate and the Eurodollar Rate (Reserve Adjusted) shall be made on the basis of a year of 360 days and the actual number of days elapsed and all computations of interest at the Series 2009-1 Base Rate shall be made on the basis of a 365 (or 366, as applicable) day year and actual number of days elapsed.  Whenever any payment of interest or principal in respect of any Advance shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day (other than as provided in the definition of Eurodollar Interest Period) and such extension of time shall be included in the computation of the amount of interest owed.

 

SECTION 3.02   Fees .

 

(a)                                   On each Payment Date, HVF shall pay to each Funding Agent, for the account of the related Investor Group, a program fee (the “ Program Fee ”) equal to the product of (x) the daily average Program Fee Rate for the related Investor Group (or, if applicable, the daily average Program Fee Rate for the related Conduit Investor and Committed Note Purchaser in such Investor Group, respectively, if each of such Conduit Investor and Committed Note Purchaser is funding a portion of such Investor Group’s Investor Group Principal Amount) during the related Series 2009-1 Interest Period, (y) the daily average Investor Group Principal Amount for the related Investor Group (or, if applicable, the portion of the Investor Group Principal Amount for the related Conduit Investor and Committed Note Purchaser in such Investor Group, respectively, if each of such Conduit Investor and Committed Note Purchaser is funding a portion of such Investor Group’s Investor Group Principal Amount) during the related Series 2009-1 Interest Period and (z) the number of days in the related Series 2009-1 Interest Period divided by 360 (or in the case of the first Payment Date occurring following the Series 2009-1 Closing Date, the number of days in the period from and including the Series 2009-1 Closing Date to but excluding such first Payment Date).

 

(b)                                  On each Payment Date on or prior to the Series 2009-1 Commitment Termination Date, HVF shall pay to each Funding Agent, for the account of the related Investor Group, an undrawn fee (the “ Undrawn Fee ”) equal to the product of (a) the daily average Undrawn Fee Rate for the related Investor Group during the related Series 2009-1 Interest Period, (b) the excess of (i) the Maximum Investor Group Principal Amount for the related Investor Group over (ii) the daily average Investor Group Principal Amount for the related Investor Group during the related Series 2009-1 Interest Period, and (c) the number of days in the related Series 2009-1 Interest Period divided by 360.

 

(c)                                   On each Payment Date, HVF shall pay to the Administrative Agent the applicable Administrative Agent Fee for such Payment Date.

 

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(d)                                  On the Series 2009-1 Closing Date, HVF shall pay the Up-Front Fee to each Funding Agent for the account of the related Committed Note Purchasers.

 

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:

 

(a)                                   Dollar deposits in the relevant amount and for the relevant Eurodollar Interest Period are not available to all related Reference Lenders in the relevant market; or

 

(b)                                  by reason of circumstances affecting all related Reference Lenders’ relevant market, adequate means do not exist for ascertaining the interest rate applicable hereunder to the Series 2009-1 Eurodollar Tranche of any Advance; or

 

(c)                                   such Conduit Investor, such Committed Note Purchaser or the related Majority Program Support Providers have notified the related Funding Agent and HVF that, with respect to any interest rate otherwise applicable hereunder to the Series 2009-1 Eurodollar Tranche of any Advance the Eurodollar Interest Period for which has not then commenced, such interest rate will not adequately reflect the cost to such Conduit Investor, such Committed Note Purchaser or such Majority Program Support Providers of making, funding, agreeing to make or fund or maintaining their respective Series 2009-1 Eurodollar Tranche of such Advance for such Eurodollar Interest Period,

 

then, upon notice from such Conduit Investor, such Committed Note Purchaser or the related Majority Program Support Providers to such Funding Agent and HVF, the obligations of such Conduit Investor, such Committed Note Purchaser and all of the relevant Program Support Providers to make or continue any Advance as, or to convert

 

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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 Person’s capital, in respect of making, continuing or maintaining (or of its obligation to make, continue or maintain) any Advances as, or of converting (or of its obligation to convert) any Advances into, the Series 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 HVF’s receipt of such notice, and such notice shall, in the absence of manifest error, be conclusive and binding on HVF.

 

SECTION 3.06   Funding Losses .  In the event any Affected Person shall incur any loss or expense (including any loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Affected Person to make, continue or maintain any portion of the principal amount of any Advance as a Series 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:

 

(i)                                      any conversion or repayment or prepayment (for any reason, including, without limitation, as a result of the acceleration of the maturity of the Series 2009-1 CP Tranche or Series 2009-1 Eurodollar Tranche of such Advance or the assignment thereof in accordance with the requirements of the applicable Program Support Agreement) of the principal amount of any portion of the Series 2009-1 CP Tranche or Series 2009-1 Eurodollar Tranche on a date other than the scheduled last day of the Series 2009-1 Interest Period or Eurodollar Interest Period applicable thereto;
 
(ii)                                   any Advance not being made as an Advance under the Series 2009-1 CP Tranche or Series 2009-1 Eurodollar Tranche after a request for such an Advance has been made in accordance with the terms contained herein;

 

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(iii)                                any Advance not being continued as a Series 2009-1 CP Tranche or Series 2009-1 Eurodollar Tranche, or converted into an Advance under the Series 2009-1 Eurodollar Tranche after a request for such an Advance has been made in accordance with the terms contained herein, or
 
(iv)                               any failure of HVF to make a Decrease after giving notice thereof pursuant to Section 2.2(b) of the Series 2009-1 Supplement,
 

then, upon the written notice of any Affected Person to the related Funding Agent and HVF, HVF shall pay to such Funding Agent and such Funding Agent shall, within five (5) Business Days of its receipt thereof, pay directly to such Affected Person such amount as will (in the reasonable determination of such Affected Person) reimburse such Affected Person for such loss or expense.  Such written notice (which shall include calculations in reasonable detail) shall, in the absence of manifest error, be conclusive and binding on HVF.

 

SECTION 3.07   Increased Capital Costs .  If any Change in Law affects or would affect the amount of capital required or reasonably expected to be maintained by any Affected Person or any Person controlling such Affected Person and such Affected Person reasonably determines (in its sole and absolute discretion) that the rate of return on its or such controlling Person’s capital as a consequence of its commitment or the Advances made by such Affected Person is reduced to a level below that which such Affected Person or such controlling Person would have achieved but for the occurrence of any such circumstance, then, in any such case after notice from time to time by such Affected Person to the related Funding Agent and HVF, HVF shall pay to such Funding Agent and such Funding Agent shall pay 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.

 

ARTICLE IV

OTHER PAYMENT TERMS

 

SECTION 4.01   Time and Method of Payment .  All amounts payable to any Funding Agent hereunder or with respect to the Series 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. HVF’s obligations hereunder in respect of any amounts payable to any Conduit Investor or Committed Note Purchaser shall be discharged to the extent funds are disbursed by HVF to the related Funding Agent as provided herein whether or not such funds are properly applied by such Funding Agent.

 

ARTICLE V

THE ADMINISTRATIVE AGENT AND THE FUNDING AGENTS

 

SECTION 5.01   Authorization and Action of the Administrative Agent .  Each of the Conduit Investors, the Committed Note Purchasers and the Funding Agents hereby designates and appoints Deutsche Bank 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 Person’s own gross negligence or willful misconduct), or (b) responsible in any manner to any Conduit Investor, any Committed Note Purchaser or any Funding Agent for any recitals, statements, representations or warranties made by HVF contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received under or in connection with, this Agreement for the due execution, legality, value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document furnished in connection herewith, or for any failure of HVF to perform its obligations hereunder, or for the satisfaction of any condition specified in Article VII .  The Administrative Agent shall not be under any obligation to any Conduit Investor, any Committed Note Purchaser or any Funding Agent to ascertain or to inquire as to the observance or performance of any of the agreements or covenants contained in, or conditions of, this Agreement, or to inspect the properties, books or records of HVF.  The Administrative Agent shall not be deemed to have knowledge of any Amortization Event, Potential Amortization Event, Liquidation Event of Default or Limited Liquidation Event of Default unless the Administrative Agent has received notice from HVF, any Conduit Investor, any Committed Note Purchaser or any Funding Agent.

 

SECTION 5.04   Reliance .  The Administrative Agent shall in all cases be entitled to rely, and shall be fully protected in relying, upon any document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to HVF), independent accountants and other experts selected by the Administrative Agent.  The Administrative Agent shall in all cases be fully justified in failing or refusing to take any action under this Agreement or any other document furnished in connection herewith unless it shall first receive such advice or concurrence of any Conduit Investor, any Committed Note Purchaser or any Funding Agent as it deems appropriate or it shall first be indemnified to its satisfaction by any Conduit Investor, any Committed Note Purchaser or any Funding Agent, provided that unless and until the Administrative Agent shall have received such advice, the Administrative Agent may take or refrain from taking any action, as the Administrative

 

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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 Agent’s resignation hereunder as Administrative Agent, the provisions of Section 9.05 and this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Agreement.

 

SECTION 5.08   Authorization and Action of Funding Agents .  Each Conduit Investor and each Committed Note Purchaser is hereby deemed to have designated and appointed the Funding Agent set forth next to such Conduit Investor’s name, or if there is no Conduit Investor with respect to any Investor Group, the

 

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Committed Note Purchaser’s name with respect to such Investor Group, on Schedule I hereto as the agent of such Person hereunder, and hereby authorizes such Funding Agent to take such actions as agent on its behalf and to exercise such powers as are delegated to such Funding Agent by the terms of this Agreement together with such powers as are reasonably incidental thereto.  Each Funding Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with the related Investor Group, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of such Funding Agent shall be read into this Agreement or otherwise exist for such Funding Agent.  In performing its functions and duties hereunder, each Funding Agent shall act solely as agent for the related Investor Group and does not assume nor shall it be deemed to have assumed any obligation or relationship of trust or agency with or for HVF or any of its successors or assigns.  Each Funding Agent shall not be required to take any action that exposes such Funding Agent to personal liability or that is contrary to this Agreement or Applicable Law.  The 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 Person’s own gross negligence or willful misconduct), or (b) responsible in any manner to the related Investor Group for any recitals, statements, representations or warranties made by HVF contained in this Agreement or in any certificate, report, statement or other document referred to or provided for in, or received under or in connection with, this Agreement, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other document furnished in connection herewith, or for any failure of HVF to perform its obligations hereunder, or for the satisfaction of any condition specified in Article VII .  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 Agent’s resignation hereunder as Funding Agent, subject to the limitations set forth herein, the provisions of Section 9.05 and this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Funding Agent under this Agreement.

 

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ARTICLE VI

REPRESENTATIONS AND WARRANTIES

 

SECTION 6.01   HVF .  HVF represents and warrants to each Conduit Investor and each Committed Note Purchaser that each of its representations and warranties in the Base Indenture and, 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:

 

(a)                                   no Amortization Event with respect to any Series of Notes, Liquidation Event of Default or Limited Liquidation Event of Default with respect to any Series of Notes or event which, with the giving of notice or the passage of time or both would constitute any of the foregoing, has occurred and is continuing;

 

(b)                                  assuming each Conduit Investor or other purchaser of the Series 2009-1 Notes hereunder is not purchasing with a view toward further distribution and there has been no general solicitation or general advertising within the meaning of the Securities Act, and further assuming that the representations and warranties of each Conduit Investor set forth in Section 6.03 of this Agreement are true and correct, the offer and sale of the Series 2009-1 Notes in the manner contemplated by this Agreement is a transaction exempt from the registration requirements of the Securities Act, and the Base Indenture is not required to be qualified under the Trust Indenture Act;

 

(c)                                   HVF has furnished to the Administrative Agent true, accurate and complete copies of all other Related Documents (excluding Series Supplements and other Related Documents relating solely to a Series of Indenture Notes other than the Series 2009-1 Notes) to which it is a party as of the Series 2009-1 Closing Date, all of which Related Documents are in full force and effect as of the Series 2009-1 Closing Date and no terms of any such agreements or documents have been amended, modified or otherwise waived as of such date, other than such amendments, modifications or waivers about which HVF has informed each Funding Agent; and

 

(d)                                  as of the Series 2009-1 Closing Date, no written information furnished by HVF or any of its Affiliates, agents or representatives to the Conduit Investors, the Committed Note Purchasers, the Administrative Agent or the Funding Agents for purposes of or in connection with this Agreement, including, without limitation, any information relating to the Collateral, is inaccurate in any material respect, or contains any material misstatement of fact, or omits to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case as of the date such information was stated or certified.

 

SECTION 6.02   Administrator .  The Administrator represents and warrants to each Conduit Investor and each Committed Note Purchaser that:

 

(a)                                   each representation and warranty made by it in each Related Document (other than any Related Document relating solely to a Series of Indenture Notes other than the Series 2009-1 Notes) to which it is a party

 

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(including any representations and warranties made by it as Administrator) is true and correct in all material respects as of the date originally made, as of the date hereof and as of the Series 2009-1 Closing Date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date); and

 

(b)                                  (i) the audited consolidated balance sheet of The Hertz Corporation and its Consolidated Subsidiaries as of December 31, 2008 and the related statements of income, stockholders equity and cash flows for the year ending on such date and (ii) the unaudited condensed consolidated balance sheet of The Hertz Corporation and its Consolidated Subsidiaries as of June 30, 2009 and the related statements of income, stockholders equity and cash flows for the six months ending on such date (including in each case the schedules and notes thereto) (the “ Financial Statements ”), have been prepared in accordance with GAAP and  present fairly the financial position of The Hertz Corporation and its Consolidated Subsidiaries as of the date thereof and the results of their operations and their cash flows for the periods covered thereby.

 

SECTION 6.03   Conduit Investors .  Each of the Conduit Investors and each of the Committed Note Purchasers represents and warrants to HVF and the Administrator, as of the date hereof (or as of a subsequent date on which a successor or assign of a Conduit Investor or a Committed Note Purchaser shall become a party hereto), that:

 

(a)                                   it has had an opportunity to discuss HVF’s and the Administrator’s business, management and financial affairs, and the terms and conditions of the proposed purchase, with HVF and the Administrator and their respective representatives;

 

(b)                                  it is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act and has sufficient knowledge and experience in financial and business matters to be capable of evaluating the merits and risks of investing in, and is able and prepared to bear the economic risk of investing in, the Series 2009-1 Notes;

 

(c)                                   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;

 

(d)                                  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

 

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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;

 

(e)                                   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;

 

(f)                                     it will comply with all applicable federal and state securities laws in connection with any subsequent resale of the Series 2009-1 Notes;

 

(g)                                  it understands that the Series 2009-1 Notes may be offered, resold, pledged or otherwise transferred only with HVF’s prior written consent, which consent shall not be unreasonably withheld, and only (A) to HVF, (B) in a transaction meeting the requirements of Rule 144A under the Securities Act, (C) outside the United States to a foreign person in a transaction meeting the requirements of Regulation S under the Securities Act, or (D) in a transaction complying with or exempt from the registration requirements of the Securities Act and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction; notwithstanding the foregoing, it is hereby understood and agreed by HVF that 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 its related Committed Note Purchaser or any Program Support Provider or any affiliate of its related Committed Note Purchaser or any Program Support Provider or, any commercial paper conduit administered by its related Committed Note Purchaser or any Program Support Provider or any affiliate of its related Committed Note Purchaser or any Program Support Provider;

 

(h)                                  if it desires to offer, sell or otherwise transfer, pledge or hypothecate the Series 2009-1 Notes as described in clause (B)  or (D)  of Section 6.03(g) , and such sale, transfer or pledge does not fall within the “notwithstanding the foregoing” provision of Section 6.03(g) , the transferee of the Series 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.  Each Conduit Investor 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

 

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(i)                                      it will obtain from any purchaser of the Series 2009-1 Notes substantially the same representations and warranties contained in the foregoing paragraphs.

 

ARTICLE VII

CONDITIONS

 

SECTION 7.01   Conditions to Issuance .  Each Conduit Investor has no obligation to purchase the Series 2009-1 Notes hereunder on the Series 2009-1 Closing Date unless:

 

(a)                                   the Base Indenture and the Series 2009-1 Supplement shall be in full force and effect as of such Series 2009-1 Closing Date;

 

(b)                                  as of such Series 2009-1 Closing Date, the Funding Agents shall have received copies of (i) the Certificate of Incorporation and By-Laws of Hertz and the certificate of formation and limited liability company agreement of each of HVF and the Nominee certified by the Secretary of State of the state of incorporation or organization, as the case may be, (ii) board of directors resolutions of HVF, Hertz and the Nominee with respect to the transactions contemplated by the Series 2009-1 Supplement and this Agreement, and (iii) an incumbency certificate of HVF, Hertz and the Nominee, each certified by the secretary or equivalent officer of the related entity in form and substance reasonably satisfactory to the Administrative Agent;

 

(c)                                   on such Series 2009-1 Closing Date, each Conduit Investor, or if there is no Conduit Investor with respect to any Investor Group, the Committed Note Purchaser with respect to such Investor Group, shall have received a letter, in form and substance reasonably satisfactory to it, from Moody’s stating that an explicit public long term credit rating of “Aa2” has been assigned to the Series 2009-1 Notes;

 

(d)                                  as of such Series 2009-1 Closing Date, each Conduit Investor and each Committed Note Purchaser shall have received opinions of counsel (i) from Weil, Gotshal & Manges LLP, or other counsel acceptable to the Conduit Investors and the Committed Note Purchasers, with respect to such matters as any such Conduit Investor or Committed Note Purchaser shall reasonably request (including, without limitation, regarding non-consolidation, true lease, true-sale and UCC security interest matters, tax and no-conflicts), (ii) from counsel to the Trustee acceptable to the Conduit Investors and the Committed Note Purchasers with respect to such matters as any such Conduit Investor or Committed Note Purchaser shall reasonably request, and (iii) from counsel to each Series 2009-1 Letter of Credit Provider, if any, with respect to such matters as any such Conduit Investor or Committed Note Purchaser shall reasonably request;

 

(e)                                   as of such Series 2009-1 Closing Date, each Conduit Investor and each Committed Note Purchaser shall have received copies of the documents

 

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specified in Section 2.2(b) of the Base Indenture relating to the issuance of the Series 2009-1 Notes;

 

(f)                                     at the time of such issuance, all conditions to the issuance of the Series 2009-1 Notes under the Series 2009-1 Supplement and under Section 2.2 of the Base Indenture shall have been satisfied or waived;

 

(g)                                  as of such Series 2009-1 Closing Date, the Administrative Agent shall have received evidence satisfactory to them of the completion of all UCC filings as may be necessary to perfect or evidence the assignment by HVF to the Trustee or the Collateral Agent on behalf of the Trustee of its interests in the Collateral, the proceeds thereof and the security interests granted pursuant to the Base Indenture and the Collateral Agency Agreement;

 

(h)                                  as of such Series 2009-1 Closing Date, the Administrative Agent shall have received a written search report listing all effective financing statements that name HVF, HGI, Hertz or the Nominee as debtor or assignor and that are filed in the State of Delaware and in any other jurisdiction that the Administrative Agent determines is necessary or appropriate, together with copies of such financing statements, and tax and judgment lien searches showing no such liens that are not permitted by the Base Indenture, the Series 2009-1 Supplement, this Agreement or the other Related Documents; and

 

(i)                                      each Committed Note Purchaser shall have received payment of the Up-Front Fee, in each case, as of the Series 2009-1 Closing Date.

 

SECTION 7.02   Conditions to Initial Borrowing .  The obligation of the Conduit Investors, or if there is no Conduit Investor with respect to any Investor Group, the Committed Note Purchaser with respect to such Investor Group, to fund the initial Borrowing hereunder shall be subject to the satisfaction of the conditions precedent that each Funding Agent shall have received a duly executed and authenticated Series 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 Agent’s 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:

 

(a)                                   (i) the representations and warranties of HVF set out in this Agreement (with the exception of Sections 6.01(a)  (to the extent such representations and warranties relate to any Series of Indenture Notes other than

 

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the Series 2009-1 Notes), 6.01(b)  and 6.01(d) , which shall have been true and accurate in all respects on the Series 2009-1 Closing Date), (ii) the representations and warranties of the Administrator set out in this Agreement (with the exception of Section 6.02(a) , which shall have been true and accurate on the dates specified therein), and (iii) the representations and warranties of HVF, the Nominee and the Administrator set out in the Related Documents (other than this Agreement and the Series Supplements and Related Documents relating solely to a Series of Indenture Notes other than the Series 2009-1 Notes) to which each is a party, in each such case, shall be true and accurate as of the date of the Borrowing with the same effect as though made on that date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date);

 

(b)                                  the Series 2009-1 Rapid Amortization Period has not commenced;

 

(c)                                   the related Funding Agent shall have received (i) an executed advance request in the form of Exhibit A hereto (each such request, an “ Advance Request ”) certifying as to the current Aggregate Asset Amount and the Series 2009-1 Enhancement Amount and (ii) in the case of any Borrowing occurring on or after the date the Monthly Noteholder Statement relating to the October 2009 Payment Date is required to be delivered, the Monthly Noteholders’ Statement for the Series 2009-1 Notes for the Related Month immediately preceding the date of such Borrowing;

 

(d)                                  all conditions to such Borrowing specified in Section 2.02(a)  of this Agreement shall have been satisfied;

 

(e)                                   subject to Section 8.7(b) of the Base Indenture, the Series 2009-1 Related Documents shall be in full force and effect; and

 

(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.

 

ARTICLE VIII

COVENANTS

 

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:

 

(a)                                   duly and timely perform all of its covenants (both affirmative and negative) and obligations under each Related Document to which it is a party;

 

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(b)                                  not, except as contemplated by Section 3.2(a) of the Base Indenture or clauses (iii) through (viii) of Section 12.1(a) of the Base Indenture,  amend, modify, waive or give any approval, consent or permission under, any provision of the Base Indenture or any other Series 2009-1 Related Document to which it is a party or agree to terminate, or surrender or assign any rights or obligations under, any Series 2009-1 Related Document to which it is a party unless (i) any such amendment, modification, waiver, approval, consent, permission, termination, surrender or assignment is in writing and made in accordance with the terms of the Base Indenture or such other Series 2009-1 Related Document, as applicable; and (ii) if such amendment, modification, waiver, approval, consent, permission, termination, surrender or assignment affects the Series 2009-1 Noteholders, Series 2009-1 Noteholders holding more than 50% of the Series 2009-1 Principal Amount have consented thereto (whether or not, for the avoidance of doubt, any Indenture Noteholder has a right to consent to such action under the applicable Series 2009-1 Related Document); provided , that in any such case, if the Base Indenture, the Series 2009-1 Supplement or any other Series 2009-1 Related Document requires the consent of each affected Noteholder or a higher percentage of Noteholders, such unanimous consent or the consent of such higher percentage of Noteholders shall be obtained prior to such amendment, modification, waiver, approval, consent, permission, termination, surrender or assignment; provided   further that HVF and the Administrator agree that any amendment or modification described in Section 12.2(b)(i) (which, for the avoidance of doubt, includes amendments or modifications to any Series 2009-1 Maximum Amount), 12.2(b)(ii), 12.2(b)(iii) and 12.2(b)(iv) of the Base Indenture which affects the Series 2009-1 Noteholders shall require the consent of Series 2009-1 Noteholders holding 100% of the Series 2009-1 Principal Amount; provided   further prior to entering into, granting or effecting any amendment, modification, waiver, approval, consent, permission, termination, surrender or assignment described in this Section 8.01(b) without the consent of Series 2009-1 Noteholders holding more than 50% of the Series 2009-1 Principal Amount (or the consent of Series 2009-1 Noteholders holding such higher percentage of the Series 2009-1 Principal Amount or all Series 2009-1 Noteholders, as applicable, pursuant to the two immediately preceding provisos), HVF shall deliver to the Trustee and each Funding Agent an Officer’s Certificate executed by an Authorized Officer of HVF and cause to be delivered an Opinion of Counsel (which may be based on an Officer’s Certificate) issued by a law firm of nationally recognized standing confirming, in each case, that such amendment, modification, waiver, approval, consent, permission, termination, surrender or assignment does not affect the Series 2009-1 Noteholders.

 

(c)                                   (i) at the same time any report, notice, certificate, opinion (other than any bankruptcy timing memorandum) or other document (other than any such reports, notices, certificates, opinions or other documents relating solely to any Segregated Series of Notes) is provided to the Rating Agencies and/or the Trustee, or caused to be provided, by HVF or the Administrator under the Base Indenture (including, without limitation, under Sections 8.8 , 8.9 and/or 8.12 thereof), or under the Series 2009-1 Supplement or this Agreement, provide the

 

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Administrative Agent (who shall provide a copy thereof to the Committed Note Purchasers and the Conduit Investors) with a copy of such report, notice, certificate, opinion (other than any bankruptcy timing memorandum) or other document; provided , however , that neither the Administrator nor HVF shall have any obligation under this Section 8.01(c)  to deliver to the Administrative Agent copies of any Monthly Noteholders’ Statements which relate solely to a Series of Indenture Notes other than the Series 2009-1 Notes and (ii) provide the Administrative Agent and each Funding Agent such other information (including financial information), documents, records or reports respecting the Collateral, HVF or the Administrator as the Administrative Agent or any Funding Agent may from time to time reasonably request;

 

(d)                                  at any time and from time to time, following reasonable prior notice from the Administrative Agent or any Funding Agent, and during regular business hours, permit the Administrative Agent or any Funding Agent, or their respective agents or representatives (including any independent public accounting firm or other third party auditors) or permitted assigns, access to the offices of, the Administrator, Hertz, HVF, the Intermediary and the Nominee, as applicable, (i) to examine and make copies of and abstracts from all documentation relating to the Series 2009-1 Collateral on the same terms as are provided to the Trustee under Section 8.6 of the Base Indenture, and (ii) to visit the offices and properties of, the Administrator, Hertz, HVF, the Intermediary and the Nominee for the purpose of examining such materials described in clause (i)  above, and to discuss matters relating to the Series 2009-1 Collateral, or the administration and performance of the Base Indenture, the Series 2009-1 Supplement and the other Series 2009-1 Related Documents with any of the officers or employees of, the Administrator, Hertz, HVF, the Intermediary and/or the Nominee, as applicable, having knowledge of such matters; provided that (i) prior to the occurrence of an Amortization Event or Potential Amortization Event, in each case, with respect to the Series 2009-1 Notes, one such visit per annum coordinated by the Administrative Agent and in which each Funding Agent may participate shall be at HVF’s sole cost and expense and (ii) after the occurrence and during the continuance of an Amortization Event or Potential Amortization Event, in each case, with respect to the Series 2009-1 Notes, each such visit shall be at HVF’s sole cost and expense.  Each party making a request pursuant to this Section 8.01(d)  shall simultaneously send a copy of such request to each of the Administrative Agent and each Funding Agent, as applicable, so as to allow such other parties to participate in the requested visit.

 

(e)                                   at any time and from time to time, following reasonable prior notice from the Administrative Agent, cooperate with the Administrative Agent or its agents or representatives (including any independent public accounting firm or other third party auditors) or permitted assigns in conducting a review of any 10 Business Days selected by the Administrative Agent (or its representatives or agents), confirming (i) the information contained in the Daily Collection Report for each such day and (ii) that the Collections described in each such Daily Collection Report for each such day were applied correctly in accordance with

 

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Article III of the Series 2009-1 Supplement (a “ Cash Audit ”); provided that such Cash Audits shall be at HVF’s sole cost and expense (i) for no more than one such Cash Audit per annum prior to the occurrence of an Amortization Event or Potential Amortization Event, in each case, with respect to the Series 2009-1 Notes, and (ii) for each such Cash Audit after the occurrence and during the continuance of an Amortization Event or Potential Amortization Event, in each case, with respect to the Series 2009-1 Notes.

 

(f)                                     On or prior to the Payment Date occurring in May of each year, the Administrator shall cause a firm of independent certified public accountants (reasonably acceptable to both the Administrative Agent and the Administrator, which may be the Administrator’s accountants) to deliver to the Administrative Agent and each Funding Agent, a report (in form, substance and scope reasonably acceptable to both the Administrative Agent and the Administrator) indicating that such firm has examined the most recently delivered Monthly Noteholder Statement and expressing such firm’s opinion that (a) the data reported, and calculations set forth, in such Monthly Noteholder Statement are the data required to be reported, and the calculations required to be made, in accordance with the terms of the Series 2009-1 Series Supplement and the other Related Documents and (b) the data reported in such Monthly Noteholder Statement accurately reflects the data contained in the Servicer’s systems and other applicable source records (a “ Servicer Audit ”); provided that such Servicer Audits shall be at HVF’s sole cost and expense (i) for no more than one such Servicer Audit per annum prior to the occurrence of an Amortization Event or Potential Amortization Event, in each case, with respect to the Series 2009-1 Notes and (ii) for each such Servicer Audit after the occurrence and during the continuance of an Amortization Event or Potential Amortization Event, in each case, with respect to the Series 2009-1 Notes.

 

(g)                                  not permit any part of the proceeds of any Advance to be (x) used to purchase or carry any Margin Stock or (y) loaned to others for the purpose of purchasing or carrying any Margin Stock;

 

(h)                                  not permit any amounts owed with respect to the Series 2009-1 Notes to be secured, directly or indirectly, by any Margin Stock;

 

(i)                                      promptly provide such additional financial and other information with respect to the Related Documents (other than Series Supplements and Related Documents relating solely to a Series of Notes other than the Series 2009-1 Notes), HVF, Hertz, the Intermediary or the Manufacturer Programs as the Administrative Agent or any Funding Agent may from time to time reasonably request;

 

(j)                                      on and after the Expected Final Payment Date, use all amounts allocated to and available for distribution from each excess collection account in respect of each Series of Notes to decrease, pro rata, the Series 2009-1 Principal

 

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Amount and the principal amount of any other Series of Notes that is then required to be paid ;

 

(k)                                   during the Series 2009-1 Controlled Amortization Period, to the extent necessary, use all amounts allocated to and available for distribution from each excess collection account in respect of each Series of Notes to pay the Series 2009-1 Controlled Amortization Amount on each related Series 2009-1 Controlled Amortization Payment Date and to decrease the principal amount of any other Series of Notes that is then required to be paid on a pro rata basis.

 

(l)                                      deliver to each Funding Agent within 120 days after the end of each fiscal year of HVF, the financial statements prepared pursuant to Section 8.24(d) of the Base Indenture;

 

(m)                                in the case of the Administrator, for so long as a Liquidation Event of Default or Limited Liquidation Event of Default for any Series of Notes is continuing, furnish or cause the Servicer to furnish to the Administrative Agent and each Series 2009-1 Noteholder, the Fleet Report, prepared in accordance with Section 2.4(d) of the Collateral Agency Agreement (which may be on a diskette or other electronic medium);

 

(n)                                  agree to take any and all acts and to execute any and all further instruments necessary or reasonably requested by the Administrative Agent to more fully effect the purposes of this Agreement;

 

(o)                                  in the case of HVF, not issue (x) a Segregated Non-Collateral Agency Series or (y) a subordinated Series of Indenture Notes which is wholly subordinated to each Series of Indenture Notes Outstanding, in each case, without the prior written consent of Series 2009-1 Noteholders holding more than 50% of the Series 2009-1 Principal Amount;

 

(p)                                  not enter into any agreement substantially similar in substance to the Administration Agreement with respect to any issuance of a Segregated Series without the prior written consent of Series 2009-1 Noteholders holding more than 50% of the Series 2009-1 Principal Amount, unless (i) the administrator pursuant to such agreement is Hertz and (ii) such agreement is in form and substance substantially the same as the Administration Agreement in all material respects;

 

(q)                                  not appoint or agree to the appointment of any successor Administrator (other than the Back-Up Administrator) without the prior written consent of Series 2009-1 Noteholders holding more than 50% of the Series 2009-1 Principal Amount;

 

(r)                                     not amend the Back-Up Disposition Agent Agreement in a manner that materially adversely affect the Series 2009-1 Noteholders, as determined by the Administrative Agent in its sole discretion, without the prior written consent of Series 2009-1 Noteholders holding more than 50% of the Series 2009-1 Principal Amount;

 

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(s)            (x) not remove any Independent Director of the Nominee or HVF (as defined in the LLC Agreement or the HVF LLC Agreement, respectively), without (i) delivering an Officer’s Certificate to the Administrative Agent certifying that the replacement Independent Director of the applicable entity satisfies the definition of “Independent Director” in LLC Agreement and the HVF LLC Agreement, as applicable and (ii) obtaining the prior written consent of the Administration Agent (not to be unreasonably withheld or delayed), in each case, no later than 10 Business Days prior to the effectiveness of such removal and (y) not replace any Independent Director of the Nominee or HVF (as defined in the LLC Agreement or the HVF LLC Agreement, respectively) unless (i) it has obtained the prior written consent of the Administration Agent (not to be unreasonably withheld or delayed) or (ii) such replacement Independent Director is an officer, director or employee of an entity that provides, in the ordinary course of  its business, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities and otherwise meets the applicable definition of Independent Director ;

 

(t)             within 45 days following the end of each calendar quarter, provide to the Trustee, the Administrative Agent, each Funding Agent and each Committed Note Purchaser, a report containing the information set forth in, and substantially in the form of, Exhibit E hereto;

 

(u)            within five Business Days of the execution of any amendment or modification of this Agreement or any Series 2009-1 Related Document or the Back-Up Disposition Agent Agreement, the Administrator shall provide written notification of such amendment or modification to each Rating Agency and Standard & Poor’s; and

 

(v)            for so long as any Series 2009-1 Commercial Paper is being rated by Standard & Poor’s,  neither the Administrator nor HVF shall invest, or direct the investment of, any funds on deposit in any Series 2009-1 Series Account, the Series 2009-1 Cash Collateral Account or the Series 2009-1 Reserve Account in a Permitted Investment that is a Permitted Investment pursuant to clause (viii) of the definition thereof (an “Additional Permitted Investment”), unless the Administrator shall have received confirmation in writing from Standard & Poor’s that the investment of such funds in an Additional Permitted Investment will not cause the rating on such Series 2009-1 Commercial Paper being rated by Standard & Poor’s to be reduced or withdrawn.

 

ARTICLE IX

MISCELLANEOUS PROVISIONS

 

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

 

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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.

 

(a)            Notwithstanding any other provision set forth in this Agreement, each Conduit Investor or, if there is no Conduit Investor with respect to any Investor Group, the Committed Note Purchaser with respect to such Investor Group may at any time grant to one or more Program Support Providers (or, in the case of a Conduit Investor, to its related Committed Note Purchaser) a participating interest in or lien on, or otherwise transfer and assign to one or more Program Support Providers (or, in the case of a Conduit Investor, to its related Committed Note Purchaser), such Conduit Investor’s or, if there is no Conduit Investor with respect to any Investor Group, the related Committed Note Purchaser’s interests in the Advances made hereunder and such Program Support Provider (or such Committed Note Purchaser, as the case may be), with respect to its participating or assigned interest, shall be entitled to the benefits granted to such Conduit Investor or Committed Note Purchaser, as applicable, under this Agreement.

 

(b)            Notwithstanding any other provision set forth in this Agreement, each Conduit Investor may at any time, without the consent of HVF, transfer and assign all or a portion of its rights in the Series 2009-1 Notes (and its rights hereunder and under the Related Documents) to its related Committed Note Purchaser.  Furthermore, each Conduit Investor may at any time grant a security interest in and lien on, all or any portion of its interests under this Agreement, its Series 2009-1 Note and all Related Documents to (i) its related Committed Note Purchaser, (ii) its Funding Agent, (iii) any Program Support Provider who, at any time now or in the future, provides program liquidity or credit enhancement, including without limitation, an insurance policy for such Conduit Investor relating to the Series 2009-1 Commercial Paper or the Series 2009-1 Notes, (iv) any other Person who, at any time now or in the future, provides liquidity or credit enhancement for the Conduit Investors, including without limitation, an insurance policy relating to the Series 2009-1 Commercial Paper or the Series 2009-1 Notes or (v) any collateral trustee or collateral agent for any of the foregoing; provided , however , any

 

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such security interest or lien shall be released upon assignment of its Series 2009-1 Note to its related Committed Note Purchaser.  Each Committed Note Purchaser may assign its Commitment, or all or any portion of its interest under its Series 2009-1 Note, this Agreement and the Related Documents to any Person with the prior written consent of HVF, such consent not to be unreasonably withheld.  Notwithstanding any other provisions set forth in this Agreement, each Committed Note Purchaser may at any time create a security interest in all or any portion of its rights under this Agreement, its Series 2009-1 Note and the Related Documents in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or any similar foreign entity.

 

SECTION 9.04   Survival of Agreement .  All covenants, agreements, representations and warranties made herein and in the Series 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.

 

SECTION 9.05   Payment of Costs and Expenses; Indemnification .  (a)   Payment of Costs and Expenses .  HVF agrees to pay on demand all reasonable expenses of the Administrative Agent, each Funding Agent, each Conduit Investor and each Committed Note Purchaser (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel to each Conduit Investor and each Committed Note Purchaser, if any, as well as the fees and expenses of the Rating Agencies providing a rating in respect of any Series 2009-1 Commercial Paper) in connection with

 

(i)             the negotiation, preparation, execution, delivery and administration of this Agreement and of each other Related Document, including schedules and exhibits, and any liquidity, credit enhancement or insurance documents of a Program Support Provider with respect to a Conduit Investor relating to the Series 2009-1 Notes and any amendments, waivers, consents, supplements or other modifications to this Agreement or any other Related Document as may from time to time hereafter be proposed, whether or not the transactions contemplated hereby or thereby are consummated, and
 
(ii)            the consummation of the transactions contemplated by this Agreement and the other Related Documents.
 

HVF further agrees to pay, and to save the Administrative Agent, each Funding Agent, each Conduit Investor and each Committed Note Purchaser harmless from all liability for (i) any breach by HVF of its obligations under this Agreement, (ii) all reasonable costs  incurred by the Administrative Agent, such Funding Agent, such Conduit Investor or

 

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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.

 

(b)            Indemnification .  In consideration of the execution and delivery of this Agreement by the Conduit Investors and the Committed Note Purchasers, HVF hereby indemnifies and holds each Conduit Investor and each Committed Note Purchaser and each of their officers, directors, employees and agents (collectively, the “ Indemnified Parties ”) harmless from and against any and all actions, causes of action, suits, losses, costs, liabilities and damages, and reasonable expenses incurred in connection therewith (irrespective of whether any such Indemnified Party is a party to the action for which indemnification hereunder is sought and including, without limitation, any liability in connection with the offering and sale of the Series 2009-1 Notes), including reasonable attorneys’ fees and disbursements (collectively, the “ Indemnified Liabilities ”), incurred by the Indemnified Parties or any of them (whether in prosecuting or defending against such actions, suits or claims) to the extent resulting from, or arising out of, or relating to

 

(i)             any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of any Advance; or

 

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(ii)            the entering into and performance of this Agreement and any other Related Document by any of the Indemnified Parties,
 

except for any such Indemnified Liabilities arising for the account of a particular Indemnified Party by reason of the relevant Indemnified Party’s gross negligence or willful misconduct.  If and to the extent that the foregoing undertaking may be unenforceable for any reason, HVF hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.  The indemnity set forth in this Section 9.05(b)  shall in no event include indemnification for any taxes (which indemnification is provided in Section 3.08 ).  HVF shall give notice to the Rating Agencies of any claim for Indemnified Liabilities made under this Section.

 

(c)            Indemnification of the Administrative Agent and each Funding Agent .  (i) In consideration of the execution and delivery of this Agreement by the Administrative Agent and each Funding Agent, HVF hereby indemnifies and holds the Administrative Agent and each Funding Agent and each of their respective officers, directors, employees and agents (collectively, the “ Agent Indemnified Parties ”) harmless from and against any and all actions, causes of action, suits, losses, costs, liabilities and damages, and reasonable expenses incurred in connection therewith (irrespective of whether any such Agent Indemnified Party is a party to the action for which indemnification hereunder is sought and including, without limitation, any liability in connection with the offering and sale of the Series 2009-1 Notes), including reasonable attorneys’ fees and disbursements (collectively, the “ Agent Indemnified Liabilities ”), incurred by the Agent Indemnified Parties or any of them (whether in prosecuting or defending against such actions, suits or claims) to the extent resulting from, or arising out of, or relating to the entering into and performance of this Agreement and any other Related Document by any of the Agent Indemnified Parties, except for any such Agent Indemnified Liabilities arising for the account of a particular Agent Indemnified Party by reason of the relevant Agent Indemnified Party’s gross negligence or willful misconduct.  If and to the extent that the foregoing undertaking may be unenforceable for any reason, HVF hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Agent Indemnified Liabilities which is permissible under applicable law.  The indemnity set forth in this Section 9.05(c)(i)  shall in no event include indemnification for any taxes (which indemnification is provided in Section 3.08 ).  HVF shall give notice to the Rating Agencies of any claim for Agent Indemnified Liabilities made under this section.
 
(ii)            In consideration of the execution and delivery of this Agreement by the Administrative Agent, each Funding Agent and each Committed Note Purchaser, ratably according to its respective Commitment, hereby indemnifies and holds the Administrative Agent and each of its officers, directors, employees and agents (collectively, the “ Administrative Agent Indemnified Parties ”) and each Funding Agent and each of its officers, directors, employees and agents (collectively, the “ Funding Agent Indemnified Parties ”, and together with the Administrative Agent Indemnified Parties, the “ Agent Indemnified Parties ”) harmless from and against any and all actions, causes of action, suits, losses, costs, liabilities and damages, and reasonable expenses

 

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incurred in connection therewith (solely to the extent not reimbursed by or on behalf of HVF) (irrespective of whether any such Agent Indemnified Party is a party to the action for which indemnification hereunder is sought and including, without limitation, any liability in connection with the offering and sale of the Series 2009-1 Notes), including reasonable attorneys’ fees and disbursements (collectively, the “ Agent Indemnified Liabilities ”), incurred by the Agent Indemnified Parties or any of them (whether in prosecuting or defending against such actions, suits or claims) to the extent resulting from, or arising out of, or relating to the entering into and performance of this Agreement and any other Related Document by any of the Agent Indemnified Parties, except for any such Agent Indemnified Liabilities arising for the account of a particular Agent Indemnified Party by reason of the relevant Agent Indemnified Party’s gross negligence or willful misconduct.  If and to the extent that the foregoing undertaking may be unenforceable for any reason, each Funding Agent and each Committed Note Purchaser hereby agrees to make the maximum contribution to the payment and satisfaction of each of the Agent Indemnified Liabilities which is permissible under applicable law.  The indemnity set forth in this Section 9.05(c)(ii)  shall in no event include indemnification for any taxes (which indemnification is provided in Section 3.08 ).  Each Committed Note Purchaser shall give notice to the Rating Agencies of any claim for Agent Indemnified Liabilities made under this section.
 

SECTION 9.06   Characterization as Related Document; Entire Agreement .  This Agreement shall be deemed to be a Related Document for all purposes of the Base Indenture and the other Related Documents.  This Agreement, together with the Base Indenture, the Series 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.

 

SECTION 9.10   No Proceedings; Limited Recourse .  (a)  HVF .  Each of the parties hereto (other than HVF) hereby covenants and agrees that, prior to the date which is one year and one day after the payment in full of any Indenture Notes issued by HVF pursuant to the Base Indenture, it will not institute against or join with, encourage or cooperate with any other Person in instituting against, HVF, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any Federal or state bankruptcy or similar law, all as more particularly set forth in Section 13.15 of the Base Indenture and subject to any retained rights set forth therein; provided , however , that nothing in this Section 9.10(a)  shall constitute a waiver of any right to indemnification, reimbursement or other payment from HVF pursuant to this Agreement, the Series 2009-1 Supplement or the Base Indenture.  In the event that a Committed Note Purchaser (solely in its capacity as such) or a Conduit Investor (solely in its capacity as such) takes action in violation of this Section 9.10(a) , HVF agrees that it shall file an answer with the bankruptcy court or otherwise properly contest the filing of such a petition by any such Person against HVF or the commencement of such action and raise the defense that such Person has agreed in writing not to take such action and should be estopped and precluded therefrom and such other defenses, if any, as its counsel advises that it may assert.  The provisions of this Section 9.10(a)  shall survive the termination of this Agreement.  Nothing contained herein shall preclude participation by a Committed Note Purchaser or a Conduit Investor in assertion or defense of its claims in any such proceeding involving HVF.  The obligations of HVF under this Agreement are solely the limited liability company obligations of HVF.  In addition, each of the parties hereto agrees that all fees, expenses and other costs payable hereunder by HVF shall be payable only to the extent set forth in Section 13.16 of the Base Indenture and that all other amounts owed to them by HVF shall be payable solely from amounts that become available for payment pursuant to the Base Indenture and the Series 2009-1 Supplement.

 

(b)            The Conduit Investors .  Each of the parties hereto hereby covenants and agrees that it will not, prior to the date which is one year and one day after the payment in full of the latest maturing Series 2009-1 Commercial Paper or other debt securities or instruments issued by a Conduit Investor, institute against, or join with any other Person in instituting against, such Conduit Investor, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any Federal or state bankruptcy or similar law, subject to any retained rights set forth therein; provided , however , that nothing in this Section 9.10(b)  shall constitute a waiver of any right to indemnification, reimbursement or other payment from such Conduit Investor pursuant to this Agreement, the Series 2009-1 Supplement or the Base Indenture.  In the event that HVF, the Administrator, a Committed Note Purchaser (solely in its capacity as such) or Hertz takes action in violation of this Section 9.10(b) , such related Conduit Investor may file an answer with the bankruptcy court or otherwise properly contest the

 

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filing of such a petition by any such Person against such Conduit Investor or the commencement of such action and raise the defense that such Person has agreed in writing not to take such action and should be estopped and precluded therefrom and such other defenses, if any, as its counsel advises that it may assert.  The provisions of this Section 9.10(b)  shall survive the termination of this Agreement.  Nothing contained herein shall preclude participation by HVF, the Administrator, a Committed Note Purchaser or Hertz in assertion or defense of its claims in any such proceeding involving a Conduit Investor.  The obligations of the Conduit Investors under this Agreement are solely the corporate obligations of the Conduit Investors.  No recourse shall be had for the payment of any amount owing in respect of this Agreement, including any obligation or claim arising out of or based upon this Agreement, against any stockholder, employee, officer, agent, director, member, affiliate or incorporator of any Conduit Investor; provided , however , nothing in this Section 9.10(b)  shall relieve any of the foregoing Persons from any liability which any such Person may otherwise have for its gross negligence or willful misconduct.

 

Notwithstanding any provisions contained in this Agreement to the contrary, the Conduit Investors shall not, and shall not be obligated to, fund or pay any amount pursuant to this Agreement or the Series 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 Conduit’s 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

 

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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

 

44


 

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 Purchaser’s Committed Note Purchaser Percentage and the desired effective date of such Additional Investor Group becoming a party to this Agreement.  Each Additional Investor Group shall, upon the execution of an Addendum by such Additional Investor Group, the Administrative Agent and HVF, become a party to this Agreement from and after the date of such execution with the same effect as if such Additional Investor Group had been an original party hereunder and the Administrative Agent shall amend Schedule I hereto in accordance with the information provided in the notice described above.

 

SECTION 9.17   Assignment .  (a)  Any Committed Note Purchaser may at any time sell all or any part of its rights and obligations under this Agreement and the Series 2009-1 Notes, with the prior written consent of HVF, which consent shall not be unreasonably withheld, to one or more financial institutions (an “ Acquiring Committed Note Purchaser ”) pursuant to an assignment and assumption agreement, substantially in the form of Exhibit B (the “ Assignment and Assumption Agreement ”), executed by such Acquiring Committed Note Purchaser, such assigning Committed Note Purchaser, the Funding Agent with respect to such Committed Note Purchaser and HVF and delivered to the Administrative Agent; provided that the consent of HVF to any such assignment shall not be required (i) after the occurrence and during the continuance of an Amortization Event with respect to the Series 2009-1 Notes or (ii) if such Acquiring Committed Note Purchaser is an Affiliate of such assigning Committed Note Purchaser.

 

45



 

(b)           Without limiting the foregoing, each Conduit Investor may assign all or a portion of the Investor Group Principal Amount with respect to such Conduit Investor and its rights and obligations under this Agreement and any other Related Documents to which it is a party (or otherwise to which it has rights) to a Conduit Assignee with respect to such Conduit Investor without the prior written consent of HVF.  Upon such assignment by a Conduit Investor to a Conduit Assignee, (i) such Conduit Assignee shall be the owner of the Investor Group Principal Amount or such portion thereof with respect to such Conduit Investor, (ii) the related administrative or managing agent for such Conduit Assignee will act as the Funding Agent for such Conduit Assignee hereunder, with all corresponding rights and powers, express or implied, granted to the Funding Agent hereunder or under the other Related Documents, (iii) such Conduit Assignee and its liquidity support provider(s) and credit support provider(s) and other related parties, in each case relating to the Series 2009-1 Commercial Paper and/or the Series 2009-1 Notes, shall have the benefit of all the rights and protections provided to such Conduit Investor herein and in the other Related Documents (including, without limitation, any limitation on recourse against such Conduit Assignee as provided in this paragraph), (iv) such Conduit Assignee shall assume all of such Conduit Investor’s obligations, if any, hereunder or under the Base Indenture or under any other Related Document with respect to such portion of the Investor Group Principal Amount and such Conduit Investor shall be released from such obligations, (v) all distributions in respect of the Investor Group Principal Amount or such portion thereof with respect to such Conduit Investor shall be made to the applicable Funding Agent on behalf of such Conduit Assignee, (vi) the definition of the term “CP Rate” with respect to the portion of the Investor Group Principal Amount with respect to such Conduit Investor, as applicable funded with commercial paper issued by such Conduit Assignee from time to time shall be determined in the manner set forth in the definition of “CP Rate” applicable to such Conduit Assignee on the basis of the interest rate or discount applicable to commercial paper issued by such Conduit Assignee (rather than any other Conduit Investor), (vii) the defined terms and other terms and provisions of this Agreement and the other Related Documents shall be interpreted in accordance with the foregoing, and (viii) if requested by the Funding Agent with respect to such Conduit Assignee, the parties will execute and deliver such further agreements and documents and take such other actions as the Funding Agent may reasonably request to evidence and give effect to the foregoing.  No assignment by any Conduit Investor to a Conduit Assignee of all or any portion of the Investor Group Principal Amount with respect to such Conduit Investor shall in any way diminish the obligation of the Committed Note Purchasers in the same Investor Group as such Conduit Investor under Section 2.03 to fund any Increase not funded by such Conduit Investor or such Conduit Assignee.

 

(c)           Any Conduit Investor and the Committed Note Purchaser with respect to such Conduit Investor may at any time sell all or any part of their respective rights and obligations under this Agreement and the Series 2009-1 Notes, with the prior written consent of HVF, which consent shall not be unreasonably withheld, to a multi-seller commercial paper conduit, whose commercial paper has ratings of at least “A-2” from S&P and “P2” from Moody’s and one or more financial institutions providing support to such multi-seller commercial paper conduit (an “ Acquiring Investor Group ”) pursuant to a transfer supplement, substantially in the form of Exhibit C (the “ Investor

 

46



 

Group Supplement ”), executed by such Acquiring Investor Group, the Funding Agent with respect to such Acquiring Investor Group (including the Conduit Investor and the Committed Note Purchasers with respect to such Investor Group), such assigning Conduit Investor and the Committed Note Purchasers with respect to such Conduit Investor, the Funding Agent with respect to such assigning Conduit Investor and Committed Note Purchasers and HVF and delivered to the Administrative Agent; provided that the consent of HVF to any such assignment shall not be required after the occurrence and during the continuance of an Amortization Event with respect to the Series 2009-1 Notes; provided further that it shall not be considered unreasonable for HVF to withhold its consent to an assignment to a potential Acquiring Investor Group that has ratings of at least “A-2” from S&P and “P2” by Moody’s, but does not have ratings of at least “A-1” from S&P or “P1” by Moody’s if such assignment will result in a material increase in HVF’s costs of financing with respect to the applicable Series 2009-1 Notes.

 

(d)           Any Committed Note Purchaser may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more financial institutions or other entities (“ Participants ”) participations in its Committed Note Purchaser Percentage of the Maximum Investor Group Principal Amount with respect to it and the other Committed Note Purchasers included in the related Investor Group, its Series 2009-1 Note and its rights hereunder (or, in each case, a portion thereof) pursuant to documentation in form and substance satisfactory to such Committed Note Purchaser and the Participant; provided , however , that (i) in the event of any such sale by a Committed Note Purchaser to a Participant, (A) such Committed Note Purchaser’s obligations under this Agreement shall remain unchanged, (B) such Committed Note Purchaser shall remain solely responsible for the performance thereof and (C) HVF and the Administrative Agent shall continue to deal solely and directly with such Committed Note Purchaser in connection with its rights and obligations under this Agreement and (ii) no Committed Note Purchaser shall sell any participating interest under which the Participant shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement, the Base Indenture, the Series 2009-1 Supplement or any Related Document, except to the extent that the approval of such amendment, consent or waiver otherwise would require the unanimous consent of all Committed Note Purchasers hereunder.  A Participant shall have the right to receive reimbursement for amounts due pursuant to Sections 3.05 , 3.06 , 3.07 and 3.08 but only to the extent that the related selling Committed Note Purchaser would have had such right absent the sale of the related participation and, with respect to amounts due pursuant to Section 3.08 , only to the extent such Participant shall have complied with the provisions of Section 3.08 as if such Participant were a Committed Note Purchaser.

 

(e)           HVF authorizes each Committed Note Purchaser to disclose to any Participant or Acquiring Committed Note Purchaser (each, a “ Transferee ”) and any prospective Transferee any and all financial information in such Committed Note Purchaser’s possession concerning HVF, the Collateral, the Administrator and the Related Documents which has been delivered to such Committed Note Purchaser by HVF or the Administrator in connection with such Committed Note Purchaser’s credit evaluation of HVF, the Collateral and the Administrator.

 

47



 

[Remainder of Page Intentionally Blank]

 

48



 

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.

 

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Vice President & Treasurer

 

 

 

 

 

 

 

Address:

225 Brae Boulevard

 

 

Park Ridge, NJ 07656

 

 

 

 

Attention:

Treasury Department

 

Telephone:

(201) 307-2000

 

Facsimile:

(201)307-2746

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

 

THE HERTZ CORPORATION

 

 

 

 

 

By:

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: Treasurer

 

 

 

 

 

 

 

Address:

225 Brae Boulevard

 

 

Park Ridge, NJ 07656

 

 

 

 

Attention:

Treasury Department

 

Telephone:

(201) 307-2000

 

Facsimile:

(201)307-2746

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]


 

 

 

BANK OF AMERICA, N.A., as a Funding Agent

 

 

 

 

 

By:

/s/ Charles Owens

 

 

Name:

Charles Owens

 

 

Title:

Director

 

 

 

 

 

 

 

 

Address:

214 North Tryon Street

 

 

Charlotte, NC 28255

 

 

 

 

 

 

 

Attention:

Tim Pacitto

 

Telephone:

(980) 388-9464

 

Facsimile:

(704) 387-2828

 

Email:

timothy.pacitto@bankofamerica.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

KITTY HAWK FUNDING CORPORATION, as a Conduit Investor

 

 

 

 

 

By:

/s/ Phillip A. Martone

 

 

Name:

Phillip A. Martone

 

 

Title:

Vice President

 

 

 

 

 

 

 

Address:

48 Wall Street

 

 

27 th  Floor

 

 

New York, NY 10005

 

 

 

 

 

 

 

Attention:

Laura A. Calvaruso

 

Telephone:

(212) 346-9000

 

Facsimile:

(212) 346-9012

 

Email:

lac@lordspv.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

BANK OF AMERICA, N.A., as a Committed Note Purchaser

 

 

 

 

 

By:

/s/ Charles Owens

 

 

Name:

Charles Owens

 

 

Title:

Director

 

 

 

 

 

 

 

Address:

214 North Tryon Street

 

 

Charlotte, NC 28255

 

 

 

 

 

 

 

Attention:

Tim Pacitto

 

Telephone:

(980) 388-9464

 

Facsimile:

(704) 387-2828

 

Email:

timothy.pacitto@bankofamerica.com

 

 

 

 

 

 

COMMITMENT AMOUNT:

 

 

$225,000,000.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 10.52%

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

THE BANK OF NOVA SCOTIA, acting through its New York Agency, as a Funding Agent

 

 

 

 

 

By:

/s/ Darren Ward

 

 

Name:

Darren Ward

 

 

Title:

Director

 

 

 

 

 

 

 

Address:

One Liberty Plaza

 

 

26 th  Floor

 

 

New York, NY 10006

 

 

 

 

 

 

 

Attention:

Darren Ward

 

Telephone:

(212) 225-5264

 

Facsimile:

(212) 225-5274

 

Email:

darren_ward@scotiacapital.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

LIBERTY STREET FUNDING LLC, as a Conduit Investor

 

 

 

 

 

By:

/s/ Bernard J. Angelo

 

 

Name:

Bernard J. Angelo

 

 

Title:

Vice President

 

 

 

 

 

 

 

Address:

68 South Service Road

 

 

Suite 120

 

 

Melville, NY 11747

 

 

 

 

 

 

 

Attention:

Jill Russo

 

Telephone:

(631) 587-4700

 

Facsimile:

(212) 302-5151

 

Email:

jrusso@gssnyc.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

THE BANK OF NOVA SCOTIA, acting through its New York Agency, as a Committed Note Purchaser

 

 

 

 

 

By:

/s/ Darren Ward

 

 

Name:

Darren Ward

 

 

Title:

Director

 

 

 

 

 

 

 

Address:

One Liberty Plaza

 

 

26 th  Floor

 

 

New York, NY 10006

 

 

 

 

 

 

 

Attention:

Darren Ward

 

Telephone:

(212) 225-5264

 

Facsimile:

(212) 225-5274

 

Email:

darren_ward@scotiacapital.com

 

 

 

 

 

 

 

COMMITMENT AMOUNT:

 

 

$75,000,000.00

 

 

 

 

 

 

 

COMMITMENT PERCENTAGE: 3.51%

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

BARCLAYS BANK PLC, as a Funding Agent

 

 

 

 

 

By:

/s/ Jeffrey Goldberg

 

 

Name:

Jeffrey Goldberg

 

 

Title:

Associate Director

 

 

 

 

 

 

 

Address:

745 Seventh Avenue

 

 

5 th  Floor

 

 

New York, NY 10019

 

 

 

 

 

 

 

Attention:

Jeffrey Goldberg

 

Telephone:

(212) 528-7372

 

Facsimile:

N/A

 

Email:

Jeffrey.Goldberg@barcap.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

SHEFFIELD RECEIVABLES CORPORATION, as a Conduit Investor

 

 

 

 

 

By:

/s/ Jason D. Muncy

 

 

Name:

Jason D. Muncy

 

 

Title:

Associate Director

 

 

 

 

 

 

 

Address:

c/o Barclays Bank PLC

 

 

745 Seventh Avenue

 

 

5 th  Floor

 

 

New York, NY 10019

 

 

 

 

 

 

 

Attention:

Janette Lieu

 

Telephone:

(212) 528-7475

 

Facsimile:

(917) 265-1116

 

Email:

Janette.Lieu@barcap.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

SHEFFIELD RECEIVABLES CORPORATION, as a Committed Note Purchaser

 

 

 

 

 

By:

/s/ Jason D. Muncy

 

 

Name:

Jason D. Muncy

 

 

Title:

Associate Director

 

 

 

 

 

 

 

Address:

c/o Barclays Bank PLC

 

 

745 Seventh Avenue

 

 

5 th  Floor

 

 

New York, NY 10019

 

 

 

 

 

 

 

Attention:

Janette Lieu

 

Telephone:

(212) 528-7475

 

Facsimile:

(917) 265-1116

 

Email:

Janette.Lieu@barcap.com

 

 

 

 

 

 

 

COMMITMENT AMOUNT:

 

 

$300,000,000.00

 

 

 

 

 

 

 

COMMITMENT PERCENTAGE: 14.03%

 

Hertz 2009-1 Note Purchase Agreement

 


 

 

BMO CAPITAL MARKETS CORP., as a Funding Agent

 

 

 

 

 

By:

/s/ Keith Niebrugge

 

 

Name:

Keith Niebrugge

 

 

Title:

Managing Director

 

 

 

 

 

 

 

Address:

115 S. LaSalle Street, 13W

 

 

Chicago, IL 60603

 

 

 

 

 

 

 

Attention:

Keith Niebrugge

 

Telephone:

(312) 461-3134

 

Facsimile:

(312) 293-4908

 

Email:

keith.niebrugge@bmo.com

 

 

 

 

with a copy to:

 

 

 

 

Address:

115 S. LaSalle Street, 13W

 

 

Chicago, IL 60603

 

 

 

 

 

 

 

Attention:

Jeffrey BaCote

 

Telephone:

(312) 461-7449

 

Facsimile:

(312) 461-3189

 

Email:

jeff.bacote@bmo.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

FAIRWAY FINANCE COMPANY LLC, as a Conduit Investor

 

 

 

 

 

By:

/s/ Phillip A. Martone

 

 

Name:

Phillip A. Martone

 

 

Title:

Vice President

 

 

 

 

 

 

 

Address:

c/o Lord Securities Corp.

 

 

48 Wall Street

 

 

27 th  Floor

 

 

New York, NY 10005

 

 

 

 

 

 

 

Attention:

Phil Martone

 

Telephone:

(212) 346-9008

 

Facsimile:

(212) 346-9012

 

Email:

pmartone@lordspv.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

BANK OF MONTREAL, as a Committed Note Purchaser

 

 

 

 

 

By:

/s/ Sandra J. Sanders

 

 

Name:

Sandra J. Sanders

 

 

Title:

Managing Director

 

 

 

 

 

 

 

Address:

115 S. LaSalle Street, 13W

 

 

Chicago, IL 60603

 

 

 

 

 

 

 

Attention:

Zachary Norman

 

Telephone:

(312) 461-3843

 

Facsimile:

(312) 293-4948

 

Email:

zachary.norman@bmo.com

 

 

 

 

 

 

 

COMMITMENT AMOUNT:

 

 

$100,000,000.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 4.68%

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

CALYON NEW YORK BRANCH, as a Funding Agent

 

 

 

 

 

By:

/s/ Sam Pilcer

 

 

Name:

Sam Pilcer

 

 

Title:

Managing Director

 

 

 

 

 

 

 

By:

/s/ Richard McBride

 

 

Name:

Richard McBride

 

 

Title:

Director

 

 

 

 

 

 

 

Address:

1301 Avenue of the Americas

 

 

New York, NY 10019

 

 

 

 

 

 

 

Attention:

Florence Reyes

 

Telephone:

(212) 261-7897

 

Facsimile:

(917) 849-5447

 

Email:

Conduitsec@us.calyon.com and

 

 

Conduit.Funding@us.calyon.com

 

 

 

 

with a copy to:

 

 

 

 

Address:

1301 Avenue of the Americas

 

 

New York, NY 10019

 

 

 

 

 

 

 

Attention:

Roman Burt

 

Telephone:

(212) 261-3996

 

Facsimile:

(917) 849-5447

 

Email:

Conduitsec@us.calyon.com and

 

 

Conduit.Funding@us.calyon.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

ATLANTIC ASSET SECURITIZATION LLC, as a Conduit Investor

 

 

 

By: CALYON NEW YORK BRANCH, as Attorney-in-Fact

 

 

 

 

 

By:

/s/ Sam Pilcer

 

 

Name:

Sam Pilcer

 

 

Title:

Managing Director

 

 

 

 

 

By:

/s/ Richard McBride

 

 

Name:

Richard McBride

 

 

Title:

Director

 

 

 

 

 

Address:

1301 Avenue of the Americas

 

 

New York, NY 10019

 

 

 

 

 

 

 

Attention:

Tina Kourmpetis

 

Telephone:

(212) 261-7814

 

Facsimile:

(917) 849-5447

 

Email:

Conduitsec@us.calyon.com and

 

 

Conduit.Funding@us.calyon.com

 

 

 

 

with a copy to:

 

 

 

 

Address:

1301 Avenue of the Americas

 

 

New York, NY 10019

 

 

 

 

 

 

 

Attention:

Betty Wu

 

Telephone:

(212) 261-7858

 

Facsimile:

(917) 849-5447

 

Email:

Conduitsec@us.calyon.com and

 

 

Conduit.Funding@us.calyon.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

CALYON NEW YORK BRANCH, as a Committed Note Purchaser

 

 

 

 

 

By:

/s/ Sam Pilcer

 

 

Name:

Sam Pilcer

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

By:

/s/ Richard McBride

 

 

Name:

Richard McBride

 

 

Title:

Director

 

 

 

 

 

 

 

Address:

1301 Avenue of the Americas

 

 

New York, NY 10019

 

 

 

 

 

 

 

Attention:

Tina Kourmpetis

 

Telephone:

(212) 261-7814

 

Facsimile:

(917) 849-5447

 

Email:

Conduitsec@us.calyon.com and

 

 

Conduit.Funding@us.calyon.com

 

 

 

 

with a copy to:

 

 

 

 

Address:

1301 Avenue of the Americas

 

 

New York, NY 10019

 

 

 

 

 

 

 

Attention:

Betty Wu

 

Telephone:

(212) 261-7858

 

Facsimile:

(917) 849-5447

 

Email:

Conduitsec@us.calyon.com and

 

 

Conduit.Funding@us.calyon.com

 

 

 

 

 

 

 

COMMITMENT AMOUNT:

 

 

$197,244,000.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 9.23%

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

DEUTSCHE BANK AG, NEW YORK BRANCH, as a Funding Agent

 

 

 

 

 

By:

/s/ Daniel Gerber

 

 

Name:

Daniel Gerber

 

 

Title:

Director

 

 

 

 

 

 

 

By:

/s/ Robert Sheldon

 

 

Name:

Robert Sheldon

 

 

Director

 

 

 

 

 

 

 

Address:

60 Wall Street

 

 

3 rd  Floor

 

 

New York, NY 10005

 

 

 

 

 

 

 

Attention:

Ozan Kaya

 

Telephone:

(212) 250-4998

 

Facsimile:

(212) 797-5300

 

Email:

ozan.kaya@db.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

SARATOGA FUNDING CORP., LLC, as a Conduit Investor

 

 

 

 

 

By:

/s/ Lori Gebron

 

 

Name:

Lori Gebron

 

 

Title:

Vice President

 

 

 

 

 

 

 

 

Address:

60 Wall Street

 

 

3 rd  Floor

 

 

New York, NY 10005

 

 

 

 

 

 

 

Attention:

Timothy Geraghty

 

Telephone:

(212) 250-7364

 

Facsimile:

(917) 338-3018

 

Email:

timothy.geraghty@db.com

 

 

 

 

with a copy to:

 

 

 

 

Address:

60 Wall Street

 

 

3 rd  Floor

 

 

New York, NY 10005

 

 

 

 

 

 

 

Attention:

Rachel Wills

 

Telephone:

(904) 520-5359

 

Facsimile:

(904) 520-8175

 

Email:

rachel.wills@db.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

DEUTSCHE BANK AG, NEW YORK BRANCH, as a Committed Note Purchaser

 

 

 

 

 

By:

/s/ Daniel Gerber

 

 

Name:

Daniel Gerber

 

 

Title:

Director

 

 

 

 

 

 

 

 

 

By:

/s/ Robert Sheldon

 

 

Name:

Robert Sheldon

 

 

Director

 

 

 

 

 

 

 

Address:

60 Wall Street

 

 

3 rd  Floor

 

 

New York, NY 10005

 

 

 

 

 

 

 

Attention:

Ozan Kaya

 

Telephone:

(212) 250-4998

 

Facsimile:

(212) 797-5300

 

Email:

ozan.kaya@db.com

 

 

 

 

 

 

 

COMMITMENT AMOUNT:

 

 

$627,525,000.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 29.35%

 

Hertz 2009-1 Note Purchase Agreement

 


 

 

DEUTSCHE BANK AG, NEW YORK
BRANCH, as the Administrative Agent

 

 

 

 

 

By:

/s/ Daniel Gerber

 

 

Name:  Daniel Gerber

 

 

Title:  Director

 

 

 

 

 

 

 

By:

/s/ Robert Sheldon

 

 

Name:  Robert Sheldon

 

 

Title:  Director

 

 

 

 

 

 

 

Address:

60 Wall Street, 3rd Floor

 

 

New York, NY 10005-2858

 

 

 

 

Attention:

Robert Sheldon

 

Telephone:

(212) 250-4493

 

Facsimile:

(212) 797-5160

 

 

 

 

 

 

 

With electronic copy to abs.conduits@db.com

 

[SERIES 2009-1 NOTE PURCHASE AGREEMENT]

 



 

 

ING CAPITAL MARKETS LLC, as a Funding Agent

 

 

 

 

 

By:

/s/ Leonard Y.K. Woo, Jr.

 

 

Name:

Leonard Y.K. Woo, Jr.

 

 

Title:

Director

 

 

 

 

 

 

 

Address:

1325 Avenue of the Americas

 

 

New York, NY 10019

 

 

 

 

 

 

 

Attention:

Dennis Strid

 

Telephone:

(646) 424-7908

 

Facsimile:

(646) 424-6489

 

Email:

dennis.strid@americas.ing.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

MONT BLANC CAPITAL CORP., as a Conduit Investor

 

 

 

By: ING CAPITAL MARKETS LLC, as Attorney-in-Fact

 

 

 

 

 

By:

/s/ Dennis Strid

 

 

Name:

Dennis Strid

 

 

Title:

Vice President

 

 

 

 

 

 

 

Address:

1325 Avenue of the Americas

 

 

New York, NY 10019

 

 

 

 

 

 

 

Attention:

Dennis Strid

 

Telephone:

(646) 424-7908

 

Facsimile:

(646) 424-6489

 

Email:

dennis.strid@americas.ing.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

ING BANK N.V. DUBLIN BRANCH, as a Committed Note Purchaser

 

 

 

 

 

By:

/s/ David Rea

 

 

Name:

David Rea

 

 

Title:

Vice President

 

 

 

 

 

 

 

 

 

By:

/s/ Adan Neill

 

 

Name:

Adan Neill

 

 

Director

 

 

 

 

 

 

 

Address:

49 St. Stevens Green

 

 

Dublin 2, Ireland

 

 

 

 

 

 

 

Attention:

David Rea

 

Telephone:

+353 1 638 4038

 

Facsimile:

+353 1 638 4020

 

Email:

david.rea@ingbank.com

 

 

 

 

 

 

 

COMMITMENT AMOUNT:

 

 

$150,000,000.00

 

 

 

 

 

 

 

COMMITMENT PERCENTAGE: 7.02%

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

JPMORGAN CHASE BANK, N.A., as a Funding Agent

 

 

 

 

 

By:

/s/ Marquis Gilmore

 

 

Name:

Marquis Gilmore

 

 

Title:

Managing Director

 

 

 

 

 

 

 

Address:

10 S. Dearborn St.

 

 

Chicago, IL 60603

 

 

 

 

 

 

 

Attention:

Hetal Patel

 

Telephone:

(312) 732-2651

 

Facsimile:

(312) 732-3600

 

Email:

hetal.x.patel@jpmchase.com

 

 

 

 

with a copy to:

 

 

 

 

Address:

10 S. Dearborn St.

 

 

Chicago, IL 60603

 

 

 

 

 

 

 

Attention:

Mark Gilmore

 

Telephone:

(212) 834-5175

 

Facsimile:

(212) 834-6564

 

Email:

marquis.gilmore@jpmorgan.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

PARK AVENUE RECEIVABLES COMPANY LLC (PARCO), as a Conduit Investor

 

 

 

By: JPMORGAN CHASE BANK, N.A., as Attorney-in-Fact

 

 

 

 

 

By:

/s/ Marquis Gilmore

 

 

Name:

Marquis Gilmore

 

 

Title:

Managing Director

 

 

 

 

 

 

 

Address:

10 S. Dearborn St.

 

 

Chicago, IL 60603

 

 

 

 

 

 

 

Attention:

Anthony Bero

 

Telephone:

(312) 732-4647

 

Facsimile:

(312) 732-1844

 

Email:

abs.treasury.dept@jpmorgan.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

JPMORGAN CHASE BANK, N.A., as a Committed Note Purchaser

 

 

 

 

 

By:

/s/ Marquis Gilmore

 

 

Name:

Marquis Gilmore

 

 

Title:

Managing Director

 

 

 

 

 

 

 

Address:

10 S. Dearborn St.

 

 

Chicago, IL 60603

 

 

 

 

 

 

 

Attention:

Hetal Patel

 

Telephone:

(312) 732-2651

 

Facsimile:

(312) 732-3600

 

Email:

hetal.x.patel@jpmchase.com

 

 

 

 

with a copy to:

 

 

 

 

Address:

10 S. Dearborn St.

 

 

Chicago, IL 60603

 

 

 

 

 

 

 

Attention:

Mark Gilmore

 

Telephone:

(212) 834-5175

 

Facsimile:

(212) 834-6564

 

Email:

marquis.gilmore@jpmorgan.com

 

 

 

 

 

 

 

COMMITMENT AMOUNT:

 

 

$258,303.750.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 12.08%

 

Hertz 2009-1 Note Purchase Agreement

 


 

 

NATIXIS FINANCIAL PRODUCTS INC., as a Funding Agent

 

 

 

 

 

By:

/s/ David Bondy

 

 

Name:

David Bondy

 

 

Title:

Managing Director

 

 

 

 

 

 

 

 

 

By:

/s/ Adam True

 

 

Name:

Adam True

 

 

Title:

Managing Director

 

 

 

 

 

 

 

Address:

9 West 57 th  St.

 

 

New York, NY 10019

 

 

 

 

 

 

 

Attention:

Frank Fletcher

 

Telephone:

(212) 891-5878

 

Facsimile:

(212) 891-3335

 

Email:

Frank.fletcher@us.natixis.com and

 

 

versaillestransactions@us.natixis.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

VERSAILLES ASSETS LLC, as a Conduit Investor

 

 

 

By: GLOBAL SECURITIZATION SERVICES, LLC, its Manager

 

 

 

 

 

By:

/s/ Timothy O’Connor

 

 

Name:

Timothy O’Connor

 

 

Title:

Vice President

 

 

 

 

 

 

 

Address:

c/o Global Securitization Services LLC

 

 

68 South Service Road

 

 

Suite 120

 

 

Melville, NY 11747

 

 

 

 

 

 

 

Attention:

Andrew Stidd

 

Telephone:

(212) 302-8767

 

Facsimile:

(631) 587-4700

 

Email:

versailles_transactions@us.natixis.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

VERSAILLES ASSETS LLC, as a Committed Note Purchaser

 

 

 

By: GLOBAL SECURITIZATION SERVICES, LLC, its Manager

 

 

 

 

 

By:

/s/ Timothy O’Connor

 

 

Name:

Timothy O’Connor

 

 

Title:

Vice President

 

 

 

 

 

 

 

 

Address:

c/o Global Securitization Services LLC

 

 

68 South Service Road

 

 

Suite 120

 

 

Melville, NY 11747

 

 

 

 

 

 

 

Attention:

Andrew Stidd

 

Telephone:

(212) 302-8767

 

Facsimile:

(631) 587-4700

 

Email:

versailles_transactions@cm.natixis.com

 

 

 

 

 

 

COMMITMENT AMOUNT:

 

 

$150,000,000.00

 

 

 

 

 

COMMITMENT PERCENTAGE: 7.02%

 

Hertz 2009-1 Note Purchase Agreement

 


 

 

RBS SECURITIES INC., as a Funding Agent

 

 

 

 

 

By:

/s/ David Viney

 

 

Name:

David Viney

 

 

Title:

Managing Director

 

 

 

 

 

 

 

Address:

540 West Madison St.

 

 

Chicago, IL 60661

 

 

 

 

 

 

 

Attention:

David Donofrio

 

Telephone:

(312) 338-6720

 

Facsimile:

(312) 338-0140

 

Email:

david.donofrio@rbs.com

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

AMSTERDAM FUNDING CORPORATION, as a Conduit Investor

 

 

 

 

 

By:

/s/ Timothy O’Connor

 

 

Name:

Timothy O’Connor

 

 

Title:

Vice President

 

 

 

 

 

 

 

Address:

c/o Global Securitization Services, LLC

 

 

68 South Service Road

 

 

Suite 120

 

 

Melville, New York 11747

 

 

 

 

 

 

 

Attention:

Frank B. Bilotta

 

Telephone:

(212) 302-8331

 

Facsimile:

(212) 302-8767

 

Hertz 2009-1 Note Purchase Agreement

 



 

 

THE ROYAL BANK OF SCOTLAND PLC, as a Committed Note Purchaser

 

 

 

By: RBS SECURITIES INC., as agent

 

 

 

 

 

By:

/s/ David Viney

 

 

Name:

David Viney

 

 

Title:

Managing Director

 

 

 

 

 

 

 

Address:

540 West Madison St.

 

 

Chicago, IL 60661

 

 

 

 

 

 

 

Attention:

David Donofrio

 

Telephone:

(312) 338-6720

 

Facsimile:

(312) 338-0140

 

Email:

david.donofrio@rbs.com

 

 

 

 

 

 

 

COMMITMENT AMOUNT:

 

 

$55,000,000.00

 

 

 

 

 

 

 

COMMITMENT PERCENTAGE: 2.57%

 

Hertz 2009-1 Note Purchase Agreement

 


 

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

 

A-1



 

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      .

 

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

 

 

By:

 

 

Title:

 

 

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:

 

 

 

 

DEUTSCHE BANK AG, NEW YORK BRANCH

 

29.3500%

 

$

627,525,000.00

BANK OF AMERICA, N.A.

 

10.5235%

 

$

225,000,000.00

THE BANK OF NOVA SCOTIA

 

3.5078%

 

$

75,000,000.00

BARCLAYS BANK PLC

 

14.0313%

 

$

300,000,000.00

BMO CAPITAL MARKETS CORP.

 

4.6771%

 

$

100,000,000.00

CALYON NEW YORK BRANCH

 

9.2253%

 

$

197,244,000.00

ING CAPITAL MARKETS LLC

 

7.0157%

 

$

150,000,000.00

JPMORGAN CHASE BANK, N.A.

 

12.0811%

 

$

258,303,750.00

NATIXIS FINANCIAL PRODUCTS INC.

 

7.0157%

 

$

150,000,000.00

RBS SECURITIES INC.

 

2.5724%

 

$

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 Purchaser’s “ Purchased Percentage ”) of the Transferor’s Commitment under the Series 2009-1 Note Purchase Agreement and the Transferor’s Investor Group Invested Amount.  The Transferor hereby irrevocably sells, assigns and transfers to each Acquiring Committed Note Purchaser, without recourse, representation or warranty, and each Acquiring Committed Note Purchaser hereby irrevocably purchases, takes and assumes from the Transferor, such Acquiring Committed Note Purchaser’s Purchased Percentage of the Transferor’s Commitment under the Series 2009-1 Note Purchase Agreement and the Transferor’s Investor Group Invested Amount.

 

The Transferor has made arrangements with each Acquiring Committed Note Purchaser with respect to (i) the portion, if any, to be paid, and the date or dates for payment, by the Transferor to such Acquiring Committed Note Purchaser of any program fees, undrawn facility fee, structuring and commitment fees or other fees (collectively, the “ Fees ”) [heretofore received] by the Transferor pursuant to Section 3.02 of the Series 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 Company’s obligations under the Indenture, the Related Documents or any other instrument or document furnished pursuant hereto; (iii) each Acquiring Committed Note Purchaser confirms that it has received a copy of the Indenture, the Series 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.

 

 

[             ], as Transferor

 

 

 

 

 

 

By:

 

 

 

Title:

 

 

 

 

 

 

 

By:

 

 

 

Title:

 

 

 

[             ], as Acquiring Committed Note Purchaser

 

 

 

 

 

 

By:

 

 

 

Title:

 

 

 

 

 

 

[             ], as Funding Agent

 

 

 

 

 

 

By:

 

 

 

Title:

 

B-4



 

CONSENTED AND ACKNOWLEDGED:

 

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

By:

 

 

 

Title:

 

 

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:

[           ]

 

Attention: [                  

]

 

Telephone: [                

]

 

Facsimile: [                 

]

 

Prior Commitment Percentage:

[

]

 

 

 

Revised Commitment Percentage:

[

]

 

 

 

Prior Investor Group Principal Amount:

[

]

 

 

 

Revised Investor Group Principal Amount:

[

]

 

 

[TRANSFEROR FUNDING AGENT]

 

Address:

[           ]

 

Attention: [                  

]

 

Telephone: [                

]

 

Facsimile: [                 

]

 

[ACQUIRING COMMITTED NOTE PURCHASER]

 

Address:

[           ]

 

Attention: [                  

]

 

Telephone: [                

]

 

Facsimile: [                 

]

 



 

Prior Commitment Percentage:

[

]

 

 

 

Revised Commitment Percentage:

[

]

 

 

 

Prior Investor Group Principal Amount:

[

]

 

 

 

Revised Investor Group Principal Amount:

[

]

 

[ACQUIRING COMMITTED NOTE PURCHASER FUNDING AGENT]

 

Address:

[           ]

 

Attention: [                  

]

 

Telephone: [                

]

 

Facsimile: [                 

]

 



 

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 Group’s “ 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 Group’s Investor Group Principal Amount.  The Transferor Investor Group hereby irrevocably sells, assigns and transfers to the Acquiring Investor Group, without recourse, representation or warranty, and the Acquiring Investor Group hereby irrevocably purchases, takes and assumes from the Transferor Investor Group, the Acquiring Investor Group’s Purchased Percentage of the Commitment with respect to the Committed Note Purchasers included in the Transferor Investor Group under the Series 2009-1 Note Purchase Agreement and the Transferor Investor Group’s Investor Group Principal Amount.

 

From and after the Transfer Issuance Date, amounts that would otherwise be payable to or for the account of the Transferor Investor Group pursuant to the Series 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 Company’s 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.

 

 

[          ], as Transferor Investor Group

 

 

 

By:

 

 

Title:

 

 

 

[          ], as Transferor Investor Group

 

 

 

By:

 

 

Title:

 

 

 

[          ], as Acquiring Investor Group

 

 

 

By:

 

 

Title:

 

 

 

[          ], as Acquiring Investor Group

 

 

 

By:

 

 

Title:

 

 

 

[          ], as Funding Agent

 

 

 

By:

 

 

Title:

 

CONSENTED AND ACKNOWLEDGED:

 

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

By:

 

 

 

  Title:

 

 

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 Purchaser’s  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    .

 

 

 

[NAME OF ADDITIONAL FUNDING AGENT],
as Funding Agent

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

[NAME OF ADDITIONAL CONDUIT
PURCHASER], as Conduit Investor

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

[NAME OF ADDITIONAL COMMITTED
PURCHASER], as Committed Note Purchaser

 

 

 

By:

 

 

 

Name:

 

 

Title:

 



 

 

Acknowledged and Agreed to as of the date
first above written:

 

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

DEUTSCHE BANK AG, NEW YORK
BRANCH, as Administrative Agent

 

 

 

By:

 

 

 

Name:

 

 

Title:

 




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

 

 

 

 

Page

 

 

 

 

ARTICLE I

DEFINITIONS

 

2

 

 

 

 

ARTICLE II

SERIES 2009-2 ALLOCATIONS

 

36

Section 2.1.

Series 2009-2 Series Accounts

 

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 Administrator’s 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 Moody’s; provided , that if an Eligible Manufacturer does not have a rating from Moody’s, then the rating of an affiliated entity specified by Moody’s shall apply for purposes of this definition; provided , further , that if (a) the rating of a Manufacturer by Moody’s is withdrawn or a Manufacturer is downgraded by Moody’s 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 Moody’s 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 Moody’s, but which does not have a long-term unsecured debt rating of at least “Baa2” from Moody’s; provided that if an Eligible Manufacturer does not have a rating from Moody’s, then the rating of an affiliated entity specified by Moody’s shall apply for purposes of this definition; provided , further , that if (a) (x) a Manufacturer is downgraded by Moody’s 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 Moody’s 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 Moody’s is withdrawn or a Manufacturer is downgraded by Moody’s 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 Moody’s 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 Moody’s; provided that if an Eligible Manufacturer does not have a rating from Moody’s, then the rating of an affiliated entity specified by Moody’s shall apply for purposes of this definition; provided , further , that if (a) the rating of a Manufacturer by Moody’s is withdrawn or a Manufacturer is downgraded by Moody’s 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 Moody’s 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 Moody’s and a short-term senior unsecured debt rating of at least “P-1” from Moody’s.

 

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 Hertz’s employees, or to the extent permitted under the HVF Lease, employees of Hertz Equipment Rental Corporation.

 

Hyundai Amount ” means, as of any date of determination, an amount equal to the sum of the Manufacturer Non-Eligible Vehicle Amount and the Manufacturer Eligible Program Vehicle Amount, in each case, with respect to Hyundai as of such date.

 

Inclusion Date ” means, with respect to any 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

 

21



 

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

 

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“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 Provider’s 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 Provider’s 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 Provider’s 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, Moody’s 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 Hertz’s (a) senior secured asset based revolving loan facility, provided under a credit agreement, dated as of December 21, 2005, among Hertz Equipment Rental Corporation, the Servicer together with certain of Hertz’s 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 Servicer’s 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 Month’s published NADA Guide for the model class and model year of such HVF Vehicle based on the average equipment and the average mileage of each HVF Vehicle of such model class and model year; provided , that if the NADA Guide was not published in the Related Month or the NADA Guide is being published but such HVF Vehicle is not included therein, the Third-Party Market Value of such HVF Vehicle shall be based on the market value specified in the Finance Guide for the model class and model year of such HVF Vehicle based on the average equipment and the average mileage of each HVF Vehicle of such model class and model year; provided , further , that

 

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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 HVF’s 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 Provider’s Class A LOC Credit Disbursement and (y) such Class A Letter of Credit Provider’s 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 Provider’s 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 Trustee’s 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 Administrator’s Failure to Instruct the Trustee to Make a Deposit or Payment .

 

If the Administrator fails to give notice or instructions to make any payment from or deposit into the Collection Account or any Series 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 HVF’s 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 HVF’s 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 Moody’s or the long-term debt credit rating of any Class A Letter of Credit Provider has fallen below “ A1 ” as determined by Moody’s (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 HVF’s 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 Intermediary’s 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 HVF’s 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 Participant’s 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 Participant’s 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 Participant’s 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 Owner’s 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.

 

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

 

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 Officer’s 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 Officer’s 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 Officer’s 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 Officer’s 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 person’s 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 person’s 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 person’s 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

 

77



 

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.

 

 

HERTZ VEHICLE FINANCING LLC

 

 

 

By:

/s/ R. Scott Massengill

 

 

Name: R. Scott Massengill

 

 

Title: V. P. & Treasurer

 

 

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee,

 

 

 

By:

/s/ John D. Ask

 

 

Name: John D. Ask

 

 

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.

 

2



 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

 

HERTZ GLOBAL HOLDINGS, INC.

 

 

 

 

 

By:

/s/ Elyse Douglas

 

 

Name:

Elyse Douglas

 

 

Title:

Executive Vice President and Chief Financial Officer

 

3



 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 

 

 

 

 

By:

/s/ Martin Reed

 

 

Name:

Martin Reed

 

 

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 Participant’s 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 Participant’s 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.

 

2




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 Participant’s 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 Participant’s death; provided that any such permitted transferee the deceased Participant’s beneficiary or representative of the Participant’s 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 ]

 

2



 

IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first above written.

 

 

 

HERTZ GLOBAL HOLDINGS, INC.

 

 

 

 

 

 

 

Name:

 

Title:

 

 

 

 

 

PARTICIPANT

 

 

 

 

 

 

 

Name:

 

3




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EXHIBIT 15

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




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EXHIBIT 31.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO RULE 13a-14(a)/15d-14(a)

I, Mark P. Frissora, certify that:

Date: November 6, 2009


 

 

By:

 

/s/ MARK P. FRISSORA  
       
Mark P. Frissora
Chief Executive Officer



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EXHIBIT 31.2

CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO RULE 13a-14(a)/15d-14(a)

I, Elyse Douglas, certify that:

Date: November 6, 2009


 

 

By:

 

/s/ ELYSE DOUGLAS  
       
Elyse Douglas
Chief Financial Officer



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EXHIBIT 32.1

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

 

By:

 

/s/ MARK P. FRISSORA  
       
Mark P. Frissora
Chief Executive Officer



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EXHIBIT 32.2

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

 

By:

 

/s/ ELYSE DOUGLAS  
       
Elyse Douglas
Chief Financial Officer



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